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Case No. 107431 (Consoldated wth 107432, 107433, 107434) N THE SUPREME COURT OF THE STATE OF OKLAHOMA SENECA TELEPHONE COMPANY, _r_o U_tA Plantff/Appellee, Jll 1 2 20_0 vs. _'a'et_le MAM TRBE OF OKLAHOMA, d/b/a WHTE LOON CONSTRUCTON COMPANY, Defendant/Appellant. REPLY BREF OF DEFENDANT/APPLELLANT MAM TRBE OF OKLAHOMA, d/b/a WHTE LOON CONSTRUCTON COMPANY APPEAL FROM THE DSTRCT COURT OF OTTAWA COUNTY THE HONORABLE WLLAM E. CULVER, SPECAL JUDGE Counsel for Defendant/Appellant: PTCHLYNN & WLLAMS, PLLC ROBN C. LASH O. JOSEPH WLLAMS MAM TRBE OF OKLAHOMA RACHEL T. CSAR 202 S. Eght Trbes Tral 124 East Man Street Mam, Ok 74354 Norman, Oklahoma 73069 Tel: (918)541-1357 Tel: (405) 360-9600 July 12, 2010

Case No. 107431 (Consoldated wth 107432, 107433, 10.7434) N THE SUPREME COURT OF THE STATE OF OKLAHOMA SENECA TELEPHONE COMPANY, Plantff/Appellee, VS. MAM TRBE OF OKLAHOMA, d/b/a WHTE LOON CONSTRUCTON COMPANY, Defendant/Appellant. REPLY BREF OF DEFENDANT/APPLELLANT MAM TRBE OF OKLAHOMA, d/b/a WHTE LOON CONSTRUCTON COMPANY APPEAL FROM THE DSTRCT COURT OF OTTAWA COUNTY THE HONORABLE WLLAM E. CULVER, SPECAL JUDGE Counsel for Defendant/Appellant: PTCHLYNN & WLLAMS, PLLC ROBN C. LASH O. JOSEPH WLLAMS MAM TRBE OF OKLAHOMA RACHEL T. CSAR 202 S. Eght Trbes Tral 124 East Man Street Mam, Ok 74354 Norman, Oklahoma 73069 Tel: (918) 541-1357 Tel: (405) 360-9600 July 12, 2010

SUBJECT NDEX Page Number REPLY TO PLA_NTFF/APPELLEE'S PROPOSTON... 1 Plantff/Appellee has not provded bndng legal authorty that supports the Tral Court's Order and Judgment Aganst Defendant/Appellant n lght of the well-establshed prncple of trbal soveregn mmunty. Bttle v. Bahe, 2008 OK 10, 192 P.3d 810... 1 Rce v. Rehner, 463 U.S. 713 (1983)... 1 A. Rce v. Relmers Lmted To ts Facts And Dd Not Establsh a General Excepton to Trbal Soveregn mmunty as STC Suggests... :... 2 Rce v. Rehner, 463 U.S. 713 (1983)... 2 l /hte Mountan Apache Trbe v. Bracker, 448 U.S. 136, 143 (1980)... 4 18 U.S.C. _ 1151... 3 18 U.S.C. _ 1161... 2 B. Ths Court's Decson n BRae v. Babe Does Not Emend the U.S. Supreme Court's Decson n Rce v. Rehnerto nclude a Determnaton When Soveregn mmunty Wll Apply... 4 drcrafequpment Co., v. tgowa Trbe of Okla., 2000 OK 27, 2 P.3d 338... 9 Ba/es v. Chckasaw Nalfon nduslnes, 606 F.Supp.2d 1299 (D.N.M. 2009)... 10 Bassett v. Mashantucket Pequot Trbe, et al. 204 F.3d 343 (2 "d Cr. 2000)... 8 Bttle v. Bahe, 2008 OK 10, 192 P.3d 810... 5 Cook v. AV Casno Enterprses, nc., 548 F.3d 718 (9 th Cr. 2008)... 9 Cossey v. Cherokee Naton Enterprses, LLC, 2009 OK 6, 212 P.3d 447 (2009)... 7 Dye v. Choctaw Casno of Pocolo, 2009 OK 52, 230 P.3d 507 (2009)... 8

