*1
This opinion is subject to revision before final
publication in the Pacific Reporter
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
R YAN ARVEY , R OCKS O FF , I NC ., and W ILD AT R ENTALS , I NC ., Appellants,
v. T RIBE OF THE U INTAH AND O URAY R ESERVATION , ET AL ., Appellees. No. 20160362 Filed November 7, 2017 On Direct Appeal Eighth District, Roosevelt The Honorable Samuel P. Chiara No. 130000009 Attorneys:
Clark B. Allred, Bradley D. Brotherson, Vernal, UT, John D. Hancock, Roosevelt, UT, for appellants Christopher R. Hogle, Karina Sargsian, J. Preston Stieff, Patrick S. Boice, Craig H. Howe, Deborah Chandler, Salt Lake City,
Calvin M. Hatch, South Jordan, UT, Daniel S. Press, Washington, D.C., for appellees
J D URHAM authored the opinion of the Court in which J UDGE OOMEY joined.
Other appellees are Dino Cesspooch (in his individual and official capacities), Jackie LaRose (in his individual and official capacities), Sheila Wopsock (in her individual and official capacities), Newfield Production Company, Newfield Rocky Mountains, Inc., Newfield RMI, LLC, Newfield Drilling Services, Inc., L.C. Welding & Construction, Inc., Scamp Excavation, Inc., Huffman Enterprises, Inc., LaRose Construction Company, Inc., and D. Ray C. Enterprises, LLC.
H T
Opinion of the Court
J USTICE IMONAS authored a concurring opinion. A SSOCIATE C HIEF J USTICE L EE authored a dissenting opinion with respect to Part IV of the majority opinion, in which C HIEF J USTICE
D URRANT joined.
Having recused himself, J USTICE P EARCE does not participate herein; OURT OF A PPEALS J UDGE K ATE OOMEY sat.
J D URHAM , opinion of the Court:
INTRODUCTION The oil and gas industry is a major economic force in the
Uintah Basin. This industry relies, to some extent, on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. The plaintiffs allege that, through its ability to restrict the industry’s access to tribal lands, the tribe has held hostage the economy of the non- Indian population. Ryan Harvey, a plaintiff and part owner of the two
corporations that are the other plaintiffs in this case, alleges that tribal officials from the Ute Tribe attempted to extort him by threatening to shut down his businesses if he did not acquiesce to their demands, despite the fact that his businesses do not operate directly on tribal land. After his refusal to make certain payments, the tribal officials sent a letter to the oil and gas companies operating on tribal land informing them that they would be subject to sanctions if they used any of Harvey’s businesses. The tribal official’s letter dried up a large portion of Harvey’s business, and Harvey brought claims against the tribe, the tribal officials, various companies owned by the tribal officials, oil and gas companies, and other private companies he alleges are complicit in this extortionate behavior. Most of the defendants filed motions to dismiss on various grounds and the district court dismissed Harvey’s claims against all of the defendants. On direct appeal, Harvey seeks to set aside the dismissals. We affirm the dismissal of the Ute Tribe under sovereign immunity and the dismissal of Newfield, LaRose Construction, and D. Ray C. Enterprises for failure to state a claim upon which relief can be granted. But we vacate the dismissal of the remaining defendants and remand for further proceedings consistent with the tribal exhaustion doctrine. Given the somewhat unique character of this opinion, we
take this opportunity to explain the outcome. All sitting members concur in the entirety of the opinion, except for Part IV, in which Chief Justice Durrant and Associate Chief Justice Lee dissent. Justice Himonas concurs in all of the analysis in the majority opinion and *3 2017
Opinion of the Court
writes separately to further explain his reasons for joining. The majority opinion incorporates Justice Himonas’s concurring opinion.
BACKGROUND
¶4 The Ute Tribal Employment Rights Office (UTERO), a subdivision of the Ute Tribal government, manages the tribe’s business activities and internal affairs. There are three members of UTERO who are named parties in this action: Director Sheila Wopsock, Commissioner Dino Cesspooch, and Commissioner Jackie LaRose (collectively “tribal officials”). Ryan Harvey and his wife, as beneficiaries of their
respective trusts, own Rocks Off, Inc. and Wild Cat Rentals, Inc. Rocks Off derives most of its income from providing dirt, sand, and gravel to oil and gas companies including Newfield. [2] Wild Cat Rentals leases heavy equipment to other companies and individuals. Both are located on private fee land and do not directly access Ute Tribal land, but the items they sell and lease are often used on tribal land by the leasing or buying companies. Beginning in late 2012, Commissioner Cesspooch began
demanding that Harvey obtain permits for his businesses from the UTERO Commission or Commissioner Cesspooch would “shut [them] down.” [3] Harvey attempted to explain that his businesses did not operate directly on tribal land, so he should not need a permit; however, Commissioner Cesspooch continued to put pressure on Harvey by allegedly threatening to impound all of his heavy equipment. [4] Harvey eventually relented and obtained a Ute Business License and an Access Permit from UTERO for Rocks Off. Shortly after Harvey obtained the license and permit, Commissioner Cesspooch claimed that the license and permit were forged. Harvey met with Commissioner Cesspooch and discussed
[2] “Newfield,” as used in this opinion, refers to Newfield Production Co., Newfield Rocky Mountains, Inc., Newfield RMI, LLC, and Newfield Drilling Services, Inc. We recite the facts as pled in the complaint because, on a
motion to dismiss, “we accept the plaintiff’s description of facts
alleged in the complaint to be true . . . .”
Am. W. Bank Members, L.C.
v. State
,
off of reservation land.
Opinion of the Court
the issue. After the meeting, Harvey believed that the misunderstanding had been corrected and that Commissioner Cesspooch was no longer challenging the validity of the documents. Not long after the meeting, Harvey was driving down a road off of tribal land when Commissioner Cesspooch “pulled his vehicle next to [Harvey’s] and aggressively pointed for him to pull over.” After pulling into a parking lot, Commissioner Cesspooch and Harvey had a conversation, during which Commissioner Cesspooch told Harvey that he “sure needed a good riding horse.” Harvey understood this to be a demand for a bribe, but did not agree to pay or pay any money at that time. On March 15, 2013, soon after the incident with
Commissioner Cesspooch, Harvey received a letter that was sent by the UTERO Commission and signed by Director Wopsock. It stated,
[T]he Director of the [Energy and Mineral] Department has decided to revoke your access permit effective immediately. . . .
The UTERO Ordinance necessarily requires that all employers subject to its Ordinance be lawfully permitted on the Reservation to perform work. Without lawful entrance upon the Reservation, Rocks Off, Inc. fails to meet the minimum standard to perform work under the provisions of the UTERO Ordinance.
In addition to the above described actions, this letter also serves as a formal notice . . . that the UTERO Commission believes that you are not in compliance with the terms of the [UTERO] Ordinance. Specifically, the UTERO Commission has reason to believe that your company has been engaging in potentially fraudulent activities, including the submission of false and inaccurate official tribal, state, and federal documents. . . . Then, on March 20, 2013, the UTERO Commission sent a
letter to “all Oil & Gas Companies.” It stated that “Rocks Off, Inc. – Ryan Harvey,” along with another business that is not a party to this case, no longer had access permits “for failure to comply with the UTERO Ordinance . . . .” It went on,
As a result of such action, these businesses and individuals are no longer authorized to perform work on the Uintah and Ouray Reservation. Any use of these businesses and individuals by an employer doing work on the Reservation after receipt of this Notice may result *5 2017
Opinion of the Court
in the assessment of penalties and/or sanctions against such employer to the fullest extent of the law. After receiving this letter, Newfield and other oil and gas
companies ceased using Rocks Off, and ceased using other businesses that leased or bought items from Rocks Off. Harvey alleges that Commissioner LaRose, who owns an interest in LaRose Construction, received bribes and work from Harvey’s competitor, Huffman Enterprises, to induce Commissioner LaRose to abuse his position and divert business away from Rocks Off. Harvey brought this action seeking declaratory judgments
that the tribe and its officials exceeded their jurisdiction, injunctions against all of the defendants, and damages. He brought seven claims. Two are federal claims that the tribe and the tribal officials exceeded their jurisdiction. Five of his claims are state law claims: 1) Tortious Interference with Economic Relations; 2) Extortion against Cesspooch and Wopsock; 3) Utah Antitrust Act violations; 4) Blacklisting; and 5) Civil Conspiracy. Three motions to dismiss the amended complaint were filed by the different defendants. The Ute Tribe, Huffman Enterprises, and L.C. Welding & Construction moved to dismiss the tribe for lack of subject matter jurisdiction under the theory of tribal sovereign immunity and under the tribal exhaustion doctrine. See TAH R. IV . P. 12(b)(1). They also moved to dismiss the other defendants, arguing that the tribe is a necessary and indispensable party that cannot be joined to the action. See id . 12(b)(7); id . 19. All of the other defendants joined in this motion. Various other defendants moved to dismiss for failure to state a claim upon which relief can be granted. See id . 12(b)(6). After all of the motions to dismiss had been completely briefed, and after oral arguments were held, Harvey moved to supplement his amended complaint under Utah Rule of Civil Procedure 15(d). The district The district court’s judgment states that the tribe’s motion under rule 12(b)(7) was “joined by all of the defendants.” However, we note a procedural oddity. Scamp Excavation was served with the amended complaint on September 26, 2013. In our review of the record, Scamp did not file an answer or a motion under Utah Rule of Civil Procedure 12. Neither did Scamp join in any of the other parties’ motions to dismiss below nor file a brief on appeal. We raise this issue because we ultimately remand the case, but we do not address its effects on the court’s judgment because Harvey did not raise it in his brief.
Opinion of the Court
court held that the motion to supplement the amended complaint was untimely, refused to consider the additional facts in the supplement, and dismissed the amended complaint against all of the defendants with prejudice. The district court held that the tribe and the tribal officials,
in their official capacities, enjoyed sovereign immunity and dismissed them under Utah Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The remaining defendants, including the tribal officials in their individual capacities, were dismissed under rule 12(b)(7) for the inability to join the tribe, which the court held was an indispensable party. Finally, Newfield, LaRose Construction, and D. Ray C. Enterprises were dismissed on alternate grounds under rule 12(b)(6) for failure to state a claim upon which relief may be granted. Although the district court did not directly rule on the tribal exhaustion doctrine, stating that it “has already granted the Tribe’s Motion to Dismiss, making this issue moot,” it essentially did so in substance. It stated that Harvey’s claim that the tribal officials exceeded the jurisdiction of the tribe or acted outside the scope of their authority under tribal law must be addressed in the tribal court.
STANDARD OF REVIEW “[S]ubject matter jurisdiction is a question of law” that is
reviewed for correctness, “and we accordingly afford no discretion
to [the district court’s] decision.”
Johnson v. Johnson
,
Opinion of the Court
ANALYSIS We first discuss the Ute Tribe’s immunity from suit. Next, we address the immunity enjoyed by the tribal officials in their official and their individual capacities. We then determine that the tribe is not a necessary and indispensable party, but that the extent of the tribe’s jurisdiction should be determined by the tribal court in the first instance. We then address Harvey’s motion to supplement his amended complaint. Finally, we address the various motions to dismiss that were granted under Utah Rule of Civil Procedure 12(b)(6).
I. THE UTE TRIBE DID NOT WAIVE SOVEREIGN IMMUNITY
“As a matter of federal law, an Indian tribe is subject to
suit only where Congress has authorized the suit or the tribe has
waived its immunity.”
Kiowa Tribe of Okla. v. Mfg. Techs., Inc.
, 523
U.S. 751, 754 (1998). This immunity extends to on- or off-reservation
activities,
id
. at 760, and includes claims in “civil actions for
injunctive or declaratory relief.”
Santa Clara Pueblo v. Martinez
, 436
U.S. 49, 59 (1978). “The
issue of sovereign
immunity
is
jurisdictional,” depriving this court of jurisdiction if the tribe has not
waived its immunity or Congress has not authorized the suit.
Ramey
Constr. Co. v. Apache Tribe of Mescalero Reservation
,
sovereign immunity, but Harvey argues that the tribe has waived it
by making a general appearance in the case. Harvey claims that the
tribe made a general appearance when it sought “affirmative relief
from the trial court” by moving to dismiss itself under sovereign
immunity and moving to dismiss the remaining defendants because
the tribe is a necessary and indispensable party. The tribe counters
Harvey’s general appearance argument on two grounds. First, the
tribe argues that sovereign immunity is an issue of subject matter
jurisdiction, and that “[t]he doctrines of ‘general’ and ‘special’
appearance . . . are associated with personal jurisdiction only.”
