HON. LONNY R. SUKO...LONNY R. SUKO Deputy Attorney General Mary Tennyson William G. Clark Assistant Attorneys General Attorney General of Washington PO Box 40110 Olympia, WA 98504-0110
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PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
1 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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Rob Costello HON. LONNY R. SUKO Deputy Attorney General
Mary Tennyson
William G. Clark
Assistant Attorneys General
Attorney General of Washington
PO Box 40110
Olympia, WA 98504-0110
Telephone: (360) 753-2702
Fax: (360) 664-0174
E-Mail: RobC@atg.wa.gov
E-Mail: BillC2@atg.wa.gov
E-Mail: MaryT@atg.wa.gov
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
STATE OF WASHINGTON, WASHINGTON DEPARTMENT OF LICENSING, et al., Plaintiffs, v. THE TRIBAL COURT FOR THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION and its CHIEF TRIBAL COURT JUDGE TED STRONG, et al., Defendants.
NO. CV-12-3152-LRS PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS COMPLAINT
I. INTRODUCTION
In their Complaint, the Plaintiffs brought two claims. In Count I,
Plaintiffs allege that the Yakama Nation Tribal Court and its Chief Judge Ted
Strong have exceeded the lawful limits of the Tribal Court’s jurisdiction.
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PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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Plaintiffs filed this action after the Tribal Court issued a temporary restraining
order enjoining the sovereign State of Washington and state officials from
taking certain actions under a Consent Decree of this court. Plaintiffs seek
prospective injunctive relief, including the dissolution of all existing orders and
dismissal of the Tribal Court litigation. ECF No. 1 at 14.
In Count II, Plaintiffs seek to interpret and confirm the termination of a
Consent Decree entered by this Court in 1994 and amended in 2006. Plaintiffs
seek two types of relief. First, Plaintiffs seek declaratory and injunctive relief
confirming the termination of the Consent Decree and enjoining the Yakama
Nation from interfering with its termination through the filing of actions in
Tribal Court. Second, Plaintiffs seek damages for the Yakama Nation’s
breaches of the Consent Decree. ECF No. 1 at 14–15.
This Court has subject matter jurisdiction over Counts I and II under 28
U.S.C. § 1331. This Court has personal jurisdiction over Chief Judge Strong
under the tribal equivalent of Ex parte Young, 209 U.S. 123 (1908). This Court
has personal jurisdiction over the Yakama Nation because it has waived its
sovereign immunity. Count I states a claim upon which relief can be granted
because federal courts may enjoin tribal courts from exercising jurisdiction
unlawfully, and no exhaustion of tribal court remedies is required here. Count
II states a claim upon which relief can be granted because this Court has
authority to interpret, enforce, and dissolve its prior orders.
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PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
3 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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II. FACTS
The following facts are drawn from the Complaint (ECF No. 1) and
documents proper for judicial notice, and must be accepted as true for purposes
of the Yakama Nation’s motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–56 (2007).
In 1993, the Yakama Nation and others filed an action in this Court
against officials of the Washington Department of Licensing, seeking relief
concerning the imposition and collection of state fuel taxes on fuel destined for
retail sale at certain outlets within the Yakama Reservation. Teo v. Steffenson,
No. CY-93-3050-AAM. The matter was resolved with a 24-page Consent
Decree entered by this Court in 1994. ECF No. 6 at 50–73.
In 2004, the Yakama Nation filed a petition in this Court to enforce the
Consent Decree. Teo v. Steffenson, No. CV-04-3079. That matter was resolved
with a Settlement Agreement, Agreed Changes To Consent Decree, And Order
entered by this Court in 2006. ECF No. 6 at 74–83; see ECF No. 1 ¶ 16.
The Consent Decree established a framework to implement the parties’
agreement regarding the imposition and collection of state fuel taxes. ECF No.
