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STILLAGUAMISH RESPONSE IN OPP. TO DEFS. MOT. FOR SUMM. J. (Case No. 3:16-cv-05566) 69519041V.1
KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700
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The Honorable Robert J. Bryan
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT TACOMA
STILLAGUAMISH TRIBE OF INDIANS, a federally-recognized Indian tribe,
Plaintiff,
v.
STATE OF WASHINGTON; ROBERT W. FERGUSON, in his official capacity as Attorney General of Washington;
Defendants.
Case No.: 3:16-cv-05566-RJB
PLAINTIFF STILLAGUAMISH TRIBE OF INDIANS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
NOTE ON MOTION CALENDAR: AUGUST 4, 2017
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TABLE OF CONTENTS
Page
ARGUMENT .................................................................................................................................. 2
A. There Has Been No Express Waiver of the Tribe’s Sovereign Immunity ..................... 2
1. No Tribal Board Resolution Ever Mentions the Agreement .......................................... 3
2. The 1998 Resolution Has Nothing to Do With the Agreement ...................................... 4
3. The 2004 Resolution Relates to a 2003 Flood and Has Nothing to Do With the Agreement ...................................................................................................................... 6
4. The 1998 and 2004 Resolutions Do Not Provide the Requisite Waiver ......................... 7
B. Claim and Issue Preclusion Are Unavailable ................................................................. 7
1. Judge Jones’s Comment is Not Entitled to Preclusive Effect ......................................... 8
a. The State Misconstrues the Ultimate Issue in Pilchuck Grp. II and In this Case ....... 9
b. The Tribe Litigated The Effect of An Unauthorized Waiver of Sovereign Immunity in Pilchuck Grp. II and Won ................................................... 11
c. The Court’s Finding In Pilchuck Was Not A “Necessary Part of The Judgment” ... 12
2. The Same Basis for Prevailing on Sovereign Immunity That Was Determinative in Pilchuck Grp. II Is Determinative in This Case ........................................................... 13
C. The Court Should Sua Sponte Sanction the State ......................................................... 14
CONCLUSION ............................................................................................................................. 15
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TABLE OF AUTHORITIES
Page
FederalCases
Amerind Risk Management Corp. v. Malaterre 633 F.3d 680 (8th Cir. 2011) ...................................................................................................... 2
Attorney’s Process and Investigation Serv., Inc. v. Sac & Fox Tribe of the Mississippi in Iowa 609 F.3d 927 (8th Cir. 2010) ...................................................................................................... 3
Barber v. Miller 146 F.3d 707 (9th Cir. 1998) .................................................................................................... 14
Bobby v. Bies 556 U.S. 825 (2009) .................................................................................................................. 12
Cook v. AVI Casino Enters., Inc. 548 F.3d 718 (9th Cir. 2008) ...................................................................................................... 2
Cooter & Gell v. Hartmarx Corp. 496 U.S. 384 (1990) .................................................................................................................. 14
Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t 533 F.3d 780 (9th Cir. 2008) ...................................................................................................... 1
Estate of Blue v. Cnty. of L.A. 120 F.3d 982 (9th Cir. 1997) .................................................................................................... 14
Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two 249 F.3d 1132 (9th Cir. 2001) .................................................................................................... 1
Impact Energy Res., LLC v. Salazar 693 F.3d 1239 (10th Cir. 2012) .................................................................................................. 1
In re Associated Vintage Grp., Inc. 283 B.R. 549 (B.A.P. 9th Cir. 2002)........................................................................................... 8
Kamilche Co. v. United States 53 F.3d 1059 (9th Cir. 1995), opinion amended on reh'g sub nom. Kamilche v. United States 75 F.3d 1391 (9th Cir. 1996) ...................................................................................................... 9
Littlejohn v. United States 321 F.3d 915 (9th Cir. 2003) ...................................................................................................... 9
Memphis Biofuels v. Chickasaw Nation Industries 585 F.3d 917 (6th Cir. 2009) ...................................................................................................... 2
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KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700
SEATTLE, WA 98101 (206) 467-9600
N. Arapaho Tribe v. Harnsberger 697 F.3d 1272 (10th Cir. 2012) .................................................................................................. 7
Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla. 498 U.S. 505 (1991) .................................................................................................................... 7
Parklane Hosiery Co., Inc. v. Shore 439 U.S. 322 (1979) .................................................................................................................. 12
Parmelee Transp. Co. v. United States 351 F.2d 619 (1965) .................................................................................................................. 13
Resolution Trust Corp. v. Keating 186 F.3d 1110 (9th Cir. 1999) .................................................................................................. 12
Sanderlin v. Seminole Tribe of Florida 243 F.3d 1282 (11th Cir. 2001) .............................................................................................. 2, 3
Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978) ...................................................................................................................... 2
Segal v. American Tel. & Tel. Co., Inc. 606 F.2d 842 (9th Cir. 1979) .................................................................................................... 12
Shapley v. Nevada Bd. of State Prison Comm'rs 766 F.2d 404 (9th Cir. 1985) ...................................................................................................... 8
Townsend v. Holman Consulting Corp. 929 F.2d 1358 (9th Cir. 1990) .................................................................................................. 14
United States v. Mendoza 464 U.S. 154 (1984) .............................................................................................................. 8, 12
World Touch Gaming, Inc. v. Massens Mgmt, L.L.C. 117 F. Supp. 2d 271 (N.D. N.Y. 2000) ....................................................................................... 2
FederalRules
Federal Rules of Civil Procedure Rule 11 (Advisory Committee Notes (1993)) ......................... 14
SecondarySources
18 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. (3rd ed) ......................... 8, 10, 12
Restatement (Second) of Judgments § 27 (1982) ......................................................................... 13
Restatement (Third) of Agency § 2.01 (2006) .............................................................................. 11
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RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Stillaguamish Tribe of Indians (“Tribe”) hereby responds in opposition to the
State Defendants’ Motion for Summary Judgment, filed on June 27, 2017 (Dkt. # 26).
