Friends of Amador County, et al., v. Salazar

Filing 74

ORDER signed by Judge William B. Shubb on 12/07/11 ORDERING that plaintiff's 64 Motion to Amend the Judgment is DENIED. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NO. CIV. 2:10-348 WBS CKD

FRIENDS OF AMADOR COUNTY, BEA
CRABTREE, JUNE GEARY,

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MEMORANDUM AND ORDER RE:
MOTION TO RECONSIDER, VACATE,
AMEND OR MODIFY THE ORDER OF
DISMISSAL ENTERED BY THE COURT
ON 4 OCTOBER 2011

Plaintiffs,
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v.
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KENNETH SALAZAR, SECRETARY OF
THE UNITED STATES DEPARTMENT
OF INTERIOR, United States
Department of Interior, THE
NATIONAL INDIAN GAMING
COMMISSION, GEORGE SKIBINE,
Acting Chairman of the
National Indian Gaming
Commission, THE STATE OF
CALIFORNIA, Arnold
Schwarzenegger Governor of the
State of California,
Defendants.
___________________________/

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On August 16, 2011, the Buena Vista Rancheria of Me-Wuk

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Indians (the “Tribe”) requested permission to appear specially to

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present a motion to dismiss based on failure to join a necessary

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and indispensable party under Federal Rule of Civil Procedure 19.
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(Docket No. 32.)

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dismissing the action.

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reconsider, vacate, amend, or modify this court’s order of

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October 4, 2011.

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On October 4, 2011, the court issued an order
(Docket No. 62.)

Plaintiffs now move to

Reconsideration is an “extraordinary remedy” which

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should be used “sparingly in the interests of finality and the

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conservation of judicial resources.”

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of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see also Sch. Dist.

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No. 1J, Multonomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993) (stating that reconsideration should only be granted

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in “highly unusual circumstances”).

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“should not merely present arguments previously raised, or which

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could have been raised in the initial . . . motion.”

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States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1130 (E.D.

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Cal. 2001) (citing Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th

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Cir. 1985)).

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Kona Enter., Inc. v. Estate

A motion for reconsideration

United

Rule 60(b) “provides for reconsideration only upon a

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showing of (1) mistake, surprise, or excusable neglect; (2) newly

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discovered evidence; (3) fraud; (4) a void judgment; (5) a

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satisfied or discharged judgment; or (6) ‘extraordinary

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circumstances’ which would justify relief.”

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F.3d at 1263 (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442

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(9th Cir. 1991)).

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only appropriate where the district court (1) is presented with

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newly discovered evidence, (2) committed clear error or the

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initial decision was manifestly unjust, or (3) if there is an

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intervening change in controlling law.

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Dist., 134 F. Supp. 2d at 1131.

Sch. Dist. No. 1J, 5

Under Rule 60(b), reconsideration is generally

See Westlands Water

Under Rule 59(e),
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“[r]econsideration is appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear

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error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law.”

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No. 1J, 5 F.3d at 1263.

Sch. Dist.

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A district court may reconsider an order under either

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Federal Rule of Civil Procedure 59(e) (motion to alter or amend

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judgment) or Rule 60(b) (relief from judgment or order).

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Backlund, 778 F.2d at 1388.

Plaintiffs frame their motion as

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being brought under both Rule 59 and Rule 60.1

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present the court with newly discovered evidence, nor do they

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present any new caselaw that would constitute an intervening

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change in controlling law.

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but one of plaintiffs’ claims rests on allegations that the court

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made a “clear error” or a “mistake” in its prior order.

