(Cite as: 593 Fed.Appx. 606)

United States Court of Appeals,

Ninth Circuit.

CLOVERDALE RANCHERIA OF POMO INDIANS OF CALIFORNIA, a Federally-recognized Indian
Tribe; Javier Martinez; Sarah Goodwin; Lenette Laiwabrown; Gerad Santana;
John Trippo, in their official capacities as members of the Cloverdale Rancheria
of Pomo Indians of CaliforniaTribal Council, PlaintiffsAppellants,

v.

Sally JEWELL FN*, Secretary of the Interior; Kevin K. Washburn FN**, Assistant
Secretary of the Interior for Indian Affairs; Michael S. Black, Director of the
Bureau of Indian Affairs; Michael R. Smith, Deputy Director of the Bureau of
Indian Affairs for Field Operations; Amy Dutschke, Regional Director of the
Pacific Regional Office of the Bureau of Indian Affairs; Troy Burdick,
Superintendent of the Central California Agency of the Bureau of Indian Affairs;
U.S. Department of the Interior, DefendantsAppellees.

FN* Sally Jewell is substituted for her predecessor, Kenneth L. Salazar, as
Secretary of the Interior. Fed. R.App. P. 43(c)(2).

FN** Kevin K. Washburn is substituted for his predecessor, Donald "Del"
Laverdure, as Assistant Secretary of the Interior for Indian Affairs. Fed.
R.App. P. 43(c)(2).

No. 1216539.

Argued and Submitted Oct. 9, 2014.

Filed Nov. 7, 2014.

Background: Five members of federally recognized Indian tribe sought to compel
the Department of Interior and its officials to recognize them as the tribe's
leadership and negotiate self-determination contracts with them. The United States
District Court for the Northern District of California, Jeremy D. Fogel, J., 2012
WL 1669018, dismissed their complaints for lack of subject matter jurisdiction and
lack of standing. Plaintiffs appealed.

Holdings: The Court of Appeals held that:

(1) plaintiffs failed to identify a discrete, non-discretionary duty sufficient to
furnish district court with subject matter jurisdiction under the Administrative
Procedure Act (APA);

(2) plaintiffs lacked statutory standing to sue; and

(3) plaintiffs failed to exhaust their administrative appeals as to claim
involving return of proposed self-determination contracts, as required by APA.

Affirmed.

*608 Steven J. Bloxham, Esquire, Tim J. Hennessy, Esquire, Fredericks Peebles &
Morgan LLP, Sacramento, CA, for Plaintiffs-Appellants.

Vivian Wang, DOJ-U.S. Department of Justice, Washington, DC, for
Defendants-Appellees.

Appeal from the United States District Court for the Northern District of
California, Jeremy D. Fogel, District Judge, Presiding. D.C. No.
5:10-cv-01605-JF.

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District Judge.FN***

FN*** The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.

MEMORANDUM FN****

FN**** This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.

Plaintiffs-Appellants are five members of the Cloverdale Rancheria of Pomo
Indians of California ("the Tribe") who seek to compel Defendants-Appellees, the
Department of Interior and its officials ("the Department"), to recognize them as
the Tribe's leadership and negotiate self-determination contracts with them. The
district court dismissed both of Plaintiffs-Appellants' complaints for lack of
subject matter jurisdiction and lack of standing. We review these dismissals de
novo, Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir.2007), and we
affirm.

This case comes to us after years of dispute about the governance of the Tribe
following its restoration to federally recognized status. This history is known
to the parties, and we will not recite it here. Suffice it to say that over the
years various factions of the Tribe have asked the Department to recognize them as
the Tribe's duly-elected government. Plaintiffs-Appellants have failed to show
why the federal courts can now compel the Department to intervene in this
long-running intra-tribal dispute.

