1 John M. Peebles (SBN 237582) Steven J. Bloxham … · ii defendants’ notice of motion and...

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DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS AND

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT CASE NO. 3:13-cv-04825-RS

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FREDERICKS PEEBLES

& MORGAN LLP

2020 L ST., STE 250 SACRAMENTO, CA 95811

John M. Peebles (SBN 237582)

Steven J. Bloxham (SBN 96384)

James Qaqundah (SBN 270700)

Fredericks Peebles & Morgan LLP

2020 L Street, Suite 250

Sacramento, CA 95811

Telephone: (916) 441-2700

Facsimile: (916) 441-2067

[email protected]

[email protected]

Robert Rosette (SBN 166403)

Alex Lozada (SBN 275416)

Rosette, LLP 193 Blue Ravine Rd., Suite 255 Folsom, California 95630 (916) 353-1084 (Office) (916) 353-1085 (Fax) [email protected] [email protected]

Gregory T. Fayard (SBN 212930)

KLINEDINST PC

801 K Street, Suite 2100

Sacramento, CA 95814

Telephone: (916) 444-7573

Facsimile: (916) 441-7544

[email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION JOHN P. ANDERSON, in his official capacity as the Sheriff of Madera County, and individually, Plaintiff(s), v. JACK DURAN, JR., et al., Defendants.

Case No. 3:13-CV-04825-RS DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: June 12, 2014 Time: 1:30 p.m. Ctrm: 3 Judge: Hon. Richard Seeborg

Case3:13-cv-04825-RS Document191 Filed04/17/14 Page1 of 31

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TABLE OF CONTENTS

Table of Authorities .............................................................................................................................. iii

Notice of Motion and Motion ................................................................................................................ 1

Memorandum of Points and Authorities ................................................................................................ 1

I. Introduction ..................................................................................................................................... 1

II. Statement of Facts ....................................................................................................................... 3

III. Argument .................................................................................................................................... 9

A. Standard for Motion for Judgment on the Pleadings .................................................................. 9

B. 28 U.S.C. Section 1362 does not provide the federal courts with jurisdiction over a case

brought by a non-Indian Plaintiff...................................................................................................... 11

C. This Court lacks jurisdiction to adjudicate the Tribe’s internal leadership dispute and lacks

subject matter jurisdiction under 28 U.S.C. § 1331. ......................................................................... 11

D. The Tribe has sovereign immunity from suit, which was not waived for purposes of this case

by the 2007 MOU or Settlement Agreement. ................................................................................... 14

1. The instant case does not arise under the 2007 MOU because the Lewis Faction’s Lawsuit

did not relate to the subject matter of the 2007 MOU. .................................................................. 14

2. The instant case does not arise under the 2007 MOU because the Lewis Faction’s actions are

not attributable to the Tribe, the signatory of the document, without adjudicating the intra-Tribal

dispute. .......................................................................................................................................... 17

E. The instant action is moot and therefore must be dismissed for lack of subject-matter

jurisdiction. ....................................................................................................................................... 18

1. Legal Standard of Mootness .................................................................................................. 18

2. The instant case is moot. ....................................................................................................... 19

F. Plaintiff is not entitled to any costs or attorney fees under the Settlement Agreement. ........... 23

IV. Conclusion ................................................................................................................................ 24


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TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) ................................................................. 21

Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006) ............................................................ 14

Alturas Indian Rancheria v. Salazar 2011 WL 587588 (E.D. Cal., Feb. 9, 2011) .............................. 12

Alvarez v. Smith, 558 U.S. 87 (2009) ............................................................................................. 18, 19

Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) .... 19

Back v. Sebelius, 684 F.3d 929 (9th Cir. 2012).................................................................................... 18

Branch v. Tunnell, 14 F.3d 449 (9th Cir.1994) .............................................................................. 10, 20

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................... 11

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) ...... 18

Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir. 2005) .................................................... 18

Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012 (7th Cir. 1999) .......................................... 20

Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 (9th Cir.1989) .................. 9, 10

Hall v. Beals, 396 U.S. 45 (1969) ........................................................................................................ 18

Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971 (9th Cir.1999) .............................................. 10

In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Lit., 340 F.3d 749 (8th Cir. 2003) .. 13

Kiowa Tribe of Oklahoma v. Manuf. Tech., Inc., 523 U.S. 751 (1998) ............................................... 14

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ...................................................... 11

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................... 18, 19

McCullough v. Graber, 726 F.3d 1057 (9th Cir. 2013) ................................................................. 19, 20

McGlinchy v. Shell Chemical Co., 845 F.2d 802 (9th Cir.1988) ......................................................... 10

Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976).................................................. 2

Morgan v. Cnty. of Yolo, 436 F. Supp. 2d 1152(E.D. Cal. 2006) .................................................... 9, 10


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National Farmers Union v. Crow Indian Tribe, 471 U.S. 845 (1985) ........................................ 2, 6, 12

Picayune Rancheria of Chukchansi Indians v. Henriquez, 2013 WL 6903750 (D. Ariz. Dec. 31,

2013) ................................................................................................................................................. 13

Powell v. McCormack, 395 U.S. 486 (1969) ....................................................................................... 19

Qwest Commc’ns Corp. v. City of Berkeley, 208 F.R.D. 288 (N.D. Cal. 2002) .................................. 10

Ransom v. Babbitt, 69 F.Supp.2d 141 (D.D.C. 1999) .......................................................................... 12

Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v. Bureau of Indian Affairs, 439 F.3d 832

(8th Cir. 2006)................................................................................................................................... 13

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .......................................................................... 11

Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d 1094 (N.D. Cal. 2005) ....................................... 10

United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199 (1968) ................................. 20, 21

United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003) ........................................................................ 10

Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933 (9th Cir. 2012) ................................................. 18

Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................. 18

Statutes

28 U.S.C. § 1331 ........................................................................................................................... passim

28 U.S.C. Section 1362 ............................................................................................................ ii, 1, 2, 11

Cal. Const., Art. V, §13 ........................................................................................................................ 15

Cal. Const., Art. XI, §§ 1(b), 4(c) ........................................................................................................ 15

U.S. Const. amend I ....................................................................................................................... 22, 23

U.S. Const. Art. III ............................................................................................................................... 18

Rules

Fed. R. Civ. P. 56(a) ............................................................................................................................. 10

Fed. R. Civ. Pro. 12(c) ....................................................................................................................... 1, 9

Fed. R. Civ. Pro. 12(d) ......................................................................................................................... 10

Rule 12(b)(6) .................................................................................................................................... 9, 10

Rule 56(c) ............................................................................................................................................. 10


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Regulations

25 C.F.R. § 2.6 ....................................................................................................................................... 7

25 C.F.R. Part 2 ...................................................................................................................................... 8

43 C.F.R. Part 4 ...................................................................................................................................... 8


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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION JOHN P. ANDERSON, in his official capacity as the Sheriff of Madera County, and individually, Plaintiff(s), v. JACK DURAN, JR., et al., Defendants.

Case No. 3:13-CV-04825-RS DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: June 12, 2014 Time: 1:30 p.m. Ctrm: 3 Judge: Hon. Richard Seeborg

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that at the date, time, and place noted above, pursuant to Fed. R.

Civ. Pro. 12(c), Defendants the Picayune Rancheria of the Chukchansi Indians (“Tribe”), Chukchansi

Economic Development Authority (“CEDA”), Chukchansi Indian Housing Authority (“CIHA”),

Reggie Lewis, Chance Alberta, Carl Bushman, Irene Waltz, Lynn Chenot, David Castillo, Melvin

Espe, Jack Duran, and Donna Howard, will move the Court for judgment on the pleadings.

