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Law360 (May 4, 2020, 3:41 PM EDT ) U.S. Treasury Department Secretary Steven Mnuchin must immediately disperse $8 billion in coronavirus relief funding promised to tribes or risk imposing irreparable harm, eight tribes said in papers submitted in D.C. federal court.
Unless funds are disbursed immediately, tribes — including the Agua Caliente Band of Cahuilla Indians in California and the Ak-Chin Indian Community in Arizona — will have to cut essential services and lay off staff, the tribes said in a Sunday motion for a temporary restraining order and preliminary injunction and accompanying amended complaint.
Mnuchin has already missed Congress' April 26 deadline to disperse the funds, according to the tribes, in violation of the Administrative Procedure Act.
The tribes meet the irreparable harm threshold for a preliminary injunction and temporary restraining order because "many tribal members and non-members alike rely on tribal enterprises for employment and health insurance," they said Sunday.
Distributing funds at a later date "will help, but it will not undo the harm suffered in the interim," they added.
The circumstances also merit a writ of mandamus — ordering a government official to fulfill his duty — the tribes said. They cited a D.C. Circuit standard for assessing mandamus applications established in the case Telecommunications Research & Action Center v. FCC
.The so-called TRAC standard includes consideration of the public health consequences of a delayed action.
"These funds — and their immediate availability — directly and tangibly implicate human health and welfare because they will effect plaintiffs' ability to ... engage in COVID-19 safety and relief measures such as cleaning facilities, providing food assistance and medical care to tribal members and staff in need, and acquiring and providing [personal protective equipment] and sanitation supplies," the tribes said.
Joining the Agua Caliente and Ak-Chin as co-plaintiffs are the Arapaho Tribe of the Wind River Reservation in Wyoming, the Cherokee, Chickasaw and Choctaw nations in Oklahoma, the Snoqualmie Indian Tribe of Washington and the Yurok Tribe of California.
The tribes provide a range of services to their members, according to the complaint, such as health care, food distribution and regulation, educational programs, water treatment and law enforcement. Tribes have closed their businesses in compliance with emergency orders, cutting out a major source of governmental revenue.
COVID-19 has also brought "substantial unbudgeted expenses," according to the complaint, such as personal protective equipment, new sanitation costs, testing tents and food and water for tribe members.
"Congress understood that tribes would incur these COVID-19 related expenditures and enacted Title V of the CARES Act precisely to provide additional resources to tribes," they said.
Counsel for the tribes did not immediately respond to a request for comment. Nor did the Treasury Department or Department of Justice.
Sunday's amended complaint, initially submitted April 30, was updated to include new plaintiffs: the Chickasaw Nation and the Choctaw Nation.
"Every month that passes the Choctaw Nation and its businesses lose approximately $40 million in revenue that are used to fund essential government services which are in more demand than ever due to the pandemic," Choctaw Nation Chief Gary Batton said in one of several affidavits accompanying the complaint.
In separate litigation, a group of tribes is currently fighting to stop any amount of the $8 billion in direct tribal funding from going to Alaska Native corporations, which are not federally recognized tribes.
U.S. District Judge Amit S. Mehta granted a temporary restraining order April 27 blocking ANCs from accessing the funds.
The tribes are represented by Keith M. Harper, Catherine F. Munson and Mark H. Reeves of Kilpatrick Townsend & Stockton LLP.
The Treasury Department is represented by Jason C. Lynch of the U.S. Department of Justice Civil Division, Federal Programs branch.
The case is Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, case number 1:20-cv-01136, in the U.S. District Court for the District of Columbia.
--Additional reporting by Kelly Zegers and Andrew Westney. Editing by Marygrace Murphy.
For a reprint of this article, please contact reprints@law360.com.
