UTE Indian Tribe of the Uintah & Ouray Reservation v. McKee
| Decision Date | 28 August 2020 |
| Docket Number | Case No. 2:18-cv-000314-HCN-DBP |
| Citation | 482 F.Supp.3d 1190 |
| Parties | UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Plaintiff, v. Gregory D. MCKEE; T&L Livestock Inc.; McKee Farms, Inc. ; and GM Fertilizer, Inc., Defendants. |
| Court | U.S. District Court — District of Utah |
Frances C. Bassett, Jeremy J. Patterson, Pro Hac Vice, Patterson Earnhart Real Bird & Wilson LLP, Jennifer S. Baker, Pro Hac Vice, Fredericks Peebles & Patterson LLP, Louisville, CO, J. Preston Stieff, J. Preston Stieff Law Offices, Salt Lake City, UT, for Plaintiff.
Clark R. Nielsen, Devin L. Bybee, J. Craig Smith, Jennie B. Garner, Smith Hartvigsen PLLC, Salt Lake City, UT, for Defendants.
Plaintiff, the Ute Indian Tribe of the Uintah and Ouray Indian Reservation, seeks to enforce a judgment of its Tribal Court against Defendants: Gregory D. McKee and three companies with which he is associated, T&L Livestock, McKee Farms, and GM Fertilizer. Both the Tribe and Defendants have moved for summary judgment. The court grants Defendants’ motion and denies the Tribe's motion.
The Tribe sued Defendants in Tribal Court, alleging that they are misappropriating water that the United States owns in trust for the Tribe. See Dkt. No. 2-2 at 3–17. The Tribe alleged that some water is taken pursuant to an alleged agreement with the United States, and that other water is taken without any authorization. See, e.g. , Oral Argument at 12:20-15:00.1
Mr. McKee is not a member of the Tribe. See, e.g. , Dkt. No. 55-1 at 46. Although the land on which the Defendants use the disputed water is located within the exterior boundaries of the Tribe's Reservation, it is no longer tribal land—that is, it is neither owned by, nor held in trust for, the Tribe. See Dkt. No. 55-1 at 49. As the Tribal Court found, "[t]he McKee Property is land that was diminished from the Uintah Valley Reservation, i.e. , ‘lands that passed from trust to fee status.’ " Id. ; see also id. (); Hagen v. Utah , 510 U.S. 399, 414, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994) ; Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah , 114 F.3d 1513, 1529–31 (10th Cir. 1997). Until 2018, Mr. McKee also leased "40.000 acres, more or less" of tribal land through the Bureau of Indian Affairs. Dkt. No. 55-4 at 138. It appears that the leased land was located approximately three miles from the McKee Property.
See Dkt. No. 60 at 25; Dkt. No. 60-1 at 93. The Tribe does not argue, and the Tribal Court did not find, that Defendants used the water at issue here on this leased land. See Dkt. No. 64 at 18.
The Tribe maintains that the Deep Creek Canal and Lateral 9, the waterways from which Defendants divert the disputed water, "carr[y] the Ute Indian Tribe's waters through a parcel of [ ] McKee's property." Dkt. No. 55 at 23. The Tribe neither argues nor presents evidence that the points from which Defendants divert water are located on tribal land or that the Defendants otherwise enter tribal land to divert the water. A report attached to the Tribe's motion for summary judgment states that the points of diversion are located on the McKee Property (which Mr. McKee owns in fee) as well as on a parcel located immediately north of the McKee Property. See Dkt. No. 55-1 at 194. But the Tribe does not argue, and the Tribal Court did not find, that the parcel immediately north of McKee's property is tribal land. Cf. Dkt. No. 55-1 at 49 () (emphasis added).
