Turunen v. Michigan Department of Natural Resources et al
Filing
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OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
__________________________
BRENDA TURUNEN,
Plaintiff,
v.
Case No. 2:13-CV-106
KEITH CREAGH, DIRECTOR,
MICHIGAN DEPARTMENT OF
NATURAL RESOURCES and
JAMIE CLOVER ADAMS, DIRECTOR,
MICHIGAN DEPARTMENT OF
AGRICULTURE
HON. GORDON J. QUIST
Defendants.
_________________________________/
OPINION
Plaintiff, Brenda Turunen, is a member of the Keweenaw Bay Indian Community (KBIC),
a federally recognized Indian tribe in Michigan’s Upper Peninsula that is the successor-in-interest
to the L’Anse and Ontonagon bands of the Lake Superior Chippewa Indians. In 1842, the Lake
Superior Chippewa Indians signed a treaty with the United States of America, 7 Stat. 591 (the 1842
Treaty), in which the Indian signatories ceded large portions of the western Upper Peninsula of
Michigan, but reserved “the right of hunting on the ceded territory, with the other usual privileges
of occupancy.” 7 Stat. 591.
Plaintiff owns property that is within the “ceded territory” at issue in the 1842 Treaty.
Plaintiff asserts that the “the usual privileges of occupancy” reserved by the KBIC on the ceded
territory included commercial farming and animal husbandry. Based on that interpretation of the
1842 Treaty, Plaintiff seeks a declaration that she may—as a member of the KBIC—raise animals
free from state regulation on her property within the ceded territory.
Plaintiff’s claim rests on the twin propositions that the KBIC retained certain rights in the
1842 Treaty, and that she may exercise such rights based on her membership in the KBIC. Although
the Court must determine the scope of the rights retained by the KBIC to resolve Plaintiff’s claim,
the KBIC is not a party to this action. Thus, the Court previously sought briefing from the parties
regarding whether the KBIC should be joined pursuant to Federal Rule of Civil Procedure 19, and
whether the case should be dismissed if the KBIC could not be joined.1 After the parties responded,
the Court—at Plaintiff’s urging—ordered Plaintiff to notify the KBIC of the pending action and the
opportunity to intervene. The KBIC followed up to that notification with a letter to the Court stating
that it would not intervene in the action, and further urging that the action be dismissed under Rule
19. For the following reasons, the Court concludes that the matter should be dismissed.
Legal Standard
Rule 19 requires that certain parties must be joined to a lawsuit. Fed. R. Civ. P. 19. The
rule further recognizes that joinder of certain parties is not always feasible, and provides that a case
may be subject to dismissal if a required party cannot be joined. A court may “consider sua sponte
the absence of a required person and dismiss for failure to join.” Republic of the Phillipines v.
Pimentel, 553 U.S. 851, 861, 128 S. Ct. 2180, 2188 (2008).
Courts employ a three-step test to determine whether an absent party must be joined or
whether the case must be dismissed if that party cannot be joined. Sch. Dist. of the City of Pontiac
v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 301 (6th Cir. 2009) (en banc) (McKeague, J.,
concurring). See also Fed. R. Civ. P. 19. First, a court should consider whether an absent party is
a required party. Sch. Dist. of the City of Pontiac, 584 F.3d at 301. If the absent party is required,
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The Court’s previous Order also questioned whether the other tribes that are successors-in-interest to the 1842
Treaty’s signatories were required parties under Rule 19. Because the KBIC has declined to intervene and opposes
continuation of this case, however, the Court will focus its analysis on the KBIC rather than the other signatories.
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the court then considers whether joinder is feasible. Id. If joinder is not feasible, the court must
weigh the equities to determine if the case should continue in the party’s absence or should be
dismissed. Id.
Discussion
Plaintiff acknowledges that the KBIC is a required party because Defendants would be
“subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations,”
Fed. R. Civ. P. 19(B)(ii), if the Court entered judgment in the KBIC’s absence. See Keweenaw Bay
Indian Cmty. v. Michigan, 11 F.3d 1341, 1347 (6th Cir. 1993) (finding that a decision in a case to
interpret the 1842 Treaty in the absence of tribal signatories would leave the defendants “subject to
a substantial risk of incurring multiple or otherwise inconsistent obligations”). In other words,
because the KBIC would not be bound by any decision in this lawsuit, it could bring future actions
against Defendants to interpret the 1842 Treaty that could lead to inconsistent determinations
regarding the scope of the KBIC’s rights under that treaty. It is further uncontested that joinder is
not feasible because the KBIC possesses sovereign immunity. See id.
