AGUA CALIENTE TRIBE OF CUPEÑO INDIANS OF THE PALA RESERVATION v. TARA KATUK MAC LEAN SWEENEY, Assistant Secretary of Indian Affairs, United States Department of the Interior
No. 17-16838
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 7, 2019
D.C. No. 2:15-cv-02329-JAM-KJN
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted December 19, 2018 San Francisco, California
Filed August 7, 2019
* Tara Katuk Mac Lean Sweeney is substituted for her predecessor as Assistant Secretary of Indian Affairs, pursuant to
Before: Danny J. Boggs,** Richard A. Paez, and John B. Owens, Circuit Judges.
Opinion by Judge Paez
SUMMARY***
Tribal Matters
The panel affirmed the district court‘s order refusing to compel the Assistant Secretary of Indian
The district court held that the Cupeño failed to exhaust the regulatory process codified at
The panel held that here, the Part 83 process, which is a formal administrative process for an Indian tribe to obtain federal recognition codified in the U.S. Department of the Interior‘s regulations, was the prescribed remedy. The panel further held that the Cupeño had made no attempt to exhaust that process. The panel rejected the Cupeño‘s contention that the Part 83 process did not apply here because the Cupeño sought “correction” of the list, not recognition. The panel also held that, while there were some doctrinal exceptions to administrative exhaustion, they did not apply here. Finally, the panel agreed with the district court‘s determination that the Cupeño must exhaust administrative remedies, and until they did so, they were not entitled to the relief they sought in this lawsuit.
Concerning the Cupeño‘s equal protection and Administrative Procedure Act challenge, the panel agreed with the district court that the Department of the Interior had a rational basis for not making an exception to the Part 83 process for the Cupeño. The panel held that Interior‘s explanation for treating the Cupeño differently from the Ione Band of Miwok Indians, the Lower Lake Rancheria, and the Tejon Indian Tribe (who were all recognized outside of the Part 83 process), and requiring the Cupeño to adhere to the administrative process for federal recognition because many of the Cupeño were recently members of the Pala Band of Mission Indians, passed muster.
Finally, the panel held that the political question doctrine did not bar them from resolving the core issue in this case: whether the Cupeño can secure listing outside of the Part 83 process.
COUNSEL
Andrew W. Twietmeyer (argued), Law Office of Andrew W. Twietmeyer, Los Angeles, California, for Plaintiff-Appellant.
Brian C. Toth (argued) and Mary Gabrielle Sprague, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; James W. Porter Office of the Solicitor, Department of the Interior, Washington, D.C.; for Defendants-Appellees.
** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
OPINION
PAEZ, Circuit Judge:
The Agua Caliente Tribe of Cupeño Indians (the “Cupeño“) argue that they are a federally recognized tribe, and, as such, the Assistant Secretary of Indian Affairs (“Assistant Secretary“) within the Department of the Interior (“Interior“) must place the tribe on a list of federally recognized tribes published in the Federal Register.1 The Cupeño sent a letter to the Assistant Secretary, requesting that they be listed as a federally recognized tribe. When the Assistant Secretary denied their request, the Cupeño filed suit to compel such action. Having jurisdiction pursuant to
I.
Before reaching the merits, we provide some background on the Cupeño, their claims against Interior, and the relevant regulatory process. We do not purport to
A. The Cupeño
The Cupeño are an Indian group originally from a village at Warner‘s Hot Springs, California (“Warner‘s Ranch“).2
In 1851, the United States negotiated a treaty at the San Louis Rey Mission with several Indian tribes, including the Cupeño. This treaty was never ratified. In 1865, the Office of Indian Affairs recommended that a reservation be made for the Cupeño near Warner‘s Ranch, and a separate reservation be made for the San Luis Indians at Pala (the “Pala,” “Luiseño,” or “Pala Luiseño,” another tribe that was a party to the unratified treaty). Separate reservations were designated for the Pala Luiseño and the Cupeño by an executive order of President Ulysses S. Grant in 1875. Five years later, President Rutherford B. Hayes issued an executive order canceling the order that had granted a reservation for the Cupeño. Nevertheless, the Cupeño continued to live on the land near Warner‘s Ranch throughout the late 1800s.
