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SMRH:.4 INTERVENOR-DEFENDANTS’ OPPOSITION TO MOTION FOR STAY
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations ROBERT J. URAM, Cal. Bar No. 122956 [email protected] JAMES F. RUSK, Cal. Bar No. 253976 [email protected] Four Embarcadero Center, 17th Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Attorneys for THE CALIFORNIA VALLEY MIWOK TRIBE, THE TRIBAL COUNCIL, YAKIMA DIXIE, VELMA WHITEBEAR, ANTONIA LOPEZ, MICHAEL MENDIBLES, GILBERT RAMIREZ, JR., ANTOINETTE LOPEZ, and IVA SANDOVAL
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
CALIFORNIA VALLEY MIWOK TRIBE, a federally-recognized Indian tribe, THE GENERAL COUNCIL, SILVIA BURLEY, RASHEL REZNOR; ANGELICA PAULK; and TRISTIAN WALLACE,
Plaintiffs,
v.
SALLY JEWEL, in her official capacity as U.S. Secretary of Interior; LAWRENCE S. ROBERTS, in his official capacity as Acting Assistant Secretary of Interior - Indian Affairs; MICHAEL BLACK, in his official capacity as Director of the Bureau of Indian Affairs,
Defendants.
Case No. 2:16-01345 WBS CKD OPPOSITION TO PLAINTIFFS’ MOTION FOR AN ORDER STAYING AS-IA’S DECEMBER 30, 2015 DECISION Judge: Hon. William B. Shubb Date: September 6, 2016 Time: 1:30 p.m. Courtroom 5
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TABLE OF CONTENTS
Page
I. INTRODUCTION ............................................................................................................. 1
II. FACTS .............................................................................................................................. 2
A. Tribal History ........................................................................................................ 2
B. The 1998 Resolution and interim council ............................................................... 3
C. Miwok I and II ....................................................................................................... 4
D. The 2011 Decision and Miwok III .......................................................................... 5
E. The Tribe’s 2013 election ...................................................................................... 6
F. The 2015 Decision and the Tribal Council’s Recognition Request ......................... 7
G. The BIA’s request for comment from the Burleys and the inception of this litigation ................................................................................................................ 9
III. LEGAL STANDARDS ................................................................................................... 10
A. Injunctive relief ................................................................................................... 10
B. Judicial review of federal agency action ............................................................... 11
IV. ARGUMENT .................................................................................................................. 11
A. The Burleys have not shown they are likely to succeed on the merits. .................. 12
1. The purported enrollment of the Burleys in 1998 has no bearing on the validity of the 2015 Decision. ............................................................. 12
2. The 1998 Resolution did not establish a valid Tribal government. ............ 13
B. The Burleys have not shown they are likely to suffer imminent and irreparable harm absent a stay. ............................................................................. 14
1. Release of the funds is not imminent. ....................................................... 15
2. Release of the funds would not cause irreparable harm. ............................ 16
C. The balance of equities favors Intervenors. .......................................................... 16
D. An injunction is not in the public interest. ............................................................ 17
E. The Burleys’ requested relief is overbroad ........................................................... 17
F. The Assistant Secretary chose not to stay the 2015 Decision. ............................... 18
V. CONCLUSION ............................................................................................................... 18
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TABLE OF AUTHORITIES
Page(s) Federal Cases
A Woman’s Friend Pregnancy Res. Clinic v. Harris 153 F.Supp.3d 1168 (E.D. Cal. 2015) .................................................................................... 16
Aguayo v. Jewell No. 14-56909, slip op. (9th Cir. 2009) ..............................................................................12, 17
California Valley Miwok Tribe v. Jewell 5 F.Supp.3d 86 (D.D.C. 2013) (Miwok III) ..................................................................... passim
California Valley Miwok Tribe v. Kempthorne No. 2:08-cv-03164 (E.D.Cal. 2009) ......................................................................................... 4
California Valley Miwok Tribe v. United States 515 F.3d 1262 (D.C. Cir. 2008) (Miwok II) .................................................................... passim
California Valley Miwok Tribe v. USA 424 F.Supp.2d 197 (D.D.C. Mar. 31, 2006) (Miwok I) .................................................... passim
Caribbean Marine Services Co., Inc. v. Baldrige 844 F.2d 668 (9th Cir. 1988) ................................................................................................. 15
Columbia Pictures Indus., Inc. v. Fung 710 F.3d 1020 (9th Cir. 2013) ..........................................................................................10, 18
Goodface v. Grassrope 708 F.2d 335 (8th Cir. 1983) ................................................................................................. 17
Midgett v. Tri–County Metro. Transp. Dist. of Oregon 254 F.3d 846 (9th Cir. 2001) ................................................................................................. 15
Nken v. Holder 556 U.S. 418, 129 S.Ct. 1749 (2009) ..................................................................................... 10
San Luis & Delta-Mendota Water Auth. v. Locke 776 F.3d 971 (9th Cir. 2014) ................................................................................................. 11
Selkirk Conservation Alliance v. Forsgren 336 F.3d 944 (9th Cir. 2003) ................................................................................................. 11
Skydive Arizona, Inc., v. Quattrochi 673 F.3d 1105 (9th Cir. 2012) ..........................................................................................10, 17
Stormans, Inc., v. Selecky 586 F.3d 1109 (9th Cir. 2009) ............................................................................................... 11
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Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 129 S.Ct. 365 (2008) ......................................................................................10, 15
Yakama Nation v. Northwest Regional Director Bureau of Indian Affairs 47 IBIA 117 (2008) ............................................................................................................... 15
State Cases
California Valley Miwok Tribe v. Cal. Gambling Control Comm’n 231 Cal.App.4th 885 (2014) (Miwok IV) ................................................................ 6, 15, 16, 18
Federal: Statutes, Rules, Regulations, Constitutional Provisions
Administrative Procedure Act, 5 U.S.C. § 706 ............................................................................ 11
California Rancheria Act ............................................................................................................... 3
25 C.F.R. §§ 2.4(e), 2.6(a). (e) .............................................................................................................. 15 § 2.6(b) ................................................................................................................................. 15 § 2.6(c).................................................................................................................................. 18
43 U.S.C. § 1457........................................................................................................................... 4
Indian Reorganization Act, 25 U.S.C. § 476 ...........................................................................3, 4, 7
Indian Self Determination Act, Public Law 638 ...................................................................... 4, 13
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I. INTRODUCTION
Plaintiff Silvia Burley, her two daughters and her granddaughter (Burleys) have fought
since 1998 for exclusive control of the federally recognized California Valley Miwok Tribe
(Tribe), claiming they are the Tribe’s only members and its rightful government. The Burley’s
attempted power grab has spawned multiple court cases, including three published opinions that
affirm the federal government’s duty to protect majoritarian values in Tribal organization and
reject the Burleys’ claims to have established a Tribal government “without so much as consulting
[the Tribe’s] membership.” California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263
(D.C. Cir. 2008) (Miwok II).
