UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Mille Lacs Band of Ojibwe, a federally  Case No. 17-cv-05155 (SRN/LIB)   
recognized Indian Tribe; Sara Rice, in her                               
official capacity as the Mille Lacs Band                                 
Chief of Police; and Derrick Naumann, in    ORDER                        
his official capacity as Sergeant of the                                 
Mille Lacs Police Department,                                            

         Plaintiff,                                                     

v.                                                                       

County of Mille Lacs, Minnesota; Joseph                                  
Walsh, individually and in his official                                  
capacity as County Attorney for Mille                                    
Lacs County; and Donald J. Lorge,                                        
individually and in his official capacity as                             
Sheriff of Mille Lacs County,                                            

         Defendants.                                                    


Anna Brady, Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz Chestnut, 
2101 Fourth Avenue, Suite 1230, Seattle, WA 98121; and Arielle Wagner, Charles N. 
Nauen, and David J. Zoll, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue 
South, Suite 2200, Minneapolis, MN 55401, for Plaintiffs.                

Brett D. Kelley, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, 
Minneapolis, MN 55415; Courtney E. Carter and Randy V. Thompson, Nolan Thompson 
Leighton & Tataryn PLC, 1011 First Street South, Suite 410, Hopkins, MN 55343; and 
Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South 
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant County of Mille Lacs, 
Minnesota.                                                               

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South 
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh. 

Brett D. Kelley, Douglas A. Kelley, Stacy Lynn Bettison, and Steven E. Wolter, Kelley, 
Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 
55415; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 
South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Donald J. 
Lorge.                                                                   


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on the Motion to Dismiss for Lack of Jurisdiction 
Based on Mootness [Doc. No. 303] filed by Defendants Donald Lorge and Joseph Walsh.1 
Based on a review of the files, submissions, and proceedings herein, and for the reasons 
below, the Court denies the motion.                                       
I.   BACKGROUND                                                           
    A.   Facts Giving Rise to the Lawsuit                                
    Plaintiffs are the Mille Lacs Band of Ojibwe, Mille Lacs Band Chief of Police Sara 
Rice, and Sergeant Derrick Naumann (collectively, “the Band”). The Band brought suit 
against the County of Mille Lacs, Mille Lacs County Attorney Joseph Walsh, and Sheriff 
Donald  Lorge  (collectively,  “the  County”)  seeking  declaratory  and  injunctive  relief 
regarding the Band’s law enforcement authority within the Mille Lacs Reservation. (See 
generally Compl. [Doc. No. 1].)                                           
    The  Court  incorporates  by  reference  the  factual  background  set  forth  in  its 
December 21, 2020 Order [Doc. No. 217].  As the Court recounted in that Order, Article 2 
of  the  1855  Treaty  between  the  Minnesota  Chippewa  Tribe  and  the  United  States 


1    Also pending before the Court are the parties’ Cross-Motions for Partial Summary 
Judgment [Doc. Nos. 223 & 239].  The Court will address these motions in a separate, 
forthcoming order.                                                        
established the Mille Lacs Indian Reservation, which comprises about 61,000 acres of land.  
(Dec. 21, 2020 Order at 3.)  Plaintiffs contend that the Reservation established by the 1855 

Treaty has never been diminished or disestablished.  (Id.)  If the Reservation has been 
disestablished, which they contend it has not, the Band maintains only a temporary right 
of occupancy insufficient to constitute a “reservation” in the term’s legal sense.  Within the 
Reservation, the United States holds approximately 3,600 acres in trust for the benefit of 
the Band, the Minnesota Chippewa Tribe, or individual Band members.  (Id.) The Band 
owns in fee simple about 6,000 acres of the Reservation, and individual Band members 

own in fee simple about 100 acres of the Reservation.  (Id.)              
    In Defendants’ view, however, the Reservation established by the 1855 Treaty was 
diminished  or  disestablished  by  way  of  subsequent  federal  treaties,  statutes,  and 
agreements.  (Id.)                                                        
    In 2008, the Band and the County entered into a cooperative law enforcement 

agreement (“2008 Agreement”) that allowed Band law enforcement officers to exercise 
concurrent  jurisdiction  with  the  Mille  Lacs  County  Sheriff’s  Department  to  enforce 
Minnesota state law, as provided in 

.  (Id.)          
    In June 2016, however, the County terminated the 2008 Agreement, primarily due 
to a dispute regarding the Reservation’s boundaries, which impacted the scope of the 

Band’s law enforcement authority.  (Id.; see also Baldwin Decl. [Doc. No. 150], Ex. KK 
(Walsh Dep.) at 318:23–319:3; 

 Ex. VV (June 22, 2016 Sheriff Staff Mtg. Minutes) at 
8; 

 Ex. WW (June 15, 2016 Sheriff Staff Mtg. Minutes) at 2, 5.)  In July 2016, County 
Attorney Walsh asked then-Minnesota Attorney General Lori Swanson for an opinion 
regarding the dispute, which she denied for several reasons, and recommended that Walsh 
advise the County as he deemed appropriate.  (See Aug. 2021 Walsh Decl. [Doc. No. 306-

1] ¶¶ 7–8].)                                                              
    Shortly thereafter, Walsh issued an Opinion and Protocol (the “2016 Opinion and 
Protocol”) that addressed the Band’s state law enforcement authority.  (See Dec. 21, 2020 
Order at 4–5.)  Walsh also opined that the Band’s inherent law enforcement authority under 
federal law did not extend to non-trust lands within the 1855 Reservation, and did not 
include the authority to investigate state-law violations by Indians or non-Indians, even on 

trust lands.  (Id.)                                                       
    Under the 2016 Opinion and Protocol, Band officers who contravened their scope 
of authority would be subject to criminal and civil penalties for unauthorized use of force, 
obstruction of justice, and impersonating a peace officer.  (Id. at 5.)  The Sheriff’s Office 
enforced the 2016 Opinion and Protocol by “interfere[ing] with law enforcement measures 

undertaken by Band officers.”  (Id. at 6, 7–11.)  Morale declined among Band officers, 
several of whom resigned.  (Id. at 14–15.)  Band officers found that due to their diminished 
authority, they were unable to respond to increasingly visible criminal activity, particularly 
involving drugs, on the Reservation.  (Id. at 16.)                        
    In January 2016, the Band and the Bureau of Indian Affairs (“BIA”) entered into an 

agreement, effective January 1, 2017, by which Band officers were deputized and issued 
Special Law Enforcement Commissions (“SLECs”) to enforce federal law within the 
Band’s Indian country.  (Id. at 21.)  Despite the issuance of the SLECs, Walsh maintained 
that the 2016 Opinion and Protocol remained in force.  (Id.)              
    Plaintiffs filed this lawsuit in November 2017.  (Id. at 22.)  In September 2018, the 
Band, County, and former Mille Lacs County Sheriff Brent Lindgren entered into an 

interim law enforcement agreement (the “2018 Agreement”).  (Id.)  On a temporary basis, 
the 2018 Agreement grants the Band concurrent jurisdiction with the Sheriff over all 
persons on trust lands, all Band members within the boundaries of the 1855 Treaty, and 
any person who commits or attempts to commit a crime within the presence of a Band 
officer within the boundaries of the 1855 Treaty.  (Id.)  Under its own terms, the 2018 
Agreement automatically terminates 90 days after the final resolution of this case.  (Id.)   

    The parties proceeded to file early dispositive motions on several issues.  On 
December 21, 2020, the Court issued a ruling on several of the parties’ motions, granting 
Plaintiffs’ Motion for Summary Judgment on Standing, Ripeness, and Mootness; denying 
Defendants Walsh and Lorge’s Motion for Summary Judgment; and denying Defendants’ 
Motion to Strike and for Sanctions.  (Id. at 47.)                         

    B.   Defendants’ Interlocutory Appeal                                
    On January 19, 2021, Walsh and Lorge filed an interlocutory appeal [Doc. No. 218], 
challenging certain aspects of this Court’s December 21, 2020 ruling.  Specifically, they 
argued that the Court lacked jurisdiction over Plaintiffs’ claims under 

, 
that Plaintiffs lacked a “cause of action” against them, and that they were immune from 

suit pursuant to various immunity doctrines.  (Baldwin Decl. [Doc. No. 309], Ex. B (W&L 
Opening 8th Cir. Brief).)  Walsh and Lorge did not challenge this Court’s ruling on 
mootness.                                                                 
    On August 31, 2021, after the parties had filed their memoranda with the Eighth 
Circuit and were awaiting oral argument, Walsh and Lorge moved to dismiss their appeal 

on mootness grounds, citing the Supreme Court’s June 1, 2021decision in United States v. 
Cooley, 

 (2021).  (Baldwin Decl. [Doc. No. 309], Ex. C (W&L 8th Cir. 
Mot. to Dismiss) at 1.)  They also argued that their appeal was moot because it would be 
speculative to find the challenged conduct would recur.  (Id. at 8–9.)  Accordingly, Walsh 
and Lorge asked the Eighth Circuit to “direct the district court to dismiss [Plaintiffs’] 
claims against [them].”  (Id.)                                            

    Alternatively, if the Eighth Circuit declined to dismiss their appeal, Walsh and 
Lorge asked the court to refer the question of whether they were state actors to the 
Minnesota Supreme Court.  (Id. at 10–11.)                                 
    On September 10, 2021, the Eighth Circuit ruled on the Motion to Dismiss, stating, 
“Appellants’ motion to dismiss on terms fixed by the court is granted.  Each side will bear 

its own costs on appeal.  The Court’s mandate shall issue forthwith.”  (8th Cir. J. [Doc. No. 
292]) (citing  Fed. R. App. P. 42(b); Fed. R. App. P. 39(a)(4)).  The Eighth Circuit issued 
its mandate that same day, returning jurisdiction to this Court.  (8th Cir. Mandate [Doc. 
No. 292].)                                                                
    Later on September 10, Plaintiffs filed their response to Walsh and Lorge’s Motion 

to Dismiss, even though the Eighth Circuit had just issued its judgment and mandate.  
(Baldwin Decl. [Doc. No. 309], Ex. D (Pls.’ Resp. to 8th Cir. Mot. to Dismiss).)  Plaintiffs 
explained that nevertheless, they were making a timely response “in the event there are any 
further proceedings before [the Eighth Circuit] under [Fed. R. App. P.] 40 or Eighth Circuit 
Rule 27A(d),” i.e., proceedings for rehearing or reconsideration of the Eighth Circuit’s 
disposition of the appeal.  (Id. at 2.)  Plaintiffs expressed the view that while the Eighth 

Circuit had dismissed the appeal, the court had not ruled on the merits of Walsh and Lorge’s 
motion.  (Id. at 1–2.)  Thus, they argued, the matter was not moot, and the case was once 
again subject to the district court’s jurisdiction.  (Id.)                
    On September 17, 2021, Walsh and Lorge filed a “reply” memorandum in the 
Eighth Circuit in support of their Motion to Dismiss, stating that if the appellate court  had 
concluded that Plaintiffs’ case was moot, “it should say so[.]”  (Baldwin Decl. [Doc. No. 

