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Skokomish Indian Tribe v. Forsman

United States District Court, W.D. Washington

March 23, 2017

LEONARD FORSMAN, et al., Defendant.



         THIS 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 Purser, Jr.

         Skokomish 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.[1]

         In 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.

         Defendants 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.

         Skokomish 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.


         A. Standard of Review

         A 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.

         Dismissal 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, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 566 U.S. at 678 (citing Twombly).

         On a 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).

         B. Article III Standing

         Defendants 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 alleged injury.

         Skokomish 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.

         As the 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)).

         To 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 ...

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