Case: /11/2010 Page: 1 of 32 ID: DktEntry: 15 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 Case: /11/2010 Page: 1 of 32 ID: DktEntry: 15 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U. S. Court of Appeals Docket No D.C. TOWN PUMP INC., MAJOR ) BRANDS DISTRIBUTING ) IMPORTS, INC., ) ) Plaintiffs-Appellees, ) vs. ) ) JUDITH LAPLANTE, ) ) Defendant-Appellant. ) Lower Court Docket No. CV GF-SEH REPLY BRIEF OF APPELLANT On Appeal From the United States District Court, District of Montana Thomas A. Marra Kirk D. Evenson Marra, Sexe, Evenson & Bell, P.C. P.O. Box 1525 Great Falls, MT Attorneys for Defendant-Appellant

2 Case: /11/2010 Page: 2 of 32 ID: DktEntry: 15 TABLE OF CONTENTS Page TABLE OF CONTENTS ii, iii TABLE OF AUTHORITIES iv, v I. SUMMARY OF REPLY ARGUMENT II. THE FACTS ACTUALLY IN THE RECORD ESTABLISH THAT THE PLACE WHERE MS. LaPLANTE SUFFERED HER INJURIES WAS ON INDIAN LANDS III. ARGUMENT A. TOWN PUMP/MAJOR BRANDS FALSE FACTUAL PREMISE THAT THE TORT OCCURRED ON NON- INDIAN LAND RESULTS IN A DISTORTED LEGAL ANALYSIS B. TOWN PUMP/MAJOR BRANDS ASSERTIONS THAT MCDONALD WAS OVERRULED BY SMITH (II) IS INCORRECT C. TOWN PUMP/MAJOR BRANDS FAIL TO RECOGNIZE THE RELEVANT DISTINCTIONS APPLICABLE TO MONTANA V. UNITED STATES, 450 U.S. 544 (1981) D. THE CASES CITED BY TOWN PUMP/MAJOR BRANDS ARE READILY DISTINGUISHABLE ON THE FACTS AND LAW E. TOWN PUMP/MAJOR BRANDS ATTEMPTS TO DISTINGUISH SMITH AND MCDONALD ARE ILL- FOUNDED F. TOWN PUMP/MAJOR BRANDS ANALYSIS OF WHAT CONSTITUTES A CONSENSUAL RELATIONSHIP IS ERRONEOUS ii

3 Case: /11/2010 Page: 3 of 32 ID: DktEntry: 15 TABLE OF CONTENTS (Continued) G. MS. LaPLANTE S CLAIMS DO IMPLICATE THE TRIBES ABILITY TO GOVERN ITSELF H. THE APPLICATION OF THE DOCTRINE OF JUDICIAL ESTOPPEL IS APPROPRIATE IN THIS CASE IV. CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iii

4 Case: /11/2010 Page: 4 of 32 ID: DktEntry: 15 Cases Cited: TABLE OF AUTHORITIES Page(s) Smith v. Salish Kootenai College, (Smith I) 378 F.3d 1048 (9th Cir. 2004), vacated, 407 F.3d 1265 (2005), rev d, 434 F.3d 1127 (9th Cir. 2006); passim Smith v. Salish Kootenai College, (Smith II) 434 F.3d 1127 (9th Cir. 2006) (en banc); cert den. 547 U.S (2006) passim McDonald v. Means, 309 F.3d 530 (9th Cir.2002) passim Stock West Corp., v. Taylor, 942 F.2d 655 (9th Cir. 1991) , 14 Johnson v. Oroweat Foods Co., 785 F.2d 503 (4th Cir. 1986) , 14 Heil v. Morrison Knudson Corp., 863 F.2d 546 (7th Cir. 1998) Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518 (7th Cir. 2008) , 14 Circle S. Seeds of Montana, Inc. v. Montana Merchandising, Inc., 335 Mont. 16, 157 P.3d 671(Mont. 2006) Montana v. United States, 450 U.S. 544 (1981) , 7, 8 12, 19, 20 Nevada v. Hicks, 533 U.S. 353 (2001) , 9 Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S.Ct (2008) , 20 Atkinson Trading Co. Inc., v. Shirley, 532 U.S. 645 (2001) iv

