Post on 06-Mar-2018
CASE NO. 14-4034
UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT
UTE INDIAN TRIBE OF THE UINTAH andOURAY RESERVATION, UTAH,
Plaintiff-Appellant,v.
THE STATE OF UTAH, WASATCHCOUNTY a political subdivision of the State ofUtah, GARY HERBERT, in his capacity asGovernor of Utah, JOHN SWALLOW, in hiscapacity as Attorney General of Utah, SCOTTSWEAT, in his capacity as County Attorney forWasatch County, Utah, and TYLER J. BERG, inhas capacity as Assistant County Attorney forWasatch County, Utah,
Defendants-Appellees.
:::::::::::::::::::
On Appeal from the United States District Court for the District of Utah, Central Division
The Honorable Dee BensonNo. 2:13-CV-0170
WASATCH APPELLEES’ BRIEF______________________________________________________________________________
Jesse C. Trentadue (#4961)Carl F. Huefner (#1566)Noah M. Hoagland (#11400)Britton R. Butterfield (#13158)SUITTER AXLAND, PLLC8 East Broadway, Suite 200Salt Lake City, Utah 84111Tel: (801) 532-7300Attorneys for Wasatch County, Scott Sweat, and Tyler J. Berg
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 1
TABLE OF CONTENTS
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF PRIOR AND/OR RELATED APP .E .A . L. S. . . . . . . . . . . . . . . . . . . . . . . . 1
NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
HISTORY OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARGUMENT:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DENYING THE TRIBE’S MOTION FOR A PRELIMINARY
INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
II. THE UTE TRIBE HAS NOT AND CANNOT MAKE THE NECESSARY
SHOWINGS FOR A PRELIMINARY INJUNCTION. . . . . . . . . . . . . . . 32
A. Likelihood of Success on the Merits. . . . . . . . . . . . . . . . . . . . . . . . 35
B. Irreparable Injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
C. Balance of Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
D. Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ii
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 2
III. NATIONAL FOREST LANDS ARE NOT PART OF THE
RESERVATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
IV. THE ANTI-INJUNCTION ACT DOES NOT SUPPORT THE UTE
TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION. . . . . . . . . . 49
STATEMENT OF COUNSEL AS TO ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . 54
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS. . . . . 59
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
iii
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 3
TABLE OF AUTHORITIES
Cases
Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998) . . . . . . . . . . . . . . 49
Alexander Bird In The Ground v. District Court,
239 F. Supp. 981 (D. Mont. 1965) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Allison v. Utah County Corporation, 335 F. Supp. 2d 1310 (D. Utah 2004) . . . . . . . . . 23
Anderson v. Bessemer City, 470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Association for Retarded Citizens of Connecticut v. Thorne,
30 F.3d 367 (2nd Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30
Atl. Coast Line R.R. Co. V. Bhd. Of Locomotive Eng’rs, 398 U.S. 281 (1970).. . . . . . . . 56
Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179 (9th Cir. 1988).. . . . . . . . . . . . . . 32
Board of Commissioners for the Orleans Levee District v. Newport Limited,
578 So. 2d 191 (La. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Brown v. Board of Education, 347 U.S. 483 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Brown v. Burns, 996 F.2d 219 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 33
Chandler v. O’Bryan, 445 F.2d 1045 (10th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . 51
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005). . . . . . . . . . . . . . . . . . . 3, 27
Collins v. The City of Wichita, Kansas, 254 F.2d 837 (10th Cir. 1958). . . . . . . . . . . . . . 46
Comanche Nation v. United States, 393 F. Supp.2d 1196 (W.D. Okla. 2005). . . . . . . . . 38
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 31
iv
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 4
Decoteau v. District County Court, 420 U.S. 425 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . 6
Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 31
Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2nd Cir. 1985). . . . . . . . . . . . 33
Fedler v. Oliverio, 934 F. Supp. 1032 (N.D. Ind. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . 33
First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co.,
891 F. Supp. 510 (N.D. Cal. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Greater Yellowstone Coal v. Flowers, 321 F.3d 1250 (10th Cir. 2003) . . . . . . . . . . . . . . 37
GTE Corporation v. Williams, 731 F.2d 676 (10th Cir. 1984). . . . . . . . . . . . . . . . . . . . . 40
Hagen v. Utah, 507 U.S. 1028 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hagen v. Utah, 510 U.S. 309 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hagen v. Utah, 510 U.S. 399 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).. . . . . . . . . . . . . . 32
Hydro Resources, Inc. v. EPA, 1131 (10th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . 48, 49
Indian Country, U.S.A., Inc. v. Okla. Tax Comm’n.,
829 F.2d 967 (10th Cir. 1987) . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998). . . . . . . . . 38
Koclanakis v. Merrimack Mutual Fire Insurance Co.,
899 F.2d 673 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547 (5th Cir. 1987). . . . . . . . . . 33
McCullen v. Coakley, 759 F. Supp. 2d 133, 136 (D. Mass. 2010). . . . . . . . . . . . . . . . . . 47
McKeithen v. S.S. Frosta, 430 F. Supp. 899 (E.D. La. 1977). . . . . . . . . . . . . . . . . . . . . . 34
v
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 5
Missouri Pac. Ry. Co. v. Fitzgerald, 160 U.S. 556 (1896). . . . . . . . . . . . . . . . . . . . . . . . 56
Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). . . . . . . . . . . . . . . . 6
Montana v. United States, 450 U.S. 544 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Montana DOT v. King, 191 F.3d 1108 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Nevada v. Hicks, 533 U.S. 353 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 36
Neway Anchorlok International, Inc. v. Longwood Indusries, Inc.,
107 F. Supp. 2d 810 (W.D. Mich. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Oklahoma Tax. Comm’n v. Citizen Bank Potawatomi Indian Tribe of Okla.,
498 U.S. 505 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). . . . . . . . . . . . . . . . . . . . . . . . . 9
Organized Village of Kake v. Eagan, 369 U.S. 60 (1962). . . . . . . . . . . . . . . . . . . . . . . . . 14
Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990). . . . . . . . . . . . 20
Plessy v. Ferguson, 163 U.S. 537 (1896). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001). . . . . . . 38
Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007). . . . . 7, 27
Poulson v. Turner, 359 F.2d 588 (10th Cir. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Reid v. Covert, 354 U.S. 1 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Rogers v. Ford Motor Co., 952 F. Supp. 606 (N.D. Ill. 1997). . . . . . . . . . . . . . . . . . . . . 33
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. 5
Seneca-Cayuga Tribe of Oklahoma v. State of Oklahoma,
874 F.2d 709 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
vi
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 6
Shakopee Mdewakanto Sioux Community v. City of Prior Lake, Minnesota,
771 F.2d 1153 (8th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Silverman v. Browning, 414 F. Supp. 80 (D. Conn. 1976). . . . . . . . . . . . . . . . . . . . . . . . 40
Six Feathers v. State, 611 P.2d 857 (Wyo. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Smith v. Bayer Corp., 113 S. Ct. 2368 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Solem v. Bartlett, 465 U.S. 463 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
South Dakota v. United States DOI, 475 F.3d 993 (8th Cir. 2007). . . . . . . . . . . . . . . . . . 47
Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639 (10th Cir. 2004). . . . . . . . . . . . 32
State v. Hagen, 858 P.2d 925 (Utah 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Perank, 858 P.2d 927 (Utah 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Waters, 971 P.2d 538 (Wash. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Strate v. A-1 Contractors. 520 U.S. 438 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Morrison, 529 U.S. 598 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Patch, 114 F.3d 131 (9th Cir.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . 8, 29
United States v. United Mine Workers, 330 U.S. 258 (1947). . . . . . . . . . . . . . . . . . . 39, 56
Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997).. . . . . . . . . . . . . . . 4, 20
Ute Indian Tribe v. State of Utah et. al. District of Utah
Case No. 2:75-CV-408 . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
vii
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 7
Ute Indian Tribe v. State of Utah, 521 F. Supp. 1072 (D. Utah. 1981) . . . . . . . . . . . . . . 16
Ute Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir. 1985)(en banc). . . . . . . . 5, 17
Ute Indian Tribe v. State of Utah, 935 F. Supp. 1473 (D. Utah 1996). . . . . . . . . . . . . . . 19
Walck v. Edmondson, 472 F.3d 1227 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202 (10th Cir. 2003). . . . . . . . . 30, 38
Wyandotte Nation v. Sebelius, 443 F.3d 1247 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . 30
Statutes
16. U.S.C. § 475.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
25 U.S.C. § 1321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28 U.S.C. § 2283. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 49
9 Stat. 453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28 Stat. 286, 337-38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
33 Stat. 1070. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
34 Stat. 3113, 3116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Utah Code §17-18a-202.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Utah Code §17-18a-401.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Utah Code §17-18a-501.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Utah Code §41-6a-518.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
viii
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 8
Utah Code §41-12a-603.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Utah Code §53-3-277. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Utah Code Ann. §§ 77-9-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Utah Code §78A-7-118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Act of Aug. 15, 1894, ch. 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. 6
Other
United States Constitution, Fourteenth Amendment... . . . . . . . . . . . . . . . . . . . . . . . . 15, 51
Utah Constitution, Art. III, Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Utah R. Cr. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ix
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 9
STATEMENT OF PRIOR AND/OR RELATED APPEALS
Defendants-Appellees Wasatch County, Utah, Wasatch County Attorney
Scott Sweat, and Assistant Wasatch County Attorney Tyler Berg (“Wasatch
Appellees”) hereby adopt the Statement of Related Cases set forth in the Brief of
Plaintiff-Appellant Ute Indian Tribe of the Uintah & Ouray Reservation. Wasatch
Appellees do not, however, adopt the argument which the Ute Tribe inserted into
that Statement of Related Cases.
