The opinion of the court was delivered by: Urbina, District Judge.
Granting in Part the Plaintiff's Motion for Summary Judgment; Denying
Defendants' Motion to Dismiss, or in the Alternative, for Summary.
This matter comes before the court upon the plaintiff's motion for
summary judgment and the defendants' motion to dismiss, or in the
alternative, for summary judgment. The plaintiff requests that the court
issue a writ of mandamus or other remedy available under the
Administrative Procedure Act ("APA"), compelling the Department of the
Interior ("DOI") to complete within twelve months its review of the
plaintiff's petition for acknowledgment as a federally recognized Indian
tribe ("petition"). The defendants have filed a cross-motion to dismiss
the complaint, or in the alternative, for summary judgment, based on lack
of subject-matter jurisdiction. For the reasons which follow, the court
denies the defendants' motion to dismiss and grants in part the
plaintiff's motion for summary judgment.
The plaintiff Muwekma Tribe is a tribe of Indians indigenous to the
present-day San Francisco Bay area. Compl. ¶ 2. Defendant Bruce
Babbitt is the Secretary of the Interior and defendant Kevin Gover is the
DOI's Assistant Secretary for Indian Affairs. As officers of the United
States, both defendants have been named as parties to this suit in their
official capacities. The plaintiff brings this action asserting that
Bureau of Indian Affairs ("BIA") has unreasonably delayed addressing its
petition for acknowledgment in violation of APA § 706(1).
The plaintiff is not currently on the list of federally recognized
tribes published annually by the BIA. Compl. ¶ 2. Recognition by the
United States "is a prerequisite to the protection, services, and
benefits of the Federal government available to Indian tribes by virtue
of their status as tribes." 25 C.F.R. § 83.2. In addition, obtaining
federal recognition "mean[s] that the tribe is entitled to the immunities
and privileges available to other federally acknowledged Indian tribes by
virtue of their government-to-government relationship with the United
States . . . ." Id. For these
reasons, among others, the plaintiff seeks the status of a federally
recognized Indian tribe.
The procedures by which Indian tribes not presently acknowledged can
petition the Secretary of Interior for recognition are set forth at
25 C.F.R. § 83 et. seq. Compl. ¶ 10. These procedures require the
tribe seeking recognition to file a detailed description of the tribe's
history. See 25 C.F.R. § 83.7. If a petitioner can demonstrate
previous federal recognition, it need only demonstrate continued tribal
existence since the time of prior federal acknowledgment. See
25 C.F.R. § 83.3 (g).
On May 9, 1989, the plaintiff forwarded a letter of intent to file a
petition for acknowledgment with BIA's Branch of Acknowledgment and
Research ("BAR"). See Pl's Mem. in Supp. of Mot. for Summ. J. ("Mot. for
Summ. J.") at 8. After retaining appropriate experts and conducting the
requisite research, the plaintiff filed with BAR a petition for
acknowledgment pursuant to 25 C.F.R. § 83 on January 24, 1995.
Compl. ¶ 11. On April 6, 1995, after reviewing the plaintiff's
submission, BAR forwarded a letter to the plaintiff further suggesting
what was needed to convert their "preliminary effort into a fully
documented petition." See Fleming Decl. dated Feb. 22, 2000, Ex. 6 at 1.
Reasoning that the plaintiffs had not yet submitted a complete petition,
BAR made clear that its letter should "not be considered as the formal
technical assistance review of a documented petition which is required by
the acknowledgment regulations (25 C.F.R. § 83.10 (b)(2))." Id. at
1. The BAR's April 6, 1995 letter also thanked the plaintiff for their
"very informative" petition, and remarked that "your petition is well on
its way to completion." Id.
The plaintiff responded to BAR's suggestions by submitting additional
information on July 10, 1995 and August 15, 1995. See Mot. for Summ. J.
at 8. The plaintiff then sought from BAR a ruling that the DOI had
previously acknowledged the existence of the Muwekma Tribe. Id. By letter
dated August 25, 1995, BAR promised to respond to this request by "the
end of October." Fleming Decl., Ex. 9. BAR, however, did not respond
until May 24, 1996, when it determined that the Muwekma Tribe had indeed
been previously recognized as the Pleasanton or Verona Band.*fn1
On July 29, 1996, the plaintiff met with BAR staff, Congresswoman Zoe
Lofgren and others to discuss the outstanding petition. Fleming Decl.
