Shoshone Bannock Tribes of the Fort Hall Reservation v. United States of America et al
Filing
126
MEMORANDUM DECISION AND ORDER - The Tribes Motion to Reconsider (Dkt. 114 ) be GRANTED IN PART and DENIED IN PART as outlined above. The Court promptly issue a notice of litigation order so the parties can develop a litigation plan governing the remainder of this case. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHOSHONE-BANNOCK TRIBES OF
THE FORT HALL RESERVATION,
Plaintiff,
Case No. 4:18-cv-00285-DCN
MEMORANDUM DECISION AND
ORDER
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
I. INTRODUCTION
Pending before the Court is Plaintiff’s Motion to Reconsider. Dkt. 114. The Court
has reviewed the record and briefs and finds that the facts and legal arguments are
adequately presented. Therefore, to avoid further delay, the Court addresses the motion
without oral argument. See Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
For the reasons below, the Court GRANTS IN PART and DENIES IN PART the
motion.
II. BACKGROUND
The Court has already explained the factual background of this case and
incorporates that background by reference. See Dkt. 102, at 1–3; Dkt. 112, at 2–3.
In 2018, the Shoshone-Bannock Tribes of the Fort Hall Reservation (“Tribes”) sued
the United States and the City of Pocatello to recover lands in Pocatello no longer being
used for railroad purposes. See Dkt. 1, at 2–3. In 2020, the United States moved to dismiss
all the Tribes’ claims. Dkt. 77 at 2. On December 16, 2021, the Court dismissed four of the
MEMORANDUM DECISION AND ORDER - 1
Tribes’ claims: Counts V, VI, VII, and IX. Dkt. 102, at 29. On May 20, 2022, in response
to the United States’ Motion for Clarification and Reconsideration, the Court dismissed
Count XVI. Dkt. 112, at 7.
On June 8, 2022, the Tribes moved to reconsider the Court’s decisions pursuant to
Federal Rule of Civil Procedure 54(b), arguing that the Court should not have dismissed
any of their claims. Dkt. 114, at 2.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 54(b) provides in pertinent part:
[A]ny order . . . that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
This rule makes explicit an “inherent procedural power” of district courts; namely, the
power “to reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882,
885 (9th Cir. 2001) (cleaned up). This power “is not subject to the limitations of [Federal]
Rule [of Civil Procedure] 59,” which provides for modification of final orders and therefore
includes limitations that Rule 54 does not.1 Id. However, for reasons of judicial economy,
the review of even an interlocutory order is “generally disfavored,” so “district courts are
1
For example, Rule 59(e) provides that a motion for reconsideration “must be filed no later than 28 days
after the entry of judgment.” If this limitation applied to motions seeking reconsideration of interlocutory
orders, the Tribes’ motion to reconsider the Court’s December 2021 order would be untimely because it
was filed in May 2022. Dkt. 112.
MEMORANDUM DECISION AND ORDER - 2
frequently guided by substantially the same standards as those used to reconsider final
orders pursuant to Rule 59(e).” Dickinson Frozen Foods, Inc. v. FPS Food Process Sols.
Corp., 2020 WL 2841517, at 10 (D. Idaho 2020). Both the Tribes and the United States
ask the Court to apply those standards.2 Dkt. 114-1, at 4–5; Dkt. 121, at 6.
The standards used to reconsider final orders pursuant to Rule 59(e) are rigorous.
The Ninth Circuit has held that motions invoking Rule 59(e) should be granted only in
three “highly unusual circumstances”: (1) when there is newly discovered evidence, (2)
when the court commits clear error or issues an order that is manifestly unjust, or (3) when
there is an intervening change in the law. Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir.
2001); School Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993). The movant bears the burden of establishing one of these grounds. See, e.g.,
United States v. Wetlands Water Dist., 134 F. Supp. 2d 1111, 1130-31 (E.D. Cal. 2001).
