attorneys for plaintiff, the yurok tribe · 2018. 1. 29. · v. resighini rancheria and gary mitch...

Case No. 16-cv-02471-NJV

PLAINTIFF’S MEMO IN OPPOSITION TO DEFENDANTS’MOTION TO DISMISS

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Scott W. Williams (CA Bar No. 097966) Curtis G. Berkey (CA Bar No. 195485) BERKEY WILLIAMS LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 Tel: (510) 548-7070 Fax: (510) 548-7080 E-mail: [email protected] E-mail: [email protected] Cheyenne Sanders (CA Bar No. 307359) Yurok Tribe Office of Tribal Attorney P.O. Box 1027 Klamath, CA 95548 Tel: (707) 482-1350 Fax: (707) 482-1377 E-mail: [email protected] Attorneys for Plaintiff, the Yurok Tribe

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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

No.: 16-cv-02471-NJV PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS DATE: November 14, 2017 TIME: 10:00 a.m. DEPT: McKinleyville Federal Courthouse HON. NANDOR J. VADAS

Case 1:16-cv-02471-RMI Document 51 Filed 10/27/17 of 23

i Case No. 16-cv-02471-NJV


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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................1 ISSUES TO BE DECIDED .........................................................................................................1 STATEMENT OF RELEVANT FACTS ....................................................................................2 ARGUMENT ..............................................................................................................................3 I. Standard of Review ..............................................................................................3 II. This Court Has Subject Matter Jurisdiction over the Rancheria

Because It Has Waived Its Immunity from Suit by Participating in this Action ........................................................................................................4 III. This Court Has Subject Matter Jurisdiction over Defendant Dowd in Both His Official and Individual Capacities ....................................................6 IV. Rule 19 Does Not Compel Dismissal of This Action ..........................................9 A. The Resighini Rancheria is Not a Required Party .................................10 1. Complete Relief Can be Accorded Among the Existing Parties ..........................................................................10 2. No Interest of the Rancheria is at Risk if the Claim Against Dowd is Adjudicated in its Absence ............................11 3. Neither the Yurok Tribe nor Dowd Will Incur Any Risk of Inconsistent Obligations if Their Dispute is Resolved Without Joining the Rancheria ...................................13 B. The Resighini Rancheria is Not an Indispensable Party ........................14 1. The Rancheria Will Not Be Prejudiced if This Case Goes Forward in Its Absence .....................................................14 2. There is No Need to Shape a Judgment Against Dowd to Lessen Prejudice to the Rancheria ..............................16 3. A Judgment Against Defendant Dowd Will be Adequate in the Absence of the Rancheria ................................16 4. The Yurok Tribe Would Not Have an Adequate Remedy if This Case is Dismissed .............................................17 CONCLUSION ..........................................................................................................................18


ii Case No. 16-cv-02471-NJV


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TABLE OF AUTHORITIES

Page No.

CASES Amer. Greyhound Racing, Inc. v. Hull,

305 F.3d 1015 (9th Cir. 2002) .......................................................................................... 14 Ariz. Pub. Serv. Co. v. Aspaas,

77 F.3d 1128 (9th Cir. 1995) .............................................................................................. 6 Blake v. Arnett,

663 F.2d 906 (9th Cir. 1981) ............................................................................................ 17 Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty v. California,

547 F.3d 962 (9th Cir. 2008) ............................................................................................ 13 Confederated Tribes of Chehalis Indian Reservation v. Lujan,

928 F.2d 1496 (9th Cir. 1991) ............................................................................................ 9 Cook v. AVI Casino Enters.,

548 F.3d 718 (9th Cir. 2009) .............................................................................................. 7 Eldredge v. Carpenters 46 N. Cal. Ctys. Joint Apprenticeship & Training Comm.,

662 F.2d 534 (9th Cir. 1981) ............................................................................................ 10 Hardin v. White Mountain Apache Tribe,

779 F.2d 476 (9th Cir. 1985) .............................................................................................. 7 Hill v. Blind Indu. and Serv. of Md.,

179 F.3d 754 (9th Cir. 1999) .......................................................................................... 4, 5 In re Bliemeister,

296 F.3d 858 (9th Cir. 2002) .............................................................................................. 4 Johnson v. Rancho Santiago Cmty College Dist.,

623 F.3d 1011 (9th Cir. 2010) ............................................................................................ 5 Kiowa Tribe of Okla. v. Mfg. Tech., Inc.,

523 U.S. 751 (1998) ............................................................................................................ 4 Leite v. Crane Co.,

749 F.3d 1117 (9th Cir. 2014) ............................................................................................ 3


iii Case No. 16-cv-02471-NJV


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(Cont'd) Page No. Lewis v. Clarke,

137 S.Ct. 1285 (2017) ......................................................................................................... 8 Maxwell v. San Diego,

708 F.3d 1075 (9th Cir. 2013) ........................................................................................ 7, 8 Michigan v. Bay Mills Indian Community,

134 S.Ct. 2014 (2014) ......................................................................................................... 6 Natl. Audubon Soc. v. Davis,

