v. - turtle talk · defendant j. mark keller, lee boling and boyd goodpaster anonymously went onto...
TRANSCRIPT
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The Honorable Judge Robert J Bryan
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT TACOMA
ROBERT REGINALD Case No3 16-cv-05464-RJB COMENOUT SR et al
Plaintiffs PLAINTIFFS RESPONSE TO FEDERAL DEFENDANTS
v MOTION TO DISMISS DATED APRIL 132017
PIERCE COUNTY SUPERIOR COURT et al
Defendants
Plaintiffs respond to Defendants Boyd Goodpaster J Mark Keller and
Lee Bolings Motion dated April 13 2017 to dismiss the original Complaint
filed in this Court on June 102016
The Complaint seeks a declaratory judgment and injunction not
damages Plaintiffs request that the Court declare that federal law governs
Public Domain Allotment No 130-1207 908920 River Road Puyallup
Response to Motion to Dismiss dated April 13 2017 - 1 ROBERT E KOVACEVICH PLLC
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Washington in the same way as federally chartered banks and military
bases located within the exterior boundaries of the state of Washington
Plaintiffs Robert Reginald Comenout Sr and Edward Amos Comenout
III are joint owners (with others) with rights of survivorship of the off-
reservation allotment
Plaintiff Edward Amos Comenout III is Not a Party in Any Prior Litigation He Clearly States a Claim for Declaratory Judgment to
Define His Future Use Without Fear of Raids of Defendants
The factual allegations of Plaintiff Edward Amos Comenout III alone
establish his claim He is one of the joint owners of the allotment He lives
on the allotment Complaint Dkt 1 page 13 He is an enrolled
Muckleshoot Indian Complaint Dkt 1 page 16 He is not a criminal
defendant Complaint Dkt 1 page 24 He is entitled to federal court
jurisdiction pursuant to 25 USC sectsect 3455108 Complaint Dkt 1 page
10 He is approximately 24 years old Complaint Dkt 1 page 43 As an
enrolled Indian he can own an allotment even if it is not on an Indian
reservation Complaint Dkt 1 page 19 25 USC sect 334 The deed
restrictions are still in place Complaint Dkt 1 page 9 Edward Amos
Comenout III lives on the land but has not worked or participated in the
operation of the convenience store on the allotment He has never been
accused or charged in any way with any participation in the convenience
store operation on the allotment Complaint Dkt 1 page 17
Response to Motion to Dismiss dated April 13 2017 - 2 ROBERT E KOVACEVICH PLLC
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Plaintiff Edward Amos Comenout III alleges that J Mark Keller Lee
Boling and Boyd Goodpaster who work in concert cannot go onto the
allotment and arrest or regulate him for violations of state law Complaint
Dkt 1 pages 7 8 He seeks a declaration that he can sell cannabis and
hemp products on the allotment and also without payment of state tax
Complaint pages 9 1049 Menominee Indian Tribe of Wisconsin v DEA
190 FSupp3d 843 (DC EDWis 2016) found jurisdiction to determine
whether hemp could be grown in Indian country without requiring the
Indian tribe to incur the harm and expense of actually growing the product
Prudential standing served both parties Id at 851 Concern of raids and
inability to purchase or contract with suppliers are sufficient to find
constitutional standing US v White Plume 447 F3d 1067 1075 (8th Cir
2006) Defendant J Mark Keller Lee Boling and Boyd Goodpaster
anonymously went onto the allotment for years to investigate They did not
make assessments Instead they took Plaintiffs inventory all their money
and arrested them
The Affidavit for Probable Cause by J Mark Keller in State v Robert
Reginald Comenout Sr State ofWashington Pierce County No1 1-02002shy
3 copy attached to Counsels Declaration filed with this Motion is the
Defendants justification for the raids Contrary to J Mark Kellers
Declaration that he always acted as an ATF person is that the Probable
Response to Motion to Dismiss dated April 13 2017 - 3 ROBERT E KOVACEVICH PLLC
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Cause Affidavit is executed as Lieutenant Washington State Liquor Control
Board A federal officer cannot submit a state probable cause affidavit
Collateral Estoppel Comity and Allegations that Plaintiffs are Litigants in State Court
Do Not Apply to Edward Amos Comenout III
Lee Boling filed a Declaration Dkt 55 3132017 stating that he is
an officer with the Washington State Liquor and Cannabis Board He states
that he has been commissioned as a task force officer of the ATF but does
not indicate or attach the commission Boyd Goodpaster filed a
Declaration Dkt 56 3132017 that he is an ATF Special Agent He then
concludes to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
employment with the ATF J Mark Keller filed a Declaration 3132017
Dkt 57 He states he is a Lieutenant with the Washington State Liquor and
Cannabis Board He states that he has been commissioned by the ATF
and that to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
assignment with ATF as a Task Force Officer This is totally contrary to his
Affidavit of Probable Cause attached Douglas Smythes Affidavit attached
to Plaintiffs Counsels Declaration Dkt 21 1032016 merely states that
I was personally involved in a joint tribal Federal and state task force
assigned to investigate the illegal activities occurring at the Indian Country
Response to Motion to Dismiss dated April 13 2017 - 4 ROBERT E KOVACEVICH PLLC
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Store in Puyallup Washington That establishment is located on land held
in trust by the federal government for the benefit of the decedent I was
personally present and participated in the execution of a federal search
warrant at that property on September 19 2012 He states the Nation is
owed $47353347 He has no authority on the allotment
The Declaration of Counsel Dkt 21 10132016 also attached a
page containing a probable cause state determination (Exhibit D) and pages
18-20 (Exhibit C) stating that Boyd Goodpaster and J Mark Keller went
onto the premises and bought cigarettes The affidavits failed to note that
they identified themselves Circumstantial evidence would prove that they
did not indicate their identity Lee Boling and J Mark Keller state under
oath that they are state employees but all their actions in the case were for
the ATF To Plaintiffs knowledge Goodpaster did not execute state
probable cause affidavits
The Rooker-Feldman Doctrine does not apply to Edward Amos
Comenout III for the reason that Edward Amos Comenout III has not been
a party to any state court suit He also has not been in privity to any of the
other co-Plaintiffs Even if he was in privity this requirement does apply to
the Rooker-Feldman doctrine Lance v Dennis 546 US 459 126 SCt
1198 163 LEd2d 1059 (2006) We now note jurisdiction and address
whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding
Response to Motion to Dismiss dated April 132017 - 5 ROBERT E KOVACEVICH PLLC
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because they were in privity with a party in Salazar We conclude it does
not and vacate the judgment of the District Court Id at 462-3 If the
party has not had a full and fair opportunity to litigate the doctrine does
not apply Beres v US 92 FedCL 737 748 (Ct Cc 2010) applying
Washington law
The Plaintiffs Counsel is aware that some of the cases argued by
Plaintiffs have been rejected Plaintiffs have not sought further
amendments As noted by new cases that have been decided since this case
was filed the famous Colville case see WashRevCode sect 8224080(4) has
to say the least been eroded Indian Tribes now have cigarette compacts
with the state Non Indian business if the state seeks more taxes receive
notices and are entitled to pre collection due process The state law
WashRevCode sect 8232A020(3) gives redress where laws have been found
