Case 3:08-cv BHS Document 217 Filed 12/09/13 Page 1 of 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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1 Case :0-cv-0-BHS Document Filed /0/ Page of The Honorable Benjamin H. Settle 0 CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION, et al., v. Plaintiffs, THURSTON COUNTY BOARD OF EQUALIZATION, et al., Defendants. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA NO. C0- DECLARATORY JUDGMENT Plaintiffs, Confederated Tribes of the Chehalis Reservation ( Tribe ) and CTGW, LLC (collectively Plaintiffs ), oppose Defendants Motion for Declaratory Judgment ( Motion ). Dkt. # 0. Defendants seek relief that is: () barred under the mandate rule, which requires that the Court enter judgment for Plaintiffs; () procedurally improper under Fed. R. Civ. Proc. because there is no such thing as a motion for declaratory judgment; and () substantively meritless because removable personal (non-permanent) property was never put at issue in the pleadings and Defendants cannot satisfy the applicable standard. Plaintiffs request that the Court deny Defendants Motion and enter the accompanying proposed judgment in favor of Plaintiffs. DECLARATORY JUDGMENT - () -0.

2 Case :0-cv-0-BHS Document Filed /0/ Page of I. FACTS 0 A. The Ninth Circuit Mandate On July 0,, the Court of Appeals for the Ninth Circuit reverse[d] the [D]istrict [C]ourt s summary judgment order and remand[ed] for proceedings consistent with this opinion. Dkt. # at. The Ninth Circuit issued its Mandate on October,. Dkt. #. The Ninth Circuit held explicitly that, Thurston County was barred from taxing the Great Wolf Lodge during the time in which the Grand Mound Property was owned by the United States and held in trust pursuant to. Dkt. # at. B. Plaintiffs Did Not Put Removable Personal Property At Issue. Except for those permanent improvements that were the subject of the Ninth Circuit s decision, see id. at ( permanent improvements built on non-reservation land owned by the United States and held in trust for an Indian tribe ), Plaintiffs did not put any property at issue in the litigation before this Court. In their Complaint, as amended, all that Plaintiffs sought in this case was to enjoin taxation of the Improvements. As defined in and governed by Plaintiffs Complaint, [t]he Improvements are not removable. Dkt. # at,. Count I of the Complaint sought to halt the tax on Permanent improvements to tribal trust property. Dkt. at,. Count II sought to halt Defendants imposition of a personalty tax on the Improvements. Id. at,. Count III sought to halt Thurston County s taxation of the Improvements. Id. at 0,. Count IV alleged nothing beyond illegal conduct in relation to ownership interests in the Improvements. Id. at 0,. Count V sought to halt the assessment, taxation and distraint of the Improvements. Id. at,. These are the boundaries of Plaintiffs Complaint. Defendants admitted in their Answer, as amended, that the lease provides that the improvements shall remain on the Trust Property after termination of the Lease. Dkt. # at. Defendants failed to make a claim for or request relief regarding anything related to removable Improvements are defined in the Complaint as the hotel, conference center, indoor water park and other improvements ( Improvements ) at the Lodge. Dkt. # at,. DECLARATORY JUDGMENT - () -0.

3 Case :0-cv-0-BHS Document Filed /0/ Page of 0 personal property. Id. at. Nor did Plaintiffs or Defendants otherwise make any claim for relief regarding a non-permanent property tax parcel. Indeed, the issue did not exist as of the date of Plaintiffs First Amended Complaint, March, 0. Id. The information now offered by Defendants for the proposition that this material is relevant a personal property tax assessment notice was not even generated by Defendants until November, 0. Dkt. # 0- at. Plaintiffs did not further amend their Complaint after that date; nor did Defendants amend their Answer thereafter. Dkt. # ; Dkt. #. It is the pleadings not any pretrial motion or briefs that define the scope of claims in the action. The above-captioned case was closed with the Court s order of June, 0, amending the Court s final judgment. Dkt. # at ( summary judgment has been granted on all of Plaintiffs claims and that the case was properly closed following the Court s April, 0, In any case, even if the Parties motions for summary judgment are considered, it is clear that only taxation of the improvements was at issue. Plaintiffs first motion for summary judgment, of March, 0, dealt only with buildings permanently affixed and located on the Tribe s trust land (herein Improvements, commonly known as Great Wolf Lodge ). Dkt. # at. Likewise, Plaintiffs January, 0 summary judgment motion dealt only with personal property taxes on Great Wolf Lodge (the Property or Lodge ). Dkt. # - at. Defendants December, 0 motion for summary judgment described the case as involving a property tax assessment on the improvements at the Great Wolf Lodge (Dkt. # 00 at ), and Defendants adopted the capitalized term Improvements for only permanent property. Dkt. # 00 at ; cf. Dkt. # at (defining Improvements as buildings permanently affixed and located on the Tribe s trust land. ). Defendants assert that a passing reference to Taxes at paragraph of Plaintiffs second motion for summary judgment could alter the fact that that motion itself sought to enjoin the taxes only on the Property defined as the Great Wolf Lodge. Dkt. # - at ; see also id. at, ( CTGW owns the Property/Improvements during its term. ); id. at, ( The Property was constructed.... ). Not so. That motion: Sought only to enjoin the Taxes... levied on buildings and other improvements majority owned (%) by the Tribe, and permanently affixed to the Trust property. Id. at (emphasis added). Referred to the Trust Property to which the Property is permanently affixed. Id. at, (emphasis added). Alleged that the Lodge, which is permanently affixed to the Trust Property, was specifically contemplated in the United States fee-to-trust acquisition. Id. at. Referred to the Property, which Defendants admit is permanently affixed to the Trust Property. Id. at. Nowhere in Plaintiffs summary judgment motion was it argued that CTGW s removable personal property that is not considered permanent improvements was part of the Property. Dkt. # 0 at. DECLARATORY JUDGMENT - () -0.