6 at 51. The State agreed to refrain from collecting state fuel taxes on 70
percent, later 75 percent, of the fuel sold to the Tribe or tribally-licensed
retailers within the Yakama Reservation. ECF No. 6 at 59–60, 77–78. The
Consent Decree described those percentages as “the parties’ best current
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NO. CV-12-3152-LRS
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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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estimate” of the amount of fuel that would ultimately be purchased at the pump
and used by the Yakama Nation and its members. Id. The parties agreed that
all other fuel would be subject to the State’s taxes. ECF No. 6 at 51–52, 60,
62–63, 78. Under this arrangement, fuel distributors paid 100 percent of the
state fuel tax when they withdrew fuel from the terminal rack, but then sold the
fuel to tribally-licensed retailers at a price that included only 30 percent, later
25 percent, of the state fuel tax. ECF No. 1 ¶ 19; ECF No. 6 at 60, 78. The
State refunded to the distributors the remaining fuel taxes they had paid at the
terminal rack. ECF No. 1 ¶¶ 21, 22; see id. ¶ 12.
Central to the Consent Decree was the parties’ agreement to identify,
track, and verify on-reservation fuel sales to the Nation, tribally-licensed
businesses, and tribal members, as distinct from other sales, such as sales to
non-tribal members. ECF No. 6 at 51–52, 55–56, 58–63, 77–80. The Consent
Decree required the Nation to keep, and to require its licensees to keep, detailed
records distinguishing tax-exempt from non-exempt sales, provide those records
to the State, and submit those records to the annual examination of a CPA
auditor. ECF No. 1 ¶¶ 23, 24; ECF No. 6 at 56, 60–70, 78–80. If the records
and audits demonstrated that the amount of fuel actually used by the Nation and
its members and businesses exceeded the 70 or 75 percent figure, then the State
would owe the Tribe an adjustment. Conversely, if the records and audits, or
lack thereof, demonstrated that tribal use was less than 70 or 75 percent, then
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NO. CV-12-3152-LRS
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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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the Tribe would owe the State an adjustment. ECF No. 1 ¶ 23; ECF No. 6 at
60–63, 78–79.
Despite the clear requirements in the Consent Decree, the Yakama
Nation has been unwilling or unable to enforce the record-keeping
requirements, and no audits have been completed since 2007. ECF No. 1 ¶ 27.
Over the course of several years, the Washington Department of
Licensing sought to procure the compliance of the Yakama Nation and its
members with the Consent Decree. ECF No. 1 ¶¶ 27, 28. The parties engaged
in several months of mediation. ECF No. 1 ¶¶ 25, 28. After mediation efforts
proved unsuccessful, the Department of Licensing invoked the termination
procedures of the Consent Decree and terminated by written notice on
December 5, 2012. ECF No. 1 ¶ 28.
On the same day, the Yakama Nation filed a lawsuit in the Yakama
Tribal Court against the sovereign State of Washington and its Governor, and
the Washington Department of Licensing and its Director. On minimal notice
to counsel for the State, the Yakama Nation obtained a temporary restraining
order from the Yakama Tribal Court which, in part, enjoined the State, the
Department of Licensing, and state officials from taking any further steps to
implement the termination of the Consent Decree. ECF No. 1 ¶ 29.
The Plaintiffs filed this lawsuit on December 17, 2012, and moved for a
preliminary injunction two days later. This Court granted the injunction on
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NO. CV-12-3152-LRS
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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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January 7, 2013, and enjoined the Defendants from conducting, initiating, or
participating in further proceedings under Yakama Nation Tribal Court Cause
No. R-13-019, pending further order of this Court. ECF No. 75.
III. ARGUMENT
A. Standards On A Motion To Dismiss
The Yakama Nation has moved to dismiss the Complaint under Fed. R.
Civ. P. 12(b)(1) (subject matter jurisdiction), 12(b)(2) (personal jurisdiction),
and 12(b)(6) (failure to state a claim upon which relief can be granted).1
Defendants generally agree with the Nation’s description of the standards under
Rules 12(b)(1) and 12(b)(2). ECF No. 68 at 3–4.
