Case 2:75-cv BSJ Document 294 Filed 08/25/13 Page 1 of 29

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1 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 1 of 29 Stephen D. Foote (#8945) Duchesne County Attorney P.O. Box 346 Duchesne, Utah Tel (435) Fax (435) sfoote@duchesne.utah.gov Attorneys for Duchesne County Jesse C. Trentadue (#4961) SUITTER AXLAND, PLLC 8 East Broadway, Suite 200 Salt Lake City, Utah Tel (801) Fax (801) jesse32@sautah.com Attorneys for Duchesne County UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION UTE INDIAN TRIBE OF THE UINTAH and OURAY RESERVATION, UTAH, v. Plaintiff, THE STATE OF UTAH, DUCHESNE COUNTY, a political subdivision of e State of Utah, ROOSEVELT CITY, a municipal Corporation, DUCHESNE CITY, a municipal Corporation, MYTON, a municipal corporation, and UINTAH COUNTY, a political subdivision of e State of Utah, Defendants. DUCHESNE COUNTY S OPPOSITION TO UTE TRIBE S MOTION TO DISMISS CONSOLIDATED CASES Civil No. 275-cv and 213-cv BSJ Judge Bruce S. Jenkins Magistrate Judge Evelyn J. Furse Plaintiff Ute Indian Tribe of e Uintah and Ouray Reservation ( Ute Tribe ) has moved to dismiss e Counterclaims and Third-Party Complaints filed by e State of 1 Utah, Uintah County and Duchesne County. The State of Utah and Uintah County have 2 bo submitted Memoranda in opposition to ose Motions. Duchesne County, erefore, 1 2 Doc. 222, 270 and 271. Doc. 249 and 284.

2 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 2 of 29 adopts, joins in and incorporates by reference e arguments raised by e State of Utah and Uintah County to e Ute Tribe s Motions to Dismiss. In addition, Duchesne County now submits e Memorandum in opposition to e Tribe s Motion to Dismiss. 3 INTRODUCTION By way of Counterclaim or Third-Party Complaint, Duchesne County has asserted five claims for declaratory and injunctive relief. These are to enjoin e Ute Tribe s efforts to obstruct justice by orchestrating, funding or oerwise aiding and abetting its 4 members in bringing sham lawsuits against County officials; to enjoin e Ute Tribe s illegal and unconstitutional assertion of law enforcement auority over federal, State and 5 County roads and rights-of-way; to enjoin e Ute Tribe s illegal and unconstitutional 6 assertion of civil regulatory auority over non-members and non-tribal lands; to enjoin e Ute Tribe from closing public road and rights-of-way to County officials and Doc Doc. 239, Counterclaim and Third-Party Complaint, s 42 rough 49. Id. at s 51 rough 65. Id. at s 66 rough 92. 2

3 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 3 of 29 7 members of e general public; and to enjoin e Ute Tribe from continuing to violate e 8 constitutional rights, privileges and immunities of e County and its citizens. The Ute Tribe argues at ese claims should be dismissed because ere is no justifiable case or controversy; because Duchesne County lacks standing to assert any claims; because Duchesne County has failed to exhaust its remedies in e Ute Tribal Court; because e Ute Tribe is immune from suit; because Duchesne County s claims are somehow barred by res judicata; and because Duchesne County has failed to state a claim 9 for relief. Duchesne County will address each of e Ute Tribe s arguments in turn but first it is important to reflect upon Utah s unique history when it comes to eventually determining e County s criminal jurisdiction and civil regulatory auority wiin e Ute Tribe s former Reservation Id. at s 93 rough Id. at s 101 rough 104. For purposes of proceeding under federal civil rights laws, Duchesne County is a person. See Rural Water District No. 1 v. City of Wilson, Kansas, 243 F.3d 1263, 1274 (10 Cir. 2001). 9 In its argument in opposition to e Ute Tribe s contention at Duchesne County has failed to state a claim for relief, e County will also address e Statement of Relevant Facts set out by e Tribe in pages 4 rough 5 of its Motion to Dismiss. Doc Duchesne County s use of e term former Reservation is intended to emphasize at e Ute Tribe is attempting to assert civil and criminal jurisdiction over non-members and non-member owned land wiin e exterior boundaries of its original reservation; whereas e original Ute Reservation has been considerably diminished by decisions of e Ten Circuit and United States Supreme Court. See, e.g. Ute Indian 3

