Siemion et al v. Stewert et al
Filing
58
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS READ ORDER FOR DETAILS. ; granting 34 Motion to Dismiss for Lack of Jurisdiction; granting 41 Motion to Dismiss; granting 41 Motion for Summary Judgment; granting [4 1] Motion to Substitute Party. ; granting 42 Motion to Dismiss for Failure to State a Claim; granting 45 Motion ; granting 45 Motion to Dismiss for Lack of Jurisdiction; granting 45 Motion to Dismiss for Failure to State a Claim; granting 45 Motion for Hearing; granting 45 Motion for More Definite Statement; terminating; 57 Findings and Recommendations. Signed by Judge Richard F. Cebull on 5/25/2012.(Copies to B. Siemion; K. Passes and N. Siemion) (ACL, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAY 25 2012
BILLINGS DIVISION
PATRICK E. DUFFY CLERK
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BY
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) Cause No. CV-ll-tl\=~~T
Plaintiff,
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)
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vs.
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ORDER ADOPTING
VIANNA STEWERT, DEBBIE SCOTT,
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FINDINGS AND
CLARA HUGS, TY TEN BEAR,
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RECOMMENDATION OF
PATRICIA BUGAS-HARRIS, MARTIN )
UNITED STATES
MAGISTRATE JUDGE
ANSETH, WILLIAM HE DOES IT,
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PHOEBE KNAPP-WARREN, PAUL
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WARREN, SAM REDDING, LELAND
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WALKING BEAR, KELL Y DEE PASSES, )
CEDRIC BLACK EAGLE, LARRY
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TOBACCO, WILLIAM F. SNELL III
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PRETTY SHIELD, CODY WILHELM,
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CHAZ BENDS, VERNON HILL, PETE
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MOLINA, DIANE CABRERA, and
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PARTIES UNKNOWN"
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Defendant.
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NELVETTE SIEMION, DBA/White
Buffalo Ranch,
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On April 24, 2012, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendation. Magistrate Judge Ostby recommends this Court
grant the motion to dismiss under Rule 12(b)( 1) filed by Defendant Pete Molina;
grant the motion to substitute the United States, to dismiss under Rule 12(b)(1),
(6) and (7), and for summary judgment under Rule 56(a) (on Administrative
1
Procedure Act Claims) filed by Defendant Debbie Scott, Clara Hugs, Vianna
Stewart, Ty Ten Bear, and William He Does It; grant the motion to dismiss under
Rules 12(b)(l) and (6) filed by Defendants Cedric Black Eagle, Larry Tobacco,
William F. Snell, III, Cody Wilhelm, Chaz Bends, Vernon Hill, Thomas Hill, and
Diane Cabrera; and grant the motion to dismiss under Rules 12(b)(I), (6), and (7),
for misjoinder of parties under Rule 21, for a more definite statement under Rule
12(e), and for a determination that the action was brought for an improper purpose
under Rule 11 (b)( 1) filed by Defendants Patricia Bugas-Harris, Martin Anseth,
William He Does It, Phoebe Knapp-Warren, Paul Warren, Sam Redding, and
Leland Walking Bear.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)( 1). In this matter, no
party filed objections to the April 24, 2012 Findings and Recommendation.
Failure to object to a magistrate judge's findings and recommendation waives all
objections to the findings of fact. Turner v. Duncan, 158 F.3d 449,455 (9th Cir.
1999). However, failure to object does not relieve this Court of its burden to
review de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886
F.2d 1514, 1518 (9th Cir. 1989).
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ANALYSIS
I.
Federal Defendants
A.
Substitution of the United States
The United States Attorney for Montana, under 28 U.S.C. § 2679(d)(1) and
28 C.F.R. § 15.4(a), has certified that Scott, Hugs, Stewart, and Ten Bear were
acting within the scope of their employment with the BrA at the time of the
incidents alleged in Siemion's Amended Complaint. Doc. 43. The certification is
"prima facie evidence that a federal employee was acting in the scope of her
employment at the time of the incident[,]" Pauly v. U.S. Dept. ofAgri., 348 F.3d
1143, 1151 (9th Cir. 2003) (quoting Billings v. United States, 57 F.3d 797,800
(9th Cir. 1995)).
