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  • OPPOSITION MOTION: Allegre V Zinke (Bureau of Indian Affairs/Dept of Interior

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    Plaintiffs OPPOSITION and response to Defendants motion to dismiss plaintiffs' request for Preliminary injunction against IRREPARABLE harm to San Pasqual TRIBAL members. San Pasqual is shady, but the FEDERAL GOVERNMENT is shadier still with this tribe.

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    OPPOSITION MOTION: Allegre v Zinke (Bureau of Indian Affairs/Dept of Interior

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    Plaintiffs OPPOSITION and response to Defendants motion to dismiss plaintiffs' request for Preliminary injunction against IRREPARABLE harm to San Pasqual TRIBAL members. San Pasqual is shady, but the FEDERAL GOVERNMENT is shadier still with this tribe.

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    © All Rights Reserved
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    6K Ansichten32 Seiten

    OPPOSITION MOTION: Allegre V Zinke (Bureau of Indian Affairs/Dept of Interior

    Hochgeladen von

    Original Pechanga
    Plaintiffs OPPOSITION and response to Defendants motion to dismiss plaintiffs' request for Preliminary injunction against IRREPARABLE harm to San Pasqual TRIBAL members. San Pasqual is shady, but the FEDERAL GOVERNMENT is shadier still with this tribe.

    Copyright:

    © All Rights Reserved
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    ALEXANDRA R. McIntosh F168 04 Law Office of Alexandra R. McIntos 2214 Faraday Avenue Carlsbad, CA 92008 (760) 753-5357 CAROLYN CHAPMAN #141067 Law Office of Carolyn Chapman P.O. Box 4614 Escondido, CA 92046 (619) 916-8420 Attorneys for Plaintiffs at a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Cindy Alegre, an individual, et.al., Plaintiffs, RYAN ZINKE, Secretary of the Department of the Interior, in his official capacity, et. al Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 17-CV-0938-A.B.-K.C. PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS? MOTION TO DISMISS PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUNCTION AND COMPLAINT SEEKING A PERMANENT INJUNCTION FOR LACK OF SUBJECT MATTER JURISDICTION; OR DENY PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION DATE: July 25, 2017 TIME: 9:00 A.M. CTRM: 4A JUDGE: Hon. Anthony J. Battaglia COMES NOW PLAINTIFFS in Opposition and Response to Defendants’ Motion to Dismiss Plaintiffs’ Request for a Preliminary Injunction and Complaint seeking a Permanent Injunction for lack of subject matter jurisdiction; or, Deny Plaintiffs’ Request for a Preliminary Injunction. (Fed.R.Civ.P. 12(b)(1)]. INTRODUCTION The defendants have moved this court to Dismiss Plaintiffs” Complaint for Permanent Injunction [CPI]; Dismiss Plaintiffs’ Request for a Preliminary Injunction [RPI]; Or, in the alternative deny Plaintiffs’ Request for Preliminary Injunction [DRPI] for the following reasons: 1) This Court Lacks Subject Matter Jurisdiction [SMJ]; 2) Plaintiffs’ Requests for a Preliminary and Permanent Injunction are not Ripe; and, 3) Even if the Court has SMJ, it should deny Plaintiffs’ request for Preliminary Injunction relief because: Plaintiffs have no chance of success on the merits; Plaintiffs are not likely to suffer irreparable harm; and, the balance of the equities and the public interest preclude a preliminary injunction. This Court should Deny Defendants’ Motion for the reasons stated in this Response and Opposition paper. u STATEMENT OF THE CASE A PROCEDURAL HISTORY Plaintif’s’ Complaint for Permanent Injunction (17-CV-0938) is a 2 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIF#S* COMPLAINT FOR INJUNCTION: PRELIMINARY INJUNCTION companion case to two other cases: Alegre v. U.S., et al, (16-CV-2442), and Alverado v. U.S. et. al., (17-CV-1149). Plaintiffs’ Compliant for Injunction, Request for Temporary Injunction, and Request for Preliminary Injunction are all based on a common nucleus of operative facts, Defendants’ violations of statutory mandates and violations of Plaintiffs’ civil rights. 