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DENNIS J. WHITTLESEY DICKINSON WRIGHT PLLC 1875 Eye Street, NW – Suite 1200 Washington, DC 20006 Telephone: 202-659-6928 Facsimile: 202-659-1559 Email: [email protected]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WATER WHEEL CAMP RECREATIONAL AREA, INC., Plaintiff / Cross-Appellant, and ROBERT JOHNSON, Plaintiff / Appellee, v. GARY LaRANCE, in his official capacity as Chief and Presiding Judge of the Colorado River Indian Tribal Court, and JOLENE MARSHALL, in her capacity as Clerk of the Colorado River Indian Tribal Court, Appellants / Cross-Appellees. _______________________________
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Case Nos. 09-17349 & 09-17357 (CONSOLIDATED) District Court Case No.: 2:08-cv-00474 WATER WHEEL'S
EMERGENCY MOTION UNDER
CIRCUIT RULE 27-3 &
FRAP 8(a) FOR ORDER
ENJOINING TRIBAL COURT
PARTIES FROM ISSUING WRIT
OF RESTITUTION ORDERING
CRIT TRIBAL POLICE TO
EVICT WATER WHEEL NOW
RULING REQUESTED PRIOR
TO CLOSE OF BUSINESS ON
WEDNESDAY, SEPTEMBER 8,
2010.
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I. INTRODUCTION
Pursuant to Circuit Court Rule 27-3(a) and Federal Rule of Appellate
Procedure 8(a)(2), Cross-Appellant Water Wheel Camp Recreational Area, Inc.
(“Water Wheel”) files this Emergency Motion. Water Wheel asks this Court to
immediately enjoin Cross-Appellees, The Honorable Gary LaRance, a judge for the
Colorado River Indian Tribes' ("CRIT") Tribal Court (“Tribal Court”), and Tribal
Court Chief Court Clerk Jolene Marshall, together with their successors and any
person(s) acting by or through them (collectively known herein as "Tribal Court
Parties"), from issuing or filing with the Tribal Court the [Proposed] Writ of
Restitution ("Writ") filed by CRIT in Tribal Court on August 17, 2010. Water
Wheel further requests an order enjoining the Tribal Court Parties from otherwise
taking any action to authorize the eviction of Water Wheel from its leasehold
unless and until this Court has ruled on the merits of the parties' cross-appeals
which have been fully briefed and are pending before this Court.
Water Wheel previously sought the same injunctive relief from the U.S.
District Court for the District of Arizona (“District Court”) on November 10, 2009.
Water Wheel, et al. v. Gary LaRance, et al., 2:08-cv-00474-DCG (D. Ariz.),
Motion for Stay (Dkt. 89). The District Court denied that Motion (see CRIT
Motion, Ex. 6), as discussed infra.
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On August 17, 2010, CRIT filed in Tribal Court the motion which is the
subject of this Emergency Motion. See Motion for Issuance of Writ of Restitution
(“CRIT Motion”) attached hereto as Exhibit A, and [Proposed] Writ of Restitution
(“Writ”), attached hereto as Exhibit B.1 That Motion requests that Judge LaRance
order the Tribal Police to immediately forcibly evict Water Wheel and forcibly
remove Water Wheel's agents and personal property pursuant to the very Tribal
Court Judgment and Order which is before this Court and which would be
invalidated in toto by a ruling here in Water Wheel’s favor.
The urgency of this matter is underscored by the District Court's refusal to
stay the Tribal Court jurisdiction and the fact that Judge LaRance has set a hearing
on the CRIT Motion for the afternoon of Friday, September 10. If he grants the
CRIT Motion at that hearing, the Tribal Police will be ordered to immediately
enter the Water Wheel property and execute a forcible eviction and property
confiscation: Water Wheel would have no recourse because the eviction will have
been executed by CRIT, an entity not subject to this Court's jurisdiction. The only
remedy available to Water Wheel is for this Court to enjoin Judge LaRance now,
because CRIT has sovereign immunity and, thus, is not subject to this Court's
1 In support of the CRIT Motion, CRIT filed the Declaration of tribal attorney Winter King (“Declaration”), which includes portions of a transcript of a deposition of Appellee Robert Johnson, dated February 29, 2008, attached hereto as Exhibit C.
