1.9 -930 pm clean final draft response to mot. to reopen

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Denise Turner Walsh, SBN 254434 Attorney General Rincon Band of Luiseno Indians P.O. Box 1425 Pauma Valley, CA 92061 Telephone: (760) 681-6086 Fax: (760) 740-5144 Scott Crowell Pro Hac Vice Crowell Law Office – Tribal Advocacy Group LLP 1487 W. State Route 89A, Ste. 8 Sedona, Arizona 86336 Telephone: (425) 802-5369 Facsimile: (509) 235-5017 Attorneys for Special Appearing Defendants BO MAZZETTI, JOHN CURRIER, VERNON WRIGHT, GILBERT PARADA, STEPHANIE SPENCER, CHARLIE KOLB and DICK WATENPAUGH

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RINCON MUSHROOM CORPORATION OF AMERICA, a California Corporation,

Plaintiff, v. BO MAZZETTI; JOHN CURRIER; VERNON WRIGHT; GILBERT PARADA; STEPHANIE SPENCER; CHARLIE KOLB; DICK WATENPAUGH; DOE CO.; and DOE I and DOE II,

Defendants.

) ) ) ) ) ) ) ) ) ) ) )

Civil No. 09-CV-2330 WQH POR DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO REOPEN CASE Date: January 23, 2017 NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Judge: Hon. William Q. Hayes Location: Courtroom 14B Suite 1480 333 West Broadway San Diego, CA 92101

Case 3:09-cv-02330-WQH-JLB Document 84 Filed 01/09/17 PageID.3863 of 31

RESPONSE IN OPPOSITION TO 09-CV-2330 WQH POR MOTION TO REOPEN CASE i

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TABLE OF CONTENTS

I. INTRODUCTION.........................................................................................................1 II. ARGUMENT: DONIUS/RMCA HAVE NOT EXHAUSTED TRIBAL

REMEDIES....................................................................................................................2

A. The Status of Tribal Court Proceedings...................................................................2 B. Donius/RMCA’s Analysis that Tribal Remedies Have Been Exhausted is Wholly Without Merit...........................................................................................................4 1. Tribal Court Judge’s Statement that Preliminary Injunction Remains in Effect Does Not Establish an Exhaustion of Tribal Remedies....................4

2. Donius/RMCA is wrong on its use and reliance on Evans v. Shoshone- Bannock Land Use Policy Com’n..............................................................7 3. Donius/RMCA’s tribal remedies were not exhausted by the Tribal Court’s determination on November 2, 2016 that the Court’s September 27, 2010 Preliminary Injunction remained valid and in effect.................11

III. DONIUS/RMCA’S CLAIMS THAT EXHAUSTION OF ANY FURTHER TRIBAL

REMEDIES WOULD BE FUTILE ARE WITHOUT MERIT...................................13

A. The Pending Proceedings of the Tribal Court Provide Donius/RMCA the Opportunity to Challenge Montana Jurisdiction........................................................14

B. Donius/RMCA Were Not Denied the Opportunity to Appeal the September 2010 Preliminary Injunction Which was Based on a Determination of Regulatory Jurisdiction................................................................................................................15

C. There is No Credible Evidence that Rincon Band is Using Tribal Court for Purpose of Harassment...............................................................................................17

D. There is No Credible Evidence that the Tribal Court Has Shown Favortism Towards the Rincon Band..........................................................................................18

IV. THE RINCON BAND IS COMPELLED TO CORRECT THE RECORD AS TO

OTHER PROCEDURAL AND FACTUAL ASSERTIONS IN DONIUS/RMCA’S MOTION....................................................................................................................20


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A. False Procedural Assertions.................................................................................20

B. False Factual Assertions........................................................................................22

CONCLUSION...............................................................................................................................24


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TABLE OF AUTHORITIES

Cases

Dolgencorp Inc. v. Mississippi Band of Choctaw Indians,

746 F.3d 167 (5th Cir. 2014) ..................................................................................................... 11

Dollar General v. Mississippi Band of Choctaw Indians,

136 S. Ct. 2159 (2015) ............................................................................................................... 11

Elliott v. White Mountain Apache Tribal Court,

566 F.3d 842 (9th Cir. 2009) .......................................................................................... 11,14, 18

Evans v. Shoshone-Bannock Land Use Policy Com’n,

736 F.3d 1298 (9th Cir. 2013) ..................................................................................... 7, 9, 10, 11

Montana v. United States,

450 U.S. 544 (1981) ............................................................................................................ passim

National Farmers Union Ins. Co. v. Crow Tribe of Indians,

471 U.S. 845 (1985) .................................................................................................................. 15

Nevada v. Hicks,

533 U.S. 353 (2001) .................................................................................................................. 14

Rincon Band v. Donius, et al.,

Rincon – 02972009 (ICSC 2009) ................................................................................................ 3


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Shoshone-Bannock Tribes Land Use Department v. FMC Corporation,

Case Nos. C-06-0069, 07-0017 and 07-0035, Opinion, Order, Findings of Fact and

Conclusions of Law (Shoshone Bannock Tribal Court of Appeals, April 30, 2014) appeal to

Federal District Court pending, FMC Corporation v. Shoshone-Bannock Tribes, Case No.

4:14-cv-00489-EJL (D. Idaho) ..................................................................................................... 8

Sole v. Wyner,

551 U.S. 74 (2007) ....................................................................................................................... 6

Rules

Fed. R. Civ. P. 56(f) ...................................................................................................................... 18

ICSC Code of Civil Procedure and Rules of the Court at § 7.701 ................................................ 15


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I. INTRODUCTION

Defendants Bo Mazzetti, John Currier, Vernon Wright, Gilbert Parada, Stephaniei

Spencer, Charlie Kolb, Dick Watenpaugh, Doe Co., and Doe I and Doe II (hereinafter

collectively referred to as “Rincon” or the “Rincon Band”) file this Response in Opposition to

Plaintiffs Marvin Donius and Rincon Mushroom Corporation of America’s (hereinafter

collectively referred to as “Donius/RMCA’s”1 Motion to Reopen as both parties engage in their

final preparation for trial in the Rincon Tribal Court of the Intertribal Court of Southern

California, ICSC (the “Tribal Court”), scheduled to commence on January 31, 2017 and continue

each day through February 3, 2017. Donius/RMCA’s position that it has exhausted tribal

remedies lacks any merit whatsoever, and is directly contradicted by Donius/RMCA’s own

actions in the Tribal Court. Equally baseless are Donius/RMCA’s claims that any or all of the

exceptions which may excuse a party from exhausting tribal remedies have been met.

