Prairie Band Potawatomi Nation v. Wagnon, No. 03-3322.

• Decision Date: 25 March 2005
• Docket Number: No. 03-3322.
• Parties: PRAIRIE BAND POTAWATOMI NATION, Plaintiff-Appellee, v. Joan WAGNON, Secretary of Revenue, State of Kansas; Sheila Walker, Director of Vehicles, State of Kansas; and William Seck, Superintendent, Kansas Highway Patrol, State of Kansas, in their official capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

402 F.3d 1015

PRAIRIE BAND POTAWATOMI NATION, Plaintiff-Appellee, v. Joan WAGNON, Secretary of Revenue, State of Kansas; Sheila Walker, Director of Vehicles, State of Kansas; and William Seck, Superintendent, Kansas Highway Patrol, State of Kansas, in their official capacities, Defendants-Appellants.

No. 03-3322.

United States Court of Appeals, Tenth Circuit.

March 25, 2005.

Brian R. Johnson, Special Assistant Attorney General, Law Offices of John M. Knox, Chartered, Lawrence, KS, for Defendants-Appellants.

David Prager, III, Tribal Attorney, Prairie Band Potawatomi Nation, Mayetta, KS, for Plaintiff-Appellee.

Before McCONNELL and McKAY, Circuit Judges, and FRIOT, District Judge.^*

McKAY, Circuit Judge.

Plaintiff Prairie Band of Potawatomi Indians ("the Tribe"), a federally recognized Kansas Indian tribe, filed this action against Kansas state officials seeking to have its motor vehicle registrations and titles recognized by the State. The district court granted a preliminary injunction in favor of Plaintiff, affirmed by this court on June 25, 2001, prohibiting enforcement of the State motor vehicle registration and titling laws with respect to vehicles registered and titled by the Tribe. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (2001) ("Prairie Band I"). On August 6, 2003, following the outline and guidance provided by this court in Prairie Band I, the district court granted Plaintiff's motion for summary judgment, permanently enjoining Defendants from further application and enforcement of Kansas' motor vehicle and titling laws against Plaintiff and any persons who operate or own a vehicle properly registered and titled pursuant to tribal law. On October 8, 2003, the district court denied Defendants' motion to reconsider. Defendants appeal to this court.

The district court opinions and our opinion in Prairie Band I provide a comprehensive history of the dispute which will not be repeated in detail here. The relevant facts are as follows. On March 16, 1999, in order to address the increase in motor vehicle traffic on the reservation, the Tribe enacted the Prairie Band Motor Vehicle Code ("PBMVC") to "implement reasonable rules, regulations, and penalties essential to maintaining a safe and efficient transportation system" on the reservation. Aple. Supp.App., Vol. I, at 8 (PBMVC Ch. 17-1). Pursuant to the PBMVC, tribal registrations and titles are required for all vehicles owned by Tribe members who reside on the reservation and for all tribal government vehicles. Id. at 56 (PBMVC Ch. 17-10-1(B)). The PBMVC requires those seeking tribal registrations to surrender any certificate of title issued by another jurisdiction, including Kansas. The tribal certificates of title are of banknote quality and resemble titles of other jurisdictions, and the license plates conform to the national standards for visibility, design, and size. Id. at 80

Prior to the enactment of the PBMVC, the Tribe's members complied with Kansas' motor vehicle code which requires that all vehicles that operate in Kansas be registered and titled by the State. See Kan. Stat. Ann. § 8-142 (2001).¹ Nonresidents who operate vehicles in Kansas are not considered violators if they are properly registered and titled in the state of their residence provided that their state grants reciprocal recognition to Kansas' registrations and titles. See Kan. Stat. Ann. § 8-138a (2001).²

At this point, three vehicles have been issued tribal registrations and titles. Aple. Supp.App., Vol. I, at 81. Approximately 300-400 vehicles will be titled under the PBMVC if the system is allowed to proceed. Plaintiff submits that it is necessary for privately and tribally owned vehicles to occasionally leave the reservation for various reasons. Id. at 81. In the absence of an injunction, it is Defendants' position that drivers of tribally licensed vehicles will be in violation of Kansas state law for failure to present a properly registered vehicle.³ Because Kansas does not recognize registrations and titles issued by the Tribe as valid, prior to this litigation and the issuance of the preliminary injunction three citations were issued by the State for persons driving tribally registered vehicles off the reservation.