In concluding that it had jurisdiction over the Tribe's suit against the McKee Defendants, the Tribal Court reasoned as follows:
The Court has subject matter jurisdiction pursuant to the Ute Tribe's inherent sovereign right to regulate activities of all non-Indians who willingly enter into a consensual relationship with the Tribe or whose conduct imperils the Tribe's political integrity, economic security, or health and welfare. See Montana v. United States , 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). The Court also has subject matter jurisdiction pursuant to the Tribe's inherent sovereign right to (i ) manage the use of its territory and natural resources by both members and nonmembers, see New Mexico v. Mescalero Apache Tribe , 462 U.S. 324, 335–36, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983), and (ii ) to exclude nonmembers from the Tribe's lands and waters, including the irrigation ditches and canals that transport tribal waters. See Water Wheel Camp Recreational Area, Inc. v. LaRance , 642 F.3d 802, 811–14 (9th Cir. 2011).
Dkt. No. 55-1 at 67. On the merits, the Tribal Court found that Defendants had not proved their right to use the disputed water. See id. The Tribal Court awarded the Tribe $142,718 in damages for the water misappropriated between 1999 and 2015. See id. at 67–68.
The Tribe also seeks leave to amend its complaint to make clear that the Tribal Court's decision is at least partially rooted in a 1923 decree and permanent injunction entered by this court in United States v. Cedarview Irrigation Co. , No. 4427 (D. Utah 1923). See Dkt. No. 78 at 2. That ruling established the United States’ ownership of the water rights at issue in that litigation, which apparently encompass the water at issue here. See Dkt 55 at 8–9. The Tribe was not a party to that litigation, though it contends that the ruling established that the United States owns the water in trust for the Tribe. Cf. supra n.1.
Based on its review of the Motion and the proposed Amended Complaint, the court finds that its discussion of the 1923 decree is intended only to buttress the Tribe's jurisdictional allegations. While the proposed complaint does add to the prayer for relief a request for "[a]n order enjoining the Defendants from diverting water from the Deep Creek Canal in violation of the federal court decree and permanent injunction entered in United States v. Cedarview Irrigation Co. , No. 4427 (D. Utah 1923)," Dkt. No. 71-1 at 10, it does not assert any claims arising out of the 1923 decree. Rather, it remains "an action to recognize, register, and enforce a tribal court money judgment under principles of comity." Dkt. No. 71-1 at 3. As the Tribe explains in its briefing, the proposed amended complaint seeks to "enforce the Cedarview Decree via this Court's enforcement of the Tribal Court's enforcement of the Cedarview Decree through the Tribal Court suit," Dkt. No. 78 at 3 (emphasis in original), not to assert a free-standing claim that is independent of the Tribal Court's judgment. See also Oral Argument at 1:30-2:00; 11:30-12:00; 22:00–26:00.
Defendants and the Tribe have both moved for summary judgment. See Dkt. Nos. 55, 60.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (cleaned up).
Defendants contend that this court lacks subject matter jurisdiction over this action because the Tribe's claims do not "aris[e] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The court disagrees.
To be sure, jurisdiction under Section 1331 turns on the well-pleaded complaint rule, which generally "requires that the federal question appear on the face of the plaintiff's properly pleaded complaint." Garley v. Sandia Corp. , 236 F.3d 1200, 1207 (10th Cir. 2001) ; see also, e.g. , Louisville & Nashville R.R. Co. v. Mottley , 211 U.S. 149, 152–54, 29 S.Ct. 42, 53 L.Ed. 126 (1908). And as Defendants note, the complaint here seeks only recognition and enforcement of the Tribal Court's judgment. See Dkt. No. 2 at 7-8. But that is enough to confer federal-question jurisdiction under Tenth Circuit precedent. As that court explained in MacArthur v. San Juan County , "bound up in the decision to enforce a tribal court order" is "[t]he question of the regulatory and adjudicatory authority of the tribes," which "is a matter of federal law giving rise to subject matter jurisdiction under 28 U.S.C. § 1331." 497 F.3d 1057, 1066 (10th Cir. 2007).
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