Wyandotte Nation v. Salazar

Filing 56

MEMORANDUM AND ORDER granting 45 Motion to Dismiss for Lack of Jurisdiction; granting 47 Motion to Dismiss. The State's counterclaims against the Nation and cross-claims against the Secretary are DISMISSED without prejudice.IT IS FURTHER ORDERED BY THE COURT that within ten (10) days of the date of this Order, the parties shall confer and submit a proposed schedule for resolving the remaining claims in this dispute, including a response or submission by the State as it sees necessary. Signed by District Judge Julie A. Robinson on 8/3/2012. (pp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WYANDOTTE NATION,

)
)
Plaintiff,
)
)
v.
)
)
KENNETH L. SALAZAR, in his official )
capacity as Secretary of the United States )
Department of the Interior,
)
)
Defendant,
)
)
and
)
)
STATE OF KANSAS, ex rel.
)
DEREK SCHMIDT, Attorney General, )
)
Intervening Defendant.
)
__________________________________ )

Case No. 11-2656-JAR-DJW

MEMORANDUM AND OPINION
Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this
lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the
Secretary”), seeking an order from this Court compelling the Secretary to comply with his
mandatory duty to accept title to certain land and hold it in trust for the Nation’s benefit, as
specifically required by Public Law 98-602, 98 Stat. 3149 (1984). The State of Kansas (“the
State”) was permitted to intervene as of right under Fed. R. Civ. P. 24(a) (Doc. 41) and in its
Answer, brought counterclaims against the Nation and cross-claims against Defendant Secretary.
This matter is before the Court on the Nation and the Secretary’s Motions to Dismiss the State’s
claims for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) (Docs. 45,47). The
Secretary and the State have supplemented their submissions, per the Order of this Court (Doc.

53). For the reasons explained in detail below, the Court grants the motions to dismiss.
I.

Background
On July 26, 2011, the Nation initiated this action in the United States District Court for

the District of Columbia, challenging the Secretary’s failure to accept title to a tract of land
known as the Park City Land into a trust created for the Nation’s benefit as required by the Land
Claim Settlement Act (“PL 602”).1 Highly summarized, PL 602 provides a mechanism to satisfy
certain judgments entered by the Indian Claims Commission in favor of the Nation against the
United States, and, inter alia, mandated that a “sum of $100,000 . . . shall be used for the
purchase of real property which shall be held in trust by the Secretary [of the Interior] for the
benefit of [the] Tribe” (“PL 602 Funds”). Specifically, the Nation alleges that in November
1992, it purchased a tract of land in Park City, Kansas, with PL 602 Funds and, in January 2003,
submitted an application requesting the Secretary take the Park City Land into trust pursuant to
PL 602. The Secretary never took any action on the request.
In 1995, the Nation alleges it purchased a second tract of land with PL 602 Funds in
Kansas City, Kansas (“Shriner Tract”) and requested the Secretary accept that land into trust. In
1996, the Secretary accepted the Shriner Tract into trust and approved gaming activities on that
property under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq. (“IGRA”). After
approximately five years of litigation, the Tenth Circuit Court of Appeals concluded that the
Secretary acted arbitrarily in determining whether only PL 602 Funds were used to purchase the
Shriner Tract, as well as erred in approving gaming activities on the land.2 The Tenth Circuit

1

Pub. L. No. 98-602.

2

See Sac & Fox Nation of Mo. v. Babbitt, 240 F.3d 1250, 1253 (10th Cir. 2001).

2

then remanded the matter to the Secretary for reconsideration of the Nation’s original request
regarding the Shriner Tract.
On remand, the Secretary determined that the Shriner Tract was purchased with PL 602
Funds and affirmed its decision to accept the property in trust, and the Nation began operating
gaming facilities on the site. From 2002 until 2010, the Nation, the State of Kansas and other
Indian Tribes have engaged in extensive litigation surrounding the Shriner Tract and the
Nation’s ability to open a gaming facility on the land. On April 13, 2006, during the litigation
regarding the Shriner Tract, the Nation resubmitted its application to have the Park City Land
taken into trust. The Nation intends to operate a gaming facility on the Park City Land, but the
Secretary has not yet acted on the Nation’s renewed application.
In this lawsuit, the Nation alleges that “despite the Nation’s repeated requests and its
undeniable need for prompt action, the Secretary has refused to act on the Park City Land trust
acquisition, to provide any reasonable explanation for his delay, or even to specify a date by
which he will act.”3 Consequently, the Nation seeks in Count I a writ of mandamus pursuant to
28 U.S.C. § 1361 to compel the Secretary to accept trust title to the Park City Land; a finding in
Count II that the Secretary violated the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
(“APA”); and in Count III, a determination that the Secretary breached trust obligations owed to
the Nation.4
In September 2011, the Secretary moved to transfer this case to this Court and the State
filed a Motion to Intervene. On November 22, 2011, the Secretary’s Motion to transfer was

3

Doc. 1, ¶ 31.