Defendants move this Court to dismiss this action as to all claims and all defendants. This

motion is made on the grounds that this Court does not have subject matter jurisdiction over

Plaintiff’s claims, and that if it ever did, all such claims are now moot. The motion is based upon this

Notice of Motion and Motion, the Memorandum of Points and Authorities in Support, all orders,

papers, and pleadings filed in this action, together with such argument upon the motion as may be

offered at the hearing thereon.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff asserts that this Court has jurisdiction over his claims in this action pursuant to 28

U.S.C. §§ 1331 and1362. However, section 1362 by its terms only provides the federal courts with


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jurisdiction over federal question cases brought by an Indian tribe. See, e.g., Moe v. Confederated

Salish & Kootenai Tribes, 425 U.S. 463 (1976). Because Plaintiff is not an Indian tribe, section 1362

cannot provide this Court with jurisdiction. Nor is any federal question presented in this case that

might provide this Court with jurisdiction under section 1331.

Plaintiff is correct that a challenge to the exercise of jurisdiction by an Indian tribal court over

a non-Indian may present a federal question under section 1331, where the challenge is based upon

the assertion that the tribal court has exercised authority beyond that allowed under the federal

common law. See, e.g., National Farmers Union v. Crow Indian Tribe, 471 U.S. 845 (1985).

However, the pleadings in this case demonstrate that such is not the case in this present action. Such

a federal question can only be presented where the court in question is alleged to be an Indian tribal

court exercising the inherent sovereign powers of an Indian tribe. But Plaintiff does not allege that

the putative court of whose exercise of jurisdiction he complains (the “Lewis Faction Tribunal”) is a

duly constituted court of an Indian tribe. On the contrary, he alleges and continues repeatedly to

claim that the putative court is not a duly constituted Indian tribal court. Further, even if Plaintiff did

assert that the Lewis Faction Tribunal were a duly constituted Indian tribal court, because this Court

lacks jurisdiction to adjudicate the intra-Tribal dispute, this Court cannot adjudicate whether the

Lewis Faction Tribunal was a duly constituted court of the Tribe. Therefore on the facts of this case,

this Court cannot exercise jurisdiction over Plaintiff’s claims pursuant to section 1331.

In addition, the Tribe has sovereign immunity from suit and it has not waived that immunity.

Although Plaintiff alleges that it does, Plaintiff’s claims in this action cannot and do not arise out of

the subject matter of the 2007 Memorandum of Understanding between the Tribe and Madera County

(“2007 MOU”), and the Tribe’s waiver of sovereign immunity in the 2007 MOU cannot and does not

apply in this case. Further, even if Plaintiff’s allegations did implicate the subject matter of the 2007

MOU, this Court still would need to adjudicate the intra-Tribal dispute in order to determine that the

Tribe itself undertook (either directly or through its agents) any of the actions of which Plaintiff

complains, in order to grant Plaintiff any relief in relation to the 2007 MOU, a determination outside

of this Court’s jurisdiction.


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Nor can this Court have ever had subject matter jurisdiction over the individually named

Defendants in this action. While the respective tribal court judge or judges (but not the court clerks)

are sometimes individually named in a National Farmers Union action, which would challenge an

Indian tribal court’s exercise of jurisdiction, Plaintiff in this case has expressly pleaded that Judge

Duran is not a duly tribally-authorized judge of a duly constituted Indian tribal court. And the other

individual Defendants are not alleged to have done anything more than having purported to constitute

an Indian tribal court on behalf of the Tribe whom they claim to represent, and to file a lawsuit

against Plaintiff in that court, neither of which has ever been held to raise a federal question, even

where the officials unquestionably were duly authorized officials of an Indian tribe.

Even if this Court had subject matter jurisdiction over Plaintiff’s claims at the commencement

of this action, those claims have since become moot. What remains is nothing more than Plaintiff’s

attempt to encompass actions outside of the claims he pleaded that do not amount to the exercise of

Indian tribal judicial jurisdiction over which a federal court would have jurisdiction under National

Farmers Union, and which themselves do not give rise to any federal law-based cause of action.

Plaintiff’s attempt in this regard amounts to an advisory opinion on a theoretical legal issue that is

divorced from any actual facts.

For these reasons, Defendants respectfully request that this Court grant Defendants’ Motion

for Judgment on the Pleadings, and dismiss the entire action for lack of subject-matter jurisdiction.

II. STATEMENT OF FACTS

The Tribe has been embroiled in an intra-Tribal leadership dispute since December 2011.

Complaint, ¶ 7. At the times relevant to Plaintiff’s Complaint, the intra-Tribal dispute has involved

three factions, the Lewis Faction, the Reid Faction, and the Ayala/McDonald Faction1, none of which

is or has been recognized by the Bureau of Indian Affairs (“BIA”) in a decision that has gone into

1 The Ayala/McDonald Faction is the most recent iteration of a Tribal Faction that was once referred to as “the Ayala

Faction.” Nancy Ayala was thrown out or otherwise left the faction, and Tex McDonald is now claiming to be chair of

that faction. The Faction is now referred to as the Ayala/McDonald Faction. It is not clear, however, which individuals

are claimed to comprise the Ayala/McDonald Faction beside Mr. McDonald. This brief refers to the Ayala Faction as it

existed prior to February 2013 as a matter of historical record, and refers to the current faction as the Ayala/McDonald

Faction.


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effect. Complaint, ¶ 6; Answer, ¶ 6. However, on February 11, 2014, the BIA Pacific Regional

Director, Amy Dutschke, issued a decision regarding the intra-Tribal dispute (“BIA Decision”). BIA

Decision, RJN, Exhibit B. Although the BIA Decision has been appealed and has not gone into

effect, it provides an authoritative description of much of the course of the intra-Tribal dispute, which

is summarized below.

Prior to the dispute, the Tribal Council consisted of members of the Reid, Lewis, and Ayala

Factions: Reggie Lewis, Chance Alberta, Morris Reid, Dora Jones, Nancy Ayala, Jennifer Stanley,

and Nokomis Hernandez (“the Last Undisputed Tribal Council”). BIA Decision (RJN Exhibit B), at

6 (unnumbered). The Tribe consists of approximately 1,000 Tribal members.

The Tribal dispute began in December 2011, after the Reid Faction garnered the highest

number of votes for the majority of Tribal Council seats in an annual December 3, 2011 Tribal

election, which was duly-called and conducted by the Last Undisputed Tribal Council. BIA Decision

(RJN Exhibit B), at 3 (unnumbered). However, the Lewis and Ayala Faction collectively disputed

the 2011 Tribal election, claiming that one member of the Reid Faction, Harold M. Hammond, Sr.,

was not qualified to hold a seat on the Tribal Council. The Reid Faction contended that it was

lawfully seated at the December 26, 2011 Tribal Council meeting. The Lewis and Ayala Factions

however disputed the seating of the Reid Faction and remained in de facto control of the Tribe’s

governance and assets, giving rise to the leadership dispute. BIA Decision (RJN Exhibit B), at 3

(unnumbered).

On December 7, 2012, the Lewis and Ayala Factions together held an election, in which

members of the Lewis and Ayala Faction were purportedly elected. See BIA Decision (RJN Exhibit

B), at 4 (unnumbered). As a result of their election, the Lewis and Ayala Factions claimed that the

Tribal Council consisted of members of the Ayala Faction and the Lewis Faction: Nancy Ayala,

Tracy Brechbuehl, Karen Wynn, Carl Sargosa, Reggie Lewis, Chance Alberta, and Charles “Buzz”

Bushman. BIA Decision (RJN Exhibit B), at 4 (unnumbered). The Reid Faction disputed the Lewis

and Ayala Factions’ election on several grounds, including that it was not conducted by the legitimate


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Tribal government and therefore was not a legitimate Tribal election. See BIA Decision (RJN

Exhibit B), at 4 (unnumbered).

