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The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL GRONDAL, a Washington No. 21-35507
resident; MILL BAY MEMBERS
ASSOCIATION, INC., a Washington D.C. No.
non-profit corporation, 2:09-cv-00018-
Plaintiffs-Appellees, RMP
v.
OPINION
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF THE INTERIOR;
BUREAU OF INDIAN AFFAIRS;
CONFEDERATED TRIBES OF THE
COLVILLE RESERVATION,
Defendants-Appellees,
v.
WAPATO HERITAGE LLC,
Defendant-Appellant,
and
GARY REYES; FRANCIS ABRAHAM;
PAUL G. WAPATO, JR.; KATHLEEN
DICK; DEBORAH BACKWELL;
CATHERINE GARRISON; MARY JO
GARRISON; ENID T. WIPPEL;
LEONARD WAPATO; ANNIE WAPATO;
JUDY ZUNIE; JEFFREY M. CONDON;
2 GRONDAL V. UNITED STATES
VIVIAN PIERRE; SONIA W.
VANWOERKOM; ARTHUR DICK;
HANNAH RAE DICK; FRANCIS J.
REYES; LYNN K. BENSON; JAMES
ABRAHAM; RANDY MARCELLAY;
PAUL G. WAPATO, JR.; CATHERINE L.
GARRISON; MAUREEN M.
MARCELLAY; LEONARD M. WAPATO;
MIKE MARCELLAY; LINDA SAINT;
STEPHEN WAPATO; MARLENE
MARCELLAY; DWANE DICK; GABE
MARCELLAY; TRAVIS E. DICK;
HANNAH DICK; JACQUELINE L.
WAPATO; DARLENE MARCELLAY-
HYLAND; ENID T. MARCHAND;
LYDIA A. ARNEECHER; GABRIEL
MARCELLAY; MIKE PALMER;
SANDRA COVINGTON,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted May 18, 2022
Seattle, Washington
Filed June 13, 2022
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Gould
GRONDAL V. UNITED STATES 3
SUMMARY *
Tribal Matters
In a series of appeals concerning a business lease which
Defendant-Appellant Wapato Heritage, LLC, once held on
waterfront land within the Colville Indian Reservation in
Washington State, the panel affirmed (1) the district court’s
dismissal of Wapato Heritage cross-claims against the
Confederated Tribes of the Colville Reservation and the
Bureau of Indian Affairs; and (2) the district court’s denial
of Wapato Heritage’s motion to intervene in a trespass
damages trial between the Bureau of Indian Affairs and other
parties.
The parcel of land is known as Moses Allotment 8 (MA-
8) on Lake Chelan. Wapato Heritage accused the individual
beneficial owners of this land – the Confederated Tribes of
the Colville Reservation (the “Tribes”) and the Bureau of
Indian Affairs (“BIA”) – of misconduct relating to the
business lease. This court previously concluded that Wapato
Heritage’s business lease expired in 2009, and the land at
issue was still Indian land held in trust by the United States.
The district court dismissed Wapato Heritage’s cross
claims against the Tribes and the BIA because of tribal
sovereign immunity, lack of subject matter-jurisdiction, and
failure to state a claim.
The panel first rejected Wapato Heritage’s contention
that the Tribes waived their tribal sovereign immunity by
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 GRONDAL V. UNITED STATES
generally participating in this case. The instances where
tribal participation in litigation will constitute a waiver of
tribal sovereign immunity must be viewed as very limited
exceptions to the general rule that preserves tribal sovereign
immunity absent an unequivocal expression of waiver in
clear terms. Here, the Tribes did not waive their sovereign
immunity to Wapato Heritage’s cross-claims as to the 2009
and 2014 replacement leases. The Tribes invoked their
immunity from suit in two Fed. R. Civ. P. 12(b)(1) motions
to dismiss Wapato Heritage’s cross-claims for lack of
jurisdiction, which were granted. The Tribes retained their
sovereign immunity to the cross-claims, and the district
court did not need to rule on the claims’ merits.
Second, Wapato Heritage contended that its cross-claims
against the BIA were erroneously dismissed for lack of
subject-matter jurisdiction and failure to state a claim. The
panel affirmed the district court’s conclusions and held to the
extent that Wapato Heritage was seeking to recover money
damages from the United States, the district court lacked
subject-matter jurisdiction to entertain the relevant cross-
claims under the Tucker Act and the Little Tucker Act.
Although the cross-claims could also be construed as
requests to compel agency action, Wapato Heritage failed to
state a claim for a writ of mandamus. Dismissal under Fed.
R. Civ. P. 12(b)(6) therefore was appropriate and there was
no reason to transfer the cross-claims to the Court of Federal
Claims.
Third, Wapato Heritage contended that this appeal did
not relate to Indian Trust land. The panel rejected this
contention because this court recently concluded that MA-8
was still Indian allotment land held in trust by the BIA. See
Grondal v. United States, 21 F. 4th 1140, 1145 (9th Cir.
2021).
GRONDAL V. UNITED STATES 5
Finally, the panel held that the district court properly
denied Wapato Heritage’s motion to intervene in a trespass
damages trial between Paul Grondal, Mill Bay RV Park, and
the BIA. The parties agreed that this was a Fed. R. Civ. P.