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jurisdiction including any remedial post-eviction orders issued here or in or any
other federal court.
As is discussed, infra, the issue on appeal in this Court is whether the Tribal
Court had the jurisdictional authority over Water Wheel to order the very eviction
CRIT now seeks to implement. This issue has been fully briefed and awaits
resolution by this Court.
Significantly, the CRIT Motion was filed only six (6) days after Water
Wheel filed its final Reply (Dkt. 41), which Motion ostensibly ignores the
existence of the appeal itself despite CRIT's actual participation through its Motion
to participate as an amicus curiae (Dkt. 19). Rather than await any decision here,
CRIT is asking its Tribal Court to (1) ignore this appeal, (2) negate any potential
ruling in Water Wheel's favor under Montana v. United States, 450 U.S. 544
(1981), and (3) once again exercise the very jurisdiction over Water Wheel which
is directly at issue in this appeal.
If Judge LaRance should order the CRIT Tribal Police to evict Water Wheel,
the eviction and forcible removal will be immediate and CRIT will be permanently
in possession of the property because Water Wheel will have no legal ability to
compel its retreat. Such a result would render both moot and – from a practical
standpoint – impossible any meaningful review or resolution of this Lease dispute
in the manner and the forum to which CRIT and Water Wheel agreed in the Lease
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(and which Water Wheel consistently has argued is proper). Thus, Judge LaRance
will have "won" the appeal by his own hand through fait accompli, rather than
Ninth Circuit determination. Such cannot be the lawful and just result which the
appellate procedures were established to ensure.
II. BACKGROUND
On March 11, 2008, Water Wheel and its CEO Robert Johnson filed
litigation in the District Court seeking declaratory and injunctive relief to the effect
that the Tribal Court lacked jurisdiction over an eviction action brought by CRIT
against both Water Wheel and Johnson, personally. See Resp. Br. of Appellee
and Cross-Appellant's Principal Br. (“WW Resp. Br.”), at 1 (Dkt. 33). More
specifically, Water Wheel and Johnson sought review of a Tribal Court Order (and
a Tribal Court of Appeals’ decision upholding the same) finding that the Tribal
Court had jurisdiction over both Water Wheel and Johnson, evicting them, and
assessing approximately $4 million in damages against Water Wheel and Johnson
personally (a ruling which required piercing the corporate veil as a sanction, and
not based on any actually-adjudicated factual determination). ER-122-23.
On September 23, 2009, following briefing and oral argument, District Court
Judge David G. Campbell ruled that the Tribal Court was without jurisdiction over
Johnson. ER-15. At the same time, and despite finding that Water Wheel's
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argument carried "persuasive force," Judge Campbell found that the Tribal Court
had jurisdiction over Water Wheel to order eviction and money damages. Id. at 11.
On October 22, 2009, the Tribal Court Parties conceded this Court’s
jurisdiction over the matters before Judge Campbell by filing their Notice of
Appeal with this Court seeking to overturn that portion of the District Court's
ruling which granted relief to Johnson. WW Resp. Br., at 1. The next day,
October 23, 2009, Water Wheel filed its Notice of Appeal from that portion of the
District Court's Order which denied relief to Water Wheel. Id. The parties have
now completed briefing in this case and it is ready for this Court's consideration.
This Emergency Motion follows a previous attempt by Water Wheel to
secure judicial protection from a tribal “self-help” eviction by CRIT. See Water
Wheel, et al. v. Gary LaRance, et al., 2:08-cv-00474-DCG (D. Ariz.), Exhibit A to
Motion for Stay (Dkt. 89-1), attached hereto as Exhibit D. On November 10, 2009,
Water Wheel filed in the District Court its Motion for stay pending appeal. See
CRIT Motion, Ex. 5. The District Court denied Water Wheel's motion with the
conclusion the Tribal Court Parties were "likely to prevail" on Water Wheel's
appeal for all "the reasons set forth in [its own] order on the merits." See CRIT
Motion, Ex. 6 p. 2.2
2 It is not surprising that the District Court denied Water Wheel’s motion for
stay on the basis that it did not believe Water Wheel would prevail on the merits, because the District Court had just recently entered its Order finding that the Tribal
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In denying the stay, the District Court refused to apply the "sliding scale"
analysis proposed by Water Wheel, wherein a party may be granted a stay when
"serious legal questions are raised and the balance of hardships tips in its favor."
