UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE CAYUGA NATION, et al., 

Plaintiffs,

v. 

RYAN ZINKE, et al., 

Defendants,

THE CAYUGA NATION COUNCIL,

 Defendant-Intervenor. 

Civil Action No. 17-cv-1923 (CKK) 

MEMORANDUM OPINION

(March 27, 2018) 

The Cayuga Nation is a federally recognized Indian Nation. This case deals with 

decisions by the Bureau of Indian Affairs (“BIA”) and the Assistant Secretary for Indian Affairs 

of the Department of the Interior (“DOI”) that recognized one faction within the Cayuga 

Nation—now referring to itself as the “Cayuga Nation Council,” though alternatively referred to 

in the administrative record as the “Halftown Group”—as the governing body of the Cayuga 

Nation for the purposes of certain contractual relationships between that Nation and the United 

States federal government. These decisions were the product of an adversarial process between 

the Cayuga Nation Council and Plaintiffs, a rival faction within the Cayuga Nation who assert 

that they represent the Nation’s rightful government. Plaintiffs have filed this lawsuit seeking to 

overturn the BIA and DOI decisions. 

Now before the Court is Plaintiffs’ [22] Motion for Preliminary Injunction. Upon 

consideration of the pleadings,1

 the relevant legal authorities, and the record as a whole, the 

 

1

 The Court’s consideration has focused on the following documents: 

• Pls.’ Mot. for Preliminary Injunction, ECF No. 22 (“Pls.’ Mot.”); 
2 

Court DENIES Plaintiffs’ Motion. Plaintiffs have not demonstrated that they are likely to 

succeed on their claims, most of which are based on speculation or can be distilled to mere 

disagreements with the decisions reached by the agency. Moreover, Plaintiffs’ irreparable injury 

showing is relatively weak, and the balance of the equities and public interest favor denying 

preliminary injunctive relief. 

I. BACKGROUND

This case arises from a long-standing dispute between rival factions within the Cayuga 

Nation. Plaintiffs allege that the Cayuga Nation has long been governed by a Council of Chiefs 

selected and overseen by “Clan Mothers,” whom Plaintiffs purport to represent in this litigation. 

Compl., ECF No. 1, ¶¶ 1-2. Plaintiffs assert that “Cayuga Nation leaders are selected pursuant to 

the Great Law of Peace, which gives that responsibility of nomination and removal to the women 

who serve as Clan Mothers, based on input from the members of their clans.” Id. ¶ 31. 

According to Plaintiffs, this is a “deliberative and consensus-based” process for selecting leaders. 

Id. ¶ 33. Plaintiffs allege that the United States federal government had previously recognized 

this form of governance for the Cayuga Nation, and rejected efforts over the years by a faction 

known as the “Halftown Group” to secure support for the use of a mail-in survey2

 to reconfigure 

 

• Def. Int.’s Opp’n to Pls.’ Mot. for Preliminary Injunction, ECF No. 31 (“Def. Int.’s 

Opp’n”); 

• Fed. Defs.’ Opp’n to Pls.’ Mot. for Preliminary Injunction, ECF No. 32 (“Fed. Defs.’ 

Opp’n”); and

• Pls.’ Reply in Support of Mot. for Preliminary Injunction, ECF No. 37 (“Pls.’ Reply”). 

In an exercise of its discretion, the Court finds that holding oral argument in this action would 

not be of assistance in rendering a decision. See LCvR 7(f). 

2

 The Court understands that there is some dispute as to how to properly refer to the “mail-in 

survey.” That process is alternately referred to in the briefing and record as, among other things, 

a mail-in survey, a “Statement of Support” campaign, and a “plebiscite.” For the sake of 

consistency and ease of understanding, the Court refers to the disputed process in this 

Memorandum Opinion as the “mail-in survey,” but by doing so makes no substantive judgment 

about the nature of the process. 
3 

the Cayuga Nation’s government. Id. ¶¶ 34-36. 

 However, in June 2016, Defendant Bruce W. Maytubby, the Eastern Regional Director of 

the BIA, revealed to Plaintiffs that the Halftown Group intended to conduct a mail-in survey in 

order to create a new government for the Cayuga Nation, and that it was Mr. Maytubby’s view 

that the proposed survey “would be a viable way of involving the Cayuga people in a 

determination of the form and membership of their government.” Id. ¶¶ 37, 40. Plaintiffs 

contend that this determination was the result of secret meetings between the BIA and the 

Halftown Group, from which Plaintiffs were excluded. Id. ¶ 38. Plaintiffs objected to the 

proposed survey, arguing, among other things, that it violated Cayuga law. Id. ¶ 42. 

