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Comenout v. Pittman

United States District Court, W.D. Washington, Tacoma

December 14, 2017

ROBERT REGINALD COMENOUT, SR. and EDWARD AMOS COMENOUT III, Plaintiffs,
v.
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 (6)

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         THIS 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.

         I. BACKGROUND

         A. The Complaint.

         The 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 assessments.” Id.

         The 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 exemption.
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.

         B. Declaration of Plaintiff Robert R. Comenout, Sr.

         Plaintiffs' 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.

         C. Defendant Johnson's Motion to Dismiss.

         Defendant 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 Johnson ...


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