NO.: CV-S-97-327-HDM (RLH)
WESTERN SHOSHONE NATIONAL COUNCIL
by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL as Representative of
the Class of Shoshone Persons,
Plaintiffs
v.
UNITED STATES OF AMERICA;
Department of the Interior, Secretary BRUCE BABBITT,
JULIE FAULKNER, ROBERT LAIDLAW;
Bureau of Land Management, ANN J. MORGAN, HELEN HANKINS; and
ORO NEVADA RESOURCES, INC.; its parents,
affiliates, subsidiaries, successors, assigns, etc.,
Defendants
Pursuant to an Order of this Court entered September 15, 1998, Plaintiffs filed and served an amended Complaint, dated October 5, 1998, stating with more particularity claims based on individual aboriginal rights and stating specific claims against Defendant Oro Nevada, Inc.
On October 22, 1998, Federal Defendants filed a Motion to Dissolve or, in the Alternative, to Modify the Preliminary Injunction issued by this Court and a Motion To Dismiss Plaintiffs' Second Amended Complaint, which pleadings were received by Plaintiffs on October 28, 1988.
On October 28, 1998, Defendant Oro Nevada filed a statement of Joinder in the Federal Motion to Dismiss, which was received by Plaintiffs on November 1, 1998.
Plaintiffs' Complaint states "substantial" federal questions which are a "direct and essential element of the plaintiff's cause of action" "appearing on the face of the complaint." Smith v. Grimm, 534 F.2d 1346, 1350 (9th Cir., 1976). (internal citations omitted). This, coupled with the statutory waiver of immunity in 5 U.S.C. §702, provides ample room for this Court to continue to assert jurisdiction under 28 U.S.C. §§1331, 2201, and other bases as set forth in the Complaint.
Defendants had ample opportunity during pre-trial hearings on the pro se representation by Chief Yowell to raise issues about the nature of the "class" of persons included among the Plaintiffs. Ample opportunity was also provided for discovery of whatever information Defendants might have wanted as to the identity of individual Plaintiffs and parcels. Defendants did in fact seek and obtain information about individual Plaintiffs who are officials of the Western Shoshone National Council and those who are Traditional Western Shoshone Cattle Grazers. Plaintiffs are under no obligation to provide more than this by way of any "heightened pleading requirement."
Defendants' assumption that this case is a class action under Rule 23 is mistaken. At no time have Plaintiffs sought certification of this group as a "class" under Rule 23. This action is better described as "an action affecting a class of individuals," who are citizens of the Western Shoshone Nation. As such, the specific requirements of Rule 23 are inapplicable. Compare General Telephone v. E.E.O.C., 446 U.S. 318, 323 n5 (1980).
Plaintiffs' Complaint makes clear that the "class" of Western Shoshone citizens represented by Chief Yowell is included among the "persons" represented by the Western Shoshone National Council, the original and traditional government of the Western Shoshone People. (Complaint, par's. 5, 6). The caption of the case includes both ways of referring to the entirety of the Plaintiffs so as to express the traditional relationship of the Western Shoshone Chief to the People: as a direct representative and as the spokesperson of the traditional government.
The range of legal issues asserted by the Western Shoshone National Council includes aboriginal group rights but also extends to its role as protector of the rights of individual citizens of the Western Shoshone Nation. The Western Shoshone National Council has the capacity of representing the rights of its members.
This Court's Order granting pro se status to Chief Yowell to appear on behalf of the Western Shoshone National Council as "A representative of a tribal government or agency ... [with] political authority to represent the interests of the group" necessarily reaches and determines the question of Chief Yowell's pro se representation of the included "class" of "Western Shoshone citizens who honor and abide by the original government of the Western Shoshone people."
Viewed as a class action for the purposes of argument, Plaintiffs' Complaint would be proper under Rule 23, F.R.Civ.P., particularly with regard to the factors of "adequacy of representation" and "commonality."
Aboriginal rights continue to be a live issue in this litigation, following the partial dismissal entered by this Court on September 15, 1998. The injunction, entered May 13, 1998, remains vital to Plaintiffs' ability to litigate the remaining issues. The United States neither argues nor has shown any change in circumstances which would detract from the premise supporting the injunction: that the balance of harms and interests in this regard is in Plaintiffs' favor. (Magistrate's Report and Recommendation on Plaintiffs' Motion for Preliminary Injunction, 7)
Whether viewed as a "class action" or as "an action affecting a class," Plaintiffs' Complaint presents an economical and effective way to litigate the stated issues, promoting uniformity of decision as to persons similarly situated, without sacrificing procedural fairness.
