Case 3:16-cv RJB Document 68 Filed 04/29/17 Page 1 of 22

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1 Case :-cv-0-rjb Document Filed 0// Page of 0 ROBERT REGINALD COMENOUT SR., et al., The Honorable Judge Robert J. Bryan UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA Case No.: -cv-0-rjb Plaintiffs, PLAINTIFFS' RESPONSE TO FEDERAL DEFENDANTS' v. MOTION TO DISMISS, DATED APRIL,0 PIERCE COUNTY SUPERIOR COURT, et al., Defendants. 0 Plaintiffs' respond to Defendants Boyd Goodpaster, J. Mark Keller and Lee Boling's Motion, dated April, 0, to dismiss the original Complaint filed in this Court on June 0,0. The Complaint seeks a declaratory judgment and injunction, not damages. Plaintiffs request that the Court declare that federal law governs Public Domain Allotment No. 0-0, 0/0 River Road, Puyallup, Response to Motion to Dismiss dated April, 0 - ROBERT E. KOVACEVICH. P.L.L.C. WEST RIVERSIDE SUITE SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-

2 Case :-cv-0-rjb Document Filed 0// Page of 0 Washington in the same way as federally chartered banks and military bases located within the exterior boundaries of the state of Washington. Plaintiffs Robert Reginald Comenout Sr. and Edward Amos Comenout III are joint owners (with others) with rights of survivorship of the offreservation allotment. Plaintiff Edward Amos Comenout III is Not a Party in Any Prior Litigation. He Clearly States a Claim for Declaratory Judgment to Define His Future Use Without Fear of Raids of Defendants The factual allegations of Plaintiff Edward Amos Comenout III alone establish his claim. He is one of the joint owners of the allotment. He lives on the allotment. Complaint, Dkt., page. He is an enrolled Muckleshoot Indian. Complaint, Dkt., page. He is not a criminal defendant, Complaint, Dkt., page. He is entitled to federal court jurisdiction pursuant to U.S.C.,0, Complaint, Dkt., page 0. He is approximately years old. Complaint, Dkt., page. As an enrolled Indian, he can own an allotment even if it is not on an Indian 0 reservation. Complaint, Dkt., page. U.S.C.. The deed restrictions are still in place. Complaint, Dkt., page. "Edward Amos Comenout III lives on the land but has not worked or participated in the operation of the convenience store on the allotment. He has never been accused or charged in any way with any participation in the convenience store operation on the allotment." Complaint, Dkt., page. Response to Motion to Dismiss dated April, 0 - WEST RIVERSIDE SUITE SPOKANE, WASHINGTON 0-0 0/-0 FAX 0/-

3 Case :-cv-0-rjb Document Filed 0// Page of 0 0 Plaintiff Edward Amos Comenout III alleges that J. Mark Keller, Lee Boling and Boyd Goodpaster, who work in concert, cannot go onto the allotment and arrest or regulate him for violations of state law. Complaint, Dkt., pages,. He seeks a declaration that he can sell cannabis and hemp products on the allotment and also without payment of state tax. Complaint, pages, 0,. Menominee Indian Tribe ofwisconsin v. D.E.A., 0 F.Supp.d (D.C. E.D,Wis. 0) found jurisdiction to determine whether hemp could be grown in Indian country without requiring the Indian tribe to incur the harm and expense of actually growing the product. Prudential standing served both parties. Id. at. Concern of raids and inability to purchase or contract with suppliers are sufficient to find constitutional standing. U.S. v. White Plume, F.d 0, 0 ( th Cir. 00). Defendant J. Mark Keller, Lee Boling and Boyd Goodpaster anonymously went onto the allotment for years to investigate. They did not make assessments. Instead they took Plaintiffs' inventory, all their money and arrested them. The Affidavit for Probable Cause by J. Mark Keller in State v. Robert Reginald Comenout Sr., State ofwashington, Pierce County No. -000, copy attached to Counsel's Declaration filed with this Motion, is the Defendant's justification for the raids. Contrary to J. Mark Keller's Declaration that he always acted as an ATF person is that the Probable Response to Motion to Dismiss dated April, 0 - A PROFESS0NAL LIMITED LIABILITY COMPANY WEST RIVERSIDE SUITE SPOKANE, WASHINGTON FAX 0-

