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DENNIS J. WHITTLESEY DICKINSON WRIGHT PLLC 1875 Eye Street, NW – Suite 1200 Washington, DC 20006 Telephone: 202-659-6928 Facsimile: 202-659-1559 Email: [email protected]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WATER WHEEL CAMP RECREATIONAL AREA, INC., Plaintiff / Cross-Appellant, and ROBERT JOHNSON, Plaintiff / Appellee, v. GARY LaRANCE, in his official capacity as Chief and Presiding Judge of the Colorado River Indian Tribal Court, and JOLENE MARSHALL, in her capacity as Clerk of the Colorado River Indian Tribal Court, Appellants / Cross-Appellees. _______________________________

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Case Nos. 09-17349 & 09-17357 (CONSOLIDATED) District Court Case No.: 2:08-cv-00474 WATER WHEEL'S

EMERGENCY MOTION UNDER

CIRCUIT RULE 27-3 &

FRAP 8(a) FOR ORDER

ENJOINING TRIBAL COURT

PARTIES FROM ISSUING WRIT

OF RESTITUTION ORDERING

CRIT TRIBAL POLICE TO

EVICT WATER WHEEL NOW

RULING REQUESTED PRIOR

TO CLOSE OF BUSINESS ON

WEDNESDAY, SEPTEMBER 8,

2010.

Case: 09-17349 08/30/2010 Page: 1 of 24 ID: 7456555 DktEntry: 43-1

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I. INTRODUCTION

Pursuant to Circuit Court Rule 27-3(a) and Federal Rule of Appellate

Procedure 8(a)(2), Cross-Appellant Water Wheel Camp Recreational Area, Inc.

(“Water Wheel”) files this Emergency Motion. Water Wheel asks this Court to

immediately enjoin Cross-Appellees, The Honorable Gary LaRance, a judge for the

Colorado River Indian Tribes' ("CRIT") Tribal Court (“Tribal Court”), and Tribal

Court Chief Court Clerk Jolene Marshall, together with their successors and any

person(s) acting by or through them (collectively known herein as "Tribal Court

Parties"), from issuing or filing with the Tribal Court the [Proposed] Writ of

Restitution ("Writ") filed by CRIT in Tribal Court on August 17, 2010. Water

Wheel further requests an order enjoining the Tribal Court Parties from otherwise

taking any action to authorize the eviction of Water Wheel from its leasehold

unless and until this Court has ruled on the merits of the parties' cross-appeals

which have been fully briefed and are pending before this Court.

Water Wheel previously sought the same injunctive relief from the U.S.

District Court for the District of Arizona (“District Court”) on November 10, 2009.

Water Wheel, et al. v. Gary LaRance, et al., 2:08-cv-00474-DCG (D. Ariz.),

Motion for Stay (Dkt. 89). The District Court denied that Motion (see CRIT

Motion, Ex. 6), as discussed infra.


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On August 17, 2010, CRIT filed in Tribal Court the motion which is the

subject of this Emergency Motion. See Motion for Issuance of Writ of Restitution

(“CRIT Motion”) attached hereto as Exhibit A, and [Proposed] Writ of Restitution

(“Writ”), attached hereto as Exhibit B.1 That Motion requests that Judge LaRance

order the Tribal Police to immediately forcibly evict Water Wheel and forcibly

remove Water Wheel's agents and personal property pursuant to the very Tribal

Court Judgment and Order which is before this Court and which would be

invalidated in toto by a ruling here in Water Wheel’s favor.

The urgency of this matter is underscored by the District Court's refusal to

stay the Tribal Court jurisdiction and the fact that Judge LaRance has set a hearing

on the CRIT Motion for the afternoon of Friday, September 10. If he grants the

CRIT Motion at that hearing, the Tribal Police will be ordered to immediately

enter the Water Wheel property and execute a forcible eviction and property

confiscation: Water Wheel would have no recourse because the eviction will have

been executed by CRIT, an entity not subject to this Court's jurisdiction. The only

remedy available to Water Wheel is for this Court to enjoin Judge LaRance now,

because CRIT has sovereign immunity and, thus, is not subject to this Court's

1 In support of the CRIT Motion, CRIT filed the Declaration of tribal attorney Winter King (“Declaration”), which includes portions of a transcript of a deposition of Appellee Robert Johnson, dated February 29, 2008, attached hereto as Exhibit C.