Curtis
v. Curtis
, 789 P.2d 717, 725 n.17 (Utah Ct. App. 1990),
overruled on
other grounds by In re Adoption of Baby E.Z.
,
Opinion of the Court
Second, the tribe argues that filing a motion to dismiss does not constitute a clear and unequivocal waiver of sovereign immunity. Prior to the promulgation of Utah Rule of Civil Procedure 12, a party that made a general appearance in a case waived any claim that the court lacked personal jurisdiction. If the party made a special appearance with the sole purpose of challenging the court’s jurisdiction, the party’s jurisdictional argument was not waived. C HARLES A LAN W RIGHT ET AL ., 5C F ED . P RAC . & P ROC . C IV . § 1362 (3d ed. 2017 update) (“Formerly, a jurisdictional challenge was made by means of a . . . ‘special’ appearance. However, if a challenge of this type was joined with any nonjurisdictional defenses, the appearance became ‘general’ and the party’s right to object to the court’s jurisdiction over his or her person was deemed waived.” (citations omitted)); but see TAH R. IV . P. 12(b) (“No defense or objection is waived by being joined with one or more other defenses or objections in a . . . motion . . . .”). This only applied to personal jurisdiction, as subject matter jurisdiction can be raised at any time during the pendency of the case and typically cannot be waived. In re Adoption of Baby E.Z. , 2011 UT 38, ¶ 25 (“[S]ubject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time . . . .” (citation omitted)). Thus, the common law doctrine of general appearances does not apply to subject matter jurisdiction. However, while sovereign immunity has been classified as
an issue of subject matter jurisdiction, it is not the same as other
defects in subject matter jurisdiction.
Cash Advance & Preferred Cash
Loans v. State
,
Opinion of the Court Harvey cites three cases supporting the proposition that
the Ute Tribe can, and did, clearly and unequivocally waive its
sovereign immunity by its actions in the current lawsuit. In
Friends of
East Willits Valley v. County of Mendocino
, the court stated that a
“[t]ribe waived sovereign immunity previously when it made a
general appearance in this case.”
possibly waive its immunity when it proactively enters litigation. This case is clearly different. Here, the Ute Tribe was sued and then sought to dismiss the complaint against itself under sovereign immunity, and against its officers and the other defendants for failure to join an indispensable party—namely, the failure to keep the Ute Tribe as a defendant. Moving to dismiss itself on sovereign immunity grounds is the opposite of a clear and unequivocal waiver of immunity; in fact, it is an assertion of that immunity. Likewise, moving to dismiss its officers and the other
defendants from the case for the inability to add the tribe as a party does not constitute a clear and unequivocal waiver of immunity. Moving to dismiss the other defendants for failure to join an indispensable party is not the same as filing a complaint or moving to intervene in a case. By filing a complaint or intervening in a case, a party proactively enters litigation and “makes himself vulnerable to complete adjudication by the . . . court of the issues in litigation between the” parties. United States v. Oregon , 657 F.2d at 1014 (citation omitted). Conversely, under Utah Rule of Civil Procedure 19(a)(2), a non-party has the right to get the case dismissed if the person “claims an interest relating to the subject of the action and is
Opinion of the Court
so situated that the disposition of the action in [its] absence may . . . impair or impede [its] ability to protect that interest.” One of the central issues in this case is the ability of the tribe to require permits and regulate oil and gas companies that access tribal land. The tribe apparently did not want the case to proceed, and possibly affect its interests, if the tribe were to be dismissed. These motions to dismiss, alone, are not enough to
constitute a clear and unequivocal waiver of sovereign immunity. Indeed, as noted above, the tribe’s actions were just the opposite of waiving sovereign immunity: it asserted its sovereign immunity by seeking to dismiss itself, and then sought to have the remainder of the case dismissed so that its interests would not be affected by a judgment in a case where the tribe was not a party. While we do not definitively state how or if a tribe can waive its immunity by participating in a lawsuit, we hold that the Ute Tribe did not unequivocally waive its immunity in this case. We affirm the district court and hold that the Ute Tribe is immune from suit and is dismissed under Utah Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
II. CLAIMS AGAINST THE TRIBAL OFFICIALS IN THEIR OFFICIAL CAPACITIES AND IN THEIR INDIVIDUAL
CAPACITIES Harvey’s amended verified complaint names Director
Wopsock, Commissioner LaRose, and Commissioner Cesspooch as
defendants in their individual and in their official capacities.
However, there are different standards with different remedies
when a tribal official is sued in her official capacity versus her
individual capacity. Unfortunately, the complaint neither separated
the claims or the remedies sought between the tribal officials in their
official versus their individual capacities, nor did Harvey separate
his arguments on appeal. He merely argues that the tribal officials
acted
ultra vires
and, therefore, are not immune from suit. Harvey incorrectly asserts that this is a fact that we must
assume to be true on a motion to dismiss. This confuses the
standard. On a motion to dismiss, “we accept the factual allegations
in the complaint as true” and we make all reasonable inferences in
favor of the non-moving party,
Oakwood Vill. LLC v. Albertsons, Inc.
,
(continued . . .)
Opinion of the Court
Nevertheless, we construe complaints “to do substantial justice,”
TAH R. IV . P. 8(f), often “disregard[ing] technicalities” and looking
at the “substance,”
Lang v. Lang
, 403 P.2d 655, 657 (Utah 1965).
See
Fishbaugh v. Utah Power & Light, a Div. of Pacificorp
,
remedies sought with the claims brought. In general, a claim cannot
be brought against a tribal official when the tribe is the real party in
interest (also known as an official capacity suit), because the tribe’s
sovereign immunity extends to the tribal official.
See Lewis v. Clarke
,
137 S. Ct. 1285, 1290 (2017) (“[C]ourts should look to whether the
sovereign is the real party in interest to determine whether
sovereign immunity bars the suit.”);
Hardin v. White Mountain Apache
Tribe
,
. . . pleadings ‘must be determined by the facts pleaded rather than the conclusions stated.’” (citation omitted)); Am. W. Bank Members, L.C. v. State , 2014 UT 49, ¶ 7, 342 P.3d 224 (“When ‘reviewing a dismissal under Rule 12(b)(6) . . . we accept the plaintiff's description of facts alleged in the complaint to be true, but we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts.’” (citation omitted)). Thus, we must accept the allegations that the tribal officials took certain actions as true, but whether those actions exceeded the tribe’s jurisdiction is a legal determination that we do not accept as true.
Opinion of the Court
official-capacity claim,” rather than an individual capacity claim, “[if] the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.” Id . at 1291. “In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign.” Id . at 1290. If the remedy operates against the tribe or the “official’s office” rather than the individual, the claim is not truly against the individual and it is typically barred by the tribe’s sovereign immunity. Id . at 1291. If it operates solely against the individual, such as a claim for money damages that only the individual would be liable for, it is an individual capacity suit. Harvey seeks multiple declaratory judgments and injunctions, the majority of which are to operate against the “Ute Tribe and tribal officials.” He also seeks general, specific, treble, and punitive damages. We discuss Harvey’s claims and remedies against the tribal officials in their official capacities, then in their individual capacities.
A. Harvey’s Claims Against the Tribal officials in
Their Official Capacities Under Ex parte Young , state officials can be sued for
injunctive relief in their official capacities for violating federal law.
application of Ex parte Young . He argues that the tribal officials acted *13 2017
Opinion of the Court
ultra vires and are therefore not immune from suit. Many of the cases Harvey cites for this proposition, however, cite back to Ex parte Young . [7] See, e.g., Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla. , 498 U.S. 505, 514 (1991) (citing Ex parte Young for the proposition that “we have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State”); Blackfeet Tribe, 924 F.2d at 901 (citing Ex parte Young for the proposition that “sovereign immunity does not extend to officials acting pursuant to an allegedly unconstitutional statute”). The tribal officials, along with the Ute Tribe, argue that Ex
parte Young does not apply to a claim that the tribal officials exceeded their authority under tribal law. [8] This assertion is correct— Ex parte Young only applies when bringing a claim under federal law, it does not apply to bringing a claim against a tribal official for violating tribal law. See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 124–25 (1984) (holding that Ex parte Young does not apply to a claim that state officials violated state law); Salt River , 672 F.3d at 1181. But this misses the point on some of Harvey’s claims. Two
of his claims assert that the Ute Tribe and the UTERO exceeded their
jurisdiction. These claims “seek an injunction restraining the Ute
Tribe and Tribal officials from attempting to regulate Plaintiffs’
business activities in a manner that exceeds the jurisdiction of the
Tribe, [and] the authority of the Tribal officials.” Harvey’s claim that
the tribal officials exceeded the tribe’s jurisdiction is a question of
federal law.
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians
, 471
While Harvey only indirectly argues for
Ex parte Young
, the
tribe and the tribal officials directly argue against its application.
The district court dismissed the complaint under this line of
reasoning. It stated that, “[w]hether the Tribal officials exceeded the
scope of authority given to them by the UTERO Ordinance
necessarily requires examining and interpreting the UTERO
Ordinance,” which the district court stated should be done in the
tribal courts, citing
Iowa Mut. Ins. Co. v. LaPlante
,
Opinion of the Court
U.S. 845, 851 (1985) (“[F]ederal law defines the outer boundaries of an Indian tribe’s power over non-Indians.”). The remedies sought are clearly against the tribe as the real party in interest. For this reason, we treat Harvey’s claims for injunctions as against the tribal officials acting in their official capacities. The tribal officials, in their official capacities, do not enjoy sovereign immunity for these two claims and the injunctions sought under these two claims. But any claim that the tribal officials, in their official
capacities, exceeded the authority granted to them by the tribe is not
subject to
Ex parte Young
and is barred under sovereign immunity,
along with the rest of Harvey’s state law claims and requests for
monetary damages.
See Halderman
,
B. Harvey’s Claims Against the Tribal Officials in Their Individual
Capacities The U.S. Supreme Court recently clarified that a tribal
official is not protected by sovereign immunity when she is sued in her individual capacity. Lewis , 137 S. Ct. at 1291. The court stated that, in “[p]ersonal-capacity suits” the plaintiff “seek[s] to impose individual liability upon a government officer for actions taken under color of [tribal] law.” Id . Thus, because the individual—not the tribe—will “be legally bound by the court’s adverse judgment,” sovereign immunity is not applicable. Id . at 1292–93. While not entitled to sovereign immunity, “[a]n officer in an individual- capacity action . . . may be able to assert personal immunity defenses.” Id . at 1291. Harvey has asserted claims against the tribal officials in
their individual capacities for damages, making the individuals the real parties in interest. We do not hold that Harvey has valid claims against the tribal officials in their individual capacities, merely that they do not enjoy sovereign immunity at this stage of the litigation. If, at some point, it becomes clear that any remedy sought by Harvey would essentially operate against the tribe, those claims must be dismissed against the officials unless they comply with the requirements of Ex parte Young . The district court must tread carefully in this area to avoid meddling with the internal operations of the tribal government.
Opinion of the Court
III. THE DISTRICT COURT ERRED IN DISMISSING THE CASE
FOR FAILURE TO JOIN AN INDISPENSABLE PARTY
¶34 Having determined that the tribe is entitled to sovereign
immunity, but that the tribal officials are not, we are led to the
ultimate question. Did the district court err in dismissing the tribal
officials and the remaining defendants because the Ute Tribe is a
necessary and indispensable party but is immune from suit? Utah
Rule of Civil Procedure 12(b)(7) mandates the dismissal of an action
for “failure to join an indispensable party.” Dismissal under rule
12(b)(7) is only appropriate under the circumstances listed in Utah
Rule of Civil Procedure 19.
Ludlow v. Salt Lake Cty. Bd. of Adjustment
,
instances. First, a person is necessary if in the person’s “absence complete relief cannot be accorded among those already parties.” TAH R. IV . P. 19(a)(1). Second, the person is necessary if she claims an interest in the action and her absence would “impair or impede [that person’s] ability to protect that interest.” Id . 19(a)(2)(i). Finally, the person is necessary if she claims an interest in the action and her absence would “leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.” Id . 19(a)(2)(ii). Under these standards, the Ute Tribe is not a necessary party in this case. The Ute Tribe is immune from all of Harvey’s claims in
this case.
See supra
¶¶ 16–23. Also, the tribe claims an interest in the
outcome of this case because any court order must determine the
ability of the tribe, and its officials, to issue orders to oil and gas
businesses operating on tribal land. But the tribal officials are not
immune from suit under
Ex parte Young
, 209 U.S. 123 (1908).
