                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

PYRAMID LAKE PAIUTE TRIBE,

                          Plaintiff,

                          v.                       Case No. 1:13-cv-01771 (CRC)

SYLVIA BURWELL, Secretary, Health
and Human Services et al.,

                          Defendants.

                                       MEMORANDUM OPINION

        The Indian Self Determination and Education Assistance Act enables Indian tribes to

assume responsibility for programs and services that federal agencies would otherwise provide to

Indians. The Pyramid Lake Paiute Tribe submitted a contract proposal to the Secretary of Health

and Human Services under the Act for funding to operate an emergency medical services (“EMS”)

program that the Indian Health Service (“IHS”), a component of Health and Human Services, had

been funding directly since 1993. After receiving the Tribe’s proposal, the Secretary discontinued

the EMS program, which IHS viewed as financially untenable, and denied the Tribe’s request on

the ground that the agency would not have funded the program going forward. The Tribe brought

suit and has moved for summary judgment, arguing that the Secretary lacked authority to deny the

proposal. The Court agrees. Once the Secretary receives a valid proposal to assume the operation

an ongoing program, the Act requires her to accept the proposal unless one or more enumerated

declination criteria are met. Because she did not rest her decision on any of those criteria, denying

the Tribe’s proposal violated the Act. The Court will therefore grant summary judgment in favor of

the Tribe and direct the Secretary to negotiate with the Tribe to determine the appropriate funding

level for the contract.
       I.      Background

               A. Statutory Background

       Congress passed the Indian Self-Determination and Education Assistance Act (“ISDEAA”)

to promote Indian tribes’ rights to self-governance by enabling them to assume responsibility for

certain federal programs. See 25 U.S.C. § 450a. To further that purpose, ISDEAA directs the

Secretary of Health and Human Services and the Secretary of the Interior to “enter into a self-

determination contract or contracts with a tribal organization to plan, conduct, and administer

programs” that were created to benefit Indian tribes. 25 U.S.C. § 450f(a)(1). Upon authorization

by a tribe, a “tribal organization” may submit a proposal for a self-determination contract to the

relevant Secretary. Id. § 450f(a)(2). The Secretary must approve the proposal within 90 days

unless she provides “written notification to the applicant that contains a specific finding that clearly

demonstrates that or that is supported by a controlling legal authority” showing that one or more of

five declination criteria exist. Id. One of the declination criteria is that “the amount of funds

proposed under the contract is in excess of the applicable funding level for the contract[.]” Id. §

450f(a)(2)(D). The “applicable funding level for the contract,” in turn, shall not be less than the

amount the Secretary “would have otherwise provided for the operation of the programs or portions

thereof for the period covered by the contract[.]” Id. § 450j-1(a)(1). Additional funding is available

“for the reasonable costs for activities which must be carried on by a tribal organization as a

contractor to ensure compliance with the terms of the contract and prudent management[,]” as well

as the start-up costs of the program during its initial year. Id. §§ 450j-1(a)(2), (5). But “the

provision of funds . . . is subject to the availability of appropriations and the Secretary is not

required to reduce funding for programs . . . serving a tribe to make funds available to another tribe

or tribal organization[.]” Id. § 450j-1(b). District courts have original jurisdiction over claims




                                                    2
arising under the ISDEAA and “may order appropriate relief including money damages, injunctive

relief . . . , or mandamus” for violations of the Act. Id. § 450m-1(a).

               B. Factual Background

       The Fort McDermitt Paiute and Shoshone Tribes (“Fort McDermitt Tribe”) reside on the

Fort McDermitt Indian Reservation, a small, remote community on the border between Nevada and

Oregon. Pl.’s Statement of Material Facts in Support of Mot. for Sum. J. (“Pl.’s SOF”) ¶ 3; Compl.

¶ 23. IHS has operated a health clinic at Fort McDermitt for Indians living in the area since the

1970s. Def.’s Statement of Material Facts in Support of Mot. for Sum. J. (“Def.’s SOF”) ¶ 1; Pl.’s

Mot. for Summ. J. (“Pl.’s Mot.”) Ex. B (“Declination Letter”) at 1. The Fort McDermitt clinic

provides primary medical, dental, and mental health care to its patients, as well as alcohol and drug

treatment programs. Def.’s SOF ¶ 2.

