2 NICS App. 185, Rowland v. Hoopa Valley Tribe (September 1992)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Richard and Margaret Rowland, d/b/a Hoopa Valley Ready Mix v. Hoopa Valley Tribe et al.
No. A-92-016 (September 29, 1992)
SUMMARY
For several years, Hoopa Valley Ready Mix (Ready Mix) stockpiled gravel, weighing scales, and other materials at two sites on Hoopa Valley tribal land. However, beginning on June 5, 1992, the Tribe denied Ready Mix permission to remove materials from the sites for non-tribal use. This denial prevented Ready Mix from performing on contracts with private construction companies and the State of California. Ready Mix filed a motion for a temporary restraining order in the Tribal Court but the motion was denied.
The Hoopa Valley Court of Appeals reversed the trial court, finding that the requirements for issuing a temporary restraining order were satisfied in this case. Ready Mix had demonstrated, the appellate panel ruled, both that irreparable harm might occur and that the balance of hardships tipped in its favor. However, because the issue of tribal sovereign immunity had not been addressed in the written decision of the trial court, the panel remanded for a determination of this issue.
FULL TEXT
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Attorneys Richard Theirolf and Phillip W. Smith for plaintiff/appellant Hoopa Valley Ready Mix; attorney Stephen H. Suagee for the Hoopa Valley Tribe. |
OPINION AND ORDER ON TEMPORARY RESTRAINING ORDER AND
EMERGENCY RELIEF
PER CURIAM:
The subject of this appeal is the Hoopa Valley Tribal Court's denial of a motion for a temporary restraining order. Plaintiff/appellant Hoopa Valley
2 NICS App. 185, Rowland v. Hoopa Valley Tribe (September 1992) p. 186
Ready Mix (Ready Mix) sought an emergency order requiring that the Hoopa Valley Tribe provide access to gravel which Ready Mix was storing on tribal land. The order required the Tribe to deliver this gravel to Ready Mix, together with weighing scales which Ready Mix had installed. Ready Mix, in turn, was required by the order to pay the fair market costs of removal.
In its decision, the trial court held that Ready Mix had failed to demonstrate a likelihood that it would prevail on the merits. Ready Mix, the court found, could not establish a right of access to the tribal land where the gravel was stored.
FACTS
For several years, plaintiff Ready Mix stored gravel and other material at two sites on tribal land. The storage took place pursuant to oral permission from Hercules Vlahoylis of the Hoopa Valley Development Enterprise, and from Thelma Thom, a Hoopa tribal member and holder of a tribal land assignment to one of the sites. Since June 5, 1992, however, the Tribe has refused to grant Ready Mix access to the stockpiled materials. On July 15, 1992, Ready Mix filed a Notice of Motion and a Motion for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction. The Tribal Court heard arguments on Ready Mix's motion on July 21, 1992, and filed its order denying the motion on July 27, 1992. Appeal was heard before the Hoopa Valley Tribal Court of Appeals on August 1, 1992.
ISSUES
A. Does Sovereign Immunity Bar Jurisdiction?
Indian tribes are "domestic dependent nations," which exercise inherent sovereign authority over their members and territories. Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L. Ed. 25 (1831). The purpose of sovereign immunity is to preserve the autonomous political existence of the tribes and tribal assets. Colorado River Indian Tribes v. Town of Parker, 14 Indian L. Rep. 3009 (D. Ariz., 1986) (citing Chemehuevi Indian Tribe v. Cal. State Bd. of Equalization, 757 F.2d 1047, 1051, 12 Indian L. Rep. 2057 (9th Cir. 1985), rev'd on other grounds, 474 U.S. 9, 106 S. Ct. 289, 88 L. Ed.2d 9, 12 Indian L. Rep. 1077 (1985); reh'g denied, 474 U.S. 1077, 106 S. Ct. 839, 88 L. Ed.2d 810 (1986). Tribal sovereign immunity is a jurisdictional issue and, therefore, must be resolved before any substantive issues are resolved. Id. (citing Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 173, 97 S. Ct. 2616, 2621, 53 L. Ed.2d 667, 4 Indian L. Rep. 88 (1977)).
Indian tribes and their governing bodies possess common-law immunity from suit. They may not be sued absent an express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress. Burlington Northern v. Blackfeet Tribe, 924 F.2d 899, 901 (9th Cir. 1991), cert. denied, 60 U.S.L.W. 3859 {June 22, 1992) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S. Ct. 1670, 1676-77, 56 L. Ed.2d 106 (1978). Indian tribes can waive sovereign immunity; however, such
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waiver may not be implied, but must be expressed unequivocally. Martinez, 436 U.S. at 58, 98 S. Ct. at 1677. Tribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law. Burlington Northern, 924 F.2d at 901. However, when tribal officials act in their official capacity and within the scope of their authority, they are immune. Imperial Granite Co. v. Pala Band of Indians, 940 F.2d 1269, 1271 (9th Cir. 1991).
The issue of sovereign immunity was never adequately addressed in this case. Substantive arguments regarding jurisdiction were not presented at either the trial or appellate court level and there are no express provisions in the Hoopa Valley Law & Order Code for jurisdiction in this matter. At trial, the judge orally cited Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 111 S. Ct. 905 (1991), as support for the view that sovereign immunity does not prevent the issuance of a temporary restraining order seeking prospective injunctive relief. But there was no discussion of sovereign immunity in the court's written order.
