Temple v. Her Many Horses

Filing 228

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT in favor of Defendants against Plaintiff. Signed by U.S. District Judge Charles B. Kornmann on 12/8/23. (SKK)

:"ILED
UNITED STATES DISTRICT COURT

DEC 0 8 21)23

DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

5;I5-CV-05062-CBK

CURTIS TEMPLE,

Plaintiff,
FINDINGS OF FACT,
vs.

CONCLUSIONS OF LAW,AND
LAWRENCE ROBERTS,Assistant

Secretary ofIndian Affairs, Department of

JUDGMENT

Interior, Bureau ofIndian Affairs; TIM

LAPOINTE,Northern Plains Regional
Direetor, Department ofInterior, Bureau of
Indian Affairs; LIONEL WESTON,Branch
of Realty, Pine Ridge Agency, Department
ofInterior, Bureau ofIndian Affairs; and
JOHN LONG,Acting Superintendent ofthe
Pine Ridge Ageney, Department of Interior,
Bureau ofIndian Affairs;
Defendants.

BACKGROUND

This is an aetion for judicial review of agency action as authorized by the
Administrative Procedures Act("APA"), 5 U.S.C. §§ 701-706. All defendants are

employees ofthe United States Department ofInterior, Bureau ofIndian Affairs("BIA").
Plaintiff seeks declaratory and injunctive relief, along with an accounting, damages,
attorney's fees, and eosts arising out ofthe impoundment of his livestock in 2015 and
2016. He contends the actions by defendants were in violation ofthe Constitution,
statutes, regulations, and polieies of the United States.

This action has a tortuous history. In reaching the decisions made herein, I have
considered the entire docket, including a prior Oglala Sioux Tribal Court decision entered

into the reeord, prior transeripts, findings offacts and conclusions oflaw previously

entered in this ease, along with the testimony and evidence received at the eourt trial.

FINDINGS OF FACT

Plaintiff is a cattle rancher. His claims arise out ofthe leasing of various Range

Units on the Pine Ridge Indian Reservation in South Dakota. In an opinion filed in this
case, the Oglala Sioux Tribal Court set forth the very relevant legal and factual

background concerning the leasing of Range Units on the Oglala Sioux Tribe Pine Ridge
Indian Reservation in South Dakota.

Grazing land is one ofthe most valuable assets ofthe Tribe and its
members, and is often a point of contention between tribal ranchers, who
can be described fairly as competitive with eaeh other with regard to leases,
because ofthe value of such leases to tribal members who ranch. Pursuant

to a scheme initiated by the United States of America, grazing land is
divided into Range Units, which are numbered tracts of range land
designated as management units for the administration of grazing privileges
by the Tribe and the United States Bureau ofIndian Affairs (hereinafter
"BIA"). Range Units may consist oftribal trust(or restricted) land,
individual trust(or restricted) land, government land, or any combination
thereof, consolidated for grazing purposes.

Under existing tribal and federal law, the awarding of grazing privileges for Range
Units on the Reservation is earried outjointly by the Tribe and the BIA. In most
cases, grazing privileges are awarded pursuant to the Tribal Grazing Code, O.S.T.
Ord. No. 17- 15, and the federal regulations at 25 C.F.R. Part 166. Under the
Tribal Grazing Code, allocation applications and competitive bids are submitted to
the Oglala Sioux Tribe's Allocation Committee. The Allocation Committee
reviews the applications and bids, makes eligibility determinations, and approves or
denies applications and bids. The decisions of the Allocation Committee are
forwarded to the Superintendent ofthe Pine Ridge Agency ofthe BIA as
recommendations. The Superintendent makes the fmal decisions to award Grazing
Permits, pursuant to the regulations at 25 C.F.R. Part 166.
Under the Tribal Grazing Code, grazing privileges for Range Units are awarded
through an allocation process. Range Units that remain available after the
allocation process are subject to competitive bidding. Tribal member livestock
operators, those with no more than 300 head of livestock, are permitted to use the
allocation process without competitive bidding, while other operators must
compete for Range Units in the competitive bidding process. Preference is given in
the eompetitive bidding process to tribal members with more than 300 head of
cattle. Fraud and false statements in connection with allocation applications and
competitive bids are not permitted.

The Grazing Code provides a comprehensive administrative remedy for an
individual aggrieved by a decision of the Allocation Committee. Under [the 2011
Tribal Grazing Code], the administrative remedy consisted of an appeal to the
Oglala Sioux Tribe Executive Committee. Under [the 2017 Tribal Grazing Code],
the administrative remedy consists of an appeal to an Administrative Law Judge
("ALJ").

An exception to this process exists for Range Units consisting entirely oftribal
trust land. Such Range Units are not included in the Range Management Program
and Grazing Leases for those Range Units are not governed by the Tribal Grazing
Code. Instead, the Grazing Leases are awarded through the Land Office ofthe
Tribe, not the Allocation Committee, and the leases are subject to approval by the
United States pursuant to 25 U.S.C. § 177.

Temple v. GST Allocation Committee, et al.. Oglala Sioux Tribal Court, CIV 13-0533

(August 22, 2019), at pp. 5-6 (filed herein at Doc. 180-1). The evidence received at trial is
consistent with the Oglala Sioux Tribal Court's opinion.

The Oglala Sioux Tribal Court found, and such finding is consistent with the
evidence received at trial in this case, that the plaintiff had grazing permits for, inter alia.
Range Units 169 and P50I which expired on October 31, 2012. He applied for an
allocation ofthose units in 2012 but the Allocation Committee determined that he was

ineligible because he had 1,622 cattle on the Reservation, well over the 300 head
maximum under the Tribal Grazing Code. The Allocation Committee awarded 2012

grazing privileges to another tribal member who had 92 cattle on the Reservation, Donald
"Duke" Buffmgton.

Plaintiff was notified on October 17, 2012, by the BIA that he was not awarded

leases for Range Units 169 and P501 because he was ineligible for those leases. Plaintiff
appealed the decision ofthe Allocation Committee to the Executive Committee.
Following a hearing in March 2013, the Executive Committee denied the appeal. The
Superintendent issued grazing permits to Buffington as requested by the Allocation
Committee for the period November 1, 2012 through October 31, 2017.
Plaintiff filed an appeal ofthe Superintendent's actions to the Great Plains
Regional Office ofthe BIA. The BIA Regional Director denied the appeal in August

2013, and upheld the Superintendent's issuance ofthe grazing permits to Buffmgton.

Plaintiff appealed the Regional Director's decision to the Interior Board ofIndian Appeals
("IBIA")in September 2013. He withdrew that appeal in May 2015.
The BIA manages Range Units for the financial benefit ofthe many joint or
individual owners oftracts in the Range Unit. The BIA issues the permits, invoices the

permittee, and pays over the rents received to the beneficial owners. As part of its trust

responsibilities, the BIA also manages the use ofthe Range Units. BIA rangeland
specialists determine the grazing capacity of trust lands. The permits set forth how many
cattle per acre are allowed to graze each Range Unit to preserve the income producing
capacity ofthe Range Unit for the owners.

Range Unit 169 comprises 1,149.5 acres. The five-year permit stocking rate for
2012-2017 authorized grazing for 30 head of cattle. The total stocking rate for the five-

year permit grazing seasons from 2012 to 2017 was set at 364 head of cattle. The annual
grazing rental(income to the beneficial owners) was $5,802.35.

Range Unit P501 comprises 5,070.72 acres. The five-year permit stocking rate for
2012-2017 authorized grazing for 117 head of cattle. The total stocking rate for the five-

year permit grazing seasons from 2012-2017 was set at 1,409 head of cattle. The annual
grazing rental was $21,786.78.

