Case3:13-cv RS Document203 Filed05/19/14 Page1 of 32

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1 Case:-cv-0-RS Document0 Filed0// Page of 0 SLOVAK BARON EMPEY MURPHY & PINKNEY, LLP Thomas S. Slovak (CASB# John O. Pinkney (CASB# Charles L. Gallagher (CASB# 0 00 East Tahquitz Canyon Way Palm Springs, California Tel: sartain@sbemp.com pinkney@sbemp.com Attorneys for Plaintiff John P. Anderson, individually and in his official capacity as a Sheriff of Madera County UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 00 East Tahquitz Canyon Way Palm Springs, CA 0 JOHN P. ANDERSON, in his official capacity as the Sheriff of Madera County, and individually, v. Plaintiff, JACK DURAN, JR., in his purported official capacity as Judge of the Picayune Rancheria of the Chukchansi Indians Tribal Court; DONNA HOWARD, in her purported official capacity as Clerk of the Picayune Rancheria of the Chukchansi Indians Tribal Court; THE PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS, a federally recognized Indian Tribe; CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY, a wholly owned unincorporated entity of the Picayune Rancheria of the Chukchansi Indians; CHUKCHANSI INDIAN HOUSING AUTHORITY, a wholly owned unincorporated entity of the Picayune Rancheria of the Chukchansi Indians; CASE NO. :-cv-0-rs [Action filed: 0-- Assigned to: Hon. RICHARD SEEBORG Courtroom ] [Oral Argument Requested.] PLAINTIFF S OPPOSITION TO DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF New Date: July, 0 Time: 0:00 a.m. Courtroom: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

2 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 REGGIE LEWIS, in his purported official capacities as chairman of the Picayune Rancheria of the Chukchansi Indians; a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority; CHANCE ALBERTA, in his purported official capacities as vice chairman of the Picayune Rancheria of the Chukchansi Indians; a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority; CARL BUSHMAN, in his purported official capacities as a council member of the Picayune Rancheria of the Chukchansi Indians; a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority; IRENE WALTZ, in her purported official capacities as a council member of the Picayune Rancheria of the Chukchansi Indians; a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority; LYNN CHENOT, in her purported official capacities as a council member of the Picayune Rancheria of the Chukchansi Indians; a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority; DAVID CASTILLO, in his purported official capacities as a council member of the Picayune Rancheria of the Chukchansi Indians; a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority; and MELVIN ESPE, in his purported official capacities as a council member of the Picayune Rancheria of the Chukchansi Indians, a representative of the Chukchansi Economic Development Authority; and a representative of the Chukchansi Indian Housing Authority. Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

3 Case:-cv-0-RS Document0 Filed0// Page of 0 TABLE OF CONTENTS Page I. Introduction. II. Defendants Motion Is A Motion For Summary Judgment.... III. The Relief Sought by Plaintiff Does Not Require This Court to Determine The Identity of the Tribe s Leadership or Resolve the Tribe s Intra-Tribal Dispute.. IV. Defendants Positions Asserted In This Motion Are Taken In Bad Faith And Directly Contradict Admissions And Inconsistent Statements Made In This And Other Cases A. Legal Standards Applicable to Defendants Admissions and Numerous Contradictory Statements B. Defendants Are Precluded From Asserting The New Facts And Positions Upon Which They Now Rely And Which Contradict Their Prior Positions. 0 V. The Issues Before This Court Are Not Moot VI. Plaintiff has standing to bring this action before this Court VII. This Court has jurisdiction over Defendants VIII. A. This Court has jurisdiction under U.S.C. Section B. This Court has subject matter jurisdiction as the above cited case law and the Eleventh Amendment bar Defendants from exercising jurisdiction over Plaintiff C. Defendants waived their sovereign immunity in the 00 MOU and consented to the Court s jurisdiction D. This Court has jurisdiction over the individually named Defendants under the Ex Parte Young Doctrine Defendants Attempt to Adjudicate the Issue of Attorney s Fees and Costs is Premature IX. Conclusion i Tables of Contents & Authorities

4 Case:-cv-0-RS Document0 Filed0// Page of FEDERAL COURTS TABLE OF AUTHORITIES Page 0 0 In re Applin 0 B.R. (E.D. California..... Am. Title Ins. Co. v. Lacelaw Corp. F.d (th Cir Arizonans for Official English., Arizona 0 U.S. ( Blatchford v. Native Village of Noatak & Circle Village 0 U.S. ( Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation U.S. 0 ( Brewster v. Shasta County F. d 0 ( th Cir Chambers v. NASCO, Inc. 0 U.S. ( Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, U.S. ( Cortez v. County of Los Angeles F.d ( th Cir County of Lewis v. Allen F.d 0 ( th Cir , 0 In re Elias B.R. 0 ( th Cir. BAP E.E.O.C. v. Peabody Western Coal Co. 0 F.d 00 ( th Cir Fink v. Gomez F.d ( th Cir In re Fordson s Eng g Corp. B.R. 0 (Bankr. E.D. Mich Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC, Inc. U.S. ( , Galbraith v. County of Santa Clara 0 F.d ( th Cir Hamilton v. State Farm Fire & Cas. Co. 0 F.d (th Cir Idaho v. Coeur d Alene Tribe of Idaho U.S. (. Klamath Water Users Protection Ass n v. Patterson 0 F.d 0 ( th Cir.... ii Tables of Contents & Authorities

