# IN THE COURT OF APPEALS (2020)

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Arincon_luiseno%3A8e92d95d820b9266

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

FOR PUBLICATION
IN THE COURT OF APPEALS
FOR THE RINCON BAND OF LUISEÑO INDIANS
Case No. AP-0205-19

MARVIN DONIUS and RINCON MUSHROOM CORPORATION OF AMERICA, INC.
Plaintiffs/Appellants,
vs.
RINCON BAND OF LUISEÑO INDIANS, MELISSA ESTES,
BO MAZZETTI, STEPHANIE SPENCER, STEVE STALLINGS,
LAURIE E. GONZALEZ and ALFONSO KOLB, SR.,
Defendants/Appellees.

RINCON BAND OF LUISEÑO INDIANS
Counter-Plaintiffs/Appellees
vs.
MARVIN DONIUS and RINCON MUSHROOM CORPORATION OF AMERICA, INC.
Counter-Defendants/Appellants

OPINION

Appeals from the Rincon Trial Court
Intertribal Court of Southern California 1C5C
In CVR-2019-0002

Argued and Submitted January 23, 2020
Pala, California
Filed April 2, 2020

Counsel:
Attorney for Appellants
Manuel Corrales, Jr.
Gilleon Law Firm
17140 Bernardo Center Drive, Ste. 358
San Diego, CA 92128
Attorneys for Appellees
Scott Crowell
Crowell Law Office-Tribal Advocacy Group
1487 W. State Route 89A, Ste. 8
Sedona, AZ 86336
Denise Turner-Walsh
Attorney General
Rincon Band of Luiseno Indians
P.O. Box 1425
Pauma Valley, CA 92061

2

Before: James Ware, Matthew Fletcher and Arthur Gajarsa,
Appellate Judges
Opinion of the Court filed by Judge Ware

I. INTRODUCTION
This case arises out of a dispute between Appellants, Rincon Mushroom
Corporation, Inc., and Marvin Donius (collectively, “RMCA/Donius”) and
Appellees, the Rincon Band of Luiseño Indians, (the “Tribe”) and members of
the Tribe’s Business Committee. The Tribe is a federally recognized Indian
tribe under the Mission Indian Relief Act of 1891 pursuant to which it is the
beneficial owner of a reservation in northern San Diego county in California.
Marvin Donius is a non-Indian who owns approximately five acres of land in fee
simple within the geographic boundaries of the Tribe’s reservation. Rincon
Mushroom Corporation operated a business on the land and now holds a
promissory note from Donius that is secured by an interest in the land. United
States law allows an Indian tribe to regulate conduct on fee land if that conduct
harms or threatens to harm the health and welfare of the tribe.
Based on events and conditions on the subject property that the Tribe
concluded affected the health and welfare of the Tribe, the Tribe sought to
enforce its Environmental Enforcement Ordinance against RMCA/Donius in

3

tribal court. In response, RMCA/Donius filed an action in the United States
District Court for the Southern District of California seeking a declaration that,
as a fee owner, the Tribe had no jurisdiction over his land-based activities and
sought to permanently enjoin the Tribe from interfering with him. Under the
comity doctrine, the federal court stayed the action and ordered RMCA/Donius
to first exhaust its remedies before the tribal court. In proceedings before it,
the tribal trial court ruled that the Tribe had proved that RMCA/Donius were
engaged in conduct on their land that threatened the health and welfare of the
Tribe. The tribal court granted injunctive relief in favor of the Tribe against
RMCA/Donius.
With the judgment below being final, RMCA/Donius appeal the tribal trial
court’s decision. The question on appeal before this Court is whether under
applicable law, the Tribe possesses authority to enforce its environmental
ordinance against RMCA/Donius. Based on the briefings submitted to date and
oral argument before this Court, we now affirm in-part and reverse-in part the
decision of the trial court. This Court determines that while the trial court’s
findings are correct, the relief granted, however, is overbroad and must become
focused on the issues to be resolved; we therefore vacate the judgment granting
injunctive relief and remand the issue of relief to the trial court for further
consideration consistent with this Opinion.
4

II. FACTUAL AND PROCEDURAL BACKGROUND
The Rincon Reservation is approximately 4,026 acres in northern San
Diego county. A casino and resort are the principal sources of revenue for the
Tribe. The Tribe seeks to regulate development on real property within the
Reservation through codes and ordinances, the earliest relevant code and
ordinance having been enacted in 2007.
The RMCA/Donius property is approximately 5 acres within the
geographic boundaries of the Rincon Reservation and is located directly across
a highway from the Tribe’s casino and resort. For years, RMCA/Donius and
predecessor companies had conducted activities that include the following:
“operating (i) a mushroom farm and other agricultural enterprises; (ii) a
wooden pallet manufacturing facility; (iii) a fuel depot; (iv) a trucking company;
(v) an auto storage facility; (vi) a junk yard; and (vii) other undisclosed ‘small
activities.’” (Appellees’ Response Brief at 7.)
Tribal groundwater wells underneath both properties are the source of
drinking water for both properties. The groundwater from these wells is
limited in quantity and is susceptible to contamination from surface runoff due
to the porous soils and shallow depth of the groundwater supply. Surface
runoff is the primary source of recharge to the alluvial aquifer that supplies the
Tribe’s groundwater.
5

In 2005, Tribal officials became concerned about wastewater disposal on
the RMCA/Donius property. They requested an inspection of the property by
the U.S. Environmental Protection Agency. (Trial Exh. 102.) The inspection
revealed potentially contaminating activities: improper storage of waste oil,
undocumented materials in a truck repair area and injection wells used for
sewage. Additional testing and monitoring were recommended to determine
the seriousness of the potential for contamination.1 The inspection disclosed a
plume of contamination originating from the RMCA/Donius property. In 2007,

1 The EPA report stated:

The drinking water supply for the Tribe should be protected by requiring backflow
prevention . . . from the hose supplying water to the site.
If the drinking water well on the site is no longer functioning, its cause of failure
should be documented and the well properly destroyed, so that the well bore does
not transmit surface contaminants to underground sources of drinking water. If this
is the case, a more permanent source of drinking waste for the site should be
obtained, either a new well or a legal hookup to the Tribal public water system.
Ground Water/Wastewater concerns: EPA will notify business owner of their
obligation to Inventory their (4) injection wells, and will include compliance
assistance information with that correspondence. EPA will provide best management
practice guidelines for the storage of motor vehicle fluids to the facility owner. This
will include general RCRA compliance assistance.
EPA will recommend that in the course of determining septic system location,
capacity and design, that the Tribe be provided with advance notice of the pumping
state so that they can be present to evaluate the condition of the injection well(s).
EPA recommends that the Tribe contact RCAC as well, to utilize RCAC’s technical
expertise in evaluating the condition of the wastewater system.
The site should be reinspected for compliance with applicable housing and hazardous
materials regulations. (Trial Exh. 102 at 3.)