The Intervenor-Defendant Tribal Council represents approximately 200 adult members of
the Tribe and their children. The Tribal Council has applied to the federal Bureau of Indian Affairs
(BIA) for federal recognition as the Tribe’s government based on a July 6, 2013 Tribal election
that adopted a Tribal Constitution and ratified the authority of the Tribal Council.
In this case, the Burleys challenge the December 30, 2015 decision (2015 Decision) by the
BIA that the United States does not recognize the Burleys as representing the Tribe and that it can
only recognize a Tribal government formed through a process in which the entire Tribal
community had an opportunity to participate. The Burleys seek to enjoin “implementation” of the
2015 Decision because they fear the BIA will recognize the Tribal Council — formed with the
consent of the Tribe’s 200 members — as the Tribe’s government, and the California Gambling
Control Commission will then distribute funds it currently holds in trust for the Tribe to the Tribal
Council. The Court should deny the motion because the Burleys cannot clear the high bar for the
extraordinary remedy of injunctive relief under the well-established four-factor test.
The Burleys are not likely to succeed on the merits, because both the factual record and
prior court decisions support the 2015 Decision’s findings that (i) the Burleys are not the only
members of the Tribe and (ii) the government they purported to form does not have the support or
consent of the Tribal community. In attacking those findings, the Burleys merely repeat
arguments the District Court for the District of Columbia rejected in overturning a 2011 BIA
decision that was more favorable to the Burleys. See California Valley Miwok Tribe v. Jewell,
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5 F.Supp.3d 86 (D.D.C. 2013) (Miwok III). The Burleys did not appeal that decision and cannot
relitigate it in this Court.
The Burleys have not shown the financial injury they fear is imminent or irreparable, or
even that it is caused by the 2015 Decision. They claim the BIA informed them it would decide
by July 12, 2016, whether to recognize the Intervenor Tribal Council, but the BIA only asked the
Burleys to provide comments by that date—it did not set a timetable for its decision or indicate
what the decision would be. If and when the BIA decides to recognize the Tribal Council, the
California Gambling Control Commission still must decide whether, and when, to release funds to
the Tribe. Any speculative injury the Burleys might suffer would be caused by those future
decisions, not by the 2015 Decision they seek to enjoin, and could be recouped by a claim for
money damages if the Commission erroneously released Tribal funds.
The Burleys ignore the harm to the Tribe, its members and the Tribal Council from further
delaying resolution of a dispute that has already crippled the Tribe’s government for more than a
decade. They also ignore the public interest in protecting majoritarian values and Tribal
sovereignty, which would be undermined if the 2015 Decision is enjoined.
Because all four factors weigh against the Burleys’ motion for injunctive relief, the motion
should be denied.
II. FACTS
The history of the Tribe and the current dispute is well documented in the published
opinions resulting from the Burleys’ prior attempts to claim Tribal authority.
A. Tribal History
In 1913, federal Office of Indian Affairs (now BIA) agent John Terrell located a group of
Miwok Indians — remnants of a larger band — living in and near the former mining town of
Sheepranch in Calaveras County, California. Miwok III, 5 F.Supp.3d at 89. The agent took a
census of the 13 band members he found there and noted they were “[t]o some extent …
interchangeable in their relations” with the Indians of nearby Miwok communities in Murphys,
SixMile, Avery and Angles. Id. at 89 n.2. The United States acquired a small parcel of land and
created a reservation for the benefit of these Indians, which was known as the Sheep Ranch
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Rancheria.1 Id. at 89. The Tribe has been recognized by the United States since then, initially as
the Sheep Ranch Rancheria of Me-Wuk Indians of California and more recently as the California
Valley Miwok Tribe. First Amended Complaint, ECF No. 4, ¶ 127 (FAC).
Rancheria resident Jeff Davis, the sole eligible voter, voted in 1935 to accept application to
the Tribe of the Indian Reorganization Act (IRA), 25 U.S.C. § 476, which authorizes tribes to
“organize” by adopting a constitution and government through a majoritarian process.2 Miwok III,
5 F.Supp.3d at 89. The Tribe did not organize at that time.3 Id. In 1966, the BIA began
proceedings to terminate the United States’ relationship with the Tribe under the California
Rancheria Act, but it did not complete the process and federal recognition of the Tribe was never
terminated. Id. As part of that process, the BIA did convey fee title in the Rancheria property to
the sole resident of the Rancheria at that time, Mabel Hodge Dixie. Id.