NATURE OF THE CASE
This appeal involves the District Court’s denial of the Ute Tribe’s Motion
for a Preliminary Injunction against Wasatch County’s prosecution of Ms. Lesa
Ann Jenkins, a member of the Ute Tribe, who had been stopped by a Utah
Highway Patrol Trooper. She was cited for speeding. Ms. Jenkins, who also had1
a prior DUI conviction for which there is no assertion that the State lacked
jurisdiction, was likewise cited by the Trooper for driving with a suspended or
revoked license and for failure to comply with State law requiring her to install an
Citation, Appellant’s Appendix (“App.”) 40.1
1
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 10
ignition interlock device on her vehicle. That stop occurred on State Road 352
within the Uinta National Forest. 3
The County believes that the issuance of the injunctive relief sought by the
Ute Tribe would create a law enforcement void whereby members of the Ute Tribe
would not be subject to any prosecution for violating public safety laws, like
drunk-driving laws, and the public endangered thereby. The Ute Tribe has not
alleged, let alone demonstrated, that it either patrols or it has the capacity to patrol
the state roads, such as State Road 35, to enforce traffic and other laws so as to
Id. The site of the actual stop is irrelevant because Ms. Jenkins was also cited2
for driving with a suspended license and for operating a vehicle without a court-ordered
interlock device, which was a condition imposed upon her due to a previous DUI
conviction all in violation of Utah Code §§ 41-6a-518(2)(a) - (4), 41-12a-603 and 53-3-
277(3). What is relevant, however, is where Ms. Jenkins had driven that day as well as
when and where the Trooper first observed her speeding. See Brown v. Burns, 996 F.2d
219 (9th Cir. 1993)(fact that stop of tribal member for DUI occurred on reservation did
not deprive state of criminal jurisdiction because the defendant had clearly driven the
vehicle on off-reservation roads while under the influence). These and other crucial
factual issues, however, remain unanswered due to the lack of discovery because the
Motion for Preliminary Injunction was filed contemporaneously with the Complaint on
December 3, 2013. Docket, App. 24.
That stop within the Uinta National Forest also occurred over 100 miles from the3
Ute Tribe’s headquarters in Duchesne County, Utah. Wasatch Appellees do not believe
that there are any members of the Ute Tribe residing in Wasatch County and neither does
it appear that the Ute Tribe has trust land in Wasatch County. But, these are factual
questions that need to be answered through discovery.
2
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 11
provide safe transit of the public on those roads. However, due to a lack of4
discovery these questions were never presented to or addressed by the District
Court. Instead of allowing for the development of the factual record needed for
the District Court to decide these and other questions related to jurisdiction, the
Ute Tribe is trying to fast-track an important ruling on its request for declaratory
and injunctive relief of incredible scope and breadth. 5
It is also appears that the Tribe had never before objected to the State’s assertion4
of jurisdiction over public roads within National Forest Lands in Wasatch County, which
makes a strong case for waiver of jurisdiction. See City of Sherrill v. Oneida Indian
Nation, 544 U.S. 197(2005)(latches barred Oneida Tribe’s attempt to re-assert
sovereignty over land after the lapse of several hundred years).
In this lawsuit, the Ute Tribe is seeking an Order permanently enjoining Wasatch5
County from exercising criminal or civil jurisdiction over “Indians” within the National
Forest Lands of Wasatch County. The Ute Tribe is essentially seeking a safe-haven or
sanctuary from State and County law for its members. Not only did the Ute Tribe contend
that its members, or any “Indian” for that matter, cannot be prosecuted by Wasatch
County for offenses occurring on public roads passing through a National Forest, but it is
also the Tribe’s position that if a member or other Indian commits a crime, even a serious
felony, off-Reservation that tribal member or other Indian is entitled to sanctuary if he or
she can reach the Reservation’s borders prior to being apprehended by state and/or local
law enforcement. The Ute Tribe takes the position that State and/or local law
enforcement’s hot pursuit of a tribal member or other Indian who committed an off-
Reservation crime, even a felony, must stop at the Reservation’s borders. See Motion for
Summary Judgment, App. 70. However, under the common law doctrine of fresh pursuit,
an officer may pursue a felon or suspected felon, with or without a warrant, into another
jurisdiction and arrest the suspect. Six Feathers v. State, 611 P.2d 857, 861 (Wyo. 1980).
Utah has also codified the common law with the Uniform Act On Fresh Pursuit, Utah
Code Ann. §§ 77-9-1, et seq. Fresh Pursuit Statutes such as that of Utah even authorize
arrests within the boundaries of a reservation. See State v. Waters, 971 P.2d 538, 543
(Wash. App. 1999). The Ute Tribe has even asserted that State and County officers
3
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 12
In its Complaint the Tribe is asking for two distinct types of declaratory-
injunctive relief. First, the Ute Tribe seeks an Order establishing its civil and
criminal jurisdiction in the National Forest Lands of Wasatch County, and to
permanently enjoin Wasatch County from exercising civil or criminal jurisdiction
over “Indians,” including Ms. Jenkins, within these National Forest Lands. This is
an injunction to stay pending and future law enforcement procedures against tribal
members.
The second type of injunctive relief sought by the Ute Tribe is an anti-suit
injunction. Specifically, the Ute Tribe seeks an Order forever barring Wasatch
County from, directly or indirectly, raising, by way of complaint or defense, in any
court of law or administrative forum: (1) that the County’s civil and/or criminal
authority over National Forest Lands exceeds the limits of such authority allegedly
imposed by the Tenth Circuit in Ute Tribe of Indians of the Uintah and Ouray
Reservation v. State of Utah; (2) that the Ute Tribe lacks sovereignty over these6
cannot stop a vehicle on United States’ highways and/or State roads crossing the National
Forest because the driver might be a tribal member, which is an incorrect statement of the
law. “As a practical matter, without a stop and inquiry, it is impossible for [a law
enforcement] officer to tell who is operating an offending vehicle [within Indian
Country].” United States v. Patch, 114 F.3d 131, 133-34 (9th Cir.1997).
114 F.3d 1513 (10th Cir. 1993).6
4
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 13
National Forest Lands; (3) that the Ute Tribe’s Reservation has been
disestablished or diminished; (4) that the Reservation’s borders differ from those
articulated by the Tenth Circuit Court of Appeals in Ute Tribe of Indians of the
Uintah and Ouray Reservation v. State of Utah, and Ute Tribe of Indians of the7
Uintah and Ouray Reservation v. State of Utah; and/or (5) that Wasatch County8
be prohibited from “seeking, obeying, carrying out, issuing, enforcing, or
otherwise treating as having any lawful force or effect any order of any court
which is inconsistent with the mandate issued by the United States Court of
Appeals for the Tenth Circuit.” This appeal involves the District Court’s denial9
of the Ute Tribe’s Motion for Preliminary Injunction to prevent the prosecution of
Ms. Jenkins. 10
773 F.2d 1298 (10th Cir. 1985).7
114 F.3d 1513 (10th Cir. 1993).8
Complaint, App. 22-23.(emphasis added).9
District Court Order, See App. 354. 10
5
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 14
JURISDICTION
Wasatch Appellees adopt the general statement of jurisdiction set forth in
the Ute Tribe’s Brief. Wasatch Appellees do not, however, adopt the argument
which the Ute Tribe inserted into that statement of jurisdiction.
ISSUES PRESENTED
While the Ute Tribe is correct that the sole issue on appeal is whether the
District Court erred in denying the Tribe’s Motion for Preliminary Injunction, the
issue is more refined than the Tribe’s simple characterization. The issue is more11
precisely framed as whether the District Court abused its discretion in denying the
Tribe’s Motion. Moreover, deciding that issue necessarily depends on whether the
Tribe met its burden for a Preliminary Injunction, which requires showing: (1) a
substantial likelihood of success on the merits; (2) irreparable harm unless the
injunction was issued; (3) that the threatened injury to the Ute Tribe outweighs
potential harm to the State of Utah or Wasatch County; and (4) that the injunction,
The Tribe asserts that the issue in this case is a simple matter of criminal11
jurisdiction, but that is deceptive. How “Indian Country” is defined goes far beyond the
State’s and/or County’s criminal authority within the Uinta National Forest, it may also
define their civil regulatory authority.. See, e.g., Decoteau v. District County Court, 420
U.S. 425, 427 fn. 2 (1975); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463,
478-79 (1976). It will likewise do so for Carbon, Duchesne, Emery, Grand and Uintah
Counties because they each include land that was part of the original Reservation.
6
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 15
if issued, would not adversely affect the public interest. Furthermore, subsumed12
in that issue is whether the record is sufficient to permit this Court to affirm the
District Court on other grounds, such as the Ute Tribe’s failure to meet its burden
to show all the elements required for the District Court to issue a Preliminary
Injunction; whether the requested injunctive relief is prohibited, as a matter of law;
and/or whether the Judgment by Consent entered following remand of Ute Tribe of
Indians of the Uintah and Ouray Reservation v. State of Utah effectively mooted13
that decision, which the Ute Tribe now makes the sole basis of its claim of
entitlement to injunctive relief.
STANDARD OF REVIEW
The District Court’s denial of a Preliminary Injunction is reviewed for an
abuse of discretion. A district court abuses its discretion only if it issues an14
Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.12
2007).
114 F.3d 1513 (10th Cir. 1997). See infra pp. 20-23.13
Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006); Prairie14
Band of Potawatomi Nation, 476 F.3d at 822 (citing SEC v. Pros Int'l, Inc., 994 F.2d 767,
769 (10th Cir.1993)).
7
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 16
“arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Finally,15
this Court is free to affirm the District Court on any grounds for which the record
is sufficient to permit conclusions of law, even grounds not relied upon by the
District Court. 16
STATEMENT OF FACTS
The Ute Tribe’s Brief purports to recount the history of the litigation over
jurisdiction between it and the State of Utah, which the Tribe asserts somehow
deprives Wasatch County of any jurisdiction over tribal members who happen to
be in a National Forest located within the County. The true history of the
litigation between the State of Utah and the Tribe is set out below, including
Utah’s unique history with respect to regulatory authority over Indians and Indian
lands.
A. Utah History
Before the District Court the Tribe argued that Utah’s Enabling Act and
Prairie Band of Potawatomi Nation, 476 F.3d at 882 (quoting Coletti v. Cudd15
Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)).
United States v. Sandoval, 29 F.32d 537, 542 fn. 6 (10th Cir. 1994).16
8
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 17
Constitution divested both the State and Wasatch County of all jurisdiction over
tribal members and/or tribal lands. But that is not so. In fact, Utah’s17
governmental history reveals a sovereignty and dominion over Indians and Indian
lands not enjoyed by other states and not otherwise diminished by Utah’s
admission to the Union.18
Tribe’s Response to Wasatch County’s Motion to Dismiss, App. 255. The Ute17
Tribe claims that, based upon 25 U.S.C. § 1321(a)(1), the State of Utah and Wasatch
County’s civil and regulatory authority does not extend to conduct by Ms. Jenkins and
other tribal members because neither the Tribe nor its members have consented to any
such jurisdiction over public roads within the National Forest. See Tribe’s Brief, pp. 20-
21. See also App. 84. But that statute merely provides a mechanism whereby the State of
Utah could assume direct jurisdiction and control over tribes and their members, with the
consent of the Tribe and its members. It has nothing to do with the sovereign powers
vested in the State of Utah and its County governments over people or lands within the
borders of a reservation. In fact, Nevada v. Hicks, 533 U.S. 353 (2001) makes clear that
“an Indian Reservation is now considered part of the territory of the State,” Id. at 360-61;
accord, Shakopee Mdewakanto Sioux Community v. City of Prior Lake, Minnesota, 771
F.2d 1153, 1156 (8th Cir. 1985)(reservation communities are still part of the State in
which they are located and political subdivisions of that State), and that “State
sovereignty does not end at a Reservation’s borders,” Nevada, 533 U.S. at 362. More
importantly, tribal law only preempts state law under very narrow circumstances: when it
involves both “on-reservation activity” AND involves “only Indians.” Id. at 361
(2001)(emphasis added). A tribe’s power to exercise civil authority over the conduct of
non-Indians on fee lands within its reservation is similarly limited to those situations
wherein non-Indians have entered into some sort of consensual relationship with the tribe
or the conduct of non-Indians “threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the tribe.” Montana v. United
States, 450 U.S. 544, 566 (1980)(emphasis added).