The controversies involved in this litigation affect a large number of persons and will require substantial effort to finally determine and resolve. The alternatives to the present litigation are: (1) a long series of individual actions brought as might be feasible according to the ability of specific individuals and families; (2) Court-supervised negotiations, which Plaintiffs have reiterated their willingness to discuss.
Plaintiffs' Complaint asserts several jurisdictional bases for litigating "aboriginal rights," including 28 U.S.C. §1331 for causes of action "arising under the Constitution, laws, or treaties of the United States." These bases survive this Court's dismissal of Plaintiffs' treaty-recognized "tribal" rights. It follows that this Court continues to have subject-matter jurisdiction to hear this case.
Causes of action founded in "individual aboriginal rights" are recognized in judicial decisions tracing back to Cramer v. United States, 261 U.S. 219 (1923). The United States Supreme Court has explicitly held that §1331 extends to "laws" created by the judiciary:
"The contention cannot be accepted that since petitioner's rights are judicially defined, they are not created by 'the laws . . . of the United States' within the meaning of s 1331 . . .. In another context, that of state law, this Court has recognized that the statutory word 'laws' includes court decisions. The converse situation is presented here in that federal courts have an extensive responsibility of fashioning rules of substantive law . . .. These rules are as fully 'laws' of the United States as if they had been enacted by Congress." Illinois v. City Of Milwaukee, 406 U.S. 91, 99 (1972) (internal citations omitted).
Defendants' Motion to Dismiss renews their assertion, rejected in the Magistrate's Report and Recommendation entered in this case July 31, 1998, that this Court does not have jurisdiction of the federal questions involved in this Complaint because the United States has not waived sovereign immunity. (Motion, part III)
The cases cited for sovereign immunity are inapposite or irrelevant or both. U.S. v. Mitchell, 463 U.S. 206 (1983), was a claim by individual allottees of land in an Indian reservation to recover damages for alleged mismanagement. The Supreme Court found a waiver of sovereign immunity in that case under the Tucker Act, 28 U.S.C. § 1491, and other statutes.
In Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir., 1985), plaintiff brought suit seeking damages from Internal Revenue Service employees. Similarly, Holloman v. Watt, 708 F.2d 1399 (9th Cir., 1983), was a suit for money damages for loss of tribal privileges arising out of acts of officials of the Bureau of Indian Affairs.
The cases referenced above all involved only claims for money damages against the United States. They do not provide a basis for assertion of immunity from suits for injunctive and declaratory relief as are involved in the case at bar.
In deciding immunity defenses, courts look to the existence of statutory waivers. For example, in Mitchell, above, the Court stated:
... by giving the Court of Claims jurisdiction over specified types of claims against the United States, the Tucker Act constitutes a waiver of sovereign immunity with respect to those claims. 463 U.S. at 212.
In cases like the one at bar, where Plaintiffs allege injury by official agency action "under color of legal authority" and seek equitable relief, sovereign immunity is expressly waived by statute:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States. 5 U.S.C. §702.
The waiver stated in 5 U.S.C. §702 meets the test that "[a] waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.' " Holloman, 708 F.2d at 1401, (internal citations omitted).
Federal Defendants' assertion of lack of jurisdiction must fail in the face of such a clear waiver of immunity, As the Court stated in Taos v. Andrus, 475 F.Supp. 359 (D.C., 1979):
"It is a well-recognized principle that the doctrine of sovereign immunity bars suits against government agencies or officials for monetary damages, but does not bar suits for injunctive or declaratory relief." 475 F.Supp. at 364. (internal citations omitted).
The difference between damages and equitable relief for purposes of applying immunity doctrine has been part of United States law since at least Ex parte Young, 209 U.S. 123 (1908). While that case dealt with immunity of a state, the crucial distinction between damages and prospective relief has been an enduring principle. See Edelman v. Jordan, 415 U.S. 651 (1974), referring to Young as "a watershed case." 415 U.S. at 664.
