State of Nev. V. Hicks, No. CV-N-94-351-DWH.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
• Writing for the Court: Hagen
• Citation: 944 F.Supp. 1455
• Parties: STATE OF NEVADA, William Molini, Administrator for Nevada Division of Wildlife and Michael C. Spencer, Rich Ellington, and Bill Fitzmorris, as Nevada State Wildlife Wardens and Individually, Plaintiffs, v. Floyd HICKS, Tribal Court In and For the Fallon Paiute-Shoshone Tribes, Honorable Joseph Van Walraven, Defendants.
• Docket Number: No. CV-N-94-351-DWH.
• Decision Date: 30 September 1996

944 F.Supp. 1455 STATE OF NEVADA, William Molini, Administrator for Nevada Division of Wildlife and Michael C. Spencer, Rich Ellington, and Bill Fitzmorris, as Nevada State Wildlife Wardens and Individually, Plaintiffs,
v.
Floyd HICKS, Tribal Court In and For the Fallon Paiute-Shoshone Tribes, Honorable Joseph Van Walraven, Defendants. No. CV-N-94-351-DWH. United States District Court, D. Nevada. September 30, 1996.

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C. Wayne Howle, Deputy Attorney General, Carson City, NV, for plaintiffs.

Raymond Rodriguez, Carson City, NV, and Joseph Van Walraven, Reno, NV, for defendant Paiute-Shoshone Tribes.

Melody L. McCoy, Boulder, CO, and Joseph Van Walraven, Reno, NV, for Fallon Paiute-Shoshone Tribes.

MEMORANDUM DECISION AND ORDER

HAGEN, District Judge.

Before the court are the parties' cross-motions for summary judgment (# # 33,34,35)¹. For the reasons stated below, plaintiffs' motion for summary judgment (# 33) is denied. Floyd Hicks's and the tribal defendants' motions for summary judgment (# # 34,35) are granted.

Background: Facts² Leading To The Underlying Litigation

In August 1990, Michael Spencer, a state game warden, applied to the New River Justice Court in Fallon, Nevada for a search warrant to search the premises of Floyd Hicks, a resident of the Fallon-Paiute Shoshone reservation.

Spencer's affidavit averred the purpose of the warrant was to obtain evidence of Possessing or Killing a Big Horn Sheep, in violation of N.R.S. 501.376, a gross misdemeanor. The affidavit also stated: (1) in January of 1989, a confidential informant advised Spencer, a state game warden, that in June of 1988 he saw two dead big horn sheep in the back of a pickup truck owned by Floyd Hicks; (2) the confidential informant also advised that Hicks admitted to possessing the sheep and planning to take them to a taxidermist in Fallon; (3) at 1:00 p.m. on August 30, 1990, Spencer was advised by a special agent of the federal Bureau of Land Management that on August 29, 1990, the agent had observed one big horn sheep head protruding from the trunk of a vehicle on Mr. Hicks's premises; (4) Spencer personally observed a big horn sheep head protruding from a vehicle on Hicks's premises; and (5) no person by the name of Hicks had a current state permit, or "tag", to take big horn sheep.

On August 30, 1990, Spencer received a search warrant from the New River Justice Court to search the residence of Floyd Hicks, a tribal member, apparently on the basis of the January 1989 affidavit. The warrant provided that the issuing court lacked jurisdiction over the Fallon Paiute-Shoshone reservation and that the warrant was valid only if approved by the Fallon Tribal Court. At all relevant times, Hicks resided on his allotted land within the boundaries of the Fallon Paiute-Shoshone Colony and Reservation.

On August 30, 1990, Mr. Spencer sought Tribal Court approval for the warrant to be executed on the reservation. The Tribal Court, Judge Harold presiding, approved the warrant, and modified it to limit the search to the "exterior premises and any vehicles thereon." The warrant was executed on August 30, 1990. One or more mounted big horn sheep heads were removed from Hicks's residence. It was ultimately determined the trophies were not evidence of any crime or game hunting violation, and they were returned to Hicks.

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On June 12, 1991, Spencer again applied for and received a search warrant. This warrant was executed that same day. Spencer was accompanied by tribal police officers at the time he executed both warrants. One or more mounted bighorn sheep heads were removed from Hicks's residence. Once again, it was ultimately determined the trophies were not evidence of any crime or game hunting violation, and they were returned to Hicks.

Disputed Issues in the Underlying Litigation

Disputed issues in the underlying litigation include, but are not limited to, the facial sufficiency of the affidavits supporting the state search warrant applications, the validity of the search warrants themselves, the legality of the tribal court orders authorizing execution of the state warrants, the reasonableness of the game wardens in relying on those orders, the reasonableness of the searches, and the reasonableness of the seizure of property belonging to Hicks.

