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(Cite as: 2005 WL 2704992 (D.Alaska))

 

United States District Court,

D. Alaska.

Andrea SITTON, et al., Plaintiffs,

v.

NATIVE VILLAGE OF NORTHWAY, et al., Defendants.

No. A03-0134-CV (HRH).

Oct. 13, 2005.

ORDER

 

HOLLAND, J.

Motion to Dismiss

*1 Defendants move to dismiss plaintiffs' second amended complaint.  [FN1] This motion is opposed. [FN2] Oral argument was requested and has been heard.

FN1. Clerk's Docket No. 98. Defendants' motion addresses plaintiffs' first amended complaint even though a second amended complaint was filed long before defendants brought the instant motion. See Clerk's Docket No. 64A. Although the second amended complaint adds a party defendant and adds factual allegations, it is not substantially different from plaintiffs' first amended complaint.

FN2. Clerk's Docket No. 110.

   Background

Plaintiffs are Andrea Sitton and Heather Nichole Sitton, by her next friend and parent, Andrea Sitton. Defendants are Native Village of Northway, Tribal Court for the Native Village of Northway, Gary Thomas, Gerald Albert, Pamela Baker Albert, Cheryl Silas, Lorraine Titus, the Assistant Secretary of the Interior for Indian Affairs, and the United States Department of the Interior.

Plaintiff Andrea Sitton ("Sitton") is the mother of Heather Nichole Felix  ("Heather Nichole"). Darrel Felix ("Felix") is the father of Heather Nichole. Felix and Sitton have never been married. Felix is a member of the defendant Native Village of Northway tribe and has enrolled Heather Nichole in the tribe. Sitton is not a member of the Native Village of Northway tribe.

As described in plaintiffs' second amended complaint, the Native Village of Northway Tribal Court became heavily involved in a custody dispute between Heather Nichole's parents. The Tribal Court entered a custody order regarding Heather Nichole in 1992 under circumstances which strongly suggest that the Tribal Court had no basis for personal jurisdiction over Sitton, from whose custody Heather Nichole was taken. In the year 2003, the Tribal Court effected an emergency, temporary change of custody for Heather Nichole in favor of her grandmother (Felix's mother), who is employed as a tribal administrator by the Native Village of Northway. In further proceedings before the Northway Tribal Court (in which this court understands Sitton to have participated), custody of Heather Nichole was returned to her father by the Tribal Court. The latter decision asserted that:

This court has continuing jurisdiction in the custody matter over the parties and child[ ] in this case, even if one or more of the parties move out of the state of Alaska. If one of the parties want[s] the order to be changed in the future, they should ask the Tribal Court to change the order by filing a written request with the Northway Tribal Court. [FN3]

FN3. In re Felix, No. 133-92, Order Relinquishing Temporary Custody (Northway Tribal Court, May 23, 2003), attached as Exhibit H to Opposition to Defendants' Motion to Dismiss, Clerk's Docket No. 37.

The return of custody of Heather Nichole to her father precipitated the filing of two suits by Sitton. On June 23, 2003, Sitton filed both this action and a state superior court action for custody of Heather Nichole, naming Felix and Heather Nichole's grandmother as defendants.

In the state court proceedings, Felix sought to enforce the Tribal Court's custody order. In December of 2003, the state superior court ruled that the 1992 tribal court order was void ab initio because the Tribal Court did not have personal jurisdiction over Sitton. Specifically, that order says:

The tribal court did not have Sitton's consent to personal jurisdiction over her and therefore any order issued in 1992 may not be recognized under comity principles. [FN4]

FN4. Sitton v. Felix, No. 4FA-03-1395 CI, Memorandum Decision and Order at 13 (Alaska Super.Ct., Dec. 23, 2003), attached as Exhibit A to Federal Defendant's Motion to Dismiss or for Stay, Clerk's Docket No. 43. Felix sought review of this decision by the Alaska Supreme Court, but that court denied his petition for review. See Alaska Supreme Court Case No. S-11362.

On April 19, 2004, the Northway Tribal Court entered an order deferring jurisdiction to the state court to resolve the custody dispute between Sitton and Felix. [FN5] The Tribal Court ordered "that these proceedings are terminated to enable the state court to undertake undisputed jurisdiction over the considerations of custody of this minor child."  [FN6] Shortly after the Tribal Court entered its order deferring jurisdiction to the state court, the Northway defendants in this case moved to dismiss this action on the grounds that it was moot. [FN7]

FN5. In re Felix, No. 133-92, Order Deferring Jurisdiction to State Court at 1 (Northway Tribal Court, Apr. 19, 2004), Attachment # 1, Memorandum and Motion to Dismiss for Mootness, Clerk's Docket No. 75.

