     Case: 13-40644   Document: 00512691235     Page: 1   Date Filed: 07/09/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                 No. 13-40644
                                                                         FILED
                                                                      July 9, 2014
                                                                    Lyle W. Cayce
THE ALABAMA-COUSHATTA TRIBE OF TEXAS,                                    Clerk

                                           Plaintiff-Appellant,
v.

UNITED STATES OF AMERICA; THOMAS JAMES VILSACK, in his
capacity as Secretary of the United States Department of Agriculture; SALLY
JEWELL, in her capacity as Secretary of the United States Department of
the Interior,

                                           Defendants-Appellees.




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before STEWART, Chief Judge, DENNIS and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      The Alabama-Coushatta Tribe of Texas brought suit against the United
States and various federal agencies alleging inter alia violations of the
Administrative Procedures Act and federal common law. The district court
granted the Government’s motion to dismiss for lack of subject matter
jurisdiction. Because we hold that the Tribe has failed to allege “agency action”
sufficient to meet the standards required for waiver of the Government’s
sovereign immunity, we AFFIRM.
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                                       No. 13-40644
                           FACTS AND PROCEEDINGS
       The Alabama-Coushatta Tribe of Texas (“Tribe”) is a federally-
recognized Indian tribe.         The Tribe asserts that it holds unextinguished
aboriginal title 1 to approximately 400,000 acres of land in the Big Thicket
region of East Texas covering the Davy Crockett and Sam Houston National
Forests and the Big Thicket National Preserve. For centuries, the Tribe has
called this region home. In 2000, the Court of Federal Claims agreed with the
Tribe that it holds aboriginal title to these lands. 2 See Alabama-Coushatta
Tribe of Tex. v. United States, No. 3–83, 2000 WL 1013532 (Fed. Cl. June 19,
2000). The Court of Federal Claims issued a nonbinding recommendation to
Congress that the federal government “violated its fiduciary obligations by
knowingly failing to protect 2,850,028 acres of the Tribe’s aboriginal lands” and
that it should pay damages accordingly. See id. at *61–62. However, Congress
has never acted on the Court of Federal Claims’ recommendation. Meanwhile,
the Tribe alleged, the United States, acting through various federal agencies,
has continued to approve drilling leases and permits to third parties. This has
allowed the exploitation of the natural resources on the land in derogation of
the Tribe’s aboriginal title.
       The Tribe filed this action against the United States and various
agencies (collectively “the Government”) claiming that the Government
breached its fiduciary duty under federal law to protect the land and natural


       1 Aboriginal title is a unique form of title to real property, loosely analogized to a
“perpetual right of occupancy” with an “ultimate reversion in fee” to the sovereign. Mitchel
v. United States, 34 U.S. (9 Pet.) 711, 746, 756 (1835); see generally Robert Coulter, Native
Land Law § 3:2 (2013). Aboriginal title is an equitable possessory interest, which is not
superior to that possessed by the United States, the actual title holder. Johnson v. M’Intosh,
21 U.S. (8 Wheat.) 543, 592 (1823); see also Oneida Indian Nation of N.Y. State v. Cnty. of
Oneida, 414 U.S. 661, 667 (1974) (“Oneida I”). These interests include a right of occupancy,
use, and enjoyment, which can only be extinguished by an express act of Congress. See
Oneida I, 414 U.S. at 667–69.
       2 As both parties recognized, this decision is not binding on our Court.

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resources subject to the aboriginal title of the Tribe. The Tribe asserted that
there was jurisdiction for the suit based on 28 U.S.C. §§ 1331 (federal question),
1362 (action by Indian tribe) 3 and brought causes of action pursuant to the
Administrative Procedures Act (“APA”), the Nonintercourse Act, the
Declaratory Judgment Act, and federal common law. The Tribe sought to stop
the Government from taking actions that facilitate the wrongful trespass on
the Tribe’s lands and to force the Government to take the appropriate action
to protect the Tribe’s lands when the Government makes discretionary
decisions impacting the land.             Specifically, the Tribe challenged: (1) the
National Park Service’s issuance of permits to drill for oil or gas in the Big
Thicket National Preserve; (2) the Forest Service’s issuance of drilling permits
for privately owned mineral estates located under the Sam Houston and Davy
Crockett National Forests; (3) the Bureau of Land Management’s issuance of
oil and gas leases for land in the Sam Houston and Davy Crockett National
Forests, and the collection of royalties and rent payments from these leases;
and (4) the National Forest Service’s exploitation and sale of timber resources
from the Davy Crockett and Sam Houston National Forests. 4 The Tribe made
no other challenges to actions taken by the United States and its agencies.
       The Tribe sought equitable relief, including declarations that the
Government’s actions in the past violated federal common law and the
Nonintercourse Act and that in the future the Government must consider and
accommodate the Tribe’s aboriginal title; a permanent injunction; accounting


