United States District Court, D. Kansas.

Kenneth L. SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, Defendant,
State of Kansas, ex rel. Derek Schmidt, Attorney General, Intervening Defendant.

No. 11?2656?JAR?DJW.

Aug. 3, 2012.

William W. Hutton, Kansas City, KS, Benjamin J. Lambiotte, Garvey Schubert Barer, Washington, DC, David McCullough, Doerner, Saunders, Daniel & Anderson, LLP, Norman, OK, for Plaintiff.

Kristofor R. Swanson, U.S. Department of Justice?Environment & Natural, Washington, DC, for Defendant.

Christopher J. Sherman, Mark S. Gunnison, Payne & Jones, Chtd., Overland Park, KS, Jeffrey A. Chanay, Stephen O. Phillips, Office of Attorney General, Topeka, KS, for Intervening Defendant.



JULIE A. ROBINSON, District Judge.

*1 Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the Secretary”), seeking an order from this Court compelling the Secretary to comply with his mandatory duty to accept title to certain land and hold it in trust for the Nation's benefit, as specifically required by Public Law 98?602, 98 Stat. 3149 (1984). The State of Kansas (“the State”) was permitted to intervene as of right under Fed.R.Civ.P. 24(a) (Doc. 41) and in its Answer, brought counterclaims against the Nation and cross-claims against Defendant Secretary. This matter is before the Court on the Nation and the Secretary's Motions to Dismiss the State's claims for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) (Docs.45, 47). The Secretary and the State have supplemented their submissions, per the Order of this Court (Doc. 53). For the reasons explained in detail below, the Court grants the motions to dismiss.

I. Background

On July 26, 2011, the Nation initiated this action in the United States District Court for the District of Columbia, challenging the Secretary's failure to accept title to a tract of land known as the Park City Land into a trust created for the Nation's benefit as required by the Land Claim Settlement Act (“PL 602”).FN1 Highly summarized, PL 602 provides a mechanism to satisfy certain judgments entered by the Indian Claims Commission in favor of the Nation against the United States, and, inter alia, mandated that a “sum of $100,000 ... shall be used for the purchase of real property which shall be held in trust by the Secretary [of the Interior] for the benefit of [the] Tribe” (“PL 602 Funds”). Specifically, the Nation alleges that in November 1992, it purchased a tract of land in Park City, Kansas, with PL 602 Funds and, in January 2003, submitted an application requesting the Secretary take the Park City Land into trust pursuant to PL 602. The Secretary never took any action on the request.

FN1. Pub.L. No. 98?602.

In 1995, the Nation alleges it purchased a second tract of land with PL 602 Funds in Kansas City, Kansas (“Shriner Tract”) and requested the Secretary accept that land into trust. In 1996, the Secretary accepted the Shriner Tract into trust and approved gaming activities on that property under the Indian Gaming Regulatory Act, 25 U.S.C. ? 2701, et seq. (“IGRA”). After approximately five years of litigation, the Tenth Circuit Court of Appeals concluded that the Secretary acted arbitrarily in determining whether only PL 602 Funds were used to purchase the Shriner Tract, as well as erred in approving gaming activities on the land.FN2 The Tenth Circuit then remanded the matter to the Secretary for reconsideration of the Nation's original request regarding the Shriner Tract.

FN2. See Sac & Fox Nation of Mo. v. Babbitt, 240 F.3d 1250, 1253 (10th Cir.2001).

On remand, the Secretary determined that the Shriner Tract was purchased with PL 602 Funds and affirmed its decision to accept the property in trust, and the Nation began operating gaming facilities on the site. From 2002 until 2010, the Nation, the State of Kansas and other Indian Tribes have engaged in extensive litigation surrounding the Shriner Tract and the Nation's ability to open a gaming facility on the land. On April 13, 2006, during the litigation regarding the Shriner Tract, the Nation resubmitted its application to have the Park City Land taken into trust. The Nation intends to operate a gaming facility on the Park City Land, but the Secretary has not yet acted on the Nation's renewed application.

