Apache Stronghold v. United States of America

D. Arizona

Apache Stronghold v. United States of America

DecidedJanuary 14, 2021

Docket2:21-cv-00050

StatusUnknown

This text of Apache Stronghold v. United States of America (Apache Stronghold v. United States of America) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Apache Stronghold v. United States of America, (D. Ariz. 2021).

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Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Apache Stronghold, ) No. CV-21-00050-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) United States of America, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 Before the Court is Plaintiff Apache Stronghold’s Motion for Temporary 16 Restraining Order and Preliminary Injunction (Doc. 7). Because Plaintiff fails to show 17 immediate injury, the Motion will be denied to the extent Plaintiff seeks a TRO. 18 Plaintiff seeks a TRO to prevent Defendants—the United States of America; the 19 U.S. Department of Agriculture (“USDA”); and the USDA Forest Service, Tonto National 20 Service—from publishing a “Final Environmental Impact Statement” (“FEIS”) on the 21 “Southeast Arizona Land Exchange and Resolution Copper Mine Project.” (Doc. 7 at 2). 22 Plaintiffs allege the “mere act of publication will immediately enable the Forest 23 Service to attempt to convey a 2,422-acre parcel of ‘Forest Service land’ to an entity owned 24 entirely by foreign mining corporations, Rio Tinto and BHP, pursuant to a mandate in 25 Section 3003 of the ‘National Defense Authorization Act of 2015 (‘the NDAA’).” (Doc. 7 26 at 3). However, Plaintiffs allege the NDAA “was based on grave and profoundly erroneous 27 assumption[s],” and in fact “[e]vidence shows United States does not own that land,” but 28 rather it is “Western Apache land under the 1852 Treaty of Santa Fe.” (Doc. 7 at 4). 1 Defendants intend to publish the FEIS on January 15, 2021. (Doc. 7 at 3). 2 Federal Rule 65(b), which governs temporary restraining orders and preliminary 3 injunctions, provides in relevant part: 4 The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only 5 if: (A) specific facts in an affidavit or a verified complaint 6 clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can 7 be heard in opposition; and (B) the movant's attorney certifies 8 in writing any efforts made to give notice and the reasons why it should not be required. 9 The “stringent requirements” of immediate and irreparable injury “reflect the fact that our 10 entire jurisprudence runs counter to the notion of court action taken before reasonable 11 notice and an opportunity to be heard has been granted both sides of a dispute.” Granny 12 Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda 13 Cty., 415 U.S. 423, 438–39 (1974). Accordingly, ex parte TROs “should be restricted to 14 serving their underlying purpose of preserving the status quo and preventing irreparable 15 harm just so long as is necessary to hold a hearing, and no longer.” Id. 16 Here, Plaintiff’s counsel has affirmed in a declaration that it made multiple attempts 17 to provide Defendants with notice of this action. Specifically, on January 13, 2021, counsel 18 “called the U.S Attorney’s Office” and “provided the receptionist with the case number, 19 and [his] contact information, and indicated that [he] wished to provide the U.S. Attorney’s 20 Office with a copy of the lawsuit, and to discuss the matter” but that he “did not receive a 21 return call.” (Doc. 7-2). When counsel called the USAO’s Phoenix office later the same 22 day, “[t]here was no answer, and there was no voice mail available.” (Doc. 7-2 at 2). 