5 Case: /11/2010 Page: 5 of 32 ID: DktEntry: 15 Cases (Cont.) Page(s) County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) Phillip Morris USA, Inc. v. King Mountain Tobacco Co., Inc., 569 F.3d 932 (9th Cir. 2009) Strate v. A-1 Contractors, 520 U.S. 438 (1997) , 12, 13 Burlington Northern R.R. v. Red Wolf, 196 F (9th Cir. 1999) Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210 (9th Cir. 2000) , 18 Boxx v. Long Warior, 265 F.3d 771(9th Cir. 2001) New Hampshire v. Maine, 532 U.S. 742 (2001) , 23 Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778 (9th Cir. 2001) , 23 v

6 Case: /11/2010 Page: 6 of 32 ID: DktEntry: 15 I. SUMMARY OF REPLY ARGUMENT The Appellee s brief submitted by Town Pump/Major Brands misstates the issue, the facts and the law. The actual issue before this Court is whether an Indian plaintiff, injured by toxic constituents while working on Indian lands, may prosecute her tort claims against non- Indian defendants in tribal court. In contrast, the issue presented by Town Pump/Major Brands sets out a factual and legal scenario that has nothing to do with this case. Town Pump/Major Brands then proceeds to attack this irrelevant issue. The facts in this case establish that Ms. LaPlante was injured while working on Indian land. The efforts by Town Pump/Major Brands to change this fact are not supported by the record. After presenting this court with a factual scenario not supported by the record, Town Pump/Major Brands proceeds to either misstate the law or ignore it. Town Pump/Major Brands applies irrelevant cases to misstated facts. If the case is relevant, then Town Pump/Major Brands interprets and applies the case incorrectly. Smith v. Salish Kootenai College, (Smith I) 378 F.3d 1048 (9th Cir. 2004); rev. reh. en banc Smith v. 1

7 Case: /11/2010 Page: 7 of 32 ID: DktEntry: 15 Kootenai College, (Smith II) 434 F.3d 1127 (9th Cir. 2006); cert den. 547 U.S (2006) and McDonald v. Means, 309 F.3d 530 (9th Cir. 2002) establish that the Tribal Court has jurisdiction over this dispute. II. THE FACTS ACTUALLY IN THE RECORD ESTABLISH THAT THE PLACE WHERE MS. LaPLANTE SUFFERED HER INJURIES WAS ON INDIAN LANDS. The factual record establishing the place of injury and the place where the injury was suffered serves to illustrate the fallacy upon which Town Pump/Major Brands brief is based. Directly contrary to the stipulated facts and the facts contained in the Excerpts of Record, Town Pump/Major Brands attempt to create a false factual scenario to support their subsequent strawman legal analysis. The facts relevant to determining where and when Ms. LaPlante was exposed to toxic constituents are as follows: 1. Town Pump/Major Brands stipulated that the petroleum products leaked from their tanks on more than one occasion and migrated to adjoining tribal property occupied by the Blackfeet Community College. ( BCC ) Excerpts of Record (E.R.) at p. 9; Document Town Pump/Major Brands stipulated that Ms. LaPlante specifically alleged that she sustained injuries from exposure to petroleum 2

8 Case: /11/2010 Page: 8 of 32 ID: DktEntry: 15 products from their station and storage facility while she was working on the BCC premises. Id. 3. The discovery responses, submitted under oath, by Town Pump/Major Brands provide: a. A diesel release from leaking pipe connected to Underground Storage Tank No. 6 likely occurred between 1990 and E.R. at pp ; b. A surface release of gasoline from Underground Storage Tank No. 7 occurred in July Id. (Emphasis Added); c. A leak associated with the manifold line between Underground Storage Tanks Nos. 1 and 2 occurred in approximately Id.; d. Releases occurred due to overfill events associated with Underground Storage Tanks Nos. 1 and 2. These tanks were installed in Id.. 4. The gasoline spill report from the Blackfeet Fire Department dated July 30,1992 provides that the Town Pump manager reported that 500 gallons has escaped. The fire chief noted, this amount (500 gallons) appears to be a low estimate based upon amount flowing through storm drain. E.R. at pp The drawing by the fire chief depicts the flowing gasoline saturating the college land and a college building. Id. at Pictures of the Indian lands, where the BCC is located, depict pools of gasoline from the 1992 spill as well as the remediation required. Id. at