 On December 15, 2016, Defendant Maytubby issued a decision “(1) recognizing the 

Halftown Group as the government of the Cayuga Nation for purposes of entering into a 

contract under the ISDEAA [Indian Self-Determination and Education Assistance Act] and 

declining to recognize Plaintiffs for such purposes; (2) awarding an ISDEAA contract grant to 

the Halftown Group, on behalf of the Cayuga Nation; and (3) declining to award an ISDEAA 

contract to [Plaintiffs] on behalf of the Cayuga Nation.” Id. ¶ 54 (emphasis added). Plaintiffs 

characterize this decision as a reversal of “longstanding federal policy,” and challenge it on a 

number of substantive and procedural grounds. Id. ¶¶ 55-81. 

 Defendant Maytubby’s December 15, 2016 decision indicated that it constituted final 

agency action, id., Ex. A at 15, and was accompanied by a delegation of authority to Mr. 

Maytubby to take such action, id. ¶ 55. Nonetheless, Plaintiffs did not file a lawsuit challenging 

this decision when it was issued. Instead, Plaintiffs filed a notice of appeal with the Interior 

Board of Indian Appeals (“IBIA”) arguing that additional administrative review was appropriate 

because the delegation of authority to Defendant Maytubby to take final agency action was 
4 

ineffective. Id. ¶¶ 82-83. The IBIA docketed the appeal and requested briefing on the delegation 

issue. Id. ¶¶ 84-85. Shortly thereafter, Defendant Michael Black, the then-Acting Assistant 

Secretary – Indian Affairs, withdrew the contested delegation to Mr. Maytubby, and himself 

assumed jurisdiction over Plaintiffs’ administrative appeal. Id. ¶¶ 86-87. The parties submitted 

briefs on the merits of the dispute to Defendant Black, who ultimately issued a decision on July 

13, 2017, denying Plaintiffs’ appeal of Defendant Maytubby’s decision. Id. ¶¶ 93-95. 

 On September 20, 2017, Plaintiffs filed this lawsuit, claiming that Defendants had 

violated the Administrative Procedure Act (“APA”) and Plaintiffs’ constitutional right to due 

process. Id. ¶¶ 100-65. As relief, Plaintiffs ask that both Mr. Maytubby’s decision and Mr. 

Black’s decision be declared unlawful and vacated, that the Court enjoin Defendants from 

relying on the vacated decisions for any action by the DOI, that the individuals involved in 

rendering these decisions be enjoined from further adjudicating the questions in this case, that 

this matter be remanded to the BIA “for government to government consultation and, as 

appropriate, decision by a neutral decision-maker on recognition and the Plaintiffs’ ISDEAA 

application,” and that they be granted costs and attorneys’ fees. Id. at 26-27. 

II. LEGAL STANDARD

 Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon 

a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 

392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). 

A plaintiff seeking a preliminary injunction “must establish [1] that he is likely to succeed on the 

merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that 

the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 
5 

(quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). When

seeking such relief, “‘the movant has the burden to show that all four factors, taken together, 

weigh in favor of the injunction.’” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) 

(quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The 

four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at 1291 (citation 

omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong 

showing on one of the factors, then it does not necessarily have to make as strong a showing on 

another factor.” Id. at 1291–92.3

III. DISCUSSION

 A preliminary injunction is an extraordinary form of relief, not to be granted regularly in 

APA cases whenever a party is aggrieved by the decision of a government agency. This case 

does not present the exceptional circumstances that would warrant such an injunction. Most 

importantly, Plaintiffs have not demonstrated a likelihood of success on their substantive claims. 

The Court has reviewed the record and concludes, at least at this preliminary stage, that 

Plaintiffs’ claims are primarily based on speculation, assignations of nefarious intent and mere 

disagreements with the determinations reached by agency decisionmakers. Moreover, Plaintiffs’ 

attempt to demonstrate that they will suffer irreparable injury in the absence of an emergency 

 

3 The Court notes that it is not clear whether this circuit’s sliding-scale approach to assessing the 

four preliminary injunction factors survives the Supreme Court’s decision in Winter. See Save 

Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several 

judges on the United States Court of Appeals for the District of Columbia Circuit (“D.C. 

