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(Cite as: 2004 WL 3753252 (W.D.Wash.))

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United States District Court,

W.D. Washington.

THE SAMISH INDIAN NATION, Plaintiff(s),

v.

UNITED STATES DEPARTMENT OF INTERIOR; Bureau of Indian Affairs, Defendant(s).

No. C02-1955P.

Sept. 22, 2004.

Jennifer K. Dewald, Portland, OR, for Plaintiff.

Jo-Ann M. Shyloski, Tim H. Nusraty, US Department of Justice, Washington, DC, Brian C. Kipnis, US Attorney's Office, Seattle, WA, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

 

PECHMAN, J.

*1 Plaintiff Samish Indian Nation ("the Tribe") filed suit against Defendant federal agency ("BIA" or "the agency") alleging two claims for relief, both of which were aimed at correcting what Plaintiff considered inequities and improprieties in the process by which its annual budget is determined and appropriated. In previous hearings before this Court, the second claim for relief was dismissed (Dkt. No. 60). With this latest round of briefing, both sides seek final adjudication on the Tribe's first claim for relief, which seeks an order compelling the BIA to comply with 25 C.F.R. § 83.12(d) of the Federal Acknowledgement Act (25 C.F.R. Part 83).

Having reviewed the briefing, including all attached declarations and exhibits, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's request for summary judgment Pursuant to the ruling in Defendant's favor, the above-entitled matter will be DISMISSED with prejudice.

Background

The genesis of this litigation can be traced back to at least 1979, when the Tribe commenced their attempt to achieve federal recognition. In U.S. v. Washington, 476 F.Supp. 1101 (W.D.Wa.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982), the Tribe was found to not be the historic successor to the Samish tribe for purposes of a fishing rights treaty. In 1982 and again 1987, their request for acknowledgment as a tribe pursuant to newly-adopted federal regulations was denied by the BIA.

Plaintiff challenged the propriety of that decision in a series of cases which bounced back and forth between District Court and the Ninth Circuit for 7 years. In August 1995, an administrative law judge issued findings indicating that the Tribe met the mandatory criteria for federal acknowledgement under 25 C.F.R. § 83.7. When that decision was revised by the Assistant Secretary of the Interior, Judge Zilly of this district issued an order in October 1996 reinstating the findings in their entirety.

Upon their recognition in 1996, the Tribe received "New Tribes" funding, money intended (among other things) to assist them in developing their own tribal government. BIA acknowledges that the funding amount is arrived at pursuant to a formula based on factors such as the number of members enrolled in the tribe, whether they have a land base and how remote they are geographically. Plaintiff alleges that this money is allocated without a formal determination of need. After three years of "new tribes" funding, the BIA "rolled over" the Tribe's budgetary allotment into another program called Other Aid to Tribal Government. Plaintiff's complaint appears to be grounded in the allegation that the agency is not adhering to the mandates of the Federal Acknowledgement Act and as a result they are being treated differently for budget and funding purposes than "historic" tribes which are already included in the budget process.

Discussion

Both parties are in agreement that review of these allegations falls under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. There are two requirements of § 704 ("Actions reviewable") which must be met here. The first is that there must be a discrete agency "action": "Agency actions made reviewable by statute and final agency action for which there is no adequate remedy in a court are subject to judicial review." Id. The BIA concedes that there is "agency action" involved in the circumstances of this case. There has, however, been no citation to any statute or regulation which makes the agency action at issue here reviewable. Therefore the second requirement for APA review is that there be a "final" agency action.

*2 An action is "final" under the APA when it meets two conditions: "(1) the action should mark the consummation of the agency's decision making process; and (2), the action should be one by which rights or obligations have been determined or from which legal consequences flow." Ecology Center, Inc. v. U.S. Forest Service, 192, F.3d 922, 925 (9th Cir.1999) (citing Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); see also Montana Wilderness Ass'n v. U.S. Forest Service, 314 F.3d 1146, 1150 (9th Cir.2003).