       IHS had also operated an EMS program for the Fort McDermitt area since 1993.

Declination Letter at 1. The cost of operating the EMS program increased unexpectedly beginning

in 2010 as a result of an IRS determination that IHS must classify personnel working for the

program under individual service contracts as employees, rather than independent contractors.

Def.’s SOF ¶¶ 22–23. On March 21, 2013, the Fort McDermitt clinic held a governing board

meeting and presentation for representatives of the Fort McDermitt Tribe. Id. ¶ 15. The

presentation and accompanying budget analysis explained that the FY 2012 total operating costs for

the EMS program were $502,611, while its revenues were only $102,711. Id. ¶ 18. The agency

explained that it had been making up the difference with revenues from the clinic and IHS

discretionary funds. Id. ¶¶ 20–21; Declination Letter at 1.

       The Pyramid Lake Paiute Tribe (“Tribe” or “Pyramid Lake Tribe”) is a federally-recognized

Indian tribe that provides a range of health care services in other areas of Nevada under an ISDEAA

contract with IHS. Pl.’s SOF. ¶¶ 1–2. On January 13, 2013, the Fort McDermitt Tribe, by

                                                   3
resolution of its governing body, designated the Pyramid Lake Tribe as its “tribal organization”

under the ISDEAA to contract for an EMS program within the Fort McDermitt area. Id. ¶ 6. The

Tribe submitted a contract proposal to IHS on June 21, 2013, which IHS received on July 8, 2013,

seeking to incorporate the Fort McDermitt EMS program into the Pyramid Lake Tribe’s existing

health delivery services. Id. ¶¶ 8–13. The proposal requested $502,611 for operating costs—which

was the actual cost to IHS of operating the program in FY 2012— plus $196,739 for start-up costs

and $136,139 for indirect contract support costs. Id. ¶ 12.

       As required by Nevada law, the Fort McDermitt EMS program regularly contracted with an

area hospital, Humboldt General Hospital, to act as the EMS program’s “base” hospital. Def.’s

SOF ¶ 30. In November 2012, however, Humboldt General established its own EMS station site in

the Fort McDermitt area. Id. ¶ 9. As a result, on August 15, 2013, the hospital notified IHS that it

would no longer serve as the base hospital for the Fort McDermitt EMS program. Id. ¶ 30. IHS

suspended operations of the EMS program four days later. Id.

       On September 30, 2013, IHS sent a letter to the Tribe notifying it that IHS had declined its

ISDEAA proposal. Declination Letter at 1. The agency explained that IHS had “ceased operation

of the Fort McDermitt EMS program” due to its large operating deficit. Id. at 3. Because IHS had

discontinued the program, it reasoned that the base amount available for contracting under section

450j-1(a)(1) was zero. It therefore declined the Tribe’s proposal under section 450f(a)(2)(D) as

being “in excess of the applicable funding amount.” Declination Letter at 4. As an alternative

ground, IHS indicated that it had declined the proposal “to the extent that the Tribe funding request

include[d] the third-party revenues generated by the Fort McDermitt Clinic used . . . to fund the

EMS program.” Id. IHS asserted that these third-party revenues were not generated by the EMS

program, were speculative, and were “not in themselves a program, function, service or activity”

under section 450f(a)(1). Id.

                                                  4
       The Tribe brought suit under the ISDEAA against IHS and the Secretary of Health and

Human Services, now Sylvia Burwell, seeking to require IHS to enter into a self-determination

contract with the Tribe to operate the Fort McDermitt EMS program. Both sides have moved for

summary judgment. The Secretary has also moved to dismiss for failure to join indispensable

parties—namely, other area tribes whose funding may be affected by the outcome of the case—

under Federal Rule of Civil Procedure 12(b)(7). The Court held a hearing on the parties’ motions

on August 28, 2014.

