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Harvey v. UTE Indian Tribe of Uintah

Supreme Court of Utah

November 7, 2017

Ryan Harvey, Rocks Off, Inc., and Wild Cat Rentals, Inc., Appellants,
v.
Ute Indian Tribe of the Uintah and Ouray Reservation, et al., [1] Appellees.

         On Direct Appeal Eighth District, Roosevelt The Honorable Samuel P. Chiara No. 130000009

          Clark B. Allred, Bradley D. Brotherson, Vernal, UT, John D. Hancock, Roosevelt, UT, for appellants

          Christopher R. Hogle, Karina Sargsian, J. Preston Stieff, Patrick S. Boice, Craig H. Howe, Deborah Chandler, Salt Lake City, Calvin M. Hatch, South Jordan, UT, Daniel S. Press, Washington, D.C., for appellees

          Justice Durham authored the opinion of the Court in which Judge Toomey joined.

          Having recused himself, Justice Pearce does not participate herein; Court of Appeals Judge Kate Toomey sat.

          OPINION

          DURHAM JUSTICE

         INTRODUCTION

         ¶1 The oil and gas industry is a major economic force in the Uintah Basin. This industry relies, to some extent, on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. The plaintiffs allege that, through its ability to restrict the industry's access to tribal lands, the tribe has held hostage the economy of the non-Indian population.

         ¶2 Ryan Harvey, a plaintiff and part owner of the two corporations that are the other plaintiffs in this case, alleges that tribal officials from the Ute Tribe attempted to extort him by threatening to shut down his businesses if he did not acquiesce to their demands, despite the fact that his businesses do not operate directly on tribal land. After his refusal to make certain payments, the tribal officials sent a letter to the oil and gas companies operating on tribal land informing them that they would be subject to sanctions if they used any of Harvey's businesses. The tribal official's letter dried up a large portion of Harvey's business, and Harvey brought claims against the tribe, the tribal officials, various companies owned by the tribal officials, oil and gas companies, and other private companies he alleges are complicit in this extortionate behavior. Most of the defendants filed motions to dismiss on various grounds and the district court dismissed Harvey's claims against all of the defendants. On direct appeal, Harvey seeks to set aside the dismissals. We affirm the dismissal of the Ute Tribe under sovereign immunity and the dismissal of Newfield, LaRose Construction, and D. Ray C. Enterprises for failure to state a claim upon which relief can be granted. But we vacate the dismissal of the remaining defendants and remand for further proceedings consistent with the tribal exhaustion doctrine.

         ¶3 Given the somewhat unique character of this opinion, we take this opportunity to explain the outcome. All sitting members concur in the entirety of the opinion, except for Part IV, in which Chief Justice Durrant and Associate Chief Justice Lee dissent. Justice Himonas concurs in all of the analysis in the majority opinion and writes separately to further explain his reasons for joining. The majority opinion incorporates Justice Himonas's concurring opinion.

         BACKGROUND

         ¶4 The Ute Tribal Employment Rights Office (UTERO), a subdivision of the Ute Tribal government, manages the tribe's business activities and internal affairs. There are three members of UTERO who are named parties in this action: Director Sheila Wopsock, Commissioner Dino Cesspooch, and Commissioner Jackie LaRose (collectively "tribal officials").

         ¶5 Ryan Harvey and his wife, as beneficiaries of their respective trusts, own Rocks Off, Inc. and Wild Cat Rentals, Inc. Rocks Off derives most of its income from providing dirt, sand, and gravel to oil and gas companies including Newfield.[2] Wild Cat Rentals leases heavy equipment to other companies and individuals. Both are located on private fee land and do not directly access Ute Tribal land, but the items they sell and lease are often used on tribal land by the leasing or buying companies.

         ¶6 Beginning in late 2012, Commissioner Cesspooch began demanding that Harvey obtain permits for his businesses from the UTERO Commission or Commissioner Cesspooch would "shut [them] down."[3] Harvey attempted to explain that his businesses did not operate directly on tribal land, so he should not need a permit; however, Commissioner Cesspooch continued to put pressure on Harvey by allegedly threatening to impound all of his heavy equipment.[4] Harvey eventually relented and obtained a Ute Business License and an Access Permit from UTERO for Rocks Off.