The question is whether any of the actions which the Tribe alleges that the BIA has either not done or not done properly are "final" agency actions. The answer is "no." To demonstrate the lack of finality involved, the Court must take judicial notice of certain facts regarding the legislative mechanism by which the tribal budget process arrives at funding allocations for the tribes. Regarding "Judicial Notice of Adjudicative Facts," FRE 201 states:

(b) Kind of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. A court may take judicial notice, whether requested or not.

The Court finds that the federal legislative process by which funds are requested and ultimately allocated for use by the tribes is both "generally known" and can be readily and accurately determined by resort to accessible and reliable sources. The process operates as follows: the BIA submits an annual budget request to the Department of Interior, which reviews (with the power to revise) the request and passes it along as part of the departmental budget to the Office of Management and Budget ("OMB"). OMB then reviews the request (with the power to further revise it) and passes it along to the Office of the President (where it can be further revised). The President presents the budget to Congress, which has the power to further modify it before giving its final approval.

The point of this mini-civics lesson is: even if the Court were to do as the Tribe requests and compel the agency to convene a formal meeting with representatives of the Tribe which produced a determination of the Tribe's needs which was then incorporated into the BIA's budget request, [FN1] no rights, obligations or legal consequences would flow from that action. At any point along the path from BIA request to congressional approval, that portion of the budget request could be amended, altered or even eliminated with no certainty that a legal consequence would result from that act.

FN1. The briefing is replete with disagreement and/or misunderstanding about whether the BIA (outside of the New Tribes funding) can even incorporate increases in funding requested by individual tribes into its budget request, but the Court need not reach that issue in determining that there is no final agency action in the context of the overall budget process.

The action requested by the Tribe would produce no guarantee of the result they desire (an increase in funding), and the Tribe has cited no authority suggesting that they would have a guarantee of legal redress if their funding needs were not met as a result of the budget process; i.e., no legal consequence would arise from the fact that the BIA had consulted with them, determined their needs and submitted them as part of a budget request. This situation is little different from the one that the Supreme Court addressed in Franklin v. Massachusetts, 506 U.S. 788 (1992), where a population report from the Secretary of Commerce which the President used to calculate the number of representatives to which each state was entitled was found not to be a "final agency action" because it "carrie[d] no direct consequences for the reapportionment, it serve[d] more like a tentative recommendation than a final and binding determination." Id. at 800.

*3 The BIA's budget request is just such a "tentative recommendation." Plaintiff's assertion that § 83.12(d) "determines the Tribe's rights to ... programs and funding" and is therefore a final agency action (Pltf's Reply, 19:21) is made without citation to statutory or case authority or any corroborative evidence. In fact, it is apparent from the nature of the budget process that there is no "final" agency action inherent in the process embodied in § 83.12(d) and no judicial review under the APA is permissible.

Furthermore, as the defense points out, the fact that the remedy which the Tribe seeks will not provide the relief which they desire means that they lack standing in this case. One element of standing is that "a plaintiff must show the 'substantial likelihood' that the requested relief will remedy the alleged injury in fact." McConnell v. Fed. Election Commission, 540 U.S. 93, 124 S.Ct. 619, 707, 157 L.Ed.2d 491 (2003) (citing Vermont Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)). The Tribe's "alleged injury" is not solely comprised of the allegation that they have not been consulted nor their needs assessed--inherent in their complaint is the allegation that their needs have not been adequately met.[FN2] Because they have not established a "substantial likelihood" that the remedy which they seek will result in their needs being adequately met, they do not have standing to press this claim. See also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (holding that because relief sought would not remedy alleged injury, party lacked standing and court did not have jurisdiction to entertain case); Pritikin v. Department of Energy, 254, F.3d 791, 799 (9th Cir.2001).

FN2. In fact, they allege that they have been treated differently at the funding level than other, "historic," tribes, an allegation for which they provide no evidence.

Conclusion

Because there is no "final agency action" within the § 83.12(d) process, there is no review possible under the APA. Further, because the relief sought by Plaintiff will not remedy the alleged injury the Tribe has suffered, it does not have standing to bring this action. Accordingly, summary judgment will issue in favor of Defendant and the matter will be dismissed with prejudice.

The clerk is directed to provide copies of this order to all counsel of record.

Slip Copy, 2004 WL 3753252 (W.D.Wash.)

END OF DOCUMENT