United States District Court, W.D. Washington
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
J. BRYAN United States District Judge
matter comes before the Court on cross motions for summary
judgment filed by the defendants, State of Washington and
Robert W. Ferguson (“the State”) (Dkt. 26) and
the plaintiff, Stillaguamish Tribe of Indians (“the
Tribe”) (Dkt. 28). The Court has considered the
pleadings filed by the parties, oral argument held on August
4, 2017, and the remainder of the file herein.
primary-and ultimately dispositive-issue before the Court is
the enforceability of a sovereign immunity waiver in a
contract, Salmon Project Agreement 04-1634, which was signed
by Mr. Pat Stevenson, an employee and non-member of the
Tribe. For the reasons discussed below, the Court finds that
summary judgment should be granted against the State and in
favor of the Tribe, because the Tribe did not unequivocally
waive its sovereign immunity.
parties agree that the facts are largely undisputed. All
facts recited are either agreed or unrefuted by the record.
The Tribe, its constitution, and governing body.
Stillaguamish Tribe of Indians Tribe gained federal
recognition in 1976. The Tribe is governed by its
Constitution. Dkt. 27-2 (Decl. Latsinova, Ex. B). Under
Article VII of the Tribe's constitution, a six-member
Board of Directors has “power and duties”
“includ[ing] but not limited” to the following:
(b) To administer the affairs and assets of the tribe
including tribal lands, funds, minerals, timber, water
rights, fishing rights, and other resources under appropriate
contracts, leases, permits, loans, or sale agreements.
(f) To negotiate with and represent the tribe before Federal,
State, tribal, and local governments and their departments
and agencies, and to advise and consult with representatives
of the Department of the Interior of all activities of the
Department that may affect the Stillaguamish Tribe.
(g) To appoint necessary committees.
(h) To have and exercise such other powers and authority
necessary to fulfill its obligations, responsibilities,
objectives, and purposes as the governing body of the tribe,
except as limited by other provisions of this Constitution. .
Id. The constitution gives the Chairperson of the
Board “any authority delegated to him/her by the Board
of Directors.” Dkt. 27-2 (Decl. Latsinova, Ex. B. Dkt.
Shawn Yanity was Chairperson of the Board from 2004 to 2009
and 2010 to present.Dkt. 29 at 1, 2 (2nd Decl.
Yanity, ¶¶1, 4). At the relevant time during 2005,
Mr. Edward Goodridge, Jr. was Vice-Chairperson of the Board
and the Tribe's Executive Director. Dkt. 10 at ¶5
Salmon Project Agreement No. 04-1634 and the Centennial
Stevenson has been the Tribe's Environmental Engineer for
approximately 30 years. Mr. Stevenson is not an enrolled
member of the Tribe and is therefore not eligible to be a
Director. Dkt. 10 at ¶5 (Decl. Yanity). On April 6,
2005, Mr. Stevenson signed Salmon Project Agreement No.
04-1634. Dkt. 27-1 (Decl. Latsinova, Ex. B).
is no written record, either in the form of Board meeting
minutes or resolutions, that the Board considered Salmon
Project Agreement No. 04-1634. Dkt. 31 (Decl. Connolly,
¶¶2, 3). Mr. Stevenson testified that he
“approached the executive director of the Tribe . . .
Ed Goodridge, Jr.” about signing the agreement. Mr.
Goodridge instructed Mr. Stevenson to sign the agreement
because, per Mr. Stevenson, “it was to the point of
I'm not going to be around for the next week, to go ahead
and sign it.” Dkt. 27-13 at 7, 8 (Decl. Latsinova, Ex.
M, 88-17-89:3). The Chairperson, Mr. Yanity, was apparently
also absent. See Dkt. 27-13 at 11 (Decl. Latsinova,
Ex. M, 104:9).
Project Agreement No. 04-1634 (Dkt. 27-1, Decl. Latsinova,
Ex. A) sets out contractual obligations of the Tribe and the
Salmon Recovery Funding Board (SRFB), the entity responsible
for administering the Salmon Funding Accounts for the State
of Washington. In consideration for a state grant of $497,
000, the Tribe, referred to in the agreement as the
“Sponsor, ” was to execute a project entitled,
“Steelhead Haven Landslide Remediation.”
sections of Salmon Project Agreement No. 04-1634 are
pertinent to this case.Section 5, the indemnification clause,
To the fullest extent permitted by the law, the Sponsor
expressly agrees to and shall indemnify, defend and hold
harmless the State . . . against all claims, actions, costs,
damages, or expenses of any nature arising out of or incident
to the Sponsor's or any Contractor's performance or
failure to perform the Agreement.
Id. Section 41, which could be referred to as the
waiver clause, provides:
cases where this agreement is between the Funding Board and a
federally recognized Indian tribe, the following Governing
A. The State of Washington agrees that it shall initiate any
lawsuit . . . in Federal Court. Interpretation shall be
according to the law of the State of Washington. . . The
parties agree to venue in Thurston County Superior Court [in
the event that the Federal Court lacks subject matter
B. Any judicial award, determination, order, decree or other
relief, whether in law or equity or otherwise, resulting from
the action shall be bending and enforceable. Any money
judgment against the Tribe, tribal officers and members, or
the State of Washington . . . may not exceed the ...