the honorable robert j. bryan · case no.: 3:16-cv-05566-rjb plaintiff stillaguamish tribe of...

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STILLAGUAMISH RESPONSE IN OPP. TO DEFS. MOT. FOR SUMM. J. (Case No. 3:16-cv-05566) 69519041V.1

KILPATRICK, TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700

SEATTLE, WA 98101 (206) 467-9600

The Honorable Robert J. Bryan

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT TACOMA

STILLAGUAMISH TRIBE OF INDIANS, a federally-recognized Indian tribe,

Plaintiff,

v.

STATE OF WASHINGTON; ROBERT W. FERGUSON, in his official capacity as Attorney General of Washington;

Defendants.

Case No.: 3:16-cv-05566-RJB

PLAINTIFF STILLAGUAMISH TRIBE OF INDIANS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

NOTE ON MOTION CALENDAR: AUGUST 4, 2017

Case 3:16-cv-05566-RJB Document 33 Filed 07/21/17 of 21

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TABLE OF CONTENTS

Page

ARGUMENT .................................................................................................................................. 2

A. There Has Been No Express Waiver of the Tribe’s Sovereign Immunity ..................... 2

1. No Tribal Board Resolution Ever Mentions the Agreement .......................................... 3

2. The 1998 Resolution Has Nothing to Do With the Agreement ...................................... 4

3. The 2004 Resolution Relates to a 2003 Flood and Has Nothing to Do With the Agreement ...................................................................................................................... 6

4. The 1998 and 2004 Resolutions Do Not Provide the Requisite Waiver ......................... 7

B. Claim and Issue Preclusion Are Unavailable ................................................................. 7

1. Judge Jones’s Comment is Not Entitled to Preclusive Effect ......................................... 8

a. The State Misconstrues the Ultimate Issue in Pilchuck Grp. II and In this Case ....... 9

b. The Tribe Litigated The Effect of An Unauthorized Waiver of Sovereign Immunity in Pilchuck Grp. II and Won ................................................... 11

c. The Court’s Finding In Pilchuck Was Not A “Necessary Part of The Judgment” ... 12

2. The Same Basis for Prevailing on Sovereign Immunity That Was Determinative in Pilchuck Grp. II Is Determinative in This Case ........................................................... 13

C. The Court Should Sua Sponte Sanction the State ......................................................... 14

CONCLUSION ............................................................................................................................. 15


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TABLE OF AUTHORITIES

Page

FederalCases

Amerind Risk Management Corp. v. Malaterre 633 F.3d 680 (8th Cir. 2011) ...................................................................................................... 2

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

Barber v. Miller 146 F.3d 707 (9th Cir. 1998) .................................................................................................... 14

Bobby v. Bies 556 U.S. 825 (2009) .................................................................................................................. 12

Cook v. AVI Casino Enters., Inc. 548 F.3d 718 (9th Cir. 2008) ...................................................................................................... 2

Cooter & Gell v. Hartmarx Corp. 496 U.S. 384 (1990) .................................................................................................................. 14

Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t 533 F.3d 780 (9th Cir. 2008) ...................................................................................................... 1

Estate of Blue v. Cnty. of L.A. 120 F.3d 982 (9th Cir. 1997) .................................................................................................... 14

Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two 249 F.3d 1132 (9th Cir. 2001) .................................................................................................... 1

Impact Energy Res., LLC v. Salazar 693 F.3d 1239 (10th Cir. 2012) .................................................................................................. 1

In re Associated Vintage Grp., Inc. 283 B.R. 549 (B.A.P. 9th Cir. 2002)........................................................................................... 8

Kamilche Co. v. United States 53 F.3d 1059 (9th Cir. 1995), opinion amended on reh'g sub nom. Kamilche v. United States 75 F.3d 1391 (9th Cir. 1996) ...................................................................................................... 9

Littlejohn v. United States 321 F.3d 915 (9th Cir. 2003) ...................................................................................................... 9

Memphis Biofuels v. Chickasaw Nation Industries 585 F.3d 917 (6th Cir. 2009) ...................................................................................................... 2


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N. Arapaho Tribe v. Harnsberger 697 F.3d 1272 (10th Cir. 2012) .................................................................................................. 7

Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla. 498 U.S. 505 (1991) .................................................................................................................... 7

Parklane Hosiery Co., Inc. v. Shore 439 U.S. 322 (1979) .................................................................................................................. 12

Parmelee Transp. Co. v. United States 351 F.2d 619 (1965) .................................................................................................................. 13

Resolution Trust Corp. v. Keating 186 F.3d 1110 (9th Cir. 1999) .................................................................................................. 12

Sanderlin v. Seminole Tribe of Florida 243 F.3d 1282 (11th Cir. 2001) .............................................................................................. 2, 3

Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978) ...................................................................................................................... 2

Segal v. American Tel. & Tel. Co., Inc. 606 F.2d 842 (9th Cir. 1979) .................................................................................................... 12

