HON. LONNY R. SUKO...LONNY R. SUKO Deputy Attorney General Mary Tennyson William G. Clark Assistant Attorneys General Attorney General of Washington PO Box 40110 Olympia, WA 98504-0110

PLS.’ OPP. TO MOT. DISMISS

NO. CV-12-3152-LRS

1 ATTORNEY GENERAL OF WASHINGTON Licensing & Administrative Law Division

1125 Washington Street, PO Box 40110

Olympia, WA 98504-0110

(360) 753-2702

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Rob Costello HON. LONNY R. SUKO Deputy Attorney General

Mary Tennyson

William G. Clark

Assistant Attorneys General

Attorney General of Washington

PO Box 40110


Telephone: (360) 753-2702

Fax: (360) 664-0174

E-Mail: [email protected]



UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

STATE OF WASHINGTON, WASHINGTON DEPARTMENT OF LICENSING, et al., Plaintiffs, v. THE TRIBAL COURT FOR THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION and its CHIEF TRIBAL COURT JUDGE TED STRONG, et al., Defendants.

NO. CV-12-3152-LRS PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS COMPLAINT

I. INTRODUCTION

In their Complaint, the Plaintiffs brought two claims. In Count I,

Plaintiffs allege that the Yakama Nation Tribal Court and its Chief Judge Ted

Strong have exceeded the lawful limits of the Tribal Court’s jurisdiction.

Case 2:12-cv-03152-LRS Document 78 Filed 01/25/13

mailto:[email protected]


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Plaintiffs filed this action after the Tribal Court issued a temporary restraining

order enjoining the sovereign State of Washington and state officials from

taking certain actions under a Consent Decree of this court. Plaintiffs seek

prospective injunctive relief, including the dissolution of all existing orders and

dismissal of the Tribal Court litigation. ECF No. 1 at 14.

In Count II, Plaintiffs seek to interpret and confirm the termination of a

Consent Decree entered by this Court in 1994 and amended in 2006. Plaintiffs

seek two types of relief. First, Plaintiffs seek declaratory and injunctive relief

confirming the termination of the Consent Decree and enjoining the Yakama

Nation from interfering with its termination through the filing of actions in

Tribal Court. Second, Plaintiffs seek damages for the Yakama Nation’s

breaches of the Consent Decree. ECF No. 1 at 14–15.

This Court has subject matter jurisdiction over Counts I and II under 28

U.S.C. § 1331. This Court has personal jurisdiction over Chief Judge Strong

under the tribal equivalent of Ex parte Young, 209 U.S. 123 (1908). This Court

has personal jurisdiction over the Yakama Nation because it has waived its

sovereign immunity. Count I states a claim upon which relief can be granted

because federal courts may enjoin tribal courts from exercising jurisdiction

unlawfully, and no exhaustion of tribal court remedies is required here. Count

II states a claim upon which relief can be granted because this Court has

authority to interpret, enforce, and dissolve its prior orders.



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II. FACTS

The following facts are drawn from the Complaint (ECF No. 1) and

documents proper for judicial notice, and must be accepted as true for purposes

of the Yakama Nation’s motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–56 (2007).

In 1993, the Yakama Nation and others filed an action in this Court

against officials of the Washington Department of Licensing, seeking relief

concerning the imposition and collection of state fuel taxes on fuel destined for

retail sale at certain outlets within the Yakama Reservation. Teo v. Steffenson,

No. CY-93-3050-AAM. The matter was resolved with a 24-page Consent

Decree entered by this Court in 1994. ECF No. 6 at 50–73.

In 2004, the Yakama Nation filed a petition in this Court to enforce the

Consent Decree. Teo v. Steffenson, No. CV-04-3079. That matter was resolved

with a Settlement Agreement, Agreed Changes To Consent Decree, And Order

entered by this Court in 2006. ECF No. 6 at 74–83; see ECF No. 1 ¶ 16.

