Calhoon v. Sell

• Decision Date: 30 September 1998
• Docket Number: No. 96-3038.,96-3038.
• Citation: 71 F.Supp.2d 990
• Parties: 1998 D.S.D. 36 Mike CALHOON and Lee Calhoon, d/b/a Calhoon Ranch, Inc., Ray Burtz, Sylvia Bear and Georgianne Bear, Plaintiffs, v. Jim SELL, Richard Colombe, Paul Valandra, William DuBray, Trust of Nancy Patronaggio, Greenwood Township, Star Valley Township, Tripp County, South Dakota, Rosebud Sioux Tribe, and the United States of America, Defendants.
• Court: U.S. District Court — District of South Dakota

Page 990

71 F.Supp.2d 990

1998 D.S.D. 36

Mike CALHOON and Lee Calhoon, d/b/a Calhoon Ranch, Inc., Ray Burtz, Sylvia Bear and Georgianne Bear, Plaintiffs, v. Jim SELL, Richard Colombe, Paul Valandra, William DuBray, Trust of Nancy Patronaggio, Greenwood Township, Star Valley Township, Tripp County, South Dakota, Rosebud Sioux Tribe, and the United States of America, Defendants.

No. 96-3038.

United States District Court, D. South Dakota, Central Division.

September 30, 1998.

John M. Grossenburg, Winner, SD, for Plaintiffs.

John Simpson, Simpson Law Office, Winner, SD, for Jim Sell.

Paul Valandra, Mission, SD, pro se.

Terry L. Pechota, Viken, Viken, Pechota, Leach & Dewell, Rapid City, SD, Eric J. Antoine, Rosebud, SD, for William DuBray, Trust of Nancy Patronaggio and Rosebud Sioux Tribe.

Kent E. Lehr, Ulmer Hertz & Bertsch, Menno, SD, for Greenwood Township.

Alvin R. Pahlke, Winner, SD, for Tripp County, South Dakota.

Cheryl Schremp DuPris, U.S. Attorney's Office, Pierre, SD, for United States of America.

MEMORANDUM OPINION

KORNMANN, District Judge.

INTRODUCTION

[¶ 1] Plaintiffs instituted this action under 28 U.S.C. §§ 1331, 1343, 1346(f), 1353, and 1367, and 25 U.S.C. § 1302(8). Plaintiffs seek a declaratory judgment to the effect that a portion of a road running from Ideal, South Dakota, to Presho, South Dakota, which portion is located in Star Valley and Greenwood Townships of Tripp County, South Dakota, is a public highway. Plaintiffs also seek compensatory and punitive damages against defendants Sell and Valandra only and an injunction preventing Sell, Colombe, and Valandra from obstructing this portion of the road. Plaintiffs claim that Sell, Colombe, and Valandra have illegally placed gates across a public highway, obstructing travel between the Calhoon ranch home and some of the Calhoon ranch land. The individual defendants claim that the gates can be easily opened and closed, that the gates are closed only part of the year, that gates are a fact of life in this part of the state, and that the road in question is not a public highway. Greenwood Township claims that Tripp County has the sole responsibility for the road and that the road is still a part of the county highway system. Star Valley Township has not answered or appeared. The Rosebud Sioux Tribe ("Tribe") contends the Court does not have jurisdiction over the Tribe based upon the allegations in the complaint and based upon a claim of sovereign immunity of the Tribe. Yet the Tribe asserts legal rights and interpretations of federal law and is the beneficial owner of two tracts at issue here. Following a pretrial conference, the Court met with the parties and viewed the road in question on November 7, 1997. Trial to the Court was conducted on December 8, 1997. Extensive briefs, arguments and documents have since been submitted. The Court has previously dismissed the action against Tribal Land Enterprises (TLE), there having been no objection from any party as to such action. Both the Tribe and the United States have moved to dismiss as to them. The United States, the Department of Interior ("Department") and the Secretary of the Interior ("Secretary") generally act, as to Indian affairs, through the Bureau of Indian Affairs (BIA).

[¶ 2] Legal descriptions will be provided with the section listed first, followed by the township number and range number. All townships are "north" and all ranges are "west."