Gr_th v. Choctaw Casno of Pocolo, 2009 OK 51,230 P.3d 488 (2009)... 6 Kowa Trbe of Okla. v. Mfg. Technologes, nc., 523 U.S. 751 (1998)...... 6 McClanahan v. Arzona, 411 U.S. 164 (1973)... 5 Nahno-Lope z v. Houser, 627 F.Supp.2d 1269 (W.D. Okla. 2009)... 9 Okla. Tax Comm'n. v. Ctzen Band Potawatom ndan Trbe of Okla., 498 U.S. 505, 509 (1991)... 7 Pales v. Cherokee Naton Enterprses, 2009 OK CV APP 65, 216 P.3d 309... 10 Ramey Constr, Co., nc. v. Apache Trbe of the Mescalero Reservalon, 673 F.2d 315 (10 th Cr. 1982)... 9 Romanella v. Hayward, 114 F.3d 15 (2 _d Cr. 1997)... 8 Rosebud Soux v. Val-U Constructon Co., 50 F.3d 560 (8 th Cr. 1995)... 8 Santa Clara Pueblo v. Martnet, o 436 U.S. 49, 58 (1978)... 7 Tamam Partners v. Mccosukee Trbe of ndans of Florda, 177 F.3d 1212 (11 th Cr. 1999)..... 8 Whte Mountan Apache v. Bracket, 448 U.S. 136 (1980)... 5 C. The nstant Case Does Not nvolve a Trbe Engagng n Lquor Sales and Dstrbuton n ndan Country, So The Holdng n Rce v. Rehner and Ths Court's Decson n Bttle v. Babe Does Not Apply... 10 47 U.S.C. _ 151... 11 Florda ParaplegcAss'n v. Mccosukee Trbe, 166 F.3d 1126, 1130 (11 _hcr. 1999)... 12 REPLY TO P.ANTFF/APPELLEE'S PROPOSTON... 12 A. n Certan nstances, The ssue of Contrbutory Neglgence Can Be A Queston of Law... 12 Artcle XX, _ 6 of the Oklahoma Consttuton... 12 Claborn v. Plans Cotton Co-opAss'n, 2009 OK CV APP 39, 211 P.3d 915... 12 Kansas, Okla. & GulfRy. Co. v. Clark, 1953 OK 276, 262 P.2d 426... 12 State ex re/. Okla. Dq_'t of Publc S_Ce(y v. Gurch, 2010 OK 56, 2,_ P.3d.... 13

B. The Tral Court Erred By Fndng Neglgence On The Part of The Trbe... 14 C. The Tral Court Erred n The Award Of Damages... 15 23 O.S. _ 61... 15 CONCLUSON... 16 CERTFCATE OF SERVCE... 18

REPLY TO PLANTFF/APPELLEE'S PROPOSTON Plantff/Appellee has not provded bndng legal authorty that supports the Tral Court's Order and Judgment Aganst Defendant/Appellant n lght of the well-establshed prncple of trbal soveregn mmunty. n ts Bref n Chef, Defendant/Appelant Mam Trbe of Oklahoma d/b/a Whte Loon Constructon Company ("Appe_ant," the "Trbe," or "Whte Loon") asserts that the Tral Court lacked subject matter ursdcton over the Trbe under the doctrne of trbal soveregn mmunty. t s undsputed that there was no clear waver of trbal soveregn mmunty by the Trbe, and t s undsputed that there was no express abrogaton by Congress for ths sut to proceed aganst the Trbe and ts wholly-owned trbal enterprse, Whte Loon. n ts Answer Bref, Plantff/Appellee Seneca Telephone Company ("Appellee" or "STC") does not deny that the Trbe has not waved ts mmunty, and STC does not deny that Congress has not expressly abrogated the Trbe's mmunty for ths partoalar acton. nstead, STC urges ths Court to apply a never-before-adopted "excepton" to the well-estabhshed federal prncple of trbal soveregn mmunty that STC contends has been establshed by the U.S. Supreme Court case of Rce v. Rehner, 463 U.S. 713 (1983), and as extended by ths Court's decson ofbtt/e v. Babe, 2008 OK 10, 192 P.3d 810 (Okla. 2008). The Trbe respectfally submts ths Reply Bref and contends that: (1) the holdngs of Rebner and Btt/e are lmted to ther facts,.e., the apphcaton of state regulatory law over the sale and dstrbuton of alcohohc beverages n ndan country, whch are not the facts n the nstant case; (2) no precedent exsts that general]y apphes a preempton analyss to determne whether a state court may assert adjudcatory jursdcton over a prvate sut aganst an ndan trbe for an ordnary, non-adcohol related tort clam, and; (3) no precedent exsts that apples a "tradton of trbal soveregn mmunty" analyss to determne whether a state court may assert adjudcatory 1

jursdcton over a prvate sut aganst an ndan trbe for an ordnary, non-alcohol related tort dam. Even more revealng s that no federal court decson post-rebner, and no courts of ths State post-bttle have adopted a general "excepton" to trbal soveregn mmunty 1 as STC artculates n ts Answer Bref. The Tral Court erred as a matter of law by adjudcatng the clams on the merts, by enterng judgment aganst the Trbe, and by enterng an award of attorney's fees and costs aganst the Trbe. Ths Court should reverse the Tral Court and vacate the judgment and award of attorney's fees and costs. A. Rce v. Relmer s Lmted To ts Facts And Dd Not Establsh a General Excepton to Trbal Soveregn mmunty as STC Suggests. The narrow ssue n Rehnerwas whether the State of Calforna could requre a federallylcensed ndan trader operatng a general store on an ndan reservaton, to obtan a state lquor lcense n order to sell lquor for off-premses consumpton. Rebner, 463 U.S. at 715. Rebnerwas not about whether trbal soveregn mmunty prohbted state court adjudcatory jursdcton over a trbe for a tort clam. ndeed, there was no ndan _be nvolved as a party to the ltgaton. n Rehner, the U.S. Supreme Court held that, by enactng 18 U.S.C. _ 1161, Congress delegated authorty to the States as well as to the ndan trbes to regulate the use and 1 To be clear, STC does not expressly use the term "excepton" n ts Answer Bref, rather, t appears that STC argues that trbal soveregn mmunty does not apply n certan contexts. Regardless of how STC attempts to skrt the applcaton of trbal soveregn mmunty, the Trbe's poston s that STC has not establshed a legal bass n ths case that would uphold the Tral Court's order denyng the Trbe's moton to dsmss for lack of jursdcton, regardless f STC's argument s based on a perceved "excepton" or based on a poston that soveregn mmunty s napplcable. 2