In February 2013, the alliance between the Lewis and Ayala Factions disintegrated, giving

rise to the separate Lewis Faction and what then became known as the Ayala/McDonald Faction.

BIA Decision (RJN Exhibit B), at 4 (unnumbered). The split between the Lewis and

Ayala/McDonald Factions was the result of the Ayala/McDonald Faction unilaterally declaring,

through no legitimate process or authority, that the Tribe only consists of forty-six (46) “legally-

enrolled” Tribal members and declaring itself the governing body of that “46-member Chukchansi

tribe.” BIA Decision (RJN Exhibit B), at 4 (unnumbered); Authorities on stand-by at Chukchansi

tribal offices, ABC30 (Feb. 27, 2013) (“Nancy Ayala said, ‘We are not saying that there are not

hundreds of members, but the point is that there are legally enrolled members that meet all three

criteria of our membership.’”).2 The Ayala/McDonald Faction claimed that it had unilaterally

“removed” six of the seven members of the Lewis and Ayala Faction’s “Tribal Council,” everyone

except Nancy Ayala, and “appointed” six members of the Ayala/McDonald Faction. The Lewis

Faction disputed the actions of the Ayala/McDonald Faction and claimed to replace the Ayala

Faction members. The Reid Faction continued to dispute the actions of the Lewis Faction and the

Ayala/McDonald Faction, claiming them both invalid. The Ayala/McDonald Faction took physical

control over the Tribe’s Casino and Tribal offices on or around February 23, 2013. See Complaint, ¶

72.

Plaintiff Sheriff John Anderson allowed the Ayala/McDonald Faction to remain in physical

control of the Tribe’s Casino and offices. Complaint, ¶ 72. Sheriff Anderson stated he was

remaining neutral because the BIA had not officially recognized any faction. Complaint, ¶ 72. Later,

Sheriff Anderson stated that he relied on the BIA Central Agency Superintendent’s May 16, 2013

decision recognizing the Ayala Faction, despite the fact that the decision never went into effect.

Complaint, ¶¶ 99, 104; Declaration of John P. Anderson (Dkt. # 137-2), at ¶ 7. That decision has

2 A true and complete copy of the News Article is attached to the Request for Judicial Notice as Exhibit F. The article is

also available at http://abclocal.go.com/kfsn/story?section=/local&id=9010009.


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since been vacated on appeal by the BIA Regional Director in her February 11, 2014 Decision. See

BIA Decision (RJN Exhibit B), at 6 (unnumbered). The Lewis Faction protested that Sheriff

Anderson’s “inaction” amounted to siding with the Ayala/McDonald Faction because the practical

result of Sheriff Anderson’s position was to protect the Ayala/McDonald Faction’s physical control

of the Tribe’s Offices and Casino.

After the breakup of the Lewis and Ayala/McDonald Factions, both the Lewis Faction and the

Ayala/McDonald Faction created separate tribunals and appointed judges to their respective tribunals.

Complaint, ¶ 113. Both the Lewis Faction and the Ayala/McDonald Faction claimed that its own

tribunal was the Tribe’s “tribal court.” Complaint, ¶ 13. The Tribe had never established a Tribal

Court prior to the Tribal leadership dispute.

The Ayala/McDonald Faction’s tribunal issued orders against several third parties, including

several banks, purporting to declare the Ayala/McDonald Faction to be the Tribe’s governing body

and purporting to order the third parties to comply with any and all instructions from the

Ayala/McDonald Faction. Complaint, ¶ 114. The Ayala/McDonald Faction filed multiple actions

against those third parties in federal courts, including two actions in the United States District Court

for the Eastern District of California, Picayune Rancheria of the Chukchansi Indians v. Rabobank,

No. 12-cv-00609 (E.D. Cal. action filed Apr. 25, 2013) and Picayune Rancheria of the Chukchansi

Indians v. Yosemite Bank, No. 13-cv-00831 (E.D. Cal. action filed May 30, 2013). In each of those

actions, the Ayala/McDonald Faction attempted to convince the federal court to enforce its “tribal

court” orders. See id. Both of these Ayala/McDonald Faction’s actions were dismissed by the

federal district court on July 19, 2013 and September 13, 2013, respectively. Id.

The Lewis Faction’s tribunal also issued orders against third parties, purporting to declare the

Lewis Faction to be the Tribe’s governing body and purporting to order the third parties to comply

with any and all instructions from the Lewis Faction. Complaint, ¶ 114. At issue in this case, the

Lewis Faction filed an action in its own tribunal against Plaintiff Sheriff Anderson (“Lewis Faction

Lawsuit”). See Complaint, ¶ 1. On or around August 6, 2013, Defendant Duran, the judge of the


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Lewis Faction Tribunal, issued a “temporary restraining order” against Sheriff Anderson (“August 6,

2013 TRO Order”), which included several directives to Sheriff Anderson. Complaint, ¶ 2.

On May 16, 2013, the BIA Central California Agency Superintendent, Troy Burdick, issued a

decision (“Burdick Decision”) recognizing the Lewis and Ayala Factions’ 2012 election and

recognizing the seven-member tribal council claimed by those factions after the election, consisting

of Nancy Ayala, Reggie Lewis, Tracy Brechbuehl, Karen Wynn, Chance Alberta, Charles Sargosa,

and Buzz Bushman. See Complaint, ¶ 99; Burdick Decision, Complaint, Exhibit 24. The Reid

Faction filed a timely appeal of the Burdick Decision to the Pacific Regional Director, and therefore

the Burdick Decision never went into effect. See BIA Decision (RJN Exhibit B); 25 C.F.R. § 2.6.

Nonetheless, the Ayala/McDonald Faction relied on the Burdick Decision and began calling itself the

“Quorum Council,”3 in reference to its position that it represented four of the seven individuals

identified by the non-effective Burdick Decision. See, e.g., Ayala/McDonald Faction’s Response to

Plaintiff’s Motion for Summary Judgment (Dkt. # 37), at 1.

On November 20, 2013, Defendant Duran, the Lewis Faction Tribunal’s judge, vacated the

August 6, 2013 TRO Order against Sheriff Anderson. Answer, ¶¶ 2, 10, 13, 37; RJN, Exhibit A. In

addition, Defendant Duran dismissed without prejudice the entire action against Sheriff Anderson. Id.

Prior to the November 22, 2013 hearing in this case, the Reid and Lewis Factions informed

the Court and the Parties that the two factions had reached an agreement, whereby the two factions

would jointly conduct an election on December 7, 2013, for the four Tribal Council seats whose

terms were expiring. Tribal law requires an election on the first Saturday of December each year for

the Tribal Council seats whose terms are expiring that year. Answer, at p. 2 n.1.

On December 7, 2013, the Reid and Lewis Factions conducted the Tribal election for the four

open Tribal Council seats. Reggie Lewis and Chance Alberta – from the Lewis Faction – and Morris

Reid and Dixie Jackson – from the Reid Faction – were elected in that election to the four open Tribal

Council seats, and those four individuals were seated on December 23, 2013. Answer, at p. 2 n.1.

3 The Ayala/McDonald Faction originally began calling itself the “Ayala Quorum Council” until Nancy Ayala was

removed or otherwise left the faction.


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The Ayala/McDonald Faction also held an election on December 7, 2013. Results of both elections

were forwarded to the BIA. BIA Decision (RJN Exhibit B), at 5 (unnumbered).

On February 11, 2014, the BIA Pacific Regional Director issued the BIA Decision. BIA

Decision (RJN Exhibit B). In the Decision, the Pacific Regional Director expressly rejected and

vacated the Burdick Decision and its recognition of the Lewis and Ayala/McDonald Faction’s

December 1, 2012 election, finding that the “record does not reflect that the December 1, 2012,

election resolved the pending leadership dispute . . . .” BIA Decision (RJN Exhibit B), at 4, 6

(unnumbered). The BIA Decision also found that it could not recognize either election conducted on

December 7, 2013. BIA Decision (RJN Exhibit B), at 5 (unnumbered). Because it could not

recognize any election that had occurred after November 2011, the Pacific Regional Director held

that, moving forward, the BIA would recognize the Last Undisputed Tribal Council on an interim

basis for government-to-government purposes. BIA Decision (RJN Exhibit B), at 6 (unnumbered).

The Last Undisputed Tribal Council includes members each from the Lewis, Reid, and Ayala

Factions: Reggie Lewis, Chance Alberta, Morris Reid, Dora Jones, Nancy Ayala, Jennifer Stanley,

and Nokomis Hernandez. BIA Decision (RJN Exhibit B), at 6 (unnumbered).

The Ayala/McDonald Faction filed a Notice of Appeal of the BIA Decision with the Interior

Board of Indian Appeals (“IBIA”), and therefore the BIA Decision has not yet gone into effect. See

25 C.F.R. Part 2. The BIA filed a motion to place its decision into immediate effect, pursuant to 25

C.F.R. Part 2 and 43 C.F.R. Part 4. BIA’s Request to Make February 11, 2014 Decision Effective

Immediately, RJN, Exhibit C. Both the Last Undisputed Tribal Council and the 2013 Elected

Lewis Tribal Council joined the BIA’s motion. The Ayala/McDonald Faction opposed the motion.

On April 15, 2014, the IBIA denied the Regional Director’s motion to place the decision into

immediate effect and upset the current status quo. Order Denying Motion to Place Regional

Director’s Decision into Immediate Effect, IBIA Docket No. 14-065 & Consol. (April 15, 2014),

RJN, Exhibit D.

The former Lewis and Reid Factions contend that the 2013 Tribal Election they conducted

resolved as a matter of Tribal law the intra-Tribal leadership dispute that had stemmed from the


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contested 2011 election. See Joint Status Report Providing Court an Update on All Matters by Reid

Faction, Lewis Faction, Jack Duran, Jr., and Donna Howard (Dkt. # 126). The 2013 Tribal Election

resulted in the “2013 Elected Lewis Council,” which consists of Reggie Lewis, Chance Alberta,

Dixie Jackson, Morris Reid, Carl “Buzz” Bushman, David Castillo, and Melvin Espe (“2013 Elected

Lewis Council”).4 Id. The former Lewis Faction, qua faction, ceased to exist after December 2013,

as did the former Reid Faction. In addition, the Last Undisputed Tribal Council recognized in the

BIA Regional Director’s February 11, 2014 Decision (which is not in effect) is separate and distinct

from each of the 2013 Elected Lewis Council, the former Lewis Faction Council, the former Reid

Faction Council, and the current Ayala/McDonald Faction Council.

The 2013 Elected Lewis Council filed an appeal of the BIA Decision’s holding that the BIA

would not recognize the Lewis and Reid Faction’s 2013 Tribal election, the merits of which will be

briefed along with the other appeals of the BIA Decision. 2013 Elected Lewis Council’s Notice of

Appeal, RJN, Exhibit E.

III. ARGUMENT

A. Standard for Motion for Judgment on the Pleadings

“The primary distinction between a Rule 12(b)(6) motion and a motion for judgment on the

pleadings is one of timing.” Morgan v. Cnty. of Yolo, 436 F. Supp. 2d 1152, 1155 (E.D. Cal. 2006)

aff’d, 277 F. App’x 734 (9th Cir. 2008). A motion for judgment on the pleadings may be brought at

any time after the pleadings are closed as long as the motion does not delay trial. Fed. R. Civ. Pro.

12(c). In this case, the Tribe filed an Answer (Dkt. # 130) on January 14, 2014, and no trial date has

been set.

Judgment on the pleadings is appropriate when, even if all material facts in the pleading under

attack are accepted as true, the moving party is entitled to judgment as a matter of law. Hal Roach

Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989). “Rules 12(b)(6) and

4 The 2013 Tribal election elected Reggie Lewis, Chance Alberta, Morris Reid, and Dixie Jackson to two-year terms

which are set to end on December 28, 2015. The election of those four individuals resolved the election dispute that arose

in December 2011 over the composition of the quorum of the Tribal Council. The remaining three seats were not up for

election in the December 7, 2013 election. Those three seats have terms which are set to end on December 22, 2014 with

the installation of Tribal Council Members elected in the Tribe’s annual election held on December 6, 2014.


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12(c) are substantially identical; both permit challenges to the legal sufficiency of the opposing

party’s pleadings.” Qwest Commc’ns Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal.

2002) (citing William W. Schwarzer et al., Federal Civil Procedure Before Trial, § 9:319).

Under either a 12(b) motion to dismiss or a 12(c) motion for judgment on the pleadings, “a

court must determine whether the facts alleged in the complaint, to be taken for these purposes as

true, entitle the plaintiff to a legal remedy.” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d 1094,

1097 (N.D. Cal. 2005) (citing William W. Schwarzer et al., Federal Civil Procedure Before Trial, §

9:319). If the Court finds that the moving party is entitled to judgment as a matter of law, “the

complaint should be dismissed or judgment granted on the pleadings.” Strigliabotti, 398 F. Supp. 2d

at 1097.

When one party to an action moves the court for judgment on the pleadings, the court will

accept as true the allegations of fact contained in the pleadings by the party opposing the motion and

will construe those facts in the light most favorable to that nonmoving party. McGlinchy v. Shell

Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). In addition, uncontested allegations to which the

other party had an opportunity to respond are taken as true. Qwest Commc’ns Corp., 208 F.R.D. at

291 (citation omitted). However, a document is not considered outside the pleadings “if the

complaint specifically refers to the document and if its authenticity is not questioned.” Branch v.

Tunnell, 14 F.3d 449, 453 (9th Cir.1994). Moreover, “[i]n addition to considering the allegations of

the complaint, like a motion under Rule 12(b)(6) the court may also take into account materials to

which it can take judicial notice” without converting the motion to a motion for summary judgment.

Morgan, 436 F.Supp.2d at 1155 (citing Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981

n.18 (9th Cir.1999)); United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).

If the court is to consider material outside the pleadings, the court may convert a 12(c) motion

for judgment on the pleadings to one for summary judgment and give all parties a reasonable

opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. Pro. 12(d); Hal

Roach Studios, Inc., 896 F.2d at 1550. “The court shall grant summary judgment if the movant


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shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.5 Fed. R. Civ. P. 56(a).

In this case, it is the Plaintiff’s burden to establish jurisdiction and standing. See Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is to be presumed that a cause lies

outside [the federal courts’] limited jurisdiction, . . . and the burden of establishing the contrary rests

upon the party asserting jurisdiction.”) (citations omitted). Because Plaintiff has failed to establish

that this Court possesses subject-matter jurisdiction. As discussed more fully below, Defendants are

entitled to judgment as a matter of law, both upon the pleadings and because no genuine issues of

material fact exist. Accordingly, the Court should grant Defendants’ motion and dismiss this action.

B. 28 U.S.C. Section 1362 does not provide the federal courts with jurisdiction over

a case brought by a non-Indian Plaintiff.

