a ial Division FILED in Ottis ofthe Court Clerk of Western Region JUN 17 2020 IN THE COURT OF INDIAN OFFEN! FOR THE WESTERN REGION WINNEMUCCA INDIAN COLONY Time Recorded 3: 20 WINNEMUCCA INDIAN COLONY Petitioner, CaseNo.: — C1V-19-WRIS CIV-19-WRI6 C1V-19-WR17 CIV-19-WRI8 CIV-19-WRI9. CIV-19-WR20 vs. MYRL AYER, JAMES JAY AYER, STORMY AYER, LINDA AYER, and any other persons known and unknown residing with the Ayer family, and KEVIN DICK and BRIAN DICK, and all other persons residing with or on the premises of the Dick occupation and any other persons known or unknown. and ELENA LOYA, and all persons residing at 1149 Cinnabar St., and LESLIE SMART, JR. and all persons residing with or on the premises of the Smart occupation and all other persons known or unknown, and DWIGHT BROWN, DOREEN BROWN, LOUELLA BROWN, aka LOUELLA GEORGE, aka LOUELLA STANTON, ELDON BROWN, GILBERT GEORGE, and all persons residing with or on the premises of the Brown occupation and any other persons, known ot unknown, residing with the Brown family, except andexcluding ALVA BROWN. ) and ) ALL PERSONS RESIDING AT 232 ) SOUTH STREET. excepting COLEEN MISSOURI, Lessee. ) Respondents, ) NOW on this 17th day of June, 2020, this matter comes before the Court, sua sponte, ‘upon notice and receipt of the unpublished Opinion of the Ninth Circuit Court of Appeals in Winnemucca Indian Colony: Thomas R. Wasson, Judy Rojo v United States of America, et al., Case No.: 18-17121. The Court is in receipt of 2 Memorandum Opinion issued on June 15, 2020 (ATTACHED) which poses questions of legitimacy of the actions by the current Winnemucca Tribal Council. Being advised in the premises, this Court FINDS and ORDERS as follows 1. That the Ninth Circuit Court of Appeals did rule on June 15, 2020 that the ongoing dispute between factions of the Winnemucca Tribal Council was not properly decided in the lower Court due to a lack of jurisdiction 2. That the Memorandum Opinion poses questions of legitimacy of the actions taken by a Tribal Council, as well as subsequently elected Tribal Councils, that were authorized to be in office by a District Court that has since been determined had no jurisdiction. 3. That until such time as this Court receives a final determination of the consequences of the Ninth Circuit Opinion, this Court should, and does hereby FIND, a stay of these proceedings is necessary and appropriate, 4, Additionally, the grant awarded by the Environmental Protection Agency, which has been expended for clean-up, demolition and removal activities on the Colony may now be in question. Based upon the foregoing FINDINGS: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this case is hereby STAYED until further order of the Court.IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Winnemucca Indian Colony Tribal Council is hereby ENJOINED, RESTRAINED and PROHIBITED from proceeding with any further efforts to complete cleanup, demolition or destruction on the Winnemucca Indian Colony. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Winnemucca Indian Colony Tribal Council is hereby RESTRAINED from harassing, interfering or otherwise contacting or communicating with the residents on the Winnemucca Indian Colony. This Order shall remain in effect until further order of this Court. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the review hearing set for June 25, 2020 is hereby STRICKEN and will be set by the Court after further review of this matter and the consequences of the Appellate Court’s Memorandum. IT IS SO ORDERED. MARSHA HARLAN, CHIEF MAGIS'NOT FOR PUBLICATION F | L E D UNITED STATES COURT OF APPEALS SUN 15 2020 MOLLY c. DWYER, CLERK FOR THE NINTH CIRCUIT 'US. COURT OF APPEALS WINNEMUCCA INDIAN COLONY; No. 1817121 THOMAS R. WASSON; JUDY ROJO, Plaintiffs-Appellees, v UNITED STATES OF AMERICA, ex rel. ‘The Department of the Interior, BUREAU OF INDIAN AFFAIRS; SUPERINTENDENT OF THE WESTERN NEVADA AGENCY OF THE BUREAU OF INDIAN AFFAIRS, and the Employees, Contractor and Agents of the Western Nevada Agency of the Bureau of Indian Affairs, Defendants, WILLIAM R. BILLS, Intervenor-Defendant, and LINDA AYER; ALLEN AMBLER; JIM AYER: LAURA AMBLER; CHERYL APPERSON-HILL, Intervenor-Defendants- D.C. No. 3:11-¢y-00622-RCJ-CBC MEMORANDUM* ian Offensta al Division FILED In [The Office of the Court Clerk of ‘Western Region JUN 17 2020 ‘This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3,Appellants. Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding Argued and Submitted June 8, 2020 San Francisco. California Before: SCHROEDER and BRESS. Circuit Judges, and McSHANE,” District Judge. This is a dispute between two groups, referred to as the Wasson faction and the Ayer faction, over which group is the rightful tribal government of the ‘Winnemucca Indian Colony. Although the district court proceedings on review were largely a victory for the Wasson faction, the Ayer faction argues the district court lacked subject matter jurisdiction over this case from the start. We assume familiarity with the facts and procedural history and discuss them only as necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291. We conclude that the district court lacked subject matter jurisdiction and remand with instructions to dismiss. “Subject matter jurisdiction must exist as of the time the action is commenced.” Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, ‘The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation 2858 F.2d 1376, 1380 (9th Cir. 1988). If a court lacks subject matter jurisdiction, it must “dismiss the case, regardless of how long the litigation has been ongoing.” Rainero v. Archon Corp., 844 F.3d 832, 841 (9th Cir. 2016). ‘The Administrative Procedure Act (APA) provides for judicial review of final agency actions. 5 U.S.C. § 704; Bennett v. Spear, 520 U.S. 154, 177-78 (1997). Under our cases, if there is no final agency action, the court lacks subject matter jurisdiction, Hairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008) (“[Flinality is a jurisdictional requirement to obtaining judicial review under the APA.”). There was no final agency action here because at the time the complaint was filed, the Bureau of Indian Affairs (BLA) had not reached a final decision on whether it would recognize any group as the Colony’s tribal council, or whether any such recognition was warranted. Instead, the BIA was in the middle of complying with a remand order from the Interior Board of Indian Appeals (IBIA) to answer those very questions. Any decision by the BIA would have been appealable to the IBIA, further demonstrating that the Wasson faction failed to exhaust administrative remedies to secure a final decision. 25 C.F.R. § 2.6(a). The Wasson faction’s reliance on Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983), is inapt because there the court was reviewing “the BIA’s final decision which, in effect, declined to recognize either faction.” /d. at 336-37 (emphasis added). Here, the BIA was still in the process ofmaking such a decision, and so there was no final agency action. ‘The district court erred in concluding that further exhaustion of remedies before the BIA and IBIA would be futile. Futility is among the “exceptional circumstances” when exhaustion of administrative remedies is not required. White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988). Exhaustion is futile where continuing administrative proceedings “would cl early be of no avail,” Fones4All Corp. v. FCC, 550 F.3d 811, 818 (9th Cir, 2008), where there is “certainty of an adverse decision,” Agua Caliente Tribe of Cupeno Indians of Pala Reservation v. Sweeney, 932 F.3d 1207, 1219 (9th Cir. 2019), or where there is “undisputed evidence of administrative bias,” White Mountain, 840 F.2d at 677. In this case, and at the time the Wasson faction filed its complaint, the BIA was complying with the IBIA"s remand order and had sought briefing and evidence in an effort to determine whether it needed to recognize an interim tribal government and, if so, which faction it would recognize. Nothing in the record indicates that allowing the BIA to continue with its process would have been futile, that there was certainty of a decision adverse to the Wasson faction, or that the BLA was biased. As a result, the district court lacked subject matter jurisdiction. This means the district court’s “various orders . . . were nullities.”. Morongo Band, 858 F.2d at 1381. We therefore remand this matter to the district court with instructions to (1) dismiss this case for lack of jurisdiction and (2) vacate the district court’s variousorders, many of which related to the recognition of an interim tribal council and the tribal council election process. We have no occasion to decide whether and how the dismissal of this action and the vacatur of the district court’s orders will affect any tribal election results, tribal court rulings on these issues, or related BIA decisions; that is a matter for the tribal courts or the BIA, as appropriate. See Cahto Tribe of Laytonville Rancheria v, Dutschke, 715 F.3d 1225, 1226 (9th Cir. 2013) (“[A] tribe’s right to define its own. membership for tribal purposes has long been recognized as central to its existence as an independent political community.) (internal quotations omitted); see also Boe v. Fort Belknap Indian Cmty. of Fort Belknap Reservation, 642 F.2d 276, 280 n.7 (9th Cir. 1981). VACATED and REMANDED with instructions to DISMISS. wo