Thus, the Court must proceed to the third step of the Rule 19 inquiry and determine
“whether, in equity and good conscience, the action should proceed among the existing parties or
should be dismissed.” Fed. R. Civ. P. 19(b). Rule 19 lists the following four factors for courts to
consider:
(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;
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(3) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for
nonjoinder.
Fed. R. Civ. P. 19(b). Although all four factors should be considered in each case, “the weighing
of the equities is more circumscribed” in cases in which “the absent party is a sovereign.” Sch. Dist.
of the City of Pontiac, 584 F.3d at 305 (McKeague, concurring). “This is ‘because immunity may
be viewed as one of those interests compelling by themselves.’” Id. (quoting Kickapoo Tribe v.
Babbit, 43 F.3d 1491, 1498 (D.C. Cir. 1995)).
Plaintiff acknowledges that a judgment rendered in Defendants’ favor would prejudice the
KBIC, but argues that any prejudice to the KBIC is of its own making because the KBIC has chosen
not to intervene. Courts have routinely rejected the idea that courts should consider a sovereign’s
refusal to intervene in determining the possibility of prejudice.
See N. Arapaho Tribe v.
Harnsberger, 660 F. Supp. 2d 1264, 1281 (D. Wyo. 2009), aff’d in part, vacated in part, 697 F.3d
1272 (10th Cir. 2012) (listing cases). “The fact that a sovereign entity could have intervened, but
chose not to, cannot be considered as a mitigating factor to weigh against th[e] likelihood of
prejudice.” Id. See also Navajo Tribe of Indians v. State of N.M., 809 F.2d 1455, 1473 (10th Cir.
1987) (“To argue, as the [plaintiff] does, that the [sovereign entity] can protect its interest through
voluntary intervention would render Rule 19(b) almost completely nugatory.”). Accordingly, the
Court concludes that the first factor weighs in favor of dismissal.
In analyzing the second factor, the Court sees no way of fashioning relief or shaping its
judgment to lessen prejudice to the KBIC. Plaintiff has asked this Court to rule that the 1842 Treaty
prohibits the State of Michigan from regulating agricultural activities on the ceded land. The Court
must conclude that the KBIC either retained certain rights or it did not—the Court can fathom no
way of answering such question that would lessen the prejudice to the KBIC. See N. Arapaho Tribe
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v. Harnsberger, 697 F.3d 1272, 1282 (10th Cir. 2012) (finding that the court could not lessen or
avoid the prejudice of a judgment in a case that required a determination of whether certain areas
were in Indian country due to “the all-or-nothing nature” of the interest at issue).
Plaintiff argues that the Court could lessen the prejudice to the KBIC by retaining
jurisdiction of the case after judgment, which Plaintiff contends would allow the Court to “revisit
the judgment” in the event of a future lawsuit by the KBIC. Infrequently, a district court will
explicitly retain jurisdiction following judgment to enforce or implement an order or judgment. See
e.g., N. Am. Recycling, LLC v. Texamet Recycling, LLC, No. 2:08-CV-579, 2012 WL 3283380, at
*3 (S.D. Ohio Aug. 10, 2012). The Court is unaware, however, of any court that has retained
jurisdiction of a case indefinitely so that it can revisit its judgement at a later date. In essence,
Plaintiff argues that the Court could simply change its mind if future events proved that the Court’s
judgment was in error. Such a concept is not compatible with the federal courts’ “interest in the
finality of their judgments.” Wright v. Warden, Riverbend Maximum Sec. Inst., 793 F.3d 670, 673
(6th Cir. 2015). Because the Court is unpersuaded that it could lessen the prejudice to the KBIC by
retaining jurisdiction of the case following final judgment, the second factor weighs in favor of
dismissal.
Plaintiff’s analysis of the third factor is based on a misunderstanding of that factor. Plaintiff
argues that the third factor weighs in her favor because a judgment would be adequate among the
parties even in the KBIC’s absence. However, the Supreme Court has interpreted this factor “to
refer to [the] public 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.” Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. 102, 111, 88 S. Ct. 733, 739 (1968). The interests that form the basis of the
third factor are those of “the courts and the public in complete, consistent, and efficient settlement
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of controversies,” id., rather than the interests of a plaintiff in receiving complete relief. Permitting
this litigation to proceed in the absence of the KBIC would not wholly settle the underlying dispute
because the KBIC would not be bound by the judgment. Accordingly, this factor weighs in favor
of dismissal.
