KLAMATH CLAIMS COMMITTEE v. USA
Filing
60
PUBLISHED OPINION. The Clerk is directed to DISMISS plaintiff's complaint. No costs. Signed by Judge Francis M. Allegra. (si) Copy to parties.
In the United States Court of Federal Claims
No. 09-75L
(Filed: July 16, 2012)
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KLAMATH TRIBE CLAIMS
COMMITTEE,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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Tribal claims; RCFC 19 – joinder question;
Tribal sovereign immunity; RCFC 19(b) –
whether absence of sovereign, which cannot
be joined in suit and declines invitation to
intervene, requires dismissal; Provident;
Lack of alternative remedy for plaintiff;
Impact of sovereign immunity – Pimentel;
Potential for conflicting claims; Inability of
United States to represent Tribe’s interest;
No way to lessen prejudice associated with
proceeding; Dismissal warranted.
_________
OPINION
__________
Thomas W. Fredericks, Louisville, CO, for plaintiff.
Maureen E. Rudolph, Environmental and Natural Resources Division, United States
Department of Justice, Washington, D.C., with whom was Assistant Attorney General Ignacia S.
Moreno, for defendant.
ALLEGRA, Judge:
The Klamath Tribe Claims Committee (Klamath Claims Committee or plaintiff) seeks
damages for alleged takings and breaches of fiduciary duty committed by the Department of the
Interior (Interior). It asserts that Interior has failed to disburse funds owed to tribal members and
to safeguard treaty-based water rights associated with a dam. On February 11, 2011, the court
granted, in part, a motion filed by defendant, and dismissed two of plaintiff’s counts for lack of
jurisdiction. As to the remaining counts, this court concluded, under RCFC 19, that a necessary
party, the Klamath Tribes (the Tribes)1 must be joined. Subsequently, the Tribes declined to
participate in this lawsuit. Accordingly, the court must now determine whether the Tribes is an
indispensable party under RCFC 19(b). For the reasons that follow, the court concludes that the
Tribes, indeed, is an indispensable party and that the inability to join it in this lawsuit requires
that the complaint be dismissed.
I.
BACKGROUND
A brief recitation of the facts provides necessary context.
The United States and the Tribes entered into a Treaty in 1864. See Treaty between the
United States and the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians,
October 14, 1864, 16 Stat. 707 (the Treaty). Under this Treaty, the Tribes ceded their interest in
approximately twelve million acres of land, reserving unto themselves approximately 800,000
acres, along with “the exclusive right of taking fish in the streams and lakes, included in said
reservation, and of gathering edible roots, seeds, and berries within its limits.” Id. In exchange,
the federal government gave the Tribes cash and goods worth approximately $300,000. It also
committed to provide various services to the Tribes and to hold tribal assets in trust for the
benefit of the Tribes and its members. Id. From 1890 to 1920, the Bureau of Indian Affairs
(BIA) surveyed the reservation for its irrigation potential and constructed irrigation facilities.
One such facility was a diversion dam, the Chiloquin Dam (the Dam), that diverted portions of
the Sprague River into canals which served lands on the Williamson River and Upper Klamath
Lake.
In 1954, Congress passed the Klamath Termination Act (the 1954 Act), Pub. L. No. 83–
587, 68 Stat. 718 (codified, as amended, at 25 U.S.C. §§ 564–564x), which ended federal
supervision over the Tribes’ trust assets and tribal properties, and terminated the federal services
furnished to the Tribes. As described by the Court of Claims in an earlier case –
[t]he basic scheme of that statute . . . was to give each adult member whose name
appeared on the final tribal roll an election between withdrawing from the tribe
and having his interest in tribal property commuted to money to be paid to him,
and, on the other hand, remaining in the tribe and participating in a
nongovernmental tribal management plan.
1
The present-day Klamath Tribes is a single, federally-recognized tribal government that
uses the plural “Tribes” to reflect the fact that it is composed of the Klamath and Modoc Tribes,
and the Yahooskin Band of Snake Indians. The court adopts the Tribes’ convention of referring
to itself in the singular.
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Klamath & Modoc Tribes v. United States, 436 F.2d 1008, 1010–11 (Ct. Cl. 1971).2 Section 10
of the 1954 Act authorized the government to dispose of federally-owned property acquired for
administration of the Tribes or to transfer this property to qualifying entities. 1954 Act § 10
(codified at 25 U.S.C. § 564i). Other provisions in this statute dealt with the federally-owned
and operated irrigation facilities on the Klamath Reservation, including the Dam. For example,
section 13(a) of the 1954 Act authorized the Secretary to transfer the “care, operation and
maintenance” of irrigation works to water users associations or irrigation districts. 1954 Act
§ 13(a) (codified at 25 U.S.C. § 5641(a)).
Section 13(c) of the 1954 Act “authorized to be appropriated” $89,212 for “payment to
the Klamath Tribe[s]” at four percent interest “per annum,” calculated from the date of
disbursement. 1954 Act § 13(c) (codified at 25 U.S.C. § 564l (c)). The 1954 Act stated that
these funds were “reimbursement for tribal funds used for irrigation, construction, operation and
maintenance benefitting nontribal lands on the Klamath Reservation.” Id. It further directed the
Secretary to transfer all personal property or funds that the United States held in trust, free of
encumbrance, to tribal members within four years. 1954 Act § 8 (codified at 25 U.S.C. § 564g).