       II.     Standard of Review

               A. Motion to Dismiss for Failure to Join Indispensable Parties

        Federal Rule of Civil Procedure 12(b)(7) permits dismissal of a complaint for failure to join

a party under Rule 19, but courts are generally “‘reluctant to grant motions to dismiss of this type.’”

16th & K Hotel, LP v. Commonwealth Land Title Ins. Co., 276 F.R.D. 8, 12 (D.D.C. 2011)

(quoting 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1359 (3d ed.

2004)). For such a motion, the court accepts as true the allegations in the complaint, but also

considers extrinsic evidence. Id. (citing Davis Cos. v. Emerald Casino, Inc., 268 F.3d 477, 479 n.2,

480 n.4 (7th Cir. 2001)). The defendant has the burden to demonstrate “‘the nature of the interest

possessed by an absent party and that the protection of that interest will be impaired by the

absence.’” Citadel Inv. Grp., L.L.C. v. Citadel Capital Co., 699 F. Supp. 2d 303, 317 (D.D.C.

2010) (quoting Citizen Band Potawatomi Indian Tribe of Okla. v. Collier, 17 F.3d 1292, 1293 (10th

Cir. 1994)).

               B. Summary Judgment

       On a motion for summary judgment, the court must determine whether “there are any

genuine factual issues that properly can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

                                                   5
250 (1986). Summary judgment is appropriate where “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court must

draw all reasonable inferences in favor of the moving party, but the nonmovant must produce

material facts showing that there is a genuine dispute. Anderson, 477 U.S. at 247–48.

          III.   Analysis

                 A. Dismissal Under Rule 19

          The Court first will address the Secretary’s Rule 19 motion. Dismissal of a complaint for

failure to join an indispensable party under Federal Rule of Civil Procedure19 is “warranted only

when the defect is serious and cannot be cured.” Direct Supply, Inc. v. Specialty Hospitals of Am.,

LLC, 878 F. Supp. 2d 13, 23 (D.D.C. 2012) (citations omitted). The first step in determining

whether a case must be dismissed for failure to join an indispensable party is to determine whether

there are any absent parties that are necessary to the action. A party is indispensable under Rule

19(a)(1) if:

          (A) in that person’s absence, the court cannot accord complete relief among existing
          parties; or (B) that person claims an interest relating to the subject of the action and is so
          situated that disposing of the action in the person’s absence may: (i) as a practical matter
          impair or impede the person’s ability to protect the interest; or (ii) leave an existing party
          subject to a substantial risk of incurring double, multiple, or otherwise inconsistent
          obligations because of the interest.

The Secretary argues that because the Tribe’s proposal implicates the budget for other tribes served

by IHS in the region, each of these tribes is a necessary party to this action. Def.’s Mem. in Supp.

of Mot. to Dismiss or, alternatively, Summ. J. (“Def.’s Mot”) at 14–19. She reasons further that

because the other tribes are protected by sovereign immunity, they cannot be joined and the case

therefore must be dismissed. Id. 1



1
    The Secretary argued initially that the Fort McDermitt Tribe was a required party because it had
                                                      6
        A party is “interested” under Rule 19 if it has a legally protected interest in property or

rights to be adjudicated by the case. See, e.g., Ramah, 87 F.3d at 1351 (“Rule 19 analysis must

begin with an assessment of whether the nonparty Tribes have a legally protected interest”); Three

Affiliated Tribes of Fort Berthold Indian Reservation v. United States, 637 F. Supp. 2d 25, 30

(D.D.C. 2009) (“the Court must consider whether that party has a legally protected interest in the

subject of the action”). But the “interest” that the Secretary attributes to the other local tribes is

simply a practical concern on the part of the tribes over what happens to funds they might receive,

not a legal claim to those funds. As the Secretary argues throughout her briefing, IHS has

discretion to allocate its funding as it sees fit. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993). That

discretion, however, is inconsistent with the contention that the tribes have a legal claim to the

funds IHS distributes from its general appropriation. See id. at 193 (holding that courts have no

authority to oversee the allocation of funds from IHS’s lump sum appropriation).