Because motions to reconsider pursuant to Rule 59(e) “[should] be granted
sparingly,” parties cannot use the motion “to relitigate old matters” or “raise arguments or
present evidence for the first time when they could reasonably have been raised earlier in
the litigation.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5 (2008) (cleaned up).
Accordingly, district courts do not abuse their discretion when they deny a motion for
reconsideration on the grounds that the evidence could have been presented before. Kona
Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
2
The City of Pocatello does not specify a standard. See Dkt. 122.
MEMORANDUM DECISION AND ORDER - 3
IV. DISCUSSION
The Court now considers whether the Tribes have met their burden of showing
newly discovered evidence, clear error, or intervening changes in law with respect to the
counts the Court has dismissed.
A. Counts V & VI
The Tribes suggest that the Court committed clear error because the statute of
limitations did not bar their claim under the Quiet Title Act (“QTA”). Dkt. 114-1, at 6–37.
Specifically, the Tribes argue that (1) the twelve-year statute of limitations did not begin
to run in 2004; and that (2) even if it did, the United States abandoned their adverse claim
in 2012 and 2014, thereby “reset[ing] the clock” for purposes of the statute of limitations.
Id. at 15.
1. Start-date of statute of limitations
The QTA provides for suit against the United States when a party disputes the
federal government’s ownership to land. 28 U.S.C. § 2409(a). An action brought under the
QTA must be “commenced within twelve years of the date upon which [the action]
accrued.” 28 U.S.C. § 2409a(g). An action accrues “on the date that plaintiff or his
predecessor in interest knew or should have known of the claim of the United States.” Id.
A plaintiff knows or should know about an adverse claim when “the United States’ action
would have alerted a reasonable landowner that the government claimed an interest in the
land.” Shultz v. Dep’t of Army, 886 F.2d 1157, 1160 (9th Cir. 1989).
In this case, the Court gave three reasons for why the Tribes should have known by
2004 that the United States claimed an interest in the land: (1) the land was not being used
MEMORANDUM DECISION AND ORDER - 4
for railroad purposes since 1993; (2) the land was being managed by the Bureau of Land
Management (“BLM”), not the Bureau of Indian Affairs (“BIA”); and (3) in 2004 the BLM
sent a memo to the Tribes stating that “ownership of the lands in question is not 100 percent
clear.” Dkt. 102, at 15–17. Therefore, because the Tribes’ claim accrued in 2004, the Court
held that the statute of limitations barred the Tribes from bringing their QTA claim in 2018.
Id. at 18.
The Tribes argue that the Court erred because (1) it failed to take into account three
memoranda suggesting that the United States did not claim an adverse interest in the land3
and (2) the evidence that the Court relied on did not provide reasonable notice. Id. at 13–
21. The Court will address each argument in turn.
a. Evidence the Court did not take into account
(i) 1960 memo
In 1960, a BIA officer issued a memorandum on a congressional proposal to transfer
land to the Church of Jesus Christ of Latter-day Saints. Dkt. 22-12, at 2. The officer
described the land in question and opined that the bill “[was] an attempt by Congress to
extinguish a right guaranteed the Shoshone-Bannock Tribes in the Act of September 1,
3
The Tribes also argue the Court should consider additional documents submitted with their motion for
reconsideration, including declarations of three individuals and various letters, memoranda, and legal
documents. Dkt. 114-1, at 23. None of these documents were presented to the Court originally. In addition,
the Tribes do not allege that they reasonably could not have presented the documents originally or that the
documents are “newly discovered evidence.”
Therefore, because parties cannot use a motion to reconsider “to present evidence for the first time when
[the evidence] could reasonably have been raised earlier in the litigation,” the Court will not consider this
evidence. Baker, 554 U.S. at 485 n. 5 (cleaned up); Bishop, 229 F.3d at 890 (holding district court did not
abuse discretion by denying motion for reconsideration because movant’s evidence could have been
presented before).