24(a)(2) motion to intervene as a matter of right. The panel
held that the criteria for Rule 24(a)(2) were not met here. As
a threshold matter, Wapato Heritage lacked intervenor
standing because its argument for intervention was based on
Mill Bay’s alleged threats to sue Wapato Heritage for
indemnification of trespass damages awarded against Mill
Bay. There was no evidence in the record, however, that any
such lawsuit had been filed by Mill Bay, and conjectural or
hypothetical injuries cannot create Article III standing. In
addition, Wapato Heritage faced no direct liability in this
trespass damages trial and was not bound by the judgment
because it was excluded from those proceedings. And Mill
Bay adequately represented Wapato Heritage’s interests
because they had the same goal of minimizing the trespass
damages awarded. The panel concluded that Wapato
Heritage had not set out any legitimate ground for vacating
the verdict entered in the trespass damages bench trial.
COUNSEL
Nathan Arnold (argued), Bruce Johnston, and Emanuel
Jacobowitz, Arnold & Jacobowitz PLLC, Seattle,
Washington; Tyler D. Hotchkiss and Dale M. Foreman,
Foreman Hotchkiss Bauscher & Zimmerman PLLC,
Wenatchee, Washington; for Defendant-Appellant.
John L. Smeltzer (argued), Attorney; Todd Kim, Assistant
Attorney General; Environment & Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Vanesaa R. Waldref, United States Attorney; Joseph
6 GRONDAL V. UNITED STATES
P. Derrig, Assistant United States Attorney; United States
Attorney’s Office, Spokane, Washington; for Defendants-
Appellees United States of America, U.S. Department of the
Interior, and Bureau of Indian Affairs.
Anna E. Brady (argued), Brian W. Chestnut, and Brian C.
Gruber, Ziontz Chestnut, Seattle, Washington, for
Defendants-Appellees Confederated Tribes of the Colville
Reservation.
OPINION
GOULD, Circuit Judge:
This is the latest in a series of appeals concerning a
business lease Defendant-Appellant Wapato Heritage, LLC,
once held on waterfront land within the Colville Indian
Reservation in Washington State. Wapato Heritage accuses
the individual beneficial owners of this land, the
Confederated Tribes of the Colville Reservation (the Tribes),
and the United States, specifically the Bureau of Indian
Affairs (BIA), of misconduct relating to this business lease.
We have previously concluded that Wapato Heritage’s
business lease expired in 2009 and the land at issue is still
Indian land held in trust by the United States. This appeal is
from the district court’s dismissal of Wapato Heritage’s
cross-claims against the Tribes and the BIA under Federal
Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6).
Wapato Heritage makes four challenges to these dismissals.
First, it argues that the district court misapplied tribal
sovereign immunity to cross-claims asserted against the
Tribes. Second, it contends that the district court erred in
dismissing Wapato Heritage’s cross-claims against the
United States. Third, it insists that this appeal does not relate
GRONDAL V. UNITED STATES 7
to Indian trust land. Finally, Wapato Heritage maintains that
it was wrongly excluded from a damages trial between other
parties. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I. FACTS AND PROCEDURAL HISTORY
This case involves a dispute about a parcel of Indian land
known as Moses Allotment 8 (MA-8) on Lake Chelan in
Washington State. “In the 1900s, the United States
originally issued title to this land to American Indian Wapato
John, a member of the Moses Band of the Columbia Tribe,
as an ‘allotment’ in trust.” Grondal v. United States,
21 F.4th 1140, 1145 (9th Cir. 2021). This trust initially
vested the legal title to MA-8 “in the United States, which
was to hold the land in trust for ten years to Wapato John’s
sole use and benefit,” and vested equitable title in Wapato
John. Id. But the “trust period for MA-8 has repeatedly been
extended . . . such that to this day the United States continues
to hold legal title to the land, in trust for Wapato John’s
heirs.” Id. at 1145.
Today, certain descendants of Wapato John (the
Landowners) and the Tribes own undivided beneficial
interests in MA-8, which are held in trust by the United
States and managed by the BIA. Wapato Heritage, an
investment vehicle for the heirs of William Wapato Evans,
Jr., separately holds a partial life estate in MA-8, which will
expire when Evans’s last grandchild dies. Id. at 1145 & n.1.
Disputes between the Landowners, the Tribes, Wapato
Heritage, the BIA, and various MA-8 sublessors led to
several lawsuits in Washington State court and federal court,
including the litigation underlying this appeal.
MA-8 was unimproved until 1984. Id. That year, Evans
acquired a twenty-five-year lease on MA-8 (the Master
8 GRONDAL V. UNITED STATES
Lease) to build a recreational vehicle park (the Mill Bay RV
Park) with Landowner and BIA approval. Under the lease
terms, Evans had to pay the Landowners the greater of:
(1) $12,000 in annual base rent, $1 per member in monthly
ground rent, 7.5 percent of cash receipts, and 3.5 percent of
retail sales; or (2) an alternative minimum rent. The Master
Lease gave Evans the option to extend the term for another
twenty-five years, or through 2034, by giving written notice
to the Landowners and BIA up to twelve months before the
end of the initial lease term. It also allowed Evans to
sublease MA-8 with permission from the BIA.