Plaintiff had grazing permits for Range Units 169 and P501 which expired on
October 31, 2012. He did not remove his cattle from those Range Units, even after the
lease for those units was allocated to another tribal member. The new permittee was

unable to graze his cattle on those Range Units because plaintiffs cattle were grazing on
those units. Then Superintendent Her Many Horses testified in August 2015, that during

the first permit year, the new permittee's cattle "were run off and during the second and
third permit years the new permittee did not try to graze his cattle on his permitted Range
Units because plaintiffs cattle were still there. The BIA was unable to invoice the

permittee for payment because the permittee did not have any use ofthe permitted Range
Units. Plaintiff did not pay for his hold-over use ofthose Range Units. Consequently, the
landowners received no payment from the use oftheir Range Units during those years.
4

Beginning in April 2013, natural resource officers for the Great Plains Region of
the BIA began conducting field checks on those Range Units as a normal part oftheir trust

responsibilities. The BIA used sophisticated GPS devices to determine on what parcel any
particular animal was grazing. The BIA was careful not to count cattle that were
trespassing on parcels in which plaintiff had an ownership interest.

An April 12, 2013, compliance check conducted on Range Unit 169 found 6 cattle
grazing in trespass. Because the brands could not be identified, public notice oftrespass
was issued.

On April 25, 2013, field compliance checks were conducted of Range Units P501
and 169. Plaintiff was notified on April 30, 2013, that 228 head of his cattle were found

grazing in trespass on Range Unit P501 and 56 head of cattle were found grazing in
trespass on Range Unit 169. Plaintiff was directed to remove the trespassing livestock or
impoundment procedures might be implemented.

A May 9, 2013, compliance check found 286 of plaintiffs cows trespassing on

Range Unit P501. Plaintiff was notified by certified mail that he had failed to comply
with the prior notice of trespass and that he was liable for the value ofthe products

illegally removed (eaten by his cattle) plus a penalty oftwice the value. The total due to
the BIA for the continuing trespass was calculated at $5,378.52. Plaintiff was also
notified that his livestock are subject to impoundment after five days without further
notice.

Plaintiff filed suit in the Oglala Sioux Tribal Court against the OST Allocation
Committee and others in 2013 challenging the allocation of grazing permits for Range
Units 169 and P501. He filed two other suits in the Oglala Sioux Tribal Court in 2015 and

2018 challenging the allocation ofthe grazing permits to persons other than plaintiff.

Although the cases were eventually consolidated by the Tribal Court, only the first action
concerns the allocation ofthe grazing permits at issue in this ease.

A compliance inspection was conducted on March 7, 2014, on Range Unit 169 and
127 head of cattle were found to be grazing in trespass. Plaintiff was directed to remove
the cattle or impoundment procedures might be implemented.
5

A September 25th, 2014, eompliance eheck found 177 of plaintiffs cattle dispersed
throughout Range Unit P501. Horses bearing plaintiffs brand were also found grazing on
Range Unit P501. Plaintiff was notified by certified mail that his livestock were in

trespass and must be moved within five days or impoundment procedures might be
implemented. Plaintiff signed the delivery receipt for this notice.
On April 22, 2015, a compliance cheek counted 214 head of plaintiffs livestock
dispersed throughout Range Unit P501. Plaintiff was notified by certified mail that the
cattle were in trespass, that he had three days to remove the livestock, and that if the
livestock are not removed, penalties may be assessed and impoundment and subsequent
sale ofthe trespassing livestock may be necessary.

An April 22, 2015, compliance check ofRange Unit 169 was conducted and 38
head of livestock belonging to plaintiff were found grazing in trespass. Plaintiff was
notified by certified mail on April 27,2015, that he had three days to remove the livestock
are penalties would be assessed and impoundment and sale ofthe trespassing livestock
may occur.

A May 4, 2015, compliance cheek of both parcels was conducted to determine if he
had complied with the April 27, 2015, order to remove livestock. The inspection found 12
head of cattle and 4 horses grazing in trespass on Range Unit 169 and 172 head of
livestock grazing in trespass on Range Unit P501.

Upon motion ofthe plaintiff, the Oglala Sioux Tribal Court issued an emergency
temporary restraining order enjoining the BIA from taking any action respecting
impoundment on May 14, 2015. Although the BIA protested the Tribal Court's
jurisdiction over a federal agency or its employees, the BIA complied with the restraining
order and did not impound plaintiffs cattle.

On June 2,2015, a compliance check of Range Unit 169 was conducted and 92
head of plaintiffs livestock were found still grazing in trespass. On that same date, a
compliance cheek was conducted ofRange Unit P501 and 165 head of plaintiffs livestock
were found grazing in trespass.

Plaintiffs lay advocate (representing plaintiff in the Oglala Sioux Tribal Court in
matters eoneeming the grazing permits) responded to the June 2, 2015, notiee of trespass
on June 5, 2015. In that letter, plaintiff elaimed to own several thousands of acres in
Range Units 169 and P501. The Superintendent ofthe BIA Pine Ridge Ageney, Cleve
Her Many Horses, responded to "eounsel" on July 2, 2015. In that response, plaintiffs
"eounsel" was notified that plaintiff only owned an undivided interest in six tracts in the

two range units totaling 290.85 acres. Plaintiff was notified that he could request that
those aeres be removed from the grazing permits provided that a lease or permit was

developed to provide income to the other benefieial owners ofthose tracts. He was also
notified that he would have to construct a fence around those tracts. Finally, in that letter,

the BIA gave notice that it intended to proceed with trespassing and impoundment
proeedures if plaintiffs trespassing livestock were not removed.
Plaintiff testified that he did notify the BIA that he wanted acres in which he had a
benefieial interest removed from the Range Units and elaimed that he was entitled to graze
his eattle on his own land, notwithstanding any permit issued or not issued. Plaintiff did

not produee any reeord of having made any request to have acres in which he owned a
benefieial interest removed from the Range Units. Plaintiff was unable to articulate the

approximate date he allegedly made the request. It is undisputed that, even if plaintiff did
request to remove the tracts as he contends, plaintiff did not ereet a fence around those

tracts which was required before plaintiff eould graze his cattle on traets eontained within
the Range Units in whieh he had an ownership interest. There was never any eontention
in the record that plaintiff had an agreement to pay the other interested owners in those
traets any rent for plaintiffs use of the tracts.

Plaintiff did not remove his cattle from the range units in response to the July 2,
2015, notiee. On July 8, 2015, a complianee eheck found 236 of plaintiffs cattle grazing
in trespass on Range Unite P501. On that same date, a complianee eheek ofRange Unit
169 was eondueted and one head of plaintiffs eattle was found grazing in trespass.
A eomplianee eheek was eondueted on July 21, 2015, on Range Units P501 and
169. At that time, a total of 100 of plaintiffs cows, bull, and horses were grazing in
7

trespass on Range Unit P501. In addition, 204 head of plaintiffs livestock were observed
grazing on another tract not included in Range Units P501 or 169 but, due to open gates
and cut fences, those animals had unauthorized access to the Range Units.

The Tribal Court dismissed the federal defendants from plaintiffs suits on August
3, 2015,finding no jurisdiction over the United States.

On August 5, 2015, a compliance cheek was conducted on Range Units 169 and
P501 and 267 head of plaintiffs livestock were found to be grazing in trespass.
Additionally, two cows belonging to Trey Temple and Tammy Steele (defendant's son
and his son's mother) were observed.

On August 12, 2015,the BIA sent notice to plaintiffto remove his cattle from the
Range Units or the cattle would be impounded. A compliance cheek was conducted on
August 17, 2015. On Range Unit P501, 204 head of plaintiffs livestock were found to be

grazing in trespass. On Range Unit 169, 28 head of livestock were found grazing in
trespass.

Plaintiff failed to remove his cattle and, on August 19, 2015, the BIA impounded
121 head of cattle, five of which were branded with a brand registered to Trey Temple and

Tammy Steele. No cattle were rounded up and impounded that were, at the time of
impoundment, grazing plaintiffs parcels. Plaintiff filed this federal action the next day.
Plaintiff was notified on August 21, 2015, by certified letter, that 121 head of his
livestock, along with five head registered to Trey Temple and Tammy Steele, were

impounded (the "first impoundment")and would be sold at the Gordon Livestock Auction
unless redeemed. The redemption cost included $26,100.29 for the costs ofimpoundment,
$82,767.39 for the value ofthe forage consumed by the trespassing animals, plus a penalty
of$165,534.78 based upon twice the value ofthe forage, for a total redemption amount of
$274,402.46. Plaintiff was formally notified that the costs for redemption would increase
daily for yardage and feed costs while the livestock were at the holding facility.
On August 27, 2015, and August 31, 2015, now retired U.S. District Judge Jeffrey
L. Viken held two days of hearings on plaintiffs request for a temporary restraining order
as to the first impoundment. Following post hearing briefing and supplementation of the
8

record, on February 19, 2016, Judge Viken issued a memorandum opinion and order
denying plaintiffs motion for a temporary restraining order. Temple v. Her Many Horses,
163 F. Supp.Sd 601 (D.S.D. 2016).