Shapley v. Nevada Bd. of State Prison Comm'rs 766 F.2d 404 (9th Cir. 1985) ...................................................................................................... 8

Townsend v. Holman Consulting Corp. 929 F.2d 1358 (9th Cir. 1990) .................................................................................................. 14

United States v. Mendoza 464 U.S. 154 (1984) .............................................................................................................. 8, 12

World Touch Gaming, Inc. v. Massens Mgmt, L.L.C. 117 F. Supp. 2d 271 (N.D. N.Y. 2000) ....................................................................................... 2

FederalRules

Federal Rules of Civil Procedure Rule 11 (Advisory Committee Notes (1993)) ......................... 14

SecondarySources

18 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. (3rd ed) ......................... 8, 10, 12

Restatement (Second) of Judgments § 27 (1982) ......................................................................... 13

Restatement (Third) of Agency § 2.01 (2006) .............................................................................. 11


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STILLAGUAMISH RESPONSE IN OPP. TO DEFS. MOT. FOR SUMM. J. – Page 1 (Case No. 3:16-cv-05566) 69519041V.1


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RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Stillaguamish Tribe of Indians (“Tribe”) hereby responds in opposition to the

State Defendants’ Motion for Summary Judgment, filed on June 27, 2017 (Dkt. # 26).

The State’s Motion is a naked money grab from the Tribe. Seeking to hold the Tribe

financially responsible for the State’s decision to voluntarily settle a third-party tort lawsuit for

$50 Million, and despite months of discovery, the State does not point to a single resolution of

the Tribe’s Board of Directors expressly approving or even mentioning the 2005 Salmon Project

Funding Agreement (“Agreement”), let alone expressly waiving the Tribe’s sovereign immunity

and authorizing Mr. Stevenson to sign the Agreement. Instead, the State relies on two prior

Board resolutions from 1998 (seven years before the Agreement was signed) and 2004 (one year

before the Agreement was signed) to boldly argue that it is “beyond dispute that the express

waiver of sovereign immunity in the [Agreement] was authorized and, therefore, valid.”

Resp. at 3. This statement could not be further from the truth. Neither resolution mentions or

relates to the Agreement. Neither resolution expressly authorized a waiver of sovereign

immunity. And, contrary to the State’s effort to re-write the 1998 resolution and brazenly

misrepresent the 2004 resolution, neither resolution authorized anyone to sign the Agreement.

Nor does collateral estoppel save the State.

Where, as here, parties have filed cross-motions for summary judgment, “[e]ach motion

must be considered on its own merits.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside

Two, 249 F.3d 1132, 1135-36 (9th Cir. 2001). Courts “review each motion . . . separately, giving

the nonmoving party for each motion the benefit of all reasonable inferences.” Ctr. for Bio-

Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008); see

Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1244 (10th Cir. 2012) (“The party asserting

jurisdiction [here the State] bears the burden of proving that sovereign immunity has been

waived.”). As set forth below, the Tribe is entitled to judgment in its favor as a matter of law as


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there are no genuine material facts in dispute that neither the purported waiver of sovereign

immunity nor any provision of the Agreement is enforceable against the Tribe.

This Response is supported by the Memorandum of Points and Authorities below, the

Second Declaration of Rob Roy Smith, and exhibits thereto, Second Declaration of Patrick

Stevenson, the Declaration of Eric White, and the [Proposed] Order filed herewith.

ARGUMENT

A. There Has Been No Express Waiver of the Tribe’s Sovereign Immunity

The Tribe and the State agree that waivers of tribal sovereign immunity “cannot be

implied but must be unequivocally expressed” in the manner specified by the applicable tribal

governing documents. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Cook v. AVI

Casino Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008); Resp. at 14. Whether any individual

tribal official or employee has authority to waive a tribe’s sovereign immunity is determined by

tribal law. E.g., Memphis Biofuels v. Chickasaw Nation Industries, 585 F.3d 917, 922 (6th Cir.

2009) (finding a waiver of sovereign immunity ineffective when the tribe’s charter required that

the governing body pass a resolution waiving immunity, and no such resolution was passed; the

unauthorized person signing a provision purporting to waive sovereign immunity on behalf of a

tribal corporation, while clear, was invalid because the person who signed the waiver did not

have the authority to waive the tribe’s immunity under the terms of the corporate charter), cited

with approval Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680, 688 (8th Cir. 2011)

(finding, in absence of evidence that Board of Directors ever adopted a resolution waiving

immunity, no waiver of immunity); Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282,

1287-88 (11th Cir. 2001) (no effective waiver of sovereign immunity without a resolution from

the tribal council doing so, as required by tribal law); World Touch Gaming, Inc. v. Massens

Mgmt, L.L.C., 117 F. Supp. 2d 271, 275 (N.D. N.Y. 2000) (waiver of sovereign immunity only

valid if, pursuant to the tribe’s constitution and code, the waiver is authorized by tribe’s

governing council).