Shortly after signing the Master Lease, Evans subleased
most of MA-8 to the corporate predecessors of Wapato
Heritage, developed the Mill Bay RV Park, and sold Mill
Bay RV Park memberships that ostensibly gave buyers the
right to use the property until 2034. Evans and the Tribes
later executed the Casino Sublease, which assigned the rest
of MA-8 to the Colville Tribal Enterprise Corporation
(CTEC) for the operation of a tribal casino. The Casino
Sublease was subject to the Master Lease, ran through 2034,
and required the Tribes to pay Evans $2,500 in annual base
rent plus six percent of retail sales made from the subleased
premises during each year of the sublease term.
The Mill Bay RV Park was financially unsuccessful so,
in 2001, Evans told members that he would close the park.
Grondal, 21 F.4th at 1146. Two members, Paul Grondal and
the Mill Bay Members’ Association, Inc. (Mill Bay), sued
Evans in Washington State court to prevent closure of the
park. Evans died testate while this case was pending, and
his rights under the Master Lease passed to Wapato Heritage.
After mediation, the parties settled and signed the 2004
Settlement Agreement, which was subject to the Master
Lease and by its terms gave Grondal and Mill Bay the right
GRONDAL V. UNITED STATES 9
to use the Mill Bay RV Park until 2034. The BIA attended
the mediation but did not intervene as a party.
One year later, the BIA hired an outside firm called the
Sells Group to perform an accounting review as required by
the Master Lease and Casino Sublease. The Sells Group set
out its findings in a written report. This report indicates that
CTEC underpaid Evans by $866,248 between 1994 and
1998 due to bookkeeping errors relating to the Casino
Sublease. It also shows that accounting mistakes with regard
to the Master Lease caused Evans to overpay the
Landowners by $751,285 from 1994 to 2005. Per Wapato
Heritage, CTEC and the Landowners owe it $1,617,533.
Shortly thereafter, the Mill Bay RV Park was the subject
of a federal lawsuit concerning the Master Lease. In 1985,
just one year after Evans signed the Master Lease, he mailed
the BIA a letter seeking to exercise his option to extend the
Master Lease for twenty-five years through 2034. For the
next twenty-two years, the Landowners and the BIA
operated under the assumption that this 1985 letter was
sufficient to trigger Evans’s option to renew the Master
Lease. Mill Bay incurred certain financial commitments
based on this unspoken understanding. Grondal, 21 F.4th at
1147.
The BIA later came to believe that Evans’s 1985 letter
was insufficient to exercise his option to extend the Master
Lease because it was not transmitted to the Landowners as
required by the Master Lease. In November 2007, the BIA
sent Wapato Heritage a letter stating that Evans’s 1985 letter
did not renew the Master Lease. Upon receipt of this BIA
letter, Wapato Heritage still had two months to validly
extend the Master Lease by notifying the Landowners in
writing. But Wapato Heritage instead sent a response letter
to the BIA disputing its assessment of whether Evans’s 1985
10 GRONDAL V. UNITED STATES
letter had triggered his option to renew the Master Lease.
The ensuing litigation confirmed the BIA’s position that the
Master Lease expired in 2009. See Wapato Heritage, LLC
v. United States, 637 F.3d 1033, 1040 (9th Cir. 2009).
After the Master Lease expired, the Landowners granted
the Tribes a short-term Replacement Lease on the MA-8
casino site in 2009. Five years later, the Colville Tribal
Federal Corporation (CTFC) obtained from the Landowners
a new Replacement Lease that rents all of MA-8, including
its gas station and waterfront, to CTFC for twenty-five years
in exchange for $100,000 in annual base rent plus 4.5 percent
of gross casino gaming revenue. CTFC holds a unilateral
option to renew the 2014 Replacement Lease for twenty-five
years.
Grondal and Mill Bay contemporaneously responded to
our decision that the Master Lease expired in 2009 by
bringing a second federal lawsuit seeking a declaratory
judgment recognizing their right to use MA-8 through 2034.
The defendants included the beneficial owners of MA-8,
Wapato Heritage, and the BIA. The BIA filed a
counterclaim for ejectment of Grondal and Mill Bay from
MA-8 and trespass damages. In January 2010, the district
court denied a request by Grondal and Mill Bay for
continued access to MA-8 and rejected as potentially
premature the BIA’s motion for summary judgment on
ejectment and trespass damages.
In so doing, the district court found that the BIA lacks
contractual authority to bring a trespass counterclaim
because it is not a party to the Master Lease but can litigate
such a counterclaim under its authority as trustee for MA-8.