On September 3, 2015, the cattle impounded during the first impoundment were
moved from the Gordon Livestock Auction to Johnson Ranch near Crawford, Nebraska.
The Gordon Livestock owner told the BIA he did not want to sell the cattle because he

feared litigation if he continued to be involved in this matter.
Also on September 3, 2015, plaintiff appealed the impoundment to the Great
Plaines Regional Director ofthe BIA.

When the impounded cattle arrived at Johnson Ranch,they were tested pursuant to
Nebraska livestock import regulations. One ofthe bulls tested positive for
Triehomoniasis, a contagious disease. Nebraska state regulations required quarantine and
destruetion ofthe infected bull and any bull subsequently testing positive. Any exposed
breeding female cattle was required to be sold for slaughter. At that point, the infected as
well as exposed eattle eould not be returned to South Dakota.

There was some ineonsisteney in the record as to how many cows and bulls were
impounded. The BIA clarified on October 26, 2015, that 114 cattle were originally
eorralled, that ten animals entered the corral while the brand inspector was working, and

three animals escaped. The total number of animals impounded was 121, five of whieh
belonged to Trey Temple and Tammy Steele, who had not sought return oftheir eattle.
Following impoundment, eattle died, calves were bom, and one infected bull was
destroyed.
Although plaintiff maintained without any evidentiary basis throughout this
litigation that the actions of the defendants resulted in the infection of his cattle with

Triehomoniasis, the record shows that some of the plaintiffs cattle that remained in South

Dakota also tested positive. Although the cattle were not tested when they were removed
from the Pine Ridge Indian Reservation prior to transport to Gordon, Nebraska, there is
nothing in the record to suggest that any aetions ofthe defendants eaused or resulted in the

infection of the cattle or bulls impounded.
9

The Nebraska Department of Agriculture, the owner of Johnson Ranch, and his
neighbors were concerned about the delay in the disposition of plaintiffs infected/exposed
cattle. Due to the defendant's request for a TRO,the BIA was prevented from proceeding

with the disposition ofthe cattle until Judge Viken issued his decision denying plaintiffs
request for injunctive relief.

While the first impoundment was being litigated, the BIA continued to conduct
compliance checks which found that plaintiff continued to graze his cattle in trespass on
Range Units 169 and P501. On September 16, 2015, compliance checks were conducted
on Range Units P501 and 169. Eighty-one head oflivestock belonging to plaintiff were

found grazing in trespass on Range Unit 501, along with two cows belonging to Trey
Temple and Tammy Steele. A September 16, 2015, compliance check was conducted and
81 head of livestock belonging to plaintiff were grazing in trespass on Range Unit P501,
along with two head of cattle belonging to Trey Temple and Tammy Steele.
On September 23, 2015, compliance checks were conducted on Range Units P501
and 169 and 32 head of livestock belonging to plaintiff, along with one cow belonging to

Trey Temple and Tammy Steele, were found grazing in trespass on Range Unit P501.
Two days later, a compliance check was conducted and 50 head of livestock belong to

plaintiff. Trey Temple, and Tammy Steele were found grazing in trespass on Range Unit
P501.

Compliance checks were conducted on Range Units P501 and 169 on October 30,
2015. Cows found grazing in trespass belonging to plaintiff numbered 32 on Range Unit
P501 and eight on Range Unit 169. A compliance check conducted on November 10,
2015, on Range Unit 169 found 19 cows grazing in trespass.

On February 2, 2016,the South Dakota Assistant State Veterinarian issued a herd
disposition plan for plaintiffs cattle. Both the part of the herd being held in Nebraska and
the part ofthe herd remaining in South Dakota on Range Units 169 and P501 had tested
positive for Trichomoniasis, and South Dakota considered the cattle owned by plaintiff as
essentially one herd.

10

Plaintiff continued to graze his cattle in trespass on Range Units 169 and P501. A
February 7, 2016, compliance check found 224 head of livestock grazing in trespass on
Range Unit 169 and 16 head of livestock grazing in trespass on Range Unit P501.
Plaintiff was ordered on February 24, 2016, to remove his unauthorized livestock
or show why the livestock had any right to graze on the Range Units. On March 2, 2016,

the BIA conducted compliance eheeks on Range Units 169 and P501 and found plaintiffs
cattle grazing in trespass.

On Mareh 9, 2016, the BIA notified plaintiffthat the BIA intended to proceed with

trespass and impoundment proeedures for the continuing trespasses on Range Unit 169 if
the trespassing cattle were not removed. The BIA also notified plaintiff ofthe South
Dakota Assistant Veteraniarian's herd disposition plan whieh is applicable to plaintiffs

cattle grazing on Range Unit 169. The same notice was provided to plaintiff on March II,
2016, as to Range Unit P501. Pursuant to the plan, the infected bull was destroyed.
Infected cattle had to be sold for slaughter. Cattle that were exposed but not infeeted had
to be sold with a disclosure that they came from an infected herd.
On Mareh 14, 2016, the Great Plains Regional Director ofthe BIA issued a

decision on plaintiffs appeal ofthe first impoundment. The Regional Direetor found that

the reeord supports that plaintiffs eattle were grazing in trespass, that plaintiff was
provided with adequate pre-impoundment notice consistent with the regulations, and
plaintiffs due process rights were not violated when his livestock was impounded. The
Regional Director held, however, that plaintiffs ehallenge to the monetary levies arising
out ofthe first impoundment was not ripe.

Following the resolution of plaintiffs administrative appeal and Judge Viken's
denial of an injunction preventing the sale ofthe eattle from the first impoundment on
March 15, 2016, the BIA sent to the plaintiff a notice of sale and procedures to redeem the
portion ofthe herd held in Nebraska. The redemption amount was set forth with
specificity as to the value of produets illegally removed and the penalty assessed as to
each tract per years 2013, 2014, and 2016. The total amounted to $246,383.55 plus
enforcement and impoundment eosts whieh had substantially increased to $72,763.20.
11

Public sale ofthe cattle from the first impoundment was seheduled to take place at

the Platte Valley Livestoek Auction but the sale bam backed out ofthe sale when

plaintiffs tribal lay advoeate sent an email to the sale bam on March 16, 2016,falsely
stating that the Court denied permission to sell the cattle, advising Platt Valley Livestock
that it may be liable, and threatening legal aetion if it chose to sell plaintiffs cattle. On
Mareh 17, 2016, Judge Viken entered an order making clear that the BIA was entitled to
continue the standard processing of plaintiffs impounded cattle, including sale. Judge
Viken cautioned the plaintiffs tribal advocate against acting as plaintiffs attomey on
matters outside oftribal court.

On March 25, 2016,the livestock were offered for sale by sealed bids to be opened

April 6, 2016. The slaughtered bull was offered for sale separately. The BIA sold

plaintiffs cattle jfrom the first impoundment for $72,658.35. Plaintiffs lienholder. Bank
ofthe West, submitted a claim for all the proeeeds from the sale ofthe cattle from the first

impoundment cattle and all sale proceeds were paid over to the lienholder.
On or about April 11, 2016, plaintiff filed a notice of appeal to the Interior Board of
Indian Appeals from the March 14, 2016, Regional Director's decision on plaintiffs
administrative appeal ofthe first impoundment. That appeal is still pending and the IBIA
has issued no mling on that appeal.

