Jicarilla Apache Tribe v. Andrus

Nos. 80-1481 et al. (10th Cir. August 20, 1982)

ELR Digest

The Tenth Circuit affirms the district court's ruling that the Secretary of the Interior violated a public notice regulation in advertising oil and gas lease sales on the Jicarilla Apache Indian Reservation, and that the tribe's National Environmental Policy Act (NEPA) claim was barred by laches and the doctrine of unclean hands.

The court holds that the agency violated the notice requirements of 25 C.F.R. § 171.3 because the only notice made generally available to the public did not contain complete descriptions of the tracts to be offered, did not set out the rentals and royalties to be paid by the lessee, and did not disclose that the Secretary reserved the right to reject all bids. However, the court rejects the tribe's petition for outright cancellation of the leases, instead ruling that payment of adjusted bonuses in lieu of cancellation is a proper equitable remedy.

The court rules that the tribe's NEPA claim is barred by laches because of unreasonable delay by the tribe in bringing suit and prejudice to the defendants as a result of the delay. Although the tribe, which depended on the Bureau of Indian Affairs (BIA) for its information, filed suit within six months of the time the tribe became aware of the applicability of NEPA to the leases, the court holds that (1) laches does not depend on subjective awareness of the legal basis of a claim, (2) the tribe unreasonably delayed the suit by beginning litigation more than three years after the conclusion of the lease sales and a court decision holding NEPA applicable to BIA lease sales, and (3) the delay prejudiced appellees who by the time of the suit had invested more than $12 million in the leases and faced the loss of future profits if the leases were cancelled. The court also holds that the defense of unclean hands bars the tribe's NEPA claim. The tribe's recent decision to enter into three financially beneficial joint ventures without seeking to enforce compliance with NEPA is evidence that the tribe's NEPA claim was motivated more by a desire for economic gain than by a good faith environmental concern.

The court upholds the district court's decision to toll the term of the ten-year leases from the date of service of process to the date of the trial court judgment, but remands to the lower court to consider the question of tolling during appellate or certiorari proceedings. The court reverses the district court's decision to delay the payment of annual rentals during litigation, holding that the tribe is entitled to the rentals because the appellees' rights to the leases are being upheld against the tribe's suit for cancellation. The court finds that the trial court properly dismissed counterclaims filed by appellees against the tribe on the grounds that the tribe's sovereign immunity barred adjudication of the counterclaims. Finally, the court holds that the tribe's request for costs is not ripe for appellate review because no party made a motion for costs before the district court.

A concurring opinion clarifies that the trial court's action in adjusting the bonus because of the technical violation of 25 C.F.R. § 171.3 should not be viewed as a reformation of the leases but rather as a damages award to the tribe, and that cancellation is not appropriate because the regulatory violation affected only the bonuses and not the leases.

The full text of this opinion is available from ELR (53 pp. $7.25, ELR Order No. C-1290).

Counsel for Appellant
Terry D. Farmer
Moses, Dunn, Beckley, Espinosa & Tuthill
800 Am. Bank of Commerce Complex, 200 Lomas Blvd. NW, Albuquerque NM 87102
(505) 843-9440

B. Reid Haltom
Nordhaus, Haltom & Taylor
810 Am. Bank of Commerce Complex, 200 Lomas Blvd. NW, Albuquerque NM 87102
(505) 243-4275

Counsel for Appellees
Edward J. Shawaker, James W. Moorman, Sanford Sagalkin, Peter R. Steenland Jr., Jose N. Uranga
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Holloway, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]