CRIT Motion, Ex. 6, p. 2. The Court limited its assessment to its perception of
Water Wheel's likelihood for success on the merits, and gave no consideration to
any other factor. Id. As explained, infra, the standard for stay proposed by Water
Wheel is the standard adopted by this Court. Accordingly, the District Court's
denial was inappropriate and the instant Emergency Motion for Stay should be
entered.
On May 14, 2010, the Tribal Court Parties filed their Principal Brief (Dkt.
13) in this Court. On May 21, 2010, only one week after the Tribal Court Parties
filed their brief, CRIT filed its Motion for Leave to File an Amicus Curiae Brief
(Dkt. 19), in support of the Tribal Court Parties' May 14 brief.
On May 26, 2010, CRIT filed a Motion to Take Judicial Notice of Public
Records and Tribal Code (Dkt. 25), in which it requested that this Court take notice
Court did have the very jurisdiction over Water Wheel being contested on appeal. CRIT’s present Motion and attempt to end-run the appellate process, filed just days after the completion of briefing in this Court, suggests that CRIT does not share the confidence of the District Court that Water Wheel will not prevail on the merits. One thing is certain: without the injunctive relief sought by Water Wheel in this Emergency Motion, Water Wheel’s prospects of meaningful success on the merits will indeed drop to zero – a wholly improper and inequitable result.
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of materials not before the District Court and, thus, not a matter of record in this
case.3
On June 28, 2010, Water Wheel and Johnson filed their Principal and Reply
Brief (Dkt. 33) arguing, respectively, that the District Court incorrectly found that
the Tribal Court had jurisdiction over the Tribe’s eviction action against Water
Wheel, and correctly held that the Tribal Court was without jurisdiction over
Johnson.
On July 28, 2010, the Tribal Court Parties filed their Reply/Response Brief
(Dkt. 37). Briefing was concluded on August 11, 2010, when Water Wheel filed
its Reply Brief (Dkt. 41).
Although the issue of whether the Tribal Court had jurisdiction to issue the
Order allowing CRIT to evict Water Wheel is now pending before this Court,
CRIT now is asking the Tribal Court to continue its exercise of jurisdiction over
Water Wheel. See CRIT Motion, 2-3. To reiterate and emphasize, CRIT has
requested Judge LaRance to immediately issue the Writ, and he is free to do so at
any time. If and when that Writ is issued, the CRIT Tribal Police are commanded
to execute the Writ and forcibly evict Water Wheel and its agents, and confiscate
3 Although its amicus brief has yet to be considered by the Merits Panel, CRIT receives electronic notice and service of all documents filed herein and is fully aware of the procedural status. See Water Wheel Recreational Area, Inc., et
al. v. Gary LaRance, et al., No. 09-17349, General Docket, Attorneys of Record.
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its property. See Writ at 1. The eviction must be completed within 10 days of
issuance of the Order. Id. at 2.
While Judge LaRance has scheduled a hearing on the CRIT Motion in his
court, the reality is that he can issue the Writ at that hearing, meaning that it
would be immediately enforceable and Water Wheel would have no recourse.
Eviction and property confiscation will be completed immediately after the CRIT
Police leave the Tribal Court.
III. LEGAL ARGUMENT
A. Standard
A party seeking relief under FRAP 8(a) and Circuit Court Rule 27-3(a) must
establish that: (1) it is likely to succeed on the merits; 2) it is likely to suffer
irreparable harm in the absence of relief; 3) the balance of equities tips in its favor;
and 4) a stay is in the public interest. See Am. Trucking Ass'n, Inc. v. City of L.A.,
559 F.3d 1046, 1052 (9th Cir. 2009); Humane Soc'y of the U.S. v. Gutierrez, 558
F.3d 896, 896 (9th Cir. 2009).