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a “preliminary aquifer vulnerability analysis” was conducted by Bikis Water
Consultants (“BWC”). BWC identified “high risk zones” and “moderate risk
zones” within the Reservation that might be susceptible to contamination.2
Later in 2007, a wildfire that swept across Southern California engulfed
the RMCA/Donius property and destroyed the buildings on the property. The
fire also damaged or destroyed cars and trailers that were stored on the
property as well as oil drums and compressed gas tanks. A 3,000 gallon aboveground diesel storage tank on the property exploded during the fire. Although
the Tribe’s casino was not burned, the wildfire spread downwind to an area
that threatened to involve the casino. Tribal officials believed that conditions
on the RMCA/Donius property contributed significantly to the spread of the
wildfire. RMCA/Donius did not restore or repair the fire damage to their
property immediately. During the trial, RMCA/Donius’ expert witness testified
that there is a reasonable probability that during the 2007-2008 rainy season,
metal contents from ash debris leached into the groundwater. (Tr. at 622.)
In 2008, RMCA/Donius resumed commercial activities on the property.
Rincon tribal officials notified RMCA/Donius that because their property was
within the Rincon Reservation and because they had repeatedly been notified

2 (Trial Exh. 105.)

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of potentially hazardous and unsafe conditions on the property, Tribal land use
jurisdiction was being asserted over their property; the tribal officials cited a
June 11, 1989, version of the Tribe’s land-use Ordinance. (Trial Exh. 112.)
RMCA/Donius were given a time period to provide information about lessees
and sub-lessees; water supply to the property; the septic system; wastewater
disposal; above and below ground storage tanks, storage drums, and storm
water runoff; injection wells; clean-up from the fire; and current and proposed
activities on the property. (Id.) Tribal officials provided RMCA/Donius with
photographs of a variety of contaminants and at least two conduits for
contamination into the unconfined aquifer beneath the site. (Trial Exh. 114.)
An EPA “Pollution Report” dated on March 20, 2008, documented the
state of the property at that time:
EPA maintains an interest in coordinating oversight of a voluntary
cleanup of this site with the Rincon Tribal authorities. The
property owner and Rincon Mushroom Corporation have
individually expressed their desire to cooperate with the EPA and
address all site concerns. Failure to complete burn ash/debris
removal and conduct an environmental assessment of identified
areas of concern may result in an EPA removal program action. The
overarching issue appears to be a lack of appropriate regulatory
jurisdiction on this land. The site appears to be unregulated from
the standpoint of basic fire codes, land use, building codes and
other matters associated with municipal government. The issue is
also relevant to oversight of property remediation and redevelopment. (Trial Exh. at 4.)

8

In or around February 2009 two large wooden billboard signs were
erected on the RMCA/Donius Property. The Tribe’s Sign Ordinance as of
February 1, 2009, provided, inter alia:
[A]ll signs erected on the Rincon Reservation must receive Council
approval before they are constructed/erected. All requests for
Council approval must be submitted in writing to the Executive
Assistant of the Tribal Council and must meet the criteria set forth
in the Ordinance.”3
RMCA/Donius refused to submit an application for the billboards. On
April 17, 2009, the Tribe filed a complaint for violation of the Sign Ordinance in
the tribal court against Donius and Mushroom Express, Inc., his then company,
(the “Billboard Sign case”).4 The defendants filed a “Special Appearance” in
which they objected to the subject matter and personal jurisdiction by the tribal
court. The Tribe submitted a brief in support of jurisdiction, citing Montana v.
United States, 450 U.S. 544, 565 (1981). (See Trial Exh. 12.) The trial judge
found that the tribal court had both subject matter and personal jurisdiction
over the defendants and ordered them to file an answer. When the defendants
failed to do so, the tribal court entered a default judgment imposing a $5,000
fine on the defendants and ordered them to correct the sign ordinance violation

3 (See Rincon Brief in Support of Jurisdiction at 4.)
4 Rincon Band of Luiseno Indians v. Marvin Donius and Mushroom Express Inc., No.

02972009.

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within ten days. If defendants failed to follow timely the mandate of the court’s
order, the judgment authorized the Tribe to remove the billboards.5
The defendants did not appeal the default judgment in the Billboard Sign
case. 6 In 2009, however, RMCA filed multiple civil complaints in the Superior
Court of the State of California and in the United States District Court for the
Southern District of California against the members of the Rincon Tribal Council
in their individual and official capacities7 and SDG&E8 (the “October 2009 civil
actions”). RMCA collaterally attacked the default judgment by the tribal trial
court and sought declaratory and injunctive relief preventing the Tribal Council
from enforcing the Tribal ordinances against RMCA and the subject property.
RMCA also alleged tort claims for interference with contracts and business
relations and civil RICO causes of action. RMCA alleged that the Tribe had
implemented a plan to force RMCA to sell the property to the Tribe by
interfering with its efforts to have San Diego Gas & Electric re-energize the
property, ordering a clean-up contractor to leave the property and by making
false claims to various entities that the property was under the exclusive

5 In July 2009 Tribal representatives entered the RMCA/Donius property and removed the

billboards. (Docket Item No. 28 at 4.)
6 Because the Ordinance under which the default judgment was entered did not comply with
the second Montana exception, we set aside the default judgment nunc pro tunc.
7 The defendants were Bo Mazzetti, John Gilbert Parada, Stephanie Spencer, Charlie Kolb, and
Dick Watenpaugh.
8 RMCA v. Mazzetti, Case No. 09-CV-2330.

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jurisdiction of the Tribe. SDG&E filed a cross-claim against the Tribe. All of the
state court actions were dismissed.
The Rincon Tribe moved to dismiss the two October 2009 federal civil
actions on the ground, inter alia, that RMCA had not exhausted remedies before
the Rincon tribal court. The district judge granted the motions to dismiss,
ruling that under the doctrine of comity, the non-Indian plaintiffs had to
exhaust tribal court remedies before seeking to have a federal court enjoin the
tribal proceedings. RMCA appealed the dismissals to the Ninth Circuit.9 The
Ninth Circuit affirmed the district court’s exhaustion order but instructed the
lower court to stay the case pending exhaustion. The district court complied
and the matters moved back to the tribal court for exhaustion.10
Coincidentally with the return of the cases to the tribal court, in 2014,
the Tribe amended its Environmental Enforcement Ordinance by establishing

9 (See 3:09-cv-2330, Docket Item No. 56.)
10 The district court stayed the actions and directed the parties to proceed before the tribal

court and to submit status reports on RMCA’s exhaustion of remedies before the tribal court.
On June 15, 2015, the parties submitted a joint status report informing the district court that
on December 5, 2014, RMCA had submitted a proposed plan to the Rincon Environmental
Department that sets forth the activity to be conducted on the property. On June 1, 2015, the
Rincon Environmental Department had denied the request to approve the proposed plan,
but had indicated that the submission of certain information and clarification could cause it
to approve the proposed plan. Consequently the parties jointly requested the district court
to further stay the proceedings pending review of additional information. Based on the joint
status report, the district court administratively closed its case without prejudice to any
party to move to reopen and without prejudice to resolution of any statute of limitations
issue associated with the filing of the complaint. (See 3:09-cv-2330, Docket Item No. 82.)