         ¶7 Shortly after Harvey obtained the license and permit, Commissioner Cesspooch claimed that the license and permit were forged. Harvey met with Commissioner Cesspooch and discussed the issue. After the meeting, Harvey believed that the misunderstanding had been corrected and that Commissioner Cesspooch was no longer challenging the validity of the documents.

         ¶8 Not long after the meeting, Harvey was driving down a road off of tribal land when Commissioner Cesspooch "pulled his vehicle next to [Harvey's] and aggressively pointed for him to pull over." After pulling into a parking lot, Commissioner Cesspooch and Harvey had a conversation, during which Commissioner Cesspooch told Harvey that he "sure needed a good riding horse." Harvey understood this to be a demand for a bribe, but did not agree to pay or pay any money at that time.

         ¶9 On March 15, 2013, soon after the incident with Commissioner Cesspooch, Harvey received a letter that was sent by the UTERO Commission and signed by Director Wopsock. It stated,

[T]he Director of the [Energy and Mineral] Department has decided to revoke your access permit effective immediately. . . .
The UTERO Ordinance necessarily requires that all employers subject to its Ordinance be lawfully permitted on the Reservation to perform work. Without lawful entrance upon the Reservation, Rocks Off, Inc. fails to meet the minimum standard to perform work under the provisions of the UTERO Ordinance.
In addition to the above described actions, this letter also serves as a formal notice . . . that the UTERO Commission believes that you are not in compliance with the terms of the [UTERO] Ordinance. Specifically, the UTERO Commission has reason to believe that your company has been engaging in potentially fraudulent activities, including the submission of false and inaccurate official tribal, state, and federal documents. . . .

         ¶10 Then, on March 20, 2013, the UTERO Commission sent a letter to "all Oil & Gas Companies." It stated that "Rocks Off, Inc. - Ryan Harvey, " along with another business that is not a party to this case, no longer had access permits "for failure to comply with the UTERO Ordinance . . . ." It went on,

As a result of such action, these businesses and individuals are no longer authorized to perform work on the Uintah and Ouray Reservation. Any use of these businesses and individuals by an employer doing work on the Reservation after receipt of this Notice may result in the assessment of penalties and/or sanctions against such employer to the fullest extent of the law.

         ¶11 After receiving this letter, Newfield and other oil and gas companies ceased using Rocks Off, and ceased using other businesses that leased or bought items from Rocks Off. Harvey alleges that Commissioner LaRose, who owns an interest in LaRose Construction, received bribes and work from Harvey's competitor, Huffman Enterprises, to induce Commissioner LaRose to abuse his position and divert business away from Rocks Off.

         ¶12 Harvey brought this action seeking declaratory judgments that the tribe and its officials exceeded their jurisdiction, injunctions against all of the defendants, and damages. He brought seven claims. Two are federal claims that the tribe and the tribal officials exceeded their jurisdiction. Five of his claims are state law claims: 1) Tortious Interference with Economic Relations; 2) Extortion against Cesspooch and Wopsock; 3) Utah Antitrust Act violations; 4) Blacklisting; and 5) Civil Conspiracy. Three motions to dismiss the amended complaint were filed by the different defendants. The Ute Tribe, Huffman Enterprises, and L.C. Welding & Construction moved to dismiss the tribe for lack of subject matter jurisdiction under the theory of tribal sovereign immunity and under the tribal exhaustion doctrine. See Utah R. Civ. P. 12(b)(1). They also moved to dismiss the other defendants, arguing that the tribe is a necessary and indispensable party that cannot be joined to the action. See id. 12(b)(7); id. 19. All of the other defendants joined in this motion.[5]Various other defendants moved to dismiss for failure to state a claim upon which relief can be granted. See id. 12(b)(6). After all of the motions to dismiss had been completely briefed, and after oral arguments were held, Harvey moved to supplement his amended complaint under Utah Rule of Civil Procedure 15(d). The district court held that the motion to supplement the amended complaint was untimely, refused to consider the additional facts in the supplement, and dismissed the amended complaint against all of the defendants with prejudice.