This alerted Wapato Heritage that the BIA’s ability to sue
Grondal, Mill Bay and Wapato Heritage for trespass depends
on its status as holder of legal title to MA-8. Wapato
GRONDAL V. UNITED STATES 11
Heritage then brought a cross-complaint challenging the
BIA’s standing on the basis that MA-8 is no longer Indian
trust land. This cross-complaint requested a declaration that
MA-8 is not held in trust, quiet title of MA-8, and partition
of MA-8. Wapato Heritage also asserted cross-claims
against the Landowners, the Tribes, and United States vis-à-
vis the BIA for: (1) cancelation of the 2009 lease of MA-8;
(2) reinstatement of the Master Lease; (3) ejection of the
Tribes from MA-8; and (4) an order compelling the BIA to
recoup sums owed to Wapato Heritage. Concerning
ejection, Wapato Heritage alternatively requested payment
of back rent consistent with the Casino Sublease as amended
in 1994. The BIA responded by pleading a cross-claim
against Wapato Heritage on behalf of the Landowners for
rent due on casino revenue for January and February 2009.
The BIA eventually renewed its motion for summary
judgment on ejectment of Grondal and Mill Bay and trespass
damages, which the district court addressed in a July 2020
order. The district court concluded that the BIA had
standing to pursue this action against Grondal and Mill Bay
because the United States holds MA-8 in trust. The district
court also found that Grondal and Mill Bay were trespassing
on MA-8 and ordered ejectment, leaving the issue of
damages for trial. This July 2020 order left pending Wapato
Heritage’s cross-claims but resolved the liability aspect of
all claims stated against Grondal and Mill Bay, so the district
court entered a Rule 54(b) final judgment to facilitate their
immediate appeal. Mill Bay appealed and Wapato Heritage
joined this appeal because the trust status of MA-8 is
dispositive of some of its cross-claims. We held that MA-8
remains Indian allotment land held in trust by the United
States through the BIA. Grondal, 21 F.4th at 1145.
12 GRONDAL V. UNITED STATES
While that appeal was pending, the BIA moved to
dismiss Wapato Heritage’s cross-claims. This motion to
dismiss supplemented the motions to dismiss filed by the
Tribes in 2011 and 2012. Wapato Heritage moved for partial
summary judgment or transfer of its cross-claims to the
Court of Federal Claims, and to compel certain discovery.
On January 19, 2021, the district court dismissed Wapato
Heritage’s cross-claims with prejudice. The BIA moved to
voluntarily dismiss with prejudice its cross-claim against
Wapato Heritage. Anticipating its termination from this
case, Wapato Heritage asked the district court for permission
to participate in the forthcoming trespass damages trial
between Grondal, Mill Bay, and the BIA under the theory
that Mill Bay would seek indemnification from Wapato
Heritage. On February 2, 2021, the district court granted the
BIA’s motion to voluntarily dismiss with prejudice its cross-
claim against Wapato Heritage. The district court also
denied for lack of standing Wapato Heritage’s request to
participate in the trespass damages trial pitting Grondal and
Mill Bay against the BIA and denied as moot Wapato
Heritage’s motion to compel discovery. This order
terminated Wapato Heritage from the proceedings, so it
could not participate in the ensuing trespass damages trial.
The district court then held a bench trial concerning
whether the BIA could recover trespass damages from
Grondal and Mill Bay. After weighing the evidence, the
district court awarded the BIA $1,411,702 in trespass
damages. But the district court credited Mill Bay’s position
that pre-judgment interest was improper because delays in
the case were not attributable to any party. The district court
further found that Mill Bay’s trespass was caused by Wapato
Heritage’s misrepresentations that the Mill Bay RV Park
memberships were valid through 2034 and flowed from the
failure to renew the Master Lease by Evans and later by
GRONDAL V. UNITED STATES 13
Wapato Heritage. A final judgment followed and Wapato
Heritage timely appealed.
II. STANDARDS OF REVIEW
Wapato Heritage’s cross-claims against the Tribes and
BIA were dismissed because of tribal sovereign immunity,
lack of subject-matter jurisdiction, and failure to state a
claim. We review such decisions de novo. See Jamul Action
Comm. v. Simermeyer, 974 F.3d 984, 991 (9th Cir. 2020)
(sovereign immunity); Muckleshoot Indian Tribe v. Tulalip
Tribes, 944 F.3d 1179, 1183 (9th Cir. 2019) (subject-matter
jurisdiction); Pakootas v. Teck Cominco Metals, 830 F.3d
975, 980 (9th Cir. 2016) (Rule 12(b)(6)). We can affirm
these rulings on any basis supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008);
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
Wapato Heritage’s request to participate in the trespass
damages trial between Grondal, Mill Bay, and the BIA was
a motion for intervention as a matter of right under Federal
Rule of Civil Procedure 24(a)(2). We review de novo district
court rulings on such motions. Cooper v. Newsom, 13 F.4th
857, 864 (9th Cir. 2021).
III. ANALYSIS
Wapato Heritage sets out three grounds for revival of its
cross-claims against the Tribes and the BIA. First, Wapato
Heritage argues that the Tribes waived their sovereign
immunity so the district court should have reached the merits
of Wapato Heritage’s cross-claims against the Tribes.
Second, Wapato Heritage contends that its cross-claims
against the BIA were erroneously dismissed for lack of
subject-matter jurisdiction and failure to state a claim.