Donius/RMCA take the reasonable interlocutory decisions made by the Tribal Court with respect

to preliminary injunctive relief, and with respect to Donius/RMCA’s motions for summary

judgment, and attempt to force those decisions into the cubby holes representing the exceptions

to the requirement that a party exhaust tribal remedies. Those attempts are unavailing.

The timing and motivation for Donius/RMCA filing the Motion to Reopen are

unexplained. The Rincon Band is concerned that the Motion is motivated by a last grasp effort to

avoid proceeding to trial on the merits before the Tribal Court. The trial in Tribal Court 1 RMCA is the only party Plaintiff in this action. RMCA has indicated that it will join Marvin Donius as a party-plaintiff upon the case reopening. MPA at 2. The Rincon Band will likely oppose such a motion because Donius filed a similar action, lost, and did not seek appeal. However, for purposes of the litigation before the Tribal Court, both RMCA and Donius have represented that either Donius alone, or Donius together with RMCA exercise decision-making authority re stewardship of the Subject Property. Accordingly, the Rincon Band refers to them collectively as “Donius/RMCA” throughout this pleading.



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scheduled for January 31, 2017 is the forum in which the facts of this case will be put into

evidence and deliberated, with full opportunity (and expectation) that Donius/RMCA will proffer

those facts and argue the law in support of their position, resulting in findings of fact and

conclusions of law on the crux of the dispute: whether the Rincon Band has jurisdiction under

the exception articulated in Montana v. United States, 450 U.S. 544 (1981), which issue turns on

whether Donius/RMCA steward the Subject Property2 in a manner that poses real risks of

catastrophic consequences to the economic and governmental interests of the Rincon Band

(hereafter referred to throughout as “Montana’s Second Exception”).

II. ARGUMENT: DONIUS/RMCA HAVE NOT EXHAUSTED TRIBAL REMEDIES

A. The Status of Tribal Court Proceedings:

On January 31, 2016, trial in Tribal Court will commence on the merits of the crux issue,

whether Donius/RMCA, in their stewardship of the Subject Property, from 1982 to current day,

allow for activities to occur on the Subject Property that pose real risks of catastrophic

consequences to the economic and governmental interests of the Rincon Band. After consultation

with the parties on January 4, 20173, the Tribal Court has set trial in this matter for four

consecutive days that Donius/RMCA have represented are available to them and their witnesses,

commencing January 31, 2017 and continuing through February 3, 2017. A possible fifth day of

trial is being kept open and unassigned in the event that the Rincon Tribal Chairman, Defendant

Mr. Bo Mazzetti, is unavailable on the scheduled trial dates. See January 4, 2017 Transcript,

attached to the Declaration of Scott Crowell (“Crowell Decl.”) as Ex. “A” at 92.

2 The “Subject Property” is generally used to refer to that land located within the external boundaries of the Rincon Reservation, owned in fee simple by Donius and/or RMCA. Donius is a non-indian and RMCA is a California corporation. 3 The full transcript of the January 4, 2017 hearing before the Tribal Court is attached to the Crowell Decl. as Ex. “A”.



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On August 1, 2012, this Court spread the mandate per direction of the Ninth Circuit and

stayed this action pending Donius/RMCA’s exhaustion of tribal remedies (Docs. 65 and 66). On

June 25, 2015, this Court noted Donius/RMCA’s efforts to pursue tribal remedies and closed the

case subject to motions that the case be reopened after Donius/RMCA’s exhaustion of tribal

remedies (Doc. 82).

On August 25, 2015, Donius/RMCA filed a new action in Tribal Court (while reserving

the objection regarding jurisdiction under Montana’s Second Exception), challenging the

decision of the Rincon Environmental Department (hereinafter referred to as the “RED”) to deny

Donius/RMCA’s request for a determination that Donius/RMCA’s proposal for activities on the

Subject Property did not trigger tribal jurisdiction under Montana’s Second Exception, and

seeking a Declaratory Judgment that the Rincon Band lacks jurisdiction under Montana’s Second

Exception. The Rincon Band, with Donius/RMCA’s consent, moved to consolidate this action

with the older lawsuit, Rincon Band v. Donius, et al., Rincon – 02972009 (ICSC 2009), which

litigation has been pending since 2009. The Rincon Band also counter-claimed, seeking to

enforce the then-most recent Notice of Violation, issued September 23, 2015, regarding activities

occurring on the Subject Property.

The parties have since engaged in extensive discovery, including Donius/RMCA’s

retention of one expert regarding water quality and Rincon Band’s retention of two experts

regarding water quality and one expert regarding prevention and mitigation of damage from

fires, including wildfires. Additionally, the parties have exchanged dozens of documents

comprising thousands of pages. Significantly, Donius/RMCA has convened and completed the

depositions of one of the Rincon Band’s expert witnesses and five current and former tribal



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officials. The Rincon Band has convened and completed the depositions of Donius/RMCA’s

expert witness and four fact witnesses. See Crowell Decl. at ¶ 3.

Discovery is complete. Donius/RMCA’s motions for partial summary judgment have

been deliberated and denied by the Tribal Court. The matter is now ready for trial.

Subsequent to the filing of the Motion to Re-Open, Donius/RMCA informed the Rincon

Band’s counsel that it intends to proceed with trial (then scheduled for January 9, 2017). Counsel

for Donius/RMCA never responded to the email response of the Rincon Band’s legal counsel as

to how that position was consistent with the position taken in Donius/RMCA’s Motion to

Reopen. See emails dated December 22 and 23, attached as Ex. “B” to the Crowell Decl.

B. Donius/RMCA’s Analysis that Tribal Remedies Have Been Exhausted is Wholly Without Merit

1. Tribal Court Judge’s statement that Preliminary Injunction remains

in effect does not establish an exhaustion of tribal remedies.

Early on in this decade-long journey, on September 27, 2010 Tribal Court Judge Anthony

Brandenburg issued a Preliminary Injunction against Donius/RMCA, which stated inter alia:

1. Defendants are enjoined from bringing any additional physical property

onto the Subject Property, specifically including automobiles. . .

