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(Cite as: 239 F.Supp.2d 1213)
United States District Court,
D. New Mexico.
Eunice Mae Veronica CHIWEWE, as Personal Representative in the Estate of
Roxanne Crystal Jiron, a deceased minor, Eunice Mae Veronica Chiwewe, as
Personal Representative in the Estate of Ivan B. Chiwewe, deceased, Eunice Mae
Veronica Chiwewe, individually, Juan Crescencio Jiron, Eli Chiwewe, and Calvin
R. Lucero, Plaintiffs,
v.
The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Amtrak, Robert H. Wilbur,
David Schute, A. Nabe, Wyman L. Schenk, John Doe 1, and John Doe 2, Defendants.
No. CV.02-0397 JP/LFG-ACE.
Oct. 21, 2002.
Family members of Native American who was killed by train while on railroad bridge located on right-of-way owned by railroad within tribal land brought action against railroad. Upon railroad's motion, the District Court entered preliminary injunction and order to show cause, enjoining plaintiffs from further litigating parallel case filed in the tribal court, and ordering plaintiffs to show cause why the preliminary injunction should not become permanent. Family members moved for attorney fees. The District Court, Parker, Chief Judge, held that: (1) District Court was not required to abstain from deciding case, as tribal court lacked jurisdiction, and (2) permanent injunction was warranted.
Permanent injunction granted; motion for award of attorney fees denied.
The standard for determining whether a permanent injunction should issue is essentially the same as the standard for a preliminary injunction, except that the district court determines the movant's actual success on the merits rather than the movant's likelihood of success on the merits.
In addition to showing the movant's success on the merits, to obtain a permanent injunction, the movant must establish that: (1) he or she will suffer irreparable injury unless an injunction is issued, (2) his or her threatened injury outweighs any harm the proposed injunction may cause to the opposing party, and (3) an injunction would not be adverse to the public interest.
As a general rule, a federal district court should abstain from asserting federal question jurisdiction over claims that are identical to claims pending in tribal court until the tribal court has had a full opportunity to consider the basis for its own jurisdiction.
The following are exceptions to general rule that district court should abstain from asserting jurisdiction over claims identical to claims pending in tribal court: (1) when assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, (2) when action is patently violative of express jurisdictional prohibitions, (3) when exhaustion would be futile because of the lack of adequate opportunity to challenge court's jurisdiction, (4) when no federal grant provides for tribal governance of nonmembers' conduct on tribal land, and (5) when the tribal court clearly lacks jurisdiction.
District court was not required to abstain from deciding action brought by family members of Native American who was killed by train while on railroad bridge located on right of way owned by railroad within tribal land, until pending action in tribal court involving identical claims was resolved, where tribal court lacked jurisdiction to decide action.
Right-of-way deed across tribal land, granted to railroad in accordance with the provisions of the Pueblo Lands Act, did not establish continuing consensual relationship between railroad and tribe, such that tribe would be able to exercise authority over railroad's activities with respect to right-of-way, as required to meet consensual relationship exception to general Montana rule that Native American tribal courts lacked civil authority over conduct of non- tribal members on non-tribal land located within a tribal reservation.
Fact that tribal member was killed in connection with railroad's use of right- of-way across tribal lands, in that tribal member was struck by train while she was on bridge located on right-of-way, was not enough to show that railroad's activity directly affected tribe's political integrity, economic security, health, or welfare, for purpose of meeting exception to general Montana rule that tribal court lacked civil authority over conduct of non-members on non- tribal land within a reservation.
Statute conferring tribal court jurisdiction over certain acts occurring on land located within limits of tribal reservation did not apply to action brought by family members of tribal member struck by train on railroad right- of-way located within reservation against railroad, as statute only addressed statutorily conferred tribal power, not Indian tribe's inherent or retained sovereignty over non-tribal members on non-tribal land. 18 U.S.C.A. § 1151.