Salt
River Project Agricultural Improvement and Power District v. Lee
is
instructive.
could obtain an injunction against the tribal officials from interfering with his businesses. This injunction would “remain[] in force against the officer’s successors.” Id . at 1180. While Harvey cannot get an
Opinion of the Court
injunction against the Ute Tribe, an injunction against the tribal officials would essentially operate against the tribe. Id . at 1181 (stating that tribe could not enforce its ordinance “without the aid of its officers . . . who would be bound by the . . . injunction”). Additionally, his claims for money damages may be entered against the tribal officials in their individual capacities and against the other defendants, assuming they are liable under some legal theory. Harvey could thus receive his requested relief even without adding the tribe as a party.
¶38 Second, the tribe will not be impaired or impeded from protecting its interests, because the tribal officials “can be expected to adequately represent the [Ute Tribe’s] interests.” Id . at 1180. There is no argument that the tribal officials will do anything antithetical to the interests of the tribe or that they will fail to make any “reasonable argument that the tribe would make if it were a party.” Id . Finally, there is no risk that the other parties may be
subjected to inconsistent obligations. Defendant Newfield argues that if the tribe is not a party, it could be subject to an order from a state court requiring it to pay damages to Harvey for not using Harvey’s services, yet be subject to the March 20th letter from the UTERO prohibiting Newfield from using Harvey’s services as long as Newfield desires to continue to operate on tribal land. No such threat exists if the tribal officials are enjoined from enforcing the March 20th letter. Additionally, if other tribal officials “attempted to enforce the [March 20th letter] against [Newfield], the plaintiffs would be free . . . to seek an injunction against those officials.” Id . at 1181. None of the defendants have argued any other possible conflicting obligations. The Ute Tribe does not meet any of rule 19’s requirements
to be a necessary party because the presence of the tribal officials, in their official capacities under Ex parte Young , addresses all of the concerns raised in rule 19. The district court erred in dismissing the tribal officials and the other defendants under rule 12(b)(7).
IV. THE TRIBAL EXHAUSTION DOCTRINE PREVENTS UTAH STATE COURTS FROM REVIEWING THIS CASE AT THIS TIME While we hold that the tribal officials may be sued for an injunction in their official capacities under Ex parte Young , 209 U.S. 123 (1908), and that the defendants other than the Ute Tribe should not have been dismissed under rule 12(b)(7), we hold that Harvey *17 2017
Opinion of the Court
failed to exhaust tribal remedies. The exhaustion of tribal remedies doctrine is founded on the premise that “[p]romotion of tribal self- government and self-determination require[] that the Tribal Court have ‘the first opportunity to evaluate the factual and legal bases for the challenge’ to its jurisdiction.” Iowa Mut. Ins. Co. v. LaPlante , 480 U.S. 9, 15–16 (1987) (citation omitted). The Ninth Circuit has held that exhaustion of tribal remedies, when a tribe’s jurisdiction is at issue, is mandatory before another court exercises jurisdiction.
The Supreme Court has mandated the exhaustion of tribal remedies as a prerequisite to a federal court's exercise of its jurisdiction: “[E]xhaustion is required before such a claim may be entertained by a federal court.” In Iowa Mutual Ins. v. LaPlante, the Supreme Court said that “federal policy . . . directs a federal court to stay its hand,” and “proper respect . . . requires ” tribal remedy exhaustion. Therefore, non-Indian petitioners “ must exhaust available tribal remedies.” The LaPlante Court emphasized that “ National Farmers Union requires that the issue of jurisdiction be resolved by the Tribal courts in the first instance.” The Supreme Court’s mandate of exhaustion of tribal court remedies as a prerequisite to a federal court’s exercise of its jurisdiction applies squarely to this case.
The district court did not rule directly on this issue because it had already dismissed the entire complaint under Utah Rules of Civil Procedure 12(b)(1) and (b)(7). Yet, the district court essentially did so implicitly by directing Harvey to the tribal court. It held that Harvey “could have raised [his] claims through tribal administrative proceedings and perhaps in the Tribal Court.” In the district court, Harvey argued “that the Tribal Court is not neutral or fair,” but the court saw “such an allegation, without any factual basis, no differently than if [Harvey] claimed the State’s district or justice courts were inherently biased against a particular class of parties.” Additionally, on appeal, Harvey argues against tribal exhaustion because “[i]n essence, the trial court determined that it was appropriate that Plaintiffs subject themselves to tribal regulatory control.” Thus, while the district court’s order says it does not rule on this issue, it did so implicitly, as acknowledged by Harvey on appeal. For this reason, we address this issue.
Opinion of the Court
Burlington N. R.R. Co. v. Crow Tribal Council
,
tribal court is a prudential matter, “based on principles of comity.”
Nevada v. Hicks
, 533 U.S. 353, 398 (2001);
see also Strate v. A-1
Contractors
,
of relate to the ability of the Ute Tribe to exclude non-Indians from their reservation. Harvey seeks injunctions to restrain the tribe and tribal officials from “interfering in Plaintiffs’ relationship with oil and gas companies,” and from “harassing, threatening, intimidating, extorting, and retaliating against Plaintiffs” and companies that do business with the plaintiffs. Harvey’s factual allegations in support of these requests for injunctive relief, and the claims that the tribe exceeded its jurisdiction, are centered on four different actions that allegedly harmed the plaintiffs. First, tribal officials threatened to “’shut down’ Plaintiffs’ businesses and confiscate Plaintiffs’ equipment” if Harvey did not obtain a UTERO license and permit, which Harvey eventually did, even though he argues he does not in fact access tribal land. Second, even after Harvey obtained a permit, Commissioner Cesspooch “attempted to extort money from Ryan [Harvey] in the IFA parking lot saying that he ‘sure needed a good riding horse.’” Third, Harvey alleges that “[a] couple of weeks after *19 2017
Opinion of the Court
refusing to pay Commissioner Cesspooch,” Harvey’s license and permit were revoked. Finally, Harvey alleges that on March 20, 2013, the UTERO sent a letter to all oil and gas companies threatening sanctions against any business utilizing Harvey’s services. We address each of these allegations in turn. Any harm actually suffered by Harvey is tied to whether
the tribal officials had the authority to require him to obtain a permit, revoke his permit, and issue a letter telling oil and gas companies that they would suffer sanctions if they continued to use Harvey and operate on tribal lands. The central question thus becomes whether the tribal officials were regulating who may come onto tribal land. Whether the tribe may demand that Harvey obtain a permit is a jurisdictional question that must be heard in the tribal courts in the first instance. Whether the tribal officials unlawfully revoked Harvey’s permit is a question of tribal law, as the regulation of who may enter tribal lands is a matter of self-governance. The tribal court must have the first opportunity to address these issues. Otherwise, we may be supplanting tribal law that manages tribal governmental operations with state tort law. The March 20th letter’s primary and direct effect also
governs who may enter tribal land. The tribe issued the letter to “all Oil & Gas Companies,” including defendant Newfield. The letter states:
[T]he UTERO Commission revoked the UTERO License for [Rocks Off and Harvey] for failure to comply with the UTERO Ordinance, Ord. No. 10-002 (July 27, 2010).
As a result of such action, these businesses and individuals are no longer authorized to perform work on the Uintah and Ouray Reservation. Any use of [Rocks Off or Ryan Harvey] by an employer doing work on the Reservation after receipt of this Notice may result in the assessment of penalties and/or sanctions against such employer to the fullest extent of the law.
Commissioner Cesspooch’s alleged attempt to extort Harvey did not actually harm him since he did not pay the demand. The harm that was actually caused to Harvey came when his permit was revoked.
Opinion of the Court
The letter only directly impacts oil and gas companies wishing to conduct business on Ute Tribal land. If an oil and gas company wishes to continue to operate on Ute Tribal land and avoid sanctions, they cannot use Rocks Off or Ryan Harvey. While the letter also affects Rocks Off and Harvey, the oil and gas companies may very well decide not to operate on Ute Tribal land and continue to use Harvey in any way they see fit. Either way, the tribe’s ability to regulate business operations on their land, even if it may have an indirect effect on business off of their land, is a core question of tribal self-government. Additionally, the actual effect of the letter on Harvey is a
matter of interpretation. The letter clearly, if only indirectly, affects Harvey’s businesses. However, it is susceptible to two different readings. First, the letter could be read to prohibit all oil and gas companies from using Harvey anywhere, even off of the reservation. This interpretation is supported by the letter’s language that “[a]ny use of” Harvey will result in penalties. The second interpretation is that oil and gas companies may not use Harvey’s equipment or products on tribal land . “Any use” may be qualified by the preceding sentences saying that Rocks Off and Harvey “are no longer authorized to perform work on the Uintah and Ouray Reservation .” (Emphasis added). Thus, the letter could be interpreted to only restrict the use
of Harvey’s equipment and material on tribal land or to affect use off tribal land. Either of these interpretations are reasonable, and under the doctrine of tribal exhaustion, this question of interpretation should be resolved in the first instance by a tribal court. LaPlante , 480 U.S. at 16 (stating that the tribal court should have “‘the first opportunity to evaluate the factual and legal bases for the challenge’ to its jurisdiction” (emphasis added) (citation omitted)). If the letter restricts use of Harvey off of the reservation, it might exceed the jurisdiction of the tribe. If it only restricts use of Harvey on the reservation, it may be within the authority of the tribe. In a similar case decided by the Ninth Circuit, the Crow
Tribe enacted an ordinance that governed private railroad
operations across tribal lands.
Crow Tribal Council
,
Opinion of the Court
¶49 First, the court analyzed the policy “supporting tribal self- government,” and the subordinate policy of “provid[ing] the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.” Id . (citations omitted). The court held that “the Crow Tribe must itself first interpret its own ordinance and define its own jurisdiction,” as part of its sovereign power, even if no action had been filed in tribal court at that time. Id . at 1246. It went on to state that it was improper to retain federal jurisdiction over a case involving an “uninterpreted tribal ordinance” when there was “an obscure factual background.” Id . This is directly on point in this case. We agree that, as a matter of comity, the tribe should be given the first right to interpret the March 20th letter and determine the tribe’s jurisdiction. The demand that Harvey obtain a permit, the revocation of the permit, and the subsequent March 20th letter could very well be within the authority of the tribe. See Mescalero Apache Tribe , 462 U.S. at 333 (“A tribe’s power to exclude nonmembers entirely or to condition their presence on the reservation is . . . well established.”). The second policy at play is judicial economy, to
“encourage[] more efficient procedures.” Crow Tribal Council , 940 F.2d at 1246. While the letter might be interpreted to prohibit the use of Harvey by an oil and gas company off of tribal land , the Ute Tribe could interpret this order to restrict the use of Harvey only on tribal land . If the tribe were to interpret the order in this manner, Newfield could still use Harvey’s businesses off of the reservation. This argues in favor of requiring Harvey to exhaust his remedies in tribal court, allowing that court to interpret the tribe’s order and vet the factual challenge to the tribe’s jurisdiction as a matter of judicial economy. The third policy in favor of exhaustion allows tribal courts to “explain to the parties the precise basis for accepting jurisdiction, and . . . also provide[s] other courts with the benefit of their expertise in such matters in the event of further judicial review.” Id . (citation omitted). Thus, forcing Harvey to litigate in tribal court provides clarity to the parties and any reviewing court on how the tribe views its own jurisdiction. Harvey must exhaust his remedies in tribal court, even if
the tribal court must end up applying some state law. See LaPlante , 480 U.S. at 19 (“The alleged incompetence of tribal courts is not among the exceptions to the exhaustion requirement . . . and would be contrary to the congressional policy promoting the development of tribal courts.”); Altheimer & Gray , 983 F.2d at 814 (“The interpretation of another jurisdiction’s laws . . . does not alone foreclose application of the tribal exhaustion rule. A tribal court,
Opinion of the Court
presumably, is as competent to interpret federal law as it is state
law.”);
Brown v. Washoe Hous. Auth.
, 835 F.2d 1327, 1328 (10th Cir.
1988) (“[F]ederal court[s] must defer to tribal court remedies as a
matter of comity.”). Then, if Harvey does not agree with the tribe’s
determination of its jurisdiction, he will be able to seek review of the
tribal court’s order in federal court.
Brown
,
the district court may choose to stay the state court proceedings to
await the outcome in the tribal court. If the tribal court, or a
reviewing federal court, determines that the tribal officials exceeded
their authority or the authority of the tribe, the remaining state law
causes of action may proceed. But the determination to stay rather
than dismiss is best made in the district court.