The fullest explication of the difference was stated by the United States Supreme Court in a case centering precisely on the meaning of 502 U.S.C. §702:
Our cases have long recognized the distinction between an action at law for damages -- which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation -- and an equitable action for specific relief -- which may include an order providing for the reinstatement of an employee with backpay, or for "the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions." Bowen v. Massachusetts, 487 U.S. 879, 893 (1988). (internal citations omitted).
Plaintiffs in the case at bar seek no different relief from that contemplated and sustained by the Supreme Court in Bowen. In short, there is no "immunity" to bar this Court's assertion of jurisdiction in the circumstances of this case.
Plaintiffs' allegations of individual aboriginal rights and causes of action are more particularly stated in the Second Amended Complaint. The counts in the Complaint are sufficient to state claims for relief under the principle of "notice pleading" embodied in the Federal Rules of Civil Procedure.
The rights and causes of action asserted by Plaintiffs rest on various judicial decisions, including the following: Cramer v. United States, above ("reclaiming, cultivating and improving the soil"; "definite and substantial in character and open to observation"; "engaged in agriculture or labor of any kind"; "with the implied consent of the Government had acquired such rights or occupancy"; "act of dominion ... over, or ... claim or assertion of right to, ... lands beyond the limits of ... actual possessions"; "directing ... cancellation of ... land patent issued ... to .. defendant ... company"); United States v. Santa Fe R.R., 314 U.S. 339 (1941) ("lands in question were, or were included in, the ancestral home ... in the sense that they were in whole or in part occupied exclusively by them"; "no forfeiture ... predicated on ... unauthorized attempt to effect ... forcible settlement"; "lands 'retained for Indian purposes' "); United States v. Shoshone, 304 U.S. 111 (1938) ("minerals and standing timber are constituent elements of the land"); United States v. Dann, 873 F.2d 1189 (9th Cir., 1989) ("no hint in ... Cramer ... that it dealt with a right no longer capable of arising"; "possession by occupancy, inclosure, or other actions"; "with tribal title extinguished, ... individual ... taking possession may acquire an occupancy right"; "Cramer not inconsistent with recognition of a grazing right in individual Indians"; "prior occupancy by individual Indians may create enforceable preferences"; "rights to graze ... on open range lands later incorporated into grazing districts").
Plaintiffs' Complaint thus states "substantial" federal questions which are a "direct and essential element of the plaintiff's cause of action" "appearing on the face of the complaint." Smith v. Grimm, 534 F.2d 1346, 1350 (9th Cir., 1976). (internal citations omitted). This, coupled with the statutory waiver of immunity in 5 U.S.C. §702, provides ample room for this Court to continue to assert jurisdiction under 28 U.S.C. §§1331, 2201, and other bases as set forth in the Complaint.
Defendants assert that the Complaint fails to state a claim for individual aboriginal title. (Motion, Part II) This assertion is not sustained by any of the four arguments raised by Defendants.
Defendants provide no authority whatsoever for their first and second arguments for insufficiency of the Complaint -- identification of individual plaintiffs and particular parcels of land. These purported "elements necessary to state a claim" (Motion, 2) are fabricated from whole cloth.
Defendants cite no case or rule wherein specific identity of plaintiffs and parcels is required as a matter of pleading individual aboriginal rights. Indeed, such a requirement would run afoul of the "notice pleading" policy behind Rule 8, Federal Rules of Civil Procedure. As the Supreme Court stated in striking down a "heightened pleading standard" applied by the Fifth Circuit:
We think that it is impossible to square the "heightened pleading standard" applied by the Fifth Circuit in this case with the liberal system of "notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief." In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), we said in effect that the rule meant what it said: "[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993). (emphasis added).
Plaintiffs' First Amended Complaint contained four discrete references to "individual aboriginal rights." (First Amended Complaint, ¶¶ 6,12, 17, 18) Pursuant to the Order of this Court entered September 15, 1998, to "state the claims based on individual aboriginal title with more particularity," Plaintiffs filed a Second Amended Complaint which states in twenty separate paragraphs the circumstances in and from which their individual aboriginal rights arise and have been infringed or denied by Defendants.
