Ute Indian Tribe v. UT, et al, et al

Filing 582

MEMORANDUM DECISION and Order re: Motions to Dismiss- finding as moot 222 Motion to Dismiss for Lack of Jurisdiction ; denying 250 Motion to Dismiss for Lack of Jurisdiction ; denying 270 Motion to Dismiss ; granting in part and denying in part 278 Motion to Dismiss for Lack of Jurisdiction ; granting 321 Motion to Dismiss ; granting 321 Motion to Dismiss for Lack of Jurisdiction. See Order for details. Signed by Judge Bruce S. Jenkins on 4/23/14. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
*********
UTE INDIAN TRIBE,
)
)
Civil Nos. 2:75-CV-00408 BSJ
Plaintiff,
)
2:13-CV-00276 BSJ
)
2:13-CV-01070 BSJ
vs.
)
(consolidated)
)
STATE OF UTAH, et al.,
)
)
Defendants.
) MEMORANDUM OPINION &
) ORDER RE: MOTIONS TO DISMISS
)
)
UTE INDIAN TRIBE OF THE UINTAH &
)
OURAY RESERVATION, UTAH,
)
FILED
)
Plaintiff,
CLERK, U.S. DISTRICT COURT
)
April 23, 2014 (4:48pm)
)
vs.
DISTRICT OF UTAH
)
)
STATE OF UTAH, et al.,
)
)
Defendants.
_____________________________________ )
)
)
UTE INDIAN TRIBE OF THE UINTAH &
)
OURAY RESERVATION, UTAH, a
)
Federally Recognized Indian Tribe,
)
)
Plaintiff,
)
vs.
)
)
THE STATE OF UTAH, WASATCH
)
COUNTY, a political subdivision of the
)
State of Utah, GARY HERBERT, in his
)
capacity as Governor of Utah, JOHN
)
SWALLOW, in his capacity as Attorney
)
General of Utah, SCOTT SWEAT, in his
)
capacity as County Attorney for Wasatch
)
County, Utah, and TYLER J. BERG, in
)
his capacity as Assistant County
)
Attorney for Wasatch County, Utah,
)
)
Defendants.
*********

On January 10, 2014, the above-captioned action came on for hearing on a series of
pending motions, including the plaintiff’s motions to dismiss various counterclaims and thirdparty claims pleaded by several defendants.1 At that time, the court heard arguments of counsel
and made several rulings and requested counsel to prepare and submit appropriate proposed
orders.2
Plaintiff’s counsel submitted three such orders, one of which was signed and entered by
the court.3 Upon closer examination, it appeared that these proposed orders did not accurately
reflect this court’s rulings,4 or the reasons therefor. It also appeared that specific rulings needed
to be clarified.

1

(See Plaintiff’s Motion to Dismiss Defendant Uintah County’s Counterclaim, filed May
29, 2013 (CM/ECF No. 222); Plaintiff’s Rule 12(b) Motion and Supporting Memorandum to
Dismiss the State of Utah’s Counterclaim, filed July 9, 2013 (CM/ECF 270); Plaintiff’s Rule
12(b) Motion and Supporting Memorandum to Dismiss Duchesne County’s Counterclaim, filed
July 12, 2013 (CM/ECF No. 271); Plaintiff's Motion to Dismiss Uintah County’s Amended
Counterclaim for Lack of Jurisdiction, filed July 26, 2013 (CM/ECF No. 278); Third-Party
Defendants’ Rule 12(b) Motion and Supporting Memorandum to Dismiss Uintah County’s
Third-Party Complaint, filed October 22, 2013 (CM/ECF No. 321).)
2

(See Minute Entry, dated January 10, 2014 (CM/ECF No. 451).)

3

(See Order on Plaintiff’s Rule 12(b) Motion and Supporting Memorandum to Dismiss
Duchesne County’s Counterclaims, filed February 24, 2014 (CM/ECF No. 481).)
4

For example, the order re: Duchesne County’s counterclaim recites that “the racketeering
claims under count 2 are dismissed,” but the racketeering allegations at issue are found in
Duchesne County’s Third Claim for Relief. (See Duchesne County’s Answer, Counter-Claim
and Third-Party Complaint, filed June 7, 2013 (CM/ECF Nos. 238/239), at ¶¶ 87-88, 90, 92.)
Racketeering allegations aside, this court had ruled “that the second and third and fourth claims
of Duchesne County should be decided at the plenary hearing” on the merits because they
addressed core jurisdictional questions inseparable from those raised by the plaintiff in its own
pleadings. (Transcript of Hearing, dated January 10, 2014 (“Tr. 1/10/14”), at 80:11-13 (the
Court).)
2

Plaintiff’s Rule 12(b) Motion and Supporting Memorandum to Dismiss Uintah
County’s Amended Counterclaim, filed July 26, 2013 (CM/ECF No. 278); and
Third-Party Defendants’ Rule 12(b) Motion and Supporting Memorandum to
Dismiss Uintah County’s Third-Party Complaint, filed October 22, 2013 (CM/ECF
No. 321).
The court granted the Ute tribal third-party defendants’ motion to dismiss Uintah
County’s Third-Party Complaint, with twenty days’ leave to file an amended pleading seeking
declaratory and injunctive relief against individual tribal officers under an Ex Parte Young
theory, if the same may be sufficiently pleaded. The court also dismissed Uintah County’s
allegations concerning tribal participation in the filing of purportedly frivolous tribal court
lawsuits against Uintah County officials for lack of sufficient facts to state a plausible claim for
relief, also with twenty days’ leave to amend.5 The court denied the plaintiff’s motion to dismiss
as to core jurisdictional issues raised by Uintah County’s Amended Counterclaim.6
Plaintiff’s Rule 12(b) Motion and Supporting Memorandum to Dismiss the State of
Utah’s Counterclaim, filed July 9, 2013 (CM/ECF No. 270)
The State of Utah’s Answer and Counterclaim (CM/ECF No. 219) alleges that “the Ute
Tribe attempts to assert civil, criminal and regulatory authority over lands owned by the State of
Utah and by other private parties, but located within the external boundary asserted by the Ute
Tribe over the Uncompahgre Reservation. Title to these lands was obtained from the United
States and the Ute Tribe has no jurisdiction over these state lands.”7 The State seeks “a
declaratory judgment that the Ute Tribe is asserting jurisdiction which not only exceeds the law
of the case, but also established case law on tribal jurisdiction,” in particular, that “the Ute Tribe
5

