                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

MDEWAKANTON SIOUX INDIANS                         :
OF MINNESOTA, et al.,                             :
                                                  :       Civil Action No.:      16-2323 (RC)
       Plaintiffs,                                :
                                                  :       Re Document No.:       17
       v.                                         :
                                                  :
                1
RYAN ZINKE, Secretary,                            :
United States Department of the Interior, et al., :
                                                  :
       Defendants.                                :

                                  MEMORANDUM OPINION

            DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
                            AND A PRELIMINARY INJUNCTION


                                      I. INTRODUCTION

       Plaintiffs are currently engaged in litigation to compel various federal entities to

recognize them as an American Indian tribe. Plaintiffs now seek a temporary restraining order,

followed by a preliminary injunction, barring an election to amend the constitution of a different

tribe, because Plaintiffs assert the amendments would impair their rights. Because Plaintiffs fail

to demonstrate an irreparable injury, neither a temporary restraining order nor a preliminary

injunction is appropriate.


                                      II. BACKGROUND

       Plaintiffs are several individuals and the Mdewakanton Sioux Indians of Minnesota,

which they allege is an American Indian tribe to which they belong. Compl. at 2, ECF No. 1.


       1
        Secretary Zinke is substituted as a defendant in accordance with Federal Rule of Civil
Procedure 25(d).
Plaintiffs brought suit in this Court to compel the United States defendants “to acknowledge [the

tribe’s] existence and to enjoin the United States from continuing arbitrary decisions without

informing the [tribe] that have the consequence of adversely affecting the rights or potential

rights of the [tribe].” Compl. at 2. Defendants moved to dismiss the complaint on several

grounds, see generally Fed. Defs.’ Mot. Dismiss, ECF No. 10, and that motion remains pending.

       Plaintiffs now seek a temporary restraining order, followed by a preliminary injunction,

to stop the June 14, 2017 Secretarial election of the Prairie Island Indian Community.2 See

generally Pl.’s Mem. Supp. Mot. Temp. Restraining Order & Prelim. Inj. (Pl.’s Mot.), ECF No.

17. Plaintiffs assert that the amendments to the Prairie Island Indian Community’s constitution at

issue in the election would impair Plaintiffs’ tribal rights. Pl.’s Mot. at 7–9; see also Pl.’s Mot. at

3 (asserting that the proposed amendments, if passed, would “effectively terminate [Plaintiffs’

tribe] without congressional Act”).


                                    III. LEGAL STANDARD

       “Preliminary injunctive relief, whether in the form of a temporary restraining order or a

preliminary injunction, provides an ‘extraordinary remedy’ that is ‘never awarded as of right.’”

Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V., 901 F. Supp. 2d 54,

55–56 (D.D.C. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).

Because a temporary restraining order is “an extraordinary and drastic remedy,” it should not be

granted “unless the movant, by a clear showing, carries the burden of persuasion.” Nat’l Head



       2
         Although the proposed order attached to Plaintiffs’ motion for a preliminary injunction
appears to be entered in error, see ECF No. 17-44, the Court understands Plaintiffs to seek first a
temporary restraining order and then a preliminary injunction providing that “no future
Secretarial Elections shall be held without prior approval by this Court.” Pl.’s Mot. at 10, ECF
No. 17.


                                                   2
Start Ass’n v. Dep’t of Health & Human Servs., 297 F. Supp. 2d 242, 246 (D.D.C. 2004)

(quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).

        In order to receive preliminary injunctive relief, the movant must demonstrate “(1) that it

has a strong likelihood of success on the merits, (2) that it will suffer irreparable injury if

injunctive relief is denied, (3) that other interested parties will not suffer substantial harm if

injunctive relief is granted, and (4) that the public interest favors the granting of injunctive relief,

(or at least, that the granting of injunctive relief is not adverse to the public interest).” Paleteria

La Michoacana, 901 F. Supp. 2d at 56 (citing Wash. Metro. Area Transit Comm’n v. Holiday

Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) and Federation Internationale de Football Ass’n

v. Nike, Inc., 285 F. Supp. 2d 64, 68 (D.D.C. 2003)).

        Regardless of how the other three factors are analyzed,3 it is required that the movant

demonstrate an irreparable injury. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454

F.3d 290, 297 (D.C. Cir. 2006) (“A movant’s failure to show any irreparable harm is therefore

grounds for refusing to issue a preliminary injunction, even if the other three factors entering the

calculus merit such relief.”).




        3
          Plaintiffs argue in favor of a sliding scale approach to evaluating the four factors, in
which a stronger showing on one factor can be used to compensate for a weaker showing on a
different factor. Pl.’s Mot. at 23, ECF No. 17. The legal foundation for the sliding scale approach
is uncertain after the Supreme Court’s decision in Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008). See, e.g., League of Women Voters of United States v. Newby, 838 F.3d
1, 7 (D.C. Cir. 2016) (“This court, however, has not yet needed to decide [if the sliding scale
approach remains viable]. . . . [T]his case presents no occasion for the court to decide whether
the ‘sliding scale’ approach remains valid after Winter.”). Because, as discussed above, Plaintiffs
do not demonstrate an irreparable injury, which is a necessary showing for preliminary injunctive
relief, the Court need not resolve this issue today.