In resolving conflicts between state and tribal authority, federal courts18
typically look to the historical relationships between the tribe, state and federal
governments. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
9
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 18
Originally known as the State of Deseret, Utah was established in an area
which was part of the Territory of Mexico. Furthermore, the dominion which the
State of Deseret enjoyed over its lands and the people residing on those lands is
very instructive on the issue of Utah’s (and its political subdivisions’) broad
jurisdiction within a reservation’s boundaries.
As a separate, independent nation, the State of Deseret had its own
Constitution. The following language from its Preamble reveals that the framers
considered the State of Deseret to be not only a free and independent government,
but to have dominion over a tremendous area of what would later become the
Western United States:
WE THE PEOPLE, Grateful to the SUPREME BEING forthe blessings hitherto enjoyed, and feeling ourdependence on Him for a continuation of these blessings,DO ORDAIN, AND ESTABLISH A FREE AND INDEPENDENT
GOVERNMENT, by the name of the STATE OFDESERET; including all the Territory of the UnitedStates, within the following boundaries, to wit:Commencing at 33°, North Latitude where it crosses the108°, Longitude, west of Greenwich; thence runningSouth and West to the Northern boundary of Mexico,thence West to, and down the Main Channel of the GilaRiver, (or the Northern line of Mexico,) and on theNorthern boundary of the Lower California to the PacificOcean; thence along the Coast North Westerly to the118°, 30' of west Longitude; Thence North to where said
10
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 19
line intersects the dividing ridge of the Sierra NevadaMountains to the dividing range of the Mountains, thatseparate the Waters flowing into the Columbia River,from the Waters running into the Great Basin; thenceEasterly along the dividing range of Mountains thatseparate said waters flowing into the Columbia river onthe North, from the waters flowing into the Great Basinon the South, to the summit of the Wind River chain ofmountains; thence South East and South by the dividingrange of Mountains that separate the waters flowing intothe Gulf of Mexico, from the waters flowing into theGulf of California, to the place of BEGINNING; as setforth in a map drawn by Charles Preuss, and publishedby order of the Senate of the United States, in 1848.
There is no reference in the Constitution of the State of Deseret to “Indians”
or “Indian lands.” But, importantly, the lands and people falling within the
jurisdiction of the State of Deseret included Indian lands and their Indian residents
and the Constitution of the State of Deseret established legislative, executive and
judicial branches to govern all lands and people within the State of Deseret,
including Indians. In other words, the Constitution of the State of Deseret
provided for its governance and dominion over all people and lands lying within
its boundaries, which included Indians and Indian lands. Moreover, the State of
Deseret’s dominion over tribal governments did not change when it became a
United States territory.
11
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 20
In 1850, Utah officially became a territory of the United States of America.
The Organic Act of the Territory of Utah established the Utah Territory and, like
the Constitution of the State of Deseret, does not reference either “Indians” or
“Indian lands.” Instead, it established the boundaries of the Utah Territory,19
changed the name from State of Deseret to “Utah,” created the Utah Territorial
Government and vested it with jurisdiction over all people and lands within the
Utah Territory. The Utah Territory was much smaller than the former State of
Deseret and included only what would become the States of Utah and Nevada, as
well as the western half of Colorado. Within this territory were Indian lands and
Indian people, including the Ute Tribe, over whom the Utah Territorial
Government could exercise jurisdiction.
The Utah Organic Act, with its recognition of the Utah Territorial
Government’s dominion and governance over all persons residing within the Utah
Territory, is significant when compared with the Organic Acts for other western
states. For example, the Organic Act creating the Montana Territory placed the
following limitation upon that Territorial Government’s jurisdiction over Indians
and/or their lands:
See 9 Stat. 453, Ch. 51.19
12
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 21
That nothing in this Act contained shall be construedto impair the rights of person or property nowpertaining to the Indians in said territory so long assuch rights shall remain unextinguished by treatybetween the United States and such Indians or toinclude any territory which by treaty within theIndian tribes, is not, without the consent of said tribe,to be included within the territorial limits orjurisdiction of any state or territory; but all suchterritory shall be excepted out of the boundaries andconstitute no part of the territory of Montana, untilsaid tribes shall signify their assent to the president ofthe United States to be included within said territory,or to affect the authority of the government of the UnitedStates to make any regulations respecting such Indians,their lands, or property, or other rights, by treaty, law, orotherwise, which it would have been competent for thegovernment to make if this Act had never passed.20
With the creation of the Montana Territory, Congress reserved to itself jurisdiction
over Tribes and Tribal lands; whereas Utah’s Organic Act, on the other hand, did
not place such limitations/restrictions on the Utah Territorial Government’s
jurisdiction over Indians or Indian lands. The Utah Territory was vested with
complete jurisdiction over tribes and tribal lands, and that did not change with
Utah statehood.
12 Stat. 85, Ch. 95, §1.(emphasis added).20
13
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 22
Utah became part of the United States in 1896. In order to obtain admission
to the Union, the Utah Constitution had to “disclaim all right and title . . . to all
lands lying within said limits owned or held by any Indian or Indian tribe, and that
until the title thereto shall have been extinguished by the United States, the same21
shall be and remain subject to the disposition of the United States, and said Indian
lands shall remain under the absolute jurisdiction and control of the Congress of
the United States.” But “absolute jurisdiction” is not the same as “exclusive22
jurisdiction and control.” By this language the State of Utah merely 23
acknowledged Congress’s plenary power over tribes and tribal lands; it did not
divest the State of Utah of the jurisdiction over tribes and tribal lands that had
passed to it from the Utah Territorial Government. Unfortunately, because of the24
rapidity in which this matter reached this Court, the District Court never had the
This language clearly reserved to the United States the right to extinguish title to21
lands held by the Ute Tribe.
Utah Constitution, Art. III, Section 2. 22
See Organized Village of Kake v. Eagan, 369 U.S. 60, 67 (1962)(construing23
identical language in the Alaska Statehood Act as not ousting Alaska from asserting its
regulatory authority over Indian lands). See also Nevada v. Hicks, 533 U.S. 353, 361-62
(2001)(state sovereignty does not end at a reservation’s border).
See Id. 24
14
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 23
opportunity to consider the effect of Utah’s unique history upon the jurisdiction
asserted by the Tribe.
B. Ute I
Almost 35 years ago the Ute Tribe, consisting of approximately 2,500
members, commenced a lawsuit in the United States District Court of Utah25
against the State of Utah, Duchesne County, Roosevelt City, Duchesne City and
Myton, Utah to determine the extent of the potential application of the Tribe’s
Law and Order Code. That lawsuit, to which Wasatch Appellees were not26
parties, later became known as “Ute I.” 27
The Ute Tribe currently has only 3,120 members. See25
http://www.utah.com/tribes/ute_people.htm (last visited Aug. 11, 2014).
See Ute Indian Tribe v. State of Utah et. al. District of Utah Case No. 2:75-CV-26
408. The land area that the Ute Tribe, through its litigation, currently asserts the
exclusive right to govern extends from Wasatch County east to the Colorado border and
south almost to I-70. Whether Indian or non-Indian, those persons living or present in
that vast area of Utah would be subjected to the governmental authority of the Ute Tribe
and would enjoy none of the protections of the Bill of Rights or the Fourteenth
Amendment. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
Uintah, Carbon, Emery and Grand Counties were likewise not named as parties27
in that lawsuit, even though lands within these Counties had been part of the original Ute
Reservation. Uintah County eventually joined that case to protect its interests. The
Counties not parties to Ute V, including Wasatch County, but into which the Tribe now
contends that its Reservation extends, all have building codes and other public health and
safety ordinances which they, and not the State, enforce. Seehttp://www.sterlingcodifiers.com/codebook/index.php?book_id=940 (last visited August 11,
15
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 24
Congress passed legislation in 1894 providing that Reservation lands
were to be allotted to members of the Ute Tribe, and that the remaining unallotted
lands were to be restored to the public domain. In Ute I, the District Court held28
that Congress’s decision to open unalloted lands within the reservation to
settlement by non-Indians did not diminish the Reservation as to those unallotted
lands. However, the District Court did hold that when Congress authorized the
President in 1905 to “set apart and reserve” lands in the Reservation as a forest
reserve and thereafter the President by proclamation established the Uinta29
National Forest Reserve, this demonstrated Congress’s clear intent to diminish30
the Reservation by removing the Uinta National Forest from the Reservation,31
particularly because the Ute Tribe was compensated for these removed lands by
the United States.32
2014).
Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, 337-38.28
33 Stat. 1070.29
34 Stat. 3113, 3116.30
Ute Indian Tribe v. Utah, 521 F. Supp. 1072, 1136 (D. Utah. 1981). 31
See id. at 1140 fn. 185.32
16
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 25
C. Ute II
Under Ute I, unallotted lands remained part of the Reservation but the Uinta
National Forest was not part of the Reservation. Ute I was appealed, and a two-
judge majority of the Tenth Circuit affirmed the District Court decision that the
Uinta National Forest had been withdrawn from the Reservation. That decision33
has become known as “Ute II.” However, after a rehearing en banc, a majority of
the Tenth Circuit held that the withdrawal of the National Forest Lands did not
diminish the Reservation. This decision became known as “Ute III.”34
D. Ute III
The Ute III Court reached its decision, completely contrary to that of
the panel in Ute II, applying the then newly-decided case of Solem v. Bartlett. 35
Based upon what would later be acknowledged, by both the Tribe and the Tenth
Circuit, to be a misreading of Solem, Ute III concluded that the congressional
language restoring the National Forest Lands to the public domain was “not the
same as a congressional state of mind to diminish,” and hence did “not reliably
Ute Indian Tribe v. Utah, 716 F.2d 1298, 1311 (10th Cir. 1983).33
Ute Indian Tribe v. Utah, 773 F.2d 1087, 1090 (10th Cir. 1983) (en banc). 34
465 U.S. 463 (1984).35
17
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 26
establish the clear and unequivocal evidence of Congress’ intent to change the
boundaries.” Thus, under Ute III, the Uinta National Forest remained part of the36
Reservation.