2. If there are any persons residing on the Subject Property, they are doing so

in violation of prior orders of this Court. Defendants, who hold themselves out as

having dominion and control over the Subject Property, shall effectuate the

removal of such persons and physical property from the Subject Property by

October 25, 2010. . . .

3. This Order shall remain in effect until lifted amended or modified by this

Court. . . .



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4. Court encourages Defendants to answer the complaint or to otherwise file

a dispositive motion in lieu of the complaint in accordance with the ITSC Code of

Civil Procedure.

September 27, 2010 Preliminary Injunction at 1-2 (attached to Crowell Decl. as Ex. “C”).

During August of 2016, for the first time since the issuance of the Preliminary Injunction,

Donius/RMCA commenced permanent construction of a block wall, which Donius/RMCA now

claim to be a wall intended for a produce stand to be operated on the Subject Property. See Cease

and Desist Letter dated August 11, 2016 (attached to Crowell Decl. as Ex. “D”).

The construction of the block wall commenced without notice to RED, to legal counsel

for the Rincon Band, or to any other tribal official. Donius/RMCA made no effort under the rules

of the Tribal Court to vacate, modify or amend the Preliminary Injunction prior to the

commencement of the construction of the wall. Donius/RMCA made no efforts under the rules to

appeal the Preliminary Injunction to the ICSC Court of Appeals. See Crowell Decl. at ¶ 7.

Accordingly, the Rincon Band sought an Order to Show Cause Regarding Civil Contempt (the

“OSC”) from the Tribal Court as to why Donius/RMCA should not be held in contempt of court

(pleading attached to Crowell Decl. as Ex. “E”).

At the November 2, 2016 Tribal Court hearing on the OSC, the Tribal Court commented

that the Preliminary Injunction remained in effect, and that nothing in Donius/RMCA’s actions

filed in federal or state court negatd the Preliminary Injunction remaining in effect. See

Transcript of November 2, 2016 Hearing, attached to doc. 83-2 as Exhibit 1 (Hereafter referred

to as “November 2, 2016 Transcript”). Donius/RMCA now aver to this Federal Court:

Based upon this express statement from the Tribal Court on November 2, 2016,

Plaintiff has exhausted its Tribal remedies.



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Donius/RMCA’s Memorandum Of Points And Authorities In Support Of Motion To Re-Open

Federal Case After Exhaustion Of Tribal Remedies (cited to throughout as “MPA”) at 3.

The Tribal Court’s issuance of the Preliminary Injunction, as in federal court, is not a

final adjudication. Rather, it is an interlocutory order based in part on a preliminary

determination that there is a substantial likelihood that the Rincon Band will prevail on the

merits on the issue of the Rincon Band having jurisdiction under Montana’s Second Exception.

See Sole v. Wyner, 551 U.S. 74, 83-84 (2007). The Tribal Court has not made a final judgment

on the issue of Montana jurisdiction or otherwise. At the January 4, 2017 hearing on

Donius/RMCA’s Renewed Motion for Partial Summary Judgment, Judge Brandenburg

questioned Donius/RMCA’s legal counsel as to how the counsel’s representations to the Federal

Court could possibly be correct, and Judge Brandenburg reiterated that he had not made a final

determination regarding whether the Rincon Band has jurisdiction under Montana’s Second

Exception. The full and extensive discussion occurs at January 4, 2017 Hearing Transcript at

pp.44-62. It is revealed in that discussion that Donius/RMCA’s legal counsel “anticipates” that

Judge Brandenburg will eventually rule, as a matter of final judgment, that jurisdiction exists

under Montana’s Second Exception. A review of the January 4, 2017 Hearing Transcript

establishes that Judge Brandenburg has not made a final determination and that the Hearing on

the Renewed Motion for Summary Judgment and the January 31, 2017 trial are both to be taken

into account in his deliberations. Other than opposing legal counsel’s own internal assessment on

the merits of his case, there is no basis for Donius/RMCA counsel’s assertions that the Tribal

Court considers its preliminary, interlocutory determinations of jurisdiction as final and not

subject to change.



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Despite Donius/RMCA’s utter failure to avail itself of the ordinary courses in response to

the Preliminary Injunction (motion to reconsider/modify the Preliminary Injunction;

interlocutory appeal), the Rincon Band has opted to proceed to a trial on the merits on the

question of jurisdiction under Montana’s Second Exception. The Rincon Band could have rested

its laurels on the utter failure of Donius/RMCA to exhaust tribal remedies (failure to move to

vacate, modify, or amend, or to timely appeal the preliminary injunction). Instead, the Rincon

Band, per assent of Donius/RMCA, consolidated the older action with Donius/RMCA’s new

action so that the Tribal Court may make a final determination regarding jurisdiction under

Montana’s Second Exception in the context of providing Donius/RMCA with the full

opportunity to present its evidence and be heard. Now on the very eve of that trial,

Donius/RMCA is attempting to manufacture a scenario where it avoids the Tribal Court making

a final, fully adjudicated ruling on Montana jurisdiction.

2. Donius/RMCA is wrong on its use and reliance on Evans v. Shoshone-Bannock Land Use Policy Com’n .

Donius/RMCA asserts:

In addition, since the issuance of Court of Appeals’ unpublished Decision in this case on July 19, 2012, the same Court of Appeals issued a published opinion one year later holding that tribal courts plainly lack jurisdiction to regulate activities being conducted on non-Indian land with facts identical to those in this case, and that such property owners “need not exhaust tribal remedies.” Evans v. Shoshone-Bannock Land Use Policy Com’n, 736 F.3d 1298(9th Cir. 2013).

MPA at 3.

