Response to motion, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 105 (July 1, 2020)

Summary

Ahtna, Inc.'s opposition to Plaintiffs' Motion for Injunction Pending Appeal in Confederated Tribes of the Chehalis Reservation, et al. v. Mnuchin, Case No. 1:20-cv-1002-APM, in the U.S. District Court for the District of Columbia, Document 105, filed July 1, 2020. Ahtna, an Intervenor-Defendant, adopts and incorporates the oppositions at Dkts. 102 and 104 filed by the other Alaska Native Corporation Intervenor-Defendants. It states that no ANC has received any of the relief funds because of Plaintiffs' lawsuits, and describes projects it plans to fund, citing the June 30, 2020 Declaration of Ken Johns (Exhibit A). The conclusion asks the Court to deny Plaintiffs' Motion; the signature block names Michael J. O'Leary, with /s/ Michael J. O'Leary.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Response to motion, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 105 (July 1, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-to-motion-confederated-tribes-of-the-chehalis-reservation-et-28d6cbff2c/, SHA-256 4463e1af72ccba9180690acaab8a768366fbab96918535a28137a9d07a26f57c.

Full text

Case 1:20-cv-01002-APM Document 105 Filed 07/01/20 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION, et al.,

Plaintiffs,

v. Case No. 1:20-cv-1002-APM

STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

Defendant.

CHEYENNE RIVER SIOUX TRIBE et al.,

Plaintiffs,

v.
Case No. 1:20-cv-1059-APM
STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

Defendant.

UTE TRIBE OF THE UINTAH AND OURAY
RESERVATION,

Plaintiff,

v. Case No. 1:20-cv-1070-APM

STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

Defendant.

AHTNA, INC.’s OPPOSITION TO PLAINTIFFS’ MOTION FOR INJUNCTION
PENDING APPEAL
Case 1:20-cv-01002-APM Document 105 Filed 07/01/20 Page 2 of 6

Intervenor-Defendant Ahtna, Inc. submits this opposition to Plaintiffs’ Motion for

Injunction Pending Appeal (“Motion”) (Dkt. 99). For all the reasons set forth in the oppositions

(Dkts. 102 & 104) filed by the other Alaska Native Corporation Intervenor-Defendants

(collectively “ANCs”) which Ahtna adopts and incorporates by reference, Plaintiffs’ Motion

should be denied. As outlined in those oppositions, Plaintiffs cannot satisfy the standards for

granting the extraordinary remedy of an injunction pending appeal. See Nken v. Holder, 556 U.S.

418, 434 (2009). Ahtna writes separately only to highlight the flawed premise underlying

Plaintiffs’ request.

Plaintiffs assert in their Motion that absent an injunction pending appeal “they will forever

be denied the opportunity to share in hundreds of millions of dollars that Congress set aside for

federally recognized Indian tribes to support their governments’ ongoing efforts to protect and

serve their citizens during the COVID-19 pandemic.” Dkt. 99 at 4-5. But the Treasury Department

set aside those remaining funds for ANCs and the Court’s June 26, 2020 Memorandum Opinion

(Dkt. 97) persuasively concluded that ANCs are eligible to receive those funds under the CARES

Act.

Plaintiffs’ Motion stresses the irreparable harm they will allegedly suffer from potentially

losing a pro rata share of the relief funds allocated to ANCs, but completely ignores the harm the

delay arising from Plaintiffs’ lawsuit has already imposed and will continue to impose on ANCs

and the Alaska Native communities they serve—a substantial portion of whom would receive little

to no benefit from this relief program if it were limited to federally recognized tribes. Plaintiffs

state, without any authority or acknowledgment of the record in this case, that “[a] delay in the

potential receipt of these funds by ANCs would not result in any irreparable harm.” Dkt. 99 at 15.

That is an entirely unsupportable and counterfactual contention.

1
Case 1:20-cv-01002-APM Document 105 Filed 07/01/20 Page 3 of 6

Not only have ANCs suffered irreparable harm and will continue to suffer irreparable harm,

the balance of the equities leans heavily in their favor. All of the Plaintiff tribes have already

received substantial Title V relief funds and have been able to use those funds to address health

and economic harms arising from the COVID-19 crisis in their communities for the better part of

the last two months while this action has been pending. In contrast, as a direct result of Plaintiffs’

lawsuits in this consolidated action, no ANC has received a single dollar of the critical relief fund

that Congress intended for them to receive and that the U.S. Department of the Treasury was

prepared to distribute on or before April 26, 2020. See 42 U.S.C. §801(b)(1). Plaintiffs have now

had a chance to fully litigate their challenge to ANCs’ eligibility and the delay resulting from

Plaintiffs’ challenge has already deprived ANCs of critical funds, which has resulted in significant

harm to the Alaska Natives communities that they serve. Continued delay will only exacerbate

that harm.