Circuit”) have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an 

independent, free-standing requirement for a preliminary injunction.’” Sherley, 644 F.3d at 393 

(quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the D.C. Circuit has yet to 

hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs 

USA, 105 F. Supp. 3d at 112. In any event, this Court need not resolve the viability of the 

sliding-scale approach today, as it finds that none of the preliminary injunctive factors favors 

awarding relief on the pending motion. 
6 

injunction is similarly based on speculation. It is also belied by Plaintiffs’ considerable delay in 

seeking such relief—not while exhausting their administrative remedies, but after final agency 

action was taken. Finally, neither the public interest nor the equities favor granting Plaintiffs’ 

motion. 

A. Likelihood of Success on the Merits

First and foremost, the Court is not persuaded that Plaintiffs are likely to prevail on the 

merits of their claims. The Court cautions that this does not represent a final adjudication of 

Plaintiffs’ claims. Despite the Court’s admonition that pursuing a preliminary injunction motion 

in this APA case was not an efficient use of the parties’ or the Court’s time and resources, 

Plaintiffs have insisted on litigating this motion before moving on to a full and final briefing on 

the merits of their claims. There is a troubling trend in APA cases whereby plaintiffs are 

routinely filing preliminary injunction motions simply to “jump the queue” and have the Court 

consider the merits of their claims immediately. There are certainly instances where such 

motions are necessary and appropriate to prevent an impending injury, but increasingly these 

“emergency” motions are being filed simply because the plaintiff is aggrieved by an agency 

decision and wants the Court to focus its attention on its claims immediately, at the expense of 

the claims of other litigants. This practice is strongly discouraged. See Am. Bioscience, Inc. v. 

Thompson, 269 F.3d 1077, 1084 n.8 (D.C. Cir. 2001) (warning against the use of preliminary 

injunction motions in APA cases); Emily’s List v. Fed. Election Comm’n, 362 F. Supp. 2d 43, 53 

(D.D.C.), aff’d, 170 F. App’x 719 (D.C. Cir. 2005) (“the preliminary injunction stage is not the 

appropriate time to consider the merits of Plaintiff’s substantive APA claims.”). The Court 

addresses the merits of Plaintiffs’ claims below, but only in the limited context of determining 

whether Plaintiffs have satisfied the likelihood of success requirement for a preliminary 
7 

injunction. 

Plaintiffs assert four different claims in their Complaint and Motion for Preliminary 

Injunction: “(a) violation of the well-established legal principal that Indian nations retain the 

exclusive right to govern themselves; (b) failure to provide a reasoned basis for an abrupt 

reversal in agency policy; (c) no rational connection between the facts about the mail-in survey 

approved by the BIA and the conclusion that the survey was reliable; and (d) due process 

violations including prejudgment, collusion with one faction, and failure to provide a neutral 

decision-maker.” Pls.’ Mot. at 4. Plaintiffs have not satisfied their burden of demonstrating that 

they are likely to succeed on any of these claims. 

First, Plaintiffs have not demonstrated a likelihood of succeeding on their claim that

Defendants acted contrary to law by interfering with the right of the Cayuga Nation to govern 

itself. In summary form, Plaintiffs argue that Defendants violated the APA by “imposing” a 

plebiscite requirement on the Cayuga Nation that is contrary to the Nation’s traditional manner 

of choosing its leaders. Id. at 4-9. This argument is not supported by the record. Defendants’ 

decision was a narrow one: they did not “impose” a form of governance, or particular leaders, on 

the Cayuga Nation. See AR1558 (“The Regional Director did not ‘Mandate’ Cayuga 

government by plebiscite”). The BIA provided technical assistance with a mail-in survey that 

one faction within the Cayuga Nation wanted to pursue. Defendants were then presented with 

competing contract proposals, each purportedly on behalf of the Cayuga Nation. These 

inconsistent proposals forced Defendants to determine which of two rival factions represented

the Cayuga Nation’s rightful government for the purposes of conducting government-togovernment relations with the United States. Failure to have made this determination would 

have jeopardized the Nation’s citizens by leaving them without governmental representation and 
8 

potentially without United States government funding and programs. See Goodface v. 

Grassrope, 708 F.2d 335, 339 (8th Cir. 1983) (“The BIA, in its responsibility for carrying on 

government relations with the Tribe, is obligated to recognize and deal with some tribal 

governing body in the interim before resolution of the election dispute.”). 