        Citizen Potawatomi Nation v. Norton, 248 F.3d 993 (10th Cir. 2001), on which the

Secretary relies, is not to the contrary. There, five tribes entered into a joint self-governance

contract which required the Secretary to fund their respective programs according to an agreed upon

formula. Id. at 995–96. After one tribe sued the Secretary to receive additional funds, the court

determined that the other four tribes were indispensable parties due to their interest in the funds

under the contract. Id. at 997–98. Because the other tribes in this case do not have a contractually-

protected right to the relevant funds, Citizen Potawatomi Nation does not apply.

        Even assuming the other tribes are interested parties, they are not “indispensable” because

the Secretary can adequately represent their interests in this case. In Ramah, the D.C. Circuit found


not specifically authorized the Pyramid Lake Tribe to pursue this litigation. Def.’s Mot. at 21–22.
The Secretary conceded that argument, however, after the Fort McDermitt Tribe submitted a tribal
resolution specifically authorizing the Pyramid Lake Tribe to pursue this case. Def.’s Reply at 4.
The Secretary now argues only that other tribes that receive funding from the local IHS service unit
are interested. Id.
                                                    7
that IHS could adequately represent the interests of other tribes where one tribe sued to recover

funds under a self-determination contract. The Court reasoned that the Secretary and the other

tribes shared a general interest in the equitable allocation of federal funds. 87 F.3d at 1351. There

may be circumstances in which the Secretary’s interests do not align with other tribes. But here the

Secretary’s position is that the Pyramid Lake Tribe’s proposal would unfairly benefit the Fort

McDermitt tribe by enabling it to receive more than its share of funding, to the detriment of

neighboring tribes. The other tribes in the region presumably have that precise interest.

               B. Standard of Review Under the ISDEAA

       Under the ISDEAA, the Secretary has “the burden of proof to establish by clearly

demonstrating the validity of the grounds for declining [a] contract proposal.” 25 U.S.C. §

450f(e)(1). The parties disagree, however, about how much deference courts are required to give to

the Secretary’s interpretation of the statute in seeking to satisfy its burden. The Secretary argues

that her reading of the Act is entitled to the same level of deference that is given to agency decisions

under the Administrative Procedures Act (“APA”), while the Tribe argues that the Court should not

extend any deference to the agency.

       The Indian law canon of statutory construction requires that laws affecting Indians “be

construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”

Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir. 2001). When the canon applies, the Court should

“give the agency’s interpretation ‘careful consideration’ but ‘. . . not defer to it.’” Id. (quoting

Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1445 n.8 (D.C. Cir. 1988)). Without explicitly

addressing the issue, the D.C. Circuit in at least one case has reviewed the ISDEAA without

according deference to IHS’s interpretation. See Ramah Navajo Sch. Bd. v. Babbitt (“Ramah”), 87

F.3d 1338, 1344 (D.C. Cir. 1996), amended (Aug. 6, 1996). And one fellow district court explicitly

adopted a de novo standard of review after the Secretary conceded that IHS’s interpretation was

                                                    8
owed no deference. Seneca Nation of Indians v. Dep’t of Health and Human Services., 945 F.

Supp. 2d 135, 141–42 & n.5 (D.D.C. 2013). This appears to be the majority view. See id.

(collecting cases). But see Citizen Potawatomi Nation v. Salazar, 624 F. Supp. 2d 103, 109 (D.D.C.

2009) (applying APA standard to claims under both the APA and the ISDEAA and where parties

apparently had not raised the Indian canon).