As outlined in the attached declaration of Ahtna’s chairman, Ahtna—like the other

ANCs—intends to use the funds to directly assist the Alaska Native communities it serves. See

Exhibit A, June 30, 2020 Declaration of Ken Johns. That direct assistance includes building new

storage facilities to stock essential supplies for the villages in the Ahtna region such as personal

protective equipment, cleaning supplies, and food staples such as flour, yeast, and meat. Id. at ¶

4. It also involves “provid[ing] emergency housing and sanitation in villages,” repairs to single

family homes “to provide a safe and sanitary places to quarantine,” and “converting a multi-use

facility into a shelter that will contain a washeteria, and showers, with temporary beds for

emergency medical treatment.” Id. at ¶ 5. Ahtna plans to use the Title V Funds—which it

originally anticipated receiving in late April or early May—to fund these projects. Id. at ¶ 6. And

2
Case 1:20-cv-01002-APM Document 105 Filed 07/01/20 Page 4 of 6

the need to start them has become even more urgent given the possibility of increased COVID-19

infections in the fall and winter. Id. at ¶¶ 3-7.

Despite the record in this case, Plaintiffs suggest there is no harm to ANCs because they

have business revenues and, thus, should not be entitled to any relief funds to support their Alaska

Native communities. Motion at 15 (“To the extent these corporations may be responding to the

pandemic in their communities, they may draw upon the billions of dollars of corporate funds

available to them in the same way that many private corporations are doing throughout the United

States.”). But Plaintiff Tribes themselves also have billions of dollars in business revenues and no

defendant has suggested that fact should impact their eligibility or need for relief funds. For

example, in 2018, Indian gaming generated over $33.7 billion in revenue for the lower-48 tribes.1

Tribes in the Pacific Northwest alone generated over $3.6 billion in revenue in 2018.2 Those

significant gaming revenues have allowed Plaintiff Chehalis Tribe to spend approximately $40

million expanding a casino or Plaintiff Tulalip Tribes to spend $100 million.3 And unlike the

lower-48 tribes, ANCs are required to share 70 percent of the net revenue from timber and mineral

resources developed on their lands with Alaska Natives from other regions. 43 U.S.C.A. §1606(i).

That has resulted in over $2 billion being shared amongst the different Alaska Native regions by

ANCs. Aaron M. Schutt, ANCSA Section 7(I): $ 40 Million Per Word and Counting, 33 Alaska

L. Rev. 229, 230 (2016).

1
See National Indian Gaming Commission, “2018 Indian Gaming Revenues of $33.7 billion Show a 4.1%
Increase,” available at https://www.nigc.gov/news/detail/2018-indian-gaming-revenues-of-33.7-billion-show-a-4.1-
increase (accessed July 1, 2020).
2
See National Indian Gaming Commission, Chart of FY17-FY18 Gaming Revenues by Region, available at
https://www.nigc.gov/images/uploads/2018GGRGamingRevenuesbyRegionFINAL_Charts_3.pdf (accessed July 1,
2020).
3
See Indianz.com, “Chehalis Tribe to start work on $40M expansion of gaming facility,” available at
https://www.indianz.com/IndianGaming/2015/01/23/chehalis-tribe-to-start-work-o.asp (access July 1, 2020);
Bizjournals.com, “Tulalip Tribes plan new $100 million casino,” available at
https://www.bizjournals.com/seattle/news/2017/09/15/tulalip-tribes-plan-new-100-million-casino.html

3
Case 1:20-cv-01002-APM Document 105 Filed 07/01/20 Page 5 of 6

Although it should already be clear, the harm suffered by ANCs and their Alaska Native

communities to date – and that will continue to be suffered as a result of a delay in Treasury’s

distribution of Title V funds allocated to ANCs – is substantial. That harm weighs against granting

Plaintiffs’ Motion. Moreover, as outlined in Calista’s opposition, while this Court is empowered

to grant an injunction pending appeal it cannot dictate any briefing schedule before the U.S. Court

of Appeals. Thus, the Court should deny Plaintiffs’ Motion and let the D.C. Circuit consider their

request since it is best positioned to mitigate any further delay and minimize the additional harm

to the ANCs.

CONCLUSION

For all the foregoing reasons, Ahtna respectfully requests that the Court deny Plaintiffs’

Motion.

Dated: July 1, 2020 Respectfully submitted,

/s/ Michael J. O’Leary
Michael J. O’Leary, DC Bar No. 1014610
HOLLAND & HART LLP
901 K Street NW, Suite 850
Washington, D.C., 20001
(202) 654-6922
mjoleary@hollandhart.com

Jonathan Katchen (admitted pro hac vice)
HOLLAND & HART LLP
1029 W.3rd Avenue, Suite 550
Anchorage, AK 99501
(907) 865-2606
jwkatchen@hollandhart.com

4
Case 1:20-cv-01002-APM Document 105 Filed 07/01/20 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was electronically filed with
the Clerk of the Court using the CM/ECF system, which will send notification of such filing to
all counsel of record.
/s/ Michael J. O’Leary
Michael J. O’Leary

File and source

File: 105-response-to-motion.pdf
Size: 146,974 bytes
SHA-256: 4463e1af72ccba9180690acaab8a768366fbab96918535a28137a9d07a26f57c
Our copy: 105-response-to-motion.pdf
Original: storage.courtlistener.com