The State’s Motion is a naked money grab from the Tribe. Seeking to hold the Tribe
financially responsible for the State’s decision to voluntarily settle a third-party tort lawsuit for
$50 Million, and despite months of discovery, the State does not point to a single resolution of
the Tribe’s Board of Directors expressly approving or even mentioning the 2005 Salmon Project
Funding Agreement (“Agreement”), let alone expressly waiving the Tribe’s sovereign immunity
and authorizing Mr. Stevenson to sign the Agreement. Instead, the State relies on two prior
Board resolutions from 1998 (seven years before the Agreement was signed) and 2004 (one year
before the Agreement was signed) to boldly argue that it is “beyond dispute that the express
waiver of sovereign immunity in the [Agreement] was authorized and, therefore, valid.”
Resp. at 3. This statement could not be further from the truth. Neither resolution mentions or
relates to the Agreement. Neither resolution expressly authorized a waiver of sovereign
immunity. And, contrary to the State’s effort to re-write the 1998 resolution and brazenly
misrepresent the 2004 resolution, neither resolution authorized anyone to sign the Agreement.
Nor does collateral estoppel save the State.
Where, as here, parties have filed cross-motions for summary judgment, “[e]ach motion
must be considered on its own merits.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside
Two, 249 F.3d 1132, 1135-36 (9th Cir. 2001). Courts “review each motion . . . separately, giving
the nonmoving party for each motion the benefit of all reasonable inferences.” Ctr. for Bio-
Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008); see
Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1244 (10th Cir. 2012) (“The party asserting
jurisdiction [here the State] bears the burden of proving that sovereign immunity has been
waived.”). As set forth below, the Tribe is entitled to judgment in its favor as a matter of law as
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there are no genuine material facts in dispute that neither the purported waiver of sovereign
immunity nor any provision of the Agreement is enforceable against the Tribe.
This Response is supported by the Memorandum of Points and Authorities below, the
Second Declaration of Rob Roy Smith, and exhibits thereto, Second Declaration of Patrick
Stevenson, the Declaration of Eric White, and the [Proposed] Order filed herewith.
ARGUMENT
A. There Has Been No Express Waiver of the Tribe’s Sovereign Immunity
The Tribe and the State agree that waivers of tribal sovereign immunity “cannot be
implied but must be unequivocally expressed” in the manner specified by the applicable tribal
governing documents. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Cook v. AVI
Casino Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008); Resp. at 14. Whether any individual
tribal official or employee has authority to waive a tribe’s sovereign immunity is determined by
tribal law. E.g., Memphis Biofuels v. Chickasaw Nation Industries, 585 F.3d 917, 922 (6th Cir.
2009) (finding a waiver of sovereign immunity ineffective when the tribe’s charter required that
the governing body pass a resolution waiving immunity, and no such resolution was passed; the
unauthorized person signing a provision purporting to waive sovereign immunity on behalf of a
tribal corporation, while clear, was invalid because the person who signed the waiver did not
have the authority to waive the tribe’s immunity under the terms of the corporate charter), cited
with approval Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680, 688 (8th Cir. 2011)
(finding, in absence of evidence that Board of Directors ever adopted a resolution waiving
immunity, no waiver of immunity); Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282,
1287-88 (11th Cir. 2001) (no effective waiver of sovereign immunity without a resolution from
the tribal council doing so, as required by tribal law); World Touch Gaming, Inc. v. Massens
Mgmt, L.L.C., 117 F. Supp. 2d 271, 275 (N.D. N.Y. 2000) (waiver of sovereign immunity only
valid if, pursuant to the tribe’s constitution and code, the waiver is authorized by tribe’s
governing council).
