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David M. Evans, An Individual v. Shoshone-Bannock Land Use Policy Commission; Nathan Small

December 20, 2012

DAVID M. EVANS, AN INDIVIDUAL;
RON PICKENS, AN INDIVIDUAL, D/B/A P & D CONSTRUCTION, AN IDAHO SOLE PROPRIETORSHIP; SAGE BUILDERS, AN IDAHO LIMITED LIABILITY PARTNERSHIP;
PLAINTIFFS,
v.
SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; NATHAN SMALL, AS CHAIRMAN OF THE FORT HALL BUSINESS COUNCIL; GLENN FISHER, AS A MEMBER OF THE FORT HALL BUSINESS COUNCIL; LEE JUAN TYLER, AS A MEMBER OF THE FORT HALL BUSINESS COUNCIL; DEVON BOYER, AS A MEMBER OF THE FORT HALL BUSINESS COUNCIL; TINO BATT, AS A MEMBER OF THE FORT HALL BUSINESS COUNCIL; BLAINE J. EDMO, AS A MEMBER OF THE FORT HALL BUSINESS COUNCIL; DARRELL DIXEY, AS A MEMBER OF THE FORT HALL BUSINESS COUNCIL; TONY GALLOWAY, SR., AS CHAIRMAN OF THE SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; CASPER APPENAY, AS A MEMBER OF THE SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; JOHN FRED, AS A MEMBER OF THE SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; ARNOLD APPENEY, AS THE EXECUTIVE DIRECTOR OF THE SHOSHONE-BANNOCK LAND USE DEPARTMENT; AND GEORGE GUARDIPEE, AS A ENFORCEMENT OFFICIAL OF THE SHOSHONE-BANNOCK LAND USE POLICY COMMISSION; SHOSHONE-BANNOCK TRIBAL COURT JUDGES JOHN DOES, AS A TRIBAL JUDICIAL OFFICER(S) DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it two motions to dismiss filed by the defendants (collectively referred to as the Shoshone-Bannock Land Use Policy Commission (LUPC)), and a motion for preliminary injunction filed by plaintiffs. The Court heard oral argument on the motions on December 10, 2012, and allowed plaintiffs additional time to respond to LUPC's submissions. That response was received on December 17, 2012. After examining all the submissions by both sides, the Court has decided, for the reasons set forth below, to grant the motions to dismiss and deny the motion for preliminary injunction.

FACTUAL BACKGROUND

The Shoshone-Bannock Tribes reside on the Fort Hall Indian Reservation that encompasses about 870 square miles. Plaintiff David M. Evans, not a member of the Tribes, owns land in fee simple within the boundaries of the Fort Hall Reservation. Evans constructed a single family residence on his property during 2012, and obtained a building permit from Power County authorizing the construction. Evans did not apply for or obtain a Tribal building permit.

In June of 2012, the LUPC filed suit against Evans and the builders of his home in the Tribal Court. LUPC alleged that Evans and the builders had violated the Tribal zoning laws by failing to obtain a Tribal building permit for the home. Evans and the builders responded by filing this action against the LUPC and various individual Tribal members of the LUPC and the Fort Hall Business Council. The Tribal Court stayed its action pending resolution by this Court of the motions at issue here.

LUPC has filed in this Court a motion to dismiss, claiming that plaintiffs failed to exhaust their Tribal Court remedies and that the Tribal Court should, in the first instance, determine its own jurisdiction. LUPC filed two separate motions, one on behalf of the LUPC and the individual LUPC defendants, and the second on behalf of the individual Business Council defendants. The second motion adopts the arguments of the first motion.

The plaintiffs filed a motion for injunctive relief in this Court to enjoin the defendants from attempting to enforce Tribal ordinances against them. This motion contains many of the same challenges to Tribal Court jurisdiction that were made in the plaintiffs' response to LUPC's motions to dismiss. The Court will turn first to the motions to dismiss.

ANALYSIS

Exhaustion

The Supreme Court has mandated the exhaustion of tribal remedies as a prerequisite to a federal court's exercise of its jurisdiction: "[E]xhaustion is required before such a claim may be entertained by a federal court." National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851-53 (1985). This is true even for non-Indian defendants sued in Tribal Court who allege that the proceedings exceed Tribal sovereign jurisdiction. Burlington Northern R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1244 (9th Cir. 1991). In National Farmers Union, the Supreme Court recognized that Tribal Courts are capable of resolving difficult jurisdictional issues. 471 U.S. at 856--57. That decision teaches that Tribal Courts (1) should be afforded a "full opportunity" to determine their own jurisdiction, (2) are capable of "rectifying errors," (3) will create a more complete record for eventual federal court review, and (4) will provide federal courts with the benefit of tribal court "expertise." Id. This is particularly true when litigation concerns the validity of a tribal ordinance -- the "tribe must itself first interpret its own ordinance and define its own jurisdiction." Burlington Northern, 940 F.2d at 1246. "The requirement of exhaustion of tribal remedies is not discretionary; it is mandatory." Id. at 1245.

However, the Supreme Court has recognized four exceptions to the exhaustion requirement: (1) when an assertion of tribal court jurisdiction is "motivated by a desire to harass or is conducted in bad faith"; (2) when the tribal court action is "patently violative of express jurisdictional prohibitions"; (3) when "exhaustion would be futile because of the lack of an adequate opportunity to challenge the [tribal] court's jurisdiction"; and (4) when it is "plain" that tribal court jurisdiction is lacking, so that the exhaustion requirement "would serve no purpose other than delay.

Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009) (quoting Nevada v. Hicks, 533 U.S. 353, 369 (2001)).

To determine whether it is "plain" that tribal jurisdiction is lacking, the Court determines whether jurisdiction is "colorable" or "plausible." Id. at 848. "If jurisdiction is 'colorable' or 'plausible,' then the exception does not ...


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