Yurok Tribe v. Rancheria

• Decision Date: 25 January 2018
• Docket Number: Case No. 16-cv-02471 RMI
• Parties: YUROK TRIBE, on behalf of itself and its members, Plaintiff, v. RESIGHNINI RANCHERIA and GARY MITCH DOWD, Defendants.
• Court: U.S. District Court — Northern District of California

YUROK TRIBE, on behalf of itself and its members, Plaintiff, v. RESIGHNINI RANCHERIA and GARY MITCH DOWD, Defendants.

Case No. 16-cv-02471 RMI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EUREKA DIVISION

January 25, 2018

ORDER ON DEFENDANTS' MOTION TO DISMISS

(Doc. 47.)

This is an action in which the Yurok Tribe ("the Tribe") seeks a declaratory judgment that the Resighini Rancheria ("the Rancheria") and Gary Mitch Dowd, a member of the Rancheria, do not have any rights to fish in the Klamath River Indian fishery within the Yurok Reservation. The Complaint sets forth two claims for relief: 1) violation of the Hoopa-Yurok Settlement Act; and 2) violation of the Yurok Tribe's exclusive federally reserved fishing right. Pending before the court is the Rancheria's motion to dismiss for lack of subject matter jurisdiction. Having considered the parties' arguments at the hearing and in their papers, the court will grant the motion for the reasons expressed below.

DISCUSSION

Sovereign Immunity

Defendants move to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(7) on the ground that this court lacks subject matter jurisdiction over any of the claims asserted against either Resighini Rancheria or Gary Mitch Dowd based on the Rancheria's sovereign immunity. It is undisputed that Resighini Rancheria is a federally-recognized Indian Tribe with sovereign immunity. It therefore cannot be sued without its consent. See generally Larimer v. Konocti Vista Casino Resort, Marina & RV Park, 814 F. Supp. 2d 952, 955 (N.D. Cal. 2011). The Rancheria argues that it has not waived its tribal sovereign immunity. The Tribe, however, argues that the Rancheria has waived its immunity from suit by participating in this action.

Although tribal sovereign immunity may be waived, or abrogated by Congress, any such waiver must be unequivocally expressed and is to be narrowly construed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (a waiver of tribal sovereign immunity "cannot be implied but must be unequivocally expressed") (quoting United States v. Testan, 424 U.S. 392, 399 (1976)); accord, C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418 (2001) ("To abrogate tribal immunity, Congress must unequivocally express that purpose.") (citing United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981); Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 419 (9th Cir. 1989) ("[T]ribal sovereign immunity remains intact unless surrendered in express and unequivocal terms.").

The requirement that the waiver of sovereign immunity be "unequivocally expressed" is not a "requirement that may be flexibly applied or even disregarded based on the parties or the specific facts involved." Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1267 (10th Cir. 1998). "In the absence of a clearly expressed waiver by either the tribe or Congress, the Supreme Court has refused to find a waiver of tribal sovereign immunity based on policy concerns, perceived inequities arising from the assertion of immunity, or the unique context of a case." Id.

"There is a strong presumption against waiver of tribal sovereign immunity." Demontiney v. U.S. ex rel. Dept. of Interior, Bureau of Indian Affairs, 255 F.3d 801, 811 (9th Cir. 2001). "The plaintiff bears the burden of showing a waiver of tribal sovereign immunity." Hall v. Mooretown Rancheria, No. 2:12-cv-1856 LKK GGH PS, 2013 WL 2486610 *3 (E.D. Cal. June 10, 2013) (quoting Ingrassia v. Chicken Ranch Bingo and Casino, 676 F. Supp. 2d 953, 956-57 (E.D. Cal. 2009).

The Yurok Tribe argues that Resighini Rancheria has waived its sovereign immunity bytaking numerous actions inconsistent with an intent to preserve its immunity. These include an invitation to the Tribe to submit this dispute to the court as "friendly litigation," attending the initial case management conference, participating in joint efforts to develop joint summary judgment proceedings, seeking an out of court resolution through the court's mediation process, and failing to object to the entry of the case management order. The Tribe argues that it was not until the Rancheria saw the Yurok Tribe's motion for summary judgment that it sought dismissal on sovereign immunity grounds. The Tribe argues that this was a tactical decision that undermines the integrity of the judicial process, and that the Rancheria's conduct should be construed as a waiver of its immunity.