1, Alegre v. U.S., 16-CV-2442 [Case 1] On September 28, 2016 Plaintiffs filed their Complaint in 16-CV-2442 seeking Declaratory Relief, and alleging Violation of Civil Rights and Violation of Administrative Procedures Act [APA]. [D1]’. All Plaintiffs are direct descendants of Jose Juan Martinez, Guadalupe (Alto) Martinez, and Modesta (Martinez) Contreras who are seeking federal recognition by the Defendants [DOI- BIA]. On March 27, 2017 Defendants filed their Motion to Dismiss for Lack of Jurisdiction [D9] which the Plaintiffs responded to by filing their Fist Amended "Plaintiffs request this Court take Judicial Notice of companion cases entitled Alegre v, US, et. al., 16-cv-2442 and Alegre v. US, et. al., 17-cv-1149 or, in the alternative, consolidate all three cases pursuant to Plaintiffs’ Motion to Consolidate which will be filed in each case. *——” stands for ECF Docket Sheet Numbers. (“ECF” stands for Electronic Case File). PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION Complaint [D13] (with 100 exhibits) on April 11, 2017 seeking Declaratory Relief. and alleging violation of Civil Rights: due process, equal protection and property rights; Violation of the APA (both negligent and intentional); Breach of Fiduciary Duty; Unconstitutional Diminution of Patented Land; Fraud-Misrepresentation; and Damages. On June12, 2017, the Defendants filed their Motion to Dismiss [D20]. Plaintiffs filed a Motion for leave of court to file their Second Amended Complaint on Jule 26, 2017. [D25]. This Motion was denied by the Court on June 26, 2017. [D 27]. Plaintiffs Response to Defendants’ Motion to Dismiss is due August 12, 2017. Defendants are the same Defendants named in 17-CV-0938 [case2] and 17-1149 [ease 3]. 2. Alegre y. U.S., 17-CV-0938 [Case 2] On May 8, 2017, Plaintiffs filed their Verified Complaint for Injunction to Preserve the Status Quo. [D1]. On May 16, 2017, Plaintiffs filed an Ex Parte Motion for Temporary Restraining Order. [D6]. On May 18, 2017, the Court granted Plaintiffs’ Ex Parte Motion for Temporary Restraining Order. [D7]. On June 19, 2017, Defendants filed a Motion to Dismiss for Lack of Jurisdiction. (D16]. This is Plaintiffs’ reply to Defendants’ Motion to Dismiss. The Plaintiffs in 4 PLAINTIFFS’ OPPOSITION AND RESPONSH TO DEFENDANTS MOTION ‘TO DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION: PRELIMINARY INJUNCTION JASE S21 /-CV-UUYSB-AJB-KSL Document 1/-1 Filed U//1U/L/ PagelL.bb4 Page 5 or 3: 17-v-0938 are the same descendants of Jose Juan and Guadalupe Martinez and Modesta (Martinez) Contreras in addition to eighteen enrolled members of the San Pasqual Mission Band of Indians. The same Defendants are named as in 16-cv- 2442 [ease 1] and 17-CV-1149 [case 3] 3. Alvarado v. U.S., 17-CV-1149 [Case 3] On June 8, 2017, Plaintifi’s in Case 3 filed their complaint for Violation of Civil Rights, Breach of Fiduciary Duty, Unconstitutional Diminution of Patented Land, Fraud and Misrepresentation, Civil Conspiracy, and Damages. Defendants have Sixty (60) days to respond. The eighteen (18) Plaintiff are all enrolled members of the San Pasqual Mission Band of Indians. The same Defendants are named as in 16-CV-2442 [case 1] and 17-CV-0938 [case 2]. |B. STATEMENT OF FACTS RELEVANT TO THIS COURT’S JURISDICTION TO ISSUE A PRELIMINARY INJUNCTION AND. PERMANENT INJUNCTION All three of the cases that have been brought by Plaintiffs against the Defendants relate to membership disputes and violation of civil rights. As the Ninth Circuit stated in Alto v. Black, 738 F.3d 1111, 1124 (9" Cir. 2013): Such membership disputes have been proliferating in recent years, largely driven by the advent of Indian gaming, the revenues from which are distributed among tribal members. See generally Suzianne D. Painter- Thome, [fyou Build It, They Will Come: Preserving Tribal Sovereignty in 5 PLAINTIFTS" OPPOSITION AND RESPONSE TO DEPENDANTS MOTION 'O DISMISS PLAINTIFFS” COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION pre Sa/-ev Wea AJE-KSC Docuimentty-1 Filed 710117 PagelD.ess: Page ¢ of $4 the Face of Indian Casinos and the New Premium on Tribal Membership, 14 Lewis & Clark L. Rev. 311, 313 & nn.8-10, 320 (2010); see also Alverado v. Table Mountain Rancheria, 509 F.3d 1008, 1014-15 (9" Cir. 2007; Lewis, 424 F.3d at 960. 