Sidney v. MacDonald, Civ. 579 PCT-EHC.

• Decision Date: 29 March 1982
• Docket Number: No. Civ. 579 PCT-EHC.,Civ. 579 PCT-EHC.
• Citation: 536 F. Supp. 420
• Parties: Ivan L. SIDNEY, etc., Plaintiff, v. Peter MacDONALD, et al., Defendants.
• Court: U.S. District Court — District of Arizona

536 F. Supp. 420

Ivan L. SIDNEY, etc., Plaintiff, v. Peter MacDONALD, et al., Defendants.

No. Civ. 579 PCT-EHC.

United States District Court, D. Arizona.

March 29, 1982.

John Paul Kennedy, Scott C. Pugsley, Boyden, Kennedy & Romney, Salt Lake City, Utah, Philip E. von Ammon, Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz., for plaintiff.

George Vlassis, Vlassis & Ruzow, Michael D. Hawkins, U. S. Atty., Richard S. Alleman, Asst. U. S. Atty., Phoenix, Ariz., William French Smith, Atty. Gen., and Steven E. Carroll, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

CARROLL, District Judge.

On July 23, 1981, then Chairman of the Hopi Tribe, Abbott Sekaquaptewa, acting in his representative capacity for and on behalf of the Hopi Tribe, filed a Motion For Order To Show Cause Re: Contempt, against Defendants Peter MacDonald, acting in his representative capacity as the Navajo Tribal Chairman, the Navajo Tribe and individual members of the Navajo Tribe. Ivan L. Sidney, current Hopi Tribal Chairman, has been substituted as Plaintiff. An evidentiary hearing on this matter was held on December 2 and 3, 1981. Appearing were John Paul Kennedy and Richard Hymas for Plaintiff, George P. Vlassis, Gary Verburg and Katherine Ott for Defendants, and Richard Alleman for the United States.

Plaintiff's motion was amended prior to hearing to drop the allegations of contempt levied against the individual members of the Navajo Tribe. The amended complaint makes four requests. First, Plaintiff seeks an order of contempt against Defendants Peter MacDonald and the Navajo Tribe for failing to comply with the September 11, 1980, Court order in that such Defendants have not caused to be disassembled and removed certain structures found to have been unlawfully constructed on Hopi partitioned lands ("old-new construction") in violation of Paragraph (A), of the September 11, 1980, order. Second, the Hopi Chairman seeks a declaration that additional structures, not the subject of the September 11, 1980, order, have been constructed since February 10, 1977, ("new-new construction") in violation of Paragraph (C), of the September 11, 1980, order and Paragraph 7(b), of the February 10, 1977, order. Third, the Plaintiff moves that a mandatory injunction be issued directing Defendants Peter MacDonald and the Navajo Tribe to disassemble and remove such "old-new construction" and "new-new construction". Fourth, Plaintiff seeks an award of costs and attorneys' fees.

Following the presentation of evidence, the Court took this matter under advisement. The Court has considered the Plaintiff's motion for contempt and all matters relevant thereto and enters the following Memorandum Opinion and Order:

FACTS

On February 10, 1977, the Court entered a Judgment of Partition with respect to the Hopi-Navajo Joint Use Area. The Judgment of Partition, at paragraph 7(b), provided that "no new construction in the area hereby partitioned to the Hopi Tribe shall hereafter be commenced or continued by the Navajo Tribe, or any member thereof, without the written authorization of the Hopi Tribe."

On September 14, 1979, Plaintiff filed its Second Motion For Order To Show Cause And Preliminary Injunction. Plaintiff alleged that the Navajo Tribe and/or certain members thereof had engaged in unlawful new construction on Hopi lands in violation of paragraph 7(b) of the Court's February 10, 1977, Judgment of Partition. An order to show cause was obtained and served upon Defendant Peter MacDonald and the Navajo Tribe, requiring them to appear and show cause why a contempt order and a mandatory injunction should not issue against them and why costs and attorneys' fees should not be assessed.

Following an evidentiary hearing on the show cause matter, the Court entered its Findings of Fact, Conclusions of Law, and Order on September 11, 1980. The order provided in pertinent part as follows:

(A) Defendant Peter MacDonald and the Navajo Tribe on behalf of the members of the Navajo Tribe, shall, within ninety (90) days, cause the buildings found to be "new construction" under the Court's Order of February 10, 1977, and described in Findings of Fact Nos. 9, 10, 12, 13, 14, 16, 17, 23, 24, 25, 27, 28, and 30, to be disassembled and removed from their present location to a place outside the Hopi Reservation.¹

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(C) The provisions of Paragraph 7(b) of the Judgment of Partition continue to be in full force and effect and binding upon the Navajo Tribe, the Tribal officers, and the individual tribal members, villages, and clans.

