Alturas Indian Rancheria v. Salazar, et al

Filing 142

ORDER signed by Judge Lawrence K. Karlton on 11/22/2013 DENYING 128 Motion to Enforct Judgment/Motion for Contempt. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALTURAS INDIAN RANCHERIA,

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No.

CIV. S-10-1997 LKK/EFB

Plaintiff,
v.

ORDER

KENNETH L. SALAZAR, et al.,

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Defendants.

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This is a proceeding brought by plaintiff Indian tribe to

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determine whether the government is in contempt of the court’s

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January 13, 2012 order in this case (ECF No 126).

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asserts that the following portion of the court’s order required

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the government to pay “contract support costs” associated with

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the “self-determination” contracts it entered into with

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plaintiff:

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Plaintiff

The BIA has approved the Tribe’s selfdetermination
contract
requests
for
the
fiscal years 2009, 2010, 2011, and 2012, and
shall transfer the amounts provided in those
requests to the Tribe’s bank account … in
accordance with the terms contained in the
contract award documents.
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Order of January 13, 2012, ECF No. 126 ¶ 2 (“Settlement Agreement

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and Stipulation for Entry of Judgment and Order”).

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For the reasons that follow, plaintiff’s request to enforce

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the judgment or for a contempt order will be denied.

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I.

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BACKGROUND

Plaintiff Alturas Indian Rancheria (the “Tribe”) is a

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federally recognized Indian tribe.

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Determination and Education Assistance Act (“ISDA”), 25 U.S.C.

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§§ 450, et seq., the Secretary of the Interior “is directed” to

Pursuant to the Indian Self-

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enter into “self-determination” contracts with willing tribes,

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“pursuant to which those tribes will provide services such as

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education and law enforcement that otherwise would have been

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provided by the Federal Government.”

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Chapter, 567 U.S. ___, 132 S. Ct. 2181, 2186 (2012).1

Salazar v. Ramah Navaho
Under the

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The government has submitted “Supplemental Briefing” (ECF
No. 140), asserting that plaintiff is a class member in Salazar
(Ramah Navajo Chapter v. Lujan, Civ. No. 1:90-cv-00957-LH-KBM
(D.N.M.) (Hansen, J.). As a result, the government argues,
“unless the Tribe can show that it has opted out of the Ramah
class, the Tribe should not be allowed to pursue its claim for
contract support costs under its ISDEAA [ISDA] contracts here.”
ECF No. 140 at 2. There are at least two obvious problems with
the government’s assertion. First, the government has not
attached the operative complaint or class certification order in
Ramah so that this court could determine whether plaintiff
actually is a member of the class. Second, the Ramah litigation
was commenced 23 years ago, in 1990, and the class was certified
20 years ago, in 1993. See Ramah Docket Nos. 1 & 96. The time
for the government to notify the court that plaintiff was barred
from pursuing its claims was 13 years ago, when plaintiff filed
this lawsuit against the government, not two weeks ago. This
lawsuit has now been litigated all the way to a final judgment by
settlement, and accordingly, there is no longer a “claim” to be
barred by plaintiff’s alleged class membership. Rather,
plaintiff seeks to enforce the judgment which both parties agreed
to in this litigation. In short, this contempt proceeding is not
barred by plaintiff’s alleged membership in the Ramah class.
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ISDA, once the Tribe has submitted a proposal for a self-

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determination contract, “or a proposal to amend or renew” such a

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contract, the Secretary “shall” approve the proposal and award

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the contract within ninety (90) days, unless an enumerated reason

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for refusal exists.

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25 U.S.C. § 450f(a)(2).

The amount of funds provided to the Tribe under these

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contracts is to be no less than the amount the Secretary would

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have spent to run the program, plus “contract support costs.”

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U.S.C. § 450j-1(a)(1) & (2) (“There shall be added to the amount

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required by paragraph (1) contract support costs which shall

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consist of an amount for the reasonable costs for activities

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which must be carried on by a tribal organization as a contractor

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to ensure compliance with the terms of the contract and prudent

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management”); Salazar, 132 S. Ct. at 2186 (“ISDA mandates that

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the Secretary shall pay the full amount of ‘contract support

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costs’ incurred by tribes in performing their contracts”).2

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Late in 2008, the Tribe wrote to the Bureau of Indian

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Affairs (“BIA”), requesting a renewal of its “2008 Annual Funding

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Agreement” (the self-determination contract), for the 2009 fiscal

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year.

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Decl.”) (ECF No. 137-1) ¶ 4 & Exh. 1.

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Tribe entered into the requested “self-determination” contract

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with BIA.

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Lincoln Decl. ¶ 4.

Declaration of Terry J. Lincoln [for Defendants] (“Lincoln
On January 15, 2009, the

BIA paid the requested funding on March 12, 2009.
At some unspecified “later” date in 2009, BIA

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See also, Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631,
634 (2005) (when the government enters into contracts promising
to pay contract support costs, that promise is legally binding).