The facts alleged in this Complaint are more than sufficient to constitute a "plain statement ... that will give the defendant fair notice," as required by Rule 8, F.R.Civ.P. To require more than this would run counter to the Supreme Court holding in Leatherman, supra, and would violate Plaintiffs' rights to due process and access to judicial relief for wrongs committed against their property interests. As the Court in Leatherman pointed out, "[T]he Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions," but this provision is limited to allegations of fraud and mistake and does not include any reference to complaints alleging individual aboriginal rights.
Such simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Conley v. Gibson, 355 U.S. 41, 47-48 (1957).
Defendants had ample opportunity during pre-trial hearings on the pro se representation by Chief Yowell to raise issues about the nature of the "class" of persons included among the Plaintiffs. Ample opportunity was also provided for discovery of whatever information Defendants might have wanted as to the identity of individual Plaintiffs and parcels. Defendants did in fact seek and obtain information about individual Plaintiffs who are officials of the Western Shoshone National Council and those who are Traditional Western Shoshone Cattle Grazers. Plaintiffs are under no obligation to provide more than this by way of any "heightened pleading requirement."
The Ninth Circuit very recently reiterated these basic principles:
A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. ... The complaint must be construed favorably to the plaintiff, and the court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from well-pleaded facts. Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir., 1998)
Plaintiffs' Second Amended Complaint is sufficient to state a claim for relief under these principles. Detailed facts as to identity of individual persons and parcels and the relationships between individuals and parcels is properly reserved for presentation at hearings on the merits.
Defendants' third and fourth arguments for insufficiency of the Complaint -- proof of lineal descent and exercise of rights prior to November 26, 1934 -- are unexceptional as "elements necessary to state a claim" in accordance with United States v. Dann, 873 F.2d 1189 (9th Cir., 1989), cited by defendants.
Defendants' error is in ignoring that Plaintiffs' Second Amended Complaint addresses both these elements explicitly:
6. The specific lands which are the subject of this action, and which are too numerous to list, have been actually, openly, and notoriously possessed, used and occupied by Plaintiffs' lineal ancestors from time immemorial, to the exclusion of adverse claimants.
7. Plaintiffs' lineal ancestors engaged in said uses and occupations continuously and openly, including at the time of and prior to acts of the United States in 1934 purporting to withdraw from settlement and imposing "grazing districts" on the lands in question. (Second Amended Complaint)
It is thus undeniable that, in regard to these two elements, the Complaint states a claim upon which relief can be granted and Defendants' Motion must be denied. As stated in sub-section (a), above, "Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is...." Leatherman, supra. Plaintiffs are prepared to present details of lineal ancestry and land use at the proper time at hearings on the merits.
Defendants raise objections to Plaintiffs' Complaint on the ground that it is "improperly pled as a class action," focusing on two issues: "adequacy of representation" and "commonality" under Rule 23, F.R.Civ.P. (Motion, part IV)
At the outset, Defendants' assumption that this case is a class action under Rule 23 is mistaken. Plaintiffs' First Amended Complaint describes the parties as including "the class of Western Shoshone persons who honor and abide by the original. government of the Western Shoshone people and live upon and have rights in the territory described in the Treaty of Ruby Valley, 1863." (Complaint, par. 6)
At no time have Plaintiffs sought certification of this group as a "class" under Rule 23. This action is better described as "an action affecting a class of individuals," who are citizens of the Western Shoshone Nation. As such, the specific requirements of Rule 23 are inapplicable. Compare General Telephone v. E.E.O.C., 446 U.S. 318, 323 n5 (1980).
Nonetheless, for the purposes of argument and to more fully oppose Defendants' Motion to Dismiss and clarify the nature of this action, Plaintiffs hereby respond to Defendants' contentions as follows:
Each of the cases cited by Defendants for the proposition that a class action can never be brought pro se is inapposite or irrelevant or both. McShane v. United States, 366 F.2d 286 (9th Cir., 1966), was a case wherein plaintiff had not attempted to represent a designated class, but had simply "... undertaken to act in behalf of persons, naming them in this court and in the court below, without the authorization or knowledge or consent of at least some of these persons." 366 F.2d at 288. The McShane court had received communication from some of these persons specifically objecting to their inclusion in the litigation.
