In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

GRAND CANYON SKYWALK DEVELOPMENT, LLC,Petitioner,

v.

GRAND CANYON RESORT CORPORATION, ET AL., Respondents.

On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

Mark A. Fuller Counsel of RecordGallagher & Kennedy2575 E. Camelback RoadSuite 1100Phoenix, Arizona 85016-9225(602) 530-8000maf@gknet.com

Counsel for Respondents

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 13-313

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS WHY THE PETITION SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

THE NINTH CIRCUIT’S DECISION WAS CORRECT AND UNREMARKABLE . . . . . . . . . . . 13

A. On The Facts Of This Case, Tribal JurisdictionIs Not “Plainly Lacking.” . . . . . . . . . . . . . . . . . . 14

1. Whether Montana Presumptively “AppliesOn Tribal Land” Is Irrelevant, And TheContrived Circuit Split Is Academic. . . . . . . 15

2. Both Montana Exceptions PresumptivelyProvide A Basis For Tribal Jurisdiction InAny Event. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. The Ninth Circuit Correctly Rejected GCSD’s“Bad Faith” Argument Based On The DistrictCourt’s Factual Findings . . . . . . . . . . . . . . . . . . 20

C. The Ninth Circuit Correctly Refused to ConsiderGCSD’s “Contract Location” Argument . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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APPENDIX

Appendix Hualapai Law & Order Code§ 2.16 . . . . . . . . . . . . . . . . . . . . . . App. 1

iii

TABLE OF AUTHORITIES

CASES

Am. Constr. Co. v. Jacksonville, Tampa & Key W.Ry. Co., 148 U.S. 372 (1893) . . . . . . . . . . . . . . . . . . . . . . 12

Arizona v. California, 283 U.S. 423 (1931) . . . . . . . . . . . . . . . . . . . . . . 21

Attorney’s Process and Investigation Servs., Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927 (8th Cir. 2010) . . . . . . . . . . . . 17, 18

Berman v. Parker, 348 U.S. 26 (1954) . . . . . . . . . . . . . . . . . . . . . . . 22

Calumet Gaming Grp. - Kansas, Inc. v. Kickapoo Tribe of Kansas, 987 F. Supp. 1321 (D. Kan. 1997) . . . . . . . . . . . 21

City of Oakland v. Oakland Raiders, 646 P.2d 835 (Cal. 1982) . . . . . . . . . . . . . . . 23, 24

Curry v. McCanless, 307 U.S. 357 (1939) . . . . . . . . . . . . . . . . . . . . . . 23

Duro v. Reina, 495 U.S. 676 (1990) . . . . . . . . . . . . . . . . . . . . . . 17

Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968) . . . . . . . . . . . . . . . . 9

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Espil v. Sells, 847 F. Supp. 752 (D. Ariz. 1994) . . . . . . . . . . . . 21

GNS, Inc. v. Winnebago Tribe of Neb., 866 F. Supp. 1185 (N.D. Iowa 1994) . . . . . . . . . 21

Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271 (1949) . . . . . . . . . . . . . . . . . . . . . . 13

Hill v. Potter, 352 F.3d 1142 (7th Cir. 2003) . . . . . . . . . . . . . . 10

Juidice v. Vail, 430 U.S. 327 (1977) . . . . . . . . . . . . . . . . . . . . 9, 21

Mayor & City Council of Baltimore v. Baltimore Football Club, 624 F. Supp. 278 (D. Md. 1986) . . . . . . . . . . . . . 24

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) . . . . . . . . . . . . . . . . . . . . . . 18

Montana v. United States, 450 U.S. 544 (1981) . . . . . . . . . . . . . . . . . . passim

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) . . . . . . . . . . . . . . . . . . passim

Nevada v. Hicks, 533 U.S. 353 (2001) . . . . . . . . . . . . . . . . 12, 17, 18

Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008) . . . . . . . . . . . . . . . . 11, 17, 18

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Rice v. Sioux City Mem’l Park Cemetery, 349 U.S. 70 (1955) . . . . . . . . . . . . . . . . . . . . . . . 12

Shaw v. Merritt-Chapman & Scott Corp., 554 F.2d 786 (6th Cir. 1997) . . . . . . . . . . . . . . . 10

South Dakota v. Bourland, 508 U.S. 679 (1993) . . . . . . . . . . . . . . . . . . . . . . 18

Strate v. A-1 Contractors, 520 U.S. 438 (1997) . . . . . . . . . . . . . . . . . . . . . . 12

Texas v. New Jersey, 379 U.S. 674 (1965) . . . . . . . . . . . . . . . . . . . . . . 24

Tindall v. Wayne County Friend of Court, By:Schewe,269 F.3d 533 (6th Cir. 2001), cert. denied, 535 U.S. 988 (2002) . . . . . . . . . . . . . . . . . . . . . . 22

Virginia Military Inst. v. United States, 508 U.S. 946 (1993) . . . . . . . . . . . . . . . . . . . . . . 12

Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011) . . . . . . . . . . 8, 17, 18

ORDINANCE

Hualapai Law & Order Code § 2.16 . . . . . . . . . . . . 6

RULES

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vi

Sup. Ct. R. 15.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

OTHER AUTHORITY

18A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,Federal Practice and Procedure § 4436 (2d ed. &Supp. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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SUMMARY OF ARGUMENT

This case is about one thing: Petitioner GrandCanyon Skywalk Development’s (“GCSD”) failure toexhaust tribal remedies, in disregard of long-standingprinciples of tribal sovereignty and self-governance. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe ofIndians, 471 U.S. 845, 857 (1985). The only issuedecided below was whether GCSD was obligated toseek relief in the Tribal court in the first instance,before filing suit in federal court. Thus, there is nooccasion for the Court to consider the ultimate issues ofwhether the Tribal court has jurisdiction, or the reachof the Tribe’s power of eminent domain. Pet. at i–ii(issues one through three). The merits of thosearguments are not before the Court at this stage.

Moreover – and equally dispositive – GCSD does noteven challenge one of the three alternative bases onwhich the Ninth Circuit rested its decision with respectto the exhaustion requirement. Tribal jurisdiction liesin any case where the conduct of a non-Indian“threatens or has some direct effect on the politicalintegrity, the economic security, or the health orwelfare of the tribe.” Montana v. United States, 450U.S. 544, 566 (1981). The Ninth Circuit found thisprinciple would likely be a basis for tribal jurisdictionhere, and this was an independent ground for rejectingGCSD’s plea to be excused from exhausting tribalremedies. Petitioner’s Appendix (“Pet. App.”) 19a. ThePetition does not argue the point, so the remainingarguments about tribal jurisdiction are moot.

Once one sets aside the phantom “issues” of tribaljurisdiction, all that remains of the Petition is GCSD’sfactual argument that “the Tribe’s judiciary lacked

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judicial independence.” Pet. at ii. GCSD argues thatthis should have triggered an exception to theexhaustion requirement for “bad faith assertion ofjurisdiction.” Id. But the District Court made a factualfinding, based on the evidence presented at the TROstage, that the Tribe’s judiciary is neutral, functional,and independent. The Ninth Circuit upheld thatfinding, and the Petition does not even argue that itwas clearly erroneous.

All of these flaws (and others) aside, the facts of thiscase can fairly be described as sui generis insofar asthey strike at the heart of tribal sovereignty and theneed for adherence to the National Farmers principleof tribal exhaustion. At issue is an eminent domainaction under which the Hualapai Tribe seeks to acquire– for just compensation – GCSD’s interests in a long-term contract to build, operate and manage the GrandCanyon Skywalk. The Skywalk project, situated onTribal land and owned by the Tribe, is a world famoustourist destination overlooking what the Ninth Circuitaptly termed “one of the world’s great wonders.” Pet.App. 4a. This is a unique set of facts without parallelelsewhere, and it is hardly surprising that the courtsbelow found no cause for immediate federal courtintervention in the Tribal court’s process ofdetermining its own jurisdiction.

For these reasons and others discussed below,nothing about this case merits certiorari.

STATEMENT OF THE CASE

The Petition distorts and misstates the record, andeven neglects to mention one of the alternative baseson which the Ninth Circuit rested its decision. A more

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complete and accurate account of the facts andproceedings below is therefore in order. See SupremeCourt Rule 15.2.