       3  The Tribe also asserted jurisdiction for its mandamus claim under 28 U.S.C. § 1361;
however, the Tribe does not pursue this claim on appeal. Additionally, the Tribe asserted
jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346, and the Tucker Act, 28 U.S.C.
§ 1491. The Tribe fails to make any argument for jurisdiction based on these statutes, and
therefore, has waived any argument it may have had with respect to these statutes. See
Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir. 2012).
        4 Notably, the Tribe did not point to any identifying factors except for the alleged total

number granted for a single lease, permit, or sale of these resources.
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                                  No. 13-40644
of the revenues collected as a result of the Government’s actions; and, if
necessary, the appointment of a special master to make decisions regarding
mineral rights on these lands. The Tribe did not seek monetary relief or the
conveyance of the land at issue. Rather, the Tribe sought only to prevent the
Government from continuing to breach its fiduciary duties in recent and
pending discretionary administrative decisions with respect to federal land in
the Tribe’s territory. The Government filed a motion to dismiss the Tribe’s
lawsuit for lack of subject-matter jurisdiction, or in the alternative, for failure
to state a claim upon which relief can be granted.
      The district court referred the matter to the magistrate judge (“MJ”).
The MJ issued a report and recommendation stating that the district court
should grant the Government’s motion to dismiss for lack of subject-matter
jurisdiction because the Tribe made a programmatic challenge to the federal
agencies’ actions, and therefore, the actions were not reviewable under § 702.
The MJ also recommended that the Tribe could not establish a breach of
fiduciary duty based on the Nonintercourse Act, and that only the
Government’s wrongful, total extinguishment of aboriginal title, is actionable.
The district court adopted the MJ’s report and recommendation over the
Tribe’s objections.
                                 DISCUSSION
      We review a district court’s grant of a motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) de novo. Willoughby v.
U.S. ex rel. U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013), cert.
denied, 134 S. Ct. 1307 (2014). The Tribe, as the party asserting federal
subject-matter jurisdiction, has the burden of proving that this requirement
has been met. Id. When facing a challenge to subject-matter jurisdiction and
other challenges on the merits, we must consider first the Rule 12(b)(1)
jurisdictional challenge prior to addressing the merits of the claim. See id.
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                                       No. 13-40644
      “Whether the United States is entitled to sovereign immunity is a
question of law which this court reviews de novo.” Koehler v. United States,
153 F.3d 266, 265 (5th Cir. 1998) (citation omitted). “It is well settled that the
United States may not be sued except to the extent that it has consented to
suit by statute.” Id. (citation omitted). Further, “[w]here the United States
has not consented to suit or the plaintiff has not met the terms of the statute
the court lacks jurisdiction and the action must be dismissed.” Id. at 266
(citation omitted). “[A] waiver of the Government’s sovereign immunity will
be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v.
Pena, 518 U.S. 187, 192 (1996).
      The Tribe seeks judicial review of the actions of various federal agencies
pursuant to 28 U.S.C. § 1331 and § 1346. In order to maintain this action,
there must be a waiver of sovereign immunity. See Koehler, 153 F.3d at 265.
The only applicable waiver is from the APA, 5 U.S.C. § 702; therefore, the Tribe
must prove that the requirements of § 702 have been met. See Willoughby, 730
F.3d at 479. Section 702 of the APA “waives sovereign immunity for actions
against federal government agencies, seeking nonmonetary relief, if the agency
conduct is otherwise subject to judicial review.” Sheehan v. Army & Air Force
Exch. Serv., 619 F.2d 1132, 1139 (5th Cir. 1980), rev’d on other grounds, 456
U.S. 728 (1982); see also Armendariz-Mata v. U.S. Dep’t of Justice, 82 F.3d 679,
682 (5th Cir. 1996) (“Congress intended to broaden the avenues for judicial
review of agency action by eliminating the defense of sovereign immunity in
cases covered by § 702 . . . .”(citation omitted)). 5