unconstitutionaL WashRevCode sect 8232A020(5) gives taxpayers the right
to receive upon request clear and complete tax instructions and other
information WashRevCode sect 8232A005 states The rights privacy and
property of Washington taxpayers should be protected adequately during
the process of the assessment and collection of taxes The Plaintiffs were
never contacted before seizure and arrest They should not have to risk
seizure and arrest to find out what they can do on the property
Declaratory judgment is the only non violent remedy Here the state has
never sent Plaintiffs a tax assessment
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
Response to Motion to Dismiss dated April 13 2017 7 ROBERT E KOVACEVICH PLLC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
Response to Motion to Dismiss dated April 13 2017 - 8 ROBERT E KOVACEVICH PLLC
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
Response to Motion to Dismiss dated April 132017 9 ROBERT E KOVACEVICH PLLC
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
Response to Motion to Dismiss dated April 13 2017 10 ROBERT E KOVACEVICH PLLC
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
ROBERT E KOVACEVICH PLLC A PROFESSIONAL LIMITED LIABILITY COMPANYResponse to Motion to Dismiss dated April 13 2017 - 11
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
Response to Motion to Dismiss dated April 132017 - 12 ROBERT E KOVACEVICH PLLC
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 13 ROBERT E KOVACEVICH PLLC
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
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Washington in the same way as federally chartered banks and military
bases located within the exterior boundaries of the state of Washington
Plaintiffs Robert Reginald Comenout Sr and Edward Amos Comenout
III are joint owners (with others) with rights of survivorship of the off-
reservation allotment
Plaintiff Edward Amos Comenout III is Not a Party in Any Prior Litigation He Clearly States a Claim for Declaratory Judgment to
Define His Future Use Without Fear of Raids of Defendants
The factual allegations of Plaintiff Edward Amos Comenout III alone
establish his claim He is one of the joint owners of the allotment He lives
on the allotment Complaint Dkt 1 page 13 He is an enrolled
Muckleshoot Indian Complaint Dkt 1 page 16 He is not a criminal
defendant Complaint Dkt 1 page 24 He is entitled to federal court
jurisdiction pursuant to 25 USC sectsect 3455108 Complaint Dkt 1 page
10 He is approximately 24 years old Complaint Dkt 1 page 43 As an
enrolled Indian he can own an allotment even if it is not on an Indian
reservation Complaint Dkt 1 page 19 25 USC sect 334 The deed
restrictions are still in place Complaint Dkt 1 page 9 Edward Amos
Comenout III lives on the land but has not worked or participated in the
operation of the convenience store on the allotment He has never been
accused or charged in any way with any participation in the convenience
store operation on the allotment Complaint Dkt 1 page 17
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Plaintiff Edward Amos Comenout III alleges that J Mark Keller Lee
Boling and Boyd Goodpaster who work in concert cannot go onto the
allotment and arrest or regulate him for violations of state law Complaint
Dkt 1 pages 7 8 He seeks a declaration that he can sell cannabis and
hemp products on the allotment and also without payment of state tax
Complaint pages 9 1049 Menominee Indian Tribe of Wisconsin v DEA
190 FSupp3d 843 (DC EDWis 2016) found jurisdiction to determine
whether hemp could be grown in Indian country without requiring the
Indian tribe to incur the harm and expense of actually growing the product
Prudential standing served both parties Id at 851 Concern of raids and
inability to purchase or contract with suppliers are sufficient to find
constitutional standing US v White Plume 447 F3d 1067 1075 (8th Cir
2006) Defendant J Mark Keller Lee Boling and Boyd Goodpaster
anonymously went onto the allotment for years to investigate They did not
make assessments Instead they took Plaintiffs inventory all their money
and arrested them
The Affidavit for Probable Cause by J Mark Keller in State v Robert
Reginald Comenout Sr State ofWashington Pierce County No1 1-02002shy
3 copy attached to Counsels Declaration filed with this Motion is the
Defendants justification for the raids Contrary to J Mark Kellers
Declaration that he always acted as an ATF person is that the Probable
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Cause Affidavit is executed as Lieutenant Washington State Liquor Control
Board A federal officer cannot submit a state probable cause affidavit
Collateral Estoppel Comity and Allegations that Plaintiffs are Litigants in State Court
Do Not Apply to Edward Amos Comenout III
Lee Boling filed a Declaration Dkt 55 3132017 stating that he is
an officer with the Washington State Liquor and Cannabis Board He states
that he has been commissioned as a task force officer of the ATF but does
not indicate or attach the commission Boyd Goodpaster filed a
Declaration Dkt 56 3132017 that he is an ATF Special Agent He then
concludes to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
employment with the ATF J Mark Keller filed a Declaration 3132017
Dkt 57 He states he is a Lieutenant with the Washington State Liquor and
Cannabis Board He states that he has been commissioned by the ATF
and that to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
assignment with ATF as a Task Force Officer This is totally contrary to his
Affidavit of Probable Cause attached Douglas Smythes Affidavit attached
to Plaintiffs Counsels Declaration Dkt 21 1032016 merely states that
I was personally involved in a joint tribal Federal and state task force
assigned to investigate the illegal activities occurring at the Indian Country
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Store in Puyallup Washington That establishment is located on land held
in trust by the federal government for the benefit of the decedent I was
personally present and participated in the execution of a federal search
warrant at that property on September 19 2012 He states the Nation is
owed $47353347 He has no authority on the allotment
The Declaration of Counsel Dkt 21 10132016 also attached a
page containing a probable cause state determination (Exhibit D) and pages
18-20 (Exhibit C) stating that Boyd Goodpaster and J Mark Keller went
onto the premises and bought cigarettes The affidavits failed to note that
they identified themselves Circumstantial evidence would prove that they
did not indicate their identity Lee Boling and J Mark Keller state under
oath that they are state employees but all their actions in the case were for
the ATF To Plaintiffs knowledge Goodpaster did not execute state
probable cause affidavits
The Rooker-Feldman Doctrine does not apply to Edward Amos
Comenout III for the reason that Edward Amos Comenout III has not been
a party to any state court suit He also has not been in privity to any of the
other co-Plaintiffs Even if he was in privity this requirement does apply to
the Rooker-Feldman doctrine Lance v Dennis 546 US 459 126 SCt
1198 163 LEd2d 1059 (2006) We now note jurisdiction and address
whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding
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because they were in privity with a party in Salazar We conclude it does
not and vacate the judgment of the District Court Id at 462-3 If the
party has not had a full and fair opportunity to litigate the doctrine does
not apply Beres v US 92 FedCL 737 748 (Ct Cc 2010) applying
Washington law
The Plaintiffs Counsel is aware that some of the cases argued by
Plaintiffs have been rejected Plaintiffs have not sought further
amendments As noted by new cases that have been decided since this case