Even when the issue of tribal sovereign immunity is not argued at the appellate level, such immunity cannot be waived because it determines whether the trial court had jurisdiction to hear the case. Big Spring v. United States, 12 Indian L. Rep. 2133, 2134 (9th Cir. 1985). Concluding it had jurisdiction under the General Allotment Act, the trial court in Big Spring did not address the tribe's sovereign immunity claim. However, even though the issue of sovereign immunity was not raised on appeal, the Ninth Circuit considered the issue because of its jurisdictional import. Id. (citing Puyallup Tribe, Inc., 433 U.S. at 173. And see United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513 (1940) (tribal sovereign immunity not waived by failure to raise it as an issue at trial or on appeal).
In Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, the Oklahoma Tax Commission sought monetary compensation for taxes on cigarette sales for the previous four years. The Potawatomis sought to enjoin the assessment. The Tax Commission counterclaimed. In addition to asking the trial court to enforce their monetary claim, the Commission also sought to enjoin the Potawatomis from selling cigarettes in the future without collecting and remitting state taxes on those sales. The Potawatomis moved to dismiss the counterclaim arguing there was no waiver of sovereign immunity. 111 S. Ct. at 908.
The Supreme Court held that the Potawatomi Tribe did not waive its sovereign immunity merely by filing an action for declaratory relief. Id. at 909. The Court did not, however, excuse the Tribe from all obligations to assist in the collection of validly imposed state sales taxes. Id. at 911 (citing Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 100 S. Ct. 2069, 65 L. Ed.2d 10 (1980)). The majority noted that sovereign immunity does not bar the state from other adequate alternatives. Id. at 912.
In his concurrence, Justice Stevens stated he was not sure whether the doctrine of sovereign immunity extends to cases where the tribe has engaged
2 NICS App. 185, Rowland v. Hoopa Valley Tribe (September 1992) p. 188
in commercial activity outside its own reservation, or that the doctrine applies to claims for prospective equitable relief against the tribe.1 Id. at 912 (citing Edelman v. Jordan, 415 U.S. 651, 664-665, 94 S. Ct. 1347, 1356-1357, 39 L. Ed.2d 662 (1974) (Eleventh Amendment bars suit against states for retroactive monetary relief, but not for prospective relief). The concurrence emphasized that:
[t]he Court's holding in effect rejects the argument that this governmental entity--the Tribe--is completely immune from legal process. By addressing the substance of the Tax Commission's claim for prospective injunctive relief against the Tribe, the Court today recognizes that a tribe's sovereign immunity from actions seeking money damages does not necessarily extend to actions seeking equitable relief. Id. at 913.
The Hoopa Valley Court of Appeals remands to the trial court for determination of jurisdiction and sovereign immunity pending further litigation.
B. Does the Plaintiff Qualify for a Preliminary Injunction?
To be entitled to a preliminary injunction the moving party must either demonstrate the probability of success on the merits and the possibility of irreparable injury or demonstrate that serious questions are raised and the balance of hardships tips sharply in its favor. Hoopa Valley Tribe v. Christiel, 14 Indian L. Rep. 2004, 2006 (9th Cir. 1986) (citing Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980); White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1304-305 (9th Cir. 1988).
The Hoopa Valley Law & Order Code, Section 1.7.11, provides for the discretionary authority of the appellate court as follows: "The appellate panel may either affirm the judgment as entered, modify it, or reverse the judgment by the majority vote, and its decision shall be final."
The Court of Appeals finds that Ready Mix showed both the possibility of irreparable harm and the balance of hardships tipping in its favor. The performance of a contract with Jennings Contracting, Inc., was in breach pending the removal of material necessary to perform under the conditions of the contract. The loss of the gravel stored on the Hoopa Valley Tribe's land would also cause Ready Mix to lose future business with the State of California.
Weighing the hardships between the two parties, the balance tips in favor of the plaintiff. Without access to the gravel, Ready Mix will suffer both
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the loss of its property and the loss of business. A bond in the amount of the value of the gravel removed would give adequate protection in minimizing the Tribe's risk of loss should future litigation arise concerning trespass or violations of federal and tribal ordinances.
Prior to the commencement of litigation, Ready Mix enjoyed free and unrestricted access to the Hoopa Valley Reservation in the vicinity of the Cal-Pac and Thelma Thom storage sites. For years prior to and after the commencement of this litigation, the Hoopa Valley Tribe has allowed Ready Mix access to these sites for the purpose of removing gravel for construction projects directly benefiting the Tribe. In the interest of fairness, the Tribe should not have denied access when Ready Mix attempted to remove its property for non-tribal use while allowing Ready Mix access when the material was for tribal use.
The Tribe argued that Ready Mix has trespassed upon tribal lands and should therefore be prohibited from obtaining a temporary restraining order allowing further trespass. As of the date of the hearing, however, the Tribe had not filed suit alleging trespass against Ready Mix; therefore, this issue will not be addressed.
The Hoopa Valley Court of Appeals reverses the order of the trial court denying plaintiffs motion for a temporary restraining order.
There were no arguments presented at the trial court hearing regarding the ownership of the scales, nor was it presented as an issue on appeal. The issue of whether the scales are fixtures is a question for the trier of fact. Therefore, this issue is remanded to the trial court.
Justice Stevens referred to 28 U.S.C. 1605(a): "A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case...(2) in which the action is based upon a commercial activity carried on in the United States by a foreign state..." ld. at 912.