11

“catastrophic consequences” as the standard for tribal jurisdiction to match
language now being used by the Supreme Court’s interpretations of the
Montana case. See Plains Commerce Bank v. Long Family Land and Cattle Co.,
554 U.S. 316, 341 (2008).
On August 25, 2015, RMCA/Donius filed a complaint in the tribal trial
court that repeated the substance of their allegations in the October 2009 civil
action11 and the Tribe filed violation notices and a counterclaim reasserting
jurisdiction under the amended Ordinance. The trial judge consolidated the
two cases12 and ordered a separate trial on the issue of tribal jurisdiction,
followed by a second trial to decide remedies, if necessary. In an order dated
May 18, 2017 (“Tribal 2017 Order”), the trial court held that based on the
actions and inactions of RMCA/Donius, the Tribe had established that it
possesses jurisdiction over the activities of RMCA/Donius. Phase two was not
tried until 2019. On April 22, 2019, the trial court issued judgment in favor of
the Tribe and also granted several forms of relief to the Tribe, including
injunctive relief. RMCA/Donius timely appeal from the 2017 Order and 2019
Judgment.

(Docket Item No. 69–71.)
November 10, 2015, in the Tribal Court, the Rincon Tribe granted a motion to
consolidate federal civil action Nos. 09-CV-2330 and 10-CV-0591 for purposes of further
proceedings.
11

12 On

12

III. APPELLATE JURISDICTION
This Court’s jurisdiction to hear this matter is derived from the Articles
of Association of the Rincon Band and from referral of the case by the federal
district court for exhaustion under the doctrine of comity.13
IV. STANDARDS OF REVIEW
As an appellate court, we defer to the findings of fact of the trial court.
We will not reverse or vacate those findings of fact unless the trial court
committed clear error. As to questions of law, however, we apply the de novo
standard of review. Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa, Inc., 715
F.3d 1196 (9th Cir. 2013).

13 The Rincon Band of Luiseño Indians is organized pursuant to Articles of Association

approved by the Commissioner of Indian Affairs on March 15, 1960. Section 1 of the Articles
establishes that the Rincon Tribal Business Committee (called the “Council”) governs the
Rincon Band and that the Council “shall have jurisdiction over the lands within the
boundaries of the Rincon Reservation (the “Reservation”).” Pursuant to Rincon Tribal
Ordinance 3.800.” The Council created this Court of Appeals and promulgated Rules and
Procedures Appellate:
Any party aggrieved by any final order, or judgment of the Rincon Trial Court
may appeal such order, or judgment to the Rincon Court of Appeals by filing a
notice of appeal with the Rincon Trial Court within fifteen (15) days after such
order or judgment has been entered. Rincon App. Ct. Rules & Proc. §3.812.
Under the doctrine of comity, the district court required RMCA/Donius to exhaust tribal
court remedies. At a minimum, exhaustion of tribal court remedies means that tribal
appellate courts must have the opportunity to review the determinations of the lower
tribal courts. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16-17 (1987).

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V. DISCUSSION
A.

Tribal Jurisdiction
Indian tribes are recognized as quasi dependent nations and as “distinct,

independent political communities,” qualified to exercise many of the powers
and prerogatives of self-government. Worchester v. Georgia, 31 U.S. 515, 559
(1832). The United States Supreme Court has characterized the sovereignty
retained by Indian tribes as having a “unique and limited character” that
centers on the reservation and on tribal members within the reservation.
United States v. Wheeler, 432 U.S. 313, 322-323 (1978).

Subject to

congressional oversight, tribes retain authority to govern reservation land and
the conduct of their members on the reservation. United States v. Mazurie, 419
U.S. 544, 557 (1975). Governance of reservations became more complex when
some reservation lands were converted into fee simple parcels and conveyed
to nonmembers under the Indian General Allotment Act of 1887, 25 U.S.C. § 331,
et seq.
1.

The Montana Second Exception

In Montana v. United States, 450 U.S. 544, 565 (1981), the Supreme Court
reaffirmed that once reservation land was converted to fee simple and
conveyed to nonmembers by a tribe, the tribe loses its plenary jurisdiction over
that part of the land. However, the Montana Court articulated two exceptions
14

to that principle. Under the first exception, when a non-Indian enters into a
consensual commercial relationship with a tribe or one of its members, the
tribe is permitted to exercise civil jurisdiction over the non-Indian through
taxation, licensing, or other means. Under the second exception, a tribe is
permitted to exercise civil authority over the conduct of non-Indian owners of
fee lands within the reservation, when the landowner’s conduct on the fee land
threatens to have or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe. Id. at 566.14
At the outset of our analysis, we draw attention to a difference between
the standard as articulated in Montana and that of the Tribe’s Ordinance, as it
is presently worded. As originally articulated, the second Montana exception
allowed for tribal jurisdiction over nonmembers when nonmember conduct
“threatens or has some direct effect on the political integrity, the economic

14 The parties’ briefs are replete with discussion of the second Montana exception and the

Supreme Court and other federal cases that have applied the exception. However, in their
briefs, the parties do not always accurately recite the second Montana exception. For
example, in his opening brief, Donius argues, “The landowners assert that the Tribe has no
regulatory jurisdiction to enforce its environmental ordinances, because the Tribe cannot
show the activities will cause a catastrophic risk of harm to the Tribe under established
federal law, and that the Tribe’s efforts to unlawfully regulate them is part of the Tribe’s
scheme to force them to sell their property to the Tribe.” (Corrected Brief of Appellants at
1, emphasis added). This argument is inapposite of the second exception under Montana.
On the contrary, the Tribe does not have the burden to prove that Donius’ activities will
cause a catastrophe. The Tribe’s burden is to show that Donius’ actions or inactions have
the potential to impose catastrophic consequences upon the political integrity, economic
security or health and welfare of the Tribe.

15

security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. Some
courts have now stated that the second exception applies when there is a threat
of “catastrophic consequences” to a tribe.15 In 2014, as this case was being sent
back to the Rincon tribal court for exhaustion, the Tribe amended the ordinance
to state that it applied to conduct that had the potential to impose catastrophic
consequences on the Tribe.
To contextualize the facts of this case in the universe of the Montana
general rule and exceptions, it is useful to describe the peculiar evolution of the
Supreme Court’s analysis on tribal jurisdiction over nonmembers.

The

“catastrophic consequences” language codified into tribal law originated with
the 2005 edition of the Cohen Handbook on Federal Indian Law, § 4.02[3][c], at
232 n. 220 (2005). The Cohen Handbook editors had quoted a Supreme Court
decision that held a tribe may not impose a tax on nonmember activities on
nonmember land unless the nonmember activity “actually ‘imperils’ the
political integrity of Indian tribes. . . .” Atkinson Trading Co. v. Shirley, 532 U.S.
645, 657-58 n.12 (2001) (quoting Montana, 450 U.S. at 566). The Handbook
editors extrapolated from the “imperils” remark that tribal jurisdiction is not

15 See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 341 (2008)

(quoting COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.02[3][c][i], at n.75 (Nell
Jessup Newton ed., 2012)).

16

justified unless the jurisdiction “is necessary to avert catastrophic
consequences.” Cohen Handbook, supra, § 4.02[3][c], at 232 n. 220. Three
years later, the Supreme Court took that stray remark as support for the
proposition that there is an “elevated threshold for application of the second
Montana exception . . . that tribal power must be necessary to avert catastrophic
consequences.”