dstrbuton of alcoholc beverages n ndan country. 2 d. at 715. Rehners lmted to ts facts and should not be consdered as authorty for the broad concepts that STC advocates n ts Answer Bref. STC retes heavly on dcta by the Court n Rehner n reference to the "tradton of trbal soveregn mmunty" phrase; however, t s clear from the dscusson and analyss by the Rehner Court that the Court was consderng the narrow ssue of whether certan state regulatons over alcoholc beverages would apply n ndan country. The Court's dscusson of whether trbes enjoyed a "tradton of trbal soveregn mmunty" as to lquor transactons was used to provde a "backdrop" of trbal soveregnty that was to be consdered as part of the pre-empton analyss. d. at 720. The dscusson of pre-empton n Rehnerwas only applcable snce the Court had to determne whether federal law (18 U.S.C. _ 1161) pre-empted the applcaton of state law n ndan country. Ths s due to the fact that Rehnerwas lmted to the narrow ssue of whether 18 U.S.C. _ 1161 had a pre-emptve effect on the state regulaton of lquor n ndan country, as can be determned by the followng language from the Rehner decson: Although n ndan matters Congress usually acts "upon the assumpton that the States have no power to regulate the affars of ndans on a reservaton," [cte omtted], that assumpton would be unwarranted n the narrow context of the regulaton of lquor. t. at 723 (emphass added). n the area of lquor regulaton, we fnd no "congressonal enactments demonstratng a frm federal polcy of promotng trbal self-suffcency and economc development." [cte omtted]. Wth respect to the regulaton of lquor transactons, as opposed to the state ncome taxaton nvolved n McClanahan, ndans cannot be sad to "possess the usual accoutrements of trbal str-government." d. at 724 (emphass added). 2 Ttle 18 u.s.c. _ 1151 defnes "ndan country" as "(a) all land wthn the lmts of any ndan reservaton under the jursdcton of the Unted States Government, notwthstandng the ssuance of any patent, and, ncludng fghts-of-way runnng through the reservaton, (b) all dependent ndan communtes wthn the borders of the Unted States whether wthn the orgnal or subsequently acqured terrtory thereof, and whether wthn or wthout the lmts of a state, and (c) all ndan allotments, the ndan ttles to whch have not been extngushed, ncludng rghts-ofway runnng through the same." 3

[T]he trbes have long ago been dvested of any nherent self-government over f_'_guor regulaton by both the explct command of Congress and as a "necessary mplcaton of theft dependent status." [cte omtted]. Congress has also hstorcally permtted concurrent state regulaton through the mposton of crmnal penaltes on those who supply ndans wth lquor, or who ntroduce lquor nto ndan country. d. at 726 (emphass added). Our examnaton of 1161 leads us to conclude that Congress authorzed, rather than pre-empted_ state re malaton over ndan lquor transactons. d. (emphass added). As we have establshed above, because of the lack of a tradton of self-government n the area of lquor regulaton, t s not necessary that Congress ndcate expressly that the State has jursdcton to regulate the lcensng and dstrbuton of alcohol, ld. at 731 (emphass added). STC msconstrues the Court's pre-empton analyss n Rehner. Federal pre-empton n the ndan law context s an analyss used to determne whether a state law or regulaton s preempted by federal law from beng appled n a locaton generally outsde of state jursdcton,.e. ndan country. See generally Whte Mountan Apache Trbe v. Bracket, 448 U.S. 136, 143 (1980) ("The unque hstorcal orgns of trbal soveregnty make t generally unhelpful to apply to federal enactments regulatng ndan trbes those standards of preempton that have emerged n other areas of the law."). f, after Rehner, trbal soveregn mmunty from sut n state court was only applcable f the trbe was able to establsh a "tradton of trbal soveregn mmunty" n a partcular regulatory area or actvty, then court decsons snce Rehnerwould have used ths concept as the proper analyss when a trbe asserts soveregn mmunty. STC has not provded authorty for ths general proposton. B Ths Court's Decson n BRae v. Babe Does Not Extend the U.S. Supreme Court's Decson n Race v. Relmerto nclude a Determnaton When Soveregn mmunty Wll Apply. There s no "Rehner preempton analyss" (referred n Appellee Bref at page 12) that can be used to determne whether trbal soveregn mmunty prohbts state court adjudcatory jursdcton over a trbe for a tort clam. STC s dearly mscharacterzng the applcaton and

