Opinion
ORDER
WILLIAM Q. HAYES, District Judge.
The matters before the Court are the following motions filed by Defendants: Motion to Dismiss Complaint (Doc. #7); Ex Parte Application Requesting Judicial Notice of Supplemental Authorities (Doc. #14); and Ex Parte Application for Request for Judicial Notice (Doc. #15).
I. Background
This action concerns tribal regulation of non-Indian fee simple land located within the boundaries of the reservation of the Rincon Band of Luiseno Mission Indians. Defendants are tribal officials sued in their individual and official capacities. (Compl. ¶ 4, Doc. #1).
On March 22, 2010, Plaintiff Marvin Donius initiated this action by filing the Complaint for Declaratory Relief and for Injunctive Relief ("Complaint"). (Doc. #1).
A. Allegations of the Complaint
In 1989, Plaintiff purchased property from Rincon Mushroom Corporation of America ("RMCA") which is located within the boundaries of the Rincon Band of Luiseno Mission Indians' reservation. Id. ¶¶ 11, 12. In 1960, the property was "allotted and conveyed out of Tribal ownership by a Bureau of Indian Affairs fee patent." Id. ¶ 10. The property is located in an open portion of the reservation across a San Diego County highway from the Harrah's Rincon Casino & Resort. Id. ¶ 12. Plaintiff is not an Indian or a member of the tribe. Id. ¶ 8. RMCA is, and was at all relevant times, a California corporation comprised entirely of non-Indian shareholders. Id.
"[A]t least four years ago, and continuing to the present date, the Rincon Tribe...and from time to time the Tribal defendants...have devised, and have attempted to implement and effectuate, a plan...to acquire...on the cheap' [Plaintiff's] five-acre parcel." Id. ¶ 14. The plan "has included various efforts by these defendants to diminish and depreciate the value of [the] subject property." Id. ¶ 15.
On March 15, 1960, the Rincon Tribe enacted Articles of Association, which state that the "Rincon Tribal Business Committee...shall have jurisdiction over the lands within the boundaries of the Rincon Reservation." Id. ¶ 19. "In...April 2007,...the Rincon Tribe enacted a Tribal Environmental Policy Ordinance that...purportedly placed under the governmental jurisdiction of the Tribe the subject parcel, on the asserted basis that the Tribe's regulatory authority extended to and included all land within the exterior boundaries of the Rincon Reservation." Id. ¶ 20 (quotations omitted). "[T]he Rincon Tribe enacted an Environmental Enforcement Code that as revised on...July 10, 2007 purported to extend tribal environmental regulatory authority over and as to [the] subject property, on the basis of the Tribe's claim of such authority over all lands within the exterior boundaries of the Rincon Indian Reservation." Id. ¶ 21 (quotations omitted). "On...September 30, 2008, these defendants caused the Rincon Tribe to enact a Tribal Court Jurisdiction Ordinance that purported to claim regulatory as well as in personam and subject matter adjudicative jurisdiction over non-tribal member [RMCA], non-tribal member Donius, and as to subject non-tribal fee property,...and also purports to extend the Tribe's Territorial Jurisdiction over any fee lands within the external boundaries of the Rincon Reservation...." Id. ¶ 22 (quotations omitted).
The first cause of action of the Complaint seeks a judicial declaration that "any prospective or future actual or attempted enforcement by these defendants of" the above-referenced Articles of Association, Tribal Environmental Policy Ordinance, Environmental Enforcement Code, and Tribal Court Jurisdiction Ordinance is "facially unconstitutional, unconstitutional as applied, and/or illegal, and/or entirely unenforceable, pursuant to applicable provisions of federal and California law, both with respect to plaintiff as well as concerning subject property." Id. ¶ 23(a). "[P]laintiff contends that this Court should find, declare and adjudge that neither the Rincon Tribe nor the above-named Tribal defendants presently have, nor in the future could as a matter of law have, any regulatory or adjudicative authority of any nature whatever over or as to plaintiff and/or over or as to subject property...." Id. ¶ 23(d).
The second cause of action of the Complaint seeks the issuance of "a permanent injunction requiring and ordering that the above-named Tribal defendants desist and refrain from any further actual or attempted enforcement, prospectively and in the future, of any and all purported Rincon Tribe regulatory or adjudicative authority over or as to plaintiff and/or over or as to subject property." Id. ¶ 29. The Complaint does not seek monetary relief.