Plaintiff’s Complaint asserts that this Court possesses subject-matter jurisdiction pursuant to

28 U.S.C. § 1362. However, 28 U.S.C. § 1362 only provides the federal courts with jurisdiction over

“civil actions, brought by any Indian tribe or band with a governing body recognized by the

Secretary of the Interior.” 28 U.S.C. § 1362 (emphasis added); see also Moe, 425 U.S. at 474

(observing that the legislative history of § 1362 “suggests that in certain respects tribes suing under

this section were to be accorded treatment similar to that of the United States had it sued on their

behalf”). Plaintiff Sheriff John Anderson is not an Indian tribe, and therefore the Court does not

have jurisdiction over the instant action pursuant to 28 U.S.C. § 1362.

C. This Court lacks jurisdiction to adjudicate the Tribe’s internal leadership dispute

and lacks subject matter jurisdiction under 28 U.S.C. § 1331.

This Court lacks jurisdiction because adjudication of the instant action requires a

resolution of the Tribal leadership dispute facing the Tribe. It is well-established that Indian

tribes have exclusive jurisdiction over internal matters of Tribal governance. See Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978); Wasson, 42 IBIA at 158. It is therefore well-established

5 “[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although Defendants assert that they

are entitled to judgment as a matter of law based on the pleadings, Defendants also assert that there are no genuine issues

of material fact, and that they also would be entitled to summary judgment for the reasons expressed herein.


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that federal courts lack jurisdiction to resolve intra-tribal disputes, particularly disputes involving

Tribal governance. See Ransom v. Babbitt, 69 F.Supp.2d 141, 150 (D.D.C. 1999); Alturas Indian

Rancheria v. Salazar 2011 WL 587588, at *2 n.1 (E.D. Cal., Feb. 9, 2011). Accordingly, this

Court lacks jurisdiction to determine which of the three Tribal factions constitutes the legitimate

Tribal governing body.

Notably, the BIA has never recognized any of the three factions as legitimate prior to its

February 11, 2014 Decision.6 Rather, the BIA Decision held that the BIA would recognize the

Last Undisputed Tribal Council as the Tribe’s governing body for government-to-government

purposes on an interim basis, as of February 11, 2014, or once the Decision goes into effect.

Accordingly, the Lewis Faction was not recognized during the time period relevant to the

Complaint, and is not currently recognized as having been the Tribe’s legitimate governing body

during that time period.

The Complaint asserts that jurisdiction arises under 28 U.S.C. § 1331 because it allegedly

raises a question of federal law concerning the outer limits of a tribal court’s jurisdiction over a

non-Indian. Complaint, ¶ 30; see also National Farmers Union v. Crow Indian Tribe, 471 U.S.

845 (1985).7 However, the Complaint does not allege that the Lewis Faction was the Tribe’s

legitimate governing body with authority to act on behalf of the Tribe.

In fact, Plaintiff himself alleges that the actions of the Lewis Faction were not actions of

the Tribe. For example, the Complaint references “actions taken by individual members of the

Picayune Rancheria of the Chukchansi Indians (“Tribe”) . . . without lawful or recognized

authority.” Complaint, ¶ 1 (emphasis added). The Complaint states that this unrecognized group

of individual Tribal members “created a non-recognized ‘Tribal Court.’” Complaint, ¶ 1. The

Complaint expressly acknowledges that the Lewis Faction “has not been recognized as the lawful

6 Although the Central California Agency Superintendent arguably recognized the Lewis and Ayala Factions’ December

2012 election, the Burdick Decision never went into effect and was vacated by the BIA Decision on February 11, 2014. 7 The doctrine announced by the Supreme Court in National Farmers only vests federal courts with subject-matter

jurisdiction, subject to exhaustion requirements, to determine whether a tribal court exceeded its jurisdiction over a non-

Indian brought before it. Id. Because there are no proceedings in a tribal court against the Sheriff, as discussed more

fully below, there is no case or controversy to vest jurisdiction in this Court under National Farmers.


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authority of the entities on whose behalf it claims to operate,” and argues that its actions, like

those of the Ayala/McDonald Faction and its purported “tribal court” were “nothing more or less

than a sham and self-serving construct unilaterally created by the Lewis Faction to create political

support.” Complaint, ¶ 6.

In the absence of a final and effective decision by the BIA recognizing a governing body,

this Court cannot attribute the actions of the Lewis Faction to the Tribe because it does not itself

possess jurisdiction to adjudicate the intra-Tribal dispute. Similarly, the District of Arizona

District Court recently refused to attribute to the Tribe the purported rulings of the

Ayala/McDonald Faction’s “tribal court” because “identifying the valid tribal court would require

a prohibited inquiry into the claims of the competing tribal factions.” Picayune Rancheria of

Chukchansi Indians v. Henriquez, 2013 WL 6903750 (D. Ariz. Dec. 31, 2013). In Henriquez, the

District of Arizona dismissed an action seeking to enforce orders by the Ayala/McDonald

Faction’s tribunal because it would require “the Court to resolve matters of intra-tribal

governance” and “Federal courts lack jurisdiction to decide intra-tribal disputes.” Id. at *3, *5

(citing Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v. Bureau of Indian Affairs, 439

F.3d 832, 835 (8th Cir. 2006).

Defendants appreciate the difficult position facing Sheriff Anderson during the Tribal

leadership dispute. However, this Court is not a proper forum to resolve the intra-Tribal dispute,

let alone issue an order identifying a Tribal government with whom the Sheriff should interact.

See In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Lit., 340 F.3d 749 (8th Cir.

2003); Ransom, 69 F.Supp.2d at 150; Alturas Indian Rancheria, 2011 WL 587588, at *2 n.1. As

discussed more in depth below, granting the order or the costs sought by the Plaintiff, each of

which constitutes relief not sought in the Complaint, would require a determination by this Court

that the Lewis Faction was the Tribe’s legitimate governing body during the time relevant to the

Complaint. Because this Court cannot attribute the actions of the Lewis Faction or the Lewis

Faction Tribunal to the Tribe without adjudicating the internal Tribal leadership dispute, which it

cannot do, the action must be dismissed.


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D. The Tribe has sovereign immunity from suit, which was not waived for purposes

of this case by the 2007 MOU or Settlement Agreement.

It is well-established that Indian tribes and their subordinate entities enjoy sovereign

immunity from suit unless Congress has authorized suit or the Indian tribe has waived its immunity.

See Kiowa Tribe of Oklahoma v. Manuf. Tech., Inc., 523 U.S. 751 (1998); Allen v. Gold Country

Casino, 464 F.3d 1044, 1047 (9th Cir. 2006). Moreover, it is well-established that any claim of a

waiver of sovereign immunity must be strictly construed against finding a waiver. Id.

In this case, Plaintiff’s Complaint relies on a limited waiver of sovereign immunity contained

in Section 7.3 of a Memorandum of Understanding between the Tribe and Madera County, executed

on February 14, 2007 (“2007 MOU” or “MOU”). See MOU, § 7.3 (Complaint, Exhibit 11). Thus, if

the MOU is not applicable in this case, there is no waiver of the Tribe’s sovereign immunity from

suit, and the Tribe and its subordinate entities must be dismissed for lack of subject-matter

jurisdiction. See Transcript of Proceedings, at 11:12-13 (Feb. 20, 2014) (“[T]o the extent that I have

jurisdiction here, it flows entirely from the Memorandum of Understanding and Settlement

Agreement.”). Accordingly, because this case does not arise under the MOU, the Tribe’s sovereign

immunity from suit has not been waived.

1. The instant case does not arise under the 2007 MOU because the Lewis

Faction’s Lawsuit did not relate to the subject matter of the 2007 MOU.

Under section three of the Settlement Agreement between the Tribe and the County, the Tribe

provided a waiver of sovereign immunity expressly limited to mediation and enforcement in the

federal court of disputes that “arise as to the application, interpretation, and enforcement of the terms

of this Agreement.” See Settlement Agreement and Stipulation to Jurisdiction (“Settlement

Agreement”) (Complaint, Exhibit 10), § 3.0. Section 7.3 of the 2007 MOU incorporates the

Settlement Agreement’s limited waiver “for the purposes of mediation and enforcement as provided

for at Section 3 of the Settlement Agreement.” MOU (Exhibit 10), § 7.3. Accordingly, the waiver of

sovereign immunity is only valid if the dispute arises out of the terms of the MOU or the Settlement

Agreement. Plaintiff asserts that the instant action arises out of the MOU’s provisions.


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The MOU concerns the Tribe’s gaming facility, services the County agreed to provide to the

gaming facility, and the Tribe’s reimbursement for such services. The MOU did not provide the

Sheriff with any authority, and it did not create an obligation for the County Sheriff to provide law

enforcement to the Tribe’s Rancheria. The authority and duty of the Madera County Sheriff to

provide law enforcement to the Tribe’s Rancheria derives from Public Law 280 and the California

Constitution.8 Accordingly, the Madera County Sheriff’s law enforcement authority and duties

pursuant to federal and state law cannot be enforced through the 2007 MOU.

Rather, in the MOU, the Tribe and the County agreed that the County would provide an

additional level of services specifically to mitigate the effect of the Tribe’s Casino. Thus, the MOU

provides that the Madera County Sheriff’s Department “shall provide one full-time deputy to be

available in the vicinity of the Gaming Facility seven days a week, 24 hours per day, and the Tribe

agrees to reimburse the County for all actual costs . . . .” MOU, § 2.2. In addition, the County “shall

provide an average response time of less than twenty (20) minutes to calls from” the Tribe’s Casino.

MOU, § 2.3.

The Tribe also has several obligations under the MOU:

1) to pay all bills for the County’s law enforcement services within thirty days of

receiving the bill, MOU, § 2.4;

2) reimburse the County for all actual costs of fire protection staffing incurred by the

County pursuant to the MOU, MOU, § 3.1;

3) maintain a locked gate at the access from the Gaming Facility to Country Road 417,

access to which primarily shall be for emergency purposes only, MOU, § 4.1;

4) maintain Lucky Lane, MOU, § 4.3;

5) submit a complete application for an Encroachment Permit if it proposes to engage in

construction in a County right-of-way, MOU, § 4.4;

6) contribute $75,000.00 to a trust account for a water study, MOU, § 5.1; and

7) contribute $25,000.00 to the County for each year of the MOU’s term to address

gambling issues in Madera County, MOU, § 6.0.

8 Pursuant to the California Constitution, the Legislature and County Charters must provide for an elected county sheriff

who, under the direction of the State Attorney General, must enforce the laws of the State. Cal. Const., Art. V, §13; Cal.

Const., Art. XI, §§ 1(b), 4(c).


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Plaintiff’s Complaint does not allege that the Tribe has breached any of its obligations of the MOU

or otherwise breached the MOU. The Complaint also does not seek to enforce the MOU or a

particular interpretation of the agreement. See Transcript of Proceedings, at 10:24-11:3, and 11:10-

11 (Oct. 21, 2013) (Plaintiff’s counsel acknowledging that the Complaint does not seek enforcement

of the MOU or Settlement Agreement and is not “suing for, quote, breach of contract”). Moreover,

neither the Lewis Faction Lawsuit nor the Complaint concern and attempt to apply, interpret, or

enforce the 2007 MOU. Accordingly, this action does not concern or arise under the MOU.

Plaintiff argues that the Lewis Faction’s Lawsuit implicated the MOU because “the scope of

the 2007 MOU includes ‘law enforcement.’” Complaint, at ¶ 36. However, the mere fact that 2007

MOU discussed certain aspects of law enforcement does not mean that any proceeding dealing with

any aspect of law enforcement arises under the MOU. The Lewis Faction Lawsuit did not implicate

any of the County’s duties under the MOU concerning law enforcement. Indeed, the Lewis Faction

Lawsuit did not attempt to enforce the County’s obligation to provide one full-time deputy to be

available in the Casino’s vicinity or its obligation to maintain an average response time of less than

20 minutes to calls form the Casino. See MOU, §§ 2.2, 2.3. Rather, the Lewis Faction Lawsuit

involved allegations by the Lewis Faction that the Sheriff violated his general law enforcement

responsibilities under Public Law 280 and the California Constitution, including allegations that the

Sheriff wrongfully recognized and supported the Ayala/McDonald Faction by taking a purportedly

neutral position by which he protected the Ayala/McDonald Faction’s physical control of the Tribe’s

Offices, Casino, and other assets in violation of federal common law.

Not all aspects of law enforcement necessarily overlap with one another. Accordingly,

Plaintiff’s Complaint regarding the Lewis Faction Lawsuit does not arise from the MOU simply

because the MOU and the Lewis Faction Lawsuit implicate different aspects of the same large subject

area. In fact, the allegations in the Complaint are far removed from the provisions of the MOU.

Moreover, even if the Complaint did seek to enforce the MOU or the Settlement Agreement,

Plaintiff has not established that Sheriff Anderson could file an action to enforce them. Plaintiff is

not a signatory to either the 2007 MOU or the Settlement Agreement. Moreover, the Settlement


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Agreement, which provides the limited waiver of sovereign immunity relied upon by Plaintiff,

expressly states that “Nothing in this Agreement, whether express or implied, is intended to confer

any rights or remedies to any persons other than the parties to it, . . . nor shall any provision give any

third party any right or cause of action over or against any party to this Agreement.” Settlement

Agreement, § 7.8. To the extent that it involved entities that were not parties to the litigation giving

rise to the settlement, the Settlement Agreement expressly provided that the “Tribe will amend the

pleading to name CEDA as an additional plaintiff and the Schools as an additional defendant in the

Tribal action.” Settlement Agreement, at p. 3, Recital F. The additional parties signed the Settlement

Agreement; the Sheriff did not.

Sheriff Anderson has failed to establish that he could file an action enforcing the MOU or

Settlement Agreement, even if this action did arise under them. Accordingly, the Tribe’s sovereign

immunity from suit has not been waived for purposes of this action.

2. The instant case does not arise under the 2007 MOU because the Lewis

Faction’s actions are not attributable to the Tribe, the signatory of the document,

without adjudicating the intra-Tribal dispute.

Even if the MOU was relevant to the actions complained of in Plaintiff’s Complaint, the

actions of the Lewis Faction on and before August 6, 2013 cannot be attributed to the Tribe without a

determination by this Court that the Lewis Faction was the Tribe’s legitimate governing body with

authority to act on the Tribe’s behalf. Without such a determination, the Lewis Faction’s actions

could not have implicated the Tribe’s obligations under the MOU or the Settlement Agreement. As

discussed more fully above in Section B, the Complaint does not allege that the Lewis Faction was

the Tribe’s legitimate government and in fact asserts the opposite, and this Court lacks jurisdiction to

determine whether the Lewis Faction was the Tribe’s legitimate government with authority to act on

behalf of the Tribe. Without such a determination, the MOU or Settlement Agreement cannot be

enforced against the Tribe for the actions of the unrecognized Lewis Faction.

Accordingly, the Tribe’s sovereign immunity from suit remains intact, and therefore the

action must be dismissed.


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E. The instant action is moot and therefore must be dismissed for lack of subject-

matter jurisdiction.

Even if this action were properly before this Court when the Complaint was filed, it has since

become moot by the Lewis Faction’s subsequent vacation of the August 6, 2013 TRO Order and its

dismissal of the Lewis Faction Lawsuit.

1. Legal Standard of Mootness

“[A]s a prerequisite to [the] exercise of jurisdiction, [the federal courts] must satisfy ourselves

that a case is not moot.” Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933, 936 (9th Cir. 2012).

Article III of the United States Constitution limits the jurisdiction of federal courts to “cases” or

“controversies.” U.S. Const. Art. III. Thus, “[i]t is an inexorable command of the United States

Constitution that the federal courts confine themselves to deciding actual cases and controversies.”

Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128 (9th Cir. 2005). Moreover, an “‘actual

controversy must be extant at all stages of review, not merely at the time the complaint is filed.’”

Alvarez v. Smith, 558 U.S. 87 (2009) (internal citations omitted) (emphasis added); see also Back v.

Sebelius, 684 F.3d 929, 931 (9th Cir. 2012).

In order to determine when an action in the federal courts constitutes a case or controversy

appropriately resolved through the federal judicial process, the tool the Supreme Court has developed

is the doctrine of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). According to

the Supreme Court, whether plaintiff possesses standing is “the threshold question in every federal

case.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

When a plaintiff’s claims become moot, the Court must dismiss the claims for lack of subject-

matter jurisdiction. A court may not proceed to hear an action if, subsequent to its initiation, the

dispute loses “its character as a present, live controversy of the kind that must exist if [the court is] to

avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48 (1969).

Further, “[b]ecause the requirement of a continuing case or controversy derives from the Constitution

. . . it may not be ignored when inconvenient.” Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 528 U.S. 167, 213 (2000) (Scalia, J., dissenting). Finally, a dispute solely about


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the meaning or effect of the law, “abstracted from any concrete actual or threatened harm, falls

outside the scope of the constitutional words ‘Cases’ and ‘Controversies.’” Alvarez v. Smith, 558

U.S. 87, 93 (2009).

The Supreme Court has identified three “irreducible constitutional minimum” elements of

standing:

1) the plaintiff must have suffered and “injury in fact,” which must be “concrete

and particularized” and “actual or imminent, not conjectural or hypothetical”;

2) the injury must be “fairly traceable” or causally connected to the challenged

conduct; and

3) it must be likely, and not merely speculative, that the injury will be “redressed

by a favorable decision.”

Lujan, 504 U.S. at 560-61.

The third standing requirement, that the injury must be rectifiable by a favorable decision,

relates the question of mootness to the question of standing. In fact, the Supreme Court has

characterized the mootness analysis as “the doctrine of standing set in a time frame.” Arizonans for

Official English v. Arizona, 520 U.S. 43, 68, n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). “Simply

stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Accordingly,

“[i]f a court is unable to render ‘effective relief,’ it lacks [subject-matter] jurisdiction and must

dismiss” the action. McCullough v. Graber, 726 F.3d 1057, 1059 (9th Cir. 2013) (citations omitted).

2. The instant case is moot.

In this case, there is no live case or controversy, and therefore the action must be dismissed.

Plaintiff’s Complaint stems from specific actions by the Lewis Faction: the Lewis Faction Lawsuit

against Sheriff Anderson and Defendant Duran’s August 6, 2013 TRO Order. On November 20,


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2013, Defendant Duran vacated the August 6, 2013 TRO Order and dismissed the Lewis Faction

Lawsuit against Sheriff Anderson altogether. Answer, ¶¶ 2, 10, 13, 37; RJN, Exhibit A.9

In other words, Plaintiff has obtained all of the relief sought in the Complaint. Specifically,

the Complaint seeks declaratory judgment declaring that (1) “all orders of Defendant Duran including

the [August 6, 2013 TRO Order] issued in the Lewis Faction Lawsuit are without force or effect”; (2)

that the Defendants “are enjoined from proceeding with the action currently pending before

Defendant Duran and filed by the Lewis Faction against Sheriff Anderson”; (3) the August 6, 2013

“TRO issued against Plaintiff Anderson by Defendant Duran on or about August 6, 2013, is void and

of no effect;” and (4) “Defendants are to immediately vacate the TRO issued against Plaintiff.”

Complaint (Dkt. # 2), at pp 45-46, ¶¶ A-F. With the dismissal of the Lewis Faction Lawsuit and

August 6, 2013 TRO Order, none of the Defendants are asserting or attempting to assert jurisdiction

over Sheriff Anderson or attempting to direct him to take any action through a judicial order.

The Court cannot grant Plaintiff any more relief than the relief sought by the Complaint and

already obtained. See, e.g., Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012, 1015 (7th Cir.

1999) (“You cannot persist in suing after you’ve won.”). Accordingly, because this Court is “unable

to render ‘effective relief,’ it lacks [subject-matter] jurisdiction” and must dismiss the action.

McCullough, 726 F.3d at 1059.

Plaintiff has argued that the case is not moot because Defendants have sought to preserve their

right to sue the Sheriff by dismissing the Lewis Faction Lawsuit without prejudice. However, the

Court has already noted that a party reserving its right to a claim does not give rise to an active case

or controversy to enjoin such litigation. See Transcript of Proceedings, at 12:2-13:3 (Nov. 22, 2013).

Further, “the likelihood of further violations is sufficiently remote to make injunctive relief

unnecessary.” United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968). The

Lewis-Reid Faction has repeatedly advised Plaintiff, as well as the Court, that the Lewis Faction – or

9 Defendant Duran’s Order dismissing the Lewis Faction Lawsuit is specifically referred to in the Answer and its

authenticity is not questioned. It therefore may be considered by the Court in consideration of this Motion. See Branch,

14 F.3d at 953.


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for that matter the Lewis-Reid Faction – will not re-file any action against Sheriff Anderson in the

Lewis Faction tribunal or any other Tribal tribunal.

As the Lewis-Reid Faction has advised this Court and the parties, the only reason the Lewis

Faction dismissed the Lewis Tribunal Lawsuit without prejudice was to preserve potential actions by

the Tribe against Sheriff Anderson in federal court for violations of federal law. Transcript of

Proceedings, at 32:8-33:3 (Feb. 20, 2014). The Complaint does not concern an attempt to prohibit

the Tribe from filing suit against the Sheriff in the federal courts, and Plaintiff’s counsel has

acknowledged that Indian tribes and tribal members may bring actions in federal court under Section

1983. See Transcript of Proceedings, at 8:12-14 (Oct. 21, 2013). Because the Lewis-Reid Faction

intends to file, if anything, an action against Sheriff Anderson in federal court, it is “absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to recur.” Concentrated

Phosphate Exp. Ass’n, 393 U.S. at 203; see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216,

222 (2000).

Plaintiff’s counsel has further argued that the case is not moot because the Last Undisputed

Tribal Council, after being recognized in the BIA Decision, sent letters informing the Sheriff of the

BIA Decision and requesting that the Sheriff take actions consistent with the Decision. Specifically,

the Sheriff referred to two relevant letters: (1) a letter, dated February 13, 2014, from Chairman

Reggie Lewis to Sheriff John Anderson (“Lewis Letter”), Plaintiff’s Exhibit No. 59 (Dkt. # 174); and

(2) a letter, dated February 12, 2014, from the Last Undisputed Tribal Council recognized by the BIA

Decision to Plaintiff’s counsel, Thomas S. Slovak, Esq. (“Slovak Letter”), Plaintiff’s Exhibit No. 55

(Dkt. # 172). However, neither of these letters constitutes or gives rise to a continuing case or

controversy.