was filed the famous Colville case see WashRevCode sect 8224080(4) has
to say the least been eroded Indian Tribes now have cigarette compacts
with the state Non Indian business if the state seeks more taxes receive
notices and are entitled to pre collection due process The state law
WashRevCode sect 8232A020(3) gives redress where laws have been found
unconstitutionaL WashRevCode sect 8232A020(5) gives taxpayers the right
to receive upon request clear and complete tax instructions and other
information WashRevCode sect 8232A005 states The rights privacy and
property of Washington taxpayers should be protected adequately during
the process of the assessment and collection of taxes The Plaintiffs were
never contacted before seizure and arrest They should not have to risk
seizure and arrest to find out what they can do on the property
Declaratory judgment is the only non violent remedy Here the state has
never sent Plaintiffs a tax assessment
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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Plaintiff Edward Amos Comenout III alleges that J Mark Keller Lee
Boling and Boyd Goodpaster who work in concert cannot go onto the
allotment and arrest or regulate him for violations of state law Complaint
Dkt 1 pages 7 8 He seeks a declaration that he can sell cannabis and
hemp products on the allotment and also without payment of state tax
Complaint pages 9 1049 Menominee Indian Tribe of Wisconsin v DEA
190 FSupp3d 843 (DC EDWis 2016) found jurisdiction to determine
whether hemp could be grown in Indian country without requiring the
Indian tribe to incur the harm and expense of actually growing the product
Prudential standing served both parties Id at 851 Concern of raids and
inability to purchase or contract with suppliers are sufficient to find
constitutional standing US v White Plume 447 F3d 1067 1075 (8th Cir
2006) Defendant J Mark Keller Lee Boling and Boyd Goodpaster
anonymously went onto the allotment for years to investigate They did not
make assessments Instead they took Plaintiffs inventory all their money
and arrested them
The Affidavit for Probable Cause by J Mark Keller in State v Robert
Reginald Comenout Sr State ofWashington Pierce County No1 1-02002shy
3 copy attached to Counsels Declaration filed with this Motion is the
Defendants justification for the raids Contrary to J Mark Kellers
Declaration that he always acted as an ATF person is that the Probable
Response to Motion to Dismiss dated April 13 2017 - 3 ROBERT E KOVACEVICH PLLC
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Cause Affidavit is executed as Lieutenant Washington State Liquor Control
Board A federal officer cannot submit a state probable cause affidavit
Collateral Estoppel Comity and Allegations that Plaintiffs are Litigants in State Court
Do Not Apply to Edward Amos Comenout III
Lee Boling filed a Declaration Dkt 55 3132017 stating that he is
an officer with the Washington State Liquor and Cannabis Board He states
that he has been commissioned as a task force officer of the ATF but does
not indicate or attach the commission Boyd Goodpaster filed a
Declaration Dkt 56 3132017 that he is an ATF Special Agent He then
concludes to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
employment with the ATF J Mark Keller filed a Declaration 3132017
Dkt 57 He states he is a Lieutenant with the Washington State Liquor and
Cannabis Board He states that he has been commissioned by the ATF
and that to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
assignment with ATF as a Task Force Officer This is totally contrary to his
Affidavit of Probable Cause attached Douglas Smythes Affidavit attached
to Plaintiffs Counsels Declaration Dkt 21 1032016 merely states that
I was personally involved in a joint tribal Federal and state task force
assigned to investigate the illegal activities occurring at the Indian Country
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Store in Puyallup Washington That establishment is located on land held
in trust by the federal government for the benefit of the decedent I was
personally present and participated in the execution of a federal search
warrant at that property on September 19 2012 He states the Nation is
owed $47353347 He has no authority on the allotment
The Declaration of Counsel Dkt 21 10132016 also attached a
page containing a probable cause state determination (Exhibit D) and pages
18-20 (Exhibit C) stating that Boyd Goodpaster and J Mark Keller went
onto the premises and bought cigarettes The affidavits failed to note that
they identified themselves Circumstantial evidence would prove that they
did not indicate their identity Lee Boling and J Mark Keller state under
oath that they are state employees but all their actions in the case were for
the ATF To Plaintiffs knowledge Goodpaster did not execute state
probable cause affidavits
The Rooker-Feldman Doctrine does not apply to Edward Amos
Comenout III for the reason that Edward Amos Comenout III has not been
a party to any state court suit He also has not been in privity to any of the
other co-Plaintiffs Even if he was in privity this requirement does apply to
the Rooker-Feldman doctrine Lance v Dennis 546 US 459 126 SCt
1198 163 LEd2d 1059 (2006) We now note jurisdiction and address
whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding
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because they were in privity with a party in Salazar We conclude it does
not and vacate the judgment of the District Court Id at 462-3 If the
party has not had a full and fair opportunity to litigate the doctrine does
not apply Beres v US 92 FedCL 737 748 (Ct Cc 2010) applying
Washington law
The Plaintiffs Counsel is aware that some of the cases argued by
Plaintiffs have been rejected Plaintiffs have not sought further
amendments As noted by new cases that have been decided since this case
was filed the famous Colville case see WashRevCode sect 8224080(4) has
to say the least been eroded Indian Tribes now have cigarette compacts
with the state Non Indian business if the state seeks more taxes receive
notices and are entitled to pre collection due process The state law
WashRevCode sect 8232A020(3) gives redress where laws have been found
unconstitutionaL WashRevCode sect 8232A020(5) gives taxpayers the right
to receive upon request clear and complete tax instructions and other
information WashRevCode sect 8232A005 states The rights privacy and
property of Washington taxpayers should be protected adequately during
the process of the assessment and collection of taxes The Plaintiffs were
never contacted before seizure and arrest They should not have to risk
seizure and arrest to find out what they can do on the property
Declaratory judgment is the only non violent remedy Here the state has
never sent Plaintiffs a tax assessment
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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Cause Affidavit is executed as Lieutenant Washington State Liquor Control
Board A federal officer cannot submit a state probable cause affidavit
Collateral Estoppel Comity and Allegations that Plaintiffs are Litigants in State Court
Do Not Apply to Edward Amos Comenout III
Lee Boling filed a Declaration Dkt 55 3132017 stating that he is
an officer with the Washington State Liquor and Cannabis Board He states
that he has been commissioned as a task force officer of the ATF but does
not indicate or attach the commission Boyd Goodpaster filed a
Declaration Dkt 56 3132017 that he is an ATF Special Agent He then
concludes to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
employment with the ATF J Mark Keller filed a Declaration 3132017
Dkt 57 He states he is a Lieutenant with the Washington State Liquor and
Cannabis Board He states that he has been commissioned by the ATF
and that to the extent that any of the actions complained of in the