Nat’l Farmers Union
Ins. Cos. v. Crow Tribe of Indians
,
Opinion of the Court
whether to stay or dismiss the case under the tribal exhaustion doctrine. [12] However, in the event the district court determines to stay proceedings, we address the remaining issues on appeal and hold that Newfield, D. Ray C. Enterprises, and LaRose Construction are dismissed under Utah Rule of Civil Procedure 12(b)(6). [13]
V. THE PLAINTIFFS’ MOTION FOR LEAVE TO AMEND
SHOULD BE GRANTED IN PART After Harvey filed his amended complaint, the defendants
filed various motions to dismiss for failure to state a claim upon which relief can be granted. After all of the briefing and oral arguments on the motions to dismiss, Harvey moved to supplement his amended complaint. Utah Rule of Civil Procedure 15 provides that,
[o]n motion and reasonable notice, the court may, on just terms, permit a party to file a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. TAH R. IV . P. 15(d). We have rarely had the opportunity to address this rule.
Despite the dearth of precedent, the plain language of the rule gives the district court discretion to grant or deny such a motion by stating that the court “may” allow a supplemental pleading. Arbogast Family Tr. v. River Crossings, LLC , 2010 UT 40, ¶ 16, 238 P.3d 1035 (“[W]e look to the express language of that procedural rule and to the cases interpreting it.” (citation omitted)); Rowley v. Milford City , 352 P.2d 225, 226 (Utah 1960) (“[P]ermitting supplementary pleadings is largely discretionary with the trial court.”). We therefore review the We acknowledge and agree with the excellent research and analysis in Justice Himonas’s concurring opinion and charge the district court to carefully follow his additional directions on remand. While we dismiss this case against these three defendants, there are still numerous other defendants that would remain in the case assuming the district court stays rather than dismisses the entire case. For instance, Harvey’s claims for injunctions against the tribal officials in their official capacities and his claims against the tribal officials in their individual capacities would survive. *24 U
Opinion of the Court
district court’s denial of Harvey’s motion to supplement for abuse of discretion.
¶56 As the standard for granting a motion under rule 15(d) is
very similar to that under 15(a), we look to our precedent under rule
15(a) for guidance.
Compare
TAH R. IV . P. 15(a)(2) (“The court
should freely give permission [to amend a pleading] when justice
requires.”),
with id
. 15(d) (court may allow supplemental pleading
“on just terms”). We hold that a motion to file a supplementary
pleading should be freely granted unless the court finds that factors
such as untimeliness, prejudice, bad faith, or futility of the
amendment would make such a grant unjust.
Daniels v. Gamma W.
Brachytherapy, LLC
,
court found that it would be unjust to allow him to supplement his complaint to overcome pleading deficiencies three years after the first motion to dismiss was filed, and after briefing and oral arguments had already been completed on the various motions to dismiss. It alternatively held that any supplement was moot because his complaint was dismissed in its entirety. The district court did not abuse its discretion in refusing to allow the supplementary complaint when conducting its analysis of the various motions to dismiss. The motion to supplement was untimely because it was brought after completion of the briefing and oral arguments on the motions to dismiss. This delayed motion to supplement would have prejudiced the defendants because, after fully briefing and arguing their motions to dismiss, they would have had to go back and re- brief and argue their motions. While we hold that the district court did not abuse its
discretion in finding that it was untimely and prejudicial for purposes of determining the motions to dismiss, we hold that the court erred in dismissing the amended complaint in its entirety. The district court, therefore, erred in holding that the supplementary pleading was moot. While we decline to consider the supplemental pleading for our analysis of the motions to dismiss, we hold that it should be allowed as the case progresses, assuming no other problems arise.
VI. NEWFIELD, LAROSE CONSTRUCTION, AND D. RAY C. ENTERPRISES ARE DISMISSED UNDER UTAH RULE OF CIVIL
PROCEDURE 12(b)(6) In addition to moving for dismissal under Utah Rule of
Civil Procedure 12(b)(7), Newfield, LaRose Construction, and D. Ray C. Enterprises moved for dismissal under Utah Rule of Civil *25 2017
Opinion of the Court
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The district court ultimately dismissed these parties under rule 12(b)(7), and also dismissed them on alternative grounds under rule 12(b)(6). On appeal, Harvey challenges the dismissal of these defendants under rule 12(b)(6). Utah Rule of Civil Procedure 8(a) requires plaintiffs to
plead facts sufficient to show “that the party is entitled to relief.” To
survive a motion to dismiss, the complaint must allege facts
sufficient to satisfy each element of a claim, otherwise the plaintiff
has failed to show that she is entitled to relief.
Williams v. State Farm
Ins. Co.
, 656 P.2d 966, 971 (Utah 1982) (“[W]hen the pleader
complains of conduct
. . . by such general terms as libel,
intimidation, or false statements, the allegation of the conclusion is
not sufficient; the pleading must describe the nature or substance of
the acts or words complained of.”);
MBNA Am. Bank, N.A. v.
Goodman
,
A. Claims against D. Ray C. Enterprises and LaRose Construction D. Ray C. Enterprises is mentioned in only three allegations. The first is the jurisdictional statement, the other two say essentially the same thing: D. Ray C. Enterprises is owned by Cesspooch and it “participated in the conspiracy and derived As noted above, we treat Harvey’s first two claims as solely against the tribe, as Harvey only alleges that the tribe and the tribal officials acted utra vires . The complaint titles this claim “Extortion Against Cesspooch
and Wopsock.” However, the substantive allegations of this claim discuss the “[c]o-conspirator, Newfield,” and speak in broad terms with allegations against the “Defendants.” Because it is not entirely clear against whom this claim is asserted, we treat it as against all defendants.
Opinion of the Court
substantial economic benefit from the . . . unlawful restraint of
trade.” Harvey failed to plead any facts explaining what D. Ray C.
Enterprises actually did to engage in wrongdoing. “[T]he allegation
of the conclusion is not sufficient; the pleading must describe the
nature or substance of the acts or words complained of.”
Williams
,
partially, by LaRose and that “Commissioner LaRose received bribes and work from defendant Huffman Enterprises, Inc. . . . in exchange for Commissioner LaRose abusing his position as UTERO Commissioner [by] wrongfully diverting business from [Harvey] to Huffman.” The reasonable inference from this allegation is that Commissioner LaRose used his position as a UTERO official to benefit his company and himself. Thus, Harvey is attempting to hold LaRose Construction liable for the gains it realized due to the wrongful conduct of an owner. Harvey does not allege any wrongful act committed by
LaRose Construction itself, just the alleged wrongful acts of Commissioner LaRose that were taken in his capacity as a UTERO official. Harvey had the burden to show why the company should be liable for the acts of its owner. The owner and the company are two separate and distinct legal entities. See Jones & Trevor Mktg., Inc. v. Lowry , 2012 UT 39, ¶ 13, 284 P.3d 630 (“Ordinarily a corporation is regarded as a legal entity, separate and apart from its stockholders.” (citation omitted)). One cannot be held liable for the other’s actions absent some legal theory, such as respondeat superior . Birkner v. Salt Lake Cty. , 771 P.2d 1053, 1056–57 (Utah 1989) (discussing requirements to hold company liable for conduct of employee). On a motion to dismiss, we make all reasonable inferences in favor of the non-moving party. If Harvey had alleged that LaRose was the sole owner of LaRose Construction, or that he acted according to a directive from LaRose Construction, our analysis might be different. Because he alleges only that Commissioner LaRose owns “an interest” in the company, and that he committed a wrongful act in his individual capacity from which the company benefited, we will not treat the two legal persons as one, nor will we hold the company liable for the actions of someone who owns an interest in it. *27 2017
Opinion of the Court Harvey failed to plead any facts or make any legal
arguments why we should ignore the barrier between LaRose as an individual and LaRose Construction, Inc. For this reason, he has failed to meet his burden of persuasion on appeal and we affirm the district court’s dismissal of LaRose Construction under rule 12(b)(6). Bank of Am. v. Adamson , 2017 UT 2, ¶ 12, 391 P.3d 196 (“[A]n appellant who fails to adequately brief an issue ‘will almost certainly fail to carry its burden of persuasion on appeal.’” (citation omitted)).
B. Claims Against Newfield
1. Utah Antitrust Act Harvey brings an antitrust claim under the Utah Antitrust
Act, U TAH ODE §§ 76-10-3101 to -3118. Utah Code section 76-10-
3104(1) provides that “[e]very contract, combination in the form of
trust or otherwise, or conspiracy in restraint of trade or commerce is
declared to be illegal.” A contract, combination, or conspiracy
requires two or more people; it cannot consist of unilateral or
independent action.
Monsanto Co. v. Spray-Rite Serv. Corp.
, 465 U.S.
752, 761 (1984) (In a Sherman Act claim, there must “be a ‘contract,
combination . . . or conspiracy’ between the manufacturer and other
distributors in order to establish a violation. Independent action is
not proscribed.” (alteration in original) (citation omitted));
Contract
,
B LACK ’ S L AW D ICTIONARY (10th ed. 2014) (“An agreement between
two or more parties . . . .”);
Combination
, B LACK ’ S L AW D ICTIONARY (8th ed. 2004) (“An alliance of individuals or corporations . . . .”);
Pohl, Inc. of Am. v. Webelhuth
,
The district court also addressed Utah Constitution article XII, section 20. That article includes almost identical language, stating that “[e]ach contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is prohibited.” While the district court addressed the constitutional provision, Harvey has not argued it on appeal. For this reason, we look solely at the Utah Antitrust Act.
Opinion of the Court Harvey has failed to allege facts establishing any
agreement in the form of a contract, combination, or conspiracy between the tribal officials and Newfield. The complaint alleges that Newfield received the March 20th letter from the tribal officials, and then refused to use Harvey’s businesses or any other “business who leases [Harvey’s] equipment or utilizes [Harvey’s] Products.” Harvey further alleges that “Newfield’s . . . cooperation with the unlawful and ultra vires actions of tribal officials empowers said officials.” The crux of these allegations is that Newfield received a letter from the Ute Tribe threatening to sanction it if it used Harvey, or if it used any other business that used Harvey, and that Newfield then complied with the directive. None of these allegations establish any kind of contract,
combination, or conspiracy to restrain trade. In his briefing, Harvey attempts to remedy this defect in pleading by arguing that the March 20th letter was simply “asking [Newfield] to boycott” Harvey’s businesses and that Newfield “expressly agreed to that request” by informing Harvey that they would no longer be using his businesses. But argument in briefing does not resolve a deficiency in pleading. Also,
[a] restraint imposed unilaterally by government does not become concerted-action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. Similarly, the mere fact that [private companies] must comply with the same provisions of the [government directive] is not enough to establish a conspiracy among [the private companies].
Fisher v. City of Berkeley
,
the region complied with the March 20th letter, it does not establish an antitrust claim. This is not to say that an antitrust or a conspiracy claim could never be established between a government entity and a private corporation. If, perhaps, Harvey had pled in his complaint that the March 20th letter was sent out at the behest of Newfield, or that Newfield had bribed the tribal officials to send out the letter, a claim for antitrust might have been adequately pled. But, as it stands, a group of private companies complying with a government directive does not create a contract, combination, or conspiracy in restraint of trade. *29 2017
Opinion of the Court Harvey attempts to distinguish Fisher by arguing that it
should not apply when one jurisdiction attempts to regulate business activities in another jurisdiction. While that may be an unauthorized exercise of power, this muddies the analysis of why compliance with a governmental directive does not violate the Utah Antitrust Act. The correct question is not whether the government directive was legally authorized, but whether the government and a private company colluded to restrain trade. When the government issues a directive and a private company complies with it, regardless of whether the directive is legally authorized, the logical presumption is that there was no agreement between the government and the private company in restraint of trade. Something more must be pled to rebut this presumption. We therefore affirm the district court’s dismissal of this cause of action against Newfield for failure to state a claim.
2. Civil Conspiracy
In order to plead a claim for civil conspiracy, a complaint
must allege sufficient facts to establish “(1) a combination of two or
more persons, (2) an object to be accomplished, (3) a meeting of the
minds on the object or course of action, (4) one or more unlawful,
overt acts, and (5) damages as a proximate result thereof.”
