                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WINNEMUCCA INDIAN COLONY;                       No.    18-17121
THOMAS R. WASSON; JUDY ROJO,
                                                D.C. No.
                Plaintiffs-Appellees,           3:11-cv-00622-RCJ-CBC

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA, ex rel.
The Department of the Interior; BUREAU
OF INDIAN AFFAIRS;
SUPERINTENDENT OF THE WESTERN
NEVADA AGENCY OF THE BUREAU
OF INDIAN AFFAIRS, and the Employees,
Contractor and Agents of the Western
Nevada Agency of the Bureau of Indian
Affairs,

                Defendants,

WILLIAM R. BILLS,

                Intervenor-Defendant,

and

LINDA AYER; ALLEN AMBLER; JIM
AYER; LAURA AMBLER; CHERYL
APPERSON-HILL,

      Intervenor-Defendants-

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Appellants.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted June 8, 2020
                            San Francisco, California

Before: SCHROEDER and BRESS, Circuit Judges, and McSHANE,** District
Judge.

      This is a dispute between two groups, referred to as the Wasson faction and

the Ayer faction, over which group is the rightful tribal government of the

Winnemucca Indian Colony. Although the district court proceedings on review were

largely a victory for the Wasson faction, the Ayer faction argues the district court

lacked subject matter jurisdiction over this case from the start.         We assume

familiarity with the facts and procedural history and discuss them only as necessary

to explain our decision. We have jurisdiction under 28 U.S.C. § 1291. We conclude

that the district court lacked subject matter jurisdiction and remand with instructions

to dismiss.

      “Subject matter jurisdiction must exist as of the time the action is

commenced.” Morongo Band of Mission Indians v. Cal. State Bd. of Equalization,




      **
              The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.

                                          2
858 F.2d 1376, 1380 (9th Cir. 1988). If a court lacks subject matter jurisdiction, it

must “dismiss the case, regardless of how long the litigation has been ongoing.”

Rainero v. Archon Corp., 844 F.3d 832, 841 (9th Cir. 2016).

      The Administrative Procedure Act (APA) provides for judicial review of final

agency actions. 5 U.S.C. § 704; Bennett v. Spear, 520 U.S. 154, 177–78 (1997).

Under our cases, if there is no final agency action, the court lacks subject matter

jurisdiction. Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d

586, 591 (9th Cir. 2008) (“[F]inality is a jurisdictional requirement to obtaining

judicial review under the APA.”).

      There was no final agency action here because at the time the complaint was

filed, the Bureau of Indian Affairs (BIA) had not reached a final decision on whether

it would recognize any group as the Colony’s tribal council, or whether any such

recognition was warranted. Instead, the BIA was in the middle of complying with a

remand order from the Interior Board of Indian Appeals (IBIA) to answer those very

questions. Any decision by the BIA would have been appealable to the IBIA, further

demonstrating that the Wasson faction failed to exhaust administrative remedies to

secure a final decision. 25 C.F.R. § 2.6(a). The Wasson faction’s reliance on

Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983), is inapt because there the court

was reviewing “the BIA’s final decision which, in effect, declined to recognize either

faction.” Id. at 336–37 (emphasis added). Here, the BIA was still in the process of


                                          3
making such a decision, and so there was no final agency action.

      The district court erred in concluding that further exhaustion of remedies

before the BIA and IBIA would be futile. Futility is among the “exceptional

circumstances” when exhaustion of administrative remedies is not required. White

Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988). Exhaustion is

futile where continuing administrative proceedings “would clearly be of no avail,”

Fones4All Corp. v. FCC, 550 F.3d 811, 818 (9th Cir. 2008), where there is “certainty

of an adverse decision,” Agua Caliente Tribe of Cupeño Indians of Pala Reservation

v. Sweeney, 932 F.3d 1207, 1219 (9th Cir. 2019), or where there is “undisputed

evidence of administrative bias,” White Mountain, 840 F.2d at 677.

      In this case, and at the time the Wasson faction filed its complaint, the BIA

was complying with the IBIA’s remand order and had sought briefing and evidence

in an effort to determine whether it needed to recognize an interim tribal government

and, if so, which faction it would recognize. Nothing in the record indicates that

allowing the BIA to continue with its process would have been futile, that there was

certainty of a decision adverse to the Wasson faction, or that the BIA was biased.

      As a result, the district court lacked subject matter jurisdiction. This means

the district court’s “various orders . . . were nullities.” Morongo Band, 858 F.2d at

1381. We therefore remand this matter to the district court with instructions to (1)

dismiss this case for lack of jurisdiction and (2) vacate the district court’s various


                                          4
orders, many of which related to the recognition of an interim tribal council and the

tribal council election process.

      We have no occasion to decide whether and how the dismissal of this action

and the vacatur of the district court’s orders will affect any tribal election results,

tribal court rulings on these issues, or related BIA decisions; that is a matter for the

tribal courts or the BIA, as appropriate. See Cahto Tribe of Laytonville Rancheria

v. Dutschke, 715 F.3d 1225, 1226 (9th Cir. 2013) (“[A] tribe’s right to define its own

membership for tribal purposes has long been recognized as central to its existence

as an independent political community.”) (internal quotations omitted); see also Boe

v. Fort Belknap Indian Cmty. of Fort Belknap Reservation, 642 F.2d 276, 280 n.7

(9th Cir. 1981).

      VACATED and REMANDED with instructions to DISMISS.




                                           5