This Court has ruled that the courts should balance the four elements when
determining whether injunctive relief is proper, and a stronger showing as to one
element may offset a weaker showing as to another. See Alliance for the Wild
Rockies v. Cottrell, 2010 U.S. App. Lexis 15537, *9-10 (9th Cir. July 28, 2010) ("a
stronger showing of irreparable harm to plaintiff might offset a lesser showing of
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likelihood of success on the merits") (emphasis added, additional citation omitted).
That decision confirmed that the Ninth Circuit courts should apply a "sliding scale"
analysis, wherein an "injunction could issue where the likelihood of success is such
that 'serious questions going to the merits were raised and the balance of hardships
tips sharply in plaintiff's favor.'" Id. at *10. A party that satisfies the "serious
questions" requirement may be granted an injunction if it can also show that the
balancing of equities tips in its favor and the stay is in the public interest. Id. at
*10-11.
B. Water Wheel Can Establish The Requisite Elements, And Is
Thus Entitled To A Stay Pending Resolution Of Appeal
1. Water Wheel Has Raised Serious Questions Going to
the Merits
As stated above, the District Court refused to issue Water Wheel's requested
stay pending appeal because the Court Campbell did not believe that Water Wheel
was likely to succeed on the merits. CRIT Motion, Ex. 6 at 2. In doing so,
however, the District Court wrongfully rejected the "serious questions" test which
provides that an injunction may issue when the moving party shows "sufficiently
serious questions going to the merits to make them a fair ground for litigation and
that the balance of hardships tip[s] decidedly toward [the moving party]." Alliance
for the Wild Rockies, at *15.
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There is little doubt that Water Wheel has raised serious questions deserving
this Court's consideration (and, as discussed below, will experience irreparable
harm and the equities lie in Water Wheel's favor). Given the apparent exigencies
of the circumstances and the duplicative nature of the arguments, to establish the
merits of its appeal, Water Wheel respectfully references pages 52 - 69 of its initial
brief on appeal (Dkt. 33), and its reply brief (Dkt. 41). Cf. Alliance for the Wild
Rockies, at *16 (reciting 10th Circuit's similar standard under which "a movant
need only show questions going to the merits, so serious, substantial, difficult and
doubtful, as to make the issues ripe for litigation and deserving of more deliberate
investigation").
The crux of Water Wheel's argument, however, is a simple one: under the
seminal case of Montana v. United States, supra, the Tribal Court was without
jurisdiction over the non-Indian corporation, Water Wheel, to order the eviction
and money damages. The Tribal Court's invocation of jurisdiction, based upon an
after-enacted Tribal Ordinance – to which Water Wheel never consented and thus,
pursuant to the terms of its lease with the Tribe, cannot be bound – was erroneous.
The District Court affirmed this ruling and – consequently – impermissibly
broadened the narrow exceptions of Montana.
Water Wheel has fully briefed the merits of its appeal and articulated the
reasons why the District Court’s determination regarding Tribal Court jurisdiction
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was incorrect. This Court should be permitted to conduct a more “deliberate
investigation" of the questions raised by Water Wheel, and that requires an
immediate stay prohibiting the Tribal Court Parties from granting the CRIT Motion
and Water Wheel’s appeal.
2. If No Stay Is Entered, Water Wheel Will Suffer
Irreparable Harm
To establish this element, Water Wheel need only quote from the proposed
Writ that has been presented to the CRIT Tribal Court for entry. Judge LaRance
can execute the proposed Writ at any time, including during the September 10
hearing. Once he does so, the CRIT Police would be empowered and commanded
to immediately execute its terms, forcibly evicting Water Wheel and confiscating
its property. See Writ at 2.
To fulfill the mandate of the Writ, the CRIT Police must, inter alia:
1. remove Water Wheel, including all of its agents and employees, from the premises . . . and defend possession of the premises for Plaintiff CRIT; [and] 2. supervise the removal of Water Wheel's possessions.