Tribal member plaintiffs' argument that issue of whether their claims, arising out of train accident occurring on railroad-owned right-of-way across tribal lands, were preempted by federal law which set maximum allowable speed of trains was required to be heard in tribal court was moot, where plaintiffs indicated that they were not alleging excessive speed by train.
*1214 M. Terrence Revo, Albuquerque, NM, Denise A. Chee, Chee Law Offices PC, Isleta Pueblo, NM, for Juan Crescencio Jiron, Eli Chiwewe, Calvin R. Lucero, plaintiffs.
Earl E. DeBrine Jr., Stanley N. Harris, Timothy L. Fields, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, for Burlington Northern and Santa Fe Ry. Co., Amtrak, Robert H. Wilbur, David Schute, Wyman L. Schenk, A. Nabe, defendants.
MEMORANDUM OPINION AND ORDER
PARKER, Chief Judge.
On August 15, 2002, the Court entered a Preliminary Injunction and Order to Show Cause (Doc. No. 30), which enjoined the Plaintiffs from further litigating a parallel *1215 case filed in the Isleta Tribal Court. The Court based the Preliminary Injunction and Order to Show Cause on its finding that the Tribal Court lacks jurisdiction to hear the case filed in the Tribal Court.
The Preliminary Injunction and Order to Show Cause also ordered the Plaintiffs
to show cause why the preliminary injunction should not become a permanent injunction.
The parties have now completed their briefing in response to the order to show
cause. In addition to arguing that the preliminary injunction should not be
made permanent, the Plaintiffs ask the Court to award them attorneys' fees and
costs. Having reviewed the briefs and relevant law, the Court
finds that the preliminary injunction should be made permanent and that the
Plaintiffs' request for an award of attorneys' fees and costs should be denied.
A. Background
This lawsuit arises from the death of Roxanne Crystal Jiron. On March 14, 1999, an Amtrak train hit and killed Ms. Jiron while she was on a railroad bridge owned by Defendant Burlington Northern and Santa Fe Railway Company (BNSF). The bridge is located within BNSF's right-of-way which runs through the Isleta Pueblo. The Plaintiffs are members of the Isleta Pueblo. Defendants are not members of the Isleta Pueblo.
BNSF's predecessor received a right-of-way deed from the Isleta Pueblo on July 2, 1928 as provided by the Pueblo Lands Act of 1924, 46 Stat. 636, § 17. In accordance with the Pueblo Lands Act, the United States Secretary of the Interior and the Pueblo Lands Board approved the deed on August 17, 1928. BNSF has not leased the right-of-way to the Isleta Pueblo or to any tribal member.
B. Discussion
The standard for determining whether a permanent injunction should issue is
essentially the same as the standard for a preliminary injunction, except that
the Court determines the movant's actual success on the merits rather than the
movant's likelihood of success on the merits.
Amoco Production Co. v. Village of Gambell, AK,
480 U.S. 531, 546 n. 12, 107 S.Ct.
1396, 94 L.Ed.2d 542 (1987) (citation omitted). In addition to showing the movant's
success on the merits, the movant must establish that: (1) he or she will suffer
irreparable injury unless an injunction is issued; (2) his or her threatened
injury outweighs any harm the proposed injunction may cause to the opposing
party; and (3) an injunction would not be adverse to the public interest.
See, e.g., Chemical Weapons Working Group, Inc. (CWWG) v. U.S. Dept. of the
Army,
111 F.3d 1485, 1489 (10th Cir.1997). The Plaintiffs argue that the Defendants
would not be successful on the merits, because the Isleta Tribal Court has jurisdiction
in the tribal case. In addition, the Plaintiffs argue that the Court should
abstain from hearing this case until the Tribal Court has ruled on the issue
of its jurisdiction.
1. Abstention
Initially,
the Plaintiffs contend that as a matter of comity this Court should abstain
from ruling on whether the Tribal Court has jurisdiction in the tribal case
and should instead allow the Tribal Court to decide the jurisdiction issue.
