United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO DISMISS
J. BRYAN United States District Judge.
MATTER comes before the Court on the Motion to Dismiss filed
by the remaining named defendants, Boyd Goodpastor, J. Mark
Keller, and Lee Boling. Dkt. 65. The Court has considered the
motion, Plaintiffs' Response (Dkt. 68), the remaining
named defendants' Reply (Dkt. 69), and the remainder of
the file herein.
have made several attempts to amend the original Complaint
(Dkt. 1), without success. See Dkt. 26, 33, 35, 42,
43, 44, 46, 63. The Court has denied motions for leave to
amend the Complaint without prejudice. Dkts. 42, 63. The
Complaint still controls.
Complaint names multiple defendants, the following of which
have been dismissed either voluntarily by Plaintiffs or by
order of the Court: Pierce County Superior Court, Washington
State Liquor and Cannabis Control Board, Washington State
Department of Revenue, Joshua Choate, Michael Pellicciotti,
and Judges John Doe and Jane Doe. Dkts. 17, 18. The remaining
named defendants, Boyd Goodpastor, J. Mark Keller, and Lee
Boling, filed this motion to dismiss. See Dkt. 65.
Complaint centers on Plaintiffs' commercial activities on
Public Domain Allotment 130-1027 (“the
Allotment”), which Plaintiffs allege is Indian Country
and not subject to taxation by the State of Washington. Dkt.
1 at 1. Law enforcement “raided the convenience store
on the [A]llotment and criminally charged” four of the
plaintiffs “with violating the state of Washington
cigarette tax law.” Dkt. 1 at ¶26. These
plaintiffs entered Alford pleas in May of 2016 and have
appealed their state court convictions. Id. The
remaining plaintiff, Edward Amos Comenout III, who is
allegedly a joint owner of the Allotment, “has never
been accused or charged in any with any participation in the
convenience store operation on the [A]llotment.” Dkt. 1
at ¶34. Much of the Complaint seeks to hold liable the
prosecutors and judges involved in the state proceedings.
See, e.g., Dkt. 1 at ¶¶27-29, 32.
to the remaining named defendants, the Complaint alleges only
30. Boyd Goodpaster and Lee Boling are employees . . . of the
Washington State Liquor and Cannabis Control Board. They each
personally investigated and coordinated prosecution of
Plaintiffs beyond territorial [sic] and without
personal jurisdiction over Plaintiffs.
31. Officer J. Mark Keller has issued several affidavits
against Plaintiff as an agent on loan to the state of
Washington. His affidavits have recited legal principles but
have failed to give a correct statement of the application of
the state cigarette tax law to Indians, thereby misleading
courts to issue invalid search warrants.
Dkt. 1 at ¶¶30, 31 (emphasis added). The remaining
named defendants are each named in their professional
Complaint alleges three claims, the second of which is
alleged only against dismissed defendants. See Dkt.
1 at ¶64. The First Claim seeks “declaratory and
injunctive judgment” on approximately eighteen separate
grounds. Dkt. 1 at ¶¶60-63. Common to all relief
sought is the premise that Plaintiffs should be able to use
the Allotment for commercial purposes without interference
from the State of Washington. See Dkt. 1 at
¶¶60-63. For example, the Complaint seeks
declaratory judgment that federal law applies to Indian
activities on the Allotment (¶60.2); that
“Defendants have no personal jurisdiction of
Plaintiffs' activity” on the Allotment, except for
certain crimes (¶60.4); that the “exclusive
jurisdiction over the [A]llotment is in the United States
Congress” (¶60.6); and that the State of
Washington “has no right to control or tax buildings or
the revenue” on the Allotment (¶63.8). The First
Claim also seeks declaratory judgment relating to pending
state criminal proceedings, for example, when requesting that
“state court actions in the prosecutions listed . . .
be dismissed for lack of jurisdiction (¶63.1), and that
“no jurisdiction existed to issue a state court warrant
for their arrests” (¶63.2). Finally, the First
Claim seeks declaratory and injunctive relief as to
“industrial Hemp, ” specifically, that
“commerce in marijuana now allowed in the State of
Washington is legally allowed on the [A]llotment.” Dkt.
1 at ¶63.10.
Third Claim, which is one paragraph in length, requests that
“the Court enjoin the Defendants . . . from any and all
actions in the future [that are] preempted by federal law . .
. or . . . from enforcing the laws ...