Opinion

Yurok Tribe v. Dowd

Court
District Court, N.D. California
Filed
Jul 5, 2022
Cited by
0 cases
Authority
More cited than 18.8%

The opinion

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 EUREKA DIVISION

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8 YUROK TRIBE, Case No. 16-cv-02471-RMI

9 Plaintiff,

ORDER RE: DEFENDANT’S MOTION

10 v. TO DISMISS

11 GARY DOWD, et al., Re: Dkt. No. 100

12 Defendants.

13

14 Now pending before the court is a Motion to Dismiss (dkt. 100) filed by Defendant Gary

15 Dowd urging dismissal for lack of jurisdiction. The motion is fully briefed and ripe for

16 adjudication (see dkts. 100, 103, 104, 105). For the reasons explained herein, Defendant’s motion

17 is denied.

18 BACKGROUND

19 In May of 2016, the Yurok Tribe (hereafter “the Yurok”) filed suit on behalf of itself and

20 its members against the Resighini Rancheria (hereafter “the Rancheria”) and its members, and also

21 against Gary Mitch Dowd (hereafter “Dowd”) individually and as a member of the Rancheria. See

22 Compl. (dkt. 1) at 1-16. The Yurok sought a declaratory judgment to the following effect: (1) that

23 the Rancheria and its members, by declining to merge with the Yurok pursuant to the Hoopa-

24 Yurok Settlement Act (25 U.S.C. § 1300i et seq.) (“HYSA”) waived and relinquished any and all

25 rights and interest they may have had in the lands and resources within the Yurok Reservation,

26 including in the Klamath River Indian Fishery, within the Yurok Reservation, without the consent

27 or authorization of the Yurok Tribe or without a license issued by the State of California; and, (2)

1 electing to be paid a cash sum in return for extinguishing any and all rights and interest in the land

2 and resources of the Yurok Tribe, including in the Klamath River Indian Fishery within the Yurok

3 Reservation, has no right to fish within the Yurok Reservation without the consent of the Yurok

4 Tribe, or without a license issued by the State of California. Id. at 15-16.

5 In October of 2017, Defendants filed a motion to dismiss (dkt. 47), which the court granted

6 in full on the following grounds: (1) the Rancheria was dismissed as a party on sovereign

7 immunity grounds; and (2) the Yurok’s individual capacity claim against Dowd was dismissed

8 under Fed. R. Civ. P. 19 for failure of joinder as to a necessary party – to wit, the Rancheria. See

9 Order of January 25, 2018 (dkt. 55) at 1-13. Judgment (dkt. 56) was entered the same day.

10 Following a successful appeal by the Yurok, the case was remanded for further proceedings as to

11 the Yurok’s individual capacity claim against Dowd – that is, whether Dowd’s fishing activities

12 violated the HYSA. See Mem. Op. (dkt. 60) at 4-5.

13 This saga has been ongoing for quite some time and the instant case represents only the

14 latest manifestation of this dispute. See e.g., Resighini Rancheria v. Bonham, 872 F. Supp. 2d 964,

15 966 (N.D. Cal. 2012) (wherein the Rancheria and Frank and Gary Dowd sued the California

16 Department of Fish and Game in pursuit of a declaration that they are entitled to fish on the

17 Klamath River within the old Klamath River Reservation/Extension, and an injunction barring the

18 state department of fish and game from citing Rancheria members for fishing in that area). At this

19 point, there remains no reason to doubt that Dowd “want[s] to be able to fish on the Klamath River

20 within the old Klamath River Reservation/Extension without being cited . . . [given that this area

21 is] not within the Resighini Reservation but rather within the reservation of another Indian tribe,

22 i.e., the Yurok Tribe.” Id. About twelve years ago, Dowd was cited for fishing in that area by

23 Yurok police officers who were also cross-deputized as Del Norte County sheriffs; [m]ore

24 specifically, on August 29, 2010, the Yurok Police Department seized fishing equipment owned

25 by Gary Dowd . . . [on grounds that by fishing in those waters without a state permit or Yurok

26 consent] Gary Dowd had violated both tribal ordinances (the Yurok Harvest Management Plan)

27 and the California Fish & Game Code.” Id. Following some back-and-forth between Dowd’s

1 Rancheria filed suit against the DF&G seeking a declaration that they are entitled to fish on the

2 Klamath River within the old Klamath River Reservation/Extension, as well as an injunction

3 barring the DF&G from citing members of the Rancheria for fishing in that area. Id. As part of the

4 back and forth between the parties’ counsel, counsel for DF&G specifically informed Dowd and

5 the Rancheria to the following effect:

6

The 1988 Hoopa-Yurok Settlement Act (Settlement Act), which

7 partitioned the former joint reservation into the Yurok Reservation

and the Hoopa Valley Reservation, expressly excluded the Resighini

8 Reservation from the new Yurok Reservation unless the Rancheria

voted to extinguish their tribe and their reservation and become part

9 of the Yurok Reservation. The Resighini Rancheria declined to merge

with the Yurok Tribe under section 11(b) of the Settlement Act, and

10 instead opted to accept section 6(d) individual lump sum payments.