307 F.3d 835 (9th Cir. 2002) .............................................................................................. 8 Paiute-Shoshone Indians of Bishop Cmty. of Bishop Colony, Cal. v. Los Angeles,

637 F.3d 993 (9th Cir. 2011) ............................................................................................ 14 Pistor v. Garcia,

791 F.3d 1104 (9th Cir. 2015) ................................................................................ 3, 4, 7, 8 Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102 (1968) .......................................................................................................... 16 Puyallup Indian Tribe v. Port of Tacoma,

717 F.2d 1251 (9th Cir. 1983) .......................................................................................... 11 Puyallup Tribe v. Dept. of Game.,

391 U.S. 392 (1968) .......................................................................................................... 12 Resighini Rancheria v. Bonham,

872 F.Supp.2d 964 (N.D. Cal. 2012) .................................................................................. 3 Salt River Project Agric. Improvement & Power Dist. v. Lee,

672 F.3d 1176 (9th Cir. 2012) .......................................................................................... 11 Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) .............................................................................................................. 6 Savage v. Glendale Union High Sch.,

343 F.3d 1036 (9th Cir. 2003) ............................................................................................ 3

Skokomish Indian Tribe v. Forsman, No. C16-5639 RBL, 2017 U.S. Dist. LEXIS 42730 (W.D. Wash., March 23, 2017)........................................ 13


iv Case No. 16-cv-02471-NJV


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(Cont'd) Page No. Societe de Conditionnement en Aluminum v. Hunter Eng Co., Inc.,

655 F.2d 938 (9th Cir. 1985) .............................................................................................. 3 United States ex rel Morongo Band of Mission Indians v. Rose,

34 F.3d 901 (9th Cir. 1994) .............................................................................................. 12 United States v. Bowen,

172 F.3d 682 (9th Cir. 1999) ............................................................................................ 12 United States v. San Juan Bay Marina,

239 F.3d 400 (1st Cir. 2001) ............................................................................................. 12 Wood v. City of San Diego,

678 F.3d 1075 (9th Cir. 2011) ............................................................................................ 3

STATUTES

P. L. 100-580, 102 Stat. 2924, Hoopa-Yurok Settlement Act of 1988 .................................. passim

RULES Fed. R. Civ. P. 19 ................................................................................................................... passim


1 Case No. 16-cv-02471-NJV

PLAINITFF’S MEMO IN OPPOSITION TO DEFENDANTS’MOTION TO DISMISS

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INTRODUCTION

Defendants Resighini Rancheria and Gary Dowd have moved to dismiss the Yurok

Tribe’s complaint for lack of subject matter jurisdiction, arguing that the Rancheria and Dowd

are immune from suit, and that in the absence of the Rancheria, the claims against Defendant

Dowd should be dismissed for failure to join the Rancheria as a required party under Fed. R. Civ.

P. 19 (“Rule 19”). The motion should be denied because the Rancheria has waived its immunity

by inviting and participating in this litigation, this Court has jurisdiction over Dowd as both a

tribal officer and individual, and Rule 19 does not compel dismissal of the entire action, even if

this Court finds that the Rancheria is immune from suit. Fairly balanced, the interests of the

Yurok Tribe in clarifying the legal rights of the Rancheria and Dowd regarding fishing on the

Yurok Reservation without a state license or Yurok permit, and in protecting its Klamath River

fishery against unlawful fishing, far outweigh the interests of Resighini Rancheria and Dowd in

continuing to fish without judicial clarification of the legal effect of accepting a cash payment for

relinquishing those alleged rights. Hoopa-Yurok Settlement Act of 1988 (HYSA), October 31,

1988, P. L. 100-580, 102 Stat. 2924. As a practical matter, both the Yurok Tribe and Resighini

Rancheria have strong interests in having this Court settle this dispute. Neither the doctrine of

tribal immunity nor Rule 19 compels a different result.

ISSUES TO BE DECIDED

1. Are the Yurok Tribe’s claims against the Resighini Rancheria barred by its

sovereign immunity in a suit it invited and in which it participated?

2. Are the Yurok Tribe’s claims against Gary Dowd in his official capacity and

individual capacity barred by the doctrine of tribal sovereign immunity?

3. If the claims against the Rancheria are barred by sovereign immunity, is the

Rancheria a required party under Fed. R. Civ. P. 19(a)?




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4. If the Rancheria is a required party that cannot be joined due to its immunity,

should the Yurok Tribe’s claim against Defendant Dowd be allowed to proceed in equity and

good conscience under Rule 19(b)?

STATEMENT OF RELEVANT FACTS

The relevant facts that support the Yurok Tribe’s opposition to this Motion to Dismiss

include the following: Defendant Gary Dowd has been cited numerous times for fishing illegally

on the Yurok Reservation. Declaration of Delbert Gray in Support of Plaintiffs’ Motion for

Summary Judgment ¶¶ 3-5, attached as Exhibit A. Defendant Dowd continues to fish within the

Yurok Reservation without authority from the Yurok Tribe or the State of California. Complaint

¶ 37. Dowd and Resighini Rancheria proposed submitting this fishing rights dispute to this

Court for resolution in the absence of negotiated settlement. Declaration of Scott W. Williams

¶ 2 (“Williams Declaration”), attached as Exhibit B. Counsel for the Rancheria characterized

this case as “friendly litigation” to be resolved by cross-motions for summary judgment. Id. ¶ 3.

