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Austin v. Dietz

United States District Court, D. Utah, Central Division

March 13, 2017

MICHAEL P. AUSTIN, Plaintiff,
v.
GARY DIETZ, HOWARD G. WARREN, FERRINGTON EVANS, and WADE BUTTERFIELD, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

          Dee Benson United States District Judge

         Before 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' motion.

         BACKGROUND

         This 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.[1] 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.

         Procedural History

         Plaintiff first filed suit in 2011 in the Ute Tribal Court in Fort Duchesne, Utah. The case was dismissed without reaching the merits.[2] 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.[3]

         Plaintiff 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 pending.

         By 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.

         ANALYSIS

         When 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. 2010).

         I. INDIAN COUNTRY

         A. Historical Background

         In the 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.

         In 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.[4] At that time, title to land was not transferred ...


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