case no. 14-4034 united states court of appeals · pdf filecase no. 14-4034 united states...

CASE NO. 14-4034

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

UTE INDIAN TRIBE OF THE UINTAH andOURAY RESERVATION, UTAH,

Plaintiff-Appellant,v.

THE STATE OF UTAH, WASATCHCOUNTY a political subdivision of the State ofUtah, GARY HERBERT, in his capacity asGovernor of Utah, JOHN SWALLOW, in hiscapacity as Attorney General of Utah, SCOTTSWEAT, in his capacity as County Attorney forWasatch County, Utah, and TYLER J. BERG, inhas capacity as Assistant County Attorney forWasatch County, Utah,

Defendants-Appellees.

:::::::::::::::::::

On Appeal from the United States District Court for the District of Utah, Central Division

The Honorable Dee BensonNo. 2:13-CV-0170

WASATCH APPELLEES’ BRIEF______________________________________________________________________________

Jesse C. Trentadue (#4961)Carl F. Huefner (#1566)Noah M. Hoagland (#11400)Britton R. Butterfield (#13158)SUITTER AXLAND, PLLC8 East Broadway, Suite 200Salt Lake City, Utah 84111Tel: (801) 532-7300Attorneys for Wasatch County, Scott Sweat, and Tyler J. Berg

Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 1

mailto:[email protected]




TABLE OF CONTENTS

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF PRIOR AND/OR RELATED APP .E .A . L. S. . . . . . . . . . . . . . . . . . . . . . . . 1

NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

HISTORY OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

ARGUMENT:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

DENYING THE TRIBE’S MOTION FOR A PRELIMINARY

INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

II. THE UTE TRIBE HAS NOT AND CANNOT MAKE THE NECESSARY

SHOWINGS FOR A PRELIMINARY INJUNCTION. . . . . . . . . . . . . . . 32

A. Likelihood of Success on the Merits. . . . . . . . . . . . . . . . . . . . . . . . 35

B. Irreparable Injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

C. Balance of Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

D. Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

ii


III. NATIONAL FOREST LANDS ARE NOT PART OF THE

RESERVATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

IV. THE ANTI-INJUNCTION ACT DOES NOT SUPPORT THE UTE

TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION. . . . . . . . . . 49

STATEMENT OF COUNSEL AS TO ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . 54

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS. . . . . 59

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

iii


TABLE OF AUTHORITIES

Cases

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998) . . . . . . . . . . . . . . 49

Alexander Bird In The Ground v. District Court,

239 F. Supp. 981 (D. Mont. 1965) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Allison v. Utah County Corporation, 335 F. Supp. 2d 1310 (D. Utah 2004) . . . . . . . . . 23

Anderson v. Bessemer City, 470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Association for Retarded Citizens of Connecticut v. Thorne,

30 F.3d 367 (2nd Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30

Atl. Coast Line R.R. Co. V. Bhd. Of Locomotive Eng’rs, 398 U.S. 281 (1970).. . . . . . . . 56

Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179 (9th Cir. 1988).. . . . . . . . . . . . . . 32

Board of Commissioners for the Orleans Levee District v. Newport Limited,

578 So. 2d 191 (La. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Brown v. Board of Education, 347 U.S. 483 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Brown v. Burns, 996 F.2d 219 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 33

Chandler v. O’Bryan, 445 F.2d 1045 (10th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . 51

City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005). . . . . . . . . . . . . . . . . . . 3, 27

Collins v. The City of Wichita, Kansas, 254 F.2d 837 (10th Cir. 1958). . . . . . . . . . . . . . 46

Comanche Nation v. United States, 393 F. Supp.2d 1196 (W.D. Okla. 2005). . . . . . . . . 38

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv


Decoteau v. District County Court, 420 U.S. 425 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . 6

Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 31

Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2nd Cir. 1985). . . . . . . . . . . . 33

Fedler v. Oliverio, 934 F. Supp. 1032 (N.D. Ind. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . 33

First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co.,

891 F. Supp. 510 (N.D. Cal. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Greater Yellowstone Coal v. Flowers, 321 F.3d 1250 (10th Cir. 2003) . . . . . . . . . . . . . . 37

GTE Corporation v. Williams, 731 F.2d 676 (10th Cir. 1984). . . . . . . . . . . . . . . . . . . . . 40

Hagen v. Utah, 507 U.S. 1028 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hagen v. Utah, 510 U.S. 309 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hagen v. Utah, 510 U.S. 399 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).. . . . . . . . . . . . . . 32

Hydro Resources, Inc. v. EPA, 1131 (10th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . 48, 49

Indian Country, U.S.A., Inc. v. Okla. Tax Comm’n.,

829 F.2d 967 (10th Cir. 1987) . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998). . . . . . . . . 38

Koclanakis v. Merrimack Mutual Fire Insurance Co.,

899 F.2d 673 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547 (5th Cir. 1987). . . . . . . . . . 33

McCullen v. Coakley, 759 F. Supp. 2d 133, 136 (D. Mass. 2010). . . . . . . . . . . . . . . . . . 47

McKeithen v. S.S. Frosta, 430 F. Supp. 899 (E.D. La. 1977). . . . . . . . . . . . . . . . . . . . . . 34

v


Missouri Pac. Ry. Co. v. Fitzgerald, 160 U.S. 556 (1896). . . . . . . . . . . . . . . . . . . . . . . . 56

Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). . . . . . . . . . . . . . . . 6

Montana v. United States, 450 U.S. 544 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Montana DOT v. King, 191 F.3d 1108 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Nevada v. Hicks, 533 U.S. 353 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 36

Neway Anchorlok International, Inc. v. Longwood Indusries, Inc.,

107 F. Supp. 2d 810 (W.D. Mich. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Oklahoma Tax. Comm’n v. Citizen Bank Potawatomi Indian Tribe of Okla.,

498 U.S. 505 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). . . . . . . . . . . . . . . . . . . . . . . . . 9

Organized Village of Kake v. Eagan, 369 U.S. 60 (1962). . . . . . . . . . . . . . . . . . . . . . . . . 14

Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990). . . . . . . . . . . . 20

Plessy v. Ferguson, 163 U.S. 537 (1896). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001). . . . . . . 38

Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007). . . . . 7, 27

Poulson v. Turner, 359 F.2d 588 (10th Cir. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Reid v. Covert, 354 U.S. 1 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Rogers v. Ford Motor Co., 952 F. Supp. 606 (N.D. Ill. 1997). . . . . . . . . . . . . . . . . . . . . 33

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. 5

Seneca-Cayuga Tribe of Oklahoma v. State of Oklahoma,

874 F.2d 709 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

vi


Shakopee Mdewakanto Sioux Community v. City of Prior Lake, Minnesota,

771 F.2d 1153 (8th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Silverman v. Browning, 414 F. Supp. 80 (D. Conn. 1976). . . . . . . . . . . . . . . . . . . . . . . . 40

Six Feathers v. State, 611 P.2d 857 (Wyo. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Smith v. Bayer Corp., 113 S. Ct. 2368 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Solem v. Bartlett, 465 U.S. 463 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

South Dakota v. United States DOI, 475 F.3d 993 (8th Cir. 2007). . . . . . . . . . . . . . . . . . 47

Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639 (10th Cir. 2004). . . . . . . . . . . . 32

State v. Hagen, 858 P.2d 925 (Utah 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Perank, 858 P.2d 927 (Utah 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Waters, 971 P.2d 538 (Wash. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Strate v. A-1 Contractors. 520 U.S. 438 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Morrison, 529 U.S. 598 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Patch, 114 F.3d 131 (9th Cir.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . 8, 29

United States v. United Mine Workers, 330 U.S. 258 (1947). . . . . . . . . . . . . . . . . . . 39, 56

Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997).. . . . . . . . . . . . . . . 4, 20

Ute Indian Tribe v. State of Utah et. al. District of Utah

Case No. 2:75-CV-408 . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii


Ute Indian Tribe v. State of Utah, 521 F. Supp. 1072 (D. Utah. 1981) . . . . . . . . . . . . . . 16

Ute Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir. 1985)(en banc). . . . . . . . 5, 17

Ute Indian Tribe v. State of Utah, 935 F. Supp. 1473 (D. Utah 1996). . . . . . . . . . . . . . . 19

Walck v. Edmondson, 472 F.3d 1227 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202 (10th Cir. 2003). . . . . . . . . 30, 38

Wyandotte Nation v. Sebelius, 443 F.3d 1247 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . 30

Statutes

16. U.S.C. § 475.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

25 U.S.C. § 1321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. § 2283. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 49

9 Stat. 453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 Stat. 286, 337-38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

33 Stat. 1070. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

34 Stat. 3113, 3116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Utah Code §17-18a-202.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Utah Code §17-18a-401.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Utah Code §17-18a-501.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Utah Code §41-6a-518.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

viii


Utah Code §41-12a-603.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Utah Code §53-3-277. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Utah Code Ann. §§ 77-9-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Utah Code §78A-7-118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Act of Aug. 15, 1894, ch. 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. 6

Other

United States Constitution, Fourteenth Amendment... . . . . . . . . . . . . . . . . . . . . . . . . 15, 51

Utah Constitution, Art. III, Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Utah R. Cr. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

ix


STATEMENT OF PRIOR AND/OR RELATED APPEALS

Defendants-Appellees Wasatch County, Utah, Wasatch County Attorney

Scott Sweat, and Assistant Wasatch County Attorney Tyler Berg (“Wasatch

Appellees”) hereby adopt the Statement of Related Cases set forth in the Brief of

Plaintiff-Appellant Ute Indian Tribe of the Uintah & Ouray Reservation. Wasatch

Appellees do not, however, adopt the argument which the Ute Tribe inserted into

that Statement of Related Cases.