4

Id. at ¶¶ 33-50.

3

granted. Subsequently, over the Nation’s objection, Magistrate Judge Waxse granted the State’s
Motion to Intervene as a matter of right. The State then filed an Answer and asserted
counterclaims against the Nation and cross-claims against the Secretary.5 The State seeks the
opposite relief of that sought by the Nation: declaratory relief and an injunction prohibiting the
Secretary from acquiring the Park City Land in trust. The State asserts three claims: Counts I
and II seek a declaratory judgment for unlawful exercise of trust authority under P.L. 98-602,
and unlawful exercise of trust authority under 25 U.S.C. § 465; Count III seeks to enjoin the
Secretary from taking the Park City Land into trust. The State asserts this Court has jurisdiction
over its counterclaims and cross-claims pursuant to 28 U.S.C. §§ 1331 and 1362 because its
claims arise “under 25 U.S.C. § 465, 25 C.F.R. § 151.12, 25 U.S.C. § 2719, and Public Law 98602.” The State further asserts this “action presents an actual case or controversy pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201.”
II.

Rule 12(b)(1) Standards
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of the case

where the court lacks subject matter jurisdiction. Dismissal for lack of subject matter
jurisdiction comes in two forms: (1) facial attacks; and (2) factual attacks.6 When attacked
facially, as in this case, the movant is challenging the sufficiency of the complaint, requiring a
court to accept as true all the allegations in the complaint.7 Federal courts are courts of limited

5

Doc. 44. The parties agreed that any jurisdictional issues with respect to the State’s counterclaims and
cross-claims should be resolved prior to the Court addressing the merits of the Nation’s Complaint, and the Court
vacated the prior agreed summary judgment briefing schedule. Doc. 43.
6

Paper, Allied-Indus., Chem. & Energy Workers Intern. Union v. Cont’l Carbon Co., 428 F.3d 1285 1292
(10th Cir. 2005).
7

Id.

4

jurisdiction that may exercise only those powers authorized by Constitution and statute.8 A
plaintiff is responsible for showing the court by a preponderance of the evidence that jurisdiction
is proper.9 Mere allegations of jurisdiction are not enough.10 Since federal courts are courts of
limited jurisdiction, there is a strong presumption against federal jurisdiction.11 A court lacking
subject matter jurisdiction “must dismiss the cause at any stage of the proceeding in which it
becomes apparent that such jurisdiction is lacking.”12
The Secretary also moves for dismissal because the State lacks standing.13 Because a
party’s standing implicates subject matter jurisdiction, the issue is also analyzed under Rule
12(b)(1).14 The concept of constitutional standing is derived from the case or controversy
requirement of Article III of the Constitution, and requires a plaintiff to show it has suffered an
injury in fact that is fairly traceable to the challenged action of defendants and is likely to be
redressed by a favorable decision.15 The elements of constitutional standing are not mere
pleading requirements, but rather are an indispensable part of plaintiffs’ case.16 Thus, “each

8

28 U.S.C. § 1331; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

9

United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th Cir. 2002).

10

Id. at 798.

11

Penteco Corp. Ltd. P’ship 1985A v. Union Gas Syst., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991).

12

Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citations omitted).

13

Although the parties briefed the issue in their submissions on the State’s Motion to Intervene, Judge
Waxse did not consider standing because it is not a prerequisite for intervention in the Tenth Circuit, “so long as
another party with constitutional standing on the same side as the intervenor remains in the case. See Doc. 41 at 1617 (citing San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir.2007) (en banc)).
14

See San Juan Cnty., Utah, 420 F.3d 1197, 1203 (10th Cir. 2005).

15

See Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1210–11 (10th Cir.2006).

