Confederated Tribes of The Colville Reservation v. Anderson

• Decision Date: 03 January 2011
• Docket Number: No. CV–09–0342–EFS.,CV–09–0342–EFS.
• Citation: 761 F.Supp.2d 1101
• Court: U.S. District Court — District of Washington
• Parties: CONFEDERATED TRIBES OF the COLVILLE RESERVATION, a federally recognized Indian tribe; and C. Vernon Johnson, Plaintiffs,v.Phil ANDERSON, Director of the Washington department of Fish and Wildlife, in his official capacity; and Bruce Bjork, Chief of the Washington Department of Fish and Wildlife Enforcement Program, in his official capacity, Defendants.

761 F.Supp.2d 1101

CONFEDERATED TRIBES OF the COLVILLE RESERVATION, a federally recognized Indian tribe; and C. Vernon Johnson, Plaintiffs,
v.
Phil ANDERSON, Director of the Washington department of Fish and Wildlife, in his official capacity; and Bruce Bjork, Chief of the Washington Department of Fish and Wildlife Enforcement Program, in his official capacity, Defendants.

No. CV–09–0342–EFS.

United States District Court, E.D. Washington.

Jan. 3, 2011.

[761 F.Supp.2d 1102]

Brian Cammiade Gruber, Joshua Osborne–Klein, Ziontz Chestnut Varnell Berley & Slonim, Seattle, WA, Timothy Ward Woolsey, Colville Tribes Office of Reservation Attorney, Nespelem, WA, for Plaintiffs.Joseph Earl Shorin, III, Matthew R. Kernutt, Attorney General of Washington, Olympia, WA, Mason D. Morisset, Morisset Schlosser & Jozwiak, Seattle, WA, for Defendants.

ORDER GRANTING AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' § 1983 CLAIMS EDWARD F. SHEA, District Judge.

The parties ask the Court to wrestle with an age-old issue: the struggle between two sovereigns asserting their respective rights to protect the safety and interests of those for whom they are responsible. The state of Washington ¹ asserts its right to enforce hunting laws against members of the Colville Indian Tribe (“Tribe”), who are hunting off the

[761 F.Supp.2d 1103]

reservation but on lands on which tribal members enjoy “in common” treaty-hunting rights.² Although numerous appellate and district courts have discussed the interplay between a state's and a tribe's responsibilities as they relate to wildlife conservation to which they enjoy “in common” rights, no appellate court has focused on this interplay as it relates to hunting safety. The Court herein is tasked with the responsibility of setting forth a legal standard with which to assess the State's hunting safety laws, as well as resolving challenging issues relating to Plaintiffs' 42 U.S.C. § 1983 claims.

I. Background ³

On November 17, 2007, a Washington Department of Fish and Wildlife (WDFW) enforcement officer stopped Plaintiff C. Vernon Johnson, who is an enrolled member of the Tribe,⁴ and cited him for possessing a rifle in a motor vehicle with a round in the magazine in violation of state law, RCW 77.15.460(1). Based on this citation, Mr. Johnson was prosecuted in Stevens County District Court. Mr. Johnson pled guilty to the misdemeanor charge; the state court imposed a $100 fine, including court costs, and a twelve-month deferred sentence. Mr. Johnson did not appeal his conviction or sentence. His deferred twelve-month sentence expired with no violations. Not raised during the state criminal proceeding was whether the State lacked the authority to convict and sentence Mr. Johnson because the 1891 Agreement between the United States and the Tribe allows Mr. Johnson to enjoy “in common” hunting rights in the location he was cited: the north half of the Colville Reservation (“North Half”).⁵

Article 6 of the 1891 Agreement reserved to the Tribe a perpetual right to hunt and fish on the North Half:

It is stipulated and agreed that the lands to be allotted as aforesaid to said Indians and the improvements thereon shall not be subject, within the limitations prescribed by law, to taxation for any purpose, national, state or municipal; that said Indians shall enjoy without let or hindrance the right at all times freely to use water power and water courses belonging to or connected with the lands to be so allotted, and that the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged.

(Emphasis added.) Congress ratified and approved the 1891 Agreement through a series of statutes enacted between 1892 and 1911.

The population and settlement of the State and mobility of individuals have increased exponentially since the 1891

[761 F.Supp.2d 1104]

Agreement. Today, a substantial portion of North Half lands are publicly owned, including national forest land, State-owned trust land managed by the Washington Department of Natural Resources, and two wildlife areas managed by the WDFW.

Both the State and the Tribe exercise their respective sovereign police powers and have enacted laws aimed at increasing hunter safety. The Tribe's Business Council is responsible for approving tribal hunting regulations that are proposed by the Tribe's Fish and Wildlife Department, which is responsible for the day-to-day management of natural resources and hunting, and coordinating with other federal, tribal, and State regulatory agencies. The Tribe's Parks and Recreation Program has primary enforcement responsibility for hunting on the Colville Reservation. The Tribe has a court system, including a trial and appellate court, to assist with the prosecution and defense of those charged with hunting violations.