NATURE OF THE CASE

This appeal involves the District Court’s denial of the Ute Tribe’s Motion

for a Preliminary Injunction against Wasatch County’s prosecution of Ms. Lesa

Ann Jenkins, a member of the Ute Tribe, who had been stopped by a Utah

Highway Patrol Trooper. She was cited for speeding. Ms. Jenkins, who also had1

a prior DUI conviction for which there is no assertion that the State lacked

jurisdiction, was likewise cited by the Trooper for driving with a suspended or

revoked license and for failure to comply with State law requiring her to install an

Citation, Appellant’s Appendix (“App.”) 40.1

1


ignition interlock device on her vehicle. That stop occurred on State Road 352

within the Uinta National Forest. 3

The County believes that the issuance of the injunctive relief sought by the

Ute Tribe would create a law enforcement void whereby members of the Ute Tribe

would not be subject to any prosecution for violating public safety laws, like

drunk-driving laws, and the public endangered thereby. The Ute Tribe has not

alleged, let alone demonstrated, that it either patrols or it has the capacity to patrol

the state roads, such as State Road 35, to enforce traffic and other laws so as to

Id. The site of the actual stop is irrelevant because Ms. Jenkins was also cited2

for driving with a suspended license and for operating a vehicle without a court-ordered

interlock device, which was a condition imposed upon her due to a previous DUI

conviction all in violation of Utah Code §§ 41-6a-518(2)(a) - (4), 41-12a-603 and 53-3-

277(3). What is relevant, however, is where Ms. Jenkins had driven that day as well as

when and where the Trooper first observed her speeding. See Brown v. Burns, 996 F.2d

219 (9th Cir. 1993)(fact that stop of tribal member for DUI occurred on reservation did

not deprive state of criminal jurisdiction because the defendant had clearly driven the

vehicle on off-reservation roads while under the influence). These and other crucial

factual issues, however, remain unanswered due to the lack of discovery because the

Motion for Preliminary Injunction was filed contemporaneously with the Complaint on

December 3, 2013. Docket, App. 24.

That stop within the Uinta National Forest also occurred over 100 miles from the3

Ute Tribe’s headquarters in Duchesne County, Utah. Wasatch Appellees do not believe

that there are any members of the Ute Tribe residing in Wasatch County and neither does

it appear that the Ute Tribe has trust land in Wasatch County. But, these are factual

questions that need to be answered through discovery.

2


http://www.aaanativearts.com/utah-tribal_lands-map.gif

provide safe transit of the public on those roads. However, due to a lack of4

discovery these questions were never presented to or addressed by the District

Court. Instead of allowing for the development of the factual record needed for

the District Court to decide these and other questions related to jurisdiction, the

Ute Tribe is trying to fast-track an important ruling on its request for declaratory

and injunctive relief of incredible scope and breadth. 5

It is also appears that the Tribe had never before objected to the State’s assertion4

of jurisdiction over public roads within National Forest Lands in Wasatch County, which

makes a strong case for waiver of jurisdiction. See City of Sherrill v. Oneida Indian

Nation, 544 U.S. 197(2005)(latches barred Oneida Tribe’s attempt to re-assert

sovereignty over land after the lapse of several hundred years).

In this lawsuit, the Ute Tribe is seeking an Order permanently enjoining Wasatch5

County from exercising criminal or civil jurisdiction over “Indians” within the National

Forest Lands of Wasatch County. The Ute Tribe is essentially seeking a safe-haven or

sanctuary from State and County law for its members. Not only did the Ute Tribe contend

that its members, or any “Indian” for that matter, cannot be prosecuted by Wasatch

County for offenses occurring on public roads passing through a National Forest, but it is

also the Tribe’s position that if a member or other Indian commits a crime, even a serious

felony, off-Reservation that tribal member or other Indian is entitled to sanctuary if he or

she can reach the Reservation’s borders prior to being apprehended by state and/or local

law enforcement. The Ute Tribe takes the position that State and/or local law

enforcement’s hot pursuit of a tribal member or other Indian who committed an off-

Reservation crime, even a felony, must stop at the Reservation’s borders. See Motion for

Summary Judgment, App. 70. However, under the common law doctrine of fresh pursuit,

an officer may pursue a felon or suspected felon, with or without a warrant, into another

jurisdiction and arrest the suspect. Six Feathers v. State, 611 P.2d 857, 861 (Wyo. 1980).

Utah has also codified the common law with the Uniform Act On Fresh Pursuit, Utah

Code Ann. §§ 77-9-1, et seq. Fresh Pursuit Statutes such as that of Utah even authorize

arrests within the boundaries of a reservation. See State v. Waters, 971 P.2d 538, 543

(Wash. App. 1999). The Ute Tribe has even asserted that State and County officers

3


In its Complaint the Tribe is asking for two distinct types of declaratory-

injunctive relief. First, the Ute Tribe seeks an Order establishing its civil and

criminal jurisdiction in the National Forest Lands of Wasatch County, and to

permanently enjoin Wasatch County from exercising civil or criminal jurisdiction

over “Indians,” including Ms. Jenkins, within these National Forest Lands. This is

an injunction to stay pending and future law enforcement procedures against tribal

members.

The second type of injunctive relief sought by the Ute Tribe is an anti-suit

injunction. Specifically, the Ute Tribe seeks an Order forever barring Wasatch

County from, directly or indirectly, raising, by way of complaint or defense, in any

court of law or administrative forum: (1) that the County’s civil and/or criminal

authority over National Forest Lands exceeds the limits of such authority allegedly

imposed by the Tenth Circuit in Ute Tribe of Indians of the Uintah and Ouray

Reservation v. State of Utah; (2) that the Ute Tribe lacks sovereignty over these6

cannot stop a vehicle on United States’ highways and/or State roads crossing the National

Forest because the driver might be a tribal member, which is an incorrect statement of the

law. “As a practical matter, without a stop and inquiry, it is impossible for [a law

enforcement] officer to tell who is operating an offending vehicle [within Indian

Country].” United States v. Patch, 114 F.3d 131, 133-34 (9th Cir.1997).

114 F.3d 1513 (10th Cir. 1993).6

4


National Forest Lands; (3) that the Ute Tribe’s Reservation has been

disestablished or diminished; (4) that the Reservation’s borders differ from those

articulated by the Tenth Circuit Court of Appeals in Ute Tribe of Indians of the

Uintah and Ouray Reservation v. State of Utah, and Ute Tribe of Indians of the7

Uintah and Ouray Reservation v. State of Utah; and/or (5) that Wasatch County8

be prohibited from “seeking, obeying, carrying out, issuing, enforcing, or

otherwise treating as having any lawful force or effect any order of any court

which is inconsistent with the mandate issued by the United States Court of

Appeals for the Tenth Circuit.” This appeal involves the District Court’s denial9

of the Ute Tribe’s Motion for Preliminary Injunction to prevent the prosecution of

Ms. Jenkins. 10

773 F.2d 1298 (10th Cir. 1985).7

114 F.3d 1513 (10th Cir. 1993).8

Complaint, App. 22-23.(emphasis added).9

District Court Order, See App. 354. 10

5


JURISDICTION

Wasatch Appellees adopt the general statement of jurisdiction set forth in

the Ute Tribe’s Brief. Wasatch Appellees do not, however, adopt the argument

which the Ute Tribe inserted into that statement of jurisdiction.

ISSUES PRESENTED

While the Ute Tribe is correct that the sole issue on appeal is whether the

District Court erred in denying the Tribe’s Motion for Preliminary Injunction, the

issue is more refined than the Tribe’s simple characterization. The issue is more11

precisely framed as whether the District Court abused its discretion in denying the

Tribe’s Motion. Moreover, deciding that issue necessarily depends on whether the

Tribe met its burden for a Preliminary Injunction, which requires showing: (1) a

substantial likelihood of success on the merits; (2) irreparable harm unless the

injunction was issued; (3) that the threatened injury to the Ute Tribe outweighs

potential harm to the State of Utah or Wasatch County; and (4) that the injunction,

The Tribe asserts that the issue in this case is a simple matter of criminal11

jurisdiction, but that is deceptive. How “Indian Country” is defined goes far beyond the

State’s and/or County’s criminal authority within the Uinta National Forest, it may also

define their civil regulatory authority.. See, e.g., Decoteau v. District County Court, 420

U.S. 425, 427 fn. 2 (1975); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463,

478-79 (1976). It will likewise do so for Carbon, Duchesne, Emery, Grand and Uintah

Counties because they each include land that was part of the original Reservation.

6


if issued, would not adversely affect the public interest. Furthermore, subsumed12

in that issue is whether the record is sufficient to permit this Court to affirm the

District Court on other grounds, such as the Ute Tribe’s failure to meet its burden

to show all the elements required for the District Court to issue a Preliminary

Injunction; whether the requested injunctive relief is prohibited, as a matter of law;

and/or whether the Judgment by Consent entered following remand of Ute Tribe of

Indians of the Uintah and Ouray Reservation v. State of Utah effectively mooted13

that decision, which the Ute Tribe now makes the sole basis of its claim of

entitlement to injunctive relief.

STANDARD OF REVIEW

The District Court’s denial of a Preliminary Injunction is reviewed for an

abuse of discretion. A district court abuses its discretion only if it issues an14

Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.12

2007).

114 F.3d 1513 (10th Cir. 1997). See infra pp. 20-23.13

Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006); Prairie14

Band of Potawatomi Nation, 476 F.3d at 822 (citing SEC v. Pros Int'l, Inc., 994 F.2d 767,

769 (10th Cir.1993)).

7


“arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Finally,15

this Court is free to affirm the District Court on any grounds for which the record

is sufficient to permit conclusions of law, even grounds not relied upon by the

District Court. 16

STATEMENT OF FACTS

The Ute Tribe’s Brief purports to recount the history of the litigation over

jurisdiction between it and the State of Utah, which the Tribe asserts somehow

deprives Wasatch County of any jurisdiction over tribal members who happen to

be in a National Forest located within the County. The true history of the

litigation between the State of Utah and the Tribe is set out below, including

Utah’s unique history with respect to regulatory authority over Indians and Indian

lands.

A. Utah History

Before the District Court the Tribe argued that Utah’s Enabling Act and

Prairie Band of Potawatomi Nation, 476 F.3d at 882 (quoting Coletti v. Cudd15

Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)).

