Glacier Electric Cooperative, Inc. et al v. Gervais et al

Filing 18

IT IS HEREBY ORDERED the plaintiff Glacier Electrics Rule 60(b) Motion 12 is DENIED. Signed by Judge Brian Morris on 9/15/2015. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

GLACIER ELECTRIC COOPERATIVE,
INC., BRIAN ELLIOTT, WILLARD
HJARTARSON, JIM NEWMAN, DARROL
BERKRAM, ZITA BREMNER, MILES
LEWIS, DAVE LOSING, and JAMES
TAYLOR, in their official capacities as
directors of Glacier Electric
Cooperative, Inc., and DAN BREWER, in
his official capacity as Interim General
Manager of Glacier Electric
Cooperative, Inc.
Plaintiffs,
vs.

CV 14-75-GF-BMM

ORDER

FLOYD “BOB” GERVAIS et al,
Defendants.

I. SYNOPSIS
The plaintiff, Glacier Electric Cooperative, Inc., the individual directors of
Glacier Electric Cooperative, Inc., and the interim general manager of the Glacier
Electric Cooperative, Inc. (collectively “Glacier Electric”), have sought relief,
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, from this Court’s
Order Granting Defendant’s Motion to Dismiss. (Docs. 12). The defendants,

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individual members of Glacier Electric Cooperative, Inc. (collectively “Cooperative
Members”), oppose the motion. (Doc. 14).
II. JURISDICTION AND VENUE
The Court possesses jurisdiction under 28 U.S.C. § 1331. Blackfeet Tribal
Court jurisdiction over Glacier Electric presents a federal question. Plains Commerce
Bank v. Family Land & Cattle Co., 554 U.S. 316, 324 (2008).
Venue is proper under 28 U.S.C. § 1391(b). The corresponding tribal court suit
currently remains venued in Blackfeet Tribal Court. The Blackfeet Tribal Court is
located in Glacier County, Montana. Glacier County lies within the Great Falls
Division of the District of Montana.
III.FACTUAL AND PROCEDURAL BACKGROUND
Glacier Electric Cooperative, Inc. is a non-profit corporation headquartered in
Cut Bank, Montana. (Doc. 1 at 3). Glacier Electric serves as the sole provider of
electricity to the Blackfeet Reservation. (Doc. 3 at 2). The individual plaintiffs serve
on Glacier Electric’s Board of Trustees (Doc. 1 at 4-6). The Cooperative Members
are qualified voters of Glacier Electric Cooperative, Inc., they are enrolled in the
Blackfeet Tribe, and reside they on trust land. Id.
The Cooperative Members filed a complaint against Glacier Electric in
Blackfeet Tribal Court on August 6, 2014, and Glacier Electric moved to dismiss the
complaint. (Doc. 1-3). Glacier Electric filed a Complaint for Declaratory Relief and

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Injunctive Relief with this Court on October 17, 2014. (Doc. 2). The Cooperative
Members filed a Motion to Dismiss on December 22, 2014. (Doc. 3). Glacier Electric
opposed this motion. (Doc. 6).
This Court issued an Order, on April 24, 2015, granting Defendant’s Motion to
Dismiss. The Court dismissed the complaint without prejudice for failure to exhaust
tribal court remedies. (Doc. 10). The Blackfeet Tribal Court issued an Order on May
26, 2015, in which it determined that the Blackfeet Tribal Court possessed
jurisdiction over the claim filed in Blackfeet Tribal Court. (Doc. 14 at 3-4).
IV. STANDARD OF REVIEW
The Court may, on motion and just terms, relieve a party from a final
judgment, order, or proceeding for mistake, inadvertence, surprise, or excusable
neglect. Fed. R. Civ. P. 60(b). A court reviews the denial of Rule 60(b) motions for
an abuse of discretion. Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100
(9th Cir. 2006). A district court’s order denying a Rule 60(b) motion will be reversed
only if the court fails to “apply the correct law, rests its decision on a clearly
erroneous finding of a material fact, or applies the correct legal standard in a manner
that results in an abuse of discretion.” Id.