FN6. Id.

FN7. Clerk's Docket No. 75.

*2 The court denied the Northway defendants' motion to dismiss. [FN8] In doing so, the court observed that "[w]hile the Tribal Court has closed its case as to plaintiff Heather Felix, it has not and likely could not refuse to consider a further application as regards Heather's custody once the state court proceedings are concluded."  [FN9]

FN8. Order re Motion to Dismiss for Mootness (Aug. 16, 2004) at 3-4, Clerk's Docket No. 82.

FN9. Id.

In September of 2004, Sitton and Felix negotiated a parenting agreement. On November 16, 2004, the Alaska Superior Court entered a custody judgment based on the parenting agreement. [FN10] Under the terms of the custody judgment, Sitton and Felix share the physical and legal custody of Heather Nichole.

FN10. Sitton v. Felix, No. 4FA-03-1395 CI, Custody Judgment (Alaska Super.Ct., Nov. 16, 2004), attached as Exhibit TT to Motion to Vacate Stay, Clerk's Docket No. 84.

In June of 2005, an incident involving Heather Nichole occurred while she was under her father's supervision that has caused Sitton to question Felix's ability to adequately supervise Heather Nichole. [FN11] Sitton attempted to resolve this new issue with Felix informally but those efforts failed.  [FN12] Although Felix and Sitton are currently sharing physical custody of Heather Nichole as contemplated by the November 16, 2004, custody judgment, Sitton is preparing to file a motion in state court to modify the custody judgment to give her sole physical custody of Heather Nichole. [FN13]

FN11. Sealed Affidavit of Andrea Sitton (Aug. 9, 2005), attached to Opposition to Joint Motion to Dismiss, Clerk's Docket No. 110.

FN12. Affidavit of Andrea Sitton at 3-4, ¶ 6 (Oct. 11, 2005), Clerk's Docket No. 124.

FN13. Id. at 6, ¶ 11.

   Discussion

Pursuant to Rule 12(h)(3), Federal Rules of Civil Procedure, defendants now move to dismiss plaintiffs' second amended complaint as moot. Rule 12(h)(3) provides that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."

In their second amended complaint, plaintiffs seek a declaration that the Native Village of Northway was not lawfully recognized by the federal government and thus its court lacks authority to adjudicate the custody dispute between Sitton and Felix (plaintiffs' first and second claims for relief). In the alternative, if the Native Village of Northway is a validly recognized federal tribe with the authority to adjudicate the custody dispute between Sitton and Felix, then plaintiffs seek a declaration that the due process rights of Heather Nichole have been violated (plaintiffs' third and fourth claims for relief). Lastly, plaintiffs seek to enjoin the Native Village of Northway and the Northway Tribal Court from taking any action regarding the custody dispute between Sitton and Felix. Defendants argue that there is no longer a live case or controversy to support these requests for declaratory and injunctive relief because the custody dispute between Sitton and Felix has been resolved in state court and the Northway Tribal Court no longer has an open case involving Heather Nichole's custody. In short, defendants contend that Sitton has been afforded the very relief she sought in this case, which was to have Heather Nichole's custody decided in state court, without any interference from the Northway Tribal Court.

Plaintiffs dispute defendants' assertion that Sitton has been afforded the very relief that she sought in this case. Plaintiffs aptly argue that this case has nothing to do with the actual custody dispute that existed between Sitton and Felix. The court previously recognized that in this case plaintiffs are challenging "the very existence of the tribal court and/or the constitutionality of the consequence of there being state and tribal court jurisdiction over child custody matters, if there is such dual jurisdiction."  [FN14] Plaintiffs have not been afforded the relief they seek here, which is a declaration that the Northway Tribal Court has no jurisdiction over any child custody dispute involving Heather Nichole and a permanent injunction prohibiting the Tribal Court from ever asserting itself into any custody matters involving Heather Nicole. But the fact that plaintiffs have not been afforded the relief they seek in their second amended complaint does not answer the question currently before the court, which is whether this case is moot.