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There is no dispute that there is no Tribal Board resolution or other official Board action
(let alone a discussion) expressly authorizing Mr. Stevenson to waive the Tribe’s sovereign
immunity in the Agreement or to sign the Agreement. Dkt. # 29 at 2 (Yanity Decl., ¶¶ 5-6);
Dkt. # 31 at 1-2 (Connolly Decl., ¶¶ 2-3). Without any such authorization, there is no valid
waiver. See 42 C.J.S. Indians, at § 22 (Online Ed. 2008) (“A tribal official cannot waive the
tribe’s immunity unless authorized to do so by tribal law”); see also Sanderlin, 243 F.3d at 1287-
88 (without a resolution authorizing a tribal official to do so, the tribal official did not have
authority to waive the tribe’s sovereign immunity); Attorney’s Process and Investigation Serv.,
Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 945-46 (8th Cir. 2010) (same).
Acknowledging, and seeking to avoid, the fact that there is no Tribal Board resolution or
other official Board action specifically addressing the Agreement, the State argues in its Motion
that the Tribe’s immunity was nonetheless waived as to the 2005 Agreement because: (1) the
Tribe’s Board approved other contracts without clear waiver language in resolutions before
2010; and (2) a 1998 Resolution and a 2004 Resolution of the Tribe’s Board somehow effected
the necessary waiver of the Tribe’s immunity in the 2005 Agreement. The State is wrong on
both the facts and the law, and their argument fails a straightforward textual analysis of the two
resolutions.
1. No Tribal Board Resolution Ever Mentions the Agreement
The State’s first attempt to get around the absence of a resolution mentioning the
Agreement is to argue that the Tribal Board “routinely” approved transactions before 2010 that
waived sovereign immunity without those resolutions being memorialized in the authorizing
Tribal document. Mot. at 5, 16-17. It is true that the eight resolutions provided by the State do
not expressly reference the waivers of sovereign immunity in those contracts that were being
approved by the Board. However, the State misses the point. For these contracts—unlike the
Agreement—there is a Tribal Board resolution. In other words, these contracts—unlike the
Agreement—were brought to the Tribal Board for consideration at official Tribal Board
meetings. No such resolution exists for the Agreement and there is no evidence that the
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Agreement was ever discussed by the Board. Dkt. # 29 at 2 (Yanity Decl., ¶¶ 5-6); Dkt. # 31
at 1-2 (Connolly Decl., ¶¶ 2-3). That resolutions exist for these other contracts supports the
Tribe’s position as to the invalidity of the Agreement.
For every Tribal Board resolution that approves a contract with a waiver of sovereign
immunity without mentioning waiver in the resolution, there are examples of resolutions before
2005 that expressly address a waiver. Dkt. # 32-13 (Smith Decl., Ex. M at 3, 5) (resolution
providing a limited waiver of sovereign immunity to enforce rights arising under a Note);
Dkt. # 32-14 (id., Ex. N at 3) (providing limited waiver of sovereign immunity to the extent
specified within the Resolution); Dkt. # 32-16 (id., Ex. P at 3) (resolution providing a limited
waiver of sovereign immunity in an operating agreement); Dkt. # 32-17 (id., Ex. Q at 3)
(resolution providing a limited waiver of sovereign immunity as stated in two terms of an
operating agreement). The foregoing makes clear that, despite not having legal counsel, the
Tribe’s Board approved contracts with waivers of immunity up to and including the time of the
2005 Agreement—yet, there is no Tribal Board resolution ever addressing the Agreement.
There is no genuine issue of material fact that the Tribe did not waive its inherent
sovereign immunity as to the State in the Agreement because there is no resolution from the
Tribal Board concerning the Agreement and no evidence that the Board considered it.
2. The 1998 Resolution Has Nothing to Do With the Agreement
Factually, the State’s arguments fail. The State argues that Resolution 1998/41’s
direction that “Snohomish County and the Stillaguamish Tribe are hereby designated as the lead
entities to submit any such habitat restoration project lists and to seek lead entity grants that may
be available to fulfill ESHB 2496 requirements” means that the Tribe “authorized” Mr.
Stevenson signing the 2005 Agreement and waiving the Tribe’s sovereign immunity therein.
Mot. at 17-19 (emphasis added). This argument that the resolution is an unfettered issuance of
authority defies both ordinary principles of textual interpretation and common sense.
First, “seeking grants” is not remotely the same as authorizing or approving a specific
contract, or approving a signature on such a contract by a Tribal staff member. To “seek” means
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to go in search of. By contrast, approval or authorization represents a delegation of legal
authority to act. The Tribe’s Board knew how to delegate authority to a Tribal official to sign
contracts; it did not do so with respect to the Agreement. See, e.g. Dkt. # 32-19 (Smith Decl.,
Ex. S). A reading of Resolution 1998/41 in the light most favorable to the non-movant Tribe
indicates that the resolution, at best, contemplated that any specific grant that was found would
need to be brought back to the Tribe’s Board for approval at that time. As to this Agreement, it
is undisputed that such approval never happened.
