ANTHONY J. BATTAGLIA, District Judge.
Presently before the Court are motions in three companion cases. In Case No. 16-CV-2442, Defendants have filed a motion to dismiss. In Case No. 17-CV-0938, Defendants have filed a motion to dismiss Plaintiffs' request for preliminary injunction and the complaint for lack of subject matter jurisdiction. In all three cases, Plaintiffs filed motions to consolidate. The Court rules as follows: Defendants' motion to dismiss in
Plaintiffs are
The three cases arise from overlapping facts. Because the facts are most intelligible when the complaints are read together, the Court pulls its recitation of the facts in this order from all three cases.
The instant dispute dates back to the late 1800s and early 1900s. After the Band was driven from its aboriginal land, the United States government designated land in another township for the Band. (Alegre II Comp. ¶¶ 16, 18.) Though the land was filled with rocks and had little or no water, it was still valuable, and squatters remained problematic. (Id. ¶ 18.) To deal with this issue, Amos Frank, then Indian Superintendent of the Mesa Grande Tribe, hired a man named Frank Trask as a "police private and Judge" to preserve the San Pasqual reserve. (Alegre I Comp. ¶¶ 233-34, 513; Alvarado Comp. ¶ 126.) Frank Trask was the son of Rosewell Trask, a white man, and Mattiana Martha Warner Trask, a Mexican woman. (Alegre I Comp. ¶ 232; see id. ¶ 241; Alvarado Comp. ¶ 125.) Frank Trask married Lenora LaChappa, a Mesa Grande Indian woman. (Alegre I Comp. ¶¶ 232, 386; Alvarado Comp. ¶ 125.) Accordingly, while Trask Descendants have some Indian blood, Plaintiffs allege they have no San Pasqual Indian blood. (Alegre I Comp. ¶¶ 236, 272, 343.)
Amos Frank relocated Frank Trask and his family onto the San Pasqual reserve in 1910. (Id. ¶¶ 234.) Though Frank Trask's employment ended within a year, the Trask family remained on the land as squatters for the next 40 years and prevented the Band from coming onto the reservation. (Id. ¶¶ 235, 422; Alvarado Comp. ¶¶ 55, 78, 178, 185.)
In the 1950s, the Band started to formally organize itself. (Alegre II Comp. ¶ 209.) The Band worked with anthropologist Dr. Florence Shipek to assemble the documentation necessary to establish Band membership. (Id. ¶ 209.) Dr. Shipek worked with the Band's Enrollment Committee, which was then comprised mainly of members who were unquestionably of San Pasqual descent. (Id.) However, it also included two members not of San Pasqual descent, including Florence Wolf Trask, the daughter of Frank and Lenora Trask. (Id. ¶¶ 17, 209.)
On July 29, 1959, the BIA published, and the Band approved, the Proposed Rule governing Enrollment of the San Pasqual Band of Mission Indians in California. (Alegre I Comp. ¶¶ 59, 253.) This statute required that persons seeking enrollment in the Band must possess no less than 1/8 blood of the Band. (Id. ¶ 253.) Following the Band's approval of the proposed regulation, and unbeknownst to the Band, the rule that was ultimately codified and published at 25 C.F.R. § 48 on March 2, 1960, differed in a significant respect from that which the Band approved. (Id. ¶ 255; Alegre II Comp. ¶ 25.) The added section, codified at 25 C.F.R. § 48.5(f), read in pertinent part as follows:
(Alegre I Comp. ¶¶ 256, 409, 415.) It was suggested that this proposed change "not be made available to the [] Enrollment Committee. . . ." (Id. ¶ 60; see id. ¶¶ 255, 258, 408.) After 25 C.F.R. § 48 was published, the Enrollment Committee recommended that several Trask Descendants be denied enrollment. (Alegre II Comp. ¶ 26.) However, the BIA found the Trask Descendants were eligible for enrollment under § 48.5(f). (Id. ¶ 27.)
In 1966, the BIA had prepared and approved the Tribal Membership Roll of the Band, which included several non-San Pasqual people due to § 48.5(f) and a secretarial construction of the phrase "blood of the Band," as used in the C.F.R., to mean "total Indian blood of a person named on the basic membership Roll dated June 30, 1910." (Id. ¶¶ 27, 205; Alegre I Comp. ¶¶ 65, 396.) The Band objected to the use of the 1910 census because it included Frank and Lenora's children, even though Lenora and her parents were listed on multiple census rolls for the Mesa Grande Tribe. (Alegre II Comp. ¶¶ 210, 217.) These actions and interpretations resulted in the admission of Trask Descendants to the Band. (Id. ¶ 218.)