Long Family Land, 554 U.S. 326 at 341 (quoting Cohen

Handbook).
This evolution in the Supreme Court’s characterization of the Montana
second exception from the “threatens or has some direct effect” trigger to the
“catastrophic consequences” trigger arises from an incredibly limited universe
of cases. The original case, Montana, involved a nonmember fishing in a river.
Montana, 450 U.S. at 547. The next major case, Strate v. A-1 Contractors, 520
U.S. 438 (1997), involved a nonmember-on-nonmember tort claim arising from
a car accident. Id. at 442. The next case was the Atkinson Trading case
involving a tax on a hotel. 532 U.S. at 647. The subsequent case, Plains
Commerce, involved race discrimination against tribal citizen ranchers by a
nonmember bank. 554 U.S. at 320. These cases involve isolated incidents with
harms that likely would not have impacted tribal lands. None of these cases
involved a fact pattern similar to the one at bar, which involves nonmember
activity that is likely to impact critical tribal lands.
17

However, one Supreme Court decision with a fact pattern similar to the
one at bar is Brendale v. Confederated Tribes and Bands of the Yakima Indian
Nation, 492 U.S. 408 (1989), although even its utility is limited because the
Court did not reach a majority opinion. That matter involved consolidated
cases regarding the power of a tribe to impose its zoning ordinance on
nonmember-owned land. Id. at 438 (Stevens, J., lead opinion). The most
relevant of the consolidated cases (docket number 87-1622) involved a
nonmember named Brendale who owned land in fee within an area of the
Yakima [now Yakama] Indian Reservation called the “closed area.” Id. The
closed area of the reservation was massive, around 807,000 acres, of which
only 25,000 acres were held in fee. Id. Even on the fee lands, no one lived
permanently in the closed area, which was pristine wilderness. Id. at 438-40.
Brendale owned 20 acres in the “heart” of the closed area. Id. at 440. He sought
permission from the county to subdivide and develop his lands. Id. The Yakama
Indian Nation objected before the zoning commission, asserting that the tribe
possessed jurisdiction over the nonmember parcel. Id. The tribe’s zoning
regulations prohibited development like the kind proposed by Brendale. Id. at
441.

The regulations took “care that the closed area remain[ed] an

undeveloped refuge of cultural and religious significance, a place where tribal
members ‘may camp, hunt, fish, and gather roots and berries in the tradition of
18

their culture.’” Id. (quoting Amended Zoning Regulations of the Yakima Indian
Nation, Resolution No. 1-98-72, § 23 (1972)). Justice Stevens characterized
Brendale’s proposal to develop land within an area that prohibited that type of
development as bringing “a pig into a parlor”:
The question is then whether the Tribe has authority to
prevent the few individuals who own portions of the closed
area in fee from undermining its general plan to preserve the
character of this unique resource by developing their
isolated parcels without regard to an otherwise common
scheme. More simply, the question is whether the owners of
the small amount of fee land may bring a pig into the parlor.
Id.
While Justice Stevens’ opinion focused on the power of Indian tribes to exclude
persons from their lands (a question not at issue here), the Stevens opinion
expressly adopted findings of the district court with respect to the second
Montana exception:
Second, in the Montana case we were careful to point out that
the conduct of the non-Indians on their fee lands [hunting
and fishing] posed no threat to the welfare of the Tribe.
[citation to Montana, 450 U.S. at 566]. In sharp contrast, in
this case the District Court expressly found that Brendale’s
“planned development of recreational housing places critical
assets of the Closed Area in jeopardy. . . . [O]f paramount
concern to this court is the threat to the Closed Area’s
cultural and spiritual values. To allow development in this
unique and undeveloped area would drastically diminish
those intangible values. That in turn would undoubtedly
negatively affect the general health and welfare of the
Yakima Nation and its members. This court must conclude
therefore that the Yakima Nation may regulate the use that
19

Brendale makes of his fee land within the Reservation’s
Closed Area.” 617 F. Supp. [735,] 744 [(E.D. Wash. 1985)].
Justice Stevens, writing for himself and Justice O’Connor, concluded that
the tribe’s interests in zoning the nonmember land justified the exercise of that
power:
In my view, the fact that a very small proportion of the closed
area is owned in fee does not deprive the Tribe of the right to
ensure that this area maintains its unadulterated character.
This is particularly so in a case such as this in which the
zoning rule at issue is neutrally applied, is necessary to
protect the welfare of the Tribe, and does not interfere with
any significant state or county interest. Id. at 444.
Justice Blackmun, writing for himself and Justices Brennan and Marshall,
concurred in Justice Stevens’ judgment. Id. at 448-49 (Blackmun, J., concurring
in 87-1622). Justice Blackmun concluded that finding that the tribe did not
possess jurisdiction over the Brendale property “would guarantee that
adjoining reservation lands would be subject to inconsistent and potentially
incompatible zoning policies, and for all practical purposes would strip tribes
of the power to protect the integrity of trust lands over which they enjoy
unquestioned and exclusive authority.” Id. at 449 (emphasis omitted); see also
id. at 458 (“And how can anyone doubt that a tribe’s inability to zone substantial
tracts of fee land within its own reservation-tracts that are inextricably
intermingled with reservation trust lands-would destroy the tribe’s ability to

20

engage in the systematic and coordinated utilization of land that is the very
essence of zoning authority?”).
Brendale, while of limited utility to the federal courts perhaps, is
instructive to us for contextualizing how the Appellants’ land use choices
impact the Rincon Reservation. Brendale is the only United States Supreme
Court decision that addresses nonmember conduct that could create impacts
that spread from nonmember lands to tribal lands.

The Yakama zoning

ordinance fits comfortably within the constellation of cases holding an Indian
tribe had power to enforce its land use laws on nonmember lands. See e.g.,
Knight v. Shoshone and Arapahoe Indian Tribes of Wind River Reservation,
Wyo., 670 F.2d 900 (10th Cir. 1982); Hoover v. Colville Confederated Tribes,
2002 WL 34540595 (Colville Ct. App., Mar. 18, 2002).
Even so, the Supreme Court’s precedents on the second Montana
exception provide little guidance to this Court. The parties appear to have
realized the same, namely, that the Supreme Court precedents are of limited
value to the analysis. They instead focus on two Ninth Circuit decisions, Evans
v. Shoshone-Bannock Land Use Policy Comm’n, 736 F.3d 1298 (9th Cir. 2013),
and FMC Corp. v. Shoshone-Bannock Tribes, 2017 WL 4322393 (D. Idaho, Sept.
28, 2017), aff’d, 942 F.3d 916 (9th Cir. 2019). RMCA/Donius emphasize Evans
as the most persuasive case. Evans arose on the Fort Hall Reservation, home to
21

the Shoshone-Bannock Tribes. Id. at 1300. The tribes there tried to require
that a nonmember on fee lands seek a building permit from the tribes before
constructing a single residence home. Id. at 1301. The Ninth Circuit, applying
the second Montana exception test, concluded that, since the reservation “has
long experienced groundwater contamination,” simply building a house would
not “meaningfully exacerbate the problem.” Id. at 1306.16 Further, the Ninth
Circuit concluded that “the [t]ribes’ generalized concerns about waste disposal
and fire hazards are speculative, as they do not focus on Evans’ specific project.”
Id.
The Tribe in this case focuses more on the FMC case.17 The FMC case
involved the same reservation as the Evans decision, the Fort Hall Reservation.
FMC, 942 F.3d at 919.