4 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 4 of 29 BACKGROUND At e heart of e Ute Tribe s Motions to Dismiss is e notion at state law stops at e borders of an Indian reservation. But at is not so. The United States Supreme Court has made clear at Utah and Duchesne County s sovereignty do not end at e former Reservation s borders. [A]n Indian reservation is now considered part of e territory of e State. 11 Moreover, in resolving conflicts between state and tribal auority, federal courts typically look to e historical relationships between e tribe, 12 state and federal governments. In fact, Utah s governmental history reveals a Tribe of Uintah and Ouray Reservation v. Utah, 114 F.3d 1513 (10 cir. 1997); Hagan v. Utah, 510 U.S. 399 (1985). Similarly, e federal courts have severely restricted e Ute Tribe s governmental auority over non-members and non-member land wiin e former Reservation as e result of decisions such as Nevada v. Hicks, 533 U.S. 353 (2001); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) and Strate v. A-1 Contractors, 520 U.S. 438 (1981); whereas ese same decisions and oers such as New York ex rel. Ray v. Martin, 326 U.S. 496, 499 (1946)( In e absence of limiting treaty obligations or Congressional enactment each state has a right to exercise jurisdiction over Indian reservations wiin its boundaries), Utah & N. Ry. v. Fisher, 116 U.S. 28 (1885)(on reservation non-indian-owned property is taxable) and United States v. Mc Bratney, 104 U.S. 621 (1881)(Colorado had jurisdiction over non-indian who murdered anoer non-indian wiin a reservation boundaries) have consistently recognized a state s right to govern-regulate on reservation activities. 11 Hicks, 533 U.S. 353, (2001). Accord, Shakopee Mdewakanto Sioux Community v. City of Prior Lake, Minnesota, 771 F.2d 1153, 1156 (8 Cir. 1985)(Reservation communities are still part of e state in which ey are located and e political subdivisions of at state). 12 See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 4

5 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 5 of 29 sovereignty and dominion over Indians and Indian lands not enjoyed by oer states and not oerwise diminished by Utah s admission to e Union. Utah has a unique history because it first existed as an independent country established beyond e territorial boundaries of e United States. Originally known as e State of Deseret, Utah was established in an area which was part of e Territory of Mexico. The land occupied by e State of Deseret did not become part of e United States until e Treaty of Guadalupe Hidalgo was signed, ereby ending e Mexican War. Furermore, e dominion which e State of Deseret enjoyed over its lands and e people residing on ose lands is very instructive on e issue of e State of Utah and its political subdivision s broad jurisdiction wiin a reservation s boundaries. As a separate, independent nation, e State of Deseret had its own Constitution. The following language from its Preamble reveals at e framers considered e State of Deseret to be not only a free and independent government, but to have dominion over a tremendous area of what would later become e Western United States WE THE PEOPLE, Grateful to e SUPREME BEING for e blessings hierto enjoyed, and feeling our dependence on Him for a continuation of ese blessings, DO ORDAIN, AND ESTABLISH A FREE AND INDEPENDENT GOVERNMENT, by e name of e STATE OF DESERET; including all e Territory of e United States, wiin e following boundaries, to wit Commencing at 33, Nor Latitude where it crosses e 108, Longitude, west of Greenwich; ence running Sou and West to e Norern boundary of Mexico, ence West to, and down e Main Channel of e Gila 5

6 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 6 of 29 River, (or e Norern line of Mexico,) and on e Norern boundary of e Lower California to e Pacific Ocean; ence along e Coast Nor Westerly to e 118, 30' of west Longitude; Thence Nor to where said line intersects e dividing ridge of e Sierra Nevada Mountains to e dividing range of e Mountains, at separate e Waters flowing into e Columbia River, from e Waters running into e Great Basin; ence Easterly along e dividing range of Mountains at separate said waters flowing into e Columbia river on e Nor, from e waters flowing into e Great Basin on e Sou, to e summit of e Wind River chain of mountains; ence Sou East and Sou by e dividing range of Mountains at separate e waters flowing into e Gulf of Mexico, from e waters flowing into e Gulf of California, to e place of BEGINNING; as set for in a map drawn by Charles Preuss, and published by order of e Senate of e United States, in The land area over which e State of Deseret claimed dominion included not only e entire States of Utah and Nevada, but one-ird or more of e States of Arizona, Colorado and New Mexico, as well as all of what is now Souern California. It is also important to note at ere is no reference in e Constitution of e State of Deseret to Indians or Indian lands. But it is perhaps more important to note at e lands and people falling wiin e jurisdiction of e State of Deseret included Indian lands and eir Indian residents and at e Constitution of e State of Deseret established legislative, executive and judicial branches to govern all lands and people wiin e State of Deseret, including Indians. In oer words, e Constitution of e 13 Deseret Constitution Preamble. 6

7 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 7 of 29 State of Deseret provided for its governance and dominion over all people and lands lying wiin its boundaries, which included Indians and Indian lands. Moreover, e State of Deseret s dominion over tribal governments did not change when it became a United States territory. In 1850, Utah officially became a territory of e United States of America. The Organic Act of e Territory of Utah established e Utah Territory and, like e Constitution of e State of Deseret, does not reference eier Indians or Indian lands. 14 Instead, it established e boundaries of e Utah Territory, changed e name from State of Deseret to Utah, created e Utah Territorial Government and vested it wi jurisdiction over all people and lands wiin e Utah Territory. The land mass of e Utah Territory was much smaller an its former State of Deseret and included what would become e States of Utah and Nevada as well as e western half of Colorado. Wiin is territory were Indian lands and Indian people, including e Ute Tribe, over whom e Utah Territorial Government could exercise jurisdiction. The Utah Organic Acts, wi its recognition of e Utah Territorial Government s dominion and governance over all persons residing wiin e Utah Territory, is significant when compared wi e Organic Acts for oer western states. For example, 14 See 9 Stat. 453, Ch