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V. LEGAL STANDARD
Federal Rule of Civil Procedure 60(b)(1) allows a party to request the
reopening of his case under a limited set of circumstances. Wood v. Ryan, 759 F.3d
1117, 1119-20 (9th Cir. 2014) cert. denied, 135 S. Ct. 21 (2014). The party seeking
relief must show “extraordinary circumstances justifying the reopening of a final
judgment.” Id. (citing Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Rule 60(b)
motions should be used “sparingly as an equitable remedy to prevent manifest
injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th
Cir.1993).
The Ninth Circuit has recognized that an error of law provides a cognizable
basis for a Rule 60(b) motion. Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438, 441
(9th Cir. 1982). A court’s legal error by itself, however, does not warrant the
application of Rule 60(b). Plotkin v. P. Tel. and Tel. Co., 688 F.2d 1291, 1293 (9th
Cir. 1982). A court of appeals typically can remedy a legal error committed by a
district court. Id. A motion under Rule 60(b) should not be used merely to reiterate
arguments already presented. Maraziti v. Thorpe, 52 F.3d 252, 255 (9th Cir. 1995).
A district court in Plotkin denied plaintiff’s motion for preliminary injunction
on the basis that the plaintiff’s failure to exhaust administrative remedies had
deprived the court of jurisdiction. Plotkin, 688 F.2d at 1292. The defendant moved
for summary judgment while the appeal on the issue of injunctive relief remained

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pending before the Ninth Circuit. The district court granted summary judgment due to
the plaintiff’s failure to exhaust administrative remedies. Id. The plaintiff chose not
to appeal. Id. The time for appeal expired on the order granting summary judgment.
Id.
The Ninth Circuit finally ruled on the appeal from the district court’s denial of
injunctive relief. The Ninth Circuit decided that the plaintiff was not required to have
exhausted administrative remedies. Id. Plaintiff then filed a Rule 60(b) motion to
vacate the district court’s order granting summary judgment. Id.
The Ninth Circuit upheld the district court’s denial of plaintiff’s Rule 60(b)
motion. The Ninth Circuit determined that “the motion was not timely and [plaintiff]
made a conscious election not to appeal the summary judgment order.” Id. at 1293.
The district court reasoned that the filing of the motion 48 days after the order had
been entered, and after the expiration of the time to file appeal, rendered it untimely.
Id. at 1293 n. 2. The Ninth Circuit agreed. Id. Relief still would not have been
appropriate under Rule 60(b), however, even if the motion to vacate had been timely.
The Ninth Circuit noted that “allowing motions to vacate . . . after a deliberate choice
has been made not to appeal, would allow litigants to circumvent the appeals process
and would undermine greatly the policies supporting the finality of judgments.” Id. at
1293.

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VI. DISCUSSION
Glacier Electric alleges that the Court based its Order on mistakes of law
because the Order: (1) applied Grand Canyon Skywalk Development v. Sa Nyu Wa,
Inc., 715 F.3d 1196 (9th Cir. 2013), when it was not applicable to the facts of the
case; (2) did not apply the Blackfeet Tribal Code; (3) wrongfully determined that the
two exceptions under Montana v. United States, 450 U.S. 455, 565 (1981) had been
satisfied; and (4) did not apply a specific standard of review to Defendant’s Motion to
Dismiss. (Doc. 13 at 2).
A. Grand Canyon Skywalk Development
This Court’s Order cites Grand Canyon Skywalk Development for the
proposition that Glacier Electric’s actions amount to an intrusion on the Blackfeet
Tribe’s right to exclude, regardless of the status of the land underlying the dispute.
(Doc. 10 at 9). Glacier Electric seeks to distinguish Grand Canyon Skywalk
Development on the ground that Glacier Electric’s conduct at issue here did not occur
on tribal land, unlike the conduct of the non-Indian party in Glacier Canyon Skywalk
Development. (Doc. 13 at 6-8).
Glacier Electric did not attempt to distinguish Glacier Canyon Skywalk
Development in its Response to the Cooperative Members’ Motion to Dismiss. (Doc.
6). Even if the application of Glacier Canyon Skywalk Development were to represent

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legal error, it does not constitute “extraordinary circumstances” that would justify the
reopening of a final judgment. Glacier Electric may seek remedy through appeal.
B. Blackfeet Tribal Court
Glacier Electric argues the Blackfeet Tribal Code establishes that the Tribal
Court lacks jurisdiction over those who are non-Indians. (Doc. 13 at 5). The Court
addressed this argument in its Order. (Doc. 6 at 8-10; Doc. 10 at 6). The Order
recognizes that Glacier Electric is a non-tribal corporation and a non-member of the
Blackfeet Tribe for purposes of jurisdiction. This Court stated that “the Cooperative
Members [do not] possess a colorable claim of tribal court jurisdiction based on the
membership status of the parties.” (Doc. 10 at 6). This Court determined instead that
the Blackfeet Tribe’s inherent regulatory authority over tribal land provided a
colorable basis for jurisdiction. (Doc. 10 at 11). Glacier Electric’s argument that the
Blackfeet Tribal Code provides no jurisdiction based on its non-Indian status fails to
qualify as appropriate basis for a Rule 60(b) motion. Furthermore, after this Court
issued its Order, the Blackfeet Tribal Court issued an Order which determined that
the Blackfeet Tribal Court indeed possessed jurisdiction over the matter. (Doc. 14 at
3-4).
C. The Montana Exceptions
The first Montana exception provides Indian tribes inherent sovereign power to
exercise some forms of civil jurisdiction over non-Indians on their reservations where