Third, Wapato Heritage insists that MA-8 is not Indian trust
land. Wapato Heritage finally maintains that it should have
14 GRONDAL V. UNITED STATES
been allowed to participate in the trespass damages trial
between Grondal, Mill Bay, and the BIA. We discuss these
four arguments in turn below.
A. Tribal Sovereign Immunity
“Indian tribes remain separate sovereigns pre-existing
the Constitution, and, absent congressional action, retain
their historic sovereign authority” to manage their affairs.
Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 907 (9th Cir.
2021) (cleaned up). A fundamental “attribute of tribal
sovereign immunity is immunity from suit.” 1 Id. Lawsuits
“against Indian tribes are thus barred by sovereign immunity
absent a clear waiver by the tribe or congressional
abrogation.” Id. Critically, this “[t]ribal sovereign
immunity extends to both the governmental and commercial
activities of a tribe, whether undertaken on or off its
reservation,” Simermeyer, 974 F.3d at 991. Our circuit
precedent has held that, by extension, those “tribal
1
For purposes of this case and the issues it raises, we assume that
the Tribes have a fulsome and complete sovereign immunity, as that is
how the issues were presented by the Tribes claiming full immunity and
Wapato Heritage claiming that sovereign immunity was waived.
However, when assessing sovereign immunity in other cases, it should
be noted that sovereign immunity may have a limited scope in view of
Chief Justice Marshall’s characterization of Indian tribes as “domestic
dependent nations.” See Okla. Tax Comm’n v. Citizen Band Potawatomi
Tribe of Okla., 498 U.S. 505, 509 (1991) (quoting Cherokee Nation v.
Georgia, 30 U.S. (5 Pet.) 1, 18 (1831)). That characterization has had
echoes over generations in our caselaw. See, e.g., Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 789 (2014) (noting that “the qualified nature
of Indian sovereignty . . . plac[es] a tribe’s immunity, like its other
governmental powers and attributes, in Congress’s hands”). Apart from
waiver, none of the exceptions to tribal sovereign immunity have been
invoked in this case, and we have no occasion to address them here. See
id.
GRONDAL V. UNITED STATES 15
corporations acting as an arm of the tribe enjoy the same
sovereign immunity granted to a tribe itself.” Dine Citizens
Against Ruining Our Env’t v. Bureau of Indian Affairs,
932 F.3d 843, 856 (9th Cir. 2019). In addition, there “is a
strong presumption against waiver of tribal sovereign
immunity,” and any congressional abrogation of tribal
sovereign immunity must be unmistakably clear. Deschutes
River All. v. Portland Gen. Elec. Co., 1 F.4th 1153, 1159,
1162 (9th Cir. 2021). Although tribal sovereign immunity is
a quasi-jurisdictional affirmative defense that is forfeited if
not asserted by a tribe, federal courts lack subject-matter
jurisdiction “when a defendant to a lawsuit timely and
successfully invokes tribal sovereign immunity.” Marston,
17 F.4th at 908 (collecting cases).
Per Wapato Heritage, the Tribes waived their tribal
sovereign immunity by generally participating in this case
and the district court should have canceled the Replacement
Lease for charging below-market rent on MA-8. See
Quinault Indian Nation v. Pearson for Estate of Comenout,
868 F.3d 1093, 1097–98 (9th Cir. 2017) (“In rare instances,
a tribe’s participation in a lawsuit can [waive tribal sovereign
immunity] for limited purposes. The scope of the waiver
depends on the particular circumstances, including the
tribe’s actions and statements as well as the nature and
bounds of the dispute that the tribe put before the court.”
(cleaned up)). We reject Wapato Heritage’s contention.
It is the general rule under our precedents that, “[b]y
consenting to the court’s jurisdiction to determine its own
claims . . . , a tribe does not automatically waive its
immunity as to claims that could be asserted against it, even
as to related matters arising from the same set of underlying
facts.” Bodi v. Shingle Springs Band of Miwok Indians,
832 F.3d 1011, 1017 (9th Cir. 2016) (cleaned up). Stated
16 GRONDAL V. UNITED STATES
another way, “a tribe’s participation in litigation does not
constitute consent to counterclaims asserted by defendants
in those actions.” McClendon v. United States, 885 F.2d
627, 630 (9th Cir. 1989). This doctrine “extends to
compulsory counterclaims” against a tribe. Quinault Indian
Nation, 868 F.3d at 1097. Nor does a tribe’s invocation of
tribal sovereign immunity in a motion to dismiss for lack of
jurisdiction waive that very defense to the relevant claims.
See Bodi, 832 F.3d at 1018. This makes sense because “a
waiver of tribal sovereign immunity cannot be implied but
must be unequivocally expressed . . . in clear” terms. Id.
at 1016 (cleaned up); see also Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 56 (1978); Quinault Indian Nation,
868 F.3d at 1097. The instances where tribal participation
in litigation will constitute a waiver of tribal sovereign
immunity must be viewed as very limited exceptions to the
general rule that preserves tribal sovereign immunity absent
an unequivocal expression of waiver in clear terms.