23 Plaintiff’s counsel does not aver in its declaration the reasons why notice should not 24 be required, as is required by Rule 65. Even if he did, however, Plaintiff also fails to 25 articulate reasons in its Complaint why issuing the TRO without giving Defendants an 26 opportunity to respond would result in “immediate and irreparable injury.” For that reason, 27 the Court will deny the TRO. 28 1 The sale of the land at issue (and the subsequent mining project) is the action that 2 will allegedly harm Plaintiff, not the publication of the FEIS. See, e.g., (Doc. 7-1 at ¶ 12) 3 (“To have a land exchange occur at Oak Flat and to have destruction of this spiritual place 4 by mining—these actions will have a direct, negative effect on me and members of the 5 Holy Ground group.”). Rather, the publication of the FEIS is but a threshold requirement 6 for Defendants to sell the land. See, e.g., (Doc. 1 at ¶ 32) (“The FEIS is the precursor act 7 for the land exchange mandate.”); (Doc. 1 at 12-13, 22 n.8) (citing a statement of the acting 8 supervisor of Tonto National Forest indicating that the publication is “a necessary step to 9 complete the land exchange”). But while the publication of the FEIS may be immediate, 10 Plaintiff has not shown that the sale of the land is. 11 For example, Plaintiff alleges in the Complaint that the “publicly stated purpose of 12 the Defendants is to present a concrete plan and act to enable the conveyance in the 13 immediate future of federally-managed land” including the land at issue. (Doc. 1 at ¶ 3). 14 But Plaintiff does not point to any such concrete plan. Instead, it presents only conclusory 15 allegations that Defendants might, maybe at some point soon, attempt to sell the land. 16 Plaintiff also alleges that “[e]vidence exists” that Defendants will sell the land “quite 17 possibly as soon as January 15, 2021.” (Doc. 1 at ¶ 6). Again, Plaintiff does not indicate 18 what this evidence is, and the language “quite possibly” only casts more doubt on the 19 immediacy of the sale. See also (Doc. 7 at 5) (alleging that FEIS “can then be immediately 20 followed upon publication by unimpeded agency action to attempt a conveyance”) 21 (emphasis added). While the publication of the FEIS is a threshold requirement for 22 Defendants to sell the land at issue, it does not mean, nor has Plaintiff shown any facts to 23 support, that Defendants will immediately thereafter sell the land. 24 To the contrary, according to the USDA’s website, the publication of the FEIS will 25 “initiate the 60-day window in which the lands would need to exchange.” See United States 26 Dep’t of Agriculture Forest Service, Resolution Copper Timeline, 27 https://www.fs.usda.gov/detail/r3/home/?cid=FSEPRD858166 (hereinafter “Resolution 28 Copper Timeline”) (last visited January 14, 2021). Plaintiff admits this in the Complaint. 1 See, e.g., (Doc. 1 at ¶ 31) (“Section 3003 of the NDAA mandates that the Southeast Arizona 2 Land Exchange shall be done no later than sixty (60) days after the publication of the 3 FEIS.”) Accordingly, it could take up to 60 days for Defendants to sell the land—weeks 4 after the TRO would expire and be converted to a preliminary injunction. Plaintiff provides 5 no “specific facts” for this Court to believe it will be sold any sooner, as Rule 56 requires. 6 The Court recognizes the anxiety that having one’s sacred land taken from them, 7 and used for purposes that run counter to their spiritual beliefs, might cause. But so too 8 must the Court recognize Defendants’ right to respond to Plaintiff’s allegations against 9 them, absent a compelling need to the contrary. See, e.g., Grannis v. Ordean, 234 U.S. 385, 10 394 (1914) (“The fundamental requiste [sic] of due process of law is the opportunity to be 11 heard.”). Without a showing of immediate and irreparable injury, the issuance of a TRO is 12 unwarranted. Instead the parties will brief, and the Court will rule on, the Motion for 13 Preliminary Injunction in ordinary course. However, in light of the 60-day timeframe, the 14 Court will set expedited briefing. 15 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Temporary 16 Restraining Order and Preliminary Injunction (Doc. 7) is denied in part to the extent that 17 it requests issuance of a Temporary Restraining Order.