The Yakama Nation’s description of the standards under Rule 12(b)(6),
however, is incomplete. A Rule 12(b)(6) dismissal is proper only when a
complaint does not state a claim for relief that is plausible on its face, either
because the complaint does not make out a cognizable legal theory or does not
allege sufficient facts to support a cognizable legal theory. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Cervantes v. Countrywide Home Loans, Inc., 656
1 The Yakama Nation also objects to the sufficiency of service of
process, but the basis for that objection is unclear. ECF No. 68 at 2 n.1.
Plaintiffs properly effected service in accordance with Fed. R. Civ. P. 4. See
ECF Nos. 2, 3, 4.
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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
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F.3d 1034, 1040–41 (9th Cir. 2011). The court must accept the alleged facts as
true and construe all inferences from them in the light most favorable to the
plaintiff. Ashcroft, 556 U.S. at 678; see Courtney v. Goltz, 868 F.Supp.2d 1143,
1144, 1147 (E.D. Wash. 2012). Here, the Yakama Nation improperly invites
the Court to accept as true its own version of the facts and ignores those in the
Complaint. The Court should decline that invitation.
When presented with a Rule 12(b)(6) motion, the court cannot consider
material outside the complaint except for matters appropriate for judicial notice,
such as the court’s prior orders and judgments. Pakootas v. Teck Cominco
Metals, Ltd., 632 F. Supp. 2d 1029, 1031–32 (E.D. Wash. 2009); see Fed. R.
Civ. P. 12(d). Here, the Yakama Nation relies extensively on materials that it
filed in the Yakama Tribal Court, but not in this Court. See ECF No. 68 at 3,
10, 20, 25, 26, 45. Plaintiffs had attached copies of the Tribal Court materials
to a declaration in support of Plaintiffs’ Motion for Preliminary Injunction, ECF
No. 7 at 12–102, ECF No. 8, but resubmitted the declaration without the Tribal
Court materials after the Yakama Nation moved to strike. ECF No. 60; see
ECF No. 59 at 7–8. The materials the Yakama Nation filed in the Tribal Court
are not in the record, and the Court should disregard them in considering the
Nation’s motion to dismiss.
The allegations in Count I of the Complaint, accepted as true and
construed in a light most favorable to Plaintiffs, state a claim for relief under the
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federal common law regarding tribal court jurisdiction and the Yakama Treaty.
The allegations in Count II state a claim for relief under the Consent Decree.
B. The Yakama Nation Has Identified No Basis For Dismissing Count I
1. This Court has subject matter jurisdiction over Count I and
personal jurisdiction over Chief Judge Strong.
In Count I, Plaintiffs allege that the Yakama Tribal Court has exceeded
the lawful limits of its jurisdiction. Whether a tribal court has exceeded its
jurisdiction is a federal question under 28 U.S.C. § 1331. E.g., Nat’l Farmers
Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 852–53 (1985); Boozer v Wilder,
381 F.3d 931, 934 (9 th Cir. 2004). The Yakama Nation accepts this, ECF No.
68 at 36, 45, but says this Court lacks subject matter jurisdiction because
Plaintiffs have not exhausted tribal court remedies and there has been no waiver
of sovereign immunity. Id. at 14. The Nation is incorrect.
First, exhaustion of tribal court remedies is prudential, not jurisdictional.
Strate v. A-1 Contractors, 520 U.S. 438, 450–51 (1997); Cnty. of Lewis v. Allen,
163 F.3d 509, 516 (9th Cir. 1998) (en banc). Thus, the Yakama Nation’s
attempt to rely on materials outside the pleadings for its exhaustion argument is
not a proper use of the rule that a federal court may look beyond the complaint
to resolve a factual challenge to subject matter jurisdiction. Cf. White v. Lee,
227 F.3d 1214, 1242 (9th Cir. 2000) (court properly considered materials
beyond complaint in determining whether claim was moot). Moreover,
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exhaustion is not always required. It is not required when it is “plain” that
tribal court jurisdiction is lacking, so that exhaustion would serve no purpose
other than delay. Nevada v. Hicks, 533 U.S. 353, 369 (2001).
