Bishop Paiute Tribe v. Inyo County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BISHOP PAIUTE TRIBE, No. 15-16604

Plaintiff-Appellant,

D.C. No.

v. 1:15-cv-00367-

GEB-JLT

INYO COUNTY; WILLIAM LUTZE,

Inyo County Sheriff; THOMAS

HARDY, Inyo County District OPINION

Attorney,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted April 21, 2017

San Francisco, California

Filed July 19, 2017

Before: Sidney R. Thomas, Chief Judge, Mary H.

Murguia, Circuit Judge, and Michael M. Baylson, * District

Judge.

Opinion by Judge Murguia

*

The Honorable Michael M. Baylson, United States District Judge

for the Eastern District of Pennsylvania, sitting by designation.

2 BISHOP PAIUTE TRIBE V. INYO COUNTY

SUMMARY **

Federal Question Jurisdiction / Ripeness

The panel reversed the district court’s dismissal on

jurisdictional grounds of an action brought by an Indian

tribe, seeking a declaration regarding the tribe’s right to

conduct law enforcement on its reservation.

The panel held that because the tribe had alleged

violations of federal common law, it had adequately pleaded

a federal question providing the district court with subject

matter jurisdiction under 28 U.S.C. § 1331.

The panel held that the case was constitutionally and

prudentially ripe because there was an actual and imminent

threat to a concrete interest of the tribe, and the case was fit

for judicial decision. In addition, the case was not moot.

The panel remanded the case to the district court for

further proceedings.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BISHOP PAIUTE TRIBE V. INYO COUNTY 3

COUNSEL

Dorothy A. Alther (argued), California Indian Legal

Services, Escondido, California; Jasmine Andreas,

California Indian Legal Services, Bishop, California; for

Plaintiff-Appellant.

John D. Kirby (argued), Law Offices of John D. Kirby, San

Diego, California; Marshall S. Rudolph, Inyo County

Counsel, Independence, California; for Defendants-

Appellees.

OPINION

MURGUIA, Circuit Judge:

The Bishop Paiute Tribe (the “Tribe”) seeks a

declaration that they have the right to “investigate violations

of tribal, state, and federal law, detain, and transport or

deliver a non-Indian violator [encountered on the

reservation] to the proper authorities.” Before reaching this

issue, the district court dismissed the case on jurisdictional

grounds, concluding that the case presents no actual case or

controversy. On appeal, we are also asked to assess whether

the district court had subject matter jurisdiction over this

case. Because questions of federal common law can serve

as the basis of federal subject matter jurisdiction pursuant to

28 U.S.C. § 1331, and because this case presents a definite

and concrete dispute that is ripe and not moot, we reverse

and remand for further proceedings.

4 BISHOP PAIUTE TRIBE V. INYO COUNTY

I. BACKGROUND

A. Factual History 1

The Tribe is a federally recognized Indian Tribe with an

875-acre reservation near the city of Bishop in the County of

Inyo, California. The Tribe exercises powers of self-

government through its governing body, the Tribal Council,

which consists of five officers elected from the general tribal

membership. The Tribe has approximately 1,800 persons

living on the reservation and runs a casino that allegedly has

received approximately 450,000 visitors.

The Tribe has established civil but not criminal tribal law

and has enacted three civil ordinances that are relevant to this

case: a Nuisance Ordinance, a Trespass Ordinance, and a

Tribal Public Safety Ordinance. Section 201 of the Tribal

Public Safety Ordinance permits the tribal court to issue and

enforce protective orders for the purposes of preventing

violence or threatening acts. Section 202 of the Tribal Public

Safety Ordinance permits the tribal court to give full faith

and credit to valid protective orders issued by a state or

another tribe’s tribal court.

