Apr 18, 2016 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON. KLICKITAT COUNTY, a political subdivision of the State of Washington,

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1 Case :-cv-000-lrs Document Filed 0// 0 David R. Quesnel, WSBA # Klickitat County Prosecuting Attorney S. Columbus Ave. MS-CH, Room 0 Goldendale, WA 0 Telephone: (0) - Facsimile: (0) - davidq@klickitatcounty.org P. Stephen DiJulio, WSBA # Jeremy (Jake) R. Larson, WSBA # FOSTER PEPPER PLLC Third Ave., Suite 000 Seattle, WA 0 Telephone: () -00 Facsimile: () - steve.dijulio@foster.com jake.larson@foster.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON KLICKITAT COUNTY, a political subdivision of the State of Washington, v. Plaintiff, U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWEL, in her official capacity as Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; LAWRENCE ROBERTS, in his official capacity as Acting Assistant Secretary-Indian Affairs; STANLEY M. SPEAKS, in his official capacity as Regional Director, Bureau of Indian Affairs, Defendants. No. :-cv-000-lrs FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Apr, SEAN F. MCAVOY, CLERK COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JURY TRIAL DEMANDED INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

2 Case :-cv-000-lrs Document Filed 0// 0 Plaintiff, Klickitat County, by and through counsel, appears and avers by way of complaint against Defendants the following: I. INTRODUCTION. Only Congress can change tribal reservation boundaries. Congress has not acted to change the reservation boundaries of the Confederated Tribes and Bands of the Yakama Nation ( Yakama Nation ) since 0. That 0 congressional act excluded Tract D from the Yakama Nation s jurisdiction.. Plaintiff Klickitat County ( County ) brings this action to resolve an active dispute between local and federal officials concerning the exercise of civil and criminal jurisdiction within Tract D, an area consisting of approximately,000 acres in Glenwood, Washington abutting the Yakama Reservation.. The southwest boundary of the Yakama Reservation was established by Act of Congress in 0. Tract D is located south of that boundary, leaving it outside the reservation. Nonetheless, the federal government takes the position that Tract D is within the Yakama Reservation. The area in question is illustrated by the maps of the Yakama Reservation below. The map to the left, published by the State of Washington, shows the boundary established by Congress as a straight Washington State Tribal Reservations and Draft Treaty Ceded Areas, State of Washington, Dep t of Ecology, attached hereto as Exhibit and available at INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

3 Case :-cv-000-lrs Document Filed 0// 0 diagonal line. The map to the right, published by the Bureau of Indian Affairs, shows the southwest boundary extending beyond that line to form a triangularshaped spur. Tract D is thus the area purportedly within the boundary as reflected by the Bureau of Indian Affairs ( BIA ) map and outside of the boundary on the State of Washington map.. The land within Tract D has been in private ownership for over a century, with more than 0% of the parcels owned in fee patent by non-tribal members. The State and County have exercised plenary jurisdiction over Tract D for over a century. (last visited April, ). Yakama Nation Ceded & Reservation Boundaries, Bureau of Indian Affairs, attached hereto as Exhibit and available at (last visited April, ). INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

4 Case :-cv-000-lrs Document Filed 0// 0. In July, the Yakama Nation filed a petition with the State of Washington asking the State to partially retrocede its civil and criminal jurisdiction over all Yakama Nation Indian country. During subsequent meetings between State and Yakama Nation leaders, it became clear that the Yakama Nation was seeking retrocession of State jurisdiction within the Yakama Reservation and within Tract D.. The State agreed to partially retrocede its jurisdiction to the United States government in a proclamation signed by Governor Jay Inslee on January,. Notably, the proclamation did not directly address whether the State was retroceding jurisdiction over Tract D. Rather than confronting this issue head-on, the proclamation stated that the State was partially retroceding jurisdiction within the external boundaries of the Yakama Reservation, but not over lands outside the exterior boundaries.. In April, the County asked the Department of the Interior and BIA to specifically exclude the area known as Tract D from any acceptance of retroceded jurisdiction in order to avoid any claim by the Yakama Nation to civil and criminal jurisdiction within Tract D. This request went unanswered.. The Department of the Interior and BIA formally accepted the State s partial retrocession of jurisdiction on October,. Despite acknowledging INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