Relevant Facts

In 2003, Petitioner GCSD entered into aDevelopment and Management Agreement with ‘Sa’Nyu Wa, Inc. (“SNW”), a Tribally-chartered corporationlocated on the Hualapai Reservation and wholly ownedby the Hualapai Tribe. Under the Agreement, GCSDacquired a limited license to build, operate and managethe Grand Canyon Skywalk development. TheSkywalk itself is a glass-bottomed viewing platformsuspended over the rim of the Grand Canyon, whichdraws visitors from around the world. It is thecenterpiece of a larger development, all of which islocated on Tribal land, and as the Ninth Circuit noted,“[i]t is the impressive beauty of the tribal land’slocation that is the valuable centerpiece of thiscontroversy.” Pet. App. 16a. And the Tribe owns boththe Skywalk and all other improvements. This is, inother words, a case which involves a unique,irreplaceable Tribal asset unlike any other on earth,located on Tribal land and wholly owned by the Tribeitself.

The Skywalk was to be an economic engine for theTribe, and the Agreement required that it besubstantially completed by mid-2005. But GCSD didnot complete any construction by that deadline. Theviewing platform itself was only opened to the public inMarch 2007, at which time no other specified projectimprovements, including the visitors’ center, wasanywhere near complete. See Pet. App. D (describingstatus of project in early 2012). Instead of entering the

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visitors’ center, tourists walked around an emptybuilding. There was no gift shop or amphitheater. There were no indoor restrooms.

On September 10, 2007, GCSD and SNW signed anamendment to the 2003 Agreement, which reaffirmedGCSD’s obligation to build the facilities and requiredcompletion of the project by March 2008. Thatdeadline, too, came and went. Year after year, theproject remained incomplete. Meanwhile, GCSD alsofailed to account for visitor funds it was receiving. Id.

GCSD’s conduct drastically impacted the viability ofthe project, and, by extension, the economic welfare ofthe Tribe. In February 2011, as the dispute continuedto brew, GCSD took the offensive and filed a Complaintin Tribal court against SNW, seeking to compelarbitration. The next month, GCSD also filed suit infederal court anticipatorily seeking to enjoin the Tribefrom exercising its power of eminent domain. GrandCanyon Skywalk Dev. LLC v. Vaughn (GCSD I), No.CV11-8048-PCT-DGC, 2011 WL 2981837 (D. Ariz. July22, 2011). The District Court denied a TRO anddismissed the case, holding that “[p]laintiff’s claim inthis case challenges tribal authority to enact andenforce a tribal condemnation ordinance, a claimcentral to tribal self-government, and the tribal courtmust be given an opportunity to both decide whether ithas jurisdiction and to interpret the ordinance.” Id.,2011 WL 2491425, at *3 (emphasis added). Afterfurther briefing, the court also denied GCSD’s motionto reconsider. GCSD did not appeal.

Meanwhile, on August 9, 2011, GCSD initiated anarbitration under the auspices of the American

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Arbitration Association.1 The arbitration involvedmany different disputes over construction andoperation of the Skywalk, including questions aboutGCSD’s failure to account for substantial amounts ofrevenue and whose responsibility it was to bringutilities to the project. The 2003 Agreement providedthat GCSD, at its own expense, would construct “allrelated on and off-site Improvements andInfrastructure,” and this was re-confirmed in a 2007Amendment, but GCSD maintained that this was notthe parties’ true intent. Cf. Pet. at 5 (arguing that“contemporaneous documents . . . make it clear that theutilities were the Tribe’s responsibility”).

In 2012, as the arbitration became ever moreprotracted and expensive, and with no realisticprospect of compelling GCSD to complete the project,the Tribe (a) obtained an independent appraisal of thefair market value of GCSD’s interests in theAgreement, (b) enacted a Resolution to acquire thoseinterests under the power of eminent domain, and(c) filed a condemnation action in Tribal court.2 Although the Petition states that the eminent domainordinance “denies GCSD the right to be heard” on“substantive issue[s], including valuation,” (Pet. at i)

1 The Tribal court had dismissed GCSD’s Complaint, finding thatthe 2003 Agreement only permitted arbitration by application tofederal court.

2 Once the condemnation action was filed, the Tribe requested thatthe arbitration be dismissed and SNW withdrew from furtherparticipation. The Arbitrator nonetheless proceeded to hold ahearing where only GCSD presented evidence, and, notsurprisingly, found in GCSD’s favor, awarding it more than $28million. SNW is now in bankruptcy.

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the ordinance is modeled on federal and Arizonastatutes, providing for payment of just compensationafter an adversarial process very similar to what isavailable in state or federal court. See Hualapai TribalLaw & Order Code § 2.16 (eminent domain ordinance),Respondent’s Appendix 1. And the Tribal courtprovides “an adequate and impartial opportunity tochallenge jurisdiction.” Pet. App. 13a.

GCSD has since “actively litigat[ed] its case inHualapai Tribal Court.” Pet. App. 14a. The Petitioncomplains that “[a]s a practical matter, the seizing ofGCSD’s interest in the Skywalk nearly two years agohas resulted in no relief.” Pet. at 13. But as theDistrict Court just recently noted in dismissing yetanother lawsuit filed by GCSD, it is GCSD’s ownlitigation strategy which has disrupted the orderlydisposition of the Tribal court proceedings. See GrandCanyon Skywalk Dev. LLC v. The Hualapai IndianTribe of Ariz., et al. (GCSD III), No. CV-13-08054-PCT-DGC, 2013 WL 4478778, at *16—17 (D. Ariz. Aug. 20,2013) (“GCSD asserts that justice delayed is justicedenied. . . . This assertion appears to be based on theTribe’s opposition to the actions GCSD filed in thisCourt . . . GCSD appears to have done more to delayresolution of the condemnation action thanDefendants.”).

Proceedings Below

As we noted above, the District Court held in GCSDI that any challenge to the Tribe’s jurisdiction orauthority to condemn GCSD’s interests in theAgreement would have to be pursued in Tribal court inthe first instance. GCSD did not appeal that ruling. But once the Tribe initiated the condemnation action,

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GCSD returned to District Court and filed this action,again seeking a TRO, and again challenging the Tribe’sjurisdiction. Grand Canyon Skywalk Dev. LLC v. ‘Sa’Nyu Wa, (GCSD II) No. CV-12-8030-PCT-DGC, 2012WL 1207149 (D. Ariz., Mar. 26, 2012). Just as before,the issue was whether GCSD needed to pursue itsremedies in the Tribal court. And just as before, theDistrict Court ruled in the affirmative.

Generally speaking, the details of the DistrictCourt’s ruling need not be addressed here. There is,however, one important exception. In seeking a TRO,GCSD argued that jurisdiction in or by the TribalCourt is in bad faith. GCSD II, 2012 WL 1207149, at*1—2. As its support for this argument, but withoutadvance notice to the other parties or the Court, GCSDbrought to the hearing a report entitled “HualapaiTribal Court Evaluation,” arguing that the reportestablished the absence of an independent tribaljudiciary. The District Court considered the report inits entirety, and found that, contrary to the way it wasportrayed by GCSD, the report actually confirmed that(a) “[t]he judiciary is separate and apart from the tribalcouncil,” (b) it has a “functional, established systemwith court procedures,” and (c) there was no evidenceto suggest the Tribal Council had ever interfered withTribal court matters. Pet. App. 13—14a. Report aside,the District Court also found that what had actuallyhappened in the condemnation action reflected afunctional, independent judiciary.3

3 For example, the Tribal court declared one provision in thecondemnation ordinance unconstitutional, and appointed a non-Tribal member judge pro tem to preside over the case, thereby

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The Ninth Circuit affirmed, holding that regardlessof the collateral estoppel consequences of GCSD I,GCSD needed to exhaust its tribal remedies. Pet. App.7a.