8 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 8 of 29 e Organic Act creating e Montana Territory placed e following limitation upon at Territorial Government s jurisdiction over Indians and/or eir lands That noing in is Act contained shall be construed to impair e rights of person or property now pertaining to e Indians in said territory so long as such rights shall remain unextinguished by treaty between e United States and such Indians or to include any territory which by treaty wiin e Indian tribes, is not, wiout e consent of said tribe, to be included wiin e territorial limits or jurisdiction of any state or territory; but all such territory shall be accepted out of e boundaries and constitute no part of e territory of Montana, until said tribes shall signify eir assent to e president of e United States to be included wiin said territory, or to affect e auority of e government of e United States to make any regulations respecting such Indians, eir lands, or property, or oer rights, by treaty, law, or oerwise, which it would have been competent for e government to make if is Act had never passed. 15 Wi e creation of e Montana Territory, Congress reserved to itself jurisdiction over Tribes and Tribal lands; whereas Utah s Organic Act, on e oer hand, did not place such limitations/restrictions on e Utah Territorial Government s jurisdiction over Indians or Indian lands. The Utah Territory was vested wi complete jurisdiction over tribes and tribal lands, and at did not change wi Utah statehood. Utah became part of e United States in In order to obtain admission to e Union, e Utah Constitution had to disclaim all right and title... to all lands lying Stat. 85, Ch. 95, 1.(emphasis added). 8

9 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 9 of 29 wiin said limits owned or held by any Indian or Indian tribe, and at until e title ereto shall have been extinguished by e United States, e same shall be and remain subject to e disposition of e United States, and said Indian lands shall remain under 16 e absolute jurisdiction and control of e Congress of e United States. But 17 absolute jurisdiction is not e same as exclusive jurisdiction and control. This language was merely an acknowledgment by e State of Utah of Congress s plenary power over tribes and tribal lands, it was not a divestiture of e jurisdiction over tribes and tribal lands at had passed from e Utah Territorial Government to e State of 18 Utah. ARGUMENT THERE IS A JUSTIFIABLE CASE OR CONTROVERSY The argument proffered by e Ute Tribe on e issue of a case or controversy is simple. The Ute Tribe contends at ere is no case or controversy because it is neier claiming nor exercising exclusive criminal jurisdiction wiin e boundaries of its former Reservation; e County has failed to allege facts showing an illegal assertion of civil regulatory auority; and e UTERO Ordinance does not exceed e Tribe s 16 Utah Constitution, Art. III, Section See Organized Village of Kake v. Eagan, 369 U.S. 60, 67 (1962)(Construing identical language in e Alaska Statehood Act). 18 See id. 9

10 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 10 of 29 auority. These, however, are issues of disputed fact which means at ere is indeed a case or controversy. In making is argument, e Ute Tribe likewise ignores e allegations contained in Duchesne County s Counterclaim and Third-Party Complaint about e Tribe not only exceeding its lawful auority vis-a-vis e activities and rights of non-indians, but also e allegations about e Ute Tribe interfering wi and obstructing Duchesne County in its exercise of e County s civil and law enforcement auority. The Ute Tribe ignores, too, e exhibits attached to Duchesne County s pleadings and incorporated by reference. Exhibits such as e January 30, 2012 letter from Tribal Business Committee s to e Duchesne County Commission announcing at e Ute Tribe retains criminal jurisdiction over any right-of-way running rough Indian Country...[and furer stating at] e granting of an easement for a right-of-way does not confer criminal jurisdiction 19 to e State of Utah or its officers. Similarly, e Ute Tribe ignores e Business Committee s December 14, 2012 letter to Kirk Wood, Chairman of e Duchesne County Commission, and County Sheriff 19 Doc , Duchesne County Counterclaim, Exhibit 4 page 3. The Tribe s claim to jurisdiction over public right-of-ways is contrary to law. See Montana DOT v. King, 191 F.3d 1108 (9 Cir. 1997)(Montana s jurisdiction over public right-of-way rough reservation not subject to tribal auority-control) and United States v. McBratney, 104 U.S. 621 (1881)(Colorado had jurisdiction over non-indian who murdered anoer non-indian wiin a reservation boundaries) 10

11 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 11 of 29 Travis Mitchel about a confrontation between Duchesne County Deputies and Tribal Officers wi respect to jurisdiction over a public road across e Midview Reservoir and 20 access via at road by non-indians to eir property. Notwistanding e Tribe s arguments to e contrary, ese and e oer exhibits attached to Duchesne County s Counterclaim and Third-Party Complaint certainly evidence a case or controversy. 21 ARGUMENT DUCHESNE COUNTY DOES HAVE STANDING Uintah County has moved to dismiss e Ute Tribe s Complaint on, among oer 22 grounds, e Tribe s lack of standing or oerwise having an actionable injury. In response to at lack of standing argument e Ute Tribe asserted, based upon e Ten 23 Circuit holdings in Seneca-Cayuga Tribe of Oklahoma v. State of Oklahoma and Prairie 24 Band of Potawatomi Indians v. Pierce, at it had standing because Uintah County s assertion of jurisdiction wiin e boundaries of e former Reservation interferes wi 20 Id. Doc , Exhibit Insofar as ese Exhibits reflect e collective actions of e Ute Tribe and e Business Committee, including e individual members of e Business Committee, ey are also evidence of a conspiracy in violation of 42 U.S.C Doc. 250, Uintah County Motion to Dismiss, p F.2d 709, 710 (10 Cir. 1989) F.3d 1234 (10 Cir. 2001). 11