309], Ex. E (W&L Sept. 17, 2021 8th Cir. Reply) at 2.)  Walsh and Lorge requested that 
the Eighth Circuit either certify the question of whether Cooley mooted their appeal to the 
Minnesota Supreme Court, or address the merits of their appeal.  (Id. at 4.)  Thus, they 
“suggest[ed]” that the Eighth Circuit recall the mandate and explain whether Cooley 
mooted the case against them.  (Id.)                                      

    The Eighth Circuit issued no ruling in response to Walsh and Lorge’s memorandum, 
prompting Walsh and Lorge to file a Motion to Recall the Mandate on October 15, 2021, 
seeking to confirm that “Cooley moots the case against them.”  (Baldwin Decl. [Doc. No. 
309], Ex. F (W&L 8th Cir. Mot. to Recall Mandate).)  On October 19, 2021, Plaintiffs filed 
their opposition to the motion, noting the failure of Walsh and Lorge to timely file a motion 

for rehearing or reconsideration.  (Baldwin Decl. [Doc. No. 309], Ex. G (Pls.’ 8th Cir. 
Opp’n to Mot. to Recall Mandate).)  The following day, in a one-sentence order, the Eighth 
Circuit summarily denied the Motion to Recall the Mandate. (Baldwin Decl. [Doc. No. 
309], Ex. H (Oct. 20, 2021 8th Cir. Order).)                              
    C.   November 15, 2021 Status Conference and Supplemental Briefing   
    On November 15, 2021, the Court held a status conference in this case, and directed 
the parties to submit supplemental briefing to address the procedural impact of the Eighth 

Circuit’s dismissal of Walsh and Lorge’s interlocutory appeal.  (Baldwin Decl. [Doc. No. 
309], Ex. I (Nov. 15, 2021 Tr.) at 17–18.)  In addition, the Court directed the parties to 
address whether the case was moot, in the event this Court found that the Eighth Circuit 
had not ruled on the question of mootness and had given no direction to this Court to 
dismiss the case.  (Id.)                                                  

    Walsh and Lorge submitted their supplemental memorandum, along with the instant 
motion “for an order dismissing them from the case pursuant to” their supplemental 
memorandum.  (W&L Mot. to Dismiss at 1.)  Although they maintain that the Eighth 
Circuit granted their Motion to Dismiss on mootness grounds, they nevertheless argue that 
this Court should address their mootness arguments and dismiss them from the case.  

(W&L Supp’l Mem. [Doc. No. 305] at 7–10.)  In support of their position, they also submit 
the August 2021 Declarations of Joseph J. Walsh [Doc. No. 306-1] and Donald Lorge [Doc. 
No. 306-2], which were filed with Defendants’ initial Eighth Circuit interlocutory appeal. 
(See Knudson Decl. [Doc. No. 306] ¶¶ 2–3.)                                
    In response, Plaintiffs argue that the Eighth Circuit did not direct this Court to 

dismiss the case or otherwise rule on Walsh and Lorge’s mootness arguments.  (Pls.’ Supp’l 
Opp’n [Doc. No. 308] at 17–20.)  They contend that this Court correctly ruled in December 
2020 that the parties’ 2018 law enforcement agreement did not moot Plaintiffs’ claims, and 
Walsh and Lorge present no valid reason for the Court to reconsider the issue.  (Id. at 20–
25.)  In addition, Plaintiffs maintain that neither Cooley nor Walsh and Lorge’s August 
2021 Declarations demonstrate that this case is moot.  (Id. at 25–33.)  Finally, they urge 

the Court to reject Walsh and Lorge’s contention that the possibility of recurring conduct 
is merely speculative.  (Id. at 33–35.)                                   
II.  DISCUSSION                                                           
    A.   Effect of Eighth Circuit’s Dismissal                            
    The  Eighth  Circuit’s  Judgment,  quoted  earlier,  dismissed  Walsh  and  Lorge’s 
interlocutory appeal under Federal Rule of Appellate Procedure 42(b).  (8th Cir. J. at 1.)  
Rule 42(b) provides for the voluntary dismissal of an appeal, stating, as relevant here, that 

“[a]n appeal may be dismissed on the appellant’s motion on terms . . . fixed by the court.”  
Fed. R. App. P. 42(b).  The “terms” fixed by the Eighth Circuit required each side to bear 
its own costs related to the appeal.  (8th Cir. J. at 1.)                 
    Walsh and Lorge concede that the Eighth Circuit’s Judgment did not mention 
mootness, nor did it direct dismissal on that basis.  (W&L Supp’l Mem. at 7.)  They further 

state, “Counsel for Walsh and Lorge have been unable to find precedent where justiciability 
was challenged and a case dismissed without explanation.”  (Id.)  Instead, they postulate 
that because the Eighth Circuit granted their motion to dismiss the appeal, “the Eighth 
Circuit must have affirmed the merits of their motion, similarly to the way an appellate 
court may issue without opinion a summary affirmance, or judgment order, affirming a 

lower court ruling.”  (Id.)  They further note that mootness was their only basis for seeking 
dismissal, and the Eighth Circuit “did not specify another substantive basis” for dismissal.  
(Id. at 8.)  And they assert that “when an appellate court wants to avoid ruling on mootness, 
the court will so state.”  (Id. at 8–9) (citing Terkel v. CDC, 

 (5th Cir. 2021)).   

    However, contrary to Walsh and Lorge’s arguments, the Eighth Circuit did provide 
an explanation for its dismissal by treating the motion as one for voluntary dismissal under 
Rule 42(b), and granting it on that basis.  Consequently, the court had no reason to address 
mootness.  If Walsh and Lorge disagreed with the Eighth Circuit’s dismissal order, finding 
that it misconstrued their Motion to Dismiss the Appeal, they could have timely sought 
rehearing or reconsideration with the Eighth Circuit.   They did not.     

    In fact, Walsh and Lorge realized that the Eighth Circuit had not ruled on mootness, 
and twice asked the court to recall its mandate and substantively rule on the issue or to 
certify a question to the Minnesota Supreme Court.  (Baldwin Decl. [Doc. No. 309], Ex. E 
(W&L 8th Cir. Reply) at 3; 

 Ex. F (W&L 8th Cir. Mot. to Recall Mandate) at 5.)  Since 
Walsh and Lorge made their first request in a reply memorandum, the Eighth Circuit issued 

no response, but the court summarily denied their second request, made in their Motion to 
Recall the Mandate.  (Baldwin Decl. [Doc. No. 309], Ex. H (8th Cir. Oct. 20, 2021 Order).)  
    Ultimately, Walsh and Lorge appear to agree that “in the absence of any clear 
direction from the appellate court, . . . the prudent course is for this Court to address in the 
first instance the changed legal and factual landscape they believe moots Plaintiffs’ case 

against them.”  (W&L’s Supp’l Mem. at 9.)  Accordingly, the Court proceeds to discuss 
Walsh and Lorge’s current mootness arguments.                             
    B.   Mootness                                                        
    The  Constitution  limits  federal  courts’  jurisdiction  to  actual  “Cases”  or 
“Controversies.”  U.S. Const. art. III, § 2, cl. 1.  If “‘the issues presented are no longer 

live,’ . . . a case or controversy under Article III no longer exists because the litigation has 
become moot.”  Brazil v. Ark. Dep’t of Human Servs., 

 (8th Cir. 2018) 
(quoting Already, LLC v. Nike, Inc., 

 (2013)).  In general, a case becomes 
moot “when changed circumstances already provide the requested relief and eliminate the 
need for court action.”  Hillesheim v. Holiday Stationstores, Inc., 

 (8th 

Cir. 2018) (citing McCarthy v. Ozark Sch. Dist., 

 (8th Cir. 2004)).   If 
an action becomes moot, the court must dismiss it for lack of jurisdiction.  Ali v. Cangemi, 

 (8th Cir. 2005).                                        
    In some instances, a defendant may argue that a case is automatically moot because 
the defendant has voluntarily ceased to engage in the challenged conduct.  Such “voluntary 

cessation” does not necessarily moot a case, however, since the defendant is “free to return 
to his old ways.”  Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

 (2000) (citation omitted).  A case can become moot by the defendant’s voluntary 
cessation only if it is “absolutely clear that the allegedly wrongful behavior could not 
reasonably be expected to recur.”  Wright v. RL Liquor, 

 (8th Cir. 2018) 

(quoting Friends of the Earth, 

 (2000)).                   
    The party asserting mootness under the voluntary cessation theory bears a “heavy 
burden of persuading the court that the challenged conduct cannot reasonably be expected 
to start up again.”  Friends of the Earth, 

 (internal quotations and citation 
omitted).  Governmental entities and officials “[are] given considerably more leeway than 
private parties in the presumption that they are unlikely to resume illegal activities.” 

Prowse  v.  Payne,  

  (8th  Cir.  2021)  (citation  omitted)).  But  where 
circumstances suggest that by ceasing to engage in the challenged conduct, the defendant 
is  simply  “attempting  to  manipulate  [the  court’s]  jurisdiction  to  insulate  a  favorable 
decision from review,” City of Erie v. Pap’s A.M., 

 (2000), courts are 
unlikely to find a case moot.  See Already, 

.               
    Walsh and Lorge assert three primary grounds for dismissal based on mootness.    

First, they argue that the 2018 Agreement, and Walsh’s revocation of the 2016 Opinion 
and Protocol, moot Plaintiffs’ claims.  (W&L Supp’l Mem. at 10.)  Second, they contend 
that Cooley represents a change in the law that precludes Walsh from issuing an opinion 
and protocol similar to the 2016 Opinion and Protocol.  (Id.)  Third, they assert that any 
holding that this case is not moot “pushes this Court into rank speculation over what either 

Walsh or Lorge, or their successors, would do if a cooperative agreement was no longer in 
place.”  (Id.)  For all of these reasons, they argue that this case is moot and must be 
dismissed.                                                                
         1.   Whether the 2018 Agreement and the Revocation of the 2016  
              Opinion and Protocol Moot the Band’s Claims Against Walsh  
              and Lorge                                                  
    In  the  December  2020  Order,  the  Court  rejected  Walsh  and  Lorge’s  related 
argument that the 2018 Agreement moots Plaintiffs’ claims.  (Dec. 21, 2020 Order at 2, 
35–36.)  Referencing mootness by virtue of a party’s voluntary cessation of the challenged 
conduct, the Court explained, “If this case is dismissed, on mootness grounds, the 2018 
Agreement will, by its very terms, terminate, and it is highly probable that the parties will 
continue to dispute the extent of the boundaries of the Reservation and the extent of the 

Band’s sovereign law enforcement authority.”  (Id. at 35–36.)  Indeed, disagreement about 
the Reservation boundaries was at the heart of the County’s decision to terminate the 2008 
Agreement.  (See Baldwin Decl. [Doc. No. 150], Ex. KK (Walsh Dep.) at 318:23–319:3 
(stating, “The primary motivating factor of the revocation . . . was the M-opinion, and what 
I think the board viewed as the Band using their law enforcement authority to improve their 
position vis-à-vis the boundary.”); 

 Ex. VV (June 22, 2016 Sheriff Staff Mtg. Minutes) 

at 8 (“This is a boundary dispute between the County and the Band.”); 

 Ex. WW (June 
15, 2016 Sheriff Staff Mtg. Minutes) at 2, 5 (noting “Boundary issues” and expressing high 
likelihood of revocation and that “all will come united because this is a boundary issue.”).   
              a.   Reconsideration                                       
    Procedurally, Walsh and Lorge did not appeal the portion of the Court’s December 

2020 Order addressing mootness, nor have they moved for reconsideration or identified 
any “compelling  circumstances”  warranting  reconsideration.   See Fed. R.  Civ.  P. 60 
(stating that a motion for “reconsideration” directed at an order is properly considered 
under Rule 60); D. Minn. L.R. 7.1(j) (authorizing motions for reconsideration only upon 
obtaining leave of court and upon a showing of compelling circumstances).  To the extent 

the argument is relevant to reconsideration, Walsh and Lorge contend that this case “is not 
controlled by the voluntary cessation exception to the mootness doctrine,” because Walsh 
did not revoke his 2016 Opinion and Protocol in order to “manipulat[e] his [] conduct or 
to invent a mootness argument.”  (W&L Supp’l Mem. at 11.)                 
    The Court finds that this argument does not constitute the type of compelling or 
“exceptional circumstance[]” necessary to support reconsideration.  See Rindahl v. U.S. 