Plaintiffs do not

For the purposes of this motion, all

The

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The Ninth Circuit has held that when the moving party
does not specify under which rule they bring a motion for
reconsideration, it should be treated as a motion under Rule
59(e), rather than Rule 60, if it is filed within ten days of the
entry of judgment. See Am. Ironworks & Erectors, Inc. v. N. Am.
Const. Corp., 248 F.3d 892, 899 (9th Cir. 2001). In 2009, Rule
59(e) was amended to change the time for filing a Rule 59(e)
motion from ten to twenty-eight days. Plaintiffs’ motion for
reconsideration was filed within twenty-eight days of the entry
of judgment. Thus, if plaintiffs had not specified what rule
they were relying on, the court would have applied Rule 59(e).
The Tribe argues that plaintiffs’ motion should be
decided under Rule 60(b) because plaintiffs did not specifically
mention subpart (e) of Rule 59, (Opp’n to Mot. for Recons. at
3:1–9, n.3), citing Harrington v. City of Chicago, 433 F.3d 542
(7th Cir. 2006), to support its position. The Seventh Circuit in
Harrington, however, addressed what rule to apply where the party
did not specify either Rule 59 or Rule 60. See Harrington, 433
F.3d at 546. As plaintiffs did specify Rule 59 (although not
subpart (e) specifically), and the Ninth Circuit has held that
courts should presume that a motion for reconsideration was
brought under Rule 59(e) when applicable, Am. Ironworks, 248 F.3d
at 899, the court will consider plaintiffs’ motion as being
raised under Rule 59(e) where appropriate.
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analysis of these claims would be practically identical under

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Rules 59(e) and 60(b) because “clear error” and “mistake” require

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similar showings that the court’s prior Order was clearly in

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error.

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subpart B below, does plaintiff appear to specifically rely on

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the “fraud” factor in Rule 60(b).

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address plaintiffs’ claims under Rule 59(e), see Am. Ironworks,

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248 F.3d at 899, with the exception of the one instance where

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evaluation under Rule 60(b) would be more appropriate.

For only one of plaintiffs’ arguments, addressed in

The court will therefore

The majority of plaintiffs’ arguments in support of

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their motion simply restate their original positions opposing the

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motion to dismiss and do not raise any new issues or identify

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errors that would justify reconsideration of the court’s Order.

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The first twenty pages of plaintiffs’ motion rehash their version

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of the historical events leading up to the present suit, (Mot.

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for Recons. at 5:1-20:18), and another thirteen pages reiterate

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arguments already repeatedly discussed and decided by the court,

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(id. at 25:4-37:9).

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discussing the principals of Rule 19 and when a party should be

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determined to be both necessary and indispensable.

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20:20-24:2.)

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issues.2

Plaintiffs also spend several pages

(Id. at

Plaintiffs do appear to have raised three new

The court will address each in turn.

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In their conclusion, plaintiffs appear to be hinting at
a fourth argument - that plaintiffs have a valid challenge under
the Administrative Procedure Act (“APA”) on the issue of the
government’s acknowledgment of the Tribe. (Mot. for Recons. at
47:11-17.) This specific challenge is not raised in plaintiffs’
complaint, nor did plaintiffs request leave to amend their
complaint to add such a challenge. Plaintiffs additionally cite
two D.C. Circuit opinions allowing challenges to Department of
Interior opinions dealing with Indian tribes under the APA. (See
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A.

Public Rights Exception

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Plaintiffs raise the public rights exception as a

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reason why the Tribe was not an indispensable party in this

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litigation.

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argument for the first time on their motion for reconsideration.3

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A judgment is not intended to be a rough draft for losing parties

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to take pot shots at.

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motion for reconsideration are deemed waived.

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Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)

(Id. at 24:7-25:2.)

Plaintiffs are making this

Arguments raised for the first time in a
See 389 Orange

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(finding that a district court did not abuse its discretion when

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it declined to address an issue raised for the first time in a

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motion for reconsideration).

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plaintiffs’ public rights exception argument.

Nonetheless, the court will address

The public interest exception “provides that when

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litigation seeks vindication of a public right, third persons who

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could be adversely affected by a decision favorable to the

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plaintiff are not indispensable parties.”

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Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d 1491,

Kickapoo Tribe of

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Mot. for Recons. at 47:18-48:10 (citing Patchak v. Salazar, 632
F.3d 702 (D.C. Cir. 2011); Amador Cnty. v. Salazar, 640 F.3d 373
(D.C. Cir. 2011)).) In neither of those cases did the court
address whether the respective tribe was a necessary and
indispensable party. Other courts have held that dismissal under
Rule 19 is necessary, even though the challenge was brought under
the APA. See, e.g., St. Pierre v. Norton, 498 F. Supp. 2d 214,
220-21 (D.D.C. 2007).
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Plaintiffs did cite Makah Indian Tribe v. Verity, 910
F.2d 555 (9th Cir. 1990), in their opposition to the motion to
dismiss. (Opp’n to Mot. to Dismiss at 23:18-22.) However,
plaintiffs only raised the case to “mak[e] it clear mere economic
interest in the outcome of a case does not make the tribe a
necessary party.” (Id. at 23:19-22 (citing Makah Indian Tribe,
910 F.2d 555).) At no point did plaintiffs argue that the court
should balance the public interest in the regulation with the
tribe’s interests in the litigation.
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1500 (D.C. Cir. 1995).

