Navajo Nation v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: September 29, 2022
• Docket: 3:21-cv-08190
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Navajo Nation, No. CV-21-08190-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Office of Navajo and Hopi Indian Relocation, et al., 13 Defendants. 14 15 INTRODUCTION 16 The Ninth Circuit previously observed that the “more-than-a-century-old dispute 17 between members of the Hopi Tribe and the Navajo Nation over the use of approximately 18 2.5 million acres in northern Arizona . . . has been the subject of extensive litigation and 19 legislation, including at least eighteen opinions of this court.” Clinton v. Babbitt, 180 F.3d 20 1081, 1083 (9th Cir. 1999). This lawsuit represents another instance of such litigation. 21 The background details are as follows. In 1882, President Chester A. Arthur signed 22 an executive order that “created a 2.5 million acre reservation for the Hopi Tribe and for 23 ‘such other Indians as the Secretary of Interior may see fit to settle thereon.’” Id. (citation 24 omitted). “Over the next several years, the Hopi Tribe enjoyed the right to use and occupy 25 the 2.5 million acre reservation, but the Navajo population in the area grew substantially. 26 Conflicting claims to exclusive use arose between the Hopi Tribe and the Navajo Nation, 27 producing what became known as ‘the greatest title problem in the West.’” Id. (citation 28 omitted). “In 1958, to quiet title to the area, Congress authorized litigation between the Case 3:21-cv-08190-DWL Document 32 Filed 09/29/22 Page 2 of 38

1 Hopi Tribe and the Navajo Nation. Pursuant to that litigation, a federal district court 2 determined that 650,000 acres of the disputed area belonged exclusively to the Hopi Tribe, 3 and that the Hopi Tribe and Navajo Nation had joint and undivided interests in the 4 remaining approximately 1.8 million acres, an area thereafter referred to as the ‘Joint Use 5 Area.’ Congress then directed the partitioning of the Joint Use Area in the Navajo and 6 Hopi Indian Land Settlement Act of 1974.” Id. (citations omitted). Among other things, 7 “[t]he 1974 Settlement Act required members of each tribe to move from lands partitioned 8 to the other tribe by 1986 and created a commission to pay for the major costs of such 9 relocations. As of 1996, the United States had spent more than $330 million to relocate 10 more than 11,000 tribal members.” Id. (citations omitted). 11 In this action, Plaintiff Navajo Nation (“the Nation”) has sued the Office of Navajo 12 and Hopi Indian Relocation (“ONHIR”) and the U.S. Department of the Interior (“DOI”) 13 (together, “Defendants”) for failing to comply with various provisions of the Settlement 14 Act and subsequent enactments, which the Nation refers to collectively as “the Relocation 15 Act.” (Doc. 1.)1 More specifically, the Nation seeks (1) declaratory relief that ONHIR 16 “has failed to provide necessary community facilities for Navajo relocatees in violation of 17 fiduciary obligations under the Relocation Act” and “injunctive relief to compel the 18 performance of that legal obligation” (id. ¶¶ 120-28); (2) declaratory relief that “ONHIR 19 has unreasonably delayed completion of relocation of Navajo citizens” and “injunctive 20 relief to advance prompt, proper completion of Navajo relocation” (id. ¶¶ 129-37); (3) 21 declaratory relief “confirming that ONHIR has not fully discharged its functions, and 22 injunctive relief to prevent ONHIR from closing before the President determines that 23 1 24 The Settlement Act, see P.L. 93-531, 88 Stat. 1712 (1974), was previously codified at 25 U.S.C. § 640d. However, effective September 1, 2016, § 640d of Title 25 was omitted 25 from the United States Code as being of “special and not general application.” This omission is editorial only and has no effect on the validity of the law, and Defendants have 26 provided a copy of the text of § 640d as an attachment to their motion. (Doc. 20-1.) The other components of the “Relocation Act” as alleged by the Nation (Doc. 1 ¶ 1) are the 27 Navajo and Hopi Indian Relocation Amendments Act of 1980, P.L. 96-305, 94 Stat. 929, the Navajo and Hopi Indian Relocation Amendments of 1988, P.L. 100-666, 102 Stat. 28 3929, and the Navajo and Hopi Indian Relocation Commission, Report and Plan (April 3, 1981).

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1 ONHIR has full[y] discharged its functions” (id. ¶¶ 138-42); and (4) declaratory relief 2 “confirming that ONHIR must obtain and DOI must provide reasonable assistance to 3 implement the Relocation Plan, and injunctive relief to require performance of those 4 obligations” (id. ¶¶ 143-48). Defendants have, in turn, moved to dismiss the Nation’s 5 complaint for lack of subject-matter jurisdiction and/or for failure to state a claim. (Doc. 6 20.) For the following reasons, the motion is granted in part and Defendants are granted 7 leave to file a second motion to dismiss with respect to Count One. 8 BACKGROUND 9 I. Legal Developments 10 As noted, the Settlement Act of 1974 “required members of each tribe to move from 11 lands partitioned to the other tribe by 1986 and created a commission,” now known as 12 ONHIR,2 “to pay for the major costs of such relocations.” Clinton, 180 F.3d at 1084. “The 13 Act also provided for various payments to be made to the heads of households that were 14 relocated,” including “the fair market value of the habitation and improvements owned in 15 the area,” “actual reasonable moving expenses,” “the cost of a ‘decent, safe and sanitary’ 16 replacement dwelling,” and “‘bonus’ payments to families who contracted to relocate 17 within certain time periods after the effective date of the relocation plan.” Begay v. United 18 States, 16 Cl. Ct. 107, 111 (1987), aff’d, 865 F.2d 230 (Fed. Cir. 1988).3 19 ONHIR was established “as an independent entity in the executive branch.” P.L. 20 93-531 § 12(a); 25 U.S.C. § 640d-11(a). The Settlement Act directed ONHIR to “prepare 21 and submit to the Congress a report concerning the relocation of households and members 22 thereof of each tribe.” P.L. 93-531 § 13(a); 25 U.S.C. § 640d-12(a). ONHIR was instructed 23 that the report “shall include a detailed plan providing for the relocation” and shall (1) “be 24 developed . . . in consultation with the persons involved in such relocation and appropriate 25 2 ONHIR’s predecessor agency was the Navajo and Hopi Indian Relocation 26 Commission (“NHIRC”). See P.L. 100-666 §4(c)(1)(C)(2), 102 Stat. 3929 (1988). For clarity, the Court will refer to NHIRC and ONHIR collectively as ONHIR. 27 3 ONHIR’s provision of such benefits is, in turn, subject to review under the 28 Administrative Procedures Act (“APA”). Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 (9th Cir. 1989).

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1 representatives of their tribal councils”; (2) “avoid or minimize, to the extent possible,” the 2 “adverse social, economic, cultural, and other impacts of relocation”; (3) “identify the sites 3 to which such households shall be relocated”; and (4) “assure that housing and related 4 community facilities and services, such as water, sewers, roads, schools and health 5 facilities, . . . [are] available at their relocation sites.” P.L. 93-531 § 13(c)(1)-(4). Congress 6 provided that “[t]he relocation shall take place in accordance with the relocation plan and 7 shall be completed by the end of five years from the date on which the relocation plan takes 8 effect.” P.L. 93-531 § 14(a); 25 U.S.C. § 640d-13(a). Congress also provided that ONHIR 9 “shall cease to exist when the President determines that its functions have been fully 10 discharged.” P.L. 93-531 § 12(i); 25 U.S.C. § 640d-11(f). 11 The relocation plan was submitted in April 1981 and took effect in July 1981.4 12 Thus, ONHIR’s relocation efforts were expected to be completed by July 1986. 13 Congress has amended the Settlement Act several times. In 1980, Congress passed 14 the Navajo and Hopi Indian Relocation Amendments Act, which, among other things, 15 “authorized” ONHIR to “call upon any department or agency of the United States to assist 16 [ONHIR] in implementing its relocation plan and completing relocation within the time 17 required by law, except that the control over and responsibility for completing relocation 18 shall remain in [ONHIR].” P.L. 96-305 § 5(3)(i); 25 U.S.C. § 640d-11(e). This law also 19 provided that “[i]n any case in which [ONHIR] calls upon any such department or agency 20 for assistance . . . , such department or agency shall provide reasonable assistance so 21 requested,” and “[o]n failure of any agency to provide reasonable assistance . . . [ONHIR] 22 shall report such failure to the Congress.” Id. 23 In 1988, Congress passed the Navajo and Hopi Indian Relocation Amendments, 24 which, in relevant part, directed ONHIR to submit to Congress a new relocation report. 25 4 26 The parties agree that these dates are accurate. (Doc. 1 ¶ 56; Doc. 20 at 3 & n.2.) Defendants also provide a citation to the report itself, see Navajo and Hopi Indian 27 Relocation Commission, Report and Plan, (April 3, 1981), available at https://www.onhir.gov/readingroom/, which they correctly contend may be considered at 28 the motion-to-dismiss stage because it is referenced in the complaint. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).