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There is no dispute that there is no Tribal Board resolution or other official Board action

(let alone a discussion) expressly authorizing Mr. Stevenson to waive the Tribe’s sovereign

immunity in the Agreement or to sign the Agreement. Dkt. # 29 at 2 (Yanity Decl., ¶¶ 5-6);

Dkt. # 31 at 1-2 (Connolly Decl., ¶¶ 2-3). Without any such authorization, there is no valid

waiver. See 42 C.J.S. Indians, at § 22 (Online Ed. 2008) (“A tribal official cannot waive the

tribe’s immunity unless authorized to do so by tribal law”); see also Sanderlin, 243 F.3d at 1287-

88 (without a resolution authorizing a tribal official to do so, the tribal official did not have

authority to waive the tribe’s sovereign immunity); Attorney’s Process and Investigation Serv.,

Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 945-46 (8th Cir. 2010) (same).

Acknowledging, and seeking to avoid, the fact that there is no Tribal Board resolution or

other official Board action specifically addressing the Agreement, the State argues in its Motion

that the Tribe’s immunity was nonetheless waived as to the 2005 Agreement because: (1) the

Tribe’s Board approved other contracts without clear waiver language in resolutions before

2010; and (2) a 1998 Resolution and a 2004 Resolution of the Tribe’s Board somehow effected

the necessary waiver of the Tribe’s immunity in the 2005 Agreement. The State is wrong on

both the facts and the law, and their argument fails a straightforward textual analysis of the two

resolutions.

1. No Tribal Board Resolution Ever Mentions the Agreement

The State’s first attempt to get around the absence of a resolution mentioning the

Agreement is to argue that the Tribal Board “routinely” approved transactions before 2010 that

waived sovereign immunity without those resolutions being memorialized in the authorizing

Tribal document. Mot. at 5, 16-17. It is true that the eight resolutions provided by the State do

not expressly reference the waivers of sovereign immunity in those contracts that were being

approved by the Board. However, the State misses the point. For these contracts—unlike the

Agreement—there is a Tribal Board resolution. In other words, these contracts—unlike the

Agreement—were brought to the Tribal Board for consideration at official Tribal Board

meetings. No such resolution exists for the Agreement and there is no evidence that the


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Agreement was ever discussed by the Board. Dkt. # 29 at 2 (Yanity Decl., ¶¶ 5-6); Dkt. # 31

at 1-2 (Connolly Decl., ¶¶ 2-3). That resolutions exist for these other contracts supports the

Tribe’s position as to the invalidity of the Agreement.

For every Tribal Board resolution that approves a contract with a waiver of sovereign

immunity without mentioning waiver in the resolution, there are examples of resolutions before

2005 that expressly address a waiver. Dkt. # 32-13 (Smith Decl., Ex. M at 3, 5) (resolution

providing a limited waiver of sovereign immunity to enforce rights arising under a Note);

Dkt. # 32-14 (id., Ex. N at 3) (providing limited waiver of sovereign immunity to the extent

specified within the Resolution); Dkt. # 32-16 (id., Ex. P at 3) (resolution providing a limited

waiver of sovereign immunity in an operating agreement); Dkt. # 32-17 (id., Ex. Q at 3)

(resolution providing a limited waiver of sovereign immunity as stated in two terms of an

operating agreement). The foregoing makes clear that, despite not having legal counsel, the

Tribe’s Board approved contracts with waivers of immunity up to and including the time of the

2005 Agreement—yet, there is no Tribal Board resolution ever addressing the Agreement.

There is no genuine issue of material fact that the Tribe did not waive its inherent

sovereign immunity as to the State in the Agreement because there is no resolution from the

Tribal Board concerning the Agreement and no evidence that the Board considered it.

2. The 1998 Resolution Has Nothing to Do With the Agreement

Factually, the State’s arguments fail. The State argues that Resolution 1998/41’s

direction that “Snohomish County and the Stillaguamish Tribe are hereby designated as the lead

entities to submit any such habitat restoration project lists and to seek lead entity grants that may

be available to fulfill ESHB 2496 requirements” means that the Tribe “authorized” Mr.

Stevenson signing the 2005 Agreement and waiving the Tribe’s sovereign immunity therein.

Mot. at 17-19 (emphasis added). This argument that the resolution is an unfettered issuance of

authority defies both ordinary principles of textual interpretation and common sense.

First, “seeking grants” is not remotely the same as authorizing or approving a specific

contract, or approving a signature on such a contract by a Tribal staff member. To “seek” means


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to go in search of. By contrast, approval or authorization represents a delegation of legal

authority to act. The Tribe’s Board knew how to delegate authority to a Tribal official to sign

contracts; it did not do so with respect to the Agreement. See, e.g. Dkt. # 32-19 (Smith Decl.,

Ex. S). A reading of Resolution 1998/41 in the light most favorable to the non-movant Tribe

indicates that the resolution, at best, contemplated that any specific grant that was found would

need to be brought back to the Tribe’s Board for approval at that time. As to this Agreement, it

is undisputed that such approval never happened.

