NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WINNEMUCCA INDIAN COLONY; 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

No. 18

- 17121

D.C. No. 3:11

- cv

- 0062 2

- RCJ

- CBC

MEMORANDUM *

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUN 15 2020

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

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, t he 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 a nd remand with instructions

to dismiss

.

“ Subject matter jurisdiction must exist as of the time the action is

commence d .” 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.3

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 Procedu re 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. Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs , 543 F.3d
586, 591 (9th Cir. 2008) ( “ [F] inality is a jurisdictional requirement to obtaining
judicial review under the APA

. ” ).

T here was no final agency action here because at the time th e complaint was
filed, the Bureau of In dian Affairs (BIA) 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 Interio r Board of Indian Appeals (IBIA) to answer those very
questions. A ny 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. Grass rope , 708 F.2d 3 3 5 (8th Cir. 1983), is inapt because there the court
was reviewing “the BIA’s final decision whic h, in effect, declined to recognize either

faction.” Id. at 336

– 37 (emphasis added). Here, the BIA was still in the process of4

making such a decision, and so there was no final agency action.
The district court erred in concluding that further exhaustio n 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

f utile where continuing administrative proceedings “would clearly be of no avail,”
Fones4All Corp. v. FCC , 550 F.3d 811, 818 (9th Cir. 2008), where there is “c ertainty
of an adverse decision,” Agua Caliente Tribe of Cupeño Indians of Pala Reservation

v. Swe eney , 932 F.3d 1207, 121 9 (9th Cir. 2019) , or where there is “undisputed
evidence of administrative bias,” White Mountain , 840 F.2d at 677.
In this case, and a t 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 a n interim tribal government
and, if so, which faction it would recognize. Nothing in the record i ndicates 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 BIA 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 various5

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 th e dismissal of this action

and the vacatur of the district cou r t’s orders wil l 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 quotatio ns omitted) ; see also Boe

v. Fort Belknap Indian Cmty. of F ort Bel knap Reservation , 642 F.2d 276, 280 n.7
(9th Cir. 1981)

.
VACATED and REMANDED with instructions to DISMISS

.