It is blatantly false to represent to this Court that Evans was decided “with facts identical

to those in this case.” The cases and facts are distinguishable in several material respects. Evans

is inapposite; it specifically involved the application of the Shoshone-Bannock Tribes’ general

zoning law, and did not include any type of factual development showing more than generalized



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statements of threat to the Shoshone-Bannock Tribe’s water supply. Id. at 1306. In sharp

contrast, the Rincon Band’s tribal law expressly acknowledges the limits of its jurisdiction, and

requires the RED to find, under the particularized facts of the enforcement action at issue, that

jurisdiction exists under Montana’s Second Exception. See Rincon Environmental Enforcement

Ordinance, attached to Crowell Decl. as Ex. “F”, at §§8.301 and 8.813. Also in sharp contrast, in

this litigation there is particularized evidence supporting the assertion of jurisdiction –

Donius/RMCA does not dispute that it contaminated the groundwater with toxic diesel fuel, nor

does it dispute that the soils were contaminated when above-ground fuel storage tanks exploded

during a wildfire. When claims of groundwater contamination are particularized, the Shoshone-

Bannock Tribe has properly exercised its jurisdiction under Montana’s Second Exception. See

Shoshone-Bannock Tribes Land Use Department v. FMC Corporation, Case Nos. C-06-0069,

07-0017 and 07-0035, Opinion, Order, Findings of Fact and Conclusions of Law (Shoshone

Bannock Tribal Court of Appeals, April 30, 2014)(attached Crowell Decl. as Ex. “G”), appeal to

Federal District Court pending, FMC Corporation v. Shoshone Bannock-Tribes, Case No. 4-14-

CV- 00489-EJL (D. Idaho).

Donius/RMCA asserts that the facts here are “identical to those” in Evans. MPA at 3.

In truth, as set forth in the Rincon Band’s Opposition to Donius/RMCA’s renewed Motion for

Partial Summary Judgment, Declaration of Scott Crowell and Declaration of Melissa Estes

(attached to the Crowell Decl. as Exs. “H” thru “K”)4 the facts are distinguishable in at least four

material respects. First, Mr. Evans obtained a Power County permit and had the intent and

expectation that county jurisdiction would govern his activities. 736 F.3d at 1301. Here, San

4 The factual statements set forth in this Section II(A)(2) are supported by the summary judgment opposition pleadings attached to Crowell Decl. as Exs. “H” thru “K” which pleadings reference the supporting documentation attached to the supporting declarations, all of which are submitted to this Court for its consideration.



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Diego County does not assert that it has any jurisdiction over the Subject Property.

Donius/RMCA asserts entitlement to a lawless enclave where the only the governing restriction

is the Marvin Donius ‘ “gut instinct” test – if Marvin Donius thinks that an activity is okay, then

it’s okay. Mr. Donius also concedes, however, that he has no expertise in any of the multiple

areas of land-use management, and he will categorically rule out only use of the Subject Property

as a nuclear waste dump, refusing to rule out any other activity.

Second, in Evans, the Shoshone-Bannock Tribe knew exactly what Evans intended to do,

based upon plans and county permits. Here, Donius/RMCA gave the RED an incomplete

disclosure of its plans for a vehicle storage business on a small portion of the Subject Property,

while clearly proceeding without disclosure of any plans whatsoever as to the remainder of the

Subject Property. Indeed, in deposition, the only project Donius would rule out was a nuclear

waste facility. Moreover, while refusing to answer RED’s inquiry as to development plans for

the remainder of the Subject Property, Donius/RMCA defied the Preliminary Injunction issued

by the Tribal Court and began permanent construction activities for a retail produce business,

clearly conspiring to keep such relevant information from RED.

Third, in Evans, there was a history of seriously contaminated water 736 F.3d at 1306.

The Ninth Circuit was hard pressed to find catastrophic consequences as a result of adding more

pollution to an already polluted water supply. Id. Here, by Donius/RMCA’s own admission, the

drinking water is clean. That is because the fragile aquifer from which the drinking water flows

is clean, at least for now. Here, the activities in question pose a serious risk of polluting a clean

water system, which is a risk of extremely high magnitude.

In a failed effort to suggest that the fragile aquifer at Rincon has a history similar to the

groundwater contamination facts and history at Shoshone-Bannock, Donius/RMCA submits in



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Donan’s expert report that the 2007 wildfire also resulted in groundwater contamination from

“the Rincon Tribe landfill-dump.” MPA at 3. There is no Rincon Tribe landfill-dump. When

Donan, the cited source for the assertion, was questioned on this, it became apparent that he had

relied on the non-confirmed assertions of Donius. Apparently, when referencing the “Rincon

Tribe landfill-dump,” Donan was referring to the Rincon Band’s waste transfer station, where

tribal members and Reservation residents may take non-traditional waste, which is then

transported for proper disposal in RED- regulated bins that never come into contact with the soil.

The Rincon Band’s waste transfer station is never used for permanent waste storage. Moreover,

the Rincon Band’s regulatory jurisdiction applies and the RED has jurisdiction over the waste

transfer station. The Rincon Band has as much concern over activities on trust properties within

the Reservation boundaries as it does with the Subject Property. When questioned at his

deposition, Donan conceded that he was told the land in question was a dump and that he

extrapolated the conclusions in his report about the dump impacting the groundwater table as a

result of the 2007 wildfire. Donan made no inquiry as to the processes and procedures in place

regarding the transfer of hazardous waste. Extrapolation from false assumptions is not expert

testimony and should not be taken into consideration. Indeed, the hypothetical supports the

Rincon Band’s position. While the presence of any hazardous waste on trust lands within the

Reservation is strictly governed by the Rincon Band’s Hazardous Waste Code, Donius/RMCA

lack any assessment or protection measures whatsoever regarding hazardous waste on the

Subject Property – yet another example of irresponsible stewardship.

Fourth, there is no evidence that the house construction at issue in Evans was located

immediately adjacent to a tribal economic interests, such as the Fort Hall Casino and Resort,

such that problems with house construction threatens the primary source of governmental



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revenue finding tribal government and programs. In contrast, the Subject Property is immediately

adjacent to the Rincon Band’s primary source of governmental revenue and job generation, its

casino-resort.

Significantly, the Evans court did not negate or diminish Montana’s Second Exception.

Montana and its progeny, including the Ninth Circuit opinion in Elliot, are still good law. See

also Dolgencorp Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014),

affirmed in Dollar General v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2015).

Rather, Evans reaffirmed Montana’s Second Exception, but found that the Shoshone-Bannock

Tribe failed to proffer particularized evidence that Montana’s Second Exception applied. In

considering Donius/RMCA’s statements that the facts in this case and in Evans are “identical,”

this Court should ask/ponder whether the result in Evans would have been the same if Mr. Evans

had not secured the permits issued by Power County, if Mr. Evans had not been transparent

about his plans for developing the entirety of his fee lands within the Fort Hall Reservation, or if

the threat of groundwater pollution had been to a pristine, clean and fragile aquifer that was the

sole source of water to the Fort Hall Reservation, or if the house construction was to occur

immediately adjacent to the Fort Hall casino and resort. Donius/RMCA’s bald, unsupported

assertion that the facts here are the same as the facts that were at issue in Evans is completely

without merit.

