Motion for Leave to File Second Amended Complaint — Cheyenne River Sioux Tribe Plaintiffs, Doc. 95 (D.D.C.)

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Cheyenne River Sioux Tribe Plaintiffs' Motion for Leave to File Second Amended Complaint and Memorandum of Points and Authorities, filed 06/24/20 in the consolidated cases Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, Case No. 1:20-cv-01002-APM. The Tribes ask to add an allegation about the Secretary's April 23, 2020 statement on Coronavirus Relief Fund Payments to Tribal Governments, and a request for relief that conforms to their motion for summary judgment. The motion states that the Secretary does not oppose it, the Intervenor-Defendants take no position, and the Confederated Tribes Plaintiffs and Plaintiff Ute Tribe consent. Nicole Ducheneaux signs the certificate of service.

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“Motion for Leave to File Second Amended Complaint — Cheyenne River Sioux Tribe Plaintiffs, Doc. 95 (D.D.C.).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/motion-to-amend-correct-confederated-tribes-of-the-chehalis-reservatio-b4ba78df8f/, SHA-256 5171022446c3793de407bee994683570012d37f5c08578be4081cfb874bd3945.

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Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION et al.,

Plaintiffs,

v. Case No. 1:20-cv-01002-APM

STEVEN MNUCHIN, in his official capacity,

Defendant.
CHEYENNE RIVER SIOUX TRIBE et al.,

Plaintiffs,

v. Case No. 1:20-cv-01059-APM

STEVEN MNUCHIN, in his official capacity,

Defendant.
UTE INDIAN TRIBE OF THE UINTAH AND
OURAY INDIAN RESERVATION,

Plaintiff,

v. Case No. 1:20-cv-01070-APM

Steven Mnuchin, in his official capacity, CONSOLIDATED CASES

Defendant.

CHEYENNE RIVER SIOUX TRIBE PLAINTIFFS’ MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT AND MEMORANDUM OF POINTS AND
AUTHORITIES

Pursuant to Federal Rule of Civil Procedure 15 and Local Civil Rule 7(i), Plaintiffs

Cheyenne River Sioux Tribe , Rosebud Sioux Tribe, Oglala Sioux Tribe, Nondalton Tribal

Council, Arctic Village Council, and Native Village of Venetie Tribal Government (together,

“Plaintiffs” or “the Tribes”) hereby move for leave to file a second amended complaint to include
Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 2 of 7

an allegation regarding the Secretary of the United States Department of the Treasury’s

(“Secretary”) April 23, 2020, statement as to Coronavirus Relief Fund Payments to Tribal

Governments, ECF No. 71, AR014, and a request for relief that conforms to the request in

Plaintiffs’ motion for summary judgment. Plaintiffs’ proposed second amended complaint is

attached to this motion.

Plaintiffs conferred with all counsel regarding this motion pursuant to Local Civil Rule

7(m) in a good-faith effort to determine if there is any opposition to the motion. The Secretary

does not oppose the motion. The respective Intervenor-Defendants take no position on the motion.

The Confederated Tribes Plaintiffs and Plaintiff Ute Tribe consent to the motion.

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

Plaintiffs filed this action on April 17, 2020, stating a single claim under 5 U.S.C. § 706

and 28 U.S.C. §§ 2201-2202, and seeking to preliminarily and permanently enjoin the Secretary

from designating Alaska Native Claims Settlement Act (“ANCSA”) regional corporations and

village corporations (“ANCs”) as “Tribal governments” for purposes of allocating and distributing

funds under Title V of the CARES Act, 42 U.S.C. § 801. ECF No. 1, Case No. 20-cv-01059.

Plaintiffs alleged that the Secretary’s actions constituted final agency action for purposes of

judicial review. Id. ¶ 58. On April 20, 2020, Plaintiffs moved for a temporary restraining order and

preliminary injunction. ECF No. 3, Case No. 20-cv-01059. Plaintiffs filed an amended complaint

on April 21, 2020, which included additional plaintiffs and factual allegations corresponding to

the new plaintiffs, but did not include new allegations regarding actions by the Secretary. ECF No.

7, Case No. 20-cv-01509.

On April 23, 2020, Treasury posted a document to its website, titled “Coronavirus Relief
Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 3 of 7

Fund Payments to Tribal Governments April 23, 2020,” confirming the Secretary’s decision to

allocate and pay Title V funds to ANCs as Tribal Governments. ECF 71, AR014.1 The document

states, “After consultation with the Department of the Interior, Treasury has concluded that Alaska

Native regional and village corporations as defined in or established pursuant to the Alaska Native

Claims Settlement Act are eligible to receive payments from the Fund in the amounts to be

determined by the Secretary of the Treasury.” Id. (footnote omitted). Since its issuance, the parties

have litigated the Secretary’s statement and the legal issues surrounding it, including on Plaintiffs’

motion for preliminary injunctive relief and on the parties’ cross motions for summary judgment.

See e.g., ECF Nos. 21 at 7; 77; 79; see also ECF No. 71 at 2 (Administrative Record).

II. ARGUMENT

Plaintiffs now move for leave to file a second amended complaint to include an allegation

regarding the Secretary’s April 23, 2020, statement, and a request for relief that conforms to the

request set forth in Plaintiffs’ motion for summary judgment. Pursuant to Federal Rule of Civil

Procedure 15, “The court should freely give leave [to amend] when justice so requires.” Fed. R.