This Court has already ruled that the “plainly lacking” exception to
exhaustion applies in this case. ECF No. 75 at 5. Paragraph 4.6 of the Consent
Decree provides that a party seeking to enforce the Consent Decree may
petition “the Court,” which can only mean this Court, not the Yakama Tribal
Court. Id. at 3–5; ECF No. 6 at 56–57. This Court has also recognized that
there is no authority holding that a State sovereign entity is subject to the
jurisdiction of a tribal court. ECF No. 75 at 5 & n.2; see Hicks, 533 U.S. at 369
(“tribal courts lack jurisdiction over state officials for causes of action relating
to their performance of official duties”); Cnty. of Lewis, 163 F.3d at 514–15
(tribal court lacked jurisdiction over tort claim against state police officer acting
under authority of tribal-state agreement).
Second, sovereign immunity is not a bar to this Court’s jurisdiction over
Count I or over the Defendants. Plaintiffs seek prospective injunctive relief
against Chief Judge Strong in his official capacity. ECF No. 1 at 4, 15. Tribal
officials, including tribal judges, may be sued for prospective injunctive relief
for violations of federal law under the doctrine of Ex parte Young. E.g., Salt
River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1177,
1181–82 (9th Cir. 2012); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,
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1154–56 (10th Cir. 2011). Tribal sovereign immunity is not a bar to such a suit.
Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir.
2007); Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901–02 (9th
Cir. 1991). A tribal judge who attempts to assert jurisdiction in violation of
federal law is acting outside the scope of his authority and is not protected by
tribal sovereign immunity. See Crowe & Dunlevy, 640 F.3d at 1155–56.
This Court has subject matter jurisdiction over Count I and personal
jurisdiction over Chief Judge Strong.
2. Count I states a claim upon which relief can be granted under
the federal common law regarding tribal court jurisdiction and under the Yakama Treaty.
The Yakama Nation apparently argues that Count I fails to state a claim
upon which relief can be granted because Plaintiffs have not exhausted tribal
court remedies. As discussed above, exhaustion is not required in this case.
On a motion to dismiss for failure to state a claim, the court must accept
as true the facts alleged in the complaint, and construe all inferences from them
in the light most favorable to the plaintiff. Ashcroft, 556 U.S. at 678. Instead of
doing that, the Yakama Nation offers its own view of the facts, as set forth in
materials it filed in the Tribal Court but not in this Court, and argues that the
Yakama Tribal Court’s jurisdiction over this dispute is colorable. ECF No. 68
at 17–28. The Yakama Nation’s reliance on the Tribal Court materials is
improper, and the Court should disregard them. Pakootas, 632 F. Supp. 2d at
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1031–32. As described in the Complaint; ECF No. 1 ¶¶ 16, 29; and largely
admitted in the Yakama Nation’s Answer; ECF No. 76 at 5–7; the Tribal Court
has attempted to exercise jurisdiction over the sovereign State and state officials
in an action involving a Consent Decree of this Court. The Complaint states on
its face a plausible claim that the Tribal Court plainly lacks jurisdiction under
the federal common law. See ECF No. 75 at 5.