3. Donius/RMCA’s tribal remedies were not exhausted by the Tribal Court’s determination on November 2, 2016 that the Court’s September 27, 2010 Preliminary Injunction remained valid and in effect.

Donius/RMCA argues that its obligation to exhaust tribal remedies ended during the Tribal

Court’s November 2, 2016 hearing addressing the Rincon Band’s Motion for the OSC as to why

Donius/RMCA should not be held in contempt for violation of the Preliminary Injunction still in



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effect, and further addressing Donius/RMCA’s renewed Motion for Partial Summary Judgment.

During that hearing, Judge Brandenburg stated that the Preliminary Injunction remained in

effect, and that he had made a preliminary determination in the context of granting the

Preliminary Injunction that there was a substantial likelihood that the Band would prevail on the

merits. In its motion to this Court, Donius/RMCA aver:

Plaintiff (RMCA) and Donius objected and argued that the injunction could no longer be valid and enforceable, especially since the Tribe has never tried to enforce it and has allowed Donius and RMCA to conduct business as usual since 2010.

MPA at 6. As discussed below, that statement is false, both in the assertion that the Rincon Band

has never tried to enforce the Preliminary Injunction and in the assertion that Donius and RMCA

continue to conduct business as usual. But even if it were true, it does not negate the elements of

contempt – the Preliminary Injunction was in effect and Donius/RMCA’s action of commencing

construction of a permanent building was in violation of that Order. In fact, the Rincon Band has

enforced the Order, including earlier seeking and obtaining a finding of contempt, and the

Rincon Band has monitored the activities on the Subject Property to the extent it can. “Business

as usual since 2010,” as evidenced by the many Notices of Violation (“NOV”) has been the use

of temporary structures. “Business as usual since 2010,” had been a supposed good-faith effort

on the part of Donius/RMCA to disclose its plans for activity on the Subject Property and to

secure a determination by the RED that provides a “safe harbor” from the Rincon Band’s

jurisdiction under Montana’s Second Exception. Although that effort did reveal Donius/RMCA’s

plans for a vehicle storage business for a small portion of the Subject Property, Donius/RMCA

did not disclose the construction of a permanent building (allegedly to become part of a produce

stand) or any other aspect regarding any other part of the Subject Property. The commencement

of the construction of a permanent structure was a sea-change. Although it is correct the Rincon



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Band could have stopped all activity per the terms of the Preliminary Injunction, the Rincon

Band made the conscious decision previously to tolerate minor, temporary activity while the

parties continued what appeared to be good faith efforts to settle the litigation or otherwise

resolve the dispute. To seek enforcement of the Preliminary Injunction in light of the blatant and

major change of activity, which was a sea-change from “business as usual,” was a proper action

taken by the Rincon Band. Moreover, the Rincon Band made it clear in open court during the

November 2, 2016 hearing, that it sought only to enforce the Preliminary Injunction as to the

construction of permanent structures. November 2, 2016 Hearing Transcript at 71-72.

Donius/RMCA sets out an entire section in its argument under the heading “A ruling on

Plaintiff’s motion for summary judgment or trial with respect to jurisdiction is now

unnecessary.” Donius/RMCA provides no analysis in the section – just conclusory statements.

Yet, Donius/RMCA’s counsel has informed that the Tribal Court that Donius/RMCA intends to

go forward with the January 31, 2017 trial. Moreover, at the January 4, 2017 hearing before the

Tribal Court, Donius/RMCA stated that it intended to pursue a ruling on its Renewed Motion for

Partial Summary Judgment. Ex. “A” to Crowell Decl., January 4, 2017 Hearing Transcript at 49.

The averment to this Court that further Tribal Court proceedings are unnecessary stands in direct

contradiction to Donius/RMCA’s actions before the Tribal Court. Either Donius/RMCA’s legal

counsel is making these statements without a basic misunderstanding of the lack of finality

regarding interlocutory rulings, or he is knowingly making a false statement to this Court.

Neither explanation is acceptable.

III. DONIUS/RMCA’S CLAIMS THAT EXHAUSTION OF ANY FURTHER TRIBAL REMEDIES WOULD BE FUTILE ARE WITHOUT MERIT

Donius/RMCA correctly cites to Ninth Circuit precedent as to exceptions to the tribal

exhaustion requirement. Such exceptions apply: (1) when an assertion of tribal court jurisdiction



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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 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 v. White Mountain Apache Tribal Court, 566

F.3d 842, 847 (9th Cir. 2009) (quoting Nevada v. Hicks, 533 U.S. 353, 369 (2001)).

Donius/RMCA then manufacture factual statements and distorts argument in an attempt to

establish those exceptions. The Rincon Band addresses each of Donius/RMCA’s arguments

below, but notes as an overarching response that Donius/RMCA fails to provide a single shred

of evidence to substantiate its claims.

A. The Pending Proceedings of the Tribal Court Provide Donius/RMCA the Opportunity to Challenge Montana Jurisdiction.

Donius/RMCA assert:

No matter what Donius and RMCA do in seeking summary judgment on their declaratory relief action with respect to regulatory jurisdiction under Montana, supra, or even going to trial on that issue, the Tribal Court has already predetermined its ruling. . . .Because the Tribal Court has already decided the issue of jurisdiction, it would be a waste of time, i.e., it would be futile, for Donius and RMCA to take this any further.

MPA at 9. There is no support whatsoever for asserting that the Tribal Court has already

“predetermined its ruling.” As set forth above, the fact that the Tribal Court Judge issued an

interlocutory preliminary injunction does not necessarily mean that the Judge will reach the same

conclusion after full consideration of the facts and arguments before entering final judgment.

Moreover, as set forth above, Judge Brandenburg made clear at the January 4, 2017 hearing that

he has not made up his mind, and that he will not do so until after he is presented with all of the

facts and arguments in the context of the trial.



