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Albert P. Alto, et al v. Ken Salazar

June 13, 2012

ALBERT P. ALTO, ET AL.,
PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE DEPARTMENT OF THE INTERIOR - UNITED STATES OF AMERICA; LARRY ECHO HAWK, ASSISTANT SECRETARY OF THE DEPARTMENT OF INTERIOR-INDIAN AFFAIRS - UNITED STATES OF AMERICA; MICHAEL BLACK, DIRECTOR OF THE BUREAU OF INDIAN AFFAIRS OF DEPARTMENT OF INTERIOR -UNITED STATES OF AMERICA; ROBERT EBEN, SUPERINTENDENT OF THE DEPARTMENT OF INTERIOR INDIAN AFFAIRS, SOUTHERN CALIFORNIA AGENCY, IN THEIR OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying in Part and Reserving Ruling in Part on Tribe's Motion to Dismiss [Doc. 70]; Denying Motion to Dissolve Preliminary Injunction [Doc. 68]; Granting Motions to File Briefs in Excess of Page Limits [Docs. 68, 70, 78]

Plaintiffs, collectively known as the "Marcus Alto Sr. Descendants," seek declaratory and injunctive relief from a January 28, 2011 order issued by Defendant Assistant Secretary Echo Hawk finding that the Marcus Alto Sr. Descendants should be excluded from the San Pasqual Band of Mission Indians ("Tribe" or "Band") membership roll. Presently before the Court is

(1) the Tribe's motion to dismiss under Fed. R. Civ. P. 12(b)(7) for failure to join the Tribe as a required and indispensable party within the meaning of Fed. R. Civ. P. 19 or alternatively to dismiss for lack of subject matter jurisdiction*fn1 pursuant to Fed. R. Civ. P. 12(b)(1), and (2) the Tribe's motion to dissolve the preliminary injunction.

Following full briefing and oral argument, for the reasons discussed herein, the Court DENIES IN PART and RESERVES RULING IN PART on the Tribe's motion to dismiss and DENIES without prejudice the Tribe's motion to dissolve the Preliminary Injunction.

Procedural History

The parties are well-familiar with the factual background of this case, and the Court will not repeat it herein. Plaintiff's original complaint was filed on September 30, 2011, alleging four causes of action: (1) declaratory relief based on the doctrine of res judicata; (2) declaratory relief on the basis that Defendant Echo Hawk violated the enrolled Plaintiffs' right to procedural due process; (3) declaratory relief and reversal of the agency's January 28, 2011 order based upon arbitrary and capricious action; and (4) injunctive relief based on the agency's alleged failure to act. [Doc. No. 1.] Plaintiffs also filed an Ex Parte Motion for Temporary Restraining Order ("TRO") and a Motion for Preliminary Injunction. [Doc. Nos. 2, 3.] The Court granted the TRO and set a schedule for briefing the preliminary injunction. [Doc. No. 5.]

On October 11, 2011, while the motion for preliminary injunction was pending, the Tribe filed a request with the Court to appear specially and an accompanying motion to dismiss this action under Federal Rule of Civil Procedure 19. [Doc. No. 10.] On October 12, 2011, the Court denied the Tribe's request to appear specially, but allowed the Tribe's motion to be docketed as an amicus curiae brief. [Doc. No. 11.] The Court also ordered both parties to respond as to whether this action should be dismissed pursuant to Rule 19. The Court extended the TRO and moved the hearing on the preliminary injunction.

By order filed December 19, 2011, the Court declined to dismiss the action under Fed. R. Civ. P. 19, finding that complete relief could be accorded in the Tribe's absence, that the Tribe's interest may be adequately represented by the federal government, and the federal government is unlikely to suffer inconsistent obligations in the Tribe's absence. [Doc. No. 24, pp. 21-28.] The Court granted Plaintiffs' motion for preliminary injunction, and enjoined the Defendants from removing Plaintiffs from the Tribe's membership roll or taking any further action to implement the Assistant Secretary's January 28, 2011 order.

On January 12, 2012, Assistant Secretary Echo Hawk issued a memorandum order to the BIA Regional Director and BIA Superintendent. That memo confirmed that the Bureau of Indian Affairs ("BIA") had not approved a modified roll reflecting the disenrollment of the Altos, and concluded (as found by the Court in its preliminary injunction order) that the Plaintiffs remain members of the Band. [Doc. No. 26-1, p. 2.] The Assistant Secretary directed that because the Alto descendants are deemed to be members of the Band, they remain entitled to all rights and benefits enjoyed by such members, including participation on tribal elections, provision of health care services, and per capita distribution of income under the Band's Revenue Allocation Plan. [Id. p. 3.]

Plaintiffs filed an objection to the Assistant Secretary's memorandum order on January 23, 2012, seeking further relief from the Court. [Doc. No. 28.] The Court, however, denied the objection, concluding no further equitable relief was appropriate at the time. [Doc. No. 43.]

By order filed March 12, 2012, the Court granted Plaintiffs leave to file a first amended complaint ("FAC"). [Doc. No. 49.] The FAC, filed on March 13, 2012, again seeks declaratory relief based upon res judicata and violation of due process, and seeks reversal of the Agency's January 28, 2011 order under the Administrative Procedures Act. [Doc. No. 50, ¶¶ 60-125 (First, Second, and Third Causes of Action).] The FAC also, again, seeks injunctive relief requiring Assistant Secretary to issue an order to the Tribe to enforce Plaintiffs' rights and benefits. [Doc. No. 50, ¶¶ 126-138 (Fourth Cause of Action).] Finally, Plaintiffs add a Fifth Cause of Action for declaratory and injunctive relief, seeking pay-out of Indian Gaming Regulatory Act and Revenue Allocation Plan funds withheld between January 29, 2011 and January 12, 2012. [Doc. No. 50, ¶¶ 139-148 (Fifth Cause of Action).]

The Administrative Record was filed with the Court on March 19, 2012. [Doc. No. 19.] The Tribe thereafter filed a motion to intervene pursuant to Fed. R. Civ. P. 24(a). Because the Court's preliminary injunction order, the Assistant Secretary's January 23, 2012 Memorandum Order, and Plaintiff's newly added Fifth Cause of Action raised additional issues regarding the scope of the Court's jurisdiction to adjudicate the issues in the case, the Court granted the Tribe leave to intervene for purposes of filing the current motions.

Motions to Extend Page Limits

Both the Tribe and the Plaintiffs filed overlength briefs without obtaining prior leave of Court. The Court GRANTS the requests contained in those briefs for leave to file excess pages. In the future, however, the Court cautions counsel they should stay within the page limitations set forth in the ...


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