4 Case :-cv-0-rjb Document Filed 0// Page of 0 0 Cause Affidavit is executed as "Lieutenant, Washington State Liquor Control Board." A federal officer cannot submit a state probable cause affidavit. Collateral Estoppel, Comity and Allegations that Plaintiffs are Litigants in State Court Do Not Apply to Edward Amos Comenout III Lee Boling filed a Declaration, Dkt., //0, stating that he is an officer with the Washington State Liquor and Cannabis Board. He states that he has been "commissioned" as a task force officer ofthe ATF, but does not indicate or attach the "commission". Boyd Goodpaster filed a Declaration, Dkt., //0, that he is an ATF Special Agent. He then concludes "to the extent that any of the actions complained of in the Complaint occurred they were undertaken in the course and scope of my employment with the ATF." J. Mark Keller filed a Declaration, //0, Dkt.. He states he is a Lieutenant with the Washington State Liquor and Cannabis Board. He states that he has been "commissioned" by the ATF and that "to the extent that any of the actions complained of in the Complaint occurred, they were undertaken in the course and scope of my assignment with ATF as a Task Force Officer." This is totally contrary to his Affidavit ofprobable Cause, attached. Douglas Smythe's Affidavit, attached to Plaintiffs' Counsel's Declaration, Dkt., 0//0, merely states that "I was personally involved in a joint tribal, Federal and state task force assigned to investigate the illegal activities occurring at the Indian Country Response to Motion to Dismiss dated April, 0 - ROBERT E. KOVACEVICH. P.L.L.C. WEST RIVERSIDE SUITE.S SPOKANE. WASHINGTON.0-0 0/-0 FAX 0/.-

5 Case :-cv-0-rjb Document Filed 0// Page of 0 0 Store in Puyallup Washington. That establishment is located on land held in trust by the federal government for the benefit of the decedent. I was personally present and participated in the execution of a federal search warrant at that property on September, 0." He states "the Nation is owed $,,." He has no authority on the allotment. The Declaration of Counsel, Dkt., 0//0, also attached a page containing a probable cause state determination (Exhibit D) and pages -0 (Exhibit C) stating that Boyd Goodpaster and J. Mark Keller went onto the premises and bought cigarettes. The affidavits failed to note that they identified themselves. Circumstantial evidence would prove that they did not indicate their identity. Lee Boling and J. Mark Keller state under oath that they are state employees but all their actions in the case were for the ATF. To Plaintiffs' knowledge, Goodpaster did not execute state probable cause affidavits. The Rooker-Feldman Doctrine does not apply to Edward Amos Comenout III for the reason that Edward Amos Comenout III has not been a party to any state court suit. He also has not been in privity to any of the other co-plaintiffs. Even if he was in privity this requirement does apply to the Rooker-Feldman doctrine. Lance v. Dennis, U.S., S.Ct., L.Ed.d 0 (00). "We now note jurisdiction, and address whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding Response to Motion to Dismiss dated April,0 - WEST RIVERSIDE SUITE SPOKANE, WASHINGTON FAX 0/-

6 Case :-cv-0-rjb Document Filed 0// Page of because they were in privity with a party in Salazar. We conclude it does not, and vacate the judgment of the District Court." Id. at -. If the party has not had a full and fair opportunity to litigate, the doctrine does not apply. Beres v. U.S., Fed.CL, (Ct. Cc. 00), applying Washington law. The Plaintiffs' Counsel is aware that some of the cases argued by Plaintiffs have been rejected. Plaintiffs have not sought further 0 0 amendments. As noted by new cases that have been decided since this case was filed, the famous Colville case, see Wash.Rev.Code..00() has, to say the least, been eroded. Indian Tribes now have cigarette compacts with the state. Non Indian business, if the state seeks more taxes, receive notices and are entitled to pre collection due process. The state law, Wash.Rev.Code.A.00(), gives redress where laws have been found unconstitutional Wash.Rev.Code.A.00() gives taxpayers the right to receive, upon request, clear and complete tax instructions and other information. Wash.Rev.Code.A.00 states "The rights, privacy and property of Washington taxpayers should be protected adequately during the process of the assessment and collection of taxes." The Plaintiffs were never contacted before seizure and arrest. They should not have to risk seizure and arrest to find out what they can do on the property. Declaratory judgment is the only non violent remedy. Here, the state has never sent Plaintiffs a tax assessment. Response to Motion to Dismiss dated April, 0 - WEST RIVERSIDE SUITE SPOKANE, WASHINGTON 0-0 0/-0 FAX 0/-

