BUGENIG v. HOOPA VALLEY TRIBE

7 NICS App. 72, BUGENIG v. HOOPA VALLEY TRIBE (September 2005)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

Roberta Bugenig, Appellant/Plaintiff,

Hoopa Valley Tribe, et al., Respondent/Defendant.

SYLLABUS^*

Trial court ruled statute of limitations barred Plaintiff’s administrative appeal and complaint for damages arising from denial of a timber harvest permit. Court of Appeals holds (1) any claim the Plaintiff may have had accrued some seven years earlier when the Tribe adopted the timber management plan upon which the permit denial was based, therefore the claims are barred by the applicable three year statute of limitations; and (2) Plaintiff’s claims are also barred by res judicata because the claims should have been presented in prior litigation concerning an enforcement action involving essentially the same timber harvest proposal. Trial court order affirmed.

Before: Fred Gabourie, Chief Justice; Robert Miller, Justice; and Lawrence Watters, Justice.

Appearances: James S. Burling, Pacific Legal Foundation, for Appellant Roberta Bugenig; Thomas Schlosser and Rob Roy Smith, Morisset, Schlosser, Jozwiak and McGaw, for Respondent Hoopa Valley Tribe.

OPINION

Per Curiam:

This matter came before the Hoopa Valley Tribal Court of Appeals pursuant to Appellant’s November 6, 2002 Notice of Appeal from a Decision and Order of the Hoopa Valley Tribal Court entered on October 22, 2002. Appellant challenges the Hoopa Valley Tribal Court’s dismissal of her claims based on the statute of limitations. Following a series of continuances

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requested by the parties to facilitate settlement negotiations, oral argument was heard on June 13, 2005. We affirm the judgment of the Hoopa Valley Tribal Court.

I. Scope of Review

We agree that de novo review of the conclusions of law and decision of the Hoopa Valley Tribal Court regarding the application of the statute of limitations is necessary. The factual findings of the Tribal Court, however, are not reversed unless found clearly erroneous.

II. Factual and Procedural Background

We review the record before us and in doing so, note the prior decision involving the same parties in Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001), (en banc), cert. denied, 535 U.S. 927 (2002). Appellant contests a decision of the Hoopa Valley Tribal Court that dismissed her claims related to the use of her property. The Tribal Court determined the claims were barred by the statute of limitations and held they arose many years earlier when she attempted to harvest timber on the property. She argues in this Court that the claims did not originate until 2002 when she again sought to harvest timber on the same property and thus, the Tribal Court erred in dismissing her administrative appeal and complaint as time barred.

The starting point in the analysis of the issues is the Tribe’s adoption of its timber harvesting plan on January 28, 1995 after providing for public notice and comment. The plan included measures to protect specific sites of cultural significance to the Tribe that were formulated in cooperation with the Bureau of Indian Affairs (BIA) and the State of California under Sec. 106 of the National Historic Preservation Act. The plan established a one-half mile buffer zone, where timber harvesting was not permitted, around the White Deerskin Dance Ground. The White Deerskin Dance Ground is part of a trail that winds through the Hoopa Valley Reservation and along a portion of it known as Bald Hill. The ban on harvesting timber applied to “tribal trust land, trust allotments, and fee land within the ½ mile buffer.” Decision of Hoopa Valley Tribal Council: Alternative for FY 1995 Timber Sale Program (Jan. 28, 1995).

The White Deerskin Dance is of significant cultural and historical importance to the Tribe. Byron Nelson, Jr, OUR HOME FOREVER: The Hupa Indians of Northern California (1978). The Tribe describes the dance as part of its traditional ceremonies for “world renewal.” The Tribe also considers the Bald Hill dance site the most important one it has: “the site is very ancient. There’s scientific evidence that indicates that it could be one of the oldest dance sites, oldest ceremonies in the country.”

Appellant acquired her property, located on Bald Hill inside the buffer zone within the exterior boundaries of the Hoopa Valley Reservation, with a deed recorded on June 1, 1995. She then applied to the California Department of Forestry and the County of Humboldt for a “timberland conversion” to alter some 2.5 acres of the land from timber to pasture. The State

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granted the permit and she applied to the Tribe for approval to haul the logs over Reservation land. The Tribe denied the request but she nevertheless sent it a check to cover the hauling fee on July 24, 1995. The Tribe returned the check to her along with a letter on July 28, 1995 explaining that within the designated area, “ONLY the Hoopa Valley Tribal Council has the authority to make land use changes.”

