736 F.3d 1298 (9th Cir. 2013), 13-35003, Evans v. Shoshone-Bannock Land Use Policy Com'n

Docket Nº:13-35003.
Citation:736 F.3d 1298
Opinion Judge:M. SMITH, Circuit Judge:
Party Name:David M. EVANS, an individual; Ron Pickens, an individual, DBA P & D Construction, an Idaho sole proprietorship; Sage Builders, LP, an Idaho limited liability partnership, Plaintiffs-Appellants, v. SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; Nathan Small, as Chair man of the Fort Hall Business Council; Glenn Fisher; Lee Juan Tyler; Devon Boyer; Ti
Attorney:Aaron N. Thompson (argued), May, Rammell & Thompson, CHTD, Pocatello, ID, for Plaintiffs-Appellants. Mark A. Echo Hawk (argued), Echo Hawk Law, Pocatello, ID, for Defendants-Appellees.
Judge Panel:Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and JAMES C. MAHAN, District Judge.[*]
Case Date:December 05, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1298

736 F.3d 1298 (9th Cir. 2013)

David M. EVANS, an individual; Ron Pickens, an individual, DBA P & D Construction, an Idaho sole proprietorship; Sage Builders, LP, an Idaho limited liability partnership, Plaintiffs-Appellants,

v.

SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; Nathan Small, as Chair man of the Fort Hall Business Council; Glenn Fisher; Lee Juan Tyler; Devon Boyer; Tino Batt; Blaine J. Edmo; Darrell Dixey, as members of the Fort Hall Business Council; Tony Galloway, Sr., as Chairman of the Shoshone-Bannock Land Use Policy Commission; Casper Appenay; John Fred, as members of the Shoshone-Bannock Land Use Policy Commission; Arnold Appeney, as the Executive Director of the Shoshone-Bannock Land Use Department; George Guardipee, as an enforcement official of the Shoshone-Bannock Land Use Policy Commission; Unknown Shoshone Bannock Tribal Court Judges, as Tribal Judicial Officers, Defendants-Appellees.

No. 13-35003.

United States Court of Appeals, Ninth Circuit.

December 5, 2013

Argued and Submitted Nov. 5, 2013.

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[Copyrighted Material Omitted]

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Aaron N. Thompson (argued), May, Rammell & Thompson, CHTD, Pocatello, ID, for Plaintiffs-Appellants.

Mark A. Echo Hawk (argued), Echo Hawk Law, Pocatello, ID, for Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 4:12-cv-00417-BLW.

Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and JAMES C. MAHAN, District Judge.[*]

OPINION

M. SMITH, Circuit Judge:

In this appeal, we consider whether the Shoshone-Bannock Tribes plausibly have the authority to regulate the land use of David Evans, a nonmember of the Tribes, who owns land in fee simple within the Fort Hall Reservation.1 Acknowledging the general rule that tribes may not regulate nonmember conduct on such " non-Indian fee land," the district court nevertheless held that the Tribes had a plausible basis for asserting jurisdiction. The district court therefore rejected Evans' attempt to enjoin tribal court proceedings, ruling that Evans must first exhaust tribal remedies. Because, contrary to the district court's conclusion, the Tribes plainly lack the power to regulate Evans' conduct, we reverse the judgment of the district court and remand for further proceedings.2

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant David Evans inherited land in Pocatello, a city in Power County, Idaho. Evans' land is located within the Fort Hall Reservation, the home of the Shoshone-Bannock Tribes. Although his property is within the borders of the reservation, Evans is not a member of the Tribes, and he owns the land in fee simple.3

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In 2012, after obtaining a building permit from Power County, Evans began constructing a single-family residence on his property. He hired Plaintiff-Appellant Sage Builders to build the house, and Sage Builders in turn retained subcontractors, including P & D Construction, to provide materials and construction services.

On April 13, 2012, Defendant-Appellee George Guardipee, the Compliance Officer for the Tribes' Land Use Policy Commission, requested that Evans submit a building permit application to the Tribes. Guardipee further requested that Evans pay the Tribes' permit fees, and asked Evans to ensure that all of his contractors and subcontractors obtain business licenses and pay fees to the Tribes. Evans declined, and continued building his home without tribal approval.