The Yakama Nation also argues that the Plaintiffs have not stated a claim
upon which relief can be granted under the Yakama Treaty. ECF No. 68 at 35–
39. The Nation is incorrect. Plaintiffs allege that the Yakama Nation Tribal
Court and its Chief Judge have exceeded the lawful limits of the Tribal Court’s
jurisdiction. ECF No. 1 ¶ 33. Effectively, that is a claim that the Tribal Court
has exceeded its authority under the Yakama Treaty, because the Yakama
Treaty is the legal instrument through which the United States recognized the
Yakama Nation as a political entity that can establish courts. See ECF No. 1
¶ 9. The Yakama Tribal Court has only those powers preserved to the Nation
under the Yakama Treaty or conferred by Congress. See Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191, 206–08 (1978); Philip Morris USA, Inc. v. King
Mountain Tobacco Co., Inc., 569 F.3d 932, 937 (9th Cir. 2009). By alleging
that the Tribal Court has exceeded its lawful powers, the Complaint states a
claim upon which relief can be granted under the Yakama Treaty. See Montana
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v. United States, 450 U.S. 544, 557–61 (1981) (treaties did not empower Tribe
to restrict non-Indian hunting on private land within reservation).
C. The Yakama Nation Has Identified No Basis For Dismissing Count II
1. This Court has subject matter jurisdiction over Count II and
personal jurisdiction over the Yakama Nation.
In Count II of the Complaint, Plaintiffs ask the Court to interpret a
Consent Decree that this Court entered in 1994 and amended in 2006. Federal
courts have subject matter jurisdiction to interpret, enforce, or dissolve their
prior orders and judgments, including consent decrees. Nehmer v. U.S. Dep’t of
Veterans Affairs, 494 F.3d 846, 856, 860–61 (9th Cir. 2007).
The Yakama Nation urges, however, that the Court “disclaimed”
jurisdiction when it entered an order incorporating the parties’ agreed
amendments to the Consent Decree in 2006. ECF No. 68 at 41–44. The 2006
amendments deleted from the 1994 Consent Decree “the provisions of ¶ 4.1 and
¶ 4.2 for maintaining the continuing jurisdiction of the court.” ECF No. 6 at 76
¶ H. Paragraphs 4.1 and 4.2 had provided that the Court would retain
jurisdiction under the same cause number for one year to enforce the Consent
Decree. After that, a party seeking to enforce the Consent Decree would be
required to file a new action and pay a new filing fee. ECF No. 6 at 54–55.
According to the Nation, deleting the continuing jurisdiction provisions
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transformed the Consent Decree into a private contract, not a federal court
order. This Court should reject those arguments.
“Continuing jurisdiction” commonly means keeping a case open under
the same cause number to enable the court to supervise implementation of a
judgment. That is the meaning suggested by Paragraphs 4.1 and 4.2 of the 1994
Consent Decree, and it is consistent with the parties’ historical relationship.
The Yakama Nation and the State of Washington are parties to two treaty
fishing rights cases in which the courts have retained “continuing jurisdiction”
to implement judgments entered decades ago, United States v. Oregon, Civil
No. 68-513 (D. Or.), and United States v. Washington, Civil No. 70-9213 (W.D.
Wash.). See Sohappy v. Smith, 302 F. Supp. 899, 911 (D. Or. 1969) (continuing
jurisdiction in 68-513);2 United States v. Washington, 384 F. Supp. 312, 333,
347, 405, 419 (W.D. Wash. 1974) (continuing jurisdiction in 70-9213); United
States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th
Cir. 2010) (Yakama/Colville dispute under continuing jurisdiction of 68-513).
Closing a case—terminating continuing jurisdiction—does not deprive a federal
court of the power to enforce its decrees. See Hook v. Ariz. Dep’t of
Corrections, 972 F.2d 1012, 1014, 1016 (9th Cir. 1992). It means only that a
2 The State of Washington intervened in 68-513 in 1974. See Sohappy v.
Smith, 529 F.2d 570 (9th Cir. 1976).
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party seeking to modify or enforce a decree must either reopen the case or file a
new action under a new cause number. See Fed. R. Civ. P. 60.
