United States District Court, W.D. Washington
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [DKT
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Suquamish Indian
Tribe and its Tribal Councilmembers' Motion to Dismiss
Plaintiff Skokomish Indian Tribe's claims against them.
[Dkt # 15]. Skokomish Tribe sued Councilmembers and Fisheries
Director of the Suquamish Tribe, alleging they violated
Skokomish's hunting rights by allowing their tribal
members to hunt in Skokomish's territory. Skokomish's
complaint names the Defendants: Suquamish Tribal
Councilmembers Leonard Forsman, Bardow Lewis, Nigel Lawrence,
Robin Sigo, Luther Mills, Jr., Rich Purser, and Sammy Mabe,
and the Suquamish Tribe's Fisheries Director, Robert
claims the Point No Point Treaty reserved to it the primary
and exclusive hunting right within “Twana
Territory.” The Skokomish Tribe is a successor in
interest to the Skokomish and Twana people. The 1855 Treaty
of Point No Point is one of several treaties executed by
Governor Stevens reserving hunting and fishing rights to its
signatory tribes (the “Stevens Treaties”). The
signatory tribes of the Point No Point Treaty include the
Skokomish Tribe, the Jamestown S'Klallam Tribe, the Lower
Elwha Tribal Community, and Port Gamble S'Klallam.
Although much attention has been given to treaty fishing
rights of Pacific Northwest Tribes, hunting was nonetheless
an integral part of Northwest Indian culture.
1985, this Court confirmed Skokomish's primary fishing
right in Twana Territory- roughly, Hood Canal. See U.S.
v. Washington, 626 F.Supp. 1405, 1486-87 (W.D. Wash.
1985). Skokomish argues the Court also confirmed its primary
hunting right in Twana Territory. Skokomish alleges
Defendants unlawfully promulgated and enforced hunting
regulations allowing Suquamish hunting in Twana Territory. It
seeks declaratory and injunctive relief confirming its
primary hunting right and enjoining the Suquamish Tribe's
enforcement of unlawful hunting in Twana Territory.
seek dismissal of Skokomish's claims on four grounds: (1)
Skokomish lacks Article III standing, (2) the suit against
the Suquamish Tribe is barred by sovereign immunity, (3)
legislative immunity precludes suit against Suquamish Tribal
Officials promulgating hunting regulations, and (4) Skokomish
failed to join the Suquamish Tribe and other Stevens Treaty
Tribes as indispensable parties. Defendants point out that
Skokomish recently sued a host of state officials, asserting
the same claims and seeking similar relief, in Skokomish
Indian Tribe v. Goldmark, 944 F.Supp.2d 1168, 1193 (W.D.
Wash. 2014). Judge Robart dismissed that case because the
adjudication of the signatory tribes' hunting rights in
the region required Skokomish to join all of the tribes in
one action, which it could not do.
argues this Court has jurisdiction because Defendant's
unlawful hunting caused a concrete injury, redressable by a
favorable judgement of this Court. Skokomish also argues
Ex Parte Young, an exception to the Suquamish
Tribe's sovereign immunity, allows this Court to grant
injunctive relief enjoining the Suquamish Tribal
Officers' unlawful acts. It argues that legislative
immunity does not bar the suit because Suquamish Tribal
Officers acted in their administrative and executive, not
legislative, capacities in passing and enforcing hunting
regulations. Finally, Skokomish argues other parties need not
be joined because its primary hunting right is settled law
guaranteed by Article IV of the Point No Point Treaty and
confirmed by the court in U.S. v. Washington.
SUBJECT MATTER JURISDICTION
Standard of Review
complaint must be dismissed under Rule 12(b)(1) if,
considering the factual allegations in a light most favorable
to the plaintiff, the action: (1) does not arise under the
Constitution, laws, or treaties of the United States, or does
not fall within one of the other enumerated categories of
Article III Section 2 of the Constitution; (2) is not a case
or controversy within the meaning of the Constitution; or (3)
is not one described by any jurisdictional statute. See
Baker v. Carr, 369 U.S. 186, 198 (1962); see also
D.G. Rung Indus., Inc. v. Tinnerman, 626 F.Supp. 1062,
1063 (W.D. Wash. 1986); 28 U.S.C. §§ 1331 and 1346.
When considering a motion to dismiss under Rule 12(b)(1), a
court is not restricted to the face of the pleadings, but may
review any evidence to resolve factual disputes concerning
the existence of jurisdiction. See McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988),
cert. denied, 489 U.S. 1052 (1989); see also
Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379
(9th Cir. 1983). A federal court is presumed to lack subject
matter jurisdiction until the plaintiff establishes
otherwise. See Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375 (1994); see also Stock West,
Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th
Cir. 1989). Therefore, Skokomish bears the burden of
establishing subject matter jurisdiction. See Stock
West, 873 F.2d at 1225.
under Rule 12(b)(6) may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. See Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief that is plausible on its face.
See Aschcroft v. Iqbal, 566 U.S. 662, 678 (2009). A
claim has “facial plausibility” when the party
seeking relief “pleads factual content that allows the
Court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 566 U.S. at 678 (citing Twombly).
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, a court may deny
leave to amend. See Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
Article III Standing
argue the Court lacks subject matter jurisdiction because
Skokomish failed to establish causation or redressability
with respect to any concrete injury. It argues no Suquamish
Tribe members hunted or acquired game within Skokomish
territory or diminished Skokomish's Treaty resources. It
also argues any effective order must bind the Suquamish Tribe
and other Stevens Treaty Tribes not party to this case, but
because these indispensable parties cannot be joined due to
sovereign immunity, the Court cannot redress Skokomish's
asserts Defendants' unlawful hunting regulations caused
actual, potential, and future loss of its Treaty resources,
and diminished its self-governance powers. It claims ongoing
economic harm, including expenditure of Skokomish's
resource management funds to mitigate Defendants'
unlawful authorization of hunting in Twana Territory.
Skokomish also argues Defendants' regulations essentially
unlawfully clouded title to Skokomish's Treaty resources.
Skokomish claims its requested relief will only operate
against the named defendants, not the Suquamish Tribe or
other signatory tribes because its primary hunting right in
Twana Territory is settled law.
party invoking federal jurisdiction, Skokomish bears the
burden of establishing standing under Article III's cases
and controversy requirement. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). Skokomish must
demonstrate that it suffered or is “imminently
threatened with a concrete and particularized ‘injury
in fact' that is fairly traceable to the challenged
action of the defendant and likely to be redressed by a
favorable judicial decision.” Lexmark Intern., Inc.
v. Static Control Components, Inc., 134 S.Ct. 1377,
1386(2014). Despite having the ultimate burden at trial,
“[a]t the pleadings stage, general factual allegations
of injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we ‘presum[e] that
general allegations embrace those specific facts that are
necessary to support the claim.'” Lujan,
504 U.S. at 561 (quoting Lujan v. National Wildlife
Federation, 497 U.S. 871, 889 (1990)).
establish causality, Skokomish must prove its injuries are
“causally linked or fairly traceable” to
Defendants' unlawful hunting regulations “and not
the result of misconduct of some third party not before the
Court.” See Washington Environmental Council v.
Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013). Causation
will lacks constitutional muster “where the causal
chain involves numerous third parties whose independent
decisions collectively have a significant effect on