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Pawnee Nation of Oklahoma v. Zinke

United States District Court, N.D. Oklahoma

September 14, 2017

PAWNEE NATION OF OKLAHOMA, WALTER R. ECHO-HAWK, et al., Plaintiffs;
v.
RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior, the UNITED STATES BUREAU OF INDIAN AFFAIRS, and the UNITED STATES BUREAU OF LAND MANAGEMENT, Defendants.

          OPINION AND ORDER

          JAMES H. PAYNE, United States District Judge

         Now before the Court is the motion to dismiss (Dkt.# 19) of Ryan Zinke, in his official capacity as Secretary of the United States Department of the Interior (“Interior”); the United States Bureau of Indian Affairs (“BIA”); and the United States Bureau of Land Management (“BLM”). Federal Respondents ask the Court to dismiss Plaintiffs' Amended Complaint (“Am. Compl.”) (Dkt.# 12) under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted. (Dkt.# 19).

         BACKGROUND

         Plaintiffs, the Pawnee Nation of Oklahoma and a group of individual members of the Pawnee Nation, own partial interests in allotted tracts of land within the boundaries of the former Pawnee reservation. Am. Compl. ¶ 7, 10, 12-21. Plaintiffs allege that BIA has approved seventeen leases (the “Pawnee leases”)[1] that permit oil and gas development on tracts of land in which Plaintiffs allege an ownership interest. Id. Owners of allotted lands may lease the mineral interests on their lands, subject to approval by the Secretary of the Interior. 25 U.S.C. § 396. Leases entered into under 25 U.S.C. § 396 are governed by the regulations at 25 C.F.R. Part 212. Those regulations provide that appeals of BIA decisions are governed by 25 C.F.R. Part 2. 25 C.F.R. § 212.58 (citing 25 C.F.R. § 211.58). The regulations governing appeals provide that:

No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. § 704, unless when an appeal is filed, the official to whom the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately.

25 C.F.R. § 2.6. The seventeen Pawnee leases were approved by the BIA Superintendent between July 2013 and November 2013. Appeals from the Superintendent's decision are to the appropriate Regional Director (referred to as an “Area Director” in the regulations). Id. at § 2.4. Plaintiffs do not allege that they have appealed any of the decisions they challenge here, but claim that they did not receive the requisite notice under the regulations.

         Federal Respondents have moved to dismiss a subset of claims in the Amended Complaint. (Dkt.# 19). Federal Respondents have challenged Plaintiffs' First, Fourth, Fifth, and Sixth Causes of Action that challenge the BIA's approvals of the Pawnee leases as violations of the Administrative Procedures Act (“APA”) under the National Environmental Policy Act (“NEPA”), the American Indian Agricultural Resource Management Act (“AIARMA”), the National Historic Preservation Act (“NHPA”), and Executive Order 11988. Am. Compl. ¶¶ 73-76; ¶¶ 84-88; ¶¶ 89-91; ¶¶ 92-95. In addition, Federal Respondents move to dismiss Plaintiffs Fourth Cause of Action, which challenges BIA's approval of the Pawnee leases as well as BLM's approvals of Applications for Permits to Drill (“APDs”) and sundry notices on the tracts of land covered by the seventeen leases, claiming that the approvals violate the American Indian Agricultural Resource Management Act (“AIARMA”). Finally, although their Sixth Cause of Action is plead as arising under the APA, Plaintiffs have argued that the violations of NEPA, AIARMA, NHPA, and Executive Order 11988 also amount to a breach of the United States' fiduciary trust duties. (Dkt.# 17). The Federal Respondents now move for dismissal of Plaintiffs' claims against them for lack of subject matter jurisdiction, and for failure to state a claim upon which relief may be granted. (Dkt.# 19).

         STANDARD OF REVIEW

         “Federal courts are courts of limited jurisdiction . . ., possessing only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When considering a motion under Federal Rule of Civil Procedure 12(b)(1), the burden of establishing the court's subject-matter jurisdiction resides with the party seeking to invoke it, and that party has the burden of establishing jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Federal subject-matter jurisdiction “cannot be consented to or waived, and its presence must be established in every cause under review in the federal courts.” Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1022 (10th Cir. 2012). If the Court, at any time, determines that it lacks subject-matter jurisdiction, the case should be dismissed. Fed.R.Civ.P. 12(h)(3).

         In ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court assumes Plaintiffs' factual allegations to be true and determines whether they plausibly give rise to claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiff must show more than a sheer possibility that defendants have acted unlawfully-it is not enough to plead facts that are “merely consistent with” defendants' liability. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible-and not merely conceivable-on its face. Id. at 679-80; Twombly, 550 U.S. at 555. In addition, Plaintiffs must have a viable legal theory to support their claims. “[O]n a motion to dismiss, courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'”Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         MOTION TO DISMISS

         Federal Respondents raised four challenges to the First Amended Complaint. (Dkt.# 19).

First, they argue that the court lacks jurisdiction over all of Plaintiffs' challenges to the seventeen Pawnee leases because Plaintiffs have failed to identify a valid waiver of sovereign immunity. Second the Court lacks jurisdiction over challenges to the seventeen Pawnee leases because Plaintiffs have failed to exhaust administrative remedies. Third, Plaintiffs' Fourth Cause of Action fails to state a valid claim for relief under the AIARMA. Finally, to the extent it raises a claim for breach of a fiduciary trust duty, Plaintiffs' Sixth Cause of Action fails to state a valid claim for relief. The Court will address each argument in turn.

         A. The Court lacks jurisdiction over all claims challenging the ...


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