16

Utah v. Babbitt, 137 F.3d at 1204 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

5

element must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the successive stages of
the litigation.”17 On a motion to dismiss, the Court must accept as true all material allegations of
the complaint, and must construe the complaint in favor of plaintiff.18 An injury in fact is one
that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.19 For purposes of alleging an injury in fact, general factual allegations of injury
resulting from defendant’s conduct will suffice because such allegations are presumed to
“embrace those specific facts that are necessary to support the claim.”20
III.

Discussion
A.

Claims Against the Wyandotte Nation

The Nation argues that it is immune from the State’s counterclaims under the doctrine of
tribal sovereign immunity and, alternatively, that the question of whether the Park City Land can
be taken into trust under PL 602 is not ripe and thus the counterclaims should be dismissed. The
State counters that the Nation waived its sovereign immunity by filing this lawsuit in federal
court and, even if it has not, the State’s counterclaims should be designated as defenses under
Fed. R. Civ. P. 8(c)(2). The Court addresses each argument in turn.
Tribal Sovereign Immunity
The Nation is a federally-recognized Indian Tribe. “Indian tribes are neither states, nor

17

Defenders of Wildlife, 504 U.S. at 561.

18

Babbitt, 137 F.3d at 1204 (citing Warth v. Seldin, 422 U.S. 490 (1975)).

19

See Schmidt v. Cline, 127 F.Supp.2d 1169, 1172 (D.Kan.2000) (citing Bear Lodge Multiple Use Ass'n v.
Babbitt, 175 F.3d 814, 821 (10th Cir.1999)).
20

Defenders of Wildlife, 504 U.S. at 561 (quotation omitted).

6

part of the federal government, nor subdivisions of either. Rather, they are sovereign political
entities possessed of sovereign authority not derived from the United States, which they
predate.”21 As a dependent sovereign entity, an Indian tribe is not subject to suit in a federal or
state court unless the tribe’s sovereign immunity has been either abrogated by Congress or
waived by the tribe.22 In either case, the waiver or abrogation of sovereign immunity “must be
unequivocally expressed” rather than implied. Further, “a tribe’s participation in litigation does
not constitute consent to counterclaims asserted by the defendants in those actions.”23
The State acknowledges that Congress has not abrogated the Nation’s sovereign
immunity but urges that waiver occurred when the Nation filed this lawsuit against the Secretary.
Although not specifically identified as such, the State relies on the doctrine of equitable
recoupment, which can operate as a limited waiver of tribal sovereign immunity; this doctrine
recognizes that by bringing a claim, a state or tribe necessarily waives immunity for matters
“arising out of the same transaction or occurrence” that is the subject matter of the suit, to the
extent the counterclaims do not seek relief “different in kind or nature” or “exceeding the
amount” of the relief sought by the state or tribe.24 The Tenth Circuit has adopted a three-prong
test to determine whether a defendant’s claim constitutes a claim of recoupment: the claim must
(1) arise from the same transaction or occurrence as the Nation’s suit; (2) seek relief for the same

21

Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1151-52 (10th Cir. 2011) (quoting NLRB v.
Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002) (en banc)).
22

Id. (citing Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 100, 1009 (10th Cir. 2007).

23

McClendon v. United States, 885 F.2d 627, 629 (1989).

24
Wyandotte Nation v. City of Kansas City, Kan., 200 F. Supp. 2d 1279, 1285 (D. Kan. 2000) (quoting
Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1344 (10th Cir. 1982)).

7

kind or nature of the Nation’s suit; and (3) seek an amount not in excess of the Nation’s claim.25
The State contends that its counterclaims fit squarely within that rule because, at its core, the
Nation’s claim is that the law and facts compel the conclusion that the Secretary was required to
take the Park City Land into trust pursuant to PL 602. The State argues that the Nation has thus
waived its tribal immunity as to the State’s counterclaims, which arise from the same issue, seek
the same determination of whether the Secretary is obligated to take the land into trust, and seek
an amount not in excess of the Nation’s claims.
In all of the cases cited by the State, however, the parties permitted to maintain
counterclaims against the plaintiff tribes were defendants in the underlying matter.26 In this case,
of course, the State was not named by the Nation as a defendant; rather, the Secretary is named
as the sole defendant in the underlying mandamus action. The State was permitted to intervene
in the case over the objection of the Nation and seeks a judgment against the Nation for
“unlawful exercise of trust authority.” To find that the Nation waived its sovereign immunity
against the State under these circumstances would require a determination of implied waiver. A
waiver of sovereign immunity cannot be implied, however, but must be express.27 Accordingly,
the Court finds that the Nation has not expressly waived its sovereign immunity to suit over this

25

Berrey v. Asarco, Inc., 439 F.3d 636, 645 (10th Cir. 2006).

