Case: 09-17349 08/30/2010 Page: 1 of 24 ID: 7456555 DktEntry: 43-1 DENNIS J. WHITTLESEY DICKINSON WRIGHT PLLC 1875 Eye Street, NW Suite 1200 Washington, DC 20006 Telephone: 202-659-6928 Facsimile: 202-659-1559 Email: dwhittlesey@dickinsonwright.com UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WATER WHEEL CAMP RECREATIONAL AREA, INC., and Plaintiff / Cross-Appellant, ROBERT JOHNSON, v. Plaintiff / Appellee, GARY LaRANCE, in his official capacity as Chief and Presiding Judge of the Colorado River Indian Tribal Court, and JOLENE MARSHALL, in her capacity as Clerk of the Colorado River Indian Tribal Court, Appellants / Cross-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case Nos. 09-17349 & 09-17357 (CONSOLIDATED) District Court Case No.: 2:08-cv- 00474 WATER WHEEL'S EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 & FRAP 8(a) FOR ORDER ENJOINING TRIBAL COURT PARTIES FROM ISSUING WRIT OF RESTITUTION ORDERING CRIT TRIBAL POLICE TO EVICT WATER WHEEL NOW RULING REQUESTED PRIOR TO CLOSE OF BUSINESS ON WEDNESDAY, SEPTEMBER 8, 2010.
Case: 09-17349 08/30/2010 Page: 2 of 24 ID: 7456555 DktEntry: 43-1 I. INTRODUCTION Pursuant to Circuit Court Rule 27-3(a) and Federal Rule of Appellate Procedure 8(a)(2), Cross-Appellant Water Wheel Camp Recreational Area, Inc. ( Water Wheel ) files this Emergency Motion. Water Wheel asks this Court to immediately enjoin Cross-Appellees, The Honorable Gary LaRance, a judge for the Colorado River Indian Tribes' ("CRIT") Tribal Court ( Tribal Court ), and Tribal Court Chief Court Clerk Jolene Marshall, together with their successors and any person(s) acting by or through them (collectively known herein as "Tribal Court Parties"), from issuing or filing with the Tribal Court the [Proposed] Writ of Restitution ("Writ") filed by CRIT in Tribal Court on August 17, 2010. Water Wheel further requests an order enjoining the Tribal Court Parties from otherwise taking any action to authorize the eviction of Water Wheel from its leasehold unless and until this Court has ruled on the merits of the parties' cross-appeals which have been fully briefed and are pending before this Court. Water Wheel previously sought the same injunctive relief from the U.S. District Court for the District of Arizona ( District Court ) on November 10, 2009. Water Wheel, et al. v. Gary LaRance, et al., 2:08-cv-00474-DCG (D. Ariz.), Motion for Stay (Dkt. 89). The District Court denied that Motion (see CRIT Motion, Ex. 6), as discussed infra. 1
Case: 09-17349 08/30/2010 Page: 3 of 24 ID: 7456555 DktEntry: 43-1 On August 17, 2010, CRIT filed in Tribal Court the motion which is the subject of this Emergency Motion. See Motion for Issuance of Writ of Restitution ( CRIT Motion ) attached hereto as Exhibit A, and [Proposed] Writ of Restitution ( Writ ), attached hereto as Exhibit B. 1 That Motion requests that Judge LaRance order the Tribal Police to immediately forcibly evict Water Wheel and forcibly remove Water Wheel's agents and personal property pursuant to the very Tribal Court Judgment and Order which is before this Court and which would be invalidated in toto by a ruling here in Water Wheel s favor. The urgency of this matter is underscored by the District Court's refusal to stay the Tribal Court jurisdiction and the fact that Judge LaRance has set a hearing on the CRIT Motion for the afternoon of Friday, September 10. If he grants the CRIT Motion at that hearing, the Tribal Police will be ordered to immediately enter the Water Wheel property and execute a forcible eviction and property confiscation: Water Wheel would have no recourse because the eviction will have been executed by CRIT, an entity not subject to this Court's jurisdiction. The only remedy available to Water Wheel is for this Court to enjoin Judge LaRance now, because CRIT has sovereign immunity and, thus, is not subject to this Court's 1 In support of the CRIT Motion, CRIT filed the Declaration of tribal attorney Winter King ( Declaration ), which includes portions of a transcript of a deposition of Appellee Robert Johnson, dated February 29, 2008, attached hereto as Exhibit C. 2
Case: 09-17349 08/30/2010 Page: 4 of 24 ID: 7456555 DktEntry: 43-1 jurisdiction including any remedial post-eviction orders issued here or in or any other federal court. As is discussed, infra, the issue on appeal in this Court is whether the Tribal Court had the jurisdictional authority over Water Wheel to order the very eviction CRIT now seeks to implement. This issue has been fully briefed and awaits resolution by this Court. Significantly, the CRIT Motion was filed only six (6) days after Water Wheel filed its final Reply (Dkt. 41), which Motion ostensibly ignores the existence of the appeal itself despite CRIT's actual participation through its Motion to participate as an amicus curiae (Dkt. 19). Rather than await any decision here, CRIT is asking its Tribal Court to (1) ignore this appeal, (2) negate any potential ruling in Water Wheel's favor under Montana v. United States, 450 U.S. 544 (1981), and (3) once again exercise the very jurisdiction over Water Wheel which is directly at issue in this appeal. If Judge LaRance should order the CRIT Tribal Police to evict Water Wheel, the eviction and forcible removal will be immediate and CRIT will be permanently in possession of the property because Water Wheel will have no legal ability to compel its retreat. Such a result would render both moot and from a practical standpoint impossible any meaningful review or resolution of this Lease dispute in the manner and the forum to which CRIT and Water Wheel agreed in the Lease 3
Case: 09-17349 08/30/2010 Page: 5 of 24 ID: 7456555 DktEntry: 43-1 (and which Water Wheel consistently has argued is proper). Thus, Judge LaRance will have "won" the appeal by his own hand through fait accompli, rather than Ninth Circuit determination. Such cannot be the lawful and just result which the appellate procedures were established to ensure. II. BACKGROUND On March 11, 2008, Water Wheel and its CEO Robert Johnson filed litigation in the District Court seeking declaratory and injunctive relief to the effect that the Tribal Court lacked jurisdiction over an eviction action brought by CRIT against both Water Wheel and Johnson, personally. See Resp. Br. of Appellee and Cross-Appellant's Principal Br. ( WW Resp. Br. ), at 1 (Dkt. 33). More specifically, Water Wheel and Johnson sought review of a Tribal Court Order (and a Tribal Court of Appeals decision upholding the same) finding that the Tribal Court had jurisdiction over both Water Wheel and Johnson, evicting them, and assessing approximately $4 million in damages against Water Wheel and Johnson personally (a ruling which required piercing the corporate veil as a sanction, and not based on any actually-adjudicated factual determination). ER-122-23. On September 23, 2009, following briefing and oral argument, District Court Judge David G. Campbell ruled that the Tribal Court was without jurisdiction over Johnson. ER-15. At the same time, and despite finding that Water Wheel's 4
Case: 09-17349 08/30/2010 Page: 6 of 24 ID: 7456555 DktEntry: 43-1 argument carried "persuasive force," Judge Campbell found that the Tribal Court had jurisdiction over Water Wheel to order eviction and money damages. Id. at 11. On October 22, 2009, the Tribal Court Parties conceded this Court s jurisdiction over the matters before Judge Campbell by filing their Notice of Appeal with this Court seeking to overturn that portion of the District Court's ruling which granted relief to Johnson. WW Resp. Br., at 1. The next day, October 23, 2009, Water Wheel filed its Notice of Appeal from that portion of the District Court's Order which denied relief to Water Wheel. Id. The parties have now completed briefing in this case and it is ready for this Court's consideration. This Emergency Motion follows a previous attempt by Water Wheel to secure judicial protection from a tribal self-help eviction by CRIT. See Water Wheel, et al. v. Gary LaRance, et al., 2:08-cv-00474-DCG (D. Ariz.), Exhibit A to Motion for Stay (Dkt. 89-1), attached hereto as Exhibit D. On November 10, 2009, Water Wheel filed in the District Court its Motion for stay pending appeal. See CRIT Motion, Ex. 5. The District Court denied Water Wheel's motion with the conclusion the Tribal Court Parties were "likely to prevail" on Water Wheel's appeal for all "the reasons set forth in [its own] order on the merits." See CRIT Motion, Ex. 6 p. 2. 2 2 It is not surprising that the District Court denied Water Wheel s motion for stay on the basis that it did not believe Water Wheel would prevail on the merits, because the District Court had just recently entered its Order finding that the Tribal 5
