complaint for judicial review under the …nnmprotects.org/docs/cr84/lawsuit.pdf · complaint for...

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

__________________________________________

)

NORTHERN NEW MEXICANS )

PROTECTING LAND WATER )

AND RIGHTS )

)

Plaintiff, )

v. )

) CASE NO.

UNITED STATES OF AMERICA, and )

SALLY JEWELL, Secretary, )

U.S. Department of Interior, )

KEVIN WASHBURN, Assistant Secretary, )

Bureau of Indian Affairs, )

WILLIAM WALKER, Regional Director, )

Bureau of Indian Affairs, Southwest Office )

RAYMOND FRY, Superintendent, )

Northern Pueblo Agency, )

)

Defendants. )

)

COMPLAINT FOR JUDICIAL REVIEW UNDER THE ADMINISTRATIVE

PROCEDURES ACT, 5 U.S.C. § 706; FOR

DECLARATORY AND INJUNCTIVE RELIEF PURSUANT TO 28 U.S.C. § 2201;

TO QUIET TITLE PER 28 U.S.C. § 2409a;

AND FOR A VIOLATION OF EQUAL PROTECTION UNDER THE LAW

COMES NOW Northern New Mexicans Protecting Land Water and Rights, by and

through its undersigned counsel, to petition this Honorable Court for review of Agency Action

pursuant to the Administrative Procedures Act, 5 U.S.C. § 706; to issue a Declaratory Judgment

pursuant to 28 U.S.C. § 2201; for equitable relief consisting of Injunction; to quiet title to

Plaintiff’s members vested right-of-way easement under the Quiet Title Act, for just

compensation resulting from the taking of property within the meaning of the just compensation

clause of the Fifth Amendment to the United States Constitution and for a violation of equal

protection under the law.

Case 1:15-cv-00559 Document 1 Filed 06/30/15 of 12

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Plaintiff alleges that the Defendants by and through its agencies and employees, have

actively engaged and interfered with the quiet use and enjoyment of vested public rights of way,

deprived Plaintiff’s members of access to Plaintiff’s members private real property and deprived

Plaintiff’s members of the value of their property interests. Defendants’ actions were taken in an

attempt to extract monies for continued access to private property or to facilitate others to extract

and/or extort such funds. Defendants have arbitrarily and capriciously acted contrary to the laws

of the United States to deny Plaintiff’s members exercise of their property rights by denying

legal and valid access to their private real property, impairing their property interests, value and

ability to sell such properties.

PARTIES

1. Plaintiff, Northern New Mexican Protecting Land Water and Rights

(NNMPLWR) is a duly registered 501(c)(3) nonprofit corporation whose members are property

owners in New Mexico that are served by the rights of way know as County Roads 84, 84A,

84B, 84C, 84D, and Sandy Way.

2. Defendant Sally Jewell is the Secretary of Interior, and has ultimate responsibility

for ensuring that agencies, such as the Bureau of Indian Affairs within the U.S. Department of

Interior (“DOI”) comply with applicable law, regulation and polices of the Department of the

Interior.

3. Defendant Kevin Washburn is the Assistant Secretary of Indian Affairs, and is

responsible for overseeing the actions and activities of the Bureau of Indian Affairs (BIA), an

Agency within the DOI.


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4. William Walker is a Regional Director with the BIA and responsible for the

management and oversight of all BIA activities, programs and employees within the Southwest

Region.

5. Defendant Raymond Fry is/was the Superintendent of Northern Pueblos Agency

(NPA) within BIA Southwest Region at the time of the actions described herein. Superintendent

Fry is the federal employee who took the Agency action giving rise to this Complaint.

JURISDICTION

6. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 28

U.S.C. § 1361 (action to compel an officer of the United States to perform his or her duty), the

Quiet Title Act, 28 U.S.C. § 2409a, the Declaratory Judgment Act, 28 U.S.C. § 2201, and 28

U.S.C. § 2202 (injunctive relief).

7. Federal question arises in this matter as a result of actions taken in contravention

of the 5th Amendment of the United States Constitution and equal protection under the law.