The court first held that GCSD had not establishedthat tribal jurisdiction was “plainly lacking” underMontana, such that exhaustion would be unnecessary. Montana was “unlikely to apply to the facts of thiscase,” the court reasoned, because GCSD’s conductinterfered directly with the Tribe’s inherent powers toexclude and manage its own lands, and there were nocompeting state interests at play. Pet. App. 14a-16a (citing Water Wheel Camp Recreational Area, Inc. v.LaRance, 642 F.3d 802, 805 (9th Cir. 2011)). That said,“even if Montana applied,” the particular facts of thiscase supported tribal jurisdiction because: (a) GCSDhad entered into a “‘consensual relationship with thetribe or its members, through commercial dealing,contracts, leases, or other arrangements,’” Pet. App.18a (quoting Montana, 450 U.S. at 565); and(b) GCSD’s conduct “‘threatens or has some direct effecton the political integrity, the economic security, or thehealth or welfare of the tribe.’” Id. (quoting Montana,450 U.S. at 566). Either of these would place the case“squarely” within the Montana exceptions. Id. at 15a.

The court likewise rejected GCSD’s contention thatexhaustion of tribal remedies was unnecessary underNational Farmers by virtue of the exception for caseswhere “an assertion of tribal jurisdiction ‘is motivatedby a desire to harass or is conducted in bad faith.’”

removing any conceivable argument of partiality. GCSD II, 2012WL 1207149, at *7.

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Nat’l Farmers, 471 U.S. at 856 n.21. (quoting Juidice v.Vail, 430 U.S. 327, 338 (1977)). Applying the correct,deferential standard of review, the court upheld theDistrict Court’s factual finding that the Tribal courtsare independent, neutral, and offer “an adequate andimpartial opportunity to challenge jurisdiction.” Pet.App. 14a.

Finally, the court addressed a tangential argumentthat GCSD raised for the first time on appeal; namely,that its contract rights to build, operate and managethe Skywalk were somehow “extra-territorial” becauseGCSD’s home office was in Nevada. Based on thispremise, GCSD argued, the Tribe was exceeding itssovereign power of eminent domain. The argumenthad been waived by GCSD’s failure to make it below,Eason v. Dickson, 390 F.2d 585, 589 (9th Cir. 1968), butin any event, as the Ninth Circuit explained, GCSDwas confusing tribal jurisdiction with the merits of thecondemnation case. Pet. App. 15a n.4 (noting thatGCSD’s argument “conflates the interlocutoryjurisdictional question with the merits of thecondemnation action” and the court “need notdetermine the situs of the contract to render [its]decision”).

GCSD asked the Ninth Circuit to rehear the case enbanc; the motion was denied.

REASONS WHY THE PETITION SHOULD BE DENIED

The lone issue decided below was whether, on theparticular facts of this case, GCSD was obligated toexhaust its challenges to Tribal court jurisdiction in theTribal courts before filing a lawsuit in federal court.

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For a number of different reasons, nothing about theNinth Circuit’s decision on that narrow issue meritscertiorari.

First, the National Farmers rule requiringexhaustion of tribal court remedies – a matter of comityand respect for tribal governments and tribal self-governance – has long been settled. Over the years, thelower courts have developed a robust body of case lawapplying this rule in a wide variety of factual settings,nearly always finding that exhaustion is required. Nothing about this case suggests a need to revisiteither the rule or its very narrow exceptions.

Second, the District Court reached the sameconclusion in GCSD I applying the National Farmersrule – a decision GCSD did not appeal. Although theNinth Circuit found it unnecessary to address theissue, GCSD is collaterally estopped from arguing thatit is exempt from tribal exhaustion, as its arguments onthis topic were raised, briefed, argued and decided inGCSD I. The District Court’s rejection of thosearguments was essential to its dismissal of the action. Although the District Court dismissed GCSD I withoutprejudice, that does not diminish the collateral estoppeleffect of those findings which bore on the jurisdictionalissues leading to the dismissal. See, e.g., 18A CHARLESALAN WRIGHT & ARTHUR R. MILLER, Federal Practiceand Procedure § 4436 (2d ed. & Supp. 2012); Hill v.Potter, 352 F.3d 1142, 1146-47 (7th Cir. 2003); Shaw v.Merritt-Chapman & Scott Corp., 554 F.2d 786, 789 (6thCir. 1977).

Third, the Petition does not even challenge one ofthe three alternative bases on which the Ninth Circuitfound probable tribal jurisdiction under Montana. As

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explained above, the Ninth Circuit held that “even ifMontana applied,” the facts of the case would likely fallwithin both Montana exceptions, including theexception for cases where a non-member’s conduct‘“threatens or has some direct effect on . . . theeconomic security . . . of the tribe.’” Pet. App. 18—19a(quoting Montana, 450 U.S. at 566). This analysis iscommonsense – after all, this case centers on anextraordinarily important economic engine for theTribe – but more importantly for present purposes, thePetition does not argue that it was incorrect. Thisbeing an independent basis for the Ninth Circuit’sdecision, GCSD’s arguments about other aspects oftribal jurisdiction are moot.

Fourth, the Petition ignores the procedural postureof the case. GCSD pretends that the Ninth Circuit’sopinion tees up various issues of tribal jurisdiction orauthority: (a) whether the “main rule” of Montanaapplies to cases arising on tribal lands; (b) whetherGCSD’s agreement to build, operate and manage theSkywalk development falls within the “consensualrelationship” basis for tribal jurisdiction; and(c) whether the agreement between GCSD and SNW isbeyond the eminent domain powers of the Tribe. Pet.at i-ii (questions one through three). But these issueswere never decided below, and are not presented here. To repeat, the sole question was whether there was acolorable basis for tribal jurisdiction such that underNational Farmers, GCSD was obligated to litigate itsarguments in the Tribal courts in the first instance. Such interlocutory decisions fall far short of definitivelyframing important issues on a fully developed record. Cf. Plains Commerce Bank v. Long Family Land andCattle Co., 554 U.S. 316 (2008) (accepting certiorari to

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consider jurisdictional issues only after plaintiffsexhausted their tribal court remedies); Nevada v.Hicks, 533 U.S. 353 (2001) (same); Strate v. A-1Contractors, 520 U.S. 438 (1997) (same); see alsoVirginia Military Inst. v. United States, 508 U.S. 946(1993) (Justice Scalia) (“We generally await finaljudgment in the lower courts before exercising ourcertiorari jurisdiction.”) (internal citations omitted);Am. Constr. Co. v. Jacksonville, Tampa & Key W. Ry.Co., 148 U.S. 372, 384 (1893) (finding that, as a generalrule, “this court should not issue a writ of certiorari toreview a decree of the circuit court of appeals on appealfrom an interlocutory order”).

Fifth, even if one or more of these tribaljurisdictional issues were actually presented here (theyaren’t), and even if these issues were not mooted by theNinth Circuit’s alternative bases for its decision (theyare), it would still be difficult to imagine a case lessdeserving of further review under National Farmers. This is undeniably a unique case. GCSD entered intoa consensual relationship with a Tribally-charteredcorporation under which it agreed to build, operate andmanage Tribal property on Tribal land. And not justany property on any piece of land, but the infinitelyunique Skywalk project. This is not a set of facts thatcan be expected to recur in other cases. Rice v. SiouxCity Mem’l Park Cemetery, 349 U.S. 70, 74 (1955)(noting that, regardless of importance, an issue mustbe “beyond the academic or the episodic,” and must beimportant to the public as opposed to the particularparties involved). Moreover, if an eminent domainaction under these unique circumstances does not

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demand respect for the authority of Tribal courts todetermine their own jurisdiction in the first instance,it would be difficult to imagine a case that would.

Sixth, with respect to the actual issue presentedand decided below – GCSD’s need to exhaust its tribalremedies – the Petition’s sole argument relies on afactual assumption contrary to the findings below. Specifically, GCSD argues that the Court shouldconsider whether the “bad faith assertion ofjurisdiction” exception in National Farmers shouldapply to a case in which a Tribal council allegedly actsin bad faith and “the Tribe’s judiciary lack[s] judicialindependence.” Pet. at ii (question 4). But the DistrictCourt found that the Tribe’s judiciary was independent,was neutral, and was functioning, without anyinterference from the Tribal Council. So this, too, is anon-issue. GCSD does not argue that the DistrictCourt clearly erred in its factual findings based on therecord at the TRO hearing, and such an argumentwould not justify certiorari in any event. SupremeCourt Rule 10(c) (certiorari rarely appropriate wherethe “asserted error consists of erroneous factualfindings”); Graver Tank & Mfg. Co. v. Linde Air Prods.Co., 336 U.S. 271, 275 (1949) (finding certiorari is notappropriate “for correction of errors in fact finding”).

Finally, even putting aside all of the above, theNinth Circuit unquestionably reached the correct resulton the singular facts of this case.

THE NINTH CIRCUIT’S DECISION WASCORRECT AND UNREMARKABLE

The Ninth Circuit’s analysis correctly started withthe general rule that “a federal court should stay its

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hand ‘until after the Tribal Court has had a fullopportunity to determine its own jurisdiction.’” Nat’lFarmers, 471 U.S. at 857 (internal citations omitted). Drawing from National Farmers’ analysis, the courtarticulated the policies underlying federal law’slongstanding recognition of “comity and deference tothe tribal court” for purposes of tribal jurisdiction,including: “(1) Congress’s commitment to ‘a policy ofsupporting tribal self-government and self-determination;’ (2) a policy that allows ‘the forumwhose jurisdiction is being challenged the firstopportunity to evaluate the factual and legal bases forthe challenge;’ and (3) judicial economy, which will bestbe served ‘by allowing a full record to be developed inthe Tribal Court.’” Pet. App. 7a (quoting Nat’l Farmers,471 U.S. at 856).

The court then examined GCSD’s arguments aboutwhy it should be exempted from the general rule inNational Farmers, and found those argumentsunavailing for reasons that are logical, straightforwardand supported by well-developed bodies of law.

A. On The Facts Of This Case, Tribal JurisdictionIs Not “Plainly Lacking.”

This Court recognizes an exception to the generalrule of National Farmers if jurisdiction in the tribalcourts is “plainly lacking.” Nat’l Farmers, 471 U.S. at856 n.21. In other words, if it is painfully obvious onthe facts of a particular case that the tribal courtscould not have jurisdiction, then the interests of comityare not implicated, and the federal courts need notabstain and defer to the tribal courts to determine theirown jurisdiction. This argument rarely carries the day;here, the facts could not possibly meet that standard,

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and a close reading of the Petition shows that GCSDdoes not argue otherwise. To repeat, this is a caseabout a Tribe’s exercise of its sovereign power ofeminent domain in a dispute that centers on rights tobuild, operate and manage a unique Tribaldevelopment on a piece of Tribal land unlike any other. As the Ninth Circuit noted, “the impressive beauty ofthe tribal land’s location [is] the valuable centerpiece ofthis controversy.” Pet. App. 16a. On these facts, thereis no credible argument that the Tribe’s court so plainlylacks jurisdiction as to justify departing from thegeneral rule of abstention in National Farmers.

Shrugging aside the narrow holding of the decisionbelow, the Petition seeks to elevate the opinion to thestatus of a definitive pronouncement from the NinthCircuit on the reach of tribal jurisdiction over non-Indians. In particular, GCSD pretends that theopinion reflects the Ninth Circuit’s decision thatMontana does not apply to cases involving Indian land,and then characterizes this as representing a splitbetween circuits. This is a false premise, as explainedabove. All the Ninth Circuit decided was that for avariety of reasons – including one the Petition does noteven challenge – GCSD had not established thatjurisdiction in the tribal courts was “plainly lacking.” That decision was correct. We will address each of thecourt’s grounds in turn.

1. Whether Montana Presumptively “AppliesOn Tribal Land” Is Irrelevant, And TheContrived Circuit Split Is Academic.

To repeat, the Ninth Circuit did not decide whetherMontana does or does not “apply to” tribal lands, to usethe simplistic phrase in the Petition. Rather, the court

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concluded that the main rule in Montana was not“likely” to apply to the particular facts of this case, andthen went on to hold that the case would likely fallsquarely within both of the recognized Montanaexceptions in any event. Pet. App. 18-19a. So arguingabout a circuit split over the application of Montana’s“main” or “presumptive” rule to cases arising on triballand is an academic exercise which has no relevance tothe result below. In this case, it simply doesn’t matter.

That said, what the Petition portrays as a splitbetween circuits is contrived. The word “Montana” isnot talismanic; it is simply shorthand for the principlethat tribal courts do not presumptively havejurisdiction over non-Indians. Of course, there may bea case in which the relationship between the disputeand the happenstance of where it arises is so remoteand tangential that application of this “main rule”would be dispositive. But there are other cases, likethis one, where the centerpiece of the dispute is Tribalproperty on Tribal land, where the parties have acommercial, contractual relationship, where thedispute implicates the sovereign power to exclude non-Indians from Tribal land, and where there are nocompeting state interests. In such a case, arguingabout whether the initial “presumption” of Montana“applies” to tribal land misses the point. The analysisis considerably more involved, nuanced, and fact-driventhan that.

In any event, regardless of how one phrases theinquiry, the courts have had no difficulty weighingthese factors and reaching thoughtful, well-reasoneddecisions on the particular facts of the cases presentedto them. This is true of the Eighth and Tenth Circuit

17

cases cited in the Petition, and it is equally true in thiscase. The Eighth and Tenth Circuits do read Hicks torequire starting with the Montana presumptionregardless of land status, and the Ninth Circuit hasread Hicks, with ample support, as more narrowlyconfined to its facts. See Water Wheel, 642 F.3d at 810.But this difference, or “split,” to use the term in thePetition, is of no ultimate consequence, and there is noinconsistency in the results reached by these courts onthe facts of those cases. The Petition does not suggestotherwise.

Meanwhile, no one, including GCSD, denies thesignificance of land status in the calculus. See Pet. at9—10. As recently as 2008, this Court emphasizedagain “the critical importance of land status” toquestions of tribal jurisdiction. Plains Commerce, 554U.S. at 338; see also Hicks, 533 U.S. at 730 (“[T]ribalownership is a factor in the Montana analysis, and afactor significant enough that it may sometimes bedispositive.”). This is in large part because the tribesretain “‘traditional and undisputed power to excludepersons’ from tribal land.’” Plains Commerce, 554 U.S.at 335 (quoting Duro v. Reina, 495 U.S. 676, 696(1990)). Thus, for example, to cite the Eighth Circuitopinion, tribes plainly have jurisdiction to adjudicatetrespass and related claims where a non-Indian entersa tribal facility on tribal land. Attorney’s Process andInvestigation Servs., Inc. v. Sac & Fox Tribe of theMississippi in Iowa, 609 F.3d 927 (8th Cir. 2010). “Tribal civil authority is at its zenith when the tribeseeks to enforce regulations stemming from itstraditional powers as a landowner,” and thus exercisingjurisdiction over a lawsuit under such circumstances is“well within the Tribe’s retained power under

18

Montana.” Id. at 940 (emphasis added) (citing Hicks);cf. Water Wheel, 642 F.3d at 816—19 (holding that landstatus is dispositive when assertion of jurisdictionrelates to ongoing trespass within tribal fee land).

Moreover, it is not merely land “status” whichmatters, but the degree to which the assertion ofjurisdiction relates to a nonmember’s presence on triballand. Nothing in this Court’s jurisprudence calls intoquestion the long-standing principles about a tribe’s“right to occupy and exclude.” Hicks, 533 U.S. at 359;accord Plains Commerce Bank, 554 U.S. at 335;Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144(1982) (finding power to exclude “necessarily includesthe lesser power to place conditions on entry, oncontinued presence, or on reservation conduct”); seealso Water Wheel, 642 F.3d at 810—11 (“The authorityto exclude non-Indians from tribal land necessarilyincludes the lesser authority to set conditions on theirentry through regulations.”). Nor is there any doubtthat jurisdiction follows hand in hand with this powerto exclude. South Dakota v. Bourland, 508 U.S. 679,689 (1993) (“Regulatory authority goes hand in handwith the power to exclude.”).

If this were a case squarely presenting the questionof tribal jurisdiction, the analysis could proceed evenfurther. For example, we could discuss the absence ofcountervailing state interests – again, a recognizedfactor in the jurisdictional analysis, and an importantdistinction between this case and Hicks. See Pet. App.18a. But we already have wandered far afield of whatis actually at issue here: exhaustion of tribal remedies,based on “respect for comity and deference to the tribalcourt as the appropriate court of first impression to

19

determine its own jurisdiction. Id. at 7a (citing Nat’lFarmers, 471 U.S. at 856—57). So rather than extendan unnecessary analysis even further, we will turn tothe Montana exceptions – one of which so clearlyapplies here that the Petition does not even argueotherwise.