Second, contrary to the State’s argument, the resolution does not authorize the

Chairperson, Vice-Chairperson or Executive Director to execute the grants; rather, the plain

language of the Resolution only directs that Chairperson, Vice-Chairperson or Executive

Director “negotiate and execute this resolution.” Compare Mot. at 3, 9, 18-19 with Dkt. # 27-14

at 3 (emphasis added) and Dkt. # 27-11 at 3 (before the “negotiate and execute this resolution”

language, Resolution 2006/006 includes a specific “approval” for the for the Vice-Chairperson to

“sign[] said contract agreement”). This language simply means that these persons were to certify

the resolution, nothing more. Declaration of Eric White ¶ 3 (filed herewith). The 1998

Resolution says nothing about authorizing anyone to execute the grants or execute contracts to

actually obtain grant funding. The State’s selective use of quotations to argue that Mr.

Goodridge, Jr.’s direction to Mr. Stevenson that he sign the Agreement in 2005 was somehow

specifically approved by this 1998 Resolution fails. The State cannot get away with re-writing

the “Be it further resolved” clause of the Resolution in an effort to change the plain language of

the Resolution. Mot. at 3, 11; Dkt. # 24-14 at 3.

Third, it strains credulity to believe that, in 1998, the Board could have “anticipated” the

specific 2005 Agreement to construct the crib wall that was signed by Mr. Stevenson seven years

later and/or granted some implicit prospective waiver of immunity. Mot. at 3. The title of this

Resolution is “WRIA 5”, which represents the entire 1774-km watershed; it has nothing to do

with specific salmon program recovery projects or the Steelhead Haven area. Dkt. # 27-14 at 1.


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That the Tribe is interested in salmon restoration throughout the Stillaguamish Watershed is both

obvious and startlingly irrelevant to this resolution of this case.

The State’s construction conveniently contorts the resolution to yield the harsh result of

granting the State a $50 million windfall based on their voluntary settlement of a third-party tort

lawsuit 18 years after this resolution was passed by the Tribe. Simply put, the State is not

entitled to summary judgment relating to a waiver of sovereign immunity by the Tribe on the

basis of the 1998 resolution.

3. The 2004 Resolution Relates to a 2003 Flood and Has Nothing to Do With the Agreement

The State argues that Resolution 2004/65 gave Mr. Stevenson the explicit authorization

to sign the Agreement because the Agreement constitutes an example of the emergency funding

contemplated by the express language of the 2004 Resolution. See Mot. at 3, 10-12, 19-20. This

argument is frivolous and crosses into Rule 11 territory. See Part C infra. Resolution 2004/65

has absolutely nothing to do with either the Agreement or salmon recovery more generally.

The State has hen-pecked discovery to intentionally take Resolution 2004/65 out of

context. Resolution 2004/65 was produced by the Tribe as Bates No. SIT 012037-38. See Dkt.

# 27-17. The State only uses and provides to the Court the first two pages of the eight page

document produced during discovery. 2d Smith Decl. ¶ 6, Ex. A. The additional documents

following these two pages, ignored by the State and omitted from the Motion, explain that

Resolution 2004/65 relates to an October 2003 major flood event and had absolutely nothing to

do with the Agreement or even salmon funding. Id. The only “federal and/or state emergency or

disaster relief assistance funds” that the Board authorized Mr. Stevenson to apply for related

solely to the flood event in October 2003 that damaged Tribal property. Id.; 2d Stevenson

Decl. ¶ 4 (“In the fall of 2003 we had a huge flood in the lower river. Our office was completely

surrounded by water. It ruined the crawlspace and insulation, and caused damage to our

building. The flooding was declared a disaster and FEMA met with the Tribe to discuss


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applying for flood damage relief.”); see also https://www.fema.gov/disaster/1499 (last visited,

June 29, 2017). The Resolution has absolutely nothing to do with salmon habitat restoration.

Once put in its proper context (which the State knew or should have known), Resolution

2004/65 is completely irrelevant and does not provide any authorization relating to the 2005

Agreement at all. The State’s Motion, relying in large part on this resolution, fails badly.

Neither the 1998 Resolution nor the 2004 Resolution have any bearing on the sole question

before the Court: whether the purported waiver of sovereign immunity in the 2005 Agreement is

enforceable against the Tribe. The answer to this question remains a resounding ‘no’.

4. The 1998 and 2004 Resolutions Do Not Provide the Requisite Waiver

The State’s legal arguments tied to the 1998 and 2004 Resolutions fare no better. As a

matter of law, even if these two resolutions were connected to the Agreement, which they are

not, neither resolution provides the required “unequivocally expressed” waiver of sovereign

immunity required by Supreme Court precedent.

To relinquish its immunity, a tribe’s waiver must be “clear.” Oklahoma Tax Comm'n v.

Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991); N. Arapaho Tribe v.