In 2009, the Tribe established a Tribal Police

Department (“Tribal PD”). Since that time, the Tribal PD

has responded to several hundred calls. Many of the

responses are completed along with the Inyo County

Sheriff’s Department (“ICSO”). The Tribal PD employs

1

We take the following facts from the allegations in the first

amended complaint (“FAC”), which we must assume to be true. See

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010)

(explaining that at this stage of the proceedings, “[w]e accept as true all

well-pleaded allegations of material fact, and construe them in the light

most favorable to the non-moving party”).

BISHOP PAIUTE TRIBE V. INYO COUNTY 5

three officers and a Chief of Police. Each officer must meet

various qualification requirements, including having two

years of law enforcement experience and completing a law

enforcement training class. The Tribal PD patrols the

reservation, enforces tribal ordinances, and conducts

investigations. Tribal PD General Order 3.1 states that a

Tribal PD officer may need to detain an Indian or non-Indian

individual to secure the scene, prevent the suspect from

leaving the scene, or for officer safety. Tribal PD officers

are also permitted to detain non-Indians who are suspected

of committing criminal acts on the reservation and to transfer

such individuals to outside law enforcement. Non-Indians

are to be turned over to outside law enforcement as soon as

possible.

On December 24, 2014, Tribal PD Officer Daniel

Johnson (“Johnson”) received an on-reservation call from a

tribal member reporting that the tribal member’s non-Indian

ex-wife was violating the tribal member’s tribal and state

protective orders by being at his home and causing a

disturbance. Johnson notified the ICSO about the incident

and responded to the call. Tribal and local law enforcement

knew the suspect well; Tribal PD had responded to 11 calls

involving the suspect, and ICSO had previously arrested the

suspect twice for violating the state protective order.

Once Johnson arrived at the scene, he approached the

suspect, who was sitting in her vehicle. Johnson informed

the suspect that she was violating tribal and state court

protective orders and that she needed to leave. The suspect

became angry and verbally abusive. Johnson informed her

that he was going to detain her for violating the protective

ordinances and that she would be cited for violating the tribal

nuisance and trespass ordinances. Johnson repeatedly

ordered the suspect to exit the vehicle, but she did not. As

6 BISHOP PAIUTE TRIBE V. INYO COUNTY

Johnson attempted to remove her from the vehicle, the

suspect kicked him. In response, Johnson removed his Taser

and warned the suspect that if she did not comply, Johnson

would deploy his Taser. The suspect did not comply, and

Johnson applied his Taser to her.

Moments after Johnson deployed his Taser, an ICSO

deputy arrived. Several neighbors, who had gathered around

Johnson and the suspect, were verbally abusive toward

Johnson. The ICSO deputy requested assistance from the

police department of the nearby city of Bishop, California,

because he and Johnson were outnumbered and the

neighbors were hostile. Johnson finally removed the suspect

from the vehicle and handcuffed her. Soon thereafter, a

Bishop City Police Detective and ICSO Acting Lieutenant

and Detective arrived at the scene and conducted an

investigation. The officers ultimately released the suspect,

because her ex-husband did not want her to be arrested.

Johnson, however, cited the suspect for trespass, nuisance,

and violating the tribal and state protective orders.

Before leaving the scene, the ICSO detective noticed a

small abrasion and some redness on the suspect’s abdominal

area and asked the suspect if she was injured. Johnson asked

the suspect if she wanted an ambulance to respond, and the

suspect declined the offer. The following week, the ICSO

conducted an investigation into the December 24 incident

that was submitted to the Inyo County district attorney’s

office. On January 5, 2015, the Inyo County district attorney

filed a felony complaint against Johnson charging him with

assault with a stun gun, false imprisonment, impersonating a

public officer, and battery.