Case: 09-17349 08/30/2010 Page: 7 of 24 ID: 7456555 DktEntry: 43-1 In denying the stay, the District Court refused to apply the "sliding scale" analysis proposed by Water Wheel, wherein a party may be granted a stay when "serious legal questions are raised and the balance of hardships tips in its favor." CRIT Motion, Ex. 6, p. 2. The Court limited its assessment to its perception of Water Wheel's likelihood for success on the merits, and gave no consideration to any other factor. Id. As explained, infra, the standard for stay proposed by Water Wheel is the standard adopted by this Court. Accordingly, the District Court's denial was inappropriate and the instant Emergency Motion for Stay should be entered. On May 14, 2010, the Tribal Court Parties filed their Principal Brief (Dkt. 13) in this Court. On May 21, 2010, only one week after the Tribal Court Parties filed their brief, CRIT filed its Motion for Leave to File an Amicus Curiae Brief (Dkt. 19), in support of the Tribal Court Parties' May 14 brief. On May 26, 2010, CRIT filed a Motion to Take Judicial Notice of Public Records and Tribal Code (Dkt. 25), in which it requested that this Court take notice Court did have the very jurisdiction over Water Wheel being contested on appeal. CRIT s present Motion and attempt to end-run the appellate process, filed just days after the completion of briefing in this Court, suggests that CRIT does not share the confidence of the District Court that Water Wheel will not prevail on the merits. One thing is certain: without the injunctive relief sought by Water Wheel in this Emergency Motion, Water Wheel s prospects of meaningful success on the merits will indeed drop to zero a wholly improper and inequitable result. 6
Case: 09-17349 08/30/2010 Page: 8 of 24 ID: 7456555 DktEntry: 43-1 of materials not before the District Court and, thus, not a matter of record in this case. 3 On June 28, 2010, Water Wheel and Johnson filed their Principal and Reply Brief (Dkt. 33) arguing, respectively, that the District Court incorrectly found that the Tribal Court had jurisdiction over the Tribe s eviction action against Water Wheel, and correctly held that the Tribal Court was without jurisdiction over Johnson. On July 28, 2010, the Tribal Court Parties filed their Reply/Response Brief (Dkt. 37). Briefing was concluded on August 11, 2010, when Water Wheel filed its Reply Brief (Dkt. 41). Although the issue of whether the Tribal Court had jurisdiction to issue the Order allowing CRIT to evict Water Wheel is now pending before this Court, CRIT now is asking the Tribal Court to continue its exercise of jurisdiction over Water Wheel. See CRIT Motion, 2-3. To reiterate and emphasize, CRIT has requested Judge LaRance to immediately issue the Writ, and he is free to do so at any time. If and when that Writ is issued, the CRIT Tribal Police are commanded to execute the Writ and forcibly evict Water Wheel and its agents, and confiscate 3 Although its amicus brief has yet to be considered by the Merits Panel, CRIT receives electronic notice and service of all documents filed herein and is fully aware of the procedural status. See Water Wheel Recreational Area, Inc., et al. v. Gary LaRance, et al., No. 09-17349, General Docket, Attorneys of Record. 7
Case: 09-17349 08/30/2010 Page: 9 of 24 ID: 7456555 DktEntry: 43-1 its property. See Writ at 1. The eviction must be completed within 10 days of issuance of the Order. Id. at 2. While Judge LaRance has scheduled a hearing on the CRIT Motion in his court, the reality is that he can issue the Writ at that hearing, meaning that it would be immediately enforceable and Water Wheel would have no recourse. Eviction and property confiscation will be completed immediately after the CRIT Police leave the Tribal Court. III. LEGAL ARGUMENT A. Standard A party seeking relief under FRAP 8(a) and Circuit Court Rule 27-3(a) must establish that: (1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of relief; 3) the balance of equities tips in its favor; and 4) a stay is in the public interest. See Am. Trucking Ass'n, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009); Humane Soc'y of the U.S. v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009). This Court has ruled that the courts should balance the four elements when determining whether injunctive relief is proper, and a stronger showing as to one element may offset a weaker showing as to another. See Alliance for the Wild Rockies v. Cottrell, 2010 U.S. App. Lexis 15537, *9-10 (9th Cir. July 28, 2010) ("a stronger showing of irreparable harm to plaintiff might offset a lesser showing of 8
Case: 09-17349 08/30/2010 Page: 10 of 24 ID: 7456555 DktEntry: 43-1 likelihood of success on the merits") (emphasis added, additional citation omitted). That decision confirmed that the Ninth Circuit courts should apply a "sliding scale" analysis, wherein an "injunction could issue where the likelihood of success is such that 'serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor.'" Id. at *10. A party that satisfies the "serious questions" requirement may be granted an injunction if it can also show that the balancing of equities tips in its favor and the stay is in the public interest. Id. at *10-11. B. Water Wheel Can Establish The Requisite Elements, And Is Thus Entitled To A Stay Pending Resolution Of Appeal 1. Water Wheel Has Raised Serious Questions Going to the Merits As stated above, the District Court refused to issue Water Wheel's requested stay pending appeal because the Court Campbell did not believe that Water Wheel was likely to succeed on the merits. CRIT Motion, Ex. 6 at 2. In doing so, however, the District Court wrongfully rejected the "serious questions" test which provides that an injunction may issue when the moving party shows "sufficiently serious questions going to the merits to make them a fair ground for litigation and that the balance of hardships tip[s] decidedly toward [the moving party]." Alliance for the Wild Rockies, at *15. 9
Case: 09-17349 08/30/2010 Page: 11 of 24 ID: 7456555 DktEntry: 43-1 There is little doubt that Water Wheel has raised serious questions deserving this Court's consideration (and, as discussed below, will experience irreparable harm and the equities lie in Water Wheel's favor). Given the apparent exigencies of the circumstances and the duplicative nature of the arguments, to establish the merits of its appeal, Water Wheel respectfully references pages 52-69 of its initial brief on appeal (Dkt. 33), and its reply brief (Dkt. 41). Cf. Alliance for the Wild Rockies, at *16 (reciting 10th Circuit's similar standard under which "a movant need only show questions going to the merits, so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation"). The crux of Water Wheel's argument, however, is a simple one: under the seminal case of Montana v. United States, supra, the Tribal Court was without jurisdiction over the non-indian corporation, Water Wheel, to order the eviction and money damages. The Tribal Court's invocation of jurisdiction, based upon an after-enacted Tribal Ordinance to which Water Wheel never consented and thus, pursuant to the terms of its lease with the Tribe, cannot be bound was erroneous. The District Court affirmed this ruling and consequently impermissibly broadened the narrow exceptions of Montana. Water Wheel has fully briefed the merits of its appeal and articulated the reasons why the District Court s determination regarding Tribal Court jurisdiction 10
Case: 09-17349 08/30/2010 Page: 12 of 24 ID: 7456555 DktEntry: 43-1 was incorrect. This Court should be permitted to conduct a more deliberate investigation" of the questions raised by Water Wheel, and that requires an immediate stay prohibiting the Tribal Court Parties from granting the CRIT Motion and Water Wheel s appeal. 2. If No Stay Is Entered, Water Wheel Will Suffer Irreparable Harm To establish this element, Water Wheel need only quote from the proposed Writ that has been presented to the CRIT Tribal Court for entry. Judge LaRance can execute the proposed Writ at any time, including during the September 10 hearing. Once he does so, the CRIT Police would be empowered and commanded to immediately execute its terms, forcibly evicting Water Wheel and confiscating its property. See Writ at 2. To fulfill the mandate of the Writ, the CRIT Police must, inter alia: 1. remove Water Wheel, including all of its agents and employees, from the premises... and defend possession of the premises for Plaintiff CRIT; [and] 2. supervise the removal of Water Wheel's possessions. See Writ at 1-2. And Water Wheel property on the site when the CRIT Police arrive and will be stored by CRIT and sold after 30 days. Id. at 2. Water Wheel is a camp and recreational facility. If it is evicted, and its property (and potentially at least some property belonging to those Water Wheel customers using the facilities) is confiscated, the reality is that there never will be 11
Case: 09-17349 08/30/2010 Page: 13 of 24 ID: 7456555 DktEntry: 43-1 be an opportunity for Water Wheel to re-enter the premises even if it prevails here. With its property lost and no legal remedies with which to combat CRIT's tribal sovereign immunity from suit, there will be nothing to which Water Wheel will be able to return. It would have no legal remedy through which it could reverse or seek restitution for what would then be an adjudicated illegal eviction. This de facto contingency is both real and addressed in Water Wheel's briefs on appeal, in which it argues that any determination by this Court that the Tribal Court rather than the Secretary of the Interior had jurisdiction to allow the Tribe directly to enforce the Lease would "eliminate[] the [Lease's] administrative remedy while the sovereign immunity of tribes bars relief against the Tribe." Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1075 (9th Cir. 1983) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). If this Court does not immediately enjoin the Tribal Court from executing the Writ, that inaction will foreclose any remedy to which this Court ultimately may find Water Wheel is entitled. Water Wheel will have won a Pyrrhic victory, for it would have the determination of the rights it asserted throughout the Tribal Court process, but no remedy to recover what was taken. This is the very definition of irreparable harm. Bannercraft Clothing Co., Inc. v. Renegotiation Bd., 466 F.2d 345, 353, n. 9 (D.C. Cir.1972), rev'd on other grounds, 415 U.S. 1 (1974) ("[t]he very thing which makes an injury irreparable is the fact that no remedy exists to repair it"); see also 12
Case: 09-17349 08/30/2010 Page: 14 of 24 ID: 7456555 DktEntry: 43-1 U.S. v. Am. Friends Serv. Comm., 419 U.S. 7, 11 (1974) ("inadequacy of available remedies goes... to the existence of irreparable injury"); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (determinations of whether an injury is irreparable and whether adequate legal remedies are available are "closely related, if not identical"). Cf. Cal. Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th Cir. 2009) (even monetary injuries may be irreparable if sovereign immunity will bar a party from ever recovering those damages in federal court). 3. The Balance of Equities Tips in Water Wheel's Favor The Water Wheel resort has existed at its present location since the mid- 1970s. If a stay is entered, thereby preserving the status quo for the several months needed to fully adjudicate the appeal, Water Wheel would be able to continue its decades-old business at the Colorado River. However, if Water Wheel is unable to secure a stay of execution pending appeal, the CRIT Police quickly will destroy that business. And while the harm to Water Wheel absent a stay will be both swift and permanent, granting the stay will cause to the Tribe little-to-no immediate harm. As stated above, the Water Wheel leasehold is long-standing. Even during the protracted process of this current dispute, the parties (Water Wheel and CRIT) have coexisted in relative peace. That is to say, while the status quo here 13
Case: 09-17349 08/30/2010 Page: 15 of 24 ID: 7456555 DktEntry: 43-1 obviously would prevent CRIT from taking immediate possession of the land, it will do no more than that. 4. A Stay of Execution is in the Public Interest The issue on appeal is one of vast significance with regard to the parameters of tribal court jurisdiction, with a potentially profound impact on non-indians and non-indian businesses doing business in Indian Country. Water Wheel here contends that the Tribal Court impermissibly and without jurisdiction entered against it an order of eviction and a $4 million judgment against it. Without the order here sought, the precedent that non-indians have limited remedies in federal courts will surely cause some new evaluations as to when and where companies should do business. It is in the public interest to have this matter resolved in the courts, and not via a police action mounted by CRIT. The CRIT Motion was filed only a few days after the parties concluded appellate briefing in this matter, and it is nothing more than a tribal maneuver designed to sidestep this Court's review of the very Tribal Court jurisdiction at issue by simply proceeding with an eviction which effectively would render moot this Court s review of the Water Wheel appeal. Cf. Plains Comm. Bank v. Long Fam. Land and Cattle Co., 554 U.S. 316, ; 128 S. Ct. 2709, 2716-17 (2008) (question of whether a tribal court has jurisdiction over a non-member of the tribe is a question of federal law and, thus, if federal court finds 14
Case: 09-17349 08/30/2010 Page: 16 of 24 ID: 7456555 DktEntry: 43-1 tribal court was without jurisdiction, tribal court judgment as to non-member is "necessarily null and void"); FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314 (9th Cir. 1990) ("federal courts are the final arbiters of federal law" and tribal court jurisdiction over non-member is a federal legal question). Without the stay, Water Wheel will be destroyed, regardless of the outcome of this appeal. And to permit that destruction, when the status quo has such a negligible effect upon CRIT, would serve no public interest. Instead, it is in the public's interest to understand that non-indians can do business with tribes, and that disputes arising between the two will nonetheless be decided under the proper laws and jurisdictional principles, and in accordance with the terms of any Lease or other contract, pursuant to the mechanisms agreed to by the parties. Nothing less is here at stake. It is certainly in the public interest that federal courts remain the final arbiters of federal law, including the question of the extent of tribal court jurisdiction over non-members. FMC, 905 F.2d at 1314 (scope of tribal court jurisdiction over non-members is a question of federal law). As such, federal courts must be permitted to determine whether a tribal court had jurisdiction to enter a judgment against a non-member before a tribal court avoids such judicial review by ordering execution of the judgment. This is especially true when a nonmember would have no remedy if federal courts later found that the tribal court 15
Case: 09-17349 08/30/2010 Page: 17 of 24 ID: 7456555 DktEntry: 43-1 was without jurisdiction to enter the judgment in the first instance. That is to say, tribal courts are not, and cannot be, the courts of last resort as to disputes which are controlled by federal law, especially when they propose to become the ultimate authority through default. Cf. Plains Commerce, 554 U.S. at ; 128 S. Ct. at 2724 (tribal sovereignty exists outside the basic structure of the Constitution" and the "Bill of Rights does not apply to Indian tribes... [and] Indian courts differ from traditional American courts in a number of significant respects") (additional citation and quotations omitted). IV. CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, Cross-Appellant Water Wheel respectfully requests that this Honorable Court grant this Motion and enter an order immediately enjoining Cross-Appellees, The Honorable Gary LaRance and CRIT Chief Court Clerk Jolene Marshall, together with their successors and any // // // // 16
Case: 09-17349 08/30/2010 Page: 18 of 24 ID: 7456555 DktEntry: 43-1 person(s) acting by or through them, from issuing the Writ filed by CRIT in its Tribal Court on August 17, 2010, or otherwise taking any action to evict Water Wheel unless and until this Court has ruled on the merits of the parties' pending appeals. Dated: August 30, 2010 Respectfully submitted, s/ Dennis J. Whittlesey Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 dwhittlesey@dickinsonwright.com 17
Case: 09-17349 08/30/2010 Page: 19 of 24 ID: 7456555 DktEntry: 43-1 CIRCUIT RULE 27-3 CERTIFICATE 1. ADDRESSES AND TELEPHONE NUMBERS OF ATTORNEYS/PARTIES: Attorney for Plaintiff/Cross-Appellant and Appellee DENNIS J. WHITTLESEY DICKINSON WRIGHT PLLC 1875 Eye Street, NW Suite 1200 Washington, DC 20006 Telephone: 202-659-6928 Facsimile: 202-659-1559 Email:dwhittlesey@dickinsonwright.com Attorney for Appellants/Cross- Appellees TIM VOLLMANN California Bar State Bar #58541 3301-R Coors Rd. N.W. #302 Albuquerque, NM 87120 Email: tim_vollmann@hotmail.com Telephone: 505-881-2627 2. FACTS AS TO EXISTENCE AND NATURE OF CLAIMED EMERGENCY On August 17, 2010, CRIT filed with the Tribal Court a Motion for Issuance of Writ of Restitution and a [Proposed] Writ of Restitution requesting that the Tribal Court exercise jurisdiction over Water Wheel and command the immediate and forcible eviction of Water Wheel. The aforementioned Motion and proposed Writ were served on counsel for Water Wheel in the afternoon on August 19, 2010 via first class mail. The validity of the Tribal Court's jurisdiction over the Water Wheel eviction action (which forms the basis for the Tribe's Motion and Writ) is the very issue pending, fully briefed and now ready for this Court's review and ruling. Should the i