The BIA Superintendent ofthe Pine Ridge Ageney issued a final assessment of
damages, costs, and penalties from the first impoundment on September 28, 2016, in the
amount of$236,931.29. Plaintiff did not timely appeal that decision to the Regional

Director within 30 days and that notice became the final agency decision as to the first
impoundment.

On June 21, 2016, the BIA impounded 241 head of cattle from Range Unit P501

that had been trespassing on both Range Unit 169 and P501 (the "second impoundment").
Plaintiff was notified by the Superintendent ofthe Pine Ridge Agency ofthe sale
scheduled for June 29, 2016, and his right to redeem the cattle by paying the value of the
forage illegally removed plus penalty in the amount of$59,174.37 and costs of
$14,824.02.
12

The cattle impounded on June 21, 2016, were held at the Mitchell Livestock
Auction. On June 28, 2016, plaintiff filed a complaint against the Mitchell Livestock
Auction in South Dakota Circuit Court, Fifth Judicial Circuit, Davison County, 17CIV16-

000175, alleging that the proposed sale of his cattle was illegal and requesting a temporary

restraining order prohibiting the sale. Mitchell Livestock Auction informed the BIA that it
would not be involved in the sale of plaintiffs cattle.
On June 29, 2016, plaintiff administratively appealed the second impoundment to

the Regional Director ofthe Great Plains Office ofthe BIA. The Regional Director held,
in his July 18, 2016, decision, that the impoundment and pending sale ofthe livestock is
not appealable and the calculation of damages, costs, and penalties is not ripe for appeal.
The Regional Director notified plaintiff that he could appeal the Regional Director's
decision to dismiss his premature appeal to the Interior Board ofIndian Appeals within 30
days.

On August 18, 2016, plaintiff filed a notice of appeal to the Interior Board ofIndian

Appeals from the July 18, 2016, Regional Director's decision on plaintiffs administrative
appeal ofthe second impoundment. That appeal is still pending and the IBIA has issued
no ruling on that appeal.

The public sale ofthe cattle from the second impoundment was not conducted. On
September 19, 2016, plaintiff filed in this matter a request for a restraining order to

prevent the sale of his cattle, objecting to the method and timing ofthe notice of sale.
Judge Viken denied the motion for a restraining order.
The livestock were scheduled to be sold by sealed bids to be opened September 21,
2016, and subsequently continued to November 16, 2016. The redemption amount was
$147,887.23, owing to the substantially increased pasturihg costs. On November 16,
2016, plaintiff redeemed the cattle associated with the second impoundment.
The BIA Superintendent ofthe Pine Ridge Agency issued a final assessment of
damages, costs, and penalties from the second impoundment on January 3, 2017, in the

amount of $39,133.40 for the care of 110 head of cattle which were not immediately
claimed by defendant when he redeemed the other cattle impounded. Plaintiff did not
13

timely appeal that final assessment to the Regional Director within 30 days and that
assessment became the final agency decision as to the second impoundment.
On March 22, 2017,the BIA sent notices to counsel for the plaintiff advising

plaintiffthat the unpaid indebtedness from the two impoundments could result in the
BIA's refusal to issue any grazing permits to plaintiff. Plaintiff was further notified that
the BIA will utilize collections techniques including the Treasury Offset Program. On

June 22, 2017,the Department ofthe Treasury issued a collection notice to plaintiff. On
July 25, 2017, plaintiffs lay tribal advocate sent a letter to the United States Treasury

stating that he represented plaintiff, denying that he or plaintiff were aware of any debt,
and threatening to file a $600 billion lawsuit against the BIA.

On September 20, 2017, plaintiff, through counsel, filed a federal tort claim action
arising out ofthe foregoing events seeking $552,025.00 in damages, 5:17-cv-05075-CBK.
That ease was previously assigned to Judge Viken and was stayed pending resolution of
this matter. Counsel has moved to withdraw in that case, claiming Temple has failed to

pay legal fees of more than $100,000.00.

Pursuant to plaintiffs letter request ofNovember 4, 2016, trust status of a total
11,374.30 acres contained in 58 separate parcels which plaintiff owns in fee was
terminated and those acres were removed from the Range Unit Program on March 21,
2017. Plaintiff was reminded that, if he is not the grazing permittee of a particular range

unit, he would have to fence his deeded lands which were geographically contained in a
range unit.

Pursuant to the BIA's trust responsibility, on September 29,2015,the Regional
Range Management Specialist, conducted a grazing assessment of Range Units 169 and
P501. He concluded that, based upon overgrazing conducted by plaintiff, the grazing

capacity ofRange Unit 169 should be reduced from 30 animal units to 23 animal units and
the grazing capacity ofRange Unit P501 should be reduced from 117 animal units to 97
animal units.

The Regional Range Management Specialist conducted another inspection of
Range Units 169 and P501 and, on August 3, 2016, the Inspector notified the
14

Superintendent ofthe Pine Ridge Agency that, due to excessive overgrazing, sometimes
by as many as 7.5 times the allowable head of cattle, he had changed his September 29,

2015, grazing recommendation. The Specialist now recommended that there be no
grazing on Range Unit 169 for the remainder of2016 and until at least June 15, 2017, to

allow the Range Unit to recover from overgrazing. The Specialist recommended there be
no further grazing on a portion of Range Unit P501 until 2017 due to heavy use. That
heavy use was caused by plaintiff grazing without authority.

Plaintiff claims that his impounded cattle were grazing his land as he was entitled
to do. Plaintiff did not own the acres in question but, rather, had an undivided interest in
those acres along with other interest owners. There is no record that plaintiff received

permission from the other owners or ever paid them for the use plaintiff made of those
acres. In any event, the acres in which plaintiff had a beneficial interest were part ofthe
Range Units and were controlled by the permits. After the expiration ofthe permits in

2012, plaintiff had no right to graze his cattle on Range Units 169 or P501.
Range Unit 169 had an authorized stocking rate of30 head of cattle. Range Unit

P501 had an authorized stocking rate of 117 head of cattle. The record is replete with
evidence that plaintiff almost continually allowed his cattle to graze in trespass in numbers

greatly exceeding the capacity of those range units.
Plaintiffs claim that it was his intention that his cows only graze on "his" land is

ludicrous since there were no fences to keep his cattle from grazing the entire Range Units
and his cattle enormously exceeded the grazing capacity ofthe acres in which he had an
interest.

Plaintiffs over-grazing ofthe Range Units resulted in long term damage to the
grasses. The BIA was required to reduce the stocking rate-the number of cattle allowed

to graze each unit- in an effort to allow the Range Units to recover. This reduction
resulted in less income to the beneficial owners.

The Tribal Court found that plaintiff submitted applications and bids for grazing
privileges for several Range Units in January 2018. Plaintiff was notified on February 5,
2018, by the BIA that he was ineligible to receive grazing permits because he owed
15

$355,531.40 to the BIA which was attributable to trespass fees, penalties, damages, and

costs assessed against plaintiff by the BIA for trespassing livestock on Range Units 169
and P501. Plaintiff appealed that decision to an A.L.J. as required by the 2017 Tribal

Grazing Code. In March 2018, the A.L.J. upheld the decision not to award grazing
permits to the plaintiff, finding that the Grazing Code's provision that delinquency on an
outstanding debt to the BIA precludes an award of any grazing permit is "mandatory."
In March 2018, plaintiff again applied for an allocation of grazing privileges for

several Range Units. His application was denied by the Allocation Committee less than
one week later based upon his outstanding debt to the BIA. The BIA notified plaintiff of
the decision to deny grazing permits to him and plaintiff appealed to the A.L.J. In
October 2018, the A.L.J. affirmed the decision ofthe Allocation Committee.
PRIOR CASE DECISIONS

As set forth previously, plaintiff instituted this action on August 20, 2015,

following the first impoundment of his cattle. He moved for a temporary restraining order
preventing the sale or disposition ofthe cattle impounded. Two days of hearings were
conducted in August 2015,following by extensive briefing and supplementation ofthe
record. Defendants filed a motion to dismiss which was also followed by briefing. On

February 19, 2016, Judge Viken issued an opinion and order denying plaintiffs motion
for a temporary restraining order and dismissing plaintiffs claims as to pre-impoundment
conduct(the issuance ofthe permits to some other person instead ofto plaintiff) and as to
the BIA's monetary assessments arising out ofimpoundment. Temple v. Her Manv
Horses, 163 F.Supp.3d 602(D.S.D. 2016).