On January 6, 2015, ICSO Sheriff William Lutze

(“Sheriff Lutze”) sent a “Cease and Desist Order” to the

Tribe ordering Tribal PD to “cease and desist all law

BISHOP PAIUTE TRIBE V. INYO COUNTY 7

enforcement of California statutes.” The order stated that

ICSO had repeatedly told Tribal PD that its officers had been

illegally exercising state police powers and that Tribal PD

officers “do NOT have any legal authority, notwithstanding

Bishop Paiute tribal authority, to enforce any state or federal

laws within or outside tribal property.” The order

documented several instances of the Tribal PD allegedly

illegally exercising law enforcement authority, including the

December 24, 2014 incident with Johnson. ICSO ordered

Tribal PD to immediately:

(A) cease and desist the unlawful exercise of

California peace officer authority both within

and outside tribal property and (B) cease and

desist possessing firearms outside tribal

property (e.g. court appearances) and

(C) provide this office with prompt written

assurance within ten (10) days that Tribal

Police will cease and desist from further acts

as explained in this correspondence.

If Tribal Police does not comply with this

cease and desist order within this time period,

be advised that Tribal Police employees will

be subjected to arrest and criminal

prosecution for applicable charges as well as

Penal Code § 538d (Fraudulent

Impersonation of a Peace Officer).

(emphasis in original).

The Tribe responded to the cease and desist order on

January 15, 2015. The Tribe noted that it disagreed with

ICSO’s presentation of the facts and interpretation of

applicable law but, as a show of good faith, the Tribe agreed

8 BISHOP PAIUTE TRIBE V. INYO COUNTY

that its officers would “not exercise California peace officer

authority on or off the reservation” and would “carry their

firearms only on the Bishop Paiute Indian Reservation.” The

Tribe did not suggest that its officers would refrain from

exercising their inherent authority as interpreted by the

Tribe. The Tribe further noted the importance of Tribal PD

officers being “allowed to perform their legal duties without

fear or expectation of criminal prosecution” and therefore

requested a meeting with ICSO to address the matters

identified in the cease and desist letter.

B. Procedural History

The Tribe brought this action against Inyo County,

Sheriff Lutze, and Inyo County District Attorney Thomas

Hardy (collectively “Defendants”). Attached to the

operative first amended complaint (“FAC”) were several

exhibits, including Johnson’s felony arrest warrant and

criminal complaint, the cease and desist order, various tribal

ordinances, Tribal PD officer job descriptions, and Tribal PD

policies and procedures.

In its FAC, the Tribe requested that the district court

clarify the Tribe’s rights with respect to the ongoing dispute

with the Defendants. In particular, the Tribe sought

declarations that:

[1] Defendants’ actions of arresting and

charging Tribal Officer Johnson and future

threat of criminal prosecution of the Tribe’s

police officers, violates federal common law

and directly interferes with the Tribe’s

inherent authority to maintain a police

department and protect public safety on its

Reservation.

BISHOP PAIUTE TRIBE V. INYO COUNTY 9

[2] [T]he Tribe’s police officers have the

authority on its Reservation to stop, restrain,

investigate violations of tribal, state and

federal law, detain, and transport or deliver a

non-Indian violator to the proper authorities.

By carrying out these federally authorized

actions, the Tribe’s duly authorized law

enforcement officers are not impersonating a

state officer nor is their restraint,

investigation and detention of a non-Indian,

in compliance with provisions of the Indian

Civil Rights Act, an “arrest” for purposes of

a state criminal charge of false imprisonment.

The Tribe also sought to enjoin Defendants from arresting,

criminally charging, interfering with, or threatening Tribal

PD officers who exercise their lawful duties. Finally, the

Tribe sought attorney fees and costs.

The three defendants each separately moved to dismiss

the FAC. After the motions were fully briefed, counsel for

Defendants filed a declaration stating that he recently

learned that the Tribe had responded to ICSO’s cease and

desist order. Defendants’ counsel attached the Tribe’s letter

and stated that the letter “appears to address and resolve the

directives of the Sheriff’s letter” and that the letter “raises

the issue of mootness of this litigation, and subject matter

jurisdiction, as well as accompanying justiciability, and

further speaks to and underscores the issue of ripeness, as

well as the issue of existence of an actual case or

controversy.” The Tribe filed an “Opposition” to the

declaration, arguing that the Tribe’s case “is not moot and

presents a case and controversy.”

