                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 07 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CLOVERDALE RANCHERIA OF                          No. 12-16539
POMO INDIANS OF CALIFORNIA, a
Federally-recognized Indian Tribe;               D.C. No. 5:10-cv-01605-JF
JAVIER MARTINEZ; SARAH
GOODWIN; LENETTE LAIWA-
BROWN; GERAD SANTANA; JOHN                       MEMORANDUM***
TRIPPO, in their official capacities as
members of the Cloverdale Rancheria of
Pomo Indians of California Tribal Council,

              Plaintiffs - Appellants,

  V.

SALLY JEWELL*, Secretary of the
Interior; KEVIN K. WASHBURN**,
Assistant Secretary of the Interior for
Indian Affairs; MICHAEL S. BLACK,
Director of the Bureau of Indian Affairs;
MICHAEL R. SMITH, Deputy Director of
the Bureau of Indian Affairs for Field


         *
             Sally Jewell is substituted for her predecessor, Kenneth L. Salazar, as
Secretary of the Interior. Fed. R. App. P. 43(c)(2).
       **
            Kevin K. Washburn is substituted for his predecessor, Donald “Del”
Laverdure, as Assistant Secretary of the Interior for Indian Affairs. Fed. R. App. P.
43(c)(2).

       ***   This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Operations; AMY DUTSCHKE, Regional
Director of the Pacific Regional Office of
the Bureau of Indian Affairs; TROY
BURDICK, Superintendent of the Central
California Agency of the Bureau of Indian
Affairs; U.S. DEPARTMENT OF THE
INTERIOR,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                       Argued and Submitted October 9, 2014
                             San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.****

      Plaintiffs-Appellants are five members of the Cloverdale Rancheria of Pomo

Indians of California (“the Tribe”) who seek to compel Defendants-Appellees, the

Department of Interior and its officials (“the Department”), to recognize them as

the Tribe’s leadership and negotiate self-determination contracts with them. The

district court dismissed both of Plaintiffs-Appellants’ complaints for lack of

subject matter jurisdiction and lack of standing. We review these dismissals de



       ****
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                         -2-
novo, Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007), and we

affirm.

      This case comes to us after years of dispute about the governance of the

Tribe following its restoration to federally recognized status. This history is

known to the parties, and we will not recite it here. Suffice it to say that over the

years various factions of the Tribe have asked the Department to recognize them as

the Tribe’s duly-elected government. Plaintiffs-Appellants have failed to show

why the federal courts can now compel the Department to intervene in this long-

running intra-tribal dispute.

      Plaintiffs-Appellants have not identified a discrete, non-discretionary duty

sufficient to furnish the district court with subject matter jurisdiction under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1). Nor have they

established that they have statutory standing under the Indian Self-Determination

and Education Assistance Act, 25 U.S.C. § 450 et seq. (“ISDA”), to bring suit,

even assuming that the district court had subject matter jurisdiction under ISDA to

entertain their claims. Finally, Plaintiffs-Appellants cannot bring their claims

under another provision of the APA, 5 U.S.C. § 706(2), because they have not

exhausted their administrative appeals.




                                          -3-
      Section 706(1) of the APA empowers federal courts “to compel agency

action unlawfully withheld or unreasonably delayed.” The agency action must be

both “discrete” and “legally required.” Norton v. S. Utah Wilderness Alliance, 542

U.S. 55, 63 (2004) (“SUWA”). None of the three purported duties Plaintiffs-

Appellants identify satisfy this standard.

      The first asserted duty, the Department’s trust obligation to ensure the

political integrity and self-determination of Indian tribes, is broad and lacks the

“specificity requisite for agency action.” SUWA, 542 U.S. at 66. The Department

has considerable “discretion in deciding how to achieve” that object, id., and for

that reason it cannot supply a court with jurisdiction.

      The second asserted duty, based on the 1983 Tillie Hardwick settlement and

the Department’s decisions effectuating it, imposes on the Department “a

responsibility to ensure that the initial tribal government is organized by

individuals who properly have the right to do so.” Alan-Wilson v. Sacramento

Area Director, 30 I.B.I.A. 241, 252 (1997) (emphasis added). But this duty does

not provide the court jurisdiction under § 706(1) because the Department has

already discharged it. In vacating prior agency decisions that recognized

governments that were not constituted according to the terms of the Tillie

Hardwick settlement and dispatching a BIA official to identify eligible electors and


                                             -4-
supervise the 1997 tribal meeting that endorsed the governing body that the

Department now recognizes, the Department saw to it that the initial tribal

government was established by those who had a right to do so.

      The third asserted duty is an obligation of the Department to accept or reject

Plaintiffs-Appellants’ contract proposals in conformity with the criteria set out in

ISDA § 450f(a) and a series of related regulations. This purported duty furnishes

subject matter jurisdiction under the APA only if it is owed to Plaintiffs-

Appellants. It is not. Only an “Indian tribe” or a “tribal organization” is

authorized to submit a contract proposal. See 25 U.S.C. § 450f(a)(1)–(2).

Plaintiffs-Appellants are not entitled to act on behalf of a federally recognized

“Indian tribe,” however, because they are not the Tribe’s recognized governing

body. For the same reason, even if Plaintiffs-Appellants constitute a “tribal

organization,” 25 U.S.C. § 450b(l), they are not entitled to submit a contract

proposal because they were not “authorized” to do so by the Tribe’s governing

body, as § 450f(a)(2) requires.

      For these reasons, Plaintiffs-Appellants lack statutory standing to sue, even

if ISDA, rather than the APA, supplies the necessary subject matter jurisdiction, as

the district court assumed it did. Therefore, the district court did not err in

dismissing Plaintiffs-Appellants’ fourth, fifth, and sixth claims.


                                           -5-
      Finally, the district court lacked subject matter jurisdiction under APA §

706(2) to hear Plaintiffs-Appellants’ sixth claim, that the Department acted

arbitrarily and capriciously, in abuse of its discretion, or otherwise unlawfully

when it returned Plaintiffs-Appellants’ proposed ISDA contracts and when it

modified and renewed existing ISDA contracts at the request of the Tribe’s

recognized governing body. The Department’s return of Plaintiffs-Appellants’

contract proposals does not constitute “action”; rather, it was the equivalent of a

“return to sender” notification. Even if it were action, Plaintiffs-Appellants did not

exhaust their administrative appeals. See White Mountain Apache Tribe v. Hodel,

840 F.2d 675, 677 (9th Cir. 1988). The same is true of Plaintiffs-Appellants’

complaints about the Department’s contract negotiations with their rivals.

      For the foregoing reasons, we affirm the district court’s dismissal of both of

Plaintiffs-Appellants’ complaints.

      AFFIRMED.




                                          -6-