PREVIOUS LITIGATION IN STATE COURT

[¶ 3] Mike Calhoon, Lee Calhoon, Ray Burtz, Sylvia Bear, and Georgianne Bear filed a lawsuit in state court against Jim Sell, the same having been filed in Tripp County, 6th Judicial Circuit, as Civ. 94-93. The state court entered findings of fact and conclusions of law and a preliminary injunction on September 22, 1994, prohibiting Sell from, during the pendency of the action, obstructing any portion of the road, referred to by the state court as "a public section-line highway", for the three miles as it proceeds from U.S. Highway 183 east through Greenwood Township and for that portion of the road as it runs through 6-102-76. Plaintiffs were required to post a $9,000 bond to obtain the injunction. This order would have covered gates 1, 2, 3, 4, 5 and 6 as shown on plaintiffs' exhibit 1 as received in federal court. The parties attempted to designate this action by the state court as a "final order" and thus subject to appeal. The court, however, failed to comply with the requirements of the state equivalent of Fed.R.Civ.P. 54(b) and the South Dakota Supreme Court, on April 5, 1996, dismissed plaintiffs' appeal. The state trial court amended the preliminary injunction by an order filed on September 12, 1996, and by an identical order filed on January 9, 1997, to allow Sell to close gates 3 and 4 from September 22, 1996, until November 1, 1996. The state court ruled on September 10, 1996, that there were other indispensable party defendants, namely the United States, acting through the BIA, the Tribe, Tripp County, TLE, Richard Colombe, Greenwood and Star Valley Townships, William DuBray and Nancy Patronaggio. The plaintiffs were ordered to join such parties and this order was filed on September 12, 1996. For some unknown reason, an identical order was signed again by the state court on January 7, 1997, the same having been filed on January 9, 1997. On February 27, 1997, an order of the state court was filed denying the motion of Sell to dismiss and granting the motion of plaintiffs to continue the state court action until the status of the road in question is decided in federal court, reference having been made to the present action. Apparently, even at that late date, plaintiffs had not complied with the earlier orders to attempt to join indispensable parties in the state court action which attempts, as to some of the defendants, would have been unsuccessful given the law applicable to the Tribe, TLE, and the United States.

[¶ 4] One or more of the plaintiffs requested Tripp County on July 16, 1996, to act pursuant to SDCL 31-25-6 to permit horizontal livestock guards to be constructed pursuant to SDCL 31-25-4, the guards to replace the two gates on the ends of the section of highway in question. The county took no action and one or more plaintiffs then proceeded to appeal to a state circuit court. What has transpired with regard to that matter is unclear from the record before the court.

OPINION

[¶ 5] The facts of this case and the mesh of statutory and case law, in the lyrical words of Tevye, pose problems "that would cross a Rabbi's eyes." This case also brings to mind the admonition that some questions should perhaps not be asked and, if asked, are sometimes better left unanswered. The parties, however, seek answers and the court will rule on the issues.

[¶ 6] No citation of authority is required to state that Indian tribes and their governing bodies enjoy common-law immunity from suit. No suit may be brought in federal court in the absence of an express and unequivocal waiver of immunity by the tribe or abrogation of this tribal immunity by Congress. The Tribe has here refused to waive its immunity and has sought to be "excused" from this lawsuit. This is a curious position, given the proprietary interest of the Tribe in two of the land parcels which border this road and given what one would think would be a general interest in federal questions concerning takings of Tribal and allotted trust land without the payment of compensation. One would think a tribe would want to be a "player" rather than a "spectator" in this matter. But that is not the case. There is clearly no abrogation of the Tribe's immunity by reason of an Act of Congress. The Court lacks jurisdiction over the Tribe because of sovereign immunity.

[¶ 7] The United States also vigorously asserts that sovereign immunity has not been waived and that the court lacks jurisdiction as to the United States. The United States is an indispensable party defendant in a condemnation proceeding brought by a State to acquire a right of way over lands which the United States owns in fee and holds in trust for Indian allottees. Minnesota v. United States, 305 U.S. 382, 386, 59 S.Ct. 292, 83 L.Ed. 235 (1939). The reasoning behind this proposition is, of course, that the United States is the owner in fee of the Indian allotted lands and holds the same in trust for the allottees. The fact that the United States is an indispensable party does not, of course, establish that jurisdiction exists over the United States.

[¶ 8] This is a suit which seeks, in part, to divest the United States of any right to manage and use certain Indian trust land. Strangely enough, the United States does not oppose this attempt and joins in the request to take and use certain trust land, namely that trust land that borders section lines, although no compensation was ever paid for such takings and use, although proper procedures were not employed under 25 U.S.C. § 311 to grant permission for the use of such trust land for highway purposes, and although the grantee of the easement has abandoned for many years what was received from the United States. The United States sets forth its position: "Moreover, for purposes of this litigation, the United States does not dispute the existence of the section line right of way." (Doc. # 28, page 7) The United States urges that the land along section lines is part of a county highway, that no substantial federal question is presented and that the alleged federal claim is immaterial, being made solely for the purpose of obtaining federal jurisdiction. Id. The United States claims, correctly so, that federal sovereign immunity protects the United States from suit "in the absence of an express waiver of this immunity from Congress." Block v. North Dakota, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983). Any effective waiver must be "unequivocally expressed," and such consent to be sued is to be construed ...