                                                   3
                                           IV. ANALYSIS

       The Court considers if Plaintiffs have demonstrated that they will suffer an irreparable

harm absent the issuance of a temporary restraining order or preliminary injunction, and

concludes that they have not. Because showing an irreparable injury is mandatory, the Court

does not consider the remaining factors.

       Plaintiffs’ motion devotes only a single paragraph to discussing the irreparable injury

requirement. Pl.’s Mot. at 43–44. Plaintiffs argue that preliminary injunctive relief is necessary

to avoid increased litigation expenses, specifically, that:

       Due to the actions of the federal guardian leaving the [Plaintiffs] without
       resources, the cost of the litigation is being borne by the Plaintiffs. The Plaintiffs’
       resources are limited. If the Plaintiffs’ resources are exhausted by litigation
       expense, the litigation will end—an irreparable injury. Preserving the legal status
       quo reduces the cost of this litigation and makes it more likely the Plaintiffs will
       cross the litigation finish line.

Pl.’s Mot. at 43–44.

       However, it is well established that litigation expenses are not an irreparable injury. The

D.C. Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches

v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). In general, “economic loss does not, in and of

itself, constitute irreparable harm.” Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34, 50

(D.D.C. 2011) (citing Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). This is

because an irreparable injury is one which is “beyond remediation”—and for economic harms

“‘[t]he possibility that adequate compensatory or other corrective relief will be available at a

later date, in the ordinary course of litigation weighs heavily against a claim of irreparable

harm.’” Chaplaincy of Full Gospel Churches, 454 F.3d at 297–98 (quoting Wisc. Gas Co. v.

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)).




                                                  4
       The rule against economic losses constituting irreparable harm applies with full force to

litigation expenses. Litigation costs cannot constitute an irreparable injury for the purposes of

granting a preliminary injunction. See Live365, Inc. v. Copyright Royalty Bd., 698 F. Supp. 2d

25, 45 (D.D.C. 2010) (noting that “[t]he Supreme Court has held that ‘[m]ere litigation expense,

even substantial and unrecoupable cost, does not constitute irreparable injury,’” even when those

costs “are likely to be substantial” (quoting FTC v. Standard Oil Co., 449 U.S. 232, 244 (1980))).

       The irreparable harm alleged by Plaintiffs is precisely the type of litigation costs

previously rejected by the Supreme Court, and Plaintiffs offer no legal authority to the contrary.

As to Plaintiffs’ suggestion that they may not be able to “cross the litigation finish line,”

Plaintiffs cite no cases suggesting that this outcome would constitute an irreparable harm. Even

if such a harm could suffice, Plaintiffs have not stated the applicable facts here with any

specificity. Plaintiffs provide nothing more than a conclusory statement: they do not describe

their expected expenses, expected costs, or the possible effects of denying preliminary injunctive

relief on either. Indeed, the Court notes that briefing of Defendants’ dispositive motion is already

complete,4 which presumably represents a large portion of expected litigation expenses (barring

the instant motion, which Plaintiffs initiated).

       In their reply, Plaintiffs expand their discussion of irreparable injury from one paragraph

to two. See Pl.’s Reply Mem. Supp. Mot. (Pl’s Reply) at 9–10, ECF No. 19. However, Plaintiffs

still do not elaborate on the irreparable injury posed by litigation costs, except to state

conclusorily that “Plaintiffs are not in a position of funding years of litigation.” Pl.’s Reply at 9.



       4
         Defendants filed a motion to dismiss, ECF No. 10, which Plaintiffs opposed, ECF No.
13, and Defendants replied, ECF No. 14. Also pending are Defendants’ motion for judicial
notice, ECF No. 11, and Plaintiffs’ motion to file a surreply concerning the motion to dismiss,
ECF No. 15.


                                                   5
Plaintiffs’ claims that they may run out of money remain speculative and unclear. As discussed

above, this does not suffice to overcome the general rule that litigation expenses are not an

irreparable injury. Plaintiffs also briefly attempt to introduce a new irreparable injury. See Pl.’s

Reply at 9. However, because this argument is new in Plaintiffs’ reply, the Court will not

consider it.5 See Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 695 n.3

(D.C. Cir. 2015) (refusing to consider new arguments for irreparable injury in a movant’s reply

brief because the opposing party “had no opportunity to respond” and the movant “offer[ed] no

reason, much less an extraordinary one, for its failure to raise these arguments in its opening

brief” (citing CTS Corp. v. EPA, 759 F.3d 52, 60 (D.C. Cir. 2014) and United States v. Whren,