Two of the five cases cited by Defendants involve prisoner rights. Oxendine v. Williams, 509 F.2d 1405 (4th Cir., 1975), would not permit an "imprisoned litigant who is unassisted by counsel to represent his fellow inmates...." 509 F.2d at 1407. Similarly, in Shaffery v. Winters, 72 F.R.D. 191 (1976), "[I]t would be improper to permit Shaffery, a pro se litigant who is not an attorney and who labors under the restrictions of incarceration," to litigate ... a class action...." 72 F.R.D. at 193. Prisoner cases are distinguishable from the case at bar, where Chief Yowell does not "labor... under the restrictions of incarceration" and has access to advisors.
Of the remaining two cases relied upon by Defendants in this regard, one -- Gonzales v. Cassidy, 474 F.2d 67 (5th Cir., 1973) -- did not involve a pro se plaintiff and is therefore wholly immaterial.
The only other authority cited by Defendants, Cevallos v. Los Angeles, 914 F.Supp. 379 (C.D. Cal., 1996), stated that "[A] layperson ordinarily cannot represent the interests of a class of other plaintiffs." 914 F.Supp. at 385. (emphasis added). On its face, Cevallos is not an absolute bar to pro se representation of a class and Defendants have shown no basis upon which this decision might be applied to the case at bar.
Defendants have failed to show or even argue that segments of the class Chief Yowell represents would have interests conflicting with those he has sought to advance; or that the interests of that class have not been competently urged at each level of the proceeding.
Equally important, the instant case is not an "ordinary" situation, as this Court recognized in its Order entered January 12, 1998, granting Chief Yowell's pro se representation of the Western Shoshone National Council and citing Fraas v. Absentee Shawnee, 817 F.Supp. 7 (S.D.N.Y. 1993).
It will be helpful to examine the holding in Fraas to see why the pro se representation by Chief Yowell extends fully to the "class" of Western Shoshone persons who honor and abide by the original government of the Western Shoshone people and live upon and have rights in the ancestral territories of the Western Shoshone People:
[A] tribal government and its agencies do not pose the problem of representation that corporations, partnerships, and other unincorporated groups pose. Lay representation of the latter is suspect because of the possibility of conflicting interests. ... A representative of a tribal government or agency, by contrast, has political authority to represent the interests of the group. Government representatives might not walk in lock step with each other or with their people, but their interests and differences are not personalized like those of business partners. Rather, government representatives must be presumed authoritatively to act in the name of their government or agency, and thus in the name of the people whom they represent. Requiring outside counsel to present a government's case because of concern about incongruity of interests would question the representative's legitimacy, and thus second-guess the status and operation of that government. Such injection of this Court into political affairs is needless. 817 F.Supp. at 10-11.
The basis of this Court's determination that Plaintiff Western Shoshone National Council may appear pro se through its Chief, Plaintiff Raymond D. Yowell, is that "A representative of a tribal government or agency ... has political authority to represent the interests of the group."
As Plaintiffs' Complaint makes clear, the "class of Western Shoshone persons" represented by Chief Yowell is included among the "group" represented by the Western Shoshone National Council, the original and traditional government of the Western Shoshone People. (Complaint, par's. 5, 6). The caption of the case includes both ways of referring to the entirety of the Plaintiffs so as to express the traditional relationship of the Western Shoshone Chief to the People: as a direct representative and as the spokesperson of the traditional government.
The Western Shoshone National Council is an "adequate representative" for the "class" because the range of legal issues asserted by the Council includes aboriginal group rights, but also extends to its role as protector of the rights of individual citizens of the Western Shoshone Nation.
The Western Shoshone National Council has the capacity of representing the rights of its members. The Supreme Court has held, in an analogous situation, that individual rights may be represented in litigation by an association of those individuals:
It has long been settled that "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members...." [W]e have found that, under certain circumstances, injury to an organization's members will satisfy Article III and allow that organization to litigate in federal court on their behalf. ... [W]e set out the nature of these circumstances: "The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit...." U.A.W. v. Brock, 477 U.S. 274, 281-282 (1986). (internal citations omitted).
Defendants do not deny that the assertion of individual aboriginal rights would be justiciable if brought by the individual Western Shoshone persons represented in this case. Defendants' error is in the assertion that these issues may only be brought in a series of individual lawsuits. Such is not the law.
The issues raised in this litigation could indeed be brought in a series of individual cases, but such a course of action would (1) present identical legal issues without assurance of uniformity of decision; (2) require duplicative hearings on matters common to all; and (3) prohibit consolidation of common issues of fact where such exist. Avoidance of these drawbacks and inefficiencies are the purpose of bringing the case in its current form.