After the Yurok Tribe filed its Complaint, the Rancheria consented to the court’s jurisdiction and

assigning the case to a United States Magistrate Judge for all purposes. Although the

Rancheria’s Answer asserted an affirmative defense of sovereign immunity, it stated in the Joint

Case Management Statement that it “may . . . agree to a limited waiver of sovereign immunity.

Id. ¶ 6. The Rancheria fully participated in the Alternative Dispute Resolution process in this

Court, which continued for several months of discussions. Id. ¶ 7. Counsel for the Rancheria

failed to appear at two Case Management Conferences, and in his absence, this Court established

a schedule for trial and Plaintiff’s motion for summary judgment. The Rancheria did not object

to the case management schedule. Id.¶ 9. The Yurok Tribe timely filed is motion for summary

judgment on September 7, 2017. The Rancheria did not file an opposition. Instead, having




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viewed the evidence in support of the Yurok Tribe’s case, on October 4, 2017, the Rancheria

filed this motion to dismiss based on sovereign immunity.

ARGUMENT

I. Standard of Review

A challenge to the court’s subject matter jurisdiction on tribal sovereign immunity

grounds is brought by motion under Fed. R. Civ. P. 12(b)(1). See Pistor v. Garcia, 791 F.3d

1104, 1110 (9th Cir. 2015) (issue of tribal sovereign immunity is quasi-jurisdictional and should

be asserted in Rule 12(b)(1) motion). Jurisdictional challenges may be facial--where the

argument is that the allegations in the complaint are insufficient on their face to show

jurisdiction-- or factual, where the challenger disputes the truth of the factual allegations on

jurisdiction through submission of extrinsic evidence. See Leite v. Crane Co., 749 F.3d 1117,

1121 (9th Cir. 2014). Under a factual attack, the allegations in the complaint are not presumed to

be true for purposes of the motion to dismiss. Wood v. City of San Diego, 678 F.3d 1075, 1083

n.2 (9th Cir. 2011). Defendants assert a facial attack on jurisdiction, so the allegations of the

Complaint should be accepted as true on this motion.

To the extent the Defendants’ motion is considered to be a factual attack on jurisdiction,

the Yurok Tribe has nonetheless met its burden to establish subject matter jurisdiction. Savage v.

Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). A plaintiff need establish

only a prima facie case of jurisdiction when only written materials are submitted in support of

the motion. Resighini Rancheria v. Bonham, 872 F.Supp.2d 964, 968 (N.D. Cal. 2012) (citing

Societe de Conditionnement en Aluminum v. Hunter Eng. Co., Inc., 655 F.2d 938, 942 (9th Cir.

1985). As demonstrated below, the Yurok Tribe has satisfied its prima facie burden to show that

the Rancheria has waived its immunity and that Defendant Dowd is not immune under applicable

legal principles.




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II. This Court Has Subject Matter Jurisdiction over the Rancheria Because It Has Waived Its Immunity From Suit By Participating in this Action.

The Yurok Tribe agrees that the Resighini Rancheria is a federally-recognized Indian

Tribe with immunity from unconsented suit; here, Resighini invited and consented to suit.

However, because tribal sovereign immunity is quasi-jurisdictional, “[i]t may be forfeited where

[the sovereign] fails to assert it . . . .” Pistor, 791 F.3d at 1111 (internal citation omitted). As an

affirmative defense, it may be waived, and the court may then take jurisdiction over the tribe.

Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 754 (1999) (“As a matter of federal law,

an Indian tribe is subject to suit only where Congress has authorized the suit, or the tribe has

waived its immunity.”) A defendant, including a sovereign Indian tribe, 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 1111.

The Ninth Circuit established the contours of the waiver-by-conduct doctrine in two

cases, Hill v. Blind Indu. and Serv. of Md., 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 waived immunity by raising the defense as

a tactical decision after the litigation had reached an advanced stage). Both were cited favorably

in Pistor, a tribal immunity case. 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.




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That standard is fully satisfied by the Rancheria’s conduct here. The Rancheria took

numerous actions inconsistent with an intent to preserve its immunity, beginning with an

invitation to the Yurok Tribe to submit this dispute to this Court as “friendly litigation” for

resolution on the merits and ending with its decision to file a motion to dismiss on immunity

grounds after reviewing the Yurok Tribe’s motion for summary judgment. Williams Decl. ¶¶ 2-

3. During that time, counsel for the Rancheria attended the initial case management conference,

participated in joint efforts to craft summary judgment proceedings, took advantage of this

Court’s mediation process to seek an out of court resolution, failed to attend two subsequent case

management conferences, failed to object to the Court’s scheduling order entered in his absence,

failed to object to entry of the case management order, and failed to file an opposition to the