That case involved the source for the polluted

reservation groundwater referenced in Evans, the FMC Corporation; FMC
stored “millions of tons of hazardous waste on the Reservation. . . .” Id. at 935.
The Ninth Circuit held that the tribe possessed civil jurisdiction over FMC on
the basis of the elemental phosphorus in the ground and the phosphine gas in

The Court does not comment on whether it agrees with the Ninth Circuit’s characterization
here.
17 The tribe relied on the district court’s opinion in that matter. The Ninth Circuit has since
affirmed that decision. We focus our attention on the Ninth Circuit’s opinion.
16

22

the air, both of which the court found were “deadly” and pose “a real risk of
catastrophic consequences.” Id. at 934-39 (quotation omitted).
2.

The Tribe’s Ordinance

On July 10, 2007, the Tribe enacted a comprehensive environmental
ordinance. The Ordinance as it was worded in the 2007 revision, provided that
a Notice of Violation could be filed against a “Band Member” or a person who
was “not a Band Member (non-member Indian or non-Indian).” (Rincon
Environmental Enforcement Code section 304, Docket Item No. 33 (Phase Two
Trial Ex. 33).)

On February 13, 2013, the Tribe adopted a Fire Hazard

Abatement Ordinance.

It empowered the Tribal Fire Chief to apply the

Ordinance to “non-Indian activities occurring on non-Indian owned fee lands”
if the conduct met the second Montana exception. (Section 15.3003, Phase Two
Trial Exh. 36.)
The Ordinance was amended in 2008, 2012, and again, on April 29,
2014, which is the current version. In relevant part, the 2014 Ordinance
provides:
This Ordinance shall apply to activities occurring on nonIndian owned fee lands located within the exterior
boundaries of the Rincon Reservation if . . . (4) [t]he activities
include conduct that threatens or has some direct effect on
the political integrity, the economic security, or the health
and welfare of the Tribe. For an activity to qualify . . . , it must

23

be conduct that either (A) in fact, significantly impacts the
political integrity, the economic security, or the health and
welfare of the Tribe, or (B) has the potential to impose
catastrophic consequences upon the political integrity, the
economic security, or the health and welfare of the Tribe.
RINCON TRIBAL CODE § 8.301(b).
At oral argument, counsel for the Tribe acknowledged that the Ordinance
is grounded on Montana and is intended to guide the Tribe in complying with
the Supreme Court’s precedents.
The 2014 Ordinance requires this Court to determine, as a matter of law,
whether the Appellants’ actions and inactions pose a catastrophic threat to the
tribe. See section 8.301(b)(4)(B).
3.

The Tribal Court’s Findings

The Rincon Tribal Code ties the subject matter jurisdiction of the tribal
judiciary to all actions so long as there is “any basis consistent with the inherent
sovereignty of the Band, its Articles of Association and laws, and federal law.”
RINCON TRIBAL CODE § 3.103. Based on the plain language of the Ordinance, the
trial court held that the Tribe had proved that it had jurisdiction over
RMCA/Donius. The trial court’s holding coalesced around four consequences
deriving from the actions and inactions of RMCA/Donius that had “the potential
to impose catastrophic consequences upon the political integrity, the economic
security, or the health and welfare of the Tribe.” (Id.)

24

The trial court labeled the first finding as “Stewardship of the Fee Land;”
it involved the failure of the RMCA/Donius to maintain their property:
Plaintiffs contend and offer evidence that, over the last two
decades or more, Defendants have not maintained the
property in question. The property, according to the
Plaintiffs, is not and has not been well maintained and this
has led to serious consequences, and if not somehow
regulated can, in fact, affect the health, welfare, and economic
security of the Tribe. (Tribal 2017 Order at 6.)
The second finding involved the potential for catastrophic fire. The trial
court used the label “Fire Hazard” to describe this problem:
Over the last few years, devastating fires have swept through
the area. It is not argued that Defendants caused these fires.
However, the condition of the property and poor
maintenance of the property in and of itself poses a
catastrophic risk to Plaintiffs. Plaintiffs’ rationale is that the
property is located approximately 60 feet from the Harrah’s
Rincon Casino which is Plaintiffs’ primary source of income.
At trial a video of explosions, fire embers, and other
threatening conditions due to the fire were dangerously
close to the Tribe’s casino, these coming from the
Defendants’ property. In short, due to prior usage, the
property presents a situation whereby any future fires in this
highly prone “fire area” can, in fact, have catastrophic
consequences on the Tribe. Id. at 6.
The court added, “There is no doubt in the Court’s mind that any fire on
Defendants’ property or passing through Defendants’ property can pose a
catastrophic risk to Plaintiffs’ water supply as well as misuse of the property as
has been in the past.” (Tribal 2007 Order at 8.) The court further found,

25

“Defendants’ use of the property in the past has threatened the Tribe’s safety
from fire and its water supply, exacerbating the potential of harm to its
economy.” (Id.) Indeed, the records show that during trial, the threat of fire
damage arising from Appellants’ property causing damage to the Tribe’s
gaming and resort properties was dramatically demonstrated by video of
burning embers originating from an explosion on Appellants’ property crossing
the street and landing on the roof of the tribal hotel. (Appellees’ Response Brief
at 24; Appellees’ Supplemental Excerpts of Record at 791-94.)
The third finding involved pollution of the groundwater. The court
labeled this concern “Water Table”:
Plaintiffs contend the activities on Defendants’ property, if allowed
to continue unchecked, bear a distinct possibility of damaging its
“pristine” water table. Evidence at trial showed this, while possibly
remote, is a factor to be considered as argued by the Plaintiffs.
(Tribal 2007 Order at 6.)
The court found that the Tribe’s water was “‘pristine’ and the only source
of water it has, [which it] shares with Defendants’ property.” (Id. at 8.) The
court further found that a fire “passing through Defendants’ property can pose
a catastrophic risk to Plaintiffs’ water supply as well as misuse of the property
as has been in the past.” Id. The tribe’s witnesses offered uncontroverted
testimony that there “is one aquifer underneath the entire reservation that

26

provides all the groundwater and drinking water for all . . . of the wells on the
reservation.” (Appellees’ Supplemental Excerpts of Record at 55.)
The court’s final finding was that the defendants’ refusal to disclose their
intended uses of the property, coupled with the fact that the state and county
have disclaimed jurisdiction over all lands within the reservation, creates a
“lawless enclave.” The court identified this piece as “Other Factors”:
Plaintiffs additionally contend that Defendants’ use of the
property in general must be regulated for the protection of
the Tribe’s economic, health, and general well-being, which
is threatened by lack of jurisdiction as the County and State
have no civil regulatory jurisdiction over the property.
Considering this, the Plaintiffs allege Defendants’ property
becomes a “lawless enclave” whereby Defendants can do
anything they wish on the property, leaving the Tribe
helpless. Plaintiffs’ intention at trial was to show what they
believed is continued misuse of Defendants’ property poses
potential catastrophic consequences to the Tribe. Id. at 6.18
4.

