IN THE TULALIP TRIBAL COURT TULALIP INDIAN RESERVATION TULALIP, WASHINGTON

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1 HAZEN GRAHAM SHOPBELL, enrolled Tulalip Tribal member, et ux., V. IN THE TULALIP TRIBAL COURT TULALIP INDIAN RESERVATION TULALIP, WASHINGTON Plaintiffs, STATE OF WASHINGTON DEPARTMENT OF FISH AND WILDLIFE; JIM UNSWORTH, Director, State of Washington Department of Fish and Wildlife; WENDY WILLETTE, Detective, State of Washington Department of Fish and Wildlife; JOHN DOES 1-6, Law Enforcement Officers, State of Washington Department of Fish and Wildlife, Defendants. No. TUL-CV-GC--027 DEFENDANTS' RESPONSE TO SUMMARY JUDGMENT RE: Defendants, the Washington Department of Fish and Wildlife (WDFW), Jim Unsworth, Wendy Willette, and John Does 1-6, respond to Plaintiffs' Cross-Motion for Summary Judgment Re: Probable Cause as follows: I. INTRODUCTION As an initial matter, this Court should not entertain Plaintiffs' Cross Motion for Partial Summary Judgment Re: Probable Cause but should instead dismiss Plaintiffs' claims in their DEFENDANTS' RESPONSE TO I ATTORNEY GENERAL OF WASHINGTON

2 entirety because, as discussed in Defendants' Motion for Summary Judgment, Defendants are not in possession of the only property left at issue in this case. But should this Court entertain Plaintiffs' Cross-Motion, it should deny it. The Tribal Court warrant at issue in this case was issued based on the existence of probable cause to indicate the search would discover evidence of the commission of criminal offenses, namely violations of Washington state law. Contrary to Plaintiffs' argument, the crimes on which issuance of the search warrant at issue in this case was based need not have been a violation of Tulalip Tribal law; Washington state law crimes, by themselves, were a sufficient basis for issuance of the warrant. And Plaintiffs do not in their Cross-Motion challenge the existence of probable cause as to the commission of those state law crimes. II. BACKGROUND As part of an investigation into suspected crimes related to illegal trafficking in shellfish, in violation of RCW 77..0, unlawful catch accounting, in violation of RCW , and violations of RCW , by Puget Sound Seafood Dist. (PSSD) and Anthony Paul and Hazen Shopbell, WDFW Detective Wendy Willette obtained a search warrant from Tulalip Tribal Court for the search of the Tulalip residence of Plaintiff Hazen Shopbell. Third Declaration of Wendy Willette (3rd Willette Decl.) at 2. The warrant (signed by Judge Colegrove) was signed on June 9,. Id. Detective Willette had previously obtained a Washington state superior court warrant for search of the Shopbell residence based on probable cause as to state law violations. Id. at 3. Although she had a state court warrant for search of the Shopbell residence, Detective Willette elected to obtain a concomitant Tulalip Tribal Court warrant out of respect for the Tulalip Tribe's sovereignty.' Id. 1 After the search warrant at issue in this case was obtained and executed, the Tulalip Tribe adopted TTC (7), which provides for Tulalip Tribal Court endorsement of a state, county, municipal, or other tribal search warrant. Had this provision been in effect at the time period in question in this case, Detective Willette could have sought endorsement of the state superior court warrant she had previously obtained, rather than seeking a separate, concomitant warrant from the Tulalip Tribal Court. DEFENDANTS' RESPONSE TO 2 ATTORNEY GENERAL OF WASHINGTON

3 1 When Detective Willette initially presented her affidavit for search warrant to the 2 Tulalip Tribal Court, Judge Colegrove questioned whether a Tulalip criminal violation was 3 required in order for the warrant to issue. 3rd Willette Decl. at 2. Thereafter, working with a 4 representative of the Tulalip Tribal Prosecutor's office, Detective Willette determined that, 5 based on evidence of underpayments to Tulalip Tribal Fishers by PSSD, there was probable 6 cause that PSSD, Paul, and Shopbell had committed theft in violation of Tulalip Tribal Code 7 (TTC) Id. Detective Willette included violations of TTC in a revised g Affidavit for Search warrant, which she presented to Judge Colegrove and which 9 Judge Colegrove signed. Id. 10 However, in the time since the warrant was obtained, WDFW has examined the 11 evidence of underpayments to Tulalip Tribal fishers and determined that it is not sufficient to allow a conclusion that such underpayments represent criminal violations. 3rd Willette Decl. at 3-4. Nevertheless, probable cause exists that PSSD, Paul, and Shopbell committed state law violations, namely violations of RCW 77..0, RCW , and RCW III. ARGUMENT A. Because WDFW Does Not Possess the Black Samsung Tablet, This Court Should Dismiss Plaintiffs' Suit As Requested In Defendants' Motion For Summary Judgment Shopbell's complaint included three claims: (1) a request for return of property; (2) a request for a declaratory judgment that the search of his premises was unlawful; and (3) an injunction against future unspecified action associated with WDFW's criminal investigation. This Court's December,, Ruling on Defendants' Motion to Dismiss dismissed the 22 second and third claims on the basis of the State's sovereign immunity. The Court held that it retained jurisdiction to determine the disposition of the seized property. In rejecting the other two claims, the Court held, "[a]lthough these claims arise from the search and seizure of the Plaintiff's residence, these claims do not concern actual seized property by which the DEFENDANTS' RESPONSE TO 3 ATTORNEY GENERAL OF WASHINGTON