Harnsberger, 697 F.3d 1272, 1281 (10th Cir. 2012) (waiver must be clear, not implied, and

unequivocally expressed). As discussed above, neither resolution clearly addresses the

Agreement at issue nor do the resolutions clearly waive the Tribe’s sovereign immunity. In fact,

the resolutions relied upon by the State are silent as to both. As a matter of law, the State fails to

meet the high burden of proving the required express, unequivocal, unmistakable, and

unambiguous waiver of the Tribe’s immunity through the two resolutions it offers. The State is

not entitled to summary judgment on the basis of these two resolutions.

B. Claim and Issue Preclusion Are Unavailable

Next, the State argues that it is entitled to summary judgment because the Tribe is

precluded from relying on Chairman Yanity’s statement that the Tribe has a long-standing policy

pertaining to granting waivers of sovereign immunity as a result of Judge Jones’s order in

Pilchuck Grp. II. Mot. at 14-16. There are numerous problems with this argument: (1) the State


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misunderstands how claim and issue preclusion work, as Judge Jones’s statement is not entitled

to either; (2) whether this policy exists or was followed does not determine the outcome of this

case anymore than it did in Pilchuck Grp. II; and, (3) the State ignores the salient fact that,

despite the Court’s disagreement with Chairman Yanity’s assertion, the Tribe prevailed on the

claim actually litigated in that case, namely, “whether the Tribe authorized the Agreement, and

more particularly, whether it authorized the arbitration clause and sovereign immunity waiver”).

See Dkt. # 32-7 (Smith Decl., Ex. G at 3, 11) (Stillaguamish Tribe v. Pilchuck Grp. II, LLC,

No. 10-995 RAJ (W.D. Wash.) (concluding “no principle of federal common law supports a

finding that the Tribe authorized a sovereign immunity waiver” in the agreement and entering

judgment for Tribe).

1. Judge Jones’s Comment is Not Entitled to Preclusive Effect

The State’s half-hearted application of defensive collateral estoppel1 fails to set forth the

well-settled test for collateral estoppel—perhaps in recognition of the fact that the State does not

come close to satisfying its elements. Defensive collateral estoppel is triggered when “a

defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously

litigated unsuccessfully in another action against the same or a different party. United States v.

Mendoza, 464 U.S. 154, 159 (1984) (emphasis added) (citing Parklane Hosiery Co., Inc. v.

Shore, 439 U.S. 322, 326 (1979)). The party seeking to establish preclusion has the burden of

proof of all elements. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407–08

(9th Cir. 1985); 18 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 4405 (3rd ed).

Importantly, doubts are resolved against preclusion. In re Associated Vintage Grp., Inc., 283

B.R. 549, 562 (B.A.P. 9th Cir. 2002) (citing Harris v. Jacobs, 621 F.2d 341, 383 (9th Cir. 1980);

18 Fed. Prac. & Proc § 4405). To meet its burden, the State must satisfy the following elements

of collateral estoppel: (1) the issue at stake is identical to an issue raised in the prior litigation;

1 The State does not identify whether it is pursuing issue or claim preclusion. The Tribe assumes that the State seeks to preclude the Tribe’s argument on the issue of the Tribe’s sovereign immunity waiver policy, which does not constitute a legal claim in the case. Claim preclusion (res judicata) is thus inappropriate for the Court’s consideration.


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(2) the issue was actually litigated in the prior litigation; and (3) the determination of the issue in

the prior litigation must have been a critical and necessary part of the judgment in the earlier

action. Littlejohn v. United States, 321 F.3d 915, 923 (9th Cir. 2003). The State fails to meet its

burden on all three elements.

a. The State Misconstrues the Ultimate Issue in Pilchuck Grp. II and In this Case

The State fails the first element of collateral estoppel with its mischaracterization of the

ultimate issue in this case. The State claims the “issue” for collateral estoppel as being whether

the Tribe had a consistent policy regarding waivers of sovereign immunity, stating, without

explanation, that the issue “has been litigated.” Mot. at 15. That the fact of the Tribe’s

sovereign immunity waiver policy was raised in Pilchuck Grp. II, does not automatically make it

“identical” to an issue in the instant case for the purpose of collateral estoppel. Identifying the

issue for collateral estoppel can be a “murky” task, requiring the Court’s consideration of the

evidence offered on the issue, the parties’ arguments and law to be applied in the prior and the

current case on that particular issue. See Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th

Cir. 1995), opinion amended on reh'g sub nom. Kamilche v. United States, 75 F.3d 1391 (9th

Cir. 1996) (Applying Restatement (Second) of Judgments § 27 cmt. C) (“[o]ne of the most

difficult problems in the application of [collateral estoppel] is to delineate the issue on which

litigation is, or is not, foreclosed by the prior judgment.”)

The State’s characterization of the “issue” in Pilchuck Grp. II misses the point entirely.