7 Case :-cv-0-rjb Document Filed 0// Page of 0 0 The Younger abstention also does not apply if a person is not a party to the state court proceeding. Vasquez v. Rackauckas, F.d 0, 0 ( th Cir. 0). Res Judicata has no Application to the Remainder of the Plaintiffs as Subject Matter and Personal Jurisdiction is the Issue. The Younger abstention is not applicable when a state tribunal is asserting jurisdiction beyond its authority. SycuanBand ofmission Indians v. Roache, F.d, ( th Cir. ). In Sycuan, the Ninth Circuit held that the Anti Injunction Act did not apply to the federal proceeding. "The injunction was necessary to preserve exclusive federal jurisdiction." [d. at 0. Gartrell Const., Inc. v. Aubry) 0 F.d, ( th Cir. ) holds "no significant state interest is served where the state law is preempted by federal law and that preemption is 'readily apparent'." The federal law, U.S.C. requires that until allotment restrictions are removed, Congress has exclusive jurisdiction of the allotment. Federal court jurisdiction is granted to the allotee to defend their allotment rights. U.S.C., U.S.C., U.S.C. 0. Federal preemption is also readily apparent by Wash.Rev.Code.0.00, eliminating restrictions in Indian deeds. U.S.C. limits the removal of the Indian deed restrictions to action by Congress. Confederated Tribes of Chehelis Reservation v. Thurston County Bd. OfEqualization, F.d ( th Cir. 0) specifically holds that U.S.C. 0 (formerly U.S.C. Response to Motion to Dismiss dated April, 0 WEST RIVERSIDE SUITE SPOKANE, WASHINGTON FAX 0/-

8 Case :-cv-0-rjb Document Filed 0// Page of 0 0 ) preempts state law, Wash.Rev.Code Id. at -. Likewise, res judicata and collateral estoppel does not apply to suits where the final judgment was not rendered on the issue. Further, a later development in case law is changing the issues of Indian-to-Indian commerce. C.LR. v. Sunnen, U.S.,,0, S.Ct., L.Ed (). Legality of cannabis in the state of Washington was not an issue in any prior proceedings. J. Mark Keller, the State Employee Who Purports to Determine the Liquor Board's Legal Right to Raid and Arrest Plaintiffs, May be Sued for an Injunction Against an Ongoing Violation of State Law. J. Mark Keller has established himselfas an oracle ofthe law on state taxes in Indian country. Complaint, Dkt., page. As such, he may be sued in his official capacity to enjoin ongoing violations of federal law including jurisdiction. He is a state official. See Crowe & Dunlevy v. Stidham, 0 F.d 0, (0 th Cir. 0) and Paeste v. Government of Guam, F.d ( th Cir. 0). Burlington Northern & Santa Fe Ry. Co. v. Vaughn, 0 F.d 0 ( th Cir. 00) applies and states the reason the Defendants' Motion must be denied. "Under the doctrine of Ex Parte Young, immunity does not extend to officials acting pursuant to an allegedly unconstitutional statute." Id. at 0. Wash.Rev.Code.0.00, the state statute eliminating the Comenout's federal restrictions, IS unconstitutional. Like this case, the tax was sought where there is no Response to Motion to Dismiss dated April, 0 - A PROFESSIONAL LIMITED UAB~UTY COMPANY WEST RIVERSiDE SUITE. SPOKANE. WASHINGTON.0-0 0/-0 FAX 0/.-