Making this necessary determination was not the equivalent of “imposing” anything on 

the Cayuga Nation. Although Plaintiffs disagree with Defendants’ ultimate decision to recognize 

the Halftown Group as the Nation’s government for the purpose of contracting with the federal 

government, that decision did not violate the principle of self-governance for Indian Nations—

the Cayuga Nation remains free to govern itself however it chooses. If anything, the decision 

exemplified that principle, because it relied on statements of support by Cayuga Nation citizens

about whom they recognized as their government. See Ransom v. Babbitt, 69 F. Supp. 2d 141, 

150 (D.D.C. 1999) (“In situations of federal-tribal government interaction where the federal 

government must decide what tribal entity to recognize as the government, it must do so in 

harmony with the principles of tribal self-determination.”). 

During the administrative proceedings Plaintiffs argued to the Defendants that this 

process violated Cayuga law. But others within the Cayuga Nation argued that the process was 

lawful. Defendants considered the competing arguments about whether the proposed survey 

process was valid under Cayuga law and reasonably decided that it was valid. Defendants’ 

interpretation of Cayuga law was supported by the Haudenosaunee Great Law of Peace—which 

both sides appear to acknowledge as a basis of traditional Cayuga law—which states that:

Whenever a specially important matter or a great emergency is 

presented before the Confederate Council and the nature of the 

matter affects the entire body of the Five Nations, threatening their 

utter ruin, then the Lords of the Confederacy must submit the matter 

to the decision of their people and the decision of the people shall 

affect the decision of the Confederate Council. This decision shall 
9 

be a confirmation of the voice of the people. 

AR1557. Defendants made a determination that this passage meant that the power of the 

government of the Cayuga Nation derives from the consent of the governed, and that therefore a 

survey campaign that asked Cayuga citizens to indicate whom they consented to being governed 

by was consistent with Cayuga law. Id. This conclusion was certainly reasonable. Plaintiffs 

may disagree and have a different interpretation of Cayuga law, but that does not make 

Defendants’ interpretation arbitrary or capricious, especially considering the deference owed to 

the Executive branch in these matters. See Timbisha Shoshone Tribe v. Salazar, 678 F.3d 935, 

938 (D.C. Cir. 2012) (“we owe deference to the judgment of the Executive Branch as to who 

represents a tribe”). The Court cannot say that Plaintiffs are likely to succeed on this aspect of 

their lawsuit. 

 Second, Plaintiffs have not established that they are likely to succeed on their claim that 

Defendants failed to explain their reasoning for accepting the results of the mail-in survey when 

choosing which faction constituted the legitimate government of the Cayuga Nation for the 

purpose of contracting with the federal government. This argument is based on the principle that 

“[a]n agency acts unreasonably for purposes of the APA when, for example, it departs from its 

past precedent without reasonably explaining and justifying the departure.” Indiana Boxcar 

Corp. v. R.R. Ret. Bd., 712 F.3d 590, 591 (D.C. Cir. 2013). Plaintiffs claim that Defendants’

decision constituted an unexplained reversal of past federal policy. 

Again, the Court disagrees. Although Defendants had, in the past, declined to recognize 

new governments for the Cayuga Nation on the basis of similar survey efforts, they had done so 

because they were able at those times to recognize an undisputed 2006 council as the Nation’s 

government. In those past instances, Defendants warned that their decisions were temporary, 

and that if the rival factions within the Cayuga Nation were not able to resolve their disputes 
10 

internally, Defendants might eventually have to make a new determination of the Nation’s 

leadership. The dispute had not resolved itself over the intervening years. In the decision at 

issue in this case, Defendants explained that—unlike in the past—they could no longer simply 

recognize the 2006 council as the government of the Cayuga Nation, because that council had 

not submitted a contract proposal. Instead, having been presented with proposals from two 

competing disputed leadership factions, each purporting to represent the Cayuga Nation, 

Defendants were forced to make a new determination about the Nation’s government for 

purposes of entering into contracts with the Nation and providing it with services and funding. 

Defendants explained that they chose to recognize the Halftown Group because a majority of 

Cayuga Nation citizens had indicated their support for that faction through a process that 

Defendants determined was consistent with Cayuga law and adequately executed. All of this 

was explained by Defendants in a manner that easily satisfied the APA’s requirement that 

changes to agency policy be explained. See AR1546-47, 1551, 1556, 1565-67. 