l relevance of the Bttle v. Bahe case to the nstant case when t states "n 2008, the Oklahoma Supreme Court further defned the Rehnerpreempton analyss n the Bttle case." Appellee Bref, at pg. 12. Ths s not true. n fact, n Bttle, the term "preempton" s referenced by ths Court once n a cte to the case ofmcclanahan v. Arzona, 411 U.S. 164 (1973), once n a cte to the case of Whte Mountan Apache v. Bracker, 448 U.S. 136 (1980) and several tmes n reference to the U.S. Supreme Court's dscusson and analyss n Rehner. Ths Court dd not conduct any ndependent analyss or dscusson of the so-called "Rehnerpreempton analyss ''3 to the facts n Bttle. Contrary to STC's contenton, the Bttle Court reled on the holdng n Rehner to support a fndng that trbal soveregn mmunty dd not apply n the context of lquor regulaton, whch was the bass for the Court fndng that the trbe was not protected by soveregn mmunty for an alcohol-related tort,.e., dram shop lablty. However, the Bttle Court dd not extend ts fndng to any other tort clams fled aganst trbes n state courts. A dose readng of Bttle reveals there s no legal correlaton between the use of the preempton analyss n Rehner and the Bt& Court's concluson that the Absentee Shawnee Trbe could be sued n state court under a dram shop lablty clam. The perfnent language used by the Bttle court n addressng whether the trbe could be sued n a state court s: Although the specfc concern n Race v. Rehner was whether the reservaton retal outlet had to have a state lcense to sell lquor, we thnk t s the authorty to be followed n the nstant matter. Rce v. Rehner very dearly ruled that ndans dd not have the nherent attrbutes of soveregnty to regulate n the area of alcoholc 3 ndeed, by referrng to the so-called "Rehnerpreempton analyss", STC s explctly gvng sole credt to the Rehner decson to support a theory that courts routnely apply a preempton test to determne f a state court may assert adjudcatory jursdcton over an ndan trbe wthout an express waver ofmmtmty ether by the trbe or by Congress. Ths s not the case. ndeed, a revew of varous prncples n ndan law jursprudence does not reveal any test or applcaton referred to as the "'Rehner preempton analyss." 5

beverages. t s the soveregnty that gves rse to the mmunty from prvate sut n order to protect the dgnty of the soveregn. Rce v. Rehner concluded that the ndans there had no trbal mmunty from state alcoholc beverage law. Accordngly, Rce v. Rehner supports the exercse of ths state's adjudcatory power over ths prvate sut. Bttle, 2008 OK 10, 22. Thus, the Oklahoma Supreme Court's decson to permt state adjudcatory jursdcton over an ndan trbe n Bttle was based on the Court's nterpretaton under Rehner that trbes dd not have mmunty n area of state alcoholc beverage law. Bttle dd not (as STC clams, see Appellee Bref at pg. 13) "farther defne[] the 'tradton of trbal soveregn mmunty' prong of the preempton analyss." STC places sgnfcant emphass on the folowng dcta n Bttle dstngushng the U.S. Supreme Court's holdng n Kowa Trbe of Okla. v. Mfg. Technologes, nc., 523 U.S. 751 (1998), to the facts n the Bttle case: "Manufacturng Technologes does not apply here. Ths case does not nvolve a contract nor does t affect the Trbe's membershp or the Trbe's rght to govern ts members." d. at 30. STC argues n ts Answer Bref that the treatment of Kowa Trbe n Bttk s dsposfve n the nstant case and that, as n Bttle, the facts n ths case do not nvolve a contract but are grounded entrely n tort. Appellee Bref at pg. 14. STC fals to understand that the Oklahoma Supreme Court's dscusson of Kowa Trbe n Bttle was n conjuncton wth ts central holdng that trbal soveregn mmunty dd not apply n the area of state alcoholc beverage law based on the Rehner decson. Contrary to STC's contenton, ths Court n Bttle dd not establsh a general excepton to the prncple of trbal soveregn mmunty when a sut based on tort s brought n state court aganst an ndan trbe. Frst, the prncple of trbal soveregn mmunty from sut n state court s based on federal law and s not subject to dmnuton by the states. Gry_th v. Choctaw Casno of Pocolo, 2009 OK 51,230 P.3d 488, 497 (2009) (ctng Kowa Trbe, 523 U.S. at 756). The central 6

reasonng behnd the holdng n Bttle was based on ths Court's applcaton of Rehner, not on a new nle recognzng an excepton to trbal soveregn mmunty when a sut s based on tort. Any excepton to the prncple of trbal soveregn mmunty could only be created by an act of Congress or by a rulng from the U.S. Supreme Court. 4 Second, the case of Cossey v. Cherokee Naton Enteq_rses, LLC, 2009 OK 6, 212 P.3d 447 (2009) was decded post-bttle and t nvolved a tort lawsut brought by a prvate party aganst an ndan trbe, but ths Court dd not recognze and apply a general excepton to trbal soveregn mmunty as STC suggests apples n tort cases. Rather, ths Court carefully consdered whether the term "court of competent jursdcton" n the soveregn mmunty provson of a trbal-state gamng compact ncluded Oklahoma state courts. f STC's nterpretaton of Bttle was correct, ths Court dd not need to conduct any analyss nto the applcaton of the waver of soveregn mmunty snce Casscv nvolved a straght-forward tort clam; however, ths Court dd conduct an extensve analyss to decde the scope and applcaton of the term "court of competent 4 n ts Answer Bref, STC clams that Bltle "expanded 'mplct' Congressonal delegaton under the preempton analyss to authorze state adjudcatory jursdcton as well as state legslatve jursdcton." Appellee Bref at pg. 14. STC mscharactetzes the sgnfcance of the Bltle decson. The Bttle Court allowed for state adjudcatory jursdcton over the Absentee Shawnee Trbe, but only because the U.S. Supreme Court had already ruled n Rehner that state regulatory jursdcton regardng the sale and dstrbuton of alcoholc beverages n ndan country was permssble. Only Congress or the U.S. Supreme Court can change the law regardng trbal soveregn mmunty, and the law has always been that an ndan trbe s subject to sut only where Congress has authorzed the sut or the trbe has waved ts mmunty. Kowa Trbe 0fOk/a., 523 U.S at 754. Although Congress may abrogate a trbe's soveregn mmunty, any abrogaton of trbal soveregn mmunty "cannot be mpled, but must be unequvocally expressed." Santa Clara Pueblo v. Martne_ 436 U.S. 49, 58 (1978) (emphass added). Lkewse, n order to wave ts own soveregn mmunty, a trbe's waver must be '*clear," Okla. Tax Comm'n. v. CLzen Band Potawatom ndan Trbe of Okla., 498 U.S. 505, 509 (1991) (emphass added). 7