5 Case :-cv-000-lrs Document Filed 0// 0 that the Yakama Nation considers Tract D to be within the external boundaries of the Yakama Reservation, the Department of the Interior and BIA refused to state whether the government s acceptance of retroceded jurisdiction covered Tract D. Rather than deciding this obvious and critically important issue themselves, the Department of the Interior and BIA left it to the courts to provide a definitive interpretation of their agency action.. The County seeks a judgment declaring that the Department of the Interior and BIA violated the Administrative Procedure Act by, inter alia, () refusing to address whether the State intended to retrocede jurisdiction over Tract D; () failing to acknowledge or otherwise address the County s request that Tract D be specifically excluded from any acceptance of retroceded jurisdiction; () refusing to decide the issue of whether the acceptance covered Tract D; and () leaving it to the courts to provide a definitive interpretation of their agency action. The County further submits that the Department of the Interior and BIA violated the APA by not specifically excluding Tract D from the acceptance, thus implicitly accepting jurisdiction that the government has no authority to accept, exercise, or delegate to the Yakama Nation. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

6 Case :-cv-000-lrs Document Filed 0// 0 II. PARTIES. Plaintiff Klickitat County ( County ), is a political subdivision of the State of Washington. Klickitat County was created by the Washington Territorial Legislature in. The initial boundaries of the county extended from the middle of the Columbia River from five miles below the mouth of the Klickitat River; thence north to the summit of the mountains, the divide between the Klickitat and Yakima rivers; thence east, along said divide, to a point north of the mouth of Rock Creek; thence south, to the middle of the Columbia River. Wa. Laws of, p.. The Klickitat County northern boundary was extended north in 0 to the north-east corner of Skamania County, thence due east to a point running due south to strike the then north-east corner of Klickitat County. Wa. Laws of 0, p.. Klickitat County is a legal subdivision of the State of Washington. Wa. Const., Art XI, Sec.. Its current boundaries are described at RCW.0.0. Klickitat County has exercised its jurisdiction of the area commonly known as Tract D (in the vicinity of the community of Glenwood) for over a century.. Defendant Department of the Interior is a department of the United States government which was established by Congress and which exercises authority pursuant to congressional enactments. The Department of the Interior is charged with responsibility for managing and administering the lands of Indian INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

7 Case :-cv-000-lrs Document Filed 0// 0 tribes and for managing and administering federal programs related to Indian tribes.. Defendant Sally Jewell is the Secretary of the Interior, and in that capacity is responsible for overseeing and managing all programs, activities and operations of the Department of the Interior, including all programs, activities and operations of the Bureau of Indian Affairs. Defendant Jewell is sued in her official capacity only.. Defendant Bureau of Indian Affairs ( BIA ) is a federal agency within the Department of the Interior and is responsible for overseeing and managing all programs, activities and operations of the Department of the Interior relating to Indian lands and affairs.. Defendant Lawrence Roberts is the Acting Assistant Secretary for Indian Affairs, and in that capacity is responsible for overseeing and managing all programs, activities and operations of the BIA. Defendant Roberts is sued in his official capacity only.. Defendant Stanley Speaks is the Regional Director for the BIA s Northwest Regional Office in Portland, Oregon, and in that capacity is responsible for overseeing agencies that together serve federally recognized tribes in the INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

8 Case :-cv-000-lrs Document Filed 0// 0 Northwest region, including the Yakama Nation. Defendant Speaks is sued in his official capacity only. III. JURISDICTION AND VENUE. This Court has subject matter jurisdiction pursuant to U.S.C., because this matter presents questions of federal law. This case arises under the Constitution or treaties of the United States including, but not limited to, the Treaty with the Yakamas, Stat., and the General Allotment Act, U.S.C. et seq. Declaratory and injunctive relief is sought pursuant to the Declaratory Judgment Act, U.S.C. 0 and 0, and the Administrative Procedure Act, U.S.C. 0.. The sovereign immunity of the United States has been waived by U.S.C. 0 because this is an action seeking relief other than money damages and stating a claim that an agency or an officer or employee of the United States acted or failed to act in an official capacity.. Venue is proper in this Court pursuant to U.S.C. (e)(), because a substantial part of the events giving rise to the claim occurred, and a substantial part of the property that is the subject of the action is situated, in this judicial district. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