      5Section 702 of the APA provides in full:
      A person suffering legal wrong because of agency action, or adversely affected
      or aggrieved by agency action within the meaning of a relevant statute, is
      entitled to judicial review thereof. An action in a court of the United States
      seeking relief other than money damages and stating a claim that an agency
      or an officer or employee thereof acted or failed to act in an official capacity or
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                                        No. 13-40644
       In Sheehan, we agreed with the Third Circuit that Congress intended to
waive immunity for non-statutory causes of action against federal agencies
arising under 28 U.S.C. § 1331. Sheehan, 619 F.2d at 1139 (“We too . . . hold
that Congress did intend to waive the defense of sovereign immunity for
nonstatutory review under section 1331”). Although Sheehan was ultimately
reversed by the Supreme Court on other grounds, we continue to agree with
this specific holding. See Rothe Dev. Corp. v. U.S. Dep’t of Defense, 194 F.3d
622, 624 n.2 (5th Cir. 1999) (citing Sheehan as support for the fact that § 702
is a waiver of sovereign immunity for actions against federal government
agencies, if the agency is otherwise subject to judicial review). Section 702’s
legislative history as illuminated by the Third Circuit in Jaffee v. United
States, 592 F.2d 712, 718–19 (3d Cir.), cert. denied, 441 U.S. 961 (1979) is
particularly instructive on this point. Additionally, this holding is supported
by a number of decisions in our sister circuits. See, e.g., Michigan v. U.S. Army
Corps of Engineers, 667 F.3d 765, 775 (7th Cir. 2011); Trudeau v. Federal Trade
Comm’n, 456 F.3d 178, 186–87 (D.C. Cir. 2006); United States v. City of Detroit,
329 F.3d 515, 520–21 (6th Cir. 2003) (en banc).
       Section 702 contains two separate requirements for establishing a
waiver of sovereign immunity. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
882 (1990). First, the plaintiff must identify some “agency action” affecting


       under color of legal authority shall not be dismissed nor relief therein be denied
       on the ground that it is against the United States or that the United States is
       an indispensable party. The United States may be named as a defendant in
       any such action, and a judgment or decree may be entered against the United
       States: Provided, That any mandatory or injunctive decree shall specify the
       Federal officer or officers (by name or by title), and their successors in office,
       personally responsible for compliance. Nothing herein (1) affects other
       limitations on judicial review or the power or duty of the court to dismiss any
       action or deny relief on any other appropriate legal or equitable ground; or (2)
       confers authority to grant relief if any other statute that grants consent to suit
       expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 702.
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                                  No. 13-40644
him in a specific way, which is the basis of his entitlement for judicial review.
Id. This “agency action” for the purposes of § 702 is set forth by 5 U.S.C. §
551(13) and is defined as “the whole or part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C.
§ 551(13). Second, the plaintiff must show that he has “suffered legal wrong
because of the challenged agency action, or is adversely affected or aggrieved
by that action within the meaning of a relevant statute.” Lujan, 497 U.S. at
883 (internal quotation marks omitted). These requirements apply to any
waiver of sovereign immunity pursuant to § 702.
      Section 702 also waives immunity for two distinct types of claims. It
waives immunity for claims where a “person suffer[s] legal wrong because of
agency action.” 5 U.S.C. § 702. This type of waiver applies when judicial
review is sought pursuant only to the general provisions of the APA. There
must be “final agency action” in order for a court to conclude that there was a
waiver of sovereign immunity pursuant to the first type of waiver in § 702.
Lujan, 497 U.S. at 882 (“When, as here, review is sought not pursuant to
specific authorization in the substantive statute, but only under the general
review provisions of the APA, the ‘agency action’ in question must be ‘final
agency action.’”).    Both Lujan and our most applicable case, Sierra
Club, applied specifically to situations where review was sought pursuant only
to the general provisions of the APA. See id.; Sierra Club v. Peterson, 228 F.3d
559, 565 (5th Cir. 2000) (en banc).
      Section 702 also waives immunity for claims where a person is “adversely
affected or aggrieved by agency action within the meaning of a relevant
statute.” 5 U.S.C. § 702. This type of waiver applies when judicial review is
sought pursuant to a statutory or non-statutory cause of action that arises
completely apart from the general provisions of the APA. See Sheehan, 619
F.2d at 1139; Trudeau, 456 F.3d at 187. There is no requirement of “finality”
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                                       No. 13-40644
for this type of waiver to apply.             See Trudeau, 456 F.3d at 187.                The
requirement of “finality” comes from § 704 and has been read into § 702 in
cases where review is sought pursuant only to the general provisions of the
APA. See Sierra Club, 228 F.3d at 565; Amer. Airlines, Inc. v. Herman, 176
F.3d 283, 287 (5th Cir. 1999). Instead, for this type of waiver there only needs
to be “agency action” as set forth by 5 U.S.C. 551(13). See Lujan, 497 U.S. at
882.
        This case is unique because the Tribe is asserting two separate types of
claims—each falling under the different parts of § 702 described above. First,
it is asserting a general challenge to the various agencies’ actions pursuant to
the APA (hereinafter “APA claims”). These claims are brought solely pursuant
to the general provisions of the APA and specifically section 706. Second, the
Tribe is asserting a claim for breach of fiduciary duty based on both federal
common law and the Nonintercourse Act, 25 U.S.C. § 177, et. seq. 6 However,
the distinction between these two claims is ultimately irrelevant to our
decision. Because the Tribe fails to point to any identifiable “agency action”