l l l l l. jursdcton" and dd not refer to any so-called excepton to trbal soveregn mmunty as STC asserts was expressed n Bttle or otherwse, s Fnally, federal courts have consstently ruled both pre-kowa Trbe and post-kowa Trbe that trbal soveregn mmunty apples n cases brought by prvate partes grounded n tort. See Tamam Partners v. Mccosukee Trbe of ndans of Florda, 177 F.3d 1212 (11 th Cr. 1999) (trbal soveregn mmunty prevented prvate partes' tort and contract clams aganst trbe); Bassett v. Mashantucket Pequot Trbe, et al 204 F.3d 343 (2 nd Cr. 2000) (affrmng dsmssal of all tort and contract clams for monetary damages fled aganst trbe); Romanella v. Hayward, 114 F.3d 15 (2 na Cr. 1997) (affrmng dsmssal of tort clams for money damages); Rosebud Soux v. Val-U Conslruclon Co., 50 F.3d 560 (8 th Cr. 1995) (affrmng dsmssal of tort clams aganst trbe seekng monetary damages). Contrary to STC's contenton, there s no legal authorty that frmly establshes that trbal soveregn mmunty does not apply n cases brought by prvate partes grounded n tort. 6 s ndeed, ths Court's only reference to Bttle n the Coss_y decson was n regard to footnote 20 whch stated, "We held the trbe's mmunty from sut n state court was waved when t agreed to be bound by the laws of ths state, ncludng a common law neglgence acton for dram shop lablty." Cossey, 2009 OK 6, 23 fn 20. Notably, the Cossey Court dd not refer to a preempton analyss to determne whether trbal soveregn mmunty appled, nor dd the Cossq Court conduct any examnaton nto whether the actvty n queston nvolved aspects of the trbe's "tradton of trbal soveregn mmunty" as STC clams s a necessary determnaton n order for soveregn mmunty to be appled. Moreover, two other tort cases brought by prvate partes aganst an ndan trbe n state court was decded post-coss_y and not one of those cases referred to Bttk or to any excepton to trbal soveregn mmunty n tort cases. See Grfl_th v. Choctaw Casno of Poco[o, 2009 OK 51,230 P.3d 488 (Okla. 2009); Dye v. Choctaw Cadno of Pocolo, 2009 OK 52, 230 P.3d 507 (2009). Thus, STC's contenton s wrong and not based on law. 6 As prevously stated, STC's relance on the Bttle Court's treatment of the Gowa Trbe decson s msguded snce the Bttlt Court's prncple contenton for fndng that soveregn mmunty dd not apply was based on the Rthner decson and the fact that the Absentee Shawnee Trbe had waved ts mmunty by agreeng to be bound by state lquor laws when t sought a lquor lcense from the state regulatory agency. 8

t s well-settled law that "[t]rbes enjoy mmunty from suts on contracts, whether those contracts nvolve governmental or commercal actvtes and whether they were made on or off a reservaton." Ka'owa Trbe of Okla., 523 U.S at 760; Arcraft Equpment Co., v. Kdowa Trbe of Okla., 2000 OK 27, 9, 2 P.3d 338, 341. n Ka'owa Trbe, the U.S. Supreme Court acknowledged that trbal soveregn mmunty appled even n the context of commercal actvtes, whch s what the Trbe was engaged n by and through ts entty, Whte Loon Constructon Company, when the ncdents nvolved n ths case took place, v The soveregn mmunty of trbes extends to subenttes or enterprses of the trbe. Ramey Constr, Co., nc. v. Apache Trbe of the Mescalero Reservaton, 673 F.2d 315, 320 (10 th Cr. 1982). There s no dspute that Whte Loon s an enterprse of the TrbeS: t s wholly-owned and operated as a trbal entty, 9 t was created under trbal law, and revenues generated by ts operatons are used for programs and servces of the trbal government[ n Ka'owa Trbe, the Court recognzed that soveregn mmunty would be applcable "n the case of tort vctms" as well, Ka'owa Trbe, 523 U.S. at 758, so STC's contenton that 6"owa Trbe s not bndng n ths case s wthout mert. See also Cook v. AV Casno Enterprses, nc., 548 F.3d 718 (9 th Cr. 2008) (trbal soveregn mmunty precluded sut aganst a trbal corporaton on clams of neglgence and dram shop lablty); Nahno-Lope z v. Houser, 627 F.Supp.2d 1269 (W.D. Okla. 2009) (trbal soveregn mmunty precluded sut aganst trbal casno, trbal offcals, and offcals 7 Even though the Trbe s nvolved n commercal ventures, the revenue derved from ts economc development actvtes s used to fund governmental operatons and programs and servces. s Order, Rec. Pg. 77; Pg. 6 of Tral Transcrpt afjune 18, 2009, startng at Rec. Pg. 364. 9 The Trbe dsputes the allegaton made by STC on page two of ts Answer Bref that Whte Loon was "partly owned and operated" by the Mam Trbe. STC provdes no evdence n support of the allegaton of the Trbe's partal ownershp of Whte Loon, and, further, STC specfcally stpulated that "Whte Loon Constructon Company s an excavaton company owned and operated by the Trbe." Tral Tr., June 18, 2009 at 6 (startng at Rec. Pg. 364). 9