The Secretary was directed to arrange for the disposition of the Tribes’ property at the earliest
practicable time, but not later than August 13, 1958. 1954 Act § 6(b) (codified at 25 U.S.C. §
564e(b)); see also Klamath & Modoc Tribes, 436 F.2d at 1011. Once the restrictions on the
Tribes’ property were removed, the Secretary was to publish a proclamation in the Federal
Register that the trust relationship between the Tribes and the United States was terminated.
1954 Act § 18 (codified at 25 U.S.C. § 564q). Finally, the 1954 Act expressly preserved the
Tribes’ water and fishing rights as granted under the 1864 Treaty. 1954 Act § 14 (codified at 25
U.S.C. § 564m).
Following the passage of this legislation, approximately seventy-eight percent of the
Tribes’ members (1,660 of 2,133) chose to withdraw, and defendant used its authority under
Section 10 of the Act to sell off much of the Tribes’ property to pay these withdrawing members.
See Klamath & Modoc Tribes, 436 F.2d at 1011. The Secretary transferred the remaining tribal
property to a private trustee to be maintained for those members who chose to remain with the
Tribes. In 1955, about a year after the passage of the 1954 Act, Congress appropriated funds to
reimburse the Tribes for money expended to construct, operate and maintain irrigation facilities
benefiting non-tribal lands. See Dept. of Interior and Related Agencies Appropriations Act of
1956, Pub. L. No. 84–78, ch. 147, 69 Stat. 141, 143 (June 16, 1955). In 1961, the Secretary
2
The 1954 Act created a process in which a list of remaining and withdrawing members
was prepared. See 1954 Act § 3 (codified at 25 U.S.C. § 564b). Upon publication of the final
roll, the Act directed that “the rights or beneficial interests in tribal property of each person
whose name appears on the roll shall constitute personal property.” See 1954 Act § 4 (codified
at 25 U.S.C. § 564c). The 1954 Act directed that $250 be distributed, per capita, to each
individual listed on the final roll. 1954 Act § 7 (codified at 25 U.S.C. § 564f); see Klamath &
Modoc Tribes, 436 F.2d at 1011.
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published a notice in the Federal Registrar stating that the federal government’s relationship with
the Tribe was officially terminated. 26 Fed. Reg. 7,362 (Aug. 12, 1961).
On August 21, 1961, the Tribes’ governing body passed a resolution giving the Klamath
Claims Committee authority to pursue certain claims against the United States. See Joint
Resolution of Tribal Councils, March 2008 (describing the earlier resolution). The Klamath
Claims Committee represents all 2,133 individuals who appeared on the rolls of the Tribes as of
the date of their termination under the 1954 Act. In 1961, the Tribes and several individuals
(both withdrawing and remaining members for themselves and as representatives for similarlysituated individuals) filed suit against the United States in the U.S. Court of Claims alleging that
the United States effectuated a takings in implementing the 1954 Act. Klamath & Modoc Tribes,
436 F.2d at 1012. In 1962, seventy-three withdrawn members filed a similar suit. Id. at 1013.
The Court of Claims consolidated the two cases in 1964. Id. at 1010. The takings claims were
eventually settled for approximately $23.5 million. See Klamath & Modoc Tribes v. United
States, 199 Ct. Cl. 1024 (Ct. Cl. Sept. 18, 1972). The settlement was effectuated, in part, via
legislation passed by Congress in 1965.3
Although the government-to-government relationship between the Tribes and the United
States ceased in 1961, BIA took several years to conclude operations and transfer its irrigation
project facilities. In 1973, Interior transferred title to the Dam to the Modoc Point Irrigation
District (MPID), a non-federal entity chartered under Oregon law, made up of landowners.
MPID accepted the transfer in 1974. See Operation and Maintenance Charges, Deletion of
Needless Regulations, 44 Fed. Reg. 12,192 (Mar. 6, 1979). In 1979, BIA published a notice
deleting all the regulations pertaining to the irrigation system in light of the 1973 transfer of
ownership to the MPID. Id. Nevertheless, several court decisions at or around this time
confirmed that the Tribes’ rights to certain natural resources under the 1864 Treaty survived the
passage of the Termination Act. See Kimball v. Callahan, 493 F.2d 564 (9th Cir.), cert. denied,
419 U.S. 1019 (1974) (treaty-reserved hunting and fishing rights on former reservation lands
survived termination); United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467
U.S. 1252 (1984) (same as to implied reserved water rights).
In 1986, Congress passed the Klamath Indian Tribe Restoration Act (the Restoration
Act), Pub. L. No. 99–398, 100 Stat. 849 (Aug. 27, 1986) (codified at 25 U.S.C. § 566),
reestablishing federal recognition of the Tribes. While the Restoration Act restored the Tribes’
federal services, as well as the government-to-government relationship between the Tribe and the
United States, it did not alter existing property rights. See 25 U.S.C. § 566(d).
