Hamaatsa, Inc. v. Pueblo San Felipe

• Decision Date: 20 September 2013
• Docket Number: No. 31,297.,31,297.
• Citation: 310 P.3d 631
• Parties: HAMAATSA, INC., a New Mexico not-for-profit corporation, Plaintiff–Appellee, v. PUEBLO OF SAN FELIPE, a federally recognized Indian tribe, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

310 P.3d 631

HAMAATSA, INC., a New Mexico not-for-profit corporation, Plaintiff–Appellee,

v.PUEBLO OF SAN FELIPE, a federally recognized Indian tribe, Defendant–Appellant.

No. 31,297.

Court of Appeals of New Mexico.

July 23, 2013.

Certiorari Granted, Sept. 20, 2013, No. 34,287.

The Simons Firm, LLP, Thomas A. Simons, IV, Faith Kalman Reyes, Santa Fe, NM, for Appellee.

Samuel D. Gollis, Attorney at Law, P.C., Samuel D. Gollis, Gwenellen P. Janov, Of Counsel, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Hamaatsa, Inc. filed an action against the Pueblo of San Felipe seeking a declarationthat a road, which crossed Pueblo property that was acquired in fee simple, was a state public road. In an interlocutory appeal, the Pueblo contends that the district court erred in denying the Pueblo's motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity. We affirm.

BACKGROUNDThe Complaint

{2} Hamaatsa's complaint requests the district court to declare Northern R.S. 2477 (the road) a state public road. Further, as a member of the public and the owner of property contiguous to the road, Hamaatsa requests that the court declare that the Pueblo cannot restrict its use of the road. The complaint was filed in response to the Pueblo's notice to Hamaatsa threatening to restrict Hamaatsa's use of the road.

{3} The complaint alleges that the road was owned by the Bureau of Land Management (the BLM) since at least 1906, was constructed and used by the public from at least 1935 up to and including the date of the complaint, and was used by Hamaatsa and its predecessors in interest to access their property. The complaint further alleges that under 43 U.S.C. § 932 (1866), Rev. Stat. § 2477, the road has been a public road since at least 1906 or 1935, and because it was not retained by the United States, the road became vested in the public as a state highway, and it remains a public state highway because it has not been vacated. Although § 932 was repealed, the road was constructed before the repeal in 1976, the repeal expressly preserved the road, and the road remained a state highway pursuant to NMSA 1978, Section 67–2–1 (1905). The property through which the road runs was conveyed to the Pueblo in December 2001 by the BLM in fee simple. In that conveyance, the BLM reserved an easement along the road “for the full use as a road by the United States for public purposes.” By quitclaim deed, the BLM purported, in September 2002, to quitclaim its interest in the road to the Pueblo.

The Motion to Dismiss

{4} The Pueblo moved, pursuant to Rule 1–012(B)(1) NMRA, to dismiss Hamaatsa's complaint for lack of subject matter jurisdiction based on the doctrine of tribal sovereign immunity. At a district court hearing on the Pueblo's motion to dismiss, much of the argument involved the question whether the action was in personam or in rem.

{5} The Pueblo argued that the action was for injunctive relief, affecting and altering the Pueblo's interest in the fee simple parcel it had acquired, and that the action was therefore in personam. The Pueblo also argued that Hamaatsa's action was in essence a quiet title action that would “materially ... affect the ownership interest of the Pueblo in its property” and that “[t]o declare that the road, in fact, exists fundamentally alters the Pueblo's property interest, ownership interest, in this property.”

{6} Hamaatsa responded that its action was for non-monetary declaratory relief and that it was not seeking an injunction. Hamaatsa's counsel stated, “We have simply sought a declaration that this is a public road.” Hamaatsa presented argument and authority to support its view that the action was not, as the Pueblo had asserted, a quiet title action, but was an action purely in rem, arguing that “[t]his case is all about in rem jurisdiction.”

{7} The court ruled simply that the action was in rem, and the court denied the Pueblo's motion to dismiss. Additionally, the court granted leave for an interlocutory appeal.

The Interlocutory Appeal

{8} This case comes to this Court through interlocutory appeal based on the district court's denial of the Pueblo's Rule 1–012(B)(1) motion to dismiss for lack of subject matter jurisdiction. Our review is de novo. Lu v. Educ. Trust Bd. of N.M., 2013–NMCA–010, ¶ 7, 293 P.3d 186.