111 F.3d 956, 958 (D.C. Cir. 1997))).

                                          *       *       *



       5
          Even if the Court considered the new arguments in Plaintiffs’ reply, Plaintiffs have
failed to demonstrate an irreparable injury. An irreparable injury must “be both certain and
great,” and “actual and not theoretical.” Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290, 297 (D.C. Cir. 2006) (internal citations and quotations omitted); see also id. (“The
moving party must show ‘[t]he injury complained of is of such imminence that there is a “clear
and present” need for equitable relief to prevent irreparable harm.’” (citations omitted)).
        Plaintiffs argue that “[n]one of the post-election procedures will restore to the [Plaintiffs]
the pre-election right to request or object to the June 14, 2017 Secretarial election.” Pl.’s Reply at
9. The suggestion that Plaintiffs may lose some ability to object to the election is new in their
reply. See, e.g., Pl.’s Mot. at 44, ECF No. 17 (summarizing the dispute over the Secretarial
election as: “[Plaintiffs] contend[] the June 14, 2017 proposed Constitution is contrary to federal
law”). However, Plaintiffs do not discuss what pre-election objections they wish to bring or
explain why these alleged injuries would be great. Furthermore, Plaintiffs fail to explain why the
loss of any pre-election objection would be an irreparable injury, given the admitted availability
of post-election procedures.
        Plaintiffs also suggest that they will be injured by the proposed amendments to the Prairie
Island Indian Community’s constitution, if enacted. Pl.’s Reply at 9. This alleged injury,
however, is neither certain nor actual. The outcome of the Secretarial election is undecided. Even
if the amendments prevail in the vote, the Secretary must still approve or disapprove the
amendments, 25 U.S.C. § 5123(d)(1), and that approval would constitute a final agency action
that Plaintiffs could challenge, 25 C.F.R. § 81.45(f). Cf. United Farm Workers v. Chao, 593 F.
Supp. 2d 166, 170 (D.D.C. 2009) (rejecting a motion for a temporary restraining order because
plaintiffs were unable to show that they would certainly be injured by new regulations).


                                                  6
        As discussed above, Plaintiffs’ motion for a temporary restraining order or preliminary

injunction fails because Plaintiffs do not demonstrate an irreparable injury. This conclusion is

further bolstered by the disfavored nature of injunctive relief barring an election when only one

outcome of the election would allegedly impair the movants rights. Because the proposed

measures may yet be voted down and the controversy avoided, many courts have declined to

enjoin elections in analogous circumstances. See, e.g., Ranjel v. City of Lansing, 417 F.2d 321,

325 (6th Cir. 1969) (reversing a preliminary injunction against a referendum on a proposition

that allegedly violated the Fourteenth Amendment because “[w]e believe the better practice [i]s

. . . [to] allow[] the election to proceed and rule[] on the validity of the measure after its

passage”), cert. denied, 397 U.S. 980 (1970); Nevada Rest. Ass’n v. Pest Comm., No. 3:08-CV-

00118, 2008 WL 8225546, at *4 (D. Nev. July 15, 2008) (“Insofar as the few federal courts that

have entertained such challenges [to ballot measures pre-election] are concerned, those courts

have only done so where the proposed measures were plainly unconstitutional.”); Ajax Gaming

Ventures, LLC v. Brown, No. CVIA 06-336, 2006 WL 2302192, at *2–3 (D.R.I. Aug. 8, 2006)

(“[T]he Court is not prepared to say without doubt that the proposed amendment is ‘patently’

unconstitutional, nor is this case of such an ‘exceptional’ nature as to warrant intervention before

the election has yet come to pass . . . . This Court may never be called upon to rule on the

constitutionality of the proposed amendment: the electorate may vote it down in November.

Courts should not wade into constitutionally torrid waters unless doing so is unavoidable. That is

not the case here.” (citations omitted)); Diaz v. Bd. of Cty. Comm’rs of Dade Cty., 502 F. Supp.

190, 193 (S.D. Fla. 1980) (“In this action, the plaintiffs claim they will be damaged by the results

of the referendum; they will not be damaged by the act of voting itself. This Court has decided

that the act of voting must be allowed. A determination of the constitutionality of the results




                                                   7
must wait until that now-hypothetical time when there may be actual results.”). The rare

exceptions to this rule occur mainly when the proposed measure is patently unconstitutional. See,

e.g., Otey v. Common Council of City of Milwaukee, 281 F. Supp. 264, 276 (E.D. Wis. 1968)

(blocking the submission of a “palpably unconstitutional” resolution to a referendum).

       In this case, Plaintiffs have not argued, and this Court does not conclude, that the

proposed amendments are patently unconstitutional. As in other election cases, this Court is not

yet squarely faced with the controversy concerning the amendments because the proposed

amendments may be voted down. Furthermore, even if approved by the voters, the proposed

amendments face additional hurdles before they could take effect. The Secretary must either

approve or disapprove the amendments. 25 U.S.C. § 5123(d)(1). If the Secretary approves the

amendments, that approval would constitute a final agency action, 25 C.F.R. § 81.45(f),

presumably subject to APA challenge by Plaintiffs. These reasons bolster this Court’s conclusion

that preliminary relief to prevent the election is inappropriate.


                                        V. CONCLUSION

       For the foregoing reasons, Plaintiffs’ Motion for Temporary Restraining Order and a

Preliminary Injunction (ECF No. 17) is DENIED. An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.


Dated: June 9, 2017                                                 RUDOLPH CONTRERAS
                                                                    United States District Judge




                                                  8