3
The Klamath Judgment Distribution Act of 1965, Pub. L. No. 89–224, 79 Stat. 897
(codified, as amended, at 25 U.S.C. §§ 565–565g), addressed various claims that the Tribes had
pursued against the United States. The law authorized funds to be used in settling these claims.
Id. As part of this Act, the BIA could retain funds for the benefit of the Tribes “or any of its
constituent parts or groups” for the purpose of “paying the usual and accustomed expenses of
prosecuting claims against the United States.” 25 U.S.C. § 565.
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Throughout the post-termination and subsequent restoration period, the Klamath Claims
Committee believed that it had broad authority to represent the Tribes and its members in tribal
litigation. Several resolutions of the Committee reflect this. For example, a 1983 resolution that
states that the Tribes’ August 21, 1961, grant of authority designated the Klamath Claims
Committee as “the post-termination representative body of the Tribe” with respect to the
“supervision and management of tribal claims against the United States for all dealings.”
Klamath Claims Committee Resolution, January 1983; see also Klamath Claims Committee
Resolutions, June 1996; Klamath Claims Committee Resolution, May 1996. In 1993, the Tribes
authorized plaintiff to work with BIA to disburse judgments from cases in which plaintiff, acting
on behalf of the 1954 membership, was successful. See Klamath Tribe Executive Resolution,
July 1993. More recently, the governing body of the Tribes authorized the Klamath Claims
Committee to use funds to “pursue claims, including but not limited to claims now being
prosecuted against PacifiCorp.” See Joint Resolution of Tribal Council, March 2008.4 This
resolution, however, did not give the Committee exclusive authority to pursue the Pacificorp
litigation, as it envisioned that the Tribes would also participate in that litigation. Id. The same
resolution indicated that, to the extent that the Klamath Claims Committee pursued “other
claims” outside of the Pacificorp case, it must act “within [its] authority as established by the
General Counsel.” Id.5
In the late 1980s, Interior determined that the Dam and its fish ladder were adversely
affecting several fish species listed as “endangered” under the Endangered Species Act of 1973,
87 Stat. 884, 16 U.S.C. § 1531 et seq. In 2001, Congress authorized a study to assess
alternatives for improving fish passage at the Dam. See Farm Security and Rural Investment Act
of 2002, Pub. L. No. 107–171, § 10905, 116 Stat. 134, 537. After consulting with the MPID and
the Tribes, Interior determined that the best course of action was removing the Dam. In 2006,
BIA negotiated a cooperative agreement with MPID under which Interior would pay to remove
the Dam and construct an alternative electric pump plant for irrigation. MPID landowners voted
in favor of Dam removal, and signed a cooperative agreement with the BIA. The Dam was
removed in August 2008.
Plaintiff filed its initial complaint in this court on February 6, 2009, and an amended
complaint on March 17, 2009. The latter advances four causes of action: (i) a takings of Indian
4
In their suit against Pacificorp, the Tribes sought damages for the disruption of salmon
fish runs resulting from the construction and operation of government-authorized hydroelectric
dams on the Klamath River. See Klamath Tribes of Or. v. Pacificorp, 2005 WL 1661821 (D.Or.
July 13, 2005), aff’d, 268 Fed. Appx. 575 (9th Cir.), cert. denied, 555 U.S. 821 (2008).
5
The United States and the Tribes jointly filed water rights claims as part of Oregon’s
adjudication of the Klamath River Basin. This adjudication will conclusively quantify, pursuant
to the McCarran Amendment, the water rights recognized in Adair and held in trust by the
United States for the Tribes. 43 U.S.C. § 666; United States v. Oregon, 44 F.3d 758 (9th Cir.
1994), cert. denied sub nom., Klamath Tribe v. Oregon, 516 U.S. 943 (1995).
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trust assets based on the government's failure to reimburse the Tribes as authorized by section 13
of the 1954 Act; (ii) a breach of fiduciary duty based on the failure to disburse the section 13
authorized funds; (iii) a takings based on the removal of the Chiloquin Dam and its associated
water storage; and (iv) a breach of fiduciary duty based on the removal of the Dam and its
associated water storage. Plaintiff asserted that this court possesses jurisdiction over these
claims under the Indian Tucker Act, 28 U.S.C. § 1505. On May 7, 2009, defendant filed a
motion to dismiss under RCFC 12(b)(1) and (6).
On February 11, 2011, the court granted, in part, defendant’s motion. It held that
plaintiff’s claims involving the disbursements required by section 13 of the 1954 Act and relating
to the transfer of the Chiloquin Dam fell far outside the six-year statute of limitations established
by 28 U.S.C. § 2501, and thus must be dismissed for lack of jurisdiction. See Klamath Tribe
Claims Comm. v. United States, 97 Fed. Cl. 203, 209 (2011) (Klamath Tribe Claims Comm. I).
The court, however, held that it had jurisdiction over the remainder of plaintiff’s claims relating
to the removal of the Dam in August of 2008. Id. at 210. As to those claims, the court
concluded that the Tribes “are a party that should be joined to this action under RCFC 19(a).”
