United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
the Court are defendant Alden Big Man's Motion to Dismiss
Plaintiff's Complaint (Doc. 31), and defendants Unknown
Members of Crow Tribal Health Board, the Hon. Chief Justice
Joey Jayne, and the Hon. Justices Leroy Not Afraid and Kari
Covers Up's (collectively, “Tribal
Defendants”) Motion to Dismiss the Complaint for
Declaratory and Injunctive Relief (Doc. 33) (collectively,
the “Motions”). The Motions each seek the
dismissal in full of the Complaint for Declaratory Relief and
Injunctive Relief (Doc. 1) (the “Complaint”)
filed by plaintiff Big Horn County Electric Cooperative, Inc.
(“BHCEC”). After thorough examination of the
Complaint and the parties' briefing on the instant
Motions, the Court recommends that the Motions be
following pertinent facts are taken from BHCEC's
Complaint and documents referenced in and attached to the
Complaint, and are assumed to be true for the purposes of the
instant Motions. See U.S. v. Ritchie, 342 F.3d 903,
907-908 (9th Cir. 2003) (a court may consider documents
attached to a complaint without converting a motion to
dismiss into a motion for summary judgment).
is a non-Indian Montana corporation with its principal place
of business in Hardin, Montana. (Doc. 1 at ¶ 3.) BHCEC
delivers electric energy and services to its members, at
least some of whom are enrolled members of the Crow Indian
Tribe residing within the boundaries of the Crow Indian
Reservation (the “Reservation”). Defendant Big
Man is a Crow tribal member who receives electric energy
services from BHCEC within the boundaries of the Reservation,
pursuant to a Membership Agreement between Big Man and BHCEC.
(Id. at ¶¶ 3-4.)
January 2012, Big Man became delinquent in payment to BHCEC,
and, following notice to Big Man, BHCEC disconnected Big
Man's electric service. (Id. at ¶ 15.) Big
Man filed suit against BHCEC in Crow Tribal Court (the
“Tribal Court”) on May 2, 2012, alleging that
BHCEC “violated Crow law” when it terminated his
service. Specifically, Big Man alleged that BHCEC violated
Crow Law and Order Code 20-1-110, which prohibits the
termination of residential utility services during the winter
months (November 1 to April 1). (Id. at ¶¶
16-17; Doc. 34 at 7.) Following summary judgment motions from
both Big Man and BHCEC, the Crow Trial Court entered summary
judgment in favor of BHCEC on the grounds that it lacked
subject matter jurisdiction, and dismissed Big Man's
claims accordingly. (Doc. 1-7.) Big Man timely appealed to
the Apsaalooke Appeals Court (the “Appellate
lengthy opinion (see Docs. 1-4, 1-5), the Appellate
Court reversed the Tribal Court, finding in pertinent part
that the Tribal Court had not conducted sufficient
fact-finding with respect to the relevant jurisdictional
issues. The Appellate Court further found that the Tribal
Court erred in concluding that it did not have jurisdiction
under recognized exceptions to the general rule that tribal
courts do not have subject matter jurisdiction over suits
involving non-Indians. (Doc. 1-5 at 8-12) (discussing
exceptions recognized Montana v. U.S., 450 U.S. 544
(1981)). Then, in its conclusion, the Appellate Court stated:
“[t]his Court rules that the Crow trial court has
subject matter jurisdiction over this matter consistent with
this opinion.” Id. at 16. It then remanded the
case to the Tribal Court “to rule on the
non-jurisdictional merits, ” and to “conduct
further proceedings consistent with the Crow Rules of Civil
thereafter filed the instant suit, seeking a declaratory
judgment that the Tribal Court does not have subject matter
jurisdiction over Big Man's lawsuit against BHCEC, and an
injunction prohibiting the Crow Tribe from attempting to
regulate BHCEC's actions in the context of Big Man's
lawsuit and otherwise. (Doc. 1 at ¶¶
32-44.) The Motions seeking to dismiss BHCEC's
motions to dismiss for failure to exhaust have been treated
as unenumerated Fed.R.Civ.P. 12(b) motions. See Wyatt v.
Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (“the
failure to exhaust non-judicial remedies that are not
jurisdictional should be treated as a matter in abatement,
which is subject to an unenumerated motion to
dismiss.”). Relying on Wyatt, this standard
has been applied to motions to dismiss for failure to exhaust
tribal court remedies. See e.g. Dish Network Corp. v.
Tewa, 2012 WL 5381437, *2 (D. Ariz. Nov. 1, 2012).
Applying this standard, “the court may look beyond the
pleadings and decide disputed issues of fact.”
Wyatt, 315 F.3d at 1119-20.
the U.S. Supreme Court's decision in Jones v.
Bock, 549 U.S. 199 (2007), however, the Ninth Circuit
has concluded that Wyatt is no longer good law.
Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014).
Nevertheless, the Court has stated that exhaustion should
typically be decided at the outset of the litigation.
Id. at 1170. When the “failure to exhaust is
clear from the face of the complaint, a defendant may
successfully move to dismiss under Rule 12(b)(6) for failure
to state a claim.” Id. at 1169. Otherwise, the
issue must be decided on a motion for summary judgment, with
disputed factual issues to be resolved by the court.
Id. at 1170.
case, the relevant documents necessary to determine the
exhaustion issue are referenced in and attached to
BHCEC's Complaint. Therefore, in this instance the Court
can determine the exhaustion issue under Fed.R.Civ.P.
12(b)(6) for failure to state a claim.
Tribal Defendants assert in their Motions that BHCEC has not
exhausted available Tribal Court remedies, and contend that
exhaustion is required before this Court can properly review
the question of tribal jurisdiction.
maintains, on the other hand, that exhaustion is not required
in this situation, since this case falls within recognized
exceptions to the exhaustion requirement. Moreover, even if
exhaustion is required, BHCEC asserts that tribal court
remedies have been fully exhausted, and the question of
tribal court jurisdiction is ripe for this Court's
determination of tribal court jurisdiction over non-Indians
is a question of federal law properly determined by federal
courts under 28 U.S.C. § 1331. Natl. Farmers Union
Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845,
852-53 (1985). “As a matter of comity, however, federal
courts generally decline to entertain challenges to a tribal
court's jurisdiction until the tribal court has had a
full opportunity to rule on its own jurisdiction.”
Elliott v. White Mountain Apache Tribal Court, 566
F.3d 842, 844 (9th Cir. 2009), cert. denied, 558
U.S. 1024 (2009). “A district court has no discretion
to relieve a litigant from the duty to exhaust tribal
remedies prior to proceeding in federal court.”
Allstate Indemnity Co. v. Stump, 191 F.3d 1071, 1073
(9th Cir. 1999) (citations omitted).
this policy “will provide the forum whose jurisdiction
is being challenged the first opportunity to evaluate the
factual and legal bases for the challenge.” Natl.
Farmers Union, 471 U.S. at 856-57. It will also promote
the “orderly administration of justice in the federal
court . . . by allowing a full record to be developed in the
Tribal Court.” Id. As to this consideration,
the Ninth Circuit has recognized that “the Tribe itself
is in the best position to develop the necessary factual
record for disposition on the merits.” Burlington
Northern R. Co. v. Crow Tribal Council, 940 F.3d 1239,
1246 (9th Cir. 1991).
Supreme Court has recognized four exceptions to the
(1) when an assertion of tribal court jurisdiction is
“motivated by a desire to harass or is conducted in bad
faith”; (2) when the tribal court action is
“patently violative of express jurisdictional
prohibitions”; (3) when “exhaustion would be
futile because of the lack of an adequate opportunity to
challenge the [tribal] court's jurisdiction”; and
(4) when it is “plain” that tribal court
jurisdiction is lacking, so that the exhaustion requirement
“would serve no purpose other than delay.”
Elliott, 566 F.3d at 847 (quoting Nevada v.
Hicks,533 U.S. 353, 369 (2001)). In this case, BHCEC
asserts the first, second and fourth exceptions apply to