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1 P.L. 100-666 § 4(d). This law did not include the original language from the Settlement 2 Act that directed ONHIR, when formulating the relocation report, to “assure that . . . 3 community facilities and services, such as water, sewers, roads, schools and health 4 facilities . . . [would] be available at [the] relocation sites.” Compare P.L. 100-666 § 4(d) 5 (“Section 13 of Public Law 93-351 (25 U.S.C. § 640d-12) is amended to read as follows 6 . . . .”), with P.L. 93-531 § 13(c)(4). However, the law did retain language that ONHIR 7 was authorized to call upon any department or agency “to assist . . . in implementing the 8 relocation plan” and that “[n]otwithstanding any other provisions of law or any amendment 9 made by this Act . . . [ONHIR] shall . . . have the same structure, powers and responsibilities 10 [ONHIR] had before enactment of this Act . . . .” P.L. 100-666 § 4(a)-(c). 11 In 1996, Congress passed the Navajo-Hopi Land Dispute Settlement Act, which, in 12 relevant part, ratified a 1995 settlement agreement between the United States and the Hopi 13 Tribe and provided the necessary “authority for the [Hopi] Tribe to enter agreements with 14 eligible Navajo families in order for those families to remain residents of the Hopi 15 Partitioned Lands for a period of 75 years.” See P.L. 104-301; S. REP. 104-363, 104th 16 Cong. 2nd Sess. (1996). 17 II. Procedural History 18 On August 24, 2021, the Nation initiated this action by filing a complaint. (Doc. 1.) 19 On December 28, 2021, Defendants filed the pending motion to dismiss. (Doc. 20.) 20 On March 30, 2022, the Nation filed a response. (Doc. 25.) 21 On May 16, 2022, Defendants filed a reply. (Doc. 28.) 22 On September 14, 2022, the Court issued a tentative ruling. (Doc. 30.) 23 On September 23, 2022, the Court heard oral argument. (Doc. 31.) 24 … 25 … 26 … 27 … 28 …

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1 DISCUSSION 2 I. Legal Standards 3 A. Dismissal Under Rule 12(b)(1) 4 Courts “have an independent obligation to determine whether subject-matter 5 jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). See also Fed. R. 6 Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter 7 jurisdiction, the court must dismiss the action.”). “Under Rule 12(b)(1), a defendant may 8 challenge the plaintiff’s jurisdictional allegations in one of two ways. A ‘facial’ attack 9 accepts the truth of the plaintiff’s allegations but asserts that they are insufficient on their 10 face to invoke federal jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 11 2014) (citation omitted). “A ‘factual’ attack, by contrast, contests the truth of the plaintiff’s 12 factual allegations, usually by introducing evidence outside the pleadings.” Id. 13 B. Dismissal Under Rule 12(b)(6) 14 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege 15 ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 16 face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the 18 plaintiff pleads factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). 20 “[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and 21 are construed in the light most favorable to the non-moving party.” Id. at 1444-45 (citation 22 omitted). However, the Court need not accept legal conclusions couched as factual 23 allegations. Iqbal, 556 U.S. at 679-680. Moreover, “[t]hreadbare recitals of the elements 24 of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 679. 25 The Court also may dismiss due to “a lack of a cognizable theory.” Mollett v. Netflix, Inc., 26 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 27 … 28 …

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1 II. Count One 2 A. The Parties’ Arguments 3 In Count One, entitled “Failure of ONHIR to Provide Community Facilities and 4 Services for Navajo Relocatees,” the Nation alleges that ONHIR was required to “develop 5 for relocatee households at their relocation sites community facilities and services, such as 6 water, sewers, roads, schools, and health facilities, as well as power, telephone, and other 7 utilities, all of which are essential for successful relocation.” (Doc. 1 ¶¶ 120-28.) The 8 Nation further alleges that ONHIR has failed to carry out this obligation. (Id. ¶ 127.) The 9 Nation thus seeks a declaration, under the Declaratory Judgment Act (“DJA”), 28 U.S.C. 10 § 2201(a), that ONHIR has failed to meet its infrastructure obligations. (Id. ¶ 128.) The 11 Nation also alleges that, absent such a declaratory judgment “and injunctive relief to 12 compel performance,” the Nation and its citizens will be irreparably harmed. (Id.) 13 Defendants address Counts One and Two collectively, arguing that both should be 14 dismissed because they fail to challenge “discrete agency action” as required under the 15 Administrative Procedure Act (“APA”). (Doc. 20 at 6.) As for Count One specifically, 16 Defendants contend that, even assuming a duty to provide infrastructure exists (which 17 Defendants dispute given the apparent removal of the infrastructure-related language via 18 the 1988 amendments), any such duty leaves ONHIR with a great deal of discretion, and 19 because the Nation is seeking “wholesale judicial management of ONHIR”—that is, the 20 Nation asks the Court to compel ONHIR to comply with all provisions of the Settlement 21 Act, set timelines, and retain jurisdiction to ensure compliance—this constitutes a broad 22 programmatic challenge that is not permissible under the APA. (Id. at 6-11.) 23 The Nation responds that Count One “seeks a declaratory judgment under the DJA 24 on ONHIR’s duty under the Relocation Act to ensure community facilities and services for 25 relocatees and only relies on the APA for a sovereign immunity waiver.” (Doc. 25 at 5.) 26 Thus, the Nation contends that the Court may consider Count One “regardless of the APA’s 27 final agency action requirements.” (Id.) The Nation acknowledges that the DJA is only a 28 procedural device but argues that jurisdiction exists here because, under 28 U.S.C. § 1362,

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1 “an Indian tribe may pursue a claim in federal district court so long as ‘the matter in 2 controversy arises under the Constitution, laws, or treaties of the United States,’” and 3 because § 702 of the APA “waives federal sovereign immunity for non-monetary non-APA 4 claims against federal agencies to enforce specific federal duties, such as Indian breach of 5 trust claims.” (Id. at 6-7.) Finally, the Nation identifies various reasons why, 6 notwithstanding the 1988 amendment, ONHIR should be deemed to have a continuing 7 obligation to ensure that infrastructure exists at relocation sites. (Id. at 7-9.) 8 In reply, Defendants state they “assumed the claim relied on the APA because the 9 portion of the Nation’s Prayer for Relief that seeks the relevant injunction cites § 706(1).” 10 (Doc. 28 at 4 n.4.) At any rate, Defendants argue that “[t]he Nation cannot rely on the DJA 11 to create jurisdiction or a cause of action.” (Id. at 4 n.5.) Defendants contend that the 12 Nation is attempting to recast Count One as a breach of trust claim, even though no such 13 claim appears in the complaint, and argue that Count One would fail even if recast in this 14 fashion because the Nation does not “identify a substantive federal law that establishes a 15 specific, enforceable fiduciary duty.” (Id. at 4-5 & n.6.) More specifically, Defendants 16 argue that the provisions cited by the Nation do not contain express trust language or evince 17 congressional intent to create an enforceable trust relationship. (Id. at 5-7.) 18 B. Analysis 19 The dismissal analysis concerning Count One is complicated by the parties’ 20 disagreement as to the nature of that claim. In the motion to dismiss, Defendants 21 characterize Count One as a claim under § 706(1) of the APA and argue that it fails to 22 satisfy the “discrete agency action” requirement that applies to § 706(1) claims. See 23 generally Norton v. S. Utah Wilderness All. (“SUWA”), 542 U.S. 55, 64 (2004) (“[A] claim 24 under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a 25 discrete agency action that it is required to take.”); Whitewater Draw Nat. Res. 26 Conservation Dist. v. Mayorkas, 5 F.4th 997, 1010-11 (9th Cir. 2021) (“It is axiomatic that 27 Plaintiffs must identify an ‘agency action’ to obtain review under the APA. An agency 28 action is circumscribed and discrete, such as a rule, order, license, sanction or relief. A

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1 plaintiff or petitioner must direct its attack against some particular ‘agency action’ that 2 causes it harm. This limitation on judicial review precludes broad programmatic attacks, 3 whether couched as a challenge to an agency’s action or failure to act.”) (cleaned up). In 4 response, the Nation disclaims any reliance on § 706(1) with respect to Count One and 5 does not dispute Defendants’ contention that, if Count One were construed as a claim under 6 § 706(1), it would be subject to dismissal because it raises an impermissible programmatic 7 attack. (Doc. 25 at 1 [“Defendants cannot avoid that claim based on irrelevant APA limits 8 for final agency actions.”].)5 Accordingly, to the extent Count One is a claim arising under 9 § 706(1) of the APA, it is dismissed without leave to amend.6 10 If Count One isn’t a claim under § 706(1) of the APA, what is it? The Nation 11 provides the following description of Count One in its response: “The first claim . . . 12 properly seeks a declaration under the Declaratory Judgment Act (‘DJA’) and a sovereign 13 immunity waiver in the [APA] that the Relocation Act requires [ONHIR] to assure that 14 community facilities and services, such as water, sewers, roads, schools, and health care 15 5 In the tentative ruling, the Court stated that it was objectively reasonable for Defendants to interpret Count One as a § 706(1) claim. However, during oral argument, 16 the Nation identified reasons why, in its view, Count One should have been reasonably understood of a breach-of-trust claim. The Court concludes that, regardless of which side 17 was at fault for the initial confusion, it would benefit from additional briefing in which both sides share the same understanding of Count One. 18 6 Defendants argue this dismissal should be pursuant to Rule 12(b)(1). (Doc. 20 at 19 11.) On the one hand, Defendants’ cited cases seem to support the notion that when an APA claim is dismissed based on a failure to challenge final or discrete agency action, the 20 dismissal is for lack of subject-matter jurisdiction. Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006); Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 21 1113 (9th Cir. 2005) (“Because the Center fails to allege a discrete agency action . . . we affirm the district court’s dismissal for lack of subject matter jurisdiction.”). On the other 22 hand, the Ninth Circuit’s more recent decision in Whitewater Draw arguably takes a contrary approach. There, the district court concluded the APA claim in Count II should 23 be dismissed under Rule 12(b)(6) because it asserted an impermissible “broad programmatic attack” and the Ninth Circuit affirmed without stating that the dismissal 24 should have been under Rule 12(b)(1). 5 F.4th at 1007, 1010-1012. Although the court noted (without resolving) a dispute over whether a different APA claim should have been 25 dismissed under Rule 12(b)(1) or Rule 12(b)(6), it did not suggest this dispute extended to Count II. Id. at 1007 n.3. Other courts have noted the seeming lack of consistency in this 26 area. Long Term Care Pharmacy Alliance v. Leavitt, 530 F. Supp. 2d 173, 187 n.7 (D.D.C. 2008) (“While several leading cases address this question as an issue of standing and 27 subject matter jurisdiction under Rule 12(b)(1), other courts have resolved the issue under Rule 12(b)(6).”) (citations omitted). At any rate, regardless of whether the dismissal is 28 under Rule 12(b)(1) or Rule 12(b)(6), Count One is dismissed without leave to amend to the extent it is an APA claim under § 706(1).