E. Perank and Hagen
Meanwhile, State v. Perank, and State v. Hagen, had been decided, both37 38
of which involved State felony prosecutions of Indians for crimes committed in
Myton and Roosevelt, Utah, two towns that had been within the original
boundaries of the Reservation. Reviewing the same legislation and case law as the
Ute III Court, the Utah Supreme Court concluded that the Reservation had been
diminished, that the towns of Myton and Roosevelt were not part of the
Reservation and that the State had jurisdiction to prosecute. The United States39
773 F.2d at 1092. Judge Barrett dissenting, however, emphasized that the Ute36
Tribe had been paid by the United States for the National Forest land. Id. at 1150.
858 P.2d 927 (Utah 1992).37
858 P.2d 925 (Utah 1992).38
Perank, 858 P.2d at 953; Hagen, 858 P.2d at 925-26.39
18
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 27
Supreme Court granted certiorari in Hagen to resolve the conflict between the
Tenth Circuit’s Ute III decision, and those of the Utah Supreme Court.40
In 1994, the United States Supreme Court affirmed the Utah Supreme Court,
expressly considering and rejecting both the Ute III analysis and its holding that
the Reservation had not been diminished. The Hagen Court, however, did not41
address National Forest Lands because that issue was not before the Court for
consideration.
F. Ute IV
Following the Hagen decision, the Ute Tribe filed a Motion in District Court
for a permanent injunction preventing the defendants from enforcing or relying
upon the Utah Supreme Court’s decisions in Perank and Hagen. In response, the
District Court issued a ruling that is now known as “Ute IV.” In Ute IV, the42
Hagen v. Utah, 507 U.S. 1028 (1994); see Hagen v. Utah, 510 U.S. 309, 40940
(1994).
Hagen v. Utah, 510 U.S. 399, 421-22 (1994), rehearing denied, 511 U.S. 104741
(1994). Hagan specifically found that Roosevelt City and Myton City were NOT “Indian
Country.” Nevertheless, in a related case before this Court and despite the Hagen ruling
that Roosevelt City and Myton City were not “Indian Country” the Tribe has also sued
both those cities seeking an injunction precluding them from prosecuting “Indians” for
offenses committed within their respective city limits. See Ute Indian Tribe of the Uintah
and Ouray Reservation v. State of Utah, No. 14-4028 (10th Cir. filed Feb. 27, 2014).
Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996).42
19
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 28
District Court reasoned that even though the Ute III decision conflicted with and
was overruled by the United States Supreme Court’s decision in Hagen, under the
law of the case doctrine the District Court was bound to follow the mandate of Ute
III. Not surprisingly, the case went back before the Tenth Circuit, and the43
resulting decision is now referred to as “Ute V.”44
G. Ute V
In Ute V, the Tenth Circuit and the Ute Tribe recognized that the
reasoning in Hagen effectively overruled Ute III in its entirety. In fact, the Ute45
Tribe argued that, even though Ute III was “erroneous” in light of Hagen, the
Id. at 1516-25.43
Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997). Hereafter,44
Ute I, Ute II, Ute III, Ute IV and Ute V will be collectively referred to as the “Ute cases.”
This Court, in case involving a similar issue with respect to the Navajo45
Reservation, questioned the underpinnings of Ute III’s conclusion about non-
diminishment of the Ute Reservation, characterizing it as “unexamined and unsupported.”
See Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387, 1400 (10th Cir.
1990)(refusing to apply the Ute III analysis, and distinguishing the relevant statutory
language that restored Navajo Reservation lands to the public domain). It is also
noteworthy that Pittsburg was decided before Hagen and Nevada in which the Court’s
provided guidance with respect to the diminishment of a reservation and a State’s
jurisdiction over reserved lands.
20
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 29
Finality of Judgments Rule prohibited departure from the Ute III. And the Tenth46
Circuit agreed in large part with the Ute Tribe’s argument.
The Tenth Circuit reasoned that it had to modify Ute III to conform to the
Supreme Court’s Hagen ruling that the Tribe’s Reservation was diminished with
respect to the unallotted lands. The Tenth Circuit did not modify Ute III’s
mistaken ruling, however, as to Uinta National Forest Lands because Hagen did
not involve or directly address the status of those lands, even though the
underlying legal analysis was no longer valid. Hence, Ute V held that the47
Finality of Judgments Rule supported the Ute III determination that the Uinta
National Forest remained part of the Reservation. The Court remanded the case to
the District Court with instructions to “consider the Tribe’s request for permanent
injunctive relief in light of this opinion.” But on remand that did not occur. 48
Instead, the case was resolved on the basis of a stipulated Judgment by Consent
114 F.3d at 1522. 46
See id. at 1518-1530.47
Id. at 1531.48
21
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 30
among the parties, superseding the Ute V remand but leaving intact the49
diminishment of the Reservation with respect to unallotted lands.
The crucial elements in that Judgment by Consent were three power
sharing/allocation Agreements between the Ute Tribe and the defendants in that
case. These three Agreements, to which Wasatch County was not a party, were:50
(1) a “Cooperative Agreement To Refer Tribal Members Charged With
Misdemeanor Offenses To Tribal Court For Prosecution”; (2) a “Disclaimer Of
Civil/Regulatory Authority”; and (3) a “Cooperative Agreement For Mutual
Assistance In Law Enforcement.” Neither the Court nor the Tribe ever attempted51
to make Wasatch County (or any of the other affected non-party Counties) a party
to these agreements.
In addition to these three Agreements, the parties (again, not including
Wasatch County) stipulated to Jurisdictional Maps to assist in complying with the
Agreements, which the Court also approved. These maps purported to show land
See District of Utah Case No. 2:75-CV-408, Doc. 145, Appellees’ Supplemental49
Appendix (“Supp. App.”) 417-422.
See District of Utah Case No. 2:75-CV-408, Doc. 96, Supp. App. 417-422.50
Id., 423-466, pp 5, 22 and 27.51
22
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 31
status for the purpose of effectuating the three Agreements. However, these maps
were intended only to raise a rebuttable presumption of jurisdiction because these
maps were preliminary with more work to be done by the parties. In fact, both52
the Stipulation and Order state that “Any individual or entity may seek to rebut
this presumption if it is in his, her, or its interest to do so in connection with a
particular case or controversy.” Based upon that Judgment by Consent, the53
case was dismissed with prejudice on March 28, 2000, which rendered moot the54
Ute V remand.55
Supp. App., 467-469, p. 468. 52
District of Utah Case No. 2:75-CV-408, Docs. 99 & 100. Supp. App., 467-47253
(Stipulation, p. 2), (Order, p. 3) (emphasis added).
See District of Utah Case No. 2:75-CV-408, Doc. 145, Supp. App. 417-422.54
However, these three Agreements that formed the Judgment by Consent between the
parties are either no longer in existence and/or they have been rejected by the Ute Tribe.
See District of Utah Case No. 2:75-CV-408, Doc. 175. Supp. App. 475-476.
Before the District Court, the Ute Tribe argued that, because the State of Utah55
was a party in Ute V and to the Judgment by Consent, Wasatch Appellees are bound by
the Ute III and Ute V rulings and the Judgment by Consent. That, however, is incorrect.
See Association for Retarded Citizens of Connecticut v. Thorne, 30 F.3d 367, 368-70 (2nd
Cir. 1994)(All Writs Act does not authorize the Court to enforce a private Judgment by
Consent against a non-party to that agreement). Admittedly Utah Counties, through their
respective county attorneys, are authorized to enforce State law and in doing so, they
function as State officials. See Utah Code §17-18a-401(1). But a county attorney is not
a State officer in all circumstances. See Allison v. Utah County Corporation, 335 F. Supp.
2d 1310, 1317 (D. Utah 2004)(county attorney not entitled to Eleventh Amendment
immunity because he is a county, not a State, officer). He or she is a County officer. See
23
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 32
HISTORY OF THE CASE
By way of its Motion for Preliminary Injunction before the District Court,
the Ute Tribe sought to enforce the Judgment by Consent, the Jurisdictional Maps
agreed to by the parties as part of that Judgment by Consent, and the Ute V
decision against Wasatch Appellees who were not parties to the Judgment by
Consent or even participants in the Ute cases. In its Reply in Support of Its Motion
for Preliminary Injunction, the Ute Tribe argued that Wasatch County was bound
by Ute V and the Judgment by Consent under the Doctrine of Virtual
Representation, because its interests are totally aligned with the State. But that is56
clearly not so because, otherwise, joining Duchesne and Uintah Counties and the
municipalities in the Ute V litigation, and the power sharing Agreements
constituting part of the Judgment by Consent would have been unnecessary. 57
Utah Code § 17-18a-202. The County Attorney also enforces the County’s laws and
ordinances. See Utah Code § 17-18a-401(2) & -501.
See App. 328-30.56
See Supp. App. 417-422. 57
24
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 33
More importantly, this argument was considered and obviously rejected by the
District Court. 58
The District Court denied that Motion because the Ute Tribe “failed to
demonstrate the irreparable injury necessary for the . . . issuance of a preliminary
injunction at this time.” The Tribe insists that, based upon this language, the only59
issue is whether it met the irreparable injury requirement. This, however, ignores
the fact that the District Court obviously considered the other requirements for its
issuance of a Preliminary Injunction during the hearing on the Tribe’s Motion and
See Transcript, App. 389-90. Before the District Court, the Tribe likewise58
asserted that Wasatch County was somehow bound by the Judgment by Consent. But the
case law is to the contrary. See Thorne, 30 F.3d at 368-70.