8. This Court also has jurisdiction over this action pursuant to the Administrative

Procedure Act, 5 U.S.C. § 701. This Court has jurisdiction to review agency actions pursuant to

5 U.S.C. § 704.

9. This Court has jurisdiction of this case under 28 U.S.C. § 1491 (the Tucker Act)

as a “claim against the United States founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department . . . .”

10. Jurisdiction of this Court also exists to hear claims regarding violations of the

protections to property conferred per the Treaty of Guadalupe Hidalgo on February 2, 1848.

11. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e).


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GENERAL ALLEGATIONS

12. Plaintiff is a nonprofit entity whose members are individual private property

owners with property rights conferred pursuant to the Treaty of Guadalupe Hidalgo.

13. The properties of Plaintiff’s members are served and accessed by long-standing

and vested rights-of-way easements.

14. The rights-of-way easements were created and exist per the Act of 1866, later

known as RS 2477:

Sec. 8. “And be it further enacted, that the right-of-way for the construction of

highways over public lands, not reserved for public uses, is hereby granted."

Mining Act of July 26, 1866, § 8, 14 Stat. 253, formerly § 2477 of the Revised

Statutes and later 43 U.S.C. § 932.

15. Statutory grants to States of rights-of-way easements over federal lands have not

been revoked subsequent to the Mining Act of 1866 (hereinafter referred to as the Act of 1866).

16. The public County Roads in question were established prior to 1900 across lands

that, at the time, were within the territory of the United States and otherwise unreserved.

17. These same roads have since that time been regarded as public rights-of-way

owned by the State of Mexico and administered as either a State highway or as a County Road.

18. Neither the State, nor the County, have taken action to vacate or abandon their

claims to these public rights of way.

19. Well over a hundred years after the statutory vesting of these easements in the

State of New Mexico and the physical construction of these roads pursuant to the law, the

Bureau of Indian Affairs (BIA) has acted arbitrarily and capriciously, seeking to extinguish these

public property rights/easements that cross tribal land, and which provide the sole means of

access to Plaintiff’s fee simple real property.


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20. BIA’s action has impaired Plaintiff’s members’ rights and ability to continue to

utilize the vested public easement along the rights-of-way commonly known as County Roads

that provides direct access to the fee simple property of Plaintiff from State Highway 502,

formerly State Route 4.

21. Defendants have actively denied Plaintiff’s members’ rights and seek to prevent

Plaintiff’s members from utilizing their private property.

22. Defendants have explicitly stated in writing they do not acknowledge Plaintiff’s

right to utilize the public road to access their private property.

23. Defendants have threatened legal action in an attempt to cajole and extort funds

from Santa Fe County to purchase a temporary easement to allow State citizens continued access

to their property, despite the existence of a right-of-way already possessed by the County.

FIRST CAUSE OF ACTION – CLAIM UNDER THE

ADMINISTRATIVE PROCEDURES ACT

Defendants have acted Arbitrarily and Capriciously in issuing a decision to the Derogation

of Plaintiff’s Statutorily Granted Public Right-of-Way Easement.

24. Plaintiff incorporates by reference paragraphs 1 to 23.

25. Defendants are aware based on applicable law, and in possession of factual

documentation that establishes that the rights-of-way roads in question have been in existence

and provided access to Plaintiff’s members’ private property for at least 100 years.

26. Defendants, through the actions of Defendant Raymond Fry, have taken action in

derogation of such public rights-of-way and called into controversy Plaintiff’s members’ access

rights to their private property.


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27. Defendants, through the actions of Defendant Fry, issued a federal memorandum

dated December 6, 2013, that alleged the County and private property holders were in trespass

for using the public rights-of-way identified herein. Ex. 1

28. The December 6, 2013, Memorandum also demands the County and/or rights-of-

way users immediately “enter into good faith negotiations to settle the current trespass and enter

into a new easement for rights-of-way.”

29. The December 6, 2013, Memorandum was issued in contravention of the laws and

regulations of the United States, and demonstrates a failure of the Agency to adhere to such law

and regulation.

30. Defendants, through Defendant Fry, have explicitly acted in contravention of the

Treaty of Guadalupe Hidalgo by infringing upon Plaintiff’s members protected property rights

and refusing to acknowledge the preexisting rights of Plaintiff members to access the private

property by vested rights-of-way.