While Plaintiff’s counsel characterized these letters as containing “demands” and “threats of

further lawsuits,”10 the letters do not contain either. In his letter to Sheriff Anderson, which contains

10 See Transcript of Proceedings, at 29:21-22 (Feb. 20, 2014) (“[T]hey’re now going to say, ‘We’re going to sue you for

failing to take action to remove these people, based on the BIA ruling.”). Plaintiff complains that “We’re under threat of

being sued if we don’t do what they want us to do.” Id. at 26:14-15. However, the possibility of being sued is part and


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a reference line of “Request for Assistance,” Chairman Lewis informed the Sheriff of the BIA

Decision and “request[ed Sheriff Anderson’s] immediate assistance to remove individuals that we . . .

are informing you are illegally occupying and converting tribal assets.” Lewis Letter (Plaintiff’s

Exhibit 59, Dkt. # 174). In the Slovak letter, the Last Undisputed Tribal Council’s letter again

informed Plaintiff’s Counsel of the BIA Decision and “respectfully request[ed] that you refrain with

communicating with the [Ayala/McDonald Faction’s] law firms, consultants or individuals regarding

any and all business of the Tribe, CEDA, or the Chukchansi Gold Resort & Casino.” Slovak Letter

(Plaintiff’s Exhibit 55, Dkt. # 172). In other words, the letters merely requested that the Sheriff abide

by the BIA Decision, as he had relied upon the lower-level official’s decision before it was vacated

and overruled.

Such requests for the Sheriff to act according to a BIA Decision do not constitute orders by a

tribunal.11 Therefore, they are not contemplated by the Complaint, which concerns an August 6,

2013 TRO Order by the Lewis Faction tribunal that has since been vacated. Further, as Defendants’

counsel pointed out in the February 20, 2014 Hearing, the federal courts are not vested with

jurisdiction to prohibit Tribal members from contacting State law enforcement officials or making

requests that the official take certain actions in the course of his official duties. U.S. Const. amend I.

In fact, Plaintiff himself asserts that he has the authority to ignore citizen requests with no legal

repercussions. Complaint, ¶¶ 51-52.

To the extent that Plaintiff complains of the Lewis-Reid Faction’s actions to contact the

Sheriff to make requests or to publicly assert its legal and political positions, the Complaint does not

state any claim or cause of action under federal law for these actions. These actions by the Lewis-

Reid Faction do not amount to an exercise of Indian tribal judicial jurisdiction over which a federal

court would have jurisdiction under National Farmers Union, and the actions themselves do not give

rise to any federal law-based cause of action. Further, such an order sought by Plaintiff would

abridge the rights of Tribal members to speech and to petition governmental officials for redress of

parcel of the official duties of State law enforcement, and Plaintiff cannot earnestly be suggesting that this Court prohibit

any individual, including Defendants, from suing Sheriff John Anderson for alleged violations of the law. 11 Of course, the letters would not constitute tribunal orders even if they did contain demanding language.


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grievances. U.S. Const. amend I. Accordingly, the instant action is moot notwithstanding the Last

Undisputed Tribal Council’s February 13, 2014 and February 12, 2014 correspondence to Sheriff

Anderson and his counsel.

In the absence of the August 6, 2013 TRO Order or any pending action in the Lewis Faction

tribunal, Plaintiff seeks an order stating that the Tribe is “precluded for all time from ever suing the

Sheriff.” Transcript of Proceedings, at 11:12-13 (Nov. 22, 2013). Plaintiff’s Counsel states his intent

to seek a ruling on the “the fundamental issue in the Anderson case, which has brought us to this

Court, is whether or not any Tribal Court, however constituted, by whatever Judge appointed, by

whatever faction in place, in vogue at the moment, under whatever BIA order in effect, or not,

doesn’t have any jurisdiction to restrain the activities of the Sheriff. And that is the issue we bring to

the Court.” Transcript of Proceedings, at 21:10-16 (Feb. 20, 2014). However, this Court itself

succinctly stated that this action does not concern “[t]he much broader question of whether or not a

sheriff can ever be subject to whoever the Tribal Government may be, and the parameters of what the

Tribal Government can ask the Sheriff to do.” Transcript of Proceedings, at 21-25-22:4 (Feb. 20,

2014). This is particularly true in the absence of the TRO Order or any proceeding in the Lewis

Faction tribunal. Indeed, a conjectural or hypothetical dispute solely about the meaning or effect the

law “abstracted from any concrete actual or threatened harm,” as Plaintiff seeks here, “falls outside

the scope of the constitutional words ‘Cases’ and ‘Controversies.’” Alvarez, 558 U.S. at 93.

Accordingly, the instant action is moot and must be dismissed.

F. Plaintiff is not entitled to any costs or attorney fees under the Settlement

Agreement.

Although Plaintiff is not seeking to enforce the MOU, he asserts that this action implicates the

law enforcement provisions in Section 2 of the MOU and that he is therefore entitled to attorney fees

under the MOU. However, the MOU does not contain any provision for costs or attorney fees.

Thus, Plaintiff must rely on the Settlement Agreement for its costs provision, as well as for its limited

waiver of sovereign immunity. This reliance is fundamentally flawed.


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Section 7.3 of the Settlement Agreement provides that “No party to this Agreement shall look

to any other party to this Agreement for payment of attorneys’ fees and/or costs” except for “the

recovery of attorneys’ fees and costs associated with any action, motion or proceeding to enforce the

terms of the Agreement.” Settlement Agreement, at § 7.3 (emphasis added). As discussed above,

Plaintiff is not a party to the Settlement Agreement or MOU, and Plaintiff’s counsel has

acknowledged that the Complaint does not allege a breach of the MOU or Settlement Agreement or

seek to enforce either the MOU or the Settlement Agreement. See Transcript of Proceedings, at

10:24-11:3, and 11:10-11 (Oct. 21, 2013). Even if Plaintiff were attempting to enforce the MOU or

Settlement Agreement, this Court would lack the subject-matter jurisdiction necessary to grant costs

to Plaintiff because it would require this Court to adjudicate the intra-Tribal dispute.

Moreover, the MOU only incorporates Section 3 of the Settlement Agreement, which

provides the limited waiver of sovereign immunity. 2007 MOU, § 7.3. The MOU does not

incorporate Section 7.3 of the Settlement Agreement providing for attorneys’ fees and/or costs.

Therefore, even if this action sought to enforce provisions of the MOU or alleged a breach of the

MOU, which it does not, Plaintiff would not be entitled to costs or attorney fees.

IV. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant Defendants’

Motion for Judgment on the Pleadings, dismissing the instant action for lack of subject-matter

jurisdiction.

Respectfully submitted,

Dated this 17th day of April, 2014 FREDERICKS PEEBLES & MORGAN LLP

/s/ James Qaqundah

JAMES QAQUNDAH, Attorneys for Defendants:

The Picayune Rancheria of the Chukchansi Indians;

Chukchansi Economic Development Authority;

Chukchansi Indian Housing Authority


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Dated this 17th day of April, 2014 ROSETTE, LLP

/s/ Alex Lozada

ALEX LOZADA, Attorneys for Defendants:

Reggie Lewis; Chance Alberta; Carl Bushman; Irene

Waltz; Lynn Chenot; David Castillo; Melvin Espe; The

Picayune Rancheria of the Chukchansi Indians;

Chukchansi Economic Development Authority;

Chukchansi Indian Housing Authority

Dated this 17th day of April, 2014 KLINEDINST PC

/s/ Gregory T. Fayard

GREGORY T. FAYARD, Attorneys for Defendants:

Jack Duran, Jr. and Donna Howard, in their official

capacities only


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CERTIFICATE OF SERVICE

I hereby certify that on January 17, 2014, I electronically filed the foregoing with the Clerk of

the Court using the ECF system. Notice of this filing will be sent by operation of the Court’s

electronic filing system to all parties indicated on the electronic filing receipt.

/s/ Suzanne Balluff

Suzanne Balluff


1 John M. Peebles (SBN 237582) Steven J. Bloxham … · ii defendants’ notice of motion and...

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