Nahno-Lopez, et al v. Houser, et al


[9813574] Affirmed; Terminated on the merits after oral hearing; Written, signed, published; Judges Kelly, authoring judge, Gorsuch and Melgren. Mandate to issue.

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Nahno-Lopez, et al v. Houser, et al U n i t e d States Court of Appeals Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010Circuit 1 T e n t h Page: FILED Doc. 0 N o v e m b e r 9, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court B E L V A ANN NAHNO-LOPEZ; B E R D E N E NAHNO-LOPEZ; BETTY J E A N CROCKER; LUCINDA K E R C H E E ; ROBERTA C BURGESSK E R C H E E ; GWENDOLYN KAY K E R C H E E ; MELVIN KERCHEE, JR., P l a i n t i f f s - Appellants, and R E A C H E L E DARBY-GARCIA; M A R G A R E T PENCE, Plaintiffs, v. J E F F HOUSER; LORI WARE; M I C H A E L DARROW; ROBIN ISOM; L O R E T T A BUCKNOR; JANET M A N N ; NORMAN D. NOTT, Defendants - Appellees, and F O R T SILL APACHE CASINO, a p r i v a t e enterprise, Defendant. N o . 09-6258 Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 2 A P P E A L FROM THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF OKLAHOMA ( D . C . No. 5:08-CV-01147-F) G a r y Montana, Osseso, Wisconsin, for Appellants. R i c h a r d Grellner of Law Office of Richard J. Grellner, Oklahoma City, Oklahoma ( a n d Robert E. Prince of Carter & Prince, Lawton, Oklahoma, with him on the b r i e f ) , for Appellees. B e f o r e KELLY, GORSUCH, Circuit Judges, and MELGREN *, District Judge. K E L L Y , Circuit Judge. P l a i n t i f f s - A p p e l l a n t s filed this action claiming unlawful use of their real p r o p e r t y and seeking declaratory judgment, injunctive relief, ejectment, and d a ma g e s . They appeal from the district court's grant of summary judgment in f a v o r of Defendants-Appellees, members of the Business Committee of the Fort S i l l Apache Tribe of Oklahoma and the Manager of the Fort Sill Casino. The d i s t r i c t court had subject-matter jurisdiction pursuant to 25 U.S.C. 345 and a p p e l l a t e jurisdiction arises under 28 U.S.C. 1291. We affirm. The Honorable Eric F. Melgren, U.S. District Court Judge, District of K a n s a s , sitting by designation. -2- * Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 3 Background T h i s case involves a dispute over real property allegedly leased by the Fort S i l l Apache Tribe of Oklahoma (the "Tribe"), acting through its Tribal Business C o mmi t t e e (the "Business Committee"). Defendants are members of the Business C o mmi t t e e and the Manager of the Fort Sill Apache Casino (the "Casino"), all n a me d in their individual capacities. Plaintiffs are members of the Comanche T r i b e and hold beneficial title to the real property at issue. In June 1999, the Tribe's General Council authorized the Business C o mmi t t e e to acquire the property. See Aplt. App. 250. The Business Committee n e g o t i a t e d a purchase agreement. However, litigation ensued and the purchase w a s never consummated. Instead of purchasing the property, in October 2003 P l a i n t i f f s and the Business Committee entered into a lease agreement, pursuant to w h i c h the Tribe would make five yearly payments of $300 to each Plaintiff. See A p l t . App. 180. It is undisputed that Plaintiffs received at least four yearly p a y me n t s under this lease. They never returned or attempted to return these p a y me n t s . P l a i n t i f f s maintain that the Secretary of the Interior never approved the l e a s e , as is required by 25 U.S.C. 348. Nevertheless, in 2007 construction of a p a r k i n g facility began. After completion of the parking facility, an official from t h e BIA issued a notice of trespass to the Tribe, indicating that the BIA c o n s i d e r e d the lease null and void. The Tribe brought suit challenging the BIA's -3- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 4 t r e s p a s s determination, which the Tribe later dropped, allegedly in reliance on an A s s i s t a n t United States Attorney's assurance that the BIA had impliedly approved t h e lease. See Aplt. App. 183. A f t e r these events, Plaintiffs filed this action which contained seven counts. See Aplt. App. 12, 20-25. Only two counts survived a motion to dismiss: a claim a l l e g i n g violation of 25 U.S.C. 345, which grants federal jurisdiction over I n d i a n claims of unlawful exclusion from congressionally allotted parcels, and a c o mmo n - l a w trespass claim. These counts remain only as to Defendants in their i n d i v i d u a l capacities, and only for declaratory and monetary relief. See Aplt. App. 101-03. D e f e n d a n t s moved for summary judgment on these claims. Their me mo r a n d u m in support contained fifty-seven facts, each of which was supported b y an affidavit or documentary evidence. See id. 111-23. Of particular i mp o r t a n c e are the following: -"The