Following the second impoundment in June 2016, plaintiff filed on September 19,
2016, a motion for a temporary restraining order preventing the sale and disposition ofthe
cattle impounded. A hearing was held on September 22, 2016. During that hearing.

Judge Viken denied the motion for a temporary restraining order and ordered plaintiffto
file an amended complaint to properly bring matters relating to the second impoundment
before the Court. Plaintiff filed an amended complaint on October 7, 2016, adding three

16

new parties and 15 new claims. Defendants filed motions to dismiss and for partial
summary judgment. Defendants also filed an answer, thus allowing discovery to proceed.
While the pending motions were being briefed, plaintiff was charged in 5;17-cr50062-JLV with destruction of government property - willfully injuring and committing

depredation by overgrazing and overstocking range units. This case was stayed pending
resolution ofthe criminal case. The criminal case was dismissed upon motion ofthe

government on May 24, 2018, and the stay in this case was lifted on that same date.
Judge Viken issued a decision on August 29, 2018, on the pending motions.
Temple v. Roberts. 2018 WL 4120036(D.S.D. 2018). Judge Viken held that the

amended complaint failed to detail the conduct ofthe specific defendants which allegedly
violated regulatory, statutory, or constitution provisions. Judge Viken described the

allegations ofthe amended complaint as "shotgun pleading" and the claims raised as
"kitchen-sink" filing. Judge Viken ordered plaintiff to file a second amended complaint to
cure the deficiencies. Judge Viken further held that the Court's February 2016, order
"constitutes the law ofthe case and it must 'govern the same issues in subsequent stages in

[this] case.' In re Tri-State. 885 F.Bd at 533. The 'subsequent stages' include amended
pleadings and eventual trial. Id." Judge Viken held that the law ofthe case doctrine

prevents plaintiff fi"om relitigating claims relating to pre-impoundment conduct or the
BIA's assessment and damage calculations.

Plaintiff filed a second amended complaint on October 2, 2018. Defendants filed a
motion to dismiss and an answer. On September 13, 2019, Judge Viken issued his order
on the motion to dismiss. Temple v. Roberts. 2019 WL 4773929(D.S.D. Sept. 30,

2019). Judge Viken referred to the findings of fact set forth in Temple v. OST Allocation
Committee, et al.. Oglala Sioux Tribal Court, CIV 13-0533(August 22, 2019), at pp. 5-6
(filed herein at Doc. 180-1). I also relied upon that Tribal Court decision herein.
Judge Viken reiterated his earlier decision that exhaustion was not required of

plaintiffs claims related to impoundment of his livestock. Judge Viken held the earlier
ruling was the law ofthe case. Plaintiff nevertheless filed appeals to the IBIA ofthe

17

BIA's trespass and impoundment decisions. Judge Viken determined that the case should
be stayed pending resolution ofthe appeal process.

In the second amended complaint, plaintiff again raised claims as to the BIA's
assessment of costs, damages, and penalties in relation to the findings oftrespass and the
impoundments. While noting that plaintiff did not appeal the final monetary assessments
to the Regional Director, Judge Viken noted in the September 30, 2019, decision that

plaintiff appealed issues as to preliminary monetary assessments to the IBIA. Judge
Viken stayed plaintiffs claims as to the assessments, concluding that the IBIA would rule
whether plaintiff had exhausted the claims in filing an appeal prior to the final assessment
decisions.

Judge Viken dismissed claims in the second amended complaint which alleged the
BIA violated the regulations requiring a public sale when sales were ultimately

accomplished by sealed bidding. Judge Viken held that plaintiff never appealed the
notices of sealed bids to the BIA and had thus defaulted those claims.

Plaintiff alleged in his second amended complaint a claim that the BIA had
wrongly refused to conduct a survey to identify allotted parcels contained in the range
units in which he had an interest. Plaintiff has claimed since the inception of the trespass

notices that he owns land within the range units and cannot be in trespass for grazing his

cattle on his own land. Judge Viken dismissed this claim because plaintiff did not present
his claim to the BIA and failed to administratively exhaust his survey claim.

Judge Viken had dismissed plaintiffs claim in his original complaint that the
Oglala Sioux Tribe and the BIA improperly deprived him of grazing permits. Plaintiff
reasserted that claim in the second amended complaint. Judge Viken dismissed plaintiffs

pre-impoundment conduct claims asserted in the second amended complaint.
In the second amended complaint, plaintiff alleged that defendants had been
negligent in exposing his impounded cattle to disease and increased impoundment costs.
Negligence claims are not cognizable in an APA action. Judge Viken did not strike or
dismiss plaintiffs references to negligence, finding that such references were in the nature
of inartful pleading.
18

In the second amended complaint, plaintiff seeks, inter alia, a money judgment for
the value ofthe cattle impounded. Judge Viken noted that claims for money damages are

not cognizable in an APA action. However, Judge Viken held that plaintiff is merely
seeking recovery of moneys paid to redeem his cattle in the form of a refund. Judge
Viken did not dismiss plaintiffs prayer for money damages.
Defendants twice asserted that the United States or the Department ofthe Interior
should be substituted for the individual federal defendants who were all sued in their

official capacities. In response, plaintiff sought to amend his complaint yet again to assert

personal capacity claims. Judge Viken denied plaintiffs request to amend his complaint
yet again but did not foreclose the possibility after the IBIA issued its decision.
CONCLUSIONS OF LAW

I take judicial notice of and adopt the conclusions of law previously entered by

Judge Viken, with the exception ofthe decision to stay plaintiffs claims regarding the
monetary assessments pending determination by the IBIA as to the exhaustion issue.
1. Jurisdiction.

A. Pre-impoundment Claims.

Judge Viken held, in his February 19, 2016,opinion and in his September 30,2019,

opinion that this Court does not have jurisdiction to adjudicate plaintiffs pre-

imppundment claims relating to the allocation oftribal grazing permits. Id. at 615-616.
All such claims were dismissed from this suit.
B. Exhaustion.
1. Financial Assessments.

It is a well-established doctrine that federal administrative remedies which are

prescribed by the Department ofInterior must be exhausted before a party may seek
judicial relief. Chase v. Andeavor Logistics. L.P.. 12 F.4th 864, 868 (8th Cir. 2021). See
also, Grondal v. United States. 37 F.4th 610, 619(9th Cir. 2022)(exhaustion required

pursuant to 25 C.F.R. § 2.4). The defendants contended in their motions to dismiss that
that this Court did not have subject matter jurisdiction to resolve plaintiffs claims

challenging the BlA's assessment of penalties, costs, and damage calculations because
19

plaintiff did not exhaust his administrative remedies. Judge Viken initially held that
plaintiff was required to exhaust those remedies through administrative appeal. Temple v.
Her Manv Horses. 163 F.Supp.Sd at 616. However, in his September 30, 2019, opinion,
Judge Viken deferred to the IBIA to determine whether plaintiffs notiees of appeal ofthe
preliminary assessments was suffieient exhaustion. Temple v. Roberts, 2019 WL
477392, at *5.

During the pendency ofthis litigation, plaintiff appealed the preliminary decisions
ofthe Superintendent ofthe Pine Ridge Agency as to each ofthe impoundments to the
Great Plains Regional Director. The Superintendent ofthe Pine Ridge Agency

determined that the findings oftrespass and subsequent impoundments were proper but

that any appeal ofthe amount demanded to redeem the cattle was premature until the final
assessment. The final assessment as to the first impoundment was issued by the

Superintendent on September 28,2016. The final assessment as to the second
impoundment was issued by the Superintendent on January 3, 2017. In both ofthose
notiees, plaintiff was advised that he could appeal the final assessment to the Regional
Director. There is no evidence that plaintiff ever did file an administrative appeal to the

Regional Director as to the monetary assessments for the two impoundments. It is unclear
whether he attempted to amend his appeals to the IBIA to include an appeal ofthe final
monetary assessments.