Complaint occurred they were undertaken in the course and scope of my
assignment with ATF as a Task Force Officer This is totally contrary to his
Affidavit of Probable Cause attached Douglas Smythes Affidavit attached
to Plaintiffs Counsels Declaration Dkt 21 1032016 merely states that
I was personally involved in a joint tribal Federal and state task force
assigned to investigate the illegal activities occurring at the Indian Country
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Store in Puyallup Washington That establishment is located on land held
in trust by the federal government for the benefit of the decedent I was
personally present and participated in the execution of a federal search
warrant at that property on September 19 2012 He states the Nation is
owed $47353347 He has no authority on the allotment
The Declaration of Counsel Dkt 21 10132016 also attached a
page containing a probable cause state determination (Exhibit D) and pages
18-20 (Exhibit C) stating that Boyd Goodpaster and J Mark Keller went
onto the premises and bought cigarettes The affidavits failed to note that
they identified themselves Circumstantial evidence would prove that they
did not indicate their identity Lee Boling and J Mark Keller state under
oath that they are state employees but all their actions in the case were for
the ATF To Plaintiffs knowledge Goodpaster did not execute state
probable cause affidavits
The Rooker-Feldman Doctrine does not apply to Edward Amos
Comenout III for the reason that Edward Amos Comenout III has not been
a party to any state court suit He also has not been in privity to any of the
other co-Plaintiffs Even if he was in privity this requirement does apply to
the Rooker-Feldman doctrine Lance v Dennis 546 US 459 126 SCt
1198 163 LEd2d 1059 (2006) We now note jurisdiction and address
whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding
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because they were in privity with a party in Salazar We conclude it does
not and vacate the judgment of the District Court Id at 462-3 If the
party has not had a full and fair opportunity to litigate the doctrine does
not apply Beres v US 92 FedCL 737 748 (Ct Cc 2010) applying
Washington law
The Plaintiffs Counsel is aware that some of the cases argued by
Plaintiffs have been rejected Plaintiffs have not sought further
amendments As noted by new cases that have been decided since this case
was filed the famous Colville case see WashRevCode sect 8224080(4) has
to say the least been eroded Indian Tribes now have cigarette compacts
with the state Non Indian business if the state seeks more taxes receive
notices and are entitled to pre collection due process The state law
WashRevCode sect 8232A020(3) gives redress where laws have been found
unconstitutionaL WashRevCode sect 8232A020(5) gives taxpayers the right
to receive upon request clear and complete tax instructions and other
information WashRevCode sect 8232A005 states The rights privacy and
property of Washington taxpayers should be protected adequately during
the process of the assessment and collection of taxes The Plaintiffs were
never contacted before seizure and arrest They should not have to risk
seizure and arrest to find out what they can do on the property
Declaratory judgment is the only non violent remedy Here the state has
never sent Plaintiffs a tax assessment
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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Store in Puyallup Washington That establishment is located on land held
in trust by the federal government for the benefit of the decedent I was
personally present and participated in the execution of a federal search
warrant at that property on September 19 2012 He states the Nation is
owed $47353347 He has no authority on the allotment
The Declaration of Counsel Dkt 21 10132016 also attached a
page containing a probable cause state determination (Exhibit D) and pages
18-20 (Exhibit C) stating that Boyd Goodpaster and J Mark Keller went
onto the premises and bought cigarettes The affidavits failed to note that
they identified themselves Circumstantial evidence would prove that they
did not indicate their identity Lee Boling and J Mark Keller state under
oath that they are state employees but all their actions in the case were for
the ATF To Plaintiffs knowledge Goodpaster did not execute state
probable cause affidavits
The Rooker-Feldman Doctrine does not apply to Edward Amos
Comenout III for the reason that Edward Amos Comenout III has not been
a party to any state court suit He also has not been in privity to any of the
other co-Plaintiffs Even if he was in privity this requirement does apply to
the Rooker-Feldman doctrine Lance v Dennis 546 US 459 126 SCt
1198 163 LEd2d 1059 (2006) We now note jurisdiction and address
whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding
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because they were in privity with a party in Salazar We conclude it does
not and vacate the judgment of the District Court Id at 462-3 If the
party has not had a full and fair opportunity to litigate the doctrine does
not apply Beres v US 92 FedCL 737 748 (Ct Cc 2010) applying
Washington law
The Plaintiffs Counsel is aware that some of the cases argued by
Plaintiffs have been rejected Plaintiffs have not sought further
amendments As noted by new cases that have been decided since this case
was filed the famous Colville case see WashRevCode sect 8224080(4) has
to say the least been eroded Indian Tribes now have cigarette compacts
with the state Non Indian business if the state seeks more taxes receive
notices and are entitled to pre collection due process The state law
WashRevCode sect 8232A020(3) gives redress where laws have been found
unconstitutionaL WashRevCode sect 8232A020(5) gives taxpayers the right
to receive upon request clear and complete tax instructions and other
information WashRevCode sect 8232A005 states The rights privacy and
property of Washington taxpayers should be protected adequately during
the process of the assessment and collection of taxes The Plaintiffs were
never contacted before seizure and arrest They should not have to risk
seizure and arrest to find out what they can do on the property
Declaratory judgment is the only non violent remedy Here the state has
never sent Plaintiffs a tax assessment
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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because they were in privity with a party in Salazar We conclude it does
not and vacate the judgment of the District Court Id at 462-3 If the
party has not had a full and fair opportunity to litigate the doctrine does
not apply Beres v US 92 FedCL 737 748 (Ct Cc 2010) applying
Washington law
The Plaintiffs Counsel is aware that some of the cases argued by
Plaintiffs have been rejected Plaintiffs have not sought further
amendments As noted by new cases that have been decided since this case
was filed the famous Colville case see WashRevCode sect 8224080(4) has
to say the least been eroded Indian Tribes now have cigarette compacts
with the state Non Indian business if the state seeks more taxes receive
notices and are entitled to pre collection due process The state law
WashRevCode sect 8232A020(3) gives redress where laws have been found
unconstitutionaL WashRevCode sect 8232A020(5) gives taxpayers the right
to receive upon request clear and complete tax instructions and other
information WashRevCode sect 8232A005 states The rights privacy and
property of Washington taxpayers should be protected adequately during
the process of the assessment and collection of taxes The Plaintiffs were
never contacted before seizure and arrest They should not have to risk
seizure and arrest to find out what they can do on the property
Declaratory judgment is the only non violent remedy Here the state has