2. Both Montana Exceptions PresumptivelyProvide A Basis For Tribal Jurisdiction InAny Event.

The Petition acknowledges, as it must, that

Montana recognizes two exceptions. One exceptionapplies to cases where a non-member’s conductthreatens or has a direct effect on the economic securityof a tribe. The Petition tacitly concedes that the NinthCircuit was correct in concluding on the facts of thiscase that tribal jurisdiction would likely be availableunder this test. After all, the whole point of theSkywalk project was (and is) to attract visitors fromaround the world to the Hualapai Reservation.

Without addressing this dispositive point, thePetition spends several pages arguing about the otherexception articulated in Montana, which applies tocases in which non-Indians enter into “consensualrelationship[s] with the tribe or its members, throughcommercial dealing, contracts, leases or otherarrangements.” Montana, 450 U.S. at 565. Again, thisargument is beside the point, but it is not difficult tosee why the Ninth Circuit found that the Tribal courtswould likely have jurisdiction under this test as well. GCSD entered into a commercial contract with a Tribalcorporation wholly owned by the Tribe, negotiated atarm’s length.

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The Petition acknowledges, as it must, the existenceof a negotiated consensual relationship between GCSDand SNW, a corporate member of the Tribe. And it wasthis very consensual relationship which allowed GCSDto be physically present on Tribal land in the firstinstance, and to operate and manage Tribal property. GCSD nonetheless argues that the Ninth Circuit erredin considering the relationship as a potential basis forTribal jurisdiction, claiming that this would “abrogate”the arbitration clause in the 2003 Agreement. Pet. at14. This argument confuses a dispute resolutionmechanism in a commercial contract with a Tribalaffiliate and the question of tribal jurisdiction in aneminent domain action. There is no arbitrationagreement which would encompass the Tribe’s exerciseof its sovereign power to condemn property. In fact, theAgreement explicitly confirmed that the Tribe was nota party, and thus was not, for example, waiving itssovereign immunity. See also GCSD III, 2013 WL4478778, *9—12 (concluding that Tribe’s status asthird-party beneficiary to the 2003 Agreement did notwaive sovereign immunity from arbitration).

B. The Ninth Circuit Correctly Rejected GCSD’s“Bad Faith” Argument Based On The DistrictCourt’s Factual Findings.

The so-called “bad faith” exception to tribal courtexhaustion is extraordinarily narrow, as it should be. In the words of this Court, it applies only where “anassertion of tribal jurisdiction ‘is motivated by a desireto harass or is conducted in bad faith.’” Nat’l Farmers,471 U.S. at 856, n.21 (emphasis added). As theitalicized language reflects, it is the assertion ofjurisdiction – i.e., the conduct of the tribal judiciary –

21

which matters, not the motives of the parties to a case. Cf. Juidice, 430 U.S. at 338 (cited by Nat’l Farmers 471U.S. at 856 n.21) (“bad faith” exception to Youngerabstention not applicable where prosecutors allegedlyobtained a contempt order and arrest warrant toharass plaintiff; the bad faith exception “may not beutilized unless it is alleged and proven that they [thejudges] are enforcing the contempt procedures in badfaith or motivated by a desire to harass”) (emphasisadded).4

GCSD did not argue below that a Tribal judgeasserted jurisdiction over GCSD in bad faith. Instead,it argued that the defendant Tribal Council membersacted in bad faith when they voted to authorize thecondemnation action, and that their allegedly impropermotives should be imputed to the Tribal judiciarybecause it “lack[ed] judicial independence.” Pet. at 18. The Ninth Circuit was correct in rejecting thisargument.

As a threshold matter, there is no “imputed badfaith.” In fact, the law forbids inquiry into legislativemotives, Arizona v. California, 283 U.S. 423, 455(1931), and “[t]his principle admits of no exception

4 Accord Calumet Gaming Grp. - Kansas, Inc. v. Kickapoo Tribe ofKansas, 987 F. Supp. 1321, 1327 (D. Kan. 1997) (“The exceptionrequires bad faith or a desire to harass in the assertion of tribalcourt jurisdiction.”); Espil v. Sells, 847 F. Supp. 752, 757 (D. Ariz.1994) (reasoning that bad faith exception to exhaustion rule“relates to actions of courts and not the parties”); GNS, Inc. v.Winnebago Tribe of Neb., 866 F. Supp. 1185, 1190 (N.D. Iowa 1994)(concluding alleged bad faith conduct by tribe insufficient todemonstrate that “the assertion of tribal court jurisdiction is in badfaith”).

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merely because the power of eminent domain isinvolved.” Berman v. Parker, 348 U.S. 26, 32 (1954). To permit an exception to National Farmers based onalleged improper motives of Council members wouldrun head-on into this long-standing principle, withpredictable and far-reaching negative consequences.Far from being consistent with principles of comity,such a rule would put the federal courts squarely in themiddle of legislative decision-making, interfering withthe basic business of tribal government, its politicalintegrity and the right of self-governance.5

In any event, GCSD’s argument about a captivejudiciary was flatly contrary to the District Court’sfindings. As we explained above, the District Courtconsidered the report GCSD offered at the TROhearing, as well as what had actually occurred in theTribal court condemnation action, and concluded thatthe courts were independent, neutral, and offered anadequate and impartial opportunity to challengejurisdiction. The Ninth Circuit upheld those findingsunder the proper standard of review, and that ends thematter.6

5 And all for no reason. Sister courts are perfectly well equippedto deal with alleged bad faith conduct by litigants. See, e.g.,Tindall v. Wayne County Friend of Court, By: Schewe, 269 F.3d533, 539—40 (6th Cir. 2001), cert. denied, 535 U.S. 988 (2002); Pet.App. 10a (“[W]e trust that our tribal court counterparts canidentify and punish bad faith by litigants.”).

6 In this regard, we should also note that GCSD has nowabandoned its argument that exhaustion of Tribal remedies wasfutile. See Pet. App. 12—14a (analyzing and rejecting GCSD’sfutility argument).

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C. The Ninth Circuit Correctly Refused toConsider GCSD’s “Contract Location”Argument.

The Petition repeats GCSD’s argument, raised forthe first time on appeal, that the Tribe is exceeding itspower of eminent domain because GCSD’s contractrights are supposedly “extra-territorial.” Even puttingaside the fact that GCSD waived the argument by notmaking it in the District Court, the Ninth Circuit correctly noted that the argument conflates the meritsof the condemnation action with the question of tribaljurisdiction. Pet. App. 15 n.4. The Petitionacknowledges as much, presenting the “issue” as one ofgeneral authority to condemn, not jurisdiction. Pet. at18.

That said, and in any event, this Court has rejecteda blanket application of mobilia sequuntur personam incases involving intangible property, refusing to“substitute a rule for a reason.” Curry v. McCanless,307 U.S. 357, 367 (1939). Curry rejected the blind useof the mobilia doctrine that would have prevented astate from taxing activities related to intangibleproperty, even where the owner was domiciledelsewhere. Jurisdiction was proper, the Courtreasoned, because the non-resident “extend[ed] hisactivities with respect to his intangibles, so as to availhimself of the protection and benefit of the laws ofanother state . . . .” Id.

So too here. In fact, GCSD’s own authorities rejectany reliance on an inflexible mobilia doctrine in casesinvolving condemnation of intangibles. In City ofOakland v. Oakland Raiders, 646 P.2d 835 (Cal. 1982),for example, the California Supreme Court upheld

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Oakland’s condemnation of the Raiders franchise, eventhough the team’s owner was domiciled elsewhere,reasoning that “[t]he location assigned to [intangibleproperty] depends on what action is to be taken withreference to it.” Id. at 844 (citation omitted). The courtconsidered several non-exclusive factors pertaining tothe use of the property, such as the franchise’sprincipal place of business, the site of the team’s homegames, and the primary location of the franchise’stangible property, and found Oakland to havejurisdiction. Id.

To the same effect is Mayor & City Council ofBaltimore v. Baltimore Football Club, 624 F. Supp. 278(D. Md. 1986). There, the court held that Texas v. NewJersey, 379 U.S. 674 (1965) – another case cited byGCSD – did not control in condemnation cases, andrefused to apply the “mechanical [mobilia] rule” todetermine the situs of the Baltimore Colts franchise. Id. at 287. Applying an analysis similar to that in theOakland Raiders case, the court held that Marylandcould not condemn the Colts franchise because it hadceased operating in the state and had moved all of itsoperations and tangible property to Indiana before thecondemnation action was filed. Id.