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1888.” Id.
The Tribes argue that this memo “indicates the United States understood rights in
the 1888 Act were still in effect to protect the rights guaranteed to the Tribes.” Dkt. 1141, at 18. The Tribes do not explain, however, how this memorandum reasonably led them
to believe that the United States did not claim an interest in their land. Significantly,
Congress passed the bill, and land was transferred to the Church of Jesus Christ of Latterday Saints, as the Tribes themselves acknowledge. Dkt. 21, at 55. Therefore, to the extent
that the memorandum disclaimed the United States’ interest in the land, reliance on the
memorandum became unreasonable after the bill’s passage.
(ii) 1973 memo
In 1973, the BIA’s assistant regional solicitor issued a memorandum on the status
of the land then being used by the railroad companies. Dkt. 22-12, at 13–16. He believed
that the Tribes had no right to use the land because the land “[was] owned in fee by the
railroad, subject only to a complete reversion of title to the Tribes and/or the United States
sometime in the future when the railroad cease[s] to use the land for the purposes so
granted.” Id. at 14–15.
The Tribes argue that “the United States in the 1973 Memo clearly recognizes the
right-of-way lands revert to the Tribes when they no longer are used for a railroad purpose.”
Dkt. 114-1, at 18. However, the Tribes ignore that the memorandum states that the land
reverts to the Tribes or to the United States. Additionally, the Tribes do not explain why it
was reasonable to rely on this internal memorandum when a later memorandum directed
to the Tribes stated that ownership of the land was in doubt. Therefore, this memorandum
MEMORANDUM DECISION AND ORDER - 6
does not negate the reasonable notice provided to the Tribes.
(iii) 2005 memo
In 2005, the BIA’s regional solicitor general sent a memorandum to a BIA
superintendent about the status of lands formerly used for railroad purposes. The
memorandum concluded that
[o]ne thing is clear; when the lands cease to be used for railroad
purposes, the railroad company forfeits its interest in the land.
The railroad would not have been able to transfer its interest in
the rights of way to a third party other than another railroad
company, the Tribes or the U.S.
Dkt. 22-6, at 13–14.
The Tribes assert that whatever notice existed in 2004 was “overcome” by the
position in this memorandum, but they do not explain how. Dkt. 114-1, at 21. The
memorandum provides that the railroad could legally transfer its interest to the United
States. Therefore, the position in this memorandum is consistent with the United States’
assertion of a claim adverse to the Tribes.
b. Evidence relied on by the Court
(i) 2004 memo
In February 2004, the Tribes made a request to the BLM pursuant to the Freedom
of Information Act (FOIA) for documents relating to the status of the land. Dkt. 77-7, at
22. In March 2004, the BLM responded to that request and provided the Tribes with the
relevant documents. Id. The documents included an internal memorandum discussing the
nature trail built in the early 90s and stating that “ownership of the lands in question is not
100 percent clear.” Id. at 30. The memorandum concluded that the building of the nature
MEMORANDUM DECISION AND ORDER - 7
trail was authorized. Id.
The Tribes suggest that reliance on the memorandum is misplaced because the
memorandum “[is] buried in the middle of [an] FOIA response.” Dkt. 114-1, at 6. The
memorandum, however, was one of the documents the Tribes requested because it related
to the status of the land. It is reasonable to assume that the Tribes reviewed all the
documents BLM sent them pursuant to their inquiry, even those “buried in the middle.”
The Tribes also suggest that the language in the memorandum does not “rise to the
level of an express adverse claim.” Id. The QTA does not require the adverse claim to be
express. See, e.g, Kane Cnty. v. United States, 772 F. 3d 1205, 1212 (10th Cir. 2014) (“a
plaintiff must show that the United States has either expressly disputed title or taken action
that implicitly disputes it.”). Because the memorandum approves the building of the nature
trail on the land the Tribes claim is theirs, it contributed to providing reasonable notice of
the United States’ interest in the land.