Case: 09-17349 08/30/2010 Page: 20 of 24 ID: 7456555 DktEntry: 43-1 Tribal Court issue the Writ prior to this Court's examination of and ruling on the issues before it, the CRIT Tribal Police are immediately commanded to forcibly evict Water Wheel and its agents from the leasehold and remove and confiscate all of its personal property therefrom. Consequently, Water Wheel s appeal and this Court s review and ruling on the merits of the appeal will be rendered entirely moot. 3. NOTICE AND SERVICE On August 19, 2010, via telephone conversations, Counsel for Cross- Appellant, Water Wheel Camp Recreational Area, Inc. notified Tim Vollmann, counsel for the Appellants/Cross-Appellees, of their intent to file this Emergency Motion. Counsel for Water Wheel also certifies that on August 19, 2010, the Clerk of this Court and the Motions Attorney Unit were informed via telephone of Water Wheel's intention to file this Motion for Stay. On August 20, 2010, Counsel for the Tribal Court Parties, Tim Vollmann, contacted Counsel for Water Wheel's office and stated that Judge LaRance intended, in the very near future, to schedule a hearing regarding the Writ and that Judge LaRance would not take any action on CRIT's Motion until the hearing had been conducted. Relying on Mr. Vollmann s representations, Water Wheel agreed to defer the filing of its Emergency Motion and to await a scheduling order before taking any further action with respect to the filing. Consequently, Counsel for ii
Case: 09-17349 08/30/2010 Page: 21 of 24 ID: 7456555 DktEntry: 43-1 Water Wheel telephonically informed the Clerk of this Court and the Motions Attorney Unit of Water Wheel's intention to delay filing of its Emergency Motion for Stay. On Friday, August 27, 2010, Counsel for Water Wheel and Robert Johnson received e-mail correspondence from Judge LaRance scheduling a hearing on CRIT s Motion for September 10, 2010, and setting a briefing schedule. On Monday, August 30, 2010, Counsel for Water Wheel telephonically contacted both Mr. Vollmann and this Court's Motions Attorney Unit and advised them of Water Wheel s intent to file this Motion on that date. Counsel for Water Wheel also certifies that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. 4. WHETHER RELIEF WAS AVAILABLE AT THE DISTRICT COURT Counsel for Water Wheel certifies that he filed a motion for stay pending appeal in this matter with the District Court. That Motion was summarily denied by Judge Campbell on December 18, 2009. In that motion, Water Wheel argued for all the same reasons advanced in the instant Emergency Motion that it would experience irreparable harm if evicted. In denying the Motion for Stay, the District Court stated that Water Wheel's "likelihood of success on the merits and [possibility of] irreparable injury" were the iii
Case: 09-17349 08/30/2010 Page: 22 of 24 ID: 7456555 DktEntry: 43-1 most critical elements to be considered and, in turn, must be satisfied before the Court would consider the second two factors: balance of equities and public interest. See CRIT Motion, Ex. 6 at 2. Although the District Court concluded that Water Wheel had not presented argument with respect to its likelihood of success based on the merits, it declared even if Water Wheel had done so the Court "would disagree" and "for all the reasons set forth in the Court's order on the merits." Id. at 2, n. 1. Accordingly, the District Court denied the motion with the conclusion that that the Tribal Court Parties were likely to prevail on appeal and no stay would be appropriate. Id. Thus, based on that element alone, the Court denied Water Wheel's Motion. The District Court's denial of Water Wheel's Motion for stay was grounded firmly in its belief that its own decision on the merits was correct and its belief that this Court unquestionably would agree. Frankly, the District Court's previous refusal to stay was so firmly stated that there is no rational expectation that its opinion would change with a refreshed or expanded argument in a second Motion for stay. For this reason, Water Wheel is asking this Court to preserve Water Wheel's appeal by enjoining the Tribal Court Parties from ordering the Writ and mooting this appeal. iv
Case: 09-17349 08/30/2010 Page: 23 of 24 ID: 7456555 DktEntry: 43-1 Accordingly, it is just and proper for this Court to now consider this Motion for stay of execution pending the outcome of Water Wheel's appeal which is now ripe for this Court's review and ruling. Dated: August 30, 2010 Respectfully submitted, s/ Dennis J. Whittlesey Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 dwhittlesey@dickinsonwright.com v
Case: 09-17349 08/30/2010 Page: 24 of 24 ID: 7456555 DktEntry: 43-1 CERTIFICATE OF SERVICE I hereby certified that on this 30 th day of August 2010, I did file with this Court and did serve via ECF/Pacer Electronic Filing, all parties, Water Wheel's Emergency Motion Under Circuit Rule 27-3 and FRAP 8(a) for Order Enjoining Tribal Court From Issuing Writ of Restitution Ordering CRIT Tribal Police to Evict Water Wheel Now. s/ Dennis J. Whittlesey Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 dwhittlesey@dickinsonwright.com
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Case: 09-17349 08/30/2010 Page: 1 of 37 ID: 7456555 DktEntry: 43-3 EXHIBIT B
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Case: Case 09-17349 2:08-cv-00474-DGC 08/30/2010 Document Page: 2 89-1 of 2 Filed ID: 7456555 11/10/09 Page DktEntry: 2 of 43-5 2 To Members or the Water Wheel Resort: COLORADO RIVER INDIAN TRIBE'S Colorado River Indian Reservation ROUTE BOX 23 Is PARKF.R. ARIZONA 853,1,1 Tiii.EPH(3NFI (92g ) (k9-1280 FAX (928) 6(19 I 391 October 21, 2000 We are writing to inform you of the recent result of a lawsuit brought by the Colorado River Indian Tribes ("crir. or "Tribes") against the owner and operator of Water Wheel Resort ("Resort"). As yov may he aware, between 1975 and 2007 the Resort was operated hy Water Wheel Camp Recreational Area, Inc. ("Water Wheel") pursuant to a lea.se with the Tribes. This lease authorized Water Wheel to develop and operate the Re:sort on tribal lands in exeltang,e for annual mitt and other payments to CRIT. The lease further required that 'Water Wheel vatate the premises and (um the Resort over to the `fribes at the end of the lease terrn. When the lease expited itt 2007, however, Water Wheel rcfused to return the property to the Tribes. CRIT subsequently brought suit in Tribal Court, seeking to cvict Water Wheel and its owner, Robt...rt Johnson, and to recover unpaid rent. The Tribal Court ruled in the Tribes' favor, and the Tribal Court of Appeals upheld that ruling. On September 21, 2009, the federal district court for the district of Arizona ruled that the Tribal Courrs exercise of jurisdiction over Water Wheel was proper, and thus left the Tribal Court's judgment against Water Wheel in full force and effect. Accordingly, r.rrr intends to tzike the first step in eilfbreing the Tribal Court's judgment against Water Wheel by removing the company from the property. No further action in state or federal court is necessary to enforce this portion of the Tribal ('.oures judgment.' Once Water Wheel is removed from the premises.. CRIT plans to fake over tnanagement and operation of the Resort. Please note that CRIT intends to honor all existing, valid subleases between Water Wheel and individual Members of the Resort as tont.; as the Member is in compliance with the sublease's terms. As a result, the Tribes' action against Water Wheel shotdd not interfere with y ur use and enjoyment of the Resort. If you have any questions about this matter, plcase contact Attorney Ciencrall Erie Shepard at (928) 669-1271. Sincerely, COLORAI)0 RIVER INDIAN TRIBES O r rq:zerit4f:0 "'(' Eldred linas Chairman r Because the federal court ruled that the 'fribal C'ourt did not have jurisdiction over Robert Johnson as an individual, CRIT is not seeking to enforce the Tribal C.'ourt's judgment against Robert Johnsen at this lime. However. CRIT reserves its right as the lawful owner to remove any trespassers round on the property. I' d6608 226 139/.. %Josad leaqm Jalem v91:80 GO La %00