United States v. Sandoval, 29 F.32d 537, 542 fn. 6 (10th Cir. 1994).16

8


Constitution divested both the State and Wasatch County of all jurisdiction over

tribal members and/or tribal lands. But that is not so. In fact, Utah’s17

governmental history reveals a sovereignty and dominion over Indians and Indian

lands not enjoyed by other states and not otherwise diminished by Utah’s

admission to the Union.18

Tribe’s Response to Wasatch County’s Motion to Dismiss, App. 255. The Ute17

Tribe claims that, based upon 25 U.S.C. § 1321(a)(1), the State of Utah and Wasatch

County’s civil and regulatory authority does not extend to conduct by Ms. Jenkins and

other tribal members because neither the Tribe nor its members have consented to any

such jurisdiction over public roads within the National Forest. See Tribe’s Brief, pp. 20-

21. See also App. 84. But that statute merely provides a mechanism whereby the State of

Utah could assume direct jurisdiction and control over tribes and their members, with the

consent of the Tribe and its members. It has nothing to do with the sovereign powers

vested in the State of Utah and its County governments over people or lands within the

borders of a reservation. In fact, Nevada v. Hicks, 533 U.S. 353 (2001) makes clear that

“an Indian Reservation is now considered part of the territory of the State,” Id. at 360-61;

accord, Shakopee Mdewakanto Sioux Community v. City of Prior Lake, Minnesota, 771

F.2d 1153, 1156 (8th Cir. 1985)(reservation communities are still part of the State in

which they are located and political subdivisions of that State), and that “State

sovereignty does not end at a Reservation’s borders,” Nevada, 533 U.S. at 362. More

importantly, tribal law only preempts state law under very narrow circumstances: when it

involves both “on-reservation activity” AND involves “only Indians.” Id. at 361

(2001)(emphasis added). A tribe’s power to exercise civil authority over the conduct of

non-Indians on fee lands within its reservation is similarly limited to those situations

wherein non-Indians have entered into some sort of consensual relationship with the tribe

or the conduct of non-Indians “threatens or has some direct effect on the political

integrity, the economic security, or the health or welfare of the tribe.” Montana v. United

States, 450 U.S. 544, 566 (1980)(emphasis added).

In resolving conflicts between state and tribal authority, federal courts18

typically look to the historical relationships between the tribe, state and federal

governments. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

9


Originally known as the State of Deseret, Utah was established in an area

which was part of the Territory of Mexico. Furthermore, the dominion which the

State of Deseret enjoyed over its lands and the people residing on those lands is

very instructive on the issue of Utah’s (and its political subdivisions’) broad

jurisdiction within a reservation’s boundaries.

As a separate, independent nation, the State of Deseret had its own

Constitution. The following language from its Preamble reveals that the framers

considered the State of Deseret to be not only a free and independent government,

but to have dominion over a tremendous area of what would later become the

Western United States:

WE THE PEOPLE, Grateful to the SUPREME BEING forthe blessings hitherto enjoyed, and feeling ourdependence on Him for a continuation of these blessings,DO ORDAIN, AND ESTABLISH A FREE AND INDEPENDENT

GOVERNMENT, by the name of the STATE OFDESERET; including all the Territory of the UnitedStates, within the following boundaries, to wit:Commencing at 33°, North Latitude where it crosses the108°, Longitude, west of Greenwich; thence runningSouth and West to the Northern boundary of Mexico,thence West to, and down the Main Channel of the GilaRiver, (or the Northern line of Mexico,) and on theNorthern boundary of the Lower California to the PacificOcean; thence along the Coast North Westerly to the118°, 30' of west Longitude; Thence North to where said

10


line intersects the dividing ridge of the Sierra NevadaMountains to the dividing range of the Mountains, thatseparate the Waters flowing into the Columbia River,from the Waters running into the Great Basin; thenceEasterly along the dividing range of Mountains thatseparate said waters flowing into the Columbia river onthe North, from the waters flowing into the Great Basinon the South, to the summit of the Wind River chain ofmountains; thence South East and South by the dividingrange of Mountains that separate the waters flowing intothe Gulf of Mexico, from the waters flowing into theGulf of California, to the place of BEGINNING; as setforth in a map drawn by Charles Preuss, and publishedby order of the Senate of the United States, in 1848.

There is no reference in the Constitution of the State of Deseret to “Indians”

or “Indian lands.” But, importantly, the lands and people falling within the

jurisdiction of the State of Deseret included Indian lands and their Indian residents

and the Constitution of the State of Deseret established legislative, executive and

judicial branches to govern all lands and people within the State of Deseret,

including Indians. In other words, the Constitution of the State of Deseret

provided for its governance and dominion over all people and lands lying within

its boundaries, which included Indians and Indian lands. Moreover, the State of

Deseret’s dominion over tribal governments did not change when it became a

United States territory.

11


In 1850, Utah officially became a territory of the United States of America.

The Organic Act of the Territory of Utah established the Utah Territory and, like

the Constitution of the State of Deseret, does not reference either “Indians” or

“Indian lands.” Instead, it established the boundaries of the Utah Territory,19

changed the name from State of Deseret to “Utah,” created the Utah Territorial

Government and vested it with jurisdiction over all people and lands within the

Utah Territory. The Utah Territory was much smaller than the former State of

Deseret and included only what would become the States of Utah and Nevada, as

well as the western half of Colorado. Within this territory were Indian lands and

Indian people, including the Ute Tribe, over whom the Utah Territorial

Government could exercise jurisdiction.

The Utah Organic Act, with its recognition of the Utah Territorial

Government’s dominion and governance over all persons residing within the Utah

Territory, is significant when compared with the Organic Acts for other western

states. For example, the Organic Act creating the Montana Territory placed the

following limitation upon that Territorial Government’s jurisdiction over Indians

and/or their lands:

See 9 Stat. 453, Ch. 51.19

12


That nothing in this Act contained shall be construedto impair the rights of person or property nowpertaining to the Indians in said territory so long assuch rights shall remain unextinguished by treatybetween the United States and such Indians or toinclude any territory which by treaty within theIndian tribes, is not, without the consent of said tribe,to be included within the territorial limits orjurisdiction of any state or territory; but all suchterritory shall be excepted out of the boundaries andconstitute no part of the territory of Montana, untilsaid tribes shall signify their assent to the president ofthe United States to be included within said territory,or to affect the authority of the government of the UnitedStates to make any regulations respecting such Indians,their lands, or property, or other rights, by treaty, law, orotherwise, which it would have been competent for thegovernment to make if this Act had never passed.20

With the creation of the Montana Territory, Congress reserved to itself jurisdiction

over Tribes and Tribal lands; whereas Utah’s Organic Act, on the other hand, did

not place such limitations/restrictions on the Utah Territorial Government’s

jurisdiction over Indians or Indian lands. The Utah Territory was vested with

complete jurisdiction over tribes and tribal lands, and that did not change with

Utah statehood.

12 Stat. 85, Ch. 95, §1.(emphasis added).20

13


Utah became part of the United States in 1896. In order to obtain admission

to the Union, the Utah Constitution had to “disclaim all right and title . . . to all

lands lying within said limits owned or held by any Indian or Indian tribe, and that

until the title thereto shall have been extinguished by the United States, the same21

shall be and remain subject to the disposition of the United States, and said Indian

lands shall remain under the absolute jurisdiction and control of the Congress of

the United States.” But “absolute jurisdiction” is not the same as “exclusive22

jurisdiction and control.” By this language the State of Utah merely 23

acknowledged Congress’s plenary power over tribes and tribal lands; it did not

divest the State of Utah of the jurisdiction over tribes and tribal lands that had

passed to it from the Utah Territorial Government. Unfortunately, because of the24

rapidity in which this matter reached this Court, the District Court never had the

This language clearly reserved to the United States the right to extinguish title to21

lands held by the Ute Tribe.

Utah Constitution, Art. III, Section 2. 22

See Organized Village of Kake v. Eagan, 369 U.S. 60, 67 (1962)(construing23

identical language in the Alaska Statehood Act as not ousting Alaska from asserting its

regulatory authority over Indian lands). See also Nevada v. Hicks, 533 U.S. 353, 361-62

(2001)(state sovereignty does not end at a reservation’s border).

See Id. 24

14


opportunity to consider the effect of Utah’s unique history upon the jurisdiction

asserted by the Tribe.

B. Ute I

Almost 35 years ago the Ute Tribe, consisting of approximately 2,500

members, commenced a lawsuit in the United States District Court of Utah25

against the State of Utah, Duchesne County, Roosevelt City, Duchesne City and

Myton, Utah to determine the extent of the potential application of the Tribe’s

Law and Order Code. That lawsuit, to which Wasatch Appellees were not26

parties, later became known as “Ute I.” 27

The Ute Tribe currently has only 3,120 members. See25

http://www.utah.com/tribes/ute_people.htm (last visited Aug. 11, 2014).

See Ute Indian Tribe v. State of Utah et. al. District of Utah Case No. 2:75-CV-26

408. The land area that the Ute Tribe, through its litigation, currently asserts the

exclusive right to govern extends from Wasatch County east to the Colorado border and

south almost to I-70. Whether Indian or non-Indian, those persons living or present in

that vast area of Utah would be subjected to the governmental authority of the Ute Tribe

and would enjoy none of the protections of the Bill of Rights or the Fourteenth

Amendment. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

Uintah, Carbon, Emery and Grand Counties were likewise not named as parties27

in that lawsuit, even though lands within these Counties had been part of the original Ute

Reservation. Uintah County eventually joined that case to protect its interests. The

Counties not parties to Ute V, including Wasatch County, but into which the Tribe now

contends that its Reservation extends, all have building codes and other public health and

safety ordinances which they, and not the State, enforce. Seehttp://www.sterlingcodifiers.com/codebook/index.php?book_id=940 (last visited August 11,

15


http://www.utah.com/tribes/ute_people.htm

http://www.sterlingcodifiers.com/codebook/index.php?book_id=940

Congress passed legislation in 1894 providing that Reservation lands

were to be allotted to members of the Ute Tribe, and that the remaining unallotted

lands were to be restored to the public domain. In Ute I, the District Court held28

that Congress’s decision to open unalloted lands within the reservation to

settlement by non-Indians did not diminish the Reservation as to those unallotted

lands. However, the District Court did hold that when Congress authorized the

President in 1905 to “set apart and reserve” lands in the Reservation as a forest

reserve and thereafter the President by proclamation established the Uinta29

National Forest Reserve, this demonstrated Congress’s clear intent to diminish30

the Reservation by removing the Uinta National Forest from the Reservation,31

particularly because the Ute Tribe was compensated for these removed lands by

the United States.32

2014).

Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, 337-38.28

33 Stat. 1070.29

34 Stat. 3113, 3116.30

Ute Indian Tribe v. Utah, 521 F. Supp. 1072, 1136 (D. Utah. 1981). 31

See id. at 1140 fn. 185.32

16


C. Ute II

Under Ute I, unallotted lands remained part of the Reservation but the Uinta

National Forest was not part of the Reservation. Ute I was appealed, and a two-

judge majority of the Tenth Circuit affirmed the District Court decision that the

Uinta National Forest had been withdrawn from the Reservation. That decision33

has become known as “Ute II.” However, after a rehearing en banc, a majority of

the Tenth Circuit held that the withdrawal of the National Forest Lands did not

diminish the Reservation. This decision became known as “Ute III.”34

D. Ute III

The Ute III Court reached its decision, completely contrary to that of

the panel in Ute II, applying the then newly-decided case of Solem v. Bartlett. 35

Based upon what would later be acknowledged, by both the Tribe and the Tenth

Circuit, to be a misreading of Solem, Ute III concluded that the congressional

language restoring the National Forest Lands to the public domain was “not the

same as a congressional state of mind to diminish,” and hence did “not reliably

Ute Indian Tribe v. Utah, 716 F.2d 1298, 1311 (10th Cir. 1983).33

Ute Indian Tribe v. Utah, 773 F.2d 1087, 1090 (10th Cir. 1983) (en banc). 34

465 U.S. 463 (1984).35

17


establish the clear and unequivocal evidence of Congress’ intent to change the

boundaries.” Thus, under Ute III, the Uinta National Forest remained part of the36

Reservation.