Second, contrary to the State’s argument, the resolution does not authorize the
Chairperson, Vice-Chairperson or Executive Director to execute the grants; rather, the plain
language of the Resolution only directs that Chairperson, Vice-Chairperson or Executive
Director “negotiate and execute this resolution.” Compare Mot. at 3, 9, 18-19 with Dkt. # 27-14
at 3 (emphasis added) and Dkt. # 27-11 at 3 (before the “negotiate and execute this resolution”
language, Resolution 2006/006 includes a specific “approval” for the for the Vice-Chairperson to
“sign[] said contract agreement”). This language simply means that these persons were to certify
the resolution, nothing more. Declaration of Eric White ¶ 3 (filed herewith). The 1998
Resolution says nothing about authorizing anyone to execute the grants or execute contracts to
actually obtain grant funding. The State’s selective use of quotations to argue that Mr.
Goodridge, Jr.’s direction to Mr. Stevenson that he sign the Agreement in 2005 was somehow
specifically approved by this 1998 Resolution fails. The State cannot get away with re-writing
the “Be it further resolved” clause of the Resolution in an effort to change the plain language of
the Resolution. Mot. at 3, 11; Dkt. # 24-14 at 3.
Third, it strains credulity to believe that, in 1998, the Board could have “anticipated” the
specific 2005 Agreement to construct the crib wall that was signed by Mr. Stevenson seven years
later and/or granted some implicit prospective waiver of immunity. Mot. at 3. The title of this
Resolution is “WRIA 5”, which represents the entire 1774-km watershed; it has nothing to do
with specific salmon program recovery projects or the Steelhead Haven area. Dkt. # 27-14 at 1.
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That the Tribe is interested in salmon restoration throughout the Stillaguamish Watershed is both
obvious and startlingly irrelevant to this resolution of this case.
The State’s construction conveniently contorts the resolution to yield the harsh result of
granting the State a $50 million windfall based on their voluntary settlement of a third-party tort
lawsuit 18 years after this resolution was passed by the Tribe. Simply put, the State is not
entitled to summary judgment relating to a waiver of sovereign immunity by the Tribe on the
basis of the 1998 resolution.
3. The 2004 Resolution Relates to a 2003 Flood and Has Nothing to Do With the Agreement
The State argues that Resolution 2004/65 gave Mr. Stevenson the explicit authorization
to sign the Agreement because the Agreement constitutes an example of the emergency funding
contemplated by the express language of the 2004 Resolution. See Mot. at 3, 10-12, 19-20. This
argument is frivolous and crosses into Rule 11 territory. See Part C infra. Resolution 2004/65
has absolutely nothing to do with either the Agreement or salmon recovery more generally.
The State has hen-pecked discovery to intentionally take Resolution 2004/65 out of
context. Resolution 2004/65 was produced by the Tribe as Bates No. SIT 012037-38. See Dkt.
# 27-17. The State only uses and provides to the Court the first two pages of the eight page
document produced during discovery. 2d Smith Decl. ¶ 6, Ex. A. The additional documents
following these two pages, ignored by the State and omitted from the Motion, explain that
Resolution 2004/65 relates to an October 2003 major flood event and had absolutely nothing to
do with the Agreement or even salmon funding. Id. The only “federal and/or state emergency or
disaster relief assistance funds” that the Board authorized Mr. Stevenson to apply for related
solely to the flood event in October 2003 that damaged Tribal property. Id.; 2d Stevenson
Decl. ¶ 4 (“In the fall of 2003 we had a huge flood in the lower river. Our office was completely
surrounded by water. It ruined the crawlspace and insulation, and caused damage to our
building. The flooding was declared a disaster and FEMA met with the Tribe to discuss
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applying for flood damage relief.”); see also https://www.fema.gov/disaster/1499 (last visited,
June 29, 2017). The Resolution has absolutely nothing to do with salmon habitat restoration.
Once put in its proper context (which the State knew or should have known), Resolution
2004/65 is completely irrelevant and does not provide any authorization relating to the 2005
Agreement at all. The State’s Motion, relying in large part on this resolution, fails badly.
Neither the 1998 Resolution nor the 2004 Resolution have any bearing on the sole question
before the Court: whether the purported waiver of sovereign immunity in the 2005 Agreement is
enforceable against the Tribe. The answer to this question remains a resounding ‘no’.
4. The 1998 and 2004 Resolutions Do Not Provide the Requisite Waiver
The State’s legal arguments tied to the 1998 and 2004 Resolutions fare no better. As a
matter of law, even if these two resolutions were connected to the Agreement, which they are
not, neither resolution provides the required “unequivocally expressed” waiver of sovereign
immunity required by Supreme Court precedent.
To relinquish its immunity, a tribe’s waiver must be “clear.” Oklahoma Tax Comm'n v.
Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991); N. Arapaho Tribe v.
Harnsberger, 697 F.3d 1272, 1281 (10th Cir. 2012) (waiver must be clear, not implied, and
unequivocally expressed). As discussed above, neither resolution clearly addresses the
Agreement at issue nor do the resolutions clearly waive the Tribe’s sovereign immunity. In fact,
the resolutions relied upon by the State are silent as to both. As a matter of law, the State fails to
meet the high burden of proving the required express, unequivocal, unmistakable, and
unambiguous waiver of the Tribe’s immunity through the two resolutions it offers. The State is
not entitled to summary judgment on the basis of these two resolutions.