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Apache Stronghold, ) No. CV-21-00050-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) United States of America, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 Before the Court is Plaintiff Apache Stronghold’s Motion for Temporary 16 Restraining Order and Preliminary Injunction (Doc. 7). Because Plaintiff fails to show 17 immediate injury, the Motion will be denied to the extent Plaintiff seeks a TRO. 18 Plaintiff seeks a TRO to prevent Defendants—the United States of America; the 19 U.S. Department of Agriculture (“USDA”); and the USDA Forest Service, Tonto National 20 Service—from publishing a “Final Environmental Impact Statement” (“FEIS”) on the 21 “Southeast Arizona Land Exchange and Resolution Copper Mine Project.” (Doc. 7 at 2). 22 Plaintiffs allege the “mere act of publication will immediately enable the Forest 23 Service to attempt to convey a 2,422-acre parcel of ‘Forest Service land’ to an entity owned 24 entirely by foreign mining corporations, Rio Tinto and BHP, pursuant to a mandate in 25 Section 3003 of the ‘National Defense Authorization Act of 2015 (‘the NDAA’).” (Doc. 7 26 at 3). However, Plaintiffs allege the NDAA “was based on grave and profoundly erroneous 27 assumption[s],” and in fact “[e]vidence shows United States does not own that land,” but 28 rather it is “Western Apache land under the 1852 Treaty of Santa Fe.” (Doc. 7 at 4). 1 Defendants intend to publish the FEIS on January 15, 2021. (Doc. 7 at 3). 2 Federal Rule 65(b), which governs temporary restraining orders and preliminary 3 injunctions, provides in relevant part: 4 The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only 5 if: (A) specific facts in an affidavit or a verified complaint 6 clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can 7 be heard in opposition; and (B) the movant's attorney certifies 8 in writing any efforts made to give notice and the reasons why it should not be required. 9 The “stringent requirements” of immediate and irreparable injury “reflect the fact that our 10 entire jurisprudence runs counter to the notion of court action taken before reasonable 11 notice and an opportunity to be heard has been granted both sides of a dispute.” Granny 12 Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda 13 Cty., 415 U.S. 423, 438–39 (1974). Accordingly, ex parte TROs “should be restricted to 14 serving their underlying purpose of preserving the status quo and preventing irreparable 15 harm just so long as is necessary to hold a hearing, and no longer.” Id. 16 Here, Plaintiff’s counsel has affirmed in a declaration that it made multiple attempts 17 to provide Defendants with notice of this action. Specifically, on January 13, 2021, counsel 18 “called the U.S Attorney’s Office” and “provided the receptionist with the case number, 19 and [his] contact information, and indicated that [he] wished to provide the U.S. Attorney’s 20 Office with a copy of the lawsuit, and to discuss the matter” but that he “did not receive a 21 return call.” (Doc. 7-2). When counsel called the USAO’s Phoenix office later the same 22 day, “[t]here was no answer, and there was no voice mail available.” (Doc. 7-2 at 2). 23 Plaintiff’s counsel does not aver in its declaration the reasons why notice should not 24 be required, as is required by Rule 65. Even if he did, however, Plaintiff also fails to 25 articulate reasons in its Complaint why issuing the TRO without giving Defendants an 26 opportunity to respond would result in “immediate and irreparable injury.” For that reason, 27 the Court will deny the TRO. 28 1 The sale of the land at issue (and the subsequent mining project) is the action that 2 will allegedly harm Plaintiff, not the publication of the FEIS. See, e.g., (Doc. 7-1 at ¶ 12) 3 (“To have a land exchange occur at Oak Flat and to have destruction of this spiritual place 4 by mining—these actions will have a direct, negative effect on me and members of the 5 Holy Ground group.”). Rather, the publication of the FEIS is but a threshold requirement 6 for Defendants to sell the land. See, e.g., (Doc. 1 at ¶ 32) (“The FEIS is the precursor act 7 for the land exchange mandate.”); (Doc. 1 at 12-13, 22 n.8) (citing a statement of the acting 8 supervisor of Tonto National Forest indicating that the publication is “a necessary step to 9 complete the land exchange”). But while the publication of the FEIS may be immediate, 10 Plaintiff has not shown that the sale of the land is. 11 For example, Plaintiff alleges in the Complaint that the “publicly stated purpose of 12 the Defendants is to present a concrete plan and act to enable the conveyance in the 13 immediate future of federally-managed land” including the land at issue. (Doc. 1 at ¶ 3). 