See Writ at 1-2. And Water Wheel property on the site when the CRIT Police
arrive and will be stored by CRIT and sold after 30 days. Id. at 2.
Water Wheel is a camp and recreational facility. If it is evicted, and its
property (and potentially at least some property belonging to those Water Wheel
customers using the facilities) is confiscated, the reality is that there never will be
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be an opportunity for Water Wheel to re-enter the premises even if it prevails here.
With its property lost and no legal remedies with which to combat CRIT's tribal
sovereign immunity from suit, there will be nothing to which Water Wheel will be
able to return. It would have no legal remedy through which it could reverse or
seek restitution for what would then be an adjudicated illegal eviction.
This de facto contingency is both real and addressed in Water Wheel's briefs
on appeal, in which it argues that any determination by this Court that the Tribal
Court – rather than the Secretary of the Interior – had jurisdiction to allow the
Tribe directly to enforce the Lease would "eliminate[] the [Lease's] administrative
remedy while the sovereign immunity of tribes bars relief against the Tribe."
Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1075 (9th Cir. 1983) (citing
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). If this Court does not
immediately enjoin the Tribal Court from executing the Writ, that inaction will
foreclose any remedy to which this Court ultimately may find Water Wheel is
entitled. Water Wheel will have won a Pyrrhic victory, for it would have the
determination of the rights it asserted throughout the Tribal Court process, but no
remedy to recover what was taken. This is the very definition of irreparable harm.
Bannercraft Clothing Co., Inc. v. Renegotiation Bd., 466 F.2d 345, 353, n. 9 (D.C.
Cir.1972), rev'd on other grounds, 415 U.S. 1 (1974) ("[t]he very thing which
makes an injury irreparable is the fact that no remedy exists to repair it"); see also
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U.S. v. Am. Friends Serv. Comm., 419 U.S. 7, 11 (1974) ("inadequacy of available
remedies goes . . . to the existence of irreparable injury"); Youngstown Sheet and
Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (determinations of whether an injury
is irreparable and whether adequate legal remedies are available are "closely
related, if not identical"). Cf. Cal. Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d
847, 851-52 (9th Cir. 2009) (even monetary injuries may be irreparable if
sovereign immunity will bar a party from ever recovering those damages in federal
court).
3. The Balance of Equities Tips in Water Wheel's Favor
The Water Wheel resort has existed at its present location since the mid-
1970s. If a stay is entered, thereby preserving the status quo for the several months
needed to fully adjudicate the appeal, Water Wheel would be able to continue its
decades-old business at the Colorado River. However, if Water Wheel is unable to
secure a stay of execution pending appeal, the CRIT Police quickly will destroy
that business.
And while the harm to Water Wheel absent a stay will be both swift and
permanent, granting the stay will cause to the Tribe little-to-no immediate harm.
As stated above, the Water Wheel leasehold is long-standing. Even during the
protracted process of this current dispute, the parties (Water Wheel and CRIT)
have coexisted in relative peace. That is to say, while the status quo here
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obviously would prevent CRIT from taking immediate possession of the land, it
will do no more than that.
4. A Stay of Execution is in the Public Interest
The issue on appeal is one of vast significance with regard to the parameters
of tribal court jurisdiction, with a potentially profound impact on non-Indians and
non-Indian businesses doing business in Indian Country. Water Wheel here
contends that the Tribal Court impermissibly and without jurisdiction entered
against it an order of eviction and a $4 million judgment against it. Without the
order here sought, the precedent that non-Indians have limited remedies in federal
courts will surely cause some new evaluations as to when and where companies
should do business.
It is in the public interest to have this matter resolved in the courts, and not
via a police action mounted by CRIT. The CRIT Motion was filed only a few days
after the parties concluded appellate briefing in this matter, and it is nothing more
than a tribal maneuver designed to sidestep this Court's review of the very Tribal
Court jurisdiction at issue by simply proceeding with an eviction which effectively
would render moot this Court’s review of the Water Wheel appeal. Cf. Plains
Comm. Bank v. Long Fam. Land and Cattle Co., 554 U.S. 316, __; 128 S. Ct.
2709, 2716-17 (2008) (question of whether a tribal court has jurisdiction over a
non-member of the tribe is a question of federal law and, thus, if federal court finds
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tribal court was without jurisdiction, tribal court judgment as to non-member is
"necessarily null and void"); FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311,
1314 (9th Cir. 1990) ("federal courts are the final arbiters of federal law" and tribal
court jurisdiction over non-member is a federal legal question). Without the stay,
Water Wheel will be destroyed, regardless of the outcome of this appeal. And to
permit that destruction, when the status quo has such a negligible effect upon
CRIT, would serve no public interest.
Instead, it is in the public's interest to understand that non-Indians can do
business with tribes, and that disputes arising between the two will nonetheless be
decided under the proper laws and jurisdictional principles, and in accordance with
the terms of any Lease or other contract, pursuant to the mechanisms agreed to by
the parties. Nothing less is here at stake.
It is certainly in the public interest that federal courts remain the final
arbiters of federal law, including the question of the extent of tribal court
jurisdiction over non-members. FMC, 905 F.2d at 1314 (scope of tribal court
jurisdiction over non-members is a question of federal law). As such, federal
courts must be permitted to determine whether a tribal court had jurisdiction to
enter a judgment against a non-member before a tribal court avoids such judicial
review by ordering execution of the judgment. This is especially true when a non-
member would have no remedy if federal courts later found that the tribal court
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was without jurisdiction to enter the judgment in the first instance. That is to say,
tribal courts are not, and cannot be, the courts of last resort as to disputes which are
controlled by federal law, especially when they propose to become the ultimate
authority through default. Cf. Plains Commerce, 554 U.S. at __; 128 S. Ct. at
2724 (tribal sovereignty exists “outside the basic structure of the Constitution" and
the "Bill of Rights does not apply to Indian tribes . . . [and] Indian courts differ
from traditional American courts in a number of significant respects") (additional
citation and quotations omitted).
IV. CONCLUSION AND RELIEF REQUESTED
For the foregoing reasons, Cross-Appellant Water Wheel respectfully
requests that this Honorable Court grant this Motion and enter an order
immediately enjoining Cross-Appellees, The Honorable Gary LaRance and CRIT
Chief Court Clerk Jolene Marshall, together with their successors and any
//
//
//
//
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person(s) acting by or through them, from issuing the Writ filed by CRIT in its
Tribal Court on August 17, 2010, or otherwise taking any action to evict Water
Wheel unless and until this Court has ruled on the merits of the parties' pending
appeals.
Dated: August 30, 2010 Respectfully submitted, s/ Dennis J. Whittlesey
Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 [email protected]
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CIRCUIT RULE 27-3 CERTIFICATE
1. ADDRESSES AND TELEPHONE NUMBERS OF
ATTORNEYS/PARTIES:
Attorney for Plaintiff/Cross-Appellant and Appellee
DENNIS J. WHITTLESEY DICKINSON WRIGHT PLLC 1875 Eye Street, NW – Suite 1200 Washington, DC 20006 Telephone: 202-659-6928 Facsimile: 202-659-1559 Email:[email protected]
Attorney for Appellants/Cross-Appellees
TIM VOLLMANN California Bar State Bar #58541 3301-R Coors Rd. N.W. #302 Albuquerque, NM 87120 Email: [email protected] Telephone: 505-881-2627
2. FACTS AS TO EXISTENCE AND NATURE OF CLAIMED
EMERGENCY
On August 17, 2010, CRIT filed with the Tribal Court a Motion for Issuance
of Writ of Restitution and a [Proposed] Writ of Restitution requesting that the
Tribal Court exercise jurisdiction over Water Wheel and command the immediate
and forcible eviction of Water Wheel. The aforementioned Motion and proposed
Writ were served on counsel for Water Wheel in the afternoon on August 19, 2010
via first class mail.