In short, even if the reach of the Tribe’s power ofcondemnation were presented here (it isn’t), the lawdoes not support GCSD’s myopic argument. The locusof a condemnation action must be evaluated in relationto the type and location of the property to becondemned. This is not a case about bookkeeping tasksin Las Vegas. Rather, what is at issue is GCSD’slicense to build and operate a Tribal asset on Triballand under an agreement with a wholly-owned affiliate

25

of the Tribe – an agreement governed by Hualapai law. The obligations GCSD undertook – operating theSkywalk, maintaining the facilities, supervisingemployees, selling food and merchandise, collectingreceipts, transporting visitors – could not have takenplace anywhere but within the boundaries of theHualapai Reservation. Under any meaningful analysis,the Tribe’s power of eminent domain extends to suchan agreement.7

CONCLUSION

The Court should deny the Petition.

Respectfully submitted,

Mark A. FullerCounsel of Record

Gallagher & Kennedy2575 E. Camelback Road, Suite 1100Phoenix, Arizona 85016-9225(602) 530-8000maf@gknet.com

Counsel for Respondents

7 If GCSD were correct, only the State of Nevada could condemn aninterest in the 2003 Agreement, even though it is a contract witha Tribal entity to build a Tribal asset, governed by Tribal laws, theperformance of which must occur on land located entirely outsideof Nevada and within the territory of a sovereign Indian Nation.Moreover, GCSD’s argument would suggest that it couldarbitrarily and unilaterally change the forum to any jurisdictionof its choosing, or seek to ensure that no such forum would exist,merely by changing domiciles to a different state or anothercountry, even while it continued to manage and operate theSkywalk on the Reservation. At the risk of stating the obvious,none of this makes any sense.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix Hualapai Law & Order Code§ 2.16 . . . . . . . . . . . . . . . . . . . . . . App. 1

App. 1

APPENDIX

Hualapai Ordinance 2.16

Sec. 2.16

A. Definitions

1. Throughout this Section, “public use” meansany of the following:

a. The possession, occupation, use and/orenjoyment of property by the general public or theTribe;

b. The use of property for the creation orfunctioning of utilities;

c. The acquisition of property to eliminate(i) a threat or hazard to public health or safety, (ii) ablight or detriment to an area possessed, occupied,used and/or enjoyed by the general public, or (iii) anobstacle or hindrance, whether tangible orintangible, to the possession, occupation, use and/orenjoyment by the general public of propertybelonging to the Tribe, caused in any such case bythe property in its current condition or by anencumbrance, tangible or intangible, affecting suchproperty, including elimination by means of (a) theremoval of a structure that is or is foreseeablybeyond repair at a reasonable expense or unfit forhuman habitation or use, (b) completion of astructure in order to facilitate human habitation oruse, and/or (c) the removal of the obstacle,hindrance or encumbrance;

App. 2

d. The acquisition of abandoned property; or

e. The public benefit of economicdevelopment, including an increase in tax base, taxrevenues, general revenues, tourism, employmentor general economic health.

2. Throughout this Section, “take,” “taken” and“taking” mean the transfer of ownership or use froma property owner to the Tribe.

3. Throughout this Section, “include,” “included”and “including” denote a partial definition, by wayof illustration and not by way of limitation, andhave the same effect as if the phrase “withoutlimitation” (or any variation thereof) were addedthereto.

4. Throughout this Section, “Tribe” means andrefers to the Hualapai Indian Tribe, a federallyrecognized Indian Tribe, its governmentaldepartments and agencies, and/or its tribally ownedbusinesses. This definition shall not be construed tolimit the definition of “Tribe” or its variants in otherportions of the Hualapai Law and Order Code.

B. Purposes For Which Eminent Domain Mav BeExercised

Subject to the provisions of this Section, the right ofeminent domain may be exercised by the Tribe,through action of the Tribal Council, for the followinguses:

1. All public uses authorized by the governmentof the United States or the Tribe.

App. 3

2. Buildings, grounds and other facilities for theuse of the Tribe.

3. All property interests, tangible or intangible,for any use of the Tribe, or any other use authorizedby the Tribal Council.

4. Sanitary sewage systems, includingcollection, transport, storage, treatment, dispersal,effluent use and discharge.

5. Drainage and flood control systems, includingcollection, transport, diversion, storage, detention,retention, dispersal, use and discharge.

6. Water systems for domestic, industrial,irrigation, tribal government or fire protectionpurposes, including production, collection, storage,treatment, transport, delivery, connection anddispersal.

7. Electrical systems, including generation,storage, transmission, and distribution of electricalpower.

8. Telecommunications systems, including allforms of telecommunications equipment, towers,receivers, transmitters, lines, antennae, and dishes.

9. Highways, streets, roadways and parkingfacilities, including all areas for vehicular use fortravel, ingress, egress and parking.

10. Areas for pedestrian, equestrian, bicycle orother nonmotor vehicle use for travel, ingress,egress and parking.

App. 4

11. Pedestrian malls, parks, performance venues,views, vistas, outlooks and other prospects,recreational facilities, stadiums, other structures,facilities and improvements, and open space areasfor use of members of the public for entertainment,assembly, tourism and recreation.

12. Landscaping, including earthworks,structures, lakes and other water features, plants,trees, and related water delivery systems.

13. Lighting systems.

14. Traffic control systems and devices, includingsignals, controls, markings and signage.

15. Wharves, docks, piers, ramps, marinas,chutes, booms, ferries, bridges, toll roads, byroads,plank and turnpike roads and highways.

16. Railroads, railways, transit lines, and trolleylines, including rights of way, station grounds, pits,yards, sidetracks and other necessary facilities forthe foregoing.

17. Pipe lines used for carrying gas, petroleum,petroleum products or any other gas or liquid.

18. All transportation, transmission andintercommunication facilities of public serviceagencies.

19. Aviation fields.

20. Roads, tunnels, ditches, flumes, pipes anddumping places for working mines, and outlets,natural or otherwise, for the flow, deposit orconduct of tailings or refuse matter from mines, or

App. 5

any place for the flow, deposit or conduct of tailingsor refuse matter from their several mines.

C. Estates in Land Subject to Condemnation

All estates and interests, including rights,assignments, easements, encumbrances and otherinterests, in, on or to land located on or within theboundaries of the Hualapai Reservation are subject tobe taken for public use.

D. Private Property Subject to Condemnation

In addition to the estates and interests in land insubsection C, estates and interests in private propertywhich may be taken includes:

1. All property located on or within theboundaries of the Hualapai Reservation belongingto any person.

2. All property subject to the jurisdiction of theTribe having an effect on the Hualapai Reservation,the Tribe or a Hualapai Tribal Member.

3. All tangible or intangible property, includingintangibles such as contracts, franchises, licenses,leases, patents, trade routes, and other types ofproperty, including contracts pertaining to thepossession, occupation, use, design, development,improvement, construction, operation and/ormanagement of property, including property ownedby the Tribe.

4. Property appropriated to public use.

5. All other classes of private property notenumerated may be taken for public use.

App. 6

E. Right of Tribe to Enter, and Examine, Survey,Inspect or Inventory

1. Where land is required for public use, theTribe, through its agent(s), may enter upon theland, and make examinations, surveys and mapsthereof.

2. Where property other than land is requiredfor public use, the Tribe, through its agent(s), maysubject the property to examination, inventory orinspection, including any property that is associatedwith a contract, franchise, license, lease, patent,trade route or other type of property which issubject to being taken. The person in control of suchproperty shall cooperate with the Tribe, or itsagent(s), in making the property available forexamination, inventory or inspection.

3. A person authorized by the Tribal Council toseek to acquire property for any of the public usesauthorized by this Section is an agent of the Tribe.The Tribe, or its agent(s), may exclude otherpersons, including the person in control of theproperty, from the property or portions thereof asand to the extent deemed necessary or appropriateby the Tribe, or its agent(s), to facilitate anyexamination, survey, mapping, inventory orinspection.

4. No one shall have a cause of action againstthe Tribe, or its agent(s), for exercising theauthority granted under this subsection.