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jurisdiction including any remedial post-eviction orders issued here or in or any

other federal court.

As is discussed, infra, the issue on appeal in this Court is whether the Tribal

Court had the jurisdictional authority over Water Wheel to order the very eviction

CRIT now seeks to implement. This issue has been fully briefed and awaits

resolution by this Court.

Significantly, the CRIT Motion was filed only six (6) days after Water

Wheel filed its final Reply (Dkt. 41), which Motion ostensibly ignores the

existence of the appeal itself despite CRIT's actual participation through its Motion

to participate as an amicus curiae (Dkt. 19). Rather than await any decision here,

CRIT is asking its Tribal Court to (1) ignore this appeal, (2) negate any potential

ruling in Water Wheel's favor under Montana v. United States, 450 U.S. 544

(1981), and (3) once again exercise the very jurisdiction over Water Wheel which

is directly at issue in this appeal.

If Judge LaRance should order the CRIT Tribal Police to evict Water Wheel,

the eviction and forcible removal will be immediate and CRIT will be permanently

in possession of the property because Water Wheel will have no legal ability to

compel its retreat. Such a result would render both moot and – from a practical

standpoint – impossible any meaningful review or resolution of this Lease dispute

in the manner and the forum to which CRIT and Water Wheel agreed in the Lease


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(and which Water Wheel consistently has argued is proper). Thus, Judge LaRance

will have "won" the appeal by his own hand through fait accompli, rather than

Ninth Circuit determination. Such cannot be the lawful and just result which the

appellate procedures were established to ensure.

II. BACKGROUND

On March 11, 2008, Water Wheel and its CEO Robert Johnson filed

litigation in the District Court seeking declaratory and injunctive relief to the effect

that the Tribal Court lacked jurisdiction over an eviction action brought by CRIT

against both Water Wheel and Johnson, personally. See Resp. Br. of Appellee

and Cross-Appellant's Principal Br. (“WW Resp. Br.”), at 1 (Dkt. 33). More

specifically, Water Wheel and Johnson sought review of a Tribal Court Order (and

a Tribal Court of Appeals’ decision upholding the same) finding that the Tribal

Court had jurisdiction over both Water Wheel and Johnson, evicting them, and

assessing approximately $4 million in damages against Water Wheel and Johnson

personally (a ruling which required piercing the corporate veil as a sanction, and

not based on any actually-adjudicated factual determination). ER-122-23.

On September 23, 2009, following briefing and oral argument, District Court

Judge David G. Campbell ruled that the Tribal Court was without jurisdiction over

Johnson. ER-15. At the same time, and despite finding that Water Wheel's


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argument carried "persuasive force," Judge Campbell found that the Tribal Court

had jurisdiction over Water Wheel to order eviction and money damages. Id. at 11.

On October 22, 2009, the Tribal Court Parties conceded this Court’s

jurisdiction over the matters before Judge Campbell by filing their Notice of

Appeal with this Court seeking to overturn that portion of the District Court's

ruling which granted relief to Johnson. WW Resp. Br., at 1. The next day,

October 23, 2009, Water Wheel filed its Notice of Appeal from that portion of the

District Court's Order which denied relief to Water Wheel. Id. The parties have

now completed briefing in this case and it is ready for this Court's consideration.