31. Defendant Fry acted arbitrarily and capriciously in issuing the December 6, 2013,

Memorandum which serves to impair Plaintiff’s members’ property rights.

32. Defendants’ ongoing refusal to recognize and grant Plaintiff’s members access to

its private property by way of Plaintiff’s vested easement violates the Act of 1866, and Plaintiff’s

members vested property rights.

33. Accordingly, Defendants’ ongoing failure to recognize and allow Plaintiff’s

members to use its access, to threaten federal litigation, and to extort and demand the payment of

funds to reestablish such access rights is arbitrary, capricious, an abuse of discretion and/or

otherwise not in accordance with law pursuant to the Administrative Procedure Act, 5 U.S.C. §

701 et seq. and Plaintiff has a clear right to judicial review of such conduct.


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34. Plaintiff’s members have been harmed by the actions of Defendants as their

property values have diminished. Title companies have refused to provide title insurance to

Plaintiff’s members as a result of Defendants’ actions curtailing legal ingress/egress to Plaintiff

members’ property.

35. Defendants’ actions have prevent Plaintiff members from securing financing to

purchase, sell or refinance their real property.

36. Plaintiff members have been harmed and are at imminent risk of irreparable harm

from Defendants’ unlawful conduct.

37. Plaintiff has no adequate remedy at law, is likely to succeed on the merits, and in

such circumstances, Plaintiff’s claim for preliminary and permanent injunctive relief is favored

by the public interest and the balance of equities.

SECOND CAUSE OF ACTION – QUIET TITLE

38. Plaintiff incorporates herein by reference, paragraphs 1 to 37.

39. Plaintiff’s members have a vested right of ingress and egress to their private

property over the rights-of-way for which the County of Santa Fe holds title.

40. The rights-of-way on roads which BIA actions have impaired and are at issue in

this action are commonly known as County Roads 84, 84A, 84B, 84C, 84D, and Sandy Way

road.

41. Rights-of-ways for such roads were conferred pursuant to the Act of July 26,

1866, 14 Stat. 253.

42. To the extent that any right-of-way utilized by Plaintiff’s members for access to its

fee simple property is not an express easement pursuant to applicable statutory law, Plaintiff has

prescriptively acquired a corresponding non-possessory interest in land as an implied easement


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for ingress and egress to fee title property pursuant to Superior Oil Co. v. United States, 353 F.2d

34 (9th Cir.).

43. Defendants’ interference with Plaintiff’s members vested property rights have

clouded title to such property and damaged such rights.

44. The Court should quiet title to Plaintiff’s vested rights-of-way property rights for

ingress and egress to their fee title property as against Defendants, by declaring the existence and

validity of such rights-of-way.

45. Plaintiff’s members have suffered or are likely to suffer irreparable harm from the

cloud of title created by Defendants’ conduct, and have no adequate remedy at law to clear the

clouds on their property titles; and the Plaintiff’s claim for permanent injunctive relief is favored

by the public interest and the balance of equities.

46. As a result of such vested rights-of-way, issuance of a permanent injunction

barring Defendants from further interference with Plaintiff’s members access to their property and

interference with Plaintiff members’ property rights and value, is warranted.

THIRD CAUSE OF ACTION –TAKING OF PROPERTY WITHOUT COMPENSATION


48. If Defendants' are authorized under the law to issue the December 6, 2013,

Memorandum and deprive Plaintiff’s members of access to members’ real property and cloud

title to the extent of diminution of value, such action constitutes a taking of Plaintiff's property

for which compensation is due within the meaning of the Fifth Amendment to the United States

Constitution.


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49. Absent access across the vested public rights-of-way, Plaintiff is deprived of any

financial interest associated with member property interests, as access to such property is

necessary for the use and enjoyment of property.

50. Defendants’ deprivation of Plaintiff’s members’ access along a vested public

property easement to their real property has impaired such property rights without due process

under the law.