Applying these principles, the Tribes did not waive their
sovereign immunity to Wapato Heritage’s cross-claims as to
the 2009 and 2014 Replacement Leases. Wapato Heritage
went on the offensive by asserting these cross-claims against
the Tribes in answering the complaint filed by Grondal and
Mill Bay. And the Tribes invoked their immunity from suit
in two Rule 12(b)(1) motions to dismiss Wapato Heritage’s
cross-claims for lack of jurisdiction, which were granted.
Considering this participation of the Tribes in the case, they
retained their sovereign immunity to Wapato Heritage’s
cross-claims and the district court did not need to rule on the
merits of these cross-claims. See Quinault Indian Nation,
868 F.3d at 1097–98 (explaining that the scope of a tribal
sovereign immunity waiver is restricted by “the nature and
bounds of the dispute that the tribe put before the court”);
Bodi, 832 F.3d at 1016–18 (holding that a tribe did not waive
GRONDAL V. UNITED STATES 17
its tribal sovereign immunity to certain claims by removing
a lawsuit to federal court then moving to dismiss those
claims for lack of subject-matter jurisdiction).
Wapato Heritage urges a contrary conclusion based on
United States v. Oregon, 657 F.2d 1009, 1014 (9th Cir.
1989). But that case is distinguishable. There, the Yakima
Tribe intervened in a civil “action to apportion a fishery
among competing sovereigns,” then agreed to a settlement
vesting “continuing jurisdiction in the district court over
future disputes.” Quinault Indian Nation, 868 F.3d at 1099.
As a result, the Yakima Tribe, by its own clear and
unequivocal statement, consented to the submission of
fishery issues to the district court and waived its sovereign
immunity to related court orders. Id. The other case on
which Wapato Heritage relies, United States v. James,
980 F.2d 1314, 1320 (9th Cir. 1992), is distinguishable on
the same express waiver basis.
In the alternative, Wapato Heritage contends that its
challenges to the 2009 and 2014 leases are not moot. This is
irrelevant to whether tribal sovereign immunity barred cross-
claims against the Tribes. See Bodi, 832 F.3d at 1018. We
also deny Wapato Heritage’s request to cancel these leases
by a judgment against the BIA. Wapato Heritage’s request
to void the 2009 lease on procedural grounds became moot
upon issuance of the 2014 lease, which is not mentioned in
the cross-complaint. See Bayer v. Neiman Marcus Grp.,
861 F.3d 853, 862 (9th Cir. 2017) (clarifying that issues are
rendered moot if intervening events prevent courts from
granting relief). And Wapato Heritage presently disputes
these leases on a basis not alleged in the cross-complaint, the
charging of below-market rent on MA-8. This ground for
relief is forfeited. See Etemadi v. Garland, 12 F.4th 1013,
1026 (9th Cir. 2021) (“[F]orfeiture is the failure to make a
18 GRONDAL V. UNITED STATES
timely assertion of a right.”); In re Mercury Interactive
Corp. Secs. Litig., 618 F.3d 988, 992 (9th Cir. 2010).
Wapato Heritage also did not exhaust its administrative
remedies for the 2014 lease because it never filed an agency
appeal from the BIA’s approval of this lease. See 25 C.F.R.
§§ 2.4, 162.025; Barron v. Ashcroft, 358 F.3d 674, 677 (9th
Cir. 2004) (“It is a well-known axiom of administrative law
that if a [party] wishes to preserve an issue for appeal, [it]
must first raise it in the proper administrative forum.”
(cleaned up)). For these reasons, we reject Wapato
Heritage’s arguments regarding mootness.
Wapato Heritage tries to sidestep these problems by
insisting the district court should have allowed its attack on
the 2009 lease to proceed with regard to the 2014 lease. But
no error exists here because Wapato Heritage never moved
to amend its cross-complaint to dispute issuance of the 2014
lease or its financial terms. See Fed. R. Civ. P. 15(a)(2);
Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1218
(9th Cir. 2012) (“Plaintiffs cannot prevail on an argument
that the district court should have sua sponte granted a
motion they never filed.”); Alaska v. United States, 201 F.3d
1154, 1163 (9th Cir. 2000) (“Where a party never asked for
permission, its argument that the district court should have
permitted is without force.” (quotation marks omitted)).
B. Wapato Heritage’s Cross-Claims Against the BIA
A two-part analysis informed the district court’s ruling
on Wapato Heritage’s cross-claims against the BIA. First,
to the extent that Wapato Heritage was seeking to recover
money damages from the United States, the district court
lacked subject-matter jurisdiction to entertain the relevant
cross-claims. Second, Wapato Heritage did not state any
colorable cross-claims against the BIA, so dismissal under
Rule 12(b)(6) was proper. There was no reason to transfer
GRONDAL V. UNITED STATES 19
these cross-claims to the Court of Federal Claims. Upon our
review of the applicable law and the record, we affirm these
conclusions and reject the contrary arguments made by
Wapato Heritage.
i.
Under the Tucker Act, the Court of Federal Claims has
original jurisdiction to “render judgment upon any claim
against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.”