Pohl, Inc.
of America
, 2008 UT 89, ¶ 29 (citation omitted). Once again, Harvey
has failed to plead sufficient facts to establish a meeting of the
minds. At most, he has pled that a unilateral directive was issued by
the Ute Tribe and that Newfield complied with it. To survive a
motion to dismiss, Harvey must plead some kind of meeting of the
minds between Newfield and the tribal officials to harm Harvey in
an unlawful manner. Also, for the same reasons as noted above, we
do not see how, absent something more, a conspiracy can be
established between multiple private companies that are merely
complying with a government order. We affirm the district court’s
dismissal of Harvey’s claim for civil conspiracy against Newfield.
3. Tortious Interference with Economic Relations
Tortious
interference with economic
relations
is
established when the plaintiff proves: “(1) that the defendant
intentionally interfered with the plaintiff’s existing or potential
economic relations, (2) . . . by improper means, (3) causing injury to
the plaintiff.”
Eldridge v. Johndrow
, 2015 UT 21, ¶ 70, 345 P.3d 553
In
Eldridge
we abandoned the “for an improper purpose”
prong of this second element.
Opinion of the Court
(alteration in original) (citation omitted). This claim is an intentional
tort, requiring Harvey to prove that Newfield had “a desire to bring
about” the interference with Harvey’s economic relationships.
Id
.
¶ 66. “To establish . . . improper means, a plaintiff must show ‘that
the defendant’s means of interference were contrary to statutory,
regulatory, or common law or violated an established standard of a
trade or profession.’”
Anderson Dev. Co. v. Tobias
, 2005 UT 36, ¶ 20,
government directive. Indeed, just the opposite is true. Again, this does not foreclose the possibility that an adequate claim could be pled. If Newfield had bribed the tribal officials to send out the letter with the intent to shut down Harvey’s businesses, this would perhaps be enough. But, as it stands, the complaint simply alleges that Newfield complied with the March 20th letter. This is not improper and we affirm the district court’s dismissal of Newfield from this cause of action.
4. Extortion Harvey brings a claim for extortion. Extortion is a crime in
Utah, but we have never recognized a corresponding civil claim.
See
TAH ODE § 76-6-406. “When a statute makes certain acts unlawful
and provides criminal penalties for such acts, but does not
specifically provide for a private right of action, we generally will
not create such a private right of action.”
Youren v. Tintic Sch. Dist.
,
Opinion of the Court
5. Blacklisting
Finally, we address Harvey’s claim for blacklisting under
Utah Constitution article XII, section 19 and article XVI, section 4.
Article XII, section 19 states that “[e]ach person in Utah is free to
obtain and enjoy employment whenever possible, and a person . . .
may not maliciously interfere with any person from obtaining
employment or enjoying employment already obtained . . . .” Article
XVI, section 4 states that “[t]he exchange of black lists by . . .
corporations, associations or persons is prohibited.”
Newfield argues that there is no right to a private cause of
action under article XVI, section 4 and article XII, section 19. A state
constitutional provision creates a private cause of action when it is
self-executing.
Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder
Cty. Sch. Dist.
, 2000 UT 87, ¶ 7, 16 P.3d 533. A self-executing
provision is one that, “[i]n essence, . . . can be judicially enforced
without implementing legislation.”
Id
. This means that the provision
“articulates a rule sufficient to give effect to the underlying rights
and duties intended by the framers.”
Id
. (citation omitted). Thus,
“courts may give effect to a provision without implementing
legislation if the framers intended the provision to have immediate
effect.”
Id
. (citation omitted). We can determine that a provision was
intended to have immediate effect when the provision is “both
judicially definable and enforceable,” even though its express
language may be stated “in relatively general terms.”
Id
. ¶ 12. A
good indicator that the framers intended the provision to be self-
executing is when the provision “prohibits specific evils that may be
defined and remedied without implementing legislation.”
Bott v.
DeLand
, 922 P.2d 732, 737 (Utah 1996)
abrogated on other grounds by
Spackman
,
is entitled to equitable relief to remedy a violation of the constitutional provision. Id . ¶ 18; Bott , 922 P.2d at 737 (“[S]elf- executing provision[s] . . . traditionally allow[] courts to award injunctions and invalidate conflicting statutes . . . .”). However, “a self-executing constitutional provision does not necessarily give rise to a damages suit.” Spackman , 2000 UT 87, ¶ 18. Thus, if a plaintiff seeks damages, he or she must argue that 1) “he or she suffered a ‘flagrant’ violation of his or her constitutional rights,” 2) “existing remedies do not redress his or her injuries,” and 3) “equitable relief, *32 U
Opinion of the Court
such as an injunction, was and is wholly inadequate to protect the plaintiff’s rights or redress his or her injuries.” Id . ¶¶ 23–25. Article XVI, section 7 states that “[t]he Legislature . . . shall provide for the enforcement of the provisions of this article,” including section 4 of article XVI. This clearly indicates that the framers did not intend this provision to be self-executing. Rather, the rights expressed in article XVI must be protected through “appropriate legislation.” Whether the legislature has actually passed legislation to protect a person’s rights under article XVI, section 4, and what the remedy should be if it has failed to do so, is not before this court. We hold that article XVI, section 7 is not self- executing and that Harvey is not entitled to bring a private claim directly under that provision. Article XII, section 19 originally stated that “[t]he
Legislature shall provide by law for the enforcement of this section.” See TAH ONST . art. XII, § 19 (1896). Newfield argues that the court of appeals has already ruled that this provision is not self-executing based on this language. See Richards Irrigation. Co. v. Karren , 880 P.2d 6, 10–11 (Utah Ct. App. 1994). Again, this language clearly indicated that the framers did not intend the provision to be self-executing. Newfield argues that Harvey failed to preserve this argument below, but this conflates the two standards. If a constitutional provision is self-executing, a private claim may be brought under the provision for equitable relief. While Harvey never specifically said, “self-executing” in his arguments below or in his opening brief on appeal, his substantive arguments address this issue and it is therefore preserved.
Harvey, however, undoubtedly failed to preserve an argument that, under these three factors, he is entitled to damages. But the three factors in Spackman only determine whether money damages are available, not whether a cause of action exists. Harvey sought injunctions and declaratory judgments in addition to his claim for money damages. His request for equitable relief should not be dismissed as long as the constitutional provisions are self- executing, even if these elements for money damages are not met. Thus, at worst, his failure to argue these elements on a motion to dismiss would result in dismissal of his request for money damages under these constitutional causes of action. We do not reach this issue because we dismiss his constitutional claims against Newfield on other grounds.
Opinion of the Court
But this language was removed on January 1, 1993, abrogating the court of appeals holding and re-opening this issue. Id . at 11 n.2; S.J. Res. 7, 49 th Leg., Gen. Sess. (Utah 1992). We do not reach this issue, however, because even if this
provision is self-executing, Harvey has failed to state a claim against Newfield. This provision states that a person “may not maliciously interfere with any person from obtaining employment or enjoying employment already obtained.” U TAH ONST . art. XII, § 19 (emphasis added). Malice implies some kind of “hostility or ill will,” or intent to commit a wrongful act. Cox v. Hatch , 761 P.2d 556, 559 n.1 (Utah 1988); Malice , B LACK ’ S L AW D ICTIONARY (8th ed. 2004) (“The intent, without justification or excuse, to commit a wrongful act.”). Harvey has not pled that Newfield maliciously intended to harm Harvey, and no inference of malice can be made from the facts pled. Harvey merely pled that Newfield received and complied with a government directive from the Ute Tribe. This is not enough to show hostility, ill will, or an intent to commit a wrongful act. We affirm the district court’s dismissal of this claim against Newfield under rule 12(b)(6). We affirm the district court’s dismissal of D. Ray. C.
Enterprises, LaRose Construction, and Newfield for failure to state a claim upon which relief can be granted because Harvey pled causes of action that do not exist, and because he failed to plead adequate facts against those defendants supporting the causes of action that do exist. While we dismiss all of Harvey’s state law claims against these three defendants, we do not address his state law claims against the remaining defendants under Utah Rule of Civil Procedure 12(b)(6).
CONCLUSION The Ute Tribe has not clearly waived its sovereign
immunity and we affirm the district court’s dismissal of the tribe for lack of subject matter jurisdiction. We also affirm the district court’s dismissal of LaRose Construction Company, Inc., D. Ray C. Enterprises, LLC, Newfield Production Company, Newfield Rocky Mountains, Inc., Newfield RMI, LLC, and Newfield Drilling Services, Inc. for failure to state a claim upon which relief can be granted. We vacate the district court’s dismissal of the remaining defendants for failure to join an indispensable party and we remand for the district court to determine whether the case should be dismissed or stayed under the tribal exhaustion doctrine. If the district court decides to stay proceedings, Harvey’s state law claims against Dino Cesspooch, Jacki LaRose, and Sheila Wopsock in their individual capacities, and against L.C. Welding & Construction,
Opinion of the Court
Scamp Excavation, and Huffman Enterprises, Inc., survive. Harvey’s two federal claims that the tribal officials exceeded the scope of the Ute Tribe’s jurisdiction and seeking injunctions also survive.
Cite as:
write separately to more fully explain why, in my view, the tribe is not a necessary party under rule 19(a) of the Utah Rules of Civil Procedure and to offer some practical guidance to the district courts on how to manage a dual-capacity suit like this one. I also write separately to lay out why I believe the tribal exhaustion doctrine applies to state courts and why it is a rule of exhaustion and not abstention. Last, I write separately to identify a jurisdictional issue the district court and the parties should take up on remand.
I. RULE 19 IN THE CONTEXT OF DUAL CAPACITY SUITS The plaintiffs have sued certain tribal officials—Dino Cesspooch, Jacki LaRose, and Sheila Wopsock—in their individual and official capacities. The individual-capacity claims seek money damages and the official-capacity claims seek prospective injunctive relief requiring these tribal officials, acting in their official capacity, to forebear from interfering in certain respects with the plaintiffs’ business activities. I agree with the majority that, to the extent the plaintiffs’
official-capacity suit seeks a prospective injunction enjoining the
tribal officials from violating federal (as opposed to tribal) law, the
plaintiffs have stated a valid claim under
Ex parte Young
,
H J IMONAS , concurring ability to protect that interest” because the tribal officials will fully represent its interests. U TAH R. C IV . P. 19(a)(2)(i). I write separately to more fully show our math under rule
19(a)(2)(i). While foundational principles establish that sovereigns
are not necessary parties to officer suits under
Ex parte Young
, neither
the majority opinion nor the authority it cites fully explains why we
can state, with absolute confidence, that the tribal officials will fully
represent the interests of the tribe. It is certainly not because the
tribal officials will necessarily have the tribe’s best interests at heart
in the individual-capacity damages suits against them. To the
contrary, “a person sued in his official capacity has no stake, as an
individual, in the outcome of the [official-capacity] litigation,” and
therefore does not necessarily have an incentive to vigorously defend
in that litigation.
Johnson v. Bd. of Cty. Comm’rs of Fremont
,
officials will fully represent the interests of the tribe is that an Ex - parte - Young -style suit for prospective injunctive relief against tribal officials is not really a suit against the tribal officials at all. As the majority explains, in official-capacity suits “the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.” Lewis v. Clarke , 137 S. Ct. 1285, 1291 (2017) (citation omitted). Indeed, “official-capacity suits ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” Hafer v. Melo , 502 U.S. 21, 25 (1991) (citation omitted). They “rest[] on the ‘obvious fiction’ that [a suit for prospective injunctive relief against sovereign officials] is not really against the [sovereign], but rather against an individual who has been ‘stripped of his official or representative character’ because of his unlawful conduct.” Va. Office for Prot. & Advocacy v. Stewart , 563 A person is also necessary under rule 19 “if in the person’s ‘absence complete relief cannot be accorded among those already parties’ . . . [or] the person . . . claims an interest in the action and her absence would ‘leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.’” Supra ¶ 35 (quoting U TAH R. IV . P. 19(a)(1) & (2)(ii)). I have no concerns with the majority’s analysis of these two prongs of rule 19(a).
J IMONAS , concurring
U.S. 247, 267 (2011) (citations omitted). But because it is a “fiction”
that
Ex
-
Parte
-
Young
-style suits run against the government official, as
opposed to the government entity itself, they should in reality “be
treated as suits against the [government entity].”
Hafer
,
should have no personal control over the course of the official-
capacity litigation. Instead, even though the tribal officials are the
nominal defendants in the official-capacity suit, “the
government
entity
[must] receive[] notice and an opportunity to respond.”
Kentucky v. Graham
, 473 U.S. 159, 166 (1985) (emphasis added)
(citation omitted). “[A]n official-capacity suit is, in all respects other
than name, to be treated as a suit against the [government] entity,”
not the individual tribal official.
