Case 3:17-cv LRH-WGC Document 52 Filed 11/30/17 Page 1 of 5

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1 Case :-cv-00-lrh-wgc Document Filed /0/ Page of 0 Robert F. Saint-Aubin Nevada State Bar No. 0 rfsaint@me.com Saint-Aubin Chtd. Howard Hughes Pkwy Suite 0 Las Vegas, NV Telephone: (0-00 Facsimile: ( -0 Michael Angelovich* mangelovich@nixlaw.com Austin Tighe* atighe@nixlaw.com NIX, PATTERSON & ROACH, LLP 00 N Capital of Texas Hwy Bldg. B, Suite 0 Austin, Texas Telephone: ( - Facsimile: ( - *Each will timely comply with LR IA - Attorneys for Yerington Paiute Tribe, Laurie A. Thom in her official capacity as Chairman of the Yerington Paiute Tribe, Albert Roberts, in his official capacity as Vice Chairman of the Yerington Paiute Tribe, Elwood Emm, Linda Howard, Nate Landa, Delmar Stevens, and Cassie Roberts, in their official capacities as Yerington Paiute Tribal Council Members UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BP AMERICA INC., and ATLANTIC Case No. :-cv-00-lrh-wgc RICHFIELD COMPANY, Plaintiffs, v. RESPONSE TO AMENDED MOTION FOR PRELIMINARY INJUNCTION, SUBJECT TO MOTION TO DISMISS FOR LACK OF JURISIDCTION YERINGTON PAIUTE TRIBE; LAURIE A. THOM, in her official capacity as Chairman of the Yerington Pauite Tribe;

2 Case :-cv-00-lrh-wgc Document Filed /0/ Page of 0 ALBERT ROBERTS, in his official capacity as Vice Chairman of the Yerington Paiute Tribe, ELWOOD EMM, LINDA HOWARD, NATE LANDA, DELMAR STEVENS, and CASSIE ROBERTS, in their official capacities as Yerington Paiute Tribal Council Members; DOES -, in their official capacities as decision-makers of the Yerington Paiute Tribe; YERINGTON PAIUTE TRIBAL COURT; and SANDRA-MAE PICKENS in her official capacity as Judge of the Yerington Paiute Tribal Court, Defendants. Defendants Yerington Paiute Tribe; Laurie A. Thom, in her official as Chairman of the Yerington Paiute Tribe; Albert Roberts, in his official capacity as Vice Chairman of the Yerington Paiute Tribe; and Elwood Emm, Linda Howard, Nate Landa, Delmar Stevens, and Cassie Roberts, in their official capacities as Yerington Tribal Council Members (collectively, Defendants, file this Response to the Amended Motion for Preliminary Injunction (Dkt. filed by BP America, Inc. and Atlantic Richfield Company, who are referred to collectively herein as BP. Defendants Response is made subject to its Motion to Dismiss Amended Complaint for Lack of Jurisdiction (Dkt.. In filing this Response, Defendants do not waive, and expressly reserve, their sovereign immunity and all rights and defenses attendant thereto, as well as all defenses to this Court s jurisdiction. BP s Amended Motion for Preliminary Injunction presumes that this Court has subject matter jurisdiction to decide that Motion. Defendants position is that this Court does not have subject matter jurisdiction, as set forth in Defendant s Motion to Dismiss Amended Complaint for Lack of Jurisdiction (Dkt., which is fully incorporated herein by reference, as if set forth in its entirety. Defendants take the position that because BP s Amended Complaint should be dismissed for lack of jurisdiction, Defendants should not be required, nor is it proper, to engage in motion