26

See Berrey, 439 F.3d at 644-45 (finding waiver where named defendants in claim brought by tribe
asserting tenants under a mining lease caused damage to the tribe’s land counterclaimed for contribution and
indemnity); Wyandotte Nation, 200 F. Supp. 2d at 1284-85 (permitting named defendant’s counterclaim against tribe
for declaratory judgment in quiet title suit brought by tribe); Oneida Tribe of Indians of Wisc. v. Village of Hobart,
500 F. Supp. 2d 1143, 1148-49 (E.D. Wisc. 2007) (permitting named defendant’s counterclaim against tribe seeking
order directing tribe to pay all unpaid taxes and assessments in action brought by tribe seeking declaratory relief
exempting land from state taxes and assessments and a refund of previous assessments paid by the tribe).
27
McClendon v. United States, 885 F.2d 627, 629 (1989) (citing Santa Clara Pueblo v. Martinez, 436 U.S.
49, 58 (1978)).

8

subject matter by this third party intervenor.
Rule 8(c)(2)
Alternatively, the State asks this Court to designate its counterclaims as defenses to the
Nation’s claim that the Secretary has the mandatory obligation to take the Park City Land into
trust. Fed. R. Civ. P. 8(c)(1) generally addresses affirmative defenses; subsection (c)(2)
specifically adddresses mistaken designation of such defenses, stating, “[i]f a party mistakenly
designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice
requires, treat the pleading as though it were correctly designated, and may impose terms for
doing so.”28 Neither counterclaim is an affirmative defense under Rule 8(c). Accordingly, the
State’s request is denied, and the Nation’s motion to dismiss is granted.
B.

Claims Against the Secretary of the Interior

The Secretary argues that the State’s cross-claim should be dismissed because it has
failed to identify an applicable waiver of sovereign immunity or establish that it has standing
under Article III of the Constitution, and thus this Court lacks subject matter jurisdiction.
Alternatively, the Secretary argues that the State’s cross-claims lack ripeness, fail to state a claim
and request relief that is contrary to prudential limitations on judicial review of on-going agency
actions. The State contends that this Court has supplemental jurisdiction over the cross-claims
under 28 U.S.C. § 1367.
Sovereign Immunity
In a suit against the United States or when one of its agencies is a defendant, a waiver of

28

Fed. R. Civ. P. 8(c)(2).

9

sovereign immunity is a prerequisite to subject matter jurisdiction.29 Any waiver of sovereign
immunity must be express.30 Where the party asserting claims against the United States has
failed to identify an applicable waiver of sovereign immunity, the claims must be dismissed.31
The State cites 28 U.S.C. § 1367 as jurisdictional grounds for its cross-claims. Section
1367, however, does not save the State’s cross-claim, as that section provides only that
in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.32
While providing federal courts with supplemental subject matter jurisdiction over certain claims,
section 1367 does not constitute a waiver of sovereign immunity by the United States.33 The
case cited by the State in support of its attempt to establish jurisdiction is distinguishable from
this case, as it did not involve a cross-claim against the United States.34 Further, the fact that the
United States may have waived sovereign immunity for the Nation’s claims is irrelevant, as each
claim against the United States must be grounded in a waiver of sovereign immunity. As the
Supreme Court has explained, “cross-claims against the United States are justiciable only in
29

High Country Citizens Alliance v. Clarke, 454 F.3d 1177, 1181 (10th Cir. 2006).

30

United States v. King, 395 U.S. 1, 4 (1969).

31

See Fostvedt v. United States, 978 F.2d 1201, 1204 (10th Cir. 1991).

32

28 U.S.C. § 1367(a).

33

See San Juan Co., Utah v. United States, 503 F.3d 1163, 1181 (10th Cir.2007) ( “Section 1367(a) is
expressed in general terms, applying to all litigants. There is no mention of sovereign immunity or of the special
status of the government as a litigant. Under settled law, . . . this statute does not waive federal sovereign
immunity.”); Dunn & Black v. United States, 492 F.3d 1084, 1088 n. 3 (9th Cir.2007) (same); United States v.
Certain Land Situated in City of Detroit, 361 F.3d 305, 307 (6th Cir.2004) (same); Boritz v. United States, 685 F.
Supp. 2d 113, 122 (D. D.C. 2010) (same).
34

See Amusement Indus., Inc. v. Stern, 786 F. Supp. 2d 741, 754 (S.D.N.Y. 2011).