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agreed to pay contract support costs as well as additional funds

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under the contract.

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the Tribe was embroiled in a dispute over who was a member of the

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Tribe and who represented the Tribe.

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[for Plaintiff] (“Smith Decl.”) (ECF No. 130) ¶ 3.

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support costs, and the additional 2009 funds, were accordingly

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not paid until that dispute was resolved.

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Lincoln Decl. ¶ 4.

However, by that time,

Declaration of Wayne Smith
The contract

Lincoln Decl. ¶ 4.

While the Tribe’s leadership dispute was on-going, the BIA
declined to enter into self-determination contracts with the

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Tribe.

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to compel the Secretary to award the self-determination contract

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for 2010.

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Smith Decl. ¶ 4.

The Tribe thereupon filed this lawsuit

On January 5, 2012, after the Tribe had resolved its

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internal power struggle,3 the Tribe and BIA settled their dispute

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by signing an agreement to cover the Tribe’s self-determination

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contract requests for 2009, 2010, 2011 and 2012.

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¶ 7 & Exh. 1 (attached self-determination contract includes “the

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grant funding for 2010 and 2011 as well as the funding for

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2012”);4 Lincoln Decl. ¶ 7 & Exh. 4 (attached self-determination

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contract award document includes funding for 2010, 2011 and

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2012).5

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See Smith Decl.

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See ECF No. 126 ¶ 1 (resolving the identity of the Tribe’s
governing body).

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The Tribe asserts that the contract was entered “[s]subsequent”
to the court’s order. Smith Decl. ¶ 7. However, the cited
document plainly shows that it was signed by both parties on
January 5, 2012, before the court’s January 13, 2012 order. See
Smith Decl. Exh. 1 (ECF No. 131-1 at 1).

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There appears to be no further dispute about the 2009 fiscal
year contract. The government paid the agreed-upon amounts,
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The contract for 2010 calls for $198,562 in funding.

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Lincoln Decl. ¶ 7 & Exh. 4 (ECF No. 137-1 at 35 & 42).

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contract for 2011 calls for $198,547 in funding.

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Decl. ¶ 7 & Exh. 4 (ECF No. 137-1 at 14).

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calls for $198,244 in funding.6

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(ECF No. 137-1 at 35 & 43).

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See

years.

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The

See Lincoln

For 2012, the contract

See Lincoln Decl.¶ 7 & Exh. 4

This totals $595,353 for all three

On January 13, 2012, the court entered a judgment approving
the parties’ stipulated settlement.

See ECF No. 126.

Pursuant

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to the settlement and order, the BIA “approved the Tribe’s self-

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determination contact requests for the fiscal years 2009, 2010,

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2011, and 2012.”

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further provided that BIA

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ECF No. 126 ¶ 2.

The settlement and order

shall transfer the amounts provided in those
requests to the Tribe’s bank account … in
accordance with the terms contained in the
contract award documents.

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Id.

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Plaintiff seeks a contempt order asserting that the above-

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quoted language from the court’s order requires defendants to pay

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contract support costs.

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does not require payment of those costs.

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////

Defendants assert that the court’s order

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including the contract support costs for that year.

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In all candor, the court cannot make heads nor tails of the
submitted contracts, and does not know how the government reads
them to call for these amounts. However, the Tribe does not
dispute the government’s interpretations of these amounts, so the
court accepts them as established.

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II.

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The Federal Rules of Civil Procedure provide:

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STANDARDS

[i]f a judgment requires a party … to perform
any … specific act and the party fails to
comply within the time specified, the court
may order the act to be done … by another
person appointed by the court. … The court
may also hold the disobedient party in
contempt.
Fed. R. Civ. P. 70(a) & (e).
In a civil contempt action, “[t]he moving
party has the burden of showing by clear and
convincing
evidence
that
the
contemnors
violated a specific and definite order of the
court.”

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FTC v. Enforma Natural Products, Inc., 362 F.3d 1204, 1211 (9TH

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Cir. 2004).

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III. ANALYSIS
The question presented here is whether the government should

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be held in contempt, under Fed. R. Civ. P. 70(e), for failing to

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pay contract support costs.

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the court has required the party to perform any “specific act,”

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and the party “fails to comply within the time specified.”

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Rule 70(a); Westlake North Property Owners Ass'n v. City of

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Thousand Oaks, 915 F.2d 1301, 1304 (9th Cir. 1990) (this rule

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applies to parties “who have failed to perform specific acts

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pursuant to a judgment”); McCabe v. Arave, 827 F.2d 634, 639 (9th

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Cir. 1987) (Rule 70 “is operative only when a party refuses to

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comply with a judgment”).

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Rule 70(e) contempt may issue where

See

The court’s order of January 13, 2012 ordered the government

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to pay “the amounts provided in those requests” into the Tribe’s

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bank account “in accordance with the terms contained in the

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contract award document.”