wth the casno, n ther offcal capactes, on clams of trespass); Bales v. Chckasaw Naton ndustres, 606 F.Supp.2d 1299 (D.N.M. 2009) (trbal soveregn mmunty precluded sut by non- ndan aganst trbally-owned corporaton on employment race and age dscrmnaton clams); Pales v. Cherokee Naton Enterprses, 2009 OK CV APP 65, 216 P.3d 309 (trbal soveregn mmunty precluded sut aganst trbal employer for workers' compensaton matters). C. The nstant Case Does Not nvolve a Trbe Engagng" n Lquor Sales and Dstrbuton n ndan Country, So The Holdng_ n Rce v. Rehner and Ths Court's Decson n Bttle v. Babe Does Not Apply. Assumng, a_uendo, that ths Court was requred to examne the facts n the nstant case to determne whether there exsts a "tradton of trbal soveregn mmunty" under the Rehner and Bttle decsons 1, the facts n the nstant case are sgnfcantly dfferent and are dstngushable from those two cases. Frst, n Rehner, a prvate ndvdual was engaged n the sellng of alcoholc beverages n ndan country, and the U.S. Supreme Court determned that state regulatory laws should govern that prvate person's actvty nvolvng alcoholc beverages. n Bttle, the Absentee Trbe was engaged n the sellng of alcoholc beverages n ndan country, and, ths Court, relyng on the Rehner decson, determned that state adjudcatory jursdcton could be asserted aganst the Trbe under a dram shop lablty clam. n the nstant case, the Trbe, by and through Whte Loon Constructon Company, was not engaged n the sellng or dstrbutng of alcoholc beverages n ndan country. Moreover, the Trbe s not engaged n the underground telecommuncaton ndustry so t s not seekng to 10 On page 6 of ts Answer Bref, STC suggests that the Trbe acknowledged that preempton analyss may be used to consder whether trbal soveregn mmunty s gven any weght when there s not a tradton of the same n a partcular area. Ths s not true. STC has not cted to any place n the record to support ts clam. Further, as strongly asserted n ths bref and n ts Bref n Chef, the Trbe does not contend that there s any general excepton to trbal soveregn mmunty that requres an examnaton nto whether there exsts a "tradton of trbal soveregn mmunty" n a partcular area. 10,

avod the mposton of state regulatory authorty to ts actvtes n ndan country. To the extent Congress permts states to exercse regulatory jursdcton n the area of nterstate communcatons, per 47 U.S.C. ] 151, et seq., that authorty does not extend to general state adjudcatory jursdcton over the Trbe. Even under STC's relance on Rehnerand Bttle, the Trbe would have to be engaged n the regulatory actvty for whch the State had authorty. That s not the case. STC s the entty nvolved n the underground telecommuncaton ndustry, not the Trbe. Bttle does not apply n ths case snce the Trbe s not engaged n an actvty for whch Congress has delegated to the states to mpose ts regulatory authorty, nor has the Trbe subjected to tself to any telecommuncaton regulatory authorty by vrtue of applyng for a lcense wth a state agency, as the trbe dd n Bttle. STC's attempt to expand the reach of Rebner and Bttle to the nstant case s wthout mert and has not been adopted by ths Court n other cases, n Further, federal courts, post-rehner, have not concluded that trbal soveregn mmunty only apples n contract cases and only when the trbe s engagng n an actvty where trbes enjoy a "tradton of trbal soveregn mmunty. ''12 Fnally, assumng arguendo, that Congress ntended 47 U.S.C. _ 151, et seq. to apply to ndan trbes, the ssue of whether a statute should apply to a trbe or trbal entty s dstnct from the ssue of whether a trbe or trbal entty enjoys soveregn mmunty from sut. n Kowa Trbe, the U.S. Supreme Court held that the applcaton of substantve state law to trbal conduct occurrng outsde the reservaton was not the same as sayng "that a trbe no longer enjoys mmunty from sut." Kowa Trbe, 523 U.S. at 755. Thus, "t]here s a dfference between the rght to demand complance wth state laws and the means avalable to enforce them." d; see also n See supra, pages 7-8 12 See supra, pages 8-9 11