The fourth factor weighs against dismissal because Plaintiff would not have an adequate
remedy if the Court dismissed the action. Although Defendants argue that Plaintiff could persuade
the KBIC to initiate a lawsuit challenging the regulation at issue or persuade the legislature to
change the law, these are not viable options. The KBIC has rejected the opportunity to participate
in this lawsuit, and there is no indication it intends to file a separate lawsuit. Similarly, Defendants
provide no evidence indicating that the legislature would be inclined to address the issues of which
Plaintiff complains.
The fact that Plaintiff would be left without a remedy, however, is not dispositive in this
case. “A plaintiff's inability to seek relief . . . does not automatically preclude dismissal, particularly
where that inability results from a tribe’s exercise of its right to sovereign immunity.” United States
ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476, 480 (7th Cir. 1996). On the contrary, other courts
have dismissed actions involving absent tribes invoking sovereign immunity, even though such
dismissals left the plaintiffs without a remedy. See N. Arapaho Tribe, 697 F.3d at 1283 (noting that
the fact that the plaintiff would be left without a remedy, “while unsatisfying, does not preclude
dismissal, particularly when viewed in light of the Tribe’s sovereign immunity and the first three
Rule 19(b) factors”) (internal alterations and quotation marks omitted); Makah Indian Tribe v.
Verity, 910 F.2d 555, 560 (9th Cir. 1990) (noting that “[s]overeign immunity may leave a party with
no forum for its claims,” and that “lack of an alternative forum does not automatically prevent
dismissal of a suit”); Hall, 100 F.3d at 480. Such cases “reflect the strong policy that has favored
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dismissal when a court cannot join a tribe because of sovereign immunity.” Davis v. United States,
192 F.3d 951, 960 (10th Cir. 1999).
The Supreme Court recently discussed the fourth Rule 19(b) factor in a case involving
sovereign immunity. Pimentel, 553 U.S. 851, 128 S. Ct. 2180. Pimental involved a dispute over
a brokerage account that included allegedly illicit funds linked to the Phillipines government. The
Republic of the Phillipines was included as a defendant via interpleader, but later dismissed because
it was a sovereign. The Supreme Court held that the action should have been dismissed under Rule
19, reasoning that any prejudice to the stakeholder in the action was outweighed by the absent entity
invoking sovereign immunity. Id. at 872, 128 S. Ct. at 2194. The Court explained that although
“[d]ismissal under Rule 19(b) will mean, in some instances, that plaintiffs will be left without a
forum for definitive resolution of their claims[,]. . . that result is contemplated under the doctrine
of foreign sovereign immunity.” Id.
As other courts have recognized, Pimental is distinguishable from cases involving claims
of tribal sovereign immunity. See Dine Citizens Against Ruining Our Env’t v. U.S. Office of Surface
Mining Reclamation & Enf’t, No. 12-CV-1275-AP, 2013 WL 68701, at *3-4 (D. Colo. Jan. 4, 2013);
Klamath Tribe Claims Comm. v. United States, 106 Fed. Cl. 87, 96 (2012), aff’d sub nom. Klamath
Claims Comm. v. United States, 541 F. App’x 974 (Fed. Cir. 2013). Nonetheless, the Supreme
Court’s analysis is helpful because it illustrates the principle that sovereign immunity itself is a
compelling interest in the Rule 19(b) analysis. See Klamath Tribe, 106 Fed. Cl. at 96. Subsequent
cases confirm that such reasoning applies to tribes as well as foreign sovereigns. See N. Arapaho
Tribe, 697 F.3d at 1283 (citing Pimental in finding that a tribe’s sovereign immunity was an
important consideration in the Rule 19(b)(4) analysis).
Finally, the KBIC’s interests are particularly strong under the unique circumstances of this
case. Plaintiff asserts claims based on rights that she argues arise from the 1842 Treaty, yet Plaintiff
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herself was not a party to that treaty. Rather, to the extent that Plaintiff has any rights under the
1842 Treaty, they arise solely by virtue of her membership in the KBIC. Yet, the KBIC not only
refuses to be a part of this action, it further urges the Court to dismiss it. The Court is unaware of
any case in which a court has interpreted a treaty based solely on the request from a tribal member
and against the wishes of the treaty’s signatories.
Conclusion
The Court concludes that the KBIC is a required party to this action and that joinder of the
KBIC is not feasible. The Court further finds that the first three factors under Rule 19(b) weigh in
favor of dismissal. Although the fourth factor weighs against dismissal, such factor is not
dispositive, particularly in light of the interests presented by the KBIC’s invocation of its sovereign
immunity. Accordingly, the Court concludes this action should be dismissed pursuant to Rule 19.
An Order consistent with this Opinion shall follow.
Dated: March 31, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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