# Petition — Susenkewa v. Kleppe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1435%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 903 ## Text IN THE MCAAEL RODAK, JR_CLERK | Supreme Court of the Rnited States OcToBER TERM, 1975 75-844 No. 75- EMERSON SUSENKEWA, ET AL., Petitioners, , 4 THomas S. Kiepps, Secretary of the Interior, ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Rosert 8. PELCYGER JoHN E, EcHoHAWK Native American Rights Fund 1506 Broadway Boulder, Colorado 80302 Counsel for Petitioners Pauses or Brrow S. Apams Punrrinc, Inc., Wasurveron, D. C. — = TABLE OF CONTENTS Page Ce S66 C655 ci so bb abs Obes cabks behets cae 2 ee ae eeeaseeecaee ke ate 2 QUESTIONS PRESENTED ......... csc ccccccccccccces - 38 SraTuTEs AND RULES INVOLVED ..........02cccccccees 3 i he ck tence s aeen’ 7 Bi, TE 05.0.6 iG kc tnccesanedeceneadst counted heavily against a finding of indispensability because ‘‘any rights [of the absent party] have been lost by his own inaction.”’ Provident Tradesmens Bank, supra, 390 U.S. at 114. Consequently, not only is the second factor present in this case, it strongly supports a find- ing of non-indispensability. Following the ‘ads of this Court in Provident Tradesmens Bank and the Advisory Committee’s Notes, several lower courts have given considerable weight to the possibility of intervention in deciding not to regard the absent party as indispensable. Nat- ural Resources Defense Council vy. Tennessee V alley Authority, 340 F. Supp. 400 {S.D.N.Y. 1971), rev’d on other grounds, 459 F.2d 255 (2d Cir. 1972); Smith v. American Federation of Musicians of U.S. & Can., 47 F.R.D. 152 (S.D.N.Y. 1969) and Owatonna Manufac- ** Quoted in 3A Moore’s Federal Practice § 19.01 [5.-4] [1974 Ed.], 39 F.R.D. 89 at 92 and 28 U.S.C. Rule 19 at pp. 104, 106-107 {1972 Ed.]}. 33 turing Co. v. Melroe Co., 301 F. Supp. 1296 (D. Minn. 1969). The failure of both lower courts even to con- sider the possibility of intervention is inexplicable. 2. The third factor. As this Court noted in Provident Tradesmens Bank, supra, Rule 19(b)’s third factor, ‘whether a judgment rendered in the person’s absence will be adequate,’’ is puzzling. ‘Clearly the plaintiff, who himself chose the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtain- able against them.”’ Provident Tradesmens Bank, supra, 390 U.S. at 111. Moreover, if a court cannot grant adequate relief with the parties before it, the action should be dismissed pursuant to Rule 12 or 56, not Rule 19, and there would be no occasion to reach the indispensable party issue. Bourdieu v. Pacific Western Ou Co., 299 U.S. 65 (1936). See Provident Trades- mens Bank, supra, 390 U.S. at 111, n. 7. For these reasons, this Court adopted an interpretation of Rule 19(b)’s third factor that is somewhat at variance with its literal language. [T] here remains the interest of the courts and the public in complete, consistent, and efficient settle- ment of controversies. We read the Rule’s third criterion, whether the judgment issued in the ab- sence of the nonjoined person will be ‘adequate,’ to refer to this public stake in settling disputes by wholes, whenever possible... . Provident Tradesmens Bank, supra, 390 U.S. at 111 (emphasis added). The court of appeals and the district court simply ignored this Court’s analysis of the third factor— ** Here, as both Littell v. Morton, supra, and Davis v. Morton, supra, demonstrate, a judgment setting aside the Secretary’s ap- proval of the Black Mesa lease is plainly sufficient from the plain- tiffs’ standpoint. 34 treating it for all intents and purposes as identical to the first. Had it asked the correct question, whether the plaintiffs had done everything possible to settle this dispute by wholes rather than in parts, it would surely have answered in the affirmative. The only thing standing in the way of having all of the parties to the Black Mesa lease and all those interested in its performance in the same court at the same time is the refusal of the Hopi Tribal Council to participate vol- untarily in this action. Surely that refusal should not be counted against the plaintiffs who have done every- thing within their power to bring the Tribal Council into court to account for its actions. If the court of appeals had done nothing other than to consult and apply this Court’s leading case inter- preting Rule 19(b), it would have found, at a mini- mum, that three of its four criteria (numbers 2, 3 and 4) clearly support a finding of non-indispensability. That surely would have been enough to tip the balance in favor of providing the Hopi plaintiffs their day in court. 