Wopsock v. Nordwall , 180 F. App'x 6 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
FLOYD WOPSOCK, RUBY ATWINE, and
SHERLITA LAFRAMBOISE,
Plaintiffs-Appellants,
RON WOPSOCK and LUKE DUNCAN
Plaintiffs,
v.
WAYNE NORDWALL, Regional Director, No. 04-4296
Southwest Regional Office of the Bureau of (D.C. No. 2:03-CV-826-TC)
Indian Affairs; CHESTER MILLS, (D. Utah)
Superintendent, Uintah and Ouray Agency;
FORT DUCHESNE, Utah; BUREAU OF
INDIAN AFFAIRS; and OFFICE OF SPECIAL
TRUSTEE,
Defendants-Appellees,
UTE INDIAN TRIBE OF THE UINTAH AND
OURAY RESERVATION,
Defendant-Intervenor-Appellee.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before KELLY, SEYMOUR, and LUCERO, Circuit Judges.
Plaintiffs are individual members of the Ute Indian Tribe. They are
appealing the district court’s dismissal of their complaint for lack of subject
matter jurisdiction. Because the record is inadequate to permit proper review, we
dismiss their appeal.
Plaintiffs sought declaratory and injunctive relief against the United States
Bureau of Indian Affairs (“BIA”), the United States Department of the Interior
Office of Special Trustee (“OST”), Wayne Nordwall, in his official capacity as
regional director of the BIA, and Chester Mills, in his official capacity as
superintendent for the BIA’s Uintah and Ouray Agency. Plaintiffs’ claims against
defendants relate to the retention by the Ute Indian Tribe (the “Tribe”) of John P.
Jurrius as tribal financial advisor, and the Tribe’s subsequent approval of a
financial plan prepared by the Jurrius Group, LLP. Specifically, plaintiffs asked
the district court for a declaratory judgment regarding defendants’ allegedly
inadequate oversight of the Tribe’s asset management, and an order enjoining the
BIA and OST from approving future transactions by Mr. Jurrius and requiring the
BIA to conduct an equitable accounting of all transactions conducted by Mr.
Jurrius and the Jurrius Group. Given the Tribe’s interest in the action, it sought
leave and was permitted to intervene.
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At the core of plaintiffs’ action is the allegation that various federal
statutes concerning two major tribal assets give rise to specific duties on the part
of defendants regarding the management and investment of those assets, as well
as a general fiduciary duty to protect the Tribe from wasteful, predatory or
misguided business dealings. Plaintiffs allege, among other things, that Mr.
Jurrius and the Jurrius Group have mismanaged and misappropriated tribal assets
by using asset funds to purchase a shopping center and hire an expensive law firm
to pursue a risky lobbying scheme regarding water settlement funds. They assert
that Mr. Jurrius and the Jurrius Group mortgaged the shopping center bought with
asset funds and used the mortgage to pay certain tribal members for their political
support. Finally, they claim that the financial plan proposed and implemented by
Mr. Jurrius and approved by the Tribe has resulted in financial and employment
losses as well as the mismanagement of various oil and gas leases. Plaintiffs
contend all of these things are known, or should be known, by defendants in their
capacity as overseers of the assets, and that defendants have failed to take
appropriate action.
After amending their complaint several times, plaintiffs filed two motions
for partial summary judgment regarding some of the on-going or proposed future
dealings by Mr. Jurrius and the Jurrius Group on behalf of the Tribe and
requesting an order requiring oversight by the federal defendants. Defendants,
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and the Tribe as intervener, filed motions to dismiss. After stating that “[n]one of
the laws under which Plaintiffs seek relief provides a private right of action
against the United States, its agencies or officials” and therefore plaintiffs “must
pursue their claims under the Administrative Procedure Act (APA),” the district
court concluded that because various administrative proceedings relating to
plaintiffs’ claims were on-going, those claims were not ripe for review under the
APA. Aplt. App. at 100-04. The court further concluded that “[t]o the extent
Plaintiffs assert a violation of some general fiduciary duty to oversee the Tribe’s
business decisions, their claims fail because they have not alleged any specific
source of any such trust duty.” Id. at 102 n.5. Accordingly, the court dismissed
plaintiffs’ complaint without prejudice.
On appeal, plaintiffs generally contend the district court erred in
concluding defendants had not waived sovereign immunity. More specifically,
they argue the court should have held that (1) 25 U.S.C. § 476 requires defendants
to oversee the selection of legal counsel and the payment of legal fees; (2) Public
Law 102-575 requires defendant BIA to prevent the per capita distribution of
water settlement funds, and (3) defendants are required to protect the Tribe
against “the manipulation and diminishment” of its oil and gas revenues. Aplt.
Br. at 2. We are unable to review the district court’s decision, however, because
plaintiffs have failed to provide us with an adequate appellate record as required
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by our local rules.
Tenth Circuit Rule 10.3, entitled “Content of Record,” provides in pertinent
part:
(A) Essential items. Counsel must designate a record on appeal
that is sufficient for considering and deciding the appellate issues . . .
(B) Inadequate record. The court need not remedy any failure
by counsel to designate an adequate record. When the party asserting
an issue fails to provide a record sufficient for considering that issue,
the court may decline to consider it.
(C) Required contents. Every record on appeal to this court
must include:
(1) the last amended complaint and answer . . . ;
....
(3) pertinent written reports and recommendations, findings
and conclusions, opinions, or orders of a district judge . . . ;
....
(5) the decision or order from which the appeal is taken;
....
(7) the notice of appeal; and
(8) the district court’s docket entries.
(D) Additional record items
....
(2) Documents. When the appeal is from an order
disposing of a motion or other pleading, the motion, relevant
portions of affidavits, depositions and other supporting
documents (including any supporting briefs, memoranda, and
points of authority), filed in connection with that motion or
pleading, and any responses and replies filed in connection
with that motion or pleading must be included in the record.
Id. (emphasis added). It is the appellants duty to comply with Rule 10(b). F ED .
R. A PP . P. 11(a).
Plaintiffs’ appendix contains neither defendants’ nor the Tribe’s motions to
dismiss. It also does not contain plaintiffs’ responses, if indeed there were any, to
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those motions. Nor does it include defendants’ responses to plaintiffs’ motions
for summary judgment. Incredibly, plaintiffs’ appendix does not even contain the
amended complaint upon which the district court’s order is based, although the
defendants did include this complaint in a supplemental appendix.
Defendants contend that plaintiffs are raising arguments they failed to raise
in the district court. Plaintiffs have placed us in the position of trying to guess
what arguments and evidence were before the district court when it reached its
decision, and “[w]e are unwilling to reverse the decision of the district court
based on a guess . . . .” Travelers Indem. Co. v. Accurate Autobody, Inc., 340
F.3d 1118, 1120 (10th Cir. 2003). “The party appealing a district court ruling has
the burden to relieve us of such guesswork by providing the necessary
documents.” Id. Plaintiffs have failed utterly in this respect.
“[Our] rules are not empty gestures. We have repeatedly enforced them.”
Id. at 1121. The failure of plaintiffs to include in their appendix the documents
that control the resolution of the issues on appeal, namely, the dispositive motions
and accompanying memoranda upon which the district court acted in dismissing
plaintiffs’ complaint, deprives them of the right to challenge the judgment of the
district court. Accordingly, we summarily AFFIRM.
ENTERED FOR THE COURT
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Stephanie K. Seymour
Circuit Judge
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