1 Alegre v. U.S., 16-CV-2442 [Case I] The operative facts that are the basis for the three lawsuits are basically the same. In the first case [16-cv-2442] Plaintiffs’ causes of actions are based on the actions and/or inactions of the Defendants regarding the mandatory statutory requirements of the San Pasqual Tribal Constitution [FAC? 57; Exhibit 10] and Title 25 CFR §48 [FAC 9943-66; Exhibit 8]. This dispute has arisen from the Band’s Tribal Council’s [and/or Band’s Business Committee’s] act on September 12, 2005, of sending a letter to the Bureau of Indian Affairs (“BIA”), Southern California Agency (“SCA”), Superintendent (“Superintendent”) stating that they concurred with the Enrollment Committee and General Council and supported Plaintiffs" applications for enrollment in the BAND, and that they were sending the applications for BIA approval pursuant to the BAND’s Constitution which adopted 25 CFR §48. [FAC $10; Exhibit 5], The basis of Plaintiffs’ enrollment applications were that they were the great-grandchildren of Modesta Contreras. “FAC” refers to Plaintiffs’ First Amended Complaint in Case 16-CV-2442, 6 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS" COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION Yi Seen ah ke wo 12 15 14 16 7 18 19 20 21 23 24 25 26 28 PSE 3:1 /-CV-UUYSS-AJB-KSL LOCUMeNt 1/-1 HIed U//1U/L/ PagelL.bdb Hage / OF 34 [Defendants’ Motion to Dismiss [MTD Plaintiffs” FAC case 16-CV-244: 4-7]. Before enrolling Plaintiffs in the BAND the BAND’s Enrollment Committee investigated Modesta Contreras’ blood line and concluded that she was 4/4 blood of San Pasqual Indian based on BIA and US Government documents. This conclusion led to the BAND’s Tribal Council's finding that the Plaintiffs were at least 1/8 blood of San Pasqual Indian and approved Plaintiffs’ applications for federal enrollment in the BAND. [FAC 4 6-9; Exhibits 3, 4]. Pursuant to the BAND’s Constitution and 25 CFR §48, the Business Committee sent Plaintiffs’ approved applications to the BIA, SCA, Superintendent on or about September 12, 2005 [FAC 410]. Pursuant to 25 CFR §48 the Tribal Council was required to forward Plaintiffs’ applications to the BIA because 25 CER §48 was incorporated into the BAND’s constitution and is tribal law. Pursuant to that tribal law, as codified at 25 CFR 48.7, “the [enrollment] applications whether approved or disapproved shall be filed with the Director [Area Director, Sacramento Area office of the BIA] within thirty (30) days from receipt by the [Enrollment] Committee.” [Defendants MTD 4: 11-14]. Plaintiffs did not discover what happened to their applications until October 1, 2014, and May 2015, [FAC §§14 and 24, Exhibits 7 and 9] when they received a response to their FOIA request in PLAINTIFFS" OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS" COMPLAINT’ FOR INJUNCTION: PRELIMINARY INJUNCTION, CUUYSO-AUE-ROL LUCUITIENL A/-2 PIGUUSLUIL) ~PageIU.od/ Faye 6 OF s. the form ofa letter dated January 31, 2006 from DUTSCHKE. [FAC 14, 18-19; 24-25; Exhibits 7, 9] which included a letter dated May 3, 2006 informing the Band Plaintiffs applications were being returned to them without review. On April 7, 2006, the former Superintendent sent a letter to the Band’s Enrollment committee stating that he was returning Plaintiffs’ original applications to the BAND without any decision from any BIA office on the enrollment applications. [FAC 22-23;Exhibit 1]. Plaintiffs’ Fourth, Seventh, Ninth, Tenth, and Eleventh Claims of action in Plaintiffs FAC are based on the fact that the Superintendent failed to adjudicate Plaintiffs’ applications as required by statute: 25 CFR §48.