Chief Yowell does not intend to present the facts of each Western Shoshone citizen's individual aboriginal rights. This will have to be done by each such person in the factual stage of the proceedings. The Chief's role in this action is to present the legal issues involved in defining the nature and extent of Western Shoshone individual aboriginal rights in general (the "federal questions" discussed in the Jurisdiction section above), laying a foundation in law to open the door for factual proof by affected individuals. Such a procedure accords with general rules for "class actions" involving common questions of law and disparate individual facts, as discussed in the following section.
The legal issues affecting the class of persons represented in this case are eminently suited to a consolidated action. The Brock Court insisted on the importance of judicial economy as a reason why associational representation may be desirable as well as appropriate:
...[S]pecial features, advantageous both to the individuals represented and to the judicial system as a whole, ... distinguish suits by associations on behalf of their members from class actions. While a class action creates an ad hoc union of injured plaintiffs who may be linked only by their common claims, an association suing to vindicate the interests of its members can draw upon a pre-existing reservoir of expertise and capital. "Besides financial resources, organizations often have specialized expertise and research resources relating to the subject matter of the lawsuit that individual plaintiffs lack." ... These resources can assist both courts and plaintiffs. As one court observed of an association's role in pending litigation: "[T]he interest and expertise of this plaintiff, when exerted on behalf of its directly affected members, assure 'that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.' " 477 U.S. at 289. (internal citations omitted).
This Court's Order granting pro se status to Chief Yowell to appear on behalf of the Western Shoshone National Council, whether viewed as a "class action" or as an association "action affecting a class," necessarily reaches and properly determines the question of Chief Yowell's pro se representation of legal issues affecting the included "class."
Defendants' Motion to Dismiss argues that this action should be dismissed "because each individual alleged to be part of a class brings a unique set of facts." (Motion, 8)
Defendants apparently read Rule 23(a)(2), F.R.Civ.P., to require commonality of questions of law and fact. This is an inaccurate reading of the Rule, which requires that there be "questions of law or fact common to the class." (emphasis added):
Commonality is achieved with the existence of a common question of either fact or law. Not all factual or legal questions raised in the lawsuit need be common so long as a single issue is common to all class members. Riordan v. Smith Barney, 113 F.R.D. 60, 63 (N.D. Ill, 1986). (emphasis added).
Similarly:
... Rule 23 does not require that all the questions of law and fact raised by the dispute be common. C. Wright & A. Miller, Federal Practice and Procedure, s 1763 (1982) at 603. See also Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 532 (5th Cir.1978). The claims actually litigated in the suit must simply be those fairly represented by the named plaintiffs. Cox v. American Cast Iron Pipe, 784 F.2d 1546, 1557 (8th Cir., 1986).
It is no barrier to class litigation of common legal issues regarding individual aboriginal rights that each individual's rights will require separate evidence and proof of facts:
Thus, "either common questions of law or fact presented by the class will be deemed sufficient [and f]actual differences in the claims of the class members should not result in a denial of class certification where common questions of law exist." Milonas v. Williams, 691 F.2d 931, 938 (10th Cir.1982), cert. denied, 460 U.S. 1069 (1983). Dixon v. Valdez, 167 F.R.D. 688, 690-691 (N.M., 1996).
Plaintiffs' Complaint plainly asserts common questions of law affecting a group of Western Shoshone persons too numerous to join individually. These common questions of law are squarely within the contemplation of the Rule, to wit: the United States and Oro Nevada, Inc., have "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Rule 23(b)(2), F.R.Civ.P.
That the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy. ... Further, differing fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory. Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir., 1988). (internal citations omitted).
Rule 23 is clear and unambiguous: commonality of law and commonality of fact are independent bases; each alone is sufficient to support a class action. In short, Defendants' Motion is based on a mistaken reading of the Rule; viewed as an action under the Rule, Plaintiffs' Complaint is sufficient.