The Consent Decree established a framework to implement the parties’

agreement regarding the imposition and collection of state fuel taxes. ECF No.

6 at 51. The State agreed to refrain from collecting state fuel taxes on 70

percent, later 75 percent, of the fuel sold to the Tribe or tribally-licensed

retailers within the Yakama Reservation. ECF No. 6 at 59–60, 77–78. The

Consent Decree described those percentages as “the parties’ best current



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estimate” of the amount of fuel that would ultimately be purchased at the pump

and used by the Yakama Nation and its members. Id. The parties agreed that

all other fuel would be subject to the State’s taxes. ECF No. 6 at 51–52, 60,

62–63, 78. Under this arrangement, fuel distributors paid 100 percent of the

state fuel tax when they withdrew fuel from the terminal rack, but then sold the

fuel to tribally-licensed retailers at a price that included only 30 percent, later

25 percent, of the state fuel tax. ECF No. 1 ¶ 19; ECF No. 6 at 60, 78. The

State refunded to the distributors the remaining fuel taxes they had paid at the

terminal rack. ECF No. 1 ¶¶ 21, 22; see id. ¶ 12.

Central to the Consent Decree was the parties’ agreement to identify,

track, and verify on-reservation fuel sales to the Nation, tribally-licensed

businesses, and tribal members, as distinct from other sales, such as sales to

non-tribal members. ECF No. 6 at 51–52, 55–56, 58–63, 77–80. The Consent

Decree required the Nation to keep, and to require its licensees to keep, detailed

records distinguishing tax-exempt from non-exempt sales, provide those records

to the State, and submit those records to the annual examination of a CPA

auditor. ECF No. 1 ¶¶ 23, 24; ECF No. 6 at 56, 60–70, 78–80. If the records

and audits demonstrated that the amount of fuel actually used by the Nation and

its members and businesses exceeded the 70 or 75 percent figure, then the State

would owe the Tribe an adjustment. Conversely, if the records and audits, or

lack thereof, demonstrated that tribal use was less than 70 or 75 percent, then



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the Tribe would owe the State an adjustment. ECF No. 1 ¶ 23; ECF No. 6 at

60–63, 78–79.

Despite the clear requirements in the Consent Decree, the Yakama

Nation has been unwilling or unable to enforce the record-keeping

requirements, and no audits have been completed since 2007. ECF No. 1 ¶ 27.

Over the course of several years, the Washington Department of

Licensing sought to procure the compliance of the Yakama Nation and its

members with the Consent Decree. ECF No. 1 ¶¶ 27, 28. The parties engaged

in several months of mediation. ECF No. 1 ¶¶ 25, 28. After mediation efforts

proved unsuccessful, the Department of Licensing invoked the termination

procedures of the Consent Decree and terminated by written notice on

December 5, 2012. ECF No. 1 ¶ 28.

On the same day, the Yakama Nation filed a lawsuit in the Yakama

Tribal Court against the sovereign State of Washington and its Governor, and

the Washington Department of Licensing and its Director. On minimal notice

to counsel for the State, the Yakama Nation obtained a temporary restraining

order from the Yakama Tribal Court which, in part, enjoined the State, the

Department of Licensing, and state officials from taking any further steps to

implement the termination of the Consent Decree. ECF No. 1 ¶ 29.

The Plaintiffs filed this lawsuit on December 17, 2012, and moved for a

preliminary injunction two days later. This Court granted the injunction on



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January 7, 2013, and enjoined the Defendants from conducting, initiating, or

participating in further proceedings under Yakama Nation Tribal Court Cause

No. R-13-019, pending further order of this Court. ECF No. 75.

III. ARGUMENT

A. Standards On A Motion To Dismiss

The Yakama Nation has moved to dismiss the Complaint under Fed. R.

Civ. P. 12(b)(1) (subject matter jurisdiction), 12(b)(2) (personal jurisdiction),

and 12(b)(6) (failure to state a claim upon which relief can be granted).1

Defendants generally agree with the Nation’s description of the standards under

Rules 12(b)(1) and 12(b)(2). ECF No. 68 at 3–4.