Appellant proceeded to cut timber anyway which she eventually hauled away. The Hoopa Valley Tribal Court then issued a temporary restraining order and a notice of hearing. After the hearing, which Appellant did not attend, the Tribal Court granted a preliminary injunction enjoining her “from carrying out any timber operations” within the buffer zone. The California Department of Forestry also revoked her logging permit and informed her that “no timber operations are allowed on significant historical or archaeological sites [defined as] sites that have significant or religious importance to California Indians.”

After another hearing, the Tribal Court held that the Tribe “has the power and authority to define areas of sacred significance and, through establishment of the buffer no-cut zone in the Bald Hill area, has exercised that power.” Hoopa Valley Tribal Court v. Bugenig, 25 Indian L. Rep. 6137, 6138, C-95-020 (July 11, 1996). The Tribal Court then entered a permanent injunction which prohibited Appellant’s logging activities in the buffer zone and ordered her to carry out restoration measures related to the trees she had already cut.

The injunction was affirmed by the Hoopa Valley Tribal Court of Appeals. However, Appellant did not comply with the injunction and on October 11, 1996 she was held in civil contempt and ordered to pay a sanction. She then challenged the authority of the Tribe by filing a complaint in the Northern District of California. The district court upheld the authority of the Tribe and the Ninth Circuit Court of Appeals affirmed. Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), cert. denied, 535 U.S. 927 (2002).

Appellant again sought approval to harvest timber on the property in another application in 2002. The Tribe’s Forestry Department denied it. She then filed an administrative appeal and complaint for damages in the Hoopa Valley Tribal Court on July 3, 2002. The Tribal Court determined the claims were barred by the statute of limitations that applies to civil actions. Decision and Order, at 6 (Oct. 22, 2002). The Court also stated that “the claim presented here was, or should have been, presented to the Tribal Court in the earlier action.” Id. at 5. Appellant thereafter filed the instant appeal.

III. Discussion

A. Statute of Limitations

The Hoopa Valley Tribal Code sec. 2.3.13 (Limitations) provides that “[N]o Complaint shall be filed in a civil action unless the events shall have occurred within a three year period

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prior to the date of the complaint.” Appellant contends that she meets this standard because the Tribe’s Forestry Department denied her application for timber harvest activities on June 4, 2002 and subsequently, her administrative appeal and complaint, alleging a taking, was filed on July 3, 2002. The Tribal Court, in rejecting this position, decided that “[t]he events giving rise to plaintiff’s claim of taking occurred on January 28, 1995, when the buffer zone was adopted.” Decision and Order, at 6 (Oct. 22, 2002).

In our review, we turn to the Tribe’s timber harvest plan which specified the buffer zone and included as one of its goals “to protect cultural and religious resources within the proposed sale area.” The 1995 plan also contained the following provision as pointed out in the earlier decision of the Hoopa Valley Tribal Court of Appeals in Bugenig v. Hoopa Valley Tribe, 5 NICS App. 37, 44 (Hoopa Valley Tribal Ct. App. 1998):

CULTURAL 1) A ONE-HALF MILE BUFFER AROUND THE WHITE DANCE GROUND ON BALD HILL AND THE TRAIL LEADING TO IT WILL BE MAPPED AND ADHERED TO…NO TIMBER HARVEST UNITS OR OTHER TIMBER SALE RELATED ACTIVITY (EXCEPT LOG TRUCKS AND OTHER VEHICLES PASSING THROUGH BUFFFER ZONE ON MAIN ROADS) WILL BE LOCATED WITHIN THE BUFFER ZONE. THIS PROHIBITION OF ACTIVITIES WILL APPLY TO TRIBAL TRUST LAND, TRUST ALLOTMENTS, AND FEE LAND WITHIN THE ½ MILE BUFFER.

Accordingly, the plan prohibited timber harvesting in the area of the White Deerskin Dance Trail and the buffer zone surrounding it. The Tribe decided to protect the site and provided the public with notice and the opportunity to comment. Copies of the text were sent to the property owners in the Bald Hill area and this included Appellant’s predecessors in interest.

In its order of dismissal, the Tribal Court also held that the “[p]laintiff knew that Tribal law prohibited cutting of trees on her property by July 11, 1996 [the date of the permanent injunction], if not earlier.” Decision and Order, at 6 (Oct. 22, 2002).