B. Claim and Issue Preclusion Are Unavailable
Next, the State argues that it is entitled to summary judgment because the Tribe is
precluded from relying on Chairman Yanity’s statement that the Tribe has a long-standing policy
pertaining to granting waivers of sovereign immunity as a result of Judge Jones’s order in
Pilchuck Grp. II. Mot. at 14-16. There are numerous problems with this argument: (1) the State
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misunderstands how claim and issue preclusion work, as Judge Jones’s statement is not entitled
to either; (2) whether this policy exists or was followed does not determine the outcome of this
case anymore than it did in Pilchuck Grp. II; and, (3) the State ignores the salient fact that,
despite the Court’s disagreement with Chairman Yanity’s assertion, the Tribe prevailed on the
claim actually litigated in that case, namely, “whether the Tribe authorized the Agreement, and
more particularly, whether it authorized the arbitration clause and sovereign immunity waiver”).
See Dkt. # 32-7 (Smith Decl., Ex. G at 3, 11) (Stillaguamish Tribe v. Pilchuck Grp. II, LLC,
No. 10-995 RAJ (W.D. Wash.) (concluding “no principle of federal common law supports a
finding that the Tribe authorized a sovereign immunity waiver” in the agreement and entering
judgment for Tribe).
1. Judge Jones’s Comment is Not Entitled to Preclusive Effect
The State’s half-hearted application of defensive collateral estoppel1 fails to set forth the
well-settled test for collateral estoppel—perhaps in recognition of the fact that the State does not
come close to satisfying its elements. Defensive collateral estoppel is triggered when “a
defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously
litigated unsuccessfully in another action against the same or a different party. United States v.
Mendoza, 464 U.S. 154, 159 (1984) (emphasis added) (citing Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 326 (1979)). The party seeking to establish preclusion has the burden of
proof of all elements. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407–08
(9th Cir. 1985); 18 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 4405 (3rd ed).
Importantly, doubts are resolved against preclusion. In re Associated Vintage Grp., Inc., 283
B.R. 549, 562 (B.A.P. 9th Cir. 2002) (citing Harris v. Jacobs, 621 F.2d 341, 383 (9th Cir. 1980);
18 Fed. Prac. & Proc § 4405). To meet its burden, the State must satisfy the following elements
of collateral estoppel: (1) the issue at stake is identical to an issue raised in the prior litigation;
1 The State does not identify whether it is pursuing issue or claim preclusion. The Tribe assumes that the State seeks to preclude the Tribe’s argument on the issue of the Tribe’s sovereign immunity waiver policy, which does not constitute a legal claim in the case. Claim preclusion (res judicata) is thus inappropriate for the Court’s consideration.
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(2) the issue was actually litigated in the prior litigation; and (3) the determination of the issue in
the prior litigation must have been a critical and necessary part of the judgment in the earlier
action. Littlejohn v. United States, 321 F.3d 915, 923 (9th Cir. 2003). The State fails to meet its
burden on all three elements.
a. The State Misconstrues the Ultimate Issue in Pilchuck Grp. II and In this Case
The State fails the first element of collateral estoppel with its mischaracterization of the
ultimate issue in this case. The State claims the “issue” for collateral estoppel as being whether
the Tribe had a consistent policy regarding waivers of sovereign immunity, stating, without
explanation, that the issue “has been litigated.” Mot. at 15. That the fact of the Tribe’s
sovereign immunity waiver policy was raised in Pilchuck Grp. II, does not automatically make it
“identical” to an issue in the instant case for the purpose of collateral estoppel. Identifying the
issue for collateral estoppel can be a “murky” task, requiring the Court’s consideration of the
evidence offered on the issue, the parties’ arguments and law to be applied in the prior and the
current case on that particular issue. See Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th
Cir. 1995), opinion amended on reh'g sub nom. Kamilche v. United States, 75 F.3d 1391 (9th
Cir. 1996) (Applying Restatement (Second) of Judgments § 27 cmt. C) (“[o]ne of the most
difficult problems in the application of [collateral estoppel] is to delineate the issue on which
litigation is, or is not, foreclosed by the prior judgment.”)
The State’s characterization of the “issue” in Pilchuck Grp. II misses the point entirely.