Third, Plaintiffs have not established that they are likely to succeed on their claim that 

“there is no rational connection between the facts relative to the mail-in survey and the 

conclusion reached by agency decision-makers that it was a ‘viable way of involving the Cayuga 

people in a determination of the form and membership of their government.’” Pls.’ Mot. at 13-

14 (quoting Pls.’ Mot., Ex. D at 1). Basically, Plaintiffs argue that Defendants ignored expert 

evidence that Plaintiffs presented that allegedly showed that the mail-in survey was not reliable 

for a number of reasons, including evidence “regarding Mr. Halftown’s treatment of political 

opponents” (in other words, evidence that Cayuga citizens would not feel free to vote against the 

Halftown Group because they would fear retribution from Mr. Halftown). Id. at 13-17. 

The record does not support Plaintiffs’ assertion that this evidence was ignored. Instead, 
11 

the record shows that this evidence was thoroughly considered, but was rejected. AR11569-71. 

As Defendant Black found, “the Regional Director devoted several pages in the Decision to 

explaining why he did not believe that the experts’ concerns undermined the Initiative as a 

whole.” AR1569. “The Decision was not arbitrary and capricious merely because Appellants 

believe their experts were correct.” AR1570. The Court agrees. Defendants decided that the 

survey was a reliable way of determining the will of the Cayuga people despite the alleged 

deficiencies highlighted by Plaintiffs’ evidence. Plaintiffs disagree, but that disagreement is not 

a sufficient basis for this Court to overturn an agency decision under the APA. To the extent 

Defendants’ discussion of this issue did not address every single alleged deficiency in the mail-in 

survey process, this is not enough to render Defendants’ decision as a whole arbitrary or 

capricious. Again, Defendants’ reliance on the survey was narrow. Defendants did not use the 

survey to force a particular government on the Cayuga Nation, but instead merely considered it 

in the context of determining which of two rival leadership factions should be recognized for the 

purposes of entering into a contract with the federal government. Defendants adequately 

addressed the general argument that the mail-in survey was not reliable for that purpose. They 

were not required to rebut every single aspect of that argument individually. 

Finally, the Court is also not convinced that Plaintiffs have a likelihood of succeeding on 

their due process claims. Plaintiffs claim that Defendants prejudged the determination of the 

Cayuga Nation’s leadership before Plaintiffs were ever given a chance to be heard on the issue. 

Pls.’ Mot. at 17-21. This claim, like Plaintiffs’ others, is belied by the record. Plaintiffs were 

invited to be involved in the mail-in survey, were asked to provide alternative proposals for 

resolving the Nation’s leadership dispute, and were given considerable opportunity to be heard 

about the legality and reliability of the campaign during the administrative proceedings below. 
12 

There is no reason to think that Defendants had predetermined how they would decide these 

issues before giving Plaintiffs these opportunities to be heard, or that this entire administrative 

process was a sham.

Plaintiffs put great emphasis on a letter sent by Defendant Maytubby to Plaintiffs at the 

outset of administrative proceedings that indicated that the mail-in survey would “be a viable 

way of involving the Cayuga people in a determination of the form and membership of their 

tribal government.” Pls.’ Mot. at 19. This letter does not indicate, as Plaintiffs have argued, that 

Defendants had predetermined to approve the use of the mail-in survey. Instead, it indicates 

Defendant Maytubby’s fairly unremarkable belief that a mail-in survey that asked for the input of 

the Cayuga Nation’s citizens on their choice for government would be one way of involving the 

Cayuga people in the determination of their government.4

 There is no reason to interpret the 

remark as showing that Defendants had predetermined the substantive questions regarding the 

legality of the survey or whether the survey would be fairly executed in practice. The parties 

would go on to litigate those issues for months afterward. To the extent Plaintiffs claim that 

Defendants Maytubby or Black prejudged the dispute because they were biased against 

Plaintiffs, this claim is not supported by the record. Administrative adjudicators are entitled to a 

presumption of honesty and integrity, Withrow v. Larkin, 421 U.S. 35, 47 (1975), and Plaintiffs 

fall far short of making the type of showing that could overcome that presumption. 