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1 facilities, are available for Navajo relocatees.” (Doc. 25 at 1.) 2 Unfortunately, this description does not fully address the considerations that bear 3 on whether a claim against a federal agency should survive dismissal. See generally 4 Kialegee Tribal Town v. Zinke, 330 F. Supp. 3d 255, 263 (D.D.C. 2018) (“When bringing 5 a lawsuit against the United States, a plaintiff must identify: (1) a source of subject matter 6 jurisdiction; (2) a waiver of sovereign immunity; and (3) a cause of action.”). For example, 7 although the Nation emphasizes that it is seeking declaratory relief under the DJA, that 8 statute “is a procedural device only; it does not confer an independent basis of jurisdiction 9 on the federal court. A declaratory judgment action may be entertained in federal court 10 only if the coercive action that would have been necessary, absent the declaratory judgment 11 procedure, could have been heard in a federal court.” Guar. Nat. Ins. Co. v. Gates, 916 12 F.2d 508, 511 (9th Cir. 1990). Accordingly, for Count One to survive dismissal, the Nation 13 must also “identify a cause of action under some other law.” Tex. Health & Human Servs. 14 Comm’n v. United States, 166 F. Supp. 3d 706, 712 (N.D. Tex. 2016). See generally Bisson 15 v. Bank of Am., N.A., 919 F. Supp. 2d 1130, 1139-40 (W.D. Wash. 2013) (“[T]he court 16 cannot grant declaratory relief in the absence of a substantive cause of action. . . . The 17 Declaratory Judgment Act creates only a remedy, not a cause of action. Plaintiffs might 18 have a claim for declaratory relief if they could properly plead a cause of action that 19 establishes that they have a legal right to the information they seek.”); Pettit v. Fed. Nat. 20 Mortgage Ass’n, 678 F. App’x 468, 469 (9th Cir. 2017) (affirming “the district court’s 21 judgment dismissing [t]his action seeking a declaratory judgment” because the plaintiff 22 “failed to allege facts sufficient to state a viable cause of action”). 23 Similarly, although the Nation correctly notes that § 702 of the APA creates a waiver 24 of sovereign immunity when a plaintiff asserts a non-APA claim for non-monetary relief 25 against a federal agency, see Navajo Nation v. Department of the Interior, 876 F.3d 1144, 26 1168-72 (9th Cir. 2017) (“Navajo Nation I”), which is how the Nation characterizes Count 27 One, that observation does not address the distinct question of whether Count One, so 28

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1 characterized, qualifies as a valid non-APA claim.7 2 On that issue, the Nation has clarified that Count One is an “Indian breach of trust 3 claim,” predicated on “ONHIR’s fiduciary duty to ensure community facilities and services 4 for Navajo relocates,” that is analogous to the breach-of-trust claim analyzed by the Ninth 5 Circuit in Navajo Nation v. Department of Interior, 26 F.4th 794 (9th Cir. 2022) (“Navajo 6 Nation II”). (Doc. 25 at 6-7.) Although Defendants attempt to address the validity of such 7 a claim in their reply, the Court concludes that it would be inappropriate to delve into the 8 merits of that issue on this record. The Court’s review of Navajo Nation II and some of 9 the authorities cited in Defendants’ reply suggests that any analysis of whether a fiduciary 10 duty exists in this context (which is a prerequisite to asserting the sort of breach-of-trust 11 claim the Nation wishes to assert) would be quite complicated. However, due to the 12 manner in which the briefing sequence unfolded, the issue is not comprehensively briefed. 13 Under the circumstances, the best solution is to dismiss Count One to the extent it 14 is a claim under § 706(1) of the APA, clarify that Count One is actually a breach-of-trust 15 claim, and grant Defendants leave to file a second motion to dismiss with respect to Count 16 One.8 17 … 18 … 19 … 20 7 Similarly, to the extent the Nation seeks to rely on 28 U.S.C. § 1362 (Doc. 25 at 6), 21 that statute does not bear on whether Count One is premised on a valid cause of action. Kialegee Tribal Town, 330 F. Supp. 3d at 263-64, 266; Little River Band of Ottawa Indians 22 v. NLRB, 747 F. Supp. 2d 872, 883-85 (W.D. Mich. 2010). 8 23 Another option, which was discussed in the tentative ruling issued before oral argument, would be to dismiss Count One with leave to amend. This approach would allow 24 the Nation to add allegations in support of its breach-of-trust theory, at which point Defendants could file a motion to dismiss the amended pleading. However, during oral 25 argument, the Nation stated that no amendments are necessary. Accordingly, in lieu of dismissing Count One in its entirety and granting leave to amend, the Court will simply 26 allow Defendants to file another motion to dismiss now that the nature of Count One has been clarified. Cf. Hasbrouck v. Yavapai County, 2021 WL 321894, *12 (D. Ariz. 2021) 27 (“[E]ven though a party is ordinarily barred by Rule 12(g)(2) from filing a successive motion to dismiss on grounds that could have been raised in an earlier dismissal motion, 28 the Court will permit the County to file another dismissal motion that addresses Count One.”) (citing In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 2017)).

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1 III. Count Two 2 A. The Parties’ Arguments 3 In Count Two, entitled “Unreasonabl[e] Delay By ONHIR In Completing 4 Relocation Of Navajos From Hopi-Partitioned Land,” the Nation alleges that “the 35-year 5 delay here beyond an express statutory deadline for completion of relocation . . . is 6 categorically unreasonable” and contends that “[t]his Court must ‘compel agency action 7 unlawfully held or unreasonably delayed’” pursuant to 5 U.S.C. § 706(1). (Doc. 1 ¶¶ 130- 8 31.) The Nation also alleges that “expediting delayed relocation should not unduly affect 9 other ONHIR activities . . . since ONHIR’s basic function concerns relocation . . . [and] to 10 the extent that ONHIR itself has difficulty . . . [in] properly complet[ing] relocation, 11 ONHIR possesses explicit statutory authority to call upon other departments and agencies 12 for assistance.” (Id. ¶ 134.) The Nation concludes that “[a]bsent a declaratory judgment 13 confirming ONHIR’s unreasonable delay in completing relocation of Navajo citizens and 14 injunctive relief to compel the performance of that long-overdue legal obligation, the 15 Nation and over 50,000 of its citizens spread across many Navajo Chapters will continue 16 to be immediately, continuously, and irreparably harmed by ONHIR’s ongoing illegal 17 actions.” (Id. ¶ 137.) 18 Defendants contend that Count Two should be dismissed under Rule 12(b)(1) 19 because it fails to challenge a discrete agency action that is subject to judicial review under 20 the APA. (Doc. 20 at 6-11.) Defendants characterize Count Two as raising a “sweeping 21 programmatic challenge” because it seeks to compel ONHIR to “comply with all 22 provisions of the Settlement Act and Relocation Plan” and contend that the Supreme Court 23 has determined that such broad, programmatic attacks are impermissible. (Id. at 9.) 24 Defendants also note that the Nation doesn’t allege that ONHIR hasn’t provided any 25 infrastructure, but rather challenges the “adequacy” of ONHIR’s performance (i.e., the 26 speed of relocation), and argues that a challenge to general deficiencies in compliance is 27 not specific enough to qualify as “agency action.” (Id. at 9-10.) 28 In response, the Nation acknowledges that Count Two is a claim under § 706(1) of

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1 the APA but disputes that Count Two raises an impermissible programmatic attack; 2 “[r]ather, the second claim seeks one thing: to compel completion of relocation since it is 3 already more than 35 years past the date by when the [Settlement] Act required 4 [completion]. . . . All additional details are merely context and do not detract from that 5 sole . . . relief.” (Doc. 25 at 9-10.) The Nation argues that the APA empowers courts to 6 compel agency action unlawfully withheld or unreasonably delayed, even if the agency’s 7 action entails some discretionary judgment, and to retain jurisdiction to enforce compliance 8 within a certain timeline. (Id. at 10, 12.) For example, the Nation contends that “a court 9 can compel ‘issuance of a plan for future trust administration as a whole’ based on specific 10 findings of failure to comply with governing statutory duties.” (Id. at 10, citation omitted.) 11 According to the Nation, such court-ordered mandates “contrast with claims for wholesale, 12 programmatic improvement.” (Id.) As for the unreasonableness of the delay, the Nation 13 contends that there was a specific statutory command to complete relocation within five 14 years of the relocation plan taking effect (i.e., by July 1986), prior cases have established 15 that a delay of less than 36 years is unreasonable, there are intolerable impacts to health 16 and welfare stemming from the delay, ONHIR has no higher competing priorities to 17 address, and it is irrelevant that there is no evidence of impropriety on ONHIR’s part in 18 causing the delay. (Id. at 11-12.) 19 In reply, Defendants reiterate that Count Two seeks to compel ONHIR, via the APA, 20 to promptly perform the entirety of its remaining functions and contend that “[t]he Nation 21 does not . . . explain how seeking to compel an agency to perform the entirety of its 22 functions could possibly be considered discrete.” (Doc. 28 at 2-3.) Defendants also argue 23 that the Nation seeks sweeping relief and the micromanagement of ONHIR’s compliance, 24 notwithstanding ONHIR’s discretion in deciding how to achieve relocation, and argues that 25 “the APA does not empower a court to supervise an agency’s compliance with a broad 26 statutory mandate. Courts cannot simply enter a general order compelling compliance with 27 a statutory mandate and then determine whether compliance was achieved.” (Id. at 3-4 28 [cleaned up].)

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1 B. Analysis 2 Under the APA, “the person claiming a right to sue must identify some ‘agency 3 action’ that affects him in the specified fashion.” Lujan v. Defenders of Wildlife, 497 U.S. 4 871, 882 (1990) (citations omitted). The APA defines “agency action” as an “agency rule, 5 order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 6 U.S.C. §§ 551(13), § 701(b)(2). These categories all “involve circumscribed, discrete 7 agency actions, as their definitions make clear.” SUWA, 542 U.S. at 62. Thus, for APA 8 purposes, a “failure to act” is “properly understood as a failure to take an agency action— 9 that is, a failure to take one of the agency actions . . . earlier defined.” Id. It follows that a 10 plaintiff bringing a failure-to-act claim under § 706(1) must allege “that an agency failed 11 to take a discrete agency action that it is required to take.” Id. at 64. A corollary to these 12 principles is that the APA “precludes broad programmatic attacks, whether couched as a 13 challenge to an agency’s action or failure to act.” Whitewater Draw, 5 F.4th at 1010-11 14 (cleaned up). “Plaintiffs either must identify a particular action by [the agency] that they 15 wish to challenge under the APA, or they must pursue their remedies before the agency or 16 in Congress.” Id. at 1012. 17 Count Two is subject to dismissal under these standards because it fails to target 18 discrete agency action and instead raises a programmatic attack. In Count Two, the Nation 19 seeks to compel ONHIR to complete all of its multifaceted obligations and responsibilities 20 pertaining to relocation as described in the Relocation Act. (Doc. 1 ¶¶ 135-36 [alleging 21 that ONHIR’s unreasonable delay has caused prejudice to “over 16,000 already relocated 22 Navajos and over 33,000 other Navajos within their communities who remain severely 23 impacted by waiting decades for provision of essential community facilities and services 24 for relocates” and seeking “injunctive relief to advance prompt, proper completion of 25 Navajo relocation”]; id. at 58 [asking the Court to “compel ONHIR under the APA to 26 promptly complete unreasonably delayed relocation per the Relocation Plan under the 27 Relocation Act . . . , including without limitation completion of benefits eligibility 28 determinations, land selections, provision of individual or family relocation benefits, and