4 Case :0-cv-0-BHS Document Filed /0/ Page of order. ) In addition to being absent from the pleadings, any claim regarding removable personal property is absent from this Court s substantive orders. See generally id. (summarizing orders). II. ARGUMENT 0 A. Upon Remand, Judgment For Plaintiffs Is Required. Upon mandate, a district court lacks jurisdiction to do anything other than execute the appellate decision. See U.S. v. Thrasher, F.d, (th Cir. 0) (holding that this rule is jurisdictional). Here, the Ninth Circuit s decision is final and complete; the Court cannot vary from [that decree], or examine it for any other purpose than execution; or give any other or further relief.... Id. at (quotation omitted). The Ninth Circuit s mandate was clear: At issue in this case is whether state and local governments have the power to tax permanent improvements built on non-reservation land owned by the United States and held in trust for an Indian tribe. Pursuant to U.S.C., and Mescalero Apache Tribe v. Jones, U.S. (), we hold that they do not. Dkt. # at (underline added). Plaintiffs case, governed by the Complaint, dealt only with permanent improvements: [t]he Improvements are not removable. Dkt. # at,. There is no gap between the relief sought by Plaintiffs and the relief mandated by the Ninth Circuit s ruling. B. Defendants Motion Is Procedurally Improper. Defendants may not file a Fed. R. Civ. Proc. motion for declaratory judgment because such a motion does not exist. Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharma (USA) Inc., 0 F.d, (th Cir. 0) (citing Int'l Brotherhood of Teamsters v. E. Conference of Teamsters, 0 F.R.D., (S.D.N.Y. )). As the Kam- Ko Court observed: [A] party may not make a motion for declaratory relief, but rather, the party must bring an action for a declaratory judgment. Insofar as plaintiffs seek a motion for a declaratory judgment, plaintiffs motion is denied because such a motion is inconsistent with the Federal Rules. Defendants also attempted to shoehorn this impermanent property issue into the Ninth Circuit appellate case, but their motion in that regard was denied. Dkt. # 0-, 0-. DECLARATORY JUDGMENT - () -0.

5 Case :0-cv-0-BHS Document Filed /0/ Page of 0 Id.; see also Fekete v. National R.R. Passenger Corp., No. -0, WL, at * n. (E.D. Pa. Aug., ) ( A motion for declaratory judgment is not recognized under the Federal Rules of Civil Procedure.... ); Treece v. South Carolina Dep't of Mental Health, No. 0 0, 0 WL, at * (D.S.C. Mar., 0) ( [T]he requirements of pleading and practice in actions for declaratory relief are exactly the same as in other civil actions, including the requirement that the action is commenced by filing a complaint. ) (quoting Charles A. Wright, et al., Federal Practice and Procedure (d ed. )); Groves v. City of Darlington, No. 0-00, 0 WL, at * (D.S.C. 0) ( [A] separate action should be filed if a party seeks a declaratory judgment. ); Lindsay v. Pa. State Univ., No. 0-, 0 WL, at * (M.D. Pa. Apr., 0) ( Rule of the Federal Rules of Civil Procedure simply states that the Federal Rules of Civil Procedure govern the procedure for obtaining a judgment under the Declaratory Judgment Act. It does not provide a basis for making a motion. ). Defendants motion should be denied. See e.g. Treece, 0 WL, at *. C. Should Defendants Motion Be Construed As A Motion For Summary Judgment, It Must Still Be Denied. The Int l Brotherhood case is directly on point. There, the plaintiffs filed a motion seeking declaratory judgment, purportedly pursuant to Fed. R. Civ. Proc.. Int l Brotherhood, 0 F.R.D. at. The court observed that under Rule, a litigant may bring an action, and an action only, seeking a declaratory judgment. Id. at. But nothing in the federal rules allows a party to make a motion for such relief. Id. at. Here, the Defendants never brought any action or counterclaim for declaratory judgment on which its motion could be based; in this sense, there is even less basis for the Defendants motion than in Int l Brotherhood (where at least the moving parties the plaintiffs in that case had filed a claim for declaratory judgment). The deadline for amending pleadings was March, 0, and it has long since passed. Dkt. #. Further, to the extent taxation of removable personal property was deemed within the scope of the Complaint, then Defendants waived any counterclaims based thereon by failing to raise them in the Answer. Fed. R. Civ. P. (a) (claims that arise out of the transaction or occurrence that is the subject matter of the opposing party s claim must be raised as compulsory counterclaims). Dkt. # (Answer). DECLARATORY JUDGMENT - () -0.