       The ISDEAA is designed to “circumscribe as tightly as possible the discretion of the

Secretary[.]” Ramah, 87 F.3d at 1344. As mentioned above, the Secretary must prove her

declination decision was lawful, 25 U.S.C. § 450f(e)(1), and the ISDEAA prohibits the Secretary

from promulgating regulations under the ISDEAA except in specific circumstances, id. § 450k(a);

cf. United States v. Mead Corp., 533 U.S. 218, 226–27 (2001) (whether to accord Chevron

deference turns on whether “Congress delegated authority to the agency generally to make rules”

under the relevant statute). The ISDEAA also incorporates the Indian law canon of construction in

its model ISDEAA contract language. 25 U.S.C. § 450l(c). While not determinative, these

statutory provisions demonstrate why according deference to IHS’s interpretation of the ISDEAA

would be incongruous with the structure and purpose of the ISDEAA. For these reasons and

because the Indian law canon applies to the ISDEAA, the Court will review the statute de novo.

               C. Declination Of the Tribe’s ISDEAA Proposal

       As noted previously, the ISDEAA requires the Secretary to accept a tribe’s contract

proposal unless a specifically enumerated declination criterion exists. 25 U.S.C. § 450f(a). The

Secretary’s written notice to the tribe must explain the reasons for a declination; she may not rely

on post-hoc justifications. See id. § 450f(a)(2) (Secretary must accept a proposal absent written

notice specifically demonstrating that an enumerated declination criteria exists). IHS offered two

reasons in its written notice for declining the Tribe’s proposal. First, it stated that, because IHS had

canceled the EMS program after the Tribe filed its proposal, the funding level for the program was

                                                   9
now zero and, as a result, the funding sought in the Tribe’s proposal was “in excess of the

applicable funding level for the contract.” Declination Letter at 5. As an alternative justification,

IHS declined the proposal “to the extent that the Tribe funding request includes the third-party

revenues generated by the Fort McDermitt Clinic[.]” Id. In its motion for summary judgment, the

Secretary advances two additional reasons for the declination: (1) the proposed contract is in excess

of the amount IHS allocated to the Fort McDermitt Tribe in its budget, which IHS refers to as its

“tribal share”; and (2) the Tribe has not demonstrated that it can obtain an agreement from a “base”

hospital, which IHS contends is a requirement of Nevada law. Def.’s Mot. at 38–41. The Court

addresses each of the Secretary’s arguments below.

                       i. Closure Prior to Declination

       Section 450f(a)(2)(D) of the ISDEAA permits the Secretary to decline a contract proposal if

the proposed funding exceeds the applicable funding level for the program. Section 540j-1(a)(1), in

turn, establishes the applicable funding level at not less than the amount the Secretary “otherwise

would have provided” for the program. In its declination letter, IHS explained that because it had

shut down the Fort McDermitt EMS service, the amount the Secretary would have provided for the

program was zero and, as a result, the Tribe’s proposed funding exceeded that amount. IHS relied

on two cases to support this reasoning. In the first, Lincoln v. Vigil, the Supreme Court held that

IHS has unreviewable discretion over how to spend funds from its discretionary appropriation,

including whether to discontinue ongoing programs. 508 U.S. at 193–94. IHS argues that Lincoln

permitted it to cancel the EMS program. The second, Los Coyotes Band of Cahuilla & Cupeno

Indians v. Jewell (“Los Coyotes”), 729 F.3d 1025 (9th Cir. 2013), established that an agency may

decline an ISDEAA contract proposal to create a program that it had not operated previously. Id. at

1033–34. In Los Coyotes, the Bureau of Indian Affairs declined a tribe’s request to create a law

enforcement program within its reservation. The tribe responded by submitting an ISDEAA

                                                  10
proposal to create the program itself. The Bureau denied the proposal under section 450f(a)(2)(D),

reasoning that because it had never operated the program, the amount it “otherwise would have

spent” was zero.

       Neither Lincoln nor Los Coyotes supports the Secretary’s decision. Lincoln did not involve

an ISDEAA proposal at all. It simply said that the Secretary has the discretion to discontinue an

existing program, a point the Tribe does not appear to contest. The Secretary’s ability to use

discretionary funds as she sees fit does not relieve her obligation to adhere to the standards of Act in

assessing a tribe’s proposal. And in Los Coyotes, the agency was not operating the program when

the tribe submitted its ISDEAA proposal. Here, by contrast, IHS was operating the EMS program,

and had made no decision to discontinue it, when the Tribe submitted its proposal. The cases relied

on by the Secretary therefore present different questions than the one at issue here. The question

before the Court is at what point must the agency calculate the applicable funding under section

450f(a)(2)(D): at the date of the proposal or at the date of the declination letter? Neither party has

directly briefed this question, and it appears to be an issue of first impression.

