Consolidated Appeals No. s ; and IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 Case: , 11/18/2015, ID: , DktEntry: 25, Page 1 of 47 Consolidated Appeals No. s ; and IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT R. COMENOUT SR., and MARY LINDA PEARSON AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EDWARD A. COMENOUT JR.; v. Plaintiffs-Appellants, ROBERT W. WHITENER JR.; Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA WASHINGTON, NO. 3:15-cv BHS - THE HONORABLE BENJAMIN H. SETTLE JOINT REPLY BRIEF OF APPELLANTS Robert E. Kovacevich, WSBA #2723 Attorney for Appellants 818 W. Riverside Avenue, Suite 525 Spokane, WA (509) Aaron L. Lowe, WSBA #15120 Attorney for Appellants W Broadway Spokane, WA (509) Randal B. Brown, WSBA # Attorney for Appellants rd Ave. S.E. Covington, WA (253)

2 Case: , 11/18/2015, ID: , DktEntry: 25, Page 2 of 47 TABLE OF CONTENTS TABLE OF AUTHORITIES iii OBJECTION TO FACTUAL STATEMENTS IN WHITENER S INTRODUCTION DISAGREEMENT WITH WHITENER S STATEMENT OF ISSUES...8 OBJECTIONS TO WHITENER S STATEMENT OF THE CASE ARGUMENT A. The Standard of Review on all issues is de novo B. The Estate is a proper party C. Whitener was not e Nation s agent for anying. He could not be an agent to personally carry out illegal actions. Pistor v. Garcia, 791 F.3d 1104 (9 Cir. 2015) and Maxwell v. County of San Diego, 708 F.3d 1075 (9 Cir. 2013) apply. The suit was against Whitener in his individual capacity and sought injunctions. Even if e Quinault Nation was an indispensable (required) party, it could be joined. The case was wrongfully dismissed D. Whitener is personally liable for his tortious actions E. Nin Circuit precedent holds at Indians, including Comenout, selling cigarettes in Indian Country are not required to collect e state cigarette tax F. Comenout has a right to locate his personal property on e land i-

3 Case: , 11/18/2015, ID: , DktEntry: 25, Page 3 of 47 G. The business lease was rescinded by e BIA H. The RICO allegations were sufficient to state cause of action I. The allegations of outrage and trespass are more an adequate J. The Supplemental Complaint was not moot. It was reversible error to deny it CONCLUSION ii-

4 Case: , 11/18/2015, ID: , DktEntry: 25, Page 4 of 47 Cases TABLE OF AUTHORITIES Arizona Public Service Co. v. Aspaas, 77 F.3d 1128 (9 Cir. 1995) Aungst v. Roberts Const. Co., Inc., 95 Wash.2d 439, 625 P.2d 167 (Wash. 1981) , 29 Babbitt v. Youpee, 519 U.S. 234, 239, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997) Big Horn Country Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 953 (9 Cir. 2000) Burlington Norern R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 (9 Cir. 1991) Burlington Norern and Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1192 (9 Cir. 2007) , 11, 14, 27 Cachil Dehe Band of Wintun Indians of e Colusa Indian Community v. California, 547 F.3d 962 (9 Cir. 2008) , 30 Confederated Tribes and Bands of e Yakama Indian Nation v. Gregoire, 658 F.3d 1078, 1088 (9 Cir. 2011) Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1156 (10 Cir. 2011) Dawavendewa v. Salt River Project Agr. Imp. and Power Dist., 276 F.3d 1150 (9 Cir. 2002) De la Pole v. Lindley, 230 P. 144 (Wash. 1924) , 34 -iii-

5 Case: , 11/18/2015, ID: , DktEntry: 25, Page 5 of 47 E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774 (9 Cir. 2005) , 15, 36 E.E.O.C. v. Peabody Western Coal Co., 610 F.3d 1070, 1080 (9 Cir. 2010) Evans v. Shoshone-Bannock Land Use Policy Com n, 736 F.3d 1298, 1307, n. 10 (9 Cir. 2013) Haynes v. John Davis & Co., 156 P.2d 659 (Wash. 1945) Howard Dodge & Sons v. Finn, 391 N.E.2d 638 (C.A. Indiana 1979) In re Foreclosure of Liens, 922 P.2d 73, 77 (Wash. 1996) In re Matews, 395 F.3d 477, 480 (4 Cir. 2005) Kei v. Volpe, 858 F.2d 467 (9 Cir. 1988) Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 987 (9 Cir. 2000) Maxwell v. County of San Diego, 708 F.3d 1075 (9 Cir. 2013)...13 Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9 Cir. 2002) , 31 Miami Tribe of Oklahoma v. U.S., 656 F.3d 1129 (10 Cir. 2011).. 4 New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 28 (4 Cir. 1963) Pistor v. Garcia, 791 F.3d 1104 (9 Cir. 2015) , 13 -iv-

6 Case: , 11/18/2015, ID: , DktEntry: 25, Page 6 of 47 Pueblo of Santa Ana v. Nash, 972 F.Supp.2d 1254, 1259 (D.C. New Mexico 2013) Scott Imports v. Orton, 527 P.2d 513, 515 (Ariz. 1974) State v. Comenout, 173 Wash.2d 235, 267 P.3d 355 (2011) , 23, 24 State v. Pincus, 125 A.2d 420, 422 (N.J. 1956) Sue/Perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp., 25 N.E.3d 928 (C.A.N.Y. 2014) Tennant v. Lawton, 615 P.2d 1305 (Wash. 1980) Tenneco Oil Co. v. Sac and Fox Tribe of Indians of Oklahoma, 725 F.2d 572, 574 (10 Cir. 1984) Tohono O Odham Nation v. City of Glendale, F.3d, 2015 WL (9 Cir. 2015) Town of Browning v. Sharp, 2015 WL (D.Mont. 2015) U.S. v. Clarke, 529 F.2d 984 (9 Cir. 1976) U.S. v. Clarke, 590 F.2d 765 (9 Cir. 1979) , 28 U.S. v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980) , 29 U.S. v. Real Property Located at 475 Martin Lane, Beverly Hills, California, 545 F.3d 1134 (9 Cir. 2013) U.S. ex rel. Haskins v. Omega Institute, Inc., 11 F.Supp.2d 555 (D.N.J. 1998) v-