Yurok Tribe’s summary judgment motion. It was not until the Rancheria saw the Yurok Tribe’s

motion for summary judgment and its evidence adduced in support of that motion, that it sought

dismissal on sovereign immunity grounds. That was a tactical decision that undermines the

integrity of the judicial process. That tactical decision imposed substantial costs on the Yurok

Tribe in preparing and filing a motion to resolve this entire case on its merits. Defendants’

intentional delay undermines the integrity of this judicial proceeding. See Johnson v. Rancho

Santiago Cmty College Dist., 623 F.3d 1011, 1022 (9th Cir. 2010) (defendant waived its

immunity by a tactical choice to delay asserting it, despite having raised immunity as a defense

in its answer to the complaint). In sum, the Yurok Tribe’s motion signaled the probable outcome

of this case, and the Rancheria, anticipating defeat, now seeks to unilaterally “void the entire

proceeding.” Hill, 179 F.3d at 757. Under these circumstances, the Rancheria’s conduct should

be construed as a waiver of its immunity. Resighini Rancheria’s motion to dismiss on the basis

of its immunity should be denied.




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III. This Court Has Subject Matter Jurisdiction over Defendant Dowd in Both His Official and Individual Capacities.

This Court has jurisdiction over Defendant Dowd in both his official or individual

capacity. First, tribal immunity does not apply to tribal officers who are alleged to have acted in

violation of federal law. And second, because the declaratory judgment claim against Dowd in

his individual capacity does not implicate the sovereign interests of the Rancheria, its immunity,

even if not waived, does not bar suit against Dowd.

The Defendants incorrectly assert that the Yurok Tribe has sued Defendant Dowd only in

his official capacity. Defs. Memo. Supp. Mot. Dismiss 6, Doc. 47, (“Defs. Memo”) (asserting

Yurok is not suing Dowd in his individual capacity but “simply because he is an officer of the

Tribe”). On the contrary, the Complaint states unequivocally that the Yurok Tribe is suing

Defendant Dowd in both his individual and official capacities, based on allegations that he has

repeatedly fished within the Yurok Reservation in violation of federal law. Compl. ¶12, Doc. 1.

This Court has jurisdiction over Defendant Dowd in both capacities.

That Dowd is sued in his official capacity does not per se make him immune from suit for

equitable relief, as Defendants wrongly argue. It is well settled that the tribal sovereign

immunity doctrine does not preclude lawsuits for prospective relief against tribal members or

officials alleged to have acted in violation of federal law. Michigan v. Bay Mills Indian

Community, 134 S.Ct. 2014, 2035 (2014) (analogizing to Ex parte Young, and noting that “tribal

immunity does not bar such a suit for injunctive relief against individuals, including tribal

officers, responsible for unlawful conduct.”) (emphasis in original); Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 59 (1978) (“As an officer of the Pueblo, petitioner . . . is not protected by

the tribe’s immunity from suit.”); Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1133-34 (9th Cir.

1995) (“Tribal sovereign immunity . . . does not bar a suit for prospective relief against tribal




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officers allegedly acting in violation of federal law.”). Rather, tribal sovereign immunity extends

to tribal officials only when the tribe, not the individual, is the “real, substantial party in

interest.” Cook v. AVI Casino Enters., 548 F.3d 718, 727 (9th Cir. 2009); see also Maxwell v.

San Diego, 708 F.3d 1078, 1088 (9th Cir. 2013) (“tribal officials are immunized from suits

brought against them because of their official capacities—that is, because the powers they

possess in those capacities enable them to grant the plaintiffs relief on behalf of the tribe.”)

(internal quotation omitted) (emphasis in original). To ensure the plaintiffs do not "circumvent

tribal immunity through a mere pleading device,” the court undertakes a remedy-focused

analysis to see whether the relief sought would operate directly against the tribe. Maxwell, 708

F.3d at 1088; see also Pistor, 791 F.3d at 1113. Applied to the Yurok Tribe’s claim against

Dowd, the Rancheria is not the real, substantial party in interest.

Yurok seeks declaratory relief against Dowd prohibiting him from fishing within the

Yurok Reservation without a permit from the Tribe or a license from the State. The Tribe brings

the claim against Dowd as an individual in order to protect its fragile fishery from unlawful,

unauthorized take of fish identified as part of the “escapement,” those that will make the journey

upriver to spawn. The equitable remedy sought does not implicate the primary reasons courts

have afforded immunity to tribal officers, either to protect the tribe’s treasury against money

damage claims, see Cook, 548 F.3d at 727, or to protect the ability of the tribe to exercise

sovereignty over its lands, see Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th

Cir. 1985) (officers entitled to sovereign immunity where denying it would hold tribal council

responsible for legislative actions fully within the tribe’s powers). Yurok’s claim against Dowd

does not seek money damages that, if successful, the Rancheria would have to pay, nor does a

declaration that Dowd has been fishing on the Yurok Reservation in violation of federal law

threaten in any way the sovereign powers of the Rancheria. Thus, the Rancheria is not the real




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party in interest to Yurok’s claims against Dowd; rather, Dowd is. See Pistor, 791 F.3d at 112-13

(no immunity for officials “[s]o long as any remedy will operate against the officers individually,

and not against the sovereign.”) (internal quotations omitted); see also, Maxwell, 708 F.3d at

1088 (tribal employees not entitled to immunity because the damages remedy would be satisfied

not from tribal funds but from individual employee assets).1

This Court also has jurisdiction over Dowd in his individual capacity. The Supreme

Court has held that when the remedy does not operate against the sovereign, “[o]fficers sued in

their personal capacity come to court as individuals and the real party in interest is the individual,

not the sovereign.” Lewis v. Clarke, 137 S.Ct. 1285, 1291 (2017) (internal quotations omitted).