This Emergency Motion follows a previous attempt by Water Wheel to

secure judicial protection from a tribal “self-help” eviction by CRIT. See Water

Wheel, et al. v. Gary LaRance, et al., 2:08-cv-00474-DCG (D. Ariz.), Exhibit A to

Motion for Stay (Dkt. 89-1), attached hereto as Exhibit D. On November 10, 2009,

Water Wheel filed in the District Court its Motion for stay pending appeal. See

CRIT Motion, Ex. 5. The District Court denied Water Wheel's motion with the

conclusion the Tribal Court Parties were "likely to prevail" on Water Wheel's

appeal for all "the reasons set forth in [its own] order on the merits." See CRIT

Motion, Ex. 6 p. 2.2

2 It is not surprising that the District Court denied Water Wheel’s motion for

stay on the basis that it did not believe Water Wheel would prevail on the merits, because the District Court had just recently entered its Order finding that the Tribal


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In denying the stay, the District Court refused to apply the "sliding scale"

analysis proposed by Water Wheel, wherein a party may be granted a stay when

"serious legal questions are raised and the balance of hardships tips in its favor."

CRIT Motion, Ex. 6, p. 2. The Court limited its assessment to its perception of

Water Wheel's likelihood for success on the merits, and gave no consideration to

any other factor. Id. As explained, infra, the standard for stay proposed by Water

Wheel is the standard adopted by this Court. Accordingly, the District Court's

denial was inappropriate and the instant Emergency Motion for Stay should be

entered.

On May 14, 2010, the Tribal Court Parties filed their Principal Brief (Dkt.

13) in this Court. On May 21, 2010, only one week after the Tribal Court Parties

filed their brief, CRIT filed its Motion for Leave to File an Amicus Curiae Brief

(Dkt. 19), in support of the Tribal Court Parties' May 14 brief.

On May 26, 2010, CRIT filed a Motion to Take Judicial Notice of Public

Records and Tribal Code (Dkt. 25), in which it requested that this Court take notice

Court did have the very jurisdiction over Water Wheel being contested on appeal. CRIT’s present Motion and attempt to end-run the appellate process, filed just days after the completion of briefing in this Court, suggests that CRIT does not share the confidence of the District Court that Water Wheel will not prevail on the merits. One thing is certain: without the injunctive relief sought by Water Wheel in this Emergency Motion, Water Wheel’s prospects of meaningful success on the merits will indeed drop to zero – a wholly improper and inequitable result.


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of materials not before the District Court and, thus, not a matter of record in this

case.3

On June 28, 2010, Water Wheel and Johnson filed their Principal and Reply

Brief (Dkt. 33) arguing, respectively, that the District Court incorrectly found that

the Tribal Court had jurisdiction over the Tribe’s eviction action against Water

Wheel, and correctly held that the Tribal Court was without jurisdiction over

Johnson.

On July 28, 2010, the Tribal Court Parties filed their Reply/Response Brief

(Dkt. 37). Briefing was concluded on August 11, 2010, when Water Wheel filed

its Reply Brief (Dkt. 41).

Although the issue of whether the Tribal Court had jurisdiction to issue the

Order allowing CRIT to evict Water Wheel is now pending before this Court,

CRIT now is asking the Tribal Court to continue its exercise of jurisdiction over

Water Wheel. See CRIT Motion, 2-3. To reiterate and emphasize, CRIT has

requested Judge LaRance to immediately issue the Writ, and he is free to do so at

any time. If and when that Writ is issued, the CRIT Tribal Police are commanded

to execute the Writ and forcibly evict Water Wheel and its agents, and confiscate

3 Although its amicus brief has yet to be considered by the Merits Panel, CRIT receives electronic notice and service of all documents filed herein and is fully aware of the procedural status. See Water Wheel Recreational Area, Inc., et

al. v. Gary LaRance, et al., No. 09-17349, General Docket, Attorneys of Record.


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its property. See Writ at 1. The eviction must be completed within 10 days of

issuance of the Order. Id. at 2.

While Judge LaRance has scheduled a hearing on the CRIT Motion in his

court, the reality is that he can issue the Writ at that hearing, meaning that it

would be immediately enforceable and Water Wheel would have no recourse.

Eviction and property confiscation will be completed immediately after the CRIT

Police leave the Tribal Court.