10

those courts where Congress has consented to their consideration.”35 The State has failed to
identify such consent in this case.
Standing
Even assuming a waiver of sovereign immunity, the State’s cross-claims lack Article III
standing because the State does not allege a concrete and particularized injury-in fact. The State
asserts that its claims against the Secretary were asserted prophylactically, in response to the
Nation’s interjection of the merits of PL 602 into this case, and that dismissal of its cross-claims
would “irretrievably impair” the State’s rights “if this Court proceeds to address the substantive
merits of the Plaintiff’s claims.” Specifically, the State urges that once the Park City Land is
acquired into trust, the Quiet Title Act’s Indian lands exception preserves the United States’
immunity from suit.36 Thus, any alleged injury associated with a potential loss of opportunity for
judicial review could only occur if the Secretary determines that PL 602 requires that the Park
City Land be acquired into trust for the Nation. As the Secretary notes, however, speculative
claims of injury are insufficient for purposes of Article III standing.37
Further, the Supreme Court recently issued its opinion in Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak,38 resolving the question of whether suits challenging
the United States’ acquisition of land in trust for Indian tribes after the United States acquires

35

United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 (1940).

36

Citing 28 U.S.C. § 2409a; Gov. of Kan. v. Kempthorne, 516 F.3d 833, 843 (10th Cir. 2008) (interpreting
Quiet Title Act as applying to such actions, thus implicating that Act’s preservation of the United States’ sovereign
immunity for challenges involving Indian lands).
37

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring claimed injury to be “concrete and
particularized”).
38
132 S. Ct. 2199 (2012) (abrogating Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-61
(10th Cir. 2004)).

11

title are actions under the APA or the Quiet Title Act. Under Patchak, a plaintiff that is
challenging a decision to acquire land in trust, but does not claim a competing interest in the
land, can proceed with the lawsuit even after the land is actually acquired or taken into trust,39
thus removing the one potential harm the State has articulated—the loss of the opportunity for
judicial review should the Secretary take the Park City Land intro trust. Accordingly, because
the Secretary’s ultimate determination of the Nation’s application remains pending, any harm
that may inure to the State does not rise to the level of an imminent, concrete and particularized
injury-in-fact necessary to establish jurisdiction.
Administrative Procedure Act
Finally, although the lack of subject matter jurisdiction is dispositive, the Court briefly
addresses the Secretary’s alternative grounds for dismissal. While the State does not allege the
APA as a basis for its cross-claims, it argues that if the Nation’s claims under the APA provide
this Court with a jurisdictional basis to reach the merits of the Nation’s claims under PL 602,
then the same jurisdictional basis exists with regard to the State’s cross-claims. But the State
cannot extrapolate the Nation’s inclusion of an APA claim in its Complaint as conferring Article
III jurisdiction over its cross-claims against the Secretary. In order to bring a claim under the
APA, “the prospective [cross-claimant] must show that [the] agency action has caused him to
suffer ‘legal wrong,’ or that he is ‘adversely affected or aggrieved’ by that action.”40 As the
Secretary notes, the State has not demonstrated how it is “suffering legal wrong” or is “adversely
affected or aggrieved” by the Secretary’s ongoing review of the Nation’s application. As

39

Id. at 2205-06.

40
W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1055 (10th Cir. 1993) (citing Defenders of Wildlife,
497 U.S. at 883).

12

discussed above, the State’s claimed harms are based on the presumption that the Secretary will
take the Park City Land into trust.
IT IS THEREFORE ORDERED BY THE COURT that the Nation and the Secretary’s
Motions to Dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) (Docs.
45, 47) are GRANTED; the State’s counterclaims against the Nation and cross-claims against the
Secretary are DISMISSED without prejudice;
IT IS FURTHER ORDERED BY THE COURT that within ten (10) days of the date
of this Order, the parties shall confer and submit a proposed schedule for resolving the remaining
claims in this dispute, including a response or submission by the State as it sees necessary.
IT IS SO ORDERED.
Dated: August 3, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE