20 I. INTRODUC'T'ION AND STATEMENT OF GROUNDS. 23 held by Defendants, but not returned to Plaintiffs. But, as conclusively demonstrated by the

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1 IN THE TULALIP TRIBAL COURT 6 TULALIP INDIAN RESERVATION 7 TULALIP, WASHINGTON g HAZEN GRAHAM SHOPBELL, enrolled Tulalip Tribal member, et ux., 9 No. TUL-CV-GC Plaintiffs, 10 DEFENDANTS' MOTION FOR 11 V. MEMORANDUM IN SUPPORT OF 12 STATE OF WASHINGTON MOTION DEPARTMENT OF FISH AND 13 WILDLIFE; JIM UNSWORTH, Director, State of Washington Department of Fish and Wildlife; WENDY WILLETTE, Detective, State of Washington Department of Fish and 16 Wildlife; JOHN DOES 1-6, Law Enforcement Officers, State of 17 Washington Department of Fish and 18 Wildlife, 19 Defendants. 20 I. INTRODUC'T'ION AND STATEMENT OF GROUNDS The only issue left in this case after this Court's Ruling on Defendants' Motion to Dismiss is whether the Court should order the return of a Samsung tablet allegedly seized and 23 held by Defendants, but not returned to Plaintiffs. But, as conclusively demonstrated by the 24 declarations accompanying this Motion, Defendants are not in possession of the tablet in question. For that reason, Plaintiffs cannot establish a crucial element of their replevin claim: that WDFW is in possession of their property. WDFW is, therefore, entitled to summary DEFENDANTS' MOTION FOR I ATTORNEY GENERAL OF WASHINGTON

2 1 judgment. Furthermore, because the evidence shows that WDFW is not in possession of the 2 Samsung tablet, this Court cannot effectively order Defendants to return that tablet; any such 3 order would be ineffective and futile. Because this Court cannot provide any effective relief to 4 redress Plaintiffs' remaining claim, they lack standing to maintain this case. For these reasons, 5 this Court should enter summary judgment in favor of Defendants, dismissing this matter in its 6 entirety. 7 II. RELIEF REQUESTED 8 Defendants, the State of Washington Department of Fish And Wildlife; Jim Unsworth, 9 Director, State of Washington Department of Fish and Wildlife; Wendy Willette, Detective, 10 State of Washington Department of Fish and Wildlife; John Does 1-6, Law Enforcement 11 Officers, State of Washington Department of Fish and Wildlife (collectively, WDFW), move 12 pursuant to Tulalip Tribal Code (5)(b) for summary judgment in favor of WDFW 13 dismissing this matter in its entirety. 14 III. STATEMENT OF ISSUES 15 The declarations from WDFW employees accompanying this motion establish that 16 WDFW is not currently in possession of any property seized from the Shopbell residence, 17 including a Samsung tablet. Does Plaintiffs' claim for return of property fail because they 18 cannot establish an indispensable element of such claim (that WDFW is currently is possession 19 of property seized from the Shopbell residence), warranting summary judgment dismissing 20 Plaintiffs' lawsuit? And do Plaintiffs lack standing because this Court cannot provide any 21 relief that will effectively redress Plaintiffs' claims, warranting summary judgment dismissing 22 Plaintiffs' suit? DEFENDANTS' MOTION FOR MEMORANDUM IN SUPPORT 2 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

3 1 IV. EVIDENCE SUPPORTING MOTION FACTUAL BACKGROUND 2 A. Evidence Supporting Motion 3 This Motion is supported by the materials previously filed in this case and the 4 following declarations and attachments thereto, filed with this Motion: The Declaration of 5 Wendy Willette in Support of Defendants' Motion for Summary Judgment (Willette Decl.); the 6 Declaration of Jennifer Maurstad in Support of Defendants' Motion for Summary Judgment 7 (Maurstad Decl.); the Declaration of Carly Peters in Support of Defendants' Motion for 8 Summary Judgment (Peters Decl.); the Declaration of Anthony Jaros in Support of 9 Defendants' Motion for Summary Judgment (faros Decl.); the Declaration of Shawnn Vincent 10 in Support of Defendants' Motion for Summary Judgment (Vincent Decl.); the Declaration of 11 Chris Clementson in Support of Defendants' Motion for Summary Judgment (Clementson 12 Decl.); and the Declaration of Greg Dutton in Support of Defendants' Motion for Summary 13 Judgment (Dutton Decl.). 14 B. Factual Background The Warrant and Warrant Execution 16 As part of an investigation into suspected crimes related to illegal trafficking in 17 shellfish, unlawful catch accounting, and violations of RCW , WDFW Detective 18 Wendy Willette obtained a search warrant from Tulalip Tribal Court for the search of the 19 residence of Plaintiff Hazen Shopbell; the Shopbell residence is on the Tulalip Reservation. 20 Willette Decl. at 3. The warrant (signed by Judge Colegrove) was signed on June 9, Id. 21 The warrant was executed at the Shopbell residence on June 13, Maurstad Decl. at 2; 22 Peters Decl. at 2; Vincent Decl. at 2. WDFW Sergeant Jennifer Maurstad, Officer Carly 23 Peters, Officer Anthony Jaros, and Officer Shawrn Vincent participated in the execution of the 24 warrant. Maurstad Decl. at 2; Peters Decl. at 2; Vincent Decl. at 2; Jaros Decl. at 2. DEFENDANTS' MOTION FOR MEMORANDUM IN SUPPORT 3 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

4 1 2. Seizure of Property From the Shopbell Residence and the Handling of That Property 2 In the course of executing the warrant, WDFW seized various items, including 3 computer equipment, cell phones, and several electronic tablets. Maurstad Decl. at 2; Ex. A; 4 Peters Decl. at 2; Vincent Decl. at 2; Jaros Decl. at 2. In particular, WDFW's records, and the 5 declarations filed herewith, indicate that WDFW seized three electronic tablets from the 6 Shopbell residence: a white Samsung 16 gigabyte tablet with a cracked screen (assigned 7 evidence number WA ); a black Samsung tablet (assigned evidence number WA ; and a gray Samsung 16 gigabyte notebook with a cracked screen with a leather case 9 (assigned evidence number WA ). Willette Decl. at 4; Dutton Decl., Ex. A; Maurstad 10 Decl., Exs. A-D. 11 Each of the WDFW officers involved in the execution of the search warrant at the 12 Shopbell residence and processing of evidence seized therefrom was familiar with WDFW's 13 evidence handling procedures and the evidence seized from the Shopbell residence was 14 handled consistently with those procedures. Willette Decl. at 4-5; Maurstad Decl. at 2; Peters 15 Decl. at 2-3; Vincent Decl. at 2-3; Jaros Decl. at 2; Clementson Decl. at 2-3; Dutton Decl. at At the Shopbell residence, each item of property seized was photographed, tagged, and 17 logged onto a Search Warrant Service Return Notification of Items Seized form. Maurstad 18 Decl. at 2; Exs. A-D; Peters Decl. at 2-3; Vincent Decl. at 2-3; Jaros Decl. at 2. All property 19 seized was delivered by Sergeant Maurstad and Officer Peters to Detective Chris Clementson, 20 who then stored the seized property in his locked office at the WDFW offices in Mill Creek 21 until he delivered it to Detective Willette the following day. Maurstad Decl. at 2-3; Peters 22 Decl. at 2-3; Clementson Decl. at 3; Willette Decl. at 4. Detective Willette and Property and 23 Evidence Custodian Greg Dutton then processed all the seized property, including logging the 24 property through WDFW's evidence intake procedures. Willette Decl. at 4; Dutton Decl. at 3; Ex. A. All property seized from the Shopbell residence was securely stored at the WDFW Mill DEFENDANTS' MOTION FOR 4 ATTORNEY GENERAL OF WASHINGTON 11 hinx street SE

5 1 Creek evidence storage facility, Willette Decl. at 4-5, Dutton Decl. at 2-4, except that certain 2 electronic equipment (including the three tablets seized from the Shopbell residence) was 3 provided to an agent of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives 4 (ATF) for imaging. Willette Decl. at 4. Chain of custody forms were completed to document 5 the chain of custody of property provided to and returned from the ATF agent. Willette Decl. 6 at 4-5; Dutton Decl., Exs. B, C. On September 27, 2016, all property seized by WDFW from 7 the Shopbell residence, including the three tablets, was returned to the Shopbells. Willette g Decl. at 4; Dutton Decl. at 4. 9 However, Plaintiff Tia Anderson asserts that in addition to the three tablets noted 10 above, a fourth tablet, a black Samsung Galaxy tablet belonging to the Shopbell children, was 11 also seized by WDFW, but not returned. Affidavit of Tia Anderson in Support of Motion for 12 Entry of Order of Judgment of Default at 2. But, as reflected in the records documenting 13 WDFW's seizure of property from the Shopbell residence, and as far as the WDFW officers 14 involved in the search recall, three tablets, but not a fourth tablet, were seized from the 15 Shopbell residence, with all seized property being documented according to WDFW 16 procedures. Maurstad Decl. at 2; Ex. A-D; Peters Decl. at 2-3; Vincent Decl. at 2-3; Jaros 17 Decl. at 2. Each of the officers involved in execution of the search warrant at the Shopbell 18 residence, and those WDFW staff that were involved in handling, processing, storing, and 19 returning the evidence seized from the Shopbell residence, have declared that, to their 20 knowledge, WDFW neither seized nor possesses any additional tablet from the Shopbell 21 residence. Willette Decl. at 5; Maurstad Decl. at 3; Peters Decl. at 3; Vincent Decl. at 3; Jaros 22 Decl. at 2; Clementson Decl. at 3; Dutton Decl. at 5. Each officer has thoroughly searched for 23 the tablet and confirmed that WDFW does not possess it. Id. In particular, Evidence 24 Custodian Greg Dutton, who is responsible for inventorying and storing seized evidence, declares that he has thoroughly searched the evidence storage locations and has not located an additional tablet. Dutton Decl. at 4-5. DEFENDANTS' MOTION FOR 5 ATTORNEY GENERAL OF WASHINGTON

6 1 3. Procedural History of This Case 2 In this lawsuit, Plaintiffs made three claims: a claim for declaratory judgment, a claim 3 for injunctive relief, and a claim, for replevin/return of property seized by WDFW from the 4 Shopbell residence. Complaint at 6-7. Following this Court's ruling on Defendants' Motion to 5 Dismiss, all that remains of this lawsuit is the claim for return of property (replevin), this Court 6 having dismissed all other remaining claims. See Ruling on Defendants' Motion to Dismiss 7 for Lack of Jurisdiction at 7. 8 V. LEGAL AUTHORITIES AND ARGUMENT 9 A. Legal Standard for Summary Judgment 10 Under the Tulalip Tribal Code, a Defendant may seek summary judgment as to all or 11 part of any claim. Tulalip Tribal Code (5)(b). Under (5)(c), "[t]he 12 judgment sought shall be rendered if the pleadings, depositions, and admissions on file, 13 together with the affidavits, if any, show that there is no genuine issue as to any material fact 14 and that the moving party is entitled to judgment as a matter of law." Nearly identical 15 standards govern summary judgment under federal and state law, so federal and state cases 16 interpreting the summary judgment standard are instructive. 17 Under federal law, summary judgment is proper "if the pleadings, depositions, answers 18 to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 19 no genuine issue as to any material fact and that the moving party is entitled to a judgment as a 20 matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 48 (1986). "[A] 21 parry seeking summary judgment always bears the initial responsibility of informing the 22 district court of the basis for its motion, and identifying those portions of `the pleadings, 23 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 24 any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. DEFENDANTS' MOTION FOR MEMORANDUM IN SUPPORT 6 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

7 I If the moving party satisfies this initial burden, it is entitled to summary judgment 2 unless the non-moving party demonstrates the existence of "specific facts showing that there is 3 a genuine issue for trial." Id. at 324. "Where the record taken as a whole could not lead a 4 rational trier of fact to find for the non-moving party, there is no `genuine issue for trial."' 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct (1986). 6 In establishing that a genuine issue for trial exists, the non-moving party "must do more than 7 simply show that there is some metaphysical doubt as to the material facts." Id. at 586. "The 8 mere existence of a scintilla of evidence in support of the non-moving party's position is not 9 sufficient." Triton Energy Corp. v. Square D Co., 68 F. 3d 1216, 1221 (9th Cir. 1995). 10 And under Washington law, "summary judgment is proper if there is no genuine issue 11 of any material fact, if the moving party is entitled to judgment as a matter of law, and if 12 reasonable minds could reach only one conclusion from the evidence presented." Estate of 13 Becker v. Avco Corp., Wn.2d, 387 P.3d 1066, 1069 (2017). The moving party bears 14 the burden of establishing the absence of a genuine issue of material fact. Jacobsen v. State, Wn.2d 104,108, 569 P.2d 1152 (1977).. "[B]ut this does not relieve the nonmoving party of the 16 burden of producing evidence that would support a genuine issue for trial. The nonmoving 17 party must set forth specific facts showing a genuine issue and cannot rest on mere allegations. 18 Baldwin v. Sisters of Providence in Washington, Inc., 112 Wn.2d 127, 132, 769 P.2d (1989) (internal citations omitted). 20 In order to defeat a motion for summary judgment, the non-moving party must set forth 21 facts that are "evidentiary in nature." Overton v. Consol. Ins. Co., 145 Wn.2d 417, 430, P.3d 322 (2002). Ultimate facts or conclusions of fact are not sufficient. Id. "A material fact 23 is one upon which the outcome of the litigation depends, in whole or in part." Anica v. 24 Wal-Mart Stores, Inc., 120 Wn. App. 481, 487, 84 P.3d 1231 (2004). If the non-moving party "can only offer a `scintilla' of evidence, evidence that is `merely colorable,' or evidence that is not significantly probative,"' the non-moving party cannot defeat a summary judgment DEFENDANTS' MOTION FOR 7 ATTORNEY GENERAL OF WAsffiNGTON 11 Washington street SE

8 1 motion. Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 736, 150 P.3d 633 (2007) 2 (quoting Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987)). The non- 3 moving party "may not rely on speculation, on argumentative assertions that unresolved factual 4 issues remain, or on having its affidavits considered at face value." Id. Rather, the non- 5 moving party "must set forth specific facts that sufficiently rebut the moving party's 6 contentions and disclose that a genuine issue as to a material fact exists. Ultimate facts or 7 conclusions of fact are insufficient; conclusory statements of fact will not suffice." Seiber, Wn. App. at (citations omitted). 9 B. Because WDFW Does- Not Possess the Tablet, Plaintiffs Cannot Establish The 10 Elements of Their Return of Property Claim 11 As noted above, all that remains in this case is Plaintiffs' claim for return of property, 12 in which Plaintiffs claim that WDFW remains in wrongful possession of certain personal 13 property and seek an order compelling return of that property.' See Complaint at 7. Of course, 14 a sine qua non of Plaintiffs' return of property claim is establishing that WDFW "remains in 15 possession of," id., personal property seized from the Shopbell residence. If Plaintiffs cannot 16 establish that WDFW is currently in possession of the property at issue, their claim must 17 necessarily fail because they cannot establish an indispensable element of their claim. 18 As discussed in the accompanying declarations and above, WDFW is not currently in 19 possession of the only property at issue (a black Samsung tablet).2 Willette Decl. at 5; 20 Maurstad Decl. at 3; Peters Decl. at 3; Vincent Decl. at 3; Jaros Decl. at 2; Clementson Decl In this action, Plaintiffs do not seek damages from Defendants for deprivation or loss of the property at issue, See Complaint. Nor could they. This Court's Ruling on Defendants' Motion to Dismiss makes clear that all that remains in this case is the issue of return of property and no other issue. Ruling at 5-7. So, damages for 22 deprivation or loss of the seized property cannot be at issue in this case. Therefore, the claim for return of property must fail if WDFW is not currently in possession of the property. Of course, Plaintiffs may seek 23 damages from Defendants for deprivation or loss of seized property through Washington's tort claim process 24 under chapter 4.92 RCW. So, assuming WDFW did, in fact, seize the black Samsung tablet (which it strongly disputes), Plaintiffs have a clear remedy for loss of that property in the form of a tort claim against the agency. 2 It is WDFW's position that this fourth, black Samsung tablet was not seized by WDFW, contrary to Ms. Anderson's assertion that it was. But even assuming it was seized, WDFW is not currently in possession of that tablet, and thus Plaintiffs cannot maintain an action for return of property. DEFENDANTS' MOTION FOR 8 ATTORNEY GENERAL OF WASHINGTON

9 1 at 3; Dutton Decl. at 4-5. Plaintiffs cannot plausibly refute WDFW's declarants' assertions 2 that WDFW does not possess the black Samsung tablet. The WDFW personnel in a position to 3 know whether the agency possesses the tablet (those involved in the search for and the 4 handling, processing, and storage of the seized evidence) have all stated that the agency does 5 not have the tablet. No evidence Plaintiffs can produce can plausibly refute these assertions. 6 Even assuming the assertions made in the Anderson Affidavit are true ()VDFW disputes this 7 assertion, believing that Ms. Anderson is mistaken in her recollection), the Anderson Affidavit 8 does not, and cannot, establish that WDFW is currently in possession of the black Samsung 9 tablet. 10 In short, Plaintiffs cannot possibly produce any evidence to establish that WDFW is 11 currently in possession of the tablet. Thus, no genuine issue of material fact exists with respect 12 to whether WDFW possesses the tablet. Therefore, WDFW is entitled to summary judgment 13 dismissing Plaintiffs claim for return of property because they cannot establish an 14 indispensable element of that claim. 15 C. Plaintiffs Lack Standing to Maintain This Lawsuit Because This Court Cannot 16 Provide Effective Relief to Redress Their Remaining Claim Since WDFW Does Not Possess Any Property Seized From the Shopbell Residence 17 A fundamental prerequisite for maintaining a lawsuit in any court is that the court must 18 be able to redress the wrong the plaintiff complains of. If the court cannot provide redress, the 19 plaintiff lacks standing and the case must be dismissed. 20 In federal court, this "redressability" requirement is a component of justiciability and 21 Article III standing. As the Ninth Circuit Court of Appeals has observed: "It is a prerequisite 22 of justiciability that judicial relief will prevent or redress the claimed injury, or that there is a 23 significant likelihood of such redress. Redressability in this sense is an aspect of standing." 24 Gonzales v. Gorsuch, 688 F.2d 13, 17 (9th Cir. 1982) (internal citations omitted). And, as the U.S. Supreme Court stated, "when a plaintiff's standing is brought into issue the relevant DEFENDANTS' MOTION FOR 9 ATTORNEY GENERAL OF WASHINGTON

10 inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision. Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation." Simon v. E. Ky. Welfare Rights Org., 4 U.S., 38, 96 S. Ct (1976). Put another way: "[t]o satisfy [the redressability elements of standing], a plaintiff must show in the first instance that the court is capable of granting the relief sought." Love v. Vilsack, 908 F. Supp. 2d 139, (D.D.C. 2012). "The redressability requirement ensures that a plaintiff `personally would benefit in a tangible way from the court's intervention."' Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir. 2000) (citations omitted). Under Washington State Law, too, redressability is a component of standing: "[F]or a plaintiff to receive `standing' to bring a lawsuit, it must allege a personal injury fairly traceable to the challenged conduct and likely to be redressed by the requested relief." High Tide Seafoods v. State, 106 Wn.2d 695, 702, 7 P.2d 411 (1986) (emphasis added). And redressability is expressly a component of standing in most other states of the United States.3 No matter the court, the redressability requirement is in large part a prudential one: it prevents the expenditure of judicial resources on cases where the court cannot provide an 3 See, e.g., New York Times Co. v. Superior Court, 51 Cal. 3d 453, 466, 796 P.2d 811, 273 Cal. Rptr. 98 (1990); Nielsen v. State, 236 Conn. 1, 6-7, 670 A.2d 1288 (1996); Ctr. for a Sustainable Coast, Inc, v. Turner, 324 Ga. App. 762, 767, 751 S.E.2d 555 (2013); Boundary Backpackers v. Boundary Cty., 128 Idaho 371, 375, 913 P.2d 1141 (1996); Greer v. Ill. Hous. Dev. Auth., 122 Ill. 2d 462, 488, 524 N.E.2d 561 (1988); Schulz v. State, 731 N.E.2d 1041, 1044 (Ind. Ct. App. 2000); Kendall v. Howard Cty., 431 Md. 590, 603, 66 A.3d 684 (2013); Gazelka v. St. Peter's Hosp., 379 Mont. 142, 145, 347 P.3d 1287 (2015); Duncan v. State, 166 N.H. 630, , 102 A.3d 913 (2014); People ex rel. Spitzer v. Grasso, 54 A.D.3d 180, 198, 861 N.Y.S.2d 627 (N.Y. App. Div. 2008); City of Memphis v. Hargett, 414 S.W.3d 88, 98 (Tenn. 2013); Heckman v. Williamson Cty., 369 S.W.3d 137, (Tex. 2012); Mattaponi Indian Tribe v. Commonwealth ex rel. State Water Control Bd., 1 Va. 366, 376, 541 S.E.2d 920 (2001). Cases from many other states are in accord; Defendants can provide citations to those cases at the Court's request. DEFENDANTS' MOTION FOR 10 ATTORNEY GENERAL of WASfUNGTON

11 1 effective, concrete remedy, freeing courts to decide cases where it can provide such a remedy. 2 In other words, it prevents pointless cases from crowding courts' dockets. As the Illinois 3 Supreme Court observed: "Together with allied doctrines like mootness, ripeness, and 4 justiciability, the standing doctrine is one of the devices by which courts attempt to cull their 5 dockets so as to preserve for consideration only those disputes which are truly adversarial and 6 capable of resolution by judicial decision." Greer v. Ill. Hous. Dev. 4uth., 122 Ill. 2d 462, 488, N.E.2d 561 (1988). 8 Furthermore, the redressability requirement allows courts to focus on their proper 9 role--deciding actual controversies and providing effective, concrete relief rather than 10 weighing in on abstract or hypothetical questions. Without the ability to redress the plaintiff's 11 complaint, any decision by a court is "gratuitous" in nature and beyond the proper role of 12 courts. Simon, 4 U.S. at 38. As stated by the New Hampshire Supreme Court: 13 The requirement that parties have personal legal or equitable rights that are 14 capable of being redressed by the court tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a 15 debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. 16 Duncan v. State, 166 N.H. 630, 643, 102 A.3d 913 (2014) (internal quotations and 17 citations omitted). 18 In this case, the Court cannot redress the injury Plaintiffs complain of, WDFW's 19 alleged seizure of and failure to return the Samsung tablet, because WDFW does not possess 20 that tablet. Simply put, this Court cannot effectively order WDFW to return a tablet that it 21 does not possess. Again, as explained in the accompanying declarations, and as discussed 22 above, WDFW seized three, and only three, tablets from the Shopbell residence and all three 23 tablets were returned. Maurstad Decl. at 2; Peters Decl. at 2-3; Vincent Decl. at 2-3; Jaros 24 Decl. at 2; Willette Decl. at 4-5; Dutton Decl. at 4-5. Nevertheless, upon learning of the allegation that a fourth Samsung tablet had been seized from the Shopbell residence, WDFW DEFENDANTS' MOTION FOR I I ATTORNEY GENERAL OF WASHINGTON

12 1 staff undertook a search for the tablet in order to verify that it was not in WDFW's possession. 2 Willette Decl. at 5; Maurstad Decl. at 3; Peters Decl. at 3; Vincent Decl. at 3; Jaros Decl. at 2; 3 Clementson Decl. at 3; Dutton Decl. at 4-5. No tablet was located. Id. WDFW does not 4 possess a fourth tablet, or any other property seized from the Shopbell residence. Id. As 5 discussed above, Plaintiffs cannot effectively refute WDFW's declarants' assertion that 6 WDFW does not possess the Samsung tablet. 71 If Plaintiffs were to prevail on the merits of their claim, and if this Court ordered return of the fourth tablet, WDFW would be unable to comply with that order because it does not 9 possess the tablet in question. Therefore, the entry of an order requiring WDFW to return the 10 tablet would be ineffective and futile. For that reason, Plaintiffs do not present a redressable 11 case to this Court. And they, therefore, lack standing to maintain this case. 12 VI. CONCLUSION 13 Defendants respectfully ask this Court to grant summary judgment and dismiss the 14 Plaintiffs' Complaint. Since WDFW does not possess the black Samsung tablet, Plaintiffs 15 cannot establish an essential element of their claim: that WDFW is currently in possession of 16 property seized from the Shopbell residence. Furthermore, Plaintiffs lack standing because this 17 Court cannot provide effective relief that redresses Plaintiffs' claim: since WDFW does not 18 possess the black Samsung tablet, this Court cannot effectively order WDFW to return it to 19 Plaintiffs. 20 Dated this 6th day of April, ROBERT W. FERGUSON, 22 Attorney General 23 v,. 24 MICHAEL M. YO G, WS No Assistant Attorney General DEFENDANTS' MOTION FOR MEMORANDUM IN SUPPORT 12 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

13 1 PROOF OF SERVICE 2 I certify that I served a copy of this document on all parties or their counsel of record 3 on the date below as follows: 4 US Mail Postage Prepaid via Consolidated Mail Service and 5 Gabriel S. Galanda 6 Bree Black Horse Tulalip Tribal Bar Members 7 Galanda Broadman PLLC th Avenue NE, Suite L1 8 Post Office Box Seattle, Washington ABC/Legal Messenger 11 State Campus Delivery 12 Hand delivered by 13 I certify under penalty of perjury under the laws of the state of Washington that the 14 foregoing is true and correct. 15 DATED this 6th day of April, 2017, at Olympia, Washington Dominique Starnes Legal Assistant -' DEFENDANTS' MOTION FOR 13 ATTORNEY GENERAL OF WASHNGTON