(ii) BLM’s management
Since 1993, the BLM and not the BIA has been managing the land in question. Dkt.
102, at 16. The Tribes argue that this fact did not contribute to reasonable notice because
15 U.S.C. § 176 provides that the BLM will conduct surveys of Indian reservations when
surveys are needed. Dkt. 114-1, at 13. However, the Court did not rely on the BLM
conducting surveys on the land in question; rather, the Court relied on the BLM managing
the land for years. Dkt. 102, at 16. This continuous management contributed to putting the
Tribes on notice of an adverse claim because the BLM does not have authority to regulate
or manage lands held in trust for Indian tribes; the BIA does. See 25 U.S.C. § 2.
MEMORANDUM DECISION AND ORDER - 8
2. Abandonment of adverse claim
The Tribes proceed by arguing that even if the statute of limitations began in 2004,
it was reset three different times when (1) the Tribes and the United States signed the
Salazar Agreement, (2) the BIA sent a letter to the railroad discussing rights to the land,
and (3) the BLM accepted the railroad’s relinquishment of the land. Dkt. 114-1, at 21–23,
35–37.
a. Salazar Agreement
In 2012, the Tribes and the United States signed the Salazar Agreement, settling the
Tribes’ previous claims against the government. Dkt. 102, at 2. The Tribes argue that the
settlement reset the statute of limitations because it “provided notice to the Tribes [that]
the U.S. was not making an adverse claim to the land.” Dkt. 114-1, at 39. The Tribes argue
that the agreement “reaffirmed Tribal ownership” because of Section 6(i), which states:
Exception to Plaintiff’s Release, Waiver, and Covenant Not to
Sue. Notwithstanding the provisions of Paragraph 4 above,
nothing in this Joint Stipulation of Settlement shall diminish or
otherwise affect in any way: . . .
i. Plaintiff’s claims against third parties for the wrongful use of
railroad rights-of-ways located off the Fort Hall Reservation.
Id. at 39–40; Dkt. 77-3, at 7, 9.
“If the government has apparently abandoned any claim it once asserted, and then
it reasserts a claim, the later assertion is a new claim and the statute of limitations for an
action based on that claim accrues when it is asserted.” Shultz v. Department of Army, 886
F.2d 1157, 1161 (9th Cir. 1989). The Salazar Agreement does not “reaffirm tribal
ownership” because it does not state that the Tribes own the land or that the United States
MEMORANDUM DECISION AND ORDER - 9
is abandoning any interest in the land. Significantly, the agreement allows the Tribes to sue
third parties but not the United States. Therefore, the agreement does not reset the statute
of limitations.
b. 2012 letter
In 2012, the BIA sent a letter to the railroad company about land parcels the
company illegally sold. Dkt. 22-11, at 10–12. The Court decided that this letter did not
restart the statute of limitations because the parcels of land were not the lands at issue in
Counts V and VI. Dkt. 102, at 16. The Tribes now argue that the Court erred because the
letter contained “several general statements relating to the entire right-of-way [that] were
not limited to the [particular parcels of land].” Dkt 114-1, at 25. The Tribes cite the
following language:
[B]y operation of the explicit Congressional language in the
grants, the reversion in the United States has now vested in
those areas. We, therefore, wanted to notify you that due to this
automatic reversion, we believe that the areas within the grant
that are being used for purposes not authorized by the grants
have reverted to the United States in trust for the ShoShoneBannock Tribes.
Dkt. 22-11, at 11.
The Tribes do not explain how the language is not limited to the parcels of land. The
antecedent of “this automatic reversion” is clearly “the reversion . . . now vested in those
[particular] areas.” (emphasis added). Therefore, the Tribes have not shown that the
Court’s reading of the letter was inaccurate or that the letter reset the statute of limitations.
c. 2014 decision
In 2014, the BLM formally accepted the railroad’s 1989 relinquishment of the land
MEMORANDUM DECISION AND ORDER - 10
to the United States. Dkt. 77-7. The Tribes argue this decision constituted abandonment of
an adverse claim because the railroad’s notice of relinquishment land quoted the 1888 Act.