B. The 1998 Resolution and interim council
Ms. Dixie’s son Yakima Dixie was the only Tribal member living on the Rancheria
property in 1998 when Silvia Burley “wrote for Yakima's signature, a statement purporting to
enroll herself, her two children, Rashel Roznor [sic] and Anjelica Paulk, and her granddaughter,
Tristian Wallace, into the Tribe.” Id. at 90. Later in 1998, Dixie and Burley signed a document,
“Resolution #GC-98-01” (the 1998 Resolution), which recited that the membership of the Tribe
consisted of “at least” the Burleys and Dixie, and purported to establish a “general council” 1 The record reflects that the Rancheria currently covers 0.92 acre, 5 F.Supp.3d at 89, but it may have included 2 acres when first purchased. See California Valley Miwok Tribe v. USA, 424 F.Supp.2d 197, 197-198 (D.D.C. Mar. 31, 2006) (Miwok I), affirmed, 515 F.3d 1262. The difference is not germane to this litigation. 2 Although Jeff Davis was the only eligible IRA voter by virtue of his residence on the Rancheria at that time, he was not the only Tribal member; the Tribe’s membership was never limited to those people living on the tiny Rancheria property at any given time. Decl. of M. Corrales, ECF No. 11, Exhibit 4, pp. 4, 4 n.19 (2015 Decision). 3 In the 2015 Decision and throughout the federal court opinions involving this Tribe, “organize” and “reorganize” are used interchangeably to refer to the process of adopting tribal governing documents through a majoritarian process — whether under procedures prescribed by the IRA, see 25 U.S.C. § 476(a)-(d), or under other procedures, see 25 U.S.C. § 476. Regardless of the procedures used, organization must “reflect the will of a majority of the tribal community.” California Valley Miwok Tribe v. USA, 424 F.Supp.2d 197, 202 (D.D.C. Mar. 31, 2006) (Miwok I), affirmed, 515 F.3d 1262.
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consisting of all adult members. They did not involve any other members of the Tribe in this
process. Id. at 90-91. In 1999, Burley submitted a letter to the BIA claiming she had replaced
Dixie as the leader of the Tribe under the 1998 Resolution — a claim Mr. Dixie disputed. Id. at
91-92.
The BIA initially accepted Burley as the head of an “interim Tribal Council” and, from
1999 through 2004, provided that council with federal funds under the Indian Self Determination
Act, Public Law 638, for the purpose of organizing the Tribe. California Valley Miwok Tribe v.
USA, 424 F.Supp.2d 197, 200 (D.D.C. Mar. 31, 2006) (Miwok I), affirmed, 515 F.3d 1262. See
also Miwok II, 515 F.3d at 1265 n.6; Miwok III, 5 F.Supp.3d at 91, 93 n.10. During that time,
Burley submitted a series of proposed Tribal constitutions to the BIA, seeking to demonstrate that
the Burleys had properly organized the Tribe. Miwok II, 515 F.3d at 1265. But the constitutions
reflected the involvement of only Burley and her two adult daughters and would have limited
Tribal membership to only them and their descendants, even though Burley herself estimated the
Tribe’s membership at around 250 people. Id. at 1265-1266; Miwok I, 424 F.Supp.2d at 203 n.7.
C. Miwok I and II
The BIA rejected the Burley constitutions, “explaining that [Burley] would need to at least
attempt to involve the entire tribe in the organizational process before the Secretary would give
approval.”4 Miwok II, 515 F.3d at 1265. The BIA also rescinded its interim recognition of Burley
and the general council and terminated federal funding to the council, stating in a February 2005
decision that it “does not recognize any tribal government” for the Tribe.5 Miwok III, 5 F.Supp.3d
at 93-94. Burley sued the United States in the Tribe’s name, claiming the IRA required the BIA to
approve her constitution, id. at 1266. She argued, in the alternative, that the BIA had previously
4 Congress has charged the Secretary of the Interior with authority over Indian affairs, 43 U.S.C. § 1457, and the Secretary has delegated this responsibility to the BIA, which is headed by the Department of the Interior’s Assistant Secretary – Indian Affairs. See Miwok I, 424 F.Supp.2d at 201 n.6. 5 Burley sued the United States in this court in 2008, alleging the BIA had unlawfully failed to renew funding contracts with her tribal council. The case was dismissed for failure to exhaust administrative remedies. California Valley Miwok Tribe v. Kempthorne, No. 2:08-cv-03164 (E.D.Cal. 2009).
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recognized the general council under the 1998 Resolution with her as its leader, and could not
“reverse that position” despite her failure to identify the Tribe’s members and involve them in
forming a Tribal government as the BIA contemplated when it provided funds for Tribal
organization.6 Miwok I, 424 F.Supp.2d at 201.
The district court in Miwok I upheld the refusal to recognize the Burley government,
finding it consistent with the BIA’s “responsibility to ensure that [the] Secretary deals only with a
tribal government that actually represents the members of a tribe.” 424 F.Supp.2d at 201. The
D.C. Circuit affirmed, holding that Burley’s “antimajoritarian gambit deserves no stamp of
approval from the Secretary.” Miwok II, 515 F.3d at 1267.
D. The 2011 Decision and Miwok III
After Miwok I, the BIA attempted in 2006-2007 to help the Tribe involve the Tribal
community in the organization process, but Burley refused to participate and thwarted the BIA’s
effort by filing multiple administrative appeals, which culminated in a referral to the Assistant
Secretary – Indian Affairs, the BIA’s highest official. Miwok III, 5 F.Supp.3d at 94-95. The
Assistant Secretary issued a decision on August 31, 2011 (2011 Decision) that reversed the BIA’s
prior position and found (i) the Tribe’s membership was limited to the four Burleys and Yakima
Dixie, and (ii) the Tribe was already organized with a general council form of government under
the 1998 Resolution.7 Id. at 95. The Intervenors in this action filed suit challenging the 2011
Decision, and the Burleys intervened in the name of the Tribe.