Tribe's Business Committee has authority d e l e g a t e d from the Tribe's General Council to administer b u s i n e s s operations of the Tribe . . . , including operations of t h e Fort Sill Apache Casino," id. 112; -"[T]he Tribe's General Counsel authorized the Tribe's B u s i n e s s Committee to acquire the property" at issue in the c a s e , id. 117; -"Plaintiffs gave express consent to the Tribe to make u s e of the property, including consent to develop a portion of t h e property for customer parking for the Fort Sill Apache C a s i n o , " id. 118; -4- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 5 - T h e Tribe made payments under the lease and loans u n d e r the abandoned purchase agreement, which the Plaintiffs n e v e r returned or tendered, see id. 118, 120; and - B e f o r e the lease expired, Casino activities ceased and t h e Plaintiffs' land was restored to its original condition. See i d . 123. I n response, Plaintiffs set forth fifty undisputed facts, only four of which c o n t a i n e d a reference to the record. None referenced Defendants' undisputed f a c t s . See Aplt. App. 143-49. Three of the facts with record references pertain to c l a i ms by the "Pence Plaintiffs," who dismissed their claims on appeal. The one r e ma i n i n g "undisputed fact" ostensibly with some support is: - " W h e t h e r or not the General Council of the Ft. Sill Apache T r i b e authorized a purchase of the Kerchee lands and not an illegal l e a s e . " Aplt. App. 148. Though styled as "undisputed facts," all other statements were merely reassertions o f original pleadings or conclusory, unsupported allegations. See id. 143-49. The district court granted summary judgment, holding that Plaintiffs failed t o raise a genuine issue of material fact for trial. See id. 168. Despite Plaintiffs' n o n - c o mp l i a n c e with the local rule requiring citations to the supporting evidence, t h e district court reviewed the documents purportedly incorporated by the P l a i n t i f f s and found no support for their assertions. See Aplt. App. 166. It also h e l d that Defendants were entitled to sovereign and qualified immunity. See id. 167-68. -5- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 6 O n appeal, Plaintiffs argue that the district court erred in granting summary j u d g me n t given disputed genuine issues of material fact and that Defendants are n o t entitled to any immunity having acted outside of their authority. We hold that t h e Plaintiffs failed to establish a genuine issue of material fact for trial and a f f i r m solely on that basis. Discussion A. Jurisdiction T h e surviving claims of the Plaintiffs include a claim asserting violation of 2 5 U.S.C. 345 and a common-law trespass claim. See Aplt. App. 101 (district c o u r t ' s order); id. 21, 24 (original complaint setting forth the two surviving c l a i ms ) . Some clarification of these claims is needed to explain the basis for s u b j e c t - ma t t e r jurisdiction and properly state the issues. T i t l e 25 U.S.C. 345 grants jurisdiction over "suits involving the interests a n d rights of the Indian in his allotment or patent after he has acquired it." United States v. Mottaz, 476 U.S. 834, 845 (1986) (internal quotation marks and c i t a t i o n omitted). However, 345 does not create cause of action or a standard f o r liability. See 25 U.S.C. 345; cf. Touche Ross & Co v. Redington, 442 U.S. 5 6 0 , 577 (1979) ("Section 27 [of the Securities Exchange Act of 1934] grants j u r i s d i c t i o n to the federal courts . . . . It creates no cause of action of its own f o r c e and effect; it imposes no liabilities."). Thus, Plaintiffs' first count--which -6- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 7 a s s e r t s "violation" of 25 U.S.C. 345--does not in and of itself state a claim for relief. Plaintiffs' second count asserts a common-law trespass claim. However, I n d i a n rights to a Congressional allotment are governed by federal--not s t a t e -- l a w . See Oneida Cnty. v. Oneida Indian Nation of New York State, 470 U . S . 226, 235-36 (1985) (holding that federal common law, not state law, g o v e r n e d Indian tribes' damage claims); United States v. Milner, 583 F.3d 1174, 1 1 8 2 (9th Cir. 2009) ("Federal common law governs an action for trespass on I n d i a n lands."(citations omitted)); Felix S. Cohen, Handbook of Federal Indian L a w 16.03(3)(c) (5th ed. 2005) ("[S]tate courts have no jurisdiction over a l l o t me n t ownership disputes . . . ."(footnote omitted)). Thus, to the extent that P l a i n t i f f s ground their trespass claim in state common law, it cannot provide relief. Plaintiffs' two claims, however, can be fairly construed to articulate a v i a b l e claim over which we have jurisdiction. They contend that 345 was " v i o l a t e d " in the sense that Defendants' presence on their property constituted t r e s p a s s and was thus "unlawful" within the meaning of 345. See Aplt. Br. 8. They combine this with a claim for common-law trespass. See Aplt. App. 24. We construe the complaint as stating a federal common-law trespass claim, for -7- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 8 w h i c h 345 provides jurisdiction. 