Attorney’s Office for Minn., No. 18-cv-3237 (JRT/ECW), 

, at *2 (D. 
Minn. Jan. 31, 2019) (noting that permission to seek reconsideration is granted only upon 
a showing of compelling circumstances or to “correct manifest errors of law or fact or to 
present  newly  discovered  evidence.”),  report  &  recommendation  adopted,  

 (D. Minn. May 6, 2019).  Importantly, a party cannot use a motion to reconsider 
to repeat previous arguments, introduce new evidence or arguments that could have been 

presented, or “tender new legal theories for the first time.”  Hagerman v. Yukon Energy 
Corp., 

 (8th Cir. 1988) (citations omitted).  As Plaintiffs observe, Walsh 
and Lorge previously argued in 2020 that this is not a voluntary cessation case because 
“[t]he parties voluntarily negotiated and entered into the 2018 []Agreement,” and Plaintiff 
had not shown that Defendants entered into the agreement for the improper purpose of 

mooting the lawsuit.  (W&L Opp’n to Summ. J. on Standing, Ripeness, and Mootness 
[Doc. No. 176] at 54–55.)                                                 
    This issue was previously raised and addressed, and the Court finds that Walsh and 
Lorge fail to present compelling or exceptional circumstances to warrant reconsideration.  
Accordingly, from a procedural standpoint, Walsh and Lorge’s current mootness argument 

based on the 2018 Agreement and the revocation of the 2016 Opinion and Protocol is not 
properly before the Court.                                                
              b.   Effect of the 2018 Agreement and the Revocation of the 
                   2016 Opinion and Protocol on the Merits               
    Even if this portion of their motion were procedurally proper, the Court remains 
unpersuaded that the 2018 Agreement and the revocation of the 2016 Opinion and Protocol 
moots the case.  Again, Walsh and Lorge contend that a finding of voluntary cessation is 
inapplicable, as Walsh attests he revoked the 2016 Opinion and Protocol not because he 

sought to engage in manipulative conduct in response to this litigation, but because the 
County and the Band had freely negotiated the 2018 Agreement.2  (W&L Supp’l Mem. at 
11.)                                                                      
    In support of their position, Walsh and Lorge point to Let Them Play MN v. Walz, 
No. 21-cv-79 (ECT/DTS), __ F. Supp. 3d__, 

, at *6 (D. Minn., Aug. 24, 

2021), in which the court found a lawsuit challenging certain COVID-related restrictions 
on youth sports was moot.  Indeed, the court found the circumstances surrounding the 
Governor’s lifting of restrictions did not demonstrate “the type of manipulative behavior 
the voluntary-cessation exception is meant to address,” but it further found the matter was 
moot because the challenged conduct was unlikely to recur.   

          

    Taking a step back from the question of whether the voluntary cessation exception 
applies, the Court must first address, fundamentally, the underlying question of mootness, 

2    The Band contends that Walsh fails to support his statements regarding revocation 
with any supporting evidence, such as a signed document purporting to show the revocation 
of the 2016 Opinion and Protocol.  (Baldwin Decl. [Doc. No. 309] ¶¶ 3–4.)  For purposes 
of this motion, the Court will assume that Walsh revoked the 2016 Opinion and Protocol.  
namely,  whether  “changed  circumstances  already  provide  the  requested  relief  and 
eliminate the need for court action,” Hillesheim, 

, or “the issues presented 

are no longer live.”  Brazil, 

.                            
    Walsh and Lorge rely on their August 2021 Declarations in support of their position 
that circumstances have changed, rendering this case moot.  In his declaration, Walsh states 
as follows:                                                               
    14.  At the time I drafted my opinion and protocol in 2016, the United States 
    Supreme Court had not determined the scope of retained inherent tribal 
    jurisdiction to investigate potential state and federal law criminal violations.  
    In the  Opinion, I set  out several conclusions relevant to inherent tribal 
    criminal authority.  One of these conclusions was that tribes do not have 
    criminal jurisdiction over non-Indians, with a narrow exception under the 
    Violence Against Women Act.                                          

    15.  I have read the recent United States Supreme Court decision in United 
    States v. Cooley, 

 (June 1, 2021).  In Cooley, the Court held 
    that tribes, and by extension tribal police officers, within their reservation 
    had inherent authority to stop and investigate non-Indians for possible state 
    and federal law violations.  The Cooley decision alleviated my major concern 
    in issuing my Opinion in 2016:  having evidence that was admissible in court.  
    Consequently, I could not and would not reissue my 2016 Opinion and  
    Protocol should the current cooperative agreement entered into in 2018 
    terminate.                                                           

(Aug. 2021 Walsh Decl. ¶¶ 15–16) (emphasis added).  In Sheriff Lorge’s declaration, he 
states that if the 2018 Agreement is terminated, he “would follow the advice of the County 
Attorney and instruct my deputies and staff accordingly.”  (Aug. 2021 Lorge Decl. ¶ 6.)   
    As  to  whether  these  representations  constitute  “changed  conduct” that  already 
provides the requested relief, or render issues no longer “live,” the Court turns to the 
Complaint.  Among the types of relief the Band requests is a declaration stating that: 
    A.    As  a matter  of  federal  law, the  Band  possesses  inherent  sovereign 
    authority to establish  a police department and to authorize Band police 
    officers to investigate violations of federal, state and tribal law within the 
    Mille Lacs Indian Reservation as established in Article 2 of the Treaty with 
    the  Chippewa,  

  (Feb.  22,  1855),  and  in  exercising  such 
    authority, to apprehend suspects (including Band and non-Band members) 
    and turn them over to jurisdictions with prosecutorial authority; and  
    B. Pursuant to 

(d), 

 and 2804, the  
    Deputation Agreement between the Band and the Bureau of Indian Affairs, 
    and the SLECs issued to Band police officers by the Bureau of Indian Affairs, 
    Band police officers have federal authority to investigate violations of federal 
    law within the Mille Lacs Indian Reservation as established in Article 2 of 
    the  Treaty  with  the  Chippewa,  

  (Feb.  22,  1855),  and,  in 
    exercising such authority, to arrest suspects (including Band and non-Band 
    members) for violations of federal law.                              

(Compl. at 7) (emphasis added).                                           
    Even giving full credit to Walsh’s statement that upon the termination of the 2018 
Agreement, and consistent with Cooley, he would not “reissue” his 2016 Opinion and 
Protocol, (Aug. 2021 Walsh Decl. ¶ 16), his representations do not provide the Band’s 
requested relief, nor do they resolve an issue essential to the Band’s claims.  The Band’s 
claims concerning the scope of its law enforcement authority “within the Reservation,” 
quoted above, require resolution of whether the Milles Lacs Reservation remains as it was 
under Article 2 of the Treaty with the Chippewa, 

 (Feb. 22, 1855) (“the Treaty 
of 1855”), as the Band contends, or whether subsequent treaties and Acts of Congress have 
disestablished or diminished the Reservation, as Walsh and Lorge contend.  (Compl. at 7) 
(emphasis added).                                                         
    Walsh and Lorge’s Declarations say nothing about the Reservation’s boundaries, 
although they recognize that the issue is crucial to this dispute.  For example, elsewhere in 
his  Declaration,  Walsh  implicitly  acknowledges  that  the  scope  of  the  Band’s  law 
enforcement authority is affected by the issue of the Reservation’s geographic boundaries.  

(See Aug. 2021 Walsh Decl. ¶¶ 10 (noting prior letters from Minnesota officials stating 
that the “the Mille Lacs Band’s Indian Country is limited to approximately 4,000 acres of 
land held in trust by the federal government for the [] Band.”), 11 (explaining that in 
drafting the 2016 Opinion and Protocol, Walsh sought to “determine what state law 
enforcement authority the Mille Lacs tribal police department would have in Mille Lacs 
County, and in particular, the three northern townships of the County that formed the 

original reservation in 1855.”); see also W& L Supp’l Reply [Doc. No. 310] at 9 (asserting 
that based on Cooley, “there is no longer an obvious dispute about Plaintiffs’ inherent 
authority, and there is only a dispute about the geographic scope of that authority.”).)  
Nothing in the Walsh or Lorge Declarations puts to rest the disputed issue regarding the 
Reservation’s boundaries. To the contrary, Defendants maintain that the Reservation was 

disestablished, and acknowledge that the issue remains unresolved.  (See W&L Supp’l 
Reply at 10) (stating, “The only issue  here is whether the former reservation has been 
disestablished.”).                                                        
    In addition, as the Court discusses in greater detail below, Cooley concerns tribal 
law enforcement authority over non-Indians on public rights-of-way running through a 

reservation.  141 S. Ct. at 1641–42. Cooley does not address tribal law enforcement 
authority when the boundaries of the reservation are in dispute.          
    Walsh and Lorge rely on Prowse v. Payne, 

 (8th Cir. 2021), a recent 
case in which an inmate challenged prison authorities’ refusal to provide hormone therapy 
to the inmate, in reliance on a blanket policy of denying such treatment.  While the inmate’s 
appeal was pending, the prison began providing treatment to the inmate.  

 at 701–02. 

The Eighth Circuit noted that while a defendant ordinarily faces a heavy burden to establish 
mootness,  “the  standard  is  slightly  less  onerous  when  it  is  the  government  that  has 
voluntarily ceased the challenged conduct.”  

 (citations omitted).  The court found 
the inmate’s challenge to the general policy was rendered moot because she was receiving 
treatment.  

  As to the inmate’s challenge based on her own access to treatment, the 
Eighth Circuit found the question of mootness to be “a closer call.”  

  But because prison 

officials averred that the inmate would receive hormone therapy so long as her treating 
physicians recommended it, the court held that the challenged conduct could  not be 
reasonably expected to recur.  

                                        
    Walsh and Lorge argue that there is no meaningful distinction between Walsh’s  
representations here and the prison administrators’ representations in Prowse.  (W&L 

Supp’l Mem. at 13–14.)   But the facts here are unlike the provision of hormone therapy to 
the inmate in Prowse, which constituted changed conduct that granted the requested relief 
and left no “live” dispute.  Walsh’s representations that he will not reissue the 2016 Opinion 
and Protocol still leave open the scope of the Band’s law enforcement authority upon the 
termination of the 2018 Agreement because of the disputed boundary issue.  There is no 

question that the boundary issue, as it affects the scope of the Band’s law enforcement 
authority, remains “live.”                                                
    Accordingly,  the  Court  finds  that  neither  the  2018  Agreement  nor  Walsh’s 
representations regarding the revocation of the 2016 Opinion and Protocol moot this case.   
         2.   Whether Cooley Moots the Band’s Claims Against Walsh and   
              Lorge                                                      
    As noted earlier, Walsh and Lorge also argue that this matter is moot because Cooley 
represents a change in the law that precludes Walsh from issuing an opinion and protocol 
similar to the 2016 Opinion and Protocol.  (W&L Supp’l Mem. at 14–16.)    
    In Cooley, the Supreme Court held that tribal police officers have the authority to 

temporarily detain and search a non-Indian on a public right-of-way that runs through an 
Indian reservation for potential violations of state and federal law.  

.  The 
Court observed that it had previously recognized that “where jurisdiction to try and punish 
an offender rests outside the tribe, tribal officers may exercise their power to detain the 
offender and transport him to the proper authorities.”  

 at 1644 (citing Duro v. Reina, 

, 687–88 (1990)).  The Supreme Court found the tribal authority in Cooley, 
i.e., the authority to search a non-Indian prior to transport, was ancillary to the authority it 
had previously recognized.  