III. LEGAL ARGUMENT

A. Standard

A party seeking relief under FRAP 8(a) and Circuit Court Rule 27-3(a) must

establish that: (1) it is likely to succeed on the merits; 2) it is likely to suffer

irreparable harm in the absence of relief; 3) the balance of equities tips in its favor;

and 4) a stay is in the public interest. See Am. Trucking Ass'n, Inc. v. City of L.A.,

559 F.3d 1046, 1052 (9th Cir. 2009); Humane Soc'y of the U.S. v. Gutierrez, 558

F.3d 896, 896 (9th Cir. 2009).

This Court has ruled that the courts should balance the four elements when

determining whether injunctive relief is proper, and a stronger showing as to one

element may offset a weaker showing as to another. See Alliance for the Wild

Rockies v. Cottrell, 2010 U.S. App. Lexis 15537, *9-10 (9th Cir. July 28, 2010) ("a

stronger showing of irreparable harm to plaintiff might offset a lesser showing of


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likelihood of success on the merits") (emphasis added, additional citation omitted).

That decision confirmed that the Ninth Circuit courts should apply a "sliding scale"

analysis, wherein an "injunction could issue where the likelihood of success is such

that 'serious questions going to the merits were raised and the balance of hardships

tips sharply in plaintiff's favor.'" Id. at *10. A party that satisfies the "serious

questions" requirement may be granted an injunction if it can also show that the

balancing of equities tips in its favor and the stay is in the public interest. Id. at

*10-11.

B. Water Wheel Can Establish The Requisite Elements, And Is

Thus Entitled To A Stay Pending Resolution Of Appeal

1. Water Wheel Has Raised Serious Questions Going to

the Merits

As stated above, the District Court refused to issue Water Wheel's requested

stay pending appeal because the Court Campbell did not believe that Water Wheel

was likely to succeed on the merits. CRIT Motion, Ex. 6 at 2. In doing so,

however, the District Court wrongfully rejected the "serious questions" test which

provides that an injunction may issue when the moving party shows "sufficiently

serious questions going to the merits to make them a fair ground for litigation and

that the balance of hardships tip[s] decidedly toward [the moving party]." Alliance

for the Wild Rockies, at *15.


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There is little doubt that Water Wheel has raised serious questions deserving

this Court's consideration (and, as discussed below, will experience irreparable

harm and the equities lie in Water Wheel's favor). Given the apparent exigencies

of the circumstances and the duplicative nature of the arguments, to establish the

merits of its appeal, Water Wheel respectfully references pages 52 - 69 of its initial

brief on appeal (Dkt. 33), and its reply brief (Dkt. 41). Cf. Alliance for the Wild

Rockies, at *16 (reciting 10th Circuit's similar standard under which "a movant

need only show questions going to the merits, so serious, substantial, difficult and

doubtful, as to make the issues ripe for litigation and deserving of more deliberate

investigation").

The crux of Water Wheel's argument, however, is a simple one: under the

seminal case of Montana v. United States, supra, the Tribal Court was without

jurisdiction over the non-Indian corporation, Water Wheel, to order the eviction

and money damages. The Tribal Court's invocation of jurisdiction, based upon an

after-enacted Tribal Ordinance – to which Water Wheel never consented and thus,

pursuant to the terms of its lease with the Tribe, cannot be bound – was erroneous.

The District Court affirmed this ruling and – consequently – impermissibly

broadened the narrow exceptions of Montana.

Water Wheel has fully briefed the merits of its appeal and articulated the

reasons why the District Court’s determination regarding Tribal Court jurisdiction


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was incorrect. This Court should be permitted to conduct a more “deliberate

investigation" of the questions raised by Water Wheel, and that requires an

immediate stay prohibiting the Tribal Court Parties from granting the CRIT Motion

and Water Wheel’s appeal.

2. If No Stay Is Entered, Water Wheel Will Suffer

Irreparable Harm

To establish this element, Water Wheel need only quote from the proposed

Writ that has been presented to the CRIT Tribal Court for entry. Judge LaRance

can execute the proposed Writ at any time, including during the September 10

hearing. Once he does so, the CRIT Police would be empowered and commanded

to immediately execute its terms, forcibly evicting Water Wheel and confiscating

its property. See Writ at 2.

