federal recognition – Page 2

MINUTE ORDER denying without prejudice 80 Motion to Enforce Judgment. In March of 2020, this Court granted summary judgment in favor of plaintiff Burt Lake Band of Ottawa and Chippewa Indians. See Dkt. 39. It struck down the Department of Interior’s 2015 ban on tribes’ re-petitioning for federal recognition as arbitrary and capricious, and it remanded the challenged rule to the agency for further consideration. See Dkt. 40. The matter is still under consideration today. In July of 2023, when a new rule had yet to be enacted, plaintiff moved to reopen the case and asked the Court to order DOI to adopt a final rule based on what was the most recent draft at the time. See Dkt. 71. The Court denied that motion for lack of jurisdiction, but on August 21, 2023, it did order DOI to submit its finalized draft to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget – a separate agency that had to be consulted – by August 31, 2023. Min. Order (Aug. 21, 2023). DOI moved for reconsideration, and in August of 2023, the Court modified its order to require the Department of the Interior to submit either a new proposed rule or a final rule to OIRA by October 31, 2023 and to update the Court on the status of its efforts by November 1, 2023. On November 1, the government reported that OIRA deemed the proposed rule to be “a significant regulatory action” warranting 90 more days of interagency review, after which OIRA would send comments back to the Department of Interior, the Department would respond, OIRA would reconsider, and, eventually, senior leadership at the agency would finalize the rule. Dkt. 77. Almost a year later, on August 2, 2024, plaintiffs moved the Court to hold defendants in contempt and to order defendants to finalize the rule at issue in this case by November 1, 2024. Dkt. 80. According to plaintiff, “DOI is no closer to publishing a final rule than this time last year and has evaded publishing a new rule for over four years. The Court can set this deadline by either enforcing its judgment or finding DOI in contempt for its failure to comply.” Id. at 1. In its opposition to the motion, defendants informed the Court that it submitted a second proposed rule to OIRA on October 31, 2023 in compliance with this Court’s August 21, 2023 minute order, see Decl. of Oliver Whaley p. 7, Ex. 1 to Def.’s Opp. [82-1] at 2, and that the second proposed rule was published in the Federal Register on July 12, 2024, with public comments due by September 13, 2024. Id. p. 18. Nevertheless, defendants’ declarant avers that there is still more work to be done, including further OIRA review and approval from Department of Interior leadership. Id. p. 2122. While the petulant tone of the defendants’ submission is misplaced given the inexcusably long period of time it has taken it to get to this point, it is true that DOI is not in violation of the Court’s Order of August 21, 2023, and its recent actions are consistent with the Court’s judgment, so holding defendants in contempt would be inappropriate in light of these recent developments. Nevertheless, four years have elapsed since the Court’s judgment, and a rule has yet to be promulgated. It is therefore ORDERED that defendants must file a status report by October 11, 2024 informing the Court of further developments since their opposition was filed at the end of August. Signed by Judge Amy Berman Jackson on 10/4/2024. (lcabj2). (Entered: 10/07/2024) [emphasis added]

Prior post here.