UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MDEWAKANTON SIOUX INDIANS : OF MINNESOTA, et al. , : : Civil Action No.: 16-2323 (RC) Plaintiffs, : : Re Document No.: 17 v. : : RYAN ZINKE, 1 Secretary, : United States Department of the Interior, et al. , : : Defendants. :
MEMORANDUM OPINION
D ENYING P LAINTIFFS ’ M OTION FOR T EMPORARY R ESTRAINING O RDER AND A P RELIMINARY I NJUNCTION
I. INTRODUCTION Plaintiffs are currently engage d in litigation to compel variou s federal entities to recognize them as an American I ndian tribe. Plaintiffs now seek a temporary restraining order, followed by a preliminary injuncti on, barring an election to am end the constitution of a different tribe, because Plaintiffs assert the amendments would impair th eir rights. Because Plaintiffs fail to demonstrate an irreparable i njury, neither a temporary restr aining order nor a preliminary injunction is appropriate.

II. BACKGROUND Plaintiffs are several indivi duals and the Mdew akanton Sioux In dians of Minnesota, which they allege is an America n Indian tribe to which they bel ong. Compl. at 2, ECF No. 1.

1 Secretary Zinke is substituted as a defendant in accordance wi th Federal Rule of Civil Procedure 25(d).2 Plaintiffs brought suit in this C ourt to compel the United Stat es defendants “to acknowledge [the tribe’s] existence and to enjoin the United States from continu ing arbitrary decisions without informing the [tribe] that have the consequence of adversely af fecting the rights or potential rights of the [tribe].” Compl . at 2. Defendants moved to dismis s the complaint on several grounds, see generally Fed. Defs.’ Mot. Dismiss, ECF No. 10, and that motion remains pending. Plaintiffs now seek a temporary restraining order, followed by a preliminary injunction, to stop the June 14, 2017 Secretaria l election of the Prairie I sland Indian Community. 2 See generally Pl.’s Mem. Supp. Mot. Temp. Restr aining Order & Prelim. Inj. ( Pl.’s Mot.), ECF No. 17. Plaintiffs assert that the amen dments to the Prairie Island Indian Community’s constitution at issue in the election would impai r Plaintiffs’ tribal rights. P l.’s Mot. at 7–9; see also Pl.’s Mot. at 3 (asserting that the propose d amendments, if passed, would “ef fectively terminate [Plaintiffs’ tribe] without congr essional Act”).

III. LEGAL STANDARD “Preliminary injunctive relief, w hether in the form of a tempor ary restraining order or a preliminary injunction, provides an‘extraordinary remedy’ that is ‘never awarded as of right.’” Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V. , 901 F. Supp. 2d 54, 55–56 (D.D.C. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24 (2008)). Because a temporary restraining orde r is “an extraordinary and drastic remedy,” it should not be granted “unless the movant, by aclear showing, carries the bur den of persuasion.” Nat’l Head

2 Although the proposed order attach ed to Plaintiffs’ motion for a preliminary injunction appears to be en tered in error, see ECF No. 17-44, the Court understand s Plaintiffs to seek first a temporary restraining order and then a preliminary injunction p roviding that “no future Secretarial Elections shall be h eld without prio r approval by t his Court.” Pl.’s Mot. at 10, ECF No. 17.3 Start Ass’n v. Dep’t of Health & Human Servs. , 297 F. Supp. 2d 242, 246 (D.D.C. 2004) (quoting Mazurek v. Armstrong , 520 U.S. 968, 972 (1997)). In order to receive preliminary injunctive relief, the movant m ust demonstrate “(1) that it has a strong likelihood of success on the merits, (2) that it w ill suffer irreparable injury if injunctive relief is denied, (3) that other inte rested parties will not suffer substantial harm if injunctive relief is g ranted, and (4) that the public interest favors the granting of injunctive relief, (or at least, that the granti ng of injunctive relief is not adv erse to the public interest).” Paleteria
La Michoacana , 901 F. Supp. 2d at 56 (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc. , 559 F.2d 841, 843 (D.C. Cir. 1977) and Federation Internationale de Football Ass’n v. Nike, Inc. , 285 F. Supp. 2d 64, 68 (D.D.C. 2003)). Regardless of how the other th ree factors are analyzed, 3 it is required that the movant demonstrate an irreparable injury. See, e.g. , Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006) (“A mova nt’s failure to show any irreparable harm is therefore grounds for refusing to issue apreliminary injunction, even if the other three factors entering the calculus merit such relief.”).

