Paulk et al v. Jewell et al

Filing 37

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 10/24/2016 DENYING 10 Plaintiffs' Motion to Stay. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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CALIFORNIA VALLEY MIWOK
TRIBE, a federally-recognized
Indian tribe, THE GENERAL
COUNCIL, SILVIA BURLEY,
RASHEL REZNOR; ANJELICA
PAULK; and TRISTIAN WALLACE,

CIV. NO.: 2:16-01345 WBS CKD
MEMORANDUM AND ORDER RE: MOTION
TO STAY

Plaintiffs,

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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.

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----oo0oo---Plaintiffs Silvia Burley, Rashel Reznor, Anjelica

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Paulk, and Tristian Wallace brought this action against

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defendants Secretary of Interior Sally Jewell, Acting Assistant
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Secretary of Interior Lawrence Roberts, and Director of the

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Bureau of Indian Affairs (“BIA”) Michael Black for declaratory

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relief, injunctive relief, and due process violations arising out

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an administrative decision on the membership and leadership of

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the California Valley Miwok Tribe (“Tribe”).

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before the court on plaintiffs’ motion to stay enforcement of the

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Assistant Secretary’s December 30, 2015, decision (“December 2015

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Decision”).1

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I.

The matter is now

(Docket No. 10.)

Factual and Procedural Background

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This action is part of a long-running leadership

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dispute over the Tribe between the Burley Faction--made up of

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Burley, Reznor, Paulk, and Wallace--and Yakima Dixie.

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Valley Miwok Tribe v. United States, 424 F. Supp. 2d 197 (D.D.C.

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2006) (hereinafter “Miwok I”); Cal. Valley Miwok Tribe v. United

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States, 515 F.3d 1262 (D.C. Cir. 2008) (hereinafter “Miwok II”);

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Cal. Valley Miwok Tribe v. Jewell, 5 F. Supp. 3d 86 (D.D.C. 2013)

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(hereinafter “Miwok III”).

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tribe.

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See Cal.

The Tribe is a federally recognized

In 1916, the United States acquired a parcel of land

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for the Tribe’s benefit.

(Corrales Decl. Ex. 4 (“Dec. 2015

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Decision”) at 2 (Docket No. 11).)

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Rancheria Act terminated federal recognition of rancherias, and

In 1958, the California

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Plaintiffs caption their motion as seeking an order
staying the December 2015 Decision, but plaintiffs are actually
seeking preliminary injunctive relief from the court to prevent
the BIA from taking certain actions pending a decision on the
merits. See Nken v. Holder, 556 U.S. 418, 428-29 (2009). The
terminology does not change the court’s standard of review.
Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011)
(applying the four injunction factors to a stay request).
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Mabel Dixie--the sole Miwok Indian resident on the land--acquired

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title to the land. (Id. at 3.)

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Mabel Dixie’s son, Yakima Dixie, was the only tribal

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member living on the property in 1998.

(Id. at 1-2.)

The Burley

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Faction obtained his permission to enroll into the Tribe.

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at 2.)

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Resolution”) stating that the Tribe consisted of at least Dixie

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and the Burley Faction and establishing a general council (“1998

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General Council”).

(Id.

The BIA, Dixie, and Burley drafted a Resolution (“1998

Miwok III, 5 F. Supp. 3d at 91.

In 1999, a

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leadership dispute began between Dixie and Burley, and the BIA

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entered into a contract with Burley to provide funding for the

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Tribe’s organization.

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attempt to involve all tribal members, and it ceased recognizing

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Burley as the Tribe representative.

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Gaming Control Commission, which provides funding to certain

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tribes, also suspended its payments to the Tribe and is currently

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holding the money in trust.

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Id.

Later, the BIA found Burley did not

Id. at 93.

The California

Id. at 94.

In a 2005 hearing, the BIA refused to accept a

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constitution submitted by Burley that alleged that the Burley

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Faction were the only Tribe members because the constitution did

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not reflect the participation of the whole community.

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94.

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and the D.C. Circuit in Miwok II.

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Id. at 93-

This decision was upheld by the district court in Miwok I
Id. at 94.

While Miwok II was pending, the BIA notified Dixie and

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Burley that it would move forward with facilitating the Tribe’s

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organization.

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determined that the tribal government was organized under the

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1998 Resolution and General Council.

Id.

In December 2010, the Assistant Secretary

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Id. at 95.

In August 2011,

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the Assistant Secretary issued a revised decision that reached

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the same conclusion.

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Tribe consisted solely of Dixie and the Burley Faction and (2)

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the 1998 General Council was the Tribe’s government.

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challenged the August 2011 Decision.

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Id.

He found (1) the citizenship of the

Id.

Dixie

(Dec. 2015 Decision at 2.)

Based on the record, the Miwok III court held the

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August 2011 Decision was arbitrary and capricious.

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court held that the Assistant Secretary ignored substantial

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evidence in the record and assumed conclusions without providing

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a factual basis.

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remanded the case to the Assistant Secretary.

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(Id.)

Miwok III, 5 F. Supp. 3d at 97-100.

The

The court

Id. at 100-01.

The Assistant Secretary issued his December 2015

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Decision in response to the Miwok III remand.

He held, based on

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the record and previous federal decisions, that the Tribe’s

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membership was not limited to five members and the 1998 General

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Council was not a tribal government.

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5.)

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Constitution did not establish a tribal government, but he

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allowed Dixie to submit additional evidence to a Regional

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Director in order to determine whether the 2013 Constitution was

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validly ratified.