Despite the State’s claim, the issue here is not “whether the Tribe had a specific procedure or

consistent policy for waving sovereign immunity prior to 2010.” Mot. at 15. This is a red

herring. The ultimate issue in this case is both far broader as a matter of Federal law, and far

narrower in that it concerns only this single Agreement, namely: whether the purported waiver of

sovereign immunity in the 2005 Agreement is enforceable against the Tribe. See Dkt. # 1. The

Court’s September 19, 2016 Order confirms that the issue in this case is “on the limited issue of

whether the Tribe waived sovereign immunity.” Dkt. # 22 at 10. Likewise, the issue in Pilchuck


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Grp. II was both broader and narrower than the Tribe’s sovereign immunity waiver policy. The

Court in Pilchuck Grp. II defined the ultimate issue in that case as: “the question before the court

is whether the Tribe waived its sovereign immunity for disputes arising out of the RV park

project.” Dkt. # 32-7 (Smith Decl., Ex. G at 14). In order to reach its decision, the Court applied

Federal law to the question of whether the Tribe had waived its sovereign immunity as to

disputes arising out of the RV park project. To be sure, whether the Tribe had a clear policy at

the time for granting waivers of immunity is part of the answer to the broader sovereign

immunity question; however, the policy, without more, does not resolve the sovereign immunity

question. The Tribe has not sought in this case – and did not seek in Pilchuck Grp. II either – a

declaratory judgment that the Tribe had a rock-solid immunity policy in place before 2010.

What matters is whether, as a matter of Federal law, the 2005 Agreement is enforceable against

the Tribe.

Even if the State’s characterization of the issue was accurate, the issue would not be ripe

for collateral estoppel because the constellation of facts and the application of agency law differ

between the two cases. 18 Fed. Prac. & Proc. § 4417 (“Clear separations of fact or clear

distinctions of applicable law generate different issues, free from preclusion.”). As to the facts,

although Board meeting minutes evidenced lengthy discussion of the RV park project at issue in

Pilchuck Grp. II (Dkt. # 32-7 (Smith Decl., Ex. G at 11-12)), there are no Board meeting minutes

referencing the Agreement in the instant case at all. Dkt. # 31 (Connolly Decl., ¶¶ 2-3). In

addition, unlike the Tribe’s Vice Chairman in Pilchuck Grp. II, Mr. Stevenson did “not

generally” sign contracts on behalf of the Tribe. Dkt. # 32-7 (Smith Decl., Ex. G at 13); Dkt. #

32-20 (id., Ex. T at 5 [p. 91, ln. 9]).

Likewise, the State’s bare assumption that the issues are identical ignores the fact that

different principles of agency law, if applicable,2 would apply to the facts surrounding the

purported Tribal grants of the waivers of sovereign immunity and to the individuals purportedly

2 The Tribe does not concede that agency law applies in cases of Tribal sovereign immunity. The argument here is merely illustrative.


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waiving sovereign immunity in the two cases. Under the Restatement (Third) of Agency Law,

whether an individual has actual authority turns on “the agent’s reasonable understanding” that

the principal wishes the agent to act “at the time the agent takes action”. Restatement (Third) of

Agency § 2.01 (2006). The Pilchuck Grp. II Court’s analysis of any reasonable understanding

would undoubtedly differ from this Court’s analysis of the reasonable understanding of Mr.

Stevenson, a Tribal employee, not only because of their different levels of authority, but because

of the different circumstances surrounding the projects in each case.

Even setting aside the fact that the ultimate issue is not the Tribe’s sovereign immunity

waiver policy, that policy is not ripe for collateral estoppel due to important distinctions in the

facts and agency law in Pilchuck Grp. II versus those in the instant case. The State’s collateral

estoppel effort fails.

b. The Tribe Litigated The Effect of An Unauthorized Waiver of Sovereign Immunity in Pilchuck Grp. II and Won

The State next attempts to show that the issue was “actually litigated” in satisfaction of

the second element of collateral estoppel. The State highlights Judge Jones’s statement in

Pilchuck Grp. II that the Tribe is “flatly incorrect” in its contention that Board resolutions were

necessary to authorize contracts and waivers of sovereign immunity. Mot. at 16; Dkt. # 32-7

(Smith Decl., Ex. G at 9). Looking past the State’s Motion to Judge Jones’s Order, the State’s

argument is reduced to absurdity. Although the Court would not know it from the face of the

State’s Motion (see Mot. at 14-16), the Tribe won the case. The Court held: “the question before

the court is whether the Tribe waived its sovereign immunity for disputes arising out of the RV

park project. The court holds that it did not, as a matter of law.” Dkt. # 32-7 (Smith Decl., Ex. G

at 14). The Court agreed with the Tribe that “there is no evidence at all that Mr. Goodridge Jr.

had a practice of waiving the Tribe’s sovereign immunity. There is also no evidence that the

Board authorized him to do so.” Id. at 13.

The State’s surreptitious mischaracterization of the ultimate issue flagrantly omits the

fact that the Tribe prevailed on the ultimate issue of sovereign immunity in Pilchuck Grp. II.