As a result, only current members of the Yurok Tribe are beneficiaries

11 of the reserved fishing rights that attach to the present day Yurok

Reservation.

12 While the [DF&G] generally does not have authority to enforce state

fishing regulations against Indians on their own reservations, the

13 [DF&G] may criminally enforce the Fish and Game Code against

Resighini members on the Yurok Reservation in the same manner as

14 it regulates non-Indian fishing on the reservation.

15 Id. at 967 (emphasis added).

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17 Following the receipt of that correspondence, Dowd and the Rancheria instituted the case against

18 the DF&G which was styled, Resighini Rancheria v. Bonham. Id. Judge Chen dismissed that

19 particular iteration of that action on grounds that the Rancheria and Dowd had failed to make a

20 prima facie showing that there was any case or controversy under Article III. Id. at 973-74.

21 As mentioned above, following remand, only one question remains involved in this case –

22 that is, whether Dowd’s continued fishing in the waters in question violates the HYSA in light of

23 the assertion that by electing to be paid a cash sum in return for relinguishing any and all rights

24 and interest in the land and resources of the Yurok Tribe, including in those portions of the

25 Klamath River Indian Fishery within the Yurok Reservation, Dowd has no right to fish within the

26 Yurok Reservation without the consent of the Yurok Tribe, or without a license issued by the State

27 of California. See Compl. (dkt. 1) at 15-16.

1 LEGAL STANDARD

2 Rules 12(b)(1) and 12(b)(2) govern, respectively, motions to dismiss for lack of subject

3 matter and personal jurisdiction. “A jurisdictional challenge under Rule 12(b)(1) may be made

4 either on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family

5 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also Safe Air for Everyone v. Meyer,

6 373 F.3d 1035, 1039 (9th Cir. 2004). Where a factual motion to dismiss is made and only written

7 materials are submitted for the court’s consideration (i.e., no evidentiary hearing is held), a

8 plaintiff need only establish a prima facie case of jurisdiction. See e.g., Societe de

9 Conditionnement en Aluminum v. Hunter Eng’g Co., 655 F.2d 938, 942 (9th Cir. 1985). Once a

10 court’s jurisdiction is challenged, the party asserting jurisdiction bears the burden of establishing

11 it. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (subject matter jurisdiction);

12 Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (personal jurisdiction). It should

13 be noted that while the proponent must “make a prima facie showing of jurisdictional facts” to

14 withstand a motion to dismiss, any disputed facts are resolved in the proponent’s favor. See id.

15 (internal citations omitted).

16 In resolving a factual dispute as to the existence of subject matter jurisdiction, courts may

17 review extrinsic evidence beyond the complaint without converting a motion to dismiss into one

18 for summary judgment. Safe Air, 373 F.3d at 1039. Once the moving party has made a factual

19 challenge by offering affidavits or other evidence to dispute the allegations in the complaint, the

20 party opposing the motion must present affidavits or any other evidence necessary to satisfy its

21 burden of establishing that the court, in fact, possesses subject matter jurisdiction. St. Clair v. City

22 of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Savage v. Glendale Union High Sch. Dist.

23 No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

24 It should not go without mention that dismissal for lack of subject matter jurisdiction is

25 rare in federal question cases and is warranted only “where the alleged claim under the

26 constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of

27 obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.” Safe Air,

1 dismissal “is inappropriate when the jurisdictional issue and substantive issues are so intertwined

2 that the question of jurisdiction is dependent on the resolution of factual issues going to the merits

3 of an action.” Id. (internal quotation marks and citation omitted). In short, “[t]he question of

4 jurisdiction and the merits of an action are intertwined where a statute provides the basis for both

5 the subject matter jurisdiction of the federal court and the plaintiff’s substantive claim for relief.”