E. Perank and Hagen

Meanwhile, State v. Perank, and State v. Hagen, had been decided, both37 38

of which involved State felony prosecutions of Indians for crimes committed in

Myton and Roosevelt, Utah, two towns that had been within the original

boundaries of the Reservation. Reviewing the same legislation and case law as the

Ute III Court, the Utah Supreme Court concluded that the Reservation had been

diminished, that the towns of Myton and Roosevelt were not part of the

Reservation and that the State had jurisdiction to prosecute. The United States39

773 F.2d at 1092. Judge Barrett dissenting, however, emphasized that the Ute36

Tribe had been paid by the United States for the National Forest land. Id. at 1150.

858 P.2d 927 (Utah 1992).37

858 P.2d 925 (Utah 1992).38

Perank, 858 P.2d at 953; Hagen, 858 P.2d at 925-26.39

18


Supreme Court granted certiorari in Hagen to resolve the conflict between the

Tenth Circuit’s Ute III decision, and those of the Utah Supreme Court.40

In 1994, the United States Supreme Court affirmed the Utah Supreme Court,

expressly considering and rejecting both the Ute III analysis and its holding that

the Reservation had not been diminished. The Hagen Court, however, did not41

address National Forest Lands because that issue was not before the Court for

consideration.

F. Ute IV

Following the Hagen decision, the Ute Tribe filed a Motion in District Court

for a permanent injunction preventing the defendants from enforcing or relying

upon the Utah Supreme Court’s decisions in Perank and Hagen. In response, the

District Court issued a ruling that is now known as “Ute IV.” In Ute IV, the42

Hagen v. Utah, 507 U.S. 1028 (1994); see Hagen v. Utah, 510 U.S. 309, 40940

(1994).

Hagen v. Utah, 510 U.S. 399, 421-22 (1994), rehearing denied, 511 U.S. 104741

(1994). Hagan specifically found that Roosevelt City and Myton City were NOT “Indian

Country.” Nevertheless, in a related case before this Court and despite the Hagen ruling

that Roosevelt City and Myton City were not “Indian Country” the Tribe has also sued

both those cities seeking an injunction precluding them from prosecuting “Indians” for

offenses committed within their respective city limits. See Ute Indian Tribe of the Uintah

and Ouray Reservation v. State of Utah, No. 14-4028 (10th Cir. filed Feb. 27, 2014).

Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996).42

19


District Court reasoned that even though the Ute III decision conflicted with and

was overruled by the United States Supreme Court’s decision in Hagen, under the

law of the case doctrine the District Court was bound to follow the mandate of Ute

III. Not surprisingly, the case went back before the Tenth Circuit, and the43

resulting decision is now referred to as “Ute V.”44

G. Ute V

In Ute V, the Tenth Circuit and the Ute Tribe recognized that the

reasoning in Hagen effectively overruled Ute III in its entirety. In fact, the Ute45

Tribe argued that, even though Ute III was “erroneous” in light of Hagen, the

Id. at 1516-25.43

Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997). Hereafter,44

Ute I, Ute II, Ute III, Ute IV and Ute V will be collectively referred to as the “Ute cases.”

This Court, in case involving a similar issue with respect to the Navajo45

Reservation, questioned the underpinnings of Ute III’s conclusion about non-

diminishment of the Ute Reservation, characterizing it as “unexamined and unsupported.”

See Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387, 1400 (10th Cir.

1990)(refusing to apply the Ute III analysis, and distinguishing the relevant statutory

language that restored Navajo Reservation lands to the public domain). It is also

noteworthy that Pittsburg was decided before Hagen and Nevada in which the Court’s

provided guidance with respect to the diminishment of a reservation and a State’s

jurisdiction over reserved lands.

20


Finality of Judgments Rule prohibited departure from the Ute III. And the Tenth46

Circuit agreed in large part with the Ute Tribe’s argument.

The Tenth Circuit reasoned that it had to modify Ute III to conform to the

Supreme Court’s Hagen ruling that the Tribe’s Reservation was diminished with

respect to the unallotted lands. The Tenth Circuit did not modify Ute III’s

mistaken ruling, however, as to Uinta National Forest Lands because Hagen did

not involve or directly address the status of those lands, even though the

underlying legal analysis was no longer valid. Hence, Ute V held that the47

Finality of Judgments Rule supported the Ute III determination that the Uinta

National Forest remained part of the Reservation. The Court remanded the case to

the District Court with instructions to “consider the Tribe’s request for permanent

injunctive relief in light of this opinion.” But on remand that did not occur. 48

Instead, the case was resolved on the basis of a stipulated Judgment by Consent

114 F.3d at 1522. 46

See id. at 1518-1530.47

Id. at 1531.48

21


among the parties, superseding the Ute V remand but leaving intact the49

diminishment of the Reservation with respect to unallotted lands.

The crucial elements in that Judgment by Consent were three power

sharing/allocation Agreements between the Ute Tribe and the defendants in that

case. These three Agreements, to which Wasatch County was not a party, were:50

(1) a “Cooperative Agreement To Refer Tribal Members Charged With

Misdemeanor Offenses To Tribal Court For Prosecution”; (2) a “Disclaimer Of

Civil/Regulatory Authority”; and (3) a “Cooperative Agreement For Mutual

Assistance In Law Enforcement.” Neither the Court nor the Tribe ever attempted51

to make Wasatch County (or any of the other affected non-party Counties) a party

to these agreements.

In addition to these three Agreements, the parties (again, not including

Wasatch County) stipulated to Jurisdictional Maps to assist in complying with the

Agreements, which the Court also approved. These maps purported to show land

See District of Utah Case No. 2:75-CV-408, Doc. 145, Appellees’ Supplemental49

Appendix (“Supp. App.”) 417-422.

See District of Utah Case No. 2:75-CV-408, Doc. 96, Supp. App. 417-422.50

Id., 423-466, pp 5, 22 and 27.51

22


status for the purpose of effectuating the three Agreements. However, these maps

were intended only to raise a rebuttable presumption of jurisdiction because these

maps were preliminary with more work to be done by the parties. In fact, both52

the Stipulation and Order state that “Any individual or entity may seek to rebut

this presumption if it is in his, her, or its interest to do so in connection with a

particular case or controversy.” Based upon that Judgment by Consent, the53

case was dismissed with prejudice on March 28, 2000, which rendered moot the54

Ute V remand.55

Supp. App., 467-469, p. 468. 52

District of Utah Case No. 2:75-CV-408, Docs. 99 & 100. Supp. App., 467-47253

(Stipulation, p. 2), (Order, p. 3) (emphasis added).

See District of Utah Case No. 2:75-CV-408, Doc. 145, Supp. App. 417-422.54

However, these three Agreements that formed the Judgment by Consent between the

parties are either no longer in existence and/or they have been rejected by the Ute Tribe.

See District of Utah Case No. 2:75-CV-408, Doc. 175. Supp. App. 475-476.

Before the District Court, the Ute Tribe argued that, because the State of Utah55

was a party in Ute V and to the Judgment by Consent, Wasatch Appellees are bound by

the Ute III and Ute V rulings and the Judgment by Consent. That, however, is incorrect.

See Association for Retarded Citizens of Connecticut v. Thorne, 30 F.3d 367, 368-70 (2nd

Cir. 1994)(All Writs Act does not authorize the Court to enforce a private Judgment by

Consent against a non-party to that agreement). Admittedly Utah Counties, through their

respective county attorneys, are authorized to enforce State law and in doing so, they

function as State officials. See Utah Code §17-18a-401(1). But a county attorney is not

a State officer in all circumstances. See Allison v. Utah County Corporation, 335 F. Supp.

2d 1310, 1317 (D. Utah 2004)(county attorney not entitled to Eleventh Amendment

immunity because he is a county, not a State, officer). He or she is a County officer. See

23


HISTORY OF THE CASE

By way of its Motion for Preliminary Injunction before the District Court,

the Ute Tribe sought to enforce the Judgment by Consent, the Jurisdictional Maps

agreed to by the parties as part of that Judgment by Consent, and the Ute V

decision against Wasatch Appellees who were not parties to the Judgment by

Consent or even participants in the Ute cases. In its Reply in Support of Its Motion

for Preliminary Injunction, the Ute Tribe argued that Wasatch County was bound

by Ute V and the Judgment by Consent under the Doctrine of Virtual

Representation, because its interests are totally aligned with the State. But that is56

clearly not so because, otherwise, joining Duchesne and Uintah Counties and the

municipalities in the Ute V litigation, and the power sharing Agreements

constituting part of the Judgment by Consent would have been unnecessary. 57

Utah Code § 17-18a-202. The County Attorney also enforces the County’s laws and

ordinances. See Utah Code § 17-18a-401(2) & -501.

See App. 328-30.56

See Supp. App. 417-422. 57

24


More importantly, this argument was considered and obviously rejected by the

District Court. 58

The District Court denied that Motion because the Ute Tribe “failed to

demonstrate the irreparable injury necessary for the . . . issuance of a preliminary

injunction at this time.” The Tribe insists that, based upon this language, the only59

issue is whether it met the irreparable injury requirement. This, however, ignores

the fact that the District Court obviously considered the other requirements for its

issuance of a Preliminary Injunction during the hearing on the Tribe’s Motion and

See Transcript, App. 389-90. Before the District Court, the Tribe likewise58

asserted that Wasatch County was somehow bound by the Judgment by Consent. But the

case law is to the contrary. See Thorne, 30 F.3d at 368-70.