The Department ofInterior Bureau ofIndian Affairs regulations are found at Title
25 ofthe Code of Federal Regulations("CFR"). Pursuant to 25 CFR § 2.6(a)(2016),
"[n]o decision, which at the time of its rendition is subject to appeal... shall be
considered final so as to constitute Departmental action subject to judicial review under
5 U.S.C. 704" unless "public safety, protection oftrust resources, or other public exigency

requires that the decision be made effective immediately." The regulations concerning
grazing permits are set forth at 25 CFR Part 166. Pursuant to 25 CFR § 166.3, appeals
from decisions ofthe BIA under Part 166 are taken pursuant to 25 CFR part 2. Trespass

determinations and final financial assessments for trespass must be administratively
appealed to authorize judicial review under the APA.
20

Plaintiff was specifically advised by the Regional Director in response to plaintiffs
appeal ofthe trespass determinations and impoundment actions that his appeal ofthe
monetary assessments was premature. He was specifically advised by the Superintendent

in the final notice of assessing monetary penalties that such final notice was appealable to
the Regional Director. The regulations require exhaustion by appeal to the Regional
Director and plaintiff was aware that he could so appeal. His claims regarding the
assessment of penalties are dismissed.
2. Impoundment.

The record is clear in this case that plaintiff did appeal the findings made by the

Superintendent ofthe Pine Ridge Agency that plaintiffs cattle were grazing in trespass
and the subsequent impoundments and sales. The Regional Director ofthe Great Plains
Region reviewed the Superintendent's decision and held that plaintiffs cattle were in fact
trespassing, that impoundment was proper, and that his decision on those matters was a
final agency action.
On September 30, 2019, Judge Viken issued an order on the motion to dismiss the

second amended complaint filed in this action. Temple v. Roberts. 2019 WL 4773929.
Judge Viken noted that he had previously ruled that plaintiffs '"Fifth Amendment due
process claims relating to the impoundment of his cattle' and his 'APA claim stemming

from the impoundment' were exempt from the exhaustion requirement." Temple v.
Roberts. 2019 WL 4773929, at *2. Judge Viken held that, since the plaintiff elected "to

proceed with the administrative appeal process, the court finds it is appropriate to stay
consideration ofthe impoundment claims pending resolution ofthe IBIA appeals." Id.
Four years after this case was stayed by Judge Viken to allow the IBIA to resolve

plaintiffs claims, the IBIA had still not issued any action on the plaintiffs appeals. I
previously ruled, as had Judge Viken, that plaintiff was not required to exhaust the claims
that remained in this case. If however, exhaustion was required, including appeal to the
IBIA,I found that such exhaustion is futile. No federal agency should be allowed to

interfere with the timely administration of federal court cases. The delay by the IBIA is
arbitrary and capricious. As is often said, "justice delayed is justice denied."
21

The exhaustion doctrine allows the agency to develop facts that may be necessary

to resolve the legal issues between the parties. However,the IBIA did not develop any

facts and decide the appeal despite the passage of8 years since plaintiff filed the first

appeal from the first impoundment. As I previously held, further exhaustion, even if
normally required, is entirely futile in this case. I have not heard of any such dilatory
practices by any other court.
"Judicial review under the Administrative Procedures Act is ordinarily 'limited to

the administrative record that was before the agency when it made its decision,'

precluding a court from 'conducting a de novo trial and substituting its opinion for that of
the agency.'" McClung v. Paul, 788 F.3d 822, 827(8th Cir. 2015)(quoting Vovageurs
Nat'l Park Ass'n v. Norton. 381 F.3d 759,766 (8th Cir.2004)). The agency did not

develop a factual record in this case. Plaintiff did not have a venue to present evidence
and there has been no administrative review of the actions taken by the BIA in this case.

Therefore, this Court conducted a bench trial to allow the parties to present facts necessary
for a determination of the issues in this case.

II. Sovereign Immunity.

Judge Viken held in his February 19, 2016, opinion that sovereign immunity does
not bar plaintiffs claims under the Administrative Procedures Act("APA"), 5 U.S.C.
§ 702, and his claims that his cattle were impounded in violation of his constitutional right
to Due Process. Temple v. Her Manv Horses. 163 F.Supp.3d at 617-620. Specifically,
Judge Viken held that the district court had jurisdiction to review actions taken by
defendants pursuant to the American Indian Agriculture Resource Management Act
("AIARMA"),25 U.S.C. § 3701 et seq., and the regulations governing trespass issued
thereunder as required by 25 U.S.C. § 3713. Temple v. Her Manv Horses, 163 F.Supp.3d
at 619. I join in that decision.
III. Fifth Amendment Claim.

Plaintiff sought preliminary injunctive relief preventing the sale or disposition of
his cattle on the basis that he had been denied an opportunity to contest the finding that his
cattle were grazing in trespass and was denied a pre-deprivation hearing prior to
22

impoundment. Judge Viken analyzed the issue whether the BIA's impoundment
regulations failed to provide Due Process and found that "Mr. Temple failed to
demonstrate he is likely to succeed on the merits of his Fifth Amendment due process
claim relating to the BIA's impoundment regulations." Temple v. Her Many Horses, 163

F. Supp. 3d at 625. That finding was preliminary and this Court will further address
plaintiffs Due Process claims. Judge Viken held, however, that the "BIA provided Mr.

Temple with constitutionally adequate notice ofthe impoundment of his livestock." Id. at
626. That is the law ofthe case as to notice.

The APA mandates that the reviewing court to "hold unlawful and set aside agency

action, findings, and conclusions found to be ... contrary to constitutional right, power,

privilege, or immunity." 5 U.S.C. § 706(2)(B). The Fifth Amendment to the United
States Constitution provides no person shall "be deprived of life, liberty, or property,
without due process of law[.]" U.S. Const, amend. V. Plaintiffs Fifth Amendment
challenge is reviewable under the APA.

The United States Court of Appeals for the Eighth Circuit's decision in Jones v.
Freeman,400 F.2d 383 (8th Cir. 1968)is dispositive. That case concerned United States

Department of Agriculture, Forest Service regulations as to trespassing livestock in
National Forests found, at that time, in 36 C.F.R. § 261 et seq. The regulations concerning

trespassing livestock provided for notice oftrespass and direction to remove trespassing
animals along with a warning that trespassing animals may be impounded, and provisions
for the sale of or redemption ofthe impounded animals. Jones v. Freeman, 270 F.Sup..
989, 992(W.D. Ark. 1967). The case arose "out of the efforts of the United States Forest
Service to keep razorback hogs from foraging in the Ozark National Forest." Jones v.
Freeman, 400 F.2d at 385.

The Eighth Circuit held in Jones v. Freeman, inter alia, that the agency actions in

impounding and assessing expenses taken pursuant to the Forest Service regulations are
judicially reviewable. Jones v. Freeman,400 F.2d at 390. "Since, incident to judicial
review, the plaintiffs will be entitled to a trial de novo ifthere is no administrative hearing.

23

we need not consider whether the failure to provide an administrative hearing is a denial
of due process." Id.
In McVav v. United States, 481 F.2d 615 (5th Cir. 1973), the United States Court

of Appeals for the Fifth Circuit cited the Eighth Circuit's opinion. That case concerned
the same Forest Service regulations as to trespassing livestock in National Forests found,
at that time, in 36 C.F.R. § 261 et seq.

Defendant McVay was notified on August 2, 1972 by the Forest Supervisor for the
Kisatchie National Forest in Louisiana that his cattle had been observed on

National Forest land without authorization or permit, and he was informed that he
had until August 11 to remove them or they would be impounded. On August 22,
the Forest Service, acting under authority ofthe regulation, 36 C.F.R. § 261.13(a),
impounded nine of McVay's cows which were found on National Forest land.
Though given an opportunity to do so, including a conference with McVay's
attorney relative to redemption ofthe impounded cattle upon payment ofthe
Government's expenses, appellant did not redeem his cows. On August 24, a notice
was published in the Alexandria, Louisiana, daily newspaper to the effect that on
August 29 the impounded cows would be auctioned at public sale. McVay then
filed the instant suit on August 25 for injunctive relief, alleging that the regulation
under which the cattle had been impounded was unconstitutional, in violation ofthe
Fifth Amendment, because it allegedly did not provide for notice and a hearing
prior to impoundment or for an opportunity to contest the validity ofthe expenses
incurred. A hearing was held by the district court on August 31 and its ruling was
made on September 1, 1972, denying the requested injunction. In the meanwhile,
the sale scheduled for August 29 had been cancelled because of pendency ofthe
suit and the notice was republished for the public auction to be held on September
5, 1972.