Thus, sovereign immunity “does not erect a barrier against suits to impose individual and

personal liability.” Id.; see also, Maxwell, 708 F.3d at 1088 (“[I]ndividual capacity suits related

to an officer's official duties are generally permissible”). Because the Yurok Tribe’s Complaint

seeks to hold Defendant Dowd personally accountable for fishing in violation of federal law, the

Rancheria’s immunity does not extend to him and this Court may hear that claim. The personal

capacity suit against Dowd does not demand that he take or refrain from any action on behalf of

the Rancheria. It simply asks this Court to declare that Dowd has been fishing in violation of

federal law. Thus, the Rancheria’s immunity cannot be imputed to Dowd for a personal capacity

suit.

1 Defendants’ argument that Ex parte Young does not authorize an officer suit against Dowd because he lacks authority to enforce a prohibition on fishing by Rancheria members on the Yurok Reservation is unavailing. Defs. Memo. 7, n. 1. That is not the question raised by the official capacity suit against Dowd. Rather, the question is whether Dowd has the requisite connection to the federal law alleged to have been violated. Natl. Audubon Soc. v. Davis, 307 F.3d 835, 846-47 (9th Cir. 2002). By alleging that Dowd is fishing in violation of the HYSA, the Yurok Tribe has shown that connection.




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Equitable relief against Dowd would protect a significant interest of the Yurok Tribe in

its fishery. Dowd has been cited numerous times for fishing illegally within the Yurok’s fishery

and appears to be the principal offender from the Rancheria. Gray Decl. ¶¶ 3-5 (attesting to three

seizures of gills nets and notices to appear in Yurok Tribal Court). A declaration from this Court

that Dowd may not fish on the Yurok Reservation without a State license or Yurok authorization

would promote the Yurok Tribe’s ability to protect and regulate the fishing harvest and meet its

fishery restoration and conservation needs.

IV. Rule 19 Does Not Compel Dismissal of This Action.

The Rancheria, on the eve of a decision on the merits in this proceeding, asserted its

immunity; and the Yurok Tribe argues that in consequence, it has waived that immunity.

However, even if the court finds that the Rancheria is immune from suit, it is not a required or

indispensable party and Rule 19 does not compel dismissal of the action against Defendant

Dowd. In fact, the action may proceed against the individual defendant, Dowd.

Under Rule 19, the court first determines whether the absent party is required to be

joined, and if a required party cannot be joined, then the court determines whether the party is

indispensable so that in equity and good conscience the case should be dismissed. Confederated

Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991). Because

the Yurok Tribe’s claims against the Rancheria, including claims that might implicate Rancheria

fishing rights, will not be adjudicated if the Rancheria is not a party, the Rancheria would no

longer have a cognizable interest in this case, much less an interest that might be impaired by the

adjudication of the Yurok Tribe’s claim against Defendant Dowd. As a result, the Rancheria is

not a required party within the meaning of Rule 19(a), and this case may proceed in its absence.

If this Court were to find nonetheless that the Rancheria is a required party, it is not

indispensable to the adjudication of the claim against Defendant Dowd, because the Rancheria




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has no interest that would be prejudiced by such adjudication and a judgment against only

Defendant Dowd would be adequate under Rule 19(b).

A. The Resighini Rancheria is Not a Required Party.

An absent party is required to be joined if: 1) complete relief cannot be accorded among

existing parties; or 2) the absent party claims a legally protectable interest that would either be

impaired by adjudication of the case in its absence, or would leave the existing parties subject to

multiple or otherwise inconsistent obligations. Fed. R. Civ. P. 19(a). Because the Defendants

have not met their burden to satisfy either of these requirements, their argument for dismissal

under Rule 19 should be rejected.

1. Complete Relief Can be Accorded Among the Existing Parties

If the Rancheria cannot be jointed, the sole remaining claim is that Defendant Dowd, by

taking the cash buy-out under the HYSA, relinquished any claim to fishing rights in the Yurok

Reservation, including in the Klamath River that traverses the Reservation. It is apparent from

the face of the Complaint that this Court may grant complete relief to the Yurok Tribe on its

claim against Defendant Dowd in the absence of the Rancheria. Fed. R. Civ. P. 19(a)(1)(A).