Id.
(citation omitted) Thus, except
where the government entity that is the real party in interest might,
itself, take a position “antithetical to the interests of the tribe,” the
obvious potential conflict between the officials in the individual-
capacity suit and the government entity those same officials
represent in their official capacity should not pose a problem.
See Salt
River
, 672 F.3d at 1181. And, of course, if the tribal officials leave
office during the pendency of this action, the plaintiffs’
Ex
-
parte
-
Young
-style suit “may be continued and maintained . . . against
[their] successor[s], if within 6 months after the successor takes office,
it is satisfactorily shown to the court that there is a substantial need
for so continuing and maintaining it.” U TAH R. IV . P. 25(d).
This explanation for why the tribe need not be joined
under rule 19(a)(2)(i) has implications for how this lawsuit should
proceed in the event that it remains or returns, in whole or in part, to
the district court. First, even though all of the claims against the tribe
itself have been dismissed because of the tribe’s sovereign immunity,
the underlying tribal entity against which the plaintiffs are seeking
their injunction—be that the tribe itself or the Ute Tribal Employment
Rights Office—must continue to receive notice and an opportunity to
be heard.
Graham
,
represented by the same counsel in both their official and individual capacities, the district court and all counsel should be on the lookout for potential conflicts of interest in this dual representation. See Johnson , 85 F.3d at 493 (“Given the potential conflict between the defenses available to a government official sued in his individual and official capacities, we have admonished that separate representation for the official in his two capacities is a ‘wise precaution.’” (citation omitted)); see also Galvin v. Lloyd , 663 F. Supp. 1572, 1581 (D. Conn.
H J IMONAS , concurring 1987) (“[J]oint representation in [dual-capacity] suits sometimes creates a potential conflict of interest because different theories of liability and defenses may be applicable under each capacity.”). In this regard, I note with approval that, at least for a time, the tribal officials were represented by the tribe’s counsel in the official-capacity suit and by personal counsel in the individual- capacity suit. This is a good practice that is too often neglected in dual capacity suits such as the one before us. Cf. Dina Mishra, Note, When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation , 119 Y ALE L.J. 86, 90 (2009) (“[D]espite their importance, conflicts of interest in . . . dual representation [lawsuits] are ‘frequently overlooked by litigants’ . . . and the issue ‘has received scant attention in appellate opinions.’” (citation omitted)).
II. THE MAJORITY’S EXHAUSTION ANALYSIS
I now turn to the majority’s articulation and application of
the tribal exhaustion rule. I agree with the majority that our court
must abstain from hearing this case until the plaintiffs have
exhausted available tribal remedies. In my view, the tribal
exhaustion rule applies whenever a tribal court has a colorable claim
of jurisdiction.
See, e.g.
,
Stock W. Corp. v. Taylor
,
J IMONAS , concurring direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” id. at 566 (citations omitted). In my view, the majority is correct that, at bottom, the plaintiffs’ lawsuit centrally involves the exercise of the tribe’s regulatory authority over the activities of nonmembers who engage in consensual commercial relationships with the tribe or its members—and it therefore falls within the first Montana exception to the general rule that tribes lack regulatory or adjudicatory jurisdiction over nonmembers in connection with their off-reservation conduct. See supra ¶¶ 42–52 & n.11.
¶92 I write separately to (1) explain why I believe the tribal exhaustion doctrine applies in state court, (2) explain why I believe the tribal exhaustion doctrine is an exhaustion doctrine, not an abstention doctrine, and (3) flag an additional jurisdictional issue that the district court should explore on remand.
A. The Tribal Exhaustion Doctrine
Applies in State Courts
I agree with the majority that the tribal exhaustion rule
applies in state court as well as federal court. The United States
Supreme Court has explained that the tribal exhaustion rule applies
to “
any
nontribal court.”
Iowa Mut. Ins. Co. v. LaPlante
,
the express language in LaPlante . Supra ¶ 93. It is also inconsistent
H J IMONAS , concurring with fundamental principles of Indian law as well as the policy that, according to the United States Supreme Court, undergirds the tribal exhaustion doctrine. First, the notion that the tribal exhaustion rule does not
apply to state courts is inconsistent with fundamental principles of
Indian law. “The policy of leaving Indians free from state jurisdiction
and control is deeply rooted in the Nation’s history.”
Rice v. Olson
,
anomalous to conclude that the tribal exhaustion rule only applies in
federal court. The effect of this ruling would be to place state courts
in a superior position to federal courts in hearing cases that implicate
tribal jurisdiction. Conceivably, given the general rule that state and
federal courts have concurrent subject matter jurisdiction,
Robb v.
Connolly
, 111 U.S. 624, 636 (1884), this might give rise to a scheme
where plaintiffs overwhelmingly chose to litigate in state court
instead of tribal court—a state of affairs that would wholly subvert
the federal policy of encouraging the development of tribal court
systems,
see El Paso Nat. Gas Co. v. Neztsosie
,
To be sure, defendants in such suits could conceivably remove
to federal court and then seek application of the tribal exhaustion
rule.
See Iowa Mut. Ins. Co. v. LaPlante
,
(continued . . .)
*41
J IMONAS , concurring
This brings me to my second point, which is that the policy
underlying the tribal exhaustion rule supports the proposition that it
applies in state court. As I have just explained, the purpose of the
tribal exhaustion rule is to advance a policy of supporting “tribal self-
government and self-determination.”
LaPlante
, 480 U.S. at 15. The
United States Supreme Court has clarified that the predominant, if
not sole, policy underlying the tribal exhaustion requirement is the
proposition that “[e]xhaustion [is] appropriate . . . because ‘Congress
is committed to a policy of supporting tribal self-government.’”
Neztsosie
, 526 U.S. at 484 (citation omitted). When a state court
assumes control over litigation that could also proceed in tribal court
it has the exact same effect on tribal self-determination as when a
federal court assumes such control—in both instances, the federal
policy of “encourag[ing] the[] development. . . . [of] [t]ribal courts” is
subverted.
LaPlante
,
generality that “[e]xhaustion . . . is a principle that regulates the timing of proceedings in tribunals that operate in a hierarchical relationship,” to analogize the tribal exhaustion doctrine to, for example, the requirement to exhaust administrative remedies. Infra ¶ (continued . . .)
proceedings under the tribal exhaustion doctrine. Moreover, there will presumably remain some nonremovable cases filed in state court to which the tribal exhaustion rule would uncontroversially apply in federal court. But there is no reason to think such cases are less worthy of tribal exhaustion than removable cases. So declining to apply the tribal exhaustion rule to this random subset of cases would ultimately work an arbitrary, and therefore unacceptable, result. And most importantly, this purpose would be frustrated by a scheme that relies on litigants to remove to federal court to trigger the tribal exhaustion rule.
H T J IMONAS , concurring 121. It then urges that we independently balance jurisdictional and sovereignty considerations to arrive at our own approach to the state-tribal relationship. Infra ¶¶ 128–29. The dissent’s analysis misunderstands our role vis-à-vis the
United States Supreme Court. When we interpret federal law, we
should not look to whether there is any “controlling statute or
binding precedent” that stands in the way and then, if there is not,
proceed to balance the interests involved in the case as we think best.
Cf.
Adam Liptak,
An Exit Interview With a Judicial Firebrand
, N.Y. IMES , Sept. 12, 2017, at A18 (noting former Judge Richard Posner’s
view that the role of a court is to decide for itself what the sensible
resolution of a dispute is and then reach that resolution unless “a
recent Supreme Court precedent or some other legal obstacle [stands]
in the way of ruling in favor of that sensible resolution”). Instead, we
should strive to resolve the federal question before us in a way that is
faithful to, and coheres with, operative federal principles, policies,
and pronouncements.
Cf. Willis v. Aiken
, 8 F.3d 556, 565 (7th Cir.
1993) (lower courts interpreting federal law are “bound not only by
the letter but by the spirit of the doctrines of stare decisis and
precedent”);
Application of Johnston
,
policies on which I draw. Nor should we ignore the Supreme Court’s
pronouncement—dicta though it may be—that the tribal exhaustion
rule applies to “any nontribal court.”
LaPlante
,
“exhaustion” (at least considered at a high level of generality) implies a “hierarchical relationship,” the tribal exhaustion rule cannot be understood to apply in state courts. Respectfully, this analysis is insensitive to the Indian tribes’ unique status and history—a status and history that should inform how we construe legal terms imported from other areas of law into the Indian law context.
J IMONAS , concurring
Unlike administrative agencies, or even states, tribes are
not subordinates in our constitutional hierarchy. They are “domestic
dependent nations.”
Okla. Tax Comm’n v. Citizen Band Potawatomi
Tribe of Okla.
,
B. The Tribal Exhaustion Rule Is a Rule of Exhaustion, Not Abstention For many of the reasons I think the tribal exhaustion rule applies in state court, I also agree with the majority that the rule is a rule of exhaustion , not abstention. The practical difference between a tribal exhaustion rule and a tribal abstention rule is that, if the rule were one of abstention, courts would likely be called upon to balance multiple factors, including judicial economy concerns and the avoidance of piecemeal litigation. See, e.g. , Colo. River Water Conservation Dist. v. United States , 424 U.S. 800, 818 (1976) [hereafter Colorado River ] (“In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction [by a state court], a federal court may . . . consider such factors as the inconvenience of the federal forum, . . . the desirability of avoiding piecemeal
H J IMONAS , concurring litigation, . . . and the order in which jurisdiction was obtained by the concurrent forums.” (citations omitted)). If, on the other hand, the rule requires exhaustion, then state courts need not take broad concerns of judicial economy into account in deciding whether to stay their hand. I think the tribal exhaustion rule does, indeed, require
exhaustion. The Supreme Court has consistently described the
doctrine as a rule of exhaustion, not abstention, and it has never
indicated that courts should apply a multifactorial, abstention-style
balancing test to determine when exhaustion is appropriate.
See
Neztsosie
, 526 U.S. at 483 (describing “doctrine of tribal-court
exhaustion”);
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians
, 471
U.S. 845, 856–57 (“[e]xhaustion of tribal court remedies” is rooted in
the “policy of supporting tribal self-government and self-
determination”);
see also LaPlante
, 480 U.S. at 16 (discussing “the
exhaustion rule announced in
National Farmers Union
”). Moreover, it
has stated the rule in categorical terms; “comity
requires
that tribal
remedies be exhausted before district court considers issue of tribal
court jurisdiction.”
Granberry v. Greer
, 481 U.S. 129, 131 n.4 (1987)
(emphasis added) (citing
Nat’l Farmers Union
,
(continued . . .) *45 J IMONAS , concurring unlike the Colorado River abstention doctrine that otherwise applies when federal courts are considering whether to stay their hand in a matter over which different United States court systems have concurrent jurisdiction.
The tribal exhaustion doctrine is in no way based on Colorado River . . . . [T]he Colorado River doctrine “proceeds from the premise that ‘the federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given to them”’” and . . . therefore, the pendency of litigation in state court is not a bar to proceedings in federal court involving the same subject matter in the absence of “exceptional circumstances.” The policy which animates the tribal exhaustion doctrine, however, “subordinates the federal court’s obligation to exercise its jurisdiction to the greater policy of promoting tribal self-government.” Colorado River abstention is thus the exception to the rule, whereas tribal exhaustion is the rule rather than the exception.
Bank One, N.A. v. Shumake
,
C. Ute Tribal Law and the Jurisdiction of Courts
of the Ute Indian Tribe Finally, I flag an issue for the district court to explore on
remand. The majority is correct to remand this case to the district court. Supra ¶ 81. And the majority is also correct that the district court, on remand, has discretion to either stay the action before it or dismiss the plaintiffs’ complaint without prejudice, to give the plaintiffs an opportunity to first file their suit in tribal court. Supra ¶ 81.
(continued . . .)
expressed their preference for having this dispute adjudicated in available tribal forums. Memorandum in Support of Motion to Dismiss by Tribe and UTERO Officials at 13–14.