5. The Tribal Council may, but is not requiredto, enforce this subsection through judicial processor its inherent contempt power. The Tribal Council

App. 7

is not required to obtain a writ, subpoena or otherjudicial process prior to exercising its rights underthis subsection. If deemed necessary or appropriate,the Tribal Council may, but is not required to, issueone or more subpoenas and/or enlist the assistanceof the Hualapai Nation Police Department inexercising its rights under this subsection.

F. Actions for Condemnation; Declaration of Taking

1. All actions for condemnation shall be broughtas other civil actions in the Hualapai Tribal Court.

2. At the time of filing the complaint, or at anytime after filing the complaint, the Tribe may filewith the tribal court a declaration of taking, signedby the Tribal Chairperson, the TribalVice-Chairperson, or the Tribal Council’s authorizedagent, declaring that the property described in theComplaint is taken for the use of the Tribe.

3. The declaration of taking shall contain orhave annexed to it:

a. A statement of the public use for whichthe property is taken, which declaration may takethe form solely of citing the pertinent category orcategories of public use set forth in subsection A ofthis Section;

b. A description of the property sufficient toidentify it;

c. A statement of the estate or interest inthe property taken, which statement may beidentical or similar to the description providedpursuant to paragraph 3(b) of this subsection; and

App. 8

d. A statement of the amount of moneyestimated by the Tribe to be just compensation forthe property taken.

e. The declaration of taking is not requiredto, and need not, contain or have annexed to it anyother statement or other material.

4. On filing the declaration of taking:

a. title to the estate or interest specified inthe declaration of taking shall vest in the Tribe, andsuch vesting shall include that, if the property is anestate or interest in an intangible such as acontract, franchise, license, lease, patent, traderoute or other types of property, the Tribe shall bethe party thereto in the full place and stead of thedefendant, to the full extent as if the Tribe and notthe defendant were the original signator or partythereto, and the defendant shall no longer be aparty thereto;

b. the property is condemned and taken forthe use of the Tribe;

c. the parties in possession of the propertyshall be deemed to have surrendered possession tothe Tribe, and any attempt by such parties toremain in possession of the property or otherwise toexert control over or with respect to the propertyshall be deemed a trespass against the Tribe; and

d. the right to just compensation vests in theperson(s) entitled to just compensation.

5. The Court shall not require the Tribe to posta bond or deposit any money as a condition of filing

App. 9

a declaration of taking or initiating a condemnationproceeding; however, if the Tribal Council, in itssole and absolute discretion, deems a depositnecessary or appropriate under the circumstances,the Tribe may elect to deposit in the court theamount of estimated compensation listed in thedeclaration of taking.

a. The making of a deposit shall not be acondition to the effectiveness of matters set forth insubsections F(4)(a) through (4)(d) of this Section.

b. The absence of a deposit at the time of thefiling of the declaration of taking shall not precludethe Tribe from subsequently electing to make sucha deposit.

6. Within ten (10) days of the filing of thedeclaration of taking, the defendant may file amotion to dismiss the condemnation action anddeclaration of taking solely for the purpose ofchallenging the validity of the taking as not beingfor a public use.

a. The motion to dismiss and hearing on themotion to dismiss shall be limited to a judicialdetermination on whether the taking is for a publicuse. The motion to dismiss shall not contain and thecourt shall not adjudicate any other challenge orissue at this stage of the proceeding, including anyclaim that the defendant is not a real party ininterest, that the defendant does not hold title toany estate or interest in the property, or that thereare other persons who might hold an estate orinterest in the property or might otherwise beinterested in the taking.

App. 10

b. Within twenty (20) days of the filing of themotion to dismiss, the Tribe may respond to themotion to dismiss.

c. The court shall set a hearing on thematter, which hearing shall be held within forty(40) days of the filing of the declaration of taking,and the court shall rule on the matter within sixty(60) days of the filing of the declaration of taking.The taking shall be presumed in all cases to havebeen for a public use. The defendant(s) shall havethe burden of proving and establishing by clear andconvincing evidence facts rebutting thepresumption.

d. During the period of defendant(s)’challenge to the taking as not being for anauthorized public use, the Tribe shall hold adefeasible title to the property listed in thedeclaration of taking. The Tribe shall have the fullright and authority to possess and use the property,including acting as the party to the contract orother intangible property, described in thedeclaration of taking. The Tribe’s right andauthority to possess and use the property, includingacting as the party to the contract or otherintangible property, described in the declaration oftaking shall not be delayed or prevented throughany court action.

e. If, after a hearing, the court determinesthat the taking is for a public use, fee simpleabsolute title to the property described in thedeclaration of taking shall vest in the Tribe and, inthe case of a contract or other intangible property,the Tribe shall be the party thereto in the full

App. 11

placement and stead of the defendant(s), all asprovided in paragraph 4(a) of this subsection, andthe right to just compensation shall vest in thedefendant(s).

f. No subsequent proceedings shall affectthe title acquired by the Tribe to the property, or itsstatus as a party to the contract or other intangibleproperty, described in the declaration of taking.

7. Just compensation shall be determined andawarded as prescribed in subsection L of thisSection.

a. If compensation finally awarded is morethan the amount of money, if any, deposited in thecourt at the time of the filing of the declaration oftaking, the court shall enter judgment against theTribe in the amount of the deficiency.

b. If compensation finally awarded is lessthan the amount of money deposited in the court atthe time of the filing of the declaration of taking,the court shall immediately refund the excess to theTribe.

8. If the Tribe elected to make a deposit asprovided in subsection F(5) of this Section, onapplication of the defendant, the court may orderthat any part of the money deposited in the court, ifany, be paid immediately to the defendant ascompensation for the taking, subject to the followingconditions:

a. The application must contain (i) astatement of the defendant’s interest in theproperty described in the declaration of taking, how

App. 12

much money the defendant is seeking ascompensation for that interest, a representationthat the defendant has not conveyed or becomeobligated to convey the defendant’s interest in suchproperty to any other person, and the names andaddresses of all other persons having an interest insuch property, and (ii) an indemnity in form andsubstance satisfactory to the Tribe in its sole andabsolute discretion regarding the true and completenature of such statement.

b. In addition to the application, thedefendant shall file with the court a stipulation thatthe money applied for constitutes full and justcompensation for the taking.

c. Payment of the money to the defendantshall constitute a complete settlement of the casewith respect to that defendant, a fullrelinquishment of that defendant’s claims arising inconnection with the action or proceeding and of thatdefendant’s right, title and interest in and to theproperty described in the declaration of taking, andan abandonment of that defendant’s defenses to theaction or proceeding, other than the right to the justcompensation described Section 2.16(F)(7)(b).

d. Any other defendant having an interest inthe property described in the declaration of takingmay contest the amount of compensation sought bythe defendant filing an application for an award outof the deposited funds. The court shall determinethe respective rights of the defendants seekingcompensation for the taking.

App. 13

9. On the filing of the declaration of taking, thecourt may make just and equitable orders, notinconsistent with the other provisions of thissubsection, with respect to encumbrances, liens,rents, taxes, assessments, insurance, and othercharges.

10. Any information contained in the declarationof taking and the amount of money, if any,deposited by the Tribe into the court shall not beintroduced in evidence or used to the prejudice ofany party on the trial of the action.

11. In the event of any inconsistency or conflictbetween subsection F of this Section and any otherprovision of this Section, subsection F shall controland govern the matter.

G. Complaint

The complaint shall set forth:

1. The Tribe and, if applicable, the name of theTribe’s agent(s), as plaintiff.

2. The names of all persons having an interestin the property, if known, or a statement that theyare unknown, as defendants.

3. A statement of the right of the Tribe,including a statement of the public use for whichthe property is sought, which statement may takethe form solely of citing the pertinent category orcategories of public use set forth in subsection A ofthis Section.

4. A general description of the property subjectto condemnation sufficient to identify it.

App. 14

5. A statement of the estate or interest in theproperty taken, which statement may be identicalor similar to the description provided pursuant toparagraph 4 of this subsection.

6. The Tribe is not required to, and need not,plead or prove any other matter, including that thepublic use is “necessary.”

H. Joint or Separate Actions; Consolidation

All separate property required for the same public usemay be included in the same or separate proceedings,at the election of the Tribe, but the court mayconsolidate or separate them for convenience of theparties.