(See Tr. 1/10/14, at 48:15-50:25.)

6

Uintah County’s Amended Counterclaim and Third-Party Complaint appeared to plead a
single claim with remedial subparts distinguished by topic, e.g., interference with law
enforcement on State and county roads.
7

(Answer and Counterclaim, filed May 28, 2013 (CM/ECF No. 219), at ¶ 8.)
3

does not have exclusive criminal jurisdiction as asserted in the Ute Tribe’s Complaint and that
the Ute Tribe’s actions to impose access permits and UTERO on non-tribal businesses exceeds
the law of the case. The Ute Tribe should be ordered to honor the stipulated Cooperative
Agreements which are incorporated into the law of the case.”8 As such, the State’s counterclaim
appears to address core issues of the territorial and substantive extent of tribal jurisdiction, which
await determination in the context of the plenary hearing on the merits.
The plaintiff moved to dismiss the State of Utah’s counterclaim because of (1) the
absence of an Article III case or controversy; (2) lack of standing; (3) the Tribe’s sovereign
immunity from suit, (4) the failure to join the United States as an indispensable party, or
alternatively, (5) because the counterclaim fails to state a claim for relief. As to (1) and (2), the
Tribe argues that the State has not identified a single instance in which the Tribe has exercised
unlawful criminal or civil regulatory jurisdiction over a non-Indian individual or entity within the
Uncompahgre Reservation, including instances in which the Tribe in fact issued access permits
to persons leaving public highways and entering lands subject to tribal jurisdiction.
Sovereign immunity appears not to be an issue at this point because the Ute IndianTribe
and the State of Utah have been parties to this case as to the core jurisdictional issues since 1975,
when the Tribe commenced this action and the State intervened, filing a Complaint in
Intervention against the Tribe in November 1975 — as to which the Tribe raised no claim of
sovereign immunity. Moreover, the three agreements signed by the parties in 2000 include
express waivers of governmental immunity as to disputes arising under the agreements.
The plaintiff’s argument regarding the State’s failure to join the United States as an
indispensable party lacks persuasive force. The plaintiff points to Texas v. New Mexico, 352

8

(Id. at 7 (Prayer).)
4

U.S. 991 (1957), a suit involving the apportionment of water flowing in an interstate river in
which the Court adopted the finding of the Special Master that the United States was
indispensable in its role as trustee for various Indians. A judicial decree in that water rights case
would have "necessarily affect[ed] adversely and immediately the United States" in its fiduciary
capacity in relation to Indian land and natural resources. Not so here, where property rights in
Ute tribal land and natural resources are not at issue. This is a jurisdictional case. And we
cannot overlook the fact that the United States has already appeared in this case long since as an
amicus curiae.
What the State appears to seek is a specific declaration as to the scope of tribal regulatory
authority over non-Indians within the Uncompahgre Reservation, applying the curious legal
standard first articulated in Montana v. United States, 450 U.S. 544 (1981).
The legal question of the respective scope of State, local and tribal jurisdiction within the
existing Ute reservation boundaries rests at the core of this case, and will be fully addressed in
the context of the plenary hearing to be conducted later this year. That question demands full and
definitive resolution.
The State of Utah’s Counterclaim joins issue on the jurisdictional question, as do the
plaintiff’s own pleadings. Each is entitled to a thoughtful and reasoned determination on the
merits.
For these reasons,
IT IS ORDERED that Plaintiff’s Rule 12(b) Motion and Supporting Memorandum to
Dismiss Uintah County’s Amended Counterclaim, filed July 26, 2013 (CM/ECF No. 278), is
GRANTED IN PART as to alleged participation in frivolous lawsuits, and DENIED IN PART as
to core jurisdictional issues;

5

IT IS FURTHER ORDERED that Third-Party Defendants' Rule 12(b) Motion and

Supporting Memorandum to Dismiss Uintah County's Third-Party Complaint, filed October 22,
2013 (CMlECF No. 321) is GRANTED;

IT IS FURTHER ORDERED that Uintah County is granted leave to amend its

pleadings within twenty (20) days of the date of this Order, consistent with this court's rulings;
IT IS FURTHER ORDERED that Plaintiffs Rule 12(b) Motion and Supporting

Memorandum to Dismiss the State of Utah's Counterclaim, filed July 9,2013 (CM/ECF No.
270) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Dismiss Defendant Uintah

County's Counterclaim, filed May 29,2013 (CM/ECF No. 222), is DENIED AS MOOT, given
the filing ofUintah County's amended pleadings; and

IT IS FURTHER ORDERED that Uintah County's Rule 12(c) Motion to Dismiss

Plaintiff's Complaint for Lack of Subject Matter Jurisdiction, filed June 19, 2013 (CMIECF No.
250), IS DENIED.
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DATED this ~ day of April, 2014.

BY THE COURT:

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