H U TE J IMONAS , concurring In the course of deciding whether a stay or dismissal is more appropriate, the district court may wish to explore whether the plaintiffs have any nonfrivolous basis for filing a subset of their claims—their official-capacity claims—in tribal court. At first blush (and perhaps even in the final analysis), the Ute Law and Order Code appears to bar the tribe’s courts from exercising jurisdiction over “claims against . . . any Tribal officers or employees in their official capacities” in circumstances such as the ones at issue in this lawsuit. L AW & O RDER C ODE § 1-2-3(5). While there may be an argument that this provision—which falls under the “personal jurisdiction” section of the Law and Order Code—does not apply as its plain language suggests, its plain language raises the possibility that no reasonable plaintiff could in good faith file such a claim in Ute Tribal Court. To be sure, complaints must first be filed in tribal court
whenever there is a colorable argument that the tribal court may have jurisdiction. Norton , 862 F.3d at 1243 (tribal exhaustion rule applies “so long as tribal courts can ‘make a colorable claim that they have jurisdiction.’” (citation omitted)). And our courts should be particularly hesitant to find no colorable claim of tribal jurisdiction based on an interpretation of a tribal code (as opposed to federal jurisdictional law). See Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe , 117 F.3d 61, 66 (2d Cir. 1997) (declining “to hold that the St. Regis Mohawk Tribal Court is a nullity under the tribal constitution” because “courts, as a general matter, lack competence to decide matters of tribal law and for us to do so offends notions of comity underscored in National Farmers ”). But nor should anything in our opinion today be taken to require a plaintiff to file a frivolous complaint. Cf. U TAH R. P ROF ’ L ONDUCT 3.1 (lawyers have an ethical obligation not to bring frivolous claims); see also Nat’l Farmers Union , 471 U.S. at 856 n.21 (exhaustion not required if assertion of tribal I accessed the Ute Law and Order Code through the Native American Rights Fund’s National Indian Law Library. NARF’s website indicates that the code was last amended in 2013, but it also includes, as a disclaimer, that while “every effort is made to present current and accurate information, if you need an official version of the tribe’s laws, please contact the tribe.” N ATIVE A MERICAN R IGHTS F UND , http://www.narf.org/nill/codes/ute_uintah_ouray/ [https://perma.cc/8YXR-4HLZ]. The district court may wish to verify that section 1-2-3(5) is contained in the current, operative version of the Law and Order Code.
J IMONAS , concurring jurisdiction is in bad faith or “patently violative of express jurisdictional prohibitions”). I acknowledge that some courts have held that under
National Farmers Union ’s “patently violative of express jurisdictional prohibitions” exception, “the only relevant ‘jurisdictional prohibitions’ . . . are those arising under federal law” on the basis “that construction of tribal law is ‘solely a matter within the jurisdiction of the tribal courts.’” Basil Cook Enters. , 117 F.3d at 67 (quoting Talton v. Mayes , 163 U.S. 376, 385 (1896)). Equally, I recognize that courts have held that “a federal court must look to the conduct of the [tribal] court itself, rather than the parties, in assessing bad faith” under National Farmers ’ “bad faith” exception to the tribal exhaustion rule. Acres v. Blue Lake Rancheria , No. 16-cv-05391, 2017 WL 733114, at *2 (N.D. Cal. Feb. 24, 2017) (citing Grand Canyon Skywalk Dev., LLC v. ‘sa’ Nyu Wa Inc. , 715 F.3d 1196, 1201 (9th Cir. 2013)). These opinions underscore my view that the district court must take great pains to ensure that there is no nonfrivolous basis for asserting a particular claim in tribal court before it may retain control of that claim. But I remain convinced that the tribal exhaustion doctrine cannot require a plaintiff to file a truly frivolous claim in tribal court—including a claim that the tribe’s own law expressly and unambiguously precludes. On remand, therefore, I believe it would be prudent for the
district court to request briefing from the parties—including the
tribal officials—on whether there is any reason to think that the
tribe’s courts could assert jurisdiction over the plaintiffs’ official-
capacity claims. If a nonfrivolous argument could be made that the
tribe’s courts have jurisdiction over official-capacity claims, then
those claims must first be brought in tribal court.
See Stock W. Corp.
,
*48 ARVEY U A SSOCIATE C HIEF J USTICE L EE , concurring and dissenting A SSOCIATE HIEF J L EE , concurring in part and dissenting in part: The majority does an admirable job of bringing order and
clarity to a complex case. I agree with and concur in most of the majority opinion and in Justice Himonas’s concurrence. Our only point of disagreement stems from their analysis relating to tribal exhaustion and their conclusions affected by that analysis. Unlike the majority and concurrence, I find no basis in federal law for a rule forcing the plaintiffs to “exhaust” their claims by filing suit in tribal court. No party to this case has ever sought to invoke the jurisdiction of the tribal courts. The plaintiffs chose this forum and the defendants apparently agree—they have not initiated a declaratory proceeding in tribal court. And I see no basis for the court’s decision to override the parties’ choice of this Utah forum. The U.S. Supreme Court has imposed an exhaustion
requirement in a line of cases in which (a) one of the parties has
invoked the jurisdiction of the tribal courts and (b) another party has
filed suit
in federal court
(which retains appellate jurisdiction over the
tribal court).
See Iowa Mut. Ins. Co. v. LaPlante
,
choosing an appropriate forum.
[1]
When the parties file suit in a court
that has both subject-matter jurisdiction over the dispute and
personal jurisdiction over the parties, our courts have a general duty
to exercise that jurisdiction.
[2]
This is no arbitrary rule. It is a core
premise of our judicial system—a premise aimed at protecting the
See Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd.
,
A SSOCIATE C HIEF J L EE , concurring and dissenting federal constitutional right to due process and the state constitutional right to open access to court. U.S. C ONST . amend. V; U TAH ONST . art. I, § 11. These general rules are subject to exceptions. One exception
is set forth in the above-cited cases. These cases establish a
requirement of exhaustion as a matter of federal Indian law—a rule
that “directs a federal court to stay its hand” in the face of a pending
tribal court action “in order to give the tribal court a ‘full opportunity
to determine its own jurisdiction.’”
LaPlante
,
exhaustion rule announced by the U.S. Supreme Court extends to cases in which the parties are litigating their differences in state court and no party has yet invoked the jurisdiction of a tribal court. First, I see no basis for the conclusion that the principles set forth in LaPlante apply with equal force in a case involving the interplay between tribal courts and state courts. Second, and in any event, I see no basis for extending the LaPlante doctrine of exhaustion to a case in which there is no pending proceeding in the tribal forum. In the absence of a binding federal rule I would approach the question presented as a matter of comity addressed to our common law authority. And under that authority I would conclude that our courts should stay our exercise of jurisdiction only after one of the parties has invoked the jurisdiction of the tribal courts.
My difference with my colleagues has nothing to do with one or the other of us “misunderstand[ing]” our relationship with the United States Supreme Court. See supra ¶ 101. I think we all understand this relationship quite well. We just read the relevant precedent differently.
Like my colleagues, I embrace the duty to be “faithful” to the “operative federal principles” set forth in governing Supreme Court precedent. See supra ¶ 101. Yet I do not think the principle of exhaustion set forth in LaPlante and National Farmers Union applies with equal force in a case involving the interplay between tribal courts and state courts. And because I find the comity considerations implicated in a case like this one to be quite distinct from those addressed by the court in these cases, I think it falls to us to decide the question presented.
A SSOCIATE HIEF J L EE , concurring and dissenting
I I find no basis in federal law for a rule of exhaustion that is
binding on state courts. A few lower courts have held that the logic
and some dicta in
LaPlante
and
National Farmers Union
suggest that
the exhaustion principle ought to extend to state court proceedings.
[4]
But the U.S. Supreme Court has never considered the question before
us.
[5]
Its cases, to date, have all involved the interplay between actions
filed in federal court and competing cases filed in tribal court.
[6]
Justice Himonas cites
Nevada v. Hicks
, 533 U.S. 353 (2001),
and
LaPlante
,
[4]
Drumm v. Brown
, 716 A.2d 50, 62–63 (Conn. 1998) (suggesting
that the exhaustion doctrine, inseparable from the policy of deference
to tribal courts, is an interstitial rule of federal common law, which is
binding upon state courts under the Supremacy Clause; concluding
that the exhaustion doctrine is binding on state courts because states
are equally likely to disrupt the “federal policy supporting tribal self-
government”);
contra Meyer & Assocs. v. Coushatta Tribe of La.
, 992 So.
2d 446, 450 (La. 2008) (refusing to apply the doctrine of exhaustion in
the context of a state court proceeding);
Astorga v. Wing
, 118 P.3d
1103, 1106 (Ariz. Ct. App. 2005) (finding that the exhaustion rule did
not apply to state courts because federal courts have the ability to
review these determinations, whereas state courts do not).
See Meyer & Assocs.
,
States Supreme Court has never held that the exhaustion of tribal remedies doctrine applies to the states”). See Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians , 471 U.S.
845, 856 (1985) (asserting that “the forum whose jurisdiction is being challenged [shall have] the first opportunity to evaluate the factual and legal bases for the challenge”); Iowa Mut. Ins. Co. v. LaPlante , 480 U.S. 9, 16 (1987) (emphasizing the need to avoid “direct competition with the tribal courts”); Strate v. A-1 Contractors , 520 U.S. 438, 448 (1997) (summarizing U.S. Supreme Court precedent as establishing “an exhaustion rule allowing tribal courts initially to respond to an invocation of their own jurisdiction”). *51 2017
A SSOCIATE HIEF J L EE , concurring and dissenting
that
might be filed
.
[7]
That is also true of every other tribal court
exhaustion case decided by the Supreme Court. So any broad
language in the court’s opinions, like that in
LaPlante
, is pure dicta.
See LaPlante
,
not extend to a case like that presented here. Indeed the terms and structure of the LaPlante opinion cut against this extension. LaPlante speaks of “exhaustion.” Exhaustion, moreover, is a principle that regulates the timing of proceedings in tribunals that operate in a hierarchical relationship. [8] We speak of exhaustion of administrative remedies, for example, as a rule requiring a party challenging the actions of an administrative agency to raise and resolve its claims in the administrative agency before it may raise them in a judicial proceeding. [9] Exhaustion in habeas corpus proceedings is similar. Petitioners in state custody must exhaust available state court procedures before pursuing review in federal court. [10] The exhaustion question presented in LaPlante is along these same lines. In holding that the plaintiff was required to “exhaust available tribal remedies” before pressing its suit in federal
[7] Hicks was a declaratory judgment action filed in federal court by the State of Nevada. 533 U.S. at 357. The State was challenging the jurisdiction of a tribal court (in a proceeding pending there) over tribal tort and federal civil rights claims. Id.
[8] Cf. Sarei v. Rio Tinto, PLC , 550 F.3d 822, 832 (9th Cir. 2008) (en banc) (explaining that exhaustion requires a plaintiff to “obtain a final decision of the highest court in the hierarchy of courts in the legal system at issue”); Priester v. Baltimore Cty. , 157 A.3d 301, 310 (Md. Ct. Spec. App. 2017) (describing exhaustion in administrative law as “requir[ing] a grievant to invoke and pursue the administrative process until he or she receives a final decision from the agency at the utmost level of the administrative hierarchy”). See Woodford v. Ngo , 548 U.S. 81, 88–89 (2006) (“[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”) (citation omitted). 28 U.S.C. § 2254(b)(1)(A); Davila v. Davis , 137 S. Ct. 2058, 2064
(2017) (“First, a state prisoner must exhaust available remedies before presenting his claim to a federal habeas court.”).
A SSOCIATE HIEF J L EE , concurring and dissenting
court, the court also recognized that if the tribal courts concluded
that they had jurisdiction the parties retained the right to “challenge
that ruling” by seeking direct review in an action filed “in the
[federal] District Court.” 480 U.S. at 19. This is the notion of
“exhaustion”—the requirement of completing litigation filed in a
lower tribunal before seeking ultimate review in a higher one.
“Due to th[e] relationship” between tribal and federal
courts,
[11]
a plaintiff may not file an action arguably subject to the
jurisdiction of the tribal courts “directly in federal court . . . without
first exhausting such recourse as is available in Indian courts.”
Astorga v. Wing
,
jurisdictional see-saw, rising and falling in balanced harmony.
Rather, determinations of jurisdictional propriety derive from larger
notions of shared autonomy, co-existent sovereignty, and the
sometimes overlapping boundaries of governmental authority—both
geographic and with respect to tribal membership and property
ownership.”
Hinkle v. Abeita
,
A SSOCIATE HIEF J L EE , concurring and dissenting announced in LaPlante “does not apply” to a case filed in state court). [13] Justice Himonas says that the applicability of the LaPlante
principle of exhaustion to state court proceedings is resolved by “fundamental principles of Indian law” announced by the Supreme Court and reiterated in federal statutes. Supra ¶ 96. I disagree. It should first be reiterated that there is no controlling authority on this issue. The Supreme Court has never considered the important question presented here. Granted, the court has spoken generally about the federal
“‘policy of leaving Indians free from state jurisdiction and control.’”