The district court found the 2011 Decision arbitrary and capricious because the Assistant
Secretary unreasonably assumed the Tribe’s membership was limited to five people despite a
record “replete with evidence” of a much larger Tribal community. Id. at 98. The court also
found the Assistant Secretary’s conclusion that the 1998 Resolution established a valid Tribal
government to be unreasonable in light of the record. Id. at 99-100. The court observed that
6 The Burleys have never accounted for the millions of dollars in federal and state funds they received in the name of the Tribe between 1999 and 2004. 7 For litigation purposes, the Burleys count Yakima Dixie as the fifth member of the Tribe, but they purported to “disenroll” him in 2005. Miwok I, 424, F.Supp.2d at 201.
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“when an internal dispute questions the legitimacy of the initial tribal government, the BIA must
ascertain whether the initial government is a duly constituted government” and cannot merely
“repeat[] the rhetoric of … federal noninterference with tribal affairs.” Id. at 100 (italics added;
quotation marks and citations omitted). The Assistant Secretary’s acceptance of the 1998 general
council, despite its failure to involve the Tribe’s members, violated the United States’ “distinctive
obligation of trust” to the Tribe. Id. (quoting Seminole Nation v. United States, 316 U.S. 286, 296
(1942)). On December 13, 2013, the district court remanded the 2011 Decision to the Secretary of
the Interior for reconsideration consistent with its decision.8 Id. at 101.
E. The Tribe’s 2013 election
While the administrative appeals and federal litigation were ongoing, the Tribal Council
continued efforts to involve the entire Tribal community in Tribal organization. Decl. of Robert
Uram, Exhibit A, p. 2 (Recognition Request). The Council members conducted extensive outreach
to the Tribal community through monthly open meetings, mailings, meetings and phone calls with
local Miwok organizations and individuals, and participation in cultural activities and Native
American gatherings. Id. Under the Council’s leadership, the Tribal community met repeatedly to
draft and discuss a Tribal constitution. Recognition Request, Attachment 2, pp. 3-5.
After an unsuccessful attempt to ratify a Tribal constitution in 2012, the Tribal Council
called an election for July 6, 2013, for the Tribal community to consider ratifying a revised
constitution (2013 Constitution). Recognition Request, Attachment 2, p. 5. By that time, the
Tribal Council had identified approximately 200 adults who were eligible and desired to
8 The Burleys argue the district court in Miwok III did not have the “benefit” of deposition testimony that the Burleys took from Yakima Dixie in 2012 in related state court litigation, in which Mr. Dixie allegedly admitted that he resigned as chairman of the five-person general council created under the 1998 Resolution. MPA at 3-4. This claim, while disputed, is ultimately irrelevant in light of the 2015 Decision’s finding that the 1998 Resolution did not create a valid Tribal government. 2015 Decision at 5. See California Valley Miwok Tribe v. Cal. Gambling Control Comm’n, 231 Cal.App.4th 885, 901 (2014) (Miwok IV). In any case, the Burleys provided the deposition to the Assistant Secretary before he made the 2015 Decision.
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participate in Tribal organization.9 Id. Of the 200 eligible voters, more than half (104) cast ballots
in the election, and they overwhelmingly approved the 2013 Constitution by a vote of 90 to 10,
with 4 abstentions. Id. at 7. The Burleys had notice of the organization process but chose not to
participate with the Tribe. Id. at 13. The Tribal Council informed the Assistant Secretary of the
election results on July 11, 2013 and stated that it intended to seek BIA recognition of its
government after Miwok III was resolved. Id. at 7.
F. The 2015 Decision and the Tribal Council’s Recognition Request
Two years after the court’s remand in Miwok III, the Assistant Secretary issued the 2015
Decision. The 2015 Decision unequivocally rejected the Burleys’ claims that the Tribe consists of
only five members and that the 1998 Resolution established a valid Tribal government. Decl. of
M. Corrales, ECF No. 11, Exhibit 4, pp. 3, 6 (2015 Decision). Accordingly, the Decision
determined that “Ms. Burley and her family do not represent the [Tribe].” Id. at 5.
The 2015 Decision determined that the individuals eligible to participate in the
reorganization of the Tribe are “the Mewuk Indians for whom the [Sheep Ranch] Rancheria was
acquired and their descendants.” Id. at 4. The Decision identified those individuals as: (1) the
individuals listed on the 1915 Terrell Census and their descendants; (2) the descendants of
Rancheria resident Jeff Davis (who was the only person on the 1935 IRA voter list for the
Rancheria); and (3) the heirs of Mabel Dixie, as identified by the Department of Interior’s Office
of Hearings and Appeals in 1971, and their descendants. Id. The 2015 Decision determined that,
consistent with Miwok I, II and III, these individuals (collectively the Eligible Groups) must be
given an opportunity to take part in any Tribal organization. Id. at 4, 6. Recognizing that “the
Indians named on the 1915 Terrell Census had relatives in other Calaveras County communities,”
the 2015 Decision also determined that descendants of Miwok Indians named on the 1929 census
9 Various estimates placed the number of eligible people at approximately 250, see Miwok III, 5 F.Supp.3d at 98, but by 2013 some individuals chose not to participate with the Tribe — for instance, those who were eligible for membership in the Wilton Rancheria and chose to join that tribe, which regained federal recognition in 2009. Recognition Request, Attachment 2, p. 5.
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of Indians of Calaveras County (1929 Census) may be included in Tribal organization at the
discretion of the Eligible Group members. 2015 Decision at 5.
The 2015 Decision determined the BIA could not recognize the general council established
under the 1998 Resolution as a valid Tribal government because “the people who approved the
1998 Resolution … are not a majority of those eligible to take part in the reorganization of the
Tribe.” Id. As a result of the Decision, the Burleys “do not represent the [Tribe]” and have the
same status as any other member of the Eligible Groups. Id.10
The 2015 Decision also considered the Tribe’s 2013 Constitution, which recognizes all
Eligible Group members and 1929 Census descendants as eligible for Tribal membership. Id. at 6.
