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Los Coyotes Band of Cahuilla & Cupeno Indians v. Ken Salazar

October 28, 2011


The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge


Presently before the Court are Plaintiff's Motion for Summary Judgment (Doc. 21) and Defendants' Cross Motion for Summary Judgment (Doc. 33). For the following reasons, Plaintiff's Motion for Summary Judgment is GRANTED in part and DENIED in part, and Defendants' Cross Motion for Summary Judgment is GRANTED in part and DENIED in part.


This case arises from the Defendant Bureau of Indian Affairs ("BIA"), Office of Justice Services' ("OJS") denial of Plaintiff's request for a law enforcement funding contract under the Indian Self-Determination and Educational Assistance Act ("ISDEAA"), 25 U.S.C. § 450 et seq. These contracts are commonly known as "638 contracts." (Plaintiff's Motion for Summary Judgment ("PMSJ") ¶ 1.)

Plaintiff claims the denial was based on an internal, unwritten policy that the Defendants do not provide law enforcement funds to tribes located in a state subject to 18 U.S.C. § 1162, commonly referred to as "P.L. 280." California is a P.L. 280 state. (PMSJ ¶ 1.) Plaintiff cites to evidence in the administrative record supporting the existence of this unwritten policy. Defendants, however, dispute the existence of this internal, unwritten policy. (See Defendants' Response to Plaintiff's Statement of Material Facts, Doc. No. 33-5 at p. 3.)

Defendants based their denial of the 638 contract on Sections 450(a)(2)(D) and 450j-1(a) of the ISDEAA, which provide that a contract may be denied if the amount of funds requested exceeds the amount of funding the Department would have otherwise provided to operate the program itself. Defendants explained that because they provided zero law enforcement funding to tribes in California (allegedly because it is a P.L. 280 state), any amount of funding requested by Plaintiff was in excess of the applicable funding level for the contract. (PMSJ ¶ 1.)

Plaintiff has been a federally recognized tribe since 1889. To combat crime on its reservation, Plaintiff in 2007 hired a Chief of Police funded through a federal grant from the Bureau of Justice Assistance, but the grant ended in 2009. Consequently, in February 2009, Plaintiff submitted a written request to OJS seeking a 638 contract for tribal law enforcement services as authorized under the ISDEAA. (PMSJ ¶¶ 8-11.)

OJS denied Plaintiff's request in July 2010, and Plaintiff requested an informal conference with OJS in an attempt to find a compromise, as provided under 25 C.F.R. § 900.51. The informal conference was properly conducted by a "designated representative" appointed by OJS. (PMSJ ¶¶ 13-14.) The OJS designated representative then issued a recommended decision finding that:

1. OJS's underlying rationale for making zero law enforcement funding available to tribes in P.L. 280 states was not valid because P.L. 280 did not divest tribes of their criminal jurisdiction or divest the federal government of its law enforcement responsibility, and there is a need for law enforcement on Plaintiff's reservation not being met by local law enforcement.

2. OJS's unwritten policy denying the funding to tribes in P.L. 280 states has been arbitrarily implemented and has deprived Plaintiff equal protection and due process of law.

3. OJS's unwritten policy violates the mandates of the APA, since such a policy must be promulgated and receive tribal consultation. (PMSJ ¶ 16.)

In November 2009, Defendants filed a Notice of Appeal with the Interior Board of Indian Appeals ("IBIA"), requesting a decision on whether OJS had a right to appeal its own designated representative's decision and, if not, whether the decision was binding on the department. In January 2010, the IBIA issued an Order Dismissing Appeal, finding that OJS did not have a right of appeal under 25 C.F.R. § 900.157 and declining to address whether the designated representative's decision was binding on OJS. Later that month, OJS informed Plaintiff that because it had no right to appeal, the designated representative's decision "is not binding on the Secretary." (PMSJ ¶¶ 18-20.)

Plaintiff filed its Complaint for injunctive and declaratory relief on July 13, 2010. Plaintiff challenges Defendants' decision and underlying policy supporting the decision as arbitrary, capricious, and contrary to (1) ISDEAA § 450k, (2) the Administrative Procedures Act ("APA"), (3) 5 U.S.C. § 553, (4) equal protection under the U.S. Constitution, and (5) the federal trust responsibilities owed to Plaintiff. (PMSJ ¶ 1.)

Plaintiff filed the instant Motion for Summary Judgment on May 25, 2011, and Defendants filed the instant Cross Motion for Summary Judgment on July 28, 2011.


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). When the nonmoving party would bear the burden of proof at trial, the moving party may satisfy its burden on summary judgment by simply pointing out to the Court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987. "The moving party need not disprove the other party's case." Id.

Once the movant has made that showing, the burden shifts to the opposing party to produce "evidence that is significantly probative or more than 'merely colorable' that a genuine issue of material fact exists for trial." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citing FTC v. , 265 F.3d 944, 954 (9th Cir. 2001)); see also Miller, 454 F.3d at 988 ("[T]he nonmoving party must come forward with more than 'the mere existence of a scintilla of evidence.'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The Court must review the record as a whole and draw all reasonable inferences in favor of the nonmoving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 736, 738 (9th Cir. 2000). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). "Thus, '[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine ...

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