The Yakama Nation’s description of the standards under Rule 12(b)(6),

however, is incomplete. A Rule 12(b)(6) dismissal is proper only when a

complaint does not state a claim for relief that is plausible on its face, either

because the complaint does not make out a cognizable legal theory or does not

allege sufficient facts to support a cognizable legal theory. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009); Cervantes v. Countrywide Home Loans, Inc., 656

1 The Yakama Nation also objects to the sufficiency of service of

process, but the basis for that objection is unclear. ECF No. 68 at 2 n.1.

Plaintiffs properly effected service in accordance with Fed. R. Civ. P. 4. See

ECF Nos. 2, 3, 4.



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F.3d 1034, 1040–41 (9th Cir. 2011). The court must accept the alleged facts as

true and construe all inferences from them in the light most favorable to the

plaintiff. Ashcroft, 556 U.S. at 678; see Courtney v. Goltz, 868 F.Supp.2d 1143,

1144, 1147 (E.D. Wash. 2012). Here, the Yakama Nation improperly invites

the Court to accept as true its own version of the facts and ignores those in the

Complaint. The Court should decline that invitation.

When presented with a Rule 12(b)(6) motion, the court cannot consider

material outside the complaint except for matters appropriate for judicial notice,

such as the court’s prior orders and judgments. Pakootas v. Teck Cominco

Metals, Ltd., 632 F. Supp. 2d 1029, 1031–32 (E.D. Wash. 2009); see Fed. R.

Civ. P. 12(d). Here, the Yakama Nation relies extensively on materials that it

filed in the Yakama Tribal Court, but not in this Court. See ECF No. 68 at 3,

10, 20, 25, 26, 45. Plaintiffs had attached copies of the Tribal Court materials

to a declaration in support of Plaintiffs’ Motion for Preliminary Injunction, ECF

No. 7 at 12–102, ECF No. 8, but resubmitted the declaration without the Tribal

Court materials after the Yakama Nation moved to strike. ECF No. 60; see

ECF No. 59 at 7–8. The materials the Yakama Nation filed in the Tribal Court

are not in the record, and the Court should disregard them in considering the

Nation’s motion to dismiss.

The allegations in Count I of the Complaint, accepted as true and

construed in a light most favorable to Plaintiffs, state a claim for relief under the



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federal common law regarding tribal court jurisdiction and the Yakama Treaty.

The allegations in Count II state a claim for relief under the Consent Decree.

B. The Yakama Nation Has Identified No Basis For Dismissing Count I

1. This Court has subject matter jurisdiction over Count I and

personal jurisdiction over Chief Judge Strong.

In Count I, Plaintiffs allege that the Yakama Tribal Court has exceeded

the lawful limits of its jurisdiction. Whether a tribal court has exceeded its

jurisdiction is a federal question under 28 U.S.C. § 1331. E.g., Nat’l Farmers

Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 852–53 (1985); Boozer v Wilder,

381 F.3d 931, 934 (9 th Cir. 2004). The Yakama Nation accepts this, ECF No.

68 at 36, 45, but says this Court lacks subject matter jurisdiction because

Plaintiffs have not exhausted tribal court remedies and there has been no waiver

of sovereign immunity. Id. at 14. The Nation is incorrect.

First, exhaustion of tribal court remedies is prudential, not jurisdictional.

Strate v. A-1 Contractors, 520 U.S. 438, 450–51 (1997); Cnty. of Lewis v. Allen,

163 F.3d 509, 516 (9th Cir. 1998) (en banc). Thus, the Yakama Nation’s

attempt to rely on materials outside the pleadings for its exhaustion argument is

not a proper use of the rule that a federal court may look beyond the complaint

to resolve a factual challenge to subject matter jurisdiction. Cf. White v. Lee,

227 F.3d 1214, 1242 (9th Cir. 2000) (court properly considered materials

beyond complaint in determining whether claim was moot). Moreover,



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exhaustion is not always required. It is not required when it is “plain” that

tribal court jurisdiction is lacking, so that exhaustion would serve no purpose

other than delay. Nevada v. Hicks, 533 U.S. 353, 369 (2001).