Settlers later sought to quiet title to Warner‘s Ranch and succeeded in evicting the Cupeño living there. See Barker v. Harvey, 181 U.S. 481, 491 (1901). Soon after, Congress authorized the Secretary of the Interior to acquire land for the “Mission Indians” that had been residing at Warner‘s Ranch. The Secretary selected and purchased a tract adjacent to the Pala Luiseño where those Cupeño Indians could live. These two tracts of reservation land are referred to as “Pala.”3
The Cupeño and the Pala Luiseño did not integrate. Interior reports show that the “Warner Ranch faction,” i.e. the Cupeño, demonstrated “no desire or intention to affiliate with the resident local Indians.” Census records show the U.S. government tracked the Cupeño separately (as the “Agua Caliente Tribe“) in at least one year.
In 1934, Congress passed the Indian Reorganization Act (“Reorganization Act“),
In 1959, the Indians at both tracts of Pala adopted Articles of Association to form one entity called the Pala Band of Mission Indians (“PBMI“). The PBMI included both the Cupeño and the Luiseño at Pala. Even though they had voted against the Reorganization Act, the PBMI submitted their Articles of Association to Interior, and Interior approved them.4
In 1979, for the first time, Interior published a list of federally acknowledged Indian tribes in the Federal Register, and the list included the “Pala Band of Luiseno Mission Indians, Pala Reservation, California.” Still, the federal government continued to acknowledge the distinct identities of the Cupeño and the Luiseño at Pala in some other contexts, such as in a Federal Register notice regarding an archaeological site, and in the 2010 census.
In the 1990s, the PBMI adopted a constitution, which Interior approved in 2000. The PBMI Constitution maintained the same membership requirements as the Articles of Association. One change from the Articles of Association to the PBMI Constitution allowed a six-member committee to amend or replace its existing enrollment ordinance with a new ordinance concerning membership and disenrollment. See Aguayo v. Jewell, 827 F.3d 1213, 1219 (9th Cir. 2016). In 2011, the PBMI disenrolled approximately 150 members of Cupeño descent. Id. at 1220. Interior recommended against disenrollment but determined it could not intervene in the disenrollment decision and did not address the merits of the disenrollment decision. Id. at 1220-21. Sixty-five of the disenrolled members brought suit in federal court, and we heard the case on appeal. Id. at 1221. We recognized that “[t]ribal enrollment decisions are generally beyond the power of federal courts to review.” Id. at 1222. We agreed with Interior‘s hands-off approach, id. at 1221, noting that, “in the exercise of sovereignty and self-governance, tribes have the right, like other governments, to make good decisions, bad decisions, and decisions with which others may disagree,” but that the federal government “does not interfere in those decisions in the absence of specific authority to do so,” id. at 1229 (internal quotation omitted).
In September 2014, the PBMI requested that Interior list it as the “Pala Band of Mission Indians of the Pala Reservation, California” on all subsequent lists—in effect, the PBMI asked Interior to omit the word “Luiseno” from the PBMI‘s name on the Federal Register list. The Federal Register list published in January 2016 reflected the requested change.5 Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 81 Fed. Reg. 5019-02, 5022 (Jan. 19, 2016); see also
B. The Claims Against Interior
In December 2014, the Cupeño sent a letter to the Assistant Secretary for the Bureau of Indian Affairs enclosing the new Cupeño Constitution and asking Interior “to correct the 2015 list of federally-recognized Indian Tribes to reflect the independent sovereignty of the Agua Caliente Tribe of Cupeño Indians of the Pala Reservation.”
The Cupeño sent a second letter to the Assistant Secretary in June 2015. In this letter, the Cupeño argued that the PBMI is an “association of tribes” and “not a federally-recognized tribe in its own right,” and that it was administrative error not to include the Cupeño on the Federal Register list. The Cupeño again asked Interior to “update the List of federally-recognized Indian tribes.”
