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

Filing 897

ORDER denying 675 Motion for Preliminary Injunction.It is Further Ordered, Adjudged and Decreed that Mr. Hackford's Complaint for Declaratory and Injunctive relief is DISMISSED WITH PREJUDICE. It is Further Ordered, Adjudged a nd Decreed that by this Order the Court intends to dispose of and hereby does dispose of all of Mr. Hackford's claims on the merits, AND It is Finally Ordered, Adjudged and Decreed that a final judgment be entered in this matter pursuant to Fed.R. Civ. P. 54(b ).Signed by Judge Bruce S. Jenkins on 8/7/15. (ss)

FILED
2015 AUG 7 PM 1:33
CLERK
U.S. DISTRICT
COURT

Jesse C. Trentadue (#4961)
Britton R. Butterfield (#13158)
SUITTER AXLAND, PLLC
8 East Broadway, Suite 200
Salt Lake City, Utah 84111
Tel: [phone]
Fax: [phone]
j [e-mail]
chuefner@sautah. com
nhoagland@sautah. com
[e-mail]
Attorneysfor Wasatch County,
Scott Sweat, and Tyler J. Berg
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

RICHARD DOUGLAS HACKFORD,
Plaintiff,

ORDER RE: MOTION FOR
PRELIMINARY INJUNCTION

v.
CONSOLIDATED CASES
THE STATE OF UTAH, WASATCH
COUNTY, a Political subdivision of the State of
Utah, GARY HERBERT, in his capacity as
Governor of Utah, SEAN D. REYES, in his
capacity as Attorney General ofUtah, SCOTT
SWEAT, in his capacity as County Attorney for
Wasatch County, and TYLER J. BERG, in his
capacity as Assistant County Attorney Wasatch
County, Utah,
Defendants.

Civil No. 2:75-cv-00408
2:13-cv-00276
2: 13-cv- 1070
2: 14-cv-00644
Judge Bruce S. Jenkins
Magistrate Judge Dustin B. Pead

On May 28, 2015, the above captioned case came on for a regularly
scheduled Final Pre-Trial Conference, also scheduled to be heard was Plaintiff
Richard Douglas Hackford' s Motion for Preliminary Injunction by which he seeks
an Order from the Court enjoining the State of Utah and Wasatch County from
prosecuting him for violations of Utah State law. 1 Pursuant to that Motion, Mr.
Hackford is seeking an Order enjoining the State and County from prosecuting
him for a traffic offense that allegedly occurred during January of2014 on State
Road 40 in Wasatch County, Utah between mile posts 44 and 47 (hereafter referred
to as the "site of the offense").
Mr. Hackford was represented at the hearing by Elizabeth Shaffer. The
State of Utah appeared though Randy Hunter and Katharine Kinsmen. Wasatch
County, Wasatch County Attorney Scott Sweat and Deputy Wasatch County
Attorney Tyler J. Berg were represented by Jesse C. Trentadue. Uintah County was
represented by Blaine Rawson, with Uintah County Attorney G. Mark Thomas also
being in attendance as a representative ofUintah County. The Ute Indian Tribe of

1

Doc. 675.

the Uintah and Ouray Reservation was represented by J. Preston Stieff, and Jeffrey
S. Rasmussen.
The Court having considered the Joint Pre-Trial Order filed by the parties,
having reviewed the submissions by the parties and the arguments of counsel,
hereby enters the following Findings ofFact:
1.

Based upon his alleged Indian status and/or the site of the

offense allegedly being within "Indian Country," Mr. Hackford contends that the
State of Utah and/or Wasatch County, Utah lack the jurisdiction to prosecute him
for violations of State law. According to Mr. Hackford, he is only subject to the
criminal jurisdiction of the United States and not the State or Wasatch County.
2.

Mr. Hackford admits in the Joint Pre-Trial Order that under the Ute

Partition Act (25 U.S.C. § 677) he is identified on the Federal Register as a
"mixed-blood" Ute Indian with enrollment number 142. 3 In this case, Mr.
Hackford basis his alleged Indian status on the fact of his being a "mixed-blood
Ute."

2

Doc.863.

2

3.

Mr. Hackford likewise admits in the Joint Pre-Trial Order that by

a Presidential Proclamation dated August 3, 1905,4 land was withdrawn from the
Uintah Indian Reservation to be set apart for a reservoir site; 5 that by the Act of
April 4, 1910, 6 Congress specifically provided that with respect to this land
withdrawn from the Uintah Indian Reservation for use as a reservoir, "All right,
title and interest of the Indians in the same lands are hereby extinguished and the
title, management and control thereof shall pass to the owners of the lands irrigated
from said project. .. ;"7 and that the site of the offense was part of those lands that
had been withdrawn from t;he Uintah Indian Reservation and set aside for a
reservoir site. 8
4.

3

4
5
6
7

8

Mr. Hackford also admits in the Joint Pre-Trial Order that the

Id. at p. 4, ~ 6.
34 Stat. 3141.
Doc.863, p. 5, ~ 14.
36 Stat. 269, 285.
Doc.863, p. 5, ~ 15.
Id. atp. 5, ~ 16.

section of Highway 40 constituting the site of the offense is under the ownership of
the United States, and under the administration of the United States Forest Service,
which is part of the United States Department of Agriculture. 9
5.

