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July 18, 1979

PUEBLO OF TAOS, Plaintiff,
CECIL D. ANDRUS, ET AL., Defendants.

The opinion of the court was delivered by: GASCH


Plaintiff Pueblo of Taos brings this action for declaratory and injunctive relief seeking the government's acknowledgment of the correct boundary between government land held in trust for the Pueblo and government land administered by the United States Forest Service of the Department of Agriculture. Before the Court are defendants' motion to dismiss for lack of subject matter jurisdiction, plaintiff's motion for summary judgment, and defendants' cross-motion for summary judgment. At issue is an area of land near Taos, New Mexico, comprising 300 acres and including a lake called Bear Lake. Plaintiff claims to be the beneficiary of a corrected survey ordered by defendant Andrus which would place this Bear Lake region within the boundaries of land acquired by the Department of the Interior for the benefit of plaintiff Pueblo. The Forest Service claims to administer the Bear Lake region as part of the Carson National Forest, adjacent to the Pueblo's land. Defendant Bergland, when apprised of defendant Andrus' order, requested the opinion of defendant Bell in his position as Attorney General. Defendant Bell subsequently released his opinion on the matter, stating that in his view the Bear Lake region was properly under the administration of the Forest Service. Plaintiff then brought this action against the officials mentioned above, asking the Court to require defendant Andrus to formally issue the corrected survey, to declare the corrected boundary to be the true boundary, and to enjoin defendants Bergland and Bell from taking action inconsistent with the corrected boundary.


 There is no dispute about the material facts in this action. In 1716, the King of Spain made a royal grant of approximately 60,000 acres to one Antonio Martinez. On December 10, 1892, the United States Court of Private Land Claims confirmed title to the grant in Martinez' heirs, successors, and assigns. The court decree defined the eastern boundary of the grant as "the current of (the) Rio Lucero to its source," and ordered a survey to be made of that boundary. The Department of the Interior therefore issued a contract in 1893 to one John Walker, directing him to survey the boundaries of the Martinez grant according to the terms of the court decree. The northeast corner of the grant was described as the source of the Rio Lucero, and lay in mountainous and rugged terrain. Walker was operating under a tight deadline with a large area to survey. Upon completion, the plat of Walker's survey was approved by the court, and attached to the patent issued in 1896.

 Pursuant to congressional mandate in the 1930's, *fn1" Taos Pueblo received an allocation of funds to restore lost lands. Taos Pueblo requested the Department of the Interior to purchase the unoccupied eastern portion of the Martinez grant. The Department decided to condemn that land for the Pueblo's benefit, divided into Tracts A and B, and Tract C in the east. In November, 1939, the Department filed a condemnation action against the Watson Land Company, the successor to the Martinez grantees. On August 29, 1941, the district court granted the condemnation petition, and incorporated Walker's plat. The decree calculated the acreage by referring to Walker's eastern meander line, and noted that the "true East boundary" of the grant was the "middle of the stream known as Rio Lucero." There are no physical monuments marking the meander line in the northeastern most portion of the tract, and Geological Survey maps characterize the boundary as "indefinite."

 In 1945, the Geological Survey prepared a map of the area which placed the eastern boundary of the Martinez grant at the Rio Lucero, and the northeast corner approximately at its source. The map showed Bear Lake to be within the boundary of the Martinez grant. In 1950, the United States acquired what was known as the Leroux grant to add to Carson National Forest. The Leroux grant is north of and adjacent to the Martinez grant. In the 1960's the Forest Service cleared a pack road to Bear Lake, and built an out house there. These actions led plaintiff to request the Department of the Interior to ascertain the precise location of the eastern boundary. Bureau of Indian Affairs investigators searched the area in September, 1974, but could find no markers along the northernmost portion of the Rio Lucero. They concluded that it was impossible to reconcile the courses and distances of Walker's survey in that area with the natural boundary, the Rio Lucero "to its source."

 On September 10, 1976, the Solicitor for the Department of the Interior concluded that Walker had misplaced the eastern boundary of the Martinez grant, and that the 1945 Geological Survey map was more accurate. The Solicitor went on to suggest that the erroneous Walker courses and distances be corrected. Consequently, on April 11, 1977, Secretary Andrus cancelled the erroneous measurements and ordered a new survey to follow the Rio Lucero from "Station 80 (the point at which Walker's measurements deviated from the river) to its source on the ridgeline to the north."