“[T]he exception generally applies where

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‘what is at stake are essentially issues of public concern and

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the nature of the case would require joinder of a large number of

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persons.’”

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324 (E.D. Cal. 1985)).

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private interests of the litigants and seek to vindicate a public

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right.”

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see also Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1026

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(9th Cir. 2002).

Id. (quoting Sierra Club v. Watt, 608 F. Supp. 305,
“[T]he litigation must transcend the

Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996);

Plaintiffs do not argue that a large number of parties

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would need to be joined in this case in order to vindicate the

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public right, nor do they show that the public interest

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transcends that of the parties’ interests.

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this case does not incidentally affect the Tribe and its gaming,

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rather it is aimed directly at the gaming activities of the

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Tribe.

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this action.

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B.

The litigation in

The public rights exception is therefore inapplicable in

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Misrepresentations of Fact
Plaintiffs outline six statements that they allege were

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misrepresentations made by the Tribe in support of its motion to

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dismiss.

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to be combining the requirements under Rule 59(a)(1)(B) and

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59(a)(2) that provide that new trials may be granted based on

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mistake of fact, with the relief available under Rule 60(b) when

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the opposing party engages in misrepresentation or misconduct.

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As plaintiffs are unable to request a new trial under Rule 59(a)

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and plaintiffs’ arguments appear to be solely based on allegedly

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fraudulent statements made by the Tribe, the court will presume

(Mot. for Recons. at 37:11-42:21.)

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Plaintiffs appear

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that plaintiffs are requesting reconsideration based on

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misrepresentations under Rule 60(b).

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In order to prevail on a Rule 60(b) motion based on

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misrepresentations by the Tribe, plaintiffs must show that “the

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verdict was obtained through fraud, misrepresentation, or other

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misconduct and the conduct complained of prevented the losing

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party from fully and fairly presenting the defense.”

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v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000).

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The fraudulent conduct must “not be discoverable by due diligence

De Saracho

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before or during the proceedings.”

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Navigation Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th

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Cir. 1991).

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Pac. & Arctic Ry. &

The six alleged misrepresentations made by the Tribe

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concern issues that go to the very heart of the litigation in

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this matter.

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status of the Tribe, the tribal lands, or the general legal

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issues in the case are not fraudulent statements under Rule

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60(b).

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Tribe and have been disputed by plaintiffs since the complaint

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was filed.

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defense, nor were they unable to discover that the Tribe’s

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statements could be disputed prior to their motion for

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reconsideration.

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C.

The Tribe’s representations regarding the legal

The statements are argumentative positions taken by the

Plaintiffs were not prevented from presenting their

Alternative Procedural Mechanisms
Plaintiffs briefly present six alternative procedural

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mechanisms that they claim the court could have used to avoid the

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outright dismissal of the case due to failure to join a necessary

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and indispensable party.

(Mot. for Recons. at 42:23-45:10.)
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These alternative mechanisms were not previously presented to the

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court, despite the fact that they are directly relevant to the

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Tribe’s motion to dismiss based on Rule 19.

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to raise these alternative mechanisms in response to the Tribe’s

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motion to dismiss renders the arguments waived.

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Street, 179 F.3d at 665.

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plaintiffs’ argument.

See 389 Orange

Nonetheless, the court will address

Plaintiffs’ first, fifth, and sixth proposals require

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Plaintiffs’ failure

either the forced joinder of the Tribe or assume that at some

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later date the Tribe would voluntarily choose to join the

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litigation.

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Plaintiffs appear to base these joinder proposals on the fact

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that the United States is able to bring suit against Indian

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tribes and therefore could theoretically interplead the Tribe to

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avoid the Tribe’s claims of sovereign immunity.

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(Mot. for Recons. at 43:8-15; 44:3-45:2.)

As the United States has not elected to join the Tribe

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in this action, plaintiffs’ proposal would require the court to

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order the United States to initiate joinder proceedings against

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the Tribe.

