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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 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: [email protected]E-Mail: [email protected]E-Mail: [email protected]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. Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13
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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
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.
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
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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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
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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).
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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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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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.
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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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
(360) 753-2702
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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
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1125 Washington Street, PO Box 40110
Olympia, WA 98504-0110
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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
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Olympia, WA 98504-0110
(360) 753-2702
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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
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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
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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
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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: [email protected] Email: [email protected] Email: [email protected]
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
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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