Id. at 213. In this regard, the court noted that “there is an overlap between the membership and
interests of the Tribes and the Klamath Claims Committee, particularly after the passage of the
Restoration Act in 1986.” Id. at 212. Observing that “the Tribes currently possess fishing and
water rights that derive from the 1864 Treaty,” the court noted that it is “essentially those same
rights and associated fiduciary obligations – deriving from the same 1864 Treaty – that plaintiff
seeks to vindicate in this case.” Id. Despite this, it found that in communications with plaintiff’s
counsel, the Chairman of the Tribes had indicated that he was ‘“not in a position to lend support
to litigation over which the Klamath Tribes have no control, particularly where the litigation may
potentially affect Tribal rights of the entire General Council membership.’” Id. (quoting a letter
from the Chairman of the Tribes).
“Based on these facts,” the court concluded that “in the absence of the Tribes, it cannot
afford complete relief as between plaintiff and the United States.” Id. It further found “that the
Tribes has claimed an interest in the remaining subject matter of this lawsuit and that disposing
of this case in the Tribes’ absence may, as a practical matter, impede the Tribes’ ability to protect
that interest or leave the United States subject to inconsistent obligations.” Id. at 212-13.
Because the Tribes is a sovereign, the court determined that the appropriate process was to
extend an invitation to the Tribes to intervene in this case under RCFC 24. Id. at 214. The court
stated that if the Tribes declined that invitation, it would determine whether the Tribes was
“indispensable,” further observing that if this was so, the case would then be dismissed under
RCFC 19(b). Id.
On April 20, 2011, the Klamath Tribes responded to this court’s invitation, declining to
intervene in this matter. This response, nonetheless, asserted that the Tribes “have an interest in
the remaining subject matter of this lawsuit” and that “disposing of this case in the Tribes’
absence may, as a practical matter, impede the Tribes’ ability to protect that interest.” Lastly it
indicated that “the Plaintiff Claims Committee has no authority to speak for or represent the
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Tribes.”6 On August 11, 2011, following the death and replacement of plaintiff’s counsel, this
court ordered the parties to file simultaneous briefs addressing whether the Tribes were
indispensable under RCFC 19(b). In an amicus filing, the Tribes “expressly reserve[d] its
sovereign immunity from suit in this action,” declaring the rights at issue to be ones “that belong
to the Tribes.” This amicus brief further claimed that plaintiff is “in fact acting hostilely to the
Tribes, asserting control over tribal rights, and inviting this Court to de-legitimize the Tribes.”
The parties’ briefing on the RCFC 19(b) issue is now completed. Argument is deemed
unnecessary.
II.
DISCUSSION
Indian tribes possess “the common-law immunity from suit traditionally enjoyed by
sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); see also Kiowa
Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 753-54 (1998). Like all sovereigns, they are free to
assert or to waive their immunity, as they see fit. Okla. Tax Comm’n v. Citizen Band
Potowatomi Indian Tribe, 498 U.S. 505, 509 (1991). One aspect of this immunity is that a tribe
“cannot be haled into court against its will, even as a plaintiff.” Klamath Claims Comm. I, 97
Fed. Cl. at 213.7 In this case, the Tribes has refused an invitation to intervene in this action
under RCFC 24. In that situation, the court must determine whether dismissal here is warranted
under RCFC 19(b). See Klamath Claims Comm. I, 97 Fed. Cl. at 213-14; see also Narragansett
Tribe of Indians v. S.R.I. Land Dev. Corp., 418 F. Supp. 798, 810-11 (D.R.I. 1976).
Under RCFC 19(b), “[i]f a person who is required to be joined if feasible cannot be
joined, the court must determine whether, in equity and good conscience, the action should
proceed among the existing parties or should be dismissed.” Specifically, the rule indicates that,
in making this determination, factors for the court to consider include:
6
On February 19, 2011, the Tribes’ General Council passed Klamath Tribes General
Council Resolution # 2011-011, entitled “General Council Resolution Rescinding General
Council Resolution #2004-002 and Reaffirming General Council Authority Over Claims of the
Klamath Tribe.” This resolution rescinded a prior resolution on which plaintiff had relied in
asserting that it could litigate the subject case. The February resolution further stated that “the
General Council reaffirms that the Claims Committee does not speak for or represent the
Klamath Tribes, nor has it ever done so.”
7
See also Clinton v. Babbitt, 180 F.3d 1081, 1090 (9th Cir. 1998) (“because the Hopi
Tribe enjoys sovereign immunity . . . it cannot be joined as a party without its consent”); Kescoli
v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996); Wichita & Affiliated Tribes of Okla. v. Hodel,
788 F.2d 765, 771 (D.C. Cir. 1986) (“tribal immunity quickly surfaces as a crucial issue in such a
suit since if the tribe is an indispensable party, and cannot be joined due to its immunity, the
claim may not proceed”).
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(1) the extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be adequate, and
(4) whether the person would have an adequate remedy if the action were
dismissed for nonjoinder.
RCFC 19(b).8 This decision “is to be made in the light of pragmatic considerations.” Fed. R.
Civ. P., Advisory Comm. notes (1966); see also Roos v. Texas Co., 23 F.2d 171 (2d Cir. 1927),
cert. denied, 277 U.S. 587 (1928); H.H. Robertson Co. v. Lumbermen’s Mut. Cas. Co., 94 F.R.D.