9 Case :-cv-000-lrs Document Filed 0// 0 IV. LEGAL FRAMEWORK Retrocession refers to a state s return to the United States government of civil and/or criminal jurisdiction previously acquired pursuant to Public Law - 0, Stat. ( Public Law 0 ). United States v. Merrick, F. Supp. 0, 0 (D. Neb. ). The government s authority to accept retroceded jurisdiction is set forth at U.S.C. (a). Pursuant to Executive Order, the decision whether to accept retroceded jurisdiction is vested in the Secretary of the Interior, who has in turn delegated full decision-making authority to the BIA. The government s acceptance of retrocession of state jurisdiction is effected by publication in the Federal Register of a notice which shall specify the jurisdiction retroceded and the effective date of the retrocession. Executive Order No., Fed. Reg.. V. FACTS History of Disputed Claims to Jurisdiction over Tract D A. Yakama Nation Treaty of. In, the Chiefs of the various bands and tribes that comprise the Yakama Nation negotiated a treaty with Washington Territory Governor Isaac Stevens. The treaty was subsequently ratified by the Senate in. Treaty INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

10 Case :-cv-000-lrs Document Filed 0// 0 Between the United States and the Yakama Nation of Indians, June,, Stat. () (hereafter the Treaty ).. The Treaty ceded to the United States lands previously occupied and claimed by the Yakama Nation. Reserved from the ceded area was a tract of land to be set a part and, so far as necessary, surveyed and marked out for the exclusive use and benefit of the Yakama Nation as an Indian reservation ( Yakama Reservation ).. The boundaries of the Yakama Reservation were defined in Article II of the Treaty. Article II described the southwest boundary of the reservation as running [t]hence southerly along the main ridge of said [Cascade] mountains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickitat and Pisco Rivers; thence down said spur to the divide between the waters of said rivers.. Governor Stevens transmitted the Treaty to the Commissioner of Indian Affairs in Washington, D.C. on June,. A map purporting to outline the reservation boundaries described in Article II of the Treaty ( Treaty Map ) was reportedly submitted by Governor Stevens along with the Treaty. The Treaty Map was purportedly misplaced by officials in Washington, D.C., soon thereafter. INJUNCTIVE RELIEF - 0 S. COLUMBUS AVE., MS CH, ROOM 0

11 Case :-cv-000-lrs Document Filed 0// 0 B. Congress Establishes the Southwest Boundary of the Yakama Reservation by the Act of December, 0. The boundaries of the Yakama Reservation were not surveyed until several years after the execution of the Treaty, and then only in portions and at different times. The first surveyors had considerable difficulty in reconciling the descriptions of the boundaries in the Treaty with the actual topography of the land. Controversy immediately arose among settlers and Indians regarding the Treaty s land delineations and the surveyed boundaries.. In 0, under the direction of the General Land Office, surveyor George Schwartz surveyed the western boundary of the Yakama Reservation. Schwartz established the western boundary as a line running northerly from milepost between the waters of the Klickitat and Piscoe (Toppenish) River to the headwaters of Reservation Creek (the Schwartz Line ).. In response to concerns expressed by the Yakama Nation about the accuracy of the Schwartz Line, the government commissioned a second survey by E.C. Barnard in. Barnard surveyed the land and submitted a report to the Interior Department which placed the western boundary considerably west of the Schwartz Line ( Barnard Line ). Barnard thus recommended that an area of roughly 0,000 acres be added to the Yakama Reservation. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

12 Case :-cv-000-lrs Document Filed 0// 0. The Interior Department subsequently recommended to Congress that, acres situated between the Schwartz Line and the Barnard Line be added to the Yakama Reservation. Although it made revisions to other portions of the Barnard survey, the Interior Department accepted Barnard s demarcation of the new southwest boundary as a straight line running from Goat Butte to Grayback Peak.. Congress accepted the Interior Department s recommendation by the Act of December, 0 ( Stat. ), which approved the addition of, acres to Yakama Reservation and established new reservation boundaries largely in accordance with Barnard s survey. The boundary established by the 0 Act of Congress is depicted below: INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

13 Case :-cv-000-lrs Document Filed 0// 0 C. Treaty Map Does Not Include Tract D.0 In 0, employees of the Department of the Interior located the purportedly misplaced Treaty Map. The map, depicted below, showed boundaries different from the boundaries established by the 0 Act of Congress, indicated by the dotted line surrounding the label Yakama Reservation. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

14 Case :-cv-000-lrs Document Filed 0// 0 Notably however, the treaty map does not depict boundaries to include territory within Tract D. D. Congress Declines to Make Further Adjustments to Yakama Reservation Boundaries. The Department subsequently commissioned two new surveys of the Yakama Reservation by E.D. Calvin and F. Marion Wilkes. The Calvin and Wilkes surveys recommended a southwest boundary line that passed over the summit of Mt. Adams and down the south side between the watersheds of the INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