The facts of McVav v. United States are strikingly similar to what occurred in this case.

In the present case the applicable regulations promulgated by the Secretary of
Agriculture provide for notice by registered mail to the owner ofthe livestock
found trespassing on National Forests, the owner being given five days after date of
the written notice of the trespass to remove his cattle or impoundment would
follow. 36 C.F.R. § 261.13(a). Upon impoundment ofthe livestock no sale shall
be made until at least five days have elapsed and the owner may redeem his
livestock within that period by submitting proof of ownership and paying the
Government's expenses. 36 C.F.R. § 261.13(d). Thereafter, ifthe livestock are not
redeemed within the date fixed for their sale, they shall be sold at public auction to
the highest bidder. 36 C.F.R. § 261.13(e). It appears that McVay had ample time

from the date he was first notified on August 2, 1972, until September 5, 1972,
when the public auction occurred, to redeem his cows but that he failed to do so.
24

* **

The Secretary of Agriculture is authorized by Congress to make such rules and
regulations as are necessary to prevent trespassers and otherwise regulate the use
and occupancy of property in the public domain, including the National Forests.
Seel
§§ 1010, 1011(f); 16U.S.C. § 551. The Eighth Circuit has had
occasion to consider the question involved and has upheld the constitutionality of
the regulation, including the remedy ofimpoundment. See Jones v. Freeman, 8
Cir., 1968, 400 F.2d 383, 388-389.
McVav V. United States, 481 F.2d at 616-17.

The United States Court of Appeals for the Ninth Circuit's decision in Klump v.
Babbitt. 108 F.3d 1385, 1997 WL 121193 (9th Cir. 1997), concerning similar provisions
in the Bureau of Land Management regulations is instructive.

Although the fundamental requirement of due process is notice and opportunity to
be heard, Mullane v. Central Hanover Bank & Trust Co.,, 339 U.S. 306, 314(1950),
a predeprivation hearing is not required in all circumstances. See Logan v.
Zimmerman Brush Co., 455 U.S. 422,428(1982). The process that is required in a

particular context depends on a balancing ofthe following factors:(1)the
importance ofthe private interest and the length or finality ofthe deprivation;(2)
the likelihood of government error; and(3)the magnitude ofthe governmental
interest. Id.

Although Klump's interest in maintaining his property rights to the impounded
cattle is substantial, especially because cattle are potential income-generating
animals. Porter v. Diblasio, 93 F.3d 301, 306 (7th Cir.1996), the risk of
governmental error is relatively low. The regulations require the BUM to give the
owner ofthe unauthorized livestock several notices prior to impounding the
offending livestock, including a trespass notice and order of removal, and a notice
ofintent to impound. See 43 C.F.R. §§ 4150.2, 4150.4-1. In addition, the trespass
notice gives the alleged violator a[n] opportunity to present evidence that there is
no violation. See 43 C.F.R. § 4150.2. Once the livestock is impounded, the
regulations allow the owner to redeem the livestock at any time before they are sold
at public auction. See 43 C.F.R. § 4150.4^.

Moreover, the government has a substantial interest in preserving the integrity of
the public land. See Utah Power & Light Co., 243 U.S. 389, 404-05 (1917); see
also Nevada V. Watkins, 914F.2d 1545, 1552-53 (9th Cir.1990). Because the
government has a substantial interest in protecting the public land, and the
regulations require notice and an opportunity to demonstrate that the livestock is
(sic) not in trespass before it (sic) is impounded, we agree with the district court
25

that the BLM impoundment regulations do not violate Klump's Fifth Amendment
right to due proeess. See Goichman v. Rheuban Motors, Inc., 682 F.2d 1320,
1323-24 (9th Cir.1982)(due proeess elause does not entitle the owners oftowed
vehicles to an immediate hearing).
Klump V. Babbitt. 1997 WL 121193, at *2.

Klump V. Babbitt concerned the United States Department ofInterior Bureau of
Land Management("BLM")unauthorized grazing regulations at 43 CFR § 4150 etseq.

Those regulations referred to "unauthorized grazing" instead of using the term "trespass."
However,the BLM regulations at issue in Klump v. Babbitt mirror the notice and order to

remove, impoundment, and sale or disposal provisions in the BIA regulations at issue in
this case.

Although Klump v. Babbit was unpublished, the Ninth Circuit cited that ease as

controlling in Yowell v. Abbev, 532 F. App'x 708, 710(9th Cir. 2013), for the rule that
"the BLM was not required to provide a pre-deprivation hearing" as to BLM
impoundment proceedings.

I find that the BlA's actions in providing notices oftrespass, impoundments, sale of

plaintiffs livestock, and assessments of penalties which were taken in this case pursuant
to the BIA's trespass regulations did not violate plaintiffs right to due process. Plaintiff
has cited no case law to the contrary.

Plaintiff failed to take advantage ofthe many opportunities provided in the notices

to cure the trespass or give sufficient written notice of a legal right to graze the range units
in question. He failed to take advantage ofthe right to redeem the cattle impounded in
August 2015. He caused significant delays and interfered with the BIA's attempts to sell
the cattle.

Plaintiff filed appeals to the IBIA after Judge Viken ruled that further exhaustion
was not required. He filed a motion to stay this case pending the criminal proceedings
against him. He sought and received many extensions as to filings in this case. He
ultimately received a trial in this case as to the impoundments and sale.
Plaintiff claims in his trial briefthat he was denied due process when the BIA
instituted trespass proceedings against him while he was still litigating in Oglala Sioux
26

Tribal Court his right to the grazing leases for the range units in question. The BIA was

not required to allow plaintiffto continue to graze in trespass, depriving the owner ofthe
grazing permit oflawful use ofthe grazing permits, overgrazing and causing damage to
the range units, all while paying no rent for the unlawful use ofthe grazing units. Plaintiff
was acting as nothing hut a holdover tenant and the BIA was legally authorized to institute
trespass proceedings to protect the trust lands.
Plaintiff also contends that his right to due process was violated when the BIA

impounded cattle that were grazing on his own property. Any property to which plaintiff
had any ownership interest which was contained in Range Units 169 and P501 was, along
with all other property owned hy the Ogalala Sioux Tribe or its members, administered by
the BIA as one range unit and leased under one lease per range unit. Until plaintiff

complied with the requirements for removing property in which he had a whole or
fractional share from the range units, plaintiff had no grazing rights to that property. He

only had the right to receive his portion ofthe rental payments(which he caused to be
zero). Further, plaintiff was prohibited from grazing his cattle on any land that was not
fenced so as to prevent the cattle from trespassing on land managed by the BIA pursuant
to its trust responsibilities.

In any event, the evidence at trial showed that the BIA was careful not to count

cattle that were trespassing on parcels in which plaintiff had an ownership interest. No
cattle were rounded up and impounded that were, at the time ofimpoundment, grazing

plaintiffs parcels. The BIA used sophisticated GPS devices to determine on what parcel
any particular animal was grazing. There is no evidence to support plaintiffs claims in
this regard.
IV. Agency Discretion.

Judge Viken considered plaintiffs claim that the impoundment of his livestock was
arbitrary and capricious in violation ofthe APA. Judge Viken held that plaintiff did not

show that the impoundment actions were "willful and unreasoning or unsupported by a
rational basis." Id. at 627. I will revisit that issue based upon the additional evidence
received in this case since 2016.
27

A. Finding of Trespass.

Under the Administrative Proeedure Aet, this Court must determine whether the

BIA's findings that plaintiff was grazing his cattle in trespass was "arbitrary, eaprieious,
an abuse of discretion, or otherwise not in accordance with law." Red River Valley
Sugarbeet Growers Ass'n v. Regan. 85 F.4th 881,886 (8th Cir. 2023){citing 5 U.S.C.