Siemion, as plaintiff, bears the burden of disproving the certification by a
preponderance of the evidence. Pauly, 348 F.3d at 1151. To disprove the
certification, a court may allow a plaintiff to conduct some discovery provided the
plaintiff has alleged "sufficient facts that, taken as true, would establish that the
defendants' actions exceeded the scope of their employment." lknatian v. U.S.,
2010 WL 3893610, at *2 (D. Mont. Sept. 28,2010) (quoting Stokes v. Cross, 327
F.3d 1210,1214 (D.C. Cir. 2003)). Permitting such discovery, however, "must be
balanced against the congressional intent 'to protect federal employees from the
uncertain and intimidating task of defending suits that challenge conduct within
3
the scope of their employ.' " Id., at *3 (quoting Brown v. Armstrong, 949 F.2d
1007,1011 (8 Cir. 1991)).
This Court agrees that it would not be appropriate to permit her to conduct
discovery into whether Scott, Hugs, Stewart, and Ten Bear were acting within the
scope of their employment. First, Siemion has not alleged any facts, taken as true,
that would establish that the employees' actions, as she has characterized them,
exceeded the scope of their employment. Second, as a practical matter, it is highly
unlikely that discovery on this limited issue would materially advance this
litigation toward resolution.
Siemion has not met her burden. All of the allegations stem from the named
Federal Defendants' conduct taken pursuant to their employment. Siemion has not
alleged, nor has she presented any evidence to demonstrate, that any act by any of
these Federal Defendants was done in furtherance of their own personal interest or
beyond what is ordinarily incidental to duties performed on behalf of their
employer. On this record, the only reasonable legal inference that may be drawn is
that the named Federal Defendants were acting within the scope of their
employment. Thus, the Federal Defendants' motion to the extent it seeks to
substitute the United States for Scott, Hugs, Stewart, and Ten Bear is granted.
4
B.
Tort Claims Stemming from Bison Impoundment Dispute,
Claims Against He Does It for Intimidation, and Allegation
against Ten Bear for Referring False Trespass Claims
Respecting Siemion's claims against: (1) He Does It for allegedly
antagonizing and intimidating Siemion's husband and son while He Does It was
on duty as a snow plow operator for the National Park Service; and (2) Ten Bear
for allegedly accepting and referring false bison trespass reports to Crow Tribal
Fish & Game agents, these claims will be dismissed. Siemion has not alleged that,
before filing these claims in this Court, she first submitted them to the appropriate
Federal agency as required by 28 U.S.C. § 2675(a). This requirement is
jurisdictional. See Meridian International Logistics v.
u.s., 939 F.2d 740, 743
(9th Cir. 1991); Blain v. United States, 552 F.2d 289,291 (9th Cir. 1977). These
claims must be dismissed.
C.
Leasing Dispute Claims
Siemion claims she was wrongfully deprived of Crow Tribal land leases to
which she is entitled. BrA Regional Director rejected the appeal in which Siemion
claimed that the Crow Tribe Superintendent wrongfully awarded leases to others
instead of to her. The BrA Regional Director explained that the Crow Tribe has
the exclusive right to grant or award leases on Tribal lands under 25 C.F.R. §
162.207 and that the BIA has no authority to monitor or ensure that the Tribe
5
follows its own laws and ordinances regarding the granting or awarding of leases
on Tribal lands. The IBIA affirmed this decision on February 5, 2009, concluding
that neither the BIA nor the IBIA had authority to address Siemion's challenges or
to challenge the Tribe's award of leases of Tribal lands.
Having reviewed the IBIA's decision, and in light ofSiemion's failure to
come forward with persuasive argument or authority challenging the decision, the
Court concludes that the IBIA's decision was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law. Thus, the Court will
dismiss Siemion's leasing dispute claims.
II.
Tribal Defendants
The Court has carefully considered the parties' arguments and relevant
authority and concludes that the Tribal Defendants' motion to dismiss should be
granted. Siemion's claims against Black Eagle and Cabrera are to be dismissed
because they are immune from suit in their capacities as Tribal officials.