District Court Order, App. 354. In that same Order, the Court also denied59

Wasatch Appellees’ Motion to Dismiss (App. 174) based upon the Anti-Injunction Act, 28

U.S.C.§ 2283, and the Younger Abstention Doctrine. The Tribe implies that Wasatch

Appellees’ failure to appeal that ruling is significant. Tribe Brief, p. 13 fn. 8. But that

was an interlocutory ruling, not an appealable order. Similarly, the Tribe asserts that,

because this Court granted its Motion to Stay Pending Appeal, this Court has already

“effectively decided the very issue that is before the Court on the merits, holding, at least

implicitly, that the Tribe had established irreparable harm as a matter of law.” Tribe’s

Brief, p. 14. Wasatch Appellees strongly disagree. In granting the Tribe’s Motion for an

injunction pending appeal, this Court stated: “The test for an injunction pending appeal

and for a preliminary injunction are essentially the same” Order, Document 01019224500

p. 2. However, a District Court’s denial of an injunction is reviewed for an abuse of

discretion, which this Court did not consider when granting the Tribe’s Motion for an

injunction pending appeal. Accordingly, the grant of the injunction pending appeal does

not mean that the Court of Appeals has made a decision on the merits or that the District

Court abused its discretion.

25


noted that: (1) especially in light of Strate v. A-1 Contractors, Ute V did not60

decide whether Wasatch County had the jurisdiction over a tribal member for an

offense committed on a State road; (2) because of the Judgment by Consent61

entered on remand of Ute V, it was also not clear that there was an enforceable

judgment even as to any parties to that litigation, let alone non-party Wasatch

County; and (3) Defendants “[have] a serious interest in this matter” because “[i]f62

someone is driving impaired on . . . state highways that the state opens up for its

citizens to travel across the national forest and an Indian reservation, . . . they have

a significant interest in trying to make sure that those roadways are safe for their

citizens.” But even if the District Court had not mentioned these other factors,63

this appeal is not confined to whether or not the Tribe made the requisite showing

of irreparable injury.

520 U.S. 438 (1997). 60

Transcript of Hearing, App. 378, 386-87. 61

See id. 402. The District Court also heard argument on and obviously62

considered in its ruling the fact that because this was a private Judgment by Consent, it

was not enforceable against non-parties. Id.. 390-91.

Id. 414. The State likewise has a significant interest in seeing that only licensed63

drivers operate vehicles on its roadways, in addition to an interest in discouraging drunk

or impaired drivers.

26


While the District Court mentioned irreparable injury as a reason to deny the

Motion, it did not say that was the only reason. Neither did the District Court find

that the Tribe had established the other three requirements for injunctive relief: (1)

a substantial likelihood of the Tribe’s success on the merits; (2) the threatened

injury to the Ute Tribe outweighs any potential harm to the State or County; and (3)

the injunction, if issued, would not adversely affect the public interest. Thus, in64

order to prevail on its appeal, the Ute Tribe must show that it met these additional

requirements for the issuance of a Preliminary Injunction, and it cannot. Another65

issue is whether this Court can make those additional mandatory findings or

whether, if the District Court abused its discretion on the question of irreparable

injury, this Court should remand for the District Court to rule on those matters,

See Prairie Band of Potawatomi Nation, 476 F.3d at 822.64

See City of Sherrill, 544 U.S. at 214 (questions not explicitly mentioned in the65

lower Court’s decision but essential to the analysis of the ruling are subsidiary issues

fairly subsumed in the question under review). Cf. Sandoval, 29 F.3d at 542 fn. 6

(Appellate Court may affirm the District Court on any grounds for which there is a record

sufficient to permit conclusions of law, even grounds not relied upon by the District

Court).

27


after allowing the parties to fully develop the relevant factual record, either in the

District Court or State Court.

SUMMARY OF ARGUMENT

The District Court applied the correct legal standard and did not abuse its

discretion in denying the Tribe’s Motion for Preliminary Judgment, because the

Court properly found that the Tribe had failed to establish a risk of irreparable

harm in the absence of the requested injunction. Moreover, the Tribe did not and

cannot establish any of the four prongs of the test for issuance, the absence of any

of which is fatal to a request for preliminary injunction. Significantly, the Tribe

has not challenged any of the District Court’s findings upon which its finding of no

risk of irreparable harm was based.

With this lawsuit, the Ute Tribe seeks an Order permanently enjoining

Wasatch County from exercising criminal and civil jurisdiction over “Indians”

within the National Forest Lands of Wasatch County. What the Ute Tribe is

essentially seeking is a safe-haven or sanctuary for its members who commit crimes

within the State of Utah. Not only does the Ute Tribe contend that its members, or

any “Indian” for that matter, cannot be prosecuted by Wasatch County for offenses

allegedly occurring on State and County roads passing through a National Forest,

28


but, in essence, it is also the Tribe’s position that if a member or other Indian

commits a crime, even a serious felony, off-Reservation that tribal member or other

Indian is entitled to sanctuary from past and present crimes if he or she can reach

the Reservation’s borders or “Indian Country” prior to being apprehended by state

and/or local law enforcement. The relief sought by the Ute Tribe, however, would

be impinge upon Wasatch County’s exercise of its police power guaranteed under

the Tenth Amendment. 66

The Ute Tribe likewise seeks this extraordinary relief based upon the holding

in Ute V, and the Judgment by Consent entered after remand of that case. But that

Judgment by Consent was a contract and because it was a contract, it cannot be

enforced against a non-party like Wasatch County and/or modified as requested by

the Ute Tribe to vest the Tribe with jurisdiction over National Forests in Wasatch

County, including public roads and right-of-ways within those National Forests,

which was not addressed in the Judgment by Consent. Furthermore, Ute V was

both superseded by the Judgment by Consent and essentially overruled by United

States Supreme Court decisions. Ute V was decided in large part on the basis of the

See generally United States v. Morrison, 529 U.S. 598, 618 (2000)(“we can66

think of no better example of the police power, which the Founders . . . reposed in the

States, than the suppression of violent crime and vindication of its victims”).

29


Finality of Judgments Rule, which limits the force and applicability of that decision

to the particular parties and issues decided in that specific case. Therefore, the Ute

Tribe’s appeal should be denied, and the State should be allowed to proceed with

the prosecution of Ms. Jenkins. In addition, the parties should be allowed to

develop the factual record in this case so that the District Court can ultimately

decide the Tribe’s demand for a permanent injunction.

ARGUMENT

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION INDENYING THE TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION

This Court must affirm the District Court unless, in light of the evidence

presented in support of the Motion, the District Court abused its discretion by

denying the request for a Preliminary Injunction. This is a deferential standard67

because the standard for an abuse of discretion is high. In applying the abuse of68

discretion standard, a district court’s ruling is to be upheld unless it “is ‘arbitrary,

capricious, whimsical or manifestly unreasonable’ or when [the reviewing court is]

Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006); Prairie67

Band of Potawatomi Nation, 476 F.3d at 822 (citing SEC v. Pros Int'l, Inc., 994 F.2d 767,

769 (10th Cir.1993)).

See Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1205 (10th Cir.68

2003)(stating that the standard for abuse of discretion is high).

30


convinced that the district court ‘made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.’” Stated otherwise, a district69

court has abused its discretion only if either it “identified and applied [the wrong]

legal rule to the relief requested” or its “resolution of the motion resulted from a

factual finding that was illogical, implausible, or without support in inferences that

may be drawn from the facts in the record.” The Supreme Court has specifically70

recognized that a finding is not clearly erroneous if the evidence in the record will

support more than one interpretation of them based on inferences that may be

drawn from them.71

In the context of reviewing a decision on a motion for a preliminary

injunction, this Court has noted that “the standard of appellate review is simply

whether the issuance of an injunction [or not], in light of the applicable standard,

constituted an abuse of discretion” even though “the standard to be applied by the

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003)(quoting Atlantic69

Richfield Co. v. Farm Credit Bank of Witchita, 226 F.3d 1138, 1163-64 (10th Cir. 2000)).

United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009)(en banc); see70

also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)(either application of an

erroneous view of the law or a clearly erroneous assessment of the evidence constitute

abuse of discretion).

Anderson v. Bessemer City, 470 U.S. 564, 577 (1985).71

31


district court . . . is stringent.” Moreover, the burden is on the moving party to72

establish all four prongs required for issuance of a preliminary injunction. 73

Because the Tribe failed to establish the necessary elements required for the grant

of its requested preliminary injunction, including but not limited to the requirement

of irreparable injury, the District Court did not abuse its discretion in denying the

Motion and its decision must be affirmed.

II. THE UTE TRIBE HAS NOT AND CANNOT MAKE THE NECESSARY SHOWINGS FOR A PRELIMINARY INJUNCTION

The Ute Tribe asserts that Wasatch Appellees did not controvert the

“documentary evidence” that the Tribe submitted in support of the Motion for a

Preliminary Injunction. That is not an accurate statement. It is well settled that74

only admissible evidence can be considered by a court in ruling on motions.75

Furthermore, a court may not consider either hearsay evidence or unsworn

Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 651 (10th Cir. 2004).72

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir.73

2013)(noting that failure to establish any single prong of the four-part test is fatal), aff’d

sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

Tribe’s Brief, p. 28.74

Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).75

32


documents submitted either in support of or in opposition to a party’s motion. A76

declaration or affidavit submitted in support of or in opposition to a motion must

also be based upon the witness’s personal knowledge, and “set out facts that77

would be admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters.” A declarant or affiant also cannot state legal78

opinions or conclusions. Similarly, a declaration or affidavit that makes79

conclusory factual assertions or is based upon speculation is likewise deficient and

not to be considered by the court. Finally, even if the declaration or affidavit is80

neither hearsay nor speculation, and is otherwise free of conclusory statements

Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th Cir.76

1987); See Rogers v. Ford Motor Co., 952 F. Supp. 606, 610 (N.D. Ill. 1997).

See Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003)(statements not77

based upon affiant’s personal knowledge should be stricken).

Federal Rule of Civil Procedure 56(b)(4).78

See Fedler v. Oliverio, 934 F. Supp. 1032, 1047 (N.D. Ind. 1996).79

See, e.g., Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2nd Cir.80

1985); Koclanakis v. Merrimack Mutual Fire Insurance Co., 899 F.2d 673, 675 (7th Cir.

1990); First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co., 891 F. Supp. 510, 514 (N.D.

Cal. 1995).