This Court has already ruled that the “plainly lacking” exception to

exhaustion applies in this case. ECF No. 75 at 5. Paragraph 4.6 of the Consent

Decree provides that a party seeking to enforce the Consent Decree may

petition “the Court,” which can only mean this Court, not the Yakama Tribal

Court. Id. at 3–5; ECF No. 6 at 56–57. This Court has also recognized that

there is no authority holding that a State sovereign entity is subject to the

jurisdiction of a tribal court. ECF No. 75 at 5 & n.2; see Hicks, 533 U.S. at 369

(“tribal courts lack jurisdiction over state officials for causes of action relating

to their performance of official duties”); Cnty. of Lewis, 163 F.3d at 514–15

(tribal court lacked jurisdiction over tort claim against state police officer acting

under authority of tribal-state agreement).

Second, sovereign immunity is not a bar to this Court’s jurisdiction over

Count I or over the Defendants. Plaintiffs seek prospective injunctive relief

against Chief Judge Strong in his official capacity. ECF No. 1 at 4, 15. Tribal

officials, including tribal judges, may be sued for prospective injunctive relief

for violations of federal law under the doctrine of Ex parte Young. E.g., Salt

River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1177,

1181–82 (9th Cir. 2012); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,



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1154–56 (10th Cir. 2011). Tribal sovereign immunity is not a bar to such a suit.

Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir.

2007); Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901–02 (9th

Cir. 1991). A tribal judge who attempts to assert jurisdiction in violation of

federal law is acting outside the scope of his authority and is not protected by

tribal sovereign immunity. See Crowe & Dunlevy, 640 F.3d at 1155–56.

This Court has subject matter jurisdiction over Count I and personal

jurisdiction over Chief Judge Strong.

2. Count I states a claim upon which relief can be granted under

the federal common law regarding tribal court jurisdiction and under the Yakama Treaty.

The Yakama Nation apparently argues that Count I fails to state a claim

upon which relief can be granted because Plaintiffs have not exhausted tribal

court remedies. As discussed above, exhaustion is not required in this case.

On a motion to dismiss for failure to state a claim, the court must accept

as true the facts alleged in the complaint, and construe all inferences from them

in the light most favorable to the plaintiff. Ashcroft, 556 U.S. at 678. Instead of

doing that, the Yakama Nation offers its own view of the facts, as set forth in

materials it filed in the Tribal Court but not in this Court, and argues that the

Yakama Tribal Court’s jurisdiction over this dispute is colorable. ECF No. 68

at 17–28. The Yakama Nation’s reliance on the Tribal Court materials is

improper, and the Court should disregard them. Pakootas, 632 F. Supp. 2d at



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1031–32. As described in the Complaint; ECF No. 1 ¶¶ 16, 29; and largely

admitted in the Yakama Nation’s Answer; ECF No. 76 at 5–7; the Tribal Court

has attempted to exercise jurisdiction over the sovereign State and state officials

in an action involving a Consent Decree of this Court. The Complaint states on

its face a plausible claim that the Tribal Court plainly lacks jurisdiction under

the federal common law. See ECF No. 75 at 5.