 

4 Plaintiffs’ claims of bias, prejudgment and other unfair conduct by Defendants Maytubby and 

Black may suffer from an additional flaw. In large part, Plaintiffs appear to not have 

meaningfully raised these arguments below, and may have therefore waived them. “Claims of 

bias must be raised as soon as practicable after a party has reasonable cause to believe that 

grounds for disqualification exist.” See Power v. Fed. Labor Relations Auth., 146 F.3d 995, 

1002 (D.C. Cir. 1998) (internal quotation marks and modifications omitted). Without making 

any final ruling on this point, the Court notes it as another reason why Plaintiffs have not 

established a likelihood of success in this lawsuit. 
13 

Nor have Plaintiffs demonstrated that there was anything wrongful about Defendants’ 

consultations and communications with the Halftown Group. As Defendant Black noted, 

Plaintiffs have not pointed to any legal requirement that the BIA only meet with a tribal 

leadership faction if other factions are present as well. See AR1564. Indeed, it is difficult to see 

how the BIA could fulfill its responsibility to assist Indian Nations with leadership disputes 

without such communications. Moreover, ex parte communication are not prohibited for the 

purposes of appeals—like the administrative appeal in this case—governed by 25 C.F.R. Part 2. 

See United States v. Navajo Nation, 537 U.S. 488, 513 (2003) (because appeal was taken under 

25 C.F.R. 2.20, “the regulatory proscription on ex parte contacts applicable in Board proceedings 

thus did not govern.”). 

Plaintiffs also argue that their administrative appeal rights were compromised, but this 

argument does not withstand scrutiny. Plaintiffs complain about the delegation of authority to 

Defendant Maytubby to take final agency action, but ignore that the delegation was subsequently 

withdrawn. Plaintiffs complain about Defendant Black’s assumption of jurisdiction over their 

appeal after the delegation to Defendant Maytubby was withdrawn, but do not appear to dispute 

that his doing so was expressly permitted by regulation. See 25 C.F.R. § 2.20(c) (giving the 

Assistant Secretary – Indian Affairs the authority to decide to issue a decision in an appeal to the 

IBIA). 

Finally, Plaintiffs claim that Defendant Black unfairly adjudicated their appeal of the 

BIA’s decision, despite having been involved in that decision in the first instance. The support 

for this argument is threadbare. It appears to be premised on the fact that Defendant Black was 

one of the individuals to whom the parties had submitted their briefs related to the underlying 

decision. Pls.’ Mot. at 23. This fact alone does not demonstrate that Defendant “actively 
14 

participated” in the decision, as Plaintiffs claim. Id. This absence of any substantial record 

support for Plaintiffs’ argument that Defendant Black was involved in the underlying decision is 

consistent with Defendant Black’s declaration, in which he avers that “at no point was I actively 

involved in the decision making process preceding the BIA Eastern Regional Director’s 

December 15, 2016 decision . . . to recognize Clint Halftown and his associates as the proper 

leadership of the Nation.” Decl. of Michael S. Black, ECF No. 32-1, ¶ 4. Mr. Black further 

states that he “neither discussed the details of the Decision with the Eastern Regional Office nor 

reviewed any drafts of the decision,” nor did he “participate in the consideration, drafting, 

editing, or any other review or discussion of the Decision.” Id. After taking over the appeal of 

the decision, Defendant Black “did not consult with the Eastern Region concerning the 

Decision.” Id. at 6. Plaintiffs’ assertions to the contrary are pure speculation. 

In sum, the Court has reviewed the parties’ preliminary injunction briefing and the record 

for the purposes of this motion, and finds Plaintiffs’ legal claims unpersuasive. Again, this is 

only a preliminary assessment of Plaintiffs’ claims. At this stage, Plaintiffs have not carried their 

significant burden of demonstrating that they are likely to succeed in this lawsuit and are 

therefore entitled to the extraordinary relief of a preliminary injunction.5

B. Irreparable Injury

Plaintiffs’ weak showing of irreparable injury is another factor that counsels against 

issuing a preliminary injunction. To show that a preliminary injunction is warranted, Plaintiffs 

 

5 In a footnote in their Reply brief, Plaintiffs note that they “have discovered certain errors and 

omissions” in the administrative record that are not subject to their pending Motion to 

Supplement, and request the opportunity to bring those deficiencies to the attention of the Court 

if they are unable to resolve them with Defendants in a collaborative fashion. Pls.’ Reply at 2 

n.3. The parties shall cooperate with each other to resolve or narrow their issues without Court 

intervention if at all possible. If not, Plaintiffs shall bring these issues to the Court’s attention in 

an expeditious manner, so that the resolution of their claims on the merits is not further delayed.
15 

must demonstrate that there is a likelihood they will suffer irreparable harm in the absence of 

injunctive relief. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. 