District Court Order, App. 354. In that same Order, the Court also denied59
Wasatch Appellees’ Motion to Dismiss (App. 174) based upon the Anti-Injunction Act, 28
U.S.C.§ 2283, and the Younger Abstention Doctrine. The Tribe implies that Wasatch
Appellees’ failure to appeal that ruling is significant. Tribe Brief, p. 13 fn. 8. But that
was an interlocutory ruling, not an appealable order. Similarly, the Tribe asserts that,
because this Court granted its Motion to Stay Pending Appeal, this Court has already
“effectively decided the very issue that is before the Court on the merits, holding, at least
implicitly, that the Tribe had established irreparable harm as a matter of law.” Tribe’s
Brief, p. 14. Wasatch Appellees strongly disagree. In granting the Tribe’s Motion for an
injunction pending appeal, this Court stated: “The test for an injunction pending appeal
and for a preliminary injunction are essentially the same” Order, Document 01019224500
p. 2. However, a District Court’s denial of an injunction is reviewed for an abuse of
discretion, which this Court did not consider when granting the Tribe’s Motion for an
injunction pending appeal. Accordingly, the grant of the injunction pending appeal does
not mean that the Court of Appeals has made a decision on the merits or that the District
Court abused its discretion.
25
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 34
noted that: (1) especially in light of Strate v. A-1 Contractors, Ute V did not60
decide whether Wasatch County had the jurisdiction over a tribal member for an
offense committed on a State road; (2) because of the Judgment by Consent61
entered on remand of Ute V, it was also not clear that there was an enforceable
judgment even as to any parties to that litigation, let alone non-party Wasatch
County; and (3) Defendants “[have] a serious interest in this matter” because “[i]f62
someone is driving impaired on . . . state highways that the state opens up for its
citizens to travel across the national forest and an Indian reservation, . . . they have
a significant interest in trying to make sure that those roadways are safe for their
citizens.” But even if the District Court had not mentioned these other factors,63
this appeal is not confined to whether or not the Tribe made the requisite showing
of irreparable injury.
520 U.S. 438 (1997). 60
Transcript of Hearing, App. 378, 386-87. 61
See id. 402. The District Court also heard argument on and obviously62
considered in its ruling the fact that because this was a private Judgment by Consent, it
was not enforceable against non-parties. Id.. 390-91.
Id. 414. The State likewise has a significant interest in seeing that only licensed63
drivers operate vehicles on its roadways, in addition to an interest in discouraging drunk
or impaired drivers.
26
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 35
While the District Court mentioned irreparable injury as a reason to deny the
Motion, it did not say that was the only reason. Neither did the District Court find
that the Tribe had established the other three requirements for injunctive relief: (1)
a substantial likelihood of the Tribe’s success on the merits; (2) the threatened
injury to the Ute Tribe outweighs any potential harm to the State or County; and (3)
the injunction, if issued, would not adversely affect the public interest. Thus, in64
order to prevail on its appeal, the Ute Tribe must show that it met these additional
requirements for the issuance of a Preliminary Injunction, and it cannot. Another65
issue is whether this Court can make those additional mandatory findings or
whether, if the District Court abused its discretion on the question of irreparable
injury, this Court should remand for the District Court to rule on those matters,
See Prairie Band of Potawatomi Nation, 476 F.3d at 822.64
See City of Sherrill, 544 U.S. at 214 (questions not explicitly mentioned in the65
lower Court’s decision but essential to the analysis of the ruling are subsidiary issues
fairly subsumed in the question under review). Cf. Sandoval, 29 F.3d at 542 fn. 6
(Appellate Court may affirm the District Court on any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the District
Court).
27
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 36
after allowing the parties to fully develop the relevant factual record, either in the
District Court or State Court.
SUMMARY OF ARGUMENT
The District Court applied the correct legal standard and did not abuse its
discretion in denying the Tribe’s Motion for Preliminary Judgment, because the
Court properly found that the Tribe had failed to establish a risk of irreparable
harm in the absence of the requested injunction. Moreover, the Tribe did not and
cannot establish any of the four prongs of the test for issuance, the absence of any
of which is fatal to a request for preliminary injunction. Significantly, the Tribe
has not challenged any of the District Court’s findings upon which its finding of no
risk of irreparable harm was based.
With this lawsuit, the Ute Tribe seeks an Order permanently enjoining
Wasatch County from exercising criminal and civil jurisdiction over “Indians”
within the National Forest Lands of Wasatch County. What the Ute Tribe is
essentially seeking is a safe-haven or sanctuary for its members who commit crimes
within the State of Utah. Not only does the Ute Tribe contend that its members, or
any “Indian” for that matter, cannot be prosecuted by Wasatch County for offenses
allegedly occurring on State and County roads passing through a National Forest,
28
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 37
but, in essence, it is also the Tribe’s position that if a member or other Indian
commits a crime, even a serious felony, off-Reservation that tribal member or other
Indian is entitled to sanctuary from past and present crimes if he or she can reach
the Reservation’s borders or “Indian Country” prior to being apprehended by state
and/or local law enforcement. The relief sought by the Ute Tribe, however, would
be impinge upon Wasatch County’s exercise of its police power guaranteed under
the Tenth Amendment. 66
The Ute Tribe likewise seeks this extraordinary relief based upon the holding
in Ute V, and the Judgment by Consent entered after remand of that case. But that
Judgment by Consent was a contract and because it was a contract, it cannot be
enforced against a non-party like Wasatch County and/or modified as requested by
the Ute Tribe to vest the Tribe with jurisdiction over National Forests in Wasatch
County, including public roads and right-of-ways within those National Forests,
which was not addressed in the Judgment by Consent. Furthermore, Ute V was
both superseded by the Judgment by Consent and essentially overruled by United
States Supreme Court decisions. Ute V was decided in large part on the basis of the
See generally United States v. Morrison, 529 U.S. 598, 618 (2000)(“we can66
think of no better example of the police power, which the Founders . . . reposed in the
States, than the suppression of violent crime and vindication of its victims”).
29
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 38
Finality of Judgments Rule, which limits the force and applicability of that decision
to the particular parties and issues decided in that specific case. Therefore, the Ute
Tribe’s appeal should be denied, and the State should be allowed to proceed with
the prosecution of Ms. Jenkins. In addition, the parties should be allowed to
develop the factual record in this case so that the District Court can ultimately
decide the Tribe’s demand for a permanent injunction.
ARGUMENT
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION INDENYING THE TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION
This Court must affirm the District Court unless, in light of the evidence
presented in support of the Motion, the District Court abused its discretion by
denying the request for a Preliminary Injunction. This is a deferential standard67
because the standard for an abuse of discretion is high. In applying the abuse of68
discretion standard, a district court’s ruling is to be upheld unless it “is ‘arbitrary,
capricious, whimsical or manifestly unreasonable’ or when [the reviewing court is]
Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006); Prairie67
Band of Potawatomi Nation, 476 F.3d at 822 (citing SEC v. Pros Int'l, Inc., 994 F.2d 767,
769 (10th Cir.1993)).
See Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1205 (10th Cir.68
2003)(stating that the standard for abuse of discretion is high).
30
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 39
convinced that the district court ‘made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.’” Stated otherwise, a district69
court has abused its discretion only if either it “identified and applied [the wrong]
legal rule to the relief requested” or its “resolution of the motion resulted from a
factual finding that was illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” The Supreme Court has specifically70
recognized that a finding is not clearly erroneous if the evidence in the record will
support more than one interpretation of them based on inferences that may be
drawn from them.71
In the context of reviewing a decision on a motion for a preliminary
injunction, this Court has noted that “the standard of appellate review is simply
whether the issuance of an injunction [or not], in light of the applicable standard,
constituted an abuse of discretion” even though “the standard to be applied by the
Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003)(quoting Atlantic69
Richfield Co. v. Farm Credit Bank of Witchita, 226 F.3d 1138, 1163-64 (10th Cir. 2000)).
United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009)(en banc); see70
also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)(either application of an
erroneous view of the law or a clearly erroneous assessment of the evidence constitute
abuse of discretion).
Anderson v. Bessemer City, 470 U.S. 564, 577 (1985).71
31
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 40
district court . . . is stringent.” Moreover, the burden is on the moving party to72
establish all four prongs required for issuance of a preliminary injunction. 73
Because the Tribe failed to establish the necessary elements required for the grant
of its requested preliminary injunction, including but not limited to the requirement
of irreparable injury, the District Court did not abuse its discretion in denying the
Motion and its decision must be affirmed.
II. THE UTE TRIBE HAS NOT AND CANNOT MAKE THE NECESSARY SHOWINGS FOR A PRELIMINARY INJUNCTION
The Ute Tribe asserts that Wasatch Appellees did not controvert the
“documentary evidence” that the Tribe submitted in support of the Motion for a
Preliminary Injunction. That is not an accurate statement. It is well settled that74
only admissible evidence can be considered by a court in ruling on motions.75
Furthermore, a court may not consider either hearsay evidence or unsworn
Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 651 (10th Cir. 2004).72
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir.73
2013)(noting that failure to establish any single prong of the four-part test is fatal), aff’d
sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
Tribe’s Brief, p. 28.74
Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).75
32
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 41
documents submitted either in support of or in opposition to a party’s motion. A76
declaration or affidavit submitted in support of or in opposition to a motion must
also be based upon the witness’s personal knowledge, and “set out facts that77
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters.” A declarant or affiant also cannot state legal78
opinions or conclusions. Similarly, a declaration or affidavit that makes79
conclusory factual assertions or is based upon speculation is likewise deficient and
not to be considered by the court. Finally, even if the declaration or affidavit is80
neither hearsay nor speculation, and is otherwise free of conclusory statements
Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th Cir.76
1987); See Rogers v. Ford Motor Co., 952 F. Supp. 606, 610 (N.D. Ill. 1997).
See Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003)(statements not77
based upon affiant’s personal knowledge should be stricken).
Federal Rule of Civil Procedure 56(b)(4).78
See Fedler v. Oliverio, 934 F. Supp. 1032, 1047 (N.D. Ind. 1996).79
See, e.g., Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2nd Cir.80
1985); Koclanakis v. Merrimack Mutual Fire Insurance Co., 899 F.2d 673, 675 (7th Cir.
1990); First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co., 891 F. Supp. 510, 514 (N.D.
Cal. 1995).
33
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 42
(including legal opinions), it still must be relevant in order to be considered by the
Court. 81
The “documentary evidence” submitted by the Tribe in support of its Motion
was not based upon personal knowledge of the declarants, consisted of improper
legal opinions, contained conclusory rather than factual assertions and/or
constituted hearsay. For example, Ms. Jenkins stated that “my attorney informed
me that, after looking at a jurisdictional map, the area the state trooper listed on my
citation as the location of the alleged traffic offenses is in fact within Indian
Country.” Also, the letter to Ms. Jenkins’ counsel from the Superintendent of the82
BIA Uintah & Ouray Agency stated that the site of the stop “is deemed within the
realm of Indian Country according to Hagen and these lands are within the Original
boundaries of the Uintah Valley Reservation.” Wasatch Appellees asked the83
District Court to strike and not consider this and other such “evidence” submitted
by the Ute Tribe.84
See McKeithen v. S.S. Frosta, 430 F. Supp. 899, 905-906 (E.D. La. 1977).81
Jenkins Declaration ¶ 4, App. 124.82
Letter, App. 129.83
Memorandum Opposing Motion for Summary Judgment, App. 228, 231-235;84
Reply Memorandum re: Motion to Dismiss, App. 281, 294-297; Complaint ¶¶ 17-30, App.