Plaintiff contends that Defendants have failed to comply in certain instances with either of these provisions. Accordingly, this motion for an order of contempt and mandatory injunction was filed.

DISCUSSION

I. CONTEMPT ORDER RE: "Old-New Construction"

In a civil contempt proceeding the burden of persuasion is on the movant to establish by clear and convincing evidence proof of contempt. United States v. Rylander, 656 F.2d 1313 (9th Cir. 1981). In such proceedings the prima facie showing consists of proof that the "defendant has failed to comply with a valid Court order". Id. Once a prima facie showing has been made, the defendant must provide an explanation for the failure to comply. Id., N. L. R. B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973).

Here, Defendants Peter MacDonald and the Navajo Tribe have provided the Court with two explanations for their failure to comply with the September 11, 1980, order. First, Defendants argue that they cannot be held in contempt for the conduct of individual Navajo Tribal members over whom they have no control. Defendants urge that such inability to comply is an absolute defense. Second, Defendants argue that the evidence demonstrates that they have taken all reasonable steps within their power to secure compliance and have thus discharged the duty imposed by the September 11, 1980, order.

A. Plaintiff's Prima Facie Case

The Hopi contend that Defendants Peter MacDonald and the Navajo Tribe have failed to comply with Paragraph (A) of the September 11, 1980, order with respect to Findings of Fact Nos. 9, 10, 12, 23, 24 and 28 which describe the following structures:

9. In July through October, 1979, Violet Ashkey, a member of the Navajo Tribe, without Hopi permission, engaged in the construction of a new home within the Hopi partitioned area, as shown in Plaintiff's Exhibit I(A), being the partially constructed building near the blueroofed hogan. (R.T. Jan. 15, pp. 4-5).

10. Between September 5, 1979, and October 18, 1979, Guy and Esther Sosi, members of the Navajo Tribe, without Hopi permission, engaged in the construction of a hogan located south of the Low Mountain area within the Hopi partitioned area, as shown in Plaintiff's Exhibit II(A). (R.T. Jan. 15, p. 136).

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12. Tommy White, a member of the Navajo Tribe, engaged in the construction of a shed near the site of the house shown in Exhibit III(A), located on Hopi land, without Hopi permission, in May-June of 1979. (R.T. Jan. 15, p. 41).

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23. During the summer of 1979, Mr. Stutterer, without Hopi permission, built a hogan within the Hopi partitioned area. (R.T. Nov. 30, p. 266).

24. During the Fall of 1979, members of the Navajo Tribe, without Hopi permission, engaged in construction of a hogan shown in Plaintiff's Exhibits VIII(A) and VIII(C) belonging to Nellie Begay. The hogan is located within the Hopi partitioned area. (R.T. Jan. 15, p. 127).

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28. The home belonging to Ruth Benally shown in Plaintiff's Exhibit XV(A), is new and was constructed within the Hopi partitioned area, without Hopi permission, after this Court had entered its February 10, 1977, order. (R.T. Jan. 15, p. 144).

In order to make a prima facie showing of a violation regarding this "old-new construction", Plaintiff must show that (a) the challenged structures were declared by the September 11, 1980, order to be in violation of the February 10, 1977, order and (b) such structures had not been entirely dismantled and removed as contemplated by the September 11, 1980, order.

Here, the Court finds that in all cases such prima facie showing has been made by way of stipulation or uncontroverted evidence. Accordingly, absent any recognizable defense to the contrary, a contempt citation must issue with respect to Findings of Fact Nos. 9, 10, 12, 23, 24 and 28 of the September 11, 1980, order.

B. The Defenses

1. Inability To Comply

The Ninth Circuit has recently reaffirmed its position regarding the burden on respondent with respect to the defense of inability to comply. Quoting from N. L. R. B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973), the Court states as follows:

... although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply. The contrary burden is upon the respondent. To satisfy this burden the respondent must show "categorically and in detail" why he is unable to comply.

United States v. Rylander, 656 F.2d 1313, 1316 (9th Cir. 1981).

Defendants Peter MacDonald and the Navajo Tribe argue, as they have in prior proceedings, that they are unable to comply with the September 11, 1980, order because they are without jurisdiction over individual Navajos living on the Hopi partition of the former Joint Use Area. This argument is premised upon the Navajo Tribe's inability to enter Hopi lands for purposes of effectuating the order themselves. The Defendants do not argue that they lack the power to impose Navajo laws on individual tribal members residing on Hopi land. Thus, Defendants seek to establish their inability to comply with the Court's order merely by proving that the contemptuous conduct results from the...