3. The fourth and first factors. Rule 19(b)’s fourth factor, ‘‘whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder”’ has been regarded as the single most important consideration in its ‘‘equity and good con- science”’ test. Cf. Bourdieu v. Pacific Western Oil Co., 299 U.S. 65, 71 (1936).* Virtually without exception, *5**We refer to the rule established by these authorities because it illustrates the diligence with which courts of equity will seek a way to adjudicate the merits of a case in the absence of interested parties that cannot be brought in.’’ Accord: Stumpf v. Fidelity Gas Co., 294 F.2d 886, 891 (9th Cir. 1961) ; Rush & Halloran, Inc. v. Delaware Valley Financial Corp., 180 F. Supp. 63, 65-66 (E.D. Pa. 1960). 35 in all of the cases that have been dismissed for non- joinder since the 1966 Amendments to Rule 19 and this Court’s decision in Provident Tradesmens Bank & Trust Co. v. Patterson, supra, 390 U.S. 102, there was a finding that the plaintiff would have a remedy in another available forum. In such cases, ‘‘dismissal was really just a form of transfer of the action to a more appropriate forum.” Ferguson vy. Thomas, 430 F.2d 852, 860 (5th Cir. 1970), commenting on Broussard v. Columbia Gulf Transmission Co., 398 F.2d 885 (5th Cir. 1968). Conversely, in virtually all cases decided since 1966 in which courts have refused to regard the absent party as indispensable, the lack of an alternate remedy figured prominently. See, e.g., Bennie vy. Pastor, 393 F.2d 1 (10th Cir. 1968). When plaintiffs’ “‘right’’ to judicial review under the Administrative Procedure Act is coupled with the absence of an alternate forum, the ability of the Hopi Tribe to intervene in this litigation, and the active participation of the trustee acting in behalf of its beneficiary, we think it is abundantly clear that the lower courts erred in dismissing for nonjoinder. The lower courts also erred in their very superficial and mistaken analysis of the first factor, ‘‘to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties.”’ Any judgment rendered in this case would not take away any coal from the Hopi Tribe or preclude the Hopi Tribe from entering into a lease with defendant *6 See also Smith v. American Federation of Musicians of U.S. & Can., 47 F.R.D. 152 (S.D.N.Y. 1969) ; Gulf Ins. Co. vy. Lane, 53 F.R.D. 107 (W.D. Okla. 1971) ; Levin y. Mississippi River Corp., 289 F. Supp. 353 (S.D.N.Y. 1968) ; Young v. United Steelworkers of America, 49 F.R.D. 74 (E.D. Pa. 1969) ; and Owatonna Manu- facturing Co. v. Melroe Co., 301 F. Supp. 1296 (D. Minn. 1969). 36 Peabody or anyone else provided only that the proced- ures required by the Hopi Constitution are followed. In this respect this case is similar to, for example, Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972), enjoining the Department of the Interior from executing oil and gas leases for submerged government land pending compliance with applicable law, the National Environmental Policy Act of 1969 (NEPA), or Davis v. Morton, supra, 469 F.2d 593 (10th Cir. 1972), setting aside and enjoining the Secretary’s approval of a major development lease of Indian lands pending compliance with applicable law, also NEPA, or Wilderness Society v. Morton, 479 F.2d 842 (1973) (en banc), cert. denied, 411 U.S. 917 (1973), enjoining the Secretary of the Interior from granting a right of way for the trans-Alaska oil pipe- line which exceeded the width limitations of the Mineral Leasing Act of 1920, 30 U.S.C. § 185. These judgments do not take away the Indians’ or the government’s land or the anticipated benefits that flow from leasing the land or granting the right of way. They simply require compliance with applicable law before the lease or grant can be given effect. In the case of the Alaska pipeline, the defect could only be cured by Act of Congress. It was. Public Law 93-153, 87 Stat. 576. Properly posed, the first factor requires analyzing and answering the following question: would a judg- ment requiring the Hopi Tribal Council to comply with the Hopi Constitution and By-laws prejudice the Hopi Tribe when the Tribe could, if it so desired, enter into a new lease after complying with the provisions of the Hopi Constitution? We fail to see how a judg- ment requiring compliance with its own organic govern- ing document can be prejudicial] to the Hopi Tribe. And if the plaintiffs should prevail and the Hopi Tribe 37 then refused to amend its constitution or to authorize a new lease, it would be an absurdity to suggest that the Tribe had been prejudiced by this action. The opinon of the court of appeals makes two other obvious mistakes in its analysis of the first factor. (App. 5a.) Setting aside the Secretary’s approval of the lease would not eliminate the employment of many of the Hopis. We are informed that few, if any, Hopis are employed at the Black