Having received no response to their letters, the Cupeño filed this suit in November 2015, seeking to compel the Assistant Secretary to respond to the request to correct or update the list.
In February 2016, the Assistant Secretary denied the Cupeño‘s request to be included on the recognized tribes list. In rejecting the request, the Assistant Secretary first noted a 2015 Policy Guidance that “directs any unrecognized group requesting that the Department [of the Interior] acknowledge it as an Indian tribe, through reaffirmation or any other alternative basis, to petition under
At a hearing on cross-motions for summary judgment, the district court granted the Assistant Secretary‘s motion and ruled that the court did not have jurisdiction to hear the case or to compel Interior to correct the federally recognized Indian tribe list to add the Cupeño. The district court recognized that Part 83 is a mandatory process, and the Cupeño had failed to exhaust it. The district court stated that, outside of the Part 83 process, any recognition of an Indian tribe is a political question. The district court further concluded that Interior provided a rational explanation for why it made exceptions to the Part 83 process for three tribes but not for the Cupeño because, until recently, the Cupeño had received the benefits and services of membership in another federally recognized tribe, and they could not show they were treated as a separately recognized tribe. This appeal followed.
C. Tribal Recognition and the Regulatory Process
Although tribes retain “inherent sovereign authority,” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014), “as far as the federal government is concerned, an American Indian tribe does not exist as a legal entity unless the federal government decides that it exists,” Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004).6 When a tribe is federally recognized, it confers a suite of federal protections.
Historically, federal recognition could arise from treaty, executive order, or course of dealing. Kahawaiolaa, 386 F.3d at 1273 (citing William C. Canby, Jr., American Indian Law in a Nutshell 4 (4th ed. 2004)). In 1934, Congress passed the Reorganization Act, which had the “overriding purpose . . . to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically,” and formalized, to a degree, federal
Until the 1970s, federal recognition remained on a “case-by-case basis.” Kahawaiolaa, 386 F.3d at 1273 (citations omitted). In 1975, “Congress established the American Indian Policy Review Commission to survey the current status of Native Americans. The Commission highlighted a number of inconsistencies in the Department of Interior tribal recognition process and special problems that existed with non-recognized tribes.” Id. In 1978, Interior promulgated regulations establishing a uniform procedure for “acknowledging” American Indian Tribes. Id. (citing
Interior reviews a Part 83 petition for recognition to determine whether the tribe can meet a list of criteria: (a) the group has been identified from historical times to the present, on a substantially continuous basis, as Indian; (b) “a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present“; (c) the group “has maintained political influence or other authority over its members as an autonomous entity from historical times until the present“; (d) the group has a governing document; (e) the group has lists of members demonstrating their descent from a tribe that existed historically; (f) most of the members are not members of any other acknowledged Indian tribe (with an exception for former members); (g) the group‘s status as a tribe is not precluded by congressional legislation.
In 1994, Congress passed the Federally Recognized Indian Tribe List Act (“List Act“), Pub. L. No. 103–454, 108 Stat 4791
In 2015, Interior updated the Part 83 regulations, “revis[ing] regulations governing the process and criteria by which the Secretary acknowledges an Indian tribe.” Federal Acknowledgment of American Indian Tribes, 80 Fed. Reg. 37,862 (July 1, 2015) (codified at 25 C.F.R. pt. 83). The 2015 revisions were the result of a notice-and-comment process that included meetings between Interior and federally recognized tribes, public meetings, and the submission of hundreds of written comments.
There are currently 573 federally recognized tribes. Indian Entities Recognized and Eligible To Receive Services from the United States Bureau of Indian Affairs, 84 Fed. Reg. 1200-01 (Feb. 1, 2019). The two primary ways of obtaining recognition today are through a Congressional process or the Part 83 petition process. See Kristen Matoy Carlson, Congress, Tribal Recognition, and Legislative-Administrative Multiplicity, 91 Ind. L.J. 955, 971–72 (2016).
II.