3 Case :-cv-00-lrh-wgc Document Filed /0/ Page of 0 practice prior to this Court s determination of the Motion to Dismiss Amended Complaint for Lack of Subject Matter Jurisdiction (Dkt., especially where that Motion is premised in part on Defendants sovereign immunity from suit in this forum. BP s Motion is a transparent attempt to get Defendants to waive sovereign immunity by responding in substance. Defendants decline to take that bait, and stand on their position that this Court lacks subject matter jurisdiction in the first instance. Without jurisdiction, this Court cannot consider BP s motion. It can only dismiss the case. See Scott v. Pasadena Unified Sch. Dist., 0 F.d, n. (th Cir 0; Shell Offshore Inc. v. Greenpeace, Inc., F. Supp. d, (D. Alaska (citing Cooper Indus., Inc. v. U.S.E.P.A., F. Supp. 0, 0 (W.D. Mich. ; Zepeda v. U.S.I.N.S., F.d, (th Cir. ("A federal court may issue an injunction if it has subject matter jurisdiction over the claim..."; Bear v. C.I.R., F. Supp. 0, 0 (E.D. Wash. (court must determine subject matter jurisdiction before granting equitable relief of injunction; Ferm v. McCarty, WL, at * (D. Nev. Jan., ("If the court lacks subject matter jurisdiction, any request for a preliminary injunction is rendered moot." (citing Shell, F. Supp. d at. WHEREFORE, Defendants Yerington Paiute Tribe; Laurie A. Thom, in her official as Chairman of the Yerington Paiute Tribe; Albert Roberts, in his official capacity as Vice Chairman of the Yerington Paiute Tribe; and Elwood Emm, Linda Howard, Nate Landa, Delmar Stevens, and Cassie Roberts, in their official capacities as Yerington Tribal Council Members, respectfully pray for this Court to deny and dismiss BP s Amended Motion for Preliminary Injunction, and/or find that said Motion is moot, in conjunction with dismissing the case. DATED this 0 th day of November,. Respectfully submitted, By:_/s/ Robert F. Saint-Aubin Robert F. Saint-Aubin Nevada State Bar No. 0 rfsaint@me.com

4 Case :-cv-00-lrh-wgc Document Filed /0/ Page of 0 Saint-Aubin Chtd. Howard Hughes Pkwy Suite 0 Las Vegas, NV Telephone: (0-00 Facsimile: ( -0 Michael Angelovich* mangelovich@nixlaw.com Austin Tighe* atighe@nixlaw.com NIX, PATTERSON & ROACH, LLP 00 N Capital of Texas Hwy Bldg. B, Suite 0 Austin, Texas Telephone: ( - Facsimile: ( - *Pro Hac Vice to be Filed Attorneys for Defendants Yerington Paiute Tribe; Laurie A. Thom, in her official as Chairman of the Yerington Paiute Tribe; Albert Roberts, in his official capacity as Vice Chairman of the Yerington Paiute Tribe; and Elwood Emm, Linda Howard, Nate Landa, Delmar Stevens, and Cassie Roberts, in their official capacities as Yerington Tribal Council Members

5 Case :-cv-00-lrh-wgc Document Filed /0/ Page of CERTIFICATE OF SERVICE I hereby certify that service of the foregoing RESPONSE TO AMENDED MOTION FOR PRELIMINARY INJUNCTION, SUBJECT TO MOTION TO DISMISS FOR LACK OF JURISDICTION, was made through the court s electronic filing and notice system (CM/ECF or, as appropriate, by first class mail, addressed to the following on November 0,. 0 Adam S Cohen 0 Seventeenth St., Ste 00 Denver, CO 0 Constance L. Rogers 0 th Street, Suite 00 Denver, CO 0 Jill Irene Greiner Dotson Law One East First Street City Hall Tower, th Floor Reno, NV 0 Kenzo Sunao Kawanabe 0 Seventeenth St., Ste 00 Denver, CO 0 Dated this 0 th day of November,. Kyle Wesley Brenton 0 Seventeenth St., Ste 00 Denver, CO 0 Robert A Dotson Dotson Law One East First Street, Ste 00 Reno, NV 0 Daniel T. Hayward Laxalt & Nomura Ltd 00 Gateway Dr Reno, NV Charles R. Zeh, Esq. The Law Offices of Charles R. Zeh, Esq. Forest Street, Suite 0 Reno, NV 0 /s/robert Saint Aubin, Esq.