The validity of the Tribal Court's jurisdiction over the Water Wheel eviction
action (which forms the basis for the Tribe's Motion and Writ) is the very issue
pending, fully briefed and now ready for this Court's review and ruling. Should the
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Tribal Court issue the Writ prior to this Court's examination of and ruling on the
issues before it, the CRIT Tribal Police are immediately commanded to forcibly
evict Water Wheel and its agents from the leasehold and remove and confiscate all
of its personal property therefrom. Consequently, Water Wheel’s appeal and this
Court’s review and ruling on the merits of the appeal will be rendered entirely
moot.
3. NOTICE AND SERVICE
On August 19, 2010, via telephone conversations, Counsel for Cross-
Appellant, Water Wheel Camp Recreational Area, Inc. notified Tim Vollmann,
counsel for the Appellants/Cross-Appellees, of their intent to file this Emergency
Motion. Counsel for Water Wheel also certifies that on August 19, 2010, the Clerk
of this Court and the Motions Attorney Unit were informed via telephone of Water
Wheel's intention to file this Motion for Stay.
On August 20, 2010, Counsel for the Tribal Court Parties, Tim Vollmann,
contacted Counsel for Water Wheel's office and stated that Judge LaRance
intended, in the very near future, to schedule a hearing regarding the Writ and that
Judge LaRance would not take any action on CRIT's Motion until the hearing had
been conducted. Relying on Mr. Vollmann’s representations, Water Wheel agreed
to defer the filing of its Emergency Motion and to await a scheduling order before
taking any further action with respect to the filing. Consequently, Counsel for
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Water Wheel telephonically informed the Clerk of this Court and the Motions
Attorney Unit of Water Wheel's intention to delay filing of its Emergency Motion
for Stay.
On Friday, August 27, 2010, Counsel for Water Wheel and Robert Johnson
received e-mail correspondence from Judge LaRance scheduling a hearing on
CRIT’s Motion for September 10, 2010, and setting a briefing schedule. On
Monday, August 30, 2010, Counsel for Water Wheel telephonically contacted both
Mr. Vollmann and this Court's Motions Attorney Unit and advised them of Water
Wheel’s intent to file this Motion on that date.
Counsel for Water Wheel also certifies that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
4. WHETHER RELIEF WAS AVAILABLE AT THE DISTRICT
COURT
Counsel for Water Wheel certifies that he filed a motion for stay pending
appeal in this matter with the District Court. That Motion was summarily denied
by Judge Campbell on December 18, 2009. In that motion, Water Wheel argued
for all the same reasons advanced in the instant Emergency Motion that it would
experience irreparable harm if evicted.
In denying the Motion for Stay, the District Court stated that Water Wheel's
"likelihood of success on the merits and [possibility of] irreparable injury" were the
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most critical elements to be considered and, in turn, must be satisfied before the
Court would consider the second two factors: balance of equities and public
interest. See CRIT Motion, Ex. 6 at 2.
Although the District Court concluded that Water Wheel had not presented
argument with respect to its likelihood of success based on the merits, it declared
even if Water Wheel had done so the Court "would disagree" and "for all the
reasons set forth in the Court's order on the merits." Id. at 2, n. 1. Accordingly, the
District Court denied the motion with the conclusion that that the Tribal Court
Parties were likely to prevail on appeal and no stay would be appropriate. Id.
Thus, based on that element alone, the Court denied Water Wheel's Motion.
The District Court's denial of Water Wheel's Motion for stay was grounded
firmly in its belief that its own decision on the merits was correct and its belief
that this Court unquestionably would agree. Frankly, the District Court's previous
refusal to stay was so firmly stated that there is no rational expectation that its
opinion would change with a refreshed or expanded argument in a second Motion
for stay. For this reason, Water Wheel is asking this Court to preserve Water
Wheel's appeal by enjoining the Tribal Court Parties from ordering the Writ and
mooting this appeal.
Case: 09-17349 08/30/2010 Page: 22 of 24 ID: 7456555 DktEntry: 43-1
v
Accordingly, it is just and proper for this Court to now consider this Motion
for stay of execution pending the outcome of Water Wheel's appeal which is now
ripe for this Court's review and ruling.