5 Case:-cv-0-RS Document0 Filed0// Page of 0 0 FEDERAL COURTS (cont. Page Kremen v. Cohen F.d 0 ( th Cir Lee v. City of Los Angeles 0 F.d, 0 ( th Cir. 0. Milton H. Green Archives, Inc. v. Marilyn Monroe LLC F.d ( th Cir. 0 In re Mora F.d 0 ( th Cir... Nat l Famers Union Ins. Companies v. Crow Tribe of Indians U.S. (. Natural Resources Defense Council v. California Dept. of Transp. F.d 0 ( th Cir... Nevada v. Hicks U.S. (00 0, Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma U.S. 0 (.... Picayune Rancheria of Chukchansi Indians v. Henriquez 0 WL 00 (D.Ariz., Dec., 0..., Russell v. Rolfs F.d 0 ( th Cir. 0.. Sac & Fox Tribe of the Mississippi in Iowa Election Bd. v. Bureau of Indian Affairs F.d (th Cir Skilstaf, Inc. v. CVS Caremark Corp. F.d 00 (th Cir. 0. Strate v. A- Contractors 0 U.S. (., 0 Streit v. County of Los Angeles F.d ( th Cir. 00 Timbasha Shoshone Tribe v. Kennedy F.Supp.d (E.D. Cal Vann v. United States Dept. of the Interior 0 F.d (D.C. Dist. 0. White v. ARCO/Polymers, Inc. 0 F.d ( th Cir.... Whitmore v. Arkansas U.S. (0.. Ex Parte Young 0 U.S. (0, iii Tables of Contents & Authorities

6 Case:-cv-0-RS Document0 Filed0// Page of FEDERAL STATUTES, RULES, AND LOCAL RULES Page U.S.C section U.S.C section Federal Rule (d((a..... CALIFORNIA SUPREME COURT Venegas v. County of Los Angeles Cal. th 0 ( SECONDARY SOURCES K. Broun, MCCORMICK ON EVIDENCE, P. ( th Ed iv Tables of Contents & Authorities

7 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 I. Introduction: As this Court is aware, the Lewis Faction disputed the manner in which the Sheriff provided law enforcement services both on and off the Rancheria of the Picayune Rancheria of the Chukchansi Indians ( Tribe. Holding itself out as the Tribe, the Lewis Faction sued the Sheriff ( Sheriff or Plaintiff and each of the Madera County supervisors in a tribal court for $ million and injunctive relief. The tribal court, presided over by defendant Duran, issued an onerous temporary restraining order ( TRO purporting to exercise jurisdiction and control over the Sheriff and interfere with his law enforcement duties. Upon being sued in tribal court, the Sheriff and county supervisors filed a motion in tribal court contesting the tribal court s jurisdiction. Judge Duran granted the motion to dismiss as to the county supervisors but held that the tribal court had jurisdiction over the Sheriff in his official and individual capacities. The Sheriff then filed this action challenging tribal court jurisdiction over claims arising out of his law enforcement duties and activities. The Lewis-Reed-Duran defendants and their legal counsel have represented, admitted (at times under oath and certified to multiple courts and federal agencies that the Lewis-Reed-Duran defendants are the Tribe, its entities and its court. Consistent therewith, the very motion now before this Court was filed by the Lewis-Reed-Duran defendants as the Tribe, the Chukchansi Economic Development Authority ( CEDA and the Chukchansi Indian Housing Authority ( CIHA. But in a complete reversal of their prior admissions and certifications to various courts, the Lewis-Reed- Duran defendants now claim for the first time that they are not the Tribe, its entities or its court and never have been and seek thereby to avoid this Court s jurisdiction. Defendants change in positions is a misguided strategic attempt to convince this Court that the relief sought by Plaintiff requires this Court to resolve the dispute over the tribal leadership s identity. Contrary to Defendants assertion, this Court need not determine the identity of the Tribe s government to resolve the controversy before it. This action was filed against a federally recognized Tribe, CIHA, CEDA, individuals in their purported official capacities, and against a tribal court. All interested parties and real parties in interest have appeared in this action. The MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

8 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 identity of the individuals that occupy the chairs of the Tribe s governing councils at any given moment is immaterial to a ruling that no tribal court has jurisdiction over the Sheriff. Upon conclusion of this case, the Tribe will be left to address the identity of its tribal councils on its own accord and timeline. The Lewis-Reed-Duran defendants are bound by their prior positions and judicial admissions and are estopped from now denying them. The Lewis-Reed-Duran strategy to now contradict everything they and their legal counsel have admitted and certified to this Court, to other courts and to federal agencies is the definition of bad faith. Plaintiff requests that this Court not permit the Lewis-Reed-Duran defendants to deny and contradict their prior admissions merely because they believe in doing so, they will cause this Court to conclude it is without jurisdiction. Defendants Motion for Judgment on the Pleadings ( MJP or Motion not only contradicts defendants prior admissions, it misrepresents Plaintiff s positions and is based on incomplete citations to the record and controlling law. What Defendants MJP does accomplish is to emphasize the need for this Court s intervention and a clear ruling that the Tribe s courts lack jurisdiction over Plaintiff. Without a clear ruling, the Tribe, its courts and entities are capable of again exercising jurisdiction over the Sheriff and asserting that Plaintiff is subject to tribal law. Counsel for the Lewis Faction made this abundantly clear in statements to this Court and Defendants have made it clear in their persistent refusal to dismiss the tribal court action with prejudice. Without the clear ruling Plaintiff seeks, the controversy concerning tribal court jurisdiction over the Sheriff will continue. The tribal court action continues to hang over the Sheriff ready to be re-filed the moment the Lewis-Reed-Duran defendants believe it advantageous to do so or disagree with the Sheriff s law enforcement activities. This controversy has been at great cost to Plaintiff and to the citizens of Madera County. It also has created and will continue to create confusion among the Tribe s competing and heavily armed security forces in terms of what, if any, jurisdiction the Sheriff has on the Rancheria and at tribal installations. This continuing and deliberate confusion heightens the risk of further violence between the Tribe s armed forces and Sheriff s officers as they work to keep the peace and enforce MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