3 Plaintiffs argue in favor of a sliding scale approach to evalu ating the four factors, in which a stronger showing on one fact or can be used to compensat e for a weaker showing on a different factor. Pl.’s Mot . at 23, ECF No. 17. The legal found ation for the sliding scale approach is uncertain after the Sup reme Court’s decision in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 (2008). See, e.g. , League of Women Voters of United States v. Newby , 838 F.3d 1, 7 (D.C. Cir. 2016) (“This court , however, has not yet neededto decide [if the sliding scale approach remains viable]. . . . [T]his case presents no occasio n for the court to decide whether the ‘sliding scale’ appro ach remains valid after Winter .”). Because, as discussed above, Plaintiffs do not demonstrate an irreparable injury, which is a necessary showing for preliminary injunctive relief, the Court need not re solve this issue today.4 IV. ANALYSIS The Court considers if Plainti ffs have demonstrated that they w ill suffer an irreparable harm absent the issuance of a t emporary restraining order or pr eliminary injunction, and concludes that they have not. Because showing an irreparable in jury is mandatory, the Court does not consider the remaining factors. Plaintiffs’ motion devotes only a s ingle paragraph to discussin g the irreparable injury requirement. Pl.’s Mot. at 43–44. Pla intiffs argue that prelimi nary injunctive relief is necessary to avoid increased litigation e xpenses, specifically, that: Due to the actions of the feder al guardian leaving the [Plainti ffs] without resources, the cost of the lit igation is being borne by the Pla intiffs. The Plaintiffs’ resources are limited. If the Plaintiffs’ resources are exhaust ed by litigation expense, the litigation will e nd—an irreparable injury. Preserv ing the legal status quo reduces the cost of this litig ation and makes it more likel y the Plaintiffs will cross the litigation finish line. Pl.’s Mot. at 43–44. However, it is well established that litigation expenses are no t an irreparable injury. The D.C. Circuit “has set a high sta ndard for irreparable injury.” Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006). In general, “economic los s does not, in and of itself, constitute irreparable harm.” Nat’l Mining Ass’n v. Jackson , 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (citing Wis. Gas Co. v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985)). This is because an irreparable injury i s one which is “beyond remediati on”—and for economic harms “‘[t]he possibility that adequa te compensatory o r other correct ive relief will be available at a later date, in the ordinary cour se of litigation weighs heavilyagainst a claim of irreparable harm.’” Chaplaincy of Full Gospel Churches , 454 F.3d at 297–98 (quoting Wisc. Gas Co. v.
FERC , 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)).5 The rule against economic losse s constituting irreparable harm applies with full force to litigation expenses. Litigation c osts cannot constitute an irre parable injury for the purposes of granting a preliminary injunction. See Live365, Inc. v. Copyright Royalty Bd. , 698 F. Supp. 2d 25, 45 (D.D.C. 2010) (noting that “[t] he Supreme Court has held that ‘[m]ere litigation expense, even substantial and unrecoupabl e cost, does not constitute irr eparable injury,’” even when those costs “are likely to be substantial” (quoting FTC v. Standard Oil Co. , 449 U.S. 232 , 244 (1980))). The irreparable harm alleged by P laintiffs is precisely the typ e of litigation costs previously rejected by the Suprem e Court, and Plaintiffs offer no legal authority t o the contrary. As to Plaintiffs’ suggestion tha t they may not be able to “cros s the litigation finish line,” Plaintiffs cite no cases sugges ting that this outcome would con stitute an irreparable harm. Even if such a harm could suffice, Pla intiffs have not stated the ap plicable facts here with any specificity. Plaintiffs provide not hing more than a conclusory statement: they do not describe their expected expenses, expect ed costs, or the possible effect s of denying preliminary injunctive relief on either. Indeed, the Court notes that briefing of Defe ndants’ dispositive motion is already complete, 4 which presumably represents a large portion of expected litiga tion expenses (barring the instant motion, which Plaintiffs initiated). In their reply, Plaintiffs expa nd their discussion of irrepara ble injury from one paragraph