578, 579 (W.D. Pa. 1982), aff’d, 696 F.2d 982 (3d Cir. 1982).9 “It must be based on factors
varying with the different cases,” the Supreme Court has observed, “some procedural, some
compelling by themselves, and some subject to balancing against opposing interests.” Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 (1968); see also Pimentel, 553
U.S. at 863 (“multiple factors must bear on the decision whether to proceed without a required
person”); Kickapoo Tribe of Indians of Kickapoo Reservation in Kansas v. Babbitt, 43 F.3d
1491, 1495 (D.C. Cir. 1995).
8
Rule 19 formerly spoke in terms of “necessary” and “indispensable” parties. It was
altered in 2007 for “stylistic” reasons but the “substance and operation of the rule . . . are
unchanged.” Rep. of Philippines v. Pimentel, 553 U.S. 851, 855-56 (2008). The same can be
said of the 2008 modification of the language of this court’s rule. For a discussion regarding the
evolution of this rule, see Katherine Florey, “Making Sovereign Indispensable, Pimentel and the
Evolution of Rule 19,” 58 UCLA L. Rev. 667, 673-76 (2011) (hereinafter “Florey”).
9
“In general, the rules of [Court of Federal Claims] are patterned on the Federal Rules of
Civil Procedure,” making “precedent under the Federal Rules of Civil Procedure . . . relevant to
interpret rules of [Court of Federal Claims].” Pac. Nat’l Cellular v. United States, 41 Fed. Cl.
20, 25 n.3 (1998). As to Rule 19, the Federal Circuit has recently noted that “RCFC 19 is
virtually identical to Fed. R. Civ. P. 19” and “[b]ecause our case law on RCFC 19 is limited, we
rely on cases interpreting Fed. R. Civ. P. 19 in our analysis of what is a ‘necessary’ party under
RCFC 19.” United Keetoowah Band of Cherokee Indians v. United States, 480 F.3d 1318, 1324
n.2 (Fed. Cir. 2007).
-8-
In Provident, Mr. Justice Harlan, speaking for a unanimous Court, parsed the factors in
Rule 19. First, he noted, how the factors reflect the interests of the parties before the Court –
First, the plaintiff has an interest in having a forum. Before the trial, the strength
of this interest obviously depends upon whether a satisfactory alternative forum
exists. . . . Second, the defendant may properly wish to avoid multiple litigation,
or inconsistent relief, or sole responsibility for a liability he shares with another.
Id. at 109-10. Also manifest in the factors, Justice Harlan wrote, “is the interest of the outsider
whom it would have been desirable to join.” Id. at 110. On this point, the Provident Court
expounded –
Of course, since the outsider is not before the court, he cannot be bound by the
judgment rendered. This means, however, only that a judgment is not res judicata
as to, or legally enforceable against, a nonparty. It obviously does not mean
either (a) that a court may never issue a judgment that, in practice, affects a
nonparty or (b) that (to the contrary) a court may always proceed without
considering the potential effect on nonparties simply because they are not ‘bound’
in the technical sense. Instead, as Rule 19(a) expresses it, the court must consider
the extent to which the judgment may ‘as a practical matter impair or impede his
ability to protect’ his interest in the subject matter.
Id. at 110-11. Finally, “there remains the interest of the courts and the public in complete,
consistent, and efficient settlement of controversies,” which implicates the “public’s stake in
settling disputes by wholes, whenever possible, for clearly the plaintiff, who himself chose both
the forum and the parties defendant, will not be heard to complain about the sufficiency of the
relief obtainable against them.” Id. at 111.10
10
As the Fifth Circuit indicated shortly after Provident was decided, the essence of Rule
19 is to balance the rights of all those whose interests are implicated by the action:
The plaintiff has the right to “control” his own litigation and to choose his own
forum. This “right” is, however, like all other rights, “defined” by the rights of
others. Thus the defendant has the right to be safe from needless multiple
litigation and from incurring avoidable inconsistent obligations. Likewise the
interests of the outsider who cannot be joined must be considered. Finally there is
the public interest and the interest the court has in seeing that insofar as possible
the litigation will be both effective and expeditious.
Schutten v. Shell Oil Co., 421 F.2d 869, 873 (5th Cir. 1970); see also Universal Reinsurance Co.,
Ltd. v. St. Paul Fire and Marine Ins. Co., 312 F.3d 82, 88 (2d Cir. 2002); Nichols v. Rysavy, 809
F.2d 1317, 1332 (8th Cir.), cert. denied, 484 U.S. 848 (1987); Tick v. Cohen, 787 F.2d 1490,
1495 (11th Cir. 1986); Matthew L.M. Fletcher, “The Comparative Rights of Indispensable
-9-
That plaintiff lacks an adequate remedy if this suit is dismissed weighs against dismissal.
This court has exclusive jurisdiction over the takings and breach of fiduciary duty claims that
remain at issue in this case. See United States v. Tohono O’Odham Nation, 131 S. Ct. 1723,
1729-31 (2011); Trusted Integration v. United States, 659 F.3d 1159, 1162 (Fed. Cir. 2011);
Morris v. United States, 392 F.3d 1372, 1375 (Fed. Cir. 2004). Conversely, a U.S. district court
would lack jurisdiction to provide any relief to plaintiff under the Administrative Procedure Act,
5 U.S.C. §§ 702 and 704.11 Accordingly, if this suit is dismissed, plaintiff likely will be left
without any ability to recoup compensation for the injuries it claims. In such an instance, the
decisional law indicates that this court should be ‘“extra cautious’ before dismissing an action.”