"In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, 'the party asserting subject matter jurisdiction has the burden of proving its existence,' i.e. that immunity does not bar the suit." Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (quoting Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013), cert. denied, — U.S. —, 133 S.Ct. 2829, 186 L.Ed.2d 885 (2013)). Here, the Tribe relies on two cases: Hill v. Blind Industries and Services of Maryland, 179 F.3d 754 (9th Cir. 1999.), amended on denial of reh'g, 201 F.3d 1186 (9th Cir. 1999) (sovereign waived immunity by participating in extensive pre-trial activities and waiting until the first day of trial to raise immunity defense) and In re Bliemeister, 296 F.3d 858 (9th Cir. 2002) (sovereign immunity waived by raising the defense as a tactical decision after the litigation had reached an advanced stage). Both were cited in Pistor, as illustrative of the point that "[a] defendant may . . . be found to have waived sovereign immunity if it does not invoke its immunity in a timely fashion and takes actions indicating consent to the litigation." Pistor, 791 F.3d at 111. The key questions in those cases were whether the sovereign's conduct was "incompatible with an intent to preserve [its] immunity," and whether the decision to assert it after the litigation was substantially advanced was designed to gain a tactical advantage that undermined the integrity of the judicial system and imposed substantial costs on the litigants. Hill, 179 F.3d at 758; Bliemeister, 296 F.3d at 861.

Resighini Rancheria argues that the holdings in Hill and Bliemeister are inapplicable here, as those cases addressed the waiver of Eleventh Amendment immunity by the states of Arizonaand Maryland. The court finds unnecessary to determine whether these holdings are applicable to the instant tribal sovereign immunity case because Hill and Bliemeister are readily distinguishable on the facts. In Bliemeister, the defendant did not raise an immunity defense in its answer or in its motion for summary judgment, argued the merits of the case, and then raised immunity only after listening to the court's substantive comments on the merits of the case. Bliemeister, 296 F.3d at 862. In Hill, the defendant waited until the first day of trial to invoke immunity, hedging its bet on the trial's outcome. Hill, 179 F.3d at 756. By contrast, in the present case, Resighini Rancheria asserted sovereign immunity at the first opportunity. The Rancheria asserted "Sovereign Immunity -- Lack of Personal Jurisdiction and Subject Matter Jurisdiction" as its first affirmative defense. Answer, (Doc. 14), 10:19-24. It then subsequently raised it explicitly in the Joint Case Management Statement: "Should the parties not reach an agreement as to a set of stipulated facts, the defendants intend to raise tribal sovereign immunity as a bar to this action in its entirety. In that event, the issue will be limited to whether tribal sovereign immunity bars the Court from asserting jurisdiction over the case, Defendant Resighini Tribe, and Defendant Dowd." Joint Case Management Statement, (Doc. 22) 7:26-8:2. Thus, unlike in Hill and Bliesmeister, Resighini Rancheria did not make a belated assertion of immunity so as to gain a tactical advantage. The court further finds that Resighini Rancheria invoked its immunity to suit in a timely manner by asserting sovereign immunity in both its Answer and in the Case Management Statement. The court finds, therefore, that the Yurok Tribe has failed to carry its burden under Pistor of showing that Resighini Rancheria's undisputed sovereign immunity does not bar this suit. The court must therefore conclude that the Rancheria did not waive its sovereign immunity from suit and is exempt from this action.

Defendant Gary Dowd, Official Capacity

Defendants move to dismiss the remaining Defendant, Gary Dowd, who is sued in both his official capacity as Secretary of the Resighini Rancheria and in his individual capacity. Resighini Rancheria argues that by bringing an official capacity suit against Dowd as Secretary of the Resighini Rancheria, the Yurok Tribe is in effect bringing a suit against the Rancheria. It contends that because Resighini Rancheria has not waived its sovereign immunity, the suit is barred to theextent that it is brought against Dowd in his official capacity.

Tribal sovereign immunity extends to tribal officers acting in their official capacities and within the scope of their authority. See Linneen v. Gila River Indian Community., 276 F.3d 489, 492 (9th Cir. 2002) (citing United States v. Oregon, 657 F.2d 1009, 1013 n. 8 (9th Cir.1981)). "In these cases the sovereign entity is the 'real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.'" Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 727 (9th Cir. 2008) (quoting Regents of the University of California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997)). Thus, "an official- capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985). "That is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation." Lewis v. Clarke, 137 S.Ct. 1285 (2017) (citing...