The Yakama Nation also argues that the Plaintiffs have not stated a claim

upon which relief can be granted under the Yakama Treaty. ECF No. 68 at 35–

39. The Nation is incorrect. Plaintiffs allege that the Yakama Nation Tribal

Court and its Chief Judge have exceeded the lawful limits of the Tribal Court’s

jurisdiction. ECF No. 1 ¶ 33. Effectively, that is a claim that the Tribal Court

has exceeded its authority under the Yakama Treaty, because the Yakama

Treaty is the legal instrument through which the United States recognized the

Yakama Nation as a political entity that can establish courts. See ECF No. 1

¶ 9. The Yakama Tribal Court has only those powers preserved to the Nation

under the Yakama Treaty or conferred by Congress. See Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191, 206–08 (1978); Philip Morris USA, Inc. v. King

Mountain Tobacco Co., Inc., 569 F.3d 932, 937 (9th Cir. 2009). By alleging

that the Tribal Court has exceeded its lawful powers, the Complaint states a

claim upon which relief can be granted under the Yakama Treaty. See Montana



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v. United States, 450 U.S. 544, 557–61 (1981) (treaties did not empower Tribe

to restrict non-Indian hunting on private land within reservation).

C. The Yakama Nation Has Identified No Basis For Dismissing Count II

1. This Court has subject matter jurisdiction over Count II and

personal jurisdiction over the Yakama Nation.

In Count II of the Complaint, Plaintiffs ask the Court to interpret a

Consent Decree that this Court entered in 1994 and amended in 2006. Federal

courts have subject matter jurisdiction to interpret, enforce, or dissolve their

prior orders and judgments, including consent decrees. Nehmer v. U.S. Dep’t of

Veterans Affairs, 494 F.3d 846, 856, 860–61 (9th Cir. 2007).

The Yakama Nation urges, however, that the Court “disclaimed”

jurisdiction when it entered an order incorporating the parties’ agreed

amendments to the Consent Decree in 2006. ECF No. 68 at 41–44. The 2006

amendments deleted from the 1994 Consent Decree “the provisions of ¶ 4.1 and

¶ 4.2 for maintaining the continuing jurisdiction of the court.” ECF No. 6 at 76

¶ H. Paragraphs 4.1 and 4.2 had provided that the Court would retain

jurisdiction under the same cause number for one year to enforce the Consent

Decree. After that, a party seeking to enforce the Consent Decree would be

required to file a new action and pay a new filing fee. ECF No. 6 at 54–55.

According to the Nation, deleting the continuing jurisdiction provisions



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transformed the Consent Decree into a private contract, not a federal court

order. This Court should reject those arguments.

“Continuing jurisdiction” commonly means keeping a case open under

the same cause number to enable the court to supervise implementation of a

judgment. That is the meaning suggested by Paragraphs 4.1 and 4.2 of the 1994

Consent Decree, and it is consistent with the parties’ historical relationship.

The Yakama Nation and the State of Washington are parties to two treaty

fishing rights cases in which the courts have retained “continuing jurisdiction”

to implement judgments entered decades ago, United States v. Oregon, Civil

No. 68-513 (D. Or.), and United States v. Washington, Civil No. 70-9213 (W.D.

Wash.). See Sohappy v. Smith, 302 F. Supp. 899, 911 (D. Or. 1969) (continuing

jurisdiction in 68-513);2 United States v. Washington, 384 F. Supp. 312, 333,

347, 405, 419 (W.D. Wash. 1974) (continuing jurisdiction in 70-9213); United

States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th

Cir. 2010) (Yakama/Colville dispute under continuing jurisdiction of 68-513).

Closing a case—terminating continuing jurisdiction—does not deprive a federal

court of the power to enforce its decrees. See Hook v. Ariz. Dep’t of

Corrections, 972 F.2d 1012, 1014, 1016 (9th Cir. 1992). It means only that a

2 The State of Washington intervened in 68-513 in 1974. See Sohappy v.

Smith, 529 F.2d 570 (9th Cir. 1976).



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party seeking to modify or enforce a decree must either reopen the case or file a

new action under a new cause number. See Fed. R. Civ. P. 60.