Another wave of Trask Descendants and other non-San Pasqual people were enrolled in the Band in 1988.
In 2005, Plaintiffs submitted applications for enrollment to the Enrollment Committee. (Id. ¶ 291.) After considering historical documents in its possession, as well as newly discovered documents such as the 1955 San Pasqual Census (the only census to state blood degrees of the San Pasqual Indians), the Enrollment Committee unanimously voted that Plaintiffs had sustained their burden of proof establishing they were qualified for enrollment. (Id. ¶¶ 7, 293-95, 431.) This determination was predicated on increasing Plaintiffs' ancestor Modesta's blood degree from 3/4 to 4/4; without that increase, Plaintiffs would not have the requisite 1/8 blood of the Band to qualify for enrollment. (See id. ¶¶ 2, 4, 7, 11.) The Enrollment Committee took its determination to the General Council, which agreed with the Enrollment Committee on April 10, 2005. (Id. ¶¶ 9, 40, 296, 297, 433.)
On September 12, 2005, the Business Committee wrote to James Fletcher ("Fletcher"), Superintendent of the Southern California Agency, stating it concurred with the Enrollment Committee and General Council. (Id. ¶¶ 10, 41, 298, 434.) Ten days later, on September 22, 2005, the Enrollment Committee submitted a letter to Fletcher, requesting that the BIA correct Modesta's blood degree from 3/4 to 4/4 degree San Pasqual blood. (Id. ¶¶ 11, 299, 357, 435; Alegre II Comp. ¶ 6.)
The BIA did not respond to this letter until December 8, 2005. (Alegre I Comp. ¶¶ 5, 13, 301; Alegre II Comp. ¶ 7.) In its response, the BIA stated "the preponderance of the evidence does not sufficiently demonstrate that Modesta [] is full blood." (Alegre II Comp. ¶ 7.) The letter was sent only to the Pacific Regional Director, Amy Dutschke ("Dutschke"). (See Alegre I Comp. ¶ 13.) On January 31, 2006, Dutschke concurred with the BIA that Modesta was not a full blood San Pasqual Indian. (Id. ¶¶ 14, 42, 303.) On April 7, 2006, the Acting Assistant Secretary of the Department of the Interior agreed and denied the Band's request to increase Modesta's blood degree. (Id. ¶¶ 4, 358, 439.) The April 7, 2006, was final for the BIA. (Id. ¶ 17.) Plaintiffs assert that between 2005 and the present, they were never provided written notice of any of these determinations. (Id. ¶¶ 17, 18, 25, 305, 307, 309, 311, 359, 440, 444.)
Plaintiffs' applications were ultimately returned to the Band unadjudicated. (Id. ¶¶ 358, 439.) Plaintiffs assert that the Trask Descendants and other enrolled but non-San Pasqual persons were able to gerrymander the Band's government due to their powerful voting block. (Id. ¶ 318.) Accordingly, the Trask Descendants have been able to vote themselves into positions of power within the Band, including dismissing the Enrollment Committee that approved Plaintiffs' applications and installing an "illegal" Enrollment Committee in 2006. (Id. ¶ 319.) This illegal Enrollment Committee "caused" Plaintiffs' applications to be returned by the BIA, "buried" them upon their return to the Band, and wrongfully advised the BIA that Plaintiffs did not qualify. (Id. ¶ 320.) Since 2008, there has been a moratorium on new enrollments. (Id. ¶ 321.)
On October 1, 2014, and May 27, 2015, Plaintiffs filed two requests pursuant to the Freedom of Information Act to ascertain the status of their applications. (Id. ¶¶ 24, 44, 306, 310, 322, 361, 441, 445.) It was only through their FOIA requests that Plaintiffs discovered Dutschke's determination and the April 7, 2006, letter. (Id.) It was also through the FOIA requests that Plaintiffs learned that twenty-two of their cousins were enrolled by the Band and federally recognized in 2005. (Id. ¶¶ 315, 377, 453.)