9 Case :-cv-0-rjb Document Filed 0// Page of 0 0 jurisdiction "to impose." Id. at 0. The court held that the long history of tax imposition by the person who sought to enforce the tax, is not immune. Id. at 0. Two owner Plaintiffs inherited the land initially acquired by their common ancestor, Edward Amos Comenout Sr. The restricted status ofthe land is proven by the copy of the Deed and Certificate attached to the Complaint, Dkt., June 0, 0. The land has been held since inception as an off-reservation restricted allotment. Congress wanted Indians to assimilate into mainstream society and thereby authorized offreservation allotments. The allotment will be issued a patent by the BIA when it determines that the Indian allotee "is competent and capable of managing his or her affairs." Until that time the land is "subject to the exclusive jurisdiction of the United States." U.S.C.. The Deed states that the property is also to be used as a home by the Plaintiffs. Plaintiffs seek the same result on the same legal basis granted to the Oneida Indian Tribe in Oneida Tribe ofindians of Wis. v. Village of Hobart, Wis., F.d, (th Cif. 0). Like the Comenouts, a declaratory judgment was sought. Id. at. Judge Posner sums up the issue: "It is awkward for parcels of land subject to one sovereign to be scattered throughout a territory subject to another. But actually it's a familiar feature ofamerican government. Federal facilities ofall sorts, ranging from Response to Motion to Dismiss dated April,0 A PROFESSIONAL LIMITED UABILITY COMPANY WEST RIVERSIDE SUITE SPOKANE, WASHINGTON 0-0 0/-0 FAX 0/-

10 Case :-cv-0-rjb Document Filed 0// Page 0 of 0 post offices to military bases, are scattered throughout the United States, and are subject to only as much regulation by states and local governments as the federal government permits." (Underlining added). Plaintiff seeks a declaration that state courts cannot issue valid search warrants allowing the Defendants to arrest Plaintiffs for state law violations. They also seek the same result as Confederated Tribes ofchehalis Reservation v. Thurston County Bd. ofequalization, F.d, ( th Cir. 0); Cougar Den, Inc. v. Washington State Dept oflicensing, _P.d_, 0 WL (Wash. 0) and State v. Priest, Wash.App 00 *, Unpublished, Div. III Ct. of Appeals (0). These cases have been recently decided and have 0 changed the result of prior case law on state taxation of Indians in Indian country. State of New York v. Mountain Tobacco Company, 0 WL (D.C. E,D. N.Y. 0) is also involved in the pending case of U.S. v. $,0. in U.S. Currency, No. C--BHS (U.S.D.C. W.O. Wash.) at Tacoma. King Mountain Tobacco Co., the same Yakama Indian owned company now litigating in New York, seeks the return of $,0 seized from its bank account. Lee Comenout Sr., Robert Reginald Comenout Sr. and Robert Reginald Comenout Jr. are also claimants in the Tacoma case. The allegations are that the Contraband Cigarette Tax Act is violated. All persons who are claimants are enrolled Indians. The issue of Indian to Indian instead of interstate commerce is an issue in the New York case and Response to Motion to Dismiss dated April, 0 0 A PROFESSIONAL LIMITED LIABILITY COMPANY WEST RIVERSlDE SUITE SPOKANE. WASHINGTON FAX 0/

11 Case :-cv-0-rjb Document Filed 0// Page of 0 0 also this case. Id. at. Wash.Rev.Code..0()(a) requires that a person who transports unstamped cigarettes into the state of Washington is to give notice. The statute, Wash.Rev.Code..0(), also provides that failure to give notice transposes the cigarettes into contraband and therefore the cigarettes are subject to seizure. Cougar Den, 0 WL at *, followed the cigarette tax case of u.s. v. Smiskin, F.d 0 ( th Cir. 00) and cites Wash.Rev.Code..0() "Thus, just as the State cannot issue citations to tribal members for not paying fees before they bring lumber to market, the federal government cannot impose criminal sanctions on tribal members for not providing notice to the State before transporting tobacco for sale or trade." U.S. v. Smiskin, F.d at. Cougar Den transports fuel to the Yakama Nation retailers from Oregon. The Court held that the Yakama Treaty preempted gas tax and state licensing. The Cougar Den opinion observed that the Smiskins "were not required to notify anyone." Id. at *. This is a sea change and returns the cases back to U.S. v. Simchen, Swiger, F.d ( th Cir. ). There was no probable cause as the ATF had no knowledge of the cargo. Therefore, they lost the cases. In, Wash.Rev.Code was amended to include the notice provision. If notice was not given, the load was contraband and the ATF would report that no notice was given. Hence, the Indians were transporting contraband. Now in 0, the tide is going out again in favor ofthe Indians. The transportation was Indian to Indian. Here Response to Motion to Dismiss dated April, 0 - ROBERT E. KOVACEVICH. P.L.L.C. WEST RIVERSIDE SUITE. SPOKANE, WASHINGTON.0-0 0/-.0 FAX 0/.-