9 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 the law on and off the Rancheria. A clear ruling that tribal courts lack jurisdiction over the Sherriff in fulfilling his law enforcement duties is needed to bring this matter to an end. Accordingly, Plaintiff urges this Court to deny Defendants self-contradicting and misleading MJP and to grant Plaintiff s motion for summary judgment ( MSJ. II. Defendants Motion Is A Motion For Summary Judgment Defendants correctly acknowledge that a court may convert a (c motion for judgment on the pleadings to one for summary judgment... (MJP 0:-. When responding to a defendant s motion for judgment on the pleadings, the opposition may include any evidence upon which the plaintiff relies including declarations, additional evidence, materials, and memoranda of points and authorities. (See ND Civil Local Rule -(a. This converts the motion into a motion for summary judgment. In this opposition, Plaintiff relies on the numerous pleadings already filed, including Plaintiff s recently filed Motion for Summary Judgment ( MSJ ; the memorandum of points and authorities in support of Plaintiff s MSJ; the extensive declaration of the Sheriff (Sheriff s MSJ Declaration ; Plaintiff s evidence as detailed in the accompanying declarations of Lena Wade ( Wade Declaration and the Sheriff ( Sheriff s Opposition Declaration ; statements Defendants made through their counsel during hearings in this case; all the evidence and authorities submitted in support of Plaintiff s earlier filed requests for a temporary restraining order and preliminary injunction; and evidence Defendants have submitted. Contrary to the standard applicable to a motion for judgment on the pleadings, Defendants Motion does not accept as true many of the allegations in Plaintiff s Complaint. Defendants also frequently cite to matters outside the record; albeit often improperly. Defendants proffer arguments based on evidence offered through requests for judicial notice to support improper and inadmissible conclusions. Although matters subject to judicial notice under Rule 0 of the Federal Rules of Evidence may be used with a motion to dismiss (See Skilstaf, Inc. v. CVS Caremark Corp. F.d 00, 0 (th Cir. 0, a court may not take judicial notice of a matter that is subject to dispute nor of legal determinations made by other courts as to the truth of the matters recited therein. (In re Mora, F.d 0, 0, fn. (th Cir. ; Lee v. City of Los Angeles, 0 F.d, 0 ( th Cir. 0, overruled on other grounds by Gailbraith v. County of Santa Clara, 0 F.d, - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

10 Case:-cv-0-RS Document0 Filed0// Page0 of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 Below are three instances which require Defendants Motion to be properly characterized as one for summary judgment.. Defendants cite to the February, 0, letter issued by Amy Dutschke, BIA Pacific Regional Director, characterized as the BIA Decision, and cite to [Request for Judicial Notice] Exhibit B. They then argue that it provides an authoritative description of much of the course of the intra-tribal Dispute which is summarized below. (MJP :-. Defendants argue the facts and consequences surrounding the leadership dispute pursuant to the non-binding, factual conclusions alleged by Ms. Dutschke.. Defendants mootness argument at page, lines 0 through page, line of the MJP involves recent evidence submitted to the Court by Plaintiff through his MSJ and specifically the declaration of Plaintiff in support thereof.. At footnote on page of the MJP, Defendants assert that they, for the reasons set forth therein, also would be entitled to summary judgment. By reason of the evidence submitted by all parties, beyond the four corners of the pleadings, Defendants MJP should be treated as a motion for summary judgment. III. The Relief Sought By Plaintiff Does Not Require This Court To Determine The Identity Of The Tribe s Leadership Or Resolve The Tribe s Intra-Tribal Dispute Plaintiff has sued a federally recognized Tribe, along with tribal entities, a tribal court judge and clerk, and tribal members in their purported official capacities. Plaintiff s Complaint filed in this Court ( Complaint accurately details that there were and remain competing tribal factions that claim to be the tribal government. The Complaint alleges that the Lewis Faction claimed to be the lawful and legitimate representatives of the Tribe, CEDA and CIHA (collectively referred to as Tribal Entities. Defendants MJP asserts that because the Complaint raises issues of an intra- ( th Cir. 00. Simply because a document may be admitted for the purpose of showing something occurred does not necessarily mean that the information contained therein may serve as evidence. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