‘ [FAC 14-21]. In addition, the superintendent never gave Plaintiffs notice of the fact that she did not adjudicate their applications and, instead, returned them to the BAND. Plaintiffs’ Sixth, Ninth, Tenth, and Eleventh Causes of action in their FAC are based of the fact that the Superintendent returned Plaintiffs’ to the enrollment Committee without giving Plaintiffs notice. [FAC 924-25] As a result, Plaintiffs “25 CFR §48.8 - “shall review” [FAC 913, Exhibits 7, 8]; §48.9 - requires notice of action [FAC $7,8,14-16; §48.10 “shall notify” [FAC 17] 8 PLAINTIFFS" OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION -UUYSE-AJE-ROUL UVOCUTTIENL 4/-L FIED U//LU/L/ PageIU.oDs Page Y OF 3. have been denied their statutory rights to appeal said act and present evidence on their behalf. Title 25 CFR §48 does not allow the Superintendent to return Plaintiffs’ applications without making a decision whether to grant or deny the BAND'’s request to federally enroll Plaintiffs into the Band. As stated in Defendants MTD 4:9-14, Title 25 C.F.R. 47.1 is very clear: “Pursuant to that tribal law, as codified at [former] 25 C.F.R. 48.7, ‘the [enrollment] applications whether approved or disapproved shall be filed with the Director within thirty (30) days from receipt by the [Enrollment] Committee.’” This was not done, giving rise to Plaintiffs civil rights claims and claims under the APA. The fact that the Defendants failed to satisfy the mandatory requirements of 25 CFR §48 is another basis for their causes of actions as stated in their Amended Complaint. Defendants actions have violated statutory mandates resulting in a violation of Plaintiffs’ civil rights as alleged in Plaintiffs’ Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Thirteenth causes of action in their FAC. To compound matters, because the Enrollment Committee originally found that Plaintiffs’ ancestor Modesta (Martinez) Contreras was 4/4 blood of San Pasqual Indian, on September 22, 2005, the Band’s Enrollment Committee sent another letter to the BIA, SCA, Superintendent requesting him/her to increase the PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS" COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION, EC discover this information until receipt of the FOIA response dated October 1, 2014. Superintendent “that the evidence does not substantiate the blood degree change for Modesta (Martinez) Contreras, [and] therefore [the Director] recommend{ed] disapproval.” [FAC 14; Exhibit 7]. In a letter dated April 7, 2006, the United States Department of the Interior, Office of the Secretary, told the Band’s chairman that it concurred with the Director and the Superintendent “that there is insufficient evidence to warrant an increase from 3/4 to 4/4 degree of San Pasqual Indian blood for Modesta (Martinez) Contreras.” [FAC 4-5; Exhibit 1]. After making this erroneous determination, Defendant DUTSCHKE, Pacific Regional Iase 3:1/-cv-UUY938-AJB-KSC Document 1/-1 Filed U//10/1/ Pagelb.659 Page 10 ot 32 blood degree for Modesta (Martinez) Contreras from 3/4 to 4/4 degree blood of. the Band. [FAC $1; Exhibit 6]. Using faulty, unreliable and unvetted evidence, the superintendent on or about December 8, 2005 told the BIA Pacific Region Regional Director (the “Director”) that it concluded that “the preponderance of evidence does not sufficiently demonstrate that Modest (Martinez) Contreras is full blood San Pasqual Indian.” [FAC 9911-13; Exhibit 2]. Plaintiffs did not Ina letter dated January 31, 2006, the Director stated that it agreed with the PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION ‘TO DISMISS PLAINTIFFS" COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION Sowers ASE DLE ALVUUTOO“MID-ROL VULUIIEM Lyn PUY UTLUIa Petlyeil.oou raye 11 Ul Director, failed to give written notice to the Plaintiffs (as required under §48.9, §48.10) that she determined that Modesta (Martinez) Contreras was not a full blood San Pasqual Indian. DUTSCHKE’s failure to give notice to Plaintiffs is the basis for Plaintiffs’ Sixth, Eighth, Ninth, Tenth, Eleventh, and Thirteenth causes of action in their FAC. Javin Moore’s Declaration dated March 27, 2017 [FAC 921-23] makes it clear what actually happened to Plaintiffs’ original applications. Moore stated: “No BIA office made any decision regarding the enrollment applications before returning them to the Band for their re-review.” [FAC 21]. DUTSCHKE’s failure to give notice to review Plaintiffs applications and failure to give notice to Plaintiffs was in violation of the statutory mandates stated in 25 CFR §48 resulting in a violation of Plaintiffs’ civil rights as alleged in their First Amended Complaint, The above acts, and/or failure to follow statutory mandates, by the Defendants give rise to Plaintiffs’ claims. 