The Yakama Nation insists, however, that Plaintiffs must demonstrate an

independent basis of jurisdiction before the Court can terminate or enforce the

Consent Decree, citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375

(1994), and its progeny. ECF No. 68 at 39–45. In Kokkonen, parties in a case

based on diversity jurisdiction settled state-law claims with a settlement

agreement, and filed a stipulation of dismissal under Fed. R. Civ. P. 41(a)(1)

that did not incorporate or refer to the settlement agreement. When one party

sought to enforce the settlement agreement in federal court, the Supreme Court

held that subject matter jurisdiction was lacking. 511 U.S. at 382. The Yakama

Nation cites many cases that, like Kokkonen, involved situations where parties

stipulated to a voluntary dismissal without an order retaining jurisdiction or

incorporating the terms of the settlement, and says such cases apply here.3

They do not apply here. The rule in Kokkonen is that if the parties’

obligation to comply with the terms of a settlement agreement is made part of

the order of dismissal, either by (1) a separate provision retaining jurisdiction

3 The Yakama Nation improperly cites McMahon Foundation v.

Amerada Hess Corp., 98 F. App’x 267 (5th Cir. 2004), in violation of Local

Rule 7.1(g)(2). ECF No. 68 at 42. The Court should disregard that citation.



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over the settlement agreement, or by (2) incorporating the terms of the

settlement agreement in the order, “a breach of the agreement would be a

violation of the order,” providing the federal court with ancillary jurisdiction.

Kokkonen, 511 U.S. at 381. Only in the absence of both Kokkonen

“exceptions” must enforcement of a settlement agreement have an independent

basis of federal jurisdiction.

Here, the 1994 Consent Decree met both “exceptions.” The Court

expressly retained jurisdiction, and the terms of the settlement were

incorporated into the Court’s order. The 2006 amendments deleted language

about continuing jurisdiction, but the terms of the settlement, as amended, were

incorporated into the Court’s order. ECF No. 6 at 74–82. Thus, one of the

Kokkonen exceptions applies, and this Court has jurisdiction to interpret,

enforce, vacate, or dissolve the Consent Decree in this case. Myers v. Richland

Cnty., 429 F.3d 740, 747 (8th Cir. 2005).

The Yakama Nation also argues that the Nation’s sovereign immunity

deprives the Court of jurisdiction over Count II and over the Yakama Nation.

ECF No. 68 at 28–33. That is wrong for at least two reasons.

First, in ¶ 4.2 of the 1994 Consent Decree, the parties agreed that either

of them could “initiate an action in this Court at any time for the limited

purpose of requesting the Court to enforce the terms of this Consent Decree.”

Both parties expressly “consent[ed] to such an action being brought for the



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limited purpose of enforcing this Consent Decree, including an action to

recover monies alleged to be owed either party under ¶ 4.11.” ECF No. 6 at 55.

In 2006, the parties agreed to delete “the provisions of ¶ 4.1 and ¶ 4.2 for

maintaining the continuing jurisdiction of the court,” but said nothing about

deleting the provisions waiving sovereign immunity. ECF No. 6 at 76.

Second, even if, as the Nation erroneously contends, the 2006

amendments had deleted all of ¶ 4.2, sovereign immunity would not bar

equitable relief against the Nation under the Consent Decree. By seeking equity

when it filed the lawsuits that resulted in the 1994 and 2006 Consent Decrees,

the Yakama Nation assumed the risk that it would be bound by any resulting

equitable decree or order modifying that decree. United States v. Oregon, 657

F.2d 1009, 1015 (9th Cir. 1981) (affirming preliminary injunction against

Yakama Nation).

This Court has subject matter jurisdiction over Count II and personal

jurisdiction over the Yakama Nation.

2. Count II states a claim upon which relief can be granted under

the Consent Decree.

The Yakama Nation contends that Count II fails to state a claim upon

which relief can be granted under the Consent Decree because the Consent

Decree requires the parties to stay in mediation indefinitely, until the mediator



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declares impasse, before filing a lawsuit in a court. ECF No. 68 at 5–13. The

Consent Decree cannot reasonably be so construed.