{9} As conceded by the Pueblo in its argument to the district court and in its brief in chief on appeal, the Pueblo's purely facial challenge to jurisdiction compels us to accept as true all material allegations of the complaint and also to construe the complaint in favor of the complaining party. Forest Guardians v. Powell, 2001–NMCA–028, ¶ 5, 130 N.M. 368, 24 P.3d 803;see Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995) (stating that when analyzing a facial attack under Federal Rule of Civil Procedure 12(b)(1), the court “must accept the allegations in the complaint as true”); Genberg v. Porter, 935 F.Supp.2d 1094, 1102 (D.Colo.2013) (same); In re Polyurethane Foam Antitrust Litig., 799 F.Supp.2d 777, 791, 793 (N.D.Ohio 2011) (indicating that allegations that may seem conclusory in nature but are supported by factual allegations are not to be denied the presumption of truth but instead may be examined by the court “to gauge whether the remaining allegations, accepted as true, plausibly give rise to entitlement to relief” (internal quotation marks and citation omitted)). The Pueblo nowhere argues that any particular allegation in the complaint is unworthy of being accepted as true for the purposes of the motion to dismiss. Accordingly, as this case comes to us, Hamaatsa's action is to declare the road, alleged and conceded for the purposes of the motion to be a state public road, to be a state public road.¹

{10} We review the district court's denial of the Pueblo's motion to dismiss as the case has come to us, but we decide it on grounds different from those relied upon by the district court. See Meiboom v. Watson, 2000–NMSC–004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (indicating that the appellate courts may affirm a district court's ruling on a ground different from that relied on by the district court). We see no reason to address the issue of in rem versus in personam, or, if the action is in rem, whether the Pueblo can nevertheless seek dismissal for lack of subject matter jurisdiction based on sovereign immunity. ² By choosing to make its attack on Hamaatsa's complaint a purely facial one, thereby conceding the truth of the allegations in the complaint, the Pueblo admitted the existence of a state public road. As we indicate later in the body of this Opinion, there is no basis for a sovereign immunity defense at this stage of the proceeding where it is presumed that the road in question is a state public road.

DISCUSSION

{11} Notwithstanding its purely facial attack and admission of the truth of the allegations of the complaint, including that the road is a state public road, the Pueblo argues that sovereign immunity bars the action for lack of subject matter jurisdiction. Yet, the Pueblo offered no evidence of any property or governance interests whatsoever in the road or that the road, concededly a state public road, would threaten or otherwise affect its sovereignty. The Pueblo has not attempted any proof, for example, that even though the road is a state public road, a district court's declaration of that fact would in any way undermine the Pueblo's sovereignty or sovereign authority, infringe on any right of the Pueblo to govern itself or control its internal relations, or otherwise adversely affect its governmental, property, or treasury interests.³

{12} To our knowledge, no United States Supreme Court case or body of federal law, and no New Mexico case, is clearly determinative or constitutes binding precedent favoring the Pueblo under the particular circumstances here. This Court has considerable difficulty, at this Rule 1–012(B)(1) stage, construing the law to require dismissal for lack of subject matter jurisdiction based on sovereign immunity. In our view, the Pueblo's invocation of sovereign immunity in a facial challenge at this stage of the proceedings is not supported by law.

{13} “Tribal sovereign immunity is ‘a necessary corollary to Indian sovereignty and self-governance[.]’ ” Wisconsin v. Ho–Chunk Nation, 512 F.3d 921, 928 (7th Cir.2008) (quoting Three Affiliated Tribes of Ft. Berthold Res. v. Wold Eng'g, P.C., 476 U.S. 877, 894, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986)). If common law sovereign immunity from suit is an attribute of sovereignty, one must wonder why immunity should exist in this case where the Pueblo has shown no other attribute of sovereignty—such as a property, treasury, or governance interest in or sovereign authority over the road—that could bestow immunity from inherent sovereignty. In this case, with no evidence showing that a significant aspect of the Pueblo's inherent sovereignty or sovereign authority is adversely affected, we see no justifiable basis on which the Pueblo can draw immunity from inherent sovereignty.

{14} In our view, the issue in this case is a matter of state law, over which the district court has jurisdiction. See Jicarilla Apache Tribe, 1994–NMSC–104, ¶¶ 10–19, 118 N.M. 550, 883 P.2d 136 (stating that “[w]hether an easement—a public road at that—exists across land held in fee simple is clearly an issue of state law” and holding that Public Law 280 did not preempt “state[ ]court jurisdiction to adjudicate a preexisting interest in land that is purchased by an Indian tribe and then held by the tribe in fee simple”). We note that the United States Supreme Court supports the view that an Indian tribe cannot exercise jurisdiction over conduct on a public roadway. See Montana v. United States, 450 U.S. 544, 566, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (making clear that a tribe cannot regulate the conduct of persons on land it does not own when there is no direct effect on the...