33


(including legal opinions), it still must be relevant in order to be considered by the

Court. 81

The “documentary evidence” submitted by the Tribe in support of its Motion

was not based upon personal knowledge of the declarants, consisted of improper

legal opinions, contained conclusory rather than factual assertions and/or

constituted hearsay. For example, Ms. Jenkins stated that “my attorney informed

me that, after looking at a jurisdictional map, the area the state trooper listed on my

citation as the location of the alleged traffic offenses is in fact within Indian

Country.” Also, the letter to Ms. Jenkins’ counsel from the Superintendent of the82

BIA Uintah & Ouray Agency stated that the site of the stop “is deemed within the

realm of Indian Country according to Hagen and these lands are within the Original

boundaries of the Uintah Valley Reservation.” Wasatch Appellees asked the83

District Court to strike and not consider this and other such “evidence” submitted

by the Ute Tribe.84

See McKeithen v. S.S. Frosta, 430 F. Supp. 899, 905-906 (E.D. La. 1977).81

Jenkins Declaration ¶ 4, App. 124.82

Letter, App. 129.83

Memorandum Opposing Motion for Summary Judgment, App. 228, 231-235;84

Reply Memorandum re: Motion to Dismiss, App. 281, 294-297; Complaint ¶¶ 17-30, App.

34


More importantly, to obtain a Preliminary Injunction, the Ute Tribe was

required to show: (1) a substantial likelihood of success on the merits; (2)

irreparable harm unless an injunction is issued; (3) that the threatened injury to the

Ute Tribe outweighs any potential harm to the State of Utah or Wasatch County;

and (4) that the injunction, if issued, would not adversely effect the public

interest. The Ute Tribe, however, did not satisfy any of these requirements, which85

is why it is attempting to confine the scope of review to the issue of irreparable

injury.

A. Likelihood of Success on the Merits

The Ute Tribe has not shown that it is likely to succeed on the merits. The

Ute III and Ute V decisions do not support the Tribe’s claim of being likely to

succeed on the merits of this case and obtain a permanent injunction. Neither Ute

III nor Ute V addressed the question of Wasatch County’s regulatory authority over

the National Forest, including enforcement of laws on public roads crossing the

National Forest or to prosecute Ms. Jenkins for the continuing offenses of driving

17-19. This request to strike and objection was authorized by DUCivR 7-1(b)(1)(B).

Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.85

2007).

35


with a suspended license and without an interlock device installed on her vehicle.

But the United States Supreme Court did so in Nevada v. Hicks, and in Strate v.86

A-1 Contractors. 87

The Nevada Court held that states have jurisdiction to prosecute tribal

members for offenses committed off-reservation. Thus the Tribe has NO88

likelihood of success when it comes to the prosecution of Ms. Jenkins for driving

with a suspend license and without an interlock device on her vehicle.

Strate, decided approximately one week prior to Ute V (and not mentioned in

that decision), resolved the question of whether the State of North Dakota or a

tribal government had civil jurisdiction over public roads and rights-of-way passing

through a reservation. The United States Supreme Court came down on the side of

the State of North Dakota. Based upon Strate and its progeny, which hold that it89

is states and NOT Indian tribes that have regulatory authority over public roads and

533 U.S. 353 (2001).86

520 U.S. 438 (1997).87

Nevada, 533 U.S. at 362. 88

See Montana DOT v. King, 191 F.3d 1108 (9th Cir. 1997)(Montana’s89

jurisdiction over public right-of-way through reservation not subject to tribal authority or

control).

36


rights-of-way even if those roads are over trust lands within a reservation, Wasatch

County has the clear authority to enforce the laws of the State and the County upon

all public roads and rights-of-way within the County. The Ute Tribe, however,

ignores this precedent and for good reason: based upon Strate, the Tribe has little

likelihood of success on the merits with respect to the State’s right to prosecute Ms.

Jenkins for the speeding offense. In fact, the Strate decision is even more

compelling since the right-of-way given to the State of Utah in this case was across

the Uinta National Forest and not across trust lands as was the right-of-way in

Strate.

B. Irreparable Injury

A plaintiff satisfies the irreparable harm requirement by showing “a

significant risk that he or she will experience harm that cannot be compensated

after the fact by monetary damages.” Purely speculative harm will not meet this90

burden, and speculative harm is all that the Ute Tribe has presented in support of91

Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003).90

Id.91

37


its Motion. That is so because the harm advanced by the Ute Tribe consists solely92

of a fear that, years from now, it may receive an adverse ruling from some State or

Federal Court with respect to the status of the Uinta National Forest as not being

The Ute Tribe refers the Court to a number of cases in which the exercise of92

State authority with respect to Indians is supposedly “irreparable injury” as a matter of

law supporting the issuance of an injunction. But a fair reading of those cases does not

support the Ute Tribe’s claim. In Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d

1163 (10th Cir. 1998), for example, the Court enjoined the seizure of tribal property,

which is certainly not an issue in this case. Similarly, Comanche Nation v. United States,

393 F. Supp.2d 1196 (W.D. Okla. 2005), Wyandotte Nation v. Sebelius, 443 F.3d 1247

(10th Cir. 2005), Bishop Paiute Tribe v. County of Inyo, 275 F.3d 893 (9th Cir. 2002),

Seneca-Cayuga Tribe of Oklahoma v. Oklahoma, 874 F.2d 709 (10th Cir. 1989), Indian

County, U.S.A., Inc. v. Oklahoma, 829 F.2d 967 (10th Cir. 1987), California v. Cabazon

Band of Mission Indians, 480 U.S. 202 (1987), United Keetoowah Bank of Cherokee

Indians v. Oklahoma, 927 F.2d 1170 (10th Cir. 1991), and Choctaw Nation of Oklahoma

v. Oklahoma, 724 F. Supp 2d 1182 (N.D. Okla. 2010), wherein the various tribes sought

to enjoin the United States or individual States from regulating Indian gaming, are not

analogous to this case. The other case cited by the Tribe are similarly inapposite. See

Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001)(enjoining

enforcement of state motor vehicle titling and licensing laws against motor vehicles

owned, titled and licensed by the tribe), Couer D’Alene Tribe v. Hammond, 224 F.Supp.

2d 1264 (D. Idaho 2002)(enjoining states from collecting motor fuel taxes); and

Winnebago Tribe v. Stovall, 205 F. Supp. 2d 1217 (D. Kan. 2002) (same). In each of

those instance, the states were taking direct action against the tribe which, again, are not

the facts of the instant case. The Tribe also cites South Dakota v. Cummings, 679 N. W.

2d 484 (S.D. 2004) and Farmington v. Benally, 892 F.2d 629 (10 Cir. 1995), for theth

proposition that a constitutional violation is an irreparable harm. However, these two

cases do not address irreparable harm or injunctive relief. Perhaps, more importantly,

South Dakota and Farmington are state court cases wherein the state courts were allowed

to determine their own jurisdiction. It is also noteworthy that much of the decisional law

relied upon by the Ute Tribe either pre-dates or does not address the United States

Supreme Court’s decision in Nevada v. Hicks, 533 U.S. 353 (2001), wherein it was

conclusively established that State authority does NOT end at a reservation’s borders

because reservations are part of the State. Id. at 361.

38


part of its Reservation, which is not an issue before the Court in this case. The

issue in this case is the State of Utah’s and Wasatch County’s jurisdiction over a

public road for which the State received a right-of-way easement from the United

States. Furthermore, the possible future diminishment of the Reservation by the

removal of National Forest Lands is not sufficient harm for the injunctive relief

being sought by the Ute Tribe. That harm is purely speculative. 93

It is significant that the Tribe’s Brief nowhere contests any of the District

Court’s findings of fact that go to the issue of lack of risk of irreparable harm.

Indeed, the District Court specifically noted that its decisions was based on the fact

that the Tribe had not established a risk of irreparable harm “at this time.”94

The Tribe’s argument likewise presumes that the Utah State Courts will incorrectly

decide jurisdictional issues brought before them, which is not only contrary to the

legal principle that state courts be allowed to determine their own jurisdiction and95

Every litigant fears losing. If the Tribe’s fear constitutes “irreparable harm,”93

courts will be forced to grant injunctions to any litigant who asserts fear of losing as

potential irreparable harm.

App. at 354 (emphasis added).94

United States v. United Mine Workers, 330 U.S. 258, 292 fn.57 (1947).95

39


to the presumption that state courts “act in good faith and with judicial wisdom,”96

and likewise assumes that any appeal from an unfavorable decision to the Utah

Supreme Court or United States Supreme Court would also be wrongly decided.

There is also the matter of the Ute Tribe’s delay in bringing this issue before

the Court. Prior to this case, the Ute Tribe has never contested Wasatch County’s

and/or the State of Utah’s exercise of civil and regulatory authority over its

members committing offenses within the Uinta National Forest, including citing

them for traffic offenses on State highways that traverse that land. The Ute Tribe’s

delay in making such a challenge certainly undermines any claim that there is

irreparable harm. This delay likewise raises the issue of whether the Tribe’s97

belated assertion of jurisdiction over National Forest Lands within Wasatch County

is barred by the doctrine of latches, but that question has not been decided, and98

cannot be without a factual record.

Silverman v. Browning, 414 F. Supp. 80, 88 (D. Conn. 1976).96

GTE Corporation v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). 97

See supra fn. 4.98

40


C. Balance of Harm

Issuance of an injunction will cause greater harm to Wasatch County than to

the Tribe because the County will be unable to protect its citizens, including tribal

members, on public roads. The Tribe argues that there is no vital State or County

interest in the criminal prosecution of Ms. Jenkins and proffers two cases in

support of this contention: Seneca-Cayuga Tribe of Oklahoma v. State of

Oklahoma, and Indian Country, U.S.A., Inc. v. Okla. Tax Comm’n. But these99 100

cases are not helpful to the Tribe because they involved situations in which the

federal interests clearly outweighed those of the states because, in both, the State of

Oklahoma was attempting to regulate tribal gaming which had been

congressionally approved, and as held in Indian Country, Oklahoma’s efforts to

regulate tribal gaming had been pre-empted by federal law. These were not cases

involving the prosecution of traffic offenses by an individual tribal member under

State and/or County law, which are matters of enforcement of local criminal law,

874 F.2d 709 (10th Cir. 1989).99

829 F.2d 967 (10th Cir. 1987).100

41


not federal regulatory law. Here, by contrast, the District Court correctly found101

that both the State and County had “a significant interest in trying to make sure that

those roadways are safe for their citizens.” Furthermore, no evidence in the102

record demonstrates whether any law enforcement agency would fill the void if the

injunctive relief requested by the Tribe were granted. The Balance of Harm factor

clearly favors Wasatch County and the State.

D. Public Interest

Notwithstanding the Ute Tribe’s conclusory assertions to the contrary, the

public interest will be adversely affected by the injunctive relief sought in this case.