The Cupeño seek an order compelling Interior to include the Cupeño on the federally recognized tribes list pursuant to
Interior responds with a bevy of arguments for why we should not determine whether the Cupeño should be listed, including that (1) the Cupeño failed to exhaust administrative remedies, (2) the prudential doctrine of primary jurisdiction precludes review, (3) there is a rational basis for distinguishing the Cupeño from
We review de novo the district court‘s grant of summary judgment. Aguayo, 827 F.3d at 1221.
A. Mandamus and Administrative Exhaustion
District courts have jurisdiction “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,” pursuant to the Mandamus Act,
As the source of Interior‘s nondiscretionary duty, the Cupeño point to the federal government‘s trust duty to Indian tribes, the Congressional findings that precede the List Act, and three other instances in which Interior has recognized a tribe outside of the Part 83 process. Assuming Interior has a duty to list the Cupeño, the Part 83 process provides an available, adequate remedy that the Cupeño have failed to exhaust.
Here, the Part 83 process, which is a formal administrative process for an Indian tribe to obtain federal recognition codified in Interior‘s regulations, is the prescribed remedy. A tribe seeking recognition—whether it has been previously recognized or not—may petition Interior.
The Cupeño have made no attempt to exhaust that process. Instead, the Cupeño
Framing the issue as one of “correction” is unsupported by the applicable regulations and case law. The idea of correcting the list seems to come in part from the congressional finding that “the Secretary of the Interior is charged with the responsibility of keeping a list of all federally recognized tribes” and “the list published by the Secretary should be accurate.” Pub. L. No. 103–454, § 103(6), 108 Stat 4791. That finding need not be divorced from the Part 83 process that Interior designed to fulfill its list-keeping responsibility. See
Still, the Cupeño argue that they can bypass the Part 83 process because the tribe has long been federally recognized, and the tribe‘s relationship with the federal government has never lapsed or been severed. As support, the Cupeño cite two letters from 2012 authored by the Assistant Secretary of Indian Affairs and regarding the Tejon Indian Tribe, which was added to the list outside of the Part 83 process. In those letters, the Assistant Secretary wrote that the Part 83 acknowledgment process “does not apply to Indian tribes whose government-to-government relationship was never severed.” That statement no longer reflects Interior‘s interpretation of the Part 83 regulations, and it is inconsistent with Interior‘s operative Part 83 regulations.8
A plain reading of the Part 83 regulations makes no exceptions for tribes that establish an unsevered relationship with the federal government. The Part 83 regulations announce, “[a]ny petitioner who has not submitted a complete documented petition as of July 31, 2015, must proceed under these revised regulations.”
The Part 83 regulations recognize that petitioning tribes may be in different positions.
We also find guidance in other situations where tribes have sought recognition from courts, instead of pursuing the Part 83 process, without success. For example, instead of filing a Part 83 petition, the Gay Head Tribe filed suit in federal court seeking “a declaration ordering [Interior] to add the Gay Head Tribe to the list of federally recognized tribes.” James v. U.S. Dep‘t of Health & Human Servs., 824 F.2d 1132, 1136–37 (D.C. Cir. 1987). Much like the Cupeno‘s argument here, the Gay Head Tribe argued that it would be “redundant for them to exhaust administrative channels in an attempt to obtain federal recognition because the Gay Heads have already been recognized.” Id. at 1137. The D.C. Circuit was “unpersua[ded]” and required exhaustion of Interior‘s procedures. Id. The D.C. Circuit reasoned, “the determination whether [scholarly, government-commissioned] documents adequately support the conclusion that the Gay Heads were federally recognized in the middle of the nineteenth century, or whether other factors support federal recognition, should be made in the first instance by the Department of the Interior since Congress has specifically authorized the Executive Branch to prescribe regulations concerning Indian affairs and relations.” Id. (citing
Similarly, the Tenth Circuit has indicated that exhaustion is required when “a plaintiff attempts to bypass the regulatory framework for establishing that an Indian group exists as an Indian tribe.” United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001) (citing W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1056–58 (10th Cir. 1993)). There, a Shawnee Indian group initiated the Part 83 process, but then abandoned it and sought a judicial declaration of federal recognition. Id. at 546. The Shawnee pointed to a treaty from 1854 and a judicial decision from 1866 recognizing it as a tribe. Id. at 546. The Tenth Circuit held that exhaustion of the Part 83 process was necessary because it is a matter of “specialized agency expertise,” and Congress “inten[ded] that recognized status be determined
We agree with the reasoning of our sister circuits in James and United Tribe of Shawnee Indians. The factual record that could be developed at the administrative level would aid any future judicial review. United Tribe of Shawnee Indians, 253 F.3d at 551; James, 824 F.2d at 1138.