12 Case :-cv-0-rjb Document Filed 0// Page of 0 0 Lee Comenout Sr. was accused of transporting cigarettes from an Indian reservation in Idaho. At page, Keller's Affidavit states that Lee Comenout Sr. hauls cigarettes from the Yakama reservation, he also stated that "currently, he occasionally brings King Mountain Cigarettes from the Yakama Reservation." Robert Reginald Comenout Jr. and Marlene Comenout are Yakama Indians. The attached Probable Cause Affidavit of J. Mark Keller, at page, names Plaintiff Lee Comenout Sr., states that the Defendants believe he is a Yakama Nation Indian. In footnote, Keller references U.S. v. Smiskin, F.d 0, (th Cir. 00). This is the same case followed by Cougar Den, Inc. v. Washington State Department of Licensing, _P.d, 0 WL (Wash. 0). Keller argues that U.S. v. Fiander, F.d 0 ( th Cir. 00) allows a conspiracy ofindians is an exception. The Washington State Supreme Court does not cite Fiander. Fiander did not prove he was in his own vehicle. He was paid for his delivery service. The applicability ofthe CCTA to Indians since the 00 amendment is doubtful. Revealing is the statement at page by Keller about Lee Comenout Sr. "He stated that, leading up to the 0 search warrant, he was making weekly trips to Idaho to purchase cigarette inventory for ICSS." At page of the Affidavit, Marlene Comenout is accused of sending notes with Lee Comenout Sr. on cigarette pick ups. Marlene Comenout and Lee Comenout Sr. are both Yakama Indians. The Response to Motion to Dismiss dated April,0 - A PROFESSIONAL LIMITED LlABfLlTY COMPANY WEST R'VERSIDE SUITE SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-

13 Case :-cv-0-rjb Document Filed 0// Page of 0 0 transportation was Indian to Indian and Yakama Indian to Yakama Indian. Indian country includes an allotment. U.S.C. (c). Yakama Indians do not have to comply with the state of Washington notice requirements. The Yakama deliveries were marketed to an Indian allotment, hence were not contraband. Fundamental fairness is violated when the Defendants Probable Cause Affidavits quote extensive Indian law which is probably a mixed question of law and fact but rebuttal has to be a short statement of facts. The Court has stated that Confederated Tribes and Bands ofthe Yakama Indian Nation v. Gregoire, F.d 0 ( th Cir. 0) settled the issue. Dkt., page. While not exact, Justice Fairhurst, in her dissent in Cougar Den, id. at *, states that the case changes the right of the state to tax goods consumed in the state. Here, discovery and pretrial orders will flush out the applicable facts and issues on state employees. A motion to dismiss is not appropriate where declaratory judgments are sought. The Federal Defendants seek to rely on a task force composed of state, federal and Indian reservation employees. The law does not provide for activities jointly by state, federal and Indian tribe employees. While not yet a factual matter, discovery will prove that the named Defendants went onto the property totally incognito and never disclosed their identity until an actual raid took place. They now seek to place the burden on Plaintiffs Response to Motion to Dismiss dated April, 0 - WEST RIVERSIDE SUITE SPOKANE. WASHINGTON..0,0 0,0 FAX 0!,