  (citing Ortiz-Barraza v. United States, 

, 
1180–81 (9th Cir. 1975)).  In fact, the Court observed that “several state courts and other 
federal courts have held that tribal officers possess the authority at issue here.”  

 (citing, 

inter alia, United States v. Terry, 

, 579–80 (8th Cir. 2005)).  Observing that 
while in Duro, “[the Court] traced the relevant tribal authority to a tribe’s right to exclude 
non-Indians from reservation land,” the Supreme Court held in Cooley that “tribes ‘have 
inherent sovereignty independent of th[e] authority arising from their power to exclude.’”  

 (citation omitted).                                                   
    Importantly, Cooley does not address the issue of reservation boundaries, which 
Walsh and Lorge acknowledge.  Walsh recognizes that Cooley applies to “tribes, and by 

extension tribal police officers, within their reservation[.]”  (Aug. 2021 Walsh Decl. ¶ 16) 
(emphasis added).   And counsel for Walsh and Lorge acknowledged at the November 15, 
2021 status conference that “the scope of tribal law enforcement authority in terms of the 
geographic scope would depend upon the boundary issue.  Because if the boundaries were 
disestablished, then there’s Indian Country within Mille Lacs County, but there is not the 
reservation boundary as such.”  (Baldwin Decl. [Doc. No. 309], Ex. I (Nov. 15, 2021 Tr.) 

at 11.)  Again, nowhere in Walsh and Lorge’s Declarations do they disavow their view that 
the Reservation has been disestablished.  Instead, their position directly contravenes the 
Band’s view that the Reservation remains as it was under the Treaty of 1855.   
    In addition, the Eighth Circuit’s 2005 decision in Terry, 

, is one of 
the cases the Supreme Court cited in Cooley for the proposition that several state courts 

and other federal courts had already held that tribal officers possessed the authority at issue 
in Cooley.  Cooley, 

.  In Terry, the Eighth Circuit entertained a criminal 
appeal in which Terry, a non-Indian, argued that tribal law enforcement officers had 
unreasonably seized him on the Pine Ridge Reservation, and lacked the authority to do so.  

.  The Eighth Circuit disagreed, ruling that tribal officers have inherent 

authority to investigate violations of state and federal law, including violations by non-
Indians, at least on reservation land from which the tribe has the power to exclude violators.  
400 F.3d at 579–80 (stating, “[T]ribal police officers do not lack authority to detain non-
Indians whose conduct disturbs the public order on their reservation,” and explaining that 
“[b]ecause the power of tribal authorities to exclude non-Indian law violators from the 
reservation would be meaningless if tribal police were not empowered to investigate such 

violations, tribal police must have such power.”).                        
    Walsh testified in his deposition that he did not consider Eighth Circuit decisions to 
be controlling authority, and when drafting the 2016 Opinion and Protocol, he took a 
“conservative viewpoint [that Band law enforcement officers] had less authority than more, 
which would lead to less appeals and less contested issues[.]”  (Baldwin Decl. [Doc. No. 
174], Ex. B (Walsh Dep.) at 301:15–17) (“Q:  So you wouldn’t consider an 8th Circuit 

decision controlling?  A:  It’s not.”); 

 at 293:24–294:3.)  Although Walsh argues that 
Cooley moots the case,3 he also acknowledges that the case leaves “the scope of any [tribal 
law enforcement] authority beyond the facts of the case” up to “the lower courts to work 
out.”  (W&L Supp’l Mem. at 5) (noting that Cooley involved the possession of two semi-
automatic rifles).  Indeed, that is what this lawsuit seeks to “work out.”  Defendants 

continue to maintain that the Reservation has been disestablished—a position directly at 
odds with Plaintiffs’ requested relief, on an issue highly relevant to the Band’s scope of 
law enforcement authority.                                                



3    The Minnesota Supreme Court has cited and applied Terry, finding a tribal officer 
had lawfully “detained and investigated” a non-member suspected of violating Minnesota 
law “pursuant to the tribal authority to detain and remove recognized by the Supreme  Court 
and  other  federal  courts.”   State  v.  Thompson,  

,  421  (Minn.  2020).   
Although the Minnesota Supreme Court issued Thompson in January 2020, and the U.S. 
Supreme Court did not issue Cooley until June 2021, Walsh and Lorge do not argue that 
Thompson moots this case.                                                 
    In support of their position, Walsh and Lorge rely on Young America’s Foundation 
v. Kaler, 

 (8th Cir. 2021), in which a student group challenged the 

University of Minnesota’s policy for assigning venues for speaking events, arguing that 
the policy denied the group a preferred location for its speaker.  (W&L Supp’l Reply at 5–
6.)  By the time of the plaintiffs’ appeal, however, the University had replaced its policy 
for hosting major events to include “more defined terms and standards.”  Young Am.’s 
Found., 

.  The Eighth Circuit analyzed the policy change as conduct 
“capable of repetition, yet evading review,” as opposed to voluntary cessation under 

Friends of the Earth.  

 (explaining that when a law or policy “‘has been amended 
or  repealed,  actions  seeking  declaratory  or  injunctive  relief  for  earlier  versions  are 
generally moot unless the problems are ‘capable of repetition yet evad[ing] review.’”) 
(citing Phelps-Roper v. City of Manchester, 

 (8th Cir. 2012)) (alteration 
in original).   A policy is not “capable of repetition yet evading review” merely because 

the governing body may reenact the policy after dismissal of the lawsuit.  

 (citing Teague 
v. Cooper, 

 (8th Cir. 2013)).  Such situations are rare and generally arise 
“where it is virtually certain” that the repealed law or policy will be reenacted.  

 (citing 
Teague, 

).                                                 
    The Eighth Circuit found that the University’s policy change was not one of those 

rare situations, noting that the policy was not merely “repackaged,” but was substantively 
amended to address the plaintiff’s concerns, and it contained more defined, clear terms.  

 
at 886–87.  The court also found that the plaintiff had failed to show that it was “virtually 
certain” that the University would reenact its prior policy.  Id. at 887.  To the contrary, 
because the new policy was more detailed and broadly applicable to the entire Twin Cities 
campus, the court found it unlikely that the University would reenact its less defined and 

more limited prior policy.  Id.   Accordingly, the Eighth Circuit found that the policy was 
not “capable of repetition yet evading review,” rendering plaintiff’s facial challenges moot.  
Id.                                                                       
    Walsh and Lorge contend that Cooley, and Walsh’s representations that based on 
Cooley, he could not and would not reissue his 2016 Opinion and Protocol, represent a 
change similar to the University’s policy change in Young America’s Foundation.  The 

Court finds this authority distinguishable.  Walsh’s pledge to not reissue his 2016 Opinion 
and Protocol, consistent with the limited facts of Cooley, is unlike the University of 
Minnesota’s wholesale repeal of its challenged policy in Young America’s Foundation, and 
its enactment of a newer, more detailed and broadly applicable policy that entirely disposed 
of the plaintiff’s facial challenge to the repealed policy.  14 F.4th at 886–87.   Again, 

Walsh’s representations do not reach the boundary issue, which remains both “live” and 
essential to the Band’s claims regarding its law enforcement authority.    
    Similarly, his representations are not comparable to the changed circumstances in 
the other cases on which Defendants rely, where the changes in question resulted in 
plaintiffs obtaining their requested relief, leaving no actual dispute.  See Hartnett v. Penn 

State Educ. Ass’n, 

 (3d Cir. 2020) (finding that Supreme Court’s decision in 
Janus v. AFSCME Council 31, 

 (2018), which involved the same issue of 
union-imposed agency fees on non-union members, and the defendant’s compliance with 
Janus, resolved the same issue in Hartnett and mooted the case); DeFunis v. Odegaard, 

,  316–320  (1974)  (concluding  that  law  school  applicant’s  equal 
protection challenge to his denial of admission was moot where the lower court had granted 

injunctive relief, requiring his admission, and by the time the case reached the Supreme 
Court, student was enrolled in his final term of law school, and would receive his degree, 
regardless of any decision on the merits); McCarthy, 

 (holding that 
students’ challenge to Arkansas statute mandating a hepatitis vaccine unless the students 
could claim a recognized religious exemption was rendered moot when, while on appeal, 
the state broadened the scope of the statute to allow exemptions for general religious or 

philosophical beliefs.); United States v. Mercy Health Services, 

, 636–37 (8th 
Cir. 1997) (finding that health care entities’ decision to not merge thoroughly disposed of 
the Government’s antitrust lawsuit against them, even if they expressed the desire to 
perhaps merge at some future time).                                       
    In all of these cases, changed circumstances, which also resulted in the plaintiffs 

receiving their requested relief, left no live controversy.   Walsh’s representations here, 
consistent with Cooley, that he would not reissue his 2016 Opinion and Protocol upon the 
expiration of the 2018 Agreement, do not resolve the boundary issue that is a key part of 
the Band’s law enforcement claims.  Defendants continue to maintain that the Reservation 
has been disestablished and acknowledge that this issue remains in dispute.  Accordingly, 

the Court finds that Cooley and Walsh’s representations based on that case, do not moot 
this case.                                                                
         3.   Whether a Finding that the Case is Not Moot is Speculative  
    Finally, Walsh and Lorge assert that a finding that this case is not moot “pushes this 
Court into rank speculation over what either Walsh or Lorge, or their successors, would do 

if a cooperative agreement was no longer in place.”  (W&L Supp’l Mem. at 10.)  Indeed, 
“[a] speculative possibility is not a basis for retaining jurisdiction over a moot case.”  
McCarthy, 

.                                               
    Walsh and Lorge previously raised this argument in opposition  to the Band’s 
Motion for Summary Judgment on Standing, Ripeness, and Mootness.  (See W&L Opp’n 

to Summ. J. on Standing, Ripeness, and Mootness at 55.)  In particular, they argued that 
“Plaintiffs speculate that the County Attorney will re-implement his Opinion and Protocol 
if the parties cannot reach a new agreement during the 90-day grace period” following the 
expiration of the 2018 Agreement.  (Id.) (emphasis in original).  They maintained that such 
speculation  rested  on  additional,  equally  speculative,  assumptions:    that  the  County 

Attorney would issue a new Opinion and Protocol contrary to law, that legal precedent or 
statutes would not alter the legal landscape, and that some future County Attorney would 
implement the same legal opinion.  (Id.)                                  
    The  Court  rejected  this  argument,  finding that  if  the  case  were  dismissed  for 
mootness, prompting the expiration the 2018 Agreement, followed by a 90-day grace 

period, it was highly probable that the parties would continue to dispute the extent of the 
boundaries on the Reservation and the extent of the Band’s sovereign law enforcement 
authority.  (Dec. 21, 2020 Order at 35–36.)  Walsh and Lorge fail to provide any basis for 
the Court to reconsider its prior ruling, and it is not properly before the Court.   
    Even if it were, the Court stands by its prior ruling.  Given Defendants’ unwavering 
belief that the Reservation has been disestablished, and the impact of the boundary issue 

on the Band’s law enforcement authority, it is not speculative to find that the challenged 
conduct is likely to recur.  For all of the reasons set forth above, neither Cooley nor Walsh 
and Lorge’s August 2021 Declarations resolve the issue of the Reservation’s boundaries— 
an issue essential to the Band’s claims regarding the scope of its law enforcement authority.  
Accordingly, the Court denies Walsh and Lorge’s motion on this basis.     