Procedural Background

Plaintiffs brought this action to enjoin prosecution of two civil actions in Fallon Tribal Court against the State of Nevada, William Molini, Administrator for Nevada Division of Wildlife, and Michael C. Spencer, Rich Ellington, and Bill Fitzmorris, as Nevada State Wildlife Wardens and individually. Plaintiffs seek a declaration that the Fallon Tribal Court may not exercise jurisdiction over the State of Nevada and its officers and employees, whether in their official or individual capacities.

Hicks filed the two actions at issue here in Fallon Tribal Court; one, FT 91-034, on July 8, 1991; the other, FT 92-031, on June 22, 1992. The complaints alleged a variety of claims, including claims under the Indian Civil Rights Act, 25 U.S.C. § 1302, wrongful civil proceedings, unreasonable search and seizure, trespass to land, trespass to chattels, abuse of process, and infliction of emotional distress. By amended complaint, Hicks also claimed violation of unspecified federal and tribal civil rights. The parties have proceeded as if the federal civil rights claim alleged is a § 1983 claim for a fourth amendment violation, and for the purposes of the motions before the court, the court assumes a § 1983 claim is included. Presumably, the tribal civil rights claims are asserted under ICRA.

Hicks originally attempted service by certified mail. The defendants moved to quash service of process on the grounds of state sovereign immunity, limited immunity, and defective service. On May 3, 1993, the tribal court, Judge Van Walraven presiding, ruled that it was adopting NRCP 4 for the duration of the Hicks litigation. On May 5, 1993, the court recognized plaintiffs' ineffective service argument and quashed service of process upon the state defendants. On May 21, 1993, the court authorized service by publication. Mr. Hicks published. The state then renewed its motion to quash and on February 2, 1994, the court again quashed service. The Intertribal Appellate Court, in a May 13, 1994, decision, reversed and remanded to the Fallon Tribal Court for trial. On June 1, 1994, plaintiffs filed this action in federal court.

On June 16, 1994, Judge Van Walraven issued orders staying each of Hicks's actions pending final resolution of the issue of tribal jurisdiction in federal court. Because the stay orders effectively mooted plaintiffs' motion in this court for preliminary injunction, on June 20, 1994, plaintiffs stipulated to voluntary withdrawal of that motion, and this court entered an order to that effect (# 18).

The Tribe, via resolution of the Fallon Business Council, has waived the sovereign immunity of the tribal defendants, i.e., the Tribal Court and Judge Walraven, for the limited purpose of defending, in this federal court action, plaintiffs' claims for declaratory relief regarding the issue of tribal court jurisdiction. Fallon Business Council Resolution No. 94-F-074.

The state defendants, the tribal defendants, and Floyd Hicks have each moved for summary judgment on the issue of the tribal court's jurisdiction over the state defendants under federal law. (# 33,34,35). Pursuant to agreement of all parties, this case is presented to the court on cross-motions for summary judgment. On October 10, 1995, the Tribal Court granted plaintiff's motions to voluntarily dismiss the state defendants

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in their official capacities from FT 91-034 and FT 92-031. This court ruled (# 55) that these dismissal orders of the Tribal Court have mooted the issue of tribal court jurisdiction over the state defendants in their official capacities³.

Oral argument on the summary judgment motions was presented to the court on October 16, 1995, and the motions were submitted on that date. On March 29, 1996, the court issued an order (# 55) denying, without prejudice, all three motions for summary judgment (# # 33,34,35) and ordering supplemental briefing. The order specified that submission of supplemental briefs would be deemed a renewal of the summary judgment motions. Each party has submitted supplemental briefs and the motions (# # 33,34, and 35) are deemed renewed and ripe for decision.

Personal Jurisdiction Over State Defendants in Their Individual Capacities: Due Process and the Question of Service

Any question regarding tribal court jurisdiction over the state defendants in their official capacity is moot. See (# 55); see also supra note 3. Therefore, the court will only address those arguments made by the parties with reference to the individual capacity claims.

As a preliminary matter, the court agrees with the analysis of the Intertribal Court of Appeals on the issue of service of process⁴. The Intertribal Court identified the issue as one of federal constitutional due process, and reversed the order quashing service on the grounds that service was in accordance with tribal law as adopted by Judge Van Walraven⁵, and that Mullane's due process notice

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requirement was satisfied. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

The Intertribal Court found service by publication to be proper and effective under both tribal and federal constitutional law. The court reasoned that Judge Van Walraven was authorized by the tribal code to adopt provisions of NRCP as a guide, he had in fact adopted NRCP 4 in the Hicks case, he had judicial power to interpret tribal law as codified in the Law and Order Code and as adopted pursuant to the Code in his court, and the Nevada courts' interpretations of NRCP 4 are not binding on the tribal court...