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Aleutian Pribilof Islands Association, Inc. v. Kempthorne

February 11, 2008

ALEUTIAN PRIBILOF ISLANDS ASSOCIATION, INC., PLAINTIFF,
v.
DIRK KEMPTHORNE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR, U.S. DEPARTMENT OF THE INTERIOR, ET AL. DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Aleutian Pribilof Islands Association, Inc. ("APIA") has filed this action challenging the decision of the Secretary of the Interior, together with the Bureau of Indian Affairs ("BIA") and Office of Self-Governance ("OSG") (collectively, "the Secretary"), to provide certain monies to The Aleut Corporation ("TAC") that had previously been provided on a yearly basis to APIA. The Parties have filed Cross-Motions for Summary Judgment on the question of whether that decision complied with federal statutes, regulations, and BIA internal policy. Defendants have also filed a Partial Motion to Dismiss based on APIA's alleged failure to exhaust administrative remedies. After thoroughly reviewing the Parties' submissions, including the attachments thereto, applicable case law, statutes, and regulations, the Court shall deny Defendants' [20] Partial Motion to Dismiss, grant in part and hold in abeyance in part Plaintiff's [13] Motion for Summary Judgment, and deny in part and hold in abeyance in part Defendants' [19] Motion for Summary Judgment, for the reasons that follow.

I. BACKGROUND

The Indian Self-Determination and Education Assistance Act ("ISDEAA") allows Indian tribes or tribal organizations to receive funds from the federal government to carry out various programs, functions, services, and activities ("PFSAs"). See 25 U.S.C. §§ 450 et seq. Beginning in fiscal year 1996, APIA's thirteen member tribes authorized APIA, by tribal resolution, to enter self-governance compacts with the Secretary to carry out a variety of PFSAs.*fn1 Pl.'s Stmt. ¶ 2. As part of these compacts, APIA requested responsibility and funding for PFSAs related to section 14(h)(1) of the Alaska Native Claims Settlement Act ("ANCSA"), 43 U.S.C. § 1613(h)(1) (hereinafter "Section 14(h)(1) funds" or the "Section 14(h)(1) program"). Id. ¶ 3. Defendants approved APIA's requests for Section 14(h)(1) funds each fiscal year from 1996 through 2005. Id. For FY 2006, however, the Secretary declined APIA's request for Section 14(h)(1) funds, indicating that it would instead provide the funds to TAC. Id. ¶ 12. The present lawsuit concerns the decision by Defendants to provide the Section 14(h)(1) funds to TAC instead of APIA for FY 2006, and its intent to do so in subsequent fiscal years.

ANSCA was implemented by Congress in 1971 to provide "a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims." 43 U.S.C. § 1601(a). To that end, Congress created two types of private corporate entities to receive the land and money provided to Alaska Natives -- Regional Corporations and Village Corporations. Section 1606 of ANCSA created Regional Corporations by dividing Alaska into twelve regions, and enrolling all living Alaska Natives in a Regional Corporation determined by where they resided on the date of the 1970 census enumeration. Id. § 1604(b). Section 1607(a) of ANCSA created Village Corporations by setting forth criteria by which Native residents could gain such a status. 43 U.S.C. § 1607(a). TAC, the tribe who received the Section 14(h)(1) funds that APIA claims it should have received, is the ANCSA Regional Corporation for the Aleutian Region. See Pl.'s Stmt. ¶ 4. APIA, the Plaintiff in this case, is a nonprofit corporation representing thirteen Village Corporations in the Aleut Region. See Id. ¶ 1.

The Section 14(h)(1) program, the ANCSA provision at the center of the present dispute, authorizes the Secretary to "withdraw and convey to the appropriate Regional Corporation fee title to existing cemetery sites and historical places." Id. § 1613(h)(1). Pursuant to the statute's implementing regulations, the appropriate Regional Corporation must file an application with the Board of Land Management ("BLM") for the conveyance of the cemetery site or historical place. See 43 C.F.R. § 2653.5(f). The BLM, in turn, forwards the application to the BIA "for investigation, report, and certification." Id. § 2653.5(h).

TAC filed Section 14(h)(1) applications with the BLM in the 1970s. Defs.'s Stmt. ¶ 2. The BIA initiated many of the activities associated with the applications, but had not completed its tasks prior to 1995. Id. ¶ 3. At that point, APIA, on behalf of thirteen federally recognized tribal governments in the Aleut region, entered into a Tribal Self-Governance Compact that authorized APIA to carry out a broad range of PFSAs for the beneficiaries in the region, including the BIA-assigned tasks related to the Section 14(h)(1) program. Pl.'s Stmt. ¶ 3. The BIA approved APIA's request for Section 14(h)(1) funds and began providing the APIA with the same. Id.

On August 7, 1998, APIA executed a Memorandum of Agreement with TAC permitting the two parties to "jointly conduct certain cultural heritage, preservation and related activities," including those related to the Section 14(h)(1) program. Pl.'s Stmt. ¶ 5. Notwithstanding this agreement, the Secretary continued to provide APIA with the Section 14(h)(1) funds. Id. ¶ 6. In 2005, however, the TAC Board of Directors passed a resolution stating that it no longer wanted APIA to carry out ANCSA-related work on TAC's behalf.*fn2 Defs.' Stmt. ¶ 9.

On October 3, 2005, the BIA declined APIA's FY 2006 request for Section 14(h)(1) funds and indicated that it would provide those funds to TAC. Pl.'s Stmt. ¶ 12. The BIA failed to include a written explanation of its decision, and it did not notify APIA of its right to appeal or the procedures for doing so. Id. ¶ 13. APIA requested an informal conference to discuss the BIA's decision, at which Deputy Regional Director Charles Bunch issued a recommended decision upholding the transfer of the 14(h)(1) funds from APIA to TAC. Id. ¶ 14. APIA then filed an appeal with the Interior Board of Indian Appeals ("IBIA"). The case was assigned to an Administrative Law Judge ("ALJ") who issued a recommended decision upholding the BIA's decision. Id. ¶ 15. Although APIA sought to file objections to the ALJ's recommended decision, the IBIA dismissed its objections as untimely (the objections were not filed within the 30 days prescribed by the applicable regulations). Id. This lawsuit followed on December 21, 2006.

II. LEGAL STANDARD

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). Although a court must accept as true all of the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), see Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), the court need not accept legal conclusions as true, Boyd v. O'Neill, 273 F. Supp. 2d 92, 95 (D.D.C. 2003). A court may also consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case. See Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).

B. Motion for Summary Judgment

A party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the opposing party must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324

Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials of the adverse party's pleading are not enough to prevent the issuance of summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while ...


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