III.  CONCLUSION                                                          
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that                                                       
         1.   The Motion to Dismiss for Lack of Jurisdiction Based on Mootness 
              [Doc. No. 303] filed by Defendants Donald Lorge and Joseph Walsh 
              is DENIED.                                                 


Dated: March 3, 2022                 s/Susan Richard Nelson               
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge         

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Mille Lacs Band of Ojibwe, a federally  Case No. 17-cv-05155 (SRN/LIB)   
recognized Indian Tribe; Sara Rice, in her                               
official capacity as the Mille Lacs Band                                 
Chief of Police; and Derrick Naumann, in    ORDER                        
his official capacity as Sergeant of the                                 
Mille Lacs Police Department,                                            

         Plaintiff,                                                     

v.                                                                       

County of Mille Lacs, Minnesota; Joseph                                  
Walsh, individually and in his official                                  
capacity as County Attorney for Mille                                    
Lacs County; and Donald J. Lorge,                                        
individually and in his official capacity as                             
Sheriff of Mille Lacs County,                                            

         Defendants.                                                    


Anna Brady, Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz Chestnut, 
2101 Fourth Avenue, Suite 1230, Seattle, WA 98121; and Arielle Wagner, Charles N. 
Nauen, and David J. Zoll, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue 
South, Suite 2200, Minneapolis, MN 55401, for Plaintiffs.                

Brett D. Kelley, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, 
Minneapolis, MN 55415; Courtney E. Carter and Randy V. Thompson, Nolan Thompson 
Leighton & Tataryn PLC, 1011 First Street South, Suite 410, Hopkins, MN 55343; and 
Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South 
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant County of Mille Lacs, 
Minnesota.                                                               

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South 
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh. 

Brett D. Kelley, Douglas A. Kelley, Stacy Lynn Bettison, and Steven E. Wolter, Kelley, 
Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 
55415; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 
South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Donald J. 
Lorge.                                                                   


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on the Motion to Dismiss for Lack of Jurisdiction 
Based on Mootness [Doc. No. 303] filed by Defendants Donald Lorge and Joseph Walsh.1 
Based on a review of the files, submissions, and proceedings herein, and for the reasons 
below, the Court denies the motion.                                       
I.   BACKGROUND                                                           
    A.   Facts Giving Rise to the Lawsuit                                
    Plaintiffs are the Mille Lacs Band of Ojibwe, Mille Lacs Band Chief of Police Sara 
Rice, and Sergeant Derrick Naumann (collectively, “the Band”). The Band brought suit 
against the County of Mille Lacs, Mille Lacs County Attorney Joseph Walsh, and Sheriff 
Donald  Lorge  (collectively,  “the  County”)  seeking  declaratory  and  injunctive  relief 
regarding the Band’s law enforcement authority within the Mille Lacs Reservation. (See 
generally Compl. [Doc. No. 1].)                                           
    The  Court  incorporates  by  reference  the  factual  background  set  forth  in  its 
December 21, 2020 Order [Doc. No. 217].  As the Court recounted in that Order, Article 2 
of  the  1855  Treaty  between  the  Minnesota  Chippewa  Tribe  and  the  United  States 


1    Also pending before the Court are the parties’ Cross-Motions for Partial Summary 
Judgment [Doc. Nos. 223 & 239].  The Court will address these motions in a separate, 
forthcoming order.                                                        
established the Mille Lacs Indian Reservation, which comprises about 61,000 acres of land.  
(Dec. 21, 2020 Order at 3.)  Plaintiffs contend that the Reservation established by the 1855 

Treaty has never been diminished or disestablished.  (Id.)  If the Reservation has been 
disestablished, which they contend it has not, the Band maintains only a temporary right 
of occupancy insufficient to constitute a “reservation” in the term’s legal sense.  Within the 
Reservation, the United States holds approximately 3,600 acres in trust for the benefit of 
the Band, the Minnesota Chippewa Tribe, or individual Band members.  (Id.) The Band 
owns in fee simple about 6,000 acres of the Reservation, and individual Band members 

own in fee simple about 100 acres of the Reservation.  (Id.)              
    In Defendants’ view, however, the Reservation established by the 1855 Treaty was 
diminished  or  disestablished  by  way  of  subsequent  federal  treaties,  statutes,  and 
agreements.  (Id.)                                                        
    In 2008, the Band and the County entered into a cooperative law enforcement 

agreement (“2008 Agreement”) that allowed Band law enforcement officers to exercise 
concurrent  jurisdiction  with  the  Mille  Lacs  County  Sheriff’s  Department  to  enforce 
Minnesota state law, as provided in 

.  (Id.)          
    In June 2016, however, the County terminated the 2008 Agreement, primarily due 
to a dispute regarding the Reservation’s boundaries, which impacted the scope of the 

Band’s law enforcement authority.  (Id.; see also Baldwin Decl. [Doc. No. 150], Ex. KK 
(Walsh Dep.) at 318:23–319:3; 

 Ex. VV (June 22, 2016 Sheriff Staff Mtg. Minutes) at 
8; 

 Ex. WW (June 15, 2016 Sheriff Staff Mtg. Minutes) at 2, 5.)  In July 2016, County 
Attorney Walsh asked then-Minnesota Attorney General Lori Swanson for an opinion 
regarding the dispute, which she denied for several reasons, and recommended that Walsh 
advise the County as he deemed appropriate.  (See Aug. 2021 Walsh Decl. [Doc. No. 306-

1] ¶¶ 7–8].)                                                              
    Shortly thereafter, Walsh issued an Opinion and Protocol (the “2016 Opinion and 
Protocol”) that addressed the Band’s state law enforcement authority.  (See Dec. 21, 2020 
Order at 4–5.)  Walsh also opined that the Band’s inherent law enforcement authority under 
federal law did not extend to non-trust lands within the 1855 Reservation, and did not 
include the authority to investigate state-law violations by Indians or non-Indians, even on 

trust lands.  (Id.)                                                       
    Under the 2016 Opinion and Protocol, Band officers who contravened their scope 
of authority would be subject to criminal and civil penalties for unauthorized use of force, 
obstruction of justice, and impersonating a peace officer.  (Id. at 5.)  The Sheriff’s Office 
enforced the 2016 Opinion and Protocol by “interfere[ing] with law enforcement measures 

undertaken by Band officers.”  (Id. at 6, 7–11.)  Morale declined among Band officers, 
several of whom resigned.  (Id. at 14–15.)  Band officers found that due to their diminished 
authority, they were unable to respond to increasingly visible criminal activity, particularly 
involving drugs, on the Reservation.  (Id. at 16.)                        
    In January 2016, the Band and the Bureau of Indian Affairs (“BIA”) entered into an 

agreement, effective January 1, 2017, by which Band officers were deputized and issued 
Special Law Enforcement Commissions (“SLECs”) to enforce federal law within the 
Band’s Indian country.  (Id. at 21.)  Despite the issuance of the SLECs, Walsh maintained 
that the 2016 Opinion and Protocol remained in force.  (Id.)              
    Plaintiffs filed this lawsuit in November 2017.  (Id. at 22.)  In September 2018, the 
Band, County, and former Mille Lacs County Sheriff Brent Lindgren entered into an 

interim law enforcement agreement (the “2018 Agreement”).  (Id.)  On a temporary basis, 
the 2018 Agreement grants the Band concurrent jurisdiction with the Sheriff over all 
persons on trust lands, all Band members within the boundaries of the 1855 Treaty, and 
any person who commits or attempts to commit a crime within the presence of a Band 
officer within the boundaries of the 1855 Treaty.  (Id.)  Under its own terms, the 2018 
Agreement automatically terminates 90 days after the final resolution of this case.  (Id.)   

    The parties proceeded to file early dispositive motions on several issues.  On 
December 21, 2020, the Court issued a ruling on several of the parties’ motions, granting 
Plaintiffs’ Motion for Summary Judgment on Standing, Ripeness, and Mootness; denying 
Defendants Walsh and Lorge’s Motion for Summary Judgment; and denying Defendants’ 
Motion to Strike and for Sanctions.  (Id. at 47.)                         

    B.   Defendants’ Interlocutory Appeal                                
    On January 19, 2021, Walsh and Lorge filed an interlocutory appeal [Doc. No. 218], 
challenging certain aspects of this Court’s December 21, 2020 ruling.  Specifically, they 
argued that the Court lacked jurisdiction over Plaintiffs’ claims under 

, 
that Plaintiffs lacked a “cause of action” against them, and that they were immune from 

suit pursuant to various immunity doctrines.  (Baldwin Decl. [Doc. No. 309], Ex. B (W&L 
Opening 8th Cir. Brief).)  Walsh and Lorge did not challenge this Court’s ruling on 
mootness.                                                                 
    On August 31, 2021, after the parties had filed their memoranda with the Eighth 
Circuit and were awaiting oral argument, Walsh and Lorge moved to dismiss their appeal 

on mootness grounds, citing the Supreme Court’s June 1, 2021decision in United States v. 
Cooley, 

 (2021).  (Baldwin Decl. [Doc. No. 309], Ex. C (W&L 8th Cir. 
Mot. to Dismiss) at 1.)  They also argued that their appeal was moot because it would be 
speculative to find the challenged conduct would recur.  (Id. at 8–9.)  Accordingly, Walsh 
and Lorge asked the Eighth Circuit to “direct the district court to dismiss [Plaintiffs’] 
claims against [them].”  (Id.)                                            

    Alternatively, if the Eighth Circuit declined to dismiss their appeal, Walsh and 
Lorge asked the court to refer the question of whether they were state actors to the 
Minnesota Supreme Court.  (Id. at 10–11.)                                 
    On September 10, 2021, the Eighth Circuit ruled on the Motion to Dismiss, stating, 
“Appellants’ motion to dismiss on terms fixed by the court is granted.  Each side will bear 

its own costs on appeal.  The Court’s mandate shall issue forthwith.”  (8th Cir. J. [Doc. No. 
292]) (citing  Fed. R. App. P. 42(b); Fed. R. App. P. 39(a)(4)).  The Eighth Circuit issued 
its mandate that same day, returning jurisdiction to this Court.  (8th Cir. Mandate [Doc. 
No. 292].)                                                                
    Later on September 10, Plaintiffs filed their response to Walsh and Lorge’s Motion 

to Dismiss, even though the Eighth Circuit had just issued its judgment and mandate.  
(Baldwin Decl. [Doc. No. 309], Ex. D (Pls.’ Resp. to 8th Cir. Mot. to Dismiss).)  Plaintiffs 
explained that nevertheless, they were making a timely response “in the event there are any 
further proceedings before [the Eighth Circuit] under [Fed. R. App. P.] 40 or Eighth Circuit 
Rule 27A(d),” i.e., proceedings for rehearing or reconsideration of the Eighth Circuit’s 
disposition of the appeal.  (Id. at 2.)  Plaintiffs expressed the view that while the Eighth 

Circuit had dismissed the appeal, the court had not ruled on the merits of Walsh and Lorge’s 
motion.  (Id. at 1–2.)  Thus, they argued, the matter was not moot, and the case was once 
again subject to the district court’s jurisdiction.  (Id.)                
    On September 17, 2021, Walsh and Lorge filed a “reply” memorandum in the 
Eighth Circuit in support of their Motion to Dismiss, stating that if the appellate court  had 
concluded that Plaintiffs’ case was moot, “it should say so[.]”  (Baldwin Decl. [Doc. No. 