       Given the structure and purpose of the ISDEAA, the Court concludes that the applicable

funding level for a contract proposal is to be determined from the date the agency receives the

tribe’s proposal. Accepting the Secretary’s alternative interpretation would undo the carefully-

constructed declination criteria in the ISDEAA. The agency could simply circumvent these limited

criteria whenever it wished by canceling a program after receiving a self-governance proposal and

then declining the proposal, as IHS did here. This would be a more difficult case had IHS decided

to cancel the EMS program prior to its receipt of the Tribe’s proposal. But at the hearing,

government counsel acknowledged that IHS had made no plans to reduce the funding level for the

EMS program until after receiving the proposal. Accordingly, the agency was not permitted to

decline the proposal under section 450f(a)(2)(D) based on a subsequent cancellation of the program.

                                                   11
                       ii. Third-Party Funding

       As alternative grounds, the declination letter also argued that the amounts IHS had been

transferring from the clinic to the EMS program to make up the shortfall in operating revenues were

not within the base funding under 450f(a)(2)(D) because those funds were not themselves a

“program, function, service, or activity available for contracting.” Declination Letter at 5. But

there is nothing in the ISDEAA that requires the funding for self-determination programs to

themselves be a “program, function, service, or activity available for contracting.” As discussed

above, the applicable funding level for a contract proposal under sections 450f(a)(2)(D) and 450j-

1(a)(1) is determined based on what the Secretary otherwise would have spent, not on the source of

the funds the Secretary uses. If the Secretary chooses to augment its spending on a program with

other funds available to her, nothing in the Act permits her to deduct those amounts from the tribe’s

funding under an otherwise acceptable ISDEAA contract. Accordingly, the Secretary improperly

declined the proposal on that basis.

                       iii. “Tribal Share” Allotment

       The Secretary argues in her motion for summary judgment that IHS calculates funding for

programs based on the “‘tribal share’ that supports the programs that are to be transferred to the

Tribe.” Def.’s Mot. at 15. A “tribal share” IHS explains, is IHS’s budgetary allocation for a given

tribe, which is then subdivided between geographic regions and specific programs. Wiggins Decl.

¶¶ 6–10. The Secretary further contends that the funding level in the Tribe’s proposal was in excess

of the tribal share IHS determined the Fort McDermitt tribe was entitled to receive. According to

the Secretary, the 2013 local service unit budget for the Fort McDermitt and other area tribes was

$3.5 million, $554,080 of which “was available for contracting by the Fort McDermitt Tribe.” Id.

at 17. Of that amount, IHS assigned $38,746 for the EMS program and made up the difference

using revenues from other sources. Id. at 26. Thus, the Secretary argues, even if the EMS program

                                                  12
remained in existence, the Tribe’s proposal was in excess of the $38,746 that IHS had allocated for

the program in its budget.

       As a threshold matter, this argument cannot support the Secretary’s motion for summary

judgment because she did not make it in the declination letter. The ISDEAA only permits the

Secretary to decline a contract proposal if she provides written notice setting forth valid grounds for

declination. 25 U.S.C. § 450f(a)(2). IHS never advanced this tribal share argument in declining the

Tribe’s proposal. It cannot now be used as a post-hoc to justification for the agency’s decision.

       The Secretary’s argument fails in any event. As discussed above, the Secretary may decline

an ISEAA proposal under section 450f(a)(2)(D) if the requested funding exceeds the amount IHS

“would have otherwise provided for the operation of the program.” The Secretary’s tribal share

argument posits that what IHS “would have otherwise provided” for a program is the amount it

allocated in its budget for a particular program, rather than what it would have actually spent.