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B. Donius/RMCA Were Not Denied the Opportunity to Appeal the September 2010 Preliminary Injunction Which was Based on a Determination of Regulatory Jurisdiction.

The Tribal Court includes a Court of Appeals. The ICSC rules allow for interlocutory

appeals from injunctions. See ICSC Code of Civil Procedure and Rules of the Court at § 7.701

and Inter-governmental Agreement at Ch.2 (both documents attached to Crowell Decl. as Exs.

“L” and “M”, respectively. Donius/RMCA has never sought an appeal, so it would be more

correct to say Donius/RMCA was provided an opportunity to appeal and failed to file such an

appeal, thus failing to exhaust tribal remedies. Moreover, upon entry of Final Judgment in this

matter, regardless of which party or parties prevail, Donius/RMCA will have a renewed

opportunity to appeal any and all of the decisions of the Tribal Court to the Tribal Court of

Appeals, and yet another opportunity to then properly reopen this case pursuant to National

Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985).

In inexplicable support for its contention, Donius/RMCA assert:

Had the Court of Appeals known about the 2010 preliminary injunction, it more than likely would not have held that RMCA was required to exhaust its tribal remedies.

MPA at 11. There is no basis for making such a statement. RMCA (the only plaintiff in this case

and the appellant to the Ninth Circuit) had every opportunity to so inform the Court of Appeals

and seek such clarification. Donius/RMCA appears to be arguing its own previous mistakes in

handling the appeal should now be rewarded by avoiding the requirement to exhaust tribal

remedies. Donius/RMCA is unable to point to any part of the Ninth Circuit’s decision that

impacts the status of the Preliminary Injunction in any way.

Moreover, assuming for purpose of argument only that Donius/RMCA is correct that the



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Ninth Circuit decision deprived the Tribal Court of issuing interlocutory orders, then

Donius/RMCA should have come forward to the Tribal Court with a motion to

reconsider/modify/amend its Preliminary Injunction. It did not do so, which in and of itself is a

failure to exhaust tribal remedies. Indeed, the Preliminary Injunction on its express terms, notes

the Tribal Court’s authority to lift, modify or amend the Preliminary Injunction, and encouraged

Donius/RMCA to pursue the opportunity in Tribal Court “to proceed to disposition in

accordance with the ITSC Code of Civil Procedure .” supra.

Donius/RMCA concedes that it failed to file a timely appeal of the 2010 Preliminary

Injunction. MPA at 12 (“The time to appeal the 2010 preliminary injunction expired in October

2010”), and then asserts:

“the Tribal Court entertained the Tribe’s OSC for civil contempt motion on November 2, 2016, and “reaffirmed” its September 2010 preliminary injunction, thereby cutting off Donius/RMCA’s right to appeal that order.”

MPA at 11-12. The Tribal Court’s “reaffirmation” of the 2010 Preliminary Injunction provided

yet another opportunity for an interlocutory appeal, which Donius/RMCA yet again failed to

pursue, either by certifying the issue for appeal or possibly an appeal as of right Moreover, even

though the time to appeal the 2010 Preliminary Injunction has by Donius/RMCA’s own

admission run, it could have, per the express direction of the Preliminary Injunction, moved to

lift, modify or amend the Order and if denied, would have had a new opportunity to appeal.

Upon closer review, Donius/RMCA’s concerns over the Tribal Court’s position on the

Preliminary Injunction provides yet another example of Donius/RMCA using its own procedural

failures to avail itself of the Tribal Court, as supposed evidence that its tribal remedies have been

exhausted. The correct conclusion is that Donius/RMCA, by its own failures, has failed to avail

itself of tribal remedies, and therefore, has failed to exhaust those tribal remedies.



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C. There is No Credible Evidence that Rincon Band Is Using Tribal Court for Purpose of Harassment.

Donius/RMCA make numerous conclusory statements that the Rincon Band’s actions in

this matter, before the Tribal Court, are for the sole purpose of harassment, forcing

Donius/RMCA to give up the property. For example:

Donius/RMCA contend that the Tribe wants to buy the subject property so it can

build a parking lot for its casino, and that the Tribe’s issuance of numerous NOVs

and suing Donius/RMCA over those NOVs are part of the Tribe’s efforts to

harass Donius/RMCA and force them to give up the property.

MPA at 14.

A cursory review of the Tribe’s written responses to Mr. Donan’s April 29, 2015 proposed plan on behalf of Donius/RMCA to operate a vehicle storage facility on the subject property, shows that the Tribe is merely harassing Donius/RMCA and never intended to ever approve such operations.

MPA at 15.

Clearly, the Tribe is attempting to hold Donius/RMCA hostage by falsely telling SDG&E that it has regulatory jurisdiction over the activities being conducted on the subject property and then using that to falsely claim Donius/RMCA are not in compliance with its environmental ordinances. Such conduct is harassing and in bad faith, thereby giving rise to an exception to the requirement to exhaust tribal remedies.

MPA at 17. They make these contention, but provide no evidence whatsoever that they are true.

Why would they be true? The Rincon Band is not land-poor. It already has sufficient parking on

its own trust lands, including plenty of land to add an additional parking garage adjacent to its

existing casino-resort facility. How does a reasonable request for additional information to

enable the RED to correctly assess adverse risks constitute “harassment” ? Quite the contrary is

correct – the RED was giving proper consideration to Donius/RMCA’s request, and was keeping



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the door open to issuing the safe harbor determination that if made, would have insulated

Donius/RMCA from assertion of Montana jurisdiction for actions consistent with the proposed

business plan. Specifically, the RED sought information that addressed its concern that toxic

fluids could leak through a cracked and aged cement slab of unknown strength and quality.

Specifically, the RED sought confirmation that Donius/RMCA secured a needed permit from the

Environmental Protection Agency (the “EPA”). (Doc. 83-2 at Exh 7). The Rincon Band has not

authorized SDG&E to replace any power transformers within the exterior boundaries of the

Rincon Reservation, not only Donius/RMCA’s, power transformers, and the issue of SDG&E’s

use of easements over the Rincon Reservation is separate and apart from the Montana

jurisdiction issues here. Simply put – there is no credible evidence whatsoever that the Rincon

Band is harassing Donius/RMCA through these legal proceedings.

These assertions are only in the heads of Donius and the officers of RMCA, if anywhere.