*2 In this lawsuit, the Nation alleges that “despite the Nation's repeated requests and its undeniable need for prompt action, the Secretary has refused to act on the Park City Land trust acquisition, to provide any reasonable explanation for his delay, or even to specify a date by which he will act.” FN3 Consequently, the Nation seeks in Count I a writ of mandamus pursuant to 28 U.S.C. ? 1361 to compel the Secretary to accept trust title to the Park City Land; a finding in Count II that the Secretary violated the Administrative Procedure Act, 5 U.S.C. ? 701, et seq. (“APA”); and in Count III, a determination that the Secretary breached trust obligations owed to the Nation.FN4

FN3. Doc. 1, ? 31.

FN4. Id. at ?? 33?50.

In September 2011, the Secretary moved to transfer this case to this Court and the State filed a Motion to Intervene. On November 22, 2011, the Secretary's Motion to transfer was granted. Subsequently, over the Nation's objection, Magistrate Judge Waxse granted the State's Motion to Intervene as a matter of right. The State then filed an Answer and asserted counterclaims against the Nation and cross-claims against the Secretary.FN5 The State seeks the opposite relief of that sought by the Nation: declaratory relief and an injunction prohibiting the Secretary from acquiring the Park City Land in trust. The State asserts three claims: Counts I and II seek a declaratory judgment for unlawful exercise of trust authority under P.L. 98?602, and unlawful exercise of trust authority under 25 U.S.C. ? 465; Count III seeks to enjoin the Secretary from taking the Park City Land into trust. The State asserts this Court has jurisdiction over its counterclaims and cross-claims pursuant to 28 U.S.C. ?? 1331 and 1362 because its claims arise “under 25 U.S.C. ? 465, 25 C.F.R. ? 151.12, 25 U.S.C. ? 2719, and Public Law 98?602.” The State further asserts this “action presents an actual case or controversy pursuant to the Declaratory Judgment Act, 28 U.S.C. ? 2201.”

FN5. Doc. 44. The parties agreed that any jurisdictional issues with respect to the State's counterclaims and cross-claims should be resolved prior to the Court addressing the merits of the Nation's Complaint, and the Court vacated the prior agreed summary judgment briefing schedule. Doc. 43.

II. Rule 12(b)(1) Standards

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of the case where the court lacks subject matter jurisdiction. Dismissal for lack of subject matter jurisdiction comes in two forms: (1) facial attacks; and (2) factual attacks.FN6 When attacked facially, as in this case, the movant is challenging the sufficiency of the complaint, requiring a court to accept as true all the allegations in the complaint. FN7 Federal courts are courts of limited jurisdiction that may exercise only those powers authorized by Constitution and statute.FN8 A plaintiff is responsible for showing the court by a preponderance of the evidence that jurisdiction is proper.FN9 Mere allegations of jurisdiction are not enough.FN10 Since federal courts are courts of limited jurisdiction, there is a strong presumption against federal jurisdiction.FN11 A court lacking subject matter jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that such jurisdiction is lacking.” FN12

FN6. Paper, Allied?Indus., Chem. & Energy Workers Intern. Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir.2005).

FN7. Id.

FN8. 28 U.S.C. ? 1331; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

FN9. United States ex rel. Stone v. Rockwell Int'l Corp., 282 F.3d 787, 797 (10th Cir.2002).

FN10. Id. at 798.

FN11. Penteco Corp. Ltd. P'ship 1985A v. Union Gas Syst., Inc., 929 F.2d 1519, 1521 (10th Cir.1991).

FN12. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974) (citations omitted).

*3 The Secretary also moves for dismissal because the State lacks standing. FN13 Because a party's standing implicates subject matter jurisdiction, the issue is also analyzed under Rule 12(b)(1).FN14 The concept of constitutional standing is derived from the case or controversy requirement of Article III of the Constitution, and requires a plaintiff to show it has suffered an injury in fact that is fairly traceable to the challenged action of defendants and is likely to be redressed by a favorable decision.FN15 The elements of constitutional standing are not mere pleading requirements, but rather are an indispensable part of plaintiffs' case.FN16 Thus, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” FN17 On a motion to dismiss, the Court must accept as true all material allegations of the complaint, and must construe the complaint in favor of plaintiff.FN18 An injury in fact is one that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.FN19 For purposes of alleging an injury in fact, general factual allegations of injury resulting from defendant's conduct will suffice because such allegations are presumed to “embrace those specific facts that are necessary to support the claim.” FN20

FN13. Although the parties briefed the issue in their submissions on the State's Motion to Intervene, Judge Waxse did not consider standing because it is not a prerequisite for intervention in the Tenth Circuit, “so long as another party with constitutional standing on the same side as the intervenor remains in the case. See Doc. 41 at 16?17 (citing San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir.2007) (en banc)).

