Table Bluff Reservation v. Morris

• Decision Date: 16 July 2001
• Docket Number: PLAINTIFFS-APPELLANTS,No. 00-15080,DEFENDANTS-APPELLEES,MOSES-COLUMBIA,00-15080
• Citation: 256 F.3d 879
• Parties: (9th Cir. 2001) TABLE BLUFF RESERVATION (WIYOT TRIBE);THE APACHE TRIBE OF OKLAHOMA;THE COMANCHE TRIBE; THE DELAWARE TRIBE OF WESTERN OHIO;THE EIGHT NORTHERN INDIAN PUEBLOS COUNCIL OF NEW MEXICO; THE INDEPENDENT HOPI VILLAGE OF SHUNGOPAVI; THE KIOWA TRIBE OF OKLAHOMA; THE LA JOLLA TRIBE; PONCA TRIBE; THE CONFEDERATED TRIBES OF COLVILLE CONSISTING OF THE CHELAN TRIBE, THE ENTIATS TRIBE, THE LAKES TRIBE, THE METHOW TRIBE, THETRIBE,THE NESPELEM TRIBE,THE NEZ PERCE TRIBE, THE OKANOGAN TRIBE, THE PALOUSE TRIBE, THE SAN POIL TRIBE,AND THE WENATCHEE TRIBE,v. PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO HOLDINGS, INC.; R.J. REYNOLDS TOBACCO CO.; AMERICAN TOBACCO CO., INC.; BROWN & WILLIAMSON TOBACCO CORP.; B.A.T. INDUSTRIES P.L.C.; LORILLARD TOBACCO CO., INC.,
• Court: U.S. Court of Appeals — Ninth Circuit

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256 F.3d 879 (9th Cir. 2001) TABLE BLUFF RESERVATION (WIYOT TRIBE);THE APACHE TRIBE OF OKLAHOMA;THE COMANCHE TRIBE; THE DELAWARE TRIBE OF WESTERN OHIO;THE EIGHT NORTHERN INDIAN PUEBLOS COUNCIL OF NEW MEXICO; THE INDEPENDENT HOPI VILLAGE OF SHUNGOPAVI; THE KIOWA TRIBE OF OKLAHOMA; THE LA JOLLA TRIBE; PONCA TRIBE; THE CONFEDERATED TRIBES OF COLVILLE CONSISTING OF THE CHELAN TRIBE, THE ENTIATS TRIBE, THE LAKES TRIBE, THE METHOW TRIBE, THE MOSES-COLUMBIA TRIBE,THE NESPELEM TRIBE,THE NEZ PERCE TRIBE, THE OKANOGAN TRIBE, THE PALOUSE TRIBE, THE SAN POIL TRIBE,AND THE WENATCHEE TRIBE, PLAINTIFFS-APPELLANTS
v.
PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO HOLDINGS, INC.; R.J. REYNOLDS TOBACCO CO.; AMERICAN TOBACCO CO., INC.; BROWN & WILLIAMSON TOBACCO CORP.; B.A.T. INDUSTRIES P.L.C.; LORILLARD TOBACCO CO., INC., DEFENDANTS-APPELLEES No. 00-15080 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 14, 2000
July 16, 2001

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Joseph E. Russell and William M. Audet, Alexander Hawes & Audet, San Jose, California, for the plaintiffs-appellants.

John W. Phillips, Heller Ehrman White & McAuliffe, Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, District Judge, Presiding D.C. No. CV-99-02621-MHP

Before: Robert Boochever, Diarmuid F. O'Scannlain, and A. Wallace Tashima, Circuit Judges.

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BOOCHEVER, Circuit Judge

Table Bluff Reservation (Wiyot Tribe) and nineteen other Indian tribes ("Tribes") sued Philip Morris and other tobacco companies ("Tobacco Companies") after the companies signed a settlement agreement with state and territorial governments, settling claims for, among other things, reimbursement of medical costs incurred in treating smoking-related illnesses. The Tribes contended (among other claims) that the agreement violated their tribal sovereignty, equal protection, and 42 U.S.C. §§ 1981. The district court dismissed the action, holding that the Tribes did not have standing to challenge the agreement. The Tribes appeal. Because the Tribes have not demonstrated the injury in fact required for Article III standing, we affirm the district court's dismissal of the action.