28 U.S.C. § 1491(a)(1). And the Little Tucker Act gives the
district courts concurrent jurisdiction over cases not
exceeding $10,000. 28 U.S.C. § 1346(a)(2). Read in
conjunction, these two statutes “provide for jurisdiction
solely in the Court of Federal Claims for Tucker Act claims
seeking more than $10,000 in damages” against the United
States. McGuire v. United States, 550 F.3d 903, 910–11 (9th
Cir. 2008).
The Tucker Act’s counterpart for Native American tribes
is the Indian Tucker Act, 28 U.S.C. § 1505. It extends the
original jurisdiction of the Court of Federal Claims to claims
of identifiable Native American groups in the United States
“whenever such claim is one arising under the Constitution,
laws, or treaties of the United States, or Executive orders of
the President, or is one which otherwise would be cognizable
in the Court of Federal Claims if the claimant were not an
Indian tribe, band, or group.” Id.; see Navajo Nation v. U.S.
Dep’t of the Interior, 26 F.4th 794, 809 (9th Cir. 2022);
Skokomish Indian Tribe v. United States, 410 F.3d 506, 511
(9th Cir. 2005) (applying the Indian Tucker Act).
20 GRONDAL V. UNITED STATES
Wapato Heritage’s cross-complaint requested entry of a
court order requiring the BIA to collect the $866,248 in rent
CTEC allegedly owed Wapato Heritage under the Casino
Sublease. This cross-complaint also sought a money
judgment to recoup $751,285 in overpayments Evans
purportedly made to the Landowners under the Master
Lease. To the extent these cross-claims requested money
damages from the United States, the district court lacked
subject-matter jurisdiction under the Tucker Act and Little
Tucker Act. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1);
McGuire, 550 F.3d at 910–11.
ii.
The above cross-claims can also be construed as requests
to compel agency action such that the Tucker Act and Little
Tucker Act are inapplicable. Wapato Heritage regardless
failed to state a claim against the BIA. The district court
properly dismissed Wapato Heritage’s cross-claims
concerning the United States and denied Wapato Heritage’s
motion to transfer these cross-claims to the Court of Federal
Claims.
Congress included in the Administrative Procedure Act
(APA) a waiver of the United States’ sovereign immunity to
suits involving claims “that an agency or an officer or
employee thereof acted or failed to act in an official
capacity” and “seeking relief other than monetary damages.”
5 U.S.C. § 702. It does not matter that Wapato Heritage
declined to assert an APA cause of action against the BIA.
The sovereign immunity waiver in Section 702 extends
beyond causes of action provided by the APA. See Navajo
Nation v. U.S. Dep’t of the Interior, 876 F.3d 1144, 1172
(9th Cir. 2017) (“[T]he second sentence of § 702 waives
sovereign immunity broadly for all causes of action that
meet its terms.”).
GRONDAL V. UNITED STATES 21
Apart from the possibility that money damages are at
issue, the government designates Wapato Heritage’s cross-
claims against the BIA as petitions for a writ of mandamus,
a point Wapato Heritage does not dispute. “Mandamus is an
extraordinary remedy and is available to compel a federal
official to perform a duty only if: (1) the individual’s claim
is clear and certain; (2) the official’s duty is
nondiscretionary, ministerial, and so plainly prescribed as to
be free from doubt; and (3) no other adequate remedy is
available.” Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir.
2003).
Wapato Heritage argues that its cross-claims against the
United States can be treated as a breach of contract action or
a lawsuit to remedy the BIA’s violation of a trust relationship
with Wapato Heritage. In addition, Wapato Heritage
advances a series of contentions that the United States has a
nondiscretionary duty to enforce the Casino Sublease and
Master Lease for Wapato Heritage. But Wapato Heritage’s
cross-complaint never alleges that no other adequate remedy
is available, and that omission precludes issuance of a writ
of mandamus against the BIA. Nor do Wapato Heritage’s
briefs on appeal explain why a writ of mandamus is the only
way to redress its injuries. Indeed, the opposite is true.
Regarding the Casino Sublease, Wapato Heritage and CTEC
agreed that any dispute relating to that contract could be
redressed in the Colville Tribal Court, and CTEC waived its
tribal sovereign immunity to such litigation. Wapato
Heritage can sue CTEC in tribal court for rent due under the
Casino Sublease. And Wapato Heritage never explains, in
its cross-complaint or otherwise, why it cannot recover
Evans’s overpayments to the Landowners under the Master
Lease by personally suing the Landowners for breach of
contract, conversion, unjust enrichment, or other causes of
action to recover funds. See Alhadeff v. Meridian on
22 GRONDAL V. UNITED STATES
Bainbridge Island, LLC, 220 P.3d 1214, 1223 (Wash. 2009)
(en banc) (defining the tort of conversion in Washington
State); Young v. Young, 191 P.3d 1258, 1262 (Wash. 2008)
(en banc) (reciting the elements of Washington State unjust
enrichment claims).
In this context, Wapato Heritage did not state a claim for
a writ of mandamus and dismissal under Rule 12(b)(6) was
appropriate. See In re Mersho, 6 F.4th 891, 897 (9th Cir.