Finally, while there are some doctrinal exceptions to administrative exhaustion, they do not apply here. For example, one exception is if exhaustion would be futile because of certainty of an adverse decision. James, 824 F.2d at 1139. The Cupeno have not argued this, and the letter from the Assistant Secretary requiring the Cupeno to apply through Part 83 does not suggest futility.9 Alternatively, the tribe may seek recourse in federal court if it is dissatisfied with the outcome of the administrative process. Muwekma Ohlone Tribe, 708 F.3d at 213; see also
The Part 83 process applies to the relief the Cupeno seek, and the Cupeno failed to exhaust the process. We agree with the district court‘s determination that the Cupeno must exhaust administrative remedies, and until they do so, they are not entitled to the relief they seek in this lawsuit.
B. APA and Equal Protection
On three occasions since 1979, Interior has recognized tribes outside of the Part 83 process. To treat the Cupeno differently from those three tribes, the Cupeno argue, is arbitrary and capricious and a violation of the Cupeno‘s equal protection rights. Because the arguments are the same, we treat this as one claim.10 Ursack, Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 955 (9th Cir. 2011) (treating the rational basis test for an equal protection violation as an analogue to the APA arbitrary and capricious standard).
To prevail on an equal protection claim, the plaintiff must show the government has treated it differently from a similarly situated party and the government‘s explanation for different treatment does not meet the relevant level of scrutiny. Muwekma Ohlone Tribe, 708 F.3d at 215. We have held, “the recognition of Indian tribes remains a political, rather than racial determination,” and we therefore “appl[y] rational basis review.”11 Kahawaiolaa, 386 F.3d at 1279 (analyzing whether Interior‘s declaration that Part 83 precludes acknowledgment of Hawaiians is constitutional). Rational basis review is deferential and requires courts to uphold government actions “if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Id. (quoting Heller v. Doe, 509 U.S. 312, 319–20 (1993)).
The three tribes that Interior has recognized outside of the Part 83 process are: the Ione Band of Miwok Indians (the “Ione“), the Lower Lake Rancheria, and the Tejon Indian Tribe (the “Tejon“). First, Interior “clarif[ied]” the status of the Ione and announced that the Ione would be included on the list in 1994. Prior to 1995, the United States did not set aside land for the Ione, although it did attempt to purchase land for the Ione in the 1910s, the 1920s, and 1941, and announced an intention to hold land in trust for the Ione in 1972.
Second, Interior “reaffirm[ed] Federal recognition of Lower Lake in 2000.” The United States had purchased land for the Lower Lake Rancheria in 1916, attempted to purchase additional land for the tribe in 1935, and granted an assignment of land to the Lower Lake Rancheria in 1947. At the same time that Interior records characterized the Lower Lake Rancheria as “terminated,” Indian persons from the Lower Lake Rancheria lineal descent continued to assert their identity as a tribe and obtained funding from federal government agencies to research their tribal status and develop a tribal constitution, suggesting that the termination status was an error.
When adding the Lower Lake Rancheria to the list, the Assistant Secretary emphasized the “long-standing governmental relationship” of the Lower Lake Rancheria in contrast to “groups that had previously been acknowledged, but whose relationship with the Federal Government had not continued to exist [and who] were subject to the acknowledgment process.” Thus, a tribe whose relationship with the United States was “continuous” might avoid Part 83, and one whose relationship had “lapsed” or “administratively terminated” needed to petition through Part 83. According to Interior, both the Ione and the Lower Lake Rancheria decisions “found some evidence of continuing Federal recognition in documentation of a relationship with the Federal Government near the time of the publication of the first list of federally recognized tribes in 1979.”