(Dec. 2015 Decision at 3-

Finally, the Assistant Secretary found Dixie’s 2013

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(Id. at 6.)

Plaintiffs challenged the December 2015 Decision and

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brought this suit against the federal defendants.

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potential Tribe members, including Dixie, intervened.

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No. 30.)

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pending final resolution of this case.

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II.

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Several
(Docket

Plaintiffs now move to stay the December 2015 Decision
(Docket No. 10.)

Discussion
In order to obtain a preliminary injunction, the moving
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party must establish (1) he is likely to succeed on the merits,

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(2) he is likely to suffer irreparable harm in the absence of

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preliminary relief, (3) the balance of equities tips in his

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favor, and (4) an injunction is in the public interest.

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v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20-21 (2008);

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Humane Soc. of the U.S. v. Gutierrez, 558 F.3d 896, 896 (9th Cir.

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2009).

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and fourth factors merge.

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(2009).

Winter

When the United States is the non-moving party, the third
Nken v. Holder, 556 U.S. 418, 435

Injunctive relief is “an extraordinary and drastic

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remedy, one that should not be granted unless the movant, by a

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clear showing, carries the burden of persuasion.”

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Armstrong, 520 U.S. 968, 972 (1997) (per curiam).

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Mazurek v.

“[A] preliminary injunction will not be issued simply

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to prevent the possibility of some remote future injury.”

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Winter, 555 U.S. at 21.

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irreparable harm is likely, not just possible, in order to obtain

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a preliminary injunction.”

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Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in

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original) (citing Winter, 555 U.S. at 22).

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demonstrate the harm is both irreparable and imminent.

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Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir.

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1988).

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injury sufficient to warrant granting a preliminary injunction.”

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Id.

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A plaintiff “must establish that

All. for the Wild Rockies v.

Plaintiffs must
Caribbean

“Speculative injury does not constitute irreparable

Plaintiffs argue they will be irreparably harmed by the

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December 2015 Decision because the Regional Director “is poised

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to give the Tribe over to the Dixie Faction in the immediate

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future” by recognizing Dixie’s 2013 Constitution.
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Plaintiffs

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argue that once the 2013 Constitution is recognized, Dixie will

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request and obtain the $13 million the Gambling Control

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Commission is holding in trust for the Tribe pending resolution

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of the leadership dispute.

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(Pls.’ Mot. at 10 (Docket No. 10).)

The possibility of injury to plaintiffs is speculative

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because it is uncertain whether the Regional Director will

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recognize Dixie’s 2013 Constitution in the first place.

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Dutschke Aff. ¶¶ 9-11 (Docket No. 34-1).)

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Decision only authorized the Regional Director to accept

(See

The December 2015

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additional submissions from Dixie to determine whether the 2013

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Constitution is valid.

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Regional Director approves Dixie’s 2013 Constitution, this

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decision is subject to administrative appeal and would be stayed

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pending appeal.

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procedures).

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Dixie’s 2013 Constitution and the administrative appeals are

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exhausted, could Dixie petition the Gambling Control Commission

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for any money.

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and certainly be released, any harm is speculative and not

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immediate.

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(Dec. 2015 Decision at 6.)

Even if the

25 C.F.R. §§ 2.1-.21 (describing the appeal

Only then, after the Regional Director approved

Absent a showing that the money will immediately

For the foregoing reasons, because plaintiffs have not

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established that the Regional Director’s future decision

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regarding the 2013 Constitution and any subsequent issuance of

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tribal money is imminent or likely to occur, they have not met

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the irreparable harm prong of the preliminary injunction

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standard.

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Plaintiffs have also failed to meet the merged third
and fourth prongs of the preliminary injunction standard.
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First,

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“tribal self-government may be a matter of public interest.”

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Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1253

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(10th Cir. 2001).

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determining the Tribe’s proper government undermines the public

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policy favoring the promotion of tribal self-governance.

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Issuing an injunction preventing the BIA from

Second, since plaintiffs have not shown irreparable

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injury, the balance of the equities cannot be in favor of

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plaintiffs over the United States or intervenor-defendants.

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Earth Island Inst. v. Carlton, Civ. No. 2:09-2020 FCD EFB, 2009

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WL 9084754, at *28 (E.D. Cal. Aug. 20, 2009), aff’d 626 F.3d 462

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(9th Cir. 2010) (“[W]here plaintiff has not made the requisite

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showing on the merits which, in turn, undermines the likelihood

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of irreparable injury, the balance of equities cannot be found in

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plaintiff’s favor.”).

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December 2015 Decision would also impair the interests of the

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United States and Tribe members in establishing legitimate

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government-to-government relations, and preventing the Regional

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Director from determining the validity of other potential tribal

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governments would prevent Tribe members from receiving the

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benefits of a duly-recognized government.

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Preventing the implementation of the

Because plaintiffs have failed to meet the second and

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third prongs for a preliminary injunction, the court thus does

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not need to address the likelihood of success on the merits.

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Winter, 555 U.S. at 20-21 (holding a plaintiff must establish

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that all four prongs are met and irreparable harm is likely, not

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just possible).

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motion.

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///

Accordingly, the court must deny plaintiffs’

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See

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IT IS THEREFORE ORDERED that plaintiffs’ motion to stay

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the Assistant Secretary’s December 2015 Decision pending final

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resolution of this case, considered as a motion for a preliminary

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injunction, be, and the same hereby is, DENIED.

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Dated:

October 24, 2016

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