51. Defendants’ deprivation of Plaintiff’s members’ access to their real property and

demands that they or the County of Santa Fe purchase an easement for access is nothing short of

extortion, and falls squarely within the findings of a taking by the United States Supreme Court

in Koontz v. St. Johns River Water Management District, 570 U.S. __ ,133 S.Ct. 2586 (2013).

52. Defendants action serves to take Plaintiff's real property by extinguishing a vested

easement public property right in violation of the Fifth Amendment to the United States

Constitution which provides, in part: “[n]or shall private property be taken for public use,

without just compensation.” U.S. Const. Amend. V.

53. Defendants’ action to deprive Plaintiff of ingress and egress to real property

and/or extinguish a vested easement serves to take Plaintiff’s members personal property by

attempting to extort fees from Plaintiff members; and is a Constitutional violation in that the

taking of private property such as ingress and egress fees for public purpose is a violation of the

Fifth Amendment to the Constitution. See Horne et al. v. Department of Agriculture, No. 14-275

(June 22, 2015).

FOURTH CAUSE OF ACTION - VIOLATION OF

EQUAL PROTECTION UNDER THE LAW



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55. The Treaty of Guadalupe Hidalgo (Treaty) guaranteed certain protections to

former citizens of Mexico electing to remain in the United States.

56. The protections afforded to former Mexican citizens included the preservation of

conferred property interests and land grants. (Treaty of Guadalupe Hidalgo, Article VIII).

57. Such former Mexican citizens were also afforded the full protection of United

States citizens and equal protection under the laws of the United States. (Treaty of Guadalupe

Hidalgo, Article IX).

58. Plaintiff member’s rights to their grant lands – necessarily including ingress and

egress rights – were subsequently confirmed by the federal government during the land grant

confirmation process and as part of the Pueblo Lands Board review.

59. Defendants’ action in curtailing or preventing Plaintiff’s members from access to

their property interests conferred by the Treaty violates the terms of such Treaty.

60. Defendants’ action in curtailing or preventing Plaintiff’s members from accessing

their property rights by the use of established rights-of-way violates Plaintiff member’s rights as

United States citizens to equal protection under the law as established by the United States

Constitution and conferred by the Treaty.

61. Defendants’ actions have resulted in a diminution of value or the complete

stripping of value for Plaintiff’s members’ protected real property rights in violation of the

United States Constitution and Treaty.

REQUESTED RELIEF

WHEREFORE, Plaintiff requests:

1. This Court declare, adjudge, and decree under the Declaratory Judgment Act, 28

U.S.C. § 2201 and 5 U.S.C. §§ 701, et seq. that Defendants’ interference with Plaintiff’s vested


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access rights under the Act of July 26, 1866, 14 Stat. 253 is arbitrary, capricious, an abuse of

discretion and/or otherwise unlawful.


U.S.C. § 2201 and the Quiet Title Act, 28 U.S.C. § 2409a, that the public holds the previously

described rights-of-way as a vested property right under the Act of July 26, 1866, 14 Stat. 253.

3. That this Court preliminarily and/or permanently enjoin the Defendants, their

agents, employees, successors, and all persons acting in concert or participating with them under

their direction, from interfering with public’s vested rights identified in this Complaint.


U.S.C. § 2201 that Defendants’ attempted legal denial of access and improper threat of trespass

action to deprive Plaintiff’s members of the ability to access their private property and to utilize

their vested public easement is a taking of Plaintiff’s members private property in violation of

the 5th Amendment and Due Process Clause of the United States Constitution.

5. This Court declare, adjudge, and decree that Defendants’ actions curtail or

otherwise violate the rights preserved to Plaintiff’s members by the Treaty of Guadalupe Hidalgo

to retain the quiet enjoyment, use and full property rights to land previously granted.

6. Award attorneys’ fees, litigation expenses and costs against Defendants as

provided by applicable law.

7. Grant such other relief as this Court deems appropriate.

Respectfully submitted this 30th day of June, 2015.

Respectfully submitted,

WARBA, LLP

/s/ A. Blair Dunn ,

A. Blair Dunn, Esq.


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Dori E. Richards, Esq.