The Yakama Nation insists, however, that Plaintiffs must demonstrate an
independent basis of jurisdiction before the Court can terminate or enforce the
Consent Decree, citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375
(1994), and its progeny. ECF No. 68 at 39–45. In Kokkonen, parties in a case
based on diversity jurisdiction settled state-law claims with a settlement
agreement, and filed a stipulation of dismissal under Fed. R. Civ. P. 41(a)(1)
that did not incorporate or refer to the settlement agreement. When one party
sought to enforce the settlement agreement in federal court, the Supreme Court
held that subject matter jurisdiction was lacking. 511 U.S. at 382. The Yakama
Nation cites many cases that, like Kokkonen, involved situations where parties
stipulated to a voluntary dismissal without an order retaining jurisdiction or
incorporating the terms of the settlement, and says such cases apply here.3
They do not apply here. The rule in Kokkonen is that if the parties’
obligation to comply with the terms of a settlement agreement is made part of
the order of dismissal, either by (1) a separate provision retaining jurisdiction
3 The Yakama Nation improperly cites McMahon Foundation v.
Amerada Hess Corp., 98 F. App’x 267 (5th Cir. 2004), in violation of Local
Rule 7.1(g)(2). ECF No. 68 at 42. The Court should disregard that citation.
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over the settlement agreement, or by (2) incorporating the terms of the
settlement agreement in the order, “a breach of the agreement would be a
violation of the order,” providing the federal court with ancillary jurisdiction.
Kokkonen, 511 U.S. at 381. Only in the absence of both Kokkonen
“exceptions” must enforcement of a settlement agreement have an independent
basis of federal jurisdiction.
Here, the 1994 Consent Decree met both “exceptions.” The Court
expressly retained jurisdiction, and the terms of the settlement were
incorporated into the Court’s order. The 2006 amendments deleted language
about continuing jurisdiction, but the terms of the settlement, as amended, were
incorporated into the Court’s order. ECF No. 6 at 74–82. Thus, one of the
Kokkonen exceptions applies, and this Court has jurisdiction to interpret,
enforce, vacate, or dissolve the Consent Decree in this case. Myers v. Richland
Cnty., 429 F.3d 740, 747 (8th Cir. 2005).
The Yakama Nation also argues that the Nation’s sovereign immunity
deprives the Court of jurisdiction over Count II and over the Yakama Nation.
ECF No. 68 at 28–33. That is wrong for at least two reasons.
First, in ¶ 4.2 of the 1994 Consent Decree, the parties agreed that either
of them could “initiate an action in this Court at any time for the limited
purpose of requesting the Court to enforce the terms of this Consent Decree.”
Both parties expressly “consent[ed] to such an action being brought for the
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
16 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
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limited purpose of enforcing this Consent Decree, including an action to
recover monies alleged to be owed either party under ¶ 4.11.” ECF No. 6 at 55.
In 2006, the parties agreed to delete “the provisions of ¶ 4.1 and ¶ 4.2 for
maintaining the continuing jurisdiction of the court,” but said nothing about
deleting the provisions waiving sovereign immunity. ECF No. 6 at 76.
Second, even if, as the Nation erroneously contends, the 2006
amendments had deleted all of ¶ 4.2, sovereign immunity would not bar
equitable relief against the Nation under the Consent Decree. By seeking equity
when it filed the lawsuits that resulted in the 1994 and 2006 Consent Decrees,
the Yakama Nation assumed the risk that it would be bound by any resulting
equitable decree or order modifying that decree. United States v. Oregon, 657
F.2d 1009, 1015 (9th Cir. 1981) (affirming preliminary injunction against
Yakama Nation).
This Court has subject matter jurisdiction over Count II and personal
jurisdiction over the Yakama Nation.
2. Count II states a claim upon which relief can be granted under
the Consent Decree.
The Yakama Nation contends that Count II fails to state a claim upon
which relief can be granted under the Consent Decree because the Consent
Decree requires the parties to stay in mediation indefinitely, until the mediator
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
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declares impasse, before filing a lawsuit in a court. ECF No. 68 at 5–13. The
Consent Decree cannot reasonably be so construed.