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Because application of collateral estoppel arises from fundamental premise that the party subject

to estoppel lost on the legal issue in the prior action, collateral estoppel is not available to the

State. See e.g., States v. Mendoza, 464 U.S. at 159; Parklane Hosiery Co., Inc., 439 U.S. at 326.

c. The Court’s Finding In Pilchuck Was Not A “Necessary Part of The Judgment”

The State’s argument also fails the third element of collateral estoppel. Collateral

estoppel may only attach to determinations that were necessary to support the court’s judgment

in the prior action. Segal v. American Tel. & Tel. Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.

1979). “Litigants conversely are not precluded from relitigating an issue if its determination was

merely incidental to the judgment in the prior action.” 18 Fed. Prac. & Proc. § 4421. “A

determination ranks as necessary or essential only when the final outcome hinges on it.” Bobby

v. Bies, 556 U.S. 825, 835 (2009) (reversing application of issue preclusion based court’s

statements in prior case regarding respondent’s mental capacity which “cut against the ultimate

outcome” and finding that court’s prior statements were a “subsidiary finding that, standing

alone, is not outcome determinative”) (citing 18 Fed. Prac. and Proc. § 4421); Resolution Trust

Corp. v. Keating, 186 F.3d 1110, 1115 (9th Cir. 1999) (holding that the statement of the court in

prior action was “only an observation, which was not necessary to support the judgment, and

cannot support the application of issue preclusion.”).

Judge Jones’s statement in Pilchuck Grp. II regarding the Tribe’s sovereign immunity

waiver policy is a classic example of dicta that is inappropriate for application of collateral

estoppel. Keating, 186 F.3d at 1115. While, Judge Jones stated that the Tribe had no

“consistent” practice for authorizing people to waive sovereign immunity (Dkt. # 32-7 [Smith

Decl., Ex. G at 9]), his exclusion of any mention of the Tribe’s sovereign immunity waiver

policy from the Court’s lengthy explanation of its decision on sovereign immunity in favor of the

Tribe demonstrates that the statement about the consistent policy was entirely unnecessary to the

decision in that case. Id. at 11-14.


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To state the obvious, the Pilchuck Grp. II Court’s statement regarding the Tribe’s

sovereign immunity waiver policy could not have been necessary to the judgment because the

Court ultimately found in favor of the Tribe on the issue of sovereign immunity. Id. at 14. Thus,

Judge Jones’s statement about the “consistent” practice is the classic example of dicta carrying

no preclusive effect. Parmelee Transp. Co. v. United States, 351 F.2d 619, 621 n.1 (1965)

(noting that dicta in the Court’s decision “will have no collateral estoppel effect in any other

forum); Restatement (Second) of Judgments § 27 (1982) cmt. h (“If issues are determined but the

judgment is not dependent upon the determinations, relitigation of those issues. . . is not

precluded. Such determinations have the characteristics of dicta . . .).

The State’s contortion of the ultimate issue and outcome in Pilchuck Grp. II aside, the

Tribe litigated and won the legal issue that a document signed without Tribal authorization does

not waive the Tribe’s sovereign immunity. Dkt. # 28 at 18 (Tribe’s Mot. for Summ. J., Jun. 27,

2017). Regardless of the Court’s determination as to the first and second elements of collateral

estoppel, the State fails the third prong of collateral estoppel, barring its application in this case.

2. The Same Basis for Prevailing on Sovereign Immunity That Was Determinative in Pilchuck Grp. II Is Determinative in This Case

The undisputed facts are even stronger here for finding that there has been no valid

waiver of the Tribe’s sovereign immunity. The ruling in Pilchuck Grp. II was made despite

evidence that a project possibly contemplated by the agreement had been discussed at a Board

meeting at length, had been given at least provisional approval by a Board member, that the

agreement had been signed by a Tribal official, and that Pilchuck II and it principals were well

known to the Tribe and had worked on several projects with the Tribe. Dkt. # 32-7 (Smith Decl.,

Ex. G at 2-6).

The Court ordered discovery here for the limited purpose of exploring whether the Tribe,

in fact, waived its sovereign immunity as to the Agreement. Dkt. # 22. That discovery has

concluded, and there is no dispute of material fact that the Agreement never went to the Tribe’s

Board, was never discussed by the Tribe’s Board, and was never approved by the Tribe’s Board.


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There are no material facts in dispute here that would preclude summary judgment in favor of the

Tribe, just as in Pilchuck Grp. II.

C. The Court Should Sua Sponte Sanction the State

The State argues that Resolution 2004/65 gave Mr. Stevenson the explicit authorization

to sign the Agreement because the Agreement constitutes an example of the emergency funding

contemplated by the express language of the Resolution. See Mot. at 10-12, 19-20. This

argument is frivolous, as the State has hen-pecked discovery to intentionally take out of context

and brazenly misrepresent Resolution 2004/65. Sua sponte Rule 11 sanctions are appropriate

because this conduct by the State constitutes contempt. Barber v. Miller, 146 F.3d 707, 711 (9th

Cir. 1998) (noting that sua sponte sanctions should “be imposed only in situations that are akin

to a contempt of court.”).