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1 provision for relocatees at their relocation sites of community facilities and services, such 2 as water, power, telephone, sewers, roads, schools, and health facilities”].) Additionally, 3 the Nation seeks to place the Court in an active oversight role, which would include 4 creating and enforcing “a strict timeline for action by ONHIR and DOI with specific 5 deadlines subject to modification based only on new information showing that modification 6 is required, with the Court retaining jurisdiction to ensure compliance pending completion 7 of relocation.” (Id. at 59.) 8 Courts have repeatedly held that such claims cannot be brought under the APA. In 9 Lujan, the Supreme Court rejected a “challenge [to] the entirety of petitioners’ so-called 10 ‘land withdrawal review program’” because the program was “not an ‘agency action’ 11 within the meaning of § 702, much less a ‘final agency action’” and instead was “simply 12 the name by which petitioners have occasionally referred to the continuing (and thus 13 constantly changing) operations of the BLM in reviewing withdrawal revocation 14 applications and the classifications of public lands and developing land use plans.” 497 15 U.S. at 890. The Court acknowledged the possibility that “violation of the law is rampant 16 within this program” but held that, even if this were true, the plaintiffs could not “seek 17 wholesale improvement of this program by court decree, rather than in the offices of the 18 Department or the halls of Congress, where programmatic improvements are normally 19 made.” Id. at 891. Similarly, in SUWA, the Supreme Court rejected a request for 20 declaratory and injunctive relief premised on a federal agency’s “failure to act to protect 21 public lands in Utah from damage caused by [off-road vehicle] use,” emphasizing that 22 “[t]he prospect of pervasive oversight by federal courts over the manner and pace of agency 23 compliance with [broad] congressional directives is not contemplated by the APA.” 542 24 U.S. at 65-67. And again, in Whitewater Draw, the plaintiffs challenged a federal agency’s 25 alleged failure “to consider the environmental impacts of various immigration programs 26 and immigration-related policies.” 5 F.4th at 1003-04. The district court granted the 27 agency’s motion to dismiss this claim under Rule 12(b)(6) and the Ninth Circuit affirmed, 28 holding that a plaintiff asserting an APA claim “must direct its attack against some

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1 particular agency action that causes it harm” and, as a result, the APA “precludes broad 2 programmatic attacks, whether couched as a challenge to an agency’s action or failure to 3 act.” Id. at 1010 (cleaned up). The court held that the plaintiffs’ claim qualified as an 4 impermissible programmatic attack because “the challenged ‘programs’ merely refer to 5 continuing operations of DHS in regulating various types of immigration.” Id. at 1012. 6 Although the court acknowledged that requiring a “case-by-case approach is 7 understandably frustrating to those seeking across-the board relief,” it concluded that 8 “Plaintiffs either must identify a particular action by DHS that they wish to challenge under 9 the APA, or they must pursue their remedies before the agency or in Congress.” Id. at 10 1011-12 (cleaned up). As one treatise summarizes: “The APA authorizes challenges to 11 specific actions—such as a particular rule or order. It does not authorize plaintiffs to pile 12 together a mish-mash of discrete actions into a ‘program’ and then sue an agency to force 13 broad policy changes to this ‘program.’” 33 Charles Alan Wright et al., Fed. Prac. and 14 Proc. Judicial Review § 8322 (2d ed., Apr. 2021 update). 15 The Nation attempts to distinguish its claim in Count Two from the above-cited 16 authorities by arguing that it simply seeks a declaration that ONHIR must comply with a 17 statutory deadline, and “[a]ll of the other details are merely context and do not detract from 18 that sole warranted and viable relief.” (Doc. 25 at 10.) This argument fails for several 19 reasons. For one thing, although it is true that “when an agency is compelled by law to act 20 within a certain time period, but the manner of its action is left to the agency’s discretion, 21 a court can compel the agency to act,” SUWA, 542 U.S. at 65, the Nation does not simply 22 request a declaration concerning compliance with a deadline—it also asks the Court to 23 assume an oversight role of indefinite duration over ONHIR’s multitude of relocation 24 functions. But “[t]he obvious inability for a court to function in such a day-to-day 25 managerial role over agency operations is precisely the reason why the APA limits judicial 26 review to discrete agency actions.” Village of Bald Head Island v. U.S. Army Corps of 27 Engineers, 714 F.3d 186, 194 (4th Cir. 2013). 28 Another problem is that, in the unreasonable delay cases cited by the Nation, the

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1 action that the agency failed to complete was a truly discrete action, such as issuing a 2 proposed rule in response to a particular rulemaking petition, In re A Community Voice, 3 878 F.3d 799 (9th Cir. 2017); or responding to a particular rulemaking petition, Pesticide 4 Action Network N. Am. v. EPA, 798 F.3d 809 (9th Cir. 2015); or providing health care and 5 health-related notifications to a discrete group of test subjects, Vietnam Veterans of Am. v. 6 Central Intelligence Agency, 811 F.3d 1068 (9th Cir. 2016). Here, in contrast, the Nation 7 seeks to compel ONHIR—which “shall cease to exist when the President determines that 8 its functions have been fully discharged,” see 25 U.S.C. § 640d-11(f)—to complete the 9 entirety of its statutory functions by a court-determined deadline, even though the President 10 has not decreed that its functions have been fully discharged, while the Court serves in an 11 oversight role. It is an understatement to say that this request is dramatically different from 12 sort of agency-inaction claims that courts have found cognizable under § 706(1). 13 Finally, and in a related vein, the Nation acknowledged during oral argument that it 14 is unaware of any case in which a court has ordered an agency to complete the entirety of 15 its functions by a deadline. In the Court’s view, the absence of such authority is telling. It 16 is difficult, even when taking into account the uniqueness of ONHIR’s structure and 17 purpose, to see how the Nation’s request here could qualify as anything short of a 18 programmatic attack.9 19 In sum, the Nation’s request to require ONHIR to complete all of its relocation 20 duties by a court-ordered deadline, with the Court acting as a compliance monitor, qualifies 21 as a broad programmatic attack that is not cognizable under the APA. The Court does not, 22 in any way, discount the Nation’s frustration with the pace of the relocation effort, but the 23 judicial branch of our system of government lacks the competence and constitutional 24 prerogative to provide the sort of relief that Count Two seeks. As the Ninth Circuit recently 25 noted, “systemic challenges seeking wholesale improvement by court decree [are] properly 26 matters that should be pursued in [agency offices] or the halls of Congress, where 27 9 The tentative ruling included a discussion of whether Congress may have approved 28 or acquiesced in the delay. Because that discussion, which the Nation challenged during oral argument, is unnecessary to the outcome here, it has been removed.

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1 programmatic improvements are normally made. . . . [T]his case-by-case approach is 2 understandably frustrating to those seeking across-the board relief . . . [but] more sweeping 3 actions are for the other branches.” Whitewater Draw, 5 F.4th at 1011-12 (cleaned up). 4 Accordingly, Count Two is dismissed.10 5 III. Count Three 6 A. The Parties’ Arguments 7 In Count Three, entitled “Failure By ONHIR to Fully Discharge Its Functions 8 Before Working To Close,” the Nation alleges that “ONHIR has stated an intention to 9 close, has developed plans for that, and has actively worked to prepare for closure. 10 However, ONHIR still has much work to do to complete relocation and has not provided 11 information that could facilitate a determination by the President that ONHIR’s functions 12 have been fully discharged, as required for ONHIR to cease operations.” (Doc. 1 ¶ 140.) 13 Accordingly, the Nation seeks a declaration “that ONHIR has not fully discharged its 14 functions and may not cease to exist unless and until there is a Presidential determination 15 that ONHIR’s functions have been fully discharged” and an injunction “to prevent 16 premature closure and unauthorized closure of ONHIR.” (Id. ¶ 141.) 17 Defendants identify various reasons why Count Three should be dismissed. (Doc. 18 20 at 11-14.) First, Defendants argue that Count Three “must rely on the APA’s right of 19 action” because the relevant provision of the Settlement Act contains no “rights-creating 20 language” and does not confer an implied right of action upon the Nation. (Id. at 11-12.) 21 Defendants continue that, if Count Three is an APA claim, it necessarily fails because the 22 challenged agency conduct (i.e., stating an intention to close and actively working to 23 prepare for closure) are not discrete or final agency actions. (Id. at 12-13.) Second, and 24 seemingly in the alternative, Defendants contend that Count Three should be dismissed 25 under Rule 12(b)(6) because “ONHIR has no statutory obligation or authority to terminate 26 its own operations, [and] there is no basis for the Court to mandate that ONHIR ‘may not 27 10 28 As discussed in footnote six, it is not clear whether this dismissal should be pursuant to Rule 12(b)(1) or Rule 12(b)(6), but dismissal is warranted regardless.