Kescoli, 101 F.3d at 1310 (quoting Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.
1990)).12
Sovereigns,” 40 Gonz. L. Rev. 1, 8-9 (2004) (hereinafter “Fletcher”); 7 Charles Alan Wright,
Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, Fed. Prac. & Proc. Civ. § 1602 (2012).
11
In Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004), this court discussed
why it believed that district courts lack jurisdiction over matters such as these, stating:
[T]he Federal Circuit, in Consolidated Edison Co. v. United States, 247 F.3d 1378
(Fed. Cir. 2001) (en banc), instructed that “[a] party may not circumvent the
[Court of Federal Claim’s] exclusive jurisdiction by framing a complaint in the
district court as one seeking injunctive, declaratory or mandatory relief where the
thrust of the suit is to obtain money from the United States.” Id. at 1385 (quoting
Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985)); cf. Cobell v. Norton, 240 F.3d
1081, 1094-95 (D.C. Cir. 2001). Moreover, the Administrative Procedure Act
waives sovereign immunity for district court suits only if “there is no other
adequate remedy.” 5 U.S.C. § 704 (2000). Yet, to the extent that these other
actions seek an accounting, that remedy is available here as a prelude to the award
of monetary damages. See, e.g., Minnesota Chippewa Tribe Red Lake Band v.
United States, 768 F.2d 338, 342 (Fed. Cir. 1985); Klamath and Modoc Tribes v.
United States, 174 Ct. Cl. 483, 486-91 (1966) (construing 28 U.S.C. § 1505); see
also United States v. Mitchell, 463 U.S. 206, 219-22 (1983).
More recently, the Federal Circuit has made clear that a compensation award in this court
provides most plaintiffs with an “adequate remedy,” thereby precluding a district court from
exercising jurisdiction over a related claim under 5 U.S.C. § 704. See Suburban Mortg. Assocs.,
Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116, 1126-27 (Fed. Cir. 2007); Consol.
Edison Co., 247 F.3d at 1384-85.
12
See also Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1260 (10th Cir.
2001), cert. denied, 534 U.S. 1078 (2002); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343,
358 (2d Cir. 2000); Pasco Int’l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n.9 (7th
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But, there are countervailing considerations here. Courts generally afford sovereigns
“heightened protection” if a lawsuit poses “a potential of injury to the sovereign’s interest.”
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1181 (11th
Cir. 2011), cert. denied, 132 S. Ct. 2379 (2012). This consideration has often led courts to
dismiss in cases where the United States is the absent party. See Mine Safety Appliances Co. v.
Forrestal, 326 U.S. 371, 375 (1945); State of Minnesota v. United States, 305 U.S. 382, 388-89
(1939). And there likewise is a “strong policy that has favored dismissal when a court cannot
join a tribe because of sovereign immunity.” Davis v. United States, 192 F.3d 951, 960 (10th Cir.
1999), cert. denied, 542 U.S. 937 (2004).13 Indeed, “[w]hen . . . a necessary party . . . is immune
from suit, there is very little room for balancing of other factors set out in Rule 19(b), because
immunity may be viewed as one of those interests compelling by themselves.” Enterprise Mgmt.
Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir. 1989) (quoting
Wichita & Affiliated Tribes, 788 F.2d at 777 (quoting 3A Moore’s Federal Practice ¶ 19.15, at
19-266 n.6 (1984)).14 While “this does not mean that balancing can be completely avoided
simply because an absent person is immune from suit,” it does mean that “the plaintiff’s inability
to obtain relief in an alternative forum is not as weighty a factor when the source of that inability
is a public policy that immunizes the absent party from suit.” Davis ex rel. Davis v. United
States, 343 F.3d 1282, 1293-94 (10th Cir. 2003), cert. denied, 542 U.S. 937 (2004); see also N.
Arapaho Tribe v. Harnsberger, 660 F. Supp. 2d 1264, 1283 (D. Wyo. 2009).
Cir. 1980) (indicating that “the absence of an alternative forum would weigh heavily, if not
conclusively against dismissal”).
13
See also Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 553 (4th Cir.
2006); American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1025 (9th Cir. 2002) (“we have
regularly held that the tribal interest in immunity overcomes the lack of an alternative remedy or
forum for the plaintiffs”); Keweenaw Bay Indian Cmty. v. State, 11 F.3d 1341, 1347-48 (6th Cir.
1993) (in case involving fishing rights under treaty, equity required case to be dismissed where
two absent bands were indispensable where adequate remedy was available); Florey, supra at
684-85 (“cases from the tribal context continue to form the bulk of cases in which courts
contemplate dismissal because an immune Rule 19 party cannot be joined”); Fletcher, supra, at
14 (“For the most part, courts dismiss a case when an absent tribe has a significant stake in the
outcome of the litigation.”); Nicholas V. Merkely, “Compulsory Party Joinder and Tribal
Sovereign Immunity: A Proposal to Modify Federal Courts’ Application of Rule 19 to Cases
Involving Absent Tribes as ‘Necessary’ Parties,” 56 Okl. L. Rev. 931, 939 (2003) (“When
applying Rule 19 to cases involving Indian tribes, courts generally dismiss suits because the
tribes’ sovereign immunity renders joinder infeasible.”).