Florda Paraplegc Ass'n v. Mccosukee Trbe, 166 F.3d 1126, 1130 (11 _hcr. 1999) ("[W]hether an ndan trbe s subject to a statute and whether the trbe may be sued for volatng the statute are two entrely dfferent questons."). STC dd not specfcally respond to ths proposton n ts Answer Bref and dd not provde legal authorty holdng otherwse. The holdng n the Rehner case and ths Court's holdng n Bttle are lmted to the facts n those cases. STC has not provded any authorty fndng that a state court may assert adjudcatory jursdcton over an ndan trbe n a tort case brought by a prvate party that does not nvolve the sale and dstrbuton of alcoholc beverages n ndan country. The Tral Court erred as a matter of law by denyng the Trbe's moton to dsmss. The Tral Court must be reversed and ts order and judgment on the merts and for an award of attorney's fees and costs must be vacated by ths Court. REPLY TO PLANTFF/APPELLEE'S PROPOSTON A. n Certan nstances, The ssue of Contrbutory Neglgence Can Be A Queston of Law. The ssue of contrbutory neglgence absolutely can be, and on the facts of ths case s, a queston of law. Although Appellee's asserton that contrbutory neglgence s enegg_o.gl a queston of fact s correct, under Artde XX1, _ 6 of the Oklahoma Consttuton, Appellee's Answer Br. at 26, Appellee fals to pont out that ths general applcaton s not unversally appled. An ssue of contrbutory neglgence can be a queston of law. Specfcally, "contlbutory neglgence s an ssue of law only when there s no dspute of the facts and only one concluson may be drawn from the evdence." Claborn v. Plans Cotton Co-opAss'n, 2009 OK CV APP 39, 10, 211 P.3d 915 (ctng Kansas, Okla. & GulfRy. Co. v. Clark, 1953 OK 276, 262 P.2d 426). There s no factual dspute regardng Appellee's complance wth the statutory 12

requrement that they be a part of the OneCall network, whch leads to only one possble concluson, so ths s a queston of law. n ths area of law, as n all others, on appeal, "[]ssues of law are revewed de nova." State ex re/. Okla. D_ 't ofpublc S_Cety v. Gurch, 2010 OK 56, 2, P.3d Under a de nova standard of revew, the tral court's falure to apply neglgence per se aganst Appellee should be corrected on appeal. There s no dspute about whether Appellee was n complance wth the statutory requrement that they be a member of the OneCaU network; Appellee was not a OneCall member at the tmes of the events that led to ths lawsut. Tral Tr.,June 18, 2009, at 8, 19, 70, 71,117-121. n Appellants' Bref n Chef, Appellants' poston on the neglgence ssue was that Appellee was requred, by state law, to be a member of the OneCall network, and that because Appellee was not complant wth that law, Appellee was contrbutorly neglgent per se. n ther Answer Bref, as at tral, Appellee dd not dspute Appellants' asserton that Appellee was not a member of the OneCall network at the tmes at ssue n ths case. nstead, Appellee attempts to deflect ths ssue by dscussng Appellants' purported neglgence. Appellee's Answer Br. at 27-28. Appellants' purportedly neglgent conduct s a separate ssue, and no matter Appellants' conduct, Appellees are stll contrbutorly neglgent per se for falng to comply wth an applcable state statute. Under a de nova standard as s proper for questons of law, the tral court's falure to apply contrbutory neglgence per se should be corrected on appeal. Even f ths Court should decde that ths contrbutory neglgence ssue s a queston of fact, and that therefore a "clearly erroneous" standard of revew s approprate, as Appellee asserts, the tral court's falure to hold Appellee contrbutorly neglgent per se ought to be remeded wth ths appeal, for the reasons stated above. Planly put, Appellee was not n 13

l, l complance wth a state law requrng regstraton wth the OneCall network, and that noncomplance partally led to the damage suffered by Appellee. Ths contrbutory neglgence should be recognzed, and awarded damages adjusted accordngly. B. The Tral Court Erred By Fndng Neglgence On The Part of The Trbe. n ts Answer Bref, STC suggests that the Trbe acted wth an "egregous behavor toward STC's property" and that the Trbe showed a "complete ndfference" to STC's property. Appellee Bref at page 1. Ths s not true. Testmony at tral from both the Trbe and STC reveals that representatves from the Trbe dd call representatves from STC at varous tmes to get "locates" marked for STC's underground lnes pror to excavaton projects beng conducted by Whte Loon. See generally Tral Tr.,June 18, 2009, at 30, 32, 33, 61, 62, and 84; Tral Tr., July 17, 2009, at 8, 9, 25-30, 32, 85, and 86. Whte Loon employee Stev e Lankford even offered to pay STC for repar costs after the frst ncdent. Tral Tr.,July 17, 2009, at 23. Testmony by STC employee Larry Prader reveals that Whte Loon dd call STC to locate ther telephone lne at the project ste pror to "[c]ut number 4, by the Socal Servces Buldng." Tral Tr., June 18, 2009, at 32-33. Testmony by STC employee Mark Wyrck reveals that Whte Loon dd call STC to locate ther telephone lnes "where they were dggng and buldng new drveways and parkng lots on the West sde of the Travel Plaza" and these lnes were located at what was descrbed at tral as "Cut 1" and "Cut 2." TEal Tr.,June 18, 2009, at 61. Mr. Wyrck admtted Whte Loon called STC pror to dggng. Tral Tr., June 18, 2009, at 62. Whte Loon employee Steve Lankford testfed that he s the General Manager for Whte Loon and has been n the constructon busness for thrty-fve years. Tral Tr.,July 17, 2009, at 5. Mr. Lankford testfed that Whte Loon was the subcontractor to buld a buldng pad for a casno. Tral Tr.,July 17, 2009, at 6. Mr. Lankford further testfed that, pror to dggng 14