Paranoid wild imagination drafted into a “contention” does not provide any basis to meet the

futility exceptions articulated in Elliott.

D. There is No Credible Evidence that the Tribal Court Has Shown Favoritism Towards the Rincon Band.

Donius/RMCA make numerous conclusory statements that the Tribal Court has shown

favoritism towards the Rincon Band, see, e.g., “its biasness in favor of the Tribe.” MPA at 9,

and then devotes an entire section of its argument to the Tribal Court’s handling of

Donius/RMCA’s thrice-filed Motion for Partial Summary Judgment. What the record to the

Tribal Court proceedings demonstrates is that the Rincon Band did respond to the initial motion,

arguing that the motion should be denied pursuant to Fed. R. Civ. P. 56(f) in large part because

the parties were in the middle of discovery, including the taking of depositions of twelve fact or

expert witnesses, and further arguing that such discovery was likely to result in evidence



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disputing Donius/RMCA’s factual allegations. In denying the motion, the Court made clear that

Donius/RMCA could refile the motion, but only after discovery was complete. Donius/RMCA

then filed a Renewed Motion for Summary Judgment well before the completion of discovery ,

and Donius/RMCA now complains that the Rincon Band did not file a response to that motion,

which was clearly out of order. At the November 2, 2016 hearing, the Tribal Court again denied

the motion but allowed it to remain on calendar, to be heard after the close of discovery, which

was originally set for December 16, 2016. Also at the November 2, 2016 hearing, counsel for

Donius/RMCA waived in open court his client’s right to file reply pleadings. Discovery

subsequently closed. Because of unanticipated calendar conflicts, the Rincon band sought to

reschedule the Friday, December 16, 2016 hearing date to Monday December 19, 2016. The

Tribal Court, having no available dates from December 19, 2016 through the holidays,

rescheduled the hearing to January 4, 2017. Although the Rincon Band maintained the position

that the Renewed Motion for Summary Judgment remained out of order, and accordingly, no

responsive pleadings are required, the Rincon Band did submit an Opposition Brief and

Response to Proposed Material Facts Not in Dispute, citing with specificity contrary evidence

and the record in discovery. Regardless of the parties’ differing views as to when responsive

pleadings were due, legal counsel for Donius/RMCA, in open court at the January 4, 2017

hearing, waived his client’s objection regarding timeliness of the pleadings, and declined the

Tribal Court’s offer to provide more time to reply. See Ex. “A” attached to Crowell Decl.,

January 4, 2017 Hearing Transcript at 18-20. After consideration of the pleadings and oral

argument, the Tribal Court denied the renewed motion for summary judgment. Id. at 84.

There is no evidence that the Tribal Court’s disposition of the three summary judgment

motions shows any favoritism whatsoever. Donius/RMCA’s arguments to the contrary



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demonstrate yet another example of how Donius/RMCA’s spins its own failures as supposed

evidence of the Tribal Court’s bias – here, the blatant defiance of the Tribal Court’s Order that it

not file a Renewed Motion for Summary Judgment until after the completion of discovery.

IV. THE RINCON BAND IS COMPELLED TO CORRECT THE RECORD AS TO OTHER PROCEDURAL AND FACTUAL ASSERTIONS IN DONIUS/RMCA’s MOTION.

The Rincon Band disposes above of the alleged facts and arguments germane to

Donius/RMCA’s Motion to Reopen, above. However, there are numerous procedural and factual

assertions contained in Donius/RMCA’s MPA that are not germane to the Motion to Reopen,

that are simply wrong. Accordingly, the Rincon Band is compelled to correct them.

A. False Procedural Assertions

First, Donius/RMCA assert that Rincon issued NOVs “ “in response to” Donius/RMCA

filing tribal suit seeking declaratory action regarding Montana Jurisdiction.(MPA at 1). The RED

has issued numerous NOV’s over the course of two decades and during Donius/RMCA’s lack of

responsible stewardship over the Subject Property. Donius/RMCA provides no evidence that

suggests that Donius/RMCA’s filing of the lawsuit caused the RED to issue more NOVs. It is

correct to state that the filing of the lawsuit had the effect of informing the RED that

Donius/RMCA would no longer cooperate with the RED regarding information sufficient for the

RED to make a safe harbor determination,, such that the RED proceeded with issuing an NOV

regarding current activities conducted on the Subject Property.

Second, Donius/RMCA refers to the Rincon Band’s lawsuit against Donius/RMCA as a

counter-claim (MPA at 1). The Rincon Band’s lawsuit also includes the consolidation with the

Tribal Court lawsuit that was already at issue and pending at the time Donius/RMCA brought

this action in federal District Court.



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Third, Donius/RMCA assert: “When Donius/RMCA moved to compel further responses,

the Tribal Court denied that request, and ruled that the responses were sufficient. The attached

copy of those responses show clearly that they are not.” Judge Brandenburg ruled that providing

Donius/RMCA with the full Administrative Record of all NOVs and site visit reports, which

NOVs and reports identify with specificity the evidence, mostly in the context of extensive

photographs, that supports the NOVs, and providing Donius/RMCA with the full text and

supporting materials of the expert reports on water quality impacts and fire hazard impacts, was

sufficient. Donius/RMCA was provided the opportunity to depose the tribal officials involved in

each of those reports and in fact did depose several tribal officials about those reports.

Disagreement with the Judge Brandenburg over whether the responses were or were not

sufficient does not rise to the level of establishing harassment or otherwise excusing

Donius/RMCA from their obligation to exhaust tribal remedies. Further, Donius/RMCA has the

ability to challenge the Tribal Court’s decision on discovery in an appeal to the Tribal Court of

Appeals and/or in its ultimate Farmers Union appeal to this Court. Donius/RMCA provides no

analysis as to whether the Tribal Court abused its discretion in denying Donius/RMCA’s motion

to compel further answers to written discovery.

Fourth, Donius/RMCA asserts:

The Tribe’s counter-claim was based solely on its Notice of Violations (“NOV”) it issued and served on Donius and RMCA for various activities being conducted on the subject property which the Tribe contends violate its environmental ordinances and pose a catastrophic risk to the Tribe under Montana, supra, not the September 2010 preliminary injunction.”