To fulfill the mandate of the Writ, the CRIT Police must, inter alia:

1. remove Water Wheel, including all of its agents and employees, from the premises . . . and defend possession of the premises for Plaintiff CRIT; [and] 2. supervise the removal of Water Wheel's possessions.

See Writ at 1-2. And Water Wheel property on the site when the CRIT Police

arrive and will be stored by CRIT and sold after 30 days. Id. at 2.

Water Wheel is a camp and recreational facility. If it is evicted, and its

property (and potentially at least some property belonging to those Water Wheel

customers using the facilities) is confiscated, the reality is that there never will be


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be an opportunity for Water Wheel to re-enter the premises even if it prevails here.

With its property lost and no legal remedies with which to combat CRIT's tribal

sovereign immunity from suit, there will be nothing to which Water Wheel will be

able to return. It would have no legal remedy through which it could reverse or

seek restitution for what would then be an adjudicated illegal eviction.

This de facto contingency is both real and addressed in Water Wheel's briefs

on appeal, in which it argues that any determination by this Court that the Tribal

Court – rather than the Secretary of the Interior – had jurisdiction to allow the

Tribe directly to enforce the Lease would "eliminate[] the [Lease's] administrative

remedy while the sovereign immunity of tribes bars relief against the Tribe."

Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1075 (9th Cir. 1983) (citing

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). If this Court does not

immediately enjoin the Tribal Court from executing the Writ, that inaction will

foreclose any remedy to which this Court ultimately may find Water Wheel is

entitled. Water Wheel will have won a Pyrrhic victory, for it would have the

determination of the rights it asserted throughout the Tribal Court process, but no

remedy to recover what was taken. This is the very definition of irreparable harm.

Bannercraft Clothing Co., Inc. v. Renegotiation Bd., 466 F.2d 345, 353, n. 9 (D.C.

Cir.1972), rev'd on other grounds, 415 U.S. 1 (1974) ("[t]he very thing which

makes an injury irreparable is the fact that no remedy exists to repair it"); see also


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U.S. v. Am. Friends Serv. Comm., 419 U.S. 7, 11 (1974) ("inadequacy of available

remedies goes . . . to the existence of irreparable injury"); Youngstown Sheet and

Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (determinations of whether an injury

is irreparable and whether adequate legal remedies are available are "closely

related, if not identical"). Cf. Cal. Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d

847, 851-52 (9th Cir. 2009) (even monetary injuries may be irreparable if

sovereign immunity will bar a party from ever recovering those damages in federal

court).

3. The Balance of Equities Tips in Water Wheel's Favor

The Water Wheel resort has existed at its present location since the mid-

1970s. If a stay is entered, thereby preserving the status quo for the several months

needed to fully adjudicate the appeal, Water Wheel would be able to continue its

decades-old business at the Colorado River. However, if Water Wheel is unable to

secure a stay of execution pending appeal, the CRIT Police quickly will destroy

that business.

And while the harm to Water Wheel absent a stay will be both swift and

permanent, granting the stay will cause to the Tribe little-to-no immediate harm.

As stated above, the Water Wheel leasehold is long-standing. Even during the

protracted process of this current dispute, the parties (Water Wheel and CRIT)

have coexisted in relative peace. That is to say, while the status quo here


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obviously would prevent CRIT from taking immediate possession of the land, it

will do no more than that.

4. A Stay of Execution is in the Public Interest

The issue on appeal is one of vast significance with regard to the parameters

of tribal court jurisdiction, with a potentially profound impact on non-Indians and

non-Indian businesses doing business in Indian Country. Water Wheel here

contends that the Tribal Court impermissibly and without jurisdiction entered

against it an order of eviction and a $4 million judgment against it. Without the

order here sought, the precedent that non-Indians have limited remedies in federal

courts will surely cause some new evaluations as to when and where companies

should do business.