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1 cease to exist unless and until there is a Presidential determination that ONHIR’s functions 2 have been fully discharged.’” (Id. at 13-14.) 3 In response, the Nation first argues that Defendants’ concession that only the 4 President can terminate ONHIR’s operations actually supports Count Three, because it 5 confirms that ONHIR may not itself take further action to close. (Doc. 25 at 12-13.) Next, 6 the Nation disputes Defendants’ characterization of Count Three as an APA claim, arguing 7 that Count Three actually “seeks a declaratory judgment for a non-monetary, non-APA 8 claim against a federal agency for compliance with a specific federal duty, here based on 9 violation of a specific federal proscription.” (Doc. 25 at 12-13.) As a result, the Nation 10 argues that “[t]his claim is not subject to the APA’s final agency action restriction.” (Id. 11 at 13.) The Nation argues that “[l]ike for the non-APA claim in Navajo I and Navajo II to 12 enforce a Navajo treaty, a private right of action is not required here.” (Id.) The Nation 13 further argues that the Relocation Act creates an implied right of action to assert a 14 premature closure claim because (1) the “the Relocation Act was specially enacted to 15 benefit the Nation and Navajos subject to relocation, including host communities, and . . . 16 an implied cause of action for the Nation on behalf of itself and affected Navajos is 17 consistent with the purposes of the Relocation Act”; (2) “there are exclusively federal 18 affirmative fiduciary obligations to Navajos required to relocate from HPL under the 19 Relocation Act”; and (3) “the Relocation Act provides for remedial litigation by the Nation 20 and the Hopi Tribe on behalf of their citizens,” which helps “inform” the jurisdictional 21 analysis for non-intertribal litigation under the Relocation Act. (Id. at 13-15.) 22 In reply, Defendants contend that the Nation has no right of action with respect to 23 Count Three because (1) there is no explicit, rights-creating language in the relevant 24 statutory provisions; (2) the fact that Congress enacted the Settlement Act to benefit Navajo 25 relocatees is, in itself, insufficient to create an implied right of action; (3) the relevant 26 provisions here don’t focus on the individuals protected or the parties being regulated, but 27 rather focus on the agency that will do the regulating; and (4) the existence of a right of 28 action under one statutory section (here, the provision addressing inter-tribal disputes) does

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1 not mean such a right of action exists with respect to other sections. (Doc. 28 at 7-9.) Next, 2 Defendants reiterate their contention that, to the extent Count Three is an APA claim, if 3 fails due to a lack of discrete or final agency action. (Id. at 10.) Finally, Defendants 4 reiterate their contention that Count Three also fails as a matter of law because ONHIR is 5 not the proper defendant to this claim and no actual controversy exists between the 6 parties—although the Nation seeks a declaratory judgment that ONHIR may not close until 7 there has been a determination by the President that its function has been fully discharged, 8 Defendants agree with this assertion. (Id. at 10-11.) 9 B. Analysis 10 Count Three is subject to dismissal for two independent reasons. 11 The first, which was not apparent to the Court when it issued the tentative ruling but 12 became more apparent during oral argument, is that Count Three does not present a 13 justiciable controversy. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time 14 that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The Nation 15 seeks a declaration that ONHIR “has not fully discharged its functions and may not cease 16 to exist unless and until there is a Presidential determination that ONHIR’s functions have 17 been fully discharged” (Doc. 1 ¶ 141), but Defendants are in full agreement on these points 18 and acknowledge that ONHIR cannot cease to exist in the absence of a presidential decree. 19 (Doc. 28 at 11.) 20 Given the absence of an actual controversy between the parties as to this core issue, 21 the Court lacks authority to grant relief. “As required by Article III, courts may adjudicate 22 only actual cases or controversies. When presented with a claim for a declaratory 23 judgment, therefore, federal courts must take care to ensure the presence of an actual case 24 or controversy, such that the judgment does not become an unconstitutional advisory 25 opinion.” Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1157 (9th Cir. 2007). See also 26 Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994) (noting that the DJA’s 27 statutory requirement of an “actual controversy” is “identical to Article III’s constitutional 28 case or controversy requirement”). “To qualify as a case fit for federal-court adjudication,

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1 an actual controversy must be extant at all stages of review, not merely at the time the 2 complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) 3 (citations and internal quotation marks omitted). Here, where both sides agree that ONHIR 4 has not fully discharged its functions and cannot close until the President makes the 5 necessary decree, there would be no point in the Court issuing a confirmatory declaration 6 or injunctive relief to that effect. 7 When pressed on this issue during oral argument, the Nation stated that it believes 8 there “is a case or controversy because ONHIR is . . . actively taking steps to prepare for 9 closure rather than implementing relocation.” In response, the Court asked whether an 10 agency that “thinks it’s in the final stretches of its mission” is allowed to simultaneously 11 “continu[e] to complete its mission while also taking steps to close, because as soon as it 12 completes those final steps, it will then close.” The Nation replied that “an agency can do 13 that in general” but asserted that “the challenge here is that ONHIR is spending . . . precious 14 time and resources working to close instead of implementing relocation.” In the Court’s 15 view, this exchange exacerbates rather than resolves the justiciability problem. Not only 16 is the Nation seeking a declaration as to a particular issue (i.e., whether ONHIR has fully 17 discharged its functions and may close in the absence of a presidential decree) as to which 18 there is no actual controversy, but the asserted injury that gives rise to the Nation’s claim 19 in Count Three (i.e., ONHIR’s diversion of resources away from relocation efforts and 20 toward closure efforts) would not be redressed by the relief the Nation seeks—even if the 21 Court declared that ONHIR has not fully discharged its functions and may not close in the 22 absence of a presidential decree (and then issued injunctive relief to that effect), ONHIR 23 would remain free to continue preparing to close and to continue allocating resources 24 toward those preparation efforts. This poses a redressability problem. Cf. Juliana v. United 25 States, 947 F.3d 1159, 1168-71 (9th Cir. 2020) (noting that Article III standing requires a 26 showing that the asserted injury “is likely redressable by a favorable judicial decision” and 27 holding that the plaintiffs’ claim for “remedial declaratory and injunctive relief” was likely 28 deficient as to this requirement because “an order simply enjoining [the challenged]

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1 activities will not . . . ameliorate [plaintiffs’] injuries” and “[a] declaration, although 2 undoubtedly likely to benefit the plaintiffs psychologically, is unlikely by itself to 3 remediate their alleged injuries absent further court action”). 4 Alternatively, even if Count Three presented a justiciable controversy, it would be 5 subject to dismissal due to the absence of a valid cause of action. On this issue, the Nation 6 disclaims any reliance on the APA, so the analysis turns on whether the Relocation Act 7 should be construed as creating an implied right of action to bring a claim related to 8 ONHIR’s premature closure. 9 “A plaintiff may only bring a cause of action to enforce a federal law if the law 10 provides a private right of action. The ability to bring a private right of action may be 11 authorized by the explicit statutory text or, in some instances, may be implied from the 12 statutory text. However, an implied right of action is only authorized when there is clear 13 evidence Congress intended such a right to be part of the statute.” Nisqually Indian Tribe 14 v. Gregoire, 623 F.3d 923, 929 (9th Cir. 2010) (citations omitted). Thus, “[t]he judicial 15 task is to interpret the statute Congress has passed to determine whether it displays an intent 16 to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 17 U.S. 275, 286 (2001). The Supreme Court has “outlined a four-factor inquiry for 18 determining whether a statute provides an implied right of action. These factors are: (1) 19 whether the plaintiff is one of the class for whose especial benefit the statute was enacted; 20 (2) whether there is any indication of legislative intent, explicit or implicit, either to create 21 or to deny a private right of action; (3) whether it is consistent with the underlying purposes 22 of the legislative scheme to imply a private right of action; and (4) whether the cause of 23 action is one traditionally relegated to state law.” Nisqually Indian Tribe, 623 F.3d at 929 24 (citing Cort v. Ash, 422 U.S. 66 (1975)) (cleaned up). However, “[s]ince announcing this 25 test, the Supreme Court has elevated intent into a supreme factor, and Cort’s other three 26 factors are used to decipher congressional intent.” Lil’ Man in the Boat, Inc. v. City and 27 County of San Francisco, 5 F.4th 952, 958 (9th Cir. 2021) (citation and internal quotation 28 marks omitted). See also Logan v. U.S. Bank Nat. Ass’n, 722 F.3d 1163, 1171 (9th Cir.

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1 2013) (“Because the Supreme Court has elevated intent into a supreme factor, we start 2 there and do not feel constrained by the Cort framework.”). 3 Additionally, “[w]hether a federal statute provides a private right of action almost 4 always arises in the context of a claim against a third party, such as a state or private entity, 5 not . . . against the federal government.” San Carlos Apache Tribe v. United States, 417 6 F.3d 1091, 1096 (9th Cir. 2005). Indeed, “the term ‘private right of action’ is something 7 of a semantic mismatch in the context of a suit to force agency action under a federal 8 statute.” Id. This is because the APA provides “an alternative means of ensuring that 9 government officials comply with the dictates of a federal statute.” Id. at 1095. As then- 10 Judge Breyer once observed, in a passage that has been quoted with approval by the Ninth 11 Circuit, the existence of the APA means that “federal action is nearly always reviewable 12 for conformity with statutory obligations without any such ‘private right of action’” and 13 makes it “difficult to understand why a court would ever hold that Congress, in enacting a 14 statute that creates federal obligations, has implicitly created a private right of action 15 against the federal government, for there is hardly ever any need for Congress to do so.” 16 Id. at 1095-96 (quoting N.A.A.C.P. v. Sec’y of HUD, 817 F.2d 149, 152 (1st Cir. 1987)). 17 Given these principles, and if writing on a blank slate, the Court would have little 18 trouble concluding that the Relocation Act does not create an implied right of action to 19 challenge ONHIR’s premature closure. As San Carlos Apache Tribe recognizes, the very 20 notion of a federal statute creating an implied right of action against the federal government 21 is a “semantic mismatch”—through the APA, Congress has already created a framework 22 for challenging the action (and inaction) of federal agencies. Here, the Nation concedes 23 (or, at least, fails to dispute) that Count Three would fail as an APA claim due to the 24 absence of final or discrete agency action. This is a strong signal that Congress didn’t 25 intend for the Relocation Act to create an implied right of action to bring such a claim. Cf. 26 El Paso Nat. Gas Co. v. United States, 750 F.3d 863, 890 (D.C. Cir. 2014) (“We hold 27 below that the Tribe has no viable action under the APA in this case, but that does not 28 change our analysis here. Indeed, if anything, the absence of an APA claim here ‘only