12 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 12 of its right to govern. Duchesne County does not concede at is law supports standing- actionable injury on behalf of e Ute Tribe but if it does, en e same case law and arguments would also support Duchesne County s standing-actionable injury wi respect 26 to e latter s Counterclaim and Third-Party Complaint. Duchesne County has standing because e Ute Tribe, wi its efforts to obstruct justice by orchestrating, funding and oerwise aiding and abetting its members in bringing sham lawsuits against County officials, illegally and unconstitutionally asserting law enforcement auority over federal, State and County roads and rights-of-way, illegally and unconstitutionally asserting of civil regulatory auority over non-members and non-tribal lands, closing public road and rights-of-way to County officials and members of e general public, and continuing to violate e constitutional rights, privileges and immunities of e County and its citizens, has exceeded its lawful auority 25 Doc. 282, Ute Tribe s Memorandum, pp Particularly appropriate is e Ute Tribe s reference to Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10 Cir. 1998) and Seneca-Cayuga Tribe of Oklahoma, 874 F.2d at 716 for, respectively, e propositions at harm to a tribe s sovereign powers confers standing-actionable injury and so, too, does being forced to litigate in a court at does not have jurisdiction over em, bo of which mirror e allegations of Duchesne County s Counterclaim and Third-Party Complaint. 12

13 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 13 of and irreparably harmed bo Duchesne County and its citizens. Duchesne County. Duchesne County likewise has ird-party standing under e jus tertii doctrine There are essentially two types jus tertii standing, and bo exist in is case. The first type of jus tertii standing is when defendant s activities and/or actions regulate or infringe upon e rights of e plaintiff and, as result, also violate e rights of ird 30 parties. By law, Duchesne County is charged wi protecting e heal, safety and 31 well-being of its citizens. The activities of e Ute Tribe at issue in is case not only 27 See Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992)(To satisfy e standing requirement of Article III, a party must demonstrate (1) at he or she has suffered an injury in fact; (2) at ere is a casual connection between e injury and e conduct complained of; and (3) at it is likely, as opposed to merely speculative, at e injury will be redressed by a favorable decision). 28 The Ute Tribe attempts to characterize Duchesne County s standing as at of a parens patriae and proceeds to argue at as a political subdivision of e State of Utah, Duchesne County cannot sue in at capacity. There are, however, several flaws wi is argument. First, Duchesne County has alleged an actionable injury and, erefore, has standing in its own right. Hence, ere is no need to address e parens patrie issue. Second, e cases relied upon by e Ute Tribe to advance is argument are not totally supportive of e Tribe s position. When, as in e instant case, e issue to be litigated is one of overriding public concern, cities and counties can proceed in parens patrie. See City of Lexington v. City of Columbia, 400 S.E.2d 146, 147 (S.C. 1991). 29 Planned Parenood Association of Cincinnati, Inc. v. The City of Cincinnati et. al., 822 F.2d (6 Cir. 1987). 30 Id. 31 See Utah Code ; Redwood Gym v. Salt Lake County Commission, 624 P.2d 1138, 1142 (Utah 1981). 13

14 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 14 of 29 interfere wi Duchesne County s ability to discharge is duty to e public, but ey also violate e rights of County citizens. In ese types of cases, e plaintiffs have uniformly been permitted to assert e rights of affected ird parties. 32 The second type of standing under e jus tertii doctrine exists when e party asserting e right has a close relationship wi e person who possesses e right and ere is a hindrance or inability of e possessor of e right to pursue vindication of his or 33 her rights. It is admittedly more difficult to obtain e second type of jus tertii standing because e plaintiff must meet two additional requirements (1) e plaintiff s relationship wi e ird-party whose right he or she seeks to assert is such at e enjoyment of e right is inextricably bound up wi e activity e litigant wishes to pursue; 34 and e ird party is not as able to assert e allegedly affected right on his or 35 her own behalf. Bo factors exist in is instance. Duchesne County s duty to provide for e safety, heal and well-being of its citizens meets e first requirement for standing under e second genre of jus tertii standing. The second or hindrance factor is established by e fact at many citizens 32 Id. 33 Id. See also, Aid for Women v. Foulston, 441 F.3d 1101, 1111 (10 Cir. 2006) Singleton v. Wulff, 428 U.S. 106, 114 (1976). Id. at