14
Other courts have employed similar reasoning. See also Seneca Nation of Indians v.
New York, 383 F.3d 45, 48 (2d Cir. 2004), cert. denied, 547 U.S. 1178 (2006); Kickapoo Tribe,
43 F.3d at 1496; Florey, supra at 686.
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Recently, in Pimentel, 553 U.S. 851, the Supreme Court elaborated on the importance of
sovereign immunity plays in the balancing analysis required by Rule 19(b). In that case, various
parties claimed assets in a Merrill Lynch brokerage account that included funds which allegedly
had been illicitly obtained by former Philippines President Marcos. Id. at 857. Originally, the
Republic of the Philippines and a sovereign Filipino Commission were included as defendants in
the action, via interpleader, but were later dismissed after they successfully invoked the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1604, 1609. Id. at 859. After this dismissal, the district
court awarded the funds to another party. Id. at 860. The Ninth Circuit affirmed this ruling,
holding that while the Republic and the Commission were necessary parties under Rule 19(a)
and entitled to be dismissed based on sovereign immunity, their claim to the disputed assets was
unlikely to succeed on the merits.15 The Supreme Court reversed, holding that the lower courts
erred in their analysis of Rule 19(b) because they had “not accord[ed] proper weight to the
compelling claim of sovereign immunity.” Pimentel, 553 U.S. at 869. Framing the rationale of
the Court, Justice Kennedy stated that cases “involving the intersection of joinder and the
governmental immunity of the United States . . . instruct us that where sovereign immunity is
asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be
ordered where there is a potential for injury to the interests of the absent sovereign.” Id. at 867.
Recognizing that “[d]ismissal under Rule 19(b) will mean, in some instances, that plaintiff will
be left without a forum for definitive resolution of their claims,” the Court, nonetheless,
concluded that this “result is contemplated under the doctrine of foreign sovereign immunity.”
Id. at 872.
While Pimentel is, in some regards, distinguishable,16 it, nevertheless, illustrates that
sovereign immunity often will be compelling itself in swaying the Rule 19(b) analysis. Pimentel
stands for the proposition that where a sovereign party should be joined in an action, but cannot
be owing to sovereign immunity, the entire case must be dismissed if there is the potential for the
interests of the sovereign to be injured. And this result obtains even when no alternative forum
exists in which the plaintiff can press its case. As subsequent cases confirm, this rationale
applies to domestic sovereigns, i.e., States and Indian nations, as much as it does to foreign
sovereigns, e.g., the Philippines. See Vann v. Salazar, 2011 WL 4953030, at *3-4 (D.D.C.
15
See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. ENC Corp., 464 F.3d 885 (9th Cir.
2006); In re Republic of Philippines, 309 F.3d 1143, 1149-52 (9th Cir. 2002).
16
Among other things, the Court there cited deference to the comity and dignity
interests of the Republic and the Commission “in determining if, and how, the assets should be
used to compensate those persons who suffered grievous injury under Marcos” and the
desirability of avoiding the “specific affront that could result to the Republic and the
Commission if the property they claimed is seized by the decree of a foreign court.” Pimentel,
553 U.S. at 866.
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2011); N. Arapaho Tribe, 660 F. Supp. 2d at 1287; see also A123 Sys., Inc. v. Hydro-Quebec,
626 F.3d 1213, 1221 (Fed. Cir. 2010).17
This rationale weighs heavily in favor of dismissing this case owing to the absence of the
Tribes. Although the Tribes has decided not to intervene, it has asserted a nonfrivolous interest
in the subject matter of this suit that might be impaired by an adverse ruling in this case. Even
without a direct preclusive effect,18 such a ruling would be a negative precedent that the Tribes
would have to confront in future litigation involving the 1864 Treaty and the associated statutes.
See Acton Co., Inc. of Mass. v. Bachman Foods, Inc., 668 F.2d 76, 78-79 (1st Cir. 1982) (“Even
if Acton would not be legally bound, an adverse ruling would be persuasive precedent in a
subsequent proceeding, and would weaken Acton’s bargaining position for settlement
purposes.”); Doty v. St. Mary Parish Land Co., 598 F.2d 885, 887 (5th Cir. 1979) (dismissing
case under Rule 19(b) because “an unfavorable judgment in the present case would constitute
precedent adverse to the [absent party’s] claims”); Johnson & Johnson, 720 F. Supp. at 1123-25
(same). And that negative precedent could ripen into binding adverse precedent were this court’s
ruling affirmed by the Federal Circuit. Thus, it would appear that to proceed without the Tribes
might “as a practical matter impair or impede” the Tribe’s ability to protect its sovereign
interests. See RCFC 19(a); Provident, 390 U.S. at 110 (stating that when considering the
“interest of the outsider whom it would have been desirable to join,” the court should consider
the “practical” impact of a judgment on that interest); Picciotto v. Continental Cas. Co., 512 F.3d
9, 16-17 (1st Cir. 2008).