1801 Rio Grande Blvd NW, Unit C

Albuquerque, NM 87104

[email protected]

[email protected]

(T): 505-750-3060

(F): 505-226-8500


mailto:[email protected]

JS 44 (Rev. 12/12) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 530 General’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1 OriginalProceeding

’ 2 Removed fromState Court

’ 3 Remanded fromAppellate Court

’ 4 Reinstated orReopened

’ 5 Transferred fromAnother District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 1:15-cv-00559 Document 1-1 Filed 06/30/15 Page 1 of 2

JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

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VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


IN REPLY REFER TO

UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS

NORTHERN PUEBLOS AGENCY P.O. BOX 4269-FAIRVIEW STATION ESPANOLA, NEW MEXICO 87533

M25 - Office of the Superintendent

CERTIFIED MAIL

NOTICE TO SHOW CAUSE

Ms. Katherine Miller County Manager, Santa Fe County 102 Grant A venue Santa Fe, New Mexico 87501-2061

Dear Ms. Miller:

DEC -· t5 %011

TAKF. PRIDJ:: IN AM ER JC/\

We are fo1mally informing you and the County of Santa Fe ("County") of the issue of trespass by the County on tribal lands of the Pueblo of San Ildefonso ("Pueblo"). Upon notification by the Pueblo and a review of our documents, we have determined that the County is in trespass on Pueblo land. This Notice provides the County infonnation concerning the instances of trespass and notifies the County that it must show cause why the County should not be inunediately assessed trespass damages and why the County should not be evicted from the subject Pueblo lands.

TRESPASS

The County of Santa Fe is in violation of the federal requirements in the use of Indian tmst land. County Road 84 and side roads 84A, 84B, 84C, 84D and Sandy Way (see attached map and photo) are in trespass. No record exists to the fact that the Cotmty has an easement or rights-ofway in our files nor is thert! any record that the County has submitted an application for an easement or Rights-of-Way.

County Roads in Trespass:

County Road - 84 *Township 19 North, Range 8 East, NMPM within Sections 17, 8, 9 and 10

From the intersection of Povi Kaa Drive (main entrance to the Pueblo of Son Ildefonso from Hwy. 502) east to the intersection of 101-D.

County Road - 84A * Township 19 North, Range 8 East, NMPM within Section 10

From the intersection with Evergreen Lane east to the reservation boundary line.

County Road - 84B *Township 19 North, Range 8 East, NMPM within Sections 8 and 9

From t he end of the pavement east of the Pueb lo, east to the intersection with County Rood 84.

EXHIBIT 1


County Road - 84C *Township 19 North, Range 8 East, NMPM within Sections 5, 4, 3, 10, and 11

From the int ersection wit h Tunyo Po east to t he reservation boundary line.

Country Road - 84D *Township 19 North, Range 8 East, NMPM within Sections 10 and 11

From the intersection wit h Sandy Way east to the reservation boundary line.

Sandy Way *Township 19 North, Range 8 East, NMPM within Sections 9 and 10

From the intersection with 84D west to the private claim.

*Espanola Quadrangle, New Mexico - 75 Minute Series (Topographic)

CONCLUSION

The County is in di.reel violation of the federal requirements governing the use of Indian trust lands. Specifically:

No easement or Rights-of-way exist for County Road 84 and the side roads on tribal trnst land of the Pueblo of San Ildefonso, thus, the County is in trespass.

You me hereby informed that the County has thirty (30) business days from receipt of this letter to either enter into good faith negotiations to settle the current trespass and enter into a new easement for rights-of-way, or to show cause why the County's failure to pursue valid easements for the county roads should not be turned over to the U.S. Department of Justice for action against the County.

We encourage the County lo enter into negotiations with the Pueblo to resolve the current trespass as quickly as possible and establish legal bases for the County's continued use of Pueblo land.

If you should have any questions or require additional information, contact my office at (505) 753-1400 or Nonnan Jojola, Natural Resource Manager at (505) 753-1451.

Sincerely,

Superintendent

Enclosure

cc: William T. Walker, Regional Director, BIA-S\VRO Terry Aguilar, Governor, Pueblo of San Ildefonso Stephen Martinez, Natural Resource Director Carolyn Abeita, General Counsel Peter Chestnut, Special Counsel

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