15 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 15 of 29 have no knowledge at eir rights have been and/or are being violated by e Ute Tribe. For example, when public roads and rights-of-way wiin e former Reservation are closed to non-members by e Ute Tribe, e constitutional rights of countless unknown citizens and inhabitants of Duchesne County are being violated and many of ose citizens and inhabitants, inking at ose closed roads and rights-of-way are not public, turn away not realizing at eir fundamental right to travel has been violated. Neier do ey report ose road closures to Duchesne County. Anoer example of hindrance would be ose persons who succumb to e Ute Tribe s extortion by payment of bribes in order to continue to do business wiin or wiout e former Reservation and to exclude eir competitors for at same business opportunity are not going to complain of is practice for fear of retaliation from e Ute Tribe. Conversely, ose businesses who succumb to e racketeering and extortion of Ute Tribal officials, obtain a substantial economic advantage over eir competitors who are not only shut out or foreclosed from engaging in business activities wiin or wiout of e former Reservation, but have no knowledge of e reasons erefore so as to challenge e illegal boycott. That Duchesne County has standing is furer illustrated by reference to e concept of real party in interest. Standing focuses upon wheer a plaintiff has suffered harm or reatened harm, wheer at harm or reatened harm can be fairly traced to e 15

16 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 16 of 29 defendant s allege wrongful conduct and, and wheer e plaintiff s alleged harm is 36 likely to be redressed by e relief he or she requests. The real party in interest rule, on e oer hand, focuses upon wheer e plaintiff is e person who is entitled to enforce e rights being asserted. In oer words, is e plaintiff personally entitled to e relief 37 at he is seeking? Duchesne County has e right to seek a determination of e Ute Tribe s jurisdictional auority, which certainly equates to standing. ARGUMENT DUCHESNE COUNTY DOES NOT HAVE TO EXHAUST TRIBAL REMEDIES The argument at Duchesne County must allow e Ute Tribal Court to determine e reach of e County s auority under bo federal and state law, as well as e constitutional rights of its citizens is unprecedented. Duchesne County knows of no case supporting or even acknowledging is principle of law. Nor would anyone expect to see such case law given e fact at as between e County and e Ute Tribe, Duchesne County is e superior sovereign. Duchesne County s rights, privileges and immunities 38 are guaranteed- protected under e Ten Amendment. The Ute Tribe, on e oer hand, exists at e pleasure of Congress, which has plenary power over tribes and eir 36 See Lujan, 504 U.S. at See Certain Interested Underwriters v. Layne, 26 F.3d 39, (6 Cir. 1994)

17 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 17 of lands pursuant to e Indian Commerce Clause. This power allows Congress to bo create tribes and to terminate em. Furermore, jurisdictional disputes between states-counties and tribes are determined by e federal court, not a tribal court, especially when e Ute Tribe is asserting jurisdiction and/or auority over non-members and attempting to oust Duchesne 42 County from exercising its jurisdiction. In a word, tribal courts are courts of limited jurisdiction, which means at unless expressly granted jurisdiction by Congress, tribal 43 court s have no auority to litigate and determine issues of federal or state law, and e limits of a tribe s governmental auority is to ultimately to be determined by e federal 44 courts. 39 U.S. Constitution Art. 1, Clause Congress has delegated to e Department of Interior e auority to recognize tribes under federal law. See 25 C.F.R. 83 et. seq. 41 See 25 U.S.C. 564 et. seq.(termination of Klama Tribe); United States v. Hea, 509 F.2d 16, 19 (9 Cir. 1974). 42 See Hicks, 533 U.S. at 369 (tribal courts have no jurisdiction over state officials for causes of action arising out of e performance of eir official duties); MacArur v. San Juan County, 391 F. Supp. 2d 895, 1037 (D. Utah 2005); MacArur v. San Juan County, 497 F.3d 1057 (10 Cir. 2007); Montana DOT v. King, 191 F.3d 1108, (9 Cir. 1999); Montana v. Gilham, 133 F.3d1133 (9 Cir. 1997). 43 See Hicks, 533 U.S. at See National Farmers Union Ins. Cos., 471 U.S. at 853; Hicks, 533 U.S. at 353; Montana DOT, 191 F.3d at1108; Gilham, 133 F.3d at1133; Santa Clara Pueblo v. 17

18 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 18 of 29 This, too, is not a situation in which e exhaustion doctrine even applies. exhaustion of tribal court remedies is not required, for example, when e actions of an Indian tribe and its officials are patently violative of express jurisdictional prohibitions 45 or when, as in e instant case, it is oerwise clear at ere has been no federal grant to 46 e tribal court of jurisdiction over e conduct of non-members, especially Duchesne County. Nor could Congress vest e Ute Tribal Court wi such jurisdiction because of e denial of e rights guaranteed to e County and its citizens under e Constitution if 47 ey were to be subject to e jurisdiction of e Ute Tribal Court. Simply put, Congress could not give away e constitutional rights and powers enjoyed by Duchesne County and its citizens by vesting e Ute Tribal Court wi e jurisdiction to determine 48 e County s governmental auority. Martinez, 436 U.S. at 49; Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 483 (1999); Enlow v. Moore, 134 F.3d 993, 995 (10 Cir. 1998). 45 See National Farmers Union Ins. Cos., 471 U.S. at 857 n.21 (noting at exhaustion of trial court remedies is not required where e action is patently violative of express jurisdictional prohibitions ). 46 See Strate, 520 U.S. 438, 459 n. 14 (1981). 47 Neier e Bill of Rights nor e Fourteen Amendment apply to tribal governments. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). 48 Reid v. Covert, 354 U.S. 1 (1956)(Congress cannot, by treaty or legislation, give away e rights provided to citizens under e Constitution). 18