never sent Plaintiffs a tax assessment
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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The Younger abstention also does not apply if a person is not a party
to the state court proceeding Vasquez v Rackauckas 734 F3d 1025 1035
(9th Cir 2013)
Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue
The Younger abstention is not applicable when a state tribunal is
asserting jurisdiction beyond its authority SycuanBand ofMission Indians
v Roache 54 F3d 535 541 (9th Cir 1994) In Sycuan the Ninth Circuit
held that the Anti Injunction Act did not apply to the federal proceeding
The injunction was necessary to preserve exclusive federal jurisdiction
[d at 540 Gartrell Const Inc v Aubry) 940 F2d 437 441 (9th Cir 1991)
holds no significant state interest is served where the state law is
preempted by federal law and that preemption is readily apparent The
federal law 25 USC sect 349 requires that until allotment restrictions are
removed Congress has exclusive jurisdiction of the allotment Federal
court jurisdiction is granted to the allotee to defend their allotment rights
25 USC sect 345 28 USC sect 135325 USC sect 5108 Federal preemption
is also readily apparent by WashRevCode sect 6420030 eliminating
restrictions in Indian deeds 25 USC sect 349 limits the removal of the
Indian deed restrictions to action by Congress Confederated Tribes of
Chehelis Reservation v Thurston County Bd OfEqualization 724 F3d 1153
(9th Cir 2013) specifically holds that 25 USC sect 5108 (formerly 25 USC
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 16 of 22
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
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sect 465) preempts state law WashRevCode sect 8404080 Id at 1157-1159
Likewise res judicata and collateral estoppel does not apply to suits where
the final judgment was not rendered on the issue Further a later
development in case law is changing the issues of Indian-to-Indian
commerce CLR v Sunnen 333 US 591 59760668 SCt 71592 LEd
898 (1948) Legality of cannabis in the state of Washington was not an
issue in any prior proceedings
J Mark Keller the State Employee Who Purports to Determine the Liquor Boards Legal Right to Raid and Arrest Plaintiffs May be Sued
for an Injunction Against an Ongoing Violation of State Law
J Mark Keller has established himself as an oracle of the law on state
taxes in Indian country Complaint Dkt 1 page 15 As such he may be
sued in his official capacity to enjoin ongoing violations of federal law
including jurisdiction He is a state official See Crowe amp Dunlevy v
Stidham 640 F3d 1140 1154 (10th Cir 2011) and Paeste v Government of
Guam 798 F3d 1228 (9 th Cir 2015) Burlington Northern amp Santa Fe Ry
Co v Vaughn 509 F3d 1085 (9th Cir 2007) applies and states the reason
the Defendants Motion must be denied Under the doctrine of Ex Parte
Young immunity does not extend to officials acting pursuant to an allegedly
unconstitutional statute Id at 1902 WashRevCode sect 6420030 the
state statute eliminating the Comenouts federal restrictions IS
unconstitutional Like this case the tax was sought where there is no
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 8 of 22
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 9 of 22
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 10 of 22
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 11 of 22
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
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Case 316-cv-05464-RJB Document 68 Filed 042917 Page 12 of 22
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
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jurisdiction to impose Id at 1092 The court held that the long history
of tax imposition by the person who sought to enforce the tax is not
immune Id at 1093
Two owner Plaintiffs inherited the land initially acquired by their
common ancestor Edward Amos Comenout Sr The restricted status of the
land is proven by the copy of the Deed and Certificate attached to the
Complaint Dkt 1 1 June 10 2016 The land has been held since
inception as an off-reservation restricted allotment Congress wanted
Indians to assimilate into mainstream society and thereby authorized off-
reservation allotments The allotment will be issued a patent by the BIA
when it determines that the Indian allotee is competent and capable of
managing his or her affairs Until that time the land is subject to the
exclusive jurisdiction of the United States 25 USC sect 349 The Deed
states that the property is also to be used as a home by the Plaintiffs
Plaintiffs seek the same result on the same legal basis granted to the
Oneida Indian Tribe in Oneida Tribe of Indians of Wis v Village of Hobart
Wis 732 F3d 837839 (7th Cif 2013) Like the Comenouts a declaratory
judgment was sought Id at 838 Judge Posner sums up the issue It is
awkward for parcels of land subject to one sovereign to be scattered
throughout a territory subject to another But actually its a familiar
feature of American government Federal facilities of all sorts ranging from
Response to Motion to Dismiss dated April 132017 9 ROBERT E KOVACEVICH PLLC
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
Response to Motion to Dismiss dated April 13 2017 10 ROBERT E KOVACEVICH PLLC
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
ROBERT E KOVACEVICH PLLC A PROFESSIONAL LIMITED LIABILITY COMPANYResponse to Motion to Dismiss dated April 13 2017 - 11
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
Response to Motion to Dismiss dated April 132017 - 12 ROBERT E KOVACEVICH PLLC
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 13 ROBERT E KOVACEVICH PLLC
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
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post offices to military bases are scattered throughout the United States
and are subject to only as much regulation by states and local governments
as the federal government permits (Underlining added) Plaintiff seeks a
declaration that state courts cannot issue valid search warrants allowing
the Defendants to arrest Plaintiffs for state law violations They also seek
the same result as Confederated Tribes ofChehalis Reservation v Thurston
County Bd ofEqualization 724 F3d 1153 (9th Cir 2013) Cougar Den Inc
v Washington State Dept ofLicensing _P3d_ 2017 WL 1192119 (Wash
2017) and State v Priest 196 WashApp 1040 5 Unpublished Div III Ct
of Appeals (2016) These cases have been recently decided and have
changed the result of prior case law on state taxation of Indians in Indian
country State of New York v Mountain Tobacco Company 2016 WL
3962992 (DC ED NY 2016) is also involved in the pending case of US
v $24964012 in US Currency No C15-5586-BHS (USDC WO Wash)
at Tacoma King Mountain Tobacco Co the same Yakama Indian owned
company now litigating in New York seeks the return of $112063 seized
from its bank account Lee Comenout Sr Robert Reginald Comenout Sr
and Robert Reginald Comenout Jr are also claimants in the Tacoma case
The allegations are that the Contraband Cigarette Tax Act is violated All
persons who are claimants are enrolled Indians The issue of Indian to
Indian instead of interstate commerce is an issue in the New York case and
Response to Motion to Dismiss dated April 13 2017 10 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSlDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
5091747-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 10 of 22
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
ROBERT E KOVACEVICH PLLC A PROFESSIONAL LIMITED LIABILITY COMPANYResponse to Motion to Dismiss dated April 13 2017 - 11
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 11 of 22
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