The State also enacted hunting laws and has agents responsible for enforcing such laws. RCW 77.15.075. WDFW currently has two enforcement officers assigned to the North Half area.

Although the Tribe's ⁶ and the State's hunting laws are similar, they not identical:

[761 F.Supp.2d 1105]

Mr. Johnson and the Tribe bring this lawsuit to obtain equitable relief preventing the State from applying its hunting laws to tribal members exercising their “in common” hunting rights. Thereafter, the State filed a Motion to Dismiss Plaintiffs' § 1983 Claims (ECF No. 26 ) and the parties filed cross Motions for Partial Summary Judgment Re: Legal Standard (ECF Nos. 16 & 29 ). On June 23, 2010, the Court heard oral argument on the motions.⁷ At the hearing, the Court inquired as to the impact of Heck v. Humphrey (“ Heck ”), 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), on Mr. Johnson's 42 U.S.C. § 1983 claim; leave was given to file post-hearing briefs on this issue. After reviewing the submitted material and relevant authority and hearing from counsel, the Court is fully informed. As explained below, the Court dismisses the Tribe's § 1983 claim, allows Mr. Johnson to pursue his § 1983 claim, and sets forth the legal standard with which to assess the State hunting safety laws.

II. Defendants' Motion to Dismiss Plaintiffs' § 1983 Claims

The State seeks dismissal of Plaintiffs' 42 U.S.C. § 1983 claims on the grounds that 1) the Tribe a) is not a “person” as defined by § 1983 and b) may not maintain a § 1983 action as parens patriae for tribal members, and 2) Mr. Johnson may not bring a § 1983 action based on a communally-held hunting right. Plaintiffs respond that the Tribe may bring a parens patriae § 1983 action on its members' behalf and that Mr. Johnson may pursue a § 1983 claim because the State violated his personally-held federally-recognized hunting right. At the hearing, the Court raised the issue of whether, even if Mr. Johnson has standing to bring a § 1983 claim, his claim is barred by Heck. As set forth below, the Court finds, while the Tribe may not pursue a § 1983 action, Mr. Johnson has standing to bring a § 1983 action and Heck's favorable-termination rule does not apply.

A. Standard

A lawsuit is to be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it fails to state a claim for relief that is plausible on its face. Fed.R.Civ.P. 12(b)(6)(2010). “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant's liability” fails to satisfy the “plausible” standard. Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In conducting its analysis, a court need not accept a plaintiff's legal conclusions as true, but must accept the alleged facts as true and construe all inferences from them in the light most favorable to the plaintiff. Id. at 1949–50.

[761 F.Supp.2d 1106]

B. Mr. Johnson

Mr. Johnson seeks injunctive relief ⁸ under 42 U.S.C. § 1983 ⁹ preventing the State from enforcing State hunting safety laws against him on the grounds that the State's citation and prosecution of these hunting offenses violate his “in common” hunting rights. To maintain this § 1983 claim, Mr. Johnson must bypass two hurdles. First, he must establish that he has standing to bring a § 1983 claim. Second, he must show that Heck's favorable-termination rule does not apply to his § 1983 claim.

1. Standing

Relying upon Skokomish Indian Tribe v. United States (“ Skokomish ”), 410 F.3d 506 (9th Cir.2005), the State argues that Mr. Johnson does not have standing to assert a § 1983 action for an alleged deprivation of the “in common” hunting right because a tribal member may not seek vindication under § 1983 for the deprivation of a communal tribal right. Mr. Johnson responds that Skokomish is not on point and instead relies on Romero v. Kitsap County, 931 F.2d 624, 626 (9th Cir.1991).

In Skokomish, both the tribe and individual tribal members attempted to bring a § 1983 action against a city and a public utility for their actions in connection with the installation of dams, reservoirs, and other water projects, which flooded the reservation and caused substantial damage. In pertinent part, the Ninth Circuit stated:

The Tribe's treaty-based rights do not give rise to individual actions cognizable under section 1983. As we stated in Settler v. Lameer, 507 F.2d 231, 237 (9th Cir.1974), with regard to fishing rights similar to those that the Tribe's members assert here, “the fishing rights reserved in [the treaty] are communal rights of the Tribe, even though the individual members benefit from those rights.” See also Whitefoot v. United States, 155 Ct.Cl. 127, 293 F.2d 658, 663 (1961) (noting that “interests in ... fisheries are communal, subject to tribal regulation”). Because the Tribe's members seek to vindicate communal, rather than individual rights, they do not have cognizable section 1983 claims against the City or PUT.

Id. at 515–16 (nn. 7–8 omitted). The language utilized by the Ninth Circuit in the body of...