Despite the State’s claim, the issue here is not “whether the Tribe had a specific procedure or
consistent policy for waving sovereign immunity prior to 2010.” Mot. at 15. This is a red
herring. The ultimate issue in this case is both far broader as a matter of Federal law, and far
narrower in that it concerns only this single Agreement, namely: whether the purported waiver of
sovereign immunity in the 2005 Agreement is enforceable against the Tribe. See Dkt. # 1. The
Court’s September 19, 2016 Order confirms that the issue in this case is “on the limited issue of
whether the Tribe waived sovereign immunity.” Dkt. # 22 at 10. Likewise, the issue in Pilchuck
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Grp. II was both broader and narrower than the Tribe’s sovereign immunity waiver policy. The
Court in Pilchuck Grp. II defined the ultimate issue in that case as: “the question before the court
is whether the Tribe waived its sovereign immunity for disputes arising out of the RV park
project.” Dkt. # 32-7 (Smith Decl., Ex. G at 14). In order to reach its decision, the Court applied
Federal law to the question of whether the Tribe had waived its sovereign immunity as to
disputes arising out of the RV park project. To be sure, whether the Tribe had a clear policy at
the time for granting waivers of immunity is part of the answer to the broader sovereign
immunity question; however, the policy, without more, does not resolve the sovereign immunity
question. The Tribe has not sought in this case – and did not seek in Pilchuck Grp. II either – a
declaratory judgment that the Tribe had a rock-solid immunity policy in place before 2010.
What matters is whether, as a matter of Federal law, the 2005 Agreement is enforceable against
the Tribe.
Even if the State’s characterization of the issue was accurate, the issue would not be ripe
for collateral estoppel because the constellation of facts and the application of agency law differ
between the two cases. 18 Fed. Prac. & Proc. § 4417 (“Clear separations of fact or clear
distinctions of applicable law generate different issues, free from preclusion.”). As to the facts,
although Board meeting minutes evidenced lengthy discussion of the RV park project at issue in
Pilchuck Grp. II (Dkt. # 32-7 (Smith Decl., Ex. G at 11-12)), there are no Board meeting minutes
referencing the Agreement in the instant case at all. Dkt. # 31 (Connolly Decl., ¶¶ 2-3). In
addition, unlike the Tribe’s Vice Chairman in Pilchuck Grp. II, Mr. Stevenson did “not
generally” sign contracts on behalf of the Tribe. Dkt. # 32-7 (Smith Decl., Ex. G at 13); Dkt. #
32-20 (id., Ex. T at 5 [p. 91, ln. 9]).
Likewise, the State’s bare assumption that the issues are identical ignores the fact that
different principles of agency law, if applicable,2 would apply to the facts surrounding the
purported Tribal grants of the waivers of sovereign immunity and to the individuals purportedly
2 The Tribe does not concede that agency law applies in cases of Tribal sovereign immunity. The argument here is merely illustrative.
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waiving sovereign immunity in the two cases. Under the Restatement (Third) of Agency Law,
whether an individual has actual authority turns on “the agent’s reasonable understanding” that
the principal wishes the agent to act “at the time the agent takes action”. Restatement (Third) of
Agency § 2.01 (2006). The Pilchuck Grp. II Court’s analysis of any reasonable understanding
would undoubtedly differ from this Court’s analysis of the reasonable understanding of Mr.
Stevenson, a Tribal employee, not only because of their different levels of authority, but because
of the different circumstances surrounding the projects in each case.
Even setting aside the fact that the ultimate issue is not the Tribe’s sovereign immunity
waiver policy, that policy is not ripe for collateral estoppel due to important distinctions in the
facts and agency law in Pilchuck Grp. II versus those in the instant case. The State’s collateral
estoppel effort fails.
b. The Tribe Litigated The Effect of An Unauthorized Waiver of Sovereign Immunity in Pilchuck Grp. II and Won
The State next attempts to show that the issue was “actually litigated” in satisfaction of
the second element of collateral estoppel. The State highlights Judge Jones’s statement in
Pilchuck Grp. II that the Tribe is “flatly incorrect” in its contention that Board resolutions were
necessary to authorize contracts and waivers of sovereign immunity. Mot. at 16; Dkt. # 32-7
(Smith Decl., Ex. G at 9). Looking past the State’s Motion to Judge Jones’s Order, the State’s
argument is reduced to absurdity. Although the Court would not know it from the face of the
State’s Motion (see Mot. at 14-16), the Tribe won the case. The Court held: “the question before
the court is whether the Tribe waived its sovereign immunity for disputes arising out of the RV
park project. The court holds that it did not, as a matter of law.” Dkt. # 32-7 (Smith Decl., Ex. G
at 14). The Court agreed with the Tribe that “there is no evidence at all that Mr. Goodridge Jr.
had a practice of waiving the Tribe’s sovereign immunity. There is also no evidence that the
Board authorized him to do so.” Id. at 13.
The State’s surreptitious mischaracterization of the ultimate issue flagrantly omits the
fact that the Tribe prevailed on the ultimate issue of sovereign immunity in Pilchuck Grp. II.
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Because application of collateral estoppel arises from fundamental premise that the party subject
to estoppel lost on the legal issue in the prior action, collateral estoppel is not available to the
State. See e.g., States v. Mendoza, 464 U.S. at 159; Parklane Hosiery Co., Inc., 439 U.S. at 326.
c. The Court’s Finding In Pilchuck Was Not A “Necessary Part of The Judgment”
The State’s argument also fails the third element of collateral estoppel. Collateral
estoppel may only attach to determinations that were necessary to support the court’s judgment
in the prior action. Segal v. American Tel. & Tel. Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.
