Transcript GasPlus-Presenting your casex

Presenting your case
Avoid exceeding 30 words on a slide
Can you stretch the rule when
quoting documents?
Handout distributed in advance
GasPlus, LLC v. Dep’t of Interior,
510 F. Supp. 2d 18 (D.C. D.C. 2007)
GasPlus, a gasoline distributor, entered into a
Management Agreement with Nambe Pueblo under
which GasPlus would supervise the business, select
personnel, negotiate prices, coordinate deliveries,
prepare budgets, use Pueblo funds to build or expand the
business, and consult with the Pueblo. A few months
thereafter, the newly elected Governor of the Pueblo
asked BIA to review the Management Agreement under
25 U.S.C. § 81. [etc.]
GasPlus, LLC v. Dep't of Interior (D.C.D.C.)
• GasPlus management agreement with Nambe
Pueblo
• Avoid N.M. excise tax using Registered Indian Tribal
Distributor
• 25 U.S.C. § 81 (2000)(“No agreement or contract
with an Indian tribe that encumbers Indian lands for
a period of 7 or more years shall be valid unless .”)
• Test: legal interest in property; no longer “relative to
their lands”
• Operation of facility is not enough
R. S. 2103 (1871)
• "No agreement shall be made by any person with any tribe of
Indians, or individual Indians not citizens of the United States, for
the payment or delivery of any money or other thing of value, in
present or in prospective, or for the granting or procuring any
privilege to him, or any other person in consideration of services for
said Indians relative to their lands, or to any claims growing out of,
or in reference to, annuities, installments, or other monies, claims,
demands, or thing, under laws or treaties with the United States, or
official acts of any officers thereof, or in any way connected with or
due from the United States, unless such contract or agreement be
executed and approved as follows:* * *
• "(2) It shall bear the approval of the Secretary of the Interior and
the Commissioner of Indian Affairs endorsed upon it.* * *
• "All contracts or agreements made in violation of this section shall
be null and void.“
§81. Contracts with tribes (2000)
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(a) Definitions
(b) Approval: No agreement with an Indian tribe that encumbers Indian lands for a period of 7 or
more years shall be valid unless that agreement or contract bears the approval of the Secretary.
(c) Exception: Subsection (b) of this section shall not apply to any agreement or contract that the
Secretary determines is not covered under that subsection.
(d) Unapproved agreements: The Secretary shall refuse to approve an agreement if the contract—
(1) violates Federal law; or
(2) does not include a provision that—
(A) provides for remedies in the case of a breach
(B) references the right of the Indian tribe to assert sovereign immunity; or
(C) includes an express waiver of the right of the Indian tribe to assert sovereign immunity
(e) Regulations.
(f) Construction
Nothing in this section shall be construed to—
(1) require the Secretary to approve a contract for legal services by an attorney;
(2) amend or repeal the authority of the National Indian Gaming Commission under the Indian
Gaming Regulatory Act (25 U.S.C. 2701 et seq.); or
(3) alter any ordinance of an Indian tribe that requires approval by the Secretary of any action
25 CFR 84.002
• Encumber means to attach a claim, lien,
charge, right of entry or liability to real
property (referred to generally as
encumbrances). Encumbrances covered by
this part may include leasehold mortgages,
easements, and other contracts or
agreements that by their terms could give to a
third party exclusive or nearly exclusive
proprietary control over tribal land.
Management Agreement Jan. 2001
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"Supervise and direct the general operations of' the gasoline distribution business
"Select and train personnel to run the daily operations"
"Negotiate prices and coordinate deliveries of [g]asoline"
"Develop policies for the purpose of maximizing net income"
"Maintain proper and suitable records and books of account"
"Bill and collect revenues and fees from sales of …[g]asoline"
"Pay or cause to be paid out of [Nambe Pueblo's] funds operating expenses"
"Market, promote, and advertise" the distribution business
"Supervise and pay, out of [Nambe Pueblo's] funds, construction . . . to build or
expand the" business
"Maintain books and records for the" business
"[P]repare and file with the appropriate authorities on behalf of [Nambe Pueblo]
monthly reports"
"Prepare annual operating and capital expenditure budgets“
BIA & court proceedings
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Feb. 2002 Regional Director found invalid
GasPlus appealed to IBIA
Ass’t Sec’y took jurisdiction-- 25 CFR 2.20
June 2003 ASIA affirmed
Sept. 2003 APA action filed in U.S.D.C.D.C.
Nov. 2004 remanded to BIA re remedies
Nov. 2005 Assoc. Dep. Sec’y affirmed
Jan. 2006 2nd amended complaint
Apr. 2006 3d amended complaint
Docket entries—initial defense
• 02/13/2004-7-ANSWER to Complaint (Amended
Complaint) by UNITED STATES DEPARTMENT OF
THE INTERIOR.(Lehman, Devon) (Entered:
02/13/2004)
• 04/12/2004-8-ADMINISTRATIVE RECORD by
UNITED STATES DEPARTMENT OF THE INTERIOR.
• 06/11/2004-9-MOTION for Summary Judgment
by UNITED STATES DEPARTMENT OF THE
INTERIOR. (Attachments: # 1 Text of Proposed
Order # 2 Statement of Undisputed Material
Facts)(Lehman, Devon) (Entered: 06/11/2004)
Docket entries—remand to agency
• 08/03/2004-13-MOTION to Remand by UNITED
STATES DEPARTMENT OF THE INTERIOR.
(Attachments: # 1 Text of Proposed
Order)(Lehman, Devon)
• 08/03/2004-14-MOTION to Stay Filing of
Defendant's Response to Plaintiff's Motion for
Summary Judgment Pending Court's Resolution of
Defendant's Motion to Remand by UNITED STATES
DEPARTMENT OF THE INTERIOR. (Attachments: #
1 Text of Proposed Order)(Lehman, Devon)
Decision on cross motions Sept. 2007
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Sec. 81 doesn’t preclude GasPlus standing
Arbitrary, capricious, not in accord with law?
Sec. 81 elements: tribe; encumbers; 7+ years
“encumbers” means legal interest in land
Proprietary control is not enough
Senate report example is unclear but Wis. v.
Koberstein was disapproved
• Focus on legal interest in land, not ability to
control land as proprietor
Post decision proceedings
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Motion to publish opinion
Notice of appeal (dismissed 4 months later)
Motion for attorney fees per 28 U.S.C. 2412
Jan. 2009 Opinion awarding $177,000
28 U.S.C. 2412 (EAJA)
• (a)(1) a judgment for costs, but not including the fees and expenses
of attorneys, may be awarded to the prevailing party in any civil
action brought by or against the United States ….
• (d)(1)(A) a court shall award to a prevailing party other than the
United States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in any
civil action (other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by or
against the United States in any court having jurisdiction of that
action, unless the court finds that the position of the United States
was substantially justified or that special circumstances make an
award unjust.
• (B) A party seeking an award of fees and other expenses shall,
within thirty days of final judgment in the action
Memo Opinion re EAJA Jan. 2009
• Awards fees re claims v. USA not Bivens claims
v. individuals
• $150 filing fee recoverable under 2412(a)
• Award under 2412(b) requires showing bad
faith by USA—not here
• 2412(d) award (capped at $125/hr): statute
“could not be more clear” “no support in text”
• Award includes IBIA/Ass’t Sec’y proceedings