7 Case: , 11/18/2015, ID: , DktEntry: 25, Page 7 of 47 Wilson v. City of San Jose, 111 F.3d 688 (9 Cir. 1997) Wright v. Merritt Realty Co., 148 Wash. 380, 268 P. 873 (Wash. 1928) , 33 Statutes 18 U.S.C U.S.C U.S.C U.S.C U.S.C , 9, 20, U.S.C U.S.C , 20, U.S.C Federal Constitution U.S. Constitution Art. 1, 8, ch Federal Acts General Allotment Act of 1887, Ch. 119, 24 Stat Treasury Regulations 25 C.F.R (a)(3) State Statutes Wash.Rev.Code 9A Wash.Rev.Code 9A Wash.Rev.Code Wash.Rev.Code Wash.Rev.Code vi-

8 Case: , 11/18/2015, ID: , DktEntry: 25, Page 8 of 47 Federal Regulations Fed.R.Civ.P. 12(b)(6) , 31 Fed.R.Civ.P Fed.R.Civ.P. 15(b)(1) Fed.R.Civ.P , 36 FRAP 10(e)(3) Oer 20 Am.Jur.2d, Co-Tenancy and Joint Ownership, 100, pages Cohen s Handbook of Federal Indian Law (Strickland ed. 1982), Chapter 5, B2, page Cohens Handbook of Federal Indian Law, 16.03[2][a] and [b] pages (Nell Jessup Newton ed. 2012) , 27 The Miracle/Gilbert Morris, Ch. 1, Alive Communications by Zondervan, Google/HarperCollins Restatement (Second) of Agency 348 (1958) vii-

9 Case: , 11/18/2015, ID: , DktEntry: 25, Page 9 of 47 No s ; and IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT R. COMENOUT SR., and MARY LINDA PEARSON AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EDWARD A. COMENOUT JR.; v. Plaintiffs-Appellants, ROBERT W. WHITENER JR.; Defendant-Appellee. ON APPEALS FROM THE UNITED STATES DISTRICT COURTS WESTERN DISTRICT OF WASHINGTON AT TACOMA JOINT REPLY BRIEF OF APPELLANTS OBJECTION TO FACTUAL STATEMENTS IN WHITENER S INTRODUCTION Whitener s Introduction (page 1) assumes at he was an agent of e Quinault Nation and he acted at e direction of e Nation. Whitener admits at he personally posted e sign. The sign did not have his or e Quinault Nation s name on it. It did not state -1-

10 Case: , 11/18/2015, ID: , DktEntry: 25, Page 10 of 47 at Whitener was e Quinault Nation s agent and at he was auorized by e Quinault Nation to post e sign. The sign stated in full: This property is leased to e Quinault Indian Nation, per BIA lease 11/20/14 As of January 31 all personal or oer property must be removed from is parcel. (Only limited personal property may remain for Robert Comenout and his immediate family and ey may park in e lot immediately adjacent to his living quarters.) This notice includes personal goods, commercial goods, cars, and trailers. (This includes anying wiin e Indian Country Store.) Any property remaining on is site will be impounded or moved. For questions and concerns contact Tessa, TWG at The statement contact Tessa, TWG at ," conveys no information about e Quinault Nation. The LLC agreement wi e Tribe does not mention Tessa, an unknown person. ER The facts in e record prove at Whitener was never ordered or auorized to post e sign or remove Comenout s personal property. ER 8, pages Whitener was not e Quinault Nation s agent. ER 10, page 102. He has no auority to act for e Quinault Indian Nation. ER 8, page 61. The sign itself required Comenout to guess who posted it. The sign -2-

11 Case: , 11/18/2015, ID: , DktEntry: 25, Page 11 of 47 also stated limited personal property may remain. No definition of limited personal property was listed on e sign. The sign was obviously a harassment by Whitener who had personally reatened Comenout several times. ER 12, page 252. Comenout seeks injunctive relief against Whitener s personal trespass. ER 8, page 73. Robert R. Comenout Sr. and oers, live on e site. It has living quarters. ER 10, page 102; ER 12, page 251. The Quinault Nation had no jurisdiction as a government. No Quinault member has owned any part of e site since June 4, 2010, when Edward Comenout Jr., e only surviving Quinault tribal member, died. Cohen s Handbook of Federal Indian Law (Strickland ed. 1982), Chapter 5, B2, page 278, states: Some small Indian reservations have been established for Indians lacking a functioning social organization at e time, and in most instances e residents have been able to organize a governmental structure. As a result, most areas of Indian country are subject to tribal auority. The principal exception is certain Indian allotments outside reservations. The majority of off-reservation allotments are governed by functioning tribal governments but a substantial minority are not. (Underlining added.) -3-

12 Case: , 11/18/2015, ID: , DktEntry: 25, Page 12 of 47 The lodged Supplemental Complaint, ER 9, pages 80-1 alleges at e BIA concluded at no Indian tribe has jurisdiction of e site. Miami Tribe of Oklahoma v. U.S., 656 F.3d 1129 (10 Cir. 2011), holds at an Indian tribe had no jurisdiction over an off reservation restricted Indian allotment. The owners were not tribal members, id. at In Miami Tribe, e land was originally wiin e reservation, but Congress abrogated jurisdiction, id. at The tribe adopted e owners of e allotment as tribal members, leased e land from em and provided security, id. at The court held... because e Reserve is outside of Miami Tribe s territory in Oklahoma and e tribe has no jurisdiction over e reserve. Miami tribe cannot exercise jurisdiction under 2216(a) wiout a Congressional grant of jurisdiction over e Reserve. Ibid. at U.S.C. 345, a statute applying to allotments, states at until e restrictions are removed, e land shall be subject to e exclusive jurisdiction of e United States. The Comenout land was conveyed in 1926 by e General Allotment Act -4-