15 Case :-cv-000-lrs Document Filed 0// 0 White Salmon and Klickitat Rivers, then looping well south of the Camas Prairie then eastward along the hills bordering the Glenwood Valley, then across the Klickitat River to the top of Grayback Mountain. These surveys included substantially more land within the boundaries of the Yakama Reservation, including land in present-day Tract D.. Thereafter, the Yakama Nation sought congressional recognition of the boundary proposed by the Calvin and Wilkes surveys. The Senate passed a bill granting the Court of Claims jurisdiction to determine the boundary in. The House of Representatives, however, took no action on the bill. Thus, having been fully apprised of the discovery of the misplaced Treaty Map and the completion of the Calvin and Wilkes surveys, Congress took no action to change the boundaries of the Yakama Reservation. E. Yakama Nation is Awarded Just Compensation for Tract D. In, the Yakama Nation filed a petition with the Indian Claims Commission ( ICC ), claiming that the boundary established by the 0 Act of Congress did not reflect the boundaries negotiated by the signatories to the Treaty. The Yakama Nation thus requested just compensation for Tract D. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

16 Case :-cv-000-lrs Document Filed 0// 0. The ICC found Tract D to be within the boundaries contemplated by the Treaty. The ICC did not, however, immediately decide the amount of just compensation to which the Yakama Nation was entitled.. The Yakama Nation settled the claim with the United States in, accepting payment of $,00,000 as compensation for Tract D and another parcel not at issue in these proceedings. The $,00,000 to pay the final judgment was appropriated by Congress in the Act of July,, Stat.,, and was disbursed to the Yakama Nation pursuant to Public Law -, Stat. (0).. On May,, President Richard Nixon signed an executive order restoring a portion of the Gifford Pinchot National Forest to the Yakama Nation. Executive Order 0, Fed. Reg. 0. The land returned via this order did not include any territory within Tract D.. There have been no subsequent Acts of Congress, Executive Orders or decisions by courts of competent jurisdiction adjusting the exterior boundaries of the Yakama Reservation. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

17 Case :-cv-000-lrs Document Filed 0// 0 F. Yakama Nation Continues to Claim Jurisdiction Over Tract D. Although there have been no Acts of Congress, Executive Orders or court decisions adjusting the boundaries of the reservation to include territory within Tract D, and notwithstanding the fact that the Yakama Nation has received just compensation for Tract D, the Yakama Nation has continued to assert claims to civil and criminal jurisdiction over Tract D.. In, in the matter of Looney v. Dep t. of Revenue, No (Thurston Co. Sup. Ct. ) certain Yakama Nation tribal members sued the State of Washington seeking to enjoin the Washington Department of Revenue from assessing, imposing and collecting sales taxes on goods purchased by tribal members from stores located within Tract D. The State maintained that the tribal members were required to pay the tax because Tract D was outside the boundaries of the Yakama Reservation and that the Yakama Nation had no jurisdiction therein. This litigation was ultimately settled without a definitive resolution of the Tract D jurisdictional dispute.. In, the Yakama Nation adopted a Tribal Resolution imposing a tribal tax on alcohol brought within the boundaries of the Yakama Reservation for distribution and resale. Shortly after passing the resolution, Yakama Nation INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

18 Case :-cv-000-lrs Document Filed 0// 0 officials began notifying businesses in Tract D that they would be required to pay the tribal tax.. The State of Washington subsequently filed State of Washington v. Whitefoot, No. CY-00-0-RHW (E.D. Wash. 00), seeking to enjoin enforcement of the resolution against non-tribal members and over land owned in fee by non-tribal members. This lawsuit was ultimately dismissed in 00 without a definitive resolution of the Tract D jurisdictional dispute.. In 0, the United States Attorney for the Eastern District of Washington sent a letter to the Washington State Attorney General and Chairman of the Yakama Nation purporting to clarify the U.S. Attorney s Office s policy with respect to the enforcement of federal laws relating to the sale and possession of alcohol on the Yakama Reservation. The letter explained that the U.S. Attorney s Office would prosecute violations of the federal liquor laws applicable to Indian country in the same manner as violations of other federal laws. However, the United States Attorney expressly avoided the jurisdictional questions pertaining to Tract D, stating that this office is not prepared to express an opinion on the applicability of the federal liquor law to Glenwood, or Tract D area of the Yakama Reservation[,] as lands in that area present a unique scenario not common to the rest of the reservation. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

