Evans v. Shoshone-Bannock Land Use Policy Commission, 120513 FED9, 13-35003

Docket Nº:13-35003
Opinion Judge:Milan D. Smith, Jr. 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 Chairman of the Fort Hall Business Council; Glenn Fisher; Lee Juan Tyler; Devon Boyer; Tino
Attorney:Aaron N. Thompson (argued), May, Rammell & Thompson, CHTD, Pocatello, Idaho, for Plaintiffs-Appellants. Mark A. Echo Hawk (argued), Echo Hawk Law, Pocatello, Idaho, 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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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 Chairman 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 November 5, 2013—Portland, Oregon

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

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

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

Before: Milan D. Smith, Jr. and Andrew D. Hurwitz, Circuit Judges, and James C. Mahan, District Judge. [*]

SUMMARY [**]

Indian Law

Reversing in the district court's denial of a motion for preliminary injunction and dismissal of an action seeking to enjoin tribal court proceedings, the panel held that the Shoshone-Bannock Tribes lacked the power to regulate the land use of the plaintiff, a nonmember who owned land in fee simple within the Fort Hall Reservation.

The panel held that the plaintiff was not required to exhaust tribal remedies before bringing suit in federal court because the tribal court plainly lacked jurisdiction. The panel held that because the plaintiff was an owner of non-Indian fee land, the Tribes' efforts to regulate him were presumptively invalid under Montana v. United States, 450 U.S. 544 (1981), and an exception for the regulation of nonmember activity that directly affects a tribe's political integrity, economic security, health, or welfare did not apply. The panel reversed the judgment of the district court and remanded the case for further proceedings.

OPINION

Milan D. Smith, Jr. 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.1Acknowledging 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

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 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 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 (1985) (describing exhaustion requirement).

There is no dispute that Evans failed to exhaust tribal remedies. But the exhaustion requirement is not...

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