to two. See Pl.’s Reply Mem. Supp. Mot. (Pl’s Reply) at 9–10, ECF No. 19. However, Plaintiffs still do not elaborate on the irr eparable injury posed by litig ation costs, except to state conclusorily that “Plaintiffs are not in a position of funding years of litigation.” Pl.’s Reply at 9.

4 Defendants filed a motion to di smiss, ECF No. 10, which Plaint iffs opposed, ECF No. 13, and Defendants replied, ECF No. 14. Also pending are Defend ants’ motion for judicial notice, ECF No. 11, and Plaintiffs’ motion to file a surreply c oncerning the motion to dismiss, ECF No. 15.6 Plaintiffs’ claims that they may run out of money remain specul ative and unclear. As discussed above, this does not suffice to ove rcome the general rule that litigation expenses are not an irreparable injury. Plaintiffs a lso briefly attempt to introduc e a new irreparable injury. See Pl.’s Reply at 9. However, because this argument is new in Plaintiffs ’ reply, the Court will not consider it. 5 See Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau , 785 F.3d 684, 695 n.3 (D.C. Cir. 2015) (refusing to consid er new arguments for irrepa rable injury in a movant’s reply brief because the opposing party “had no opportunity to respond ” and the movant “offer[ed] no reason, much less an extraordinar y one, for its failure to rais e these arguments in its opening brief” (citing CTS Corp. v. EPA , 759 F.3d 52, 60 (D.C. Cir. 2014) and United States v. Whren , 111 F.3d 956, 958 (D.C. Cir. 1997))).
* * *