9 Case: /11/2010 Page: 9 of 32 ID: DktEntry: The corporate representative deposition of Town Pump/Major Brands, Kevin Keneally, verifies that petroleum releases and discharges onto Indian land occurred in July 1992 and May of Id. at pp III. ARGUMENT A. TOWN PUMP/MAJOR BRANDS FALSE FACTUAL PREMISE THAT THE TORT OCCURRED ON NON- INDIAN LAND RESULTS IN A DISTORTED LEGAL ANALYSIS. Given Town Pump/Major Brands false factual premise, their legal analysis is meritless. This false factual premise, and the argument that Town Pump/Major Brands generates as a result, is exemplified by the following excerpt from their brief: Here, the alleged non-member conduct - the negligent maintenance and operation of underground fuel storage tanks - occurred entirely on Major Brands fee land. (Brief of Appellees at 9). Not only were significant releases of the toxic constituents above ground, as exemplified by the factual record cited above, the tort in this case did not manifest itself until the toxic constituents migrated to Indian lands. 4

10 Case: /11/2010 Page: 10 of 32 ID: DktEntry: 15 As this Court held in Stock West Corp., v. Taylor, 942 F.2d 655, 661 (9th Cir. 1991), while citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir. 1986), The place of injury is the place where the injury was suffered, not where the wrongful act took place. This conclusion is entirely consistent with this Court s statement in Smith (Smith I) citing Heil v. Morrison Knudson Corp., 863 F.2d 546, 550 (7th Cir. 1998), and stating,... [a] tort is not wrongful conduct in the air; the arrow must hit its mark. Until there is hurt, there is no tort. See also, Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518, 523 (7th Cir. 2008); Circle S. Seeds of Montana, Inc. v. Montana Merchandising, Inc., 335 Mont. 16, 157 P.3d 671, 675 (2006). At no point in Town Pump/Major Brands brief are these cases mentioned, much less distinguished. Town Pump/Major Brands presents no authority to the contrary and they are left with concocting factual scenarios to fit their irrelevant legal analysis. // 5

11 Case: /11/2010 Page: 11 of 32 ID: DktEntry: 15 B. TOWN PUMP/MAJOR BRANDS ASSERTIONS THAT MCDONALD WAS OVERRULED BY SMITH (II) IS INCORRECT. Contrary to Town Pump s assertion, Smith does not overrule McDonald. The direct reference to McDonald by this Court, in Smith (II) at 1132, FN2, holds:... [o]ur own cases, however, suggest that whether tribal courts may exercise jurisdiction over a non-member defendant may turn on how the claims are related to tribal lands. FN2... FN2 provides in pertinent part:... with McDonald v. Means, 309 F.3d 530 (9th Cir.2002) (cause of action arose out of accident on tribal road; tribal court had jurisdiction)... Clearly there is nothing in Smith (II) remotely suggesting McDonald is overruled. Ms. LaPlante contends Smith (II) reaffirms McDonald. C. TOWN PUMP/MAJOR BRANDS FAIL TO RECOGNIZE THE RELEVANT DISTINCTIONS APPLICABLE TO MONTANA V. UNITED STATES, 450 U.S. 544 (1981). As anticipated, Town Pump/Major Brands continue to repeatedly cite to Montana v. United States, 450 U.S. 544 (1981) and its progeny. They do this, despite the clear language, according to the United States 6