B. Procedural History
On March 14, 2010, Defendants filed the Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(7). (Doc. #7). On May 14, 2010 and September 1, 2010, Defendants filed evidence in support of the Motion to Dismiss. (Doc. # 7-9, 14-18). On June 7, 2010, Plaintiff filed evidence in opposition to the Motion to Dismiss. (Doc. #10).
II. Motion to Dismiss
Defendants' Motion to Dismiss is brought pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction), 12(b)(2) (lack of personal jurisdiction), and 12(b)(7) (failure to join a party under Rule 19). (Doc. #7). A Rule 12(b)(1) motion asserting lack of subject matter jurisdiction may be either a facial attack on the sufficiency of the pleadings or a factual attack on the basis for a court's jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "The court need not presume the truthfulness of the plaintiff's allegations." Id. (citing White, 227 F.3d at 1242). However, "[j]urisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action." Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983).
Motions pursuant to Federal Rule of Civil Procedure 12(b)(2) challenge personal jurisdiction. "When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction over the defendant." Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). A plaintiff must "make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Id. "[U]ncontroverted allegations in plaintiff's complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in plaintiff's favor." Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010).
A. Sovereign Immunity
Defendants contend "tribal sovereign immunity bars Plaintiff's claims against tribal Defendants because plaintiff seeks relief against the Tribe." (Doc. #7-1 at 11). Plaintiff contends that Defendants are not entitled to assert tribal sovereign immunity because the Tribe lacks regulatory jurisdiction over the land at issue, so all attempts to regulate the land exceed the scope of tribal authority. Plaintiff contends that the allegations of the Complaint that Defendants acted "under an authority not validly conferred" defeats sovereign immunity. (Doc. #10 at 4-5).
"Non-Indians may bring a federal common law cause of action under 28 U.S.C. § 1331 to challenge tribal [] jurisdiction." Elliot v. White Mountain Apache Tribal Court, 566 F.3d 842, 846 (9th Cir. 2009). "Under the doctrine of Ex Parte Young, immunity does not extend to [tribal] officials acting pursuant to an allegedly unconstitutional statute." Burlington Northern & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir. 2007) (citing Ex Parte Young, 209 U.S. 123, 155-56 (1908)). "In determining whether Ex Parte Young is applicable to overcome the tribal officials' claim of immunity, the relevant inquiry is only whether [plaintiff] has alleged an ongoing violation of federal law and seeks prospective relief." Id. (citation omitted).
Plaintiff has adequately alleged that Defendants were acting pursuant to an invalid tribal ordinance which exceeds the scope of the Tribe's regulatory jurisdiction. The Complaint seeks prospective relief. Accordingly, Defendants' motion to dismiss the Complaint based on sovereign immunity is denied. See id. ; see also Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 (9th Cir. 1991) ("[T]ribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law."), overruled on other grounds by Big Horn County Elec. Coop., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000).
B. Exhaustion of Tribal Remedies
1. Contentions of the Parties
Defendants contend that Plaintiff was required to exhaust available tribal remedies before filing a federal court claim. (Doc. #7-1 at 21-25). Defendants contend that "[t]he Tribe [has] colorable jurisdiction to regulate Plaintiff's conduct under the Second Montana Exception. Plaintiff's unregulated land use activities on his property pose fire and water contamination hazards that are demonstrably serious threats to the Tribe's political integrity, economic security, or health or welfare." (Doc. #12 at 1).
Plaintiff contends that exhaustion is not required because it is clear that the Tribal Court lacks jurisdiction. Plaintiff contends that "Montana Exception Two as properly construed totally proscribes the exertion of any and all regulatory and/or adjudicative authority by the Rincon Tribe and/or by defendants as to plaintiff and his property." (Doc. #10 at 21).
2. Montana 's Second Exception
Tribal governments have been divested of sovereignty over "relations between an Indian tribe and nonmembers of the tribe." Montana v. United States, 450 U.S. 544, 564 (1981) (quotation omitted). Tribal governments have no jurisdiction over non-members "beyond what is necessary to protect tribal self-government or to control internal relations." Id. Tribes have some authority to regulate nonmembers on tribal lands, but as a general rule, tribes may not regulate nonmembers on non-Indian land within the boundaries of the reservation. Id. at 564-65. There are two exceptions to that general rule; only the second exception is at issue in this case: "a tribe may exercise civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.'" Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S.Ct. 2709, 2720 (2008) (quoting Montana, 450 U.S. at 565). This exception is "limited," and "cannot be construed in a manner that would swallow the rule or severely shrink it." Id. (quotations omitted). The conduct at issue "must do more than injure the tribe, it must imperil the subsistence of the tribal community." Id. at 2726 (quotation omitted). "The burden rests on the tribe to establish one of the exceptions to Montana 's general rule that would allow an extension of tribal authority to regulate nonmembers on non-Indian fee land." Id. at 2720.