The Decision found the Tribe had not yet demonstrated the 2013 Constitution was validly ratified
because the record did not disclose whether adequate notice of the 2013 election was provided to
members of the Eligible Groups. Id. The Decision authorized the BIA’s Pacific Regional
Director to receive additional submissions for the purpose of determining whether the 2013
Constitution was validly ratified. Id.
On April 18, 2016, the Tribal Council submitted additional information to the Regional
Director and requested that she recognize the 2013 Constitution and Tribal Council ratified
through the July 6, 2013 election. Recognition Request at 1. The Recognition Request included a
report prepared at the Tribal Council’s direction that documented the results of the election and the
outreach and notice to members of the Eligible Groups preceding the election. Recognition
Request, Attachment 2. The Recognition Request showed that of the 104 eligible voters who
participated in the election, 95 were Eligible Group members, and the remaining 9 voters were
1929 Census descendants who participated with the consent of the Eligible Group members.
Recognition Request pp. 3-4, Attachment 2 pp. 3-4, 7.
To date, the BIA has not issued a decision on the Tribal Council’s Recognition Request.
10 Based on information the Burleys provided to the BIA, the Tribal Council believes the Burleys are members of the Eligible Groups and thus eligible to participate in Tribal organization, but the Burleys have chosen not to participate with the rest of the Tribal community. WhiteBear Declaration ¶ 9.
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G. The BIA’s request for comment from the Burleys and the inception of this litigation
On June 9, 2016, the BIA notified the Burleys that the Tribal Council had requested
recognition of the 2013 Constitution, provided the Burleys with a copy of the Tribal Council’s
entire Recognition Request, and invited the Burleys to provide comments on the process used to
conduct the 2013 election. The letter stated in part, “By close of business on July 12, 2016,
please provide your comments and any documents that support your position.” Decl. of M.
Corrales, ECF No. 11, Exhibit 1 (emphasis in original). The letter did not say when the BIA
would decide whether to recognize the 2013 Constitution.
Rather than providing comments to the BIA, the Burleys filed this lawsuit on June 16,
2016, challenging the validity of the 2015 Decision. ECF No. 1. On July 1, the Burleys filed an
ex parte application for an emergency stay of the 2015 Decision, claiming the BIA’s June 9 letter
had notified the Burleys that the BIA intended to act on the Recognition Request by July 12 —
and apparently assuming the BIA would approve the Recognition Request. ECF No. 8, p. 2. The
Court denied the ex parte application on July 5, without prejudice to the refiling of a properly
noticed motion. ECF No. 9.
The Burleys filed the operative motion for stay of the 2015 Decision on July 8, 2016, with
a hearing date of August 8 (ECF No. 12), along with an ex parte application for an order
shortening time to hear the motion (ECF No. 13). On July 14, the Court denied the application for
an order shortening time, ruling that the Burleys had not made a sufficient showing of necessity.
ECF No. 17. On July 21, the Burleys re-noticed their motion for stay with a new hearing date of
September 6, 2016. ECF No. 18.
The Burleys’ Complaint (ECF No. 1) and First Amended Complaint (ECF No. 4) did not
name the Tribal Council or its members as parties. A motion to intervene has been filed
concurrently with this opposition on behalf of the Tribe, the Tribal Council and the Council
members.
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III. LEGAL STANDARDS
Although styled as a motion for stay of the 2015 Decision, the Burleys’ motion seeks more
than that — it seeks injunctive relief to prevent the BIA from making a decision on the Tribal
Council’s Recognition Request. See Nken v. Holder, 556 U.S. 418, 429, 129 S.Ct. 1749 (2009) (a
stay “temporarily divest[s] an order of enforceability,” while an injunction “tells someone what to
do or not to do”).11 The difference is immaterial because the same standard guides the court’s
decision whether to grant a stay or an injunction. See id. at 434 (citing Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365 (2008); see also id. at 443 (J. Alito,
dissenting).
A. Injunctive relief
A preliminary injunction (like a stay) is an “extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, supra, 555 U.S.
at 22. It is never a matter of right, even if irreparable injury might otherwise result. Nken, 556
U.S. at 433-434. The Burleys bear the burden of showing they are “likely to succeed on the
merits,” they are “likely to suffer irreparable harm in the absence of preliminary relief,” the
balance of equities tips in their favor, and an injunction is in the public interest. Winter, 555 U.S.
at 20 (italics added). Winter rejected the idea that the mere possibility of irreparable harm can
justify an injunction; irreparable injury must be likely. Id. at 22.
If granted, “[a]n injunction should be tailored to eliminate only the specific harm alleged,”
Skydive Arizona, Inc., v. Quattrochi, 673 F.3d 1105, 1116 (9th Cir. 2012) (quotation marks and
citation omitted), and “should be no more burdensome to the defendant than necessary to provide
complete relief.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1049 (9th Cir. 2013)
(quoting L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011)). “An overbroad
11 The 2015 Decision does not recognize the Tribe’s 2013 Constitution or mandate that the BIA do so — it explicitly declines to recognize any Tribal government and leaves it to the Regional Director to determine whether sufficient evidence exists to justify federal recognition of the 2013 Constitution. 2015 Decision at 5-6. Thus, recognition of the 2013 Constitution and Tribal Council would not merely “implement” the 2015 Decision. See ECF No. 10, p. 5.
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injunction is an abuse of discretion.” Stormans, Inc., v. Selecky, 586 F.3d 1109, 1140 (9th Cir.
2009) (quotation marks and citation omitted).