"As a general rule, a federal district court should abstain from asserting
federal question jurisdiction over claims that are identical to claims pending
in tribal court until the tribal court has had a full opportunity to consider
the basis for its own jurisdiction."
Burlington Northern R. Co. v. Red Wolf,
196 F.3d 1059, 1065 (9th Cir.1999),
cert. denied,
529 U.S. 1110, 120
*1216
S.Ct. 1964, 146 L.Ed.2d 795
(2000)(citing
Strate v. A-1 Contractors,
520 U.S. 438, 449-50, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997);
Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 15, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987)). There are, however, five
exceptions to this general rule: (1) when "an assertion of tribal jurisdiction
is motivated by a desire to harass or is conducted in bad faith,"
National Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845, 856 n. 21, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985); (2) when "the
action is patently violative of express jurisdictional prohibitions,"
id.;
(3) when "exhaustion would be futile because of the lack of an adequate
opportunity to challenge the court's jurisdiction,"
id.;
(4) "[w]hen ... it is plain that no federal grant provides for tribal governance
of nonmembers' conduct on land covered by [the main or general rule established
in
Montana v. United States,
450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ],"
Strate,
520 U.S. at 459 n. 14, 117 S.Ct. 1404; and (5) when the Tribal Court clearly
lacks jurisdiction,
Nevada v. Hicks,
533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). The Isleta Tribal
Court lacks jurisdiction under the
Montana
general rule as interpreted and applied by the United States Supreme Court in
Strate
and by the Ninth Circuit Court of Appeals in
Red Wolf.
Accordingly, the fourth and fifth exceptions to the tribal exhaustion rule are
applicable and abstention would be inappropriate.
In applying the
Montana
principles regarding Tribal Court jurisdiction over non-tribal members, the
Supreme Court in
Strate
held that there was no tribal jurisdiction when an automobile accident involving
non-tribal members occurred on a state highway crossing an Indian reservation
and Congress had granted the state a highway right-of-way through the reservation.
In applying
Montana
and
Strate,
the Court of Appeals in
Red Wolf
held that there was no tribal jurisdiction when a train killed two tribal members
on an Indian reservation and Congress had granted the railroad a right-of-way
through the reservation.
2. Determining Tribal Jurisdiction Under Montana
The Supreme Court in Montana
described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe's political integrity, economic security, health, or welfare.
Strate, 520 U.S. at 446, 117 S.Ct. 1404. The Plaintiffs argue that the first exception under Montana applies to this case because the Isleta Tribe and BNSF's predecessor entered into a private consensual contract when the railroad right-of-way was originally created in 1928. The Plaintiffs attempt to distinguish Strate and Red Wolf, in which the Courts found that the first Montana exception did not apply, on the ground that the rights-of-way in those cases had been granted by Congress, unlike the railroad right-of-way in this case.
In determining that the first
Montana
exception did not apply, the Court of Appeals in
Red Wolf
held that "[a] right-of-way created by congressional grant is a transfer
of a property interest that does not create a
continuing
consensual relationship between a tribe and the grantee." 196 F.3d at 1064
(emphasis added). In this case, Congress did not directly grant the right-of-way
to BNSF's predecessor. Congress, however, legislatively mandated a specific
procedure for creating a right-of-way through Pueblo lands. That statutory procedure,
like a direct Congressional grant, also authorized the unconditional transfer
of Indian property interests to
*1217
non-Indians. An unconditional transfer of Indian property interests, whether
by a direct Congressional grant or through the procedure established in the
Pueblo Lands Act, does not create a "continuing" consensual relationship
between the tribe and the owner of the right-of-way. There is no relevant distinction
between how the right-of-way came into existence in this case and how the rights-of-way
came into existence in
Strate
and
Red Wolf.
