ST. ISIDORE FARM LLC, and Idaho limited liability company; and GOBERS, LLC., a Washington limited liability company, Plaintiffs,
COEUR D'ALENE TRIBE OF INDIANS, a federally recognized Indian tribe, JOHN DOES 1-10, each of which are Members of the Coeur d'Alene Tribe of Indians, Defendants.
EDWARD J. LODGE, District Judge.
On July 16, 2013, this Court entered an Order extending the temporary restraining order in this matter and requested expedited briefing on the motion to dismiss (Dkt. 31). Expedited briefing and related declarations were filed by Plaintiffs as well as motions to strike the declarations filed by Defendants. Responses and replies as well as supplemental declarations have been filed by both sides. Supplemental authority was filed by Defendants (Dkt. 53). A motion to strike the supplemental declarations of Plaintiffs' experts Mr. Hess and Mr. Monks was filed by Defendants (Dkt. 55). A response to the most recent motion to strike was filed by Plaintiffs.
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
Plaintiffs St. Isidore Farm, LLC and Gobers, LLC seek this Court to enjoin and restrain the Coeur d'alene Tribe of Indians (the "Tribe") and the Coeur d'Alene Tribal Court from levying civil fines, placing liens on the real property owned by Plaintiff St. Isidore Farm LLC and pursuing criminal actions against the Plaintiffs for the land application of domestic sewage sludge (septage) to non-public contact sites from which there is no discharge into waterways. Plaintiffs allege they are in compliance with all federal and state regulations for the discharge of septage and received approval from the Idaho Department of Environmental Quality for human waste application on the non-Indian fee land.
It is undisputed that the Tribe adopted a resolution on March 6, 2013, enacting Chapter 57 of the Coeur d'Alene Tribal Code entitled "Tribal Waste Management Act" which appears to prohibit the septage disposal process being used by Plaintiffs. Plaintiffs argue the Tribe's more restrictive discharge provisions are not applicable to non-Indian land owned by non-Indians located within the boundaries of the Coeur d'Alene Reservation. Plaintiffs allege they are being fined by the Tribe for their actions and are facing criminal liability as well as liens being placed on their property for not being in compliance with the Tribe's laws and regulations. Plaintiffs filed a motion for injunctive relief in this Court to enjoin the Defendants from attempting to enforce Tribal ordinances against them. The Tribe filed suit in Tribal Court against the Plaintiffs on June 3, 2013 under case number CV-SC-2013-0115. Plaintiffs have appeared and answered the Complaint in Tribal Court, but contest the Tribal Court's jurisdiction over this matter.
Defendants have filed declarations indicating that no criminal prosecutions have been initiated against Plaintiffs. Nor is there any evidence the Tribe intends to place a lien on Plaintiffs' real property. Defendants have filed declarations by Scott Fields, Cameron Heusser, Tom Briggs and Callie Ridolfi in support of their motion to dismiss alleging that the septage dumping by Plaintiffs is a risk or threat to the health and welfare of tribal members who may harvest or eat wild game that have grazed on the property and is a risk or threat to the water quality within the Coeur d'Alene Reservation through surface runoff and percolation of the septage into the ground water.
Plaintiffs filed motions to strike the declarations filed by Defendants and have submitted their own declarations of certain experts regarding whether or not there is a real threat to the health and welfare of the Tribe based on the activities of Plaintiffs.
The Court has reviewed the record in this matter and has determined that jurisdiction is a critical prerequisite to resolving the merits of the request for a preliminary injunction and the motion to dismiss. Defendants maintain in their response to the motion for preliminary injunction and in their motion to dismiss that Plaintiffs have not exhausted tribal court jurisdiction and are therefore prevented from seeking relief in federal court. Plaintiffs respond that the Tribe has not carried its burden in establishing the health or welfare of the Tribe is at stake in this particular case, so the exhaustion requirement does not apply as the jurisdiction of the Tribe does not plainly exist. The Tribe argues it does not have to prove a direct effect, but only that the Plaintiffs' activities "threaten" the health and welfare of the Tribe to establish that jurisdiction lies with the Tribe.
Generally, the parties do not appear to disagree with the state of the law, just the application of the facts to the law. The law regarding exhaustion and the health and safety exception has recently been addressed in the District of Idaho by Judge Winmill in his recent decision in Evans v. Shoshone-Bannock Landuse Policy Commission, Civil Case 4:12-cv-417-BLW, 2012 WL 6651194, currently on appeal with the Ninth Circuit. While the Evans opinion is not binding on this Court, the Court finds Judge Winmill's summary of the law to be persuasive as to the analysis this Court should undertake. The Court incorporates the summary of law from the Evans case pp. *2-*3:
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. at856-57. 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 ...