Analysis

RMCA/Donius argue for reversal of the trial court’s jurisdiction finding.
We now specifically address each of those grounds in turn, although not in the
order presented.

18 The trial court also found that RMCA/Donius’ response to the Tribe’s allegations were

“vague and unresponsive to Tribal concern.” (Tribal 2007 Order at 6.)

27

First, RMCA/Donius argue that the trial court refused to place the burden
on the Tribe to prove that the second Montana exception applied. (Appellants’
Corrected Brief at 25.) RMCA/Donius’ argument that the trial court placed the
burden of proof on them as fee landowners finds no support in the opinion or
judgment. In its May 17, 2017 Order, the trial court noted, “This [c]ourt is well
aware [that] the Tribe has a heavy burden of showing that the activity on the
fee land poses a catastrophic threat to tribal government as opposed to simply
an effect on surrounding land and is mindful of all related factors.” (Tribal 2007
Order at 7-8.) Allocation of the burden of proof should not be confused with
the trial court’s repeated conclusions that the Appellants’ actions and inactions
could lead to catastrophic consequences. (Id. at 6.)19
Second, RMCA/Donius argue that the injunction that requires them to
submit a business plan effectively shifts the burden of proof away from the
Tribe.
The Tribe cannot require RMCA and Donius to first prove to the
Tribe that the activities being conducted on the subject property
will not pose a catastrophic risk to the political integrity, the
19 Specifically, the tribal court found the following: “However, the condition of the property

and poor maintenance of the property in and of itself poses a catastrophic risk to Plaintiffs.”
(Id.) “In short, due to prior usage, the property presents a situation whereby any future fires
in this highly prone ‘fire area’ can, in fact, have catastrophic consequences on the Tribe.” (Id.
at 8.) “There is no doubt in the [c]ourt’s mind that any fire on Defendants’ property or
passing through Defendants’ property can pose a catastrophic risk to Plaintiffs’ water supply
. . . .”) (Id.)

28

economic security, or the health and welfare of the Tribe, by
requiring them to submit a business plan for the Tribe’s approval,
before being allowed to engage in any activities on the subject
property. That gives the Tribe complete discretion and control
over the property, contrary to Montana, supra, and cases
construing it. It unlawfully places the burden on the non-Indian
owner of fee land to prove to the Tribe that its activities will not
amount to catastrophic consequences. (Appellants’ Corrected Brief
at 25-26.)
This Court finds that RMCA/Donius improperly conflate the burden of
proof that was placed on the Tribe, and the injunctive remedy that was imposed
on them after the trial court found that the Tribe had met its burden of proof.
Once the tribe has proven that the second Montana exception applies to the
conduct of a fee landowner, it was permissible for the tribal court to issue an
order that places the burden on the fee landowners to perform actions or to
stop their actions or to seek tribal permission to take similar actions.
Third, RMCA/Donius argue that, assuming the burden of proof was
placed on the Tribe, it failed to prove that the threat posed by their conduct is
sufficient to trigger jurisdiction under Montana and its progeny. We summarily
reject RMCA/Donius’ argument for three reasons. First, it seems to be based on
the ex post facto doctrine. However, the doctrine does not apply here because
although the Ordinance was amended after a dispute had arisen, it imposed a
more severe burden on the Tribe, not on RMCA/Donius. Second, the violation

29

notices,20 pleadings claiming a violation of the Ordinance were filed after the
Ordinance had been amended.

Finally, the judgment was based on the

Ordinance as amended in 2014. Further, the Rincon Tribal Code ties the subject
matter jurisdiction of the tribal judiciary to all actions so long as there is “any
basis consistent with the inherent sovereignty of the Band, its Articles of
Association and laws, and federal law.” RINCON TRIBAL CODE § 3.103. Based on
the plain language of the Ordinance, the trial court held that the Tribe had
proved that it had jurisdiction over RMCA/Donius.
The trigger point for tribal jurisdiction under § 8.301(b)(4)(B) in this
case is the potential for the defendants’ activities to create catastrophic
consequences that can spread to tribal lands. To review, the trial court found
conclusively (1) that the Appellants failed to maintain their property; (2) that
the Appellants’ land constitutes a fire hazard in an area that is unusually
threatened by fire; (3) that the Appellants’ actions and inactions have
contributed to a significant threat to the pristine character of the tribe’s water
supply; and (4) that the Appellants’ assertion of immunity from tribal
20 The Tribe issued new Notices of Violations (NOV) to RMCA/Donius after the 2014

amendment. The new notices referred back to earlier notices: “The violations described in
this Notice have been previously described in RED Notices dated October 13, 2009 and
January 15, 2010, which were served on the property owner of record Mr. Marvin Donius ,
who has not responded, and dated March 31, 2010, which was served on both RMCA and
Mr. Donius, neither of which has responded.” (Trial Exh. 161.)

30

jurisdiction, together with local government’s demurrer, creates a lawless
enclave within the reservation.
We conclude that the Appellants’ land use choices on its own property
have the potential to create catastrophic impacts on the Rincon Band’s lands.
We hold that the RMCA/Donius’ conduct has long created the potential for
catastrophic consequences on the tribe. There are two critical facts that
undergird our holding. First, the Tribe is dependent on a single water source,
the groundwater underneath both the Tribe’s lands and the RMCA/Donius’
lands. Second, the Tribe is dependent on a major source of revenue from its
gaming operations, which are located across the street from the defendants’
property. If either of those resources are threatened with catastrophic harm,
then tribal law authorizes the Tribe to assert jurisdiction over the defendants.
Moreover, in support of their attack on tribal jurisdiction, Marvin Donius
testified that he believed “he could use the land in any fashion he chose, short
of a nuclear waste dump.”

(Tribal 2007 Order at 9.)

Thus, on appeal,

RMCA/Donius ask us to disregard the trial court’s concern that the
RMCA/Donius property was a “lawless enclave.” First, they argue that in its
judgment the trial court concluded that being a “lawless enclave” gave the Tribe
the “right to regulate the property, despite the requirements under Montana.”
The Court finds that this argument misconstrues the judgment.
31

In the

judgment, the trial court states that it found the Tribe’s efforts “to safeguard
any potential damage to the Tribe’s economic security, health, welfare, and
safety” to be legitimate “in light of the fact that local government shows no
interest in zoning, regulating, or exercising any form of regulation dealing with
any control over non-Indian owned fee land located on Indian reservations in
San Diego County.” (Tribal 2007 Order at 5.) Thus, contrary to RMCA/Donius’
argument the trial court did not treat the “lawless enclave” character of the
property as a basis for tribal jurisdiction despite Montana. Rather, the trial
court incorporated RMCA/Donius’ conduct on a “lawless enclave” as
supporting its Montana analysis.
We also reject RMCA/Donius’ argument that, under Montana, the fact
that fee land on a reservation is not regulated by local and state governmental
bodies is not a permissible basis for the Tribe to assert jurisdiction over their
fee land. We acknowledge that there is no discussion in Montana and its
progeny about lack of local governmental regulation as a basis for tribal
jurisdiction. However, that was not the analysis by the trial court. The lack of
local and state health and safety regulation of matters normally falling in the
ambit of such regulation is recited by the trial court as evidence that may be
considered when deciding whether the circumstances here warrant imposition
of tribal jurisdiction.
32