It is in the public interest to have this matter resolved in the courts, and not

via a police action mounted by CRIT. The CRIT Motion was filed only a few days

after the parties concluded appellate briefing in this matter, and it is nothing more

than a tribal maneuver designed to sidestep this Court's review of the very Tribal

Court jurisdiction at issue by simply proceeding with an eviction which effectively

would render moot this Court’s review of the Water Wheel appeal. Cf. Plains

Comm. Bank v. Long Fam. Land and Cattle Co., 554 U.S. 316, __; 128 S. Ct.

2709, 2716-17 (2008) (question of whether a tribal court has jurisdiction over a

non-member of the tribe is a question of federal law and, thus, if federal court finds


15

tribal court was without jurisdiction, tribal court judgment as to non-member is

"necessarily null and void"); FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311,

1314 (9th Cir. 1990) ("federal courts are the final arbiters of federal law" and tribal

court jurisdiction over non-member is a federal legal question). Without the stay,

Water Wheel will be destroyed, regardless of the outcome of this appeal. And to

permit that destruction, when the status quo has such a negligible effect upon

CRIT, would serve no public interest.

Instead, it is in the public's interest to understand that non-Indians can do

business with tribes, and that disputes arising between the two will nonetheless be

decided under the proper laws and jurisdictional principles, and in accordance with

the terms of any Lease or other contract, pursuant to the mechanisms agreed to by

the parties. Nothing less is here at stake.

It is certainly in the public interest that federal courts remain the final

arbiters of federal law, including the question of the extent of tribal court

jurisdiction over non-members. FMC, 905 F.2d at 1314 (scope of tribal court

jurisdiction over non-members is a question of federal law). As such, federal

courts must be permitted to determine whether a tribal court had jurisdiction to

enter a judgment against a non-member before a tribal court avoids such judicial

review by ordering execution of the judgment. This is especially true when a non-

member would have no remedy if federal courts later found that the tribal court


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was without jurisdiction to enter the judgment in the first instance. That is to say,

tribal courts are not, and cannot be, the courts of last resort as to disputes which are

controlled by federal law, especially when they propose to become the ultimate

authority through default. Cf. Plains Commerce, 554 U.S. at __; 128 S. Ct. at

2724 (tribal sovereignty exists “outside the basic structure of the Constitution" and

the "Bill of Rights does not apply to Indian tribes . . . [and] Indian courts differ

from traditional American courts in a number of significant respects") (additional

citation and quotations omitted).

IV. CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, Cross-Appellant Water Wheel respectfully

requests that this Honorable Court grant this Motion and enter an order

immediately enjoining Cross-Appellees, The Honorable Gary LaRance and CRIT

Chief Court Clerk Jolene Marshall, together with their successors and any

//

//

//

//


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person(s) acting by or through them, from issuing the Writ filed by CRIT in its

Tribal Court on August 17, 2010, or otherwise taking any action to evict Water

Wheel unless and until this Court has ruled on the merits of the parties' pending

appeals.

Dated: August 30, 2010 Respectfully submitted, s/ Dennis J. Whittlesey

Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 [email protected]


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CIRCUIT RULE 27-3 CERTIFICATE

1. ADDRESSES AND TELEPHONE NUMBERS OF

ATTORNEYS/PARTIES:

Attorney for Plaintiff/Cross-Appellant and Appellee

DENNIS J. WHITTLESEY DICKINSON WRIGHT PLLC 1875 Eye Street, NW – Suite 1200 Washington, DC 20006 Telephone: 202-659-6928 Facsimile: 202-659-1559 Email:[email protected]

Attorney for Appellants/Cross-Appellees

TIM VOLLMANN California Bar State Bar #58541 3301-R Coors Rd. N.W. #302 Albuquerque, NM 87120 Email: [email protected] Telephone: 505-881-2627

2. FACTS AS TO EXISTENCE AND NATURE OF CLAIMED

EMERGENCY

On August 17, 2010, CRIT filed with the Tribal Court a Motion for Issuance

of Writ of Restitution and a [Proposed] Writ of Restitution requesting that the

Tribal Court exercise jurisdiction over Water Wheel and command the immediate

and forcible eviction of Water Wheel. The aforementioned Motion and proposed

Writ were served on counsel for Water Wheel in the afternoon on August 19, 2010

via first class mail.