19 Case :-cv-000-lrs Document Filed 0// 0 Retrocession of State Jurisdiction to the United States. On July,, the Yakama Nation filed a retrocession petition (the Petition ) with the State of Washington. The Petition requested that the State retrocede both civil and criminal jurisdiction on all Yakama Nation Indian country and in five () areas listed in RCW..00, including compulsory school attendance, public assistance, domestic relations, juvenile delinquency, and operation of motor vehicles on public streets, alleys, roads and highways.. During subsequent government-to-government meetings between State and Yakama Nation officials, it became clear that the Yakama Nation was seeking retrocession of state jurisdiction both within the Yakama Reservation and within Tract D.. Governor Inslee issued a proclamation dated January, (the Proclamation ), which partially granted and partially denied the Yakama Nation s request. The State agreed to retrocede jurisdiction within the exterior boundaries of the Yakama Reservation, but retained jurisdiction over lands outside the exterior boundaries of the Yakama Reservation. A copy of the Proclamation is attached hereto as Exhibit. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

20 Case :-cv-000-lrs Document Filed 0// 0. Pursuant to U.S.C. and Executive Order, the BIA subsequently began an administrative review process to decide whether to accept the State s retrocession of jurisdiction as outlined in the Proclamation.. On April,, the County sent a letter to the BIA expressing concern that the Proclamation s distinction between lands within and outside the exterior boundaries of the Yakama Reservation did not adequately resolve the Yakama Nation s request for retrocession of jurisdiction over Tract D. The County thus requested that the BIA specifically exclude Tract D from any forthcoming acceptance of retroceded jurisdiction: The Yakama Tribe has persisted with the erroneous claim that [Tract D] is within the exterior boundaries of the Yakama Reservation.... Tract D is a part of Washington State and under the jurisdiction of Klickitat County. RCW.0.0. This was established by the United States Congress in 0 ( Stat. ) and the U.S. Supreme Court in ( U.S. ). Moreover, the United States Congress paid the Yakama Tribe $. million in settlement for claims by the Yakama Nation that the United States had unconstitutionally taken Tract D ( Stat. (0)). For over a century, federal, State and local governments (including Klickitat County) have long-treated Tract D as being outside the Yakama Reservation and have exercised their prospective jurisdiction based on this treatment. Indeed, the State of Washington has regularly recognized Tract D as being outside the Yakama Reservation.... We are concerned the Department of Interior is not adequately informed about the nature of the disputed boundary of the INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

21 Case :-cv-000-lrs Document Filed 0// 0 Yakama Reservation and we urge any retroceded jurisdiction specifically exclude the area known as Tract D. A copy of the County s April, letter is attached hereto as Exhibit.. The BIA did not respond to the County s letter.. The BIA accepted the State s retrocession of jurisdiction on October,. In a letter addressed to the Yakama Nation, the BIA acknowledged the longstanding dispute over jurisdiction within Tract D, but expressly declined to exclude Tract D from its acceptance. Specifically, the BIA explained: An issue that has been highlighted in several meetings is related to reservation boundaries. We have assured anyone who has asked that this process is not a mechanism for redrawing reservation boundaries. The scope of the Yakama Nation s territorial jurisdiction will be governed by Federal law. The decision before [the BIA] is nothing more than an acceptance of the State s request for retrocession. As explained by the Governor s office, this decision is not intended to affect the boundaries of the reservation in any way. As noted above, this decision does not expand tribal jurisdiction; it merely eliminates State authority over certain offenses on the reservation. * * * It is worth noting one final issue has been raised regarding the extent of retrocession.... We understand the Proclamation to be the final product resulting from the formal government-to-government meetings [required by RCW..0]. We also believe that the Proclamation is plain on its face and unambiguous. We worry that unnecessary interpretation might simply cause confusion. If a disagreement develops as to the scope of the retrocession, we are Underlined emphasis added. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