Consequently, under
Red Wolf
specifically, the right-of-way deed in this
case, granted in accordance with the provisions of the Pueblo Lands Act, does
not result in continuing consensual relationship between BNSF and the Isleta
Pueblo.
The first
Montana
exception does not apply.
The
Plaintiffs argue in their reply brief that
Atkinson Trading Co., Inc. v. Shirley,
210 F.3d 1247 (10th Cir.2000) supports a finding that the first
Montana
exception is applicable to this case. Unfortunately for the Plaintiffs,
Atkinson Trading Co., Inc.
was reversed by the United States Supreme Court, 532 U.S. 645, 121 S.Ct. 1825,
149 L.Ed.2d 889 (2001).
3. Applying Strate
The Plaintiffs assert that
Strate
is inapposite to this case because the right-of-way in that case was controlled
by the state and the tort that occurred within the state's right-of-way involved
nonmembers of the tribe. Contrary to the Plaintiffs' interpretation, in
Strate
the Supreme Court did not give undue emphasis to the fact that the state owned
the right-of-way. In determining whether
Montana's
general rule should apply, the Supreme Court in
Strate
had to decide if the right-of-way should be considered land alienated to non-Indians.
To make that determination, the Supreme Court discussed whether the tribe retained
a gatekeeping right to the land by being
able to assert dominion or control over the right-of-way, including the right
to occupy the right-of-way and exclude people from the right-of-way. 520 U.S.
at 455-56, 117 S.Ct. 1404.
The Plaintiffs correctly note that unlike this case the injured parties in Strate were not tribal members. In Strate the Supreme Court, however, did discuss the interest of tribal members in exercising tribal jurisdiction over nonmembers when it addressed the second exception to Montana's general rule. The Supreme Court stated: "Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana's second exception requires no more, the exception would severely shrink the rule." 520 U.S. at 457-58, 117 S.Ct. 1404.
Furthermore,
like the Plaintiffs in this case, the plaintiffs in
Red Wolf
were tribal members. In applying
Strate's
analysis of
Montana's
second exception, the court in
Red Wolf
quoted
Wilson v. Marchington,
127 F.3d 805, 815 (9th Cir.1997) as follows: " '[i]f the possibility of
injuring multiple tribal members does not satisfy the second
Montana
exception under
Strate,
then, perforce, [a plaintiff's] status as a tribal member alone cannot.' "
196 F.3d at 1065. The Court of Appeals in
Red Wolf
did not find that the second
Montana
exception applied in that case.
Id.
In sum,
Montana,
Strate,
and
Red Wolf
direct a conclusion that the
Montana
general rule is applicable and that the Isleta Tribal Court does not have jurisdiction
in the tribal case.
The
Plaintiffs also assert for the first time in their reply brief that the right-of-way
deed in this case did not waive tribal jurisdiction. The right-of-way deed,
in fact, did not reserve tribal jurisdiction. As the Plaintiffs concede, the
right-of-way is alienated non-Indian land. Consequently, the
Montana
general rule applies and the Plaintiffs' assertion that the right-of-way deed
in this case did not waive tribal jurisdiction is immaterial.
*1218 4. Indian Country
The
Plaintiffs argue next that the Isleta Tribal Court has jurisdiction in this
case because the BNSF right-of-way is defined as being included in Indian Country
under 18 U.S.C. § 1151. Section 1151 confers tribal jurisdiction over certain
criminal acts occurring in Indian country. "Indian country" includes
"all land within the limits of any Indian reservation under the jurisdiction
of the United States Government, notwithstanding the issuance of any patent,
and,
including rights-of-ways
running through the reservation." 18 U.S.C. § 1151 (emphasis added).
This provision has been applied to questions of civil jurisdiction as well.
See DeCoteau v.
District County Court for Tenth Judicial Dist.,
420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). Section 1151,
however, addresses only claims of statutorily conferred tribal power, "not
an Indian tribe's inherent or retained sovereignty over nonmembers on non-Indian
fee land."
