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Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians v. United States Bureau of Land Management

United States District Court, D. Nevada

March 28, 2018

BATTLE MOUNTAIN BAND of the TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS, Plaintiff,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT; and JILL C. SILVEY, in her official capacity as Bureau of Land Management Elko District Manager, Defendants, and CARLIN RESOURCES, LLC, Defendant-Intervenor.

          ORDER

          LARWR. HICKS UNITED STATES DISTRICT JUDGE

         Before the court is plaintiff the Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians' (the “Battle Mountain Band” or “Band”)[1] motion to dismiss defendant-intervenor Carlin Resources, LLC's (“Carlin”) cross-claims (ECF No. 98). ECF No. 104. Carlin filed an opposition (ECF No. 113) to which the Battle Mountain Band replied (ECF No. 120).

         I. Facts and Procedural Background

This action has an extensive factual and procedural history, [2] but in brief, this action involves the various agency decisions and federal permits issued by the BLM authorizing a mining project on land known as the Tosawihi Quarries located in Elko County, Nevada.[3]Specific portions of the quarries have been identified by the Battle Mountain Band as its traditional cultural property (“TCP”).[4]

         Defendant BLM is the federal agency responsible for overseeing and administering public lands, including the public lands on which the Tosawihi Quarries and the Battle Mountain Band's identified TCPs exist. As part of its administration of these lands, the BLM is authorized to issue permits and leases for use of the land including the mining of natural resources. Further, the BLM is authorized to make eligibility determinations for the inclusion of land, including TCPs, on the National Register of Historic Places (“National Register”).[5] At all relevant times, defendant Silvey was the Elko District Manager of the BLM and was the person in charge of the Tosawihi Quarries.

         Intervenor Carlin is the owner of certain mining rights within the Tosawihi Quarries. In 2008, Carlin applied for a permit from the BLM to convert certain land in the quarries from an exploratory mining area into a functional mining operation known as the Hollister Mine Project (“the project”). The project was ultimately approved by the BLM after six-years of agency and public review. During the review process, the BLM made several decisions concerning the eligibility of the Band's identified TCPs for inclusion on the National Register.[6] Further, the BLM, Carlin, and non-parties the Nevada State Historic Preservation Office (“NSHPO”) and the Advisory Council on Historic Preservation (“ACHP”) negotiated an ongoing agreement for the preservation of historic lands during the project known as the Programmatic Agreement (“project PA”).[7] Ultimately, on March 31, 2014, the BLM issued its final Record of Decision (“ROD”) approving the project.

         In late 2015, after the project ROD had been issued, the Battle Mountain Band invoked the dispute resolution provisions of the project PA in an effort to have the BLM determine the eligibility of new TCPs, not previously identified during the six-year review process, for inclusion on the National Register. On April 19, 2016, after completion of the dispute resolution process, the BLM, without consultation with Carlin, determined that the newly identified TCPs were eligible for inclusion on the National Register. Thereafter, on May 19, 2016, the Battle Mountain Band filed the underlying complaint for declaratory and injunctive relief alleging that defendants violated the National Historic Preservation Act (“NHPA”) by failing to reconsider their decision to allow Carlin to proceed with the project on land which the BLM now considers eligible for the National Register.

         In response to the Band's complaint, Carlin filed a motion to intervene under Rule 24 of the Federal Rules of Civil Procedure (ECF No. 20) which was granted by the court (ECF No. 55). After being granted the right to intervene in this action, Carlin filed cross-claims against defendants alleging violations of NHPA and the Administrative Procedures Act (“APA”). ECF No. 98. In its cross-claims, Carlin alleges that defendants' failure to consult with Carlin on the BLM's April 2016 decision that certain land within the Tosawihi Quarries was eligible for inclusion on the National Register was procedurally improper and contrary to Carlin's rights under the project PA. Id. Thereafter, the Band filed the present motion to dismiss Carlin's cross-claims. ECF No. 104.

         II. Discussion

         In its motion to dismiss, the Battle Mountain Band raises three separate arguments for why the court should dismiss Carlin's cross-claims. First, the Band contends that it is a necessary and indispensable, but unjoinable party to the cross-claims. Second, the Band argues that Carlin failed to exhaust its administrative remedies prior to filing the cross-claims. Finally, the Band contends that Carlin lacks Article III standing to bring its cross-claims.

         The court has already found that Carlin has constitutional standing to bring its cross-claims against defendants. See ECF No. 124. Therefore, the court shall deny the Band's motion to dismiss as to this issue. The court shall address the Band's remaining two arguments below.

         A. Necessary and Indispensable Party

         The Battle Mountain Band seeks dismissal of Carlin's cross-claims under Rule 12(b)(7) of the Federal Rules of Civil Procedure for failure to join a necessary and indispensable party. See ECF No. 104.

         Under Rule 12(b)(7), a complaint must be dismissed if it fails to join a necessary and indispensable party under Rule 19. Fed.R.Civ.P. 12(b)(7). Rule 19 provides that a party is necessary if (1) in that party's absence, “the court cannot accord complete relief among existing parties, ” or (2) the party 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” impair or impede the party's ability to protect their interest or subject that party to substantial risk of inconsistent judgments. Fed.R.Civ.P. 19(a)(1). If a court finds that a party is necessary under Rule 19(a), then the court must next determine whether the necessary party can be joined, and if it cannot be joined, whether the party is so indispensable that in “equity and good ...


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