The record before us underscores this conclusion. The chronology indicates as follows:

The Tribe’s timber harvest plan was promulgated on January 28, 1995;

the Tribal Council denied Appellant’s application for a permit to haul cut logs from her property on June 19, 1995;

the Tribe reiterated its position in a “Cease and Desist Notice” issued on July 28, 1995 stating that timber harvesting was not permitted (“YOU ARE HEREBY NOTIFIED not to proceed with your project…”);

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the Tribe filed a complaint on August 3, 1995 for “a permanent injunction …barring timber operations” on the property;

the Tribe obtained a temporary restraining order on August 10, 1995 and a preliminary injunction on August 15, 1995 to halt Appellant’s activities;

the Tribe sent another letter to Appellant on August 21, 1995 stating that cutting timber was not allowed (“This prohibition of activity within the buffer zone remains in effect.”);

the California Department of Forestry revoked its earlier administrative approval of the conversion exemption in letters to Appellant dated October 10, 1995 and October 15, 1995 and informed Appellant in the second one that the “Conversion Exemption is not in compliance with the [state] forest practice rules specifically 1104.1a(2)1. Under this subsection, no timber operations are allowed on significant historical or archaeological sites.”;

Appellant visited the Tribe’s Forestry Office in 1995 and was specifically informed that no timber harvesting was permitted in the area;

the Tribal Court issued its permanent injunction on July 11, 1996 “barring logging activities in the buffer no-cut-zone”; and

the Tribe then initiated further proceedings in which Appellant was held in contempt for violating the protection measures on October 24, 1996.

Under these circumstances, it is clear that the gravamen of Appellant’s claims arose from her attempt to harvest trees in the buffer zone in 1995 and 1996. The Hoopa Valley Tribal Court’s application of the three year statute of limitations was therefore correct in holding “Plaintiff knew that tribal law prohibited cutting of trees on her property by July 11, 1996 [the date of the permanent injunction], if not earlier.” Decision and Order, at 6 (Oct. 22, 2002). See Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001); Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-97 (1985).

Appellant’s argument that she did not have a claim until filing another application for timber harvest activities in 2002 is without merit. The statute of limitations is not evaded by simply filing a new application for the same activities, on the same property with the same restrictions that were in place seven years earlier.

Appellant’s further suggestion that the Hoopa Valley Tribal Court’s injunction in 1996 allowed for timber harvesting on the property also does not square with the plain language in the notice of the buffer zone and the vigorous efforts of the Tribe to protect the area in question in

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litigation over the past decade and in cooperation with other agencies. In quoting portions of the order, Appellant has mistakenly interpreted the Tribal Court’s decision and erroneously emphasized both a section of the notice provided the property owners in the area at the time the timber harvest plan was formulated and the Court’s mandate to the appellant requiring clean-up at the site under the supervision of the Tribe’s Forestry Department.

B. Res Judicata

The Hoopa Valley Tribal Court also stated that “the claim presented here was, or should have been, presented to the Tribal Court in the earlier action.” Decision and Order, at 5 (Oct. 22, 2002).

The doctrine of res judicata bars litigation in a subsequent action of any claims that were raised or could have been raised in a prior action. Allen v. McCurry, 449 U.S. 90, 94 (1980); Bernhardt v. Bank of America Nat. Trust & Savings Ass’n, 122 P.2d 892, 894 (Cal. 1942). The focus is on whether the two claims or two suits arose out of the same transactional nucleus of facts. Manego v. Orleans Board of Trade, 773 F.2d 1, 5-6 (1st Cir. 1985), cert. den., 475 U.S. 1084 (1986).

In the instant case, Appellant’s claims center on her request to harvest timber on her property within the buffer zone in 1995 - 1996. She had ample opportunity to assert them in the proceedings related to her application and the Tribe’s enforcement action against her. Her failure to do so supports the decision of the Tribal Court. The Tribal Court’s dismissal ensures that finality is not defeated under the guise of serial litigation.

C. Supplemental Issues

During the pendency of this appeal, the parties informed this Court that Appellant sold the property in question. The Tribe thus asserts Appellant lacks standing to proceed and the case is moot. In light of our disposition here, we need not address these arguments further.

IV. Conclusion

We hold that the decision of the Hoopa Valley Tribal Court dismissing Appellant’s claims was correct based on the statute of limitations. In addition, we find that the doctrine of res judicata provides an additional basis for dismissal.

V. Order

The judgment of the Hoopa Valley Tribal Court is affirmed.

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.