13 Case: , 11/18/2015, ID: , DktEntry: 25, Page 13 of 47 of 1887, ch. 119, 24 Stat. 389, to promote assimilation of Indians into mainstream society. Cohen s Handbook of Federal Indian Law, [2][a], page 1072 (Nell Jessup Newton ed. 2012). The Quinault treaty of 1856, at article 6, allowed e President to remove members of e reservation to oer places wiin e territory. See SER 24. Edward A. Comenout Sr. was removed in 1926 to live and make a living on e Puyallup land. The deed attached, see SER 25, is restricted and was purchased for a home. The Quinault tribe did not and could not ever have governmental control. Removal of e Comenouts personally is sought by e BIA. SER 20. Whitener is not an agent of e BIA. ER 10, page 103. There is no auority, except Congress, to remove an owner from a restricted trust allotment. There is no need to join e Quinault Nation as a government as it has no auority to remove any owner. Only after e suit was filed did Whitener produce an expired contract between e Quinault Nation and a Limited Liability Company. See SER 16, Whitener s Supplemental Excerpts, page 272. Any renewal of e expired contract had to be in writing. ER -5-

14 Case: , 11/18/2015, ID: , DktEntry: 25, Page 14 of 47 11, page 240. Robert W. Whitener Jr. personally never had any contract wi e Quinault Nation. The LLC contract does not auorize Whitener to act as an agent of e Quinault Nation. It does not auorize Whitener personally to represent e Tribe or to remove Comenout s commercial goods, vehicles or oer personal property from e property. ER 11, page 237. It merely states at Whitener personally will be e primary consultant of e LLC, page 238. It does not state agent. Whitener signed e contract as General Manager of e LLC Group and not personally, page 240. The contract gives a corporate state number and not Whitener s Social Security Number for federal 1099 purposes (page 237) (ER 11, Exhibit D, pages ). The Contract is not a hold-over contract and terminated on September 30, 2014, p. 238; several mons before e sign was posted. ER 8, page 66. Regarding continuing e contract, it states: This contract shall be subject to e written approval of e agency s auorized representative and shall not be binding until so approved. page 240. The contract was originally auorized by e Quinault Nation Business Committee, -6-

15 Case: , 11/18/2015, ID: , DktEntry: 25, Page 15 of 47 but could not be renewed, especially by verbal vote. Conspicuously absent is e date e supposed verbal vote was taken and how it was taken. SER 16, page 272. It could be after e suit was commenced. Whitener LLC apparently did not accept any renewal. The Nation (SER 16, page 272), after e fact, stated it was still valid, but did not give a date of any renewal meeting. Whitener s facts are developed as his need arises, but are not contained in any pleadings. The pleadings allege conflicting facts ereby requiring a trial. Robert R. Comenout Sr. alleges violations of state and federal criminal laws on his federal allotment. The conduct is by Whitener personally. ER 8, pages 63, 67-69, 71. The Amended Complaint, ER 9, page 82, alleges at e Quinault tribe could not delegate auority to Whitener to commit trespass and impound property. Comenout seeks an injunction against continued trespass, ER 8, pages 73-74, pages ; and against an individual who has no auority to remove or impound any property. ER 10, pages Sovereign immunity does not apply to personal actions by -7-

16 Case: , 11/18/2015, ID: , DktEntry: 25, Page 16 of 47 individuals for prospective relief, especially in violation of federal laws. Burlington Norern and Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9 Cir. 2007). Whitener relies on Dawavendewa v. Salt River Project Agr. Imp. and Power Dist., 276 F.3d 1150 (9 Cir. 2002). However, in E.E.O.C. v. Peabody Western Coal Company, 400 F.3d 774 (9 Cir. 2005), e Court noted at e fact at only an injunction was sought could insure at a tribe would not be liable for damages. Id. at Here, injunctive relief was sought by separate motion, ER 10, pages , Amended and Supplemental Complaint. ER 9, pages DISAGREEMENT WITH WHITENER S STATEMENT OF ISSUES. Whitener s issue statement on e Estate of Edward A. Comenout Jr., page 2, is incorrect. Edward A. Comenout Jr. s estate is still pending and is a party. It owns buildings, vehicles and oer personal property. The sign, ER 8, page 65, sought removal of all personal property including property owned by e Estate. The Estate seeks to be allowed to file e amended complaint as it has control of e buildings on e property and owns vehicles, etc. -8-

17 Case: , 11/18/2015, ID: , DktEntry: 25, Page 17 of 47 at are included as all personal property must be removed. ER 9, pages The Estate is not yet distributed. The Complaint, ER 8, pages 66-74, seeks temporary and permanent injunctions, damages for harassment, trespass and tortious interference. Bo e Estate and Robert R. Comenout Sr. have federal primary jurisdiction. 25 U.S.C. 345; 28 U.S.C The Motion to Dismiss e RICO claim, ER 8, pages 69-70, one of several claims, would not allow dismissal of e oer claims. 28 U.S.C would apply as e claims are related. If e case is returned for trial, amendment would be a trial court issue, not an appellate court issue. OBJECTIONS TO WHITENER S STATEMENT OF THE CASE. Whitener is in error in asserting at page 3, wiout reference to e record, at Comenout owns 6.6 percent interest in e Puyallup site, keeps all e profits and at e business is illegal. Comenout lives on e property and has recently inherited oer interests. He supports and distributes money to Diane Janice Brown, who is also over a 6.6 percent owner. Edward A. Comenout -9-