12 Case: /11/2010 Page: 12 of 32 ID: DktEntry: 15 Supreme Court and this Court, that Montana and its progeny address non-member s conduct on non-indian fee land. Montana just does not deal with non-member defendant s actions on Indian land when a plaintiff is an Indian. This Court, in McDonald at 540, stated with regard to Nevada v. Hicks, 533 U.S. 353 (2001):... [h]owever, the Court noted that [o]ur holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general. Id. at 358, n. 2, 121 S.Ct. 2304; see also id. at S.Ct (Ginsburg, J., concurring) (writing separately to emphasize that the question of tribal jurisdiction over other nonmember defendants remains open.) The limited nature of Hicks s holding renders it inapplicable to the present case. FN9 Footnote 9 provides in pertinent part:... [M]ontana itself limited its holding to nonmember conduct on non-indian fee land, 450 U.S. at 557, 101 S.Ct The U.S. Supreme Court states the issue before it in Montana as:... [w]hat remains is the question of the power of the Tribe to regulate non-indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe.... 7

13 Case: /11/2010 Page: 13 of 32 ID: DktEntry: 15 Montana at 557. The inapplicability of Montana, as stated by this Court in McDonald, to non-member s conduct against members on Indian land could hardly be more obvious. D. THE CASES CITED BY TOWN PUMP/MAJOR BRANDS ARE READILY DISTINGUISHABLE ON THE FACTS AND LAW. Town Pump/Major Brands rely on a number of cases to support their jurisdictional analysis that are readily distinguishable: (1) Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S.Ct (2008). This case is meaningless to the issues here. In Plains, a non-indian bank was selling non-indian fee land to non-indians. Such a factual history has no relevance to the present case. The determination that a tribe may not regulate the use of non-indian land is completely irrelevant to the issues in this case. Moreover, the bank in Plains had initiated suit in state court and was merely asking the tribal court to appoint a process server. In no way does this compare to the consensual actions engaged in by Town Pump/Major Brands that exist in this case. 8

14 Case: /11/2010 Page: 14 of 32 ID: DktEntry: 15 (2) Nevada v. Hicks, 533 U.S. 353 (2001). As noted above, the very language from this decision establishes that it has no relevance to the issues in this case. (3) Atkinson Trading Co. Inc., v. Shirley, 532 U.S. 645 (2001). Again, this case is not relevant to the issues before this court. In Atkinson, the tribe was found to have no regulatory power over non-members on non-indian land. This is in sharp contrast to the present case where Town Pump/Major Brands actively litigated in the Tribal Court for over 12 years before filing the motion at issue in this case. Town Pump/Major Brands pursued numerous substantive motions and sought tribal court rulings on these. As noted in Smith (II), a party s invocation of tribal court jurisdiction for a resolution of a claim may serve to establish a consensual relationship with the tribe and a tribal court. Further, there is nothing in Atkinson or Smith (II) that even remotely suggests a matter needs to be litigated to finality before a consensual relationship is established. What Town Pump/Major Brands leaves out of their legal analysis is the Court s specific statement in Smith (II) that, [It] is irrelevant for our 9

15 Case: /11/2010 Page: 15 of 32 ID: DktEntry: 15 purposes that Smith was originally named as a defendant. Id. at Town Pump/Major Brands are claiming, despite the fact they made numerous assertions of tribal court jurisdiction to tribal and federal courts in Montana on matters arising from the same tortuous conduct at issue in this case, that this previous litigation should now be ignored. None of the cited cases relies on litigation finality for the establishment of consensual relations between a party and a tribal court. (4) County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998). This case predates the Means and Smith cases. This decision involves non- Indians on non-indian land and therefore has no application to the facts in this case. (5) Phillip Morris USA, Inc. v. King MountainTobacco Co., Inc., 569 F.3d 932 (9th Cir. 2009). How an action by a cigarette maker, under state and federal law, against a tribal cigarette maker, applies to the facts in this case is a complete mystery. Unlike here, Phillip Morris never pursued claims in tribal court. The same cannot be said for Town Pump/Major Brands, who did. The case offers nothing to the legal analysis at issue here. 10

16 Case: /11/2010 Page: 16 of 32 ID: DktEntry: 15 (6) Strate v. A-1 Contractors, 520 U.S. 438, 442 (1997). At the very outset of the Strate opinion, when the United States Supreme Court sets out the issue to be addressed, it is framed as follows:...[s]pecifically, we confront this question: When an accident occurs on a portion of public highway maintained by the State under a federally granted right-of-way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver s employer, neither of whom is a member of the tribe?... The facts giving rise to the present case bear no relationship to the facts addressed in Strate. None of the land at issue here was under a federally granted right-of-way over Indian reservation land. The land harmed by Town Pump/Major Brands in this case is Indian land only. Ms. LaPlante is an enrolled tribal member who was employed by a tribal entity, the BCC. At the time she was exposed to Town Pump/Major Brands petroleum constituents, she was so employed. The BCC is located on Indian land and was so located when the constituents polluted that Indian land. It is respectfully submitted that an enrolled tribal member working on Indian land for a tribal entity at the time that she is injured should be able to avail herself of the tribal court to obtain relief 11

17 Case: /11/2010 Page: 17 of 32 ID: DktEntry: 15 for her injuries. Indeed, that is essentially what Town Pump/Major Brands previously asserted in multiple pleadings in federal and tribal courts. E.R. at p. 42; Document 19-3; p. 45; p. 50, pp ; Document 1905; p. 83; Document (7) Burlington Northern R.R. v. Red Wolf, 196 F (9th Cir. 1999). This case, like Strate, is irrelevant to the present issue before this Court. The Court in Red Wolf stated, at :... [T]he threshold question in this appeal is whether Montana 's main rule applies, that is, whether the property rights at issue are such that the land may be deemed alienated to non-indians.... The appeals court in Red Wolf goes on to find that there was no distinction to be made between the jurisdictional analysis applicable to a congressionally-granted highway and a right-of-way that is congressionally-granted for a railroad right-of-way. Since the land was found to be alienated, the case has no application to the facts of this case. // 12

18 Case: /11/2010 Page: 18 of 32 ID: DktEntry: 15 E. TOWN PUMP/MAJOR BRANDS ATTEMPTS TO DISTINGUISH SMITH AND MCDONALD ARE ILL- FOUNDED McDonald and Smith (II) present overwhelming authority for Ms. LaPlante s assertion that the Tribal Court has jurisdiction. Town Pump/Major Brands efforts to distinguish these cases fail; even when they take quoted language out of context or misapply it. For example, in McDonald, while the status of Mr. McDonald was noted, the key was not his status as a member of another tribe, but the tribe s retained control over the situs of the accident. This Court held:... [w]e conclude that the scope of rights and responsibilities retained by a tribe over a BIA road exceed those retained over the state Highway in Strate, and that these additional retained rights suffice to maintain tribal jurisdiction over nonmember conduct on BIA roads.... McDonald at 538. This Court, in McDonald, further distinguished Strate when holding that,...[h]owever, the Court qualified that holding by noting that it express[ed] no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation. Id. at 442, 117 S.Ct F.3d at

19 Case: /11/2010 Page: 19 of 32 ID: DktEntry: 15 Unlike the cases relied upon by Town Pump/Major Brands, the land where Ms. LaPlante was working when she came into contact with the toxic constituents is wholly Indian land. This means that the retained control of the land is even stronger here than in McDonald where the road was being held by the BIA in trust for the benefit of the tribe. The record in this case establishes that the negligent act took place on Indian land. Town Pump/Major Brands distortion of where the negligence occurred does not alter the facts on the record. The negligent acts in this case are just like those in McDonald. The key negligent act was allowing the toxic constituents to pollute the neighboring Indian owned lands. Moreover, the fact that the product may have spilled onto Town Pump/Major Brands own land is not the actionable negligent act for which Ms. Laplante has sued. As Foskett, Smith (I), Stock West Corp., and Johnson, supra, hold, the place of the injury is the place where the injury was suffered. Until the accident occurs, there is effectively no injury or damage and therefore no negligence claim. Until Ms. LaPlante was injured in the mid 1990's due to the exposure to 14

20 Case: /11/2010 Page: 20 of 32 ID: DktEntry: 15 the toxic releases on to Indian land where she was working, there could be no claim. As in McDonald (here, substitute the petroleum for the horse), when the petroleum, hit Ms. LaPlante, she was on Indian land. It is that contact that matters for the purpose of determining where the accident occurred. Obviously, if McDonald s horse contacted Means on non- Indian land there would have been no tribal court jurisdiction. This case, like McDonald, falls into the narrow exception of when non-member conduct affects a tribal member on Indian land. The result is that jurisdiction lies in the Tribal Court. Town Pump/Major Brands application of Smith (II) in their answer brief is quite different than what was presented to the lower court. While Town Pump/Major Brands continues to parse the quotes from Smith (II) in an effort to create an analysis that was never intended by this Court, Town Pump/Major Brands also changes position on appeal. Town Pump/Major Brands now not only contend that Smith (II) overrules McDonald, but also that it holds that tribal courts do not have jurisdiction 15

21 Case: /11/2010 Page: 21 of 32 ID: DktEntry: 15 over non-member conduct on Indian lands. This assertion is odd given that Smith (II) specifically held that the tribal court had jurisdiction. A classic example of how Town Pump/Major Brands parses a quote to distort Smith (II) is found on page 20 of their brief. The key sentence that is left out of their citation to page 1135 of Smith (II) is the sentence that states,...[r]ather, our inquiry is whether the cause of action brought by these parties bears some direct connection to tribal lands. Id. at Omitting that sentence from the quote leads the reader to believe that the appeals court and the approving Supreme Court were engaged in a different inquiry altogether. If the release of hundreds, if not thousands of gallons of toxic constituents onto Indian lands between 1990 and 1996 does not establish a direct connection to tribal lands, then nothing will. In this case, that direct connection is one basis for tribal court jurisdiction under Smith (II). The lengthy discussion by Town Pump/Major Brands on the status of the land in the Appellee s brief is not consistent with what was agreed to in the stipulated facts below or the actual record. E.R. at

22 Case: /11/2010 Page: 22 of 32 ID: DktEntry: 15 There is no factual dispute that toxic constituents were released onto Indian lands on multiple occasions by Town Pump/Major Brands between 1990 and 1996 when Ms. LaPlante worked on those Indian lands. She became ill during that specific time frame and that is when the injury occurred. Speculating that some unidentified release before 1987 may have been the cause of her injury is mere supposition, without foundation. Again, Town Pump/Major Brands arguments ignore the fundamental rule of tort law that is applicable here. All of the requisite elements of a cause of action must occur, and where and when they occur are determinative of the actionable tort. Town Pump/Major Brands selfserving speculation about the possibility that some of the elements of the tort may have occurred elsewhere is substantively meaningless. Also reflective of a change in tack is the omission of a case that they repeatedly cited to the lower courts, i.e. Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210 (9th Cir. 2000). In Bugenig, the alleged harm was the deforestation of non-member land. Since the deforestation that was being complained of was occurring on non-member land, this Court held 17

23 Case: /11/2010 Page: 23 of 32 ID: DktEntry: 15 that it was acceptable for a non-member to destroy their own land. Bugenig does not say that a non-member has a similar right to destroy adjacent lands owned by the tribe or tribal members without being subject to tribal jurisdiction. Here, Town Pump/Major Brands, under Bugenig, could have spilled toxic constituents all over their own land. It is not until the toxic constituents enter Indian lands that the theoretical tort will arise and bear some direct connection to tribal lands. 434 F.3d at F. TOWN PUMP/MAJOR BRANDS ANALYSIS OF WHAT CONSTITUTES A CONSENSUAL RELATIONSHIP IS ERRONEOUS According to Smith (II), a consensual relationship may arise when a party, such as a non-member, avails themselves of a Tribe s courts. 434 at Town Pump/Major Brands asserts that a consensual relationship must be based on commercial dealing, contracts, leases, or other arrangements. (See Brief of Appellee at 24). This assertion is directly countered by Smith (II) at , FN4; The Court even overruled Boxx v. Long Warrior, 265 F.3d 771, 776 (9th Cir. 2001) 18