Neither the Act nor IHS’s apparent practice supports the Secretary’s interpretation. The clearest

meaning of term “would have otherwise provided” in the context of the Act is what the IHS would

have otherwise spent on the program. Because IHS may spend more than a tribe’s budgeted tribal

share if the agency itself runs a particular program—as it did here—it cannot limit funding of an

ISDEAA proposal to a tribal share amount. IHS acknowledges as much, stating that it generally

determines the applicable funding level for an ISDEAA contract “based on the amount the Agency

previously spent to operate the program[.]” Wiggins Decl. ¶ 10. Accordingly, even if IHS had

advanced this argument in its declination letter, it would not have justified the denial of the Tribe’s

proposal.

                         iv.     Base Hospital Agreement

       The Secretary also advances another new ground for declination in her motion for summary

judgment. She argues that the Tribe has not demonstrated that it will be able to obtain a base

                                                  13
hospital agreement, which she claims is required in order to operate an EMS program on Nevada

state roads. Def.’s Mot. at 39 n.18. Again, because IHS did not advance this argument in the

declination letter, it cannot form the basis of the decision to decline the Tribe’s proposal.

               D. Injunctive and Mandamus Relief

       In its Complaint, the Tribe requests, among other relief, that the Court issue an injunction

requiring the Secretary to enter into a self-determination contract with the Tribe in the full amount

of its contract proposal. The Secretary responds that the Tribe has not satisfied the equitable

requirements for injunctive or mandamus relief. Def.’s Mot. at 41-42. Because the IDEAA

specifically provides for both injunctive and mandamus relief to remedy violations of the Act, 25

U.S.C. § 450m-1(a), however, the Tribe need not demonstrate the traditional equitable grounds for

obtaining the relief it seeks. See Susanville Indian Rancheria v. Leavitt, No. 07-259, 2008 WL

58951, at *10–11 (E.D. Cal. Jan. 3, 2008) (holding that a plaintiff seeking injunctive relief under

the ISDEAA need not satisfy the traditional equitable requirements); Red Lake Band of Chippewa

Indians v. Department of the Interior, 624 F. Supp. 2d 1, 25 (D.D.C. 2009) (granting specific

performance on an ISDEAA contract without considering the ordinary grounds for such relief

because injunctive relief is provided for in the statute).

       The Secretary also argues that the Tribe’s proposal is simply too expensive for IHS to fund

without affecting the amounts that the Fort McDermitt and other regional tribes will receive from

IHS appropriated funds. For the reasons explained previously, the expense of operating a program

cannot be a basis for denying a tribe’s ISDEAA proposal. That being said, the Court concludes that

the amount the Secretary “would have otherwise provided” should not necessarily be set at the prior

year’s actual expenditure on the program—in this case $502,611.30. That is especially so if the

Secretary can establish that the prior year’s expenditure was somehow aberrant and would not

continue over the term of the contract. Nothing in the Act requires the Secretary to provide a

                                                   14
windfall to a tribe based on a temporary cost spike. The Court, moreover, has broad discretion to

fashion an appropriate remedy in equity. See, e.g., Peyron v. DiMario, 287 F.3d 1121, 1126 (D.C.

Cir. 2002) (“A ‘district court has wide discretion to award equitable relief.’” (quoting Barbour v.

Merrill, 48 F.3d 1270, 1278 (D.C. Cir. 1995))). Accordingly, while the Court will issue an order

declaring that the Secretary violated the ISDEAA by denying the Tribe’s proposal outright, it will

not direct her to enter into the Tribe’s contract at the 2012 amount. Rather, it will direct the

Secretary to negotiate with the Tribe over what the Secretary “would have otherwise provided” for

the EMS program had IHS continued to operate it, plus the administrative and start-up cost

authorized under the Act.

        IV.    Conclusion

        For the reasons set forth above, the Court will grant in part and temporarily deny in part the

Tribe’s motion for summary judgment and deny the Secretary’s motion to dismiss or, in the

alternative, for summary judgment. The Court will issue an order consistent with this opinion.




                                                              CHRISTOPHER R. COOPER
                                                              United States District Judge

Date:    October 7, 2014




                                                   15