B. Judicial review of federal agency action
The Court reviews the merits of the Burleys’ challenge to the 2015 Decision under the
Administrative Procedure Act, which compels federal courts to uphold agency actions unless they
are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Under this standard, the court will affirm an agency action “if the agency
has articulated a rational connection between the facts found and the conclusions made.” San Luis
& Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir. 2014) (quotation marks and
citation omitted). The arbitrary or capricious standard is a “deferential standard of review under
which the agency’s action carries a presumption of regularity.” Id. Courts “must not substitute
[their] judgment for that of the agency, but instead must uphold the agency decision so long as the
agency has considered the relevant factors and articulated a rational connection between the facts
found and the choice made.” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-954
(9th Cir. 2003) (citation omitted).
IV. ARGUMENT
The Burleys make little effort to meet their burden, offering three scant pages of
conclusory argument that fails to establish even one of the injunctive relief factors is met here —
let alone all four. See Memorandum of Points and Authorities, ECF No. 10, pp. 8-11 (MPA).
Most of their arguments on the merits address the district court’s rejection of the 2011 Decision in
Miwok III— not the validity of the 2015 Decision. The only alleged harm they identify is
speculative, as they assume the BIA will recognize the 2013 Constitution and Tribal Council, and
that the California Gambling Control Commission will then release funds to the Tribal Council.
Even if those events were certain to occur, the Burleys identify no legitimate interest in
preventing the Tribe’s federally recognized government from accessing funds held in trust for the
Tribe (not for the Burleys), and they fail to give any weight to the harm the Tribe and its members
will suffer from further delay in reestablishing a government-to-government relationship with the
United States and gaining access to funds for essential Tribal services and programs. Finally, the
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Burleys ignore the strong public interest in respecting tribal sovereignty and protecting
majoritarian values against power grabs by “rogue” factions like the Burleys. See Aguayo v.
Jewell, No. 14-56909, slip op. at 20, 27 (9th Cir. 2009) (citing Miwok II, 515 F.3d 1262).
A. The Burleys have not shown they are likely to succeed on the merits.
The Burleys claim the 2015 Decision was “erroneous as a matter of law” because (i) the
purported enrollment of the Burleys as Tribal members in 1998 was not fraudulent and did not
compromise the interests of Yakima Dixie, his brother Melvin Dixie or other “unenrolled potential
members;” and (ii) the 2015 Decision should have recognized the “general council” created by the
1998 Resolution, which the BIA recognized for several years after 1998. Both arguments lack
merit.
1. The purported enrollment of the Burleys in 1998 has no bearing on the validity of the 2015 Decision.
The district court in Miwok III ruled that the 2011 Decision “missed the first step in the
analysis” by assuming the Tribe’s membership was limited to five people consisting of Yakima
Dixie and the four Burleys. Miwok III, 5 F.Supp.3d at 98-99. She first found it unreasonable for
the BIA to conclude that the Tribe’s membership was “limited to only Yakima in 1998 (and the
Burleys after Yakima enrolled them),” in light of a record “replete with evidence” that a much
larger Tribal community existed at that time. Id. at 98-99. She then found that, even if Yakima
Dixie had been the only Tribal member in 1998, the 2011 Decision failed to explain why the BIA
did not have an obligation to ensure that Burley was not “taking advantage of Yakima when she
sought membership for her family” or why the purported enrollment did not compromise Melvin
Dixie’s interests. Id. at 99. The court remanded to the BIA for reconsideration of “whether the
membership had been properly limited to these five individuals [i.e., the Burleys and Yakima
Dixie].” Id. at 99.
On remand, the Assistant Secretary concluded that, for purposes of organization, the
Tribe’s membership was not limited to only five people but should be defined by the Tribe
through an organization process open to the Eligible Groups and the 1929 Census descendants
(2015 Decision at 3-5) — i.e., the larger Tribal community. See Miwok III, 5 F.Supp.3d at 98.
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Given that conclusion, it is irrelevant whether the Burleys’ purported enrollment in 1998
prejudiced the interests of Yakima and Melvin Dixie (see MPA at 8-9) — indeed, the 2015
Decision accepts that it did not. 2015 Decision at 4 n.20. Whether or not the Burleys were
properly enrolled, they and Yakima Dixie were not a majority of those eligible to participate in
Tribal organization and could not form a Tribal government or determine the Tribe’s membership
without involving the rest of the Tribal community. 2015 Decision at 5.
The Burleys’ related claim that the rest of the Tribal community were only “unenrolled
potential members” who should have applied to the Burleys’ general council for membership
(MPA at 9-10) fails because it merely repeats the “circular argument” rejected by the district court
in Miwok III. 5 F.Supp.3d at 98 n.14 (rejecting the distinction between “citizens and ‘potential’
citizens of the Tribe” because it assumes that five people had the “exclusive authority to determine
citizenship of the Tribe”).12 The Burleys have again “missed the first step in the analysis.” Id.
at 99.
2. The 1998 Resolution did not establish a valid Tribal government.
The Burleys claim the 2015 Decision should have recognized the general council created
by the 1998 Resolution because the BIA previously recognized and provided federal funds to that
council, causing the Burleys to develop settled expectations that the boondoggle would continue.
MPA at 10. But the BIA’s initial support of the Burleys’ interim council, which ended in 2005,
cannot convert the Burleys’ “antimajoritarian gambit” into a legitimate Tribal government.
Miwok II, 515 F.3d at 1267. The 2015 Decision explained that the 1998 council initially may have
seemed a reasonable way to manage the process of Tribal organization but that “actual
reorganization of the Tribe can be accomplished only via a process open to the whole tribal
community” — a standard the 1998 Resolution cannot meet since it was approved by only two
people, while the Tribal community numbers in the hundreds. 2015 Decision at 5; see Miwok III,
5 F.Supp.3d at 98.
12 The Burleys do not challenge the Assistant Secretary’s determination that the Eligible Groups and the 1929 Census descendants make up the “Mewuk Indians for whom the Rancheria was acquired and their descendants.” 2015 Decision at 4.