I. Summons; Contents; Service

1. Upon receiving the Complaint for filing, theclerk of the court shall follow the procedures forissuance of a summons and notice of hearingprescribed by Sections 4.4 and 4.5 of this Code.

2. Notice to defendants shall include astatement for them to appear and show cause whythe property described should not be condemned asprayed for in the Complaint.

3. Failure of the clerk of the court to follow anyof the specialized procedures in this Section shallnot constitute grounds for dismissal of the action oraffect the consequences of a declaration of taking;however, the court may remedy the procedural errorin a manner equitable to the parties.

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J. Right to Defend Action

1. All persons occupying, or having or claimingan interest in any of the property described in theComplaint, or in the damages for the taking thereof,though not named, may appear, plead and defendsuch interest in the property or damages as ifnamed in the complaint.

2. This Section provides the sole and exclusivemeans to defending one’s interest in any of theproperty described in the Complaint. The Courtshall issue no injunction, stay or other order, orprovide any right or remedy not provided for in thisSection.

K. Powers of Court; Precedence over Other Actions

1. No pro tem judge shall hear or adjudicateactions arising under this Section. Only judgesappointed to full-time positions on the HualapaiTribal Court may adjudicate actions arising underthis action.

2. The court shall hear and determine alladverse or conflicting claims to the property soughtto be condemned and the claim of damages therefor,and shall determine the respective rights ofdifferent parties seeking condemnation of the sameproperty.

3. The court shall, at the request of any party,give the condemnation action precedence over othercivil actions.

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L. Ascertainment and Assessment of Value, Damagesand Benefits

1. The court shall ascertain and assess:

a. The value of the property sought to becondemned.

b. The value of all improvements on or to theproperty, if applicable.

c. The value of each and every separateestate or interest in the property.

d. The value of each parcel or portion, andeach separate estate or interest in the parcel orportion, if the property consists of different parcelsor portions.

e. The damages that will accrue to theportion of the property not sought to be condemnedby reason of its severance from the portion soughtto be condemned, if the property sought to becondemned constitutes only a part of a larger whole.

f. How much the portion not sought to becondemned and each estate or interest in suchportion will be benefited, if at all, by thecondemnation proposed by the Tribe. If the benefitis equal to the damages assessed, the owner of theparcel shall be allowed no compensation except forthe value of the portion taken. If the benefit is lessthan the damages so assessed, the benefit shall bededucted from the damages, and the remaindershall be the only damages allowed in addition to thevalue.

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g. Any effect on the value of the property dueto the condition of improvements on the property, orof the defendant’s performance or failure to performall of its obligations pertaining to or arising inconnection with the property

2. As far as practicable, compensation shall beassessed for each source of damage separately. Inascertaining and assessing value, the court shalltake into all of the applicable items listed insubsection L(1) of the Section.

3. Value shall be determined by ascertainingthe most probable price estimated in terms of cashin United States dollars or comparable marketfinancial arrangements that the property wouldbring if exposed for sale in the open market, withreasonable time allowed in which to find apurchaser, buying with knowledge of all of the usesand purposes to which it was adapted and for whichit was capable.

4. Defendant(s) shall have the burden ofproving the amount of just compensation.

M. Accrual of Right to Compensation and Damages;Limitation

1. For the purpose of assessing compensationand damages, the right to compensation anddamages shall be deemed to accrue at the date ofthe summons, and its actual value at that date shallbe the measure of compensation and damages.

2. If there was a declaration of taking filed, thecompensation and damages awarded shall drawinterest from the date of the declaration of taking at

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the weekly average one-year constant maturity(nominal) Treasury yield, as published by theUnited States Federal Reserve System. Interestshall not be allowed on as much of the compensationas has been deposited into the court at the time ofthe filing of the declaration of taking. Amountsdeposited with the court shall not be charged withcommissions, fees, or poundage.

3. No improvements placed upon or made inconnection with the property, and no performanceby defendant of any of its obligations pertaining toor arising in connection with the property,subsequent to the date of service of the summons or,if later, filing of the declaration of taking shall beincluded in the assessment of compensation ordamages.

N. Payment of Compensation; Effect of Failure to Pay

1. Payment of compensation and damages maybe made to a defendant or defendants entitledthereto, or the money may be deposited with thecourt and distributed to the defendant ordefendants entitled thereto.

2. If the Tribe does not pay the compensationand damages ordered by the court within onehundred eighty (180) days of such an order, upon ashowing to that effect, the court shall set aside andannul the entire proceedings, and restore possessionand title of the property to defendant or defendants,if possession has been taken by the Tribe.

3. The Tribe shall be granted extensions of timefor payment of compensation for good cause shown.

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O. Final Order of Condemnation; Vesting of Property

1. When the final judgment has been satisfied,the court shall make a final order of condemnation,describing the property condemned and thepurposes of the condemnation.

2. Upon issuance of the final order ofcondemnation, all interest in the property describedshall vest in the Tribe for the purposes thereinspecified.

3. This subsection does not apply when theTribe has filed a declaration of taking.

P. Possession by the Tribe After Judgment or PendingAppeal; Receipt of Payment as Abandonment;Custody of Money Paid into Court; Costs of NewTrial

1. Unless a declaration of taking has been filed,at any time after judgment is entered, or pendingan appeal from the judgment, when the Tribe haspaid into court for defendant or defendants the fullamount of the judgment, and such other amounts asrequired by the court as a fund to pay furtherdamages and costs which may be recovered in theproceedings, as well as all damages that may besustained by defendant or defendants if for anycause the property is not finally taken for publicuse, the court may, upon notice of not less than tendays, authorize the Tribe, if already in possession,to continue therein (including, in the case of acontract or other intangible property, to continue asthe party thereto in the full place and stead of thedefendant(s)), or if not, then to take possession ofand use the property (including, to act as the party

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to and otherwise perform such contract or otherintangible property) until final conclusion of thelitigation.

2. The defendant or defendants who are entitledto the money paid into court upon any judgmentmay demand and receive the money at any timethereafter upon an order of the court. The courtshall, upon application, order the money so paidinto court delivered to the party entitled theretoupon his filing with the Court either a satisfactionof the judgment or a receipt for the money, as wellas a stipulation fully relinquishing that defendant’sclaims arising in connection with the action orproceeding and that defendant’s right, title andinterest in and to the property, and abandoning alldefenses to the action or proceeding except as to theamount of damages to which he may be entitled if anew trial is granted. Such payment shall be deemedan abandonment of all defenses and claims, exceptthe party’s claim for greater compensation.

3. The money paid into court on final judgmentmay be placed by order of court in the custody of theclerk to be held or disbursed upon order of court.

4. When a new trial is granted upon applicationof a defendant, and he fails upon the trial to obtaingreater compensation than was allowed upon thefirst trial, the costs of the new trial, plus a penaltyin the amount of thirty percent (30%) of such costs,shall be taxed against him.

Q. Costs and Fees

Except as provided in Section 2.16(P)(4), each partyshall be responsible for its own costs and fees, and no

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party shall be entitled to recover such costs and feesfrom any other party.

R. Dismissal of Condemnation Action

1. If the Tribe causes a condemnation actionunder this article to be dismissed without prejudicebefore payment of the compensation and damagesawarded the defendant by the court, the Tribe shallnot initiate any eminent domain proceeding withrespect to the same property for the same or arelated project for at least one year after the date ofthe verdict or judgment.

2. At any time after service of the Complaintand before the court renders judgment on the issuesof compensation and damages, the Tribe maydismiss the action without prejudice upon motion tothe court.

3. The Tribe may not dismiss the condemnationaction if a declaration of taking has been filedunless the defendant(s) have agreed to the justcompensation offered by the Tribe as a settlementof the action or the Tribe revokes the declaration oftaking prior to the defendant(s) receiving justcompensation.

S. Applicability

If a conflict arises between this Section and any otherlaw, this Section controls.

T. Severability

If any provision of this Section or its application to anyperson or circumstance is held invalid, that invaliditydoes not affect other provisions or applications of this

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Section that can be given effect without the invalidprovision or application, and to this end the provisionsof this Section are severable.

U. Sovereign Immunity

Nothing in this Section shall be construed as a waiverof the Hualapai Tribe’s inherent sovereign immunity,or any other immunity or privilege.