underground, Whte Loon must "call n locates," whch means t must contact "One-Call." Tzal Tr., July 17, 2009, at 7-8. Mr. Lankford also testfed that he knew STC was not a member of One-Call, and, besdes callng One-Call, he would call STC separately. Tral Tr.,July 17, 2009, at 8-9. At tral, Defendant's Exhbt 2 was admtted, and Mr. Lankford testfed that Exhbt 2 was hs work cell phone records whch showed varous calls to STC employee Mark Wyrck, and Mr. Lankford testfed these calls were for calls for STC locates. Tral Tr.,July 17, 2009, at 25-30. Mr. Wyrck admtted Mr. Lankford made calls on hs cell phone for "markngs that needed to be made." Tral Tr., July 17, 2009, at 85. Although Whte Loon admtted that ts bulldozer actually cut STC's telephone lnes, Whte Loon asserts that t acted wth reasonable care and was not neglgent when the cuts occurred. Even STC employee Larry Prader admtted that, n hs lne of work, accdental cuts occur. Tral Tr., June 18, 2009, at 34-35. STC employee Mark Wyrck lkewse admtted that, as an excavator, he, too, has cut lnes by accdent and not by beng reckless. Tral Tr., June 18, 2009, at 80. At tral, STC dd not put on any wmesses to testfy that they saw Whte Loon actng n a careless or unreasonable manner n the use of ts bulldozer when the STC lnes were The Tral Court Erred n The Award Of Damages. Wth respect to the amount of damages awarded, Appellants contend that t was clearly erroneous. As Appellee correctly states, "the measure of damages" n a non-contract acton "s the amount whch wll compensate for all detrment proxmately caused thereby, whether t could have been antcpated or not." 23 O.S. _ 61; Appellee's Answer Br. at 29. However, Appellee goes on to state that the amount of "detrmenc they suffered as a result of Appellants' excavaton ncludes amounts for upgrades to e.,dsfng lnes, not just repar. The proper measure 15

", of damages here, to "compensate for all detrment," would be the amount requred to repar or replace the exstng lnes that were damaged by Appellants' excavaton. Appellee dd not just repar the lnes; some of the lnes were replaced entrely, or upgraded, nstead. Tral Tr., June 18, 2009, at 76-78 (Cut 1), 97 (Cut 4); Tral Tr.,July 17, 2009, at 22 (Cut 1 replaced and upgraded), 42 (Cut 2 replaced), 44 (Cut 3 replaced), 49 (Cut 4 replaced), 77 (Cut 4 replaced), 79 (Cut 1 replaced), 82 (Cut 1 replaced), 84 (Cut 4 replaced). The addtonal amount(s) requested by Appellee and awarded by the tral court for the upgrades made to Appellee's lnes should not have been ncluded n the award of damages to Appellee. t s clearly erroneous for the tral court to have awarded damages above and beyond what t cost Appellee to repar the lnes, so the amounts awarded Appellee for upgraded lnes were mproper awards, and should be overturned on appeal. CONCLUSON For the reasons presented heren, Defendant/Appellant Mam Trbe of Oklahoma d/b/a Whte Loon Constructon Company requests ths Court REVERSE the Order of the Tral Court denyng the Trbe's moton to dsmss for lack of jursdcton and VACATE the udgrnent of the Tral Court and the award of attorney's fees and costs. Alternatvely, f the Court fnds subject matter jursdcton exsts, Defendant/Appellant requests ths Court REVERSE the Order of the Tral Court fndng Defendant/Appellant lable on the merts and VACATE the judgment of the Tral Court and the award of attorney's fees and costs. Defendant/Appellant respectfully requests ths Court enter an order n favor of Defendant/Appellant and award Defendant/Appellant attorney's fees, costs, and all other relef, legal or equtable, avalable under law. Dated ths 12 'h day of July 2010. 16 _

Respectfflly submtted, PTCHLYNN & WLLAMS, PLLC >_/"s O. JOSEPH WLLAMS, OBA # 19256 RACHEL CSAR, OBA # 22538 P.O. Box 427 124 East Man Street Norman, OK 73070 Telephone: (405) 360-9600 Facsmle: (405) 447-4219 E-mal: ATTORNEYS jwllam s@ptchlynnlaw.c0m rcsar@ptchlynnlaw.com FOR DEFENDANT/APPELLANT t And ROBN C. LASH, OBA #19859 Attorney for Defendant Mam Trbe of Oklahoma 202 S. Eght Trbes Tral Mam, OK 74354 Telephone: (918)541-1357 17

l t l CERTFCATE OF SERVCE hereby certfy that on ths 12th day of July 2010, a true and correct copy of the wthn and foregong was hand-delvered or maled va U.S. Mal, postage prepad thereon, to the followng: Mke Torrone, Esq. Logan & Lowry 101 S Wlson St. Vnta, OK 74301 Attorney for Plantff Attorneys for Plantff RACHEL CSAR 18