United States District Court, W.D. Washington, Tacoma
ROBERT REGINALD COMENOUT, SR. and EDWARD AMOS COMENOUT III, Plaintiffs,
REILLY PITTMAN, CYNTHIA KEIRSEY, ERIC BELIN, AL ANDERSON, KANDRA TINNERSET, and PAUL W. JOHNSON, Defendants.
ORDER ON DEFENDANT PAUL W. JOHNSON'S MOTION TO
DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1), AND
J. BRYAN UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Paul W.
Johnson's Motion to Dismiss Pursuant to Fed.R.Civ.P.
12(b)(1), and (6). Dkt. 103. The Court has considered the
motion, Plaintiffs' Response (Dkt. 105), Defendant
Johnson's Reply (Dkt. 108), the Fourth Amended Complaint
(Dkt. 79), and the remainder of the file herein.
Fourth Amended Complaint (“Complaint”) is alleged
by Plaintiff Robert Reginald Comenout Sr. and Plaintiff
Edward Amos Comenout III, who are enrolled in the Tulalip
Indian Tribe and Muckleshoot Tribe of Indians, respectively.
Dkt. 79 at ¶4. The Complaint names as a defendant Paul
W. Johnson, “in his official capacity in order to
obtain a prospective injunction against licensing or taxing
Plaintiffs.” Id. at ¶21. It is alleged
that Defendant Johnson is “the Program Manager of the
Prorate and Fuel Tax Services of the Washington Department of
Licensing (DOL) that has jurisdiction of licensing and taxing
Complaint alleges five claims, but it appears that only Claim
Five pertains to Defendant Johnson. See Dkt. 79 at
¶¶22-37. Like the other claims, Claim Five builds
upon the allegation that the defendants have restricted
Plaintiffs' use of Public Domain Allotment 130-1027
(“the Allotment”), a plot of land that the
Complaint alleges is Indian Country and not subject to State
taxation. See Id. at ¶1-4. Claim Five alleges:
Plaintiffs intend to import fuel shipped to the Allotment for
use by Plaintiffs and/or eventual sale to retail customers.
All safety and fuel storage rules will be observed.
On May 26, 2017, Plaintiff Edward Amos Comenout III
personally appeared at the Olympia office of Paul W. Johnson
. . . seeking to obtain exemptions to allow a Yakama Nation
member to transport motor fuel to the Allotment. He was
denied and [sic] opportunity to obtain any
Therefore, Plaintiffs request a ruling that Yakama Indian
distribution of motor fuel from Oregon to the Allotment (1)
for personal use of Plaintiffs and or [sic] (2) sale
at retail may be accomplished without stoppage en route by
the state agents or employees, the Department of Licensing,
Department of Revenue or the State Liquor and Cannabis Board
and without Washington State tax or licensing fees being
assessed or collected.
Dkt. 79 at ¶37. The Prayer for Relief on Claim Five
similarly seeks a declaration that Plaintiffs “may
import motor fuel transported from Oregon on the Yakama
Indian Reservation by Yakama Indian distributors, ” for
both Plaintiffs' personal use and retail use on the
Allotment, “without state interference, without
obtaining motor fuel licenses and fee of any state motor
vehicle gas tax.” Id. at p.22 ¶5.
Declaration of Plaintiff Robert R. Comenout, Sr.
Response to Defendant Johnson's motion to dismiss
incorporates a declaration by Plaintiff Robert R. Comenout,
Sr. Dkt. 105-1. The Declaration gives an overview of the
history to the Allotment, including a personal narrative of
“raids” by the State and local government of a
convenience store on the property. According to the
declaration, the Allotment has been raided of cigarettes,
fireworks, and liquor and proceeds therefrom. Id.
Defendant Johnson's Motion to Dismiss.
Johnson brings his motion under Fed.R.Civ.P. 12(b)(1) and
(6), raising four separate grounds for dismissal: (1)
Plaintiffs lack Article III standing and their claims are not
ripe; (2) the Tax Injunction Act, 28 U.S.C. §1341, bar
Plaintiffs' claims; (3) the suit is barred by the
Eleventh Amendment, because the claim against Defendant