2. Alegre v. U.S. 17-CV-0938 [Case 2]. Plaintiffs’ Verified Complaint for Injunction [PCI] recites that same allegations stated in Case 1(16-CV-02442): On April 10, 2005, the San Pasqual Tribal Council met and approved the enrollment of the Plaintiffs, who are Jose u PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION fpse 3:1 /-cv-00938-AJB-KSC Document 17-1 Filed 07/10/17 PagelD.661 Page 12 of Juan and Guadalupe Martinez and Modesta (Martinez) Contreras’ descendants, into the San Pasqual Mission Band of Indians. [PCI 45; Exhibits 2, 3]. Pursuant to the Tribe’s Constitution which incorporates 25 CFR §48, the Business Committee/Tribal Council forwarded Plaintiffs’ approved applications to the DOI- BIA on or about September 12, 2005. [PCI 5; Exhibit 4]. Although the Defendants were required to review and adjudicate Plaintiffs’ applications within thirty (30) days, they never adjudicated these applications. [PCI 8; Exhibit 8 (25USC §48)]. Instead, on or about December 8, 2005,the Defendants returned Plaintiffs’ applications to the Enrollment Committee without notifying Plaintiffs that their applications were not adjudicated. [PCI 7; Exhibit 6]. Prior to December 8, 2005, but after September 12, 2005, the Enrollment Committee sent a letter on September 22, 2005, to the Defendants asking the Defendants to adjust the blood degree of Modesta (Martinez) Contreras from 3/4 to 4/4 blood of San Pasqual Indian. [PCI 6; Exhibit 5]. On or about January 31, 2006, Defendant DUTSCHKE, Pacific Regional Director, made a determination, based on unvetted, unreliable, faulty and incorrect data, that Modesta (Martinez) Contreras was not a full blood San Pasqual Indian. [PCI 8; Exhibit 7]. In 12 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS" COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION awe fase 3:17-cv-00938-AJB-KSC Document 17-1 Filed 07/10/17 PagelD.662 Page 13 of violation of statutory mandate, Defendants have never given Plaintiffs notice of this decision. It was not until Plaintiffs’ received responses on October 1, 2014 and May 27, 2015 to their FOIA requests that Plaintiffs discovered that DUTSCHKE denied the Tribal Council’s request to increase their ancestor Modesta (Martinez) Contreras’ blood degree to 4/4 blood of San Pasqual Indian. [PCI 99-12; Exhibits 9,10]. In 1966 the Tribal Council/Enrollment Committee denied Trask descendants’ applications [PCI 426; Exhibit 19] for federal recognition in the San Pasqual Mission Band of Indians. [PCI §§ 20-24; Exhibits 11,12, 13, 14]. But, over the objections of the true San Pasqual Indians [PCI 26; Exhibit 19] the Defendants enrolled the Trask family members into the BAND. [PCI 924-28; Exhibits 16-21, 23, 26]. In the 1990's the BIA overturned the Tribal Council’s rejection of the Trask Descendants’ enrollment applications and enrolled the Trask descendants in violation of 25 CFR §48. [PCI 221; Exhibit 29]. True San Pasqual members of the BAND have continued their objections to the Trask enrollment in their BAND without recognition from the Defendants. [PCI Exhibits 21, 27]. Since the Defendants wrongfully enrolled the Trask descendants who have no San Pasqual blood, Allen Lawson, Jr, [alleged descendant of Frank Trask] who 13 PLAINTIFFS" OPPOSITION AND RESPONSE TO DEFENDANTS MOTION ‘TO DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION daw s jase 3:1 /-cV-UUYS8-AJB-KSC Document 1/-1 Filed 0//1U/17 PagelD.663 Page 14 of possesses no San Pasqual blood at all is the Tribal spokesman. [PCI 9] 28-32; Exhibit 21]. Under Lawson's control, the Tribal Council has issued illegal Moratoriums on enrollment. [PCI { 30-32; Exhibits 22,23]. While the Alfo® case was being litigated the Enrollment Committee declared a Moratorium on any enrollments or dis-enrollments on August 27, 2009 and June 23, 2011. The Enrollment Committee put the Moratoriums in place