This analysis focuses on relief between existing parties, rather than on the scope of relief

between an existing party and an absent party. Eldredge v. Carpenters 46 N. Cal. Ctys. Joint

Apprenticeship & Training Comm., 662 F.2d 534, 537 (9th Cir. 1981) (Rule 19(a) is concerned

only with “relief as between the persons already parties, not as between a party and the absent

person whose joinder is sought.”)

Joinder of the Rancheria is not necessary to answer the principal question raised by the

Yurok Tribe’s claims against Defendant Dowd: What is the legal effect under the HYSA of

Dowd’s acceptance of the cash buy-out? As between Dowd and the Yurok Tribe, this Court can

accord complete relief. The Defendants acknowledge as much by admitting that the Rancheria is




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not asserting an interest in Dowd’s right to fish as an individual: “[T]he Tribe’s federally

reserved right to fish is a Tribal property right and not an individual Indian right.” Defs. Mem. 9.

To the extent Defendants may argue that the Rancheria’s presence is required because a

judgment against Dowd would not preclude other Rancheria members who took the buy-out

from asserting fishing rights, the Ninth Circuit rejected a similar argument in Salt River Project

Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1180 (9th Cir. 2012). In that case, the

Ninth Circuit held that the fact that non-party Navajo Nation officials may subsequently seek to

enforce a tribal employment preference at issue in the case, did not mean that complete relief

against named defendant tribal officials could not be accorded, because “[i]f in the future the

plaintiffs believe that other [Navajo] officials are acting in violation of federal law, they may

bring another action against those officials.” Similarly, if other Rancheria members assert

fishing rights in the face of a declaratory judgment against Dowd, the Yurok Tribe may and will

bring new actions against them to protect its fishery. As a result, complete relief can be accorded

to the Yurok Tribe in the absence of the Rancheria.

2. No Interest of the Rancheria is at Risk if the Claim Against Dowd is Adjudicated in its Absence.

The Defendants cannot satisfy the criteria in Rule 19(a)(1)(B)(i) that proceeding without

joining the Rancheria will impair its ability to protect a legally protected interest. The Ninth

Circuit has directed that courts focus this analysis on the “practical ramifications of joinder

versus nonjoinder.” Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251, 1255 (9th Cir.

1983). Proceeding with adjudication of the claim against Dowd will have no effect, practical or

otherwise, on the interests of the Rancheria because it will remain free to assert any claims it has

in another action. No interest it may have in a tribal fishing right as property protected by

federal law will be impaired, regardless of the outcome of the claim against Dowd. The question




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of whether the Rancheria gave up its alleged fishing rights by refusing to merge with the Yurok

Tribe is separate and distinct from the question of whether an individual, Dowd, gave up his

fishing rights by accepting the buy-out. Only the latter question will be addressed if this case

goes forward without joinder of the Rancheria. See, e.g, Puyallup Tribe v. Dept. of Game., 391

U.S. 392 (1968) (distinguishing between a tribal “communal fishing right” and the fishing rights

of individual tribal members, and holding that such individuals are not immune from state

court’s authority to adjudicate their rights as they were fishing outside the tribe’s reservation).

Moreover, courts have uniformly held that an absent party is not a required party where it

is aware of the litigation and chooses not to intervene. See United States v. Bowen, 172 F.3d

682, 689 (9th Cir. 1999) (citing cases holding that the absent party’s interest is not impaired

where it knew of the litigation and chose not to claim an interest). The Rancheria is in an

analogous posture here. It agreed with the Yurok Tribe that the merits of the dispute and the

nature and scope of the Rancheria’s fishing rights on the Yurok Reservation should be submitted

to the federal court for resolution. Williams Decl.¶ 2. Having seen the Yurok Tribe’s motion for

summary judgment, the Rancheria belatedly invoked its immunity from suit, which is tantamount

to refusing to intervene to assert an interest in the litigation. The Rancheria’s decision not to

participate in this litigation shows that “it does not deem its own interests substantially

threatened by this litigation.” United States v. San Juan Bay Marina, 239 F.3d 400, 406 (1st Cir.

2001); see also, United States ex rel Morongo Band of Mission Indians v. Rose, 34 F.3d 901, 908

(9th Cir. 1994) (concluding that defendant was not a necessary party because his voluntary

dismissal indicated he did not have an interest sufficient to remain a party to the action). Thus,

the allegedly legally protected interests of the Rancheria are not at risk if the claim against Dowd

proceeds without the Rancheria.




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3. Neither the Yurok Tribe nor Dowd Will Incur Any Risk of Inconsistent Obligations if Their Dispute is Resolved Without Joining the Rancheria.

The Defendants cannot satisfy the final criteria in Rule 19(a)(1)(B)(ii) that the disposition

of the case in the Rancheria’s absence might subject the Yurok Tribe and Dowd to “double,

multiple, or otherwise inconsistent obligations by reason of [the Rancheria’s] claimed interest.”

