UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA. Plaintiff, Defendants.

Transcription

1 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 James Acres 0 nd # Encinitas, CA 0 james@acresbonusing.com james@kosumi.com 0 0 (mobile) In Pro Per JAMES ACRES, v. BLUE LAKE RANCHERIA TRIBAL COURT, et al., UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Plaintiff, Defendants. Case No.: :-CV-0-WHO MEMO OPPOSING SECOND TRIBAL MOTION TO DISMISS Date: July 0th, 0 Time: pm Courtroom: th Floor Judge: Hon. William H. Orrick Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

2 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 Table of Contents (paginated to match ECF generated page numbers) TABLE OF AUTHORITIES p ISSUE PRESENTED.. p FACTUAL INTRODUCTION p Introduction p Facts to Consider... p Statement of Facts... p ANALYTICAL FRAMEWORKS.. p 0 Montana and Tribal Jurisdiction p 0 Tribal Exhaustion Doctrine... p Standard of Review... p ARGUMENT AGAINST DISMISSAL p Tribal Immunity Does Not Bar Action. p Blue Lake s Plain Lack of Jurisdiction.. p Blue Lake Misquotes Water Wheel... p Bad Faith in Tribal Court Blatant p Challenges in Tribal Court Futile p CONCLUSION.. p EXHIBIT DECLARATION OF JAMES ACRES p Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

3 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 Table of Authorities (last retrieved from casetext.com on June th, 0) Atkinson v Shirley U.S. (00)..... p 0 Duro v Reina U.S. (0)..p 0 Evans v Shoshone-Bannock Land Use Policy Comm n F.d (th Cir. 0) p, Montana v United States 0 U.S. ().. p 0, Philip Morris USA v King Mountain Tobacco F.d (th Cir. 00)... p 0 Plains Commerce Bank v Long Family U.S. (00)... p 0,, Safe Air for Everyone v Meyer F.d 0 (th Cir. 00)... p, Water Wheel Camp Recreational Area v LaRance F.d 0 (th Cir. 0). p Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

4 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 ISSUE PRESENTED Blue Lake claims, via a tribal executive s declaration, that I defrauded them during a meeting in their diner, and that their tribal court has jurisdiction. I deny the fraud and reject their jurisdiction. I request federal relief from a tribal prosecution presided over by a tribal judge who is also an attorney litigating against me on the tribe s behalf. Should my request for federal relief be summarily dismissed? Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

5 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 FACTUAL INTRODUCTION Introduction Blue Lake Rancheria is prosecuting me in their tribal court. I ask this Court for relief from tribal jurisdiction. Blue Lake today renews the motion to dismiss denied by Judge Huff just last month in the Southern District. Blue Lake raises two distinct arguments to support dismissal. First, that tribal immunity bars my action, and second, that I must exhaust all tribal remedies before seeking federal relief. Judge Huff disposed of the tribal immunity argument in her order transferring the case here. I briefly review that issue below. As part of their tribal exhaustion argument, Blue Lake introduces evidence attacking the merits of my claims. When a (b)() factual attack is entwined with the merits of the claims it must be transformed into a motion for summary judgment. Under a summary judgment framework there is sufficient evidence of tribal badfaith and a plain lack of tribal jurisdiction for me to plausibly argue that I should be excused from exhausting tribal remedies. The tribal motion should be denied. Facts to Consider The complaint at Docket, the tribal court record, all of Blue Lake s submissions at Docket and Docket, and my own declaration submitted as Exhibit below comprise the universe of facts for considering this second motion to dismiss. I previously requested judicial notice of the tribal court record at Docket -, Docket, and Docket 0. Today it seems simplest to incorporate the tribal court record via declaration so that we can refer to it by ECF page number. Exhibit below at. Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

6 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 Statement of Facts In July of 00 Acres Bonusing, Inc. (ABI) and Blue Lake entered the islot Lease Agreement. islot was a novel gaming platform and ABI was its California distributor. Docket, p 0. The language of the agreement also specified that the act bringing the contract into force was ABI s acceptance of payment from Blue Lake. Id., p. ABI specified that it was executing the agreement at its address in San Diego County. Id.,. While I did sign the agreement as ABI s President, nothing in the agreement spoke of a personal relationship between Blue Lake and me. Id., p. Nothing in the agreement established tribal court jurisdiction over myself or ABI. Id.,. The agreement called for Blue Lake to pay ABI a percentage of islot revenues (Id., p - Monthly Lease Fee ), and to make a $0,000 advance against these royalties (Id., p 0 Advanced Deposit ). This advance was refundable if and only if ABI failed to deliver islot before October st, 00. Id. In early September of 00, Blue Lake employees drove to Las Vegas and took possession of an islot Server. Id., p 0. Later that month they brought it online at their casino. Id.,. ABI s obligations were fulfilled and the deposit became nonrefundable. Id., p. Over the following two years ABI provided Blue Lake with about a dozen software updates for islot. All were shipped from off-reservation locations. Id.,. During that period ABI visited Blue Lake several times to observe islot in use. Exhibit below,. In January of 0, Blue Lake served summonses to appear in tribal court against both ABI and me personally. Id., p 0. Both summonses required an answer within five-days under pain of default. Id.,. The tribal claims against the company were for breach of contract. Id., pp -. The tribal claim against me was for fraudulent inducement and contained none of the particulars required by FRCP (b). Id., p. For material from docketed files, I always use the ECF generated page numbers atop each page. Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

7 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 Five days after being served I made a hurried pro se special appearance in tribal court demanding dismissal. Id., p 0. I argued the tribe lacked both jurisdiction and the ability to provide due process. Id., p. Defendant Marston, in his role as tribal court judge, rejected this appearance, castigated me for flouting tribal rules, and issued an incomprehensible order that I make a responsive pleading within thirty days pursuant to a tribal rule about plaintiff dismissals. Id., p. Marston followed up about a week later and mandated participation in a joint tribal case management conference statement, due the same day as the responsive pleading, with the conference itself to take place in early April. Id., p. In early March, I filed my complaint in the Southern District seeking federal relief, and served it on all defendants. In mid-march, I asked Marston to clarify his incomprehensible order. I asked how, as the tribal court defendant, I could make a responsive pleading pursuant to a tribal rule about plaintiff dismissals. Docket -, p. I also asked if a motion to dismiss would be considered a responsive pleading. Id., p. Marston answered with his March th order, in which he stated that he would not accept a motion to dismiss as the demanded responsive pleading. Id., p lines -. Marston also clarified that his reference to a single tribal court rule about plaintiff dismissals should actually have referred to two separate rules regarding motion practice and answers. Id., (changing Rule 0 for Rules and ). The rule about answers provides that any plaintiff allegations not disputed within thirty days of service shall be assumed true. See Docket -, p 0 (for the text of Tribal Court Rule ). Significantly, while Marston used his March th order to reset the date for the mandatory conference (Docket -, p lines ), he left the March th date for the required responsive pleading in place (Id., lines to fail to extend the March th This is Exhibit of Docket -. I mistitled the coversheet for Exhibit at Docket -, page. It should read March Order instead of the erroneous March Summons Notice. Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

8 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 responsive pleading deadline). Since the order commanding the responsive pleading was incomprehensible without the clarifications contained in the March th Order, this means I lost the right to challenge the tribal allegations about a week before it was possible to understand how to do so. Marston then made his appearance in this federal action as an attorney for the tribal court, explicitly acting as my adversary in an action intimately related to the tribal court action where he remained the presiding judge. Docket 0, p lines. In the federal action, Marston joined the tribe s motion to dismiss and its supporting memo, incorporating them and their supporting documents in full. Id., p lines. The tribal memo declared the essential unity of all tribal actors (Docket -, p lines - 0), concluded that I did in fact commit the underlying fraudulent inducement tort (Id., p lines, note the lack of words like alleged or may have ), and found tribal jurisdiction over the tort to be probable (Id., p 0 lines ). In my opposition memo, I pointed out that concluding my guilt from the ex-parte testimony of a fellow tribal employee is not something an impartial judge would do, and that Marston s joining such a conclusion was damning evidence of bad-faith by the tribal court and its judge. Docket, from p line 0. In its reply brief, the tribe argued that when Marston said he was joining the tribe s memo and motion in full, he really only meant that he concurred with certain parts of it. Docket, p lines. Marston joined the tribe s reply in full, using substantially the same language he used in joining the motion and memo. Docket, p lines. The tribe has not clarified whether this was actually a joinder in full, or merely another concurrence in part. On the evening of May th, after Judge Huff issued her order in the Southern District, I was served with a new thirty-day summons in the underlying tribal action (Exhibit below, ), purportedly to start the [tribal court] process over (Docket, p lines ). This tribal court restart was less than total. Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

9 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 The tribal case management conference, repeatedly rescheduled since April, finally landed by ambiguous computation on either May th or June rd. Docket 0, p. The tribal court refuses to answer questions about whether the conference took place. Exhibit below,. Thus, based on the tribal court record, the tribe appears to have held a case management conference about my case a couple weeks before my answer was due under the renewed May th summons. The tribe s present motion before this Court is nearly identical to the one that was dismissed by Judge Huff just last month. Significantly it still contains language concluding without reservation that I am guilty of fraudulent inducement and that tribal jurisdiction over me is probable. Docket, from p line to p line. Marston again joined in full, taking particular care to twice over reiterate that he was fully incorporating any and all documents filed by the tribe in support of its motion to dismiss. Docket. The tribe has yet to opine on the true extent of Marston s current joinder. The only proffered basis for the tribe s conclusion of my guilt remains the declaration of Thomas Frank, in which he relates his memory that six years ago in the tribe s diner I promised the tribe would get their money back. Docket -, p. From this, the tribe is convinced of my unqualified guilt of the fraudulent inducement tort. Thomas Frank s declaration is self-interested parol evidence, is not part of the tribal court record, and is flatly contradicted by the language of the islot Agreement itself (Id., p Advanced Deposit ). I have no memory of this meeting and don t believe I said the things Thomas Frank claims. Exhibit below,. // // // // // // // // Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

10 Case :-cv-0-who Document 0 Filed 0// Page 0 of 0 0 ANALYTICAL FRAMEWORKS Montana and Tribal Jurisdiction The limit of tribal jurisdiction over non-members is a federal question. Plains Commerce Bank v Long Family U.S., (00). The framework for evaluating that jurisdiction is set out in a line of cases beginning with Montana v United States 0 U.S. (). Tribes have the right to live on their own lands by their own laws. Any tribal authority over non-members must be connected to this right. Plains at. This firmly roots tribal jurisdiction in geography. Tribes have no authority outside their reservations. Philip Morris USA v King Mountain Tobacco, F.d, (th Cir. 00). Within the reservation, on lands controlled by the tribe itself, the tribe has authority to control access to the land. Plains at. On land controlled by the tribe, the tribe can always declare any non-member present to be a trespasser, and compel the trespasser to depart. Duro v Reina U.S., - (0). Beyond this right to prevent trespass, the general rule is that tribes have no authority over non-members unless one of two exceptions apply. These are the so-called Montana exceptions. Plains at 0. Montana s first exception says that some forms of tribal authority over a nonmember are permissible if that non-member has consented to the tribe s authority (Montana at ), and if the exercise of the authority can be related back to the essential sovereign tribal interest to live on tribal land and by tribal law (Plains at ). Nonmember consent must be specific. Consent in one area does not grant consent in another. Atkinson v Shirley U.S., (00). Montana s second exception says that the tribe may exercise authority over nonmembers, even without consent, when non-member conduct mortally threatens the tribe s ability to live on their own lands by their own laws. Plains at. Memo Opposing Second Tribal Motion to Dismiss 0 :-CV-0-WHO

11 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 Tribes are diminished sovereigns and have lost the right of governing every person within their reservations except for themselves. Montana at. On reservation lands they own, where there are no competing government interests, tribes may eject nonmembers whenever they want. But this does not translate into plenary authority over those non-members. Beyond ejecting a non-member for trespassing on lands the tribe controls, a tribe may only exercise authority over non-members through one of Montana s two exceptions. Tribal Exhaustion Doctrine Non-Indians may bring a federal common law cause of action under U.S.C. to challenge tribal court jurisdiction. Evans v Shoshone-Bannock Land Use Policy Comm n, F.d, 0 (th Cir. 0). Usually, a prudential tradition of comity requires that the non-member must first exhaust all tribal remedies before seeking federal relief from assertions of tribal jurisdiction. Id. Tribal exhaustion is not required if the tribal court itself is acting in bad-faith, if challenging jurisdiction within the tribal court would be futile, if there is an express jurisdictional prohibition against the tribe exercising jurisdiction, or if the lack of tribal jurisdiction is so obvious that requiring the non-member to exhaust tribal remedies could only cause needless delay. Id. Standard of Review To support their (b)() motion, Blue Lake introduces evidence in the form of declarations. Usually, this would mean a (b)() factual attack standard of review should be used, where no particular deference is given to plaintiffs in weighing evidence. Safe Air for Everyone v Meyer, F.d 0, 0 (th Cir. 00). But when the jurisdictional elements being attacked are entwined with the merits of the claim, a summary judgment standard is called for, and plaintiffs are given all Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

12 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 reasonable deference when weighing evidence. Id. Federal courts have jurisdiction over the limits of tribal authority. Plains at. Blue Lake argues this case is not ripe for review until I exhaust my tribal remedies, or, unless I show an exception to the tribal exhaustion doctrine applies. Docket, p lines. So whether or not this Court has jurisdiction at this moment turns on the badfaith, futility, and obvious lack of jurisdiction exceptions to the exhaustion doctrine. Evans at 0. My complaint s very first claim is that the tribe obviously lacks jurisdiction. Docket, p. The Thomas Frank and Robert Pollard declarations were submitted by Blue Lake to support the tribal claim for jurisdiction over me. Docket, p from line. My complaint s second claim is that the tribal court is structurally incapable of providing due process. Docket, p. The body of the complaint makes clear this includes the futility of challenging tribal jurisdiction in tribal court. Id., p. The Yasmin Frank and Anita Huff declarations are submitted to support Blue Lake s claim that there is a full and fair opportunity to challenge tribal jurisdiction within the tribal court. Docket, p lines. My complaint s third claim is that the tribal court clerk exceeded her authority in issuing a five-day summons. Docket, p. The body of the complaint makes clear that this claim is concerned with the tribal court s bad-faith. Id., p. Anita Huff s declaration is submitted to support Blue Lake s claim that my accusations of bad-faith are unfounded, or, at the very least, have been resolved. Docket, p from line. The evidence submitted in support of Blue Lake s jurisdictional challenge is entwined with the merits of the claims, and so a summary judgment standard of review seems proper. // // Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

13 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 ARGUMENT AGAINST DISMISSAL Tribal Immunity Does Not Bar Action As Judge Huff pointed out, federal courts have subject matter jurisdiction over improper assertions of tribal jurisdiction over non-members (Docket, p lines -), and ex Parte Young colorably allows the veil of sovereign immunity to be pierced (Id., p lines ). Defendants try to argue that since no formal finding of tribal jurisdiction has yet been made, no law has yet been broken, and ex Parte Young doesn t apply. But if the lack of a tribal jurisdictional finding prevented federal relief, there would be zero exceptions to the tribal exhaustion doctrine, instead of the four we actually have. Defendants also renew their (b)() motion. But Judge Huff pointed out that defendants have declared themselves into the Northern District. Id., lines 0. Judge Huff enunciated reasonable arguments that tribal immunity does not bar this action, and that this Court has personal jurisdiction over defendants. Blue Lake s Plain Lack of Jurisdiction Direct Personal Jurisdiction Obviously Lacking Blue Lake makes no allegations of trespass against me. The inherent right to prevent trespass cannot be a source of tribal jurisdiction over me. Blue Lake does not allege that I mortally imperil the tribe s continued existence. Montana s second exception can t be a source of tribal jurisdiction over me. I ve never explicitly consented to tribal jurisdiction. Therefore, Montana s first exception can only be a source of tribal jurisdiction if the nature of my relationship with the tribe obviously invoked tribal jurisdiction. Blue Lake argues for this obviously implicit jurisdiction through Thomas Frank s memories of an alleged conversation from July of 00. Docket -, p at. Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

14 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 The general proposition that Blue Lake obviously gains civil tort jurisdiction over non-indians talking in diners seems dubious on its face. Even if the rule is adopted however, its particular application to me remains problematic. First, unless it be by some secret ex-parte route, Thomas Frank s declaration is not before the tribal court. Second, I do not remember the meeting, the promise, or even Thomas Frank. Exhibit below,. Finally, Frank s declaration is self-interested parol evidence that makes its first appearance nearly six-years after the meeting in question, and the thrust of his declaration is flatly contradicted by the actual language of the contract. Compare Docket -, p at and Docket -, p Advanced Deposit Thomas Frank s testimony is contradicted by his own exhibit. Jurisdiction Through ABI Obviously Lacking Blue Lake might also argue that its jurisdiction over me flows through its jurisdiction over ABI. This argument fails because tribal jurisdiction over ABI is obviously lacking, and even if it weren t, there s no reason that jurisdiction should flow through ABI to employees in their capacity as natural persons. There are no allegations that ABI trespassed against, or posed a mortal threat to, Blue Lake. Nor is there any explicit grant of consent to tribal jurisdiction over ABI s conduct. So again Blue Lake argues that the nature of the relationship was such that tribal jurisdiction was obvious. In support of this, Blue Lake argues that the contract was signed on the reservation and that the reservation was the place of the agreement s performance. Docket, p line p line. But I have shown that ABI indicated its place of execution was in San Diego County (Docket, p ) and that the contract explicitly states that execution was not complete at signing (Id., ). I have also shown that ABI s place of performance was off reservation. Id., p 0 and p. Blue Lake s remaining evidence for tribal jurisdiction is that ABI employees Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

15 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 sometimes stayed overnight in their hotel. Docket -, p. But generally, when you stay in a hotel the only authority you grant the innkeeper is to charge your credit card for your room, or to eject you from the hotel if you become unruly or overstay. Civil tort liability over conversation in diners is not generally presumed to be a power granted to innkeepers. Blue Lake Misquotes Water Wheel Camp v LaRance In Water Wheel Camp Recreational Area v LaRance, F.d 0 (th Cir. 0) a non-indian spent years squatting on some of the most desirable riverfront property on the Colorado River Indian Tribe s reservation. In an opinion that used variants of the word trespass at least a dozen times, and some variation on power to exclude dozens more, the Water Wheel court held that the tribe gained regulatory jurisdiction over the squatter from the tribe s power to prevent trespass, and that in that instance the tribe s regulatory jurisdiction conferred adjudicatorial jurisdiction. Blue Lake argues that Water Wheel establishes a general principal within the Ninth Circuit that Montana s exceptions needn t be considered when non-indians are on tribally owned land. This is not a supportable reading of Water Wheel, and defendants derive it only through misquotation. Look: Actual Quote Montana limited the tribe s ability to exercise its power to exclude only as applied to the regulation of non-indians on non-indian land, not on tribal land. -th Cir. in Water Wheel Camp at 0. Blue Lake s Misquote Montana, therefore, limited the tribe s ability to exercise its power to exclude [or regulate] only as applied to the regulation of non-indians on non- Indian land, not on tribal land. Water Wheel Camp at 0 (emphasis added) -Blue Lake in Docket, p lines. The sleight-of-hand is deft. By directing our attention to the admittedly added emphasis, we are encouraged to overlook the stealthily added brackets. These brackets completely alter the meaning of the passage, elevating the tribal power to regulate Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

16 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 trespass by non-indians on tribal land into a broad regulatory authority over all conduct by non-indians on tribal land. If the Water Wheel court meant what Blue Lake claims, it could ve just said something like Montana doesn t apply to tribal land. On tribal land, tribes have plenary civil authority over non-indians. But that would be unsupportable by the federal common law, because efforts by a tribe to regulate nonmembers, especially on non- Indian fee land, are presumptively invalid. Plains at 0, emphasis is mine, and added to highlight that all such efforts by tribes are presumptively invalid, albeit some more so than others. Absent allegations of trespass, tribes may only assert jurisdiction over non-indians through one of Montana s two exceptions. Water Wheel has no relevance for my case. Bad Faith in Tribal Court Blatant Lester Marston simultaneously serves as the presiding judge over me in the underlying tribal action, and as an attorney advocating against me in this Court. This is beyond bad-faith. This is just plain wrong. In this federal Court, Marston, in his role as tribal advocate, has twice joined in tribal conclusions that my guilt of the underlying tort is certain, and that tribal jurisdiction is probable. Dockets 0 and, incorporating the Thomas Frank declarations. The underlying tribal action has proceeded about as you would expect under a badfaith judge who is also the plaintiff s employee. It began with an abusive five-day summons against me. When I moved to dismiss within the allotted five-days, Marston rejected my motion out of hand and castigated me for failing to number my paragraphs. Marston issued an order that said if I didn t make a responsive pleading by March th, all tribal allegations would be presumed true. But that order was utterly incomprehensible until Marston s clarifying order of March th, Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

17 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 so tribal allegations are considered true in tribal court by default. See above, Statement of Facts, citing the tribal court record. It s true that on May th I was served with a new thirty-day summons in the tribal court. But far from starting the process anew Marston left in place a mandatory case management conference, ambiguously scheduled for either May th or June rd. Marston refused to clarify when, or even if, this conference took place. So on the most literal reading of the tribal court record, Marston held a tribal case management conference at least ten days before my answer was even due. See above, Statement of Facts, citing the tribal court record. Everything in the preceding paragraphs describes a tribal court acting in bad-faith under the direction of a tribal partisan. Blue Lake argues that they ve taken steps to fix their bad-faith actions. They haven t, and at best they could only ameliorate the wrongs already done. The tribal court s bad-faith itself is incurable, and will continue to wrong me. Challenges in Tribal Court Futile I ve made two attempts to challenge tribal jurisdiction in the tribal court. Both attempts were rejected. Docket, p and p. Marston, in his role as tribal judge, has stated that he won t accept challenges to his jurisdiction in lieu of a responsive pleading. Docket -, p lines. This is the same as saying that, in the court of Judge Marston, you can t challenge his authority until you submit to it. Finally, Marston is perfectly aware that I am contesting tribal jurisdiction, and he s aware of the reasons why. Judges have an independent obligation to question their own jurisdiction. Marston shows no sign of doing this. Instead, he continues on with the underlying persecution. // Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

18 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 CONCLUSION To survive this motion to dismiss I must show that at least one of three things can be plausibly argued. That the tribe plainly lacks jurisdiction, that the tribal court is proceeding in bad faith against me, or that challenging jurisdiction in the tribal court is futile. The only evidence supporting tribal jurisdiction is the self-interested parol declaration of a tribal employee that wouldn t establish jurisdiction even if it were true, and I argue it is not. The presiding judge of the tribal court is simultaneously litigating against me as an attorney, in concert with my tribal opponent. That same tribal judge refused to entertain my challenges to his jurisdiction, and he s stated that pre-answer challenges to tribal jurisdiction won t be accepted. In light of all this, it seems reasonable to argue that I should be excused from needing to exhaust tribal remedies. The tribal motion to dismiss should be denied. Respectfully submitted, June th 0: James Acres Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

19 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 Exhibit Declaration of James Acres Opposing Second Tribal Motion to Dismiss Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

20 Case :-cv-0-who Document 0 Filed 0// Page 0 of 0 0 Declaration of James Acres Opposing Second Tribal Motion to Dismiss. My name is James Acres. I m an adult who is competent to testify in this matter. All the statements made in this declaration are true and of my own personal knowledge.. I am the plaintiff in the action :-cv-0-who James Acres v Blue Lake Tribal Court et al.. The purpose of this declaration is to provide evidence for consideration in resolving Blue Lake s motion to dismiss at Docket in the action named in paragraph two, above.. I am also the defendant in the Blue Lake Rancheria Tribal Court Action C---LJM. I previously requested this Court (in the Southern District) take judicial notice of the tribal court record. Today I incorporate the tribal court record by declaration and reference.. As of today, the complete tribal court record is contained in :-cv-0-who at Docket -, Docket, and Docket 0. Each docket entry contains its own declaration attesting to the accuracy of the record each entry reproduces.. At Docket - in this action, Robert Pollard alleges that I stayed at the Blue Lake hotel in order to oversee maintenance, repair, and limited upgrades to the islot system. While I agree that I did stay at the hotel multiple times, I do not stipulate as to any specific dates. I also state that these visits were made primarily to view islot in action, and not for the reasons claimed by Robert Pollard. Memo Opposing Second Tribal Motion to Dismiss 0 :-CV-0-WHO

21 Case :-cv-0-who Document 0 Filed 0// Page of 0 0. At Docket - in this action, Anita Huff mentions a corrected thirty day summons. That summons was served me on the evening of May th, 0.. In late May and early June I made repeated attempts to contact the tribe by phone and to find out if the tribal case management conference ambiguously scheduled by Lester Marston for either May th or June rd would take place. No reply was made me by any tribal entity.. At Docket - in this action, Thomas Frank puts forward his declaration about his memory of a meeting we had in the tribe s diner in 00. I do not specifically remember Thomas Frank or the meeting. I do not believe I said the things Thomas Frank attributes to me. I swear under penalty of perjury that the forgoing declaration is true. Signed June th, 0 in Encinitas, CA: James Acres Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO

22 Case :-cv-0-who Document 0 Filed 0// Page of 0 0 CERTIFICATE OF SERVICE I hereby certify that on June th, 0, I filed this Memo Opposing Second Tribal Motion to Dismiss and its Exhibit via the Court s ECF filing system. I also sent a copy via first class US Mail to Anita Huff at Chartin Road in Blue Lake, California,. James Acres Memo Opposing Second Tribal Motion to Dismiss :-CV-0-WHO