FN14. Order re Motion to Dismiss or Stay at 6 (Apr. 20, 2004), Clerk's Docket No. 71.

*3 "A case is moot if the issues presented are no longer live and there fails to be a 'case or controversy' under Article III of the Constitution." In re Burrell, 415 F.3d 994, 998 (9th Cir.2005). This case is essentially a declaratory judgment action. The test for mootness in a declaratory action is " 'whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." ' Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir.2005) (quoting Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1174-75 (9th Cir.2002)). Plaintiffs also seek injunctive relief in their second amended complaint. "[A] suit for injunctive relief is normally moot upon the termination of the conduct at issue[.]" Demery v. Arpaio, 378 F.3d 1020, 1025-26 (9th Cir.2004).

As detailed in the background statement above, the Northway defendants injected themselves into the matter of Heather Nichole's custody. However, state and federal court litigation having been commenced by Sitton, and the Northway defendants having obtained legal counsel, the tribal court unequivocally took itself out of the controversy, expressly terminating the tribal court proceedings "to enable the state court to undertake undisputed jurisdiction over the considerations of custody of this minor child."  [FN15] The Tribal Court is presumed to have known of AS 25.30.310, discussed below, in ceding jurisdiction to the state court.

FN15. In re Felix, No. 133-92, Order Deferring Jurisdiction to State Court at 1 (Apr. 19, 2004), Attachment # 1, Memorandum and Motion to Dismiss for Mootness, Clerk's Docket No. 75 (emphasis added).

Subsequent to the cessation of tribal court proceedings as to Heather Nichole's custody, and as a result of a settlement between her parents, the Alaska Superior Court entered a custody judgment. That judgment constituted a "custody determination" for purposes of AS 25.30.310, which provides that a state court that has rendered a custody determination consistent with certain other state statutes, "has exclusive, continuing jurisdiction over the determination...."  [FN16]

FN16. AS 25.30.310 contains several exceptions to the exclusivity of state court jurisdiction, none of which have application in the present case.

In light of the fact that the tribal court terminated its jurisdiction over the custody matter, and in light of the fact that the state court now has exclusive continuing jurisdiction over the custody matter by virtue of having entered a custody judgment, this court concludes that there is no ongoing, live dispute which calls into question the legal existence of the Northway Tribal Court. This conclusion means that plaintiffs' first and second claims for relief are moot, and this court has no jurisdiction over these claims.

Plaintiffs' third and fourth claims for relief assume the viability of the Tribal Court, but contend that its existence and possible assertion of jurisdiction over the Heather Nichole custody matter violates her Fifth Amendment due process rights. However, once the Tribal Court deferred jurisdiction to the state court and the state court made a custody determination, there was no reasonable basis for plaintiffs to believe that they would be deprived of the state law rights and benefits which they claim to be federally protected by the Fifth Amendment. The state court jurisdiction on the child custody matter being exclusive, there is no threat to the rights which are urged through plaintiffs' third and fourth claims for relief. Since the entry of its April 2004 order, the Tribal Court has neither threatened not taken any action regarding the custody of Heather Nichole. The court concludes that there is no live controversy as to plaintiffs' due process claims. Plaintiffs' third and fourth claims as well as their claim for injunctive relief are moot, and this court has no jurisdiction over these claims.

*4 In sum, this action is moot because the issues presented are no longer live. Plaintiffs seek no monetary relief from any defendant--only declaratory and injunctive relief. Under the circumstances of this case, a declaratory judgment as to any of plaintiffs' claims would be advisory; and an injunction, where the conduct at issue has ceased and there is no reasonable threat of future injury, would be inappropriate for lack of an immediate, real controversy.

There are, of course, exceptions to the mootness doctrine upon which the foregoing determinations are founded. Plaintiffs argue that the voluntary cessation exception to mootness applies here. "Voluntary cessation saves an issue from becoming moot if the defendant voluntarily stops the allegedly illegal conduct to avoid a judgment against him, unless it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." ' Forest Guardians v. United States Forest Service, 329 F.3d 1089, 1095 (9th Cir.2003) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Although defendants bear a " 'heavy burden" ' of showing that the wrongful conduct cannot reasonably be expected to recur, defendants have met that burden here. Students for a Conservative America v. Greenwood, 378 F.3d 1129, 1131 (9th Cir.2004) (quoting Laidlaw, 528 U.S. at 189).