 Secretary Bergland then requested that the Department of Justice review the authority of Secretary Andrus to issue the order. Both the Departments of the Interior and Agriculture, as well as counsel for plaintiff here, submitted their views to the Attorney General. In October, 1977, the Department of the Interior commenced a new survey, which was completed by June 27, 1978. That survey indicates that Bear Lake and approximately 300 acres of land west of the Rio Lucero are part of the lands held in trust for plaintiff. On October 18, 1978, the Attorney General wrote to Secretary Bergland giving his opinion in this matter. He stated that the relevant question was the intent of the Department of the Interior in acquiring the land for Taos Pueblo in 1939, and he concluded that the Department of the Interior had intended only to acquire the land bounded by the erroneous Walker survey line. His conclusion was based on two principal considerations. First, the condemnation judgment referred to and had attached the Walker plat, which put the Bear Lake region outside of Tract C. Second, the judgment's description of Tract A stated that the line of taking followed another river, which was described as the boundary of the grant "and of this tract," but the description of Tract C omitted the language "and of this tract." Subsequently, plaintiff brought this action.


 I. Jurisdiction.

 Defendants have moved to dismiss plaintiff's complaint, raising several purported obstacles to the prosecution of this action. Defendants first argue that this Court has no jurisdiction to review the opinion function of the Attorney General, and that any such review would clearly be precluded by precedent. *fn2" The gravamen of this action, however, is not a challenge to the authority of the Attorney General to issue the opinion he did, *fn3" but rather is a request seeking this Court's judicial interpretation of the same matter presented to the Attorney General. This Court is not bound by an opinion of the Attorney General. In Perkins v. Elg, 307 U.S. 325, 59 S. Ct. 884, 83 L. Ed. 1320 (1939), the Supreme Court was faced with a situation very similar to the circumstances of the present case. Mrs. Elg, born of Swedish parents in the United States, was residing in Sweden when she reached the age of majority and decided to elect United States citizenship. Id. at 327, 59 S. Ct. 884. The Department of State issued her a passport in 1939. Id. Sometime after that, however, the Department changed its policy, and Mrs. Elg was notified that she was an illegal alien in April, 1935. Id. at 328, 59 S. Ct. 884. At the time departmental policy was changed, it apparently conflicted with an opinion of the Solicitor of the Department of Labor, and the Attorney General was therefore asked to give his opinion. Id. at 347, 59 S. Ct. 884. The Attorney General resolved the conflict in favor of the Department of State's position. Id. at 348, 59 S. Ct. 884. Notwithstanding the opinion of the Attorney General approving the Department of State's policy, however, the Supreme Court reached the opposite result with respect to Mrs. Elg, stating that "the conclusions of that opinion are not adequately supported and are opposed to the established principles which should govern the disposition of this case." Id. at 349, 59 S. Ct. at 896 (footnote omitted). Cf. McElroy v. Guagliardo, 361 U.S. 281, 285-86, 80 S. Ct. 305, 4 L. Ed. 2d 282 (1960); United States v. Dietrich, 126 F. 671, 675-76 (8th Cir. 1904). Therefore, the Court finds nothing to preclude its review of the law and facts considered by the Attorney General.

 Defendants also argue that this action is barred by sovereign immunity. Plaintiff predicates jurisdiction on 28 U.S.C. ยง 1362, which provides that federal district courts have original jurisdiction over all civil actions brought by any Indian tribe arising "under the Constitution, laws, or treaties of the United States." See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 94 S. Ct. 772, 777, 39 L. Ed. 2d 73 (1974). Defendants point out that this section has consistently been interpreted as not being a waiver of sovereign immunity. E. g., Standing Rock Sioux Tribe v. Dorgan, 505 F.2d 1135 (8th Cir. 1970); Scholder v. United States, 428 F.2d 1123 (9th Cir.), Cert. denied, 400 U.S. 942, 91 S. Ct. 240, 27 L. Ed. 2d 246 (1970).

 The cases cited by defendants, however, involved suits for money damages, and not for injunctive relief. For example, Dorgan, supra, involved recovery of state sales taxes, 505 F.2d at 1136, and Scholder, supra, involved expenditures of appropriated funds, 428 F.2d at 1125. "It is a well-recognized principle that the doctrine of sovereign immunity bars suits against government agencies or officials for monetary damages, but does not bar suits for injunctive or declaratory relief." AFGE v. Callaway, 398 F. Supp. 176, 191 (N.D.Ala.1975). See Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Moreover, the Administrative Procedure Act (APA) provides that:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is ...

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