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suggestion that the court can force the United States to

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interplead a party, and the court is unable to find direct

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authority on this question.

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plaintiffs’ proposal is a viable alternative in Rule 19

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proceedings, then cases would never need to be dismissed for

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failure to join an Indian tribe if the United States is also a

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defendant in the case.

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multiple occasions that an Indian tribe is a necessary and

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indispensable party that cannot be joined in an action in which

Plaintiffs fail to provide any support for their

The court notes, however, that if

The Ninth Circuit, however, has found on

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the United States is also a defendant.

See, e.g., Rosales v.

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United States, 73 Fed. Appx. 913, 914 (9th Cir. 2003) (finding

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that the tribe could not be joined without its consent); Clinton

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v. Babbitt, 180 F.3d 1081, 1090 (9th Cir. 1999) (same).

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Similarly, to the extent that plaintiffs rely on the Tribe

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deciding to voluntarily join the litigation at some point in the

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future, what plaintiffs are really asking the court to do is to

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assume that the Tribe will cede its sovereign immunity, a

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decision that the Tribe is under no obligation to make.

A viable

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alternative in a Rule 19 motion cannot stand on such uncertain

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ground.

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Plaintiffs’ first, second, fifth, and sixth proposals

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would have the court decide plaintiffs’ summary judgment motion

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concerning the gaming eligibility of the Tribe’s lands, (Docket

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No. 40), before addressing plaintiffs’ tribal organization

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claims.

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appear to believe that splitting the litigation into two parts

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would lessen the prejudice to the Tribe, allowing the court to

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determine the eligibility of the Tribe’s land for gaming in the

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Tribe’s absence.

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necessary and indispensable party covered all of plaintiffs’

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claims, including plaintiffs’ claim that the Tribe’s land is

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ineligible for tribal gaming.

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23 (“This impairs the Tribe’s substantial gaming-related

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interests, including its right under federal law to engage in

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class III gaming.”).)

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plaintiffs’ summary judgment motion in the Tribe’s absence would

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prejudice the Tribe’s protected legal interests and is not an

(Mot. for Recons. at 43:8-20; 44:8-45:2.)

Plaintiffs

The court’s determination that the Tribe was a

(See Oct. 4, 2011, Order at 7:21-

Splitting the claims or ruling on

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adequate alternative to dismissal under Rule 19.
Plaintiffs’ third proposal appears to suggest that the

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court send the case back to the Department of Interior and

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National Indian Gaming Commission so that Crabtree and Geary may

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attempt to lawfully organize the tribe so that they will be

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included as tribe members.

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Plaintiffs’ one-sentence description of this proposal lacks

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citation to any caselaw or statute authorizing the court to

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pursue this course of action.

(Mot. for Recons. at 43:21-44:2.)

The proposal also fails to inform

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the court exactly what this alternative procedure would entail,

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why plaintiffs would be unable to pursue this alternative after

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their claims have been dismissed, or how it would protect the

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Tribe’s interests.

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Finally, plaintiffs’ fourth proposal is that the court

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should have denied the Tribe’s motion to appear specially to

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force the Tribe to intervene in the case if they wanted the court

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to rule on the Rule 19 motion.

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in no way serves to protect the Tribe’s legal interests, rather

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it is a merely a way in which the court could have potentially

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avoided deciding the Rule 19 motion.

(Id. at 44:3-7.)

This proposal

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Plaintiffs’ proposed alternative procedural mechanisms

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demonstrate a lack of understanding of the concept of a required

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party under Rule 19.

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would lessen the prejudice that the Tribe would suffer while

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providing plaintiffs adequate relief.

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proposals were previously presented to the court during the

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motion to dismiss and are now laid out in less than two pages.

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Plaintiffs have not adequately explained how each proposal would

None of plaintiffs’ proposed alternatives

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None of plaintiffs’ six

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function and have failed to respond to the Tribe’s objections to

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the proposals.

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court committed clear error in granting the Tribe’s motion to

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dismiss.

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reconsideration.

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Plaintiffs have failed to demonstrate that the

Accordingly, the court will deny plaintiffs’ motion for

IT IS THEREFORE ORDERED that plaintiffs’ motion for

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reconsideration be, and the same hereby is, DENIED.

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DATED:

December 7, 2011

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