The Ninth Circuit has explained this criteria in these terms:

[I]nconsistent obligations are not . . . the same as inconsistent adjudications or results. Inconsistent obligations occur when a party is unable to comply with one court’s order without breaching another court’s order concerning the same incident. Inconsistent adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum

Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty v. California, 547 F.3d 962, 976

(9th Cir. 2008) (internal quotations and citations omitted). The question of whether tribal court

orders based on tribal law should be considered in this analysis is unresolved. Although the

Yurok Tribe has sought to enforce in Yurok Tribal Court the Yurok Fishing Ordinance against

Defendant Dowd, the disposition of those cases does not create a risk that Dowd would be

subject to inconsistent obligations, because, as alleged in the Complaint, Dowd continues to fish

within the Yurok Reservation under his claimed fishing right. Pls. Compl. ¶ 37. This Court’s

determination of the effect of the cash-buy out on those alleged rights will not address the same

incidents addressed by the Yurok Tribal Court. Thus, there is no substantial risk of Dowd

incurring inconsistent obligations from the disposition of this action.

For these reasons, the Rancheria is not a required party. The unreported case on which

Defendants chiefly rely, Skokomish Indian Tribe v. Forsman, No. C16-5639 RBL, 2017 U.S.

Dist. LEXIS 42730 (W.D. Wash., March 23, 2017) does not support a different conclusion. In

that case, the question was whether four absent tribes holding hunting rights under the Treaty of

Point No Point in Washington were required parties in an action by one of the signatory tribes to




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establish the legal principle that its hunting right was the “primary right” among the signatory

tribes. Because the absent tribes plainly had hunting rights under the Treaty, the court found that

a declaratory judgment for the plaintiff would impact the absent signatory tribes. Here, by

contrast, a declaration that Defendant Dowd relinquished his alleged fishing rights by accepting

the cash buy-out under the HYSA would not impact any claimed interests of the Resighini

Rancheria.

B. The Resighini Rancheria is Not an Indispensable Party.

If this Court finds that the Rancheria is a required party, this action should nonetheless be

allowed to proceed, because the Rancheria does not meet the criteria for an indispensable party

under Rule 19(b). Proper balancing of the Rule 19(b) factors does not favor dismissal even if

this Court finds the Rancheria has not waived its immunity.

Rule 19(b) requires the court to determine whether in “equity and good conscience” the

action should proceed in the absence of the Rancheria. Fed. R. Civ. P. 19(b). That analysis

should be a “practical examination of [the] circumstances,” rather than a rigid application of the

Rule 19(b) factors. Paiute-Shoshone Indians of Bishop Cmty. of Bishop Colony, Cal. v. Los

Angeles, 637 F.3d 993, 1000 (9th Cir. 2011). Rule 19(b) lists four factors relevant to the equity

and good conscience determination: 1) prejudice to the absent party from the judgment; 2) the

feasibility of protective provisions to lessen such prejudice; 3) the adequacy of the judgment in

the absence of the party; and 4) the adequacy of the plaintiff’s remedy if the action is dismissed

for nonjoinder. Under the facts of this case, none of these factors weigh in favor of dismissal.

1. The Rancheria Will Not Be Prejudiced if This Case Goes Forward in Its Absence.

This inquiry is essentially the same test to determine whether the absent party has an

interest sufficiently at risk to require joinder under Rule 19(a)(1)(B)(i). Amer. Greyhound




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Racing, Inc. v. Hull, 305 F.3d 1015, 1024-25 (9th Cir. 2002) (“Not surprisingly, the first factor of

prejudice, insofar as it focuses on the absent party, largely duplicates the consideration that

makes a party necessary under Rule 19(a): a protectable interest that will be impaired or

impeded by the party’s absence.”) As noted, because the claims against the Rancheria will not

be adjudicated if the Rancheria is not joined, it will not be bound by the decision or judgment of

this Court as to the claim against Defendant Dowd. Similarly, a judgment against Dowd, an

individual, could not be enforced against the Rancheria. There can be no prejudice to the

interests of the Rancheria as it may assert its fishing rights in future actions, or defend those

rights if sued by the Yurok Tribe for unlawfully fishing within the Yurok Reservation. The legal

and factual questions raised in the Yurok Tribe’s claim against the Rancheria will not be

addressed in its claim against the individual defendant, Dowd. A judgment that Dowd

relinquished his individual fishing rights by accepting the buy-out under the HYSA would have

no effect on the claims of the Rancheria that it holds fishing rights in its tribal capacity. As a

result, this factor weighs against dismissal.

The Rancheria has identified no prejudice to its interest that would result from disposition

of the Yurok Tribe’s claims against Defendant Dowd. It asserts that a “decision eliminating the

Tribe’s fishing right or subjecting the Tribe’s fishing right to Yurok regulation would have

devastating effects on the Tribe’s sovereign authority. . . .” But if the Rancheria is not a party,

those issues will not be litigated, and no harm could result from this Court’s ruling. The focus of

Rule 19(b) is properly on alleged prejudice deriving from the adjudication of the claims against

the other parties. The Rancheria has identified no such prejudice, and there is none.

/// ///




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2. There is No Need to Shape a Judgment Against Dowd to Lessen Prejudice to the Rancheria.