Siemion's claim against Tribal Defendants Tobacco, Snell, Wilhelm, Bends, V.
Hill, and T. Hill are to be dismissed for lack of subject matter jurisdiction.
Because Indian Tribes are separate and distinct sovereignties, "no action
under 42 U.S.C. § 1983 can be maintained in federal court for persons alleging
deprivation of constitutional rights under color of tribal law." R.J. Williams Co. v.
Fort Belknap Housing Authority, 719 F.2d 979,982 (9th Cir. 1983). Unless
6
Congress authorizes the lawsuit or sovereign immunity has been waived, Indian
tribes, tribal entities, and persons acting on a tribes' behalf in an official capacity
enjoy sovereign immunity against suit. Kiowa Tribe ofOklahoma v.
Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998) (tribe); Allen v. Gold
Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) (tribal entity); Hardin v.
White Mountain Apache Tribe, 779 F.2d 476,479-80 (9th Cir. 1985) (tribal
officials). Because Siemion's claims against Black Eagle and Cabrera stem from
her allegations that they failed to perform duties as Tribal officials, they are
protected by Tribal sovereign immunity. Burlington Northern & Santa Fe Ry. Co.
v. Vaughn, 509 F.3d at 1091 (citing Hardin, 779 F.2d at 479-80).
To the extent Tribal Defendants Tobacco, Snell, Wilhelm, Bends, V. Hill,
and T. Hill were performing their duties as Tribal officers, they are immune for
the same reasons stated above respecting Black Eagle and Cabrera.
To the extent that Siemion alleges that these named Tribal Defendants acted
beyond their valid authority, Tribal sovereign immunity may not extend to them.
In this event, Siemion's claim against them is appropriately dismissed for lack of
subject matter jurisdiction for a different reason. Civil jurisdiction over activities
on reservation lands "presumptively lies in the tribal courts unless limited by
federal statute or a specific treaty provision. Considerations of comity require the
exhaustion of tribal remedies before the claim may be addressed by the district
7
court." Wellman v. Chevron, 815 F.2d 577,578 (9th Cir. 1987) (citing Iowa Mut.
Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971,976-977,94 L. Ed. 2d 10 (1987);
National Farmers Union Ins. Cos. v. Crow Tribe ofIndians, 471 U.S. 845,
857(1985)).
Once all tribal remedies are exhausted, a federal district court has
jurisdiction under 28 U.S.C. § 1331 to review the tribal court's finding of tribal
jurisdiction. LaPlante, 107 S. Ct. at 978; National Farmers Union Ins., 471 U.S.
at 857. If the Court finds that the tribal court system properly exercised
jurisdiction over the controversy, proper deference to the tribal court precludes
relitigation of the issues raised and resolved in the tribal court. See LaPlante, 480
U.S. 9,107 S.Ct. 971, 94 L. Ed. 2d 10.
Siemion's claim against these Tribal Defendants involves their killing of
three of her bison on the reservation by tribal officers and members. In civil cases
arising between Indians, or against an Indian defendant in an action arising in
Indian country, tribal jurisdiction usually will be exclusive. Fisher v. District
Court, 424 U.S. 382, 386-89 (1976); Williams v. Lee, 358 U.S. 217, 223 (1959).
Indian tribes "exercise inherent sovereign authority over their members and
territories." Oklahoma Tax Com 'n v. Citizen Band ofPotawatomi Indian Tribe,
498 U.S. 505,511 (1991).
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Here, the record does not reflect that Siemion has sought relief in Tribal
Court for the claim she asserts here against these named Tribal Defendants. Her
Tribal Court case involved only the leasing dispute. Accordingly, her claims
against the Tribal Defendants must be dismissed.
III.
Private Defendants
The Private Defendants filed their motions on February 17,2012. Court
Doc. 45. Siemion's response to this motion was due on March 9,2012. Local
Rule 7.1(d)(1)(B) ("Responses to motions to dismiss, ...must be filed within
twenty-one (21) days after the motion was filed.").
Siemion failed to respond to the Private Defendants' motion or to seek an
extension of time to respond. When a party opposing a motion fails to file a
response, as here, the Court has the discretion to deem the failure "an admission
that the motion is well-taken." Local Rule 7. 1(d)(l)(B).