14 Case :-cv-0-rjb Document Filed 0// Page of 0 0 to determine at what point in time they cease to be state employees. The Quinault Indian Nation has a case pending in the Ninth Circuit on cigarette sales on the allotment. Quinault v. Comenout, No. - ( th Cir.). The case is set to be argued in the Ninth Circuit on June,0, at Seattle. In past raids, u.s. v. Simchen, Swiger, F.d ( th Cir. ); U.S. v. Brigman, F.Supp. (D.C. Wash. ); and Paul v. State, 0 P.d 0 (Wn. Ct.App. 00), the Indians won. The cigarettes were sold and the money is placed in the registry of the court. The Indians got the money. Now the cigarettes are hidden from the owners. Circumstances mandate that Plaintiffs have discovery rights to find out. Defendant agents cannot be working as a federal task force for the reason that state civil tax enforcement, since the Amendment to the CCTA in 00, exempts Indians. Further, the state cigarette tax law was changed in 00. Now only licensed wholesalers can attach or possess state tax stamps. Wash.Rev.Code..00(). The Washington State Department of Revenue, March 0 publication, states that if a consumer buys "from an in state tribal retailer' that has no stamps on the packages, the consumer, within hours, must remit the tax and file a declaration form with the Department of Revenue. The Defendants argue that the Comenouts are bound by prior cases. The law has changed. The issues raised by changes in the law have not been decided. Response to Motion to Dismiss dated April, 0 ~ ROBERT E. KOVACEVICH. P.L.L.C. WEST RIVERSIDE SUITE S SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-

15 Case :-cv-0-rjb Document Filed 0// Page of 0 0 Plaintiff Edward Amos Comenout III has never participated in any way in the commercial business carried on at the site. No action, civil or criminal, has ever been commenced against him by any government that in any way even remotely would be related to state or Indian tribe taxation. No prior action can be a reason to claim res judicata, claim or issue preclusion or barred by the Rooker-Feldman Doctrine. The Defendants' Motion seeks to transmute arguments into facts. The Affidavit of Douglas Smythe, attached as Exhibit B to Counsel's Declaration, Dkt.., Exh. B, 0/0/0, states that Smythe, who was a Quinault Nation employee "participated in the execution ofa federal search warrant." Defendants cite Colorado v. Nord, F.Supp.d (D.C. Colo. 00). That case does not apply for the reason that the Federal Defendants were operating under federal law. Defendants' also cite Farag v. U.S., F.Supp.d (D.C.S.D.N.Y.00). Farag raised the issue by summary judgment as, like this case, probable cause for a state court warrant and Fourth Amendment protection is an issue since Plaintiffs' facts alleged are taken as true. Plaintiffs' Complaint, Dkt.., page, dated /0/0, alleges that the deed restrictions on the allotment are still in place; that Goodpaster, working in concert, had no authority to regulate Plaintiffs' activity on the allotment, page. Defendants argue, at page oftheir Motion, "Defendants Goodpaster, Keller and Boling are not state employees as Plaintiffs allege." Keller Response to Motion to Dismiss dated April, 0 - WEST RIVERSIDE SUITE SPOKANE. WASHINGTON 0-0 0n-0 FAX 0/-

16 Case :-cv-0-rjb Document Filed 0// Page of 0 0 represented to the court issuing the warrant that he was a state employee. The Defendants seek to make the Plaintiffs prove in what capacity the three men acted before any discovery is taken. The allegations of fact in the Complaint are to be taken as true. These contradictions, if raised on a summary judgment motion, would defeat the motion. Defendants are seeking to convince the Court that their arguments can reconcile what is a dispute of material facts. Plaintiffs do not have to serve the Attorney General as the Defendants were acting as state employees. Evans v. McKay, F.d ( th Cir. ) held that an order prohibiting the sale of tax free cigarettes issued by the Blackfeet Tax Commission was valid since the police officers who applied for the warrant were also "empowered by the BIA to enforce tribal law." "The allegedly unconstitutional arrests were made pursuant to a City of Browning ordinance prohibiting the obstruction of justice. While these law enforcement officers may be said to have been acting pursuant to Tribal Court orders during the incidents in question, they were also acting in their capacity as City of Browning police officers." ld. at. The holding in the McKay case is that in applying for a search warrant, the enforcement officers must be empowered to act as officers of the government issuing the warrant. Agents Boling and Keller have concluded that at all times they acted as federal officers. J. Mark Keller applied for the warrant as a state Response to Motion to Dismiss dated April, 0 - WEST RIVERSIDE SUITE SPOKANE. WASHINGTON FAX 0/-