22 Case :-cv-000-lrs Document Filed 0// 0 confident that courts will provide a definitive interpretation of the plain language of the Proclamation. In sum, it is the content of the Proclamation that we hereby accept in approving retrocession. A copy of the BIA s October, letter is attached hereto as Exhibit..0 On October,, the BIA published notice of its acceptance of the retrocession in the Federal Register. The notice states: Under the authority of U.S.C., vested in the Secretary of the Interior by Executive Order No. of November,, FR, and re-delegated to the Assistant Secretary Indian Affairs, the United States accepts partial civil and criminal jurisdiction over the Yakama Nation which was acquired by the State of Washington, under Public Law -0, Stat., codified as amended at U.S.C., U.S.C. 0, and as provided in Revised Code of Washington..00,..0,..00,..00, and..00 (), and..00 (). This retrocession was offered by the State of Washington in Proclamation by the Governor -0, signed on January,, and transmitted to the Assistant Secretary-Indian Affairs in accordance with the process in Revised Code of Washington..0 (), and as provided by Tribal Council Resolution No. T--, dated July,, in which the Yakama Nation requested that the State of Washington retrocede partial civil and criminal jurisdiction to the Tribe. A copy of the BIA s notice of acceptance is attached hereto as Exhibit.. The BIA s acceptance of the State s retrocession becomes effective at :0 a.m. on April,. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

23 Case :-cv-000-lrs Document Filed 0// 0 VI. CAUSES OF ACTION COUNT : Declaratory Judgment Violation of APA. The County re-alleges and incorporates by reference each of the allegations set forth above.. The decision of the Department of the Interior and BIA to accept the State s retrocession of partial civil and criminal jurisdiction pursuant to U.S.C. constitutes agency action within the meaning of the Administrative Procedure Act, U.S.C. 0, et seq.. The Department of the Interior and BIA unlawfully withheld and unreasonably delayed agency action by () refusing to decide whether the State intended to retrocede jurisdiction over Tract D; and () to the extent the State so intended, refusing to either accept or reject retroceded jurisdiction over Tract D.. The Department of the Interior and BIA acted arbitrarily and capriciously, abused their discretion, and otherwise failed to act in accordance with law by () failing to acknowledge or otherwise address the County s request that the government specifically exclude Tract D from any acceptance of retroceded jurisdiction; () refusing to either specifically exclude or include Tract D in the government s acceptance; and () leaving it to the courts to provide a definitive interpretation of the acceptance as it pertains to Tract D. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

24 Case :-cv-000-lrs Document Filed 0// 0. The Department of the Interior and BIA acted in excess of statutory jurisdiction, authority, limitations and short of statutory right by not expressly excluding Tract D from the government s acceptance of the State s retrocession, thus implicitly assuming federal jurisdiction over Tract D and approving concurrent tribal jurisdiction without authority to do so. COUNT : Permanent Injunction. The County re-alleges and incorporates by reference each of the allegations set forth above.. The Department of the Interior and BIA are exercising jurisdiction over Tract D under color of federal law.. Neither the Department of the Interior nor BIA has constitutional, statutory, other lawful authority to assert jurisdiction over Tract D.. The Department of the Interior s and BIA s actions are interfering with the County s lawful assertion of jurisdiction over Tract D..0 The County will suffer irreparable injury if the Department of the Interior and BIA are not permanently enjoined from asserting jurisdiction over Tract D.. Remedies available at law are inadequate to compensate the County for its injury. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

25 Case :-cv-000-lrs Document Filed 0// 0. A balancing of the hardships between the County and the Department of the Interior and BIA weighs in favor of a granting a permanent injunction.. The public interest would not be disserved by the issuance of a permanent injunction. VII. JURY DEMAND. The County hereby demands a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for the following relief: A. A judgment declaring that: () The Department of the Interior and BIA violated the APA; and () The United States acceptance of the State of Washington s retrocession of partial civil and criminal jurisdiction was unlawful; B. A permanent injunction prohibiting the Department of the Interior and the Bureau of Indian Affairs from exercising jurisdiction over Tract D. C. An award of attorney s fees and costs to the extent permitted by law. D. For such other and further relief as the Court deems just and proper. INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0

26 Case :-cv-000-lrs Document Filed 0// 0 DATED this th day of April,. s/ David R. Quesnel David R. Quesnel, WSBA # Klickitat County Prosecuting Attorney S. Columbus Ave. MS-CH, Room 0 Goldendale, WA 0 Telephone: (0) - Facsimile: (0) - davidq@klickitatcounty.org s/ Jeremy R. Larson P. Stephen DiJulio, WSBA # Jeremy (Jake) R. Larson, WSBA # FOSTER PEPPER PLLC Third Ave., Suite 000 Seattle, WA 0 Telephone: () -00 Facsimile: () - steve.dijulio@foster.com jake.larson@foster.com Attorneys for Plaintiff INJUNCTIVE RELIEF - S. COLUMBUS AVE., MS CH, ROOM 0