Bishop Paiute Tribe v. Inyo County et al

Filing 35

ORDER signed by Judge Garland E. Burrell, Jr on 7/10/15: This action is DISMISSED for lack of jurisdiction and shall be closed. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BISHOP PAIUTE TRIBE,

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No. 1:15-CV-00367-GEB-JLT

Plaintiff,
v.

ORDER DISMISSING AMENDED
COMPLAINT FOR LACK OF A
JUSTICIABLE CASE OR CONTROVERSY

INYO COUNTY; WILLIAM LUTZE,
Inyo County Sheriff; THOMAS
HARDY, Inyo County District
Attorney,
Defendants.

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Each

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Defendant

moves

separately

for

dismissal

of

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Plaintiff Bishop Paiute Tribe’s (“the Tribe’s”) First Amended

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Complaint

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injunctive relief. (See ECF Nos. 13-16.) The Tribe opposes each

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motion.

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(“FAC”),

Before

in

which

considering

the

Tribe

whether

any

seeks

declaratory

dismissal

motion

and

has

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merit, the Court decides sua sponte whether the Tribe’s claim for

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relief is ripe for judicial review since a federal court has an

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independent duty to consider its jurisdiction. Review of the FAC

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reveals it does not contain factual allegations demonstrating a

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justiciable case or controversy over which the federal court has

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jurisdiction.
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The jurisdiction of federal courts is defined
and
limited
by
Article
III
of
the
Constitution. In terms relevant to the
question for decision in this case, the
judicial
power
of
federal
courts
is
constitutionally restricted to “cases” and
“controversies.” As is so often the situation
in constitutional adjudication, those two
words have an iceberg quality, containing
beneath their surface simplicity submerged
complexities which go to the very heart of
our
constitutional
form
of
government.
Embodied
in
the
words
“cases”
and
“controversies” are two complementary but
somewhat different limitations. In part those
words limit the business of federal courts to
questions presented in an adversary context
and in a form historically viewed as capable
of resolution through the judicial process.
And in part those words define the role
assigned to the judiciary in a tripartite
allocation of power to assure that the
federal courts will not intrude into areas
committed
to
the
other
branches
of
government. Justiciability is the term of art
employed to give expression to this dual
limitation placed upon federal courts by the
case-and-controversy doctrine.

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Flast v. Cohen, 392 U.S. 83, 94-95 (1968). “Ripeness is one

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component of the Article III case or controversy requirement. The

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‘basic rationale’ of the ripeness requirement is ‘to prevent the

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courts,

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entangling

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Native Am. Church of Haw. v. Holder, 676 F.3d 829, 835 (9th Cir.

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2012) (citing Abbot Labs. v. Gardner, 387 U.S. 136, 148 (1967)).

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through

avoidance

themselves

in

of

premature

abstract

adjudication,

disagreements.”

The difference between an abstract question
and a “controversy” . . . is necessarily one
of degree, and it would be difficult if it
would be possible, to fashion a precise test
for determining in every case whether there
is
such
a
controversy.
Basically,
the
question in each case is whether the facts
alleged, under the circumstances, show that
there is a substantial controversy, between
the parties having adverse legal interests,
of sufficient immediacy and reality to
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from

Oklevueha

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warrant issuance of a declaratory judgment.

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Md. Case. Co. v Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)

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(emphasis added). “The burden of establishing ripeness . . .

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rests on the party asserting the claim.” Colwell v. HHS, 558 F.3d

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1112, 1121 (9th Cir. 2009).
The

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alleged

case

or

controversy

in

the

Tribe’s

FAC

concerns the following allegations:

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[Defendants]
threat[en]
[to]
arrest
and
prosecut[e]
a
[T]ribal
law
enforcement
officer . . . for performing his duties on
the Tribe’s Reservation. The Tribe seeks an
order
declaring
that
Defendants
are
interfering
with
the
Tribe’s
inherent
sovereign authority to take action, defined
by
federal
law,
against
non-Indians
perpetrators on tribal lands. Federal law
establishes
that
tribes
have
inherent
authority over non-Indians on tribal lands to
stop[;] restrain[;] detain[;]
investigate
violations of tribal, state and federal
laws[;] and deliver or transport the nonIndian to the proper authorities.