6 Id. (internal quotation marks and citation omitted).

7 DISCUSSION

8 Dowd’s Motion to Dismiss (dkt. 100) is attended with a declaration from the Chairperson

9 of the Rancheria stating that the Rancheria’s inherent sovereignty includes a federally reserved

10 tribal fishing right and the right to “authorize and regulate the conduct of its members to fish in

11 those portions of the Klamath River that lie within the boundaries of the original Klamath River

12 Reservation,” and that “[a]t all times relevant to the . . . Yurok Tribe’s claims as set forth in its

13 complaint in this case, the [Rancheria] authorized [] Gary Dowd[] to fish in the Klamath River,

14 both within the boundaries of the Resighini Rancheria’s Reservation and within the boundaries of

15 the Klamath River Reservation . . .” See Murphy Decl. (dkt. 100-1) at 2. Dowd’s argument hangs

16 on this declaration – in essence, while Dowd concedes that his acceptance of the $15,000 cash

17 payment under the HYSA extinguished any right he might have claimed to fish in the waters in

18 question pursuant to Yurok authority, Dowd nevertheless claims an independent right to fish in

19 those same waters pursuant to the Rancheria’s purportedly concurrent authority (delegated to him

20 as set forth in the Murphy Declaration) to fish in those same waters. See Def.’s Mot. (dkt. 100) at

21 15-18.

22 The Yurok argue that Dowd is attempting to reframe and contort the issue before the court.

23 See Pl.’s Opp. (dkt. 103) at 2. Specifically, the Yurok submit that Dowd’s current approach

24 (claiming an independent source of authority to fish in the waters in question) is untenable because

25 he entered into an agreement with the United States, pursuant to the HYSA, “in which he was paid

26 money in return for a complete release of all claimed rights, from whatever source, to fish in the

27 Klamath River.” Id. Accordingly, the Yurok argue that “[a]fter years of litigation, Dowd now

1 alternate authority, namely the Resighini Rancheria’s authority.’” Id. Thus, the Yurok couch

2 Dowd’s assertion as an argument to the effect that “this Court lacks jurisdiction to hear his

3 reframed issue.” Id. at 2-3. The Yurok suggest that Dowd’s approach is due to be rejected because

4 the appellate court’s mandate implicitly held that this court does indeed have jurisdiction to decide

5 the effect of Dowd’s HYSA election on his fishing activities without any impairment to the

6 Rancheria’s interests. Id. at 3-4. The Yurok also argue that Dowd has taken inconsistent positions

7 throughout this case, and that in any case, Dowd’s current assertions constitute factual disputes

8 that “[t]he Yurok Tribe reserves the right to contest [] if and when they are properly raised at a

9 subsequent stage of this case.” Id. at 5. Specifically, the Yurok submit that “[h]aving [previously]

10 consistently claimed that he was fishing on the Yurok Reservation, Dowd now inexplicably claims

11 he either had been fishing or in the future will fish only on the Resighini Rancheria[,] [r]esolving

12 that factual and legal issue is not appropriate on a motion to dismiss.” Id. In short, the Yurok note

13 that Dowd’s motion to dismiss, “essentially seeks a declaratory judgment that the extinguishment

14 effect of the HYSA for those who accepted the buyout payment is limited to rights derived from

15 membership in the Yurok Tribe and rights exercised pursuant to the Yurok Tribe’s sovereign

16 authority,” however, because “[t]hat question [] goes to the merits of the [Yurok] Tribe’s claims,

17 not this Court’s jurisdiction to entertain such claims [] [i]t would be premature and improper for

18 this Court to reach that question in deciding a motion to dismiss.” Id. In essence, the Yurok argue

19 that Dowd’s jurisdictional argument is inextricably intertwined with the merits of the claim at

20 issue.

21 In reply, Dowd largely reiterates the position that “effectuating the [] HYSA extinguished

22 his privilege to fish in the Klamath River pursuant to the Yurok Tribe’s authority,” which Dowd

23 contends “disposes of the only issue before the Court on remand.” See Def.’s Reply (dkt. 104) at

24 2. Of course, the essence of Dowd’s post-remand gambit seeks to take advantage of the unusual

25 posture in which this litigation finds now finds itself mired. To recapitulate: (1) the HYSA gave

26 the Rancheria’s members an opportunity to join the Yurok Tribe; (2) Dowd chose to decline that

27 invitation and to receive a cash payment which had the effect of extinguishing any interest or right

1 Tribe; (3) the Klamath River, during normal flow, comes (to a small degree) within the boundaries

2 of the Resighini Rancheria Trust on its Eastern and Northwestern sides (see RFJN (dkt. 105-1) at

3 3); (4) Dowd admittedly “sometimes fishes on portions of the River that are not within the