Dated: August 30, 2010 Respectfully submitted, s/ Dennis J. Whittlesey
Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928 [email protected]
Case: 09-17349 08/30/2010 Page: 23 of 24 ID: 7456555 DktEntry: 43-1
CERTIFICATE OF SERVICE
I hereby certified that on this 30th day of August 2010, I did file with this
Court and did serve via ECF/Pacer Electronic Filing, all parties, Water Wheel's
Emergency Motion Under Circuit Rule 27-3 and FRAP 8(a) for Order Enjoining
Tribal Court From Issuing Writ of Restitution Ordering CRIT Tribal Police to
Evict Water Wheel Now.
s/ Dennis J. Whittlesey Dennis J. Whittlesey (DC Bar No. 053322) Dickinson Wright PLLC 1875 Eye Street, NW - Suite 1200 Washington, DC 20006 202-659-6928
Case: 09-17349 08/30/2010 Page: 24 of 24 ID: 7456555 DktEntry: 43-1
COLORADO RIVER INDIAN TRIBE'SColorado River Indian Reservation
ROUTE BOX 23 IsPARKF.R. ARIZONA 853,1,1
Tiii.EPH(3NFI (92g ) (k9-1280FAX (928) 6(19 I 391
October 21, 2000
To Members or the Water Wheel Resort:
We are writing to inform you of the recent result of a lawsuit brought by the Colorado River Indian Tribes("cRir . or "Tribes") against the owner and operator of Water Wheel Resort ("Resort"). As yov may heaware, between 1975 and 2007 the Resort was operated hy Water Wheel Camp Recreational Area, Inc.("Water Wheel") pursuant to a lea.se with the Tribes. This lease authorized Water Wheel to develop andoperate the Re:sort on tribal lands in exeltang,e for annual mitt and other payments to CRIT. The lease furtherrequired that 'Water Wheel vatate the premises and (um the Resort over to the `fribes at the end of the leaseterrn.
When the lease expited itt 2007, however, Water Wheel rcfused to return the property to the Tribes. CRITsubsequently brought suit in Tribal Court, seeking to cvict Water Wheel and its owner, Robt....rt Johnson, and torecover unpaid rent. The Tribal Court ruled in the Tribes' favor, and the Tribal Court of Appeals upheld thatruling.
On September 21, 2009, the federal district court for► the district of Arizona ruled that the Tribal Courrsexercise of jurisdiction over Water Wheel was proper, and thus left the Tribal Court's judgment against WaterWheel in full force and effect. Accordingly, r.Rrr intends to tzike the first step in eilfbreing the Tribal Court'sjudgment against Water Wheel by removing the company from the property. No further action in state orfederal court is neCessary to enforce this portion of the Tribal ('.oures judgment.'
Once Water Wheel is removed from the premises.. CRIT plans to fake over tnanagement and operation of theResort. Please note that CRIT intends to honor all existing, valid subleases between Water Wheel andindividual Members of the Resort as tont.; as the Member is in compliance with the sublease's terms. As aresult, the Tribes' action against Water Wheel shotdd not interfere with y ►ur use and enjoyment of the Resort.
If you have any questions about this matter, plcase contact Attorney Ciencrall Erie Shepard at (928) 669-1271.
Sincerely,
COLORAI)0 RIVER INDIAN TRIBES
Orr Q:Zerit4f:0°"'('
Eldred linasChairman
r Because the federal court ruled that the 'fribal C'ourt did not have jurisdiction over Robert Johnson asan individual, CRIT is not seeking to enforce the Tribal C.'ourt's judgment against Robert Johnsen at this lime.However. CRIT reserves its right as the lawful owner to remove any trespassers round on the property.
I' d6608 226 139/.. %Josad leaqm Jalem
v91:80 GO La %00
Case 2:08-cv-00474-DGC Document 89-1 Filed 11/10/09 Page 2 of 2Case: 09-17349 08/30/2010 Page: 2 of 2 ID: 7456555 DktEntry: 43-5