Mesa mine. There is noth- ing to the contrary in the record on this motion to dis- miss. And we fail to see how Peabody can be obligated to make royalty payments under the lease after (and assuming) the Secretary’s approval is set aside by a court of competent jurisdiction when the Secretary’s approval is a statutory prerequisite to the lease’s valid- ity. 25 U.S.C. §396a. See Davis v. Morton, supra. The decisions below amount to determinations by the lower courts that the Black Mesa lease is more im- portant to the Hopi Tribe than the integrity of its tribal processes. But there is no reason why the Tribe cannot lease its coal, if it so desires, in a manner that complies with the requirements of the Hopi Constitu- tion. And we are not aware of any other judicial pro- nouncement to the effect that governing law can be jettisoned in order to meet what appear to be the exigencies of the moment. All of the law in this nation of laws is contra. Y. oungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 4. Other factors militate agains! dismissal. The four specific factors enumerated in Rule 19(b) “‘are not intended to exclude other considerations which may be applicable in particular situations.”” Advisory Committee Notes, supra, quoted at 3A Moore’s Federal a a ee SET NEE Go ee ne are 38 Practice, § 19.01 [5.-4] (1974 Ed.), 39 F.R.D. 89 at 92 and 28 U.S.C. Rule 19, at p. 106 (1972 Ed). There are several additional considerations that militate very strongly against dismissal. The plaintiffs have invoked the jurisdiction of a court of equity, * have alleged the infringement of public, as opposed to private, rights, * and have a Congressionally granted ‘‘right’’ to judi- cial review of the Secretary of the Interior’s approval of the Black Mesa lease. Further, dismissal for non- joinder would render the specific, federally guaranteed protections of the Hopi Constitution a nullity. But the additional factor that we deem particularly im- portant is that the absent party’s views and positions are extremely well represented by the existing parties. This consideration was also ignored by both lower courts. The federal government, Peabody, the Na- tion’s largest coal producer, and six power companies are straining with all of the considerable resources at their command to uphold the validity of the Sec- retary’s approval of the Black Mesa lease." This is not an instance in which the absent party’s views will not be adequately presented. Indeed, as previously shown, the presence of the absent party’s trustee, standing alone, is a sufficient reason to deny the motion to dismiss for nonjoinder. *7 See Bourdieu v. Pacific Western Oil Co., supra, 299 US. at 70-71. ** See National Licorice Co. v. NLRB, supra, 309 U.S. at 363-364. 7° See Tooahnippah v. Hickel, 397 U.S. 598 (1970). % See Barlow v. Collins, 397 U.S. 159, 167 (1970). *! See Owatonna Manufacturing Co. v. Melroe Co., 301 F. Supp. 1296, 1305-1306 (D. Minn. 1969). 39 CONCLUSION The refusal of the Hopi Tribal Council to partici- pate voluntarily in this litigation must not be allowed to deprive the plaintiffs of their day in court. That would make the Council a law unto themselves. That would certainly be ‘‘an impotent outeome to negotia- tions . . . which seemed to promise more, and give the word of the nation for more.”” United States v. Win- ans, 198 U.S. 371, 380 (1905). The Hopi Tribe is not an indispensable party in this litigation. The plaintiffs’ motion to join the Hopi Tribal Council should have been granted. Sovereign immunity is not a defense to an action challenging alleged ultra vires actions of governmental officials. The decisions below are inconsistent with four deci- sions of this Court and create three conflicts with deci- sions of other circuits. For all of these reasons, the petition for a writ of certiorari should and must be granted and the decision below reversed. In view of the multiple egregious errors of the court of appeals, petitioners respectfully suggest the ap- propriateness of granting the petition and remanding the case for reconsideration in light of: 1, National Iicorice Co. v. National Labor Rela- tions Board, 309 U.S. 350 (1940) ; 2. Provident Tradesmens Bank & Trust Co. Vv. Patterson, 390 U.S. 102 (1968) ; 3. Heckman v. United States, 224 U.S. 413 (1912) ; 4. Ex Parte Republic of Peru, 318 U.S. 578, 587- 588, 589 (1943) ; 40 5. Inttell v. Morton, 445 F.2d 1207 (4th Cir. 1971) ; and 6. Means v. Wilson, 522 F.2d 833 (8th Cir. 1975). Respectfully submitted, Rosert 8. PELCYGER JOHN E. EcHOHAWK Native American Rights Fund 1506 Broadway Boulder, Colorado 80302 Counsel for Petitioners December 15, 1975 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1435%3A1. Public record. Not legal advice.