10 BISHOP PAIUTE TRIBE V. INYO COUNTY

On July 13, 2015, the district court, stating that it could

consider jurisdictional issues sua sponte, dismissed the FAC

for lack of a justiciable case or controversy. Bishop Paiute

Tribe v. Inyo Cty., No. 1:15-CV-00367-GEB-JTL, 2015 WL

4203986, at *1, *4 (E.D. Cal. July 13, 2015). The Tribe

timely appealed. 2

II. STANDARD OF REVIEW

We review de novo a district court’s order dismissing a

case for lack of subject matter jurisdiction, lack of ripeness,

or for mootness. Maronyan v. Toyota Motor Sales, U.S.A.,

Inc., 658 F.3d 1038, 1039 (9th Cir. 2011) (subject matter

jurisdiction); Mfr’d Home Cmtys. Inc. v. City of San Jose,

420 F.3d 1022, 1025 (9th Cir. 2005) (ripeness); Foster v.

Carson, 347 F.3d 742, 745 (9th Cir. 2003) (mootness).

2

Under Federal Rule of Civil Procedure 41(b), dismissals for lack

of jurisdiction are generally without prejudice and are therefore not final

appealable orders. However, determining whether a ruling is final and

therefore appealable under 28 U.S.C. § 1291 requires “a practical rather

than a technical” analysis. Gillespie v. U.S. Steel Corp., 379 U.S. 148,

152 (1964) (citation omitted). We have held that “[a] ruling is final for

purposes of § 1291 if it (1) is a full adjudication of the issues, and

(2) clearly evidences the judge’s intention that it be the court’s final act

in the matter.” Elliott v. White Mountain Apache Tribal Court, 566 F.3d

842, 846 (9th Cir. 2009) (citation omitted). Here, we have little doubt

that the judge intended his order to be his final act in this case. The order

and the docket state that “this action is DISMISSED for lack of

jurisdiction and shall be closed.” Bishop Paiute Tribe, 2015 WL

4203986, at *4. The district court thereafter issued a Judgment. And the

district court did not hint at future proceedings or the filing of a second

amended complaint. We therefore conclude that the district court’s order

was a final appealable order.

BISHOP PAIUTE TRIBE V. INYO COUNTY 11

III. DISCUSSION

The district court’s order and the parties’ briefing raise

two main questions. First, Defendants argue on appeal that

the court lacks subject matter jurisdiction because the FAC

does not present a question of federal law. Second, the Tribe

argues that the district court improperly dismissed the case

on ripeness grounds because the district court erred in

concluding that the Tribe brought a pre-enforcement

challenge against a “law” without pleading a concrete plan

to violate the law. Relatedly, the Tribe argues that the

district court improperly dismissed the case on mootness

grounds because the district court erroneously concluded

that the Tribe had agreed to comply with ICSO’s cease and

desist order. We agree with the Tribe on all counts: we have

subject matter jurisdiction over the Tribe’s claims, which are

ripe and not moot.

A. Subject Matter Jurisdiction

“The party asserting jurisdiction bears the burden of

establishing subject matter jurisdiction.” In re Dynamic

Random Access Memory (DRAM) Antitrust Litig., 546 F.3d

981, 984 (9th Cir. 2008). “Dismissal for lack of subject

matter jurisdiction is appropriate if the complaint,

considered in its entirety, on its face fails to allege facts

sufficient to establish subject matter jurisdiction.” Id. at

984–85. Under 28 U.S.C. § 1331, federal “district courts

shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United

States.” Questions of federal common law present a federal

question that can serve as the basis of federal subject matter

jurisdiction pursuant to 28 U.S.C. § 1331. Illinois v. City of

Milwaukee, 406 U.S. 91, 100 (1972) (“[Section] 1331

jurisdiction will support claims founded upon federal

common law as well as those of a statutory origin.”); see also

12 BISHOP PAIUTE TRIBE V. INYO COUNTY

Gila River Indian Cmty. v. Henningson, Durham &

Richardson, 626 F.2d 708, 714 (9th Cir. 1980) (citing

Illinois, 406 U.S. at 100 (noting that this principle applies in

the context of federal Indian law)).

