United States District Court, D. Utah, Central Division
MICHAEL P. AUSTIN, Plaintiff,
GARY DIETZ, HOWARD G. WARREN, FERRINGTON EVANS, and WADE BUTTERFIELD, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS
Benson United States District Judge
the Court is Defendants' Motion to Dismiss, brought
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction. [Dkt.12]. A hearing was held
before the Court on February 8, 2017. Plaintiff was
represented by John Hancock. Defendants were represented by
Gayle McKeachnie and Thomas Barton. Following oral argument,
the Court took the matter under advisement. Based on the
written and oral arguments of the parties and on the relevant
facts and the law, the Court hereby grants Defendants'
case concerns the boundary line between Plaintiffs property
and Defendants' properties located within the exterior
boundaries of the Unitah and Ouray Reservation ("the
Reservation") near Neola in Duchesne County, Utah.
Complaint ¶¶ 2, 6-10; Dkt. 12. All of the parties
own their lands privately. Complaint at ¶ 2;
see Ex. F at ¶ 9. None of the parties are
members of the Ute Tribe. Id. at ¶¶ 6-9.
Plaintiff asserts that the north boundary of his land is 35
feet north of an existing fence. In 2010, he removed part of
the existing fence and began construction of a new fence on
land that Defendants assert is their property. Plaintiff
filed this action seeking declaratory judgment as to the
property line and asserting causes of action against
Defendants for estoppel, trespass, conversion, and requesting
punitive damages. Id. at pp. 8-13.
first filed suit in 2011 in the Ute Tribal Court in Fort
Duchesne, Utah. The case was dismissed without reaching the
merits. Complaint ¶¶ 20-28. Plaintiff
filed again in 2012 in Tribal Court alleging claims for
estoppel, declaratory judgment, trespass, quiet title and
conversion. See Id. at ¶ 29. Defendants moved
to dismiss the case for lack of jurisdiction. Id. at
¶ 30; Ex. B to Dkt. 12. After briefing and oral
argument, the Tribal Court ruled that it lacked jurisdiction
over the conversion and trespass claims because they involve
the "conduct of non- Indians on fee land." Ex. C-l
to Dkt. 12 at p. 4. The Tribal Court stated that it would
have jurisdiction over the estoppel, declaratory judgment and
quiet title causes of action if the property is located
within its territorial jurisdiction. Id. The Tribal
Court ordered further briefing from the parties to determine
whether the property is within its jurisdiction under recent
Tenth Circuit Court rulings. Id. After further
briefing, Plaintiff made several attempts to encourage the
Tribal Court to consider and rule on the territorial
jurisdiction issue, to no avail. Plaintiff appealed the case
to a three-judge Tribal Panel, which sent it back to the
Tribal Court on the grounds that it had not yet been finally
decided by the Tribal Court. Id. at ¶¶
32-44; Ex. C-2 to Dkt. 12. Plaintiff filed a Petition for
Writ of Mandamus with the Tenth Circuit Court of Appeals
requesting an order compelling the Tribal Court to schedule a
hearing for oral argument and proceed with consideration of
the jurisdictional issue. Complaint at ¶¶ 47-48.
The Court of Appeals denied the petition.
filed his Complaint with this Court on May 31, 2016, claiming
he has exhausted any remedies available to him in the Tribal
Court. Id.; Dkt. 13. On September 13, 2016,
Defendants Dietz and Evans filed a complaint in the Eighth
Judicial District Court, Duschesne County seeking to restrain
Plaintiffs conduct and obtain damages and other relief.
See Ex. G to Dkt. 12. That matter is currently
their motion, Defendants seek dismissal of this action
asserting that the Court lacks subject-matter jurisdiction
for two, independent reasons: (1) the land involved in the
boundary dispute is not Indian Country; and (2) the parties
are not Ute Tribe members.
seeking dismissal under Rule 12(b)(1) for lack of subject
matter jurisdiction, "a party may go beyond allegations
contained in the complaint and challenge the facts upon which
subject matter jurisdiction depends." Hold v. United
States, 46 F.3d 1000, 1002-03 (10th Cir.
1995). "When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations. A
court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1)."
Id. See also Muscogee (Creek) Nation v. Oklahoma Tax
Com'n, 611 F.3d 1222, 1227 (10th Cir.
early 1800s, before the creation of what is now known as the
Uintah and Ouray Indian Reservation, a national system
emerged for the transfer of federal lands to private
citizens. Ex. A to Dkt. 15. The 1820 Sale Act provided that
individuals could purchase parcels of government-owned land
for $1.25 per acre. Ex. B to Dkt. 15. In 1862, the Homestead
Act was signed into law under which settler-farmers who
resided on and improved parcels of land for at least five
years could submit applications and file for deeds of title.
The Homestead Act provided that homesteaders alternatively
could commute this process and obtain title sooner by paying
the $1.25 per acre under the Sale Act of 1820.
1864, Congress confirmed President Abraham Lincoln's
reservation of approximately two million acres of land in the
Territory of Utah for Indian settlement and created what is
now known as the Uintah and Ouray Indian Reservation
("the Reservation"). See generally, Hagen v.
Utah, 510 U.S. 399, 402-408 (1994); Ute Indian Tribe
v. Myton, F.3d, No. 15-4080, pp. 3-4, 2016 WL 4502057
(10th Cir. August 29, 2016); Ute Indian Tribe
v. State of Utah,716 F.2d 1298-1303-13 (10th
Cir. 1983)("C/te IF). The Reservation was set
apart for the settlement and occupation of the Indians in the
territory. At that time, title to land was not