Civ. P. 15(a)(2). The Court should not deny leave to amend absent a sufficient reason, such as

“futility of amendment, undue delay, bad faith, dilatory motive, undue prejudice, or repeated

failure to cure deficiencies by previous amendments[.]” Howard v. Federal Express Corp., 280 F.

Supp. 3d 26, 29 (D.D.C. 2017) (Mehta, J.) (citation and quotation marks omitted). Moreover,

pursuant to Rule 15(b)(2), “When an issue not raised by the pleadings is tried by the parties’

express or implied consent, it must be treated in all respects as if raised in the pleadings. A party

may move—at any time, even after judgment—to amend the pleadings to conform them to the

1
See also U.S. Dep’t of Treasury, Coronavirus Relief Fund Payments to Tribal Governments (Apr.
23, 2020), available at https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-
Payments-to-Tribal-Governments.pdf
Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 4 of 7

evidence and to raise an unpleaded issue.” See also Kirkland v. Dist. of Columbia, 70 F.3d 629,

633 (D.C. Cir. 1995) (“[C]onsent generally is found when evidence is introduced without

objection, or when the party opposing the motion to amend actually produced evidence bearing on

the new issue.” (quotation marks omitted) (brackets in original)). In addition, “on motion and

reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading

setting out any transaction, occurrence, or event that happened after the date of the pleading to be

supplemented.” Fed. R. Civ. P. 15(d).

Justice supports granting Plaintiffs’ motion for leave to file a second amended complaint.

Plaintiffs seek to include an allegation regarding the Secretary’s April 23, 2020, statement, which

was not issued until after the date of Plaintiffs’ first amended complaint. Prior to the April 23,

2020, statement, it was the Secretary’s position that he had not made a final determination

regarding ANCs’ status as “Tribal governments” for purposes of Title V payments. ECF Nos. 5 at

1; 9 at 1. Since the Secretary first put that statement before the Court, ECF No. 21 at 7, the parties

have consensually litigated the statement and the issues surrounding it. Plaintiffs also seek to

include in their second amended complaint a request for relief—vacatur and remand—that

conforms to the relief requested in their motion for summary judgment. See ECF No. 77 at 42. The

proposed amendments accordingly will bring the pleadings in line with the issues that have

actually been developed and litigated, and will not prejudice any party. Plaintiffs are promptly

filing this motion following summary judgment briefing, which is when the Secretary first raised

the issue of amendment.

Plaintiffs have conferred with all counsel regarding this motion pursuant to Local Civil

Rule 7(m) in a good-faith effort to determine if there is any opposition to the motion. The Secretary

does not oppose the motion. The respective Intervenor-Defendants take no position on the motion.
Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 5 of 7

The Confederated Tribes Plaintiffs do not oppose the motion. Plaintiff Ute Tribe consents to the

motion.

III. CONCLUSION

For the foregoing reasons, the Cheyenne River Sioux Tribe Plaintiffs respectfully request

that the Court grant their motion for leave to file a second amended complaint. Plaintiffs’ proposed

second amended complaint is attached to this motion.

Dated: June 24, 2020

Respectfully submitted,

/s/ Nicole E. Ducheneaux
Nicole E. Ducheneaux (DC Bar No. NE001)
BIG FIRE LAW & POLICY GROUP LLP
1404 South Fort Crook Road
Bellevue, NE 68005
Telephone: (531) 466-8725
Facsimile: (531) 466-8792
Email: nducheneaux@bigfirelaw.com

Counsel for the Cheyenne River Sioux Tribe

/s/ Natalie A. Landreth
/s/ Erin C. Dougherty Lynch
/s/ Matthew N. Newman
/s/ Wesley James Furlong
/s/ Megan R. Condon
Natalie A. Landreth (D.D.C. Bar No. AK0001)
Erin C. Dougherty Lynch (pro hac vice)
Matthew N. Newman (pro hac vice)
Wesley James Furlong (D.D.C. Bar No. AK0003)
Megan R Condon (pro hac vice)
NATIVE AMERICAN RIGHTS FUND
745 West 4th Avenue, Suite 502
Anchorage, AK 99501
Telephone: (907) 276-2466
Facsimile: (907) 276-2466
Email: landreth@narf.org
Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 6 of 7

dougherty@narf.org
mnewman@narf.org
wfurlong@narf.org
mcondon@narf.org

Counsel for Rosebud Sioux Tribe, Nondalton Tribal
Council, Arctic Village Council, Native Village of
Venetie Tribal Government

/s/ Jennifer Bear Eagle
Jennifer Bear Eagle, pro hac vice pending
OGLALA SIOUX TRIBE LEGAL DEPARTMENT
P.O. Box 1204
Pine Ridge, SD 57770
Telephone: (605) 867-2138
Facsimile: (605) 867-2140
Email: JenniferBE@ostlegal.org

Counsel for Oglala Sioux Tribe
Case 1:20-cv-01002-APM Document 95 Filed 06/24/20 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that on June 24, 2020, I electronically filed the foregoing document with

the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the

attorneys of record and all registered participants.

/s/ Nicole Ducheneaux
Nicole E. Ducheneaux (DC Bar No. NE001)
Big Fire Law & Policy Group LLP
1404 South Fort Crook Road
Bellevue, NE 68005
Telephone: (531) 466-8725
Facsimile: (531) 466-8792
Email: nducheneaux@bigfirelaw.com

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