17 Case :-cv-0-rjb Document Filed 0// Page of 0 0 officer. If he was always a federal officer the warrant is invalid. Here the state attorney general cannot bring civil suit against Indians for transporting cigarettes across state lines. See State ofnew York v. Mountain Tobacco Company, 0 WL at *. "A CCTA exemption exists for Indians in Indian Country, specifically section." See also, Committee Reports to the USA Patriot and Terrorism Prevention Reauthorization Act of 00, Cong.Rec. H-0, H, 00 WL 00. "No civil action may be commenced under this paragraph against an Indian tribe or an Indian in Indian country, (as defined in section )." U.S.C. (b); City ofnew York v. Gordon, F.Supp.d, 0 (D.C.N.Y. 0). Whether state, federal or Indian employed, an employee acting within the scope of his employment is liable for deliberate indifference. Maxwell v. County of San Diego, 0 F.d 0 (th Cir. 0); Pistor v. Garcia, F.d 0, ( th Cir. 0). No federal crime can be charged against Edward Amos Comenout III. He was never investigated. The only tax collection was by Douglas Smythe who sought to collect Quinault Tribal cigarette taxes. Affidavit of Douglas Smythe, Dkt., Exhibit, page. Tribal tax collection, not state tax collection apparently was the object of Smythe's participation in the task force. There is no criminal state jurisdiction of Indian cnme on off- Response to Motion to Dismiss dated April ) 0 - WEST RIVERSIDE SUITE SS SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-

18 Case :-cv-0-rjb Document Filed 0// Page of reservation allotments. Magnan v. Trammell, F.d (0 th Cir ); Armstrong v. Maple LeafApartments, Ltd., 0 F.d, A (0 th Cir.);Statev.Klindt,P.d0,0(Okla.CR.). State search warrants cannot be valid if directed to allotment owners. Ross v. Neff, 0 F.d, (0 th Cir. 0), See also Babbitt Ford, Inc. v. Navajo Indian Tribe, 0 F.d, ( th Cir. ). Due to lucrative seizures that inexplicably allow the ATF to keep funds in the agency to pay salaries, buy vehicles etc, the State does not commence actions to force stamping of cigarettes. Cougar Den, Inc. v. Washington State Department oflicensing, 0 WL * (Wash. 0), holds that whether cigarettes or gas, the state cannot impose a license restriction on Yakama Indian goods hauled to market. Indian-to-Indian commerce is also immune. MakahIndian Tribev. Clallam County, Wash.d,, 0 P.d (Wash. ) although not cited in Cougar Den, came to the same conclusion years ago. State taxation in Indian country "is a question beyond our jurisdiction." Cougar Den, 0 WL *, states "if the state has concerns about this treaty provision, only Congress can reverse or restrict the provisions, not this court." Robert Reginald Comenout Jr., Marlene Comenout and Lee R. Comenout Sr. are all enrolled Yakama Indians. Complaint, Dkt., page. Cougar Den, State v. Priest and Confederated Tribes ofthe Yakama Indian Response to Motion to Dismiss dated April, 0 ROBERT E. KOVACEVICH. P.L.L.C. WEST RIVERSIDE SUITE SPOKANE, WASHINGTON 0-0 0n-0 FAX 0/

19 Case :-cv-0-rjb Document Filed 0// Page of 0 0 Nation v. Gregoire, F.d 0, 0 ( th Cir. 0) deserve additional scrutiny in light of Cougar Den notwithstanding the Courts earlier interpretation. This is Not a Complex Case Entitled to More Lenient Treatment The Ninth Circuit is concerned with the fact that a heightened pleading standard is applied in "some complex commercial cases" to give "too much settlement leverage to plaintiffs." A more lenient treatment is applied in other cases. Starrv. Baca, F.d 0, - ( th Cir. 0). The court stated the common principles "first, to be entitled to the presumption oftruth, allegations in the complaint or counter claim may not simply recite the elements of a cause of action, but must contain sufficient allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to be subjected to the expense of discovery and continued litigation." Id. at. See also Merritt v. Countrywide Financial Corp., F.d 0, 0 ( th Cir. 0). Here the defendants have already obtained over $00,000 in cash and kept some vehicles. They have the Plaintiffs' money to pay the litigation. They will not be exposed to or experience unjust procedure. The procedure in this case thus far makes a mockery of access to the courts. Defendants, at page of their Motion, cite u.s. v. Approximately One Million Seven Hundred Eighty Four Thousand ($,,000) Contraband Response to Motion to Dismiss dated April, 0 ala WEST RIVERSIDE SUITE SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-