In addition, RMCA/Donius attempt to deprive the Tribe of reliance on the
symmetry between the “catastrophic consequences” language of its Ordinance
and the present articulations of the Montana standard, by arguing that that the
Ordinance was “fraudulently altered.” (Appellants’ Corrected Brief at 33.) As
recited in the background, the dispute between RMCA/Donius and the Tribe
has lasted for over fifteen years. During that time, the Tribe has promulgated
ordinances and amended various versions of ordinances. RMCA/Donius argue
that the ordinance under which the Tribe’s jurisdiction should be tested is the
one in effect before the current version that the Tribe had adopted on August
14, 2012. The 2012 version did not use “catastrophic consequences” as the
standard. RMCA/Donius argue that the 2012 version arguably shifted the
burden of proof away from the Tribe because it requires a fee landowner to
submit a business plan in which the fee owner proves to the Tribe’s satisfaction
that a proposed use will not threaten tribal health and welfare. The 2014
version of the Ordinance does not require a business plan, but allows one at the
discretion of the fee owner. We therefore find that the trial court did not err
when it held that, as a matter of law, Appellants’ actions and inactions had the
potential to impose catastrophic consequences on the tribe. This holding meets
the standard established by section 8.301(b)(4)(B) of the Ordinance.

33

Finally, the Court finds that the current case is in equipoise between
Evans and FMC.

The RMCA/Donius’ land use activities are far more

consequential than the mere construction of a single-family home at issue in
Evans. But RMCA/Donius’ activities have not been shown to be as potentially
“deadly” as those of the polluter in FMC. However, it is also helpful to review
the universe of Montana second exception cases for context. The most relevant
cases are those in which nonmembers asserted the privilege of being excepted
from tribal jurisdiction while on fee lands surrounded by tribal lands.
RMCA/Donius’ assertion of the privilege of being excepted from tribal
jurisdiction despite potentially leaching contaminants into the tribe’s
groundwater and creating conditions for extensive fire damage places
RMCA/Donius in that category. In each of these cases, 21 the ultimate outcome

21 Examples of nonmember conduct similar to RMCA/Donius’ include, for example,

Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001) (“huge zinc-copper sulfide mine”);
Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Reservation,
323 F.3d 767 (9th Cir. 2003) (railroad operating on reservation right of way that carried
hazardous waste and subject to derailments leading to fatalities and toxic spills); State of
Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998) (“feedlots, dairies, mine tailings, auto
wrecking yards and dumps, construction activities and landfills[;] wastewater treatment
facilities, commercial fish ponds and hatcheries, slaughterhouses, hydroelectric facilities
and wood processing plants”); City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir.
1996) (“waste treatment facility which dumps into the river”); BP America Inc. v. Yerington
Paiute Tribe, 2018 WL 6028697 (D. Nev., Nov. 15, 2018) (abandoned copper mine with
contaminants that could seep into the ground and surface water on the reservation;
settlement with tribe reached leading to federal clean up of mine); St. Isadore Farm LLC v.
Coeur d’Alene Tribe of Indians, 2013 WL 4782140 (D. Idaho, Sept. 5, 2013) (alpaca farm
with untreated septage that could seep into the groundwater on the reservation).

34

of the dispute between the tribe and nonmembers resulted in court decisions
or settlements favoring the tribal interests.
Here, RMCA/Donius’ own admissions about the facts in their brief
demonstrates

the

potential

catastrophic

impacts

of

their

conduct.

RMCA/Donius concede that after a massive wildfire on the reservation and
beyond in 2007, “fire-damaged debris was left on the property from October
2007 until August 2008. . . . The risk-impact debris left on the subject property
included ash-debris, petroleum, and ash metal.” (Appellants’ Brief at 12.)
RMCA/Donius also concede that in 2011 “the Tribe’s expert engineers found a
low-level diesel and motor oil plume extending from off the subject property.”
Id. In addition, RMCA/Donius concede that in 2015, the Tribe discovered that
RMCA/Donius had engaged in unpermitted activities, including “constructing
mobile homes, fabricating or refurbishing wooden pallets, parking commercial
trucks on the property, parking refrigeration-style trailers on the property,
allowing people to live in mobile homes on the property and parking motor
vehicles on the property.” Id. at 14. Finally, RMCA/Donius have conceded that
each of these activities is a potential threat, but rest their defense on the claim
that none of these activities have actually harmed the Tribe. However, under
Montana, actual harm is not the trigger for tribal jurisdiction, potential harm is.
Thus, we do not find RMCA/Donius’ defense credible, or consistent with the
35

law. In short, RMCA/Donius demand this Court to grant them immunity from
tribal jurisdiction. Given the long and detailed history of potential catastrophe
narrowly avoided over the years, Appellants’ arguments must be rejected.
B.

Remedies
After phase one, the trial court concluded that there was a basis under

the second Montana exception for the Tribe to enforce its environmental
protection Ordinance over RMCA/Donius. During the second phase, the trial
court reviewed and affirmed jurisdiction and took evidence on what relief
should be awarded based on the present conditions on RMCA/Donius’ land.
The trial court imposed the following injunctive remedies:
1.

In order to proceed with any development or further use of
the property RMCA/Donius shall provide the Tribe with a
business plan acceptable per the standard of the REEO.

2.

Both parties shall make a good faith effort to work together
to develop this business plan. Per any business plan
RMCA/Donius shall provide Rincon access to the property
allowing professional experts to conduct any necessary,
water, and surface conditions of the property and any impact
the business plan may have on the Tribes economic safety,
health, and general welfare.

3.

If factually any assessment by these experts concludes any
contamination is present and further inspection and analysis
are required, RMCA/Donius shall bear all related reasonable
expenses.

36

4.

If any “clean up” of the property is required the RED shall set
a plan in place subject to the Court’s approval and again if
required RMCA/Donius shall bear all costs.

5.

As a point of clarity RMCA/Donius shall not conduct any
activity on the property without an approved business plan
being in place and approved. This includes all commercial,
residential, or any type of personal or business activity.
However, RMCA/Donius may remove existing items from the
property.

6.

Should RMCA/Donius violate any provisions of the order or
is not in compliance with an approved business plan they
shall be subject to the $2,000 (two thousand dollar) a day fine
payable to the Rincon Tribe. Said fines shall remain in place
until said violation is cured.

7.

With a 24 hour notice to RMCA/Donius, Rincon or its
representative experts or RED representatives shall be
allowed access to the property.