Federal Defendants' Motion to Dissolve or Modify Preliminary Injunction asserts "there is no basis to continue enjoining the United States from impounding cattle and horses that are grazing upon the public lands based upon the faulty belief that aboriginal title still attaches to the land." (Motion to Dissolve, unpaginated p. 2)
The short answer to this contention is that "individual aboriginal title" is a species of "aboriginal title" entitled to legal protection. The scope of this Court's injunction was not limited or restricted to assertions of "tribal rights," but encompassed Plaintiffs' entire Complaint, including the assertion of individual rights.
Further, the Ninth Circuit has unambiguously held that "faulty belief" is no bar to assertion of individual aboriginal rights:
We do not deem it fatal ... to an individual right of occupancy that the Indian took actual possession under an invalid claim of tribal title. United States v. Dann, 873 F.2d 1189 (1989).
The partial dismissal entered by this Court on September 15, 1998, was exactly that: partial. The injunction remains vital to Plaintiffs' ability to litigate the remaining issues. The United States neither argues nor has shown any change in circumstances which would detract from the conclusion in the Magistrate's Report and Recommendation on Plaintiffs' Motion for Preliminary Injunction, entered May 13, 1998, that the balance of harms and interests in this regard is in Plaintiffs' favor. (Report, 7)
Aboriginal rights continue to be a live issue in this case, requiring ongoing protection from the Preliminary Injunction entered by this Court on June 5, 1998. As the Magistrate's Report explicitly stated: "The livestock ... are the sum and substance of Plaintiffs' livelihood and way of life." (Report, 7) Continuance of the injunction is an essential to due process; it is a precondition for Plaintiffs' continuing ability to pursue this litigation on behalf of their aboriginal rights.
The remaining points argued by the United States in favor of modifying the injunction rest on faulty premises about the nature of the action as a class action. Specifically, the Federal Defendants' argument that "at most, only ... Chief Raymond Yowell, can allege a claim for individual aboriginal." (sic) is in clear error as a mistaken characterization of the action and an incorrect reading of Rule 23, as discussed in the preceding section. Proper resolution of those issues deprives the Motion to Modify of any weight.
Plaintiffs' Complaint states well-pleaded causes of action "arising under the Constitution, laws, or treaties of the United States" and seeks injunctive and declaratory relief as to which Defendant United States has waived its immunity by statute. Defendant Oro Nevada, Inc., has not asserted any immunity to Plaintiffs' suit.
Plaintiffs' Complaint is not a "class action" under Rule 23, F.R.Civ.P., but is rather "an action affecting a class" of Western Shoshone individuals represented by and through the traditional and original Western Shoshone government and the Western Shoshone National Council Chief.
Viewed as a class action, Plaintiffs' Complaint would be proper under Rule 23, F.R.Civ.P., particularly with regard to the factors of "adequacy of representation" and "commonality" criticized by Defendants.
The controversies involved in this litigation affect a large number of persons and will require substantial effort to finally determine and resolve. Whether viewed as a "class action" or as "an action affecting a class," Plaintiffs' Complaint presents an economical and effective way to litigate the stated issues, promoting uniformity of decision as to persons similarly situated, without sacrificing procedural fairness.
The alternative to the present litigation which granting of Defendants' Motion to Dismiss would make necessary is a long series of individual actions brought as might be feasible according to the ability of specific individuals and families, until all had been heard and resolved. This would (1) present identical legal issues without assurance of uniformity of decision; (2) require duplicative hearings on matters common to all; and (3) prohibit consolidation of common issues of fact where such exist.
Defendants' Motion to Dismiss should be denied and this case proceed to hearing on the merits, at which Plaintiffs may have their day in court: (1) to argue legal and factual issues common to all Plaintiffs' individual aboriginal rights, including the nature and extent of such rights and appropriate remedies to protect them and provide redress for actual and threatened interference; and (2) to present unique factual matters which pertain to particular individuals or families within the Plaintiff group.
Defendants' Motion to Dissolve or Modify this Court's Preliminary Injunction should be dismissed. This Court's prohibition of impoundment or confiscation of Plaintiffs' livestock during the pendency of this action continues to be necessary, viable, and essential for protection of Plaintiffs' from irreparable harm, a precondition to their ability to maintain this action to achieve judicial review of their rights.
WHEREFORE Plaintiffs urge this Court to deny Defendants' Motion to Dismiss and Motion to Dissolve or Modify the Preliminary Injunction.
Dated: December , 1998
Respectfully Submitted,
Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Western Shoshone National Council
Indian Springs, NV 89018-210