20 Case :-cv-0-rjb Document Filed 0// Page 0 of 0 0 Cigarettes, No. -0 (W.D. Wash) and $,0.00 in United States Currency, Case No. - BHS (W.D. Wash.). Both these cases are in the process ofsettlement. A cursory reading of the complaints in the cases will reveal that the ATF, without pre-notification or right to be heard, took all Plaintiffs' money and inventory and arrested them. The Magistrate ordered the store cleared even though it was selling other non taxable items approved by the State Department of Revenue. No discovery has yet taken place in the case. Arthur R. Miller, 0 Duke Law Journal,, «From Conley to Twombly to Iqbal: A Double Play On The Federal Rules of Procedure" at pages - the author states: "The pretrial process has become so elaborate with time-consuming motions, hearings, and discovery that it often seems to have fallen into the hands of some systemic Sorcerer's Apprentice,., In short, the world of those who drafted the original Federal Rules largely has disappeared, causing one districtjudge to remark that the 'reality' is that our 'system [is] becoming increasingly inaccessible to the average citizen... Sadly in some respects today's civil litigation is neither civil nor litigation as previously known'," Plaintiff Edward Amos Comenout III thus far has been denied access to the courts to gain knowledge on how to make a living and how to live on the allotment, yet the Defendants want to keep the other Plaintiffs' money and deny court access to all the Plaintiffs. Response to Motion to Dismiss dated April,0-0 WEST RIVERSIDE SUITE SPOKANE. WASHINGTON 0 0 0/-0 FAX 0/-

21 Case :-cv-0-rjb Document Filed 0// Page of CONCLUSION Keller and Boling are state employees. No federal service is needed on them. Goodpaster has not proven why he is investigating state crime. Yakama delivered cigarettes are not contraband. At most a preliminary hearing should be held to determine Goodpaster's participation, whether state or federal. The Motion should be denied. DATED this th day of April, 0. 0 sl Robert E. Kovacevich ROBERT E. KOVACEVICH, # Attorney for Plaintiffs sl Aaron L. Lowe AARON L. LOWE, #0 Attorney for Plaintiffs 0 sl Randal B. Brown RANDAL B. BROWN, # Attorney for Plaintiffs Response to Motion to Dismiss dated April, 0 - A PROFESSIONAL LIMITED LIABiLITY COMPANY WEST RIVERSIDE SUITE SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-

22 Case :-cv-0-rjb Document Filed 0// Page of 0 0 CERTIFICATE OF SERVICE I hereby certify that on the th day of April, 0, I electronically filed the foregoing Plaintiffs' Response to Federal Defendants' Motion to Dismiss Dated April, 0, with the Clerk of the Court using the CM/ ECF System which will send a notice ofelectronic filing to the following: Alicia 0. Young Attorney General's Office Revenue and Finance Division P.O. Box 0 Olympia, WA 0-0 (0) -00 AliciaO@atg.wa.gov David M. Hankins Attorney General's Office Revenue and Finance Division P.O. Box 0 Olympia, WA 0-0 (0) - david.hankin~atg.wa.gov Andrew Krawczyk Attorney General's Office Revenue and Finance Division P.O. Box 0 Olympia, W A 0-0 (0) -0 andrewk@atg.wa.gov DATED this th day of April, 0. s/ Robert E. Kovacevich ROBERT E. KOVACEVICH, WSBA# Attorney for Plaintiff Robert R. Comenout Sr. Response to Motion to Dismiss dated April, 0 - WEST RIVERSIDE SUITE SPOKANE. WASHINGTON 0-0 0/-0 FAX 0/-