1 Accord Milner, 583 F.3d at 1182 (noting that a c t i o n s for trespass on Indian lands are governed by federal common law (citing U n i t e d States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n.8 (9th C i r . 1994); Oneida Cnty., 470 U.S. 226 at 235-36)). I n other words, Plaintiffs' two surviving counts form, in essence, one c l a i m: a federal common-law trespass claim for which 345 provides federal s u b j e c t - ma t t e r jurisdiction. Oklahoma trespass law provides the rule of decision f o r this federal claim. See California ex rel. State Lands Comm'n v. United S t a t e s , 457 U.S. 273, 283 (1982) ("Controversies governed by federal law do not i n e v i t a b l y require resort to uniform federal rules. It may be determined as a ma t t e r of choice of law that, although federal law should govern a given question, s t a t e law should be borrowed and applied as the federal rule for deciding the s u b s t a n t i v e legal issue at hand.") (citations omitted); Milner, 583 F.3d at 1182 n . 6 (adopting Washington trespass law to govern a federal common-law trespass c l a i m brought by Indians) (citations omitted); Felix S. Cohen, Handbook of F e d e r a l Indian Law 16.03(3)(c) (5th ed. 2005) ("Although state courts have no j u r i s d i c t i o n over allotment ownership disputes, federal law adopts state law as the r u l e of decision in many circumstances, either explicitly or implicitly."). The district court also had subject-matter jurisdiction under 28 U.S.C. 1331, as a federal common-law suit provides federal question jurisdiction. See N a t ' l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 850 (1985). -8- 1 Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 9 B. S u mma r y Judgment O u r review of a summary judgment decision is de novo and we employ the s a me standard as the district court. See Oldenkamp v. United Am. Ins. Co., -- F . 3 d --, 2010 WL 3758715, *2 (10th Cir. 2010) (internal quotation marks and c i t a t i o n s omitted). We view the evidence and make inferences in the light most f a v o r a b l e to the non-movant. Id. U n d e r Federal Rule of Civil Procedure 56(c)(2), summary judgment is a p p r o p r i a t e "if the pleadings, the discovery and disclosure materials on file, and a n y affidavits show that there is no genuine issue as to any material fact and that t h e movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The movant bears the initial burden of proving that no genuine issues of material f a c t exist for trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In response, the non-movant must "set out specific facts showing a genuine issue f o r trial." Fed. R. Civ. P. 56(e)(2). The non-movant "may not rely merely on . . . i t s own pleadings." Id. Rather, it must come forward with facts supported by c o mp e t e n t evidence. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th C i r . 1998). If the non-movant fails to carry this burden, summary judgment is a p p r o p r i a t e . Id. A n issue of fact is "genuine" "if the evidence is such that a reasonable jury c o u l d return a verdict for the non-moving party" on the issue. Anderson v. L i b e r t y Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "material" "if -9- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 10 u n d e r the substantive law it is essential to the proper disposition of the claim" or d e f e n s e . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248). In d e t e r mi n i n g whether a non-movant asserting a claim or defense has raised a g e n u i n e issue of material fact, courts invariably take into account the substantive b u r d e n of proof at trial. See Anderson, 477 U.S. at 252. Thus, in response to a p r o p e r l y supported motion for summary judgment, a non-movant must produce s u f f i c i e n t evidence for a reasonable trier of fact to find in its favor at trial on the c l a i m or defense under consideration. Plaintiffs failed to carry this burden as to their claim. The local rules p r o v i d e that when confronted with a movant's numbered statement of undisputed f a c t s supported by citations to record evidence, a non-movant must provide a c o n c i s e statement of material facts as to which the party asserts genuine issues e x i s t . W.D. Okla. L.R. 56.1(b) & (c). Each fact in dispute must be numbered and s u p p o r t e d by citations to record evidence. Id. This counter-statement of facts mu s t also indicate (where applicable) the number of the movant's fact that is d i s p u t e d . Id. Although Plaintiffs included a numbered statement of facts, they d i d not reference Defendants' facts. They did reference and include three u n d e r l y i n g lease documents pertinent to claims now dismissed on appeal. Aplt. A p p . 