11 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 tribal dispute with two competing tribal courts, and later occurring elections in December 0, this Court has no jurisdiction to address the matters now before it. Defendants miss the point. Plaintiff s Complaint is not concerned with which tribal faction is the Tribe s governing council. Rather, Plaintiff asserts that no tribal entity, faction or court can assert jurisdiction over him. By selective citation to limited allegations in the Complaint, Defendants purposely ignore numerous allegations that contravene the basis of Defendants ill-conceived argument. For example, the Complaint alleges that Plaintiff... seeks to void and otherwise restrain any further attempts to enforce the TRO or similar orders, or to compel Sheriff Anderson to proceed in the Lewis Faction Tribunal, and seeks rulings related to these matters in dispute including an order requiring dismissal of such proceeding. (Compl. ; emphasis added. The Complaint asserts that injunctive and declaratory relief is necessary to,...enjoin any efforts by Defendants to prosecute, direct, maintain, enforce or exercise jurisdiction over Sheriff Anderson in any Tribal Court, and most specifically, the Lewis Faction Tribunal presided over by Defendant Duran, inasmuch as there is no jurisdictional basis to assert the claims against Plaintiff as alleged in the Lewis Faction Tribal Lawsuit, or to issue the TRO or any other such orders or further orders as pled in the Lewis Tribal Lawsuit. The Eleventh Amendment to the United States Constitution and cases interpreting same make clear that Sheriff Anderson is immune from suit as Sheriff of Madera County as an agent of the state enforcing California s laws. (Compl. ; emphasis added. Again, it is not necessary for this Court to adjudicate which of the competing tribal factions is the Tribe s legitimate government. Plaintiff s Complaint merely seeks a ruling that no tribal court may assert jurisdiction over him including, but not limited to, the Lewis Faction Tribunal. (Compl.. Paragraph of the Complaint alleges and seeks orders restraining any further action against him in any tribal court, once established. At Paragraph of the Complaint, Plaintiff alleges that [t]here is no colorable claim of Tribal Court authority as there is no provision MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

12 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 under the law that provides for any Tribal Court governance of Sheriff Anderson, whether in his official capacity or individually. There are numerous other allegations throughout the Complaint, which make clear that Plaintiff has alleged that: the Tribal Entities, by whomever controlled, have no jurisdiction over him with respect to the matters at issue; Defendants have no right to interfere with his law enforcement duties; and Plaintiff requires this Court s assistance. (Compl. 0 & allegations in prayer. None of these claims or allegations require this Court to determine which tribal faction controls the Tribal Entities. The Court need not decide any intra-tribal disputes because no tribal court has jurisdiction over Plaintiff and no tribal laws are applicable to or govern Plaintiff s law enforcement duties, regardless of which tribal faction actually controls the Tribe. Defendants citation to and reliance on Picayune Rancheria of Chukchansi Indians v. Henriquez, 0 WL 00 (D.Ariz., Dec., 0, while misplaced (MJP p., actually supports Plaintiff s position. In that action, the Ayala Faction, represented by Attorneys Rapport and Marston on behalf of itself and the Tribe, filed suit against the U.S. Department of Housing and Urban Development, Southwest Office of Native American Programs, and their representatives, asserting several violations including a violation of federal common law by failing to acknowledge the tribal council at the last undisputed election. Paragraphs therein also alleged that Plaintiffs are entitled to declaratory relief regarding the recognition of tribal orders which recognize the Ayala Faction as the lawful governing body of the Tribe. The court agreed with Defendants that resolution of the claims [of that paragraph] would require the Court to recognize the Ayala Faction over other factions. (Id. In so finding under the facts of that case, Defendants cite the general proposition that Federal Courts lack jurisdiction to decide intra-tribal disputes. (MJP :; Sac & Fox Tribe of the Mississippi in Iowa Election Bd. v. Bureau of Indian Affairs, F.d, (th Cir. 00. The cases cited by Defendants have no bearing on the issues now before this Defendants reformat this false argument later on the issue of mootness, claiming Plaintiff has obtained all relief sought in the Complaint, when the contrary is true. (MJP 0:. Additional specific citations to the Complaint are set forth in Section V, below which apply also to the arguments made in this Section. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

13 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 Court. What becomes clear from reading the cases upon which Defendants rely is that Plaintiff need not and does not request that this Court resolve the intra-tribal dispute as to which faction is the lawful governing body of the Tribe as did the plaintiffs in Henriquez. Nor is Timbisha Shoshone Tribe v. Kennedy, F.Supp. d, (E.D. Cal. 00 instructive. In Timbisha, one tribal faction sued another in connection with a disenrollment dispute. The court held that to determine whether plaintiffs here have properly filed suit on behalf of the tribe, it would have to entertain the merits of the parties election and disenrollment issues. (Id. at p.. In the case before this Court, Plaintiff s claims can be adjudicated without deciding any intra-tribal dispute. Here, Plaintiff seeks a ruling consistent with well settled law, that neither the Tribe nor any tribal court has jurisdiction over the Sheriff on claims arising out of his law enforcement duties and activities. This Court need not decide whether Defendants were correct or incorrect in their assertion that they were the Tribe and its Court at the time this lawsuit was filed or presently. All possible factions that could represent the Tribal Entities have appeared before this Court and are represented by counsel. Court orders that bind Tribal Entities, as entities and their courts, need not discern who is and who is not lawfully in control of them. All are bound under Federal law that holds tribal laws cannot and do not apply to Plaintiff and that tribal courts may not assert jurisdiction over him. IV. Defendants Positions Asserted In This Motion Are Taken In Bad Faith And Directly Contradict Admissions And Inconsistent Statements Made In This And Other Cases. Defendants MJP is founded on factual and legal positions that contradict Defendants prior admissions and assertions to this and other courts. Defendants current positions contradict statements and positions Defendants publicly took on a daily basis in the press and to members of the Tribe. (Please see Sheriff s MSJ Declaration. Defendants actions fuel and exacerbate the This is an entirely different proposition than finding that Defendants by their earlier statements may not even raise the argument of their disputed tribal status as an issue as Plaintiff asserts in Section IV below. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

14 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 already inflammatory environment that led to this litigation. These contradictions now made in support of Defendants MJP constitute egregious bad faith conduct and tactics. The numerous contradictory statements and positions are detailed in the accompanying Wade Declaration. Federal Courts have several responses to such tactics. A. Legal standards applicable to Defendants admissions and numerous contradictory statements. Defendants entire motion is an exercise in self-contradiction. While the pervasive level of Defendants self-contradiction is not commonly seen in either state of federal courts, there are legal standards applicable to address such unusual tactics. Specifically, three different concepts or standards apply when assessing the legal consequence of Defendants contradictory statements.. The first standard is commonly referred to as a Judicial Admission. Judicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Am. Title Ins. Co. v. Lacelaw Corp., F.d, (th Cir. (quoting In re Fordson Eng g Corp., B.R. 0, 0 (Bankr. E.D. Mich.. Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them. (See id.; citing White v. ARCO/Polymers, Inc., 0 F.d, (th Cir.. A judicial admission is conclusive in the case. (Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, U.S. (00 (quoting K. Broun, MCCORMICK ON EVIDENCE, p. (th ed. 00. Thus, as a matter of law, Defendants are bound by their prior judicial admissions and cannot now contradict them as they attempt to do in their MJP.. The second standard is referred to as an Evidentiary Admission. Evidentiary admissions, unlike judicial admissions, are mere evidence, are not conclusive, and may be contradicted by other evidence. (In re Applin, 0 B.R., (E.D. California. Both judicial and evidentiary admissions involve statements made in the litigation at issue, which means statements made in this case. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

15 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0. The third standard is Judicial Estoppel. Judicial estoppel applies to statements and admissions by a party or their legal counsel in other litigation. To the extent such statements are inconsistent and contradict positions in the present litigation, those inconsistent statements can be cited and used by a court to invoke the doctrine of judicial estoppel, which then precludes a party from advancing a contradictory fact or position. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, F.d ( th Cir. 0, the court explained judicial estoppel: It is an equitable doctrine invoked not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings, and to protect against a litigant playing fast and loose with the courts. Id. at, citing Hamilton v. State Farm Fire & Cas. Co., 0 F.d, (th Cir.00 (quoting Russell v. Rolfs, F.d 0, 0 (th Cir.0. In their Motion, Defendants ask this Court to accept their newest version of facts, which contradicts nearly everything they have represented and certified to this Court, other courts and to federal agencies. It appears Defendants are unaware of the legal consequences of their prior admissions and representations. Nearly 0 inconsistent statements by Defendants are identified in the accompanying Wade Declaration. The contradictory statements have been categorized as being either judicial admissions, evidentiary admissions, or a basis for judicial estoppel. Defendants are bound and estopped by their prior admissions and cannot now proffer contrary positions to support their MJP. B. Defendants are precluded from asserting the new facts and positions upon which they now rely and which contradict their prior positions. Defendants previously asserted and admitted the following and are bound by such. Specifically, throughout this and other cases Defendants have made the following representations:. They are the Tribe, its entities, court and the legitimate representatives of the Tribal Entities. (Wade Declaration (a, inconsistent statements (-(. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

16 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0. Defendant Duran and the Lewis Faction Tribunal, are the tribal court and Duran is the legitimate tribal judge. (Wade Declaration, inconsistent statements (-(.. Defendants were exercising the inherent sovereign powers of an Indian tribe when engaged in the acts at issue. (Wade Declaration, inconsistent statements (- (.. The Defendant Tribal Entities since inception through the present have appeared before this Court through their counsel lawfully authorized to do so. (Wade Declaration, inconsistent statements (-(.. Defendants and their several counsel bring the MJP on behalf of and in the name of the Tribal Entities. (Wade Declaration, inconsistent statement (.. Defendants actions, directly or through their agents, were the actions of the Tribal Entities. (Wade Declaration (b, inconsistent statements (-(.. There is a threat of violence present at this time. (Wade Declaration, inconsistent statements (-(, Sheriff s Opposition Declaration -.. The 00 MOU/Settlement Agreement are applicable to this dispute. (Wade Declaration 0, inconsistent statement (.. This Court has jurisdiction. (Wade Declaration, inconsistent statement (0. 0. Defendants have historically represented, and continue to do so to this day, that they are the legitimate representatives of the Tribal Entities even though they are aware there is no federally recognized tribal governing body. (Wade Declaration, inconsistent statement (. The above admissions bar and should otherwise estop Defendants from now claiming, to avoid the jurisdiction of this Court, that: ( Defendants are not the Tribal Entities (i.e., the Tribe, CEDA, or CIHA, ( Defendants are not the tribal council, ( the Lewis Faction Tribunal is not the Tribe s tribal court, and ( Defendants Duran and Howard are not the judge and clerk of the tribal court. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs 0