Because the Rancheria will not be prejudiced by the disposition of the Yurok Tribe’s

claims against Defendant Dowd, it is not necessary to consider provisions in the judgment or to

shape the relief to avoid or lessen any prejudice.

3. A Judgment Against Defendant Dowd Will be Adequate in the Absence of the Rancheria.

This factor does not focus exclusively on the adequacy of the judgment from the

plaintiff’s perspective, although it is significant that as between Dowd and the Yurok Tribe, a

judgment finding that Dowd gave up his fishing rights by taking the buy-out would adequately

resolve all of the issues and disputes between those parties. The Supreme Court has directed that

this factor also requires consideration of “the interests of the courts and the public in complete,

consistent and efficient settlement of controversies.” Provident Tradesmens Bank & Trust Co. v.

Patterson, 390 U.S. 102, 111 (1968). In this context, adequacy means the “public stake in

settling disputes by wholes, whenever possible. . . .” Id. This standard is met as well.

The gravamen of the Yurok Tribe’s complaint is that unlawful fishing in the Klamath

River within the Tribe’s Reservation by individuals without a State license or authorization from

the Yurok Tribe has depleted the fishery and jeopardized the long-term sustainability of a

resource on which the Tribe depends for subsistence and cultural identity. See Pls. Compl. ¶ 52

(“Unlawful fishing by Defendant Rancheria members and Defendant Dowd cause long-term,

lasting, and adverse impacts to Klamath River fish species. Their actions deplete the stock of

fish that would otherwise spawn and increase the risks to the future survival of the Klamath

River fishery. The conservation of the species is threatened by their unlawful fishing.”); ¶ 58

(“Persons, such as Defendant Rancheria members and Dowd, who fish within the Yurok

Reservation without the authority of the Yurok Tribe and without a license from the State of




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California, take fish that are part of the escapement allocation to ensure sufficient salmon spawn

to conserve the species.”) The controversy generated by this unlawful fishing would be

efficiently and completely resolved by a judgment in favor of the Yurok Tribe that Defendant

Dowd relinquished his claimed fishing rights by accepting the cash buy-out under the HYSA.

Congress offered in the HYSA a choice to either continue to assert fishing rights or to relinquish

them for money. Congress clearly stated its intent that accepting the buy-out would conclusively

and finally resolve the question of the fishing rights of the Rancheria members. A judgment

confirming that legal effect of the HYSA would plainly be adequate to resolve that fundamental

question as between the Yurok Tribe and the individual fisher, Dowd.

4. The Yurok Tribe Would Not Have an Adequate Remedy if This Case is Dismissed.

Dismissal of this action would leave the Yurok Tribe with no effective remedy to address

the problem of unlawful fishing by individuals such as Dowd within its Reservation. In fact,

dismissal would signal to Dowd that he and possibly other Rancheria members could fish off the

Resighini Rancheria and within the Yurok Reservation without legal consequence. Because

Defendant Dowd has continued to fish despite numerous citations from the Yurok Tribe, as a

practical matter, the Yurok Tribal Court is not available as an effective remedy. It is no answer

to this result to say that the Rancheria’s sovereign immunity outweighs entirely the Yurok

Tribe’s interest in having a forum to resolve its dispute with Rancheria members. The Yurok

Tribe’s interest in protecting its Klamath River fishery on its reservation is as compelling as the

Rancheria’s immunity, because, as the Ninth Circuit has observed, that fishery is “not much less

necessary to the existence of the [Yurok] Indians than the atmosphere they breathed.” Blake v.

Arnett, 663 F.2d 906, 909 (9th Cir. 1981) (internal citation omitted). This factor weighs against

dismissal.




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CONCLUSION

The Motion to Dismiss should be denied. The Rancheria waived its immunity by inviting

and participating in this litigation and through invoking its immunity only as a belated tactical

decision. In any event, the claims against the individual defendant, Dowd, may nonetheless

proceed in both his official and individual capacities and complete relief can be afforded as

between the Yurok Tribe and Dowd. If the Rancheria is a required party that cannot be joined,

the claims against Dowd should proceed in equity and good conscience. The Yurok Tribe’s

interest in a judicial determination of the fishing rights of members of the Rancheria who

accepted cash in exchange for all rights in the resources of the Yurok Reservation outweighs any

interest in Rancheria members continuing to fish in defiance of Yurok sovereign authority and

the laws of the State of California.

Date: October 27, 2017 Respectfully submitted,

BERKEY WILLIAMS LLP

By: /s/Scott W. Williams Scott W. Williams Curtis G. Berkey 2030 Addison Street, Suite 410 Berkeley, CA 94704 Tel: (510) 548-7070 Fax: (510) 548-7080 E-mail: [email protected] E-mail: [email protected] By: /s/Cheyenne Sanders Cheyenne Sanders Yurok Tribe Office of Tribal Attorney P.O. Box 1027 Klamath, CA 95548 Tel: (707) 482-1350 Fax: (707) 482-1377 [email protected] Attorneys for Plaintiff, the Yurok Tribe


attorneys for plaintiff, the yurok tribe · 2018. 1. 29. · v. resighini rancheria and gary mitch...

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