14 But Plaintiff does not point to any such concrete plan. Instead, it presents only conclusory 15 allegations that Defendants might, maybe at some point soon, attempt to sell the land. 16 Plaintiff also alleges that “[e]vidence exists” that Defendants will sell the land “quite 17 possibly as soon as January 15, 2021.” (Doc. 1 at ¶ 6). Again, Plaintiff does not indicate 18 what this evidence is, and the language “quite possibly” only casts more doubt on the 19 immediacy of the sale. See also (Doc. 7 at 5) (alleging that FEIS “can then be immediately 20 followed upon publication by unimpeded agency action to attempt a conveyance”) 21 (emphasis added). While the publication of the FEIS is a threshold requirement for 22 Defendants to sell the land at issue, it does not mean, nor has Plaintiff shown any facts to 23 support, that Defendants will immediately thereafter sell the land. 24 To the contrary, according to the USDA’s website, the publication of the FEIS will 25 “initiate the 60-day window in which the lands would need to exchange.” See United States 26 Dep’t of Agriculture Forest Service, Resolution Copper Timeline, 27 https://www.fs.usda.gov/detail/r3/home/?cid=FSEPRD858166 (hereinafter “Resolution 28 Copper Timeline”) (last visited January 14, 2021). Plaintiff admits this in the Complaint. 1 See, e.g., (Doc. 1 at ¶ 31) (“Section 3003 of the NDAA mandates that the Southeast Arizona 2 Land Exchange shall be done no later than sixty (60) days after the publication of the 3 FEIS.”) Accordingly, it could take up to 60 days for Defendants to sell the land—weeks 4 after the TRO would expire and be converted to a preliminary injunction. Plaintiff provides 5 no “specific facts” for this Court to believe it will be sold any sooner, as Rule 56 requires. 6 The Court recognizes the anxiety that having one’s sacred land taken from them, 7 and used for purposes that run counter to their spiritual beliefs, might cause. But so too 8 must the Court recognize Defendants’ right to respond to Plaintiff’s allegations against 9 them, absent a compelling need to the contrary. See, e.g., Grannis v. Ordean, 234 U.S. 385, 10 394 (1914) (“The fundamental requiste [sic] of due process of law is the opportunity to be 11 heard.”). Without a showing of immediate and irreparable injury, the issuance of a TRO is 12 unwarranted. Instead the parties will brief, and the Court will rule on, the Motion for 13 Preliminary Injunction in ordinary course. However, in light of the 60-day timeframe, the 14 Court will set expedited briefing. 15 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Temporary 16 Restraining Order and Preliminary Injunction (Doc. 7) is denied in part to the extent that 17 it requests issuance of a Temporary Restraining Order. 18 IT IS FURTHER ORDERED that, no later than January 15, 2021, Plaintiff must 19 provide Defendants with a copy of the following: (1) the Complaint; (2) the Motion for 20 Preliminary Injunction; and (3) this Order. Plaintiff shall further file with the Court a notice 21 indicating when and how notice was provided. 22 IT IS FURTHER ORDERED that Defendants have until January 21, 2021 to 23 respond to the Motion for Preliminary Injunction (Doc. 7). 24 IT IS FURTHER ORDERED that Plaintiff shall have until January 25, 2021 to 25 file a reply in support of its Motion for Preliminary Injunction (Doc. 7). 26 IT IS FURTHER ORDERED that the Court will hold a hearing on the Motion for 27 Preliminary Injunction (Doc. 7) on January 27, 2021 at 9:00 a.m. The hearing shall be 28 held telephonically, and the parties shall jointly email Logan_Chambers@azd.uscourts.gov by January 25, 2020 to obtain the call-in information. 2 IT IS FURTHER ORDERED that the parties shall file a Joint Notice by January 20, 2021, indicating whether the motion may be decided on the briefing and argument of counsel alone. 5 Dated this 14th day of January, 2021. 6

g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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