Plaintiffs' filing of the complaint in Case No. 16-CV-2442 has only exacerbated tensions between the Trask Descendants and Plaintiffs. (See Alegre II Comp. ¶ 232.) On April 9, 2017, a General Council meeting took place on the reservation where the Trask Descendants moved to implement a new moratorium on enrollment until a new enrollment ordinance can be put in place. (Id. ¶¶ 31, 232.) Plaintiffs assert the new ordinance will remove federal government oversight of the enrollment process. (Id. ¶ 232.) Plaintiffs fear that if this occurs, the Trask Descendants can take action to deny Plaintiffs enrollment and/or disenroll those already enrolled in the Band. (Id. ¶¶ 232, 239.) Should such occur, Plaintiffs will have no recourse with the U.S. government or the courts. (Id. ¶ 240.)
Plaintiffs instituted Case No. 16-CV-2442 ("Alegre I") on September 28, 2016. Defendants moved to dismiss the complaint, and in response, Plaintiffs filed the amended and operative complaint. (Alegre I, Doc. No. 13.) Thereafter, on May 8, 2017, Plaintiffs filed the complaint in Case No. 17-CV-0938 ("Alegre II") seeking preliminary injunctive relief to prevent Defendants from taking any action to approve any proposed changes to the Band's Constitution and/or enrollment process or procedures while Alegre I is pending. The Court granted Plaintiffs a temporary restraining order on May 18, 2017. On June 8, 2017, Plaintiffs' cousins filed the complaint in Case No. 17-CV-1149 ("Alvarado").
On June 12, 2017, Defendants moved to dismiss the amended complaint in Alegre I. That motion is fully briefed. Shortly thereafter, on June 19, 2017, Defendants moved to dismiss Alegre II or, in the alternative, deny Plaintiffs' request for preliminary injunction. That matter is also fully briefed. Plaintiffs filed motions to consolidate in all three cases on July 17, 2017. Defendants oppose the motions to consolidate. This order follows.
Rule 8 requires that a pleader set forth "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). Dismissal on Rule 8 grounds is appropriate where the complaint is "argumentative, prolix, replete with redundancy, and largely irrelevant," McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996), "verbose, confusing and almost entirely conclusory," Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981), or where it is "impossible to designate the cause or causes of action attempted to be alleged in the complaint," Schmidt v. Herrmann, 614 F.2d 1221, 1223 (9th Cir. 1980). Further, the Ninth Circuit has "affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8. . . ." McHenry, 84 F.3d at 1178 (citing Schmidt, 614 F.2d at 1223-24); see also Nevijel, 651 F.2d at 673 ("A complaint which fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to rule 41(b).").
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Accordingly, "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). In civil cases, federal courts have subject matter jurisdiction over only those cases where either diversity jurisdiction or federal question jurisdiction exists. See Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068-69 (9th Cir. 2005). Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332. Federal question jurisdiction exists in cases that arise under federal law. Id. § 1331.
Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the party asserts a facial challenge, the court limits its inquiry to the allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the party asserts a factual challenge, the court may consider extrinsic evidence demonstrating or refuting the existence of jurisdiction without converting the motion to dismiss into a motion for summary judgment. Id. The party asserting subject matter jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010).
Pursuant to Rule 42(a), the Court may consolidate cases involving common questions of law or fact to avoid unnecessary costs and delay:
Fed. R. Civ. P. 42(a). The Court has broad discretion in ordering consolidation. Investors Res. Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989).
Defendants set forth several bases for dismissing the fourteen causes of action, including that the complaint violates Rule 8(a). (Doc. No. 20.)
In its current state, the amended complaint is unwieldy, poorly pled, and fails to present a succinct and straightforward statement alleging the wrongdoings of each Defendant. Over the course of 538 paragraphs, the amended complaint takes the reader through centuries of interaction between the Band, Spanish missionaries, and the United States. But it does not do so in a methodological fashion. Rather, the complaint jumps from allegations of misconduct in the present day (including Defendants' purportedly incorrect blood degree determination relating to Modesta and the Trask Descendants' ascent to power within the Band) to the spread of Christianity to the Native Americans in the 1700s and 1800s to the Trask Ancestors' appearance on the Band's lands in the late 1800s to the promulgation of enrollment rules in the mid-1900s to present day misconduct (again).