24 Case: /11/2010 Page: 24 of 32 ID: DktEntry: 15 to the extent that it suggests the limitation alleged by Town Pump/Major Brands. Id. The relevant language in Smith (II) also provides: We hold that a non-member who knowingly enters tribal courts for the purpose of filing suit against a tribal member has, by the act of filing his claims, entered into a consensual relationship with the tribe within the meaning of Montana. Id. at Town Pump/Major Brands ignores their history of repeatedly seeking tribal court jurisdiction for the same toxic event that gave rise to this case, including Town Pump s suit against the tribe itself. The excuse offered by Town Pump/Major Brands does not hold water when it states, Here, Town Pump objected to the jurisdiction of tribal court after certain watershed federal decisions definitively foreclosed tribal judicial jurisdiction over a tort claim against a non-member in these circumstances. (See Appellees Brief at 26). Town Pump/Major Brands spent from 1994 to 2008 litigating this and other cases in tribal court having to do with the same releases of toxic constituents onto the same 19

25 Case: /11/2010 Page: 25 of 32 ID: DktEntry: 15 Indian lands. The claim that it did so only until it became evident that there was a change in the law is difficult to accept. The key case that it relies on, Montana, is almost 30 years old. The two cases that are directly relevant to the facts in this case, Smith and McDonald, do not support Town Pump/Major Brands position and predate their jurisdictional motion by a period of years. Invoking Plains Commerce Bank to challenge the consensual relationship is a poor choice by Town Pump/Major Brands. The request in Plains Commerce Bank, asking a tribal court to appoint a process server is hardly comparable to Town Pump/Major Brands filing of lawsuits in a tribal court and repeatedly advocating tribal court jurisdiction in multiple pleadings and briefs before multiple courts. As Town Pump/Major Brands asserted previously: similarly there is a relationship between the Tribe and the parties to this action and sufficient contacts with the Blackfeet Reservation that make it reasonable for the Blackfeet Tribal Court to exercise control over them. E.R. at p. 45; Document // 20

26 Case: /11/2010 Page: 26 of 32 ID: DktEntry: 15 G. MS. LaPLANTE S CLAIMS DO IMPLICATE THE TRIBES ABILITY TO GOVERN ITSELF. While Town Pump/Major Brands is now asserting that the Blackfeet Tribe is essentially unaffected by Ms. Laplante s claims, like many of their assertions, they argued the opposite when it appeared expedient to do so. E.R. at p. 49, 50. Town Pump/Major Brands previously asserted in the other litigation that arose from their toxic releases that: The Blackfeet Tribal Court has the authority to exercise civil jurisdiction over this action because it directly affects the political integrity, the economic security, and health and welfare of the Blackfeet Tribe. Id. at 49. They also went on to assert that: The Blackfeet Tribe has an interest and a right to protect its members from contamination... For that reason, the Blackfeet Tribal Court may exercise civil jurisdiction over the parties to this action. Id. While the parties may have varied depending on the particular litigation, the tort, constituting releases of toxic constituents onto Indian lands, remains the same. Town Pump/Major Brands assertion that Ms. LaPlante s claims, as personal injuries, preclude tribal court jurisdiction is directly contrary to 21

27 Case: /11/2010 Page: 27 of 32 ID: DktEntry: 15 McDonald and Smith (II). Both Smith and McDonald involved personal injury claims and certiorari was denied in Smith. H. THE APPLICATION OF THE DOCTRINE OF JUDICIAL ESTOPPEL IS APPROPRIATE IN THIS CASE In New Hampshire v. Maine, 532 U.S. 742, 749 (2001) the United States Supreme Court held that to apply judicial estoppel, the factors that may be considered to determine what constitute a clearly inconsistent position may include: judicial acceptance of an inconsistent position; unfair advantage; or detriment on an opposing party. However, the Court was quick to emphasize that;...[i]n enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine s application and specific factual contexts. 532 U.S. at 749. This Court, in Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, (9th Cir. 2001), held, while citing New Hampshire: [T]he United States Supreme Court recently listed three factors that courts may consider in determining whether to apply the doctrine of judicial estoppel