309], Ex. E (W&L Sept. 17, 2021 8th Cir. Reply) at 2.)  Walsh and Lorge requested that 
the Eighth Circuit either certify the question of whether Cooley mooted their appeal to the 
Minnesota Supreme Court, or address the merits of their appeal.  (Id. at 4.)  Thus, they 
“suggest[ed]” that the Eighth Circuit recall the mandate and explain whether Cooley 
mooted the case against them.  (Id.)                                      

    The Eighth Circuit issued no ruling in response to Walsh and Lorge’s memorandum, 
prompting Walsh and Lorge to file a Motion to Recall the Mandate on October 15, 2021, 
seeking to confirm that “Cooley moots the case against them.”  (Baldwin Decl. [Doc. No. 
309], Ex. F (W&L 8th Cir. Mot. to Recall Mandate).)  On October 19, 2021, Plaintiffs filed 
their opposition to the motion, noting the failure of Walsh and Lorge to timely file a motion 

for rehearing or reconsideration.  (Baldwin Decl. [Doc. No. 309], Ex. G (Pls.’ 8th Cir. 
Opp’n to Mot. to Recall Mandate).)  The following day, in a one-sentence order, the Eighth 
Circuit summarily denied the Motion to Recall the Mandate. (Baldwin Decl. [Doc. No. 
309], Ex. H (Oct. 20, 2021 8th Cir. Order).)                              
    C.   November 15, 2021 Status Conference and Supplemental Briefing   
    On November 15, 2021, the Court held a status conference in this case, and directed 
the parties to submit supplemental briefing to address the procedural impact of the Eighth 

Circuit’s dismissal of Walsh and Lorge’s interlocutory appeal.  (Baldwin Decl. [Doc. No. 
309], Ex. I (Nov. 15, 2021 Tr.) at 17–18.)  In addition, the Court directed the parties to 
address whether the case was moot, in the event this Court found that the Eighth Circuit 
had not ruled on the question of mootness and had given no direction to this Court to 
dismiss the case.  (Id.)                                                  

    Walsh and Lorge submitted their supplemental memorandum, along with the instant 
motion “for an order dismissing them from the case pursuant to” their supplemental 
memorandum.  (W&L Mot. to Dismiss at 1.)  Although they maintain that the Eighth 
Circuit granted their Motion to Dismiss on mootness grounds, they nevertheless argue that 
this Court should address their mootness arguments and dismiss them from the case.  

(W&L Supp’l Mem. [Doc. No. 305] at 7–10.)  In support of their position, they also submit 
the August 2021 Declarations of Joseph J. Walsh [Doc. No. 306-1] and Donald Lorge [Doc. 
No. 306-2], which were filed with Defendants’ initial Eighth Circuit interlocutory appeal. 
(See Knudson Decl. [Doc. No. 306] ¶¶ 2–3.)                                
    In response, Plaintiffs argue that the Eighth Circuit did not direct this Court to 

dismiss the case or otherwise rule on Walsh and Lorge’s mootness arguments.  (Pls.’ Supp’l 
Opp’n [Doc. No. 308] at 17–20.)  They contend that this Court correctly ruled in December 
2020 that the parties’ 2018 law enforcement agreement did not moot Plaintiffs’ claims, and 
Walsh and Lorge present no valid reason for the Court to reconsider the issue.  (Id. at 20–
25.)  In addition, Plaintiffs maintain that neither Cooley nor Walsh and Lorge’s August 
2021 Declarations demonstrate that this case is moot.  (Id. at 25–33.)  Finally, they urge 

the Court to reject Walsh and Lorge’s contention that the possibility of recurring conduct 
is merely speculative.  (Id. at 33–35.)                                   
II.  DISCUSSION                                                           
    A.   Effect of Eighth Circuit’s Dismissal                            
    The  Eighth  Circuit’s  Judgment,  quoted  earlier,  dismissed  Walsh  and  Lorge’s 
interlocutory appeal under Federal Rule of Appellate Procedure 42(b).  (8th Cir. J. at 1.)  
Rule 42(b) provides for the voluntary dismissal of an appeal, stating, as relevant here, that 

“[a]n appeal may be dismissed on the appellant’s motion on terms . . . fixed by the court.”  
Fed. R. App. P. 42(b).  The “terms” fixed by the Eighth Circuit required each side to bear 
its own costs related to the appeal.  (8th Cir. J. at 1.)                 
    Walsh and Lorge concede that the Eighth Circuit’s Judgment did not mention 
mootness, nor did it direct dismissal on that basis.  (W&L Supp’l Mem. at 7.)  They further 

state, “Counsel for Walsh and Lorge have been unable to find precedent where justiciability 
was challenged and a case dismissed without explanation.”  (Id.)  Instead, they postulate 
that because the Eighth Circuit granted their motion to dismiss the appeal, “the Eighth 
Circuit must have affirmed the merits of their motion, similarly to the way an appellate 
court may issue without opinion a summary affirmance, or judgment order, affirming a 

lower court ruling.”  (Id.)  They further note that mootness was their only basis for seeking 
dismissal, and the Eighth Circuit “did not specify another substantive basis” for dismissal.  
(Id. at 8.)  And they assert that “when an appellate court wants to avoid ruling on mootness, 
the court will so state.”  (Id. at 8–9) (citing Terkel v. CDC, 

 (5th Cir. 2021)).   

    However, contrary to Walsh and Lorge’s arguments, the Eighth Circuit did provide 
an explanation for its dismissal by treating the motion as one for voluntary dismissal under 
Rule 42(b), and granting it on that basis.  Consequently, the court had no reason to address 
mootness.  If Walsh and Lorge disagreed with the Eighth Circuit’s dismissal order, finding 
that it misconstrued their Motion to Dismiss the Appeal, they could have timely sought 
rehearing or reconsideration with the Eighth Circuit.   They did not.     

    In fact, Walsh and Lorge realized that the Eighth Circuit had not ruled on mootness, 
and twice asked the court to recall its mandate and substantively rule on the issue or to 
certify a question to the Minnesota Supreme Court.  (Baldwin Decl. [Doc. No. 309], Ex. E 
(W&L 8th Cir. Reply) at 3; 

 Ex. F (W&L 8th Cir. Mot. to Recall Mandate) at 5.)  Since 
Walsh and Lorge made their first request in a reply memorandum, the Eighth Circuit issued 

no response, but the court summarily denied their second request, made in their Motion to 
Recall the Mandate.  (Baldwin Decl. [Doc. No. 309], Ex. H (8th Cir. Oct. 20, 2021 Order).)  
    Ultimately, Walsh and Lorge appear to agree that “in the absence of any clear 
direction from the appellate court, . . . the prudent course is for this Court to address in the 
first instance the changed legal and factual landscape they believe moots Plaintiffs’ case 

against them.”  (W&L’s Supp’l Mem. at 9.)  Accordingly, the Court proceeds to discuss 
Walsh and Lorge’s current mootness arguments.                             
    B.   Mootness                                                        
    The  Constitution  limits  federal  courts’  jurisdiction  to  actual  “Cases”  or 
“Controversies.”  U.S. Const. art. III, § 2, cl. 1.  If “‘the issues presented are no longer 

live,’ . . . a case or controversy under Article III no longer exists because the litigation has 
become moot.”  Brazil v. Ark. Dep’t of Human Servs., 

 (8th Cir. 2018) 
(quoting Already, LLC v. Nike, Inc., 

 (2013)).  In general, a case becomes 
moot “when changed circumstances already provide the requested relief and eliminate the 
need for court action.”  Hillesheim v. Holiday Stationstores, Inc., 

 (8th 

Cir. 2018) (citing McCarthy v. Ozark Sch. Dist., 

 (8th Cir. 2004)).   If 
an action becomes moot, the court must dismiss it for lack of jurisdiction.  Ali v. Cangemi, 

 (8th Cir. 2005).                                        
    In some instances, a defendant may argue that a case is automatically moot because 
the defendant has voluntarily ceased to engage in the challenged conduct.  Such “voluntary 

cessation” does not necessarily moot a case, however, since the defendant is “free to return 
to his old ways.”  Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

 (2000) (citation omitted).  A case can become moot by the defendant’s voluntary 
cessation only if it is “absolutely clear that the allegedly wrongful behavior could not 
reasonably be expected to recur.”  Wright v. RL Liquor, 

 (8th Cir. 2018) 

(quoting Friends of the Earth, 

 (2000)).                   
    The party asserting mootness under the voluntary cessation theory bears a “heavy 
burden of persuading the court that the challenged conduct cannot reasonably be expected 
to start up again.”  Friends of the Earth, 

 (internal quotations and citation 
omitted).  Governmental entities and officials “[are] given considerably more leeway than 
private parties in the presumption that they are unlikely to resume illegal activities.” 

Prowse  v.  Payne,  

  (8th  Cir.  2021)  (citation  omitted)).  But  where 
circumstances suggest that by ceasing to engage in the challenged conduct, the defendant 
is  simply  “attempting  to  manipulate  [the  court’s]  jurisdiction  to  insulate  a  favorable 
decision from review,” City of Erie v. Pap’s A.M., 

 (2000), courts are 
unlikely to find a case moot.  See Already, 

.               
    Walsh and Lorge assert three primary grounds for dismissal based on mootness.    

First, they argue that the 2018 Agreement, and Walsh’s revocation of the 2016 Opinion 
and Protocol, moot Plaintiffs’ claims.  (W&L Supp’l Mem. at 10.)  Second, they contend 
that Cooley represents a change in the law that precludes Walsh from issuing an opinion 
and protocol similar to the 2016 Opinion and Protocol.  (Id.)  Third, they assert that any 
holding that this case is not moot “pushes this Court into rank speculation over what either 

Walsh or Lorge, or their successors, would do if a cooperative agreement was no longer in 
place.”  (Id.)  For all of these reasons, they argue that this case is moot and must be 
dismissed.                                                                
         1.   Whether the 2018 Agreement and the Revocation of the 2016  
              Opinion and Protocol Moot the Band’s Claims Against Walsh  
              and Lorge                                                  
    In  the  December  2020  Order,  the  Court  rejected  Walsh  and  Lorge’s  related 
argument that the 2018 Agreement moots Plaintiffs’ claims.  (Dec. 21, 2020 Order at 2, 
35–36.)  Referencing mootness by virtue of a party’s voluntary cessation of the challenged 
conduct, the Court explained, “If this case is dismissed, on mootness grounds, the 2018 
Agreement will, by its very terms, terminate, and it is highly probable that the parties will 
continue to dispute the extent of the boundaries of the Reservation and the extent of the 

Band’s sovereign law enforcement authority.”  (Id. at 35–36.)  Indeed, disagreement about 
the Reservation boundaries was at the heart of the County’s decision to terminate the 2008 
Agreement.  (See Baldwin Decl. [Doc. No. 150], Ex. KK (Walsh Dep.) at 318:23–319:3 
(stating, “The primary motivating factor of the revocation . . . was the M-opinion, and what 
I think the board viewed as the Band using their law enforcement authority to improve their 
position vis-à-vis the boundary.”); 

 Ex. VV (June 22, 2016 Sheriff Staff Mtg. Minutes) 

at 8 (“This is a boundary dispute between the County and the Band.”); 

 Ex. WW (June 
15, 2016 Sheriff Staff Mtg. Minutes) at 2, 5 (noting “Boundary issues” and expressing high 
likelihood of revocation and that “all will come united because this is a boundary issue.”).   
              a.   Reconsideration                                       
    Procedurally, Walsh and Lorge did not appeal the portion of the Court’s December 

2020 Order addressing mootness, nor have they moved for reconsideration or identified 
any “compelling  circumstances”  warranting  reconsideration.   See Fed. R.  Civ.  P. 60 
(stating that a motion for “reconsideration” directed at an order is properly considered 
under Rule 60); D. Minn. L.R. 7.1(j) (authorizing motions for reconsideration only upon 
obtaining leave of court and upon a showing of compelling circumstances).  To the extent 

the argument is relevant to reconsideration, Walsh and Lorge contend that this case “is not 
controlled by the voluntary cessation exception to the mootness doctrine,” because Walsh 
did not revoke his 2016 Opinion and Protocol in order to “manipulat[e] his [] conduct or 
to invent a mootness argument.”  (W&L Supp’l Mem. at 11.)                 
    The Court finds that this argument does not constitute the type of compelling or 
“exceptional circumstance[]” necessary to support reconsideration.  See Rindahl v. U.S. 