Adding weight to that conclusion is the fact that any disposition here in the Tribes’
absence threatens to leave defendant subject to multiple and conflicting claims with respect to
the same fishing and water rights conferred by the 1864 Treaty. Plaintiff and the Tribes, whose
memberships are different,19 assert at least partially overlapping claims to those rights. To the
17
For nearly two centuries, the Supreme Court has described Indian tribes as “domestic
dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831) (Marshall, C.J.); see also
United States v. Lara, 541 U.S. 193, 204-05 (2004).
18
As several courts have noted, it is difficult to determine the preclusive effect of a
ruling in later lawsuit. That is particularly true here given the debates regarding the legal
relationship between plaintiff and the Tribes. See Huber v. Taylor, 532 F. 3d 237, 250 (3d Cir.
2008) (“[i]t would be premature for this Court to endeavor to decide whether [the absent party is]
in privity in bringing the instant action, for purposes of determining the preclusive effect of this
action on a later lawsuit, where the potential later lawsuit is yet to be brought, and where the
instant action has not even run its course yet”) (quoting Johnson & Johnson v. Coopervision,
Inc., 720 F. Supp. 1116, 1124 (D. Del. 1989)).
19
While plaintiff and the Tribes dispute the precise contours of the other’s membership,
they both agree that an award to the other would provide a windfall to unentitled individuals
while denying certain entitled individuals a share. Given this, it is apparent that if the Tribes had
intervened in this action, the court would have been forced to determine how to allocate any
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extent, moreover, that the Tribes’ claims hinge on the removal of the Chiloquin Dam, the statute
of limitations under 28 U.S.C. § 2501 is still open and will remain so until August of 2014. See
Klamath Tribes Claims Comm. I, 97 Fed. Cl. at 210. Accordingly, if this suit proceeds, the
United States could find itself subject to competing claims for the same compensation. For this
and other reasons, this is not a case in which the interests of the Tribes may be adequately
represented by the United States. Id. at 213 n.16.20 Per contra. Indeed, in numerous recent
cases, the United States has urged this court to construe narrowly the trust and treaty
responsibilities it owes to various Tribes, both for jurisdictional and merits purposes. See, e.g.,
Jicarilla Apache Nation v. United States, 100 Fed. Cl. 726 (2011). There is no reason to believe
that defendant will be any less zealous in pressings its claims in this case, with obvious
implications for the Tribes if the United States were to prevail on these points. See Provident,
390 U.S. at 110.21 Nor does this court see any way that, under RCFC 19(b)(2), “any prejudice
could be lessened or avoided” if this suit were allowed to proceed.
resulting judgment, requiring it to wade into disputes not only between the claimants and the
United States, but also among the claimants themselves. See Makah Indian Tribe, 910 F.2d at
559-61 (holding absent tribe was indispensable where case involved “potential intertribal
conflict”).
20
See also SW. Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1154 (9th Cir.
1998); Ramah Navajo School Bd., Inc. v. Babbitt, 87 F.3d 1338, 1351-52 (D.C. Cir. 1996);
Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295, 315
(W.D. N.Y. 2007).
21
To be sure, the court is discomforted by the prospect of dismissing a suit in which the
Tribes has claimed that its interests may be impaired, but, nonetheless, has elected not to
intervene. But, at least in tribal cases, the weight of authority takes the view that an essential
aspect of sovereignty is to decide when not to assert an interest in the suit. See Kickapoo Tribe,
43 F.3d at 1498 (“[f]ailure to intervene is not a component of the prejudice analysis where
intervention would require the absent party to waive sovereign immunity”); Pueblo of Sandia v.
Babbitt, 47 F. Supp. 49, 54 (D.D.C. 1999); cf. School Dist. of City of Pontiac v. Sec’y of U.S.
Dept. of Educ., 584 F.3d 253, 281 (6th Cir. 2009), cert. denied, 130 S. Ct. 3385 (2010) (“When
States stick their heads in the sand for nearly five years of litigation about a high-profile lawsuit,
it is difficult to say that proceeding without them will impair their interests – which so far seem
focused above all on not being forced to take a public stand on the issues presented.”); see also
Florey, supra at 686-87 (“When considering the extent of Rule 19(b) prejudice to a party, some
courts have cautioned against attaching any weight to an immune party’s failure to intervene.”);
One can imagine a number of reasons why politically, legally, tactically or practically, the Tribes
may wish not to assert their rights in a given suit. See Fletcher, supra, at 121-123; see generally,
Angela Riley, “Good (Native) Governance,” 107 Colum. L. Rev. 1049, 1111-13 (2007)
(discussing situations in which tribes have and have not waived their sovereign immunity).
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Accordingly, a majority of the factors in RCFC 19(b) weigh heavily in favor of holding
the Tribes an indispensable party. As such, the court finds that the Tribes is not only a necessary
party, but also an indispensable one, compelling dismissal.22
III.
CONCLUSION
The court will not gild the lily. For the foregoing reasons, the court hereby orders the
Clerk to DISMISS plaintiff’s complaint. No costs.
IT IS SO ORDERED.
s/ Francis M. Allegra
Francis M. Allegra
Judge
22
Because of this ruling, the court will deny, as moot, a motion filed by plaintiff to
amend its complaint.
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