FACTS

On November 23, 1998, Philip Morris, Inc. and six other tobacco manufacturers signed a Master Settlement Agreement ("MSA") with forty-six states, five territories, and the District of Columbia ("Settling States"). The MSA settled the Settling States' lawsuits against the Tobacco Companies over smoking-related health care costs. See Floyd v. Thompson, 227 F.3d 1029, 1032-33 (7th Cir. 2000) (describing the MSA and Wisconsin's action against tobacco companies). In exchange for the Settling States' release of their claims against the Tobacco Companies, the companies agreed to end or curtail some of their activities, such as outdoor advertising and brand name sponsorships. The Tobacco Companies also agreed to fund a program of public education to reduce youth smoking and tobacco-related diseases, and to make payments to the Settling States totaling more than $200 billion. The MSA provided "The Settling States do not purport to waive or release any claims on behalf of Indian Tribes, " and also stated:

(ff) Actions Within Geographic Boundaries of Settling States.

To the extent that any provision of this Agreement expressly prohibits, restricts, or requires any action to be taken "within" any Settling State or the Settling States, the relevant prohibition, restriction, or requirement applies within the geographic boundaries of the applicable Settling State or Settling States, including, but not limited to, Indian country or Indian trust land within such geographic boundaries. MSA at Section XVIII(ff) ("Section 18(ff)").

In June 1999, the Tribes filed a class action complaint in federal district court for the Northern District of California, naming the Tobacco Companies as defendants. None of the named Tribes had sued the Tobacco Companies or attempted to participate in any way in the negotiation of the MSA. The complaint alleged that the MSA violated tribal sovereignty, 42 U.S.C. §§ 1983, equal protection, 42 U.S.C.§§ 1981, the Privileges and Immunities Clause, the Thirteenth Amendment, and 42 U.S.C. §§ 1985(3). The complaint requested declaratory relief, an injunction against the implementation of Section 18(ff), and compensatory and punitive damages in excess of $1 billion.

The district court dismissed the complaint for lack of standing, holding that the Tribes failed to present a case or controversy and had not shown injury in fact. The Tribes appeal.

ANALYSIS

Standing is a question of law, which we review de novo. Stewart v. Thorpe Holding Co. Profit Sharing Plan ,

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207 F.3d 1143, 1148 (9th Cir. 2000), cert. denied, 121 S. Ct. 768 (2001). Like the trial court, we must accept as true all material allegations of the complaint and any other particularized allegations of fact, in affidavits or in amendments to the complaint. Warth v. Seldin, 422 U.S. 490, 501 (1975). "If, after this opportunity [to present facts to support standing], the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed. " Id. at 501-02, 95 S.Ct.2197.

I. Article III standing

"Article III limits the jurisdiction of federal courts to `cases' and `controversies.' Federal courts are presumed to lack jurisdiction, unless the contrary appears affirmatively from the record. Standing is an essential, core component of the case or controversy requirement." San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (quotations and citations omitted). The plaintiff has the burden of establishing standing, and the first element it must show is that it has "suffered an `injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not `conjectural' or `hypothetical.' " Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations and citations omitted). The district court concluded that the Tribes failed to show that they have suffered injury in fact.

The Tribes argue that they have suffered injury in fact from the MSA in a variety of ways. We address each below.

A. Tribal sovereignty

Indian tribes occupy "a semi-independent position . . . as a separate people," and "the assertion of state regulatory authority over tribal reservations and members . . .. may unlawfully infringe `on the right of reservation Indians to make their own laws and be ruled by them.' " White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980) (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)). The Tribes claim they have suffered "injury in fact" to their tribal sovereignty, because the MSA, by regulating outdoor tobacco advertisements within the reservations and trust lands, infringes on the Tribes' right to make their own laws.

The MSA provides that the Tobacco Companies must stop advertising outdoors, including on billboards, anywhere within the Settling States, including on Indian lands. If time remains on the lease of billboard space, the Settling State has the option of substituting public service ads intended to discourage youth smoking. The Tobacco Companies will bear the cost of the lease until it...