6 Case :0-cv-0-BHS Document Filed /0/ Page of 0 Even if considered as a motion for summary judgment, Defendants motion would fail too, just like in Int l Brotherhood. There, the court explained: Id. at. Plaintiffs are not entitled to summary judgment because they have completely failed to meet their initial burden of establishing that they are entitled to a judgment as a matter of law. Plaintiffs have failed to inform this Court of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which [they] believe [ ] demonstrate the absence of a genuine issue of material fact. Celotex, U.S. at, 0 S.Ct. at (quoting Rule (c)). In fact, plaintiffs have failed to identify any section of their pleadings that might form the basis of this motion. Plaintiffs' pleadings do not mention the funds in question, and plaintiffs have not explained how their pleadings might be interpreted to support an action for a declaratory judgment regarding these funds. Here, as in Int l Brotherhood, Defendants have not identified any section or allegation of the pleadings (i.e. Plaintiffs Complaint, since Defendants never filed any counterclaims) that would provide the basis for the motion as to removable personal property. As well, the Defendants have failed to meet their initial burden (id.) of supporting their motion with competent evidence. As a threshold matter, Defendants motion would be untimely as a motion for summary judgment. Under this Court s scheduling order, the Parties were to file any motions for summary judgment no later than December, 0. Dkt. # ; see also Dkt. # at ( the Parties respective cross motions for summary judgment shall be filed by the Parties no later than Thursday, December, 0 and noted for hearing on Friday, January, 0. ). Federal Rule of Civil Procedure (b) also requires that parties file a motion for summary judgment within thirty days following the close of discovery. The discovery cutoff was December, 0. Dkt. # at. Nor could Defendants do so, since there is no such allegation in the Complaint. Defendants argue that the 0 New Value of $,0,00.0 assessed as parcel number 00 consists of the removable business personal property involved in operating the Great Wolf Lodge, Dkt. # 0 at, without citation to any competent evidence. It is not even clear exactly what property Defendants are seeking to tax. They variously ask this Court to declare taxable something regarding CTGW s removable personal property that is not considered permanent improvements, id.; Property other than land or rights covered by, id. at ; non-permanent, removable business personal property, id. at - ; or non-permanent, removable business personal property located at the Great Wolf Lodge. Dkt. # 0- at. DECLARATORY JUDGMENT - () -0.

7 Case :0-cv-0-BHS Document Filed /0/ Page of III. CONCLUSION Plaintiffs respectfully request that Defendants Motion for Declaratory Judgment be denied, and the accompanying proposed judgment be entered in Plaintiffs favor. 0 DATED this th day of December,. GALANDA BROADMAN PLLC s/ Anthony S. Broadman, WSBA #0 Gabriel S. Galanda, WSBA # 0 Anthony S. Broadman, WSBA # 0 p: () -0 f: () -0 gabe@galandabroadman.com anthony@galandabroadman.com Attorneys for Plaintiffs Confederated Tribes of the Chehalis Reservation and CTGW, LLC DECLARATORY JUDGMENT - () -0.

8 Case :0-cv-0-BHS Document Filed /0/ Page of 0 I, Anthony S. Broadman, say: CERTIFICATE OF SERVICE. I am now, and at all times herein mentioned, a citizen of the United States, over the age of years, not a party to or interested in the above-entitled action, and competent to be a witness herein.. On December,, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification to the following via e- mail: Jane Futterman Scott C. Cushing DATED this th day of December,. s/ Anthony S. Broadman, WSBA #0 Anthony S. Broadman, WSBA # 0 p: () -0 f: () -0 gabe@galandabroadman.com anthony@galandabroadman.com DECLARATORY JUDGMENT - () -0.