2021) (“This court has the authority to issue a writ of
mandamus under the All Writs Act, 28 U.S.C. § 1651. A
writ is an extraordinary remedy and Petitioners bear the
burden of showing that their right to it is clear and
indisputable.” (cleaned up)). And Wapato Heritage never
identifies the factual allegations it would add to the
complaint to cure its failure to plead that no other remedy is
available. This omission of an element necessary for
mandamus relief validates the district court’s conclusion that
leave to amend or transfer of Wapato Heritage’s cross-
claims against the United States to the Court of Federal
Claims would be pointless. See Johnson v. Lucent Techs.,
Inc., 653 F.3d 1000, 1012 (9th Cir. 2011) (“[Plaintiff] failed
to alert the court as to what new facts [it] would have alleged.
We fail to see how [Plaintiff] could have amended [its]
pleadings to cure their deficiencies . . . . Leave to amend
would have therefore been futile.”). We affirm disposal of
Wapato Heritage’s cross-claims against the BIA on these
grounds. See Kildare, 325 F.3d at 1084.
C. The Trust Status of MA-8
Wapato Heritage appeals the district court’s dismissal of
its cross-claim that MA-8 is not held in trust by the United
States and its requests for ejectment of the Tribes, quiet title
to MA-8, and partition of MA-8. This part of Wapato
Heritage’s appeal must be rejected because we recently
GRONDAL V. UNITED STATES 23
concluded that MA-8 is still Indian allotment land held in
trust by the BIA. See Grondal, 21 F.4th at 1145 (“Th[e] trust
period for MA-8 has been repeatedly extended over the years
. . . such that to this day, the United States continues to hold
legal title to the land, in trust for Wapato John’s heirs.”). We
need go no further on this issue.
D. Wapato Heritage’s Rule 24(a)(2) Motion to
Intervene
Wapato Heritage maintains that the district court erred in
denying its motion to participate in the trespass damages trial
pitting Grondal and Mill Bay against the BIA. The parties
agree that this request was a Rule 24(a)(2) motion to
intervene as a matter of right. Under this rule, intervenors as
of right are any party who “claims an interest relating to the
property or transaction that is the subject of the action, and
is so situated that disposing of the action may, as a practical
matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that
interest.” Fed. R. Civ. P. 24(a)(2). These criteria are not met
here.
It is true that Wapato Heritage has an interest in MA-8
via its partial life estate in this Indian allotment land. See
Grondal, 21 F.4th at 1145 & n.1. But Wapato Heritage did
not satisfy the other requirements of Rule 24(a)(2). As a
threshold matter, Wapato Heritage lacks intervenor standing
because its argument for intervention is based on Mill Bay’s
alleged threats to sue Wapato Heritage for indemnification
of trespass damages awarded against Mill Bay. There is no
evidence in the record that any such lawsuit has been filed
by Mill Bay, and conjectural or hypothetical injuries cannot
create Article III standing. See Spokeo, Inc. v. Robins,
578 U.S. 330, 339 (2016) (“To establish injury in fact, a
plaintiff must show that he or she suffered an invasion of a
24 GRONDAL V. UNITED STATES
legally protected interest that is concrete and particularized
and actual or imminent, not conjectural or hypothetical.”
(cleaned up)). In addition, Wapato Heritage faced no direct
liability in this trespass damages trial and is not bound by the
judgment because it was excluded from those proceedings.
And Mill Bay adequately represented Wapato Heritage’s
interests because they had the same goal of minimizing the
trespass damages awarded. See Arakaki v. Cayetano,
324 F.3d 1078, 1086 (9th Cir. 2003) (“When an applicant for
intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation
arises.”). The district court properly denied intervention.
See id. (affirming denial of intervention as of right because
the movant did not overcome the presumption of adequate
representation by a party with parallel interests). We reject
Wapato Heritage’s assertions to the contrary and we will not
remand this case for further proceedings on trespass
damages.
Wapato Heritage urges the opposite conclusion by
suggesting that the district court’s denial of its motion to
intervene and the related motion to compel discovery
deprived Mill Bay of documents and expert testimony
relevant to trespass damages. This contention is unavailing.
Wapato Heritage was terminated as a party to this case when
the district court denied its motion to intervene, rendering its
motion to compel discovery moot. See Public Utils.
Comm’n of Cal. v. F.E.R.C., 100 F.3d 1451, 1458 (9th Cir.
1996) (clarifying that the question of mootness turns on
whether “there is a substantial controversy, between parties
having adverse legal interests”). And Wapato Heritage lacks
standing to litigate the disadvantages Mill Bay may have
incurred because the district court did not compel certain
discovery. See Warth v. Seldin, 422 U.S. 490, 499 (1975)
(emphasizing that a party “generally must assert his own
GRONDAL V. UNITED STATES 25
legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties”). Wapato
Heritage has not set out any legitimate ground on which we
could vacate the verdict entered in the trespass damages
bench trial below.
IV. CONCLUSION
For the above reasons, we affirm the dismissal of Wapato
Heritage’s cross-claims against the Tribes and the United
States, and the denial of Wapato Heritage’s motion to
intervene in the trespass damages trial between Grondal,
Mill Bay, and the BIA.
AFFIRMED.