3. Exhaustion
There is a general rule that if a non-Indian defendant is haled into a tribal court and asserts that the tribal court lacks jurisdiction, the defendant must exhaust tribal remedies before seeking to enjoin the tribal proceeding in federal court. See Nat'l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985). Even when there is no pending proceeding in tribal court, a nonmember plaintiff may not sue in federal court asserting that the tribe lacks regulatory authority over nonmember actions taken on non-Indian land within a reservation without exhausting tribal court remedies. See Burlington N. v. Crow Tribal Council, 940 F.3d 1239, 1246 (9th Cir. 1991); see also Sharber v. Spirit Mountain Gaming, 343 F.3d 974, 976 (9th Cir. 2003) ("The absence of any ongoing litigation over the same matter in tribal courts does not defeat the tribal exhaustion requirement."). "Exhaustion is prudential; it is required as a matter of comity, not as a jurisdictional prerequisite." Boozer v. Wilder, 381 F.3d 931, 935 (9th Cir. 2004).
Plaintiff contends that "the Strate exception makes inapplicable the usual tribal court exhaustion doctrine." (Doc. #10 at 26). The "Strate exception" provides that exhaustion is not required "[w]hen...it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana 's main rule,' so the exhaustion requirement would serve no purpose other than delay.'" Nevada v. Hicks, 533 U.S. 353, 369 (2001) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 459-60, n.14 (1997)). When determining "whether it is plain that the tribal court lacks jurisdiction," a court considers whether "jurisdiction is colorable or plausible." Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 848 (9th Cir. 2009) ("If jurisdiction is colorable or plausible, then the exception does not apply and exhaustion of tribal court remedies is required.") (quotations omitted).
There is a second exception to the exhaustion requirement, which applies "when an assertion of tribal court jurisdiction is motivated by a desire to harass or is conducted in bad faith.'" Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009) (quoting Nevada, 533 U.S. at 369). In opposition to the Motion to Dismiss, Plaintiff has not contended that this exception is applicable, although Plaintiff's Complaint alleges that Defendants "have attempted to implement and effectuate, a plan...to acquire...on the cheap' [Plaintiff's] five-acre parcel" (Doc. #1 ¶ 14). Even if Plaintiff had properly raised the argument in opposition to the Motion to Dismiss, the evidence in the record is not sufficient to "prove[] that enforcement of the statutory scheme was the product of bad faith conduct or was perpetuated with a motive to harass." A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1417 (9th Cir. 1986) ("This exception to the exhaustion requirement... may not be utilized unless it is alleged and proved that enforcement of the statutory scheme was the product of bad faith conduct or was perpetuated with a motive to harass. No such proof appears in the record."); see also Elliott, 566 F.3d at 847 (exception inapplicable because "there is no evidence of bad faith or harassment in the record").
The Court of Appeals for the Ninth Circuit has held that "threats to water rights may invoke inherent tribal authority over non-Indians" pursuant to Montana 's second exception. Montana v. U.S. Envtl. Prot. Agency, 137 F.3d 1135, 1141 (9th Cir. 1998) ("Montana II "). "A tribe retains the inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the health and welfare of the tribe. This includes conduct that involves the tribe's water rights." Id. (quotation omitted). Similarly, tribes have a "strong interest" in "prevention of forest fires, and preservation of its natural resources" which could plausibly support tribal court jurisdiction pursuant to Montana 's second exception. Elliott, 566 F.3d at 850; cf. id. ("[E]ven if we applied the two Montana exceptions without regard to the Supreme Court's instruction that ownership of the land may be dispositive in some cases, we reach the same conclusion: In the circumstances of this case, we cannot say that the tribal court plainly lacks jurisdiction.") (holding that it is not plain that a tribal court lacked jurisdiction over a nonmember for violating tribal regulations which prohibit setting a fire without a permit on tribal land).