The validity of the Tribal Court's jurisdiction over the Water Wheel eviction

action (which forms the basis for the Tribe's Motion and Writ) is the very issue

pending, fully briefed and now ready for this Court's review and ruling. Should the


ii

Tribal Court issue the Writ prior to this Court's examination of and ruling on the

issues before it, the CRIT Tribal Police are immediately commanded to forcibly

evict Water Wheel and its agents from the leasehold and remove and confiscate all

of its personal property therefrom. Consequently, Water Wheel’s appeal and this

Court’s review and ruling on the merits of the appeal will be rendered entirely

moot.

3. NOTICE AND SERVICE

On August 19, 2010, via telephone conversations, Counsel for Cross-

Appellant, Water Wheel Camp Recreational Area, Inc. notified Tim Vollmann,

counsel for the Appellants/Cross-Appellees, of their intent to file this Emergency

Motion. Counsel for Water Wheel also certifies that on August 19, 2010, the Clerk

of this Court and the Motions Attorney Unit were informed via telephone of Water

Wheel's intention to file this Motion for Stay.

On August 20, 2010, Counsel for the Tribal Court Parties, Tim Vollmann,

contacted Counsel for Water Wheel's office and stated that Judge LaRance

intended, in the very near future, to schedule a hearing regarding the Writ and that

Judge LaRance would not take any action on CRIT's Motion until the hearing had

been conducted. Relying on Mr. Vollmann’s representations, Water Wheel agreed

to defer the filing of its Emergency Motion and to await a scheduling order before

taking any further action with respect to the filing. Consequently, Counsel for


iii

Water Wheel telephonically informed the Clerk of this Court and the Motions

Attorney Unit of Water Wheel's intention to delay filing of its Emergency Motion

for Stay.

On Friday, August 27, 2010, Counsel for Water Wheel and Robert Johnson

received e-mail correspondence from Judge LaRance scheduling a hearing on

CRIT’s Motion for September 10, 2010, and setting a briefing schedule. On

Monday, August 30, 2010, Counsel for Water Wheel telephonically contacted both

Mr. Vollmann and this Court's Motions Attorney Unit and advised them of Water

Wheel’s intent to file this Motion on that date.

Counsel for Water Wheel also certifies that all participants in the case are

registered CM/ECF users and that service will be accomplished by the appellate

CM/ECF system.

4. WHETHER RELIEF WAS AVAILABLE AT THE DISTRICT

COURT

Counsel for Water Wheel certifies that he filed a motion for stay pending

appeal in this matter with the District Court. That Motion was summarily denied

by Judge Campbell on December 18, 2009. In that motion, Water Wheel argued

for all the same reasons advanced in the instant Emergency Motion that it would

experience irreparable harm if evicted.

In denying the Motion for Stay, the District Court stated that Water Wheel's

"likelihood of success on the merits and [possibility of] irreparable injury" were the


iv

most critical elements to be considered and, in turn, must be satisfied before the

Court would consider the second two factors: balance of equities and public

interest. See CRIT Motion, Ex. 6 at 2.

Although the District Court concluded that Water Wheel had not presented

argument with respect to its likelihood of success based on the merits, it declared

even if Water Wheel had done so the Court "would disagree" and "for all the

reasons set forth in the Court's order on the merits." Id. at 2, n. 1. Accordingly, the

District Court denied the motion with the conclusion that that the Tribal Court

Parties were likely to prevail on appeal and no stay would be appropriate. Id.

Thus, based on that element alone, the Court denied Water Wheel's Motion.