Before granting the Private Defendants' motions to dismiss, the Court must
consider five factors: "(1) the public's interest in expeditious resolution of the
litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of cases [on] their merits;
and (5) the availability of less drastic sanctions." Ghazali v. Moran, 46 F.3d 52,53
(9th Cir. 1995) (quoting Henderson v. Duncan,779 F .2d 1421, 1423 (9th Cir.
1986)).
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The first factor weighs strongly in favor of dismissal. At this juncture in the
proceedings, dismissal will promote the public's interest in expeditious resolution
of litigation. The second factor weighs strongly in favor of dismissal. Siemion's
failure to respond to the Private Defendants' motions undermines the Court's
ability to expedite resolution of the action. The third factor weighs in favor of
dismissal. The Private Defendants in this action should suffer no prejudice by the
dismissal of Siemion's claims against them. The fourth factor generally weighs
against dismissal for failure to file a brief. This policy lends little support,
however, to those parties responsible for moving a case forward but whose
conduct impedes progress in that direction. As to the fifth factor, it is possible that
the Court could adopt less drastic sanctions by ordering Siemion to file a response.
However, Siemion assumed an affirmative responsibility to participate in the
proceedings in accordance with the rules by bringing this action. Her failure to
participate with respect to the Private Defendants imposes a strain on judicial
resources and, more significantly, works unfair prejudice upon the Private
Defendants, who were compelled to appear to defend themselves.
Thus, the motions to dismiss brought by the Private Defendants will be
granted.
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IV.
Defendant Molina
Siemion's Amended Complaint does not state the basis for the Court's
subject matter jurisdiction respecting her claim against Molina. She also has
failed to allege any facts that would give rise to this Court's subject matter
jurisdiction over her claim against Molina. Siemion has alleged in Count 12 only
that Molina "came into possession of a Bison carcass" that belonged to her and
that he failed to report that to "the proper authorities[.]" Court Doc. 32 at 21.
Nothing in these allegations, as they are presently stated and even if they are
assumed to be true, gives rise to this Court's subject matter jurisdiction.
Additionally, the claim against Molina is subject to dismissal for the same
reasons set forth above respecting the recommended dismissal of Siemion's claim
against Tribal Defendants Tobacco, Snell, Wilhelm, Bends, V. Hill, and T. Hill.
On the current record, the Court concludes that Siemion has not sought relief in
Tribal Court for the claim she asserts against Molina.
CONCLUSION
After an extensive review of the record and applicable law, this Court finds
Magistrate Judge Ostby's Findings and Recommendation are well grounded in law
and fact and adopts them in their entirety.
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Accordingly, IT IS HEREBY ORDERED as follows:
1.
The motion to dismiss under Rule 12(b)( 1) filed by Defendant Pete
Molina, Court Doc. 34, is GRANTED.
2.
The motion to substitute the United States, to dismiss under Rules
12(b)(1), (6), and (7), and for summary judgment under Rule 56(a)
(on Administrative Procedure Act Claims) filed by Defendants
Debbie Scott, Clara Hugs, Vianna Stewert, Ty Ten Bear, and William
He Does It, Court Doc. 41, is GRANTED.
3.
The motion to dismiss under Rules 12(b)( 1) and (6) filed by
Defendants Cedric Black Eagle, Larry Tobacco, William F. Snell,
III, Cody Wilhelm, Chaz Bends, Vemon Hill, Thomas Hill, and Diane
Cabrera, Court Doc. 42, is GRANTED.
4.
The motion to dismiss under Rules 12(b)( 1), (6), and (7), for
misjoinder of parties under Rule 21, for a more definite statement
under Rule 12(e), and for a determination that the action was brought
for an improper purpose under Rule II(b)(1) filed by Defendants
Patricia Bugas-Harris, Martin Anseth, William He Does It, Phoebe
Knapp-Warren, Paul Warren, Sam Redding, and Leland Walking
Bear, Court Doc. 45, is GRANTED.
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The Clerk of Court
DATED the
all notify the parties of the entry of this Order.
tI'--~
CHARD F. CEBULL
UNITED STATES DISTRICT JUDGE
l3
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