§ 706(2)(A)). This analysis does not require extensive inquiry in this case.
Pursuant to 25 C.F.R. § 166.800, trespass is defined as "any unauthorized

occupancy, use of, or action on Indian agricultural lands." The trespass provisions

specifically apply to Indian trust land managed under a permit. Id. The record is replete
with evidence that defendant was an unauthorized holdover tenant who repeatedly refused

to remove his cattle from Range Units 169 and P501 upon the expiration of his lease in
2012.

Plaintiffs repeated claim that he was in fact entitled to the 2012 grazing permit is
unassailing. He was not entitled to violate the law of trespass based upon his claim that
the Oglala Sioux Tribe unfairly awarded the grazing permits to some other rancher. His
remedy was to remove his cattle while seeking review ofthat decision. He refused to do
that.

I further reject plaintiffs claim that he was entitled to graze his cattle on his own

land within the range units. He was not entitled to do so while the parcels in which he had
an interest were included in range units which were managed by the BIA as part of its
trust responsibility to all the owners of acres in the range units. His remedy was to
remove his cattle from the range units upon expiration of the leases while taking steps to
remove the acres in which he had at least a 50% interest from the BIA's grazing program.

Plaintiff eventually did remove land in which he had a sufficient interest from the range
units at issue in this case. Nonetheless, he still cannot graze his cattle on those parcels

until he erects fences preventing his cattle from grazing on land which remains in the
range units managed by the BIA.

28

The BIA's findings that plaintiff was grazing his cattle in trespass was not

arbitrary or capricious or an abuse of discretion and such findings were in accordance with
the trespass regulations at 25 C.F.R. Part 166.
B. Impoundment.

Pursuant to 25 C.F.R. § 166.803(2012- 2016 regulations are all consistent), the

BIA was required to give plaintiff written notice ofthe alleged trespass including:
(1)The basis for the trespass determination;
(2)A legal description of where the trespass occurred;

(3)A verification of ownership of unauthorized property (e.g., brands in the State
Brand Book for cases of livestock trespass, if applicable);
(4) Corrective actions that must be taken;
(5)Time frames for taking the corrective actions;

(6)Potential consequences and penalties for failure to take corrective action; and
(7)A statement that unauthorized livestock or other property may not be removed o
disposed of unless authorized by us.

The trespass notifications given to plaintiff all complied with the regulations and were not
in violation of any of plaintiffs rights.

Pursuant to 25 C.F.R. § 166.804, upon receipt of a trespass notice, plaintiff was

required to "(a) comply with the ordered corrective actions; or(b)contact us [the BIA]in
writing to explain why the trespass notice is in error." The record is clear that plaintiff did
not remove his cattle from Range Units 169 and P501 nor did he give any written notice,
let alone sufficient notice that the trespass notices were in error.

When plaintiff did not cure the notices of trespass, the BIA was authorized by 25
C.F.R. §§ 166.806 et seq. to impound the trespassing cattle; assess damages for the value
ofthe products illegally removed (eaten by plaintiffs cattle) plus a penalty of double that
value and assess costs associated with damage to the land, costs associated with

enforcement (field compliance checks, field damage surveys, etc.); give the trespasser
notice of the right to redeem the impounded cattle upon payment ofthe foregoing
monetary assessments; and to sell or dispose ofthe impounded cattle ifthe trespasser fails
to redeem. The record is clear that the BIA's actions with regard to impoundment and
sale of plaintiffs trespassing cattle were not arbitrary, capricious, or an abuse of
29

discretion, were authorized by federal regulations, were eonducted in compliance with the
law, and were warranted by the faets ofthis case. 5 U.S.C. § 706(2).
After an extensive review ofthe record and consideration of the evidence received

during the evidentiary hearing eondueted herein, the Court can find no evidence that the
BIA aeted in violation of any law or regulation. Plaintiff was not the permittee on the

range units in question. He had no legal right to graze his cattle on Range Units 169 or
P501 without prior removal from the grazing program and fencing. Upon notice of

trespass, plaintiff failed to eure the trespass. Plaintiff produced no evidence that he had a
legal right to graze his eattle on the range units or that he gave written notiee to the BIA of
a valid legal elaim to graze his eattle on the range units.
Plaintiff contends that the BIA did not aet reasonably in delaying the sale of his

cattle, resulting in reeeipt of a sale price far below the fair value ofthe cattle. Plaintiff
alleged unreasonable BIA delay in sale in eaeh of his complaints. However,the reeord is
clear that any delay in sale ofthe impounded eattle was eaused solely by plaintiff. He
filed the instant federal suit, along with a request for a temporary restraining order, soon

after the first impoundment. Doing so delayed the sale ofthe cattle seized in the August

21, 2015, impoundment until U.S. Distriet Judge Jeffrey Viken issued an order denying
the restraining order and allowing the BIA to proeeed with the sale. Plaintiff further

delayed the sale by his conduet in threatening to sue the designated sale bams, causing
those businesses to decline to follow through with the sales.

Plaintiff claims that the BIA's 2015 impoundment and subsequent holding of his
cattle in Nebraska resulted in the infeetion of his eattle with Trichomoniasis, a contagious

disease. Plaintiff adduced no evidence that any action ofthe BIA resulted in the infeetion

of his impounded cattle. There was no evidence that any cattle in either ofthe Nebraska
loeations had tested positive for Triehomoniasis prior to the arrival of plaintiffs cattle.
Instead, the record shows that the owner of Johnson Ranch, his neighbors, and the

Nebraska Department of Agrieulture were all very anxious to be rid of plaintiffs cattle so
the disease did not spread to Nebraska cattle. Further, the record shows that cattle in
plaintiffs herd that were not impounded but eontinued to graze in trespass after the first
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impoundment were also infected. The record shows that the Trichomoniasis infection of
plaintiffs cattle was not caused by any action on the part ofthe BIA.
Although I have held that plaintiff failed to exhaust his administrative remedies as
to the monetary assessments, I find that such assessments were not arbitrary or capricious
and were made in conformity with the trespass regulations. The assessments were based

upon extensive records, taking into account the particular parcels grazed, the number of
cattle grazing in trespass, and exacting review ofthe damage to the forage on the

individual parcels in each affected range unit. At no time since the first impoundment and
initial monetary assessment ofthe amount required to redeem the cattle did plaintiff raise

any challenge, let alone a credible challenge, to the BIA's assessments. Instead, plaintiffs
challenge to the monetary assessments was simply that he was allowed to graze his cattle
on the range units in question, that he was therefore not grazing his cattle in trespass, and
therefore was not legally required to pay anything for the return of his cattle.
The Eighth Circuit has instructed:

When reviewing an agency's action we are to make a searching inquiry into the
facts, examining the full administrative record, but we do not substitute our

judgment for that ofthe agency. We must ask whether the agency articulated a
rational connection between the facts found and the choice made. The agency's

determination will be upheld if it is supportable on any rational basis.
County of Charles Mix v. U.S. Dep't ofInterior, 674 F.3d 898, 903 (8th Cir. 2012)

(cleaned up)(internal quotations and citations omitted). I find that the BIA, with
particularity, articulated a rational connect between the facts in this case and the decisions
to issue notices of trespass, impoundment, and the monetary assessments.
ORDER

Based upon the extensive record,

IT IS ORDERED,ADJUDGED and DECREED thatjudgment is entered in favor
of defendants and against plaintiff.

IT IS FURTHE ORDERED that plaintiffs second amended complaint is dismissed
on the merits and with prejudice.

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IT IS FURTHE ORDERED that costs authorized by law are awarded to the

defendants in the amoun^f$

,to be determined by the Clerk of Courts.

DATED this ^^^^ay ofDecember,2023.
BY THE COURT:

CHARLES B. KORNMANN

United States Distriet Judge

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