Dkt. 114-1, at 25. The Tribes conclude the BLM’s acceptance of the relinquishment was
made pursuant to that Act, which provides that lands no longer used for railroad purposes
should revert to the Tribes or the United States. 25 Stat. 452 at § 11.
The Tribes have not shown how the 2014 decision restarts the statute of limitations.
The decision is merely a formal acceptance of the relinquishment; it does not state that the
United States forgoes any previous interest in the land, and it does not state that the
relinquishment is accepted pursuant to the 1888 Act. Even if it did, the United States is not
thereby committed to relinquishing its interest in the land, given that the 1888 Act provides
that the lands revert to the Tribes or to the United States. Id.
3. Summary
The Tribes have not met their burden of establishing that the Court committed clear
error in holding that their claims under the QTA were time-barred. The evidence the Court
allegedly failed to consider does not prove that the Tribes’ claim accrued after 2004. And
the evidence the Court discussed supported its finding that by 2004 the Tribes had
reasonable notice of the United States’ adverse claim. Therefore, the Court will not revise
its dismissal of Counts V and VI.
B. Count VII
The Tribes next suggest that the Court committed clear error in dismissing Count
VII because both the 1888 Act and BLM’s 2014 decision separately establish a plainly
prescribed command for which a writ of mandamus is proper. Dkt. 114-1, at 41–42.
MEMORANDUM DECISION AND ORDER - 11
1. 1888 Act
The 1888 Act concerns tribal lands over which railroad companies have an
easement. See 25 Stat. 452 at Art. II, Art III § 11. Specifically, it provides for what happens
to those lands once railroad companies stop using the lands for railroad purposes. Id. at §
11. The Tribes claim the following statutory language provide the relevant command:
Provided, That no part of the lands herein authorized to be
taken shall be leased or sold by the company, and they shall
not be used, except in such manner and for such purposes only
as shall be necessary for the construction, maintenance and
convenient operation of a railway, telegraph or telephone lines,
and when any portion thereof shall cease to be so used, such
portions shall revert to the tribe or tribes of Indians from which
the same shall have been taken, or in case they shall have
ceased to occupy said reservation, to the United States, . . . .
Dkt. 114-1, at 41–42; 25 Stat. 452 at § 11 (emphasis added). The duty suggested by this
language, however, is obscured by an earlier passage in the same section:
Provided, That all lands acquired by said railway company
near its station at Pocatello for its use for station grounds, depot
buildings, shops, tracks, side-tracks, turn-outs, yards, and for
water purposes, as hereinbefore provided, shall, whenever used
by said railway company, or its assigns, for other purposes, be
forfeited and revert to the United States, . . . .
25 Stat. 452 at § 11. Therefore, on the face of the statute it is unclear whether the land
should revert back to the Tribes or to the United States. Even if it were clear, courts issue
writs of mandamus “only to command an official to perform an act which is a positive
command and so plainly prescribed as to be free from doubt. The claim must be clear and
certain and the duty of the officer ministerial.” Smith v. Grimm, 534 F. 2d 1346, 1352 (9th
Cir. 1976); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (agency
MEMORANDUM DECISION AND ORDER - 12
action must be “discrete” and “demanded by law”).
In this case, the six actions for which the Tribes seek a writ of mandamus are not
“so plainly prescribed” by this statutory language “as to be free from doubt.” In fact, none
of the actions are prescribed at all. The first action, for example, is that the “the BIA and
United States immediately approve the Tribes’ litigation assistance request regarding
related claims in this civil action.” Dkt. 21, at ¶ 423. Nothing in the statutory language
relied upon by the Tribes “plainly prescribes” that the BIA and the United States must
assist the Tribes with their litigation. Therefore, the Court cannot issue a writ of mandamus
based on this statute.