The public interest is best served by a judicial determination, after full discovery

and development of the facts and law, with respect to the State of Utah’s and

Wasatch County’s right to patrol and enforce the laws against all persons on public

roads within the National Forest Lands. The public interest is also best served by

See Poulson v. Turner, 359 F.2d 588, 591 (10th Cir. 1966)(Under federalism,101

the administration of criminal justice is generally committed to the states).

Transcript of Hearing, App. 414.102

42


having law enforcement take place on these public roads until that jurisdictional

issue has been decided, which was duly noted by the District Court.103

Because the Tribe failed to establish any of the four requirements for

issuance of a preliminary injunction, the District Court properly denied the Tribe’s

Motion, did not abuse its discretion in so doing, and therefore must be upheld.

The followings sections address alternative grounds that this Court is free to rely

on in affirming the District Court’s decision.

III. NATIONAL FOREST LANDS ARE NOT PARTOF THE RESERVATION

According to the reasoning of the United States Supreme Court in Hagen,

the Uinta National Forest, where Ms. Jenkins was stopped and cited, is not part of

the Reservation and/or “Indian Country.” In Hagen, the Court held that: “[T]he

restoration of unallotted reservation lands to the public domain evidenced a

congressional intent with respect to those lands inconsistent with the continuation

of reservation status. Thus, . . . the surplus land Act . . . diminished the

reservation.” While the Hagan decision did not address the status of National104

See Transcript, App. at 414.103

Hagen v. Utah, 510 U.S. 399, 414 (1994).104

43


Forest Lands, a similar careful analysis with respect to those lands would

inexorably lead to the conclusion that the holding of Ute V with respect to National

Forest Lands (based on the doctrine of the law of the case and not a reexamination

of the premises on which Ute III was decided) is an incorrect result.

Indeed, the decision of this District Court in Ute I performed exactly that

kind of careful analysis of the congressional intent behind the creation of the Uinta

National Forest, and held that the original boundaries of the Reservation had been

diminished by the withdrawal of the forest preserve. In particular, the Ute I105

opinion justified its conclusion that the withdrawal of timber lands under the Act of

March 3, 1905 diminished the Reservation by noting: (1) the language of the Act

itself; (2) legislative history of the Act (which expressed the intention that the106

forest lands were set aside free of any claims of the Ute Tribe); (3) the fact that107

forest preservation purposes were inconsistent with a determination that there had

been no diminution, creating a “dissonance” highlighted by subsequent action of

Congress with respect to the issue, including a payment to the Ute Tribe for the

Ute I, 521 F. Supp. 1072, 1136-42 & 1155.105

Id. at 1136.106

Id. at 1137.107

44


acres withdrawn as National Forest Lands (in lieu of the President’s proposal to

restore the forest land to tribal ownership); (4) as well as the administrative108

handling of the forest lands, including the jurisdiction of the Department of

Agriculture rather than the Department of the Interior.109

Wasatch Appellees, therefore, respectfully submit that the decision in

Hagen, that the Reservation was diminished to the extent of the unallocated lands

returned to the public domain, requires a fortiori the conclusion that the withdrawal

of National Forest Lands also diminished the Reservation, particularly given the

fact that the district court’s decision in Ute I found sufficient evidence of

diminution as to National Forest Service Lands, but not with respect to the

unalloted lands that were at issue in Hagen. Nevertheless, the Ute Tribe insists that

it is entitled to this injunctive relief as a matter of law because Ute V ends once and

for all the judicial debate about the State’s and Wasatch County’s authority over

State roads within the Uinta National Forest. However, and more to the point, Ute

V did not and does not end the debate as to the Reservation boundaries or the civil

and/or regulatory authority of the State and County over these National Forest

Id. at 1137-40.108

Id. at 1140-41.109

45


Lands and/or the public roads and rights-of-way that traverse those lands,

particularly because Wasatch County was not involved in the litigation that led to

the Ute V decision, nor a party to the subsequent Judgment by Consent.

This is necessarily so because the portion of Ute V upon which the Tribe

relies in support its request for this extraordinary injunctive relief was based upon

the applicability of the “Finality of Judgments Rule.” That Rule is founded on the

premise that litigation must end some time, and that a court’s mistake in the law

when entering judgment or a change in the judicial view of the law after judgment

does not justify setting a judgment aside. The need for a Finality of Judgments110

Rule is obvious, otherwise every time an appellate court decision changed existing

law there would be a rush to the courthouse to reopen cases and to set aside

judgments based upon the change. This is reflected by the Tenth Circuit’s decision

in Ute V. Hence, the Finality of Judgments Rule supported the Ute III decision as

modified by Ute V.

The Finality of Judgments Rule, however, does not apply as broadly as the

Ute Tribe suggests here because it is actually part of the “law of the case doctrine,”

which is comprised of two prongs: (1) the mandate rule, which prohibits a lower

Collins v. The City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958).110

46


court from relitigating issues that have been decided in the same case by a higher

court; and (2) the general rule that unless corrected by an appellate court, a legal

decision made at one stage of a case constitutes the law on that issue throughout

that case. Moreover, the law of the case doctrine only applies to parties who111

have had their day in court; whereas the injunctive relief requested by the Ute112

Tribe in this case reaches beyond the parties to that prior litigation and the issues

litigated, such as the County’s and the Tribe’s regulatory authority over National

Forest Lands as well as public roads passing through them. Furthermore, the Uinta

National Forest does not meet the definition of “Indian County.”

As analyzed by the United States Supreme Court, in considering the scope of

“Indian Country”: “[T]he test for determining whether land is Indian country [is]

. . . whether the area has been validly set apart for the use of the Indians as such,

under the superintendence of the Government.” This Court’s own precedent is113

See McCullen v. Coakley, 759 F. Supp. 2d 133, 136 (D. Mass. 2010), aff’d, 708111

F.3d 1, 6 (1st Cir. 2013), rev’d on other grounds, 134 S.Ct. 2518 (2014).

See Board of Commissioners for the Orleans Levee District v. Newport112

Limited, 578 So.2d 191, 193 (La. App. 1991).

Oklahoma Tax. Comm’n v. Citizen Bank Potawatomi Indian Tribe of Okla.,113

498 U.S. 505, 511 (1991)(citing United States v. John, 437 U.S. 634 (1978)(internal

quotations omitted); see also South Dakota v. United States DOI, 475 F.3d 993, 999 (8th

Cir. 2007).

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consistent with, and has applied the principle that “Indian country” encompasses

only land “set apart for the use of the Indians as such.” 114

Here, the land in question is National Forest Land, the purposes of which are

not limited to or provided for the benefit of Indians. Indeed, National Forests are

held and administered “for the purpose of securing favorable conditions of water

flows, and to furnish a continuous supply of timber for the use and necessities of

citizens of the United States.” Clearly the purposes behind the set aside of115

National Forest Lands is not for the use of Indians, but the citizens of the United

States as a whole. In light of such purposes, the set aside of National Forest Lands

from within what may have been the original boundaries of the Ute Tribe’s

reservation is inconsistent with the view that such lands have not been withdrawn

from the Reservation, and the National Forest Lands also do not fall within the

definition of “Indian country.” 116

Hydro Resources, Inc. v. EPA, 1131, 1148 (10th Cir. 2010)(en banc).114

16 U.S.C. § 475.115

This position is not inconsistent with the statutory definition of “Indian country”116

under 18 U.S.C. § 1151, which limits “Indian country” to (a) “land within the limits of

any Indian reservation”; (b) dependent Indian communities; and (c) unextinguished

Indian titles under Indian allotments, because the set-aside requirement is subsumed in the

use of the term “reservation” in clause (a). While this definition, by its terms, relates only

to federal criminal jurisdiction, the Supreme Court has acknowledged its importance in

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IV. THE ANTI-INJUNCTION ACT DOES NOT SUPPORT THE UTE TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION

The Anti-Injunction Act provides that: “A court of the United States may not

grant an injunction to stay proceedings in a State court except as expressly

authorized by an Act of Congress, or where necessary in aid of its jurisdiction or to

protect or effectuate its judgments.” The Ute Tribe contends that, based upon117

Ute III and Ute V, the injunctive relief it seeks should be granted to preclude the

State and County from relitigating the Reservation’s boundaries through the

prosecution of Ms. Jenkins. Ute III and Ute V , however, did not and do not end118

the debate as to the Reservation boundaries or the civil and/or regulatory authority

of Wasatch County over the National Forest Lands and/or the public roads and

rights-of-way that traverse those lands, especially since Wasatch County was not a

defining civil jurisdiction as well. See Alaska v. Native Village of Venetie Tribal Gov’t,

522 U.S. 520, 527 (1998) (also holding that, to constitute “Indian country,” land must

have been both set aside for “use of the Indians as Indian land” and “be under federal

superintendence”). See also Hydro Resources, Inc., 608 F.3d at 1148 (noting that

“[t]hrough an Act of Congress or some equally explicit executive action, . . . the federal

government must identify the land as ‘set apart for the use of Indians as such.’”).

Withdrawal of the National Forest Lands from the Ute Reservation therefore effectuated

its exclusion from the definition of the term “Indian country.”

28 U.S.C. § 2283.117

Tribe’s Brief, pp. 21-22.118

49


party to the litigation that led to the Ute III and Ute V decisions, or the subsequent

Judgment by Consent. More importantly, as noted by the District Court, these119

decisions did not address Wasatch County’s jurisdiction over public roads and

rights-of-way that traverse National Forest Lands within the County. There is,

therefore, no res judicata or collateral estoppel at play in this case. In short, the

“relitigation exception” in the Anti-Injunction Act does not apply to Wasatch

County because it is not “relitigating” anything.