after there was a request to the BIA not to enroll the Trask descendants. [PCI 30-32; Exhibits 22,23]. These actions are in violation of the Tribe’s Constitution and enrollment statute, Title 25 CFR §48. Yet, the Defendants have done nothing to correct this situation. Furthermore, since Plaintiffs’ have filed their first complaint on September 28, 2016, [PCI 9228-230] Lawson, as Tribal spokesman, and other tribal leaders who are mostly Trask descendants, issued a second illegal Moratorium and started making plans to change the BAND’s Constitution and enrollment criteria. [PCI 4232-240]. Although Javin Moore stated in his declaration dated March 27, 2017 that the Southern California Agency forwarded ‘Request for Judicial Notice ~ Alto v. Salazar (District Court Case No. 11¢v2276 Southern District of California; See, Alto v. Black, 738 F.3d 1111, 1124 (9" Cir. 2013]. PLAINTIFPS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION ‘TO DISMISS PLAINTIFFS" COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION 6 Jase 3:17-cv-UUY38-AJB-KSC Document 1/-1 Filed U//1U/1/ Pagel.b64 Page 15 ot 92 87 partial enrollment applications to the Enrollment Committee of the Band for their review on March 7, 2017, Plaintiffs had not had the opportunity to present their evidence to the BIA. And, because of the illegal Moratorium, Plaintiffs’ applications will not be processed at any time in the near future. There is no reason why the Southern California Agency forwarded Plaintiffs’ applications to the present Enrollment Committee as opposed to adjudicating them as required by statute - the applications were previously adjudicated by the tribe. Not only has the Tribal Council issued another illegal Moratorium, but on or about April 9, 2017, a Constitutionally mandated General Council meeting took place on the San Pasqual reservation. While the unconstitutional and illegal enrollment Moratorium had expired, the Trask family and their political cronies moved to begin a new unconstitutional and illegal Moratorium on enrollment until a new enrollment ordinance could be put in place: One which will require an amendment to the San Pasqual Constitution. (In violation of 25 CFR §48.14 which requires the rolls be kept current). This is being done to eliminate 25 CFR §48 as the Tribe's enrollment statute thereby removing oversight by the DOI-BIA. Removing the DOI-BIA from oversight of the Enrollment process will prevent the true San Pasqual Plaintiff descendants from being enrolled in their own tribe. [See 15 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION: PRELIMINARY INJUNCTION Sow r)s Jase 3:17-cv-00938-AJB-KSC Document 1/-1 Filed U//1U/1/ PagelL.b6> Page 16 oF t Defendants’ Motion to Dismiss (MD)4:6-16]. [See declarations of Attorney Alexandra R. McIntosh, James Quisquis, and other enrolled members, incorporated herein]. It is these acts by the Tribal Council that have to be approved by the Defendants that have caused the Plaintiffs to bring their Complaint for Injunction, [PCI 4]232-240]. [See, Alto v. Black, 738 F.3d 1111, 1124 (9" Cir. 2013]. Also, as discussed below, it is the threat of irreparable harm to all Plaintiffs that looms over their future if 25 CFR §48 is altered or removed from the Tribe’s Constitution. 3. Alvarado v. U.S., 17-CV-01149 [Case 3]. ‘The third case [Alvarado Complaint] that was filed on June 8, 2017, against the same Defendants is brought by eighteen (18) enrolled members of the San Pasqual Mission Band of Indians. This complaint is based on the same historical background, Tribal Constitution, U.S. Constitution, laws and statutes as cases one and two. [AC 1-10, 12-21, 51-139, 141-146, 148-167, 168-187, 189-192, 194- 196, 198-201]. Because other tribes in the area have dis-enrolled legitimate “Plaintiffs request this Court take judicial notice of companion case Alvarado v. U.S. et. al., 17-CV-01 149. PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION To DISMISS PLAINTIFFS’ COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION aera eaten ere eget mere eae members of their tribe after removing the DOI-BIA oversight on enrollment actions, Plaintiffs are