Cir. 2006) (“A movant’s failure to show any irreparable harm is therefore grounds for refusing to 

issue a preliminary injunction, even if the other three factors entering the calculus merit such 

relief.”). The D.C. Circuit “has set a high standard for irreparable injury.” Id. “First, the injury 

‘must be both certain and great; it must be actual and not theoretical.’” Id. (citation omitted). 

“Second, the injury must be beyond remediation.” Id. 

Plaintiffs assert that in the absence of a preliminary injunction they will suffer various 

types of irreparable injuries. These include an injury to their ability to carry out their Cayuga 

Nation governmental functions, an injury to the government-to-government relationship between 

the Cayuga Nation and the United States through interference with the Nation’s mode of 

governance, injuries from the Halftown Group taking advantage of the administrative decisions 

challenged in this case in various other forums, and a per se irreparable injury caused by the

violation of Plaintiffs’ constitutional right to due process. 

There are several overarching problems that substantially weaken Plaintiffs’ irreparable 

injury showing. First, what the Court views as the main injury asserted in this case—the alleged

deprivation of a fair administrative process—can be remedied if Plaintiffs are successful. The 

Court has the authority to vacate the challenged decisions and order Defendants to reconsider 

them in a manner consistent with the APA and Plaintiffs’ due process rights. This injury is 

therefore not irreparable. 

Second, many of the injuries Plaintiffs claim will befall them are speculative and 

dependent on the actions of third parties or even other courts. Plaintiffs claim that they will be 

injured by relief that may or may not be granted by a New York state court, decisions that a 
16 

federal district court in New Mexico may make, and by certain activities of the Environmental 

Protection Agency. Because these injuries depend on actions that may or may not be taken by 

other courts or non-parties over which this Court does not have control, they are not certain. 

Similarly, the injunctive relief Plaintiffs seek would not necessarily prevent them from occurring. 

This disconnect and uncertainty counsel against granting preliminary injunctive relief. See

Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (“the movant must show that 

the alleged harm will directly result from the action which the movant seeks to enjoin.”). 

Third, Plaintiffs have been slow to seek a preliminary injunction, which belies their 

current claim to need emergency relief. Although the Court agrees with Plaintiffs that this factor 

is not dispositive of the irreparable injury question, it is relevant because “[a]n unexcused delay 

in seeking extraordinary injunctive relief may be grounds for denial because such delay implies a 

lack of urgency and irreparable harm.” Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 

2005). Plaintiffs argue that they should not be punished for availing themselves of 

administrative processes, but the delay that the Court is concerned with is that which occurred 

after the agency took final action. The final agency action at issue in this case was taken on July 

13, 2017. AR1572. Plaintiffs did not file this lawsuit until 69 days later, on September 20, 2017. 

See Compl. It was another 142 days, on February 9, 2018, that Plaintiffs filed the pending 

Motion for Preliminary Injunction. See Pls.’ Mot. In other words, Plaintiffs did not seek 

preliminary injunctive relief from this Court for nearly seven months after the final agency action 

in this case. This delay weakens Plaintiffs’ irreparable injury showing. 

Finally, several aspects of Plaintiffs’ alleged irreparable injuries depend completely on 

the Court accepting Plaintiffs’ view of the disputed claims in this case. However, as explained 

above, the Court has made a preliminary assessment that Plaintiffs are unlikely to succeed on 
17 

those claims. For example, Plaintiffs claim that their ability to exercise “sovereign governmental 

authority” is burdened in the absence of preliminary injunctive relief. Pls.’ Mot. at 27. But to 

find that this is an injury Plaintiffs would actually suffer, the Court would have to accept 

Plaintiffs’ disputed interpretation of the decisions at issue in this case—i.e., that they imposed a 

form of governance by plebiscite on the Cayuga Nation. As discussed above, the Court is not 

convinced at this point that Plaintiffs’ interpretation is correct. Defendants do not appear to have 

imposed anything on the Cayuga Nation, nor do they appear to have prevented Plaintiffs from 

exercising any governmental authority. Instead, Defendants issued a narrow decision that 

recognized one of two rival factions within the Cayuga Nation for the purposes of choosing 

between two competing proposals to contract with the federal government on the Nation’s 

behalf. 