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1 reinforces our view that the [statute] creates no implied right of action’ . . . . In the absence 2 of clear indicia of intent to the contrary, we hold that the Indian Dump Cleanup Act does 3 not provide an implied right to sue.”) (citation omitted). 4 Even if this weren’t a case against the federal government, the traditional 5 considerations governing whether to find an implied right of action undermine the Nation’s 6 position. Although the Settlement Act was, in general, enacted for the Nation’s benefit, 7 the specific provision underlying the Nation’s claim in Count Three—the provision that 8 ONHIR “shall cease to exist when the President determines that its functions have been 9 fully discharged,” see 25 U.S.C. § 640d-11(f)—does not include any rights-creating 10 language and focuses not on the parties being protected but on the agency providing the 11 protection. In Sandoval, the Supreme Court held that when statutory language “focus[es] 12 on the person regulated rather than the individuals protected” or, as here, is “yet a step 13 further removed” and “focuses neither on the individuals protected nor even on the funding 14 recipients being regulated, but on the agencies that will do the regulating,” there is no 15 reason to discern “congressional intent to create a private right of action.” 532 U.S. at 289. 16 See also Lil’ Man in the Boat, 5 F.4th at 958-60 (emphasizing that, under Sandoval, an 17 implied right of action should not be recognized in the absence of “rights-creating 18 language”). 19 Finally, it is also notable that, in a different portion of the statute (25 U.S.C. § 640d- 20 17), Congress authorized “[e]ither tribe, acting through the chairman of its tribal council, 21 for and on behalf of the tribe,” to assert four specific types of claims “against the other 22 tribe”: (1) a claim for “an accounting” related to certain “trader license fees or 23 commissions, lease proceeds, or other similar charges” (id. § 640d-17(a)(1)); (2) a claim 24 “for the determination and recovery of the fair value of” certain “grazing and agricultural” 25 activities (id. § 640d-17(a)(2)); (3) a claim for “the adjudication of any claims that either 26 tribe may have against the other for damages to the lands to which title was quieted,” in 27 which case “the United States may be joined as a party to such an action” (id. § 640d- 28 17(a)(3)); and (4) a claim for “such further original, ancillary, or supplementary actions

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1 against the other tribe as may be necessary or desirable to insure the quiet and peaceful 2 enjoyment of the reservation lands of the tribes by the tribes and the members thereof, and 3 to fully accomplish all objects and purposes of this subchapter” (id. § 640d-17(c)). 4 Congress also specified that, apart from the third type of authorized claim, “[a]ny judgment 5 or judgments by the District Court in such action or actions shall not be regarded as a claim 6 or claims against the United States.” Id. § 640d-17(d). These provisions suggest that 7 Congress was fully aware of how to create an express right of action for the tribes to bring 8 Relocation Act-related claims, including Relocation Act-related claims against the federal 9 government, yet chose not to authorize the type of claim being asserted here. And “[w]here 10 a statutory scheme contains a particular express remedy or remedies, a court must be chary 11 of reading others into it. Because Congress included an express provision for private 12 enforcement under one section of the [statute], it is highly improbable that Congress 13 absentmindedly forgot to mention an intended private action in the [another] section.” 14 Logan, 722 F.3d at 1172 (citations and internal quotation marks omitted). See also Lil’ 15 Man in the Boat, 5 F.4th at 961 n.6 (same); TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) 16 (“Where Congress explicitly enumerates certain exceptions to a general prohibition, 17 additional exceptions are not to be implied, in the absence of evidence of a contrary 18 legislative intent.”) (citation omitted). 19 The complicating factor here is that the Court does not necessarily write on a blank 20 slate in light of Benally v. Hodel, 940 F.2d 1194 (9th Cir. 1990). There, individual Navajo 21 plaintiffs sought “a declaration that [ONHIR] is not complying with the relocation 22 procedures described in the Settlement Act at 25 U.S.C. § 640d-11 to 640d-14.” Id. at 23 1198. “In particular, they allege[d] that the report and plan submitted to Congress by 24 [ONHIR] did not comply with the dictates of 25 U.S.C. § 640d-12.” Id. The district court 25 dismissed the plaintiffs’ claims for lack of standing and Ninth Circuit affirmed, holding 26 “that the Settlement Act does not create a procedural right in individual Hopi and Navajo 27 Indians. Nothing in either the language of the Settlement Act or its legislative history 28 suggests that individuals can make the sort of broad challenges that appellants assert in this

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1 action. Although we are mindful that 25 U.S.C. § 640d-14(g) allows individuals to appeal 2 benefits eligibility determinations in court, we do not agree that this provision establishes 3 the right of individuals to challenge the broad procedural framework of the Settlement Act, 4 especially where, as here, the complaint alleges violations that affect all relocatees 5 generally. Instead, we agree with the district court that the Settlement Act vests an implicit 6 procedural right in the chairmen of the Navajo and Hopi tribes to bring the type of claims 7 at issue here.” Id. at 1199. The court continued: “The Settlement Act establishes that it is 8 the tribal chairmen who can vindicate individual rights in an intertribal dispute ‘to fully 9 accomplish all objects and purposes of’ the Settlement Act, P.L. 93-531 § 18(c); 25 U.S.C. 10 § 640d-17(c). It is this broad right of action which we read as implying a procedural right 11 in tribal chairmen to challenge government compliance with the dictates of the Settlement 12 Act.” Id. (citing Sidney v. Zah, 718 F.2d 1453, 1457 (9th Cir. 1983)). The court concluded: 13 “Congress decided that individual rights would be vindicated by the tribal chairmen in the 14 context of intertribal disputes. We conclude that Congress meant for tribal chairmen also 15 to challenge the government’s application of the Settlement Act on behalf of the 16 generalized rights of relocatees.” Id. 17 In the Nation’s view, Benally stands for the proposition that the Relocation Act 18 creates an implied right of action under which it may assert any claim related to compliance 19 with the Relocation Act, so long as the claim seeks to advance the generalized rights of 20 Navajo relocatees. (Doc. 25 at 16.) Acknowledging that this argument presents a close 21 call—there are passages in Benally that can be viewed as supporting the Nation’s 22 position—the Court discerns three reasons why Benally should not be given such a broad 23 interpretation. The first is that Benally’s implied-right-of-action analysis may no longer be 24 good law in light of subsequent Supreme Court decisions. Benally must be treated as a 25 binding authority unless it is “clearly irreconcilable with an intervening decision by a 26 higher authority,” and “[i]t is not enough for there to be some tension between the cases or 27 for the intervening authority to cast doubt on” Benally. Tingley v. Ferguson, __ F.4th __, 28 2022 WL 4076121, *12 (9th Cir. 2022) (cleaned up). Although this is a very difficult

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1 standard to meet, the Ninth Circuit has suggested that the Supreme Court’s 2001 decision 2 in Sandoval is just the sort of intervening authority that may call into doubt the validity of 3 pre-2001 decisions concerning implied rights of action. Schmitt v. Kaiser Foundation 4 Health Plan of Wash., 965 F.3d 945, 953-54 (9th Cir. 2020) (“For a time, the Supreme 5 Court had construed Title VI to allow disparate impact claims . . . [but] Sandoval shut that 6 door. Before the disparate impact door closed, though, we and other circuits relied on the 7 Title VI authority to hold that the Rehabilitation Act permits disparate impact claims. [I]t 8 is unclear whether a disparate impact theory remains permissible under the Rehabilitation 9 Act after Sandoval . . . .”) (citations omitted). And as discussed above, Sandoval addressed 10 a question that is very similar to the question presented here—whether to imply a right of 11 action based on statutory language that “focuses neither on the individuals protected nor 12 even on the funding recipients being regulated, but on the agencies that will do the 13 regulating,” see 532 U.S. at 289—and concluded that an implied right of action should not 14 be recognized in that circumstance.11 15 Second, even assuming that Benally remains good law post-Sandoval, it specifically 16 addressed whether individual Navajo relocatees could bring a claim challenging ONHIR’s 17 failure to “comply with the dictates of 25 U.S.C. § 640d-12” when submitting a proposed 18 relocation plan to Congress. Benally, 940 F.2d at 1198. Here, the Nation seeks to assert a 19 claim based on a purported violation of an entirely different statutory subsection, 25 U.S.C. 20 § 640d-11(f), which has no rights-creating language and simply addresses the 21 circumstances under which ONHIR may cease to exist. Accordingly, even if the Navajo 22 and Hopi tribes have an implied right of action under Benally to bring a § 640d-12 claim 23 challenging the adequacy of the relocation plan submitted by ONHIR, it doesn’t necessarily 24 11 A Westlaw search reveals that Benally has only been cited by the Ninth Circuit 25 seven times, with the latest occurring in 1999: (1) Clinton v. Babbitt, 180 F.3d 1081, 1083 n.2 (9th Cir. 1999); (2) Espinoza v. Dunn, 48 F. 3d 1227 (9th Cir. 1995) (unpub.); (3) 26 Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1354 (9th Cir. 1994); (4) Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1302 (9th Cir. 1993); (5) Citizens Interested in 27 Bull Run, Inc. v. Reilly, 992 F.2d 1219 (9th Cir. 1993) (unpub.); (6) Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1581 n.9 (9th Cir. 1993); and (7) Downer v. Hodel, 977 28 F.2d 588 (9th Cir. 1992) (unpub.). Thus, there is no indication that the Ninth Circuit has affirmed the post-Sandoval validity of Benally’s implied-right-of-action analysis.

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1 follow that the tribes also have an implied right of action to bring a § 640d-11(f) claim 2 challenging ONHIR’s closure plans. Rapid Transit Advocates, Inc. v. S. Cal. Rapid Transit 3 Dist., 752 F.2d 373, 378 (9th Cir. 1985) (“Existence of a private right under one section of 4 [an] Act does not mean such a right exists under other sections of the Act.”).12 And under 5 the implied-right-of-action precedents that have developed post-Sandoval, it is clear that 6 § 640d-11(f) shouldn’t be interpreted as creating such an implied right of action. 7 Third, the Court finds it notable that Benally characterized the individual plaintiffs’ 8 complaint as “in substance challeng[ing] agency action and inaction under the [APA].” 9 940 F.3d at 1198. These claims failed, the court continued, not due to a lack of discrete or 10 final agency action but because “the complaint alleges violations that affect all relocatees 11 generally” and thus the individual plaintiffs lacked “article III” standing. Id. at 1199. See 12 also id. at 1198 n.5 (“Of course, appellants can dispute in federal court a benefits 13 determination pursuant to 25 U.S.C. § 640d-14(g). But were the broad challenges asserted 14 in this case the only ones made in such a proceeding, appellants would lack standing 15 because it would be wholly speculative whether the relief they sought would redress their 16 injury—inadequate relocation benefits. . . . [E]ven were we to conclude that [ONHIR] 17 violated its statutory duty to report to Congress, we could not be confident that [ONHIR] 18 would alter its award in a subsequent benefits determination.”). The court concluded that, 19 because other provisions in the Settlement Act empowered “tribal chairmen [to] vindicate 20 individual rights in an intertribal dispute,” it followed that the tribes themselves should be 21 authorized to assert claims that were “of equal concern to all relocatees.” Id. 1199-1200. 22 Benally’s characterization of the individual plaintiffs’ claims as “in substance” APA 23 12 The Court acknowledges that Benally is not a model of clarity concerning the nature 24 of the individual Navajo relocatees’ claims and the resulting scope of the tribes’ implied right to bring such claims. For example, although the body of the opinion focuses on the 25 § 640d-12 claim, a footnote suggests the individual plaintiffs also sought to assert claims related to other statutory subsections (albeit none related specifically to § 640d-11(f)). 26 Benally, 940 F.2d at 1195 n.2. Thus, it is unclear whether the opinion’s holding that “Congress meant for tribal chairmen . . . to challenge the government’s application of the 27 Settlement Act on behalf of the generalized rights of relocatees,” id. at 1200, should be interpreted an unqualified authorization for the tribes to bring any claim related to 28 compliance with the Relocation Act or as a more limited authorization for the tribes to bring the specific claims at issue in Benally.

