processing petitions which may fairly be characterized as extensive and
The defendants further argue that expediting the requested action will
detrimentally affect higher or competing priorities of the BIA. See
Defs.' Reply ¶ 3. Specifically, the defendants protest that because
all petitions awaiting review by the BIA involve the same health and
human welfare concerns as the plaintiffs, the plaintiffs claim that its
health and welfare are at stake should not trump the claims of other
petitioners. Id. Conversely, the plaintiffs argue that granting the relief
requested does not impact the BIA's activities of a higher or competing
priority, but rather assists other petitioners by "increas[ing] the rate
at which the Bureau processes all petitions" and by sending a needed
signal to the Department of the Interior that "it must get its job done"
and that "it cannot be satisfied with concluding one or two petitions a
year." Mot. for Summ. J. at 32. The court agrees that directing the
defendant to complete a review of the plaintiff's petition within twelve
months may hasten review at the undue expense of other tribes. Moreover,
compelling the agency to assign the plaintiff top priority may produce an
inequitable result. However, this court concludes that the defendants'
extensive delay in processing the plaintiff's petition is unjustifiable
and without good reason. For these reasons, the court declines to impose
upon parties a "hard deadline," but in the interest of fairness directs
the agency to submit by July 28, 2000 a proposed schedule for resolving
the plaintiff's petition. Such a timetable should reflect consideration
of this court's view that this matter implicates health and human welfare
issues requiring reasonably prompt attention.
5. Sixth TRAC Factor: impropriety is not essential to a finding of
In PCHRG v. Commissioner of Food and Drug, this Circuit stated that
"the District Court need not find any impropriety lurking behind agency
lassitude in order to hold that agency action is `unreasonably delayed.'"
PCHRG, 740 F.2d at 34. While the record does not disclose a hint of
impropriety, the court's review of the remaining factors supports the
determination that DOI acted and continues to act with unreasonable
Thus, based upon the pleadings, submissions and applicable law, the
court concludes that DOI has acted in violation of APA § 706(1) and
unreasonably delayed processing of the Muwekma Tribe's petition. Having
so determined, the court turns to consider remedies available under the
The plaintiff requests an order compelling review of its petition in
twelve months. However, this court may address unreasonable delay by
means less intrusive than mandamus.*fn11 The court thus directs the
agency to submit to the court by July 28, 2000 a proposed schedule for
resolving the plaintiff's petition. The court does not, by its ruling,
intend to mandate that the agency act within a prescribed time frame at
this point. However, a deadline is in order and the agency is directed to
propose one consistent with this opinion and APA § 706(1).
For the foregoing reasons, the defendants' motion to dismiss is
denied, and the plaintiff's motion for summary judgment is granted in
part. An Order directing the parties in a manner consistent with this
Memorandum Opinion is separately and contemporaneously executed and
issued on this 30th day of June, 2000.