4 boundaries of the Rancheria,” (see Def.’s Reply (dkt. 104) at 4); (5) Dowd claims that he does so

5 pursuant to a privilege granted to him by the Rancheria; (6) this court previously dismissed the

6 Rancheria from this action due to sovereign immunity and found that the Yurok had waived any

7 official capacity claims against Dowd, leaving only an individual capacity claim against Dowd

8 (see Order of Dismissal (dkt. 55) at 1-6); (7) as to the resolution of that single individual capacity

9 claim, the undersigned previously held that the resolution of this claim has been rendered

10 impossible due to the failure to join the Rancheria, an indispensable party (see id. at 6-12); and,

11 lastly, (8) the appellate court reversed that last finding and held that this court could indeed

12 adjudicate the Yurok’s individual liability claim against Dowd without joinder of the Rancheria

13 because finding that some or all of Dowd’s fishing violated the HYSA can be effected without

14 affecting the Rancheria’s rights (see Mem. Op. (dkt. 60) at 3-5).

15 Seeking to take advantage of what appears to be a catch-22, Dowd has advanced the instant

16 motion to dismiss which, in essence, claims that there is no subject matter jurisdiction under the

17 HYSA because Dowd’s fishing activities were conducted pursuant to a “privilege” conferred to

18 him by the Rancheria pursuant to their federally reserved fishing “right” – hence, there is no

19 jurisdiction for the court to determine if Dowd’s fishing violated the HYSA because Dowd’s

20 attached evidence (see Murphy Decl. (dkt. 100-1) at 1-2) purports to establish that the HYSA has

21 not been violated because Dowd’s fishing was conducted pursuant to an independent source of

22 authority. In other words, Dowd’s gambit has the effect of pushing the court down an avenue that

23 has been foreclosed by the earlier developments in this case – that is, the dismissal of the

24 Rancheria as immune from suit in this instance, and the appellate court’s conclusion that the

25 Yurok’s HYSA claim against Dowd can be adjudicated in a manner where “the Resighini

26 Rancheria’s interests would not be impaired or impeded if the action against Dowd in his

27 individual capacity proceeds in the Resighini Rancheria’s absence . . . [and regardless of the

1 See Mem. Op. (dkt. 60) at 4. Thus, by filing a motion to dismiss for want of subject matter

2 jurisdiction, and by “conceding” that he possess no Yurok-derived right to “sometimes fish[] on

3 portions of the River that are not within the boundaries of the Rancheria” based on a “privilege” to

4 do so that has been conferred upon him by the Rancheria, Dowd is attempting to take advantage of

5 the Rancheria’s absence from this suit by using their rights as both a shield and a sword. While it

6 remains to be seen if this tactic can ever gain any traction, one thing is clear: Dowd’s jurisdictional

7 argument is deeply intertwined with the merits of the only surviving question in this case, to wit,

8 whether or not the HYSA has been violated on those occasions when “Dowd sometimes fishes on

9 portions of the River that are not within the boundaries of the Rancheria.” (See Def.’s Reply (dkt.

10 104) at 4).

11 In a Rule 12(b)(1) motion to dismiss, a district court may, generally speaking, “resolve

12 disputed factual issues bearing upon subject matter jurisdiction . . . unless ‘the jurisdictional issue

13 and the substantive issues are so intermeshed that the question of jurisdiction is dependent on

14 decision of the merits.’” Wilkins v. United States, 13 F.4th 791, 796 (9th Cir. 2021) (quoting

15 Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1196-97 (9th Cir. 2008)).

16 “‘Such an intertwining of jurisdiction and merits may occur when a party’s right to recovery rests

17 upon the interpretation of a federal statute that provides both the basis for the court’s subject

18 matter jurisdiction and the plaintiff’s claim for relief.’” Wilkins, 13 F.4th at 796 (quoting Williston

19 Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement, 524 F.3d 1090,

20 1094 (9th Cir. 2008). In cases where these questions are “so intermeshed,” dismissal is improper.

21 Wilkins, 13 F.4th 791, 796 (9th Cir. 2021) (quoting Kingman, 541 F.3d at 1196-97). As mentioned

22 above, Dowd’s argument to the effect that there is no jurisdiction under the HYSA to determine

23 whether his fishing violated the HYSA because he did not violate the HYSA represents exactly

24 such an intermeshing.

25 //

26 //

27 //

1 CONCLUSION

2 Accordingly, for the reasons expounded herein, Dowd’s Motion (dkt. 100) is DENIED.

3 IT IS SO ORDERED.

4 Dated: July 5, 2022

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ROBERT M. ILLMAN

7 United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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