19 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 19 of 29 Exhaustion of Ute Tribal Court remedies is likewise not required when it serves 49 no purpose oer an delay, as would be e situation in e present case given e 50 decisional law holding at jurisdiction does not exist in e Ute Tribal Court; and/or when e assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad fai, such as disrupting e auority and/or functioning of e Duchesne County 51 government. In addition, exhaustion of tribal court remedies is not a prerequisite to e 52 existence of Federal Question jurisdiction. Nor should it be when constitutional rights 53 are involved. 49 See Strate, 520 U.S. at 459 n. 14 (1981) (determining at when tribal-court jurisdiction over an action such as is one is challenged in federal court, e oerwise applicable exhaustion requirement... must give way, for it would serve no purpose oer an delay ). 50 See Hicks, 533 U.S. at 369(holding since it is clear at tribal courts lack jurisdiction over state officials for causes of action relating to eir performance of official duties, adherence to e tribal exhaustion requirement in such cases would serve no purpose oer an delay). 51 National Farmers, 471 U.S. at 857, n. 21. See also Burrell v. Armijo, 456 F.3d 1159, 1168 (10 Cir. 2006). 52 See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 n. 8 (1987) (stating at tribal court exhaustion is not a jurisdiction prerequisite); Strate, 520 U.S. at Cf. Ellis v. Dyson, 421 U.S. 426, 433 (1975) (Exhaustion generally not required in 42 U.S.C suits). 19

20 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 20 of 29 It is also nonsensical to require e exhaustion of tribal court remedies wi respect 54 to compulsory counterclaims. Besides, e principle underlying e exhaustion requirement is at of tribal preemption, which is a tribe s right to makes its own laws 55 and to be ruled by em. When it applies, tribal preemption means state laws at impermissibly interfere wi a tribe s right of trial self-government are deemed to be preempted. However, in Hicks, e Supreme Court held at tribal preemption of e State of Nevada s on-reservation activities and governance was limited to what was needed to protect tribal self-government and to control internal relations, such as e 54 See Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, (3rd Cir. 1961)(If district court has subject matter jurisdiction over e complaint, it has ancillary jurisdiction over any Counterclaim at arises out of e same transaction and occurrence at is e subject of e Complaint); Payne v. AHFI Neerlands, B.V., 482 F. Supp 1158, 1162 (N.D. Ill. 1980); Revere Cooper & Brass, Inc. v. Aetna Cas & Sur. Co., 426 F.2d Cir. 1970)(Third-party claims arising out of e same transaction and occurrence as e original Complaint are considered to be wiin e Court s ancillary jurisdiction); Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 (1974)(If a counterclaim is compulsory, federal court has ancillary jurisdiction to hear at claim); Berrey v. Asarco Inc., 439 F.3d 636, (10 Cir. 2006)(A counterclaim is compulsory if (1) issues of fact and law raised by e principal claim and e counterclaim are largely e same; (2) res judicata would br a subsequent suit on defendant s claim; (3) e same evidence supports or refutes e principal claim and e counterclaim; and (4) ere is a logical relationship between e claim and counterclaim); Baltimore & Ohio R. Co. v. Central Ry. Services, Inc., 636 F. Supp. 782, 787 (E.D. Pa. 1986)( ird party defendants were properly joined as necessary parties to counterclaim of defendants who alleged at ird party defendants caused, aided or abetted acts underlying counterclaim). 55 Id. 20

21 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 21 of 29 power to punish tribal offenders, determine tribal membership, regulate domestic 56 relations amongst members, and provide for rules of inheritance. The Hicks court went on to hold at State sovereignty does not end at a reservation s borders. 57 Thus, when a state s interests outside e reservation are implicated, e state can even regulate e 58 activities of tribal members on tribal land... Finally, and most significantly, Hicks makes clear at tribal law only preempts state law under very narrow circumstances 59 when it is on-reservation activity AND involves only Indians. ARGUMENT THE UTE TRIBE IS NOT IMMUNE FROM SUIT Federal Courts are specifically charged wi e jurisdiction to review and determine e limits of a tribal government s auority. Hence, ere is obviously no tribal immunity applicable to such actions seeking declaratory and injunctive relief wi 60 respect to a tribe unlawful and/or unconstitutional actions. Sovereign immunity also Id. at Id. at 361. Id. at 362. Id. at 361(emphasis added). 60 See National Farmers Union Ins. Cos. v. Crow Indian Tribe, 471 U.S. 845, 853, (1985) (holding at a federal court may determine... wheer a tribal court has exceeded e lawful limits of its jurisdiction ); Nevada v. Hicks, 533 U.S. 353 (2001); Montana DOT v. King, 191 F.3d 1108 (9 Cir. 1999); Montana v. Gilham, 133 F.3d 1133 (9 Cir. 1997); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 21