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(FAC ¶ 1.)

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2015,

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issued a “Cease and Desist Order” regarding the Tribe’s police

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officers,

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continuously committing serious violations of California criminal

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statutes,” and “have been employing unlawful force on subjects

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during the unlawful exercise of authority;” and that the tribal

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police shall “immediately . . . cease and desist the unlawful

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exercise of California peace officer authority.” (FAC Ex. 3, ECF

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No. 12-1.) Sheriff Lutze further states in the Cease and Desist

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Order:

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The Tribe also alleges in the FAC that on January 6,

Defendant

(FAC

Inyo

¶

31),

County

in

Sheriff

which

he

Lutze

states

(“Sheriff

the

officers

If Tribal Police do not comply with this
cease and desist order within [10 days], be
advised that Tribal Police employees will be
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Lutze”)

“are

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subject to arrest and criminal prosecution
for applicable charges as well as Penal Code
§ 538d (Fraudulent Impersonation of a Peace
Officer). In addition, this Office will seek
injunctive relief and an order for court
costs and attorney’s fees. Tribal Police
criminal
and
civil
liability,
both
individually
and
collectively,
could
be
considerable, not to mention the liability
exposure
to
victims
of
Tribal
Police
misconduct.

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(Id.) The Tribe responded to the Cease and Desist Order in a

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letter dated January 15, 2015, stating in pertinent part:

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While we disagree with your presentation of
the facts, and your interpretations of
applicable law, we understand that your
concerns are motivated by a legitimate desire
to protect the public . . . As a show of good
faith and to keep the peace, we have directed
our tribal officers to ensure that the
matters outlined in your January 6, 2015
letter
are
addressed.
Specifically,
our
tribal law enforcement officers will not
exercise California peace officer authority
on
or
off
the
[R]eservation
with
the
exception of: (a) daily patrols that require
them to cross State Hwy 168 and when
traversing
U.S.
Highway
395,
and
(b)
traveling to and from their homes off the
reservation. The officers have been directed
that they are not authorized by the Tribe to
expose their firearms off reservation except
in compliance with applicable state law.

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(Decl. John Kirby ISO Defs.’ Replies (“Kirby Decl”), Ex. A, ECF

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No. 29 (emphasis added).)1
The

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Tribe’s

response

letter

is

attached

to

the

Declaration of John Kirby, in which Kirby argues in a conclusory

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The Tribe’s response letter to Sheriff Lutze, which is attached to the
Declaration of John Kirby, is treated as being part of the FAC since the
letter is incorporated by reference in paragraph 32 of the FAC. See United
States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (stating “[c]ertain
written instruments . . . may be considered part of the pleading . . . .
[e]ven if [it] is not attached to [the] complaint,” if it is “incorporated by
reference into [the] complaint [and] . . . forms the basis of the plaintiff's
claim.”).

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manner:

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This [response letter] raises the issue of
mootness of this litigation, and subject
matter jurisdiction, as well as accompanying
justiciability, and further speaks to and
underscores the issue of ripeness, as well as
the issue of existence of an actual case or
controversy with a real life fact-basis that
is subject to adjudication by this Court.
It also speaks to the position of all
defendants, as
set
forth
in
their
Replies, that declaratory relief is . . .
inappropriate with respect to the abstract
principle of law that the Tribe seeks to have
adjudicated.

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(Kirby Decl. ¶ 11.)

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The Tribe does not oppose consideration of its response

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letter,

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declaration, arguing Kirby’s arguments are “new and additional

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grounds

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Consolidated Opp’n Defs.’ Decl. of John Kirby, (“Opp’n”) 2:22,

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ECF No. 33.) The merits of this objection need not be decided

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because the Court is considering its jurisdiction sua sponte.