2. BLM’s 2014 decision
As explained above, in 2014 the BLM issued a decision accepting the railroad’s
relinquishment of an easement granted to it from the 1888 Act. Dkt. 77-7. The Tribes argue
that the following language from that decision provides a clear command for which a writ
of mandamus may be sought:
At this time the BLM accepts the relinquishment of that portion
of the right-of-way that was intended to be relinquished and the
railroad will continue to use the remainder (mainline) under
right-of-way.
Dkt. 114-1, at 42; Dkt. 77-7. The right-of-way refers to rights surrendered in a 1989 letter
from the railroad’s director:
I am writing. . . regarding the Railroad’s desire to relinquish
certain right-of-way it acquired for a water pipeline and
reservoir site at Pocatello, Idaho, under Section 11 of the Act
of Congress approved September 1, 1888 . . .
Our review of Section 11 of said Act indicates that the rightMEMORANDUM DECISION AND ORDER - 13
of-way the Railroad elects to relinquish reverts to the United
States in accordance with the provisions contained therein,
which state: “when any portion thereof shall case to be used,
such portion shall revert to the to the tribe or tribes of Indians
from which the same shall have been taken, or in case they
shall have ceased to occupy said reservation, to the United
States.
Dkt. 22-9, at 2–3.
The Tribes assert that “there is nothing discretionary about the wording nor is it
unclear,” but the Tribes have not shown how the BLM accepting the railroad’s
relinquishment constituted “a command to perform [the six actions].” Dkt. 114-1, at 42.
Nothing about the BLM’s acceptance “clear[ly] and certain[ly]” establishes a discrete duty,
for example, to “conduct a survey of all right-of-way lands granted under the Act of 1882
and the Act of 1888 to ascertain whether there are any non-railroad uses of right-of-way
lands,”—the sixth action that the Tribes seek to compel. Dkt. 21, at ¶ 23. Therefore, the
Court cannot issue a writ of mandamus based on this 2014 BLM decision.
Because neither the 1888 Act nor the 2014 BLM decision prescribes the six actions
the Tribes seek to compel, the Tribes have not demonstrated that the Court clearly erred in
dismissing their request for a writ of mandamus.
C. Count IX
The Tribes suggest that the Court committed clear error in dismissing their breach
of trust claim because the 1888 Act coupled with the 2014 BLM decision established a
trust duty that the BIA violated. Dkt. 114, at 40–41. The Tribes argue that the Court should
have considered the 1888 Act and the 2014 BLM decision as possible sources of the trust
duty, in addition to the agency decisions and federal regulations considered. See Id.
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Under the Administrative Procedure Act (“APA”), a plaintiff can challenge an
agency’s inaction if the agency “failed to take a discrete agency action that it is required to
take.” Norton, 542 U.S. at 64; see 5 U.S.C. § 706. Here, the Tribes challenge the BIA’s
failure to bring trespass actions on the grounds that the 1888 Act and 2014 BLM decision
require the agency to do so. See Dkt. 21, at 65; Dkt. 114, at 40–41. The Tribes’ argument
fails for two reasons.
First, the Tribes could have made this argument earlier in the litigation. As explained
above, the Tribes cannot use a motion for rehearing to “raise arguments or present evidence
for the first time when they could reasonably have been raised earlier in the litigation.”
Baker, 554 U.S. at 485 n. 5 (2008) (cleaned up).
Second, even if the Tribes had made this argument before, the Tribes have not
established that the BIA “failed to take a discrete agency action that it is required to take.”
Norton, 542 U.S. at 64. The Tribes do not allege that the 1888 Act or 2014 decision
explicitly or implicitly require the BIA to bring trespass actions. Therefore, the Tribes have
not demonstrated that the Court committed clear error in dismissing their breach of trust
claim under the APA.