22 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 22 of 29 does not always apply to suits filed against governments or eir officials. In particular, one well-established exception to e doctrine of sovereign immunity limits its application in declaratory and/or injunctive suits seeking to enjoin e enforcement of 61 unconstitutional governmental acts. Any oer rule would mean at a claim of sovereign immunity would protect a sovereign in e exercise of power it does not possess. 62 In addition, under e holding in Dry Creek Lodge, Inc. v. Arapahoe and 63 Shoshone Tribes, ere is likewise no immunity in is instance because e Ute Tribal Court does not have e jurisdiction to determine civil rights claims or constitutional issues, to interpret federal law or state law and/or to decide constitutional-jurisdictional issues. 64 Tribal courts do not have e jurisdiction to decide such issues because ese 65 are matters of federal and state law far beyond e tribe s internal affairs. Thus, if immunity were to be applied in is instance, en Duchesne County would have no 61 Dugan v. Rank, 372 U.S. 609, (1983); Kelley v. U.S., 69 F.3d 1503, 1507 (10 Cir. 1996); Tenneco Oil Co. v. Sac and Fox Tribe, 725 F.2d 572, 574 (10 Cir. 1984). 62 Tenneco, 725 F.2d at F.2d 682 (10 Cir. 1980). 64 Nevada v. Hicks, 533 U.S. 353 (2001)(tribal courts lack subject matter jurisdiction over federal civil rights claims) F.2d at

23 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 23 of 29 forum in which to vindicate e violation of its constitutional rights and ose of its citizens, and Dry Creek Lodge says at is is not e law. Dry Creek Lodge states at in such cases ere must be a forum even if it requires overriding-disregarding tribal sovereign immunity to provide at forum in federal court. 66 ARGUMENT DUCHESNE COUNTY S CLAIMS ARE NOT BARRED BY RES JUDICATA The Ute Tribe contends at e claims asserted by Duchesne County in e Counterclaim and Third-Party Complaint are barred by e doctrine of res judicata based upon e Ten Circuit s decisions in Ute III and Ute V. According to e Ute Tribe, all e issues raised in Duchesne County s Counterclaim and Third-Party Complaint were litigated and decided in ose cases. But neier Ute III nor Ute V ever considered much less decided e lawfulness-constitutionality of e Ute Tribe s actions at issue in is case such as e Tribe s efforts to obstruct justice by orchestrating, funding and oerwise aiding and abetting its members in bringing sham lawsuits against County officials; illegally and unconstitutionally asserting law enforcement auority over federal, State and County roads and rights-of-way; illegally and unconstitutionally asserting civil 66 Dry Creek Lodge also holds at when is exception applies, it even auorizes suits against e tribe itself. Id. 67 The Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10 Cir. 1985). 68 Ute Indian Tribe of Uintah and Ouray Reservation v. Utah, 114 F.3d 1513 (10 cir. 1997). 23

24 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 24 of 29 regulatory auority over non-members and non-tribal lands; closing public road and rights-of-way to County officials and members of e general public; and continuing to 69 violate e constitutional rights, privileges and immunities of e County and its citizens. ARGUMENT DUCHESNE COUNTY HAS ASSERTED VALID CLAIMS As its last argument for dismissal, e Ute Tribe asserts at Duchesne County has failed to plead a claim for relief. But at argument is intentionally deceptive. The Ute Tribe, for instance, contends at wi its Four Claim for Relief Duchesne County is asking e Court to create new public roadways wiin e former Reservation. However, is is not e substance of e Four Claim for Relief. Duchesne County is asking e Court to enjoin e Ute Tribe from closing public roads and right-of-ways to bo nonmembers and to e County. The County is not asking e Court to create new public roads or right-of-ways. 69 The Ute Tribe also argues at as e result of e Court s decision in Poulson v. Ute Indian Tribe, Case No. 12-cv-00497, Duchesne County s First Claim for Relief to enjoin e Tribe s funding of sham lawsuits in e Ute Tribal Court against County officials is barred by e doctrine of res judicata. The decision to which e Tribe refers was e Court s Order dismissing e Ute Tribe from essentially e same claim in at action. But at was not a dismissal on e merits. The Ute Tribe was dismissed as essentially an unnecessary party since e Court in at case had jurisdiction over he Ute Tribal Court and its Chief Justice. In e absence of e Trial Court and Chief Justice as parties in Poulson, e Tribe would have been a necessary party. Compare Hicks, 533 U.S. 353 (tribal court named defendant) wi National Farmers, 471 U.S. 845 (1985)(tribe and tribal officials are defendants). 24