4 1 Tulalip Tribal Court retains jurisdiction." Ruling on Defendants' Motion to Dismiss for Lack 2 of Jurisdiction at 6. 3 The only property that Plaintiffs allege WDFW possesses is the black Samsung tablet. 4 Yet their cross-motion for summary judgment does not make arguments with respect to that 5 tablet; it reiterates their arguments that there was lack of probable cause for the entire search 6 pursuant to the warrant issued by the Tulalip Tribal Court. These arguments are more akin to 7 the Declaratory Judgment claim that this court already held was subject to the State's sovereign immunity. Moreover, whatever the scope of Plaintiffs' arguments relative to the 9 appropriateness of WDFW's seizure of that tablet, those arguments are immaterial if WDFW 10 does not possess the tablet. The Court should, therefore, decide WDFW's motion for summary 11 judgment before even considering Plaintiff's cross-motion. This is logical because WDFW filed its motion on April 7, more than two weeks before Plaintiffs filed their cross-motion. For the reasons discussed in Defendants' motion for summary judgment, that motion should be granted and Plaintiffs' case should be dismissed in its entirety. B. Judge Colegrove's Issuance Of The Tulalip Search Warrant Was Not Clearly Erroneous. Should this Court consider Plaintiffs' Cross-Motion, it should deny it. Under Tulalip Tribal Law, the issuance of a search warrant is reviewed under the "clearly erroneous standard." Tulalip Tribes v. Cuellar and Looks Twice, 6 NICS App. (04). Under this standard, "the reviewing judge should give deference to the issuing judge's decision unless it is very clear that the issuing judge made an error in judgment." Id. Under this standard, this Court 22 should find that probable cause existed for issuance of the warrant based on state law violations. At the time the warrant at issue in this case was issued (June 9, ), the Tulalip Tribal Code allowed for issuance of a search warrant based on a sufficient showing that "probable cause exists to indicate the search will discover... [p]roperty which has been or is DEFENDANTS' RESPONSE TO 4 - ATTORNEY GENERAL OF WASHINGTON

5 1 being use to commit a criminal offense; or [p]roperty which constitutes evidence of the 2 commission of a criminal offense." Former TTC (2). This provision authorized the 3 Tulalip Tribal Court to issue a search warrant based on probable cause as to commission of a 4 criminal offense, including a criminal offense from another jurisdiction, whether another tribe 5 or a state. This is so because the phrase "a criminal offense" as used in former 6 TTC (2) is most reasonably read to include criminal offenses from other jurisdictions, 7 including other tribes and states. If this provision is not read in this manner, the result would be that Tulalip Tribal Court was powerless to issue a search warrant for evidence of a crime 9 committed in another jurisdiction, making the Tulalip Reservation a potential safe harbor for 10 evidence of crimes committed on other tribal reservations. This Court should not read former 11 TTC (2) as being so limited. In this case, probable cause existed "to indicate a search [would] discover... [p]roperty which constitut[ed] evidence of the commission of' violations of state law: illegal trafficking in shellfish, in violation of RCW 77..0, unlawful catch accounting, in violation of RCW , and violations of RCW The Affidavit for Search Warrant Detective Willette submitted to the Tulalip Tribal Court provides ample evidence supporting such probable cause. Plaintiffs have not in their Cross-Motion for Partial Summary Judgment Re: Probable Cause challenged the existence of probable cause as to the state law violations and this Court should not consider that issue in ruling on Plaintiffs' Cross-Motion. Contrary to what Plaintiffs suggest in their Cross-Motion, Defendants do not argue that RCW 77..0, RCW , and RCW can be considered violations of Tulalip Tribal law. See 22 Cross-Motion at 7. Instead, each violation of these state law provisions can, under former TTC (2), be considered "a criminal offense" that was a legitimate basis for the issuance of a Tulalip Tribal Court search warrant. DEFENDANTS' RESPONSE TO SUMMARY JUDGMENT RE: 5 ATTORNEY GENERAL OF WASHINGTON Olympia, WA (360)753-60

6 IV. CONCLUSION For the foregoing reasons, Plaintiffs' Cross-Motion for Summary Judgment Re: Probable Cause should be denied, should the Court consider it. Under former TTC (2), as most reasonably read, the Tribal Court had the authority to issue the search warrant at issue in this case based on the existence of probable cause to indicate the search would discover property which constituted evidence of the commission of criminal offenses, namely violations of RCW 77..0, RCW , and RCW a Dated this day of May,. ROBERT W. FERGUSON Attorney General MICHAEL M. YOUNG, W Assistant Attorney General Attorneys for Defendants W, 22 DEFENDANTS' RESPONSE TO SUMMARY JUDGMENT RE: 6 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

7 1 PROOF OF SERVICE 2 I certify that I served a copy of this document, along with the declaration from Det. 3 Wendy Willette in support of defendant's response to plaintiffs cross motion for summary 4 judgment regarding probable cause on all parties or their counsel of record on the date below 5 as follows: 6 US Mail Postage Prepaid via Consolidated Mail Service and via to: 7 Gabriel S. Galanda Bree Black Horse Tulalip Tribal Bar Members 9 Galanda Broadman PLLC th Avenue NE, Suite L1 10 Post Office Box 6 Seattle, Washington gabe@galandabroadman.com bree@galandabroadman.com alice@galandabroadman.com ABC/Legal Messenger State Campus Delivery Hand delivered by I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this day of May,, at Olympia, Washington. Dominique Starnes 22 Legal Assistant DEFENDANTS' RESPONSE TO 7 ATTORNEY GENERAL of WASHINGTON