MPA at 10. There is no basis for this allegation. The counterclaim is based on Donius/RMCA’s

pattern of activities over the course of their ownership of the Subject Property, albeit evidenced

in large part by the NOVs, together with the site reports, together with expert analysis, and other



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extrinsic evidence and documents identified in the NOVs.

B. False Factual Assertions.

Donius/RMCA makes numerous false factual assertions regarding the circumstances of

the 2010 Preliminary Injunction and the Rincon Band’s 2016 motion for the OSC regarding

contempt. It appears that these assertions are included here in an attempt to persuade this Court

as to the finality/lack of finality of the Tribal Court’s determination regarding jurisdiction under

Montana’s Second Exception.

First, Donius/RMCA asserts that the contempt motion was filed “after Donius

commenced construction of a small wall on the property to be used for a small fruit stand.” MPA

at 12. There is no evidence to support the assertion that the wall is to be a “small” wall;, or that

the fruit stand will be a “small” fruit stand. There was no effort to communicate any information

as to intent and purpose of the permanent construction. There was no effort to seek a non-

jurisdiction “safe harbor” letter from the RED. Donius/RMCA simply began construction of the

permanent structure while this litigation was pending and while the Preliminary Injunction wass

in effect.

. Second, Donius/RMCA asserts “Moreover, the Tribe lulled Donius and RMCA into a

false sense of security into believing that the September 2010 preliminary injunction order was

no longer in effect.’ MPA at 9. That assertion is not credible. Donius/RMCA proffers no

evidence whatsoever to support the assertion. Neither Donius/RMCA nor its legal counsel made

any inquiry to the Rincon Band regarding whether the Rincon Band’s position had ever changed.

The Rincon Band also wants the Montana jurisdiction issue resolved, and the Rincon Band

tolerated a minimal level of observable temporary activity, while continuing at all times to assert

that Tribe does have jurisdiction, and with the RED working in good faith regarding



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Donius/RMCA’s proposed plan for activity to occur on the Subject Property. Numerous requests

as to Donius/RMCA’s intentions for the remainder of Subject Property went unanswered. Tribal

Codes provided to opposing counsel state with explicit and specific terms the Rincon Band’s

process for dealing with such activities. No effort regarding permanent construction of a “wall”

or “produce stand” was ever mentioned/disclosed by Donius/RMCA to the Rincon Band.

Third, Donius/RMCA asserts:

“The Tribe even went so far as to correspond with Donius/RMCA about Donius/RMCA’s proposed plans to have a vehicle storage business on the subject property, and then specifically requested that Donius/RMCA obtain a storm drain permit from the U.S. Environmental Protection Agency (“EPA”), without even mentioning that such activities would purportedly violate the September 2010 preliminary injunction.”

MPA at 10. This assertion is baseless. The RED’s inquiry was in the context of submitting a plan

for the RED to issue a safe harbor determination, in which event the activity in question would

have been in compliance with tribal law. Any qualification/modification impact on the

Preliminary Injunction could have been addressed in the context of issuing the safe harbor

determination. Moreover, the administrative safe harbor process was pursued by the Rincon

Band, in large part, to moot or settle the litigation. Donius/RMCA provides no analysis

whatsoever on how or why the RED would refer to the Preliminary Injunction in its deliberations

on the proposed business plan.

Moreover, as discussed in greater detail above, the reality is that Donius/RMCA

deliberately violated the Preliminary Injunction and took the current dispute to a much more

elevated level by commencing construction of permanent structures without informing the RED,

or the Rincon Band’s legal counsel, without seeking reconsideration or modification of the

Preliminary Injunction, and without appealing to the ITCSC Appeals Court. At all times during

the commencement of the construction, there was nothing in the record or the law to suggest that



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the Preliminary Injunction was not still in effect..

Donius/RMCA also uses its Motion to Reopen to assert its own position regarding the

facts germane to the risks of catastrophic consequences, and at several junctures asserts facts that

are wrong, not supported by the evidence, or are presented in improper contexts. Those same

issues were asserted in Donius/RMCA’s Motion and Renewed Motion for Summary Judgment to

the Tribal Court. The Rincon Band submits its Response in Opposition to the renewed Motion

for Summary Judgment, together with its Response To Donius/RMCA’s Separate Statement Of

Undisputed Material Facts In Support Of Plaintiffs/Counter-Defendants’ Motion For Partial

Summary Judgment and the supporting declarations of Melissa Estes and Scott Crowell and

exhibits thereto (all attached to Crowell Decl. as Exs. “H” – “K”) and incorporates those

responses herein by reference, as if fully set forth herein.

CONCLUSION

For the reasons set forth herein, the most compelling of which is that trial on the issue of

jurisdiction under Montana’s Second Exception is set in the Tribal Court for January 31, 2017

through February 3, 2017, Donius/RMCA’s Motion to Reopen should be denied.

Respectfully submitted this 9th day of January, 2017

BY: s/ Scott Crowell SCOTT CROWELL Scott Crowell Pro Hac Vice Crowell Law Offices – Tribal Advocacy Group LLP 1487 W. State Route 89A, Ste. 8 Sedona, Arizona 86336 Telephone: (425) 802-5369 Fax: (509) 235-5017



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Denise Turner Walsh, SBN 254434 Attorney General Rincon Band of Luiseno Indians P.O. Box 1425 Pauma Valley, CA 92061 Telephone: (760) 681-6086 Fax: (760) 740-5144 Attorneys for Special Appearing Defendants BO MAZZETTI, JOHN CURRIER, VERNON WRIGHT, GILBERT PARADA, STEPHANIE SPENCER, CHARLIE KOLB and DICK WATENPAUGH


26 CERTIFICATE OF SERVICE 09-CV-2330 WQH POR

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CERTIFICATE OF SERVICE

I, Scott Crowell, hereby certify that the RESPONSE IN OPPOSITION TO

PLAINTIFF’S MOTION TO REOPEN CASE was filed through the ECF System

and therefore copies will be sent electronically to the registered participants as

identified on the Notice of Electronic Filing (NEF):

[email protected]

[email protected]

[email protected]

As of today there are no non-registered participants identified on the Notice of

Electronic Filing (NEF) Manual Mailing Notice List requiring paper copies to be

mailed.

Dated: January 9, 2017

/s/ Scott Crowell SCOTT CROWELL Email: [email protected]


1.9 -930 pm clean final draft response to mot. to reopen

Documents