In the Joint Pre-Trial Order, the parties agree that by the Act of

October 31, 1988, 10 the land that had been withdrawn for a reservoir site, including
the site of the offense, was included into and made a part of the Uinta National
Forest. 11 Mr. Hackford contends, therefore, that because it is part of the Uinta
National Forest, the site of the offense is now Indian County beyond the criminal
jurisdiction of the State and/or Wasatch County.
6.

The Ute Tribe contends that the site of the offense was not within

"Indian Country" as that term is defined by federal law. The Ute Tribe likewise
contends that Mr. Hackford is not an "Indian" as that term is defined by federal
law. It is the Ute Tribe's position, therefore, that Mr. Hackford is subject to the
jurisdiction of the State of Utah and Wasatch County.
7.

9

10
11

The Court finds that the site of the offense ceased to be part of Indian

Id. at p. 6, ~ 18.
102 Stat. 2826.
Doc.863, p. 5, ~ 17.

County when it was withdrawn from the Uintah Indian Reservation and set aside
for use as a reservoir, and that the status of this land did not change when it was
subsequently incorporated into the Uinta National Forest. The Court, however,
confines its findings of non-Indian Country status to the site ofthe offense and
does not make any findings as to whether all of the lands withdrawn from the
Uintah Indian Reservation and set a part for a reservoir site are also no longer
Indian Country.
8.

The Court further finds that even if the site of the offense was in fact

Indian Country according to federal law Mr. Hackford, despite his claim to be of
Indian heritage, is not an Indian so as to be beyond the criminal jurisdiction of the
State and/or Wasatch County.
Based upon the forgoing Findings ofFact, the Court hereby enters the
following Conclusions ofLaw:
1.

To escape the criminal jurisdiction of the State and/or Wasatch

County, Mr. Hackford must be both an Indian as that term is defined under federal
law, and the site of the offense must be within Indian Country; whereas Mr.

Hackford is not an Indian, and the site of the offense was not within Indian
Country.
2.

In order to obtain the relief that he seeks, which is an Order from this

Court enjoining his prosecution by the State and/or Wasatch County, Mr. Hackford
must show a substantial likelihood of prevailing on the merits and that he has not
done nor, given the current state of the law, can he do so.
3.

Insofar as Mr. Hackford's claims are essentially distinct from those of

the other parties to this consolidatfcase, the Court finds pursuant to Fed. R. Civ. P.
54(b) that there is no just reason for delay in the entry of a final judgment with
respect to Mr. Hackford's claims so as to make the Court's decision immediately
appealable upon entry of that judgment.
Based upon the Findings ofFact and Conclusions ofLaw set forth herein
above:
1.

IT IS HEREBY ORDERED ADJUDGED AND DECREED that Mr.

Hackford's Motion for A Preliminary Injunction is DENIED, 12
2.
12

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that

Doc. 675.

Mr. Hackford's Complaint for Declaratory and Injunctive relief is DISMISSED
WITH PREJUDICE, 13
3.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that by

this Order the Court intends to dispose of and hereby does dispose of all of Mr.
Hackford's claims on the merits, AND
4.

IT IS FINALLY ORDERED, ADJUDGED AND DECREED that a

final judgment be entered in this matter pursuant to Fed. R. Civ. P. 54(b) .

..-wv

DATED this7 day of August, 2015.

T:\4000\4530\128\0RDER ON PRELIMINARY INJUNCTION.wpd

13

Doc. 2.

CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of August, 2015, I served the foregoing document via
e-mail upon the following individuals:
Elizabeth A. Shaffer, Esq.
ELIZABETH A. SHAFFER, PLLC
2041 Sidewinder Drive, Suite 2
Park City, Utah 84060
Attorneys for Plaintiff
J. Preston Stieff, Esq.
J. PRESTON STIEFF LAW OFFICES
136 East South Temple, Suite 2400
Salt Lake City, Utah 84111
Attorneys for Ute Tribe
E. Blaine Rawson, Esq.
Gregory J. Savage, Esq.
Calvin R. Winder, Esq.
Matthew M. Cannon, Esq.
Ray Quinney & Nebeker
36 South State Street, Suite 1400
P.O. Box 45385
Salt Lake City, Utah 84145-0835
Attorneys for Uintah County

Randy S. Hunter, Esq.
Katharine H. Kinsman, Esq.
Bridget Romano, Esq.
Parker Douglas, Esq.
Assistant Utah Attorney General
Utah State Capital
350 North State St., Ste. 230
Salt Lake City, UT 84114-2320
Attorneys for the State of Utah, Gary
Herbert and Sean Reyes
JeffreyS. Rasmusssen
Jeremy J. Patterson
Frances C. Bassett
FREDERICKS PEEBLES & MORGAN, LLP
1900 Plaza Dr.
Louisville, CO 80027-2314
Attorneys for Ute Tribe

/s/ jesse c. trentadue