Plaintiffs-Appellants have not identified a discrete, non-discretionary duty
sufficient to furnish the district court with subject matter jurisdiction under
the Administrative Procedure Act ("APA"), 5 U.S.C. s 706(1). Nor have they
established that they have statutory standing under the Indian Self-Determination
and *609 Education Assistance Act, 25 U.S.C. s 450 et seq. ("ISDA"), to bring
suit, even assuming that the district court had subject matter jurisdiction under
ISDA to entertain their claims. Finally, Plaintiffs-Appellants cannot bring
their claims under another provision of the APA, 5 U.S.C. s 706(2), because they
have not exhausted their administrative appeals.

Section 706(1) of the APA empowers federal courts "to compel agency action
unlawfully withheld or unreasonably delayed." The agency action must be both
"discrete" and "legally required." Norton v. S. Utah Wilderness Alliance, 542
U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ("SUWA "). None of the three
purported duties Plaintiffs-Appellants identify satisfy this standard.

[1] The first asserted duty, the Department's trust obligation to ensure the
political integrity and self-determination of Indian tribes, is broad and lacks
the "specificity requisite for agency action." SUWA, 542 U.S. at 66, 124 S.Ct.
2373. The Department has considerable "discretion in deciding how to achieve"
that object, id., and for that reason it cannot supply a court with jurisdiction.

[2] The second asserted duty, based on the 1983 Tillie Hardwick settlement and
the Department's decisions effectuating it, imposes on the Department "a
responsibility to ensure that the initial tribal government is organized by
individuals who properly have the right to do so." Alan-Wilson v. Sacramento
Area Director, 30 I.B.I.A. 241, 252 (1997) (emphasis added). But this duty does
not provide the court jurisdiction under s 706(1) because the Department has
already discharged it. In vacating prior agency decisions that recognized
governments that were not constituted according to the terms of the Tillie
Hardwick settlement and dispatching a BIA official to identify eligible electors
and supervise the 1997 tribal meeting that endorsed the governing body that the
Department now recognizes, the Department saw to it that the initial tribal
government was established by those who had a right to do so.

[3] The third asserted duty is an obligation of the Department to accept or
reject Plaintiffs-Appellants' contract proposals in conformity with the criteria
set out in ISDA s 450f(a) and a series of related regulations. This purported
duty furnishes subject matter jurisdiction under the APA only if it is owed to
Plaintiffs-Appellants. It is not. Only an "Indian tribe" or a " tribal
organization" is authorized to submit a contract proposal. See 25 U.S.C. s
450f(a)(1)-(2). Plaintiffs-Appellants are not entitled to act on behalf of a
federally recognized "Indian tribe," however, because they are not the Tribe's
recognized governing body. For the same reason, even if Plaintiffs-Appellants
constitute a "tribal organization," 25 U.S.C. s 450b(l ), they are not entitled to
submit a contract proposal because they were not "authorized" to do so by the
Tribe's governing body, as s 450f(a)(2) requires.

[4] For these reasons, Plaintiffs-Appellants lack statutory standing to sue,
even if ISDA, rather than the APA, supplies the necessary subject matter
jurisdiction, as the district court assumed it did. Therefore, the district
court did not err in dismissing Plaintiffs-Appellants' fourth, fifth, and sixth
claims.

[5][6] Finally, the district court lacked subject matter jurisdiction under APA
s 706(2) to hear Plaintiffs-Appellants' sixth claim, that the Department acted
arbitrarily and capriciously, in abuse of its discretion, or otherwise unlawfully
when it returned Plaintiffs-Appellants' proposed ISDA contracts and when it
modified and *610 renewed existing ISDA contracts at the request of the Tribe's
recognized governing body. The Department's return of Plaintiffs-Appellants'
contract proposals does not constitute "action"; rather, it was the equivalent of
a "return to sender" notification. Even if it were action, Plaintiffs-Appellants
did not exhaust their administrative appeals. See White Mountain Apache Tribe v.
Hodel, 840 F.2d 675, 677 (9th Cir.1988). The same is true of
Plaintiffs-Appellants' complaints about the Department's contract negotiations
with their rivals.

For the foregoing reasons, we affirm the district court's dismissal of both of
Plaintiffs-Appellants' complaints.

AFFIRMED.