         ¶13 The district court held that the tribe and the tribal officials, in their official capacities, enjoyed sovereign immunity and dismissed them under Utah Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The remaining defendants, including the tribal officials in their individual capacities, were dismissed under rule 12(b)(7) for the inability to join the tribe, which the court held was an indispensable party. Finally, Newfield, LaRose Construction, and D. Ray C. Enterprises were dismissed on alternate grounds under rule 12(b)(6) for failure to state a claim upon which relief may be granted. Although the district court did not directly rule on the tribal exhaustion doctrine, stating that it "has already granted the Tribe's Motion to Dismiss, making this issue moot, " it essentially did so in substance. It stated that Harvey's claim that the tribal officials exceeded the jurisdiction of the tribe or acted outside the scope of their authority under tribal law must be addressed in the tribal court.

         STANDARD OF REVIEW

         ¶14 "[S]ubject matter jurisdiction is a question of law" that is reviewed for correctness, "and we accordingly afford no discretion to [the district court's] decision." Johnson v. Johnson, 2010 UT 28, ¶ 6, 234 P.3d 1100. We review the grant of a motion to dismiss under Utah Rule of Civil Procedure 12(b)(6) for correctness. St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). We review a district court's dismissal of a complaint for failure to join an indispensable party for abuse of discretion and the district court's underlying legal conclusions for correctness. See Green v. Louder, 2001 UT 62, ¶ 40, 29 P.3d 638 ("A trial court's determination of whether a party should be joined to an action will not be disturbed absent an abuse of discretion."); Salt River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012) ("We review a Rule 19 dismissal for abuse of discretion and underlying legal conclusions de novo."). We review a district court's denial of a motion to supplement a pleading for abuse of discretion. See Rowley v. Milford City, 352 P.2d 225, 226 (Utah 1960) ("[P]ermitting supplementary pleadings is largely discretionary with the trial court.").

         ANALYSIS

         ¶15 We first discuss the Ute Tribe's immunity from suit. Next, we address the immunity enjoyed by the tribal officials in their official and their individual capacities. We then determine that the tribe is not a necessary and indispensable party, but that the extent of the tribe's jurisdiction should be determined by the tribal court in the first instance. We then address Harvey's motion to supplement his amended complaint. Finally, we address the various motions to dismiss that were granted under Utah Rule of Civil Procedure 12(b)(6).

         I. THE UTE TRIBE DID NOT WAIVE SOVEREIGN IMMUNITY

         ¶16 "As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). This immunity extends to on- or off-reservation activities, id. at 760, and includes claims in "civil actions for injunctive or declaratory relief." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978). "The issue of sovereign immunity is jurisdictional, " depriving this court of jurisdiction if the tribe has not waived its immunity or Congress has not authorized the suit. Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 318 (10th Cir. 1982). Additionally, the "waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Santa Clara Pueblo, 436 U.S. at 58 (internal quotation marks omitted) (citation omitted); see also C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001) (A tribe's waiver of sovereign immunity "must be 'clear.'" (citation omitted)).

         ¶17 The district court held that the Ute Tribe did not waive its sovereign immunity, but Harvey argues that the tribe has waived it by making a general appearance in the case. Harvey claims that the tribe made a general appearance when it sought "affirmative relief from the trial court" by moving to dismiss itself under sovereign immunity and moving to dismiss the remaining defendants because the tribe is a necessary and indispensable party. The tribe counters Harvey's general appearance argument on two grounds. First, the tribe argues that sovereign immunity is an issue of subject matter jurisdiction, and that "[t]he doctrines of 'general' and 'special' appearance . . . are associated with personal jurisdiction only." Curtis v. Curtis, 789 P.2d 717, 725 n.17 (Utah Ct. App. 1990), overruled on other grounds by In re Adoption of Baby E.Z., 2011 UT 38, 266 P.3d 702. It therefore argues that, even if the tribe made a general appearance, that action cannot constitute a waiver of its sovereign immunity. Second, the tribe argues that filing a motion to dismiss does not constitute a clear and unequivocