No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. TERRY TONASKET, dba STOGIE SHOP, and DANIEL T. MILLER, an individual;

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1 Case: /08/2012 ID: DktEntry: 16 Page: 1 of 49 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TERRY TONASKET, dba STOGIE SHOP, and DANIEL T. MILLER, an individual; v. Plaintiffs-Appellants, TOM SARGENT, TOBACCO TAX ADMINISTRATOR; THE COLVILLE BUSINESS COUNCIL; MICHAEL O. FINLEY, CHAIRMAN; HARVEY MOSES JR.; SYLVIA PEASLEY; BRIAN NISSEN; SUSIE ALLEN; CHERIE MOOMAW; JOHN STENSGAR; ANDREW JOSEPH; VIRGIL SEYMOUR SR.; MIKE MARCHARD; ERNIE WILLIAMS; DOUG SEYMOUR; SHIRLEY CHARLEY; RICKY GABRIEL; and THE COLVILLE CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION, a Federally Recognized Indian Tribe; Defendants-Respondents. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON, NO. CV LRS THE HONORABLE LONNIE R. SUKO, UNITED STATES DISTRICT COURT JUDGE REPLY BRIEF OF APPELLANTS Robert E. Kovacevich, #2723 Attorney for Appellants 818 W. Riverside Avenue, Ste 525 Spokane, WA (509)

2 Case: /08/2012 ID: DktEntry: 16 Page: 2 of 49 TABLE OF CONTENTS TABLE OF AUTHORITIES ii COUNTER-STATEMENT OF ISSUES COUNTER-STATEMENT TO RESPONDENTS STATEMENT OF FACTS ARGUMENT A. The Colville Tribe has no Sovereign Immunity from Federal Anti-trust Law B. The Sherman and Clayton Anti-trust Acts Apply to Governments at Compete wi Individuals by Selling to e Public At Retail C. The Land Is Not Tribal Land but an Exclusive Trust Allotment Held in Trust by e United States D. Prospective Relief is Alleged and Prohibits Sovereignty of Bo e Tribe and Tribal Officials When Acting Beyond Their Auority E. The Individual Defendants have no Immunity F. Oer Contentions G. The Indispensable Party Issue is not Before e Appeals Court; in any Event, e Tribe is Fully Protecting e State s interest H. The Appellants Have Standing CONCLUSION i-

3 Case: /08/2012 ID: DktEntry: 16 Page: 3 of 49 Cases TABLE OF AUTHORITIES Agua Caliente Band of Cahuilla Indians v. Superior Court, 40 Cal.4 239, 148 P.3d (Cal. 2006) Arizona v. Maricopa County Medical Society, 457 U.S. 332, 348, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982) Associated Industries v. Lohman, 511 U.S. 641, 114 S.Ct. 1815, 128 L.Ed.2d 639 (1994) Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001) , 11, 20 Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., nd 268 F.3d 103 (2 Cir. 2001) Bittle v. Bahe, 192 P. 3d 810, (S.C. Okla 2008) Bradley v. Crow Tribe of Indians 67 P.3d 306, 81-2 (Mont. 2003)..31 Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124 (9 Cir. 2010) Burlington Norern Santa Fe Railroad v. Assiniboine and Sioux Tribes, 323 F.3d 767 (9 Cir. 2003) , 30 Burlington Norern Co. v. Vaughn, 509 F.3d 1085, (9 Cir. 2007) , 24 C & L Enterprises Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) ii-

4 Case: /08/2012 ID: DktEntry: 16 Page: 4 of 49 Colorado National Bank v. Bedford, 310 U.S. 41, 60 S.Ct. 800, 84 L.Ed.2d 1067 (1940) Confederated Tribes and Bands of e Yakima Indian Nation v. Gregoire, 658 F.3d 1078 (9 Cir. 2011) Costco v. Maleng, 522 F.3d 874 (9 Cir. 2008) , 28 Crowe & Dunlevy v. Stidham, 640 F.3d 1140 (10 Cir. 2011)..11, 23 Dawavenda v. Salt River Project Agricultural Improvement and Power District, 276 F.3d 1150 (9 Cir. 2002) Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861 (9 Cir. 2004) , 35 Dixon v. C.I.R., 316 F.3d 1041 (9 Cir. 2003) Donovan v. Coeur d Alene Tribal Farms, 751 F.2d 1113 (9 Cir. 1985) E.E.O.C. v. Peabody Western Coal Co., 610 F.3d 1070, 1082 (9 Cir. 2010) Exner v. Federal Bureau of Investigation, 612 F.2d 1202 (9 Cir. 1980) Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed 714 (1908) , 24 F.T.C. v. Fred Meyer, 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968) Franchise Tax Board of California v. Hyatt, 538 U.S. 488, 497, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003) iii-

5 Case: /08/2012 ID: DktEntry: 16 Page: 5 of 49 Freeman v. San Diego Board of Realtors, 322 F.3d 1133 (9 Cir. 2003) Hart v. Massanari, 266 F.3d 1155 (9 Cir. 2001) Hendricks v. Bank of America, N.A., 408 F.3d 1127 (9 Cir. 2005) Hunt-Wesson Inc. v. Franchise Tax Board of California, 528 US 458, 464, 120 U.S. Ct. 1022, 145 L.Ed.2d 974 (2000) Jefferson County Pharmaceutical Ass n v. Abbott Laboratories, 460 U.S. 150, 103 S.Ct. 1011, 74 L.Ed.2d 882 (1983) , 13 Knevelbaard Dairies v. Kraft Foods, 232 F.3d 979 (9 Cir. 2000) , 17 L.G. Balfour Company v. F.T.C., 442 F.2d 1 (7 Cir. 1971) Lakoduk v. Cruger, 287 P. 2d 338, 340 (Wash 1955) McClanahan State Tax Commission of Arizona, 411 U.S. 164, S. Ct. 1257, 36 L.Ed. 129 (1973) Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9 Cir. 2002) Merrion v. Jicarilla Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) Miller v. Wright, 9 Cir No , 22 Moe v. Confederated Salish and Kootenai Tribes of e Flaead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976).. 33 Montana v. U.S., 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) , 20 -iv-

6 Case: /08/2012 ID: DktEntry: 16 Page: 6 of 49 st Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1 Cir. 2006) , 8 Nor Carolina v. Seneca-Cayuga Tobacco Co., 676 S.E.2d 579, 584 (N.C. 2009) Norwest Wholesale Stationers v. Pacific Stationary and Printing, 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) Pacific Coast Agricultural Export Ass n v. Sunkist Growers, 526 F.2d 1196 (9 Cir. 1975) Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) , 11, 19, 37 R.J. Reynolds v. City of New York Department of Finance, 667 N.Y.S.2d 4 (1997) R.J. Reynolds v. Premium Tobacco Stores, 1999 WL (N.D. Ill 1999) nd Red Ear LLC v. United States, 657 F.3d 138, 148 (2 Cir. 2011) , 6, 18, 25, 28, 32 Rincon Mushroom Corp of America v. Mazzetti, 2010 WL (D.C.Cal 2010) Rogers-Dial v. Rincon Band of Luiseno Indians, 2011 WL , page 5 (D.C.Cal 2011) Rowe v. New Hampshire Motor Transport Ass n, 552 U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) St. Clair v. City of Chico, 880 F.2d 199 (9 Cir. 1989) v-

7 Case: /08/2012 ID: DktEntry: 16 Page: 7 of 49 Salt River Project Agr. Imp and Power v. Lee, 672 F.3d 1176, 1181 (9 Cir. 2012) , 34 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct 1670, 56 L.Ed.2d 106 (1978) Savage v. Glendale Union High School Dist No. 205, 343 F.3d 1036 (9 Cir 2003) Souwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152, (9 Cir. 1998) State v. Comenout, 267 P. 3d 355, 358 (Wash. 2011) State of Georgia v. Evans, 316 U.S. 159, 62 S.Ct 972, 86 L.Ed (1942) Texaco v. Hasbrouck, 496 U.S. 543, 110 S.Ct 2535, 110 L.Ed.2d 492 (1990) Tonasket v. State, 488 P.2d 281 (Wash. 1971) U.S. v. Baker, 63 F.3d 1478 (9 Cir. 1995) , 9 U.S. v. Williams, 514 U.S. 527, 115 S.Ct 1611, 131 L.Ed.2d 608 (1995) United States v. Lara, 541 U.S. 193, 124 S.Ct 1628, 158 L.Ed.2d 420 (2004) United States v. Silverman, 861 F.2d 571 (9 Cir. 1988) Warburton/Buttner v. Superior Court, 104 Cal App , 127 Cal. Rptr. 2d 706 (2002) vi-

8 Case: /08/2012 ID: DktEntry: 16 Page: 8 of 49 Washington v. Confederated Tribes of e Colville Reservation, 447 U.S. 134 (1980) Washington v. Daley, 173 F.3d 1158, 1167 (9 Cir. 1999) Water Wheel Camp Recreation v. LaRance, 642 F.3d 802 (9 Cir 2011) Constitution U.S. Const. Art. I, 8, cl U.S. Const. Art. VI, cl Wash Const. Article 26, Second Court Rules Fed R.Civ.P. 8(a)(3) Fed.R.Civ.P 12(b)(1) and (7) Statutes 15 U.S.C. 1, 3, 13, 15 and , 10, 17, U.S.C. 376(a)(3,4) U.S.C U.S. Statute at Large c 180. P U.S.C Colville Tribe Tobacco Code 6-8-3, 6-8-8, , 32 Wash.Rev.Code (5) Texts Cohen s 2005 Handbook of Federal Indian Law vii-

9 Case: /08/2012 ID: DktEntry: 16 Page: 9 of 49 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TERRY TONASKET, dba STOGIE SHOP, and DANIEL T. MILLER, an individual; v. Plaintiffs-Appellants, TOM SARGENT, TOBACCO TAX ADMINISTRATOR, and THE COLVILLE BUSINESS COUNCIL; MICHAEL O. FINLEY, CHAIRMAN; HARVEY MOSES JR.; SYLVIA PEASLEY; BRIAN NISSEN; SUSIE ALLEN; CHERIE MOOMAW; JOHN STENSGAR; ANDREW JOSEPH; VIRGIL SEYMOUR SR.; MIKE MARCHARD; ERNIE WILLIAMS; DOUG SEYMOUR; SHIRLEY CHARLEY; RICKY GABRIEL; and THE COLVILLE CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION, a Federally Recognized Indian Tribe; Defendants-Respondents. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON, NO. CV LRS THE HONORABLE LONNIE R. SUKO, UNITED STATES DISTRICT COURT JUDGE -1-

10 Case: /08/2012 ID: DktEntry: 16 Page: 10 of 49 COUNTER-STATEMENT OF ISSUES The Defendants Statement of Issues ignores e lower court s ruling dismissing e case on lack of subject matter jurisdiction. It upheld tribal sovereign immunity and tribal official immunity. The court did not reach e issue of indispensable party. (ER 11). The statement also fails to recognize e central issues of limitation by e Tribe only to wholesalers who charge more for e product due to e MSA lawsuit settlement and at e Tribe is a controlling market competitor who unfairly competes. At ER 45, e Amended Complaint alleges, cigarettes, wiout e state lawsuit settlement added to e price, can be purchased from wholesalers at are not regulated by e State of Washington. United States v. Silverman, 861 F.2d 571, 576 (9 Cir. 1988) holds at a review of a dismissal motion allows e reviewing court to review e case as if no lower court decision has been rendered. De novo means trying e matter anew, e same as if it had not been heard before and as if no decision has been previously rendered, Exner v. -2-

11 Case: /08/2012 ID: DktEntry: 16 Page: 11 of 49 Federal Bureau of Investigation, 612 F.2d 1202, 1209 (Pregerson concurrence) (9 Cir. 1980). COUNTER-STATEMENT TO RESPONDENTS STATEMENT OF FACTS At page 2, e Respondents Brief states at Tonasket s store is located on tribal trust land. The Tribe does not own e land. The record does not indicate e relationship, but e Supplemental Excerpts, SER 6, indicate at Melford Tonasket, Terry Tonasket s faer, owns e land. Tribal trust land is a material issue as e Bureau of Indian Affairs, not e Tribe, controls e land. This issue is discussed at pages of is Reply. The Tribe at 2 also states at Appellant Miller allegedly travels to purchase cigarettes. There is no citation to e Complaint as e record does not state his motive. This statement points out e weakness of e Answering Brief. This case does not determine e accuracy of e facts, but considers em as true for is review. The Respondents at page 3 argue blatant ignorance of Washington v. Confederated Tribes of e Colville Reservation, 447 U.S. 134 (1980). Throughout e Respondents Brief, ey -3-

12 Case: /08/2012 ID: DktEntry: 16 Page: 12 of 49 repeatedly argue at Colville applies. The case predates Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 330, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) by 28 years; Burlington Norern Santa Fe Railroad v. Assiniboine and Sioux Tribes, 323 F.3d 767, (9 Cir. 2003) and Red Ear LLC v. United nd States, 657 F.3d 138, 148 (2 Cir. 2011). Colville does not involve anti-trust price fixing or restriction of wholesaler so at Tonasket has to pay higher prices violating commerce. Essentially, anti-trust competition, agreement to charge minimum prices, a non-indian buyer and wholesaler restriction, all core issues here, were never involved in e pre-plains Commerce (554 U.S. 316) and Atkinson (532 U.S. 645) cases. Cases on tribal auority are dependent on e law in existence at e time ey were rendered and are subject to change. United States v. Lara, 541 U.S. 193, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24 (1st Cir. 2006) notes e trend has been away from e idea of -4-

13 Case: /08/2012 ID: DktEntry: 16 Page: 13 of 49 inherent Indian sovereignty as a bar to State jurisdiction and toward reliance on federal preemption. The Tribe, at page 9, refers to two declarations of Defendant Tom Sargent. Neier Sargent declaration states at he knows e facts of his own personal knowledge. At SER 12, he states, it is my understanding giving his legal conclusions. One declaration, SER 5, attaches a title report. Tonasket s declaration (ER 18) establishes price cutting competition from Sargent s store and disputes Sargent s declaration of e material facts. SER 12. The Tribe s Brief at page 10 stating ere are no counter declarations does not recognize at Tonasket disputes Sargent s declaration wi facts of his own knowledge. ER Tonasket verified e Complaint. SER 79. Miller also verified e Complaint. ER 7-9. At SER 11, Sargent states at e Tribe does not collect e tax but omits to state at e tribal tobacco law, (Addendum A-10, 6-8-6) requires at a retailer must comply wi e Tribe/State Compact requiring purchases only from state regulated wholesalers -5-

14 Case: /08/2012 ID: DktEntry: 16 Page: 14 of 49 who charge $5 more (ER 86) and at e Tribe will charge 100% of e state tax. (ER 85-6). At best, e statement in e declaration and at SER 11 at wholesalers do not set wholesale prices is a distinction wiout a difference as e Compact (ER 86) requires purchases only from state wholesalers, self-certified wholesalers and tribal wholesalers who agree by contract to abide by e terms of e Compact. ER 84. The Sargent declaration admits at e Tribe buys only from certified wholesalers. SER 12. Tonasket has no freedom to buy from any wholesalers. Wash.Rev.Code (5) and tribal compact provision (ER 84) Addendum A-10, Tribal Tobacco Code 6-8-3(i)(j) and Wholesale restrictions violate due process. Red Ear LLC v. nd United States, 657 F.3d 138, 148 (2 Cir. 2011) and oer cases cited in Appellants Opening Brief at page 17 and 18 (ignored by e Tribe) establish is principle. The Amended Complaint alleges same like kind and quality price fixing of cigarettes. (ER 38, 41-44, 47, 53, 56-8). -6-

15 Case: /08/2012 ID: DktEntry: 16 Page: 15 of 49 ARGUMENT A. The Colville Tribe has no Sovereign Immunity from Federal Anti-trust Law. The Complaint (ER 29-30, 40-48) alleges a violation of e Federal Anti-trust Law 15 U.S.C. 1, 3, 13, 15 and 26. At pages of its Brief, e Tribe states at is has governmental immunity even in commercial activity if it taxes cigarettes. The argument misses e Amended Complaint s rust as it alleges anti-trust violations by e Colville engaging in unfair Indian non-residents. ER 39, 50, The rule at applies to is case is Federal laws of general applicability are presumed to apply wi equal force to Indians U.S. v. Baker, 63 F.3d 1478, 1474 (9 Cir. 1995) a cigarette tax case at applied e criminal transportation of unstamped cigarettes in interstate commerce (18 U.S.C ) to on-reservation Indians. The statute, 18 U.S.C. 2341(2) applies if any local government requires cigarettes to be stamped. Baker, Id. at 1489, expressly held at cigarette commerce is not an intrusion on tribal competition and price fixing by selling cigarettes at retail to non- -7-

16 Case: /08/2012 ID: DktEntry: 16 Page: 16 of 49 sovereignty. Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, st 26 (1 Cir. 2006) was cited at 25 of Appellant s Opening Brief but not cited by Respondents. The opinion states: Here, e State is seeking to enforce laws binding on e Tribe s commercial transactions wi outsiders, not to dictate, say, tribal membership on inheritance rules. Whatever e exact contour of e Tribe s retained sovereignty, ose contours are narrow-and it is perfectly clear at trafficking in contraband cigarettes is not wiin em. Like here, e State and e Tribe had an agreement at State law would be in effect. The Court also held at sovereign immunity was waived by e State-Tribe agreement as waiver need not use magic words, id. at 25. The Court also concluded at if State law applies, as it does here to wholesaler restriction, sovereignty is abrogated. It also emasculates e perceived distinction between Tribal sovereignty and Tribal immunity, id. at 24, at Respondents assert in eir brief at footnote 2 page 13 confuses Appellants. Baker, id. at 1485, quotes e seminal case of Donovan v. Coeur d Alene Farms, 751 F.2d 1113, 1116 (9 Cir. 1985) at applied e -8-

17 Case: /08/2012 ID: DktEntry: 16 Page: 17 of 49 Federal OSHA law, 29 U.S.C to e Coeur d Alene s farm activities at, like e Tribe sells cigarettes in is case, sold farm products on e open market. The ree exceptions (Donovan, id. at 1116) i.e. no intermural matters, treaty rights, or specific exceptions are not present here; hence, ere are no exceptions. None of e exceptions applied in Donovan because e Tribe sold at retail to non-indians. It operated e farm as a commercial enterprise, and e Colville Tribe has no treaty allowing exclusion. Baker, supra at 1485, removed e treaty exception by holding at e Federal Cigarette Act did not prohibit trading in cigarettes. These principles uphold Appellant s Amended Complaint for e reason at trading in cigarettes must also comply wi e federal antitrust law. Jefferson County Pharmaceutical Ass n v. Abbott Laboratories, 460 U.S. 150, 155, 103 S.Ct. 1011, 74 L.Ed.2d 882 (1983) applies e anti-trust law to governments at sell at retail. State of Georgia v. Evans, 316 U.S. 159, 162, 62 S.Ct. 972, 86 L.Ed (1942) holds: We can perceive no reason for believing at Congress wanted to deprive a state, as purchaser of commodities -9-

18 Case: /08/2012 ID: DktEntry: 16 Page: 18 of 49 shipped in interstate commerce, of e civil remedy of treble damages which is available to oer purchasers who suffer rough violation of e Act. The case sought price fixing relief allowed by 15 U.S.C. 15. The anti-trust law applies to governments selling products to e public or buying products in commercial transactions. At 14 of its brief, e Tribe asserts at Jefferson County has no bearing on tribal sovereignty citing e lower court decision of Miller v. Wright now on appeal in is Court No This argument is wrong as Jefferson County, supra, at 153 expressly states at footnote 5 at e case was dismissed in e lower court on Eleven Amendment sovereign immunity, a holding at was reversed. Since e Tribe loses immunity by violating federal law in selling cigarettes to e public, it is liable for damages and also can be enjoined. The Tribe, at page 8 of its brief, insists at e burden of establishing subject matter jurisdiction is on e party invoking jurisdiction. This statement ignores Appellant s Opening Brief at -10-

19 Case: /08/2012 ID: DktEntry: 16 Page: 19 of 49 pages The Navajo Nation s Imposition of a tax on nonmembers on non-indian fee land wiin e reservation is erefore presumptively invalid. Atkinson Trading v. Shirley, 532 U.S. 645, 659, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), is approved by Plains Commerce stating especially on non-indian fee land Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S.316, 330, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). The statement infers at e Tribe cannot regulate sales to non-members, regardless of land status. Plains Commerce holds at a tribe s adjudicative jurisdiction does not exceed its legislative jurisdiction. Plains Commerce, Id. at 330. The Respondents did not cite ese important cases in eir brief even ough cited in Appellant s Opening Brief as binding auority. Hart v. Massanari, 266 F.3d 1155, 1171 (9 Cir. 2001). Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1155 (10 Cir. 2011) applied e similar rational of lack of sovereign immunity of state officials for an ongoing violation of federal law to tribes and tribal officials joining e D.C., 8 and 11 Circuits on is issue. -11-

20 Case: /08/2012 ID: DktEntry: 16 Page: 20 of 49 It is mandated by e supremacy clause, U.S. Const. Art. VI, cl. 2 e laws of e United States.... shall be e supreme law of e land. The rule is stated in Stidham, Id It states at an ongoing violation of federal law allows even e Tribe to be enjoined. If state law requires tribal reports, e U.S. Const., Ten Amendment, reserving power to e states, abrogates tribal immunity. Agua Caliente Band of Cahuilla Indians v. Supreme Court, 148 P.3d 1126, 1140 (S.C. Cal. 2006). At pages of eir brief, Respondents contend at a waiver of immunity by a tribe must be specific, and at 18, at e mediation provision is not arbitration but in any event applies only to e parties. This argument is inconsistent wi eir argument at page 7 at Appellants seek to decimate e Compact. C & L Enterprises v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411, 418-9, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) rebuts all ese contentions. The arbitration clause did not specifically waive immunity. The clause itself waived it. Wheer mediation or -12-

21 Case: /08/2012 ID: DktEntry: 16 Page: 21 of 49 arbitration, any dispute resolution procedure is waiver. See C & L id. at 420. The mediation clause in is case mandates a mediator selected by e Judicial Arbitration and Mediation Service s ( J.A.M.S. ) Seattle office. ER 93. The office includes mediation. The reach compact statement at (ER 93) is confusing. Regardless, e mediator may enforce e contract This is arbitration, not mediation. B. The Sherman and Clayton Anti-trust Acts Apply to Governments at Compete wi Individuals by Selling to e Public At Retail. The Complaint and Tonasket s declaration allege at e Tribe is in direct competition on sale of pre-packaged goods wi Tonasket selling to e general public at retail. ER 26, 29, 41-46, ER Jefferson County Pharmaceutical Ass n v. Abbott Laboratories, 460 U.S. 150, 170, 103 S.Ct. 1011, 74 L.Ed.2d 882 (1983) states ere simply no unambiguous evidence of congressional intent to exempt purchases by a State for e purpose of competing in e -13-

22 Case: /08/2012 ID: DktEntry: 16 Page: 22 of 49 private retail market wi a price advantage. The court noted at e state was e strongest competitor of em all and at Congress feared any law at intended to deny small business anti-trust relief from competing governments. Id. at 171. At page 14, e Tribe, wiout citation of auority, argues at e sovereign immunity of e Tribe prevails over e anti-trust law, Jefferson County, id. at carefully reviews e legislative history and concludes exactly e opposite. We find no legislative intention to enable a State, by an unexpressed exemption, to enter private competitive markets wi congressionally approved price advantages, id 162. Burlington Norern Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9 Cir. 2007) applies lack of immunity of states to tribes. The same logic should apply to anti-trust violations. The statute, 15 U.S.C. 15, works bo ways. The Colville Tribe, at page 4 of its brief, states Appellants mistakenly contend at CCT is fixing cigarette prices. The compact and tobacco code requires at all cigarettes be purchased -14-

23 Case: /08/2012 ID: DktEntry: 16 Page: 23 of 49 from state controlled wholesalers who charge more, or e Tribe who also has to charge $5 more. The allegations of e Complaint allege price fixing at are wiin 15 U.S.C. 13(a), e price fixing statute. The Colville Tribe, at pages 4 and 5, admits at only wholesalers at are limited to certification by e State or Tribe and who attach stamps equal to 100% of e state tax are e only wholesalers at Tonasket can buy from. This class of wholesalers all charge about $5 more for eir product. This is wholesale price inflation is of items of e same like kind and quality. Exclusive dealing contracts to supply products by a natural college fraternity organization at set prices and controlled e market were held as violating e federal anti-trust law and were enjoined. L.G. Balfour Company v. F.T.C., 442 F.2d 1, (7 Cir. 1971). Balfour is in point as it parallels is case. An agreement to restrict competition violated 15 U.S.C. 1, 2 and 45 defining unfair meods of competition. Injunctions were upheld. Anoer reason is at R.J. Reynolds v. Premium Tobacco Stores, 1999 WL page 3 (N.D. Ill 1999); F.T.C. v. Fred -15-

24 Case: /08/2012 ID: DktEntry: 16 Page: 24 of 49 Meyer, 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968) and Texaco v. Hasbrouck, 496 U.S. 543, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990) all hold at sales of items of like kind and quality, a description at includes cigarettes, must be sold to retailers at e same prices to prevent a violation of e federal anti-trust act, 15 U.S.C. 13(a). The Tribe got at least $11.75 and probably more from Miller, and receives $11.75 more from its own sales since it pays e tax to no one. Tonasket s declaration also includes price fixing facts. ER Appellants allege at paying into e MSA settlement was not required by e Tribe and forces Tonasket to pay $2 to $5 more per carton. (ER 42-3). Cigarettes can be purchased at lower prices if e lawsuit settlement is ignored. (ER 45). Knevelbaard Dairies v. Kraft Foods, 232 F.3d 979, 988 (9 Cir. 2000) conclusively rejects e Colville Tribe s argument as it holds at any combination to prevent horizontal competition in e purchase of any commodity are per se price fixing violations of e -16-

25 Case: /08/2012 ID: DktEntry: 16 Page: 25 of 49 Sherman and Clayton Acts. 15 U.S.C. 1. Knevelbaard alleged a combination to depress milk prices and restrain competition. The Opinion states, When horizontal price fixing causes buyers to pay more, or sellers to receive less an e prices at would prevail in a market free of e unlawful trade restraint, antitrust injury occurs. This is seen most often in claims of overcharged buyers. The case reversed a dismissal of e complaint, held at a private action for anti-trust injury was properly pled and sent e case back to trial. The case, id at 994, states e uniform rule at we are not concerned wi which side will prevail at trial. It holds at e complaint alleged facts at survived a motion to dismiss. Here, e Respondents seek to try a case or dispute allegations of e facts in complaint which are to be taken as true. Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1169 (9 Cir. 2002) follows Knevelbaard holding a complaint alleging harm to legally documented employees injured by illegal hiring schemes is a price fixing injury. -17-

26 Case: /08/2012 ID: DktEntry: 16 Page: 26 of 49 Mendoza also reversed a dismissal of e complaint holding at e allegations were to be taken as true, and at ey were victims of illegal conduct. Applied to is case, e Red Ear, LLC nd v. United States, 657 F.3d 138, 148 (2 Cir. 2012) holding at e a constitutional violation of due process is caused by tampering wi out-of-state shippers requiring em to put stamps on cigarettes. The allegation of a due process violation is sufficient even wiout e anti-trust violation. (ER 56). C. The Land Is Not Tribal Land but an Exclusive Trust Allotment Held in Trust by e United States. The assertions at page 2 and 28 at Tonasket s store is on tribal land is wrong. Tonasket v. State, 488 P.2d 281 (Wash. 1971) (vacated on an unrelated issue) 411 U.S. 451, 93 S.Ct. 1941, 36 L.Ed.2d 129 (1973) held at e land is a trust allotment now held by ree generations of e Tonasket family. Cohen s, 2005 Handbook of Federal Indian Law 16.03[1] (Nell Jessup Newton ed. 2005) pages makes e distinction. It states: Allotment is a term of art in Indian law, describing eier a parcel of land owned by e United States in trust for an Indian -18-

27 Case: /08/2012 ID: DktEntry: 16 Page: 27 of 49 ( trust allotment ) or owned by an Indian subject to a restriction on alienation in e United States or its officials ( restricted allotment). Cohen at 15.02, page 966, also states, Tribal property may be formally defined as property in which an Indian tribe has legally enforceable interest. It must be distinguished, on e one hand, from e property of individual Indians... Plains Commerce Bank v. Long Family Cattle Co., 554 U.S. 316, , 128 S.Ct. 2709, 171 L. Ed.2d 457 (2008) discusses allotments including e fact at e Tribe cannot stop sales of allotment and concludes at activities of non-members on land wiin e reservation cannot be taxed by an Indian tribe if ere is no consensual relationship required by Montana v. U.S., 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). The all important presumption is at e Tribe must prove at ey have a consensual relationship wi e non-member. Here, Appellant Miller did not buy cigarettes on tribal land, nor from e Tribe. He bought from a tribal Indian who had a store on a trust allotment exclusively occupied by Terry Tonasket. This is non- -19-

28 Case: /08/2012 ID: DktEntry: 16 Page: 28 of 49 member transaction at excepts Merrion v. Jicarilla Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) for e reason at e activity of a business on allotted lands does not imperil or have an adverse effect on e Tribe. The distinction is material to is case in at e legal incidence of e tax falls on e non-member as stated at footnote 6 of Atkinson Trading v. Shirley, 532 U.S. 645, 655, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001). Atkinson, supra at 657, fn. 12, holds at e Tribe cannot assert auority beyond Tribal land. At page 28, e Respondents cite Water Wheel Camp Recreation v. LaRance, 642 F.3d 802 (9 Cir. 2011) in support of tribal regulation. Water Wheel involved a trespasser lease and found jurisdiction of e non-members because ey were trespassers who violated e conditions of eir entry. Water Wheel, (Id. at 809), reviewing current U.S. Supreme Court cases noted at a non-member is only subject to tribal regulation if e Montana (450 U.S. at 564) consensual relationship is established. The allotment is not tribal land. -20-

29 Case: /08/2012 ID: DktEntry: 16 Page: 29 of 49 D. Prospective Relief is Alleged and Prohibits Sovereignty of Bo e Tribe and Tribal Officials When Acting Beyond Their Auority. The Tribe, at page 6 and 21 of its brief, asserts at sovereign immunity does not apply as Appellants seek retrospective relief. At 21, ey acknowledge at prospective relief is an exception denying sovereign immunity to tribal officials. Tonasket s Amended Complaint (ER 43) states at if Defendant is not restrained, he will be driven out of business. Miller had e incidence and burden to pay e tax as he is ultimately liable. Colorado Nat. Bank of Bedford, 310 U.S. 41, 52, 60 S.Ct. 800, 84 L.Ed (1940); U.S. v. Williams, 514 U.S. 527, 536, 145 S.Ct. 1611, 131 L.Ed.2d 608 (1995); Confederated Tribes and Bands of e Yakima Indian Nation v. Gregoire, 658 F.3d 1078, 1089 (9 Cir 2011). Appellants Amended Complaint (ER 29) requests an injunction against price fixing violating 15 U.S.C. 26. At ER 65, Terry Tonasket had to apply additional sums to his sale prices which has reduced or eliminated profit in e future. -21-

30 Case: /08/2012 ID: DktEntry: 16 Page: 30 of 49 Additional facts and request for prospective relief are alleged in e Amended Complaint. (ER 28-9, 43, 52, 55, 57-60, 73-75). Allegations of lack of jurisdiction over non-indians seeking prospective relief overcomes tribal officials claims of immunity. Rogers-Dial v. Rincon Band of Luiseno Indians, 2011 WL , page 5 (D.C.Cal 2011); Rincon Mushroom Corp of America v. Mazzetti, 2010 WL , page 6 (D.C.Cal 2010). At page 6, e Tribe argued at retrospective, i.e. look back relief is sought, so prospective relief is not allowed. Pleading rules allow different and alternative types of relief. Fed.R.Civ.P. 8(a)(3). At page 27 of e Tribe s brief, e Tribe cites e District Court cases of Miller v. Wright, No 3:11 cv rbl, 2009 WL cases at are now on appeal in is Court No involving e Puyallup Tribe Cigarette Compact. In ese cases, e Puyallup Tribe did not allege at e State was an indispensable party. The cases have some common issues. The Tribe s brief at 21 also admits at tribal officials are not immune from suits for prospective relief and to protect wrongful -22-

31 Case: /08/2012 ID: DktEntry: 16 Page: 31 of 49 impairment of federally protected rights. Allegations of violation of federally protected rights are also alleged. ER 28, 36, 37. The case cited in Tonasket and Miller s opening brief, Crowe & Dunlevy v. Stidham, 640 F.3d 1140, 1154 (10 Cir. 2011) holds at Ex parte Young also deprives a tribe of sovereign immunity for prospective relief. Tonasket s opening brief at page 21 cites ree Nin Circuit cases and Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), at also waive immunity of tribal officials and allow injunctive relief. Contrary to e private party argument at page of eir brief, Freeman v. San Diego Board of Realtors, 322 F.3d 1133, 1145 (9 Cir. 2003) held at indirect buyers represented by private real estate agents had price fixing standing. Injunctive relief was allowed against price fixing. It is also sought here. (ER 85). Freeman, id. at 1114 holds at price fixing, wiout more, allows private actions. Pacific Coast Agricultural Export Ass n v. Sunkist Growers, 526 F.2d 1196, 1203 (9 Cir. 1975) and Norwest Wholesale Stationers v. -23-

32 Case: /08/2012 ID: DktEntry: 16 Page: 32 of 49 Pacific Stationary and Printing, 472 U.S. 284, 298, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) support private rights of action. E. The Individual Defendants have no Immunity when Acting Beyond Their Auority. The Amended Complaint alleges at e tribal officials acted beyond eir auority. (ER 39, 45-7, 53-4, 57-9, 66-7, 69, 74-6). The Amended Complaint (ER 47) states, The Defendant Colville Tribe, a market competitor, acted beyond its lawmaking jurisdiction and also agreed to a price fixing provision violating federal anti-trust laws. Actions against tribal officials in eir official capacity to enjoin em from violating federal statutes, and also federal common law, is an exception to sovereign immunity. Salt River Project Agr. Imp and Power v. Lee, 672 F.3d 1176, 1177 (9 Cir. 2012). Burlington Norern Santa Fe Railway v. Vaughn, 509 F.3d 1085, 1092 (9 Cir. 2007) holds at tribal officials imposing unconstitutional tribal taxes are not immune from injunctive and declaratory relief. The opinion holds under e doctrine of Ex parte Young, immunity does not extend to officials acting pursuant to an -24-

33 Case: /08/2012 ID: DktEntry: 16 Page: 33 of 49 alleged unconstitutional statute. Unconstitutional laws are alleged in is case. (ER 38, 62-65). Tribal Code and (Addendum A-10) and Wash.Rev.Code (5) mandates out-of-state stamping before delivery to e reservation. The Tribal Code states or to ship to Indian country. Currently, is is a violation of e injunction against e Jenkins Act, 15 U.S.C. 376(a)(3,4). Red Ear LLC v. nd U.S., 657 F.3d 138, 148 (2 Cir. 2011). The Tribe and tribal officials enacted an unconstitutional law beyond eir auority. Costco v. Maleng, 522 F.3d 874, 895 (9 Cir. 2008) applies as it invalidated a wholesale pricing system. Arizona v. Maricopa County Medical Society, 457 U.S. 332, 348, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982) states at setting maximum or minimum prices is per se price fixing. At page 5 of its brief, e Tribe indicates at it does not keep e MSA addition, but pays it for administrative services. The Amended Complaint (ER 56-7) alleges price fixing by collecting money for e State s escrow and violation of e revenue rule. -25-

34 Case: /08/2012 ID: DktEntry: 16 Page: 34 of 49 However, e State gets MSA money from Tonasket s forced buying from wholesalers who must charge e MSA. These accounts are paid to e State. When a tribe agrees to be bound by state law, as it agreed here (ER 285-6), e Tribe waives sovereignty. Bittle v. Bahe, 192 P. 3d 810, (S.C. Okla 2008). Attorney General of Canada v. R.J. Reynolds Tobacco Company, nd 268 F.3d 103, 109 (2 Cir. 2001) recognized and followed e common law revenue rule providing at e courts of one sovereign will not enforce unajudicated tax claims of anoer sovereign. Here, e MSA is merely a lawsuit settlement agreed upon by e State and e major tobacco companies. The attempt to collect state revenue or charge taxes on e same amount by e Tribe waives its sovereignty. Franchise Tax Board of California v. Hyatt, 538 U.S. 488, 497, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003) states, e Constitution does not confer sovereign immunity on States in e courts of sister states. F. Oer Contentions. -26-

35 Case: /08/2012 ID: DktEntry: 16 Page: 35 of 49 At page 14 of its Brief, e Tribe asserts at arm of e Tribe is not involved in is case. At SER 12, e Declaration of Tom Sargent refers to Colville tribal competitor wi Tonasket Colville Tribal Enterprise Corporation, CTEC, stating at it is a tribally chartered corporation owned by e Tribe. The tribally chartered corporation operates e retail outlet competing wi Tonasket. ER 29, 26. The declaration contradicts e argument. CTEC is an arm of e Tribe. Even ough e Tribe states at page 21 at it does not collect e MSA, e Tribe agreed at it had an interest in e MSA, ER 82. It is impossible to determine why a tribe had an interest in a lawsuit settlement when no Indian tribe was a party and is immune from e MSA. Nor Carolina v. Seneca-Cayuga Tobacco Co., 676 S.E.2d 579, 584 (N.C. 2009). The Tribe at pages 28-9 argues at e dormant commerce clause is not implicated. It is directly involved as e Tribe agreed to impose 100% of e state tax on goods of like kind and quality. ER

36 Case: /08/2012 ID: DktEntry: 16 Page: 36 of 49 The attempt to equalize e tax by bo governmental entities and eir respective jurisdictions is a dormant commerce clause violation. Associated Industries of Missouri v. Lohman, 511 U.S. 641, 646, 114 S.Ct. 1815, 128 L.Ed.2d 639 (1994) invokes a negative command forbidding e States to discriminate against interstate trade. Costco Wholesale v. Maleng, 522 F.3d 874, 901 (9 Cir. 2008) sustains a commerce clause violation on uniform pricing. Since e Colville Tribe does not have to pay e MSA, by requiring higher prices to equalize e amount of tax outside its jurisdiction, it violates e commerce clause. R.J. Reynolds v. City of New York Wesson Inc. v. Franchise Tax Board of California, 528 U.S. 458, 464, 120 S.Ct. 1022, 145 L.Ed.2d 974 (2000) and Red Ear LLC v. United States, 657 F.3d 138, 148 (2nd Cir. 2011) also hold at e discrimination is a due process violation. At 8-9 of its brief, e Tribe seems to indicate at Sargent s declaration, SER 13, and exhibits are contrary to e Appellants Contentions. The facts alleged in e Complaint are verified and Department of Finance, 667 N.Y.S.2d 4 (New York 1997). Hunt- -28-

37 Case: /08/2012 ID: DktEntry: 16 Page: 37 of 49 presumed true. Conflicts are resolved in favor of e non moving party. The Respondents Motion in is case was not designated but is a Fed.R.Civ.P 12(b)(1) and (7) motion. Uncontroverted allegations in e Complaint where lack of jurisdiction is at issue, are taken as true. Brayton Purcell v. Recordon & Recordon, 606 F.3d 1124, 1127 (9 Cir. 2010). If a dispute of material fact exists, e case goes to trial Fed.R.Civ.P. 56(a). The cases cited by e Respondents at page 9 do not involve an exhibit or declaration allowing Plaintiff to prove jurisdiction. St. Clair v. City of Chico, 880 F.2d 199 at 201 (9 Cir. 1989). Savage v. Glendale Union High School Dist No. 205, 343 F.3d 1036, 1040 (9 Cir. 2003)(cited by Respondent) holds at sovereign immunity is a question of law and allegations of e Amended Complaint are taken as true. Affidavits are considered only if e immunity is factual, not facial. The review of e declarations in is case do not contain information on e issue for e reason at immunity question is facial. There is no factual -29-

38 Case: /08/2012 ID: DktEntry: 16 Page: 38 of 49 question at e Tribe is a recognized Tribe as is is admitted by Appellants. ER 39. G. The Indispensable Party Issue is not Before e Appeals Court; in any Event, e Tribe is Fully Protecting e State s Interest. The Appellees, at page 33, state at Appellant s indispensable party argument suffers from a fatal flaw. The lower court, ER 11, stated Because e Court finds above at e Defendants have sovereign immunity in is case, which has not been waived, e Court does not have to determine if e state law can or cannot be joined. This Court has inherent power to fashion a remedy and remand, but it must be exercised wi restraint. Dixon v. C.I.R., 316 F.3d 1041, 1047 (9 Cir. 2003). Here, e case is an appeal from a Motion to Dismiss. The only facts are contained in e Amended Complaint. ER Appellants are deprived of a full record as ey have not had e opportunity for discovery and no fair opportunity to develop e record. Burlington Norern Santa Fe R. Co. v. Assiniboine and Sioux Tribes of e Fort Peck Reservation,

39 Case: /08/2012 ID: DktEntry: 16 Page: 39 of 49 F. 3d 767, 774 (9 Cir. 2003). Discovery should be allowed to develop e facts of waiver and competition. Warburton/Buttner v. Superior Court, 104 Cal App , 127 Cal. Rptr. 2d 706 (Cal. 2002), Bradley v. Crow Tribe of Indians, 67 P.3d 306, 81-2 (Mont. 2003). The Compact, ER 82, states at No ird party shall have any rights or obligations under e Compact. The Appellants are not obliged to join e State as e Tribe, not e State, caused e harm. ER 26. Appellants alleged at e State is not a competitor. ER 28. The Tribe agreed to Require any Colville Tribe member selling cigarettes in Indian Country to be in compliance wi e terms of is Compact. ER 85. The Compact also requires a tribal license at is access for purposes of enforcement (ER 85). If a tribal member is not licensed, e state cigarette tax applies. State v. Comenout, 267 P. 3d 355, 358 (Wash. 2011). The Tribe admits at in its brief at page 34 at injunctions are sought, but fails to note at only e tribal officials and e Tribe are parties. Complete prospective relief is sought to prevent -31-

40 Case: /08/2012 ID: DktEntry: 16 Page: 40 of 49 e Tribe from anti-trust competition. The state of state officials are not required is or oer relief stated in e following sentence. The Tribe is bo e competitor and has passed a price fixing law. ER 28, A-10, 6-8-6, 6-8-7, The Tribe also passed a law attempting to require all wholesalers, regardless of wheer ey were tribal members wiin e Tribe s jurisdiction, to put e stamps on e cigarettes. The wholesaler restrictions are not confined to wholesalers who are resident tribal members. All wholesalers, regardless of location, are attempted to be regulated by e Tribe. Rowe v. New Hampshire Motor Transport Ass n, 552 U.S. 364, 373, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008); Red Ear LLC v. nd United States, 657 F.3d 138, 148 (2 Cir. 2011) holds at due process is violated if interstate or tribal jurisdiction does not apply. The State has jurisdiction of Miller, but e Tribe does not. ER The State agreed not to govern Tonasket in its 1899 Enabling Act (25 U.S. Statute at Large c 180. P 676) and in Article 26, Second of e State Constitution stating at Congress shall have exclusive control of tribal members living on e reservation. The lack of state -32-

41 Case: /08/2012 ID: DktEntry: 16 Page: 41 of 49 jurisdiction and control is established by e disclaimers in e State Constitution and preserved in e U.S. Const. Art I, 8, cl. 3. McClanahan State Tax Commission of Arizona, 411 U.S. 164, 175, 93 S. Ct. 1257, 36 L.Ed. 129 (1973), exempting tribal Indians from state tax and Moe v. Confederated Salish and Kootenai Tribes of e Flaead Reservation, 425 U.S. 463, 480, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) expressly exempted tribal members from state cigarette taxes and licensing to sell tobacco products on e reservation. Tonasket has no need to join e State as e State has no jurisdiction of him. None of e money from e Compact can benefit Tonasket as Wash.Rev.Code (8) prohibits a subsidy to him. The Compact only allows e Tribe to use e money to fund essential government services. ER 91. A proprietary income is used to pay for governmental functions. Lakoduk v. Cruger, 287 P.2d 338, 340 (Wash 1955). If e case only seeks prospective relief against present tribal officials, ER 39, and complete relief can be obtained by Appellants if e Tonasket s can buy from any wholesaler and price fixing and -33-

42 Case: /08/2012 ID: DktEntry: 16 Page: 42 of 49 matching taxation to e State is restrained and damages allowed. The joinder issue should not be rigidly applied or dictate a harsh result. The Court can also fashion a meaningful relief by providing remedies at do not require e State s cooperation. Hendricks v. Bank of America, N.A., 408 F.3d 1127, 1136 (9 Cir. 2005); Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 880 (9 Cir. 2004). Here, a ruling at e Tribe is not immune from Federal anti-trust laws would not affect e State. The Compact makes no reference to e Tribe competing wi its members. Allowing e Tonasket unlimited wholesaler access would allow him greater profit as he would also save money. This also would not affect e State. Salt River Project Agricultural Improvement and Power District v. Lee, 672 F.3d 1176, 1179 (9 Cir. 2012) applies and denies joinder of e State. The reason is at e ree elements of 19(a) reviewed in e case are not present here, and even if ey were, e Tribe is adequately representing e states as all e possible arguments have been and will be made by e Tribe. -34-

43 Case: /08/2012 ID: DktEntry: 16 Page: 43 of 49 At page 36 of its brief, e Defendants cite E.E.O.C. v. Peabody Western Coal Co., 610 F.3d 1070, 1087 (9 Cir. 2010) in support of dismissal due to indispensable party. Peabody has relevance and is in favor of Appellants as it holds, id. at 1087, at a request for injunctive relief (here at CR 55-59) allows a defendant to implead a party who would be indispensable but is immune from a damage claim and oerwise claim sovereign immunity. The case is complex, but e issue applies to e injunction sought in is case. The Tribe, at 36, relies on Dawavenda v. Salt River Project Agricultural Improvement and Power District, 276 F.3d 1150 (9 Cir. 2002) stating at e party to a contract is necessary. The case does not apply for e reason at e Compact would not be decimated by a holding at it cannot compete wi Tonasket or regulate Miller. Like e later case of Disabled Rights Action Committee v. Las Vegas Events, 375 F.3d 861, 881 (9 Cir. 2004) e compact does not require e Tribe to compete wi Tonasket. Nor is is case a suit to set aside e contract. The contract provided for furer negotiation of e Tribe s right to sell on e internet (ER 84). -35-