On May 16, 2012, Guardipee arrived on Evans' land and demanded that all work on the property cease. The workers then left Evans' property.

The next day, representatives from the Tribes posted a Stop Work Notice on Evans' property. The Tribes also sent Evans a Tribal Notice of Violation/Cease and Desist Order, which instructed Evans to contact the Tribes immediately. Evans complied, and called Defendant-Appellee Tony Galloway, Sr., the Chairman of the Land Use Policy Commission. According to Evans, Galloway warned him that the Commission would fine him $500 per day if he ignored the stop work order.

In July 2012, the Commission served Evans with a summons and complaint naming him and his builders as defendants. The complaint, filed in Shoshone-Bannock Tribal Court, accused Evans and the builders of violating the Tribes' Land Use Policy Ordinance, the Guidelines implementing the Ordinance, and the Tribes' Business License Act.

On August 10, 2012, Evans, Sage Builders, and Ron Pickens (the owner of P & D Construction) brought suit in the United States District Court for the District of Idaho, seeking a declaration that the tribal court lacked jurisdiction and an injunction barring further tribal court proceedings against them. The Tribes moved to dismiss, arguing that Evans was required to exhaust tribal remedies before bringing suit in federal court. Evans opposed the motion to dismiss and moved for a preliminary injunction.

On December 20, 2012, the district court granted the Tribes' motion to dismiss and denied Evans' motion for a preliminary injunction. The district court concluded that, because Evans failed to exhaust tribal remedies, his federal suit was premature. In so holding, the district court reasoned that tribal authority to regulate Evans' land use was plausible, so the tribal court did not plainly lack jurisdiction. Evans timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.4 We review a district court's denial of a preliminary injunction

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for abuse of discretion. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1157 (9th Cir.2007). We review a district court's underlying factual findings for clear error, and we review its legal conclusions de novo. Id. " Whether exhaustion of tribal court remedies is required is a question of law reviewed de novo." Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir.2004) (citing Boxx v. Long Warrior, 265 F.3d 771, 774 (9th Cir.2001)).

DISCUSSION

I. Exhaustion of Tribal Remedies

" Non-Indians may bring a federal common law cause of action under 28 U.S.C. § 1331 to challenge tribal court jurisdiction." Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 846 (9th Cir.2009) (quoting Boozer, 381 F.3d at 934). Before bringing suit in federal court, however, a non-Indian generally must first exhaust tribal remedies. Elliott, 566 F.3d at 846; see also Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850-53, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) (describing exhaustion requirement).

There is no dispute that Evans failed to exhaust tribal remedies. But the exhaustion requirement is not absolute. " Exhaustion is prudential; it is required as a matter of comity, not as a jurisdictional prerequisite." Boozer, 381 F.3d at 935 (citations omitted). To this end, the Supreme Court has recognized four exceptions to the exhaustion requirement: " (1) when an assertion of tribal court jurisdiction is ‘ motivated by a desire to harass or is conducted in bad faith’ ; (2) when the tribal court action is ‘ patently violative of express jurisdictional prohibitions'; (3) when ‘ exhaustion would be futile because of the lack of an adequate opportunity to challenge the tribal court's jurisdiction’ ; and (4) when it is ‘ plain’ that tribal court jurisdiction is lacking, so that the exhaustion requirement ‘ would serve no purpose other than delay.’ " Elliott, 566 F.3d at 847 (quoting Nevada v. Hicks, 533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (internal alteration omitted)).

Evans contends that he is not required to exhaust tribal remedies because the tribal court plainly lacks jurisdiction. To determine whether tribal court jurisdiction is plainly lacking, we analyze whether such " jurisdiction is colorable or plausible...." Elliott, 566 F.3d at 848 (quoting Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir.2008) (internal quotation marks omitted)). The plausibility of tribal court jurisdiction depends on the scope of the Tribes' regulatory authority, as " a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction." Plains Commerce, 554 U.S. at 330, 128 S.Ct. 2709 (quoting Strate v. A-1 Contractors, 520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997)).

II. Plausibility of Tribal Court Jurisdiction

" [T]ribes do not, as a general matter, possess authority over non-Indians who come within their borders...." Plains Commerce, 554 U.S. at 328, 128 S.Ct. 2709 (citing Montana v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)); see also Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 939...

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