Similarly, Plaintiffs claim that they are suffering a per se irreparable injury because their 

due process rights were violated. Putting aside the fact that the cases Plaintiffs cite for this 

proposition do not deal with alleged deprivations of procedural due process, the Court finds this 

argument unpersuasive because it has determined that Plaintiffs have not demonstrated a 

likelihood of success on their due process claims. Finally, Plaintiffs claim damage to their treaty 

relationship with the United States because the BIA has “impos[ed] a plebiscite process on the 

Cayuga Nation.” Pls.’ Mot. at 30. However, as the Court has already explained above, the 

record does not appear to support this claim. Instead of “imposing” anything on the Cayuga 

Nation, the BIA appears to have merely provided technical assistance to a group within the 

Nation that wanted to pursue a mail-in survey, and determined which of two competing factions 

represented the Cayuga Nation’s rightful government for purposes of government-to-government 

relations with the United States. Nothing about this decision requires the Cayuga Nation to 
18 

govern itself in any particular manner or deprives the Plaintiff Clan Mothers of their authority. 

Taken together, the issues discussed above prevent Plaintiffs from satisfying the “high 

standard for irreparable injury” that has been set by the D.C. Circuit. Chaplaincy of Full Gospel 

Churches, 454 F.3d at 297. This failure is an additional reason, in conjunction with Plaintiffs’ 

failure to persuade the Court about the merits of their claims, to deny Plaintiffs’ Motion for 

Preliminary Injunction. 

C. Balance of Equities and Public Interest 

Finally, neither the balance of the equities nor the public interest favor granting 

preliminary injunctive relief in this case. “A party seeking a preliminary injunction must 

demonstrate both ‘that the balance of equities tips in [its] favor, and that an injunction is in the 

public interest.’” FBME Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 127 (D.D.C. 2015) (quoting 

Winter, 555 U.S. at 20) (alteration in original). “These factors merge when the Government is 

the opposing party.” Id. (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). 

Plaintiffs claim that the equities are in their favor because they merely seek to maintain 

the “status quo.” Pls.’ Mot. at 36-37. This is plainly incorrect.6 Plaintiffs seek to alter the status 

quo. Plaintiffs seek an order that would prevent the enforcement or reliance on the currentlyoperative decision of Defendants to recognize the Defendant-Intervenor as the government of the 

Cayuga Nation. During the period Plaintiffs delayed filing for a preliminary injunction after 

Defendant Black issued his decision, the DOI has been carrying on government-to-government 

relations with the Cayuga Nation through the Halftown Group. Fed. Defs.’ Opp’n at 1. That 

 

6 The parties dispute whether a more demanding standard applies to motions for preliminary 

injunctions that seek to alter the status quo, as opposed to motions that seek to merely maintain 

the status quo. The Court need not decide this point, because Plaintiffs are not entitled to a 

preliminary injunction under even the traditional preliminary injunction standard. 
19 

relationship is the status quo. The relief Plaintiffs seek would effectively sever that relationship, 

and return the parties to a state where there is no recognized government of the Cayuga Nation 

which the United States can relate to in carrying out its responsibilities to the Cayuga Nation. 

The Court understands that, absent this relief, Plaintiffs will continue to suffer what they 

view as a hardship by not being the recognized government of the Cayuga Nation for the 

purposes of interacting with the federal government. But if their motion were to be granted, that 

same harm would simply befall Defendant-Intervenor instead. Apart from this type of harm to 

the rival leadership factions, the Court is persuaded that severing the relationship between the 

federal government and the Halftown Group would have tangible negative effects on the Cayuga 

Nation itself and its people. The requested injunction would jeopardize the Nation’s receipt of 

federal funding, as well as interrupt other Nation business pending before the DOI, such as a 

modification of a funding agreement for the Cayuga Nation, a pending liquor license, and a land 

to trust application. The Nation’s ability to move land into trust is apparently of particular

importance, as it is essential for the Nation’s sovereignty. See Decl. of Clint Halftown, ECF No. 

31-1, ¶¶ 16-18. The equities do not favor, and the public interest would not be furthered by, 

suspending these pursuits and returning the Cayuga Nation to a state of uncertainty and 

paralyzed government pending the final outcome of this case. 

IV. CONCLUSION

For the foregoing reasons, the Court will DENY Plaintiffs’ Motion for Preliminary 

Injunction. An appropriate Order accompanies this Memorandum Opinion. 

 /s/ 

 COLLEEN KOLLAR-KOTELLY

 UNITED STATES DISTRICT JUDGE