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1 claims is potentially significant because it suggests the court was not attempting to 2 authorize some new species of implied statutory claim against the federal government in 3 which the usual APA requirements of discrete and final agency action are inapplicable, but 4 was simply construing the Settlement Act to ensure that some entity would have standing 5 to assert what are, in substance, traditional APA claims challenging agency compliance 6 with a statutory scheme. If Benally is construed in this fashion, it is easier to harmonize 7 with San Carlos Apache Tribe, which explains why courts should be wary of construing 8 federal statutes to imply a right of action against the federal government that is more 9 expansive than the right of action already provided by the APA. San Carlos Apache Tribe, 10 417 F.3d at 1096-97 (“To permit a case to proceed directly under a federal statute and 11 bypass the APA is not without consequence. The APA includes a series of procedural 12 requirements litigants must fulfill before bringing suit in federal court. . . . Were litigants 13 able to sue directly under [a federal statute], they would be able to sidestep the traditional 14 requirements of administrative review under the APA without express Congressional 15 authorization. As Judge Breyer noted, creating a direct private action against the federal 16 government makes little sense in light of the administrative review scheme set out in the 17 APA.”). But if Benally is construed in this harmonizing fashion, Count Three must be 18 dismissed, because the Nation does not dispute that final and discrete agency action are 19 lacking with respect to its claim of premature closure. 20 Accordingly, and again recognizing that the implied-right-of-action aspect of the 21 analysis presents a close call, Count Three is dismissed.13 22 … 23 … 24 … 25 13 Regardless of whether the dismissal of Count Three is due to the lack of a justiciable 26 controversy or the absence of a private right of action, the dismissal is pursuant to Rule 12(b)(1). Logan, 722 F.3d at 1165-66 & n.1 (noting that “the district court . . . reasoned 27 that it did not have subject matter jurisdiction over Logan’s claim for damages under the PTFA because the Act does not create a private right of action,” affirming the district 28 court’s conclusion on this issue, and elsewhere acknowledging that “the dismissal [was] for lack of subject matter jurisdiction”).

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1 IV. Count Four 2 A. The Parties’ Arguments 3 In Count Four, entitled “Failure By ONHIR To Obtain And DOI To Provide 4 Reasonable Interagency Assistance In Implementing The Relocation Plan,” the Nation 5 alleges that ONHIR has “recognized the necessity for interagency assistance to complete 6 relocation,” “affirmed that [it] will call for the assistance of DOI and other agencies as 7 necessary to implement relocation,” and “called upon other agencies to assist in 8 implementing relocation,” but has otherwise “either unreasonably failed to call upon other 9 agencies to fulfill that necessity or unreasonably failed to require that such requested 10 reasonable assistance be provided.” (Doc. 1 ¶ 145.) The Nation further alleges that 11 ONHIR has instead “called upon DOI to assist in addressing ONHIR’s recordkeeping and 12 accounting issues and DOI has volunteered assistance in planning for the [premature] 13 closure of ONHIR . . . .” (Id. ¶ 146.) The Nation thus seeks a declaratory judgment, and 14 corresponding injunctive relief, that ONHIR must obtain (and DOI must provide) 15 reasonable assistance to support implementing the Relocation Plan. (Id. ¶¶ 147-48.) 16 Defendants argue that Count Four must be dismissed. (Doc. 20 at 14-17.) As with 17 Count Three, Defendants argue that Count Four “must rely on the APA’s right of action” 18 because the relevant provision of the Settlement Act, 25 U.S.C. § 640d-11(e), contains no 19 “rights-creating language” and does not confer an implied right of action upon the Nation. 20 (Id. at 14-15.) Defendants contend that, if Count Four is an APA claim, it necessarily fails 21 because “the Nation identifies no discrete action that ONHIR, the agency authorized to 22 seek assistance, let alone DOI, an agency that ONHIR merely could have called upon, were 23 required (but failed) to take under Section 640d-11(e).” (Id. at 15-16.) According to 24 Defendants, “nothing in Section 640d-11(e)(1) . . . unequivocally commands ONHIR to 25 request agency assistance, or compels DOI, a separate federal agency, to provide 26 reasonable assistance that has not even been requested. To the contrary, the statute 27 ‘authorize[s]’ ONHIR to seek agency assistance, but leaves whether or not to do so, when 28 to do so, with what agencies to do so, and the terms on which to do so in the discretion of

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1 ONHIR. As numerous courts have recognized, statutes that simply ‘authorize’ an agency 2 to act do not impose a mandatory duty that can be compelled under § 706(1) or through a 3 writ of mandamus.” (Id. at 16.) Finally, Defendants contend that Count Four also fails as 4 an APA claim because “even if Section 640d-11(e)(1) creates a duty of interagency 5 assistance, which it does not, any such duty is not discrete. . . . The claim essentially asks 6 the Court to become a conductor in a symphony of federal agencies—a result injecting the 7 Court into day-to-day management of multiple federal agencies.” (Id. at 16-17.) 8 In response, the Nation argues, as it did with respect to Count Three, that the 9 Relocation Act creates an implied right of action under which it may challenge ONHIR’s 10 compliance with the Act, including the failure of agencies to obtain and provide necessary 11 assistance in implementing relocation, and that Count Four is therefore “not subject to the 12 APA’s final agency action restriction.” (Doc. 25 at 16.) The Nation also argues that 13 although § 640d-11(e) contains discretionary language, an agency’s decision reviewable 14 “if regulations or agency practice provide a meaningful standard by which this court may 15 review its exercise of discretion.” (Id. at 16-17.) Acknowledging that the Court can make 16 this determination only by looking to the complaint, the Nation argues that “[i]n enacting 17 Section 640d-11(e), Congress expected that DOI and other federal agencies coordinate 18 with [ONHIR],” that the Relocation Plan itself recognized the need for interagency 19 coordination, that ONHIR has affirmed this need, and that “ONHIR has asked and obtained 20 assistance from DOI, but to facilitate premature . . . closure of ONHIR rather than 21 relocation,” which “constitutes an abuse of discretion by ONHIR and a failure by DOI to 22 provide required reasonable assistance under the Relocation Act. All this supports a 23 declaration that ONHIR must obtain and DOI must provide reasonable assistance in 24 implementing the Relocation Plan.” (Id. at 17.) 25 In reply, Defendants argue that the Nation lacks a right of action with respect to 26 Count Four, and because the Nation disavows reliance on the APA, Count Four must be 27 dismissed. (Doc. 28 at 7.) Defendants also reiterate that Count Four fails as a matter of 28 law because § 640d-11(e) simply “authorizes” ONHIR to call for assistance but does not

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1 require it to do so from a particular agency, or to seek assistance at all, and courts have 2 found that authorizing an action is not the same as imposing a mandatory duty that can be 3 compelled through an injunction. (Id. at 10-12.) As for the Nation’s argument that the 4 Court can discern a meaningful standard by which to review ONHIR’s exercise of 5 discretion, Defendants contend that this argument is misplaced because it pertains to APA 6 claims under § 701(a)(2), not § 706(1). (Id. at 11.) Finally, Defendants reassert that the 7 relevant statutory language does not refer to DOI, so absent a request from ONHIR, DOI 8 had no duty to assist in relocation. (Id. at 12.) 9 B. Analysis 10 The implied-right-of-action analysis with respect to Count Four largely mirrors the 11 analysis with respect to Count Three. The Nation, which concedes that Count Four cannot 12 survive dismissal if it is an APA claim, argues that Count Four is actually brought pursuant 13 to an implied right of action arising from the Relocation Act. But as discussed with respect 14 to Count Three, no such implied right of action exists—(1) the statutory provision on which 15 Count Four is based, 25 U.S.C. § 640d-11(e), contains no rights-creating language and is 16 concerned solely with the activities of ONHIR (Sandoval; Lil’ Man In the Boat); (2) it 17 would be anomalous to discern an implied right of action against the federal government 18 when the APA already provides a pathway to challenge agency action and inaction (San 19 Carlos Apache Tribe); (3) Congress’s enumeration of other ways in which the Nation may 20 bring claims based on the Relocation Act, including one type of claim against the federal 21 government, suggests that Congress didn’t implicitly intend to create a right of action to 22 challenge compliance with § 640d-11(e) (Logan; Lil’ Man In the Boat); and (4) Benally 23 may no longer be good law in light of Sandoval, did not specifically authorize claims based 24 on § 640d-11(e), and did not appear to authorize Relocation Act-based claims in the 25 absence of discrete, final agency action (which is lacking here).14 26 Alternatively, even if the Relocation Act could be construed as creating an implied 27 14 As discussed in the preceding footnote, to the extent the dismissal of Count Four is 28 based on the absence of an implied right of action, the dismissal is pursuant to Rule 12(b)(1).