Supra
¶ 96 (quoting
Rice v. Olson
,
I see no reason to expect that the approach that I advocate will prompt plaintiffs “overwhelmingly” to avoid the federal forum and file in state court instead. See supra ¶ 97. And even if some plaintiffs migrate to state court, that will not at all “subvert the federal policy of encouraging the development of tribal court systems.” Supra ¶ 97. The policy of “[p]romot[ing] . . . tribal self-government,” LaPlante , 480 U.S. at 15, is advanced even under the regime that I have in mind—a regime in which the state courts defer to tribal courts as soon as a party invokes their jurisdiction. Indeed I believe that is precisely the regime that the LaPlante line of cases has in mind even for cases pending in federal court. See infra Part II. I suppose it’s possible, as the Connecticut Supreme Court has
indicated, that the U.S. Supreme Court could be deemed to have announced “substantive” federal common law that is “binding in state courts pursuant to the supremacy clause of the federal constitution.” Drumm , 716 A.2d at 62. But I am unsure of the legal basis for the court to impose such a “substantive” rule by means of
(continued . . .)
*54
A SSOCIATE C HIEF J L EE , concurring and dissenting
The cited federal statutes—the Indian Child Welfare Act, 25
U.S.C. § 1901
et seq.
, and the Major Crimes Act, 18 U.S.C. § 1153
et
seq
.—do not establish federal law requiring state courts to stay our
exercise of jurisdiction in anticipation of a future-filed action in the
courts of an independent (Indian) sovereign. Indeed these statutes
seem to me to underscore the lack of any such federal rule. If
Congress meant for both federal and state courts to yield to tribal
courts in every circumstance where tribal courts have a colorable
claim of jurisdiction, there would be no reason for statutes giving
tribal courts exclusive jurisdiction. These statutes also show that
Congress has the power and ability to give tribal courts jurisdiction
when it chooses to do so.
See also Hicks
,
Substantive federal law is generally made by Congress. Here there is no applicable law. And the absence of a statute restricting the exercise of our jurisdiction emphasizes the need for us to address the matter head-on. Absent a controlling statute or binding precedent from the
U.S. Supreme Court, it is incumbent on us to decide how to balance
the needed deference to the sovereignty and jurisdiction of the tribal
courts.
See Drumm v. Brown
,
“common law.” That strikes me as the domain of Congress. In any event, however, the court has not in fact announced any common law rule that is applicable here. If and when it does so we will be bound by its precedent. But until then we treat the question of any limits on the exercise of our state-court jurisdiction to be a matter of state law. See, e.g. , U.S. ONST . art. I, § 8 (delegating the power to regulate
commerce to Congress, to tax and spend for the general welfare, to enforce the provisions of the civil war amendments, and “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its specific powers). *55 2017
A SSOCIATE HIEF J L EE , concurring and dissenting “adopt[ing] [a] doctrine for the courts of this jurisdiction”). [16] I would do so here.
¶129 Thus, I would not find that federal precedent or statutes urge us to follow the framework set forth in LaPlante . But I would adopt a rule of exhaustion as a matter of comity under Utah common law—a rule that would call for exhaustion in the face of a pending tribal court proceeding, but not before such a case is actually filed. [17]
II Even assuming that the LaPlante line of cases applies to
state courts, I would not interpret those cases to require exhaustion
in the absence of a pending case filed in tribal courts. I agree with the
Connecticut Supreme Court’s analysis of this issue.
See Drumm v.
Brown
,
Court on this point. “[I]n both cases in which the Supreme Court has held that exhaustion was necessary, namely National Farmers Union Ins. Cos. and Iowa Mutual Ins. Co. [ v. LaPlante ], a proceeding was already pending in the tribal court.” Id . The terms and structure of the Supreme Court’s opinions
strongly suggest “that the court contemplated application of the
requirement only when a parallel proceeding was pending in the
See also Meyer & Assocs.
,
“could conceivably remove to federal court and then seek application of the tribal exhaustion rule.” Supra ¶ 97 n.21. In Justice Himonas’s view this supports the extension of the exhaustion rule to a case like this one because requiring removal to federal court would “impose the extra procedural hurdle of removal in order to reach the same result.” Supra ¶ 97 n.21. Removal to federal court is unnecessary, however. The defendant could invoke the tribal court’s jurisdiction by filing a declaratory judgment action—thereby creating a pending suit in tribal court. And Utah courts would then require exhaustion of the pending suit in tribal court as a matter of comity.
A SSOCIATE HIEF J L EE , concurring and dissenting tribal court.” Id . The National Farmers Union case, for example, “stated that the ‘policy of tribal self-government and self-determination . . . favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.’” Id . (quoting Nat’l Farmers Union Ins. Cos. V. Crow Tribe of Indians , 471 U.S. 818, 856 (1985)) (emphasis altered). And “[t]his narrow language presupposes an ongoing proceeding in the tribal court.” Id . The notion of deference to a “forum whose jurisdiction is
being challenged
” is reflective of a rule that applies in the face of an
existing court proceeding. And one of the exceptions identified in
National Farmers Union
is along the same lines: The exception says
that exhaustion is not “required” where the tribal suit “
is
patently
violative of express jurisdictional prohibitions.” 471 U.S. at 856 n.21
(emphasis added);
see also Drumm
,
The reasoning in U.S. Supreme Court abstention cases also supports this position. Younger v. Harris , 401 U.S. 37 (1971), prohibited federal courts from enjoining pending state court criminal proceedings, and Samuels v. Mackell , 401 U.S. 66 (1971), prohibited federal courts from providing declaratory relief to plaintiffs who are subject to corollary state criminal prosecution. The Younger court’s reasoning rested on “proper respect for state functions” and on “not unduly interfer[ing] with the legitimate activities of the States.” 401 U.S. at 44. But federal courts must proceed in the absence of a
(continued . . .)
*57
A SSOCIATE HIEF J L EE , concurring and dissenting
Justice Himonas resists this conclusion on the ground that
LaPlante
announces a “rule of
exhaustion
, not abstention.”
Supra
¶ 106. But the dichotomy set up by Justice Himonas is overstated.
The principle of abstention is not limited to the notion of “balanc[ing]
multiple factors” such as “judicial economy concerns and the
avoidance of piecemeal litigation.”
Supra
¶ 106. Abstention is simply
the idea of a court of one sovereign staying its hand in the face of the
exercise of jurisdiction by another.
See Younger v. Harris
,
“abstention.” It does so implicitly in its prohibition on
intervention
in
a tribal court action and its mandate for deference to a current
“challenge to [the tribal court’s] jurisdiction.”
LePlante
,
this view. Again I agree with the Connecticut Supreme Court’s view of the matter. The LaPlante exhaustion rule can easily be understood (continued . . .)
pending state action because the same policy considerations are not
present.
Steffel v. Thompson
, 415 U.S. 452, 462 (1974) (noting that a
federal court’s proceeding in the absence of a corollary state court
proceeding cannot “be interpreted as reflecting negatively upon the
state court’s ability to enforce constitutional principles”). Similarly,
when neither party has invoked the tribal court’s jurisdiction, a state
court exercising its jurisdiction cannot be viewed, as Justice Himonas
suggests, as intruding on “tribal self-government and self-
determination.”
See supra
¶ 97 (citing
LaPlante
,
A SSOCIATE HIEF J L EE , concurring and dissenting to be limited to a case in which there is a live, pending proceeding in tribal court. That conclusion, in fact, is reinforced by the specific policy considerations identified in LaPlante and National Farmers Union . See Drumm , 716 A.2d at 65 (concluding that the concerns “upon which the doctrine is based [are] most pressing when a parallel proceeding is pending in the tribal court”). The first consideration identified in LaPlante is the “federal
policy supporting tribal self-government,” which “directs a federal
court to stay its hand in order to give the tribal court ‘a full
opportunity to determine its own jurisdiction.’”
LaPlante
, 480 U.S. at
16 (citation omitted). The
National Farmers Union
formulation of this
policy is similar. There the court spoke of the need to allow the
“forum whose jurisdiction is being challenged” to have the “first
opportunity to evaluate the factual and legal bases for the challenge.”
471 U.S. at 856. As noted above, both of these statements of policy
presuppose the pendency of a parallel proceeding in tribal court.
Tribal courts are not charged with assessing their own jurisdiction on
their own accord—without a case having been filed by the parties. So
the directive for a nontribal court to “stay its hand” to “give the tribal
court a full opportunity to determine its own jurisdiction” makes no
sense unless and until a parallel tribal proceeding is actually filed.
As the Connecticut Supreme Court put it, “the risk that
adjudication by the nontribal forum will impair the tribal court’s
authority” is implicated “where proceedings arising from the same
transactions and occurrences, and involving substantially the same
issues and parties, are pending in both a tribal and nontribal court.”
Drumm
,
“procedural nightmare” that would ensue if an “underlying tort
action” is allowed to proceed with a pending tribal proceeding
hanging in the balance.
A SSOCIATE HIEF J L EE , concurring and dissenting court jurisdiction first in federal court. Id. at 856. But again this policy is only clearly implicated in the face of a pending tribal proceeding. There is no “procedural nightmare” without two pending, overlapping cases. Indeed the majority’s holding here—its requirement of a separate filing in a tribunal of a separate sovereign—itself interferes with the “orderly administration of justice.” The parties to this case are apparently content to have their differences resolved in our Utah courts. The plaintiffs filed the case here and no defendant saw fit to file a separate (declaratory) proceeding in tribal court. Unless and until that happens, there is no “procedural nightmare” and no interference with the “orderly administration of justice.” That also holds for the third policy identified in the National
Farmers Union —the concern that a rule of exhaustion “will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction,” and “provide other courts with the benefit of their expertise in such matters in the event of further judicial review.” Id . at 857. The majority says that “ forcing Harvey to litigate in tribal court” will “provide[] clarity to the parties and any reviewing court on how the tribe views its own jurisdiction.” Supra ¶ 51 (emphasis added). Perhaps that is true. But National Farmers Union does not speak of “forcing” anyone to file a separate action in tribal court. It is concerned with allowing tribal courts to “explain” their “basis for accepting jurisdiction .” 471 U.S. at 857 (emphasis added). And the notion of acceptance of jurisdiction presupposes a suit filed in tribal court at the voluntary instance of the parties. The rule adopted by the majority seems to me to get things
backwards. By telling parties who were content to resolve their
grievance in our courts that they
must
pursue a parallel action in the
courts of a separate sovereign, the court is neither advancing the
The procedural nightmare that concerned the court arose in a
case in which the defendant challenged tribal jurisdiction first in
federal court without answering the complaint in tribal court. That
led to a series of inconsistent decisions: The tribal court entered a
default judgment, the federal district court entered a permanent
injunction against the tribal court proceedings, and the federal
appellate court reversed the entry of the injunction.
Nat’l Farmers
Union
,
A SSOCIATE HIEF J L EE , concurring and dissenting “orderly administration of justice” nor furthering Indian “self- governance.” The Indian defendants named in this suit are also citizens of the State of Utah. See Meyers v. Bd. of Educ. of San Juan Sch. Dist. , 905 F. Supp. 1544, 1564 (D. Utah 1995) (“[O]f course, on- reservation Indians are citizens of the state within which they reside.”). As such they are entitled to access to our courts to resolve their differences with the plaintiffs. By directing them to file a declaratory suit in tribal court—a suit they have heretofore declined to file—we are not respecting their right of self-governance. We are overriding it. This is a separate basis for the holding of the Connecticut
Supreme Court in
Drumm
. There the court emphasized that “‘[c]ourts
are in the business of ruling on litigants’ contentions, and they
generally operate under the rule essential to the efficient
administration of justice, that where a court is vested with
jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of
the person, it becomes its . . . duty to’ adjudicate the case before it.”
A SSOCIATE HIEF J L EE , concurring and dissenting
III Perhaps in time the U.S. Supreme Court will extend
its precedents and impose a requirement of exhaustion in a case like this one. Or maybe Congress will enact a law restricting the jurisdiction of the state courts in cases where the parties could file in tribal court. But in the absence of any such statute or precedent addressed to the questions of sovereignty and concurrent jurisdiction at issue here, I would not embrace a requirement of exhaustion of tribal remedies in a case in which no one has expressed an interest in seeking such a remedy. We owe it to the parties who invoke our jurisdiction to resolve the dispute that is presented for decision. And I would find that presumption rebutted only in case of a direct conflict between an action filed in our courts and a parallel proceeding pending in tribal court.