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However, the Tribe’s argument concerning whether the FAC evinces

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a

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Tribe’s opposition to the Kirby Declaration, is considered. The

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Tribe contends its FAC evinces a justiciable case or controversy

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since it:

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but

for

objects

dismissal”

justiciable

case

or

to

the

that

cited

should

controversy,

portion

not

be

which

of

the

considered.

is

included

seeks to accomplish . . . clarification of
applicable
law,
the
scope
of
[tribal]
officers’ law enforcement duties and their
ability to perform those duties without fear
or expectation of criminal prosecution. . . .
There also remains a fundamental difference
between the Tribe’s and the Defendants’
interpretation of federal law . . . . Without
Declaratory
Relief,
the
Tribe
has
no
assurance that Defendants will refrain from
future arrest and prosecutions of tribal
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Kirby

(Pl.’s

in

the

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officers
duties.

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The
Defendants
be
enjoined
from
arresting and criminally charging the Tribe’s
duly authorized police officers, acting in
compliance with the Indian Civil Rights Act,
for carrying out their duties as clearly
delineated under tribal and federal law, or
otherwise interfering and threatening tribal
officers while executing their duty.

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(FAC ¶¶ 44-46 (paragraph numbering omitted).)

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lawful

A declaration that the Tribe’s police
officers
have
the
authority
on
its
Reservation
to
stop[;]
restrain[;]
investigate violations of tribal, state, and
federal law[;] detain[;] and transport or
deliver a non-Indian violator to the proper
authorities [and that by] carrying out these
federally authorized actions, the Tribe’s
duly authorized law enforcement officers are
not impersonating a state officer nor is
their restraint, investigation and detention
of
a
non-Indian,
in
compliance
with
provisions of the Indian Civil Rights Act, an
“arrest” for purposes of state criminal
charges or false imprisonment.

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their

A declaration that Defendants’ . . .
threat of criminal prosecution of the Tribe’s
police officers, violates federal common law
and directly interfer[e]s with the Tribe’s
inherent authority to maintain a police
department and protect public safety on its
Reservation.

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out

relief in its FAC:

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carrying

(Opp’n 3:25-4:10.) The Tribe prays for the following prospective

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for

The Tribe appears to root its allegations of an actual
controversy in concerns about the warning contained in the Cease
and Desist Order, which states the Tribe’s police officers could
be subject to criminal prosecution and/or a civil action if they
exercise

what

Sheriff

Lutze

characterizes

as

“unlawful

force

during the unlawful exercise of authority[;]” however, in its

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response letter, the Tribe states its “law enforcement officers

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will not exercise California peace officer authority on or off

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the [R]eservation.” Further, the Tribe “directed [its officers]

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to ensure that the matters outlined [in the Cease and Desist

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Order] are addressed.” (Kirby Decl. Ex. A.) The Tribe’s FAC does

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not

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anticipated

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injunctive relief it seeks. Oklevueha Native Am. Church of Haw.

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Inc. v. Holder, 676 F.3d 829, 836 (9th Cir. 2012). “Such unknown

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. . . claims do not present an immediate or real threat to [the

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Tribe and its officers] such that declaratory [and/or injunctive]

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relief is proper, Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d

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891, 896 (5th Cir. 2000), since “the mere existence of . . . a

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generalized threat of prosecution [does not] satisf[y] the ‘case

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or controversy’ requirement.” Thomas v. Anchorage Equal Rights

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Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). Further,

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“[f]or

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constitutional ripeness inquiry focuses on [inter alia] . . .

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whether

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[demonstrating

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violate

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articulated a plan to violate any law. Alaska Right of Life

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Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir.

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2007).

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reality” of a “substantial controversy between the parties” that

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is required to establish a justiciable case or controversy. Md.

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Case. Co., 312 U.S. at 273.

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allege

“a

definite

conduct

purposes

the

the

The

of

is

a

law

Tribe

in

concrete

involved

has]

one

of

the

its

has

police
and

not

regarding

what

declaratory

and

challenge

articulated

question,”

therefore

dispute”

with

preenforcement

[Tribe
that

and

a

.

shown

the

the

.

,

concrete

officers

here

.

the

plan

intends]

Tribe

has

“immediacy

to
not

and

Since the Tribe has not demonstrated a justiciable case
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or controversy in its FAC, this action is DISMISSED for lack of

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jurisdiction and shall be closed.

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Dated:

July 10, 2015

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