Jamul Action Committee et al v. Stevens et al

Filing 92

ORDER denying Walter Rosales and Karen Toggery's 75 Motion for leave to file an amicus curiae brief, signed by Judge Kimberly J. Mueller on 4/16/15. (Kastilahn, A)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

8
9
10

JAMUL ACTION COMMITTEE, et al.,

11

Plaintiffs,

12
13
14

No. 2:13-cv-01920-KJM-KJN

v.

ORDER

JONODEV CHAUDHURI, Acting
Chairman of the National Indian Gaming
Commission, et al.,

15

Defendants.

16
17

Walter Rosales and Karen Toggery move for leave to file an amicus curiae brief.

18

ECF No. 75. After considering the parties’ briefing, the court took the matter under submission

19

without a hearing. The motion is denied, as explained below.

20

I.

BACKGROUND
The Jamul Action Committee, several of its individual members, and the Jamul

21
22

Community Church are the plaintiffs here. The defendants are (1) several employees, officers, or

23

appointees of the National Indian Gaming Commission, the Department of the Interior, and the

24

Bureau of Indian Affairs (the federal defendants); and (2) several individual members of the

25

Jamul Indian Village (the Tribal Members)1 and several corporations participating in the

26
27
28

1

The Jamul Indian Village (the Tribe) is a federally recognized tribal entity entitled to
tribal sovereign immunity. Order Aug. 5, 2014, at 7, ECF No. 50. The Tribe has not consented
to this court’s jurisdiction and is not a defendant here.
1

1

construction of a casino near Jamul, California (the tribally affiliated defendants). The complaint,

2

now in its third iteration, seeks most fundamentally an injunction to halt construction of the

3

casino.2 See Second Am. Compl. 30–31, ECF No. 51.

4

In their motion, Rosales and Toggery describe themselves as “Native American

5

residents of San Diego County of one-half or more degree of California Indian blood, and former

6

leaders of the half-blood Indian community, known as the Jamul Indian Village.” Mem. P. & A.

7

1, ECF No. 75-1. They claim interests in “their families’ remains and funerary objects” and in

8

“the Indian cemetery property in which they were interred.” Id. at 0–1.3 They seek leave to file

9

an amicus brief to correct “significant misrepresentations to the Court about the half-blood

10

community’s status” and about “the merits of Walter Rosales and Karen Toggery’s beneficial

11

ownership of their families’ human remains, funerary objects, and the cemetery property on

12

which they lived, and which JIV has desecrated to construct a casino on land that does not qualify

13

for Indian gambling.” Id. The memorandum filed with their motion alleges,

14

[Mr. Rosales’ and Ms. Toggery’s] families’ remains and funerary
objects are now being disinterred, desecrated and unceremoniously
dumped by the Defendants in a race to illegally build a casino on
the cemetery property before they are stopped and the law is
enforced. More than 20 eyewitnesses have testified to the families’
interment on the cemetery property, and the undeniable evidence
that the Defendants have illegally disinterred and dumped Walter
and Karen’s families’ human remains and funerary objects on a
State highway project at the juncture of State Routes 11-125-905 on
the Mexican border.

15
16
17
18
19
20

Id. at 2. To their motion, Rosales and Toggery attach a proposed amicus brief, ECF No. 75-2,

21

and several exhibits and requests for judicial notice, see ECF Nos. 75-3, 76–82, 88.

22
23
24
25
26

2

The complaint includes six claims for relief: (1) declaratory and injunctive relief for
violation of the Indian Gaming Regulatory Act; (2) declaratory and injunctive relief for violations
of the Indian Reorganization Act of 1934; (3) declaratory and injunctive relief under
constitutional principles of federalism and equal protection; (4) injunctive relief and damages for
public nuisance and nuisance per se; (5) declaratory relief and mandate for violations of the
National Environmental Protection Act; and (6) declaratory and injunctive relief for violation of
California’s compact with the Tribe. See generally Second Am. Compl., ECF No. 51.

27
3

28

The memorandum’s second page is labelled page 1.
2

1

The defendants oppose the motion. Tribal Members’ & Affiliated Defs.’ Opp’n,

2

ECF No. 83; Fed. Opp’n, ECF No. 84. They argue the proposed amicus brief is untimely and

3

irrelevant to any pending issues, Tribal Members’ Opp’n 4–5, 15–17; Fed. Opp’n 7–9, 11; is no

4

more than a collateral attack on this court’s previous orders and federal decisional law, Tribal

5

Members’ Opp’n 5–9, 13–14; Fed. Opp’n 10; injects new issues into this litigation, Tribal

6

Members’ Opp’n 6–9; Fed. Opp’n 9–10; and ignores the requirements of this court’s standing

7

order, Tribal Members’ Opp’n 14–15; Fed. Opp’n 6–7.

8

II.

9

DISCUSSION
Federal district courts have broad discretion in the appointment of amici.

10

Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v.

11

Conner, 515 U.S. 472 (1995); In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991).

12

Although courts in general liberally allow the filing of amicus briefs, if a proposed brief would

13

not be helpful, an amicus may be turned away. See Cmty. Ass’n for Restoration of Env’t (CARE)

14

v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citing Northern Sec. Co. v.

15

United States, 191 U.S. 555, 556 (1903)). An amicus brief may be unhelpful for many reasons,

16

including because it is untimely or does not provide information relevant to a pending decision.

17

See id.

18

Here, the proposed brief is unhelpful to resolve any pending issue and is best

19

understood as a request for reconsideration of the court’s previous order. Only one other motion

20

is pending: the plaintiffs’ motion for a preliminary injunction and writ of mandate. ECF No. 60.

21

It has been fully briefed. Id.; Fed. Opp’n Prelim. Inj., ECF No. 63; Tribal Members’ Opp’n

22

Prelim. Inj., ECF No. 62; Reply Prelim. Inj., ECF No. 67. The court took the matter under

23

submission on January 27, 2015. Minute Order, ECF No. 68. In that motion, the plaintiffs seek

24

to enjoin construction of the casino until the federal defendants issue certain environmental

25

impact statements. See Mem. P.&A. Supp. Prelim. Inj. 2, ECF No. 60-1. The proposed amicus

26

brief does not address the basis of the plaintiffs’ pending motion, namely the proposed gaming

27

management contract and its regulatory implications. See Mot. Prelim. Inj. 2–5, ECF No. 60-1.

28
3

1

To the extent the proposed amicus brief contests the Tribe’s federal recognition,

2

the tribally affiliated defendants’ or the Tribe’s sovereign immunity, or argues the Tribe is not a

3

necessary party, the proposed brief runs contrary to the court’s prior order. See Order Aug. 5,

4

2014, at 7, ECF No. 50. That order addressed a motion filed nearly a year ago and decided

5

several months before the proposed amicus brief was filed. Rosales and Toggery describe no

6

reason for their delay. Nothing prevented an earlier motion or an application for reconsideration

7

had it been denied. Now simply is not the time.

8

III.

9
10
11

CONCLUSION
The motion is DENIED.
IT IS SO ORDERED.

DATED: April 16, 2015.

12
13
14

UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4