34
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 43
More importantly, to obtain a Preliminary Injunction, the Ute Tribe was
required to show: (1) a substantial likelihood of success on the merits; (2)
irreparable harm unless an injunction is issued; (3) that the threatened injury to the
Ute Tribe outweighs any potential harm to the State of Utah or Wasatch County;
and (4) that the injunction, if issued, would not adversely effect the public
interest. The Ute Tribe, however, did not satisfy any of these requirements, which85
is why it is attempting to confine the scope of review to the issue of irreparable
injury.
A. Likelihood of Success on the Merits
The Ute Tribe has not shown that it is likely to succeed on the merits. The
Ute III and Ute V decisions do not support the Tribe’s claim of being likely to
succeed on the merits of this case and obtain a permanent injunction. Neither Ute
III nor Ute V addressed the question of Wasatch County’s regulatory authority over
the National Forest, including enforcement of laws on public roads crossing the
National Forest or to prosecute Ms. Jenkins for the continuing offenses of driving
17-19. This request to strike and objection was authorized by DUCivR 7-1(b)(1)(B).
Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.85
2007).
35
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 44
with a suspended license and without an interlock device installed on her vehicle.
But the United States Supreme Court did so in Nevada v. Hicks, and in Strate v.86
A-1 Contractors. 87
The Nevada Court held that states have jurisdiction to prosecute tribal
members for offenses committed off-reservation. Thus the Tribe has NO88
likelihood of success when it comes to the prosecution of Ms. Jenkins for driving
with a suspend license and without an interlock device on her vehicle.
Strate, decided approximately one week prior to Ute V (and not mentioned in
that decision), resolved the question of whether the State of North Dakota or a
tribal government had civil jurisdiction over public roads and rights-of-way passing
through a reservation. The United States Supreme Court came down on the side of
the State of North Dakota. Based upon Strate and its progeny, which hold that it89
is states and NOT Indian tribes that have regulatory authority over public roads and
533 U.S. 353 (2001).86
520 U.S. 438 (1997).87
Nevada, 533 U.S. at 362. 88
See Montana DOT v. King, 191 F.3d 1108 (9th Cir. 1997)(Montana’s89
jurisdiction over public right-of-way through reservation not subject to tribal authority or
control).
36
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 45
rights-of-way even if those roads are over trust lands within a reservation, Wasatch
County has the clear authority to enforce the laws of the State and the County upon
all public roads and rights-of-way within the County. The Ute Tribe, however,
ignores this precedent and for good reason: based upon Strate, the Tribe has little
likelihood of success on the merits with respect to the State’s right to prosecute Ms.
Jenkins for the speeding offense. In fact, the Strate decision is even more
compelling since the right-of-way given to the State of Utah in this case was across
the Uinta National Forest and not across trust lands as was the right-of-way in
Strate.
B. Irreparable Injury
A plaintiff satisfies the irreparable harm requirement by showing “a
significant risk that he or she will experience harm that cannot be compensated
after the fact by monetary damages.” Purely speculative harm will not meet this90
burden, and speculative harm is all that the Ute Tribe has presented in support of91
Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003).90
Id.91
37
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 46
its Motion. That is so because the harm advanced by the Ute Tribe consists solely92
of a fear that, years from now, it may receive an adverse ruling from some State or
Federal Court with respect to the status of the Uinta National Forest as not being
The Ute Tribe refers the Court to a number of cases in which the exercise of92
State authority with respect to Indians is supposedly “irreparable injury” as a matter of
law supporting the issuance of an injunction. But a fair reading of those cases does not
support the Ute Tribe’s claim. In Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d
1163 (10th Cir. 1998), for example, the Court enjoined the seizure of tribal property,
which is certainly not an issue in this case. Similarly, Comanche Nation v. United States,
393 F. Supp.2d 1196 (W.D. Okla. 2005), Wyandotte Nation v. Sebelius, 443 F.3d 1247
(10th Cir. 2005), Bishop Paiute Tribe v. County of Inyo, 275 F.3d 893 (9th Cir. 2002),
Seneca-Cayuga Tribe of Oklahoma v. Oklahoma, 874 F.2d 709 (10th Cir. 1989), Indian
County, U.S.A., Inc. v. Oklahoma, 829 F.2d 967 (10th Cir. 1987), California v. Cabazon
Band of Mission Indians, 480 U.S. 202 (1987), United Keetoowah Bank of Cherokee
Indians v. Oklahoma, 927 F.2d 1170 (10th Cir. 1991), and Choctaw Nation of Oklahoma
v. Oklahoma, 724 F. Supp 2d 1182 (N.D. Okla. 2010), wherein the various tribes sought
to enjoin the United States or individual States from regulating Indian gaming, are not
analogous to this case. The other case cited by the Tribe are similarly inapposite. See
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001)(enjoining
enforcement of state motor vehicle titling and licensing laws against motor vehicles
owned, titled and licensed by the tribe), Couer D’Alene Tribe v. Hammond, 224 F.Supp.
2d 1264 (D. Idaho 2002)(enjoining states from collecting motor fuel taxes); and
Winnebago Tribe v. Stovall, 205 F. Supp. 2d 1217 (D. Kan. 2002) (same). In each of
those instance, the states were taking direct action against the tribe which, again, are not
the facts of the instant case. The Tribe also cites South Dakota v. Cummings, 679 N. W.
2d 484 (S.D. 2004) and Farmington v. Benally, 892 F.2d 629 (10 Cir. 1995), for theth
proposition that a constitutional violation is an irreparable harm. However, these two
cases do not address irreparable harm or injunctive relief. Perhaps, more importantly,
South Dakota and Farmington are state court cases wherein the state courts were allowed
to determine their own jurisdiction. It is also noteworthy that much of the decisional law
relied upon by the Ute Tribe either pre-dates or does not address the United States
Supreme Court’s decision in Nevada v. Hicks, 533 U.S. 353 (2001), wherein it was
conclusively established that State authority does NOT end at a reservation’s borders
because reservations are part of the State. Id. at 361.
38
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 47
part of its Reservation, which is not an issue before the Court in this case. The
issue in this case is the State of Utah’s and Wasatch County’s jurisdiction over a
public road for which the State received a right-of-way easement from the United
States. Furthermore, the possible future diminishment of the Reservation by the
removal of National Forest Lands is not sufficient harm for the injunctive relief
being sought by the Ute Tribe. That harm is purely speculative. 93
It is significant that the Tribe’s Brief nowhere contests any of the District
Court’s findings of fact that go to the issue of lack of risk of irreparable harm.
Indeed, the District Court specifically noted that its decisions was based on the fact
that the Tribe had not established a risk of irreparable harm “at this time.”94
The Tribe’s argument likewise presumes that the Utah State Courts will incorrectly
decide jurisdictional issues brought before them, which is not only contrary to the
legal principle that state courts be allowed to determine their own jurisdiction and95
Every litigant fears losing. If the Tribe’s fear constitutes “irreparable harm,”93
courts will be forced to grant injunctions to any litigant who asserts fear of losing as
potential irreparable harm.
App. at 354 (emphasis added).94
United States v. United Mine Workers, 330 U.S. 258, 292 fn.57 (1947).95
39
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 48
to the presumption that state courts “act in good faith and with judicial wisdom,”96
and likewise assumes that any appeal from an unfavorable decision to the Utah
Supreme Court or United States Supreme Court would also be wrongly decided.
There is also the matter of the Ute Tribe’s delay in bringing this issue before
the Court. Prior to this case, the Ute Tribe has never contested Wasatch County’s
and/or the State of Utah’s exercise of civil and regulatory authority over its
members committing offenses within the Uinta National Forest, including citing
them for traffic offenses on State highways that traverse that land. The Ute Tribe’s
delay in making such a challenge certainly undermines any claim that there is
irreparable harm. This delay likewise raises the issue of whether the Tribe’s97
belated assertion of jurisdiction over National Forest Lands within Wasatch County
is barred by the doctrine of latches, but that question has not been decided, and98
cannot be without a factual record.
Silverman v. Browning, 414 F. Supp. 80, 88 (D. Conn. 1976).96
GTE Corporation v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). 97
See supra fn. 4.98
40
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 49
C. Balance of Harm
Issuance of an injunction will cause greater harm to Wasatch County than to
the Tribe because the County will be unable to protect its citizens, including tribal
members, on public roads. The Tribe argues that there is no vital State or County
interest in the criminal prosecution of Ms. Jenkins and proffers two cases in
support of this contention: Seneca-Cayuga Tribe of Oklahoma v. State of
Oklahoma, and Indian Country, U.S.A., Inc. v. Okla. Tax Comm’n. But these99 100
cases are not helpful to the Tribe because they involved situations in which the
federal interests clearly outweighed those of the states because, in both, the State of
Oklahoma was attempting to regulate tribal gaming which had been
congressionally approved, and as held in Indian Country, Oklahoma’s efforts to
regulate tribal gaming had been pre-empted by federal law. These were not cases
involving the prosecution of traffic offenses by an individual tribal member under
State and/or County law, which are matters of enforcement of local criminal law,
874 F.2d 709 (10th Cir. 1989).99
829 F.2d 967 (10th Cir. 1987).100
41
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 50
not federal regulatory law. Here, by contrast, the District Court correctly found101
that both the State and County had “a significant interest in trying to make sure that
those roadways are safe for their citizens.” Furthermore, no evidence in the102
record demonstrates whether any law enforcement agency would fill the void if the
injunctive relief requested by the Tribe were granted. The Balance of Harm factor
clearly favors Wasatch County and the State.
D. Public Interest
Notwithstanding the Ute Tribe’s conclusory assertions to the contrary, the
public interest will be adversely affected by the injunctive relief sought in this case.
The public interest is best served by a judicial determination, after full discovery
and development of the facts and law, with respect to the State of Utah’s and
Wasatch County’s right to patrol and enforce the laws against all persons on public
roads within the National Forest Lands. The public interest is also best served by
See Poulson v. Turner, 359 F.2d 588, 591 (10th Cir. 1966)(Under federalism,101
the administration of criminal justice is generally committed to the states).