FN14. See San Juan Cnty., Utah, 420 F.3d 1197, 1203 (10th Cir.2005).

FN15. See Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1210?11 (10th Cir.2006).

FN16. Utah v. Babbitt, 137 F.3d at 1204 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

FN17. Defenders of Wildlife, 504 U.S. at 561.

FN18. Babbitt, 137 F.3d at 1204 (citing Warth v. Seldin, 422 U.S. 490 (1975)).

FN19. See Schmidt v. Cline, 127 F.Supp.2d 1169, 1172 (D.Kan.2000) (citing Bear Lodge Multiple Use Ass'n v. Babbitt, 175 F.3d 814, 821 (10th Cir.1999)).

FN20. Defenders of Wildlife, 504 U.S. at 561 (quotation omitted).

III. Discussion A. Claims Against the Wyandotte Nation

The Nation argues that it is immune from the State's counterclaims under the doctrine of tribal sovereign immunity and, alternatively, that the question of whether the Park City Land can be taken into trust under PL 602 is not ripe and thus the counterclaims should be dismissed. The State counters that the Nation waived its sovereign immunity by filing this lawsuit in federal court and, even if it has not, the State's counterclaims should be designated as defenses under Fed.R.Civ.P. 8(c)(2). The Court addresses each argument in turn.

Tribal Sovereign Immunity

The Nation is a federally-recognized Indian Tribe. “Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate.” FN21 As a dependent sovereign entity, an Indian tribe is not subject to suit in a federal or state court unless the tribe's sovereign immunity has been either abrogated by Congress or waived by the tribe.FN22 In either case, the waiver or abrogation of sovereign immunity “must be unequivocally expressed” rather than implied. Further, “a tribe's participation in litigation does not constitute consent to counterclaims asserted by the defendants in those actions.” FN23

FN21. Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1151?52 (10th Cir.2011) (quoting NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir.2002) (en banc)).

FN22. Id. (citing Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 100, 1009 (10th Cir.2007).

FN23. McClendon v. United States, 885 F.2d 627, 629 (1989).

The State acknowledges that Congress has not abrogated the Nation's sovereign immunity but urges that waiver occurred when the Nation filed this lawsuit against the Secretary. Although not specifically identified as such, the State relies on the doctrine of equitable recoupment, which can operate as a limited waiver of tribal sovereign immunity; this doctrine recognizes that by bringing a claim, a state or tribe necessarily waives immunity for matters “arising out of the same transaction or occurrence” that is the subject matter of the suit, to the extent the counterclaims do not seek relief “different in kind or nature” or “exceeding the amount” of the relief sought by the state or tribe. FN24 The Tenth Circuit has adopted a three-prong test to determine whether a defendant's claim constitutes a claim of recoupment: the claim must (1) arise from the same transaction or occurrence as the Nation's suit; (2) seek relief for the same kind or nature of the Nation's suit; and (3) seek an amount not in excess of the Nation's claim.FN25 The State contends that its counterclaims fit squarely within that rule because, at its core, the Nation's claim is that the law and facts compel the conclusion that the Secretary was required to take the Park City Land into trust pursuant to PL 602. The State argues that the Nation has thus waived its tribal immunity as to the State's counterclaims, which arise from the same issue, seek the same determination of whether the Secretary is obligated to take the land into trust, and seek an amount not in excess of the Nation's claims.

FN24. Wyandotte Nation v. City of Kansas City, Kan., 200 F.Supp.2d 1279, 1285 (D.Kan.2000) (quoting Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1344 (10th Cir.1982)).

FN25. Berrey v. Asarco, Inc., 439 F.3d 636, 645 (10th Cir.2006).