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The Assistant Secretary’s conclusion is rational and consistent with all three Miwok
opinions. The BIA initially recognized the Burleys’ 1998 general council on an interim basis and
provided it with federal funds under the Indian Self Determination Act for the purpose of
organizing the Tribe, but at least by 2004 it had become clear that the Burleys had no intention of
involving the Tribal community in organization. Miwok I, 424 F.Supp.2d at 200. The BIA
rejected the governing documents the Burleys submitted, Miwok II, 515 F.3d at 1265-1266, and in
2005 rescinded its interim recognition of Burley and the general council. Miwok III, 5 F.Supp.3d
at 93-94 (the BIA “does not recognize any tribal government” for the Tribe).
The Burleys argued then that, “at least since June 25, 1999, the BIA has recognized [their]
government … and that the BIA is now trying to reverse that position.” Miwok I, 424 F.Supp.2d
at 201. But the district court upheld the BIA’s decision as fulfilling its duty to ensure that Tribal
“governing documents reflect the will of a majority of the Tribe’s members.” Id. at 202. The
D.C. Circuit affirmed, holding that tribal organization “must reflect majoritarian values.”
515 F.3d at 1267-1268.
When the BIA made a “180-degree change of course” away from majoritarian values and
issued the 2011 Decision recognizing the 1998 general council as the Tribe’s government, the
district court in Miwok III found the 2011 Decision “unreasonable” in light of the record.
5 F.Supp.3d at 99-100. On remand, the Assistant Secretary reconsidered and determined the BIA
“cannot recognize the actions to establish a tribal governing structure taken pursuant to the 1998
Resolution” because the people who approved the resolution “are not a majority of those eligible
to take part in the reorganization of the Tribe.” 2015 Decision at 5. After 10 years and three
published federal court opinions, the Burleys could not have had any reasonable expectation that
the BIA would decide otherwise.
B. The Burleys have not shown they are likely to suffer imminent and irreparable harm absent a stay.
The Burleys’ motion seeks to enjoin the BIA from recognizing the Tribal Council as the
Tribe’s government, in order to prevent the California Gambling Control Commission from
distributing to the Tribal Council funds held in trust for the Tribe. MPA at 7. The Burleys have
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not shown that release of the funds is imminent or that it would harm them irreparably, and their
nearly six-month delay in challenging the 2015 Decision undercuts any claim that imminent injury
will flow from that Decision.
1. Release of the funds is not imminent.
“[A] preliminary injunction will not be issued simply to prevent the possibility of some
remote future injury.” Winter, supra, 555 U.S. at 21 (citation and quotation marks omitted).
Plaintiff must demonstrate “immediate threatened harm.” Caribbean Marine Services Co., Inc. v.
Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). See also Midgett v. Tri–County Metro. Transp. Dist.
of Oregon, 254 F.3d 846, 850–851 (9th Cir. 2001) (risk of irreparable harm in the indefinite future
is not sufficient). The Burleys have not met their burden.
The Burleys state that before the Gambling Control Commission can consider releasing
funds to the Tribal Council, the BIA must recognize the Council as the Tribe’s government. MPA
at 6. The Burleys claim the BIA’s June 9, 2016 letter set a July 12, 2016 deadline for the BIA to
act on the Tribal Council’s Recognition Request, but the letter did no such thing — it merely
asked the Burleys to submit comments by that date. ECF No. 11, Exhibit 1. July 12 has come and
gone, and the BIA has not acted on the Recognition Request or set a timetable for action. Nor is
the BIA certain to approve the Recognition Request when it does act, as the Burleys assume (see
MPA at 5). The BIA will not recognize a Tribal government until it is satisfied that the Tribe’s
“representatives, with whom [it] must conduct government-to-government relations, are valid
representatives of the [Tribe] as a whole.” Miwok II, 515 F.3d at 1267 (quotation marks and
citation omitted; italics in original).
Even if the Regional Director approves the Recognition Request, her decision will be
subject to appeal within the Department of the Interior — only an approval by the Assistant
Secretary would be “final for the Department and effective immediately.” 25 C.F.R.
§§ 2.4(e), 2.6(a), (e). An appeal would carry an automatic stay of the Regional Director’s
approval. See 25 C.F.R. §2.6(b); Yakama Nation v. Northwest Regional Director Bureau of
Indian Affairs, 47 IBIA 117, 119 (2008). Even after any appeal is decided, the Commission still
must decide whether to release the funds while litigation over the Tribe’s government is pending.
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See generally California Valley Miwok Tribe v. California Gambling Control Comm'n, 231 Cal.
App. 4th 885 (2014), review denied (Mar. 11, 2015) (Miwok IV). Thus, the Burleys’ request is
both premature and unnecessary.
2. Release of the funds would not cause irreparable harm.
The Burleys fail to explain how releasing Tribal funds to the Tribal Council would cause
them any harm — let alone irreparable injury. The funds the Gambling Control Commission holds
in trust for the Tribe belong to the Tribe itself, not the Burleys. See Miwok IV, 231 Cal. App. 4th
at 910-911. The Burleys do not represent the Tribe, and the fact that the BIA dealt with the
Burleys prior to 2005 does not give them any claim on the funds. Id. (denying Burleys’ attempt to
force the Commission to pay the Tribe’s funds to them). Thus, the Burleys have no legal interest
in the funds that could be injured by release of the funds to the Tribe or the Tribal Council.