18 Case: , 11/18/2015, ID: , DktEntry: 25, Page 18 of 47 III, a percent or more owner, lives on e property and is supported by his elder, Robert R. Comenout Sr. Martina Garrison, a non Indian who has a life interest, and Dennis Harris, oer owners, operated a drive ru business on e property and ey kept e revenue ey generated. The statement at Comenout is currently operating is also wrong. The businesses are shut down. Furer, to e knowledge of Robert R. Comenout Sr. no lease is in effect. No lease negotiations are in progress; at least Comenout is not aware of any. The statement by Whitener, at page 4, at Comenout must sign a lease, is wrong. An owner does not have to execute a lease to himself. A lease requires two parties, 25 C.F.R (a)(3). Comenout, a joint tenant, has a right to e entire property. See pages of is reply. Babbitt v. Youpee, 519 U.S. 234, 239, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997). ARGUMENT A. The Standard of Review on all issues is de novo. Comenout disagrees on e Standard of Review. The trial -10-

19 Case: , 11/18/2015, ID: , DktEntry: 25, Page 19 of 47 court determined at sovereign immunity applied and dismissed e case. Dismissal based on sovereign immunity is reviewed de novo. Pistor v. Garcia, 791 F.3d 1104, 1110 (9 Cir. 2015), citing Burlington Norern and Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085 (9 Cir. 2007), a case in which only tribal officials were named. In is case, e Quinault Nation is not a named Defendant. The case was dismissed on e holding at e Quinault Nation was an indispensable (required) party. ER 5, page 11. If Fed.R.Civ.P. 19 was decided by a question of law, e determination is de novo. Cachil Dehe Band of Wintun Indians of e Colusa Indian Community v. California, 547 F.3d 962 (9 Cir. 2008). Here, e issue is de novo as e determination is based on wheer Whitener is entitled to sovereign immunity. To e extent at in its inquiry e district court decided a question of law, we review at determination de novo.... citing Am. Greyhound Racing, 305 F.3d at Id. at 790. Dismissal based on a claim of sovereign immunity is reviewed de novo. Pistor v. Garcia, 791 F.3d 1104, 1110 (9 Cir. 2015). Regarding RICO, -11-

20 Case: , 11/18/2015, ID: , DktEntry: 25, Page 20 of 47 Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9 Cir. 2002), requires de novo review. Id. at Sovereign immunity is a legal issue, hence all issues are reviewed de novo. B. The Estate is a proper party. The Estate of Edward A. Comenout Jr. owns a single-wide trailer, vehicles and oer personal property located on e site. The allegations are set for at ER 9, page 78. The Estate also alleges at e buildings are controlled by e Estate and seeks a declaratory judgment, ER 9, page 90. The lease sought to demolish e buildings. SER 23. The Estate is a proper party. Comenout sought an injunction, ER 8, page 74, ER 10, pages The tribe s officers have no sovereign immunity against injunction. The officers are named in e Supplemental Complaint, ER 9, page 26. An injunction is sought against e tribal officers, ER 9, pages 82, If an injunction was only granted against Whitener, since e tribe was not joined, a remedy could easily state at it did not apply to a non party, an obvious and probably unnecessary provision. -12-

21 Case: , 11/18/2015, ID: , DktEntry: 25, Page 21 of 47 C. Whitener was not e Nation s agent for anying. He could not be an agent to personally carry out illegal actions. Pistor v. Garcia, 791 F.3d 1104 (9 Cir. 2015) and Maxwell v. County of San Diego, 708 F.3d 1075 (9 Cir. 2013) apply. The suit was against Whitener in his individual capacity and sought injunctions. Even if e Quinault Nation was an indispensable (required) party, it could be joined. The case was wrongfully dismissed. Whitener s brief, at pages 12-13, states he was acting for e Quinault Nation since he was working wi em. Nowhere in e present facts of is case is Whitener s action of posting a sign and reatening to impound personal property ordered by e Quinault Nation. It is not wiin e contract. The lease does not discuss any removal of any property. Maxwell, id. at 1089, holds at officers, even if acting for a government, are liable for damages if any damages will come from eir own pockets, not e tribal treasury. Possible indemnification by a government does not confer immunity, id. at Pistor, id. at 1112, follows Maxwell. Even ough ey are sued for actions taken in e course of eir official duties. Whitener seeks to prevent reliance on e sovereign immunity case of Pistor v. Garcia, 791 F.3d 1104 (9 Cir. 2015), which was -13-

22 Case: , 11/18/2015, ID: , DktEntry: 25, Page 22 of 47 filed June 30, 2015, after bo complaints were filed. ER 8, 9. Despite timing, bo complaints, ER 8, page 61, ER 9, page 81, allege at Whitener has no auority to act for e Nation. The Motion for Temporary Restraining Order, ER 10, page 102, denies at Whitener can act for e Quinault Nation. Living quarters are on e property. The complaints are e admitted facts at is stage and allege personal activity by Whitener. Pistor, id. at 1115, also disposes of Whitener s Fed.R.Civ.P. 12(b)(6) argument. Whitener is alleged to be violating state and federal law. Comenout s complaints, ER 8, pages 65, 67-8 and ER 9, pages 88, 93, allege state law violations. The federal law is also violated by his conduct. Whitener could have joined e Quinault Nation as a ird party defendant if he wanted relief. Fed.R.Civ.P. 14(a)(1). Sovereign immunity does not prevent a suit for injunction against a tribal official. Burlington Norern and Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1192 (9 Cir. 2007). If Whitener had any auority, he far exceeded it. He is accused of erratic and dangerous reats. ER 10, page 102. Evans v. Shoshone-Bannock Land Use Policy Com n, -14-

23 Case: , 11/18/2015, ID: , DktEntry: 25, Page 23 of F.3d 1298, 1307, n. 10 (9 Cir. 2013) where tribal officers exceeded eir auority. E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774, (9 Cir. 2005), holds at joinder of a tribe is feasible even if complete relief between e parties cannot be achieved. The joinder is allowable to accord complete relief to e parties already in e suit. Here, e Supplemental Complaint names e tribal officers and seeks an injunction against em, ER 19, page 90. It also seeks a declaratory judgment to clarify competing jurisdictions, ER 9, page 95. This relief would solve ongoing troubles. The motion for a preliminary injunction, ER 10, page 101 states: The property is not located wiin an Indian reservation. All e governments; City of Puyallup, Pierce County, State, BIA, and ATF attempt to regulate, seize assets, arrest e owners, commence lawsuits and try to eliminate e allotment, but none offer police protection, heal and safety or oer governmental benefits to e property or its owners. ER 10, page 102: The reat of e erratic and dangerous behavior of Defendant has even more potential for violence for e -15-