In addition to being verbose, the complaint is replete with repetition. For example, the allegation that the United States added the § 48.5(f) loophole to the Proposed Rule governing Enrollment of the San Pasqual Band of Mission Indians in California after the Band's approval of the rule and without notice to the Band appears in the complaint four times. (Alegre I Comp. ¶¶ 60, 255, 258, 408.) Various subsections of § 48 are quoted multiple times. (Id. ¶¶ 12, 13, 14, 17, 43, 61, 256, 299, 300, 302, 303, 308, 397, 409, 412, 415, 436, 439, 443.) The following facts, among many, also appear repeatedly throughout the complaint: the Enrollment Committee unanimously voted that Plaintiffs substantiated the blood degree increase for Modesta, (id. ¶¶ 7, 295, 357, 431); the General Council agreed with the Enrollment Committee's determination, (id. ¶¶ 9, 40, 297, 433); the Business Committee wrote to Fletcher and concurred with the Enrollment Committee and General Council, (id. ¶¶ 10, 41, 298, 434); Fletcher and Dutschke both determined that the evidence proffered did not substantiate a blood degree change, (id. ¶¶ 5, 13, 14, 42, 303, 358, 439); and Plaintiffs did not receive notification of any of Defendants' determinations concerning Modesta's blood degree, (id. ¶¶ 14, 15, 16, 17, 18, 25, 42, 305, 307, 309, 311, 359, 361, 440, 442, 444).
Compounding the confusion is the fact that it is difficult to distinguish which statutes Plaintiffs rely upon as the basis for Defendants' waiver of sovereign immunity as to each cause of action. For example, Plaintiffs invoke the Administrative Procedure Act for the first through third and ninth through eleventh causes of action, but ask for relief the Court has no power to grant under the APA. Alto v. Black, 738 F.3d 1111, 1127 (9th Cir. 2013) (stating that the relief available under the APA is "affirmation, reversal or remand of the agency action"). Similarly, Plaintiffs purportedly invoke the Federal Tort Claims Act for the fourteenth cause of action, but the FTCA does not waive sovereign immunity for claims of fraud and misrepresentation. 28 U.S.C. § 2680(h) (exempting misrepresentation and deceit from the FTCA's waiver of immunity); Owyhee Grazing Ass'n v. Field, 637 F.2d 694, 697 (9th Cir. 1981) ("[C]laims against the United States for fraud or misrepresentation by a federal officer are absolutely barred by 28 U.S.C. § 2680(h).").
Finally, Plaintiffs have named eight separate defendants, but each cause of action is brought against "all Defendants." Yet the 538-paragraph complaint is devoid of any factual allegations against, for example, Zinke, Black, and Loudermilk. "Something labeled a complaint but written more as a press release, prolix with evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint." McHenry, 84 F.3d at 1180. The Court will therefore not require these Defendants to answer a complaint bereft of allegations of wrongdoing. See Davis v. Adler, No. 17cv387-AJB-JLB, 2017 WL 1496467, at *2 (S.D. Cal. Apr. 26, 2017) (dismissing complaint under Rule 8(a) in part because it "impermissibly groups all of the Defendants together without distinguishing between the alleged conduct of each Defendant" and thus "fail[ed] to put the opposing party on notice of the wrong they allegedly committed so that they can adequately defend themselves"); Adobe Sys. Inc. v. Blue Source Grp., Inc., 125 F.Supp.3d 945, 964 (N.D. Cal. Aug. 31, 2015) ("As a general rule, when a pleading fails to allege what role each Defendant played in the harm, this makes it exceedingly difficult, if not impossible, for individual Defendants to respond to Plaintiffs' allegations." (citation and internal quotation marks omitted)).
For all these reasons, the Court
The Court notes that Plaintiffs attached a proffered second amended complaint to their opposition. (See Doc. Nos. 28-3-28-93.) The Court offers no opinion on whether that amendment passes muster under this order, but Plaintiffs are strongly advised to ensure their next iteration of the complaint comports with Rule 8(a). To do so, Plaintiffs must (1) succinctly set forth the facts that serve as the basis for their claims (as illustrated by the Facts section of this order); (2) delineate each Defendant's role in the wrongs perpetuated against Plaintiffs; and (3) state the basis for the Court's subject matter jurisdiction and Defendants' waiver of sovereign immunity as to each cause of action. Failure to comply with Rule 8(a) may result in dismissal with prejudice under Rule 41(b). See Cal. Coalition for Families & Children v. San Diego Cty. Bar Ass'n, No. 13-cv-1944-CAB (JLB), 2014 WL 12662937, at *4 (S.D. Cal. July 9, 2014) (dismissing complaint with prejudice for failing to comply with Rule 8), aff'd, 657 F. App'x 675 (9th Cir. 2016).
Defendants argue dismissal is appropriate on the basis that the Court lacks subject matter jurisdiction. Specifically, Defendants contend that because there has been no final agency action, the United States has not waived sovereign immunity.
Where suit is brought against the United States, federal courts have no jurisdiction absent the United States' consent to be sued. See United States v. Mitchell, 445 U.S. 535, 538 (1980); see also Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) ("[A] suit against [federal] employees in their official capacity is essentially a suit against the United States."). Certain federal statutes provide limited exceptions to this general rule. Here, Plaintiffs invoke the Administrative Procedure Act ("APA"). (See Doc. No. 23 at 11-13 (plaintiffs arguing that "[t]his Court has jurisdiction to review agency action under the APA even when the agency applies tribal law").)
"The APA permits a citizen suit against an agency when an individual has suffered `a legal wrong because of agency action' or has been `adversely affected or aggrieved by agency action within the meaning of a relevant statute.'" Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1103 (9th Cir. 2007) (quoting 5 U.S.C. § 702)). When a lawsuit is brought pursuant to the APA, the agency action sued upon must be "final agency action for which there is no other adequate remedy in a court . . . ." 5 U.S.C. § 704. In other words, "[t]he APA applies to waive sovereign immunity
In this case, Plaintiffs seek injunctive relief preventing Defendants from taking any action to approve a proposed amendment to the Band's Constitution and/or enrollment criteria and/or procedures that remove federal government oversight from the enrollment process. Defendants contend the Court lacks subject matter jurisdiction over this claim because there is no final agency action. (Doc. No. 16-1 at 13-15.) Defendants support their position with a declaration from Harley Long. (Doc. No. 16-2.) Long is the Tribal Government Officer for the BIA, Pacific Region, in the United States Department of the Interior. (Id. ¶ 1.) Long oversees tribal operations for the Pacific Region and its four agencies that serve the tribes located in the State of California, including the Band. (Id.)
In his capacity as Tribal Government Officer, Long is responsible for overseeing the process for review and approval of new and amended tribal constitutions. (Id. ¶ 2.) Long attests that, pursuant to the Band's Constitution, the following procedure must be followed before an amendment to the Constitution becomes effective. (See id. ¶¶ 4-6.) First, an amendment proposing a change requires a majority of the Band's General Council to request that the BIA hold a Secretarial election to vote on the amendment. (Id. ¶ 6.) Next, the BIA must schedule the election, in which at least 30% of the Band's eligible members must participate, a majority of whom must vote in the amendment's favor. (Id.) Following the Secretarial election, the BIA is required to resolve any challenges brought by eligible voters to the election results. (Id. ¶ 9.) The BIA would then determine if the election met the standards of the Band's Constitution or conflicted with federal law before approving the election. (Id. ¶¶ 9-10.) It is the BIA's approval or disapproval of the results of a Secretarial election that constitutes a final agency action pursuant to 25 C.F.R. § 81.45(f).
It is the last step of this process—the BIA's approval of a Band election approving a constitutional amendment—that Plaintiffs seek to enjoin through this complaint. It is undisputed, however, that the BIA has not taken any such action. (Doc. No. 16-2 ¶ 7.) In fact, the BIA has not received any indication that the Band is considering amending its Constitution. (Id.) Plaintiffs' own position admits there is no final agency action with respect to a constitutional amendment: "[T]he tribal council has not yet petitioned the Defendants for a change in their Constitution and enrollment procedures and criteria[.]"
Plaintiffs' evidence demonstrates that at a General Council meeting, a motion was made to put in place a new enrollment ordinance, which will remove BIA oversight from the Band's enrollment process. (Doc. No. 23-2 ¶¶ 5-6; Doc. No. 23-3 ¶¶ 3-6; Doc. No. 23-4 ¶¶ 3-6; Doc. No. 23-9 ¶¶ 3-6.) Plaintiffs' evidence also demonstrates, however, that none of the steps necessary to implement such a change to the Band's Constitution have occurred. It is possible for a proposed amendment to fail at any of the many steps that must be taken prior to an amendment becoming effective. Should it fail, judicial review will be completely unnecessary, underscoring the need for final agency action in this case. Sierra Club v. U.S. Nuclear Regulatory Comm'n, 825 F.2d 1356, 1362 (9th Cir. 1987) ("We will not entertain a petition where pending administrative proceedings or further agency action might render the case moot and judicial review completely unnecessary.").
Notwithstanding their concession, Plaintiffs assert there is final agency action that gives this Court jurisdiction. (Doc. No. 23 at 13-14.) Specifically, Plaintiffs point to the BIA's letter dated April 7, 2006, in which the BIA determined there is insufficient evidence to warrant an increase to Modesta's blood degree. (Id. at 13; see Alegre I, Doc. No. 13-6 at 2.) Because this letter constitutes final agency action, Plaintiffs assert the Court has subject matter jurisdiction to review the following:
(Doc. No. 23 at 13.) Plaintiffs contend that given the Court's jurisdiction over these issues, the Court has jurisdiction pursuant to 5 U.S.C. § 705 to grant the injunctive relief they seek here. (Id. at 14.)
Not so. Like § 704, § 705 requires final agency action before the Court can grant such relief. Section 705 provides the following:
5 U.S.C. § 705 (emphasis added). Plaintiffs rely on the last portion of this section for the assertion that the Court has jurisdiction to grant injunctive relief "to preserve status or rights pending conclusion of the review proceedings" while the disputes in the companion cases are resolved. (Doc. No. 23 at 14.) Plaintiffs' interpretation of § 705, however, is belied by the Attorney General's Manual on the Administrative Procedure Act:
Id. at 106, available at https://ia600406.us.archive.org/30/items/AttorneyGeneralsManual OnTheAdministrativeProcedureActOf1947/AttorneyGeneralsManualOnTheAdministrati veProcedureActOf1947.pdf.
The Court agrees with Defendants that the only reasonable interpretation of § 705 is that contained in the Attorney General's Manual. First, "[t]he Supreme Court has accorded deference to the interpretations of APA provisions contained in the Attorney General's Manual, both because it was issued contemporaneously with the passage of the APA and because of the significant role played by the Justice Department in drafting the APA." Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1012 n.7 (9th Cir. 1987) (citing Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 546 (1978)). Second, even without the guidance contained in the Attorney General's Manual, giving § 705 the jurisdictional reach Plaintiffs argue it has would be inconsistent with the restriction on jurisdiction contained in § 704. It is a basic tenant of statutory construction that the courts must "avoid inconsistency" and "superfluity and nullities." In re Loretto Winery Ltd., 898 F.2d 715, 722 (9th Cir. 1990). Accordingly, the Court will not interpret § 705 in such a way that renders it inherently inconsistent with § 704.
Plaintiffs appear to argue that the Court has subject matter jurisdiction because Plaintiffs can satisfy the test for preliminary injunctive relief and because they are seeking to maintain the status quo. (Doc. No. 23 at 15-19.) As to the former assertion, Rule 65 is not a jurisdictional statute; rather, it deals with the procedures for obtaining preliminary injunctive relief. Even if Plaintiffs are likely to succeed on their suit or even if the degree of irreparable harm they could face absent interim relief is significant, the Court is simply not permitted to entertain merits-based questions in the absence of subject matter jurisdiction: "`Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
As to the latter assertion, the issue before the Court is not merely a question of exhaustion of administrative remedies. Exhaustion of administrative remedies is often nonjurisdictional in nature. Cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006) ("If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. . . . But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character."). In contrast, final agency action is necessary for there to be a waiver of sovereign immunity under the APA. Absent such a waiver, courts are without jurisdiction to entertain suits against the United States. Rattlesnake Coal., 509 F.3d at 1105 ("Before final agency action has occurred, an action against the [United States] is premature and a federal court lacks subject matter jurisdiction to hear the claim."). For this reason, the Court finds Plaintiffs' proffered cases to the contrary uninformative and unpersuasive.
In sum, the Court finds there is no final agency action with regard to a proposed amendment to the Band's Constitution. Accordingly, the Court lacks subject matter jurisdiction over this particular claim. On this basis, the Court
Plaintiffs ask the Court to consolidate the three companion cases. Plaintiffs argue consolidation is appropriate because there are many common questions of law and fact, consolidation will promote efficiency and convenience given the three cases' shared factual background, and consolidation will not delay the cases' disposition. Defendants oppose Plaintiffs' motion, arguing that the claims are not identical and that Plaintiffs' request is premature given the procedural postures of each of the three cases.
Having reviewed the parties' respective positions, the Court finds consolidation is appropriate. Consolidating the cases will permit the parties to submit motions in only the lead case as opposed to, for example, filing motions to dismiss in all three cases on overlapping grounds.
For these reasons, the Court exercises its broad discretion under Rule 42(a) and
In sum, the Court rules as follows. In
Plaintiffs are