5 Even if the Court considered t he new arguments in Plaintiffs’ reply, Plaintiffs have failed to demonstrate an irrepara ble injury. An irreparable inj ury must “be both certain and great,” and “actual and n ot theoretical.” Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006) (internal citations and quotatio ns omitted); see also id. (“The moving party must show ‘[t]he in jury complained of is of such i mminence that there is a “clear and present” need for equitable re lief to prevent irreparable h arm.’” (citations omitted)). Plaintiffs argue that “[n]one of the post-election procedures w ill restore to the [Plaintiffs] the pre-election right to re quest or object to the June 14, 201 7 Secretarial election.” Pl.’s Reply at 9. The suggestion that Plaintiffs may lose some ability to obje ct to the election is new in their reply. See, e.g. , Pl.’s Mot. at 44, ECF No. 17 (summa rizing the dispute over th e Secretarial election as: “[Plaintiffs] c ontend[] the June 14, 2017 proposedConstitution is contrary to federal law”). However, Plaintiffs do not discuss what pre-election obj ections they wish to bring or explain why these alleged injur ies would be great. Furthermore, Plaintiffs fail to explain why the loss of any pre-election objecti on would be an irreparable injury, given the admitted availability of post-election procedures. Plaintiffs also suggest that th ey will be injured by the propos ed amendments to the Prairie Island Indian Community’s cons titution, if enacted. Pl.’s Replyat 9. This alleged injury, however, is neither certain nor a ctual. The outcome of the Secr etarial election is undecided. Even if the amendments prevail in the vote, the Secretary must still approve or disapprove the amendments, 25 U.S.C. § 5123(d)(1) , and that approval would con stitute a final agency action that Plaintiffs could challenge, 25 C.F.R. § 81.45(f). Cf. United Farm Workers v. Chao , 593 F. Supp. 2d 166, 170 (D.D.C. 2009) (rejecting a motion for a tempo rary restraining order because plaintiffs were unable to show t hat they would certainly be inj ured by new regulations).7 As discussed above, Plaintiffs’ mo tion for a temporary restrain ing order or preliminary injunction fails because Plaintiffs do not demonstrate an irrep arable injury. This conclusion is further bolstered by the disfavore d nature of injunctive relief barring an election when only one outcome of the election would allegedly impair the movants righ ts. Because the proposed measures may yet be voted down a nd the controversy avoided, man y courts have declined to enjoin elections in analogous circumstances. See, e.g. , Ranjel v. City of Lansing , 417 F.2d 321, 325 (6th Cir. 1969) (reversing a pre liminary injunction against a referendum on a proposition that allegedly violated the Fourt eenth Amendment because “[w]e believe the better practice [i]s . . . [to] allow[] the electi on to proceed and rule[] on the va lidity of the measure after its passage”), cert. denied , 397 U.S. 980 (1970); Nevada Rest. Ass’n v. Pest Comm. , No. 3:08-CV00118, 2008 WL 8225546, at *4 (D. Ne v. July 15, 2008) (“Insofar as the few federal courts that have entertained such challenges [to ballot measures pre-electi on] are concerned, those courts have only done so where the propos ed measures were plainly unco nstitutional.”); Ajax Gaming Ventures, LLC v. Brown , No. CVIA 06-336, 2006 WL 2302192, a t *2–3 (D.R.I. Aug. 8, 200 6) (“[T]he Court is not prepared t o say without doubt that the pro posed amendment is ‘patently’ unconstitutional, nor is this cas e of such an ‘exceptional’ nat ure as to warrant i ntervention before the election has yet come t o pass . . . . This Court may never be called upon to rule on the constitutionality of the propose d amendment: the electorate mayvote it down in November. Courts should not wade into const itutionally torrid waters unle ss doing so is unavoidable. That is not the case here.” (citations omitted)); Diaz v. Bd. of Cty. Comm’rs of Dade Cty. , 502 F. Supp. 190, 193 (S.D. Fla. 1980) (“In this a ction, the plaintiffs clai m they will be damaged by the results of the referendum; they will not be damaged by the act of votin g itself. This Court has decided that the act of voting must be allowed. A determination of the constitutionality of the results8 must wait until that now-hypothetical time when there may be ac tual results.”). The rare exceptions to this rule occur ma inly when the proposed measure is patently unconstitutional. See,

e.g. , Otey v. Common Council of City of Milwaukee , 281 F. Supp. 264, 276 (E.D. Wis. 1968) (blocking the submission of a “pa lpably unconstitutional” resol ution to a referendum). In this case, Plaintiffs have not argued, and this Court does n ot conclude, that the proposed amendments are patentlyunconstitutional. As in other election cases, this Court is not yet squarely faced with the controversy concerning the amendmen ts because the proposed amendments may be voted down. Furthermore, even if approved by the voters, the proposed amendments face additional hurdles before they could take effec t. The Secretary must either approve or disapprove the ame ndments. 25 U.S.C. § 5123(d)(1). I f the Secretary approves the amendments, that approval would constitute a final agency actio n, 25 C.F.R. § 81.45(f), presumably subject to APA challe nge by Plaintiffs. These reason s bolster this Court’s conclusion that preliminary relief to prev ent the election is inappropriat e.

V. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for Temporary Res training Order and a Preliminary Injunction (ECF No. 17) is DENIED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: June 9, 2017 RUDOLPH CONTRERAS United States District Judge