Defendants have submitted evidence indicating that conduct on Plaintiff's property "pose[] inherent threats to the shallow, unconfined aquifer which is the sole water source for the Tribe's water system and Tribal member groundwater wells." (Minjares Decl. ¶ 28, Doc. #8-1). Defendants also have submitted evidence that "[c]onditions on the Subject Property during the [2007] Poomacha Fire contributed to the spread of wildfire from that property to Tribal lands across the street on which the Casino is located." (Mazzetti Decl. ¶ 12, Doc. #9; see also Allen Decl. ¶ 17, Doc. #8). Although Plaintiff disputes this evidence, Defendants have shown that conduct on Plaintiff's property plausibly could threaten the Tribe's groundwater resources and could contribute to the spread of wildfires on the reservation. This showing is sufficient to require exhaustion, given the relief requested by the Complaint.
In the first cause of action, Plaintiff requests that the Court "declare and adjudge that neither the Rincon Tribe nor the above-named Tribal defendants presently have, nor in the future could as a matter of law have, any regulatory or adjudicative authority of any nature whatever over or as to plaintiff and/or over or as to subject property." (Doc. #1 ¶ 23(d)). The second cause of action seeks the issuance of "a permanent injunction requiring and ordering that the above-named Tribal defendants desist and refrain from any further actual or attempted enforcement, prospectively and in the future, of any and all purported Rincon Tribe regulatory or adjudicative authority over or as to plaintiff and/or over or as to subject property." Id. ¶ 29. The declaratory and injunctive relief requested make no exception for "conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, 450 U.S. at 565.
Given the breadth of the declaratory and injunctive relief requested by Plaintiff, there is a "colorable or plausible" claim to tribal regulatory and tribal court jurisdiction pursuant to Montana 's second exception. Elliott, 566 F.3d at 848; cf. Montana II, 137 F.3d at 1141. Although Montana 's second exception should not "be construed in a manner that would swallow the rule or severely shrink it," Plains Commerce Bank, 128 S.Ct. at 2720, neither should it be construed in a manner that would eliminate the exception entirely. Because tribal court jurisdiction is plausible, "principles of comity require [federal courts] to give the tribal courts a full opportunity to determine their own jurisdiction in the first instance." Elliott, 566 F.3d at 850-51. The Court concludes that Plaintiff must exhaust tribal remedies prior to asserting his claims in this Court.
The Court has the discretion to dismiss or stay this action while Plaintiff exhausts his tribal court remedies. See Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 2008) ("As a matter of discretion, a district court may either dismiss a case or stay the action while a tribal court handles the matter.") (citing Nat'l Farmers, 471 U.S. at 857). Plaintiff has not asserted that the statute of limitations would bar Plaintiff from asserting his claims in a later-filed action post-exhaustion. Cf. Sharber, 343 F.3d at 976 ("[D]ismissal might mean that [plaintiff] would later be barred permanently from asserting his claims in the federal forum by the running of the applicable statute of limitations. Under the circumstances, the district court should have stayed, not dismissed, the federal action pending the exhaustion of tribal remedies."). Defendants' attempts to assert regulatory jurisdiction over Plaintiff and the property at issue are ongoing, and Plaintiff requests only prospective relief in the Complaint.
RCMA has filed an essentially identical Complaint against the same Defendants in another action pending before this Court, Rincon Mushroom Corporation of America v. Mazzetti, S.D. Cal. Case No. 09cv2330-WQH-POR. In RCMA action, issues have been raised concerning RCMA's standing. If the Court dismisses each action, Plaintiff and RCMA (who are represented by the same counsel) will have the opportunity to refile any claims which remain after exhaustion in a single action, which potentially would eliminate any doubt regarding standing and would better conserve judicial resources. The Court finds that this weighs in favor of dismissal.
The Court takes judicial notice of the civil complaint filed against Plaintiff and RCMA in the Intertribal Court of Southern California by the Rincon Tribe on July 30, 2010. (Doc. # 15-1, Ex. A). The complaint pending in Tribal Court raises issues related to the claims in Plaintiff's Complaint in this action. The fact that there is a pending proceeding in Tribal Court weighs in favor of dismissal of this action. See Atwood, 513 F.3d at 948 ("Because the parties do not dispute that the...issue is still pending before the Tribal Court, the district court properly exercised its discretion and dismissed this case due to Plaintiff's failure to exhaust tribal court remedies.").
The Court concludes that this action should be dismissed due to Plaintiff's failure to exhaust tribal remedies.
IV. Conclusion
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss for failure to exhaust tribal remedies is GRANTED. (Doc. #7). Except as discussed above, the Court does not reach the other issues raised by the Motion to Dismiss.
The Ex Parte Application Requesting Judicial Notice of Supplemental Authorities (Doc. #14) and Ex Parte Application for Request for Judicial Notice (Doc. #15) are GRANTED.
The Clerk of the Court shall close this case.