*4 In all of the cases cited by the State, however, the parties permitted to maintain counterclaims against the plaintiff tribes were defendants in the underlying matter.FN26 In this case, of course, the State was not named by the Nation as a defendant; rather, the Secretary is named as the sole defendant in the underlying mandamus action. The State was permitted to intervene in the case over the objection of the Nation and seeks a judgment against the Nation for “unlawful exercise of trust authority.” To find that the Nation waived its sovereign immunity against the State under these circumstances would require a determination of implied waiver. A waiver of sovereign immunity cannot be implied, however, but must be express.FN27 Accordingly, the Court finds that the Nation has not expressly waived its sovereign immunity to suit over this subject matter by this third party intervenor.

FN26. See Berrey, 439 F.3d at 644?45 (finding waiver where named defendants in claim brought by tribe asserting tenants under a mining lease caused damage to the tribe's land counterclaimed for contribution and indemnity); Wyandotte Nation, 200 F.Supp.2d at 1284?85 (permitting named defendant's counterclaim against tribe for declaratory judgment in quiet title suit brought by tribe); Oneida Tribe of Indians of Wisc. v. Village of Hobart, 500 F.Supp.2d 1143, 1148?49 (E.D.Wisc.2007) (permitting named defendant's counterclaim against tribe seeking order directing tribe to pay all unpaid taxes and assessments in action brought by tribe seeking declaratory relief exempting land from state taxes and assessments and a refund of previous assessments paid by the tribe).

FN27. McClendon v. United States, 885 F.2d 627, 629 (1989) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)).

Rule 8(c)(2)

Alternatively, the State asks this Court to designate its counterclaims as defenses to the Nation's claim that the Secretary has the mandatory obligation to take the Park City Land into trust. Fed.R.Civ.P. 8(c)(1) generally addresses affirmative defenses; subsection (c)(2) specifically adddresses mistaken designation of such defenses, stating, “[i]f a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.” FN28 Neither counterclaim is an affirmative defense under Rule 8(c). Accordingly, the State's request is denied, and the Nation's motion to dismiss is granted.

FN28. Fed.R.Civ.P. 8(c)(2).

B. Claims Against the Secretary of the Interior

The Secretary argues that the State's cross-claim should be dismissed because it has failed to identify an applicable waiver of sovereign immunity or establish that it has standing under Article III of the Constitution, and thus this Court lacks subject matter jurisdiction. Alternatively, the Secretary argues that the State's cross-claims lack ripeness, fail to state a claim and request relief that is contrary to prudential limitations on judicial review of on-going agency actions. The State contends that this Court has supplemental jurisdiction over the cross-claims under 28 U.S.C. ? 1367.

Sovereign Immunity

In a suit against the United States or when one of its agencies is a defendant, a waiver of sovereign immunity is a prerequisite to subject matter jurisdiction.FN29 Any waiver of sovereign immunity must be express. FN30 Where the party asserting claims against the United States has failed to identify an applicable waiver of sovereign immunity, the claims must be dismissed.FN31

FN29. High Country Citizens Alliance v. Clarke, 454 F.3d 1177, 1181 (10th Cir.2006).

FN30. United States v. King, 395 U.S. 1, 4 (1969).

FN31. See Fostvedt v. United States, 978 F.2d 1201, 1204 (10th Cir.1991).

The State cites 28 U.S.C. ? 1367 as jurisdictional grounds for its cross-claims. Section 1367, however, does not save the State's cross-claim, as that section provides only that

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.FN32

FN32. 28 U.S.C. ? 1367(a).

*5 While providing federal courts with supplemental subject matter jurisdiction over certain claims, section 1367 does not constitute a waiver of sovereign immunity by the United States.FN33 The case cited by the State in support of its attempt to establish jurisdiction is distinguishable from this case, as it did not involve a cross-claim against the United States. FN34 Further, the fact that the United States may have waived sovereign immunity for the Nation's claims is irrelevant, as each claim against the United States must be grounded in a waiver of sovereign immunity. As the Supreme Court has explained, “cross-claims against the United States are justiciable only in those courts where Congress has consented to their consideration.” FN35 The State has failed to identify such consent in this case.

FN33. See San Juan Co., Utah v. United States, 503 F.3d 1163, 1181 (10th Cir.2007) (“Section 1367(a) is expressed in general terms, applying to all litigants. There is no mention of sovereign immunity or of the special status of the government as a litigant. Under settled law, ... this statute does not waive federal sovereign immunity.”); Dunn & Black v. United States, 492 F.3d 1084, 1088 n. 3 (9th Cir.2007) (same); United States v. Certain Land Situated in City of Detroit, 361 F.3d 305, 307 (6th Cir.2004) (same); Boritz v. United States, 685 F.Supp.2d 113, 122 (D.D.C .2010) (same).