24 Case: , 11/18/2015, ID: , DktEntry: 25, Page 24 of 47 reason at no government extends any police protection to Plaintiff or his family. D. Whitener is personally liable for his tortious actions. The argument, at page 1, i.e. Comenout s claims cannot lie against Whitener in his personal capacity because Whitener cannot be held personally liable for acts he was undertaking at e direction of e Nation. Comenout brought suit for personal torts caused by Whitener s actions. At ER 8, pages 64-5, personal reats made by Whitener are alleged. The Quinault Nation, even if Whitener was an agent, could not auorize illegal reats, even if Whitener was an agent for an undisclosed principal, as e reats are personal torts. The principal could not auorize him to perform an illegal act. Tenneco Oil Co. v. Sac and Fox Tribe of Indians of Oklahoma, 725 F.2d 572, 574 (10 Cir. 1984), applies: If e sovereign did not have e power to make e law, en e official by necessity acted outside e scope of his auority in enforcing it, making him liable to suit. Any oer rule would mean at a claim of sovereign immunity would protect a sovereign in e exercise of power it does not possess. -16-

25 Case: , 11/18/2015, ID: , DktEntry: 25, Page 25 of 47 Robert R. Comenout Sr. s Declaration, ER 12, pages , verifies Whitener s personal reats. Like Aungst v. Roberts Construction, 95 Wash.2d 439, 625 P.2d 167, 170 (Wash. 1981), e judgment can be pursued against Whitener alone as he is personally liable. 2 Restatement (Second) of Agency 348 (1958) states: An agent who fraudulently makes representations, uses duress, or knowingly assists in e commission of tortious fraud or duress by his principal or by oers is subject to liability in tort to e injured person alough e fraud or duress occurs in a transaction on behalf of e principal. The Comenout s ancestor, Edward A. Comenout Sr., as indicated by e certified copy of e Deed and BIA Certificate attached as SER 26, was purchased for a home wi Indian trust funds. 20 Am.Jur.2d, Co-Tenancy and Joint Ownership, 100, pages states: In order to make a binding lease of e entire common property, all of e co-owners must act, eier jointly or severally, one cotenant has no power to lease e entire estate, or any specific portion of e estate, unless he or -17-

26 Case: , 11/18/2015, ID: , DktEntry: 25, Page 26 of 47 she is duly auorized to do so by e oer cotenants. Observation: There is an important distinction in form between e estate of joint tenants and e estate of tenants in common. If all e joint tenants unite in e execution of a lease, it is regarded in law as only one lease made by one lessor, whereas a lease executed by several tenants in common is regarded as several leases of eir respective and separate shares. If one of e co-owners should purport to make an unauorized lease of is kind, it is in no way binding upon e interests of e oer owners. Such an unauorized lease: is wiout force is invalid as to e cotenants of e lessor is voidable by e cotenants e cotenants may regard e lessee as a mere trespasser, so far as his or her claim to e entire property is concerned, if ey have not ratified e first co-owner s act. Comenout s title is good against anyone but e United States. Comenout, a joint tenant, has a right to use all e property. In re Foreclosure of Liens, 922 P.2d 73, 77 (Wash. 1996). The rule is at each tenant in common is entitled to e use, benefit, and possession of e entire property, e only limitation on his right being at he must so exercise his right as not to interfere wi e -18-

27 Case: , 11/18/2015, ID: , DktEntry: 25, Page 27 of 47 equal rights of his co-tenant. De La Pole v. Lindley, 230 P. 144 (Wash. 1924). The lease on e property only addressed e convenience store, not occupancy of e living quarters. Robert R. Comenout Sr. is 82 years old and is confined to a wheelchair due to strokes. He completely confirms face-to-face personal meetings wi Whitener at which Whitener told Comenout at if Comenout did not sign, Comenout would be charged wi a crime. ER 12, page 252. The uncontested Declaration is taken as true. An intentional reat against anyone who can profit can be a federal crime, 18 U.S.C. 873; 18 U.S.C. 875(d). It is also a crime to induce Comenout, an Indian Trust allottee, to convey an interest in e allotment by mortgage or by oer instrument, 25 U.S.C Tribal sovereign immunity, however, does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law. Arizona Public Service Co. v. Aspaas, 77 F.3d 1128, (9 Cir. 1995). Whitener s reats and harassment of Robert R. Comenout Sr. are state crimes, Wash.Rev.Code 9A (2), 9A and 9A , 080(1)(c). Since e actions are -19-

28 Case: , 11/18/2015, ID: , DktEntry: 25, Page 28 of 47 criminally defined, at e least, e allegations allow federal jurisdiction to allotment owners who are federally protected by e U.S. Constitution Art. 1, 8, ch. 3, and who have federal court jurisdiction to file suits to protect eir allotment. 25 U.S.C. 345; 28 U.S.C An agent is always liable for his/her own tortious acts even in e scope of his auority. An agent for an undisclosed principal is also personally liable for torts, including trespass. In Howard Dodge & Sons, Inc. v. Finn, 391 N.E.2d 638 (C.A. Indiana 1979) a subcontractor went onto e home site and removed some of e home equipment. The subcontractor was held personally liable even ough he was e contractor s agent. Id. at 642. Conversion is a tort involving e appropriation of personal property of anoer to e tortfeasor s own use and benefit, in exclusion and defiance of e owner s rights and under an inconsistent claim of title. Id. at 640. Whitener reneged on his promise to buy and decided to impound e property, ER 8, page 64. He knew what he was doing and intentionally or negligently removed it. He is responsible for his -20-