Response to Motion to Dismiss dated April 132017 - 12 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LlABfLlTY COMPANY
818 WEST RVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995 509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 12 of 22
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 13 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 991010995
50917472104 FAX 5096251914
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S25
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 14 of 22
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
ROBERT E KOVACEVICH PLLCResponse to Motion to Dismiss dated April 13 2017 - 15 A PROFESSIONAL LIMITED LIABILITY COMPANY
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SPOKANE WASHINGTON 99201-0995
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
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SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
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SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
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also this case Id at 7 WashRevCode sect 8224250(1)(a) requires that a
person who transports unstamped cigarettes into the state of Washington
is to give notice The statute WashRevCode sect 8224250(4) also provides
that failure to give notice transposes the cigarettes into contraband and
therefore the cigarettes are subject to seizure Cougar Den 2017 WL
1192119 at 4 followed the cigarette tax case of us v Smiskin 487 F3d
1260 (9th Cir 2007) and cites WashRevCode sect 8224250(1) Thus just as
the State cannot issue citations to tribal members for not paying fees before
they bring lumber to market the federal government cannot impose
criminal sanctions on tribal members for not providing notice to the State
before transporting tobacco for sale or trade US v Smiskin 487 F3d at
1266 Cougar Den transports fuel to the Yakama Nation retailers from
Oregon The Court held that the Yakama Treaty preempted gas tax and
state licensing The Cougar Den opinion observed that the Smiskins were
not required to notify anyone Id at 4 This is a sea change and returns
the cases back to US v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
There was no probable cause as the ATF had no knowledge of the cargo
Therefore they lost the cases In 1995 WashRevCode was amended to
include the notice provision If notice was not given the load was
contraband and the ATF would report that no notice was given Hence the
Indians were transporting contraband Now in 2017 the tide is going out
again in favor of the Indians The transportation was Indian to Indian Here
ROBERT E KOVACEVICH PLLC A PROFESSIONAL LIMITED LIABILITY COMPANYResponse to Motion to Dismiss dated April 13 2017 - 11
818 WEST RIVERSIDE
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
Response to Motion to Dismiss dated April 132017 - 12 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LlABfLlTY COMPANY
818 WEST RVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995 509747-2104
FAX 509625-1914
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 13 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 991010995
50917472104 FAX 5096251914
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S25
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
ROBERT E KOVACEVICH PLLCResponse to Motion to Dismiss dated April 13 2017 - 15 A PROFESSIONAL LIMITED LIABILITY COMPANY
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
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SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
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Lee Comenout Sr was accused of transporting cigarettes from an Indian
reservation in Idaho At page 6 Kellers Affidavit states that Lee Comenout
Sr hauls cigarettes from the Yakama reservation he also stated that
currently he occasionally brings King Mountain Cigarettes from the
Yakama Reservation Robert Reginald Comenout Jr and Marlene
Comenout are Yakama Indians The attached Probable Cause Affidavit of
J Mark Keller at page 5 names Plaintiff Lee Comenout Sr states that the
Defendants believe he is a Yakama Nation Indian In footnote 4 Keller
references US v Smiskin 487 F3d 1260 1265 (9th Cir 2007) This is the
same case followed by Cougar Den Inc v Washington State Department of
Licensing _P3d___ 2017 WL 1192119 (Wash 2017) Keller argues that
US v Fiander 547 F3d 1036 (9th Cir 2008) allows a conspiracy ofIndians
is an exception The Washington State Supreme Court does not cite
Fiander Fiander did not prove he was in his own vehicle He was paid for
his delivery service The applicability of the CCTA to Indians since the 2006
amendment is doubtful Revealing is the statement at page 6 by Keller
about Lee Comenout Sr He stated that leading up to the 2012 search
warrant he was making weekly trips to Idaho to purchase cigarette
inventory for ICSS At page 8 of the Affidavit Marlene Comenout is
accused of sending notes with Lee Comenout Sr on cigarette pick ups
Marlene Comenout and Lee Comenout Sr are both Yakama Indians The
Response to Motion to Dismiss dated April 132017 - 12 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LlABfLlTY COMPANY
818 WEST RVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995 509747-2104
FAX 509625-1914
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 13 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 991010995
50917472104 FAX 5096251914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 13 of 22
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S25
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
ROBERT E KOVACEVICH PLLCResponse to Motion to Dismiss dated April 13 2017 - 15 A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 15 of 22
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 16 of 22
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
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transportation was Indian to Indian and Yakama Indian to Yakama Indian
Indian country includes an allotment 18 USC sect 1151(c) Yakama
Indians do not have to comply with the state of Washington notice
requirements The Yakama deliveries were marketed to an Indian
allotment hence were not contraband Fundamental fairness is violated
when the Defendants Probable Cause Affidavits quote extensive Indian law
which is probably a mixed question of law and fact but rebuttal has to be
a short statement of facts The Court has stated that Confederated Tribes
and Bands ofthe Yakama Indian Nation v Gregoire 658 F3d 1078 (9th Cir
1078) settled the issue Dkt 64 page 2 While not exact Justice Fairhurst
in her dissent in Cougar Den id at 5 states that the case changes the
right of the state to tax goods consumed in the state Here discovery and
pretrial orders will flush out the applicable facts and issues on state
employees A motion to dismiss is not appropriate where declaratory
judgments are sought
The Federal Defendants seek to rely on a task force composed of
state federal and Indian reservation employees The law does not provide
for activities jointly by state federal and Indian tribe employees While not
yet a factual matter discovery will prove that the named Defendants went
onto the property totally incognito and never disclosed their identity until
an actual raid took place They now seek to place the burden on Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 13 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 991010995
50917472104 FAX 5096251914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 13 of 22
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S25
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 14 of 22
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
ROBERT E KOVACEVICH PLLCResponse to Motion to Dismiss dated April 13 2017 - 15 A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 15 of 22
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 16 of 22