FN34. See Amusement Indus., Inc. v. Stern, 786 F.Supp.2d 741, 754 (S.D.N.Y.2011).

FN35. United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 (1940).


Even assuming a waiver of sovereign immunity, the State's cross-claims lack Article III standing because the State does not allege a concrete and particularized injury-in fact. The State asserts that its claims against the Secretary were asserted prophylactically, in response to the Nation's interjection of the merits of PL 602 into this case, and that dismissal of its cross-claims would “irretrievably impair” the State's rights “if this Court proceeds to address the substantive merits of the Plaintiff's claims.” Specifically, the State urges that once the Park City Land is acquired into trust, the Quiet Title Act's Indian lands exception preserves the United States' immunity from suit.FN36 Thus, any alleged injury associated with a potential loss of opportunity for judicial review could only occur if the Secretary determines that PL 602 requires that the Park City Land be acquired into trust for the Nation. As the Secretary notes, however, speculative claims of injury are insufficient for purposes of Article III standing.FN37

FN36. Citing 28 U.S.C. ? 2409a; Gov. of Kan. v. Kempthorne, 516 F.3d 833, 843 (10th Cir.2008) (interpreting Quiet Title Act as applying to such actions, thus implicating that Act's preservation of the United States' sovereign immunity for challenges involving Indian lands).

FN37. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring claimed injury to be “concrete and particularized”).

Further, the Supreme Court recently issued its opinion in Match?E?Be?Nash?She?Wish Band of Pottawatomi Indians v. Patchak,FN38 resolving the question of whether suits challenging the United States' acquisition of land in trust for Indian tribes after the United States acquires title are actions under the APA or the Quiet Title Act. Under Patchak, a plaintiff that is challenging a decision to acquire land in trust, but does not claim a competing interest in the land, can proceed with the lawsuit even after the land is actually acquired or taken into trust,FN39 thus removing the one potential harm the State has articulated?the loss of the opportunity for judicial review should the Secretary take the Park City Land intro trust. Accordingly, because the Secretary's ultimate determination of the Nation's application remains pending, any harm that may inure to the State does not rise to the level of an imminent, concrete and particularized injury-in-fact necessary to establish jurisdiction.

FN38. 132 S.Ct. 2199 (2012) (abrogating Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961?61 (10th Cir.2004)).

FN39. Id. at 2205?06.

Administrative Procedure Act

Finally, although the lack of subject matter jurisdiction is dispositive, the Court briefly addresses the Secretary's alternative grounds for dismissal. While the State does not allege the APA as a basis for its cross-claims, it argues that if the Nation's claims under the APA provide this Court with a jurisdictional basis to reach the merits of the Nation's claims under PL 602, then the same jurisdictional basis exists with regard to the State's cross-claims. But the State cannot extrapolate the Nation's inclusion of an APA claim in its Complaint as conferring Article III jurisdiction over its cross-claims against the Secretary. In order to bring a claim under the APA, “the prospective [cross-claimant] must show that [the] agency action has caused him to suffer ‘legal wrong,’ or that he is ‘adversely affected or aggrieved’ by that action.” FN40 As the Secretary notes, the State has not demonstrated how it is “suffering legal wrong” or is “adversely affected or aggrieved” by the Secretary's ongoing review of the Nation's application. As discussed above, the State's claimed harms are based on the presumption that the Secretary will take the Park City Land into trust.

FN40. W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1055 (10th Cir.1993) (citing Defenders of Wildlife, 497 U.S. at 883).

*6 IT IS THEREFORE ORDERED BY THE COURT that the Nation and the Secretary's Motions to Dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) (Docs.45, 47) are GRANTED; the State's counterclaims against the Nation and cross-claims against the Secretary are DISMISSED without prejudice;

IT IS FURTHER ORDERED BY THE COURT that within ten (10) days of the date of this Order, the parties shall confer and submit a proposed schedule for resolving the remaining claims in this dispute, including a response or submission by the State as it sees necessary.


Wyandotte Nation v. Salazar
Slip Copy, 2012 WL 3156810 (D.Kan.)