¶¶ 22-23. At this meeting, the plaintiff submitted additional
information in support of its petition. See Mot. for Summ. J. at 9. On
September 9, 1996, the plaintiff wrote Ada Deer, Assistant Secretary for
the DOI, to relay that "much of the information" requested by BAR had
been provided, yet the petition had not yet been "read or critically
reviewed." Id. On October 4, 1996, the plaintiff again wrote to Ms.
Deer, this time requesting a meeting to establish "clear and concise time
tables and responses to Muwekma's petition." Fleming Decl., Ex. 15.
On October 10, 1996, BAR sent the plaintiff a formal "technical
assistance letter," advising the plaintiff of deficiencies in its
petition and requesting additional information. Compl. ¶ 11. By this
time, approximately 385 days had passed since the plaintiff made its
initial submission and 139 days had passed since previous recognition had
been established. See Mot. for Summ. J. at 10. On March 26, 1997, in
response to BAR's "technical assistance letter," the plaintiff submitted
additional information. On June 10, 1997, the plaintiff requested a
second technical assistance
letter, which BAR issued on June 30, 1997. By this second technical
assistance letter, BAR further advised the plaintiff of deficiencies in
its petition and requested additional information. Compl. ¶ 11. The
plaintiff submitted this second set of additional information on January
16, 1998. See Fleming Decl., Ex. 23.
On February 20, 1998, the plaintiff submitted a letter to BAR
requesting that the petition be put on the "ready, waiting and active
list." Fleming Decl., Ex. 24. On March 26, 1998, DOI notified the
plaintiff that "[t]he Bureau of Indian Affairs (BIA) is placing the
Muwekma petition on the ready for active consideration list on March 26,
1998. The petition will be evaluated in turn, after the petition of the
Southern Sierra Miwok Nation." Fleming Decl. ¶ 36.
After requesting placement on the active consideration list, the
plaintiff submitted additional documentation in support of its petition on
June 2, 1998. In a June 19, 1999 letter to Congresswoman Lofgren, which
discussed the status of the plaintiff's petition, defendant Gover relayed
that ten tribes were ahead of the plaintiff on the "ready" list and
fifteen tribes were under "active consideration." See Fleming Decl., Ex.
15. Defendant Gover also relayed that "it may take two to four years
before the petition will be reviewed." Id. Based on these facts, the
plaintiff asserts that defendants have unreasonably delayed review of
their petition. For the reasons which follow, the court agrees with the
A party moving for dismissal under Federal Rule of Civil Procedure 12
(b)(6) has the burden of proving that the nonmovant has failed to state a
claim upon which relief can be granted. To prevail, the movant must show
"beyond a reasonable doubt that the plaintiff can prove no set of facts
in support of his claim [that] would entitle him to relief." Conley v.
Gibson. 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hishon v.
King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)
("A court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proved consistent
with the allegations."). For purposes of determining whether a complaint
states a cause of action upon which relief can be granted, the averments
in the complaint are taken as true, and the plaintiff is given the
benefit of any doubts and of all reasonable inferences that can be drawn
from the facts alleged. See Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C.Cir. 1994); Gregg v. Barrett, 771 F.2d 539, 547
(D.C.Cir. 1985). The court is not required, however, to accept inferences
unsupported by the facts alleged, nor need it accept legal conclusions
that are cast as factual allegations. See Kowal, 16 F.3d at 1276; United
States v. BCCI Holdings, 980 F. Supp. 21, 26 (D.D.C. 1997). Bare
conclusions of law and sweeping, unwarranted averments of fact need not
be accepted. See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.
B. Jurisdiction Under the Administrative Procedure Act
The APA requires agencies to "proceed to conclude a matter presented to
it . . . within a reasonable time." 5 U.S.C. § 555 (b). It also
confers upon the courts authority to "compel agency action unlawfully
withheld or unreasonably delayed." 5 U.S.C. § 706 (1). The defendants
assert that a claim alleging "unlawfully withheld" agency action is
appropriate only where Congress has established a duty to take action by a
specific date. See Defs.' Mem. in Supp. of Mot. to Dismiss ("Mot. to
Dismiss") at 17. The defendants further assert that the court may not
compel action in this matter since agency action has not been
"unreasonably delayed" within the meaning of the APA. Id. The plaintiff,
on the other hand, urges this court to take action by assessing the
agency delay and finding it unreasonable. In so doing, the
plaintiff asserts, this court should issue a writ of mandamus or other
order directing the defendant ...