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
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to determine at what point in time they cease to be state employees The
Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette
sales on the allotment Quinault v Comenout No 15-35261 (9th Cir) The
case is set to be argued in the Ninth Circuit on June 92017 at Seattle
In past raids us v Simchen Swiger 884 F2d 1396 (9th Cir 1989)
US v Brigman 874 FSupp 1125 (DC Wash 1994) and Paul v State 40
P3d 1203 (Wn CtApp 2002) the Indians won The cigarettes were sold
and the money is placed in the registry of the court The Indians got the
money Now the cigarettes are hidden from the owners Circumstances
mandate that Plaintiffs have discovery rights to find out Defendant agents
cannot be working as a federal task force for the reason that state civil tax
enforcement since the Amendment to the CCTA in 2006 exempts Indians
Further the state cigarette tax law was changed in 2003 Now only licensed
wholesalers can attach or possess state tax stamps WashRevCode sect
8224030(3) The Washington State Department of Revenue March 2015
publication states that if a consumer buys from an in state tribal retailer
that has no stamps on the packages the consumer within 72 hours must
remit the tax and file a declaration form with the Department of Revenue
The Defendants argue that the Comenouts are bound by prior cases The
law has changed The issues raised by changes in the law have not been
decided
Response to Motion to Dismiss dated April 13 20 17 ~ 14 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S25
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 14 of 22
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
ROBERT E KOVACEVICH PLLCResponse to Motion to Dismiss dated April 13 2017 - 15 A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 15 of 22
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 16 of 22
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
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Plaintiff Edward Amos Comenout III has never participated in any
way in the commercial business carried on at the site No action civil or
criminal has ever been commenced against him by any government that in
any way even remotely would be related to state or Indian tribe taxation
No prior action can be a reason to claim res judicata claim or issue
preclusion or barred by the Rooker-Feldman Doctrine The Defendants
Motion seeks to transmute arguments into facts The Affidavit of Douglas
Smythe attached as Exhibit B to Counsels Declaration Dkt 21 Exh B
10032016 states that Smythe who was a Quinault Nation employee
participated in the execution of a federal search warrant Defendants cite
Colorado v Nord 377 FSupp2d 945 (DC Colo 2005) That case does not
apply for the reason that the Federal Defendants were operating under
federal law Defendants also cite Farag v US 587 FSupp2d 436
(DCSDNY2008) Farag raised the issue by summary judgment as like
this case probable cause for a state court warrant and Fourth Amendment
protection is an issue since Plaintiffs facts alleged are taken as true
Plaintiffs Complaint Dkt 1 page 4 dated 6102016 alleges that the
deed restrictions on the allotment are still in place that Goodpaster
working in concert had no authority to regulate Plaintiffs activity on the
allotment page 7
Defendants argue at page 3 of their Motion Defendants Goodpaster
Keller and Boling are not state employees as Plaintiffs allege Keller
ROBERT E KOVACEVICH PLLCResponse to Motion to Dismiss dated April 13 2017 - 15 A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 15 of 22
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 16 of 22
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
5
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
5
10
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20
25
1
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11
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
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represented to the court issuing the warrant that he was a state employee
The Defendants seek to make the Plaintiffs prove in what capacity the three
men acted before any discovery is taken The allegations of fact in the
Complaint are to be taken as true These contradictions if raised on a
summary judgment motion would defeat the motion Defendants are
seeking to convince the Court that their arguments can reconcile what is a
dispute of material facts Plaintiffs do not have to serve the Attorney
General as the Defendants were acting as state employees
Evans v McKay 869 F2d 1341 (9th Cir 1989) held that an order
prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax
Commission was valid since the police officers who applied for the warrant
were also empowered by the BIA to enforce tribal law The allegedly
unconstitutional arrests were made pursuant to a City of Browning
ordinance prohibiting the obstruction of justice While these law
enforcement officers may be said to have been acting pursuant to Tribal
Court orders during the incidents in question they were also acting in their
capacity as City of Browning police officers ld at 1348 The holding in
the McKay case is that in applying for a search warrant the enforcement
officers must be empowered to act as officers of the government issuing the
warrant Agents Boling and Keller have concluded that at all times they
acted as federal officers J Mark Keller applied for the warrant as a state
Response to Motion to Dismiss dated April 13 2017 - 16 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
5091747-2104 FAX 509625- 1 914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 16 of 22
5
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
5
10
15
20
25
1
2
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
5
10
15
20
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Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
5
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
5
10
15
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25
1
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CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
15
20
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officer If he was always a federal officer the warrant is invalid Here the
state attorney general cannot bring civil suit against Indians for
transporting cigarettes across state lines See State ofNew York v Mountain
Tobacco Company 2016 WL 3962992 at 4 A CCTA exemption exists for
Indians in Indian Country specifically section 2346 See also Committee
Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of
2005151 CongRec H6273-04 H6281 2005 WL 1703380 No civil action
may be commenced under this paragraph against an Indian tribe or an
Indian in Indian country (as defined in section 1151) 18 USC sect 2346(b)
City ofNew York v Gordon 1 FSupp3d 94 103 (DCNY 2013) Whether
state federal or Indian employed an employee acting within the scope of
his employment is liable for deliberate indifference Maxwell v County of
San Diego 708 F3d 1075 (9th Cir 2013) Pistor v Garcia 791 F3d 1104
1113 (9 th Cir 2015)
No federal crime can be charged against Edward Amos Comenout III
He was never investigated The only tax collection was by Douglas Smythe
who sought to collect Quinault Tribal cigarette taxes Affidavit of Douglas
Smythe Dkt 21 Exhibit 8 page 2 Tribal tax collection not state tax
collection apparently was the object of Smythes participation in the task
force
There is no criminal state jurisdiction of Indian cnme on off-
Response to Motion to Dismiss dated April 13) 2017 - 17 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE S2S
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 17 of 22
5
10
15
20
25
1
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reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
