Lucia Earl-Mitchell, Plaintiff and Appellant, v. Nancy Shippentower-Games, Defendant and Appellee.

11 NICS App. 19, EARL-MITCHELL v. SHIPPENTOWER-GAMES (April 2013)

PUYALLUP TRIBAL COURT OF APPEALS

Lucia Earl-Mitchell, Plaintiff and Appellant,

Nancy Shippentower-Games, Defendant and Appellee.

No. PUY-FH-08/12-067 (April 5, 2013)

Tribal member who was denied a shellfish harvest permit filed civil complaint claiming the shellfish director’s decision was arbitrary and capricious. Trial court dismissed complaint based on sovereign immunity. Court of Appeals holds tribal shellfish code contains an express waiver of sovereign immunity in regards to denial of permits. Trial court order reversed and case remanded for a determination of whether the petition for judicial review was timely filed.

Before:	Robert J. Miller, Chief Judge; Jerry R. Ford, Judge; Ron J. Whitener, Judge.
Appearances:	Michael Carroll, for Plaintiff/Appellant; Donald J. Smith, Jr., Office of the Prosecutor, for Defendant/Appellee.

OPINION

Miller, C.J.:

Lucia Earl-Mitchell (Earl-Mitchell) filed a lawsuit against Nancy Shippentower-Games (Shippentower-Games) for denying Earl-Mitchell a geoduck harvest permit. On October 5, 2012, the trial court dismissed the complaint because, as that court held, the suit was barred by sovereign immunity and thus the trial court lacked subject matter jurisdiction to hear the case. Earl-Mitchell appealed that decision.

For the reasons set forth below, this Court reverses the October 5, 2012 decision of the trial court and remands the case for further proceedings.

I. Factual and Procedural Background

On some unknown date, Shippentower-Games, the Puyallup Tribe Shellfish Director, denied Earl-Mitchell a geoduck harvest permit. Carroll Motion and Affidavit for Plaintiff, Trial Court Record, Tabs 12 & 13; Defendant’s Answer, Trial Court Record, Tab 8, at 2. Thereafter,

11 NICS App. 19, EARL-MITCHELL v. SHIPPENTOWER-GAMES (April 2013) p. 20

Earl-Mitchell filed a civil complaint on July 20, 2012 alleging that Shippentower-Games’ decision was arbitrary and capricious. The complaint requested an order granting Earl-Mitchell shell fishing rights, that Shippentower-Games issue all appropriate licenses and permits and be prohibited from requiring Earl-Mitchell to restart a training regime, and that Shippentower-Games pay any damages. Complaint, Trial Court Record, Tab 1.

On its own motion, on August 15, 2012, the trial court changed the case number from a civil matter, PUY-CV-07/12-060, to the current case number as a shellfish matter. Trial Court Record, Tab 7. The court held a hearing on September 25, 2012 and then dismissed the complaint on October 5, 2012 based on sovereign immunity. Trial Court Record, Tab 14.

II. Standard of Review

The Puyallup Tribal Judicial Code grants the Court of Appeals jurisdiction to “hear appeals filed from decisions of the trial court” and to “affirm, reverse, modify, or remand” those decisions. PTC 4.16.260. We will reverse, modify, and/or remand decisions: “Where there has been error as to interpretation and/or application of the law” or “Where the verdict or decision is contrary to the law . . . .” PTC 4.16.400(c) & (d).

III. Discussion

Construing the complaint liberally,¹ we agree with the trial court that this suit arose under Title 12, the Fish and Wildlife code, and even more specifically under the Shellfish code Title 12.12. But after making that decision, the trial court moved directly to general principles of sovereign immunity law, see, e.g., Matheson & Lanphere v. Wright, No. PUY-CV-06-974 (April 29, 2011), 10 NICS App. 20 (Puyallup Tribal Ct. App. 2011)²; Puyallup Tribe v. Dep’t of Game, 433 U.S. 165, 172 (1977), and held that it did not have subject matter jurisdiction to hear the case.

It appears, however, that the lower court overlooked the clear and express waiver of tribal sovereign immunity that the Puyallup Tribal Council created in the Shellfish code:

Nothing in this chapter shall be construed as a waiver of the sovereign immunity of the Puyallup Tribe or any of its subordinate boards, bodies, officers or employees; provided, however, that an individual aggrieved by a permit denial by the Director or the Director’s designee may seek review of such denial by filing a petition for review with the Tribal Court within 20 days of the denial. Upon the

11 NICS App. 19, EARL-MITCHELL v. SHIPPENTOWER-GAMES (April 2013) p. 21

filing of a timely petition, the Court shall conduct a hearing to review the denial, after reasonable notice to the Tribal Prosecutor, who shall represent the Tribe.

PTC 12.12.1330.³ Consequently, we hold that the trial court erred by not considering whether the limited waiver of tribal sovereign immunity contained in PTC 12.12.1330 applied in this case. This was an error in the application of the law and contrary to established law and is grounds for reversal. PTC 4.16.400(c) & (d).

But this conclusion does not complete the analysis necessary in this case. To determine whether the limited waiver of sovereign immunity in PTC 12.12.1330 might allow Earl-Mitchell’s suit to proceed, the trial court must make a factual determination whether she filed her complaint “within 20 days of the denial” of her shellfish permit. As stated above, and as clarified at oral argument, the lower court did not make a factual finding determining the date of Shippentower-Games’ denial of Earl-Mitchell’s permit. Thus, we must remand this matter to the trial court to make that determination before it can then proceed to apply that date to the twenty day time period of PTC 12.12.1330.

IV. Conclusion

Accordingly, we reverse the decision of the Puyallup Trial Court dismissing this case and remand the matter to that court to conduct an evidentiary hearing to determine the date when Shippentower-Games denied Earl-Mitchell’s shellfish permit and then to apply that fact to the limited waiver of sovereign immunity set out in PTC 12.12.1330.

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

“The complaint or petition shall be concise and direct and contain a statement of the events complained of or the right sought to be declared or enforced and a statement of what relief is sought. No technical wording is required.” PTC 4.16.260. “This code shall be liberally construed to provide a just and equitable result for the parties to civil actions and members of the Puyallup Reservation community generally, and to secure the just, speedy, and inexpensive determination of every civil action.” PTC 4.08.030.

Pending publication in the Northwest Intertribal Court System’s Tribal Court Appellate Opinions reporters, this opinion can be viewed at http://www.nics.ws/Puyallup/puyallup.htm.

We have stated that the Tribe “can waive immunity by tribal law or by contract as long as it is ‘clearly’ done.” Matheson & Lanphere v. Wright, supra, slip op. at 2 (quoting Cohen’s Handbook of Federal Indian Law § 7.05 (2009)).