17 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 Furthermore, as stated in the Wade Declaration filed herewith, Defendants brazenly filed the MJP in the name of the Tribal Entities. Specifically, at the very beginning of their MJP at page, line, the Lewis-Reid-Duran Faction Defendants give the following notice: 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. (c, Defendants the Picayune Rancheria of the Chukchansi Indians ( Tribe, Chukchansi Economic Development Authority ( CEDA, Chukchansi Indian Housing Authority ( CIHA... will move the Court for judgment on the pleadings. Despite bringing the MJP in the names of the Tribal Entities and individual Defendants, Defendants unashamedly attempt to argue in the very same Motion that they are not the Tribe, its entities or court. (Wade Declaration, inconsistent statement (. Defendants have repeatedly stated and admitted in this and other courts, as well as in press releases, that ( Defendants are the Tribal Entities, ( Defendants are the tribal council, ( the Lewis Faction tribal court is the Tribe s tribal court, and ( Defendants Duran and Howard are, respectively, the judge and clerk of the tribal court. Similarly, Defendants have admitted and are otherwise estopped to deny that: ( there is an ongoing threat of violence at the present time; ( the 00 MOU/Settlement Agreement are applicable to this dispute providing to this Court jurisdiction; and ( that this Court has jurisdiction. In total, Defendants claims contrary to their earlier stated positions in this litigation and elsewhere require that the MJP be denied and that their arguments held to be taken in bad faith. V. The Issues Before This Court Are Not Moot Defendants MJP was filed with this Court on April, 0-- seven ( days after Plaintiff s MSJ was filed on April 0, 0. In Plaintiff s MSJ, numerous legal authorities are cited and extensive additional evidence is presented through the Sheriff s MSJ Declaration demonstrating that this action is not moot. (MSJ :. Defendants MJP does not discuss any of the law or facts that Plaintiff cited regarding mootness, although Defendants had ample time and opportunity to do so. Plaintiff again incorporates herein all of Plaintiff s arguments made in support of his MSJ on this issue. The Wade Declaration and the Sheriff s Opposition Declaration both detail Defendants MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

18 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 assertions, which further demonstrate the need for this Court s intervention. The Sheriff s Opposition Declaration filed herewith also updates the Court on the ongoing risk of violence and issues facing him. Defendants ignore the law regarding the consequences of voluntary cessation of challenged conduct and the cases cited by Plaintiff on this issue. (MSJ :-:; 0:-:. More disturbingly, in their Motion to this Court, Defendants rely on the dissenting opinion of Justice Scalia (Justice Thomas, joining, in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC, Inc., U.S., (000, for the proposition that the requirement of a continuing case in controversy... may not be ignored when inconvenient. (MJP :-. Defendants fail to cite the majority opinion of Justice Ginsburg, Justices Rehnquist, O Connor, Stevens, Kennedy, Souter and Breyer concurring, which extensively addresses the law of mootness. Not surprisingly, the un-cited majority opinion supports Plaintiff s position that dismissal of the Lewis Faction Lawsuit, without prejudice, did not render this case and the ongoing underlying controversey moot. The Supreme Court addressed the difference between standing that is required at the commencement of litigation and mootness which addresses the interest required throughout its existence, citing to Arizonans for Official English v. Arizona, 0 U.S.,, n. (. (Id. at. The Court then elaborates on the holding in Arizonans for Official English: The confusion is understandable, given this Court s repeated statements that the doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing must continue throughout its existence (mootness. (Citations omitted. Careful reflection on the long-recognized exceptions to mootness, however, reveals that the description of mootness as standing set in a time frame is not comprehensive. As just noted, a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. Concentrated Phosphate Export Assn., U.S., at 0, S.Ct. (Id. -0; emphasis added. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

19 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 The Court in Friends of the Earth, after discussing the issue of whether a defendant s complained of conduct is likely to occur or continue and whether the threatened injury [is] certainly impending, cited to Whitmore v. Arkansas, U.S., (0, and other cases. The Court explained the meaning of such cases as follows: The plain lesson of these cases is that there are circumstances in which the prospect that a defendant will engage in (or resume harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness. Furthermore, if mootness were simply standing set in a time frame, the exception to mootness that arises when the defendant s allegedly unlawful activity is capable of repetition, yet evading review, could not exist. (Id.0; emphasis added. After ignoring the evidence before this Court and applicable law, Defendants assert this case is moot because Plaintiff has obtained all relief sought in the Complaint. (MJP 0:. For this proposition, the MJP cites to the Complaint (Dkt. #, at pp.-, Paras. A-F. (MJP 0:-0. But Defendants position is patently inaccurate. As stated above, Defendants bear the formidable burden of showing it is absolutely clear their allegedly wrongful behavior could not reasonably be expected to recur. Refusal to dismiss the tribal court action with prejudice, accompanied with Court statements by the Lewis Faction s legal counsel render Defendants burden insurmountable. Defendants have refused to dismiss the tribal action with prejudice and have suggested the possibility of re-filing. Under all the facts and circumstances of this case and the fast and loose actions and positions of the Lewis Faction and now the Lewis-Reid-Duran defendants, it is now clear that a dismissal with prejudice would not stand in the way of Defendants filing a new tribal court action if it met their immediate needs; offered a strategic advantage; or Defendants simply had a whim to do so because they found the Sheriff s activities objectionable. As noted in Plaintiff s MSJ, in open court Plaintiff offered to dismiss this Federal action without prejudice and waive his right to attorney s fees if Defendants agreed not to bring any actions against Plaintiff in tribal court with this Court to retain jurisdiction over this agreement and to award Plaintiff his attorney s fees in MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

20 Case:-cv-0-RS Document0 Filed0// Page0 of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 this action if that agreement were violated in the future. The Lewis Faction s refusal to accept this offer further undermines Defendants ability to meet their burden on the issue of mootness. Furthermore, Defendants fail to cite, and thus do not address, all of Plaintiff s claims alleged in the Complaint, including the following:. Allegations earlier referenced above in and found at paragraphs,,,, and of the Complaint all set forth claims and requested rulings and relief far beyond those self-servingly and inaccurately characterized by Defendants in the MJP. (Section III, above.. Regardless of which tribal faction makes up today the true Tribal Council members and are the true representatives of CEDA and CIHA, all are bound to follow the 00 MOU which expressly applies to the Tribe. (Compl. ; emphasis added.. Plaintiff alleges that the claims of Defendants are void and that all orders existing or future orders of the Lewis Factional Tribunal or any other tribunal of the Tribe are without force or effect as no jurisdiction over Sheriff Anderson exists... (Compl. ; emphasis added.. Plaintiff asserts the 00 MOU requires Defendants to submit to the jurisdiction of this Court. (Compl... The rights, duties and obligations of the parties sought to be adjudicated by Plaintiff are many and itemized in Paragraph 0 of the Complaint. Many relate to issues far beyond the Lewis Faction Tribunal or the lawsuit filed in that forum, such asthe fundamental issues relating to the lack of jurisdiction or power of Defendants, in any tribal forum or court, to regulate or inhibit Plaintiff in the exercise of his duties as Sheriff of Madera County, and request rulings that affirm Plaintiff s immunity from any attempt to do so. (Compl. 0, subsections b, d, e, g, m, and n. See MSJ at p., ln. through p., ln. and citations to the record cited therein. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

21 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0. Plaintiff also seeks [a]ny and all declarations necessary and appropriate to adjudicate the matters arising from the facts of this case. No time limit was placed on which facts would arise. (Compl. 0 (p. Paragraph 0 of the Complaint contains numerous allegations in subparagraphs (a through (p which are glaringly ignored by Defendants. Set forth below are citations to certain subparagraphs therein which repeat and reallege allegations which go far beyond the Lewis Factional Tribunal alone and which are not cited in the MJP by Defendants: a. No tribal court of the Tribe including, but not limited to, the Lewis Faction Tribunal, has jurisdiction over Plaintiff... (Compl. 0 (d; emphasis added. b. It is beyond the power of any Tribe or its related entities including, but not limited to, a tribal court including the Lewis Faction Tribunal to regulate, direct, limit, or restrict Plaintiff in any way in the performance of his duties as Sheriff of Madera County. (Compl. 0 (e; emphasis added. c. Plaintiff is entitled to all governmental protections and immunities provided under California law including but not limited to those afforded to him under Civil Code Section (A and Government Code Sections 0 et seq., 0.,, and 00 et seq. (Compl. 0 (g. d. No just cause exists to require this Court to refrain from issuing its rulings or to subject any longer the Plaintiff to proceed before the Lewis Faction Tribunal, whether or not it is now or in the future will be recognized as the tribal court of the Tribe... (Compl. 0 (k; emphasis added. e. Defendants were required to seek any relief under the 00 MOU applicable to law enforcement issues which are included within the claims of Defendants as alleged in the Lewis Faction Lawsuit and that failure provides a further basis to conclude a tribal court including the Lewis Faction Tribunal was without jurisdiction to proceed in the manner occurring and Plaintiff MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

22 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 herein as Sheriff of Madera County impacted by such 00 MOU is entitled to the benefits thereof and the jurisdictional submission of the Tribe to this Court s jurisdiction regarding matters relating thereto. (Compl. 0 (m; emphasis added. f. Any and all declarations necessary and appropriate to adjudicate the matters arising under the facts of this case. (Comp. 0 (p.. Paragraph asserts that Defendants contend the opposite of Plaintiff s positions set forth in Paragraph 0. The Answer of Defendants to the Complaint, at Paragraph, states: The Defendants ADMIT the allegations of Paragraph. (Ans... Plaintiff seeks declaratory judgment confirming his contentions as alleged above referring to all, not just a few, of Plaintiff s contentions asserted. (Compl... Paragraph references actions of Defendants that include, but are not limited to, the Lewis Faction Lawsuit. 0. Defendants assertions of jurisdiction over Plaintiff, which go well beyond the Tribal lawsuit now dismissed, are asserted as a basis for injunctive relief. (Comp... Restraints are requested beyond the Lewis Faction Lawsuit to cover any other civil litigation in the Lewis Faction Tribunal. (Compl. &.. Plaintiff s prayer encompasses all these varied claims including prohibitions against proceeding again Plaintiff or the County in any tribal court. (Prayer at A, C, D, & E. In summary, Defendants have not and cannot demonstrate that the wrongful behavior of Defendants could not reasonably be expected to recur, much less overcome the overwhelming evidence that Defendants conduct continues unabated, demonstrating the need for injunctive and declaratory relief as Plaintiff requests. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

23 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 VI. Plaintiff Has Standing To Bring This Action Before This Court The Sheriff has provided law enforcement services to the Tribe and at the Rancheria pursuant to Public Law 0 and the 00 MOU. (Sheriff s Opp. Decl. -; MSJ Decl. ; TRO Decl. & ; Verified Complaint, 0,, -. As admitted by Defendants, Section. of the 00 MOU contemplates that the Tribe will require law enforcement assistance from the Sheriff s Department from time to time. Although the Settlement Agreement does include a third party beneficiary exclusion in paragraph., the 00 MOU does not. The 00 MOU specifically addresses the Sheriff s law enforcement duties. The parties, by virtue of their including an exclusionary provision in the Settlement Agreement, knew the implications of such a provision. Had the parties to the 00 MOU intended to exclude the Sheriff from enforcing said agreement as a third party beneficiary, the place to so indicate would have been in the 00 MOU. But unlike the Settlement Agreement, the 00 MOU has no such clause. The Sheriff is an intended third party beneficiary of the 00 MOU as the elected official and ultimate policy maker regarding the matters at issue involving law enforcement assistance from the Sheriff s Department. (Plaintiff has so alleged in Compl.. The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended by the parties to benefit from the contract. (Kremen v. Cohen, F.d 0, 0 ( th Cir. 00 (quoting Klamath Water Users Protection Ass n v. Patterson, 0 F.d 0, ( th Cir.. Section.0 specifically addresses the duties and obligations undertaken by the Sheriff s Department and relates to the procedures regarding how... both entities [are] to respect and assist each other in fulfilling their respective responsibilities as effectively and efficiently as possible. In the Lewis Faction Lawsuit, Defendants assert questions of interpretation and enforcement of the 00 MOU. The Tribe agreed, and Defendants have admitted, that questions regarding the interpretation of the 00 MOU shall be submitted to the United States District Court for the Northern District. (Section. of the 00 MOU. The Sheriff asserts, therefore, that he has standing to assert such obligations in this Court on his own behalf, as a third party beneficiary of the 00 MOU, and as an agent of the County, in response to the Lewis Faction Lawsuit. Furthermore, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs

24 Case:-cv-0-RS Document0 Filed0// Page of 00 East Tahquitz Canyon Way Palm Springs, CA 0 0 the 00 MOU does not contain a no third party beneficiary provision. The 00 MOU, as well as Public Law 0, govern the manner in which the Sheriff s law enforcement duties are executed. The 00 MOU imposes obligations on the Sheriff and the Tribe regarding law enforcement on the Rancheria and payment from the Tribe in exchange for the law enforcement services provided by the Sheriff. (Sections. and. of the 00 MOU. VII. This Court Has Jurisdiction Over Defendants Time after time in pleadings, under oath, and in attorney statements to this Court, the Lewis- Reed-Duran Defendants and their legal counsel have represented that they are the Tribe, its entities, its court and its legal counsel. It is because Defendants have asserted that they are the Tribe and its court and sought to exercise jurisdiction over the Sheriff that this action initially was necessary. It has been and remains the Sheriff s position that neither the Duran led tribal court nor any other tribal court has jurisdiction over him, particularly for claims arising out of his law enforcement duties under Public Law 0 and the 00 MOU. For the balance of this section, Plaintiff addresses the arguments Defendants now proffer in contradiction to their prior admissions and positions. It is important to note that a sheriff can be deemed to be a State official for some purposes and a County official or agent for other purposes. The Court is reminded of Plaintiff s arguments for purposes of Eleventh Amendment immunity. Although courts in this state have reached different conclusions when considering whether a sheriff is a State official or a county official for purposes of Eleventh Amendment immunity, the courts agree that the Eleventh Amendment immunity applies to the execution of law enforcement duties, such as investigation of crimes, execution of warrants, etc. In this case, Plaintiff has argued that when executing his law enforcement duties complained of in the Lewis Faction Lawsuit, Plaintiff was acting as a State official and, therefore, is entitled to immunity. (Venegas v. County of Los Angeles, Cal. th 0, (00 (sheriff was conducting a criminal investigation; Brewster v. Shasta County, F.d 0, ( th Cir. 00, (sheriff was investigating murder and sexual assault There are times when a sheriff s duties are not law enforcement related. Such as when a sheriff manages the county jail and engages in other managerial duties while conducting his official business. (Streit v. County of Los Angeles, F.d, ( th Cir. 00; Cortez v. County of Los Angeles, F.d, ( th Cir. 00. Plaintiff, for purposes of Eleventh Amendment immunity, is and was a State official when executing his law enforcement duties complained of in the Lewis Faction Lawsuit, and he is acting on behalf of the County as a County official when enforcing the terms of the 00 MOU. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. :-cv-0-rs