5
10
15
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28
Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
5
10
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25
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Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
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28
CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
10
15
20
25
1
2
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8
9
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28
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
15
20
25
1
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6
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8
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28
reservation allotments Magnan v Trammell 719 F3d 1159 (10th Cir
2013) Armstrong v Maple LeafApartments Ltd 508 F2d 518 523A (10th
Cir1974)StatevKlindt782P2d401404(OklaCR1989) State search
warrants cannot be valid if directed to allotment owners Ross v Neff 905
F2d 1349 1354 (10th Cir 1990) See also Babbitt Ford Inc v Navajo Indian
Tribe 710 F2d 587593 (9th Cir 1983) Due to lucrative seizures that
inexplicably allow the ATF to keep funds in the agency to pay salaries buy
vehicles etc the State does not commence actions to force stamping of
cigarettes Cougar Den Inc v Washington State Department of Licensing
2017 WL 1192119 5 (Wash 2017) holds that whether cigarettes
or gas the state cannot impose a license restriction on Yakama Indian
goods hauled to market Indian-to-Indian commerce is also immune
MakahIndian Tribev Clallam County 73 Wash2d 677 687 440 P2d
442 (Wash 1968) although not cited in Cougar Den came to the same
conclusion 49 years ago State taxation in Indian country is a question
beyond our jurisdiction Cougar Den 2017 WL 1192119 6 states if the
state has concerns about this treaty provision only Congress can reverse
or restrict the provisions not this court
Robert Reginald Comenout Jr Marlene Comenout and Lee R
Comenout Sr are all enrolled Yakama Indians Complaint Dkt 1 page 13
Cougar Den State v Priest and Confederated Tribes of the Yakama Indian
Response to Motion to Dismiss dated April 13 2017 18 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509n47-2104
FAX 509625middot1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 18 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
5
10
15
20
25
1
2
3
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6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
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21
22
23
24
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28
Nation v Gregoire 658 F3d 1078 1089 (9th Cir 2011) deserve additional
scrutiny in light of Cougar Den notwithstanding the Courts earlier
interpretation
This is Not a Complex Case Entitled to More Lenient Treatment
The Ninth Circuit is concerned with the fact that a heightened
pleading standard is applied in some complex commercial cases to give
too much settlement leverage to plaintiffs A more lenient treatment is
applied in other cases Starrv Baca 652 F3d 1202 1215-6 (9th Cir 2011)
The court stated the common principles first to be entitled to the
presumption of truth allegations in the complaint or counter claim may not
simply recite the elements of a cause of action but must contain sufficient
allegations that are taken as true must plausibly suggest an entitlement to
relief such that it is not unfair to be subjected to the expense of discovery
and continued litigation Id at 1215 See also Merritt v Countrywide
Financial Corp 759 F3d 1023 1033 (9 th Cir 2014) Here the defendants
have already obtained over $300000 in cash and kept some vehicles They
have the Plaintiffs money to pay the litigation They will not be exposed to
or experience unjust procedure
The procedure in this case thus far makes a mockery of access to the
courts Defendants at page 11 of their Motion cite us v Approximately
One Million Seven Hundred Eighty Four Thousand ($1784000) Contraband
Response to Motion to Dismiss dated April 13 2017 19 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ala WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 19 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
Cigarettes No 12-05992 (WD Wash) and $24964000 in United States
Currency Case No 15-5586 BHS (WD Wash) Both these cases are in the
process of settlement A cursory reading of the complaints in the cases will
reveal that the ATF without pre-notification or right to be heard took all
Plaintiffs money and inventory and arrested them The Magistrate ordered
the store cleared even though it was selling other non taxable items
approved by the State Department of Revenue No discovery has yet taken
place in the case Arthur R Miller 60 Duke Law Journal 1 8 laquoFrom
Conley to Twombly to Iqbal A Double Play On The Federal Rules of
Procedure at pages 8-9 the author states The pretrial process has become
so elaborate with time-consuming motions hearings and discovery that it
often seems to have fallen into the hands of some systemic Sorcerers
Apprentice In short the world of those who drafted the original Federal
Rules largely has disappeared causing one district judge to remark that the
reality is that our system [is] becoming increasingly inaccessible to the
average citizen Sadly in some respects todays civil litigation is neither
civil nor litigation as previously known Plaintiff Edward Amos Comenout
III thus far has been denied access to the courts to gain knowledge on how
to make a living and how to live on the allotment yet the Defendants want
to keep the other Plaintiffs money and deny court access to all the
Plaintiffs
Response to Motion to Dismiss dated April 132017 - 20 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201middot0995
509747-2104
FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 20 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CONCLUSION
Keller and Boling are state employees No federal service is needed
on them Goodpaster has not proven why he is investigating state crime
Yakama delivered cigarettes are not contraband At most a preliminary
hearing should be held to determine Goodpasters participation whether
state or federal The Motion should be denied
DATED this 29th day of April 2017
sl Robert E Kovacevich ROBERT E KOVACEVICH 2723 Attorney for Plaintiffs
sl Aaron L Lowe AARON L LOWE 15120 Attorney for Plaintiffs
sl Randal B Brown RANDAL B BROWN 24181 Attorney for Plaintiffs
Response to Motion to Dismiss dated April 13 2017 - 21 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABiLITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104
FAX 509625-1 91 4
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 21 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
26
27
28
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April 2017 I electronically
filed the foregoing Plaintiffs Response to Federal Defendants Motion to
Dismiss Dated April 13 2017 with the Clerk of the Court using the
CM ECF System which will send a notice of electronic filing to the following
Alicia 0 Young Attorney Generals Office Revenue and Finance Division PO Box 40124 Olympia WA 98504-0124 (360) 459-6100 AliciaOatgwagov
David M Hankins Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia WA 98504-0123 (360) 753-5528 davidhankin~atgwagov
Andrew Krawczyk Attorney Generals Office Revenue and Finance Division PO Box 40123 Olympia W A 98504-0123 (360) 586-3506 andrewK1atgwagov
DATED this 29th day of April 2017
s Robert E Kovacevich ROBERT E KOVACEVICH WSBA 2723 Attorney for Plaintiff Robert R Comenout Sr
Response to Motion to Dismiss dated April 13 2017 - 22 ROBERT E KOVACEVICH PLLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
818 WEST RIVERSIDE
SUITE 525
SPOKANE WASHINGTON 99201-0995
509747-2104 FAX 509625-1914
Case 316-cv-05464-RJB Document 68 Filed 042917 Page 22 of 22