28 Case: /11/2010 Page: 28 of 32 ID: DktEntry: [T]he application of judicial estoppel is not limited to bar the assertion of inconsistent positions in the same litigation, but is also appropriate to bar litigants from making incompatible statements in two different cases. Rissetto, 94 F.3d at 605 ( We now make it explicit that the doctrine of judicial estoppel is not confined to inconsistent positions taken in the same litigation ); (Citation omitted.) (estoppel is even more appropriate where the incompatible statements are made in two different cases, since [i]nconsistent positions in different suits are much harder to justify than inconsistent pleadings within one suit).... When the New Hampshire and Hamilton cases are applied here, it is clear that judicial estoppel is applicable. First, the additional considerations which may inform the decisions as to the application of judicial estoppel in this specific factual context are important. Id. at 783. Town Pump/Major Brands sought tribal court jurisdiction on their own as plaintiffs. Town Pump was a third-party plaintiff in actions arising out of the same incident giving rise to this case. Moreover, Town Pump/Major Brands actively litigated this particular case, without any complaints regarding tribal court jurisdiction, from 1996 to The excuse that there was a seachange in the law is not supported by the procedural record or the cases relevant to jurisdiction. 23

29 Case: /11/2010 Page: 29 of 32 ID: DktEntry: 15 Second, there is no question that Town Pump/Major Brands made incompatible statements in two different cases. Their advocating for tribal court jurisdiction in the action commenced by the BCC reflects that, whether they were plaintiffs or defendants, they invoked and advocated for tribal court jurisdiction whether in tribal or federal courts until now. While they may not have always been successful, they arguably obtained a resolution of the BCC action on favorable terms, so this must be viewed as an incompatible, opposite position to their current position in this case. The past legal stances taken by Town Pump/Major Brands are sufficient for judicial estoppel to be applied in this case. IV. CONCLUSION Ms. LaPlante requests that this Court reverse the lower court s summary judgment enjoining her from proceeding with her action against Town Pump/Major Brands in the Tribal Court where it has been proceeding since // 24

30 Case: /11/2010 Page: 30 of 32 ID: DktEntry: 15 DATED this 11th day of June, MARRA, SEXE, EVENSON & BELL, P.C. 2 Railroad Square, Suite C P. O. Box 1525 Great Falls, MT By /s/ Thomas A. Marra Thomas A. Marra Attorney for Defendant/Appellant 25

31 Case: /11/2010 Page: 31 of 32 ID: DktEntry: 15 CERTIFICATE OF COMPLIANCE I, Thomas A. Marra, one of the attorneys for Appellant, hereby certify that: (1) Said REPLY BRIEF OF APPELLANT, filed herewith has a line spacing of 2.0, except for footnotes and quoted, indented material, which have a line spacing of 1.0; (2) Said REPLY BRIEF OF APPELLANT, is proportionately spaced and uses a 14 point Arrus BT typeface; and (3) Said REPLY BRIEF OF APPELLANT, has a word count of 4458 as counted by WordPerfect X4 for Windows, not averaging more than 280 words per page, not including the Table of Contents, Table of Authorities and Certificate of Mailing. DATED this 11th day of June, MARRA, SEXE, EVENSON & BELL, P.C. 2 Railroad Square, Suite C P.O. Box 1525 Great Falls, Montana By /s/ Thomas A. Marra Thomas A. Marra Attorneys for Appellants 26

32 Case: /11/2010 Page: 32 of 32 ID: DktEntry: 15 CERTIFICATE OF SERVICE I hereby certify that, on June 11, 2010, a copy of the foregoing document, Reply Brief of Appellant, was served on the following persons by the following means: 1,2,3,4 CM/ECF Hand Deliver Mail Overnight Delivery Service Fax 1. Clerk, U.S. District Court of Appeals 2. William J. Gregoire, Esq. SMITH, WALSH, CLARKE & GREGOIRE, PLLP 104 2nd Street South, Suite 400 Great Falls, MT Shannen W. Coffin STEPTOE & JOHNSON, LLP 1330 Connecticut Avenue Northwest Washington, DC Lawrence Riff Jason Levin, Esq. STEPTOE & JOHNSON, LLP 633 West Fifth Street, Suite 700 Los Angeles, CA By /s/ Thomas A. Marra Thomas A. Marra Attorney for Defendant/Appellant 27