Colorado River Indian Tribes v. Town of Parker

• Decision Date: 15 November 1985
• Docket Number: No. 84-1970,84-1970
• Citation: 776 F.2d 846
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 846

776 F.2d 846

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.

Argued and Submitted March 13, 1985.

Decided Nov. 15, 1985.

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 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.

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.

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

persons and property within its jurisdictional control. Thus, because Parker has alleged a "distinct and palpable injury" to itself, as required by Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), we conclude that the district court properly found that it had standing to sue.

III.

The district court's order granting the preliminary injunction is subject to a limited standard of review. We reverse the grant of a preliminary injunction only when the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1212 (9th Cir.1984); Wilson v. Watt, 703 F.2d 395, 398 (9th Cir.1983). The injunction in this case will be upheld if the district court correctly found that the moving party (Parker) demonstrated either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of the hardships sharply favors the Town. Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 470 (9th Cir.1984). These are not two separate tests, but rather, merely extremes "of a single continuum." Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980) (quoting Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937. 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979)).

The district court granted the injunction after finding that Parker demonstrated a probable success on the merits and the possibility of irreparable injury should the ordinance be enforced. Because we conclude that the district court's finding of possible irreparable injury to the Town was clearly erroneous, we reverse.

IV.

The district court determined that enforcement of Ordinance 82-4 would "irreparably and immediately harm Parker in that there is no way Parker [could] recover from its economic losses caused by reduced commerce and trade and wide-spread unfavorable publicity in a tourist area." Parker would realize these economic losses in the form of reduced revenues from its two percent sales tax on liquor.

The record before us shows that the possibility of such losses is dubious and speculative. The majority of the liquor retailers within the Reservation are not even subject to the licensing requirements imposed by Ordinance 82-4. Ordinance 83-11, enacted by the Tribe on ...