1979). “Litigants conversely are not precluded from relitigating an issue if its determination was
merely incidental to the judgment in the prior action.” 18 Fed. Prac. & Proc. § 4421. “A
determination ranks as necessary or essential only when the final outcome hinges on it.” Bobby
v. Bies, 556 U.S. 825, 835 (2009) (reversing application of issue preclusion based court’s
statements in prior case regarding respondent’s mental capacity which “cut against the ultimate
outcome” and finding that court’s prior statements were a “subsidiary finding that, standing
alone, is not outcome determinative”) (citing 18 Fed. Prac. and Proc. § 4421); Resolution Trust
Corp. v. Keating, 186 F.3d 1110, 1115 (9th Cir. 1999) (holding that the statement of the court in
prior action was “only an observation, which was not necessary to support the judgment, and
cannot support the application of issue preclusion.”).
Judge Jones’s statement in Pilchuck Grp. II regarding the Tribe’s sovereign immunity
waiver policy is a classic example of dicta that is inappropriate for application of collateral
estoppel. Keating, 186 F.3d at 1115. While, Judge Jones stated that the Tribe had no
“consistent” practice for authorizing people to waive sovereign immunity (Dkt. # 32-7 [Smith
Decl., Ex. G at 9]), his exclusion of any mention of the Tribe’s sovereign immunity waiver
policy from the Court’s lengthy explanation of its decision on sovereign immunity in favor of the
Tribe demonstrates that the statement about the consistent policy was entirely unnecessary to the
decision in that case. Id. at 11-14.
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To state the obvious, the Pilchuck Grp. II Court’s statement regarding the Tribe’s
sovereign immunity waiver policy could not have been necessary to the judgment because the
Court ultimately found in favor of the Tribe on the issue of sovereign immunity. Id. at 14. Thus,
Judge Jones’s statement about the “consistent” practice is the classic example of dicta carrying
no preclusive effect. Parmelee Transp. Co. v. United States, 351 F.2d 619, 621 n.1 (1965)
(noting that dicta in the Court’s decision “will have no collateral estoppel effect in any other
forum); Restatement (Second) of Judgments § 27 (1982) cmt. h (“If issues are determined but the
judgment is not dependent upon the determinations, relitigation of those issues. . . is not
precluded. Such determinations have the characteristics of dicta . . .).
The State’s contortion of the ultimate issue and outcome in Pilchuck Grp. II aside, the
Tribe litigated and won the legal issue that a document signed without Tribal authorization does
not waive the Tribe’s sovereign immunity. Dkt. # 28 at 18 (Tribe’s Mot. for Summ. J., Jun. 27,
2017). Regardless of the Court’s determination as to the first and second elements of collateral
estoppel, the State fails the third prong of collateral estoppel, barring its application in this case.
2. The Same Basis for Prevailing on Sovereign Immunity That Was Determinative in Pilchuck Grp. II Is Determinative in This Case
The undisputed facts are even stronger here for finding that there has been no valid
waiver of the Tribe’s sovereign immunity. The ruling in Pilchuck Grp. II was made despite
evidence that a project possibly contemplated by the agreement had been discussed at a Board
meeting at length, had been given at least provisional approval by a Board member, that the
agreement had been signed by a Tribal official, and that Pilchuck II and it principals were well
known to the Tribe and had worked on several projects with the Tribe. Dkt. # 32-7 (Smith Decl.,
Ex. G at 2-6).
The Court ordered discovery here for the limited purpose of exploring whether the Tribe,
in fact, waived its sovereign immunity as to the Agreement. Dkt. # 22. That discovery has
concluded, and there is no dispute of material fact that the Agreement never went to the Tribe’s
Board, was never discussed by the Tribe’s Board, and was never approved by the Tribe’s Board.
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There are no material facts in dispute here that would preclude summary judgment in favor of the
Tribe, just as in Pilchuck Grp. II.
C. The Court Should Sua Sponte Sanction the State
The State argues that Resolution 2004/65 gave Mr. Stevenson the explicit authorization
to sign the Agreement because the Agreement constitutes an example of the emergency funding
contemplated by the express language of the Resolution. See Mot. at 10-12, 19-20. This
argument is frivolous, as the State has hen-pecked discovery to intentionally take out of context
and brazenly misrepresent Resolution 2004/65. Sua sponte Rule 11 sanctions are appropriate
because this conduct by the State constitutes contempt. Barber v. Miller, 146 F.3d 707, 711 (9th
Cir. 1998) (noting that sua sponte sanctions should “be imposed only in situations that are akin
to a contempt of court.”).
Sanctions are justified under Rule 11 “when a filing is frivolous, legally unreasonable, or
without factual foundation, or brought for an improper purpose.” Estate of Blue v. Cnty. of L.A.,
120 F.3d 982, 985 (9th Cir. 1997). A filing is frivolous if it is “both baseless and made without a
reasonable and competent inquiry.” Townsend v. Holman Consulting Corp., 929 F.2d 1358,
1362 (9th Cir. 1990). The Court may impose Rule 11 sanctions on its own initiative, Fed. R.