Attorney’s Office for Minn., No. 18-cv-3237 (JRT/ECW), 

, at *2 (D. 
Minn. Jan. 31, 2019) (noting that permission to seek reconsideration is granted only upon 
a showing of compelling circumstances or to “correct manifest errors of law or fact or to 
present  newly  discovered  evidence.”),  report  &  recommendation  adopted,  

 (D. Minn. May 6, 2019).  Importantly, a party cannot use a motion to reconsider 
to repeat previous arguments, introduce new evidence or arguments that could have been 

presented, or “tender new legal theories for the first time.”  Hagerman v. Yukon Energy 
Corp., 

 (8th Cir. 1988) (citations omitted).  As Plaintiffs observe, Walsh 
and Lorge previously argued in 2020 that this is not a voluntary cessation case because 
“[t]he parties voluntarily negotiated and entered into the 2018 []Agreement,” and Plaintiff 
had not shown that Defendants entered into the agreement for the improper purpose of 

mooting the lawsuit.  (W&L Opp’n to Summ. J. on Standing, Ripeness, and Mootness 
[Doc. No. 176] at 54–55.)                                                 
    This issue was previously raised and addressed, and the Court finds that Walsh and 
Lorge fail to present compelling or exceptional circumstances to warrant reconsideration.  
Accordingly, from a procedural standpoint, Walsh and Lorge’s current mootness argument 

based on the 2018 Agreement and the revocation of the 2016 Opinion and Protocol is not 
properly before the Court.                                                
              b.   Effect of the 2018 Agreement and the Revocation of the 
                   2016 Opinion and Protocol on the Merits               
    Even if this portion of their motion were procedurally proper, the Court remains 
unpersuaded that the 2018 Agreement and the revocation of the 2016 Opinion and Protocol 
moots the case.  Again, Walsh and Lorge contend that a finding of voluntary cessation is 
inapplicable, as Walsh attests he revoked the 2016 Opinion and Protocol not because he 

sought to engage in manipulative conduct in response to this litigation, but because the 
County and the Band had freely negotiated the 2018 Agreement.2  (W&L Supp’l Mem. at 
11.)                                                                      
    In support of their position, Walsh and Lorge point to Let Them Play MN v. Walz, 
No. 21-cv-79 (ECT/DTS), __ F. Supp. 3d__, 

, at *6 (D. Minn., Aug. 24, 

2021), in which the court found a lawsuit challenging certain COVID-related restrictions 
on youth sports was moot.  Indeed, the court found the circumstances surrounding the 
Governor’s lifting of restrictions did not demonstrate “the type of manipulative behavior 
the voluntary-cessation exception is meant to address,” but it further found the matter was 
moot because the challenged conduct was unlikely to recur.   

          

    Taking a step back from the question of whether the voluntary cessation exception 
applies, the Court must first address, fundamentally, the underlying question of mootness, 

2    The Band contends that Walsh fails to support his statements regarding revocation 
with any supporting evidence, such as a signed document purporting to show the revocation 
of the 2016 Opinion and Protocol.  (Baldwin Decl. [Doc. No. 309] ¶¶ 3–4.)  For purposes 
of this motion, the Court will assume that Walsh revoked the 2016 Opinion and Protocol.  
namely,  whether  “changed  circumstances  already  provide  the  requested  relief  and 
eliminate the need for court action,” Hillesheim, 

, or “the issues presented 

are no longer live.”  Brazil, 

.                            
    Walsh and Lorge rely on their August 2021 Declarations in support of their position 
that circumstances have changed, rendering this case moot.  In his declaration, Walsh states 
as follows:                                                               
    14.  At the time I drafted my opinion and protocol in 2016, the United States 
    Supreme Court had not determined the scope of retained inherent tribal 
    jurisdiction to investigate potential state and federal law criminal violations.  
    In the  Opinion, I set  out several conclusions relevant to inherent tribal 
    criminal authority.  One of these conclusions was that tribes do not have 
    criminal jurisdiction over non-Indians, with a narrow exception under the 
    Violence Against Women Act.                                          

    15.  I have read the recent United States Supreme Court decision in United 
    States v. Cooley, 

 (June 1, 2021).  In Cooley, the Court held 
    that tribes, and by extension tribal police officers, within their reservation 
    had inherent authority to stop and investigate non-Indians for possible state 
    and federal law violations.  The Cooley decision alleviated my major concern 
    in issuing my Opinion in 2016:  having evidence that was admissible in court.  
    Consequently, I could not and would not reissue my 2016 Opinion and  
    Protocol should the current cooperative agreement entered into in 2018 
    terminate.                                                           

(Aug. 2021 Walsh Decl. ¶¶ 15–16) (emphasis added).  In Sheriff Lorge’s declaration, he 
states that if the 2018 Agreement is terminated, he “would follow the advice of the County 
Attorney and instruct my deputies and staff accordingly.”  (Aug. 2021 Lorge Decl. ¶ 6.)   
    As  to  whether  these  representations  constitute  “changed  conduct” that  already 
provides the requested relief, or render issues no longer “live,” the Court turns to the 
Complaint.  Among the types of relief the Band requests is a declaration stating that: 
    A.    As  a matter  of  federal  law, the  Band  possesses  inherent  sovereign 
    authority to establish  a police department and to authorize Band police 
    officers to investigate violations of federal, state and tribal law within the 
    Mille Lacs Indian Reservation as established in Article 2 of the Treaty with 
    the  Chippewa,  

  (Feb.  22,  1855),  and  in  exercising  such 
    authority, to apprehend suspects (including Band and non-Band members) 
    and turn them over to jurisdictions with prosecutorial authority; and  
    B. Pursuant to 

(d), 

 and 2804, the  
    Deputation Agreement between the Band and the Bureau of Indian Affairs, 
    and the SLECs issued to Band police officers by the Bureau of Indian Affairs, 
    Band police officers have federal authority to investigate violations of federal 
    law within the Mille Lacs Indian Reservation as established in Article 2 of 
    the  Treaty  with  the  Chippewa,  

  (Feb.  22,  1855),  and,  in 
    exercising such authority, to arrest suspects (including Band and non-Band 
    members) for violations of federal law.                              

(Compl. at 7) (emphasis added).                                           
    Even giving full credit to Walsh’s statement that upon the termination of the 2018 
Agreement, and consistent with Cooley, he would not “reissue” his 2016 Opinion and 
Protocol, (Aug. 2021 Walsh Decl. ¶ 16), his representations do not provide the Band’s 
requested relief, nor do they resolve an issue essential to the Band’s claims.  The Band’s 
claims concerning the scope of its law enforcement authority “within the Reservation,” 
quoted above, require resolution of whether the Milles Lacs Reservation remains as it was 
under Article 2 of the Treaty with the Chippewa, 

 (Feb. 22, 1855) (“the Treaty 
of 1855”), as the Band contends, or whether subsequent treaties and Acts of Congress have 
disestablished or diminished the Reservation, as Walsh and Lorge contend.  (Compl. at 7) 
(emphasis added).                                                         
    Walsh and Lorge’s Declarations say nothing about the Reservation’s boundaries, 
although they recognize that the issue is crucial to this dispute.  For example, elsewhere in 
his  Declaration,  Walsh  implicitly  acknowledges  that  the  scope  of  the  Band’s  law 
enforcement authority is affected by the issue of the Reservation’s geographic boundaries.  

(See Aug. 2021 Walsh Decl. ¶¶ 10 (noting prior letters from Minnesota officials stating 
that the “the Mille Lacs Band’s Indian Country is limited to approximately 4,000 acres of 
land held in trust by the federal government for the [] Band.”), 11 (explaining that in 
drafting the 2016 Opinion and Protocol, Walsh sought to “determine what state law 
enforcement authority the Mille Lacs tribal police department would have in Mille Lacs 
County, and in particular, the three northern townships of the County that formed the 

original reservation in 1855.”); see also W& L Supp’l Reply [Doc. No. 310] at 9 (asserting 
that based on Cooley, “there is no longer an obvious dispute about Plaintiffs’ inherent 
authority, and there is only a dispute about the geographic scope of that authority.”).)  
Nothing in the Walsh or Lorge Declarations puts to rest the disputed issue regarding the 
Reservation’s boundaries. To the contrary, Defendants maintain that the Reservation was 

disestablished, and acknowledge that the issue remains unresolved.  (See W&L Supp’l 
Reply at 10) (stating, “The only issue  here is whether the former reservation has been 
disestablished.”).                                                        
    In addition, as the Court discusses in greater detail below, Cooley concerns tribal 
law enforcement authority over non-Indians on public rights-of-way running through a 

reservation.  141 S. Ct. at 1641–42. Cooley does not address tribal law enforcement 
authority when the boundaries of the reservation are in dispute.          
    Walsh and Lorge rely on Prowse v. Payne, 

 (8th Cir. 2021), a recent 
case in which an inmate challenged prison authorities’ refusal to provide hormone therapy 
to the inmate, in reliance on a blanket policy of denying such treatment.  While the inmate’s 
appeal was pending, the prison began providing treatment to the inmate.  

 at 701–02. 

The Eighth Circuit noted that while a defendant ordinarily faces a heavy burden to establish 
mootness,  “the  standard  is  slightly  less  onerous  when  it  is  the  government  that  has 
voluntarily ceased the challenged conduct.”  

 (citations omitted).  The court found 
the inmate’s challenge to the general policy was rendered moot because she was receiving 
treatment.  

  As to the inmate’s challenge based on her own access to treatment, the 
Eighth Circuit found the question of mootness to be “a closer call.”  

  But because prison 

officials averred that the inmate would receive hormone therapy so long as her treating 
physicians recommended it, the court held that the challenged conduct could  not be 
reasonably expected to recur.  

                                        
    Walsh and Lorge argue that there is no meaningful distinction between Walsh’s  
representations here and the prison administrators’ representations in Prowse.  (W&L 

Supp’l Mem. at 13–14.)   But the facts here are unlike the provision of hormone therapy to 
the inmate in Prowse, which constituted changed conduct that granted the requested relief 
and left no “live” dispute.  Walsh’s representations that he will not reissue the 2016 Opinion 
and Protocol still leave open the scope of the Band’s law enforcement authority upon the 
termination of the 2018 Agreement because of the disputed boundary issue.  There is no 

question that the boundary issue, as it affects the scope of the Band’s law enforcement 
authority, remains “live.”                                                
    Accordingly,  the  Court  finds  that  neither  the  2018  Agreement  nor  Walsh’s 
representations regarding the revocation of the 2016 Opinion and Protocol moot this case.   
         2.   Whether Cooley Moots the Band’s Claims Against Walsh and   
              Lorge                                                      
    As noted earlier, Walsh and Lorge also argue that this matter is moot because Cooley 
represents a change in the law that precludes Walsh from issuing an opinion and protocol 
similar to the 2016 Opinion and Protocol.  (W&L Supp’l Mem. at 14–16.)    
    In Cooley, the Supreme Court held that tribal police officers have the authority to 

temporarily detain and search a non-Indian on a public right-of-way that runs through an 
Indian reservation for potential violations of state and federal law.  

.  The 
Court observed that it had previously recognized that “where jurisdiction to try and punish 
an offender rests outside the tribe, tribal officers may exercise their power to detain the 
offender and transport him to the proper authorities.”  

 at 1644 (citing Duro v. Reina, 

, 687–88 (1990)).  The Supreme Court found the tribal authority in Cooley, 
i.e., the authority to search a non-Indian prior to transport, was ancillary to the authority it 
had previously recognized.  