25 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 25 of 29 The Ute Tribe s arguments wi respect to Duchesne County s Fif Claim for Relief are similarly deceptive. The Ute Tribe accuses e County of playing e race card be alleging a conspiracy claim under 42 U.S.C Section 1985 reaches private conspiracies; ere is no state action or color of law requirement to state a claim under Duchesne County alleges at e Ute Tribal Co-Conspirators conspired between and among emselves to violate e rights, privileges and immunities of Duchesne County and its citizens; and at ere was racial animus behind e Ute Tribal Co-Conspirators actions such as closing public roads and right-of-ways to non-indians but not to members of e Ute Tribe. More importantly, e letters from e Business Committee are evidence of at racial animus. Duchesne County has sufficiently pled a 70 claim under 42 U.S.C See Griffen v. Breckenridge, 403 U.S. 88 (1971). Members of federally recognized Indian tribes are also subject to liability under 1985 and See Thompson v. State of New York, 487 F. Supp. 212, 216 (N.D. N.Y. 1979). There are several distinct causes of action in 1985(2), including a conspiracy to deter by force, intimidation or reat any party or witness in any court of e United States from attending such court or from testifying to any matter pending erein freely, fully and trufully; as well as conspiracies impeding, hindering, obstructing or defeating, in any manner, e due course of justice wi e intent to deny to any citizen e equal protection of e laws, or to injury him or his property for lawfully enforcing or attempting to enforce, e rights of any person, or class of persons, to e equal protection of e laws. See 42 U.S.C. 1985(2). Section 1985(3) likewise creates a claim wi respect to conspiracies to deprive, eier directly or indirectly, any person or class of persons of e equal protection of e laws or of equal privileges and immunities under e laws. Duchesne County has alleged 1985(2) and (3) conspiracy claims. See Brever, 40 F.3d at 1126; Haddle v. Garrison, 525 U.S. 121 (1998) 25

26 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 26 of 29 Duchesne County s allegations also meet e pleading standards set for in Rule and Iqbal and Twombly because [d]etailed factual allegations are not required to 74 maintain a cause of action. Raer, e factual allegations must be enough to raise a 75 right to relief above e speculative level. A well-pleaded Complaint may proceed even 76 if it appears at recovery is very remote and unlikely. Furermore, a Complaint only need set for enough fact[s] to raise a reasonable expectation at discovery will reveal 77 evidence of illegal agreement, which Duchesne County has done Fed. R. Civ. P. 8. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Id. at 555. Id. Id. 77 Id. at 556. More importantly, in a recent decision, Robbins v. State of Oklahoma, 519 F.3d 1242 (10 Cir. 2008), e Ten Circuit addressed e new notice pleading requirements. According to e Robbins Court, a well-plead complaint may proceed even if it strikes a savvy judge at actual proof of ose facts is improbable and at a recovery is very remote and unlikely. The Robbins Court went on to state at e degree of specificity in pleadings necessary to establish plausibility in fair notice depends on e type of case. Id. at The allegations in Duchesne County s pleadings and e exhibits attached ereto, especially e letters from e Business Committee, establish e requisite plausibility as well as e actual conspiratorial agreement. 26

27 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 27 of 29 DATED is 25 day of August, DUCHESNE COUNTY ATTORNEY S OFFICE /s/ Stephen D. Foote Stephen D. Foote Duchesne County Attorney SUITTER AXLAND, PLLC /s/ Jesse C. Trentadue Jesse C. Trentadue Attorneys for Duchesne County T\7000\7739\4\DUCHESNE COUNTY MEMO OPPOSITION MOTION TO DISMISS COUNTERCLAIMS.wpd

28 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 28 of 29 CERTIFICATE OF SERVICE I hereby certify at on e 25 day of August, 2013, I electronically filed e foregoing document wi e U.S. District Court for e District of Utah. Notice will automatically be electronically mailed to e following individual(s) who are registered wi e U.S. District Court CM/ECF System J. Preston Stieff J. PRESTON STIEFF LAW OFFICES 136 East Sou Temple, Suite 2400 Salt Lake City, Utah Attorneys for Plaintiff John W. Mackay E. Blaine Rawson Jacquelyn D. Rogers RAY QUINNEY & NEBEKER 36 Sou State Street, Suite 1400 P.O. Box Salt Lake City, Utah Attorneys for Uintah County Amy F. Hugie 33 Sou Main, Ste. 2A Brigham City, Utah Attorney for Myton City Carolyn Wilcken Roosevelt 255 Sou State Street 36-8 Roosevelt, UT G. Mark Thomas Uintah County Attorney Jonaan A. Seamer Chief Deputy Uintah County Attorney 641 East 300 Sou, suite 200 Vernal, Utah Attorneys for Uintah County J. Craig Smi D. Williams Ronnow SMITH HARTVIGSEN, PLLC 175 Sou Main Street, Suite 300 Salt Lake City, UT Attorneys for Defendants Duchesne City Kyle J. Kaiser Assistant Utah Attorney General John E. Swallow Utah Attorney General Utah State Capital 350 Nor State St., Ste. 230 Salt Lake City, UT Attorney for State of Utah J. Craig Smi D. Williams Ronnow SMITH HARTVIGSEN, PLLC 175 Sou Main Street, Suite 300 Salt Lake City, UT Attorneys for Defendants Duchesne City 28

29 Case 275-cv BSJ Document 294 Filed 08/25/13 Page 29 of 29 Grant H. Charles, Esq. (#10865) Roosevelt City Attorney P.O. Box 1182 Duchesne, Utah Attorneys for Roosevelt City David B. Barlow, Esq. Daniel D. Price, Esq. UNITED STATES ATTORNEYS OFFICE 185 Sou State Street, Suite 300 Salt Lake City, Utah Attorneys for United States of America Gina L. Allery, Esq. (Pro Hac Vice) U.S. Department of Justice U.S. DOJ, ENRD Ben Franklin Station P.O. Box 7611 Washington, DC Attorneys for United States of America /s/ Jesse C. Trentadue 29