Here is that opinion, captioned Pine Bar Ranch LLC v. Acting Director, BIA (D. Mont.):
Indeed, a contrary result could run afoul of tribal sovereignty. “The power to exercise tribal civil authority over non-Indians derives not only from the tribe’s inherent powers necessary to self-government and territorial management, but also from the power to exclude nonmembers from tribal land.” Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 592 (9th Cir.1983) (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141–44, 102 S.Ct. 894, 903–05, 71 L.Ed.2d 21 (1982). Furthermore, it is well settled that a tribe may “place conditions on entry, on continued presence, or on reservation conduct …, [and] nonmember[s] who [enter] the jurisdiction of the tribe [remain] “subject to the risk that the tribe will later exercise [this] sovereign power.” Merrion at 144–45 (footnote omitted).
On January 12, 2011, the Tribes passed Tribal Resolution Number 2010–10277 reaffirming the non-public status of the road and stating that “the unpaved portion of Surrell Creek Road is not a public road or otherwise accessible to any member of the public without the permission of the Eastern Shoshone and Northern Arapaho Tribes.” Doc. No, 20–7.
Especially in view of tribal sovereignty, the BIA had no direct statutory mandate to declare Surrell Creek Road public. Therefore, under the APA, there is no required agency action for this Court to “compel” or “hold unlawful and set aside.” Consequently, the Court is without jurisdiction, no material issue of fact remains and Defendants are entitled to summary judgment as a matter of law.