Transcript of Hearing, App. 414.102
42
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 51
having law enforcement take place on these public roads until that jurisdictional
issue has been decided, which was duly noted by the District Court.103
Because the Tribe failed to establish any of the four requirements for
issuance of a preliminary injunction, the District Court properly denied the Tribe’s
Motion, did not abuse its discretion in so doing, and therefore must be upheld.
The followings sections address alternative grounds that this Court is free to rely
on in affirming the District Court’s decision.
III. NATIONAL FOREST LANDS ARE NOT PARTOF THE RESERVATION
According to the reasoning of the United States Supreme Court in Hagen,
the Uinta National Forest, where Ms. Jenkins was stopped and cited, is not part of
the Reservation and/or “Indian Country.” In Hagen, the Court held that: “[T]he
restoration of unallotted reservation lands to the public domain evidenced a
congressional intent with respect to those lands inconsistent with the continuation
of reservation status. Thus, . . . the surplus land Act . . . diminished the
reservation.” While the Hagan decision did not address the status of National104
See Transcript, App. at 414.103
Hagen v. Utah, 510 U.S. 399, 414 (1994).104
43
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 52
Forest Lands, a similar careful analysis with respect to those lands would
inexorably lead to the conclusion that the holding of Ute V with respect to National
Forest Lands (based on the doctrine of the law of the case and not a reexamination
of the premises on which Ute III was decided) is an incorrect result.
Indeed, the decision of this District Court in Ute I performed exactly that
kind of careful analysis of the congressional intent behind the creation of the Uinta
National Forest, and held that the original boundaries of the Reservation had been
diminished by the withdrawal of the forest preserve. In particular, the Ute I105
opinion justified its conclusion that the withdrawal of timber lands under the Act of
March 3, 1905 diminished the Reservation by noting: (1) the language of the Act
itself; (2) legislative history of the Act (which expressed the intention that the106
forest lands were set aside free of any claims of the Ute Tribe); (3) the fact that107
forest preservation purposes were inconsistent with a determination that there had
been no diminution, creating a “dissonance” highlighted by subsequent action of
Congress with respect to the issue, including a payment to the Ute Tribe for the
Ute I, 521 F. Supp. 1072, 1136-42 & 1155.105
Id. at 1136.106
Id. at 1137.107
44
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 53
acres withdrawn as National Forest Lands (in lieu of the President’s proposal to
restore the forest land to tribal ownership); (4) as well as the administrative108
handling of the forest lands, including the jurisdiction of the Department of
Agriculture rather than the Department of the Interior.109
Wasatch Appellees, therefore, respectfully submit that the decision in
Hagen, that the Reservation was diminished to the extent of the unallocated lands
returned to the public domain, requires a fortiori the conclusion that the withdrawal
of National Forest Lands also diminished the Reservation, particularly given the
fact that the district court’s decision in Ute I found sufficient evidence of
diminution as to National Forest Service Lands, but not with respect to the
unalloted lands that were at issue in Hagen. Nevertheless, the Ute Tribe insists that
it is entitled to this injunctive relief as a matter of law because Ute V ends once and
for all the judicial debate about the State’s and Wasatch County’s authority over
State roads within the Uinta National Forest. However, and more to the point, Ute
V did not and does not end the debate as to the Reservation boundaries or the civil
and/or regulatory authority of the State and County over these National Forest
Id. at 1137-40.108
Id. at 1140-41.109
45
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 54
Lands and/or the public roads and rights-of-way that traverse those lands,
particularly because Wasatch County was not involved in the litigation that led to
the Ute V decision, nor a party to the subsequent Judgment by Consent.
This is necessarily so because the portion of Ute V upon which the Tribe
relies in support its request for this extraordinary injunctive relief was based upon
the applicability of the “Finality of Judgments Rule.” That Rule is founded on the
premise that litigation must end some time, and that a court’s mistake in the law
when entering judgment or a change in the judicial view of the law after judgment
does not justify setting a judgment aside. The need for a Finality of Judgments110
Rule is obvious, otherwise every time an appellate court decision changed existing
law there would be a rush to the courthouse to reopen cases and to set aside
judgments based upon the change. This is reflected by the Tenth Circuit’s decision
in Ute V. Hence, the Finality of Judgments Rule supported the Ute III decision as
modified by Ute V.
The Finality of Judgments Rule, however, does not apply as broadly as the
Ute Tribe suggests here because it is actually part of the “law of the case doctrine,”
which is comprised of two prongs: (1) the mandate rule, which prohibits a lower
Collins v. The City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958).110
46
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 55
court from relitigating issues that have been decided in the same case by a higher
court; and (2) the general rule that unless corrected by an appellate court, a legal
decision made at one stage of a case constitutes the law on that issue throughout
that case. Moreover, the law of the case doctrine only applies to parties who111
have had their day in court; whereas the injunctive relief requested by the Ute112
Tribe in this case reaches beyond the parties to that prior litigation and the issues
litigated, such as the County’s and the Tribe’s regulatory authority over National
Forest Lands as well as public roads passing through them. Furthermore, the Uinta
National Forest does not meet the definition of “Indian County.”
As analyzed by the United States Supreme Court, in considering the scope of
“Indian Country”: “[T]he test for determining whether land is Indian country [is]
. . . whether the area has been validly set apart for the use of the Indians as such,
under the superintendence of the Government.” This Court’s own precedent is113
See McCullen v. Coakley, 759 F. Supp. 2d 133, 136 (D. Mass. 2010), aff’d, 708111
F.3d 1, 6 (1st Cir. 2013), rev’d on other grounds, 134 S.Ct. 2518 (2014).
See Board of Commissioners for the Orleans Levee District v. Newport112
Limited, 578 So.2d 191, 193 (La. App. 1991).
Oklahoma Tax. Comm’n v. Citizen Bank Potawatomi Indian Tribe of Okla.,113
498 U.S. 505, 511 (1991)(citing United States v. John, 437 U.S. 634 (1978)(internal
quotations omitted); see also South Dakota v. United States DOI, 475 F.3d 993, 999 (8th
Cir. 2007).
47
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 56
consistent with, and has applied the principle that “Indian country” encompasses
only land “set apart for the use of the Indians as such.” 114
Here, the land in question is National Forest Land, the purposes of which are
not limited to or provided for the benefit of Indians. Indeed, National Forests are
held and administered “for the purpose of securing favorable conditions of water
flows, and to furnish a continuous supply of timber for the use and necessities of
citizens of the United States.” Clearly the purposes behind the set aside of115
National Forest Lands is not for the use of Indians, but the citizens of the United
States as a whole. In light of such purposes, the set aside of National Forest Lands
from within what may have been the original boundaries of the Ute Tribe’s
reservation is inconsistent with the view that such lands have not been withdrawn
from the Reservation, and the National Forest Lands also do not fall within the
definition of “Indian country.” 116
Hydro Resources, Inc. v. EPA, 1131, 1148 (10th Cir. 2010)(en banc).114
16 U.S.C. § 475.115
This position is not inconsistent with the statutory definition of “Indian country”116
under 18 U.S.C. § 1151, which limits “Indian country” to (a) “land within the limits of
any Indian reservation”; (b) dependent Indian communities; and (c) unextinguished
Indian titles under Indian allotments, because the set-aside requirement is subsumed in the
use of the term “reservation” in clause (a). While this definition, by its terms, relates only
to federal criminal jurisdiction, the Supreme Court has acknowledged its importance in
48
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 57
IV. THE ANTI-INJUNCTION ACT DOES NOT SUPPORT THE UTE TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION
The Anti-Injunction Act provides that: “A court of the United States may not
grant an injunction to stay proceedings in a State court except as expressly
authorized by an Act of Congress, or where necessary in aid of its jurisdiction or to
protect or effectuate its judgments.” The Ute Tribe contends that, based upon117
Ute III and Ute V, the injunctive relief it seeks should be granted to preclude the
State and County from relitigating the Reservation’s boundaries through the
prosecution of Ms. Jenkins. Ute III and Ute V , however, did not and do not end118
the debate as to the Reservation boundaries or the civil and/or regulatory authority
of Wasatch County over the National Forest Lands and/or the public roads and
rights-of-way that traverse those lands, especially since Wasatch County was not a
defining civil jurisdiction as well. See Alaska v. Native Village of Venetie Tribal Gov’t,
522 U.S. 520, 527 (1998) (also holding that, to constitute “Indian country,” land must
have been both set aside for “use of the Indians as Indian land” and “be under federal
superintendence”). See also Hydro Resources, Inc., 608 F.3d at 1148 (noting that
“[t]hrough an Act of Congress or some equally explicit executive action, . . . the federal
government must identify the land as ‘set apart for the use of Indians as such.’”).
Withdrawal of the National Forest Lands from the Ute Reservation therefore effectuated
its exclusion from the definition of the term “Indian country.”
28 U.S.C. § 2283.117
Tribe’s Brief, pp. 21-22.118
49
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 58
party to the litigation that led to the Ute III and Ute V decisions, or the subsequent
Judgment by Consent. More importantly, as noted by the District Court, these119
decisions did not address Wasatch County’s jurisdiction over public roads and
rights-of-way that traverse National Forest Lands within the County. There is,
therefore, no res judicata or collateral estoppel at play in this case. In short, the
“relitigation exception” in the Anti-Injunction Act does not apply to Wasatch
County because it is not “relitigating” anything.
The Ute III and Ute V decisions are also not binding upon Wasatch County
because that portion of Ute V upon which the Tribe relies to support its argument
about the applicability of the Anti-Injunction Act was based upon the “Finality of
Judgments Rule” which has no applicability to the County. Furthermore, the issue
of the Ute Tribe’s jurisdiction over Federal, State and County roads within Wasatch
County was not even mentioned, much less addressed in an unambiguous manner
in the Judgment by Consent. In addition, the Utah governmental entities that were
a party to Ute V and the Judgment by Consent never agreed to divest themselves of
civil and criminal jurisdiction over the National Forests Lands in Utah. Wasatch
County, not having been a party to either Ute V or the Judgment by Consent, is in
Transcript of Hearing, App. 378, 386-87.119
50
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 59
an even stronger position, having never agreed to cede to the Ute Tribe (nor could
the State or Wasatch County have ceded to the Ute Tribe) the jurisdiction that the
Tribe seeks in this lawsuit. 120
Thus, Ute III, Ute V and/or the Judgment by Consent cannot serve as a basis
for the injunctive relief that the Tribe is now seeking. The Tribe’s claim that the121
County is without jurisdiction over offenses committed by “Indians” does not alter
that fact. Neither does it matter that the Ute Tribe is asking for a judicial122
declaration on the issue of Wasatch County’s jurisdiction in addition to an
injunction against prosecution. Hence, the declaratory-injunctive relief requested123
This is so because, as previously noted, if those persons living or present in that120
vast area of Utah were to be subjected to the governmental authority of the Ute Tribe,
they would enjoy none of the protections of the Bill of Rights or the Fourteenth
Amendment, and not even the United States can give away the constitutional rights of its
citizens. Reid v. Covert, 354 U.S. 1 (1956)(Congress cannot, by treaty or legislation, give
away the rights provided to citizens under the Constitution).