D. Count XVI
1. Against the United States
The Tribes suggest that the Court clearly erred in dismissing their claim of ejectment
and restitution of property against the United States because the statute of limitations has
not run. Dkt. 114, at 42.
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Historically, plaintiffs seeking to challenge the United States’ claim to land
circumvented sovereign immunity by suing individual government officers in ejectment
and restitution of property. See Block v. North Dakota ex. Rel. Bd. of Univ. & Sch. Lands,
461 U.S. 273, 280-82 (1983); Dkt. 91, at 31. This device, called an officer’s suit, was
eliminated when Congress passed the QTA, which “provided the exclusive means by which
adverse claimants could challenge the United States’ title to real property.” Block, 461 U.S.
at 284–86. As noted above, the QTA imposes a twelve-year statute of limitations. 28 U.S.C.
§ 2409a(g)
The Tribes assert that the “the statute of limitations does not warrant dismissal of
the Tribes claims [in ejectment and restitution of property] against the United States,”
presumably because the statute of limitations applies only to actions to quiet title under the
QTA. Dkt. 114-1, at 42. But the Tribes cannot sue the United States in ejectment and
restitution of property; as stated above, the officer’s suit device has been eliminated. Block,
461 U.S. at 284–86 (holding North Dakota could not dispute United States’ title to land
under officer’s-suit theory). Therefore, it is irrelevant whether the Tribes’ action in
ejectment and restitution was brought within the statute of limitations.
2. Against the City of Pocatello
The Tribes also suggest that the Court committed clear error because the QTA does
not bar an action in ejectment and restitution of property against third parties, such as the
City of Pocatello. Dkt. 114-1, at 42–43. The City of Pocatello does not address this
argument.
MEMORANDUM DECISION AND ORDER - 16
The QTA concerns land disputes with the United States, not with individual states,
cities, or counties. See 28 U.S.C. § 2409a. There is no case law suggesting that the QTA
eliminates actions in ejectment and restitution of property against local government
entities. Furthermore, Indian tribes have a federal common law cause of action in
ejectment, and local governments do not possess sovereign immunity. Oneida County, N.Y.
v. Oneida Indian Nation of New York State, 470 U.S. 226, 235 (1985) (“That an action of
ejectment could be maintained on an Indian right to occupancy and use, is not open to
question.”) (cleaned up); see Lincoln Cnty. v. Luning, 133 U.S. 529 (1890). Put simply,
Indian tribes can dispute local government claims to land in an ejectment action. See
Oneida, 470 U.S. at 236 (holding Indian tribes could maintain cause of action against local
counties).
In the 2022 order, the Court dismissed the Tribes’ ejectment claim “with regards to
both the Government [of the United States] and the City of Pocatello.” Dkt. 112, at 6. The
Court’s discussion in that order, however, addressed the claim in ejectment against the
United States and not against Pocatello. Id. at 4–6. Its reasoning does not apply to suits
against local government entities. Therefore, the Court committed clear error in dismissing
the Tribes’ ejectment claim against Pocatello and revises its dismissal of Count XVI
accordingly.
V. CONCLUSION
The Court did not commit clear error in dismissing Counts V, VI, VII, or IX. The
Court also did not commit clear error in dismissing Count XVI against the United States,
but it did commit clear error in dismissing Count XVI against the City of Pocatello.
MEMORANDUM DECISION AND ORDER - 17
Consequently, the Tribes’ Motion to Reconsider is GRANTED with respect to Count XVI
against the City of Pocatello and DENIED in all other respects.
VI. ORDER
It is HEREBY ORDERED that:
1. The Tribes’ Motion to Reconsider (Dkt. 114) be GRANTED IN PART and
DENIED IN PART as outlined above.
2. The Court promptly issue a notice of litigation order so the parties can develop a
litigation plan governing the remainder of this case.
DATED: March 10, 2023
_________________________
David C. Nye
Chief U.S. District Court Judge
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