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non-members enter into consensual relationships with the tribe or its members.
Montana v. United States, 450 U.S. 455, 565 (1981). The second exception under
Montana provides for tribal civil jurisdiction over non-Indians where the non-Indian
activity threatens or has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe. Id. Glacier Electric previously argued
that the Cooperative Members had failed to satisfy the Montana exceptions. (Doc. 6).
Glacier Electric raises the same argument now. (Doc. 13 at 9).
The Court needed only to determine whether jurisdiction was “plainly”
lacking. The Court decided that the Cooperative Members had asserted a colorable
claim of jurisdiction based on the Montana exceptions. (Doc. 10 at 9-11). Glacier
Electric contends that the Court’s application of the Montana exceptions presents an
error of law. (Doc. 13 at 9). Glacier Electric argues that the first Montana exception
applies only when the cause of action “actually arises from the relationship invoked
for jurisdictional purposes.” (Doc. 13 at 9-10). Glacier Electric argues that no
colorable claim of tribal civil jurisdiction exists due to the fact that the lawsuit centers
on Glacier Electric’s Bylaws and the alleged action of its directors, rather than
Glacier Electric’s consensual contracts with tribal members. Glacier Electric further
contends that the Court applied the second Montana exception too broadly as it was
not intended to capture the “generalized threat that turning electricity off poses for
any society.” (Doc. 13 at 11-12).

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The Court already has addressed Glacier Electric’s argument regarding the
Montana exceptions. This argument cannot form an appropriate basis for a Rule
60(b) motion. The alleged misapplication of the Montana exceptions fails to
constitute “extraordinary circumstances justifying the reopening of a final judgment.”
Wood, 759 F.3d at 1119-20. Appeal provides the appropriate remedy.
D. Standard of Review
Glacier Electric argues in its Rule 60(b) motion, as it did in its brief opposing
the motion to dismiss, that the Cooperative Members failed to set forth the standard
of review that should govern its motion to dismiss. (Doc. 13 at 12; Doc. 6 at 3-4).
Glacier Electric also argues that this Court made its Order pursuant to Federal Rule of
Civil Procedure 12(b)(1), and, therefore, this Court should have applied the “factual”
or “facial” challenge standards. (Doc. 13 at 12). The Court dismissed the Complaint
for failure to exhaust tribal court remedies. (Doc. 10 at 12).
The Court must dismiss or abstain from adjudicating any claim over which a
tribal court possesses “colorable” jurisdiction when a party has failed to exhaust tribal
court remedies. Atwood v. Fort Peck Tribal Ct. Assiniboine, 513 F.3d 943, 948 (9th
Cir. 2008). The exhaustion requirement represents a prerequisite to federal court
jurisdiction. Grand Canyon Skywalk Development, 715 F.3d at 1200. The Court may
relieve a non-Indian from the duty to exhaust all tribal court remedies only where it
determines tribal court jurisdiction to be “plainly” lacking. Strate v. A-1 Contractors,

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520 U.S. 438, 459 n. 14 (1997). This Court determined that the Blackfeet Tribal
Court did not “plainly” lack jurisdiction, and, therefore, declined to excuse Glacier
Electric from the requirement to exhaust tribal court remedies. (Doc. 10 at 12). This
final claim fails to provide an appropriate basis for a Rule 60(b) motion in light of the
fact that the Court already reviewed and addressed Glacier Electric’s standard of
review argument.
VII. CONCLUSION
A party may be granted relief from a judgment under Federal Rule of Civil
Procedure 60(b)(1) upon showing “extraordinary circumstances justifying the
reopening of a final judgment.” Wood, 759 F.3d at 1119-20. A Rule 60(b) motion
should not be used merely to reiterate previously presented arguments. Maraziti, 52
F.3d at 255. The arguments Glacier Electric presents in support of its Rule 60(b)
motion do not present extraordinary circumstances that would support relief under
Rule 60(b).
IT IS HEREBY ORDERED the plaintiff Glacier Electric’s Rule 60(b)
Motion (Doc. 12) is DENIED.
DATED this 15th day of September, 2015.

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