The Ute III and Ute V decisions are also not binding upon Wasatch County

because that portion of Ute V upon which the Tribe relies to support its argument

about the applicability of the Anti-Injunction Act was based upon the “Finality of

Judgments Rule” which has no applicability to the County. Furthermore, the issue

of the Ute Tribe’s jurisdiction over Federal, State and County roads within Wasatch

County was not even mentioned, much less addressed in an unambiguous manner

in the Judgment by Consent. In addition, the Utah governmental entities that were

a party to Ute V and the Judgment by Consent never agreed to divest themselves of

civil and criminal jurisdiction over the National Forests Lands in Utah. Wasatch

County, not having been a party to either Ute V or the Judgment by Consent, is in

Transcript of Hearing, App. 378, 386-87.119

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an even stronger position, having never agreed to cede to the Ute Tribe (nor could

the State or Wasatch County have ceded to the Ute Tribe) the jurisdiction that the

Tribe seeks in this lawsuit. 120

Thus, Ute III, Ute V and/or the Judgment by Consent cannot serve as a basis

for the injunctive relief that the Tribe is now seeking. The Tribe’s claim that the121

County is without jurisdiction over offenses committed by “Indians” does not alter

that fact. Neither does it matter that the Ute Tribe is asking for a judicial122

declaration on the issue of Wasatch County’s jurisdiction in addition to an

injunction against prosecution. Hence, the declaratory-injunctive relief requested123

This is so because, as previously noted, if those persons living or present in that120

vast area of Utah were to be subjected to the governmental authority of the Ute Tribe,

they would enjoy none of the protections of the Bill of Rights or the Fourteenth

Amendment, and not even the United States can give away the constitutional rights of its

citizens. Reid v. Covert, 354 U.S. 1 (1956)(Congress cannot, by treaty or legislation, give

away the rights provided to citizens under the Constitution).

See Association for Retarded Citizens of Connecticut, 30 F.3d at 368-70 (All121

Writs Act does not authorize the Court to enforce a private Judgment by Consent against a

non-party to that agreement).

See Alexander Bird In The Ground v. District Court, 239 F. Supp. 981, 983 (D.122

Mont. 1965)(a potential civil rights violation will not override the limitations of 28 U.S.C.

§ 2283).

When the Court is precluded from enjoining state court proceedings, it is123

likewise precluded from proceeding to issue a declaratory judgment that would have

essentially the same effect as an injunction. See Chandler v. O’Bryan, 445 F.2d 1045,

1058(10th Cir. 1971); Neway Anchorlok International, Inc. v. Longwood Indusries, Inc.,

51


by the Tribe is NOT necessary to promote or effectuate those judgments, and

therefore is not within that exception to the Anti Injunction Act, because Wasatch

County is not bound by them. Therefore, the Anti-Injunction Act precludes the

District Court from enjoining the prosecution of Ms. Jenkins.

The Supreme Court has indicated that, in applying use of the “relitigation

exception” to the Anti-Injunction Act, “every benefit of the doubt goes toward the

state court,” and “an injunction can only issue if the preclusion is clear beyond

peradventure,” because the use of such an injunction “is resorting to heavy

artillery.” Moreover, because “the issue the federal court decided must be the124

same as the one presented in the state tribunal,” the Ute Tribe cannot meet this125

requirement. The issues raised by the Ute cases concerned the extent of the

diminishment or disestablishment of the Ute Reservation, whereas the state

proceeding in this matter entails the related, but distinct, issues of whether Wasatch

County and the State of Utah may bring a criminal prosecution of a particular

defendant for criminal conduct on a State road, the elements of which may not have

107 F. Supp. 2d 810, 813 (W.D. Mich. 1999).

Smith v. Bayer Corp., 113 S. Ct. 2368, 2375 (2011)(emphasis added).124

Id., 113 S. Ct. at 2376.125

52


occurred within the exterior boundaries of the Ute Reservation or the National

Forests. The Ute cases never dealt with issues of state court jurisdiction over

Tribal members for off-reservation criminal conduct, even if an arrest occurs within

Indian country. The Ute Tribe’s characterization of the issues and facts of this case

cannot overcome the fact that the state court prosecution in this case involves

different issues than those in the Ute cases. Therefore, because the relief sought by

the Ute Tribe here does not fall within the narrow exception to the Anti-Injunction

Act, it is barred by that Act.

The requested relief is also barred by the Younger Abstention Doctrine,

pursuant to which “[a]bsent unusual circumstances, a federal court is not permitted

to intervene in ongoing state criminal procedings” when adequate state relief is

available. Moreover, abstention is mandatory if (1) there is an ongoing state126

criminal or civil proceeding, (2) “the state court provides an adquate forum to hear

the claims raised in the federal complaint,” and (3) “the state proceedings involve

Walck v. Edmondson, 472 F.3d 1227, 1232 (10th Cir. 2007)(citing Younger v.126

Harris, 404 U.S. 37, 54 (1971)).

53


important state interests, matters which traditionally look to state law for their

resolution or implicate separately articulated state policies.”127

All three of the conditions for mandatory abstention are present here: there is

an ongoing state criminal prosecution, the state court provides an adequate forum

for the claims raised in the federal complaint (including the question of whether the

state has jurisdiction over the defendant under the circumstances of the case), and

the state proceedings involve substantial state interests (including the protection of

motorists using public rights of way and the sanctity of sanctions imposed in prior

proceedings) and traditional state matters.

STATEMENT OF COUNSEL AS TO ORAL ARGUMENT

Oral argument is not requested. The law with respect to the Ute Tribe’s

request for injunctive relief is well established. Hence, Wasatch Appellees submit

that oral argument would not be of assistance to the Court in deciding this case.

CONCLUSION

The Ute Tribe concludes its Brief with an offensive analogy comparing

Wasatch Appellees refusal to accept its view of the law to the late Governor of

Alabama George C. Wallace’s infamous promise of “segregation now, segregation

Id. at 1233 (citations and quotations omitted).127

54


tomorrow, segregation forever.” However, there is an analogy that can be drawn

and should be drawn from the civil rights struggle such as Plessy v. Ferguson,128

the 1896 case in which the United States Supreme Court held that segregation was

not unconstitutional. Under the Ute Tribe’s reasoning, following the Plessy

decision the Southern States would have been entitled to an Order prohibiting

anyone else from ever revisiting in any court or law-applying forum the issue of the

constitutionality of segregation, and further ordering that no one should obey any

court decision that was inconsistent with Plessy. Under the Tribe’s reasoning,

which is that although a matter effecting basic civil rights is wrongly decided it

cannot be challenged, we would not have Brown v. Board of Education, and129

segregation would still be the law of the land.

But rather than inflammatory rhetoric, the focus should be upon the fact that

the District Court did not abuse its discretion in denying the injunction sought by

the Ute Tribe. That denial is also bolstered by the principle that cautions that

“[a]ny doubts as to the propriety of a federal injunction against state court

proceedings should be resolved in favor of permitting the state courts to proceed in

163 U.S. 537 (1896).128

347 U.S. 483 (1954).129

55


an orderly fashion to finally determine the controversy.” Moreover, to hold130

otherwise would not only be contrary to the legal principle that state courts be

allowed to determine their own jurisdiction, but it would also be contrary to the131

presumption that State Courts “act in good faith and with judicial wisdom.” 132

Simply put, “when Federal questions arise in cases pending in the state courts,

those courts are perfectly competent to decide them.” “Mere apprehension that133

the state court will not adequately protect a federal right is not a sufficient basis for

the issuance of an injunction.” Wasatch Appellees, therefore, respectfully134

request that this Court affirm the District Court’s denial of a Preliminary Injunction

and vacate the Tenth Circuit’s Order staying the prosecution of Ms. Jenkins.

Atl. Coast Line R.R. Co. V. Bhd. Of Locomotive Eng’rs, 398 U.S. 281, 297130

(1970).

United States v. United Mine Workers, 330 U.S. 258, 292 n.57(1947). The Ute131

Tribe represents to the Court that the issue of jurisdiction in this instance will be decided

by a non-lawyer state court judge unless the preliminary injunction issues. That is not

true. While the justice court judge before whom Ms. Jenkins case is pending may be a lay

person, decisions of the justice court are appealed and decided de novo by the district

courts of the State of Utah. See Utah Code §78A-7-118 and Utah R. Cr. P. 38.

Silverman v. Browning, 414 F. Supp. 80, 88(D. Conn. 1976).132

Chandler, 445 F.2d at 1057-1058 (quoting from Missouri Pac. Ry. Co. v.133

Fitzgerald, 160 U.S. 556, 583 (1896)).

Id. at 1058.134

56


Dated this 11 day of August, 2014.th

SUITTER AXLAND, PLLC

/s/ jesse c. trentadue Jesse C. TrentadueCarl F. HuefnerNoah M. HoaglandBritton R. Butterfield

Attorneys for Wasatch County, Scott Sweat, and Tyler J. Berg


CERTIFICATE OF COMPLIANCE

Section 1. Word Count

As required by Fed. R. App. P. 32(a)(7)(c), I certify that this brief is

proportionally spaced and contains 13,907 words.

Complete one of the following:

X I relied on my word processor to obtain the count and it is

WordPerfect X4.

I counted five characters per word, counting all characters including

citations and numerals.

Section 2. Line Count

My brief was prepared in a monospaced typeface and contains 1,294 lines of

text.

I certify that the information on this form is true and correct to the best of my

knowledge and belief formed after a reasonable inquiry.

/s/ jesse c. trentaude

58


CERTIFICATE OF DIGITAL SUBMISSION and PRIVACY REDACTIONS

I hereby certify that a copy of the foregoing WASATCH APPELLEES’

BRIEF, as submitted in Digital Form via the court’s ECF system, is an exact copy

of the written document filed with the Clerk and has been scanned for viruses with

the Avast version 4.8, updated daily and, according to the program, is free of

viruses. In addition, I certify that all required privacy redactions have been made.

/s/ jesse c. trentadue

59


CERTIFICATE OF SERVICE

I, Jesse C. Trentadue, counsel for Defendant and Appellee hereby certify that on the

11 day of August, I served two copies of the foregoing WASATCH APPELLEES’th

BRIEF plus one copy of the SUPPLEMENTAL APPENDIX along with a disk

containing an electronic copy of both via U.S. Mail, postage prepaid, upon:

J. Preston Stieff

J. PRESTON STIEFF LAW OFFICES

136 East South Temple, Suite 2400

Salt Lake City, Utah 84111

Attorneys for Plaintiff-Appellant Ute

Indian Tribe

Randy S. Hunter

Katharine H. Kinsman

Assistant Utah Attorney General

Sean D. Reyes

Utah Attorney General

Utah State Capital

350 North State St., Ste. 230

Salt Lake City, UT 84114-2320

Attorney for Defendant-Appellee State of

Utah

Frances C. Bassett, Pro Hac Vice

Todd K. Gravelle, Pro Hac Vice

FREDERICKS PEEBLES & MORGAN LLP

1900 PLAZA Drive

Louisville, CO 80027-2314


Indian Tribe

Jeffrey S. Rasmussen, Pro Hac Vice

FREDERICKS PEEBLES & MORGAN LLP

1900 Plaza Drive

Louisville, Colorado 80027-2314


Indian Tribe

/s/ jesse c. trentadue

T:\4000\4530\122\WASATCH 10TH CIRCUIT BRIEF.wpd

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