Even if the Burleys could assert the Tribe’s interest in the funds (they can’t), they have not
explained how the Tribe’s interests would be harmed by release of the funds to a Tribal
government recognized as legitimate by the United States, or how any claimed injury would be
irreparable — i.e., not compensable by money damages. “Monetary injury generally does not
constitute irreparable injury.” A Woman's Friend Pregnancy Res. Clinic v. Harris, 153 F.Supp.3d
1168, *30 (E.D. Cal. 2015) (citing LA Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d
1197, 1202 (9th Cir. 1980)).13 And the Burleys have not even attempted to show that the Tribe
would be unable to recover if the Gambling Control Commission erroneously released Tribal
funds. See Miwok IV, 231 Cal.App.4th at 906 (Commission, as a trustee of Tribal funds, would be
liable under state law if it paid the funds to an unauthorized recipient).
C. The balance of equities favors Intervenors.
The Burleys breezily dismiss the balancing of equities, claiming “none of the parties or any
other person will be harmed by a stay” because the Gambling Control Commission will continue
to hold the accrued funds that belong to the Tribe. MPA at 10-11. They ignore the ongoing harm
13 A Woman’s Friend recognizes an exception where later monetary recovery might be precluded by state sovereign immunity, but that exception does not apply here. 153 F.Supp.3d 1168 at *30.
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to the Tribe and its members from the lack of a government-to-government relationship with the
United States, and the resulting lack of access to federal and state funding for essential services
and assistance to Tribal members including health care, legal assistance, and economic
development programs. Decl. of V. WhiteBear, ¶ 13. See Goodface v. Grassrope, 708 F.2d 335,
338–339 (8th Cir. 1983) (BIA’s failure to recognize either of two tribal factions created a “hiatus
in tribal government which jeopardized the continuation of necessary day-to-day services on the
reservation”).
In contrast, there will be no harm to the Burleys if the Court denies a stay. As explained
above, the Burleys have no interest in the funds held in trust for the Tribe, and the possible
recognition of the Tribal Council would not harm the Burleys given that they have not been
recognized as the Tribe’s government in more than 10 years.14
D. An injunction is not in the public interest.
The Burleys also ignore the public interest factor, claiming (without explanation) it is not
implicated because the case affects “an Indian tribe and its members.” MPA at 11. But there is a
strong public interest in avoiding “unnecessary intrusion in tribal self-governance” and allowing
federally recognized tribes to exercise their sovereignty. Aguayo, supra, No. 14-56909, slip op.
at 13. Likewise, the United States has a strong interest, in light of its “unique trust obligation to
Indian tribes,” in promoting majoritarian values. Miwok II, 515 F.3d at 1267 (citations omitted).
Further delaying recognition of a Tribal government that reflects the will of the entire Tribal
community, as required by the 2015 Decision, would not serve those interests. See id.
E. The Burleys’ requested relief is overbroad
Even if the Burleys were entitled to injunctive relief — which they have failed to show —
their attempt to prevent the BIA from considering and acting on the Tribal Council’s Recognition
Request still would be overbroad and ill-tailored to the harm they allege. See Skydive Arizona,
14 To the extent the Burleys have an interest in participating in the Tribe, a decision recognizing the Tribal Council would not prejudice that interest. The 2015 Decision encourages the Burleys to participate in Tribal organization as part of the larger Tribal community, 2015 Decision at 5, but so far they have declined to do so. Recognition Request, Attachment 2, pp. 13-15.
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supra, 673 F.3d at 1116 (injunction should be narrowly tailored). If the Burleys seek to prevent
erroneous release of Tribal funds by the California Gambling Control Commission, the proper
vehicle would be a suit for relief against the Commission — something the Burleys are no stranger
to — if and when the Tribal Council seeks access to the funds. See Miwok IV, 231 Cal. App.
4th 885. Halting the BIA’s administrative process and imposing a freeze on this Tribe’s
relationship with the United States would be unnecessarily burdensome and improper. See
Columbia Pictures Indus., supra, 710 F.3d at 1049.
F. The Assistant Secretary chose not to stay the 2015 Decision.
The Burleys suggest this Court should stay the 2015 Decision “[i]n the same way the [2011
Decision] was stayed pending resolution of the federal litigation” in Miwok III. MPA at 6. But
the district court did not stay the 2011 Decision—the Assistant Secretary did, in the Decision
itself. Corrales Decl., Exhibit 9, p. 8. See also Miwok III, 5 F.Supp.3d at 96; 25 C.F.R. § 2.6(c)
(decisions of the Assistant Secretary are final and effective immediately “unless … provide[d]
otherwise in the decision”). The fact that the Assistant Secretary voluntarily stayed the 2011
Decision and chose not to stay the 2015 Decision argues against a court-imposed stay here, not in
favor.
V. CONCLUSION
The Burleys’ attempt to enjoin the BIA from recognizing a Tribal government is
premature, overbroad and would cause irreparable harm to the Tribe and its members. The
Burleys have already crippled the Tribe’s efforts at self-governance and its relationship with the
United States for more than a decade. They should not be allowed to prevent the Tribe from
restoring that relationship while they prosecute yet another groundless lawsuit. The Court should
deny the motion for stay.
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Dated: August 8, 2016
ROBERT J. URAM JAMES F. RUSK SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Intervenor-Defendants By /s/ James F. Rusk
JAMES F. RUSK
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CERTIFICATE OF SERVICE
I hereby certify that on August 8, 2016, I electronically filed the foregoing Opposition to
Plaintiffs’ Motion for an Order Staying AS-IA’s December 30, 2015 Decision with the Clerk of
the Court by using the CM/ECF system, and thus served the following counsel of record who are
registered ECF users:
• Manuel Corrales, Jr. [email protected]
Having obtained prior written consent, I served the following counsel for the named
defendants by electronic mail:
• Jody H. Schwarz [email protected]
Respectfully submitted,
/s/ James F. Rusk JAMES F. RUSK
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Intervenor-Defendants
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