Civ. P. 11(c)(3), in the form of “a penalty payable to the court”. Fed. R. Civ. P. 11 adv. cmte.
notes (1993). Although there is no “safe harbor” for sua sponte sanctions, litigants must have
“notice of the alleged violation and an opportunity to respond before sanctions are imposed.”
Fed. R. Civ. P. 11 adv. cmte. notes (1993). A district court is vested with discretion whether to
enter Rule 11 sanctions. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
As discussed in Part A.3 supra, Resolution 2004/65 was produced by the Tribe as Bates
No. SIT 012037-38. See Dkt. # 27-17. Importantly, the State only uses and provides to the
Court the first two pages of the eight page document produced. 2d Smith Decl. ¶ 6, Ex. A.
These additional documents, intentionally ignored by the State and purposely omitted from the
Court’s record, explain that Resolution 2004/65 relates to an October 2003 flood event and had
absolutely nothing to do with the Agreement or even salmon funding. Id.; 2d Stevenson Decl. ¶¶
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3-4. To say that this is totally different from authorizing a specific salmon funding agreement
that waived the Tribe’s sovereign immunity is an understatement. Worse yet, even if the State
had not competently figured out the connections between the documents produced during
discovery, the State could have learned as much when it deposed Mr. Stevenson. However,
counsel for the State never asked Mr. Stevenson a single question about Resolution 2004/65 to
flesh out the “emergency”. 2d Smith Decl. ¶ 8. Instead, the State spent time attempting to gin
up its argument by getting Mr. Stevenson to say that the salmon situation was “dire.” Mot. at 8-9.
Sadly, this deliberate deception by means of obfuscation of the record and frivolous
advancement of an argument that could have, and should have, been avoided through due
diligence is not the first time the State’s lawyers have violated ethical rules with respect to Oso
landslide litigation. As discussed in the Tribe’s motion, the King County Superior Court
imposed a sanction of $788,664.04 against the State related to the destruction of emails by the
State’s experts, under the watchful eye of the State Attorney Generals’ Office, in the underlying
Pszonka litigation. Dkt. # 32-21 (Smith Decl., Ex. U). The State’s hands are unclean. This
pattern and practice of deceptive advocacy across two cases in two courts warrants the
imposition of Rule 11 sanctions for the intentionally misleading use of Resolution 2004/65 to
support the State’s Motion.
CONCLUSION
For the foregoing reasons, the Tribe respectfully requests that the Court deny summary
judgment to the State and exercise its sound discretion to issue sanctions. The Tribe is entitled to
judgment in its favor because neither the purported waiver of sovereign immunity nor any
provision of the Salmon Project Funding Agreement is enforceable against the Tribe.
DATED this 21st day of July, 2017.
KILPATRICK, TOWNSEND & STOCKTON LLP
By: /s/ Rob Roy Smith Rob Roy Smith, WSBA #33798 [email protected] 1420 Fifth Avenue, Suite 3700 Seattle, WA 98101
Case 3:16-cv-05566-RJB Document 33 Filed 07/21/17 Page 19 of 21
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STILLAGUAMISH RESPONSE IN OPP. TO DEFS. MOT. FOR SUMM. J. – Page 16 (Case No. 3:16-cv-05566) 69519041V.1
KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700
SEATTLE, WA 98101 (206) 467-9600
Telephone.: (206) 467-9600 Facsimile: (206) 623-6793
STILLAGUAMISH TRIBE OF INDIANS OFFICE OF LEGAL COUNSEL
By: /s/ Scott Mannakee Scott Mannakee, WSBA # 19454 [email protected] 3322 236th Street NE Arlington, WA 98223 Telephone: (360) 572-3028
Attorneys for Plaintiff Stillaguamish Tribe of Indians
Case 3:16-cv-05566-RJB Document 33 Filed 07/21/17 Page 20 of 21
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CERTIFICATE OF SERVICE – Page 17 69519041V.1
KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700
SEATTLE, WA 98101 (206) 467-9600
CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2017, I electronically filed the foregoing PLAINTIFF
STILLAGUAMISH TRIBE OF INDIANS’ RESPONSE IN OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court
using the CM/ECF system, which will send notification of such filing to the following:
Stevan D. Phillips Email: [email protected] Rita V. Latsinova Email: [email protected] Stoel Rives LLP 600 University Street, Suite 3600 Seattle, WA 98101
Attorneys for Defendants
DATED this 21st day of July, 2017.
KILPATRICK, TOWNSEND & STOCKTON LLP
By: /s/ Rob Roy Smith Rob Roy Smith, WSBA #33798 [email protected] Attorneys for Plaintiff Stillaguamish Tribe of Indians
Case 3:16-cv-05566-RJB Document 33 Filed 07/21/17 Page 21 of 21
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