FILED
NOT FOR PUBLICATION APR 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RINCON MUSHROOM CORPORATION No. 10-56521
OF AMERICA, a California corporation,
D.C. No. 3:09-cv-02330-WQH-
Plaintiff - Appellant, POR
v.
MEMORANDUM*
BO MAZZETTI; JOHN CURRIER;
VERNON WRIGHT; GILBERT
PARADA; STEPHANIE SPENCER;
CHARLIE KOLB; DICK
WATENPAUGH,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted April 12, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SILVERMAN and RAWLINSON, Circuit Judges, and TUNHEIM,
District Judge.**
Appellant Rincon Mushroom Corporation of America (RMCA) challenges
the district court’s dismissal of RMCA’s Complaint for failure to exhaust tribal
remedies. RMCA argues that exhaustion is not required in this case because the
tribal court plainly lacks jurisdiction. We agree, and reverse the district court.
In this case, exhaustion is not required because “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)). A tribal
court plainly lacks jurisdiction where the basis of jurisdiction is not “colorable” or
“plausible.” Id. at 848 (citation omitted).
“As a general rule, . . . the tribe has no authority itself, by way of tribal
ordinance or actions in the tribal courts, to regulate the use of fee land.” Plains
Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 329 (2008)
(citation and internal quotation marks omitted). In this case, it is Montana’s
second exception to this general rule that is at issue. See Montana v. United States,
450 U.S. 544, 566 (1981). Under Montana’s second exception, “a tribe may
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
2
exercise ‘civil authority over the conduct of non-Indians on fee lands within the
reservation when that conduct threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the tribe. . . .’” Plains
Commerce, 554 U.S. at 329-30 (quoting Montana, 450 U.S. at 566). In evaluating
whether this case plainly falls outside of the scope of Montana’s second exception,
we must keep in mind that “[t]hese exceptions are limited ones, and cannot be
construed in a manner that would swallow the rule, or severely shrink it . . .” Id. at
330 (citations and internal quotation marks omitted).
The Tribe argues that the non-member fee land at issue could potentially
contaminate the Tribe’s water supply, or exacerbate a future fire that might damage
the Rincon Casino. However, these possibilities do not fall within Montana’s
second exception, which requires actual actions that have significantly impacted
the tribe. Compare id. at 341 (“The sale of formerly Indian-owned fee land to a
third party . . . cannot fairly be called ‘catastrophic’ for tribal self-government. . .
.”) (citation omitted); and Strate v. A-1 Contractors, 520 U.S. 438, 458-59 (1997)
(ruling that tribal court jurisdiction over tort suits is not “needed to preserve the
right of reservation Indians to make their own laws and be ruled by them”)
(citation and internal quotation marks omitted), with Elliott, 566 F.3d at 844, 849-
3
50 (holding that the tribal court had colorable jurisdiction where a non-Indian
started a forest fire on reservation land).
To hold that the potential threats of harm presented on this record1 give rise
to tribal jurisdiction under Montana’s second exception would allow the exception
to swallow the rule; any property within the Rincon Reservation faces similar
potential threats. See Plains Commerce, 554 U.S. at 330. Because the potential
threats did not create a plausible basis for tribal court jurisdiction, the district court
erred when it dismissed RMCA’s Complaint for failure to exhaust tribal remedies.
See Elliott, 566 F.3d at 848.2
REVERSED and REMANDED.
1
At oral argument, counsel for the Tribe urged us to send this case to the
tribal court to afford the Tribe an opportunity to produce additional evidence in
support of tribal jurisdiction. However, the Tribe had the burden to show tribal
jurisdiction in the district court proceedings. See Plains Commerce, 554 U.S. at
330 (“The burden rests on the tribe to establish one of the exceptions to Montana’s
general rule that would allow an extension of tribal authority to regulate
nonmembers on non-Indian fee land. . . .”) (citation omitted).
2
Our ruling here renders moot the district court’s decision to dismiss the case
rather than staying it.
4