The Tribe alleged in the FAC that the district court had

jurisdiction based on 28 U.S.C. §§ 1331, 1362, 2201, and

2202. Of these provisions, the most important is 28 U.S.C.

§ 1331, because the Tribe clearly alleges violations of

federal common law. The Tribe specifically alleges that

“[t]he Defendants’ arrest and charging of Tribal officer

Johnson . . . violates federal common law.” The Tribe

alleges that federal common law grants the Tribe the

authority to “investigate violations of tribal, state, and

federal law, detain, and transport or deliver a non-Indian

violator to the proper authorities.” 3 Because the Tribe has

alleged violations of federal common law, the Tribe has

adequately pleaded a federal question that provides federal

courts with subject matter jurisdiction pursuant to 28 U.S.C.

§ 1331. See Gila River, 626 F.2d at 714.

Defendants offer several unpersuasive arguments that

the FAC fails to adequately establish subject matter

jurisdiction. First, Defendants argue that “the Tribe

completely fails to identify” which law this case arises

under. Defendants’ assertion is simply wrong. In its FAC,

3

Though we need not reach the merits of this claim to conclude that

the Tribe has properly alleged federal subject matter jurisdiction, we note

that the Tribe has at least a colorable claim for relief. See, e.g., Duro v.

Reina, 495 U.S. 676, 697 (1990) (superseded by statute on other

grounds); Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir.

1975) (holding that “Indian tribes possess an inherent sovereignty,”

which includes the power “to exclude trespassers who have violated state

or federal law by delivering the offenders to the appropriate authorities”).

BISHOP PAIUTE TRIBE V. INYO COUNTY 13

the Tribe provided a long list of Supreme Court and other

relevant case law regarding the Tribe’s alleged inherent

authority to exercise jurisdiction over non-Indians on a

reservation. 4 The Tribe explicitly alleged that Defendants

violated federal common law under this line of cases.

Second, Defendants argue that the Indian Law

Enforcement Reform Act of 1990 (“ILERA”), 25 U.S.C.

§§ 2801 et seq., and its accompanying federal regulations,

25 C.F.R. §§ 12.21 et seq., have displaced the federal

common law upon which the FAC relies. Congress can

displace federal common law through legislation. Am. Elec.

Power Co. v. Connecticut, 564 U.S. 410, 423 (2011). “The

test for whether congressional legislation excludes the

declaration of federal common law is simply whether the

statute speaks directly to the question at issue.” Id. at 424

(citation and alterations omitted). Defendants argue that the

ILERA speaks directly “to the question which is at issue here

– that of tribal law enforcement officers enforcing federal

law on reservations.”

However, Defendants confuse what the Tribe is seeking

in this case. Defendants argue that the ILERA speaks

directly to the question of whether and to what extent tribal

law enforcement officers can enforce federal law. That

question is distinct from what the Tribe actually seeks: a

declaration that the Tribe may investigate violations of

tribal, state, and federal law and detain and deliver a non-

Indian potential violator to state law enforcement authorities.

The Tribe is not seeking a declaration that it can enforce

4

For example, the Tribe cites Duro, Montana v. United States,

450 U.S. 544 (1981), Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978), Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975),

and Williams v. Lee, 358 U.S. 217 (1959).

14 BISHOP PAIUTE TRIBE V. INYO COUNTY

federal law on the reservation or that it can prosecute

violators of federal or state criminal law. Essentially,

Defendants fail to show how the ILERA comprehensively or

directly addresses the inherent tribal police authority that the

Tribe seeks to exercise over non-Indians. As Defendants

themselves point out, the ILERA establishes a program

through which the Bureau of Indian Affairs offers training to

tribal law enforcement officers who wish to exercise federal

peace officer powers. The Tribe is not seeking such

authority in this case. Moreover, Defendants point to no case

in which a court has concluded that ILERA displaces the

alleged federal common law right of tribes to detain and

deliver to the proper authorities a non-Indian suspected of

violating tribal, state, or federal law on tribal property.