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1 right of action to bring the sort of claim the Nation seeks to advance in Count Four, that 2 claim would be subject to dismissal under Rule 12(b)(6) for failure to state a claim. The 3 relevant statutory language provides that ONHIR “is authorized to call upon any 4 department or agency of the United States to assist [it] in implementing the relocation plan, 5 except that the control over and responsibility for completing relocation shall remain with 6 [ONHIR]. If any case in which [ONHIR] calls upon any such department or agency for 7 assistance under this section, such department or agency shall provide reasonable 8 assistance so requested.” 25 U.S.C. § 640d-11(e)(1). Because this “authorization” 9 language is permissive, ONHIR has no obligation to seek assistance from other agencies 10 (let alone a specific obligation to seek assistance from DOI). As a result, the Nation has 11 not plausibly alleged that ONHIR committed any statutory violation that might give rise to 12 an implied claim under § 640d-11(e)(1). 13 The decision in Trout Unlimited v. Pirzadeh, 1 F.4th 738 (9th Cir. 2021), which the 14 Nation cited in its brief and emphasized during oral argument, does not compel a different 15 conclusion. In Trout Unlimited, the EPA issued a proposed determination that would 16 restrict certain mining activity in an area of southwestern Alaska but then withdrew the 17 proposed determination after holding hearings and soliciting comments. Id. at 743. After 18 an environmental organization sought to challenge the agency’s withdrawal decision under 19 § 706(2)(A) of the APA, on the ground that it was arbitrary, capricious, an abuse of 20 discretion, or contrary to law, the agency defendants “moved to dismiss on the ground that 21 the EPA’s withdrawal fell within an exception to reviewability for agency actions 22 ‘committed to agency discretion by law,’ 5 U.S.C. § 701(a)(2).” Id. at 744. The Ninth 23 Circuit explained that this “exception . . . applies only if no judicially manageable standards 24 are available for judging how and when an agency should exercise its discretion.” Id. at 25 751 (citation omitted). The court elaborated: 26 [T]he mere fact that a statute contains discretionary language does not make 27 agency action unreviewable. Even where statutory language grants an agency unfettered discretion, its decision may nonetheless be reviewed if 28 regulations or agency practice provide a meaningful standard by which this

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1 court may review its exercise of discretion. We will find jurisdiction to 2 review allegations that an agency has abused its discretion by exceeding its legal authority or by failing to comply with its own regulations. In those 3 situations, the agency has chosen to constrain its own discretion via regulations that carry the force of law. So long as the regulations provide a 4 meaningful standard by which a court could review the agency’s actions and 5 our review of the agency’s compliance with those regulations does not infringe any of the agency’s prerogatives under the statute, then we have 6 jurisdiction, pursuant to the APA, to review the agency’s compliance with its 7 own regulations. 8 Id. at 751-52 (cleaned up). 9 As an initial matter, because the Nation makes clear that Count Four is not an APA 10 claim, it is unclear how much weight should be given to APA decisions like Trout 11 Unlimited when assessing Count Four’s viability. Additionally, Trout Unlimited involved 12 a challenge under § 706(2)(A) of the APA, which authorizes challenges to agency actions 13 that are arbitrary, capricious, or an abuse of discretion, but Count Four seems to more 14 closely resemble a challenge under § 706(1) of the APA, which as discussed elsewhere in 15 this order governs challenges to “compel agency action unlawfully withheld or 16 unreasonably delayed.” (See, e.g., Doc. 1 ¶ 145 [“ONHIR either has unreasonably failed 17 to call upon other agencies to fulfill that necessity or unreasonably failed to require that 18 such requested reasonable assistance be provided.”].) 19 At any rate, even assuming the same standards apply in this context, Trout Unlimited 20 explains that when a plaintiff seeks to establish a violation of statutory language—such as 21 the interagency-assistance language in § 640d-11(e)—that seemingly grants unfettered 22 discretion to an agency, the plaintiff must establish that the agency failed to “comply with 23 its own regulations” because “[i]n those situations, the agency has chosen to constrain its 24 own discretion via regulations that carry the force of law.” Id. at 751. Count Four fails 25 under this standard because the Nation has not identified any regulation carrying the force 26 of law (or other qualifying agency practice) in which ONHIR recognized the necessity of 27 seeking assistance from DOI. During oral argument, the Nation asserted that paragraphs 28 54, 57, 60, 67, 90, 91, and 92 of the complaint support its position on this point, but a

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1 review of those paragraphs shows that they do not provide the necessary support: 2 ▪ Paragraph 54 cites a conference report from 1980 in which members of Congress 3 expressed the expectation that various “Federal agencies having programs and resources 4 which are available to Indian tribes” would “coordinate with their efforts with the tribes 5 and [ONHIR] to . . . ease the burdens of relocation.” This is not an ONHIR agency practice 6 or ONHIR regulation carrying the force of law. Nor does the conference report suggest 7 that ONHIR made a determination that assistance from DOI was necessary. 8 ▪ Paragraph 57 cites a provision of the 1981 relocation plan in which ONHIR 9 recognized that “[c]oordination of agency efforts is necessary” and that piecemeal 10 approaches to problem-solving are non-productive. It is unclear whether the relocation 11 plan qualifies as a regulation carrying the force of law, given that it was a proposal that 12 Congress was ultimately responsible for adopting or rejecting. In this respect, it differs 13 from the formal ONHIR regulations codified at 25 C.F.R. § 700 et seq. that are cited in 14 other paragraphs of the complaint. (Doc. 1 ¶¶ 49-51.) Yet even assuming the relocation 15 plan qualifies as an agency practice or policy that could provide a meaningful standard of 16 review in this context, see, e.g., Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004) 17 (concluding that “various memoranda through which the INS implemented its repapering 18 policy” qualified as “established agency policies” that provided a meaningful standard of 19 review), the provision cited in paragraph 57 does not amount to a determination by ONHIR 20 that assistance from DOI was necessary—instead, it reflects a generalized statement about 21 the necessity of inter-agency coordination. 22 ▪ Paragraph 60 cites a different provision in the relocation plan that “affirmed that 23 [ONHIR] ‘will call for the assistance [of] the [BIA], [IHS,] and other agencies as deemed 24 necessary’ to implement the relocation program.” As with the previous example, it is 25 unclear whether the relocation plan qualifies as an agency regulation carrying the force of 26 law or an expression of agency policies or practices that could provide a meaningful 27 standard of review in this context. More important, the cited provision simply recognizes 28 that ONHIR will seek assistance from other agencies “as deemed necessary.” This is not

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1 the same thing as a determination that ONHIR had, in fact, concluded that assistance from 2 DOI was necessary. 3 ▪ Paragraph 67 cites a provision in a “transmittal letter” that ONHIR submitted to 4 Congress in 1983, as part of “an update to Congress on significant developments since 5 submission of the Relocation Plan,” in which ONHIR reported that it “planned to 6 coordinate with other federal agencies to address employment, roads, utilities, and similar 7 needs.” This is not a regulation carrying the force of law, does not appear to be an 8 established agency policy or practice, and does not, in any event, qualify as a determination 9 by ONHIR that assistance from DOI was necessary. 10 ▪ Paragraph 90 does not appear to address ONHIR’s evaluation of the necessity of 11 assistance from other agencies (let alone from DOI). Instead, it faults ONHIR for engaging 12 in premature closure activities and for not compiling certain information. 13 ▪ Paragraph 91 cites a series of reports that DOI issued in 2019. Such reports 14 obviously do not qualify as regulations issued by ONHIR that have the force of law or 15 policies or practices of ONHIR. Additionally, paragraph 91 does not allege that any of 16 these reports included an evaluation by ONHIR of the necessity of assistance from DOI. 17 ▪ Paragraph 92 cites three more reports issued by DOI in 2020. Again, such reports 18 could not qualify as regulations issued by ONHIR that have the force of law or policies or 19 practices of ONHIR. Additionally, paragraph 92 provides no details about the substance 20 of those reports.15 21 For these reasons, the Nation’s claim in Count Four against ONHIR fails to state a 22 claim. So, too, does the claim in Count Four against DOI. At most, § 640d-11(e)(1) 23 compels DOI to “provide reasonable assistance so requested,” but the Nation 24 acknowledged during oral argument that DOI has never refused a request for relocation 25 15 To the extent the Nation’s response brief identifies paragraphs 80 and 82 of the 26 complaint (which the Nation did not identify during oral argument) as providing additional support for its position (Doc. 25 at 17), the Court disagrees. Those paragraphs discuss 27 statements in a report issued by the ONHIR commissioner in 1990. Such a report is not a regulation carrying the force of law and may not qualify as an agency policy or practice. 28 More important, none of the cited statements is a determination by ONHIR that assistance from DOI was necessary.

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1 assistance from ONHIR.16 2 V. Leave to Amend 3 Although the Nation does not request leave to amend in the event of dismissal (Doc. 4 25 at 17 [only requesting that “Defendants’ motion to dismiss . . . be fully denied”]), the 5 Ninth Circuit has suggested that, in certain circumstances, “a district court should grant 6 leave to amend even if no request to amend the pleading was made.” Ebner v. Fresh, Inc., 7 838 F.3d 958, 963 (9th Cir. 2016) (citation omitted). 8 Here, because Count One is not being dismissed (except to clarify that it is not a 9 § 706(1) claim), the only question is whether leave to amend should be granted as to Counts 10 Two, Three, and Four. The Court concludes that leave to amend should be denied as to 11 those claims because they are being dismissed based on legal deficiencies that could not 12 be cured through the pleading of new facts. Ascon Properties, Inc. v. Mobil Oil Co., 866 13 F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be granted where the amendment . . . 14 constitutes an exercise in futility . . . .”). Additionally, during oral argument, the Nation 15 did not request leave to amend as to Counts Two, Three, and Four. 16 … 17 … 18 … 19 … 20 … 21 … 22 23 16 During oral argument, the Court asked the Nation to identify its “best factual allegation showing that ONHIR made a request to DOI to provide assistance with 24 relocation but DOI did not comply with that request.” In response, the Nation acknowledged that “[w]e cannot say that ONHIR has specifically requested that Interior 25 provide assistance with relocation other than the historical reports regarding the necessity and the prior reports regarding an interagency task force.” Later, when asked to identify 26 the specific date of any “request to help with relocation from ONHIR to DOI,” the Nation responded: “We cannot point to a specific recent request, but we know that ONHIR had 27 previously had an interagency task force to address relocation in particular regarding infrastructure.” And in response to the follow-up question of “[w]hat’s the allegation that 28 DOI didn’t comply with that request?”, the Nation stated: “We do not allege that the Interior did not comply with that request.”

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1 Accordingly, 2 IT IS ORDERED that: 3 1. Defendants’ motion to dismiss (Doc. 20) is granted in part. Counts Two, 4 Three, and Four are dismissed without leave to amend. 5 2. Defendants may file a renewed motion to dismiss Count One within 21 days 6 of the issuance of this order. 7 Dated this 29th day of September, 2022. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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