147. Concerning whether the Defendants acted with authority, Plaintiffs s t a t e d that the Tribe's General Counsel delegated the authority to purchase--but n o t to lease--the Plaintiffs' property. See Aplt. App. 148. In support of this -10- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 11 f a c t u a l contention, Plaintiffs cited to a Tribal Council Resolution that vests the B u s i n e s s Committee with "such authority as may be reasonable and necessary for t h e . . . acquisition" of Plaintiffs' property. Aplt. App. 148, 249-250. P u t t i n g aside whether this single supported fact raises a "genuine" i s s u e -- a f t e r all, the "reasonable and necessary authority" to acquire property s e e ms to encompass the authority to lease, see Black's Law Dictionary (8th ed. 2 0 0 4 ) (defining "acquisition" as "the gaining of possession or control over s o me t h i n g " ) -- i t certainly does not raise a "material" issue. U n d e r Oklahoma law, consent forms a complete defense to trespass. See A n t o n i o v. Gen. Outdoor Adver. Co., 414 P.2d 289, 291 (Okla. 1966) ("Trespass i s not committed if there is permission or consent to do [the] acts complained of, w h i c h consent may be implied by the circumstances." (internal quotation marks a n d citation omitted)); Vertex Holdings, LLC v. Cranke, 217 P.3d 120, 123 (Okla. C i v . App. 2008) (defining trespass as "the actual physical invasion of the property o f another without permission"(emphasis added) (citations omitted)). Plaintiffs d i d not controvert Defendants' properly supported contention that "Plaintiffs gave e x p r e s s consent to the Tribe to make use of the property." See Aplt. App. 118 ( 3 3 ) . Thus, Plaintiffs' controverted fact is immaterial: even if the Business C o mmi t t e e did not have the authority to enter into the lease, Plaintiffs' consent to D e f e n d a n t s ' presence precludes recovery for trespass. Because Plaintiffs failed to p r o p e r l y raise a genuine issue of material fact for trial, the district court's grant of -11- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 12 s u mma r y judgment was appropriate. P l a i n t i f f s argue that non-compliance with the local rules by not labeling u n d i s p u t e d facts as disputed should not warrant summary judgment and that it s h o u l d have been apparent from their presentation that Defendants' facts were d i s p u t e d , at least as to the authority of the Business Committee Members. Aplt. B r . 30-33. In return, Defendants point out that Plaintiffs failed to heed a f u n d a me n t a l requirement of federal summary judgment practice (identifying s p e c i f i c evidence showing a genuine issue of material fact), leaving undisputed t h e movant's statement of material facts, which was supported by detailed r e f e r e n c e s to the record. Aplee. Br. 25. We agree with Defendants. Local rules that are consistent with the national rules have the force of law. Kinsley v. Lakeview Reg'l Med. Ctr. LLC, 570 F.3d 586, 589 (5th Cir. 2009); F e d . R. Civ. P. 83(a)(1). Plaintiffs do not challenge the validity of the Western D i s t r i c t of Oklahoma's local rule 56.1, nor do they claim that the rule was vague o r unclear. Contrary to Plaintiffs' assertions, the rule is not a simple "labeling" r e q u i r e me n t . It is an important tool to identify and address the facts at issue on s u mma r y judgment: a district court should not have to guess which of the mo v a n t ' s material facts are actually disputed by the non-movant. This is p a r t i c u l a r l y important in complicated litigation, as the district court correctly n o t e d . See Aplt. App. 165. In the end, however, Plaintiffs' failure to produce the e v i d e n c e specifically required under Federal Rule of Civil Procedure 56(e)(2) -12- Appellate Case: 09-6258 Document: 01018529365 Date Filed: 11/09/2010 Page: 13 w a r r a n t e d summary judgment. P l a i n t i f f s also argue that they properly raised legal defenses to summary j u d g me n t . See Aplt. Br. 32. The Supreme Court has been quite clear of late that c o n c l u s o r y statements of law cannot defeat a motion to dismiss. See Ashcroft v. I q b a l , 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 5 4 4 , 555 (2007). That admonition would seem to apply even more so in the s u mma r y judgment context. Conclusory legal statements cannot preclude s u mma r y judgment. T h e district court also held that Defendants were entitled to sovereign i mmu n i t y and qualified immunity. See Aplt. App.166-68. In view of our d i s p o s i t i o n , we do not reach those issues. AFFIRMED. -13-

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