In addition, the trial court reserved ruling on an award of “cost” to the
Tribe.
RMCA/Donius challenge the injunctive relief based on conflict in the
testimony between the Tribe’s lay and expert witnesses and those called by
RMCA/Donius. We review a trial court’s ruling on applications for injunctive
relief for abuse of discretion. See Weinberger v. Romero-Barcelo, 456 U.S. 305,
311-313 (1982). A trial court abuses its discretion when it acts without
reference to any guiding rules or principles. U.S. v. Hinkson, 585 F.3d 1247,
1263 (9th Cir. 2009) (“[W]e will affirm a district court’s factual finding unless
37

that finding is illogical, implausible, or without support in inferences that may
be drawn from the record.”) If some evidence appears in the record that
reasonably supports the trial court’s decision there is no abuse of discretion.
Id. Thus, a trial court does not abuse its discretion when an order is supported
by some evidence even if there is conflicting evidence. Harman v. Apfel, 211 F.
3d 1172, 1175 (9th Cir. 2000).
An award of injunctive relief must be based on a finding that the party
awarded injunctive relief satisfied a four-factor test: “(1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by
a permanent injunction.” N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th
Cir. 2007) (quoting Ebay Inc. v. Mercexchange, LLC, 547 U.S. 388 (2006)).
An irreparable injury occurs when the injury is of such a nature that the
injured party cannot be adequately compensated by damages or the damages
cannot be measured by any certain pecuniary standard. Herb Reed Enter, LLC
v. Florida Ent. Mgmt., Inc., 736 F.3d 1239, 1249 (9th Cir. 2013). A party has no
adequate remedy at law when damages are incapable of calculation or the party
to be enjoined is incapable of responding in damages. Cottonwood Envtl. Law
38

Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1090 (9th Cir. 2015); Johnson v.
Couturier, 572 F.3d 1067, 1081 (9th Cir. 2009) (Irreparable harm prong
satisfied where the plaintiffs showed that it was likely that the defendants
would not have the resources to satisfy a judgment in the plaintiffs’ favor).
The showing that a tribe must make to establish jurisdiction under the
second Montana exception also satisfies the showing that it must make to be
entitled to injunctive relief. Conduct that places a tribe under the potential for
harm to its political integrity, economic security and health or welfare under
Montana, constitutes irreparable injury under the principles of equity.
Potential harm to political integrity, economic security, health and welfare are
each a type of potential harm for which there is no adequate or certain
pecuniary standard for compensatory damages. When weighted against one
another, in the face of a potential for catastrophic consequences to the tribe
caused by a fee owner’s conduct, equity gives greater weight to requiring the
fee owner to comply with a tribe’s health and safety regulations than it does to
a fee owner’s freedom from tribal regulation. With respect to public interest,
environmental preservation is in the public interest. See Earth Island Inst. v.
U.S. Forest Serv., 351 F.3d 1291, 1308 (9th Cir. 2003); Kootenai Tribe of Idaho
v. Veneman, 313 F.3d 1094 (9th Cir. 2002).

39

Based on evidence of lack of maintenance of the land by RMCA/Donius,
rendering it susceptible to wildfires and to groundwater contamination, and a
lack of regulation by local and state government, the trial court did not abuse
its discretion in concluding that RMCA/Donius’ conduct has the potential to
impose catastrophic consequences upon the political integrity, economic
security and health and welfare of the Tribe, making it appropriate to grant
injunctive relief. It is the essence of equity jurisdiction that a court is only
empowered to grant relief no broader than necessary to cure the effects of the
harm caused by the violation. The Forschner Grp., Inc. v. Arrow Trading Co.,
124 F.3d 402, 406 (2d Cir. 1997). We find that the scope of the injunction
exceeds the amount of restraint necessary to protect the Tribe from the
potential harm presented by RMCA/Donius’ conduct. Therefore, we reverse, in
part, and remand the case to the trial court to mold the protuberances of the
injunction to the hollows of the potential harm.
We cite three examples as guidance. First, the injunction prohibits
RMCA/Donius from “any development or further use of the property” until they
provide the Tribe with a business plan acceptable per the standard of the REEO.
There was no evidence that all of RMCA/Donius’ development or use
threatened catastrophic consequences. An injunction is overbroad when it
seeks to restrain a party from engaging in legal conduct. Lineback v. Spurlino
40

Materials, LLC, 546 F. 3d 491, 504 (7th Cir. 2008). Thus, an injunction against
all development or use of the land is overbroad.
Second, RMCA/Donius are enjoined to cease all activity on the property
until they have provided the Tribe with a business plan acceptable to the Tribe.
This business plan requirement is perhaps drawn from an earlier version of the
Ordinance. Since the threat is grown out of actions or inactions that pose a fire
hazard, groundwater contamination, and health and safety conduct that would
otherwise be regulated by state and local governmental agencies, the injunction
should speak to those concerns. In addition, we instruct the trial court to
consider whether there is any basis under the Ordinance for the Tribe to give
instructions to SDG&E with respect to the RMCA/Donius property.22
Finally, with respect to the twenty-four hours’ notice requirement,
RMCA/Donius are enjoined to provide the Tribe with access to their property
to permit the Tribe to conduct professional inspections of water and surface
conditions. The injunction does not address the frequency of unilaterally

22 On April 1, 2008, the Tribe notified San Diego Gas & Electric not proceed with reconnecting

power to the RMCA/Donius property. (See Phase Two Trial Ex. 39.) The present status of
utilities, particularly of electrical power to the property is unclear to this Court. The Court
understands that RMCA v. Mazzetti, Case No. 09-CV-2330-WQH-JLB (S.D. Cal.) is stayed
pending exhaustion in this case. In the interest of judicial economy, in its reconsideration of
the injunction, the trial court is directed to determine if electrical power is not connected at
the direction of the Tribe, and if so, whether the second Montana exception empowers the
Tribe to direct SDG&E to not reconnect power to the property under circumstances that meet
with the approval and standards of SDG&E.

41

initiated tribal inspections. The Ordinance does not provide the Tribe with the
unilateral right to enter and inspection. Conceivably, inspections could be
sought from the tribal court as a form of emergency relief. That would provide
a landowner with a forum to challenge a requested inspection.
VI. CONCLUSION
The Court finds that the Tribe’s 2014 Ordinance meets the second
Montana exception. Thus, the Court regards an injunction that follows the
Ordinance more favorably than one that orders RMCA/Donius to do things that
deviate from the procedures set forth in the Ordinance.
In reversing the injunction, we order the trial court to vacate any order
finding RMCA/Donius in contempt based on noncompliance with the injunction
and to vacate any fine imposed on RMCA/Donius pursuant to the injunction.
We vacate the 2009 default judgment that was entered under the version
of the Ordinance that did not comport with the Montana standard. We vacate
our order requiring Appellants to post a bond to stay enforcement of the
judgment nunc pro tunc and purge Appellants of all citations of contempt by the
trial court for conduct that took place while this appeal was pending.
/
//

42

Pending further proceedings before the trial court, the Tribe is ordered
to remove its blockade of the RMCA/Donius property.
Each party shall bear its own appellate costs.

THE JUDGMENT OF THE TRIBAL COURT IS AFFIRMED IN PART, VACATED
IN PART AND REMANDED.

43

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Arincon_luiseno%3A8e92d95d820b9266. Public record. Not legal advice.