The District Court's denial of Water Wheel's Motion for stay was grounded

firmly in its belief that its own decision on the merits was correct and its belief

that this Court unquestionably would agree. Frankly, the District Court's previous

refusal to stay was so firmly stated that there is no rational expectation that its

opinion would change with a refreshed or expanded argument in a second Motion

for stay. For this reason, Water Wheel is asking this Court to preserve Water

Wheel's appeal by enjoining the Tribal Court Parties from ordering the Writ and

mooting this appeal.


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Accordingly, it is just and proper for this Court to now consider this Motion

for stay of execution pending the outcome of Water Wheel's appeal which is now

ripe for this Court's review and ruling.

Dated: August 30, 2010 Respectfully submitted, s/ Dennis J. Whittlesey

Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 [email protected]


CERTIFICATE OF SERVICE

I hereby certified that on this 30th day of August 2010, I did file with this

Court and did serve via ECF/Pacer Electronic Filing, all parties, Water Wheel's

Emergency Motion Under Circuit Rule 27-3 and FRAP 8(a) for Order Enjoining

Tribal Court From Issuing Writ of Restitution Ordering CRIT Tribal Police to

Evict Water Wheel Now.

s/ Dennis J. Whittlesey Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928

[email protected]


EXHIBIT A


EXHIBIT B


EXHIBIT C


EXHIBIT D


COLORADO RIVER INDIAN TRIBE'SColorado River Indian Reservation

ROUTE BOX 23 IsPARKF.R. ARIZONA 853,1,1

Tiii.EPH(3NFI (92g ) (k9-1280FAX (928) 6(19 I 391

October 21, 2000

To Members or the Water Wheel Resort:

We are writing to inform you of the recent result of a lawsuit brought by the Colorado River Indian Tribes("cRir . or "Tribes") against the owner and operator of Water Wheel Resort ("Resort"). As yov may heaware, between 1975 and 2007 the Resort was operated hy Water Wheel Camp Recreational Area, Inc.("Water Wheel") pursuant to a lea.se with the Tribes. This lease authorized Water Wheel to develop andoperate the Re:sort on tribal lands in exeltang,e for annual mitt and other payments to CRIT. The lease furtherrequired that 'Water Wheel vatate the premises and (um the Resort over to the `fribes at the end of the leaseterrn.

When the lease expited itt 2007, however, Water Wheel rcfused to return the property to the Tribes. CRITsubsequently brought suit in Tribal Court, seeking to cvict Water Wheel and its owner, Robt....rt Johnson, and torecover unpaid rent. The Tribal Court ruled in the Tribes' favor, and the Tribal Court of Appeals upheld thatruling.

On September 21, 2009, the federal district court for► the district of Arizona ruled that the Tribal Courrsexercise of jurisdiction over Water Wheel was proper, and thus left the Tribal Court's judgment against WaterWheel in full force and effect. Accordingly, r.Rrr intends to tzike the first step in eilfbreing the Tribal Court'sjudgment against Water Wheel by removing the company from the property. No further action in state orfederal court is neCessary to enforce this portion of the Tribal ('.oures judgment.'

Once Water Wheel is removed from the premises.. CRIT plans to fake over tnanagement and operation of theResort. Please note that CRIT intends to honor all existing, valid subleases between Water Wheel andindividual Members of the Resort as tont.; as the Member is in compliance with the sublease's terms. As aresult, the Tribes' action against Water Wheel shotdd not interfere with y ►ur use and enjoyment of the Resort.

If you have any questions about this matter, plcase contact Attorney Ciencrall Erie Shepard at (928) 669-1271.

Sincerely,

COLORAI)0 RIVER INDIAN TRIBES

Orr Q:Zerit4f:0°"'('

Eldred linasChairman

r Because the federal court ruled that the 'fribal C'ourt did not have jurisdiction over Robert Johnson asan individual, CRIT is not seeking to enforce the Tribal C.'ourt's judgment against Robert Johnsen at this lime.However. CRIT reserves its right as the lawful owner to remove any trespassers round on the property.

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Case 2:08-cv-00474-DGC Document 89-1 Filed 11/10/09 Page 2 of 2Case: 09-17349 08/30/2010 Page: 2 of 2 ID: 7456555 DktEntry: 43-5

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