Atkinson Trading Co., Inc. v. Shirley,
532 U.S. 645, 653-54 n. 5, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001). Section 1151
is inapplicable to this case.
5. Federal Preemption
The
Plaintiffs also argue that the Defendants' federal preemption issue should be
heard in Tribal Court. The Defendants had argued in response to the Plaintiffs'
motion to remand that the Plaintiffs' claims are preempted by federal law which
sets the maximum allowable speed of trains.
See CSX Transp., Inc. v. Easterwood,
507 U.S. 658, 676, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The Plaintiffs replied
to that response by indicating that they are not alleging excessive speed by
the Amtrak train. Accordingly, the Plaintiffs' assertion that the federal preemption
issue should be heard in tribal court is moot.
The
Plaintiffs cite
El Paso Natural Gas Co. v. Neztsosie,
136 F.3d 610 (9th Cir.1998) for the proposition that if a federal statute like
the train speed provision does not prohibit tribal jurisdiction of claims arising
under it, the tribal exhaustion rule applies. The Supreme Court,
however, reversed
El Paso Natural Gas v. Neztsosie,
526 U.S. 473, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999). Nonetheless,
El Paso Natural Gas
is readily distinguishable from this case because it involved the Price- Anderson
Act.
Id.
at 484-85, 119 S.Ct. 1430. In fact, the Supreme Court held that "the comity
rationale for tribal exhaustion normally appropriate to a tribal court's determination
of its jurisdiction stops short of the Price-Anderson Act...."
Id.
at 487, 119 S.Ct. 1430.
6. Defendant Amtrak
The Plaintiffs apparently argue that Defendant Amtrak can be subject to suit in Tribal Court because it is not a federal agency or establishment under its authorizing statute, 45 U.S.C. § 541. Section 541 was, however, repealed in 1994, 108 Stat. 1379. Moreover, this Court has already held that there is federal question jurisdiction over the claims against Defendant Amtrak. Memorandum Opinion and Order (Doc. No. 31), filed Aug. 21, 2002.
7. State Jurisdiction
Finally, the Plaintiffs argue that this lawsuit could be tried in state court.
Whether this lawsuit could be tried in state court is irrelevant to the issue
of whether a permanent injunction should ensue which enjoins the Plaintiffs
from pursuing their Tribal Court case. In addition, this Court denied the Plaintiffs'
motion to remand and ruled that there is federal
jurisdiction.
Id.
C. Conclusion
The Plaintiffs have failed to show cause why the preliminary injunction should
not be made permanent. It is clear that the
*1219
Isleta Tribal Court does not have jurisdiction over the tribal lawsuit. The
Court, therefore, is not required to abstain from hearing this lawsuit and the
tribal exhaustion rule is inapplicable. Accordingly, the Defendants succeed
on the merits of their tribal jurisdiction argument. Furthermore, the Plaintiffs
do not contest that the Defendants will suffer irreparable injury unless a permanent
injunction is issued; that the Defendants' threatened injury outweighs any harm
the proposed permanent injunction may cause to the Plaintiffs; and that a permanent
injunction would not be adverse to the public interest.Since
the four requirements necessary to obtain a permanent injunction have been met,
a permanent injunction will issue. The Plaintiffs' request for an award of attorneys'
fees and costs will be denied.
The
Plaintiffs argue in their reply brief that although they have not addressed
these three factors for establishing a permanent injunction, they have not conceded
the establishment of those factors. D.N.M. LR-Cv 7.1(b) states that a failure
to respond to a motion constitutes consent to grant the motion. D.N.M. LR-Cv
7.1(b), therefore,
dictates that the Plaintiffs have consented to the establishment of those three
permanent injunction factors.
IT IS ORDERED that:
1. a permanent injunction enjoining the Plaintiffs from pursuing their claims in the Isleta Tribal Court will be issued; and
2. the Plaintiffs' request for an award of attorneys' fees and costs is denied.