For these reasons, we hold that the FAC raises a federal

question that provides federal courts with subject matter

jurisdiction pursuant to 28 U.S.C. § 1331.

B. Justiciability

Pursuant to Article III of the U.S. Constitution, federal

courts can only adjudicate live cases or controversies. See

Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,

1138 (9th Cir. 2000) (“Our role is neither to issue advisory

opinions nor to declare rights in hypothetical cases, but to

adjudicate live cases or controversies consistent with the

powers granted the judiciary in Article III of the

Constitution.”). In this case, the two most relevant

justiciability doctrines are ripeness and mootness.

1. Ripeness

Ripeness is an Article III doctrine designed to ensure that

courts adjudicate live cases or controversies and do not

“issue advisory opinions [or] declare rights in hypothetical

BISHOP PAIUTE TRIBE V. INYO COUNTY 15

cases.” Id. A proper ripeness inquiry contains a

constitutional and a prudential component. Id.

a. Constitutional Ripeness

For a case to be ripe, it must present issues that are

“definite and concrete, not hypothetical or abstract.” Id. at

1139 (citation omitted). Constitutional ripeness is often

treated under the rubric of standing because “ripeness

coincides squarely with standing’s injury in fact prong.” Id.

at 1138 (“Sorting out where standing ends and ripeness

begins is not an easy task.”). 5 For a plaintiff to meet the

injury-in-fact prong of standing, the plaintiff must

demonstrate “an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical.” Lujan, 504 U.S.

at 560 (citations omitted).

Here, the Tribe identifies its legally protected interest as

its “inherent sovereign authority to restrain, detain, and

deliver to local authorities a non-Indian on tribal lands that

is in violation of both tribal and state law.” This interest is

certainly concrete and particularized. See Oklevueha Native

Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 836–

37 (9th Cir. 2012). As the matter currently stands, the Tribe

has been ordered to cease and desist exercising what it

believes to be its proper inherent authority. The Tribe has

already seen one of its officers arrested and prosecuted based

on Defendants’ interpretation of the Tribe’s lawful authority.

See id. (finding that plaintiffs alleged a concrete injury

because the statute at issue had already been enforced

5

The “irreducible constitutional minimum of standing” includes

(1) an injury in fact; (2) causation; and (3) redressability. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992).

16 BISHOP PAIUTE TRIBE V. INYO COUNTY

against them, “thereby eliminating any concerns that

Plaintiffs’ fear of enforcement is purely speculative”). Since

the Tribe covers the legal costs of defending its Tribal PD

officers from prosecution, this dispute has cost the Tribe

money. And Defendants’ interference with the Tribe’s

alleged inherent authority has, according to Tribe, interfered

with the Tribe’s ability to maintain peace and security on the

reservation. See id.

Moreover, in addition to the actual arrest and prosecution

of Johnson, the ICSO’s cease and desist letter credibly

threatens imminent future prosecutions if the Tribe fails to

abide by ICSO’s demand. While generalized threats of

prosecution do not confer constitutional ripeness, a genuine

threat of imminent prosecution does. Thomas, 220 F.3d at

1139. To determine whether a genuine threat of imminent

prosecution exists,

we look to whether the plaintiffs have

articulated a concrete plan to violate the law

in question, whether the prosecuting

authorities have communicated a specific

warning or threat to initiate proceedings, and

the history of past prosecution or

enforcement under the challenged statute.

Id. (citation omitted). Here, the Inyo County district

attorney’s office has already prosecuted one Tribal PD

officer, and ICSO communicated a specific threat of

additional prosecutions.

