United States District Court, D. Alaska
ORDER DISMISSING COMPLAINT
RALPH R. BEISTLINE UNITED STATES DISTRICT JUDGE
At Docket 5 Defendant Carey Mills has moved for an Order dismissing the case for failure to exhaust administrative remedies. Plaintiff Kurt Kanam has opposed the motion.Although the time therefore has lapsed, Mills has not replied. Neither party has requested oral argument and the Court has determined that oral argument would not materially assist the Court in resolving the issue presented. Accordingly, the matter is submitted for decision on the moving and opposing papers.
I. GRAVAMEN OF COMPLAINT
The controversy between Mills and Kanam involves Kanam’s mining claim, the subject of a private mining contest pending in the Department of the Interior, Office of Hearings and Appeals (“DOI”), Case No. AAFF 096515. Although it is not entirely clear from the Complaint, it appears that Kanam is challenging the legitimacy of the private mining contest proceeding in general and, in particular, the order of the DOI requiring Kanam to disclose to Mills the location of valuable mineral deposits on the disputed claim. In his Complaint Kanam seeks a declaratory ruling that Mills lacks standing to maintain a private mining contest, a protective order barring the DOI from disclosing the location of the gold on Kanam’s claim, and a stay of the proceedings before the DOI pending a final determination in Mills v. Wood, Case No. 4:10-cv-00333-RRB, also pending before this Court.
II. ISSUE PRESENTED
Whether this action, brought prior to the completion of administrative proceedings pending before the DOI, must be dismissed as premature.
A party must bring a motion to dismiss for lack of subject-matter jurisdiction before filing a responsive pleading. Federal courts possess only that power authorized by Constitution and statute, which may not be expanded by judicial decree. It is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing jurisdiction rests upon the party asserting jurisdiction. Subject-matter jurisdiction is ordinarily determined on the facts that exist at the time the complaint is filed; subsequent changes can neither confer nor defeat subject-matter jurisdiction.
Sovereign immunity is an important limitation on the subject-matter jurisdiction of federal courts. The United States may only be sued to the extent that it has waived its sovereign immunity. Exhaustion of administrative remedies, i.e., the failure to utilize available administrative agency remedies prior to resort to the courts, part of sovereign immunity, is also jurisdictional. Failure to exhaust may also be raised for the first time on appeal or addressed by the court sua sponte.
The Administrative Procedures Act provides:
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
The Supreme Court has held that in enacting this provision Congress effectively codified the doctrine of exhaustion of remedies in the APA. Thus, an agency action must be final, i.e., all administrative remedies must be exhausted prior to bringing suit.
As relevant to the pending motion the following facts ...