29 Case: , 11/18/2015, ID: , DktEntry: 25, Page 29 of 47 own misrepresentation. See Tennant v. Lawton, 615 P.2d 1305 (Wash. 1980) where negligence as a matter of law upholds agent liability, id. at Whitener knowingly participated in criminal acts, including trespass on residential property. ER 10, page 102. He is responsible personally. State v. Pincus, 125 A.2d 420, 422 (N.J. 1956). Whitener s acts were reckless, completely indifferent and personally imposed on an 82-year-old man who is wheelchair bound. He is personally liable. Scott Imports v. Orton, 527 P.2d 513, 515 (Ariz. 1974). The record in is case includes e Complaint. ER 8. It alleges at Whitener personally wants to participate in a smoke shop on e premises (pages 62-3). A proposed business lease was presented to Robert R. Comenout Sr. His advisors ought it contained anti-trust pricing violations (page 63). Whitener reatened Comenout to e effect at if he did not sign e lease, Comenout would be arrested by state and federal governments (pages 64-5). Comenout was charged by e State for cigarette taxes in a previous case, State v. Comenout, 173 Wash.2d 235, 267 P.3d 355 (2011). Whitener mentions e case at pages 3-21-

30 Case: , 11/18/2015, ID: , DktEntry: 25, Page 30 of 47 and 4, as if it was a final decision, but in fact, e State, on its own motion, dismissed e case. SER 22. The case, even if final, would be disregarded in light of Tohono O Odham Nation v. City of Glendale, F.3d, 2015 WL (9 Cir. 2015), upholding federal obstacle preemption at prevents any objective of Congress, id. at *5, in which federal designation of off reservation property voided state law. Like e Comenout land, e land in Tohono O Odham was to promote economic self sufficiency at *6. The Comenout case cited above is not precedent for anying for e reason at e case was dismissed on e prosecution s ex parte motion. U.S. v. Real Property Located at 475 Martin Lane, Beverly Hills, California, 545 F.3d 1134 (9 Cir. 2013), holds at voluntary dismissal leaves e parties as ough no action has been brought. (Internal quotes omitted.) The court followed In re Matews, 395 F.3d 477 (4 Cir. 2005), a case denying precedent where e litigant lacked auority to adjudicate ownership, id. at 480. Wilson v. City of San Jose, 111 F.3d 688 (9 Cir. 1997), at also states: such a dismissal leaves e parties as ough no action has been brought. Id. at

31 Case: , 11/18/2015, ID: , DktEntry: 25, Page 31 of 47 Collateral estoppel cannot apply to issues at were not actually litigated. Pueblo of Santa Ana v. Nash, 972 F.Supp.2d 1254, 1259 (D.C. New Mexico 2013). See Comenout s Supplemental Excerpts, SER 22, page 347. However, e reat has been carried out as e State is trying again. State v. Comenout, Pierce County Superior Court, No The case is set for trial February 1, E. Nin Circuit precedent holds at Indians, including Comenout, selling cigarettes in Indian Country are not required to collect e state cigarette tax. Whitener states, at page 4, footnote 1, Apropos of noing at e Comenouts assert at ey do not have to collect state taxes. Some of e noing (s) e Comenouts rely on are 18 U.S.C. 1151(c) and Confederated Tribes and Bands of e Yakama Indian Nation v. Gregoire, 658 F.3d 1078, 1088 (9 Cir. 2011), a case holding at Indians are not required to collect e state cigarette tax. If an Indian even found itself facing a State collection effort for e retailer s non-payment of e tax, e retailer would be shielded from civil and criminal liability, id. at Comenout questioned e lease and e BIA rescinded it. Whitener accuses Comenout of -23-

32 Case: , 11/18/2015, ID: , DktEntry: 25, Page 32 of 47 e crime of not paying state taxes but wants to sell cigarettes wiout state tax on e same site. Whitener seeks to cut Comenout out of e same deal wi e State. Presently, ree forfeiture cases are pending, Robert Reginald Comenout Sr. v. Washington State Liquor Control Board, Washington State Court of Appeals No II; U.S. v. 1,784,000 Contraband Cigarettes, No. 3:12-cv BHS, W.D.Wn. at Seattle; and U.S. v. 249, in Currency, No. 3:15-cv BHS, U.S.D.C. W.D.Wn. at Tacoma. One state criminal case, State v. Comenout, The Ricky Joseph case, SER 21, where e BIA voided e lease it now wants to trespass; and Quinault v. Comenout, 9 Cir , for a present total of six. All are pending. However, e appeal is limited to e Appellants are entitled to a trial. Whitener has not requested any additions to e record as required by FRAP 10(e)(3). Even if incorporation by reference is tolerated, ey are not filed pleadings in is case. At is stage, e pleadings in is case, not oers, are e record. pleadings on file in is case to determine wheer Plaintiffs- -24-

33 Case: , 11/18/2015, ID: , DktEntry: 25, Page 33 of 47 F. Comenout has a right to locate his personal property on e land. The oer co-tenants have located oer businesses on e property. Comenout has auority to obtain damages against Whitener and also to an injunction against trespass. U.S. v. Clarke, 529 F.2d 984 (9 Cir. 1976) upheld e right against a trespasser who exhibited highhanded behavior, id. at 987. An allottee s title is good against anyone except e United States. Id. at 986. An injunction was denied to e United States. U.S. v. Clarke, 590 F.2d 765 (9 Cir. 1979) rev d U.S. v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980). The U.S. Supreme Court held at e city had to bring formal condemnation proceedings. Inverse condemnation, a proceeding wiout prior court proceedings, was insufficient. Id. at 257. G. The business lease was rescinded by e BIA. Whitener, at page 5 of his Answering Brief, states at he was listed as a Consultant. The statement at e business lease was approved is misleading. It was rescinded. SER 19, page 308. Presently, to e knowledge of e Comenouts, ere is no lease on -25-