Because the arrest and ongoing prosecution of Johnson

and the cease and desist order threatening future

prosecutions demonstrate that the threat to the Tribe’s

concrete interest is actual and imminent, we hold that the

BISHOP PAIUTE TRIBE V. INYO COUNTY 17

Tribe’s FAC alleges an injury in fact that meets the

requirements of constitutional ripeness.

b. Prudential Ripeness

Our evaluation of “the prudential aspects of ripeness” is

“guided by two overarching considerations: ‘the fitness of

the issues for judicial decision and the hardship to the parties

of withholding court consideration.’” Thomas, 220 F.3d at

1141 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149

(1967) overruled on other grounds by Califano v. Sanders,

430 U.S. 99 (1977)). “Prudential considerations of ripeness

are discretionary.” Id. at 1142. In determining whether a

case is fit for judicial decision, this court has looked to

whether the case presents a “concrete factual situation” or

purely legal issues. Id. at 1141–42; see also San Diego Cty.

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1132 (9th Cir.

1996).

Here, the FAC presents a detailed factual account of the

underlying disputes in this case, including the arrest and

ongoing prosecution of Johnson and the ongoing dispute

over the scope of the Tribe’s lawful sovereign authority.

Withholding the court’s consideration and resolution of

these disputes creates multiple hardships for the Tribe,

including ongoing legal costs, intrusions on the Tribe’s

ability to keep the peace and security of the reservation,

misunderstanding and confusion surrounding the ability of

the Tribe and Tribal PD to enforce tribal laws and prevent

lawlessness on the reservation, and potentially an unlawful

limitation on the Tribe’s inherent sovereign powers. This

case is clearly fit for judicial decision. See Oklevueha,

676 F.3d at 837–38 (finding prudential ripeness because

“seizure of Plaintiffs’ marijuana presents a concrete factual

scenario that demonstrates how the laws, as applied, infringe

18 BISHOP PAIUTE TRIBE V. INYO COUNTY

Plaintiffs’ constitutional rights” (citation and alterations

omitted)).

The Tribe has presented a prudentially ripe case or

controversy. Because the case is constitutionally ripe as

well, we hold that the district court erred by concluding that

this case was not ripe.

2. Mootness

The final issue is whether this case is moot in light of the

Tribe’s response letter, in which ICSO contends that the

Tribe agreed to abide by the cease and desist letter. The

district court relied on the Tribe’s letter in concluding that

there was no ongoing controversy.

A federal court lacks jurisdiction to hear a case that is

moot. Carson, 347 F.3d at 745. A case is moot “where no

actual or live controversy exists.” Id. (citation omitted). “If

there is no longer a possibility that an appellant can obtain

relief for his claim, that claim is moot and must be dismissed

for lack of jurisdiction.” Id. (citation omitted). Mootness

has been described as “standing set in a time frame: The

requisite personal interest that must exist at the

commencement of the litigation (standing) must continue

throughout its existence (mootness).” Id. (citation omitted).

Here, the district court erred by concluding that the

Tribe’s response letter to the cease and desist order mooted

any ongoing controversy. The letter makes clear that the

Tribe disagreed with ICSO’s letter and order. The Tribe

specifically stated “[w]e disagree with your presentation of

the facts, and your interpretations of applicable law.” But

the Tribe agreed to address ICSO’s concerns “as a show of

good faith and to keep the peace.” This letter in no way

demonstrates that the controversy over the scope of the

BISHOP PAIUTE TRIBE V. INYO COUNTY 19

Tribe’s lawful sovereign authority was put to rest. In fact,

the Tribe requested further meetings with ICSO to address

ICSO’s concerns. And the Tribe specifically noted the

importance of Tribal PD officers being “allowed to perform

their legal duties without fear or expectation of criminal

prosecution.” The district court’s conclusion that the Tribe’s

response letter mooted all controversies between the parties

was erroneous. See Carson, 347 F.3d at 745 (explaining that

mootness occurs “where no actual or live controversy exists”

(citation omitted)).

IV. CONCLUSION

Because the district court has subject matter jurisdiction

over claims involving federal common law and because the

Tribe’s case is ripe and not moot, we REVERSE and

REMAND for further proceedings.