Neither the 1994 Consent Decree nor its 2006 amended version required
the parties to engage in mediation until it was successfully concluded or until
the mediator declared that the parties were at an impasse. The dispute
resolution language in ¶ 4.7(d) of the 1994 decree was qualified by ¶ 4.7(e), in
that either party could terminate mediation and resort to this Court to resolve
any dispute left unresolved 30 days after a mediator was selected. ECF No. 6 at
57–58. In the amended 2006 Consent Decree, the enforcement option
contained in ¶ 4.7(e) was deleted and replaced with a right-to-terminate clause
added at the end of ¶ 4.7(d): “[I]f a dispute is unresolved for more than 180
days, either party may give notice of intent to terminate this agreement as
provided for infra.” ECF No. 6 at 76. The process for exercising the right to
terminate under ¶ 4.7(d) was included in new ¶ 4.27 of the amended Consent
Decree:
[I]f a party objects to continued participation in the processes and framework provided for in this decree and desires to withdraw and terminate the agreement, it may do so only upon not less than one hundred eighty (180) days written notice to the other party and a government to government meeting or consultation between them occurs to discuss their proposed reasons for doing so.
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
18 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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ECF No. 6 at 81. Paragraph 4.27 contradicts the Nation’s position that the State
could not terminate the consent decree unless and until the mediator determined
that the parties were at an impasse.
The Yakama Nation asserts, however, that the Consent Decree must be
construed against Plaintiffs because they drafted it. ECF No. 68 at 10, 13, 33,
45. This assertion is puzzling because the Yakama Nation brought the litigation
that resulted in the 1994 Consent Decree and the 2006 amendments. The
Nation had the power to reject any settlement and could have sought a litigated
outcome. Moreover, ¶ 1.1 of the 1994 Consent Decree expressly recites that the
“Consent Decree is the result of each party’s good faith effort to resolve this
case.” ECF No. 6 at 50. The rule that contracts should be construed against the
drafter does not apply here.
Count II of the Complaint states on its face a plausible claim for relief
under the Consent Decree.
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
19 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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IV. CONCLUSION
The Yakama Nation’s motion to dismiss should be denied.
DATED this 25th day of January, 2013.
ROBERT W. FERGUSON Attorney General s/ Rob Costello ROB COSTELLO, WSBA #12920 Deputy Attorney General MARY TENNYSON, WSBA #11197 WILLIAM G. CLARK, WSBA #9234 Assistant Attorneys General Attorneys for Plaintiffs
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
20 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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PROOF OF SERVICE
I hereby certify that on the 25th day of January, 2013, I caused the
foregoing document to be electronically filed with the Clerk of the Court using
the CM/ECF system which will send notification of such filing to all parties or
their counsel of record to the following:
COUNSEL FOR DEFENDANT CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION Gabriel S. Galanda Anthony S. Broadman Ryan D. Dreveskracht Galanda Broadman PLLC 8606 35th Ave. NE, Ste. L1 PO Box 15146 Seattle, WA 98115 (206) 691-3631 Fax: (206) 299-7690 Email: gabe@galandabroadman.com Email: Anthony@galandabroadman.com Email: ryan@galandabroadman.com
I hereby further certify that I have mailed by United States Postal
Service the document to the following non-CM/ECF participants:
DEFENDANTS The Tribal Court for the Confederated Tribes and Bands of the Yakama Nation PO Box 151, Fort Road Toppenish, WA 98948-0151 Chief Tribal Court Judge Ted Strong PO Box 151, Fort Road Toppenish, WA 98948
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
PLS.’ OPP. TO MOT. DISMISS
NO. CV-12-3152-LRS
21 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division
1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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I declare under penalty of perjury under the laws of the state of
Washington that the foregoing is true and correct.
DATED this 25th day of January, 2013 at Olympia, Washington.
ROBERT W. FERGUSON Attorney General By: s/ Rob Costello ROB COSTELLO, WSBA #12920 Deputy Attorney General MARY TENNYSON, WSBA #11197 WILLIAM G. CLARK, WSBA #9234 Assistant Attorneys General Attorneys for Plaintiffs
Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
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