        6Although there is no direct cause of action under the Nonintercourse Act, see Fed.
Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 123 (1960) (“25 U.S.C. § 177 does
not apply to the United States itself . . . .”), we assume without deciding that the
Nonintercourse Act creates a trust relationship between the Government and American
Indian tribes with respect to tribal lands covered by the Act such that the Tribe would have
an actionable breach of fiduciary duty claim based on this relationship. See Tonkawa Tribe
of Okla. v. Richards, 75 F.3d 1039, 1044 (5th Cir. 1996) (stating that the Nonintercourse Act
“imposes on the federal government a fiduciary duty to protect the lands covered by the Act”
(citation omitted)); Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d Cir.
1994) (“The [Nonintercourse] Act created a trust relationship between the federal
government and American Indian tribes with respect to tribal lands covered by the Act.”);
Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st Cir. 1975)
(stating that “the Nonintercourse Act imposes upon the federal government a fiduciary’s role
with respect to the protection of the lands of a tribe covered by the Act”); see also Mohegan
Tribe v. Connecticut, 638 F.2d 612, 622 (2d Cir. 1981) (stating that through the
Nonintercourse Act, “the federal government meant to take into its own hands the problems
of intrusions upon Indian property wherever they might occur”). This claim would fall under
the second type of waiver provided for by § 702.
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                                      No. 13-40644
within the meaning of § 702 for both claims, we hold that the Tribe has failed
to prove that subject-matter jurisdiction exists for this lawsuit. 7
       The Supreme Court’s decision in Lujan “announced a prohibition on
programmatic challenges”—challenges that seek “wholesale improvement” of
an agency’s programs by court decree, rather than through Congress or the
agency itself where such changes are normally made. Sierra Club, 228 F.3d at
566 (internal quotation marks and citation omitted). We agree with the district
court that the Tribe’s lawsuit is an impermissible programmatic challenge, and
therefore, we lack jurisdiction over these claims. See Lujan, 497 U.S. at 890
(holding that the petitioners’ challenge to the entirety of the “land withdrawal
review program” is “not [a challenge to] an ‘agency action’ within the meaning
of § 702, much less a ‘final agency action’ within the meaning of § 704”). The
Tribe’s complaint fails to point to any “identifiable action or event.” See id. at
899. Instead, the complaint brings a challenge to the federal management of
the natural resources on the land in question. The complaint contends only
that all of the leases, permits, and sales administered by multiple federal
agencies, including any ongoing action by these agencies that encroach on the
Tribe’s aboriginal title, are unlawful. These are allegations of past, ongoing,
and future harms, seeking “wholesale improvement” and cover actions that
have yet to occur. See id. at 891. Such allegations do not challenge specific
“agency action.” See id.
       The Tribe’s complaint is structured as a blanket challenge to all of the
Government’s actions with respect to all permits and leases granted for
natural resource extraction on a significantly large amount of land covering
several national parks in Texas.           The fact that the Tribe is not seeking


