776 F.2d 846 (9th Cir. 1985), 84-1970, Colorado River Indian Tribes v. Town of Parker

Docket Nº:84-1970.
Citation:776 F.2d 846
Party Name:COLORADO RIVER INDIAN TRIBES, an Indian Tribe, Plaintiff-Appellant, v. TOWN OF PARKER, a municipal corporation; Nell B. Kulp; Sam Davis; Ronald L. Morris; Arthur B. Fox; Lloyd E. Gorrell; Lavelle McIntire; and Frank Solper, in their official capacities as Members of the Common Council of the Town of Parker; and John J. Oross, in his official capaci
Case Date:November 15, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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776 F.2d 846 (9th Cir. 1985)

COLORADO RIVER INDIAN TRIBES, an Indian Tribe, Plaintiff-Appellant,

v.

TOWN OF PARKER, a municipal corporation; Nell B. Kulp; Sam

Davis; Ronald L. Morris; Arthur B. Fox; Lloyd E. Gorrell;

Lavelle McIntire; and Frank Solper, in their official

capacities as Members of the Common Council of the Town of

Parker; and John J. Oross, in his official capacity as Town

Clerk of the Town of Parker, Defendants-Appellees.

TOWN OF PARKER, a municipal corporation, Counterclaimant-Appellee,

v.

COLORADO RIVER INDIAN TRIBES, an Indian Tribe; Anthony

Drennan, Sr.; Harry Laffoon, Sr.; Elliott L. Booth;

Constance Zeyouma; Gladys Scott; Jesse W. Fisher; Mamie

Harper; Franklin McCabe, Jr.; and Dennis Patch,

Counterdefendants-Appellants.

No. 84-1970.

United States Court of Appeals, Ninth Circuit

November 15, 1985

Argued and Submitted March 13, 1985.

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Alleta d'A Belin, Shute, Milhaly & Weinberger, San Francisco, Cal., Steven J. Bloxham, Tribal Atty., Pamela S. Williams, Assoc. Tribal Atty., Parker, Ariz., for plaintiff-appellant.

Frederick J. Martone, Jennings, Strouss & Salmon, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and POOLE, Circuit Judges, and BREWSTER, [*] District Judge.

POOLE, Circuit Judge:

The Colorado Indian Tribe and the Town of Parker, Arizona, are involved in a jurisdictional dispute over the regulation of liquor on fee-patented lands in Parker and on rights of way through the Colorado Indian Reservation. At the Town's request, the district court enjoined the Tribe from enforcing its liquor ordinance on those lands. The Tribe appeals from that grant of a preliminary injunction. We reverse.

I.

In December 1983, the Tribe brought this action in the United States District Court for the District of Arizona against the Town, an Arizona municipal corporation, each member of the Town Council, and the Town Clerk. The Tribe sought an injunction and declaration that the Tribe, and not the Town, has jurisdiction to regulate building

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activities on lands within Parker owned by the Tribe and held in trust by the federal government. The Town answered and counterclaimed against the Tribe and members of the Tribal Council in their individual capacities, also seeking an injunction and declaration that, conversely to the position of the Tribe, it has the power to regulate all lands within the townsite. In support of their respective positions on this jurisdictional issue, the Tribe contends that the Town is still part of its reservation, whereas the Town claims that the portion of the Tribe's reservation from which the townsite was reserved by Congress lost its reservation status.

The existing jurisdictional conflict between Parker and the Tribe was exacerbated when, pursuant to its Constitution and Bylaws, the Tribe amended its Health and Safety Code regulating land use and building activities on the Reservation by enacting Ordinance 82-4. That ordinance added to the Code Article 2, which regulates liquor by requiring persons selling or manufacturing liquor within the Reservation to obtain a license from the Tribe. The ordinance also prohibits the sale of liquor during certain hours of the day and to persons who are intoxicated or under age. Additionally, it requires liquor licensees to carry specified insurance and prohibits consumption of liquor in public nonlicensed places. Ordinance 82-4 became effective on February 19, 1984, thirty days after the Secretary of the Interior published notice of the ordinance in the Federal Register pursuant to 18 U.S.C. Sec. 1161.

In response to the enactment of the liquor ordinance, the Town filed a motion for a temporary restraining order seeking to enjoin the Tribe, members of the Tribal Council, and all officers, agents, and employees of the Tribe from regulating liquor on fee-patented lands within the Town and on rights of way across the reservation. The motion was heard on April 12, 1984, at which time counsel for both parties agreed to treat it as a motion for a preliminary injunction.

On April 13, the district court issued the requested preliminary injunction. The Tribe responded by filing first a motion to dissolve the preliminary injunction, and then a timely notice of appeal from the grant of the preliminary injunction.

On June 11, 1984, the district court denied the Tribe's motion for dissolution. The appeal before this court is only from the April 13, 1984, order granting the preliminary injunction. We have jurisdiction under 28 U.S.C. Sec. 1292(a)(1).

II.

As an initial matter, the Tribe challenges the district court's finding that Parker had standing to sue because the threatened enforcement of Ordinance 82-4 harmed Parker "in its capacity as a municipal corporation and in its capacity as parens patriae of its citizens." Conclusions of law upon which injunctive relief is based are freely reviewable. Burrus v. Turnbo, 743 F.2d 693, 699 (9th Cir.1984). Thus, we review whether the Town had standing to sue de novo.

We have held that political subdivisions such as Parker cannot sue as parens patriae because their power is derivative and not sovereign. United States v. City of Pittsburg, California, 661 F.2d 783, 786-787 (9th Cir.1981); City of Rohnert Park v. Harris, 601 F.2d 1040, 1044 (9th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); In Re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir.), cert. denied, sub. nom. Morgan v. Automobile Manufacturers Association, Inc. 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Municipalities may, however, "sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants." Id.

We find that the Town has demonstrated a sufficient stake in the controversy to justify our exercise of jurisdiction. Parker alleged threatened injury to its proprietary interest in revenues earned from its two percent sales tax on liquor sales, and the possibility of actual injury to its ability to function as a municipality in regulating

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persons and property...

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