34 Case: , 11/18/2015, ID: , DktEntry: 25, Page 34 of 47 e property to anyone, including e Quinault Nation. Previous negotiations excluded e Comenouts. The exclusion could happen again. The argument at Comenout would have benefitted from e lease is also misleading. Robert R. Comenout Sr. and Edward A. Comenout III, a percent or more owner, would have been evicted from eir home. More important, e existing buildings would be demolished. See SER 23. Since 1926, when e BIA bought e property, seven governments or branches of government contended at ey have control of e property or its owners. ER 10, page 102. See also SER 21, page 319. Comenout did not want his personal property impounded. Additionally, he seeks a declaratory judgment to determine what government has control of e property and e allottees. ER 9, pages 80, The BIA has refused to clarify e rights of e owners. ER 9, page 8. None of ese actions have any relation to is appeal. The history of e General Allotment Act, passed in 1887, was to assimilate Indians into mainstream society. -26-

35 Case: , 11/18/2015, ID: , DktEntry: 25, Page 35 of 47 See Cohens Handbook of Federal Indian Law, 16.03[2][a] and [b] pages (Nell Jessup Newton ed. 2012). 25 U.S.C. 349 provides at an Indian allottee can receive an unrestricted fee simple deed to e land from e Secretary of Interior whenever he shall be satisfied at any Indian allottee is competent and capable of managing his or her affairs. Only e BIA can issue an unrestricted deed. To date, it has not done so. Whitener argues, at page 9 of his Brief, at e Nation auorized all his acts. It stretches credibility at e Nation auorized Whitener to harass, reaten and impound property of an 82-year-old Indian who is confined to a wheelchair and has no police protection. If so, e Nation has no sovereign immunity and Whitener is not exonerated. The law in is Circuit is at individuals acting in violation of federal law cannot be protected by sovereign immunity, especially when prospective relief is sought. Burlington Norern and Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9 Cir. 2007). (Citing Burlington Norern R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 (9 Cir. 1991) (overruled on oer grounds by Big Horn Country Elec. -27-

36 Case: , 11/18/2015, ID: , DktEntry: 25, Page 36 of 47 Co-op., Inc. v. Adams, 219 F.3d 944, 953 (9 Cir. 2000)). Town of Browning v. Sharp, 2015 WL (D. Mont. 2015). Satisfied at Crowe seeks prospective relief to enjoin a tribal official from enforcing an order in contravention of controlling federal law, we agree wi e district court at is action falls wiin e Ex Parte Young exception, and erefore is not barred by e doctrine of sovereign immunity. Crowe & Dunlevy v. Stidham, 640 F.3d 1140, 1156 (10 Cir. 2011). To argue at Whitener is not personally liable for ese tortious acts would overturn a half century of e law of agency. See page 17. A good example are e facts stated at ER 9, page 67, where Whitener reatened criminal action if Comenout did not sign e lease. The sign (ER 9, page 65) states in part: Only limited personal property may remain. Oerwise, all personal or oer property must be removed. U.S. v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980), denies unapproved physical occupation of Indian allotments by state or local governments. If e governments take over prior to court commenced condemnation, if compensation -28-

37 Case: , 11/18/2015, ID: , DktEntry: 25, Page 37 of 47 is not paid, an injunction and trespass suit is allowed. (See, U.S. v. Clarke, 590 F.2d 765, 766 (9 Cir. 1979), reversed by e U.S. Supreme Court.) Whitener cites Wright v. Merritt Realty Co., 268 P. 873 (Wash. 1928), a suit for return of earnest money in a case where e agency was at all times disclosed. Id. at 381. The money was kept by e agent, but e principal was entitled to e money. The case of Haynes v. John Davis & Co., 156 P.2d 659 (Wash. 1945) rejected Wright as e interests of bo purchaser and agent were confirmed in writing. Comenout was never notified by e Quinault Nation of what role Whitener had. Aungst v. Roberts Const. Co., Inc., 95 Wash.2d 439, 625 P.2d 167 (Wash. 1981) is e correct law. Even a disclosed agent was held liable for fraud. Aungst v. Roberts Const. Co., Inc., 95 Wash.3d 439, 625 P.2d 167, 169 (Wash. 1981), also held at e Indian tribe, e owner of e land being developed, who e tribe auorized to sell memberships and develop e land, was not an indispensable party. The developer, Roberts, was alleged to commit fraud and Securities Act violations. Roberts was sued, but not e tribe. The Court held -29-

38 Case: , 11/18/2015, ID: , DktEntry: 25, Page 38 of 47 at e tribe was not e indispensable party. The agent could be sued alone, id. at 169. It would seem a judgment rendered against Roberts, if such is found appropriate, would be adequate. Id. at 170. The dismissal was reversed. The Quinault Nation is not an indispensable party as e relief is sought against an individual who, at most, was an independent contractor. The Quinault Nation currently has no lease on e property. Whitener seeks to protect Comenout from e Quinault Nation, ereby extricating himself from an injunction and damages. The elasticity of sovereign immunity of an Indian tribe does not stretch to an independent contractor tortfeasor, especially when injunctive relief is sought. Cachil Dehe Band of Wintun Indians of e Colusa Indian Community v. California, 547 F.3d 962 (9 Cir. 2008), applies and denies e Quinault tribe as having any legally protectable interest. Like Cachil, id. at 972, e Quinault Nation has no legally protectable interest in trespass, harassment or injunction. -30-

39 Case: , 11/18/2015, ID: , DktEntry: 25, Page 39 of 47 Cachil, id. at 970, states at e practical fact specific tests must be applied. Equal interests in administrative procedures are not sufficient. Id. at 971. Some financial consequences in contracts are not sufficient. Id. at If e Quinault Nation was not a required party, which it is not, e question of wheer e party can be joined is never reached. H. The RICO allegations were sufficient to state cause of action. Robert R. Comenout Sr., pursuant to 25 U.S.C. 345, 28 U.S.C. 1353, has federal court independent jurisdiction. Comenout s complaint, ER 8, page 63, alleges at Sherman Antitrust violations were contained in e proposed lease. Conspiracy to exclude Comenout from e lease is alleged. ER 8, pages 69, 70. This is sufficient to overcome a Fed.R.Civ.P. 12(b)(1) or 12(b)(6) motion. Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9 Cir. 2002), holds at general allegations of injury to a person s business is sufficient for RICO, id. at Mendoza relied on Knevelbaard Dairies v. -31-