Just as the Cupeno seek exception to the Part 83 process by analogy to those three tribes, so did the Muwekma.12 The Muwekma petitioned to be recognized and listed as a federally recognized tribe. Muwekma Ohlone Tribe, 708 F.3d at 213. Ultimately, Interior denied the petition. Id. The Muwekma then sued in federal court, where the “principal claim was that Interior denied Muwekma equal protection by requiring Muwekma to proceed under the Part 83 process despite summarily recognizing two other Indian tribes—the Ione [] and the Lower Lake Rancheria []—outside the Part 83 process.” Id. at 214; see also id. at 215 (noting that this claim was brought as an equal protection and an APA claim). At the outset of the litigation, the district court required Interior to supplement the record with a detailed explanation of why it did not waive the Part 83 process for the Muwekma. Id. After Interior provided that explanation, the
district court granted summary judgment for Interior, id. at 215, and the D.C. Circuit affirmed, id. at 223. The courts recognized that the Ione and the Lower Lake Rancheria “had multiple post-1927 government-to-government interactions with the United States,” whereas the Muwekma did not. Id. at 216. Applying rational basis review, the D.C. Circuit held that Interior had “adequately explained why Muwekma is not similarly situated to Ione or Lower Lake,” and therefore the Muwekma‘s equal protection claim failed. Id. at 217.
In the present case, the Assistant Secretary explained the differential treatment of the Cupeno from the Ione, the Lower Lake Rancheria, and the Tejon as follows: (1) “In each of those reaffirmations, the group established ‘a pattern of dealing with the [group] which evidences [its] long-standing and continuing governmental relationship with the United States‘“; and, (2) the “major distinction” that “the people now seeking Federal recognition as the Agua Caliente Tribe of the Cupeno Indians of the Pala Reservation are, or were until recently, members of the Pala Band of Mission Indians, a federally recognized tribe,” whereas none of the other reaffirmed tribes claimed to be withdrawing or dissociating from a federally recognized tribe.
The first “pattern of dealing” distinction is not elaborated upon in the Assistant Secretary‘s letter. The Cupeno highlight that they, too, had early treaty and land negotiations with the United States, and have continued to be denoted separately in census and archaeological records. This is not, however, the Assistant Secretary‘s only explanation for the differential treatment.
There are specific Part 83 regulations for previously recognized tribes,
Moreover, it is not inconsistent for Interior to change the name of the PBMI in the Federal Register upon written request. The PBMI has been federally recognized since 1979. While the Secretary of Interior had approved the PBMI Constitution, which identified the tribe as the “Pala Band of Mission Indians,” decades earlier, it listed them as the “Pala Band of Luiseno Mission Indians” in the Federal Register. Not requiring a recognized and listed tribe to pursue a formal regulatory process for a name change—to what its name already was in the Secretary-approved tribal constitution—does not make Interior‘s present requirement that the Cupeno follow the regulatory process irrational.14
III.
Although the political-question doctrine was cited by the district court in its oral ruling, the Assistant Secretary does not argue that it applies. The political-question doctrine does not bar us from resolving the core issue in this case: whether the Cupeno can secure listing outside of the Part 83 process. See Kahawaiolaa, 386 F.3d at 1276 (recognizing that where the executive branch had created regulations for the tribal-recognition process, Interior‘s decisions about recognition and the regulations are subject to normal judicial review).
IV.
The record in this case depicts some of the difficult historic relations between the United States and Indian tribes—the Cupeno were evicted from their indigenous lands and relocated, by the federal government, to reside next to another indigenous group despite potential conflict between the two. At present, however, the federal government has an administrative process by which tribes may petition for and receive federal recognition. Where the Cupeno have not pursued that process, and Interior has rationally distinguished the Cupeno from the other tribes that were listed outside of that process, we cannot order Interior to add the Cupeno to the list of federally recognized tribes published in the Federal Register. We affirm the district court‘s order granting summary judgment for Interior.
AFFIRMED.