The Tribal Court's express deferral of undisputed jurisdiction over the custody matter to the state court and the provisions of AS 25.30.310 are, taken together, powerful evidence that the Northway defendants (and in particular the Tribal Court) will not again inject themselves into that custody matter. The court is reassured in this conclusion by virtue of the fact that, even in the face of the new difficulties between Sitton and Felix regarding the custody of their daughter, neither Felix nor anyone associated with the Tribal Court has endeavored to recommence proceedings with respect to Heather Nichole before the Tribal Court. There is every reason to believe--and no reason to doubt--that if further custody proceedings are necessary, they will be before the state superior court.

On behalf of Sitton, it is argued that she has the right to be reassured by action of this court that the tribal court will not again intervene in the matter of Heather Nichole's custody. The court understands that Sitton is anxious over the custody situation and is concerned  [FN17] that the Tribal Court would once again inject itself into the custody matter. Unfortunately, custody decisions are inherently unstable. As plaintiffs themselves pointed out in their briefing on the instant motion, custody judgments are subject to modification during the minority of a child. The court understands that having once been subjected to actions of the Tribal Court, Sitton is fearful that the Tribal Court will again intervene. However, just as custodial facts can change, the legal landscape of this custody situation has changed. Against the current legal landscape, there is absolutely no reason at this time to believe that the Northway defendants (the Tribal Court in particular) would endeavor to evade the finality of the Tribal Court's decision to defer to the state court, which has now acted so as to trigger application of AS 25.30.310 which makes state court jurisdiction exclusive as to the custody of Heather Nichole.

FN17. Affidavit of Andrea Sitton at 6-7, ¶ 11 (Oct. 11, 2005), Clerk's Docket No. 124.

*5 As the parties know, the court was heretofore concerned about the concurrent jurisdiction that originally existed between the Tribal Court and the state court. In connection with an earlier motion to dismiss, the court unartfully expressed its concern by observing that, "[w]hile the Tribal Court has closed its case as to plaintiff Heather Felix, it has not and likely could not refuse to consider a further application as regards Heather's custody once the state court proceedings are concluded."  [FN18] This observation was made in the context of telling the parties that, because of a pending appeal, this district court was without jurisdiction to consider defendants' second motion to dismiss or plaintiffs' motion to vacate a stay of these proceedings. At the time the state court had held that the Tribal Court did not have jurisdiction over Sitton, but the parenting agreement between Sitton and Felix had not yet been made the subject of a judgment. The possibility of concurrent jurisdiction remained. The parties had not referred to, nor did the court on its own learn of, the provisions of AS 25.30.310 until the briefing on the instant motion to dismiss was received. The court's primary concern when addressing the matter previously was that the Tribal Court, like any other court, simply could not ignore a new custody petition if one was put before it. The Tribal Court would have had to take some action on the petition; and, in August of 2004, this court had little insight into how the Tribal Court might react to such a petition. Now, however, it is clear to the court that if the matter of custody of Heather Nichole were put before the Tribal Court at this time, the tribal court would necessarily reject such a petition because there is no longer any concurrent jurisdiction. The Tribal Court, having ceded jurisdiction to the state court, would, under the principles of comity, surely honor the state court's exclusive jurisdiction because of AS 25.30.310.

FN18. Order re Motion to Dismiss for Mootness at 3-4 (Aug. 16, 2004), Clerk's Docket No. 82.

The court concludes that it is " 'absolutely clear" ' that the Tribal Court's assertion of jurisdiction over the custody of Heather Nichole " 'could not reasonably be expected to recur." ' Laidlaw, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). Thus, the voluntary cessation exception to the mootness doctrine has no application here.

For the same reasons, the "capable of repetition yet evading review" exception does not apply here. This exception applies "when (1) the duration of the challenged action is too short to be litigated prior to cessation, and (2) there is a 'reasonable expectation' that the same parties will be subjected to the same offending conduct." Emery, 378 F.3d 1020, 1027 (9th Cir.2004) (quoting Spencer v. Kemna, 523 U.S. 1, 17-18 (1998)). Assuming that the first element of the test is met here, there is no reasonable expectation that plaintiffs will again be subjected to the jurisdiction of the Tribal Court in the matter of Heather Nichole's custody.

Conclusion

*6 Defendants' motion to dismiss is granted. The clerk of court shall enter judgment dismissing this action as moot.