  (citing Ortiz-Barraza v. United States, 

, 
1180–81 (9th Cir. 1975)).  In fact, the Court observed that “several state courts and other 
federal courts have held that tribal officers possess the authority at issue here.”  

 (citing, 

inter alia, United States v. Terry, 

, 579–80 (8th Cir. 2005)).  Observing that 
while in Duro, “[the Court] traced the relevant tribal authority to a tribe’s right to exclude 
non-Indians from reservation land,” the Supreme Court held in Cooley that “tribes ‘have 
inherent sovereignty independent of th[e] authority arising from their power to exclude.’”  

 (citation omitted).                                                   
    Importantly, Cooley does not address the issue of reservation boundaries, which 
Walsh and Lorge acknowledge.  Walsh recognizes that Cooley applies to “tribes, and by 

extension tribal police officers, within their reservation[.]”  (Aug. 2021 Walsh Decl. ¶ 16) 
(emphasis added).   And counsel for Walsh and Lorge acknowledged at the November 15, 
2021 status conference that “the scope of tribal law enforcement authority in terms of the 
geographic scope would depend upon the boundary issue.  Because if the boundaries were 
disestablished, then there’s Indian Country within Mille Lacs County, but there is not the 
reservation boundary as such.”  (Baldwin Decl. [Doc. No. 309], Ex. I (Nov. 15, 2021 Tr.) 

at 11.)  Again, nowhere in Walsh and Lorge’s Declarations do they disavow their view that 
the Reservation has been disestablished.  Instead, their position directly contravenes the 
Band’s view that the Reservation remains as it was under the Treaty of 1855.   
    In addition, the Eighth Circuit’s 2005 decision in Terry, 

, is one of 
the cases the Supreme Court cited in Cooley for the proposition that several state courts 

and other federal courts had already held that tribal officers possessed the authority at issue 
in Cooley.  Cooley, 

.  In Terry, the Eighth Circuit entertained a criminal 
appeal in which Terry, a non-Indian, argued that tribal law enforcement officers had 
unreasonably seized him on the Pine Ridge Reservation, and lacked the authority to do so.  

.  The Eighth Circuit disagreed, ruling that tribal officers have inherent 

authority to investigate violations of state and federal law, including violations by non-
Indians, at least on reservation land from which the tribe has the power to exclude violators.  
400 F.3d at 579–80 (stating, “[T]ribal police officers do not lack authority to detain non-
Indians whose conduct disturbs the public order on their reservation,” and explaining that 
“[b]ecause the power of tribal authorities to exclude non-Indian law violators from the 
reservation would be meaningless if tribal police were not empowered to investigate such 

violations, tribal police must have such power.”).                        
    Walsh testified in his deposition that he did not consider Eighth Circuit decisions to 
be controlling authority, and when drafting the 2016 Opinion and Protocol, he took a 
“conservative viewpoint [that Band law enforcement officers] had less authority than more, 
which would lead to less appeals and less contested issues[.]”  (Baldwin Decl. [Doc. No. 
174], Ex. B (Walsh Dep.) at 301:15–17) (“Q:  So you wouldn’t consider an 8th Circuit 

decision controlling?  A:  It’s not.”); 

 at 293:24–294:3.)  Although Walsh argues that 
Cooley moots the case,3 he also acknowledges that the case leaves “the scope of any [tribal 
law enforcement] authority beyond the facts of the case” up to “the lower courts to work 
out.”  (W&L Supp’l Mem. at 5) (noting that Cooley involved the possession of two semi-
automatic rifles).  Indeed, that is what this lawsuit seeks to “work out.”  Defendants 

continue to maintain that the Reservation has been disestablished—a position directly at 
odds with Plaintiffs’ requested relief, on an issue highly relevant to the Band’s scope of 
law enforcement authority.                                                



3    The Minnesota Supreme Court has cited and applied Terry, finding a tribal officer 
had lawfully “detained and investigated” a non-member suspected of violating Minnesota 
law “pursuant to the tribal authority to detain and remove recognized by the Supreme  Court 
and  other  federal  courts.”   State  v.  Thompson,  

,  421  (Minn.  2020).   
Although the Minnesota Supreme Court issued Thompson in January 2020, and the U.S. 
Supreme Court did not issue Cooley until June 2021, Walsh and Lorge do not argue that 
Thompson moots this case.                                                 
    In support of their position, Walsh and Lorge rely on Young America’s Foundation 
v. Kaler, 

 (8th Cir. 2021), in which a student group challenged the 

University of Minnesota’s policy for assigning venues for speaking events, arguing that 
the policy denied the group a preferred location for its speaker.  (W&L Supp’l Reply at 5–
6.)  By the time of the plaintiffs’ appeal, however, the University had replaced its policy 
for hosting major events to include “more defined terms and standards.”  Young Am.’s 
Found., 

.  The Eighth Circuit analyzed the policy change as conduct 
“capable of repetition, yet evading review,” as opposed to voluntary cessation under 

Friends of the Earth.  

 (explaining that when a law or policy “‘has been amended 
or  repealed,  actions  seeking  declaratory  or  injunctive  relief  for  earlier  versions  are 
generally moot unless the problems are ‘capable of repetition yet evad[ing] review.’”) 
(citing Phelps-Roper v. City of Manchester, 

 (8th Cir. 2012)) (alteration 
in original).   A policy is not “capable of repetition yet evading review” merely because 

the governing body may reenact the policy after dismissal of the lawsuit.  

 (citing Teague 
v. Cooper, 

 (8th Cir. 2013)).  Such situations are rare and generally arise 
“where it is virtually certain” that the repealed law or policy will be reenacted.  

 (citing 
Teague, 

).                                                 
    The Eighth Circuit found that the University’s policy change was not one of those 

rare situations, noting that the policy was not merely “repackaged,” but was substantively 
amended to address the plaintiff’s concerns, and it contained more defined, clear terms.  

 
at 886–87.  The court also found that the plaintiff had failed to show that it was “virtually 
certain” that the University would reenact its prior policy.  Id. at 887.  To the contrary, 
because the new policy was more detailed and broadly applicable to the entire Twin Cities 
campus, the court found it unlikely that the University would reenact its less defined and 

more limited prior policy.  Id.   Accordingly, the Eighth Circuit found that the policy was 
not “capable of repetition yet evading review,” rendering plaintiff’s facial challenges moot.  
Id.                                                                       
    Walsh and Lorge contend that Cooley, and Walsh’s representations that based on 
Cooley, he could not and would not reissue his 2016 Opinion and Protocol, represent a 
change similar to the University’s policy change in Young America’s Foundation.  The 

Court finds this authority distinguishable.  Walsh’s pledge to not reissue his 2016 Opinion 
and Protocol, consistent with the limited facts of Cooley, is unlike the University of 
Minnesota’s wholesale repeal of its challenged policy in Young America’s Foundation, and 
its enactment of a newer, more detailed and broadly applicable policy that entirely disposed 
of the plaintiff’s facial challenge to the repealed policy.  14 F.4th at 886–87.   Again, 

Walsh’s representations do not reach the boundary issue, which remains both “live” and 
essential to the Band’s claims regarding its law enforcement authority.    
    Similarly, his representations are not comparable to the changed circumstances in 
the other cases on which Defendants rely, where the changes in question resulted in 
plaintiffs obtaining their requested relief, leaving no actual dispute.  See Hartnett v. Penn 

State Educ. Ass’n, 

 (3d Cir. 2020) (finding that Supreme Court’s decision in 
Janus v. AFSCME Council 31, 

 (2018), which involved the same issue of 
union-imposed agency fees on non-union members, and the defendant’s compliance with 
Janus, resolved the same issue in Hartnett and mooted the case); DeFunis v. Odegaard, 

,  316–320  (1974)  (concluding  that  law  school  applicant’s  equal 
protection challenge to his denial of admission was moot where the lower court had granted 

injunctive relief, requiring his admission, and by the time the case reached the Supreme 
Court, student was enrolled in his final term of law school, and would receive his degree, 
regardless of any decision on the merits); McCarthy, 

 (holding that 
students’ challenge to Arkansas statute mandating a hepatitis vaccine unless the students 
could claim a recognized religious exemption was rendered moot when, while on appeal, 
the state broadened the scope of the statute to allow exemptions for general religious or 

philosophical beliefs.); United States v. Mercy Health Services, 

, 636–37 (8th 
Cir. 1997) (finding that health care entities’ decision to not merge thoroughly disposed of 
the Government’s antitrust lawsuit against them, even if they expressed the desire to 
perhaps merge at some future time).                                       
    In all of these cases, changed circumstances, which also resulted in the plaintiffs 

receiving their requested relief, left no live controversy.   Walsh’s representations here, 
consistent with Cooley, that he would not reissue his 2016 Opinion and Protocol upon the 
expiration of the 2018 Agreement, do not resolve the boundary issue that is a key part of 
the Band’s law enforcement claims.  Defendants continue to maintain that the Reservation 
has been disestablished and acknowledge that this issue remains in dispute.  Accordingly, 

the Court finds that Cooley and Walsh’s representations based on that case, do not moot 
this case.                                                                
         3.   Whether a Finding that the Case is Not Moot is Speculative  
    Finally, Walsh and Lorge assert that a finding that this case is not moot “pushes this 
Court into rank speculation over what either Walsh or Lorge, or their successors, would do 

if a cooperative agreement was no longer in place.”  (W&L Supp’l Mem. at 10.)  Indeed, 
“[a] speculative possibility is not a basis for retaining jurisdiction over a moot case.”  
McCarthy, 

.                                               
    Walsh and Lorge previously raised this argument in opposition  to the Band’s 
Motion for Summary Judgment on Standing, Ripeness, and Mootness.  (See W&L Opp’n 

to Summ. J. on Standing, Ripeness, and Mootness at 55.)  In particular, they argued that 
“Plaintiffs speculate that the County Attorney will re-implement his Opinion and Protocol 
if the parties cannot reach a new agreement during the 90-day grace period” following the 
expiration of the 2018 Agreement.  (Id.) (emphasis in original).  They maintained that such 
speculation  rested  on  additional,  equally  speculative,  assumptions:    that  the  County 

Attorney would issue a new Opinion and Protocol contrary to law, that legal precedent or 
statutes would not alter the legal landscape, and that some future County Attorney would 
implement the same legal opinion.  (Id.)                                  
    The  Court  rejected  this  argument,  finding that  if  the  case  were  dismissed  for 
mootness, prompting the expiration the 2018 Agreement, followed by a 90-day grace 

period, it was highly probable that the parties would continue to dispute the extent of the 
boundaries on the Reservation and the extent of the Band’s sovereign law enforcement 
authority.  (Dec. 21, 2020 Order at 35–36.)  Walsh and Lorge fail to provide any basis for 
the Court to reconsider its prior ruling, and it is not properly before the Court.   
    Even if it were, the Court stands by its prior ruling.  Given Defendants’ unwavering 
belief that the Reservation has been disestablished, and the impact of the boundary issue 

on the Band’s law enforcement authority, it is not speculative to find that the challenged 
conduct is likely to recur.  For all of the reasons set forth above, neither Cooley nor Walsh 
and Lorge’s August 2021 Declarations resolve the issue of the Reservation’s boundaries— 
an issue essential to the Band’s claims regarding the scope of its law enforcement authority.  
Accordingly, the Court denies Walsh and Lorge’s motion on this basis.     


III.  CONCLUSION                                                          
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that                                                       
         1.   The Motion to Dismiss for Lack of Jurisdiction Based on Mootness 
              [Doc. No. 303] filed by Defendants Donald Lorge and Joseph Walsh 
              is DENIED.                                                 


Dated: March 3, 2022                 s/Susan Richard Nelson               
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge