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Tabibian v. The Secretary of Department of Interior

United States District Court, D. Nevada

February 8, 2018

STEPHANIE TABIBIAN, Plaintiff,
v.
THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR, through its Acting Assistant Secretary, BUREAU OF INDIAN AFFAIRS, its officers, servants, agents, employees, representatives, and attorneys, Defendants.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

         Stephanie Tabibian brings two motions before the court. Tabibian first moves the court for an order compelling the Secretary of the Interior and the Bureau of Indian Affairs (“BIA”) to enter into a stipulation and an order remanding to the BIA with instructions to place Tabibian onto the Western Shoshone judgment roll. ECF No. 26. The defendants responded but no reply was filed. ECF No. 30. Tabibian also moves the court for an order of final judgment that approves the BIA's subsequent actions, prevents the disenrollment of Tabibian from the Western Shoshone judgment roll, and compels the payment of funds to Tabibian. ECF No. 36. The defendants opposed the motion, and Tabibian replied. ECF Nos. 37, 38. The court now denies both motions, finding the case is moot.

         I. BACKGROUND

         The Western Shoshone Claims Distribution Act was passed in 2004. Pub L. 108-270, 118 Stat. 805. To make a claim for recovery under the Act, a person must be placed on the Western Shoshone judgment roll. Id. To be placed on the judgment roll, the person must be at least ¼ blood quantum level of Western Shoshone. Id.

         Tabibian applied to be placed on the judgment roll based on her heritage.[1] ECF No. 26. Both her great-grandfather and her great-grandmother were 4/4 blood quantum level of Western Shoshone. Id. The BIA denied Tabibian's application for her failure to be ¼ blood quantum level of Western Shoshone but without explaining how it had determined her blood quantum level. Id.

         Tabibian therefore sued the defendants, alleging violations of due process, of equal protection, and of the Administrative Procedure Act. ECF No. 1. The case was voluntarily remanded to the BIA on the parties' stipulation in August 2015. ECF Nos. 7, 9. The court's order approving the stipulation constituted a final judgment in this action as to Tabibian. ECF No. 9.

         But two years passed without contact between the parties regarding Tabibian's placement on the judgment roll. ECF No. 26. As a result, in October 2017, Tabibian moved the court for an order that compels the defendants to stipulate to placing her onto the judgment roll and an order directing the defendants to do so. ECF No. 26. Tabibian was added to the judgment roll on November 14, 2017. ECF No. 30, 36, 38.

         However, Tabibian did not receive the funds owed to her under the Act as of November 29, 2017. ECF No. 36. She therefore moved for an order of final judgment. Id. The defendants opposed the motion. ECF No. 37.

         II. LEGAL STANDARD

         A case no longer presents a case or controversy for Article III purposes and is therefore moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (quoting Already, LLC v. Nike, Inc., 586 U.S. 85, 91 (2013) (internal quotation marks omitted)). But courts hesitate to declare a case moot when a party has voluntarily ceased the challenged activity. Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1179 (9th Cir. 2010). Courts hesitate to dismiss a case as moot based on a party's voluntary cessation of the challenged activity because a dismissal for mootness would allow the party to resume the challenged activity after the case was dismissed. Rosebrock, 745 F.3d at 971.

         While the doctrine of mootness ordinarily considers the possibility of a party voluntarily ceasing the challenged activity in bad faith, the court must “presume the government is acting in good faith” if it is the party that voluntary ceases the challenged activity. Am. Cargo Transp., 625 F.3d at 1180. But the government still “bears the heavy burden of showing that the challenged conduct cannot reasonably be expected to start up again.” Rosebrock, 745 F.3d at 971.

         “[A] policy change not reflected in statutory changes or even in changes in ordinances or regulations will not necessarily render a case moot … but it may do so in certain circumstances….” Id. (internal citations omitted). While a definitive test to determine mootness under circumstances involving voluntary cessation does not yet exist, five factors make mootness more likely: “(1) the policy change is evidenced by language that is broad in scope and unequivocal in tone; (2) the policy change fully addresses all of the objectionable measures that the government officials took against the plaintiffs in the case; (3) the case in question was the catalyst for the agency's adoption of the new policy; (4) the policy has been in place for a long time when [the court] consider[s] mootness; and (5) since the policy's implementation[, ] the agency's officials have not engaged in conduct similar to that challenged by the plaintiff.” Id. at 972 (internal citations and punctuation marks omitted). Conversely, mootness is not likely when “the new policy could be easily abandoned or altered in the future.” Id. (internal citations and punctuation marks omitted).

         III. DISCUSSION

         Tabibian brings two motions before the court. ECF Nos. 26, 36. The court first resolves the motion for an order compelling the defendants to enter into stipulation. The ...


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