See Association for Retarded Citizens of Connecticut, 30 F.3d at 368-70 (All121
Writs Act does not authorize the Court to enforce a private Judgment by Consent against a
non-party to that agreement).
See Alexander Bird In The Ground v. District Court, 239 F. Supp. 981, 983 (D.122
Mont. 1965)(a potential civil rights violation will not override the limitations of 28 U.S.C.
§ 2283).
When the Court is precluded from enjoining state court proceedings, it is123
likewise precluded from proceeding to issue a declaratory judgment that would have
essentially the same effect as an injunction. See Chandler v. O’Bryan, 445 F.2d 1045,
1058(10th Cir. 1971); Neway Anchorlok International, Inc. v. Longwood Indusries, Inc.,
51
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 60
by the Tribe is NOT necessary to promote or effectuate those judgments, and
therefore is not within that exception to the Anti Injunction Act, because Wasatch
County is not bound by them. Therefore, the Anti-Injunction Act precludes the
District Court from enjoining the prosecution of Ms. Jenkins.
The Supreme Court has indicated that, in applying use of the “relitigation
exception” to the Anti-Injunction Act, “every benefit of the doubt goes toward the
state court,” and “an injunction can only issue if the preclusion is clear beyond
peradventure,” because the use of such an injunction “is resorting to heavy
artillery.” Moreover, because “the issue the federal court decided must be the124
same as the one presented in the state tribunal,” the Ute Tribe cannot meet this125
requirement. The issues raised by the Ute cases concerned the extent of the
diminishment or disestablishment of the Ute Reservation, whereas the state
proceeding in this matter entails the related, but distinct, issues of whether Wasatch
County and the State of Utah may bring a criminal prosecution of a particular
defendant for criminal conduct on a State road, the elements of which may not have
107 F. Supp. 2d 810, 813 (W.D. Mich. 1999).
Smith v. Bayer Corp., 113 S. Ct. 2368, 2375 (2011)(emphasis added).124
Id., 113 S. Ct. at 2376.125
52
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 61
occurred within the exterior boundaries of the Ute Reservation or the National
Forests. The Ute cases never dealt with issues of state court jurisdiction over
Tribal members for off-reservation criminal conduct, even if an arrest occurs within
Indian country. The Ute Tribe’s characterization of the issues and facts of this case
cannot overcome the fact that the state court prosecution in this case involves
different issues than those in the Ute cases. Therefore, because the relief sought by
the Ute Tribe here does not fall within the narrow exception to the Anti-Injunction
Act, it is barred by that Act.
The requested relief is also barred by the Younger Abstention Doctrine,
pursuant to which “[a]bsent unusual circumstances, a federal court is not permitted
to intervene in ongoing state criminal procedings” when adequate state relief is
available. Moreover, abstention is mandatory if (1) there is an ongoing state126
criminal or civil proceeding, (2) “the state court provides an adquate forum to hear
the claims raised in the federal complaint,” and (3) “the state proceedings involve
Walck v. Edmondson, 472 F.3d 1227, 1232 (10th Cir. 2007)(citing Younger v.126
Harris, 404 U.S. 37, 54 (1971)).
53
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 62
important state interests, matters which traditionally look to state law for their
resolution or implicate separately articulated state policies.”127
All three of the conditions for mandatory abstention are present here: there is
an ongoing state criminal prosecution, the state court provides an adequate forum
for the claims raised in the federal complaint (including the question of whether the
state has jurisdiction over the defendant under the circumstances of the case), and
the state proceedings involve substantial state interests (including the protection of
motorists using public rights of way and the sanctity of sanctions imposed in prior
proceedings) and traditional state matters.
STATEMENT OF COUNSEL AS TO ORAL ARGUMENT
Oral argument is not requested. The law with respect to the Ute Tribe’s
request for injunctive relief is well established. Hence, Wasatch Appellees submit
that oral argument would not be of assistance to the Court in deciding this case.
CONCLUSION
The Ute Tribe concludes its Brief with an offensive analogy comparing
Wasatch Appellees refusal to accept its view of the law to the late Governor of
Alabama George C. Wallace’s infamous promise of “segregation now, segregation
Id. at 1233 (citations and quotations omitted).127
54
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 63
tomorrow, segregation forever.” However, there is an analogy that can be drawn
and should be drawn from the civil rights struggle such as Plessy v. Ferguson,128
the 1896 case in which the United States Supreme Court held that segregation was
not unconstitutional. Under the Ute Tribe’s reasoning, following the Plessy
decision the Southern States would have been entitled to an Order prohibiting
anyone else from ever revisiting in any court or law-applying forum the issue of the
constitutionality of segregation, and further ordering that no one should obey any
court decision that was inconsistent with Plessy. Under the Tribe’s reasoning,
which is that although a matter effecting basic civil rights is wrongly decided it
cannot be challenged, we would not have Brown v. Board of Education, and129
segregation would still be the law of the land.
But rather than inflammatory rhetoric, the focus should be upon the fact that
the District Court did not abuse its discretion in denying the injunction sought by
the Ute Tribe. That denial is also bolstered by the principle that cautions that
“[a]ny doubts as to the propriety of a federal injunction against state court
proceedings should be resolved in favor of permitting the state courts to proceed in
163 U.S. 537 (1896).128
347 U.S. 483 (1954).129
55
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 64
an orderly fashion to finally determine the controversy.” Moreover, to hold130
otherwise would not only be contrary to the legal principle that state courts be
allowed to determine their own jurisdiction, but it would also be contrary to the131
presumption that State Courts “act in good faith and with judicial wisdom.” 132
Simply put, “when Federal questions arise in cases pending in the state courts,
those courts are perfectly competent to decide them.” “Mere apprehension that133
the state court will not adequately protect a federal right is not a sufficient basis for
the issuance of an injunction.” Wasatch Appellees, therefore, respectfully134
request that this Court affirm the District Court’s denial of a Preliminary Injunction
and vacate the Tenth Circuit’s Order staying the prosecution of Ms. Jenkins.
Atl. Coast Line R.R. Co. V. Bhd. Of Locomotive Eng’rs, 398 U.S. 281, 297130
(1970).
United States v. United Mine Workers, 330 U.S. 258, 292 n.57(1947). The Ute131
Tribe represents to the Court that the issue of jurisdiction in this instance will be decided
by a non-lawyer state court judge unless the preliminary injunction issues. That is not
true. While the justice court judge before whom Ms. Jenkins case is pending may be a lay
person, decisions of the justice court are appealed and decided de novo by the district
courts of the State of Utah. See Utah Code §78A-7-118 and Utah R. Cr. P. 38.
Silverman v. Browning, 414 F. Supp. 80, 88(D. Conn. 1976).132
Chandler, 445 F.2d at 1057-1058 (quoting from Missouri Pac. Ry. Co. v.133
Fitzgerald, 160 U.S. 556, 583 (1896)).
Id. at 1058.134
56
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 65
Dated this 11 day of August, 2014.th
SUITTER AXLAND, PLLC
/s/ jesse c. trentadue Jesse C. TrentadueCarl F. HuefnerNoah M. HoaglandBritton R. Butterfield
Attorneys for Wasatch County, Scott Sweat, and Tyler J. Berg
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 66
CERTIFICATE OF COMPLIANCE
Section 1. Word Count
As required by Fed. R. App. P. 32(a)(7)(c), I certify that this brief is
proportionally spaced and contains 13,907 words.
Complete one of the following:
X I relied on my word processor to obtain the count and it is
WordPerfect X4.
I counted five characters per word, counting all characters including
citations and numerals.
Section 2. Line Count
My brief was prepared in a monospaced typeface and contains 1,294 lines of
text.
I certify that the information on this form is true and correct to the best of my
knowledge and belief formed after a reasonable inquiry.
/s/ jesse c. trentaude
58
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 67
CERTIFICATE OF DIGITAL SUBMISSION and PRIVACY REDACTIONS
I hereby certify that a copy of the foregoing WASATCH APPELLEES’
BRIEF, as submitted in Digital Form via the court’s ECF system, is an exact copy
of the written document filed with the Clerk and has been scanned for viruses with
the Avast version 4.8, updated daily and, according to the program, is free of
viruses. In addition, I certify that all required privacy redactions have been made.
/s/ jesse c. trentadue
59
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 68
CERTIFICATE OF SERVICE
I, Jesse C. Trentadue, counsel for Defendant and Appellee hereby certify that on the
11 day of August, I served two copies of the foregoing WASATCH APPELLEES’th
BRIEF plus one copy of the SUPPLEMENTAL APPENDIX along with a disk
containing an electronic copy of both via U.S. Mail, postage prepaid, upon:
J. Preston Stieff
J. PRESTON STIEFF LAW OFFICES
136 East South Temple, Suite 2400
Salt Lake City, Utah 84111
Attorneys for Plaintiff-Appellant Ute
Indian Tribe
Randy S. Hunter
Katharine H. Kinsman
Assistant Utah Attorney General
Sean D. Reyes
Utah Attorney General
Utah State Capital
350 North State St., Ste. 230
Salt Lake City, UT 84114-2320
Attorney for Defendant-Appellee State of
Utah
Frances C. Bassett, Pro Hac Vice
Todd K. Gravelle, Pro Hac Vice
FREDERICKS PEEBLES & MORGAN LLP
1900 PLAZA Drive
Louisville, CO 80027-2314
Attorneys for Plaintiff-Appellant Ute
Indian Tribe
Jeffrey S. Rasmussen, Pro Hac Vice
FREDERICKS PEEBLES & MORGAN LLP
1900 Plaza Drive
Louisville, Colorado 80027-2314
Attorneys for Plaintiff-Appellant Ute
Indian Tribe
/s/ jesse c. trentadue
T:\4000\4530\122\WASATCH 10TH CIRCUIT BRIEF.wpd
60
Appellate Case: 14-4034 Document: 01019293398 Date Filed: 08/11/2014 Page: 69