       7 Because we hold that we lack subject-matter jurisdiction to consider the Tribe’s
claims, we need not address the Government’s alternate basis for affirming the district court
under the Quiet Title Act, 28 U.S.C. § 2409a.
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                                     No. 13-40644
wholesale reform of every single mineral permit, lease, or sale granted by these
agencies but only those related to the lands on which the Tribe claims
aboriginal title, does not diminish the scale of the relief sought by the Tribe.
The challenge is to the way the Government administers these programs and
not to a particular and identifiable action taken by the Government.
      The Tribe argues that the complaint identifies a specific number of these
permits and leases that have been issued, but this alone cannot save these
claims. As the Tribe concedes, these numbers do not specifically identify the
agency action nor is the Tribe contesting these specific actions. 8 Rather, the
Tribe believes that it is entitled to discovery to learn what agency actions are
currently pending. Such an argument is unavailing, especially given the fact
that information regarding the Government’s management of natural
resources on public lands is readily available.           See, e.g., 36 C.F.R. § 9.52
(providing for public notice and inspection of documents related to oil and gas
permits and leases in national forests). Even if the Tribe were to name some
specific agency actions as examples of the agencies’ alleged wrongdoing, it
remains that the challenge is directed at the federal agencies’ broad policies
and practices—namely the agencies’ failure to consider and accommodate the
Tribe’s aboriginal title and incidental rights.         See Lujan, 497 U.S. at 891
(stating that ordinarily under the APA “the scope of the controversy” should be
manageable in proportion and factually developed “by some concrete action
applying the regulation to the claimant’s situation in a fashion that harms or
threatens to harm him”); Sierra Club, 228 F.3d at 567 (“[T]he environmental
groups [may not] . . . challenge an entire program by simply identifying specific
allegedly-improper final agency actions within that program . . .”).



      8  At oral argument, the Tribe stated that because under § 702 it can only seek
prospective, injunctive relief, it was not challenging the past actions by the Government.
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                                       No. 13-40644
         The Tribe also argues that it brings its APA claims pursuant to 5 U.S.C.
§ 706; however, this argument is undeveloped and unavailing. The Tribe
asserts that § 706 provides that a reviewing court shall “hold unlawful and set
aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2).
However, the Tribe fails to explain how this makes the action “final” for
purposes of the sovereign immunity waiver in § 702, and finality is necessary
for this type of waiver to apply. See Sierra Club, 228 F.3d at 565. For example,
the Tribe does not argue that this is a challenge to the agencies’ failure to act,
which in certain circumstances may be sufficiently final to make review
appropriate. See id. at 568. Under these circumstances, the Tribe’s argument
is meritless.
         The Tribe argues that at the very least its breach of fiduciary duty claim
is sustainable because the district court erred in applying our precedent on the
elements of the Nonintercourse Act. 9             However, we need not address the
district court’s decision on these grounds. The Tribe’s breach of fiduciary duty
claim is not sustainable for the same reason its APA claims are not
sustainable—there is no subject-matter jurisdiction because the Tribe failed to
allege “agency action” sufficient to trigger the sovereign immunity waiver from
§ 702.
                                     CONCLUSION
         For the aforementioned reasons only, we AFFIRM the district court’s
dismissal of this suit for lack of subject-matter jurisdiction. The Tribe has



         9The Government argues that the Tribe failed to preserve this issue for appeal by
failing to object on this ground to the MJ’s report, and therefore, plain error review applies.
See, e.g., Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc),
superseded on other grounds by 28 U.S.C. § 636(b)(1). However, after conducting a thorough
review of the record, we conclude that de novo review is appropriate because the Tribe did
object to the MJ’s report on this basis.

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failed to allege “agency action” sufficient to meet the requirements of the
sovereign immunity waiver in § 702, which is necessary to maintain its claims
against the federal government and its agencies.




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