ECF No. 126.
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The only specific

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amounts provided in those requests totals $595,353.

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Decl. ¶ 7.

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accounts by July 5, 2012.

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Lincoln

The government paid $595,353 into the Tribe’s bank
None of this is disputed.

The Tribe argues that “[t]he Judgment requires that the

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Federal Defendants pay the contract support costs.”

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at 6.

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even what general neighborhood) those support costs are.

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Instead, the Tribe relies solely on the following entries in the

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contract, listed under the title “Catalog of Federal Domestic

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ECF No. 129

Tellingly, the Tribe never says what specific amount (or

Assistance (CFDA) – www.cfda.gov”:

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“CFDA Title: Indian Self-Determination Contract Support”

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“BIA Program Title: TPA/Tribal Government/Contract Support”

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and

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“Contract Program Category: Contract Support.”

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Giving the Tribe the benefit of every available inference, the

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court will tease out of these bare titles and subtitles the

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conclusion that the contract is a part of the “Indian Self-

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Determination Contract Support” program, as described within the

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given website.7

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these lines what specific amount, or even what general amount, or

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even how to calculate the amount, that the Tribe asserts the

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court’s order requires defendants to pay.

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However, there is still no way to get out of

Thus, even if the court were to read the contract as saying
“The Secretary shall pay contract support costs to the Tribe,” it

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See
https://www.cfda.gov/index?s=program&mode=form&tab=step1&id=f2b19
6f01b9e678326a276341a5836ba (Indian Self-Determination Contract
Support program), last visited by the court on November 22, 2014.

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is still not specific and definite enough to support a contempt

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order, since it does not state a specific amount to be paid, a

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minimum amount to be paid, nor any formula from which the

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defendants could figure out how much is owed.8

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The court notes that according to the regulations

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implementing the ISDA, the contract requests “must contain” an

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identification of “the amount of direct contract support costs,”

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as well as “[a]n identification of funds the Indian tribe or

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tribal organization requests to recover for indirect contract

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support costs.”

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complied with this requirement, or if the Secretary had insisted

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that the Tribe comply, then perhaps there would be a specific

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amount in the contract to which the court’s order could have

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applied.

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contract requests did not include these required, specific

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contract support cost amounts.

25 C.F.R. § 900.8(h)(2) & (3).

If the Tribe had

For reasons neither side explains, however, the Tribe’s

See Smith Decl. ¶ 9 (admitting

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The applicable regulations specify how these costs are
calculated. The Secretary determines the amount of indirect
contract support costs by: (a) applying the negotiated indirect
cost rate to the appropriate direct cost base; (b) using the
provisional rate; or (c) negotiating the amount of indirect
contract support. 25 C.F.R. § 1000.140; see Cherokee Nation, 543
U.S. at 635 (“Most contract support costs are indirect costs
‘generally calculated by applying an “indirect cost rate” to the
amount of funds otherwise payable to the Tribe’”). It is
undisputed that in this case, the parties reached agreement on
the contract support costs on June 25, 2013, 18 months after the
court’s January 13, 2012 order issued. See Smith Decl. ¶ 8 &
Exh. 2 (ECF No. 133-1) (“Indirect Cost Negotiation Agreement”
dated June 25, 2013). Even under the Tribe’s best interpretation, the court’s order did not direct the Secretary to pay a
specific amount – and could not have done so – when that amount
would not be negotiated until a year and a half into the future.

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that the Tribe and BIA “began negotiating” for contract support

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costs after the contract was signed, and after the court’s order

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was issued); Salazar Opposition Brief (ECF No. 137) at 5 (“The

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budget submitted by the Tribe does not specify any amount for

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contract support costs”).

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It is true that by operation of law, the government is

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obligated to pay contract support costs related to each of the

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self-determination contracts.9

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a Rule 70(e) contempt citation, which can only apply to the

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violation of a court judgment, not the violation of a statute.

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But the argument does not support

IV.

CONCLUSION

By failing to identify the amount of contract support costs

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applicable to the contract requests, even though such

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identification was required by the applicable federal

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regulations, the Tribe has made it impossible to hold defendants

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in contempt for failing to pay such costs.

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The Tribe’s motion to enforce the judgment and for contempt
is therefore DENIED.

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IT IS SO ORDERED.

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DATED:

November 22, 2013.

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“ISDA mandates that the Secretary shall pay the full
amount of ‘contract support costs’ incurred by tribes in
performing their contracts.” Salazar, 132 S. Ct. at 2186; 25
U.S.C. § 450j-1(a)(2) (“There shall be added to the amount
required by paragraph (1) contract support costs which shall
consist of an amount for the reasonable costs for activities
which must be carried on by a tribal organization as a contractor
to ensure compliance with the terms of the contract and prudent
management”).

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