Neither the 1994 Consent Decree nor its 2006 amended version required

the parties to engage in mediation until it was successfully concluded or until

the mediator declared that the parties were at an impasse. The dispute

resolution language in ¶ 4.7(d) of the 1994 decree was qualified by ¶ 4.7(e), in

that either party could terminate mediation and resort to this Court to resolve

any dispute left unresolved 30 days after a mediator was selected. ECF No. 6 at

57–58. In the amended 2006 Consent Decree, the enforcement option

contained in ¶ 4.7(e) was deleted and replaced with a right-to-terminate clause

added at the end of ¶ 4.7(d): “[I]f a dispute is unresolved for more than 180

days, either party may give notice of intent to terminate this agreement as

provided for infra.” ECF No. 6 at 76. The process for exercising the right to

terminate under ¶ 4.7(d) was included in new ¶ 4.27 of the amended Consent

Decree:

[I]f a party objects to continued participation in the processes and framework provided for in this decree and desires to withdraw and terminate the agreement, it may do so only upon not less than one hundred eighty (180) days written notice to the other party and a government to government meeting or consultation between them occurs to discuss their proposed reasons for doing so.



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ECF No. 6 at 81. Paragraph 4.27 contradicts the Nation’s position that the State

could not terminate the consent decree unless and until the mediator determined

that the parties were at an impasse.

The Yakama Nation asserts, however, that the Consent Decree must be

construed against Plaintiffs because they drafted it. ECF No. 68 at 10, 13, 33,

45. This assertion is puzzling because the Yakama Nation brought the litigation

that resulted in the 1994 Consent Decree and the 2006 amendments. The

Nation had the power to reject any settlement and could have sought a litigated

outcome. Moreover, ¶ 1.1 of the 1994 Consent Decree expressly recites that the

“Consent Decree is the result of each party’s good faith effort to resolve this

case.” ECF No. 6 at 50. The rule that contracts should be construed against the

drafter does not apply here.

Count II of the Complaint states on its face a plausible claim for relief

under the Consent Decree.



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IV. CONCLUSION

The Yakama Nation’s motion to dismiss should be denied.

DATED this 25th day of January, 2013.

ROBERT W. FERGUSON Attorney General s/ Rob Costello ROB COSTELLO, WSBA #12920 Deputy Attorney General MARY TENNYSON, WSBA #11197 WILLIAM G. CLARK, WSBA #9234 Assistant Attorneys General Attorneys for Plaintiffs



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PROOF OF SERVICE

I hereby certify that on the 25th day of January, 2013, I caused the

foregoing document to be electronically filed with the Clerk of the Court using

the CM/ECF system which will send notification of such filing to all parties or

their counsel of record to the following:

COUNSEL FOR DEFENDANT CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION Gabriel S. Galanda Anthony S. Broadman Ryan D. Dreveskracht Galanda Broadman PLLC 8606 35th Ave. NE, Ste. L1 PO Box 15146 Seattle, WA 98115 (206) 691-3631 Fax: (206) 299-7690 Email: [email protected] Email: [email protected] Email: [email protected]

I hereby further certify that I have mailed by United States Postal

Service the document to the following non-CM/ECF participants:

DEFENDANTS The Tribal Court for the Confederated Tribes and Bands of the Yakama Nation PO Box 151, Fort Road Toppenish, WA 98948-0151 Chief Tribal Court Judge Ted Strong PO Box 151, Fort Road Toppenish, WA 98948






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I declare under penalty of perjury under the laws of the state of

Washington that the foregoing is true and correct.

DATED this 25th day of January, 2013 at Olympia, Washington.

ROBERT W. FERGUSON Attorney General By: s/ Rob Costello ROB COSTELLO, WSBA #12920 Deputy Attorney General MARY TENNYSON, WSBA #11197 WILLIAM G. CLARK, WSBA #9234 Assistant Attorneys General Attorneys for Plaintiffs


Documents

HON. LONNY R. SUKO...LONNY R. SUKO Deputy Attorney General Mary Tennyson William G. Clark Assistant Attorneys General Attorney General of Washington PO Box 40110 Olympia, WA 98504-0110