Sanctions are justified under Rule 11 “when a filing is frivolous, legally unreasonable, or

without factual foundation, or brought for an improper purpose.” Estate of Blue v. Cnty. of L.A.,

120 F.3d 982, 985 (9th Cir. 1997). A filing is frivolous if it is “both baseless and made without a

reasonable and competent inquiry.” Townsend v. Holman Consulting Corp., 929 F.2d 1358,

1362 (9th Cir. 1990). The Court may impose Rule 11 sanctions on its own initiative, Fed. R.

Civ. P. 11(c)(3), in the form of “a penalty payable to the court”. Fed. R. Civ. P. 11 adv. cmte.

notes (1993). Although there is no “safe harbor” for sua sponte sanctions, litigants must have

“notice of the alleged violation and an opportunity to respond before sanctions are imposed.”

Fed. R. Civ. P. 11 adv. cmte. notes (1993). A district court is vested with discretion whether to

enter Rule 11 sanctions. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

As discussed in Part A.3 supra, Resolution 2004/65 was produced by the Tribe as Bates

No. SIT 012037-38. See Dkt. # 27-17. Importantly, the State only uses and provides to the

Court the first two pages of the eight page document produced. 2d Smith Decl. ¶ 6, Ex. A.

These additional documents, intentionally ignored by the State and purposely omitted from the

Court’s record, explain that Resolution 2004/65 relates to an October 2003 flood event and had

absolutely nothing to do with the Agreement or even salmon funding. Id.; 2d Stevenson Decl. ¶¶


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3-4. To say that this is totally different from authorizing a specific salmon funding agreement

that waived the Tribe’s sovereign immunity is an understatement. Worse yet, even if the State

had not competently figured out the connections between the documents produced during

discovery, the State could have learned as much when it deposed Mr. Stevenson. However,

counsel for the State never asked Mr. Stevenson a single question about Resolution 2004/65 to

flesh out the “emergency”. 2d Smith Decl. ¶ 8. Instead, the State spent time attempting to gin

up its argument by getting Mr. Stevenson to say that the salmon situation was “dire.” Mot. at 8-9.

Sadly, this deliberate deception by means of obfuscation of the record and frivolous

advancement of an argument that could have, and should have, been avoided through due

diligence is not the first time the State’s lawyers have violated ethical rules with respect to Oso

landslide litigation. As discussed in the Tribe’s motion, the King County Superior Court

imposed a sanction of $788,664.04 against the State related to the destruction of emails by the

State’s experts, under the watchful eye of the State Attorney Generals’ Office, in the underlying

Pszonka litigation. Dkt. # 32-21 (Smith Decl., Ex. U). The State’s hands are unclean. This

pattern and practice of deceptive advocacy across two cases in two courts warrants the

imposition of Rule 11 sanctions for the intentionally misleading use of Resolution 2004/65 to

support the State’s Motion.

CONCLUSION

For the foregoing reasons, the Tribe respectfully requests that the Court deny summary

judgment to the State and exercise its sound discretion to issue sanctions. The Tribe is entitled to

judgment in its favor because neither the purported waiver of sovereign immunity nor any

provision of the Salmon Project Funding Agreement is enforceable against the Tribe.

DATED this 21st day of July, 2017.

KILPATRICK, TOWNSEND & STOCKTON LLP

By: /s/ Rob Roy Smith Rob Roy Smith, WSBA #33798 [email protected] 1420 Fifth Avenue, Suite 3700 Seattle, WA 98101


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SEATTLE, WA 98101 (206) 467-9600

Telephone.: (206) 467-9600 Facsimile: (206) 623-6793

STILLAGUAMISH TRIBE OF INDIANS OFFICE OF LEGAL COUNSEL

By: /s/ Scott Mannakee Scott Mannakee, WSBA # 19454 [email protected] 3322 236th Street NE Arlington, WA 98223 Telephone: (360) 572-3028

Attorneys for Plaintiff Stillaguamish Tribe of Indians


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CERTIFICATE OF SERVICE – Page 17 69519041V.1


SEATTLE, WA 98101 (206) 467-9600

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 2017, I electronically filed the foregoing PLAINTIFF

STILLAGUAMISH TRIBE OF INDIANS’ RESPONSE IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court

using the CM/ECF system, which will send notification of such filing to the following:

Stevan D. Phillips Email: [email protected] Rita V. Latsinova Email: [email protected] Stoel Rives LLP 600 University Street, Suite 3600 Seattle, WA 98101

Attorneys for Defendants

DATED this 21st day of July, 2017.

KILPATRICK, TOWNSEND & STOCKTON LLP

By: /s/ Rob Roy Smith Rob Roy Smith, WSBA #33798 [email protected] Attorneys for Plaintiff Stillaguamish Tribe of Indians


the honorable robert j. bryan · case no.: 3:16-cv-05566-rjb plaintiff stillaguamish tribe of...

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