fearful that they, too, will be dis-enrolled if the Defendants are not enjoined from approving any changes to the Tribe’s Constitution. [See also, Defendants’ Motion to Dismiss (MD)4:6-16]. [See attached Declarations of Alexandra McIntosh, Lajean Miller, Paul Contreras, III, Huumaay Quisquis, Larry Blacktooth, and Rick Cuevas). Tl ARGUMENT A THIS COURT HAS JURISDICTION TO ADJUDICATE PLAINTIFFS’ COMPLAINT FOR INJUNCTION 1. The Basis for Defendants’ Motion to Dismiss In their Motion to Dismiss, the Defendants assert: 1) “[IJn the absence of final agency action, federal courts lack subject matter jurisdiction [SMJ] to consider the request.” [MD5:17]; 2) “[A] request for injunction, even against a credible threat of future harm, must be dismissed for lack of subject matter jurisdiction if the claim is not ripe.” [MDS:21-23]; 3) “There must be both a waiver of sovereign immunity, and a statutory authority vesting a district court with SMJ.” (Cites APA) [MD6:9-25; 7:1-6]; and 4) Plaintiffs fail to point to any agency action which might provide the court jurisdiction over Plaintiffs’ 7 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION ‘TO DISMISS PLAINTIFFS" COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION 10 u 12 14 15 16 7 18 19 20 22 23 25 26 27 28 lase 3:17-cv-00938-AJB-KSC Document 1/-1 Filed U//LU/L/ PagelU.bes Hage 18 oT injunction requests [MD7:22-23]; 2. Standard for District Court Review In deciding the Defendants’ Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) this Court may consider affidavits and other evidence in order to be satisfied that jurisdiction exists. Savage v. Glendale Union High School, 343 F.3d 1036, 1040 n.2 (9" Cir. 2003). The Court must accept as true all well-pleaded facts and allegations in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See also, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,322 (2007) (stating that courts “must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”) 3. Permanent Injunctions are meant to preserve a status of action or inaction permanently. Case law and practice have established that permanent injunctions are meant too preserve a status of action or inaction permanently. As discussed in this response Plaintiffs are seeking a permanent injunction preventing the DOI-BIA 18 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEF DANI MOTION ‘TO DISMISS PLAINTIFF'S’ COMPLAINT FOR INJUNCTION; PRELIMINARY INJUNCTION ¢ lase 3:17-cv-00938-AJB-KSC Document 1/-L Filed UM/iulas rayenm.uuy 1 aye ay wig from approving any changes to the San Pasqual Tribal Constitution that would alter or remove 25 CFR $48 from their Constitution thereby removing BIA oversight of the enrollment process. Once BIA oversight is removed by removing 25 CFR §48 Plaintiffs have absolutely no remedies to seek redress for illegal, unconstitutional, and discriminatory enrollment decisions. If this should take place while Plaintiffs are in litigation on these three complaints, they would be denied the jurisdiction of this Federal Court to seek relief because they cannot sue the Tribe in Federal Court. The Defendants base their entire motion to Dismiss Plaintiffs Complaint for Injunction on the defense of “lack of agency” action under the APA. As will be discussed below, there is prospective relief that this Court can grant to Plaintiffs in order to protect them from irreparable harm. Assuming arguendo, there is lack of agency action under the APA, Defendants’ violation of statutory mandates and Plaintiffs* civil rights give this Court the jurisdiction to issue a prospective Permanent Injunction [and/or Preliminary Injunction] because this Court can issue an Injunction based on a federal question. In their companion cases which have been discussed above, Plaintiffs have stated facts that raise federal questions thereby giving this Court the jurisdiction to Issue a valid Injunction. The Court 19 PLAINTIFFS’ OPPOSITION AND RESPONSE TO DEFENDANTS MOTION “TO DISMISS PLAINTIEES' COMPLAINT FOR INJUNCTION: PRELIMINARY INJUNCTION IDE DL I-UV-UUIIO“MYD"ROU VULUINIENC Ara PHeU Ua rayew.uuy rayt

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