40 Case: , 11/18/2015, ID: , DktEntry: 25, Page 40 of 47 Kraft Foods, Inc., 232 F.3d 979, 987 (9 Cir. 2000), a price fixing case at held receipt of less income from sales was direct injury. Unlike Mendoza, e Comenouts have federal court independent jurisdiction. 28 U.S.C U.S. ex rel. Haskins v. Omega Institute, Inc., 11 F.Supp.2d 555 (D.N.J. 1998), denied a motion to dismiss a RICO conspiracy suit where e various school employees knew of e false misrepresentations. Id. at 588. The allegations of conspiracy to commit RICO violations were upheld against a Motion for Summary Judgment and Fed.R.Civ.P. 41. Id. at 558, 571. The Comenouts alleged at e lease could violate e Sherman Act. ER 8, page 63, ER 9, page 89. Comenout was in e convenience store business, ER 8, pages 60, When e Comenouts refused to sign, Whitener tried to impound eir business assets. If e business assets were seized and destroyed, e Comenouts would be out of business. This is direct injury. The pleadings clearly indicate at Whitener wants to run e store, ER 8, page 62, and fix prices. ER 10, page 101, ER 8, pages These allegations are sufficient for a RICO claim as market injury is pled. -32-

41 Case: , 11/18/2015, ID: , DktEntry: 25, Page 41 of 47 See Mendoza, id. at The case cited by Whitener, Wright v. Merritt Realty Co., 148 Wash. 380, 268 P. 873 (1928), was held not to apply. In Sue/Perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp., 25 N.E.3d 928 (C.A.N.Y. 2014). The developer of a golf course for an Indian tribe was not cloed wi tribal immunity. It was merely contracting to build e Nation a golf course at e contractor would operate. Like Whitener, e contractor could not bind or obligate funds of e Seneca Nation. Id. at 934. The tribe did not own e golf course, id. at 935. The golf course was not located on e reservation and was to undertake commercial activities off e reservation. Ibid. at 934. These issues all apply to Whitener. I. The allegations of outrage and trespass are more an adequate. Whitener claims at Robert R. Comenout Sr. s Declaration, ER 12, pages 251-3, contain allegations of outrage as it alleges at Whitener repeatedly reatened an 82-year-old wheelchair bound stroke victim who was personally concerned as he has no police -33-

42 Case: , 11/18/2015, ID: , DktEntry: 25, Page 42 of 47 protection, and has been raided and arrested. The reats and posting are crimes. ER 8, pages Comenout is a vulnerable adult under Wash.Rev.Code (17)(a) as he is physically unable to care for himself. Abuse is any action at inflicts intimidation; abuse is presumed. Wash.Rev.Code (2). Financial exploitation includes improper use of property. Wash.Rev.Code (6) violations can result in protective orders, Wash.Rev.Code If a protective order is in force, violation can be a crime. Wash.Rev.Code The allegations are more an adequate. If not, an amended pleading would be in order. Trespass is properly pled for e reason at Comenout is an owner and has a right to all e property. De la Pole v. Lindley, 230 P. 144 (Wash. 1924). J. The Supplemental Complaint was not moot. It was reversible error to deny it. Fed.R.Civ.P. 15(b)(1) states at e court should freely permit an amendment when doing so will aid in presenting e merits. -34-

43 Case: , 11/18/2015, ID: , DktEntry: 25, Page 43 of 47 Robert R. Comenout Sr. in e original Complaint, ER 8, pages 61-2, alleged at Whitener seeks to operate on e site and he has no auority to act for e Quinault Indian Nation. The comprehensive Supplemental Complaint seeks to get all e parties before e court and determine e relationship and connection to e property, if any, or determine what government has jurisdiction over owners, invitees and owner activity on e property. The Comenouts have a specific statute, 25 U.S.C. 345 at gives district court jurisdiction to commence and prosecute or defend any proceeding in relation to eir right ereto. Essentially, e Comenouts are trying to get e bear out of e buckwheat. The Miracle/Gilbert Morris, Ch. 1, Alive Communications by Zondervan, Google/HarperCollins. The allegations in e Amended and Supplemental Complaint, ER 9, pages 76-97, seek to cure e allegation of Lawrence Ralston who filed a Declaration at Whitener could act on behalf of e Quinault Nation and e extent of e auorization, ER 9, page 81. An injunction is sought against e Quinault Nation and Whitener against future reatened action by -35-

44 Case: , 11/18/2015, ID: , DktEntry: 25, Page 44 of 47 bo Whitener and e Quinault Nation officers. Robert R. Comenout Sr. alleges at he is a vulnerable adult as defined by state law. ER 9, page 88. The Supplemental Complaint alleges at Whitener has no auority to bind e Quinault Nation, ER 9, page 89. Subsequent developments have voided any lease. The extent of jurisdiction of competing governments is an obvious issue at e Comenouts seek to clarify by a Declaratory Judgment, ER 9, page 96. No damages were sought in e Amended and Supplemental Complaint. ER 9, pages Fed.R.Civ.P. 19 allows an Indian tribe to be feasibly joined to effect complete relief. E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774, 785 (9 Cir. 2005). Joinder is allowable for complete relief even if a cause of action cannot be stated against e party. Id. at 783. Dismissal under rule 19 is not required even ough injunctive relief is unavailable. E.E.O.C. v. Peabody Western Coal Co., 610 F.3d 1070, 1080 (9 Cir. 2010). New claims can be added by a Supplemental Complaint to promote e economical and speedy disposition of e controversy. Kei v. Volpe, 858 F.2d 467 (9 Cir. 1988), e rule -36-