The issues on appeal are whether the district court: (1) abused its discretion in issuing the permanent injunction; (2) erred in its ruling that defendants were not entitled to sovereign immunity; and (3) erred in ruling that the relief requested by the Tribe (a permanent injunction) did not violate the Tenth Amendment. Plaintiff argues that, in light of our decision in Prairie Band I affirming the district court's grant of a preliminary injunction, certain issues should not be readdressed based on the law of the case doctrine.

The law of the case doctrine sets forth the fairly straightforward legal and pragmatic principle of certainty throughout the proceedings of a case: "[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). However, courts are quick to recognize the flexibility of the rule and are permitted to overturn erroneous rulings as the underlying policy of the rule is one of efficiency, Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981) (citations omitted), not restraint of judicial power, Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). Indeed, the presence of new evidence or subsequent contradictory precedent or a determination that the previous ruling was clearly erroneous are legitimate bases for not applying the law of the case doctrine. Major, 647 F.2d at 112.

Relying on the law of the case doctrine, Plaintiff delineates the following issues as ones that we need not reconsider: (1) whether we have subject matter jurisdiction over the instant action; (2) whether Plaintiff has standing; (3) whether an Article III case or controversy exists; and (4) whether the balancing test outlined in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980), must be applied to this case. Aple. Br. at 15-16. Neither the order granting Plaintiff's motion for summary judgment nor Defendant's appeal therefrom specifically addresses the first three issues Plaintiff alleges fall under the law of the case doctrine.⁴

We review de novo a district court's grant of summary judgment, applying the same legal standard employed by the district court, to determine whether there is a genuine issue as to any material fact and whether a party is entitled to judgment as a matter of law. Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1175 (10th Cir.2001); Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566, 583 (10th Cir.2000). The first issue on appeal is whether the district court abused its discretion in issuing the permanent injunction. SEC v. Pros Int'l, Inc., 994 F.2d 767, 769 (10th Cir.1993) ("[W]e review the district court's grant or denial of a permanent injunction for an abuse of discretion."). A district court abuses its discretion when it issues an "arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir.1999) (citation omitted).

For a party to obtain a permanent injunction, it must prove: "(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1180 (10th Cir.2003) (citations omitted). This standard is remarkably similar to the standard for a preliminary injunction. The only measurable difference between the two is the requirement of actual success on the merits. (For a preliminary injunction, only a substantial likelihood of success on the merits must be established.) See Prairie Band I, 253 F.3d at 1246 (citing Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir.1999)). Because we already considered and determined in Prairie Band I that the Tribe will suffer irreparable harm if the injunction is not issued, that the balance of the harms favors the Tribe, and that the granting of the injunction will not adversely affect the public interest, it follows that the only real controversy which this Court must decide is whether the district court abused its discretion in ruling that the Tribe has succeeded on the merits.⁵

This dispute involves federal preemption. Specifically, "[t]he issue presented in this case ... is whether the doctrines of federal preemption and Indian sovereignty act as barriers to the State's exercise of its regulatory power to title and register vehicles belonging to either the [Tribe] or its members who reside on the reservation." Prairie Band of Potawatomi Indians v. Wagnon, 276 F.Supp.2d 1168, 1184 (D.Kan.2003). It is not, as Defendants assert, whether the Tribe "has the power to regulate the activities of state officials enforcing state law off reservation." Aplt. Br. at 13. It is not "whether [the Tribe] can `order' state officials not to issue citations to tribally registered vehicles." Prairie Band of Potawatomi Indians v. Richards, No. 99-4136-DES, 2002 WL 215996, at *3 (D.Kan. Feb. 8, 2002); Aplt. Am.App., Vol. I, at 167. It is not whether "State law[s] off reservation [are] subservient to tribal ordinances." Aplt. Br. at 12. Instead, "[t]he real issue is whether defendants' actions interfere with plaintiff's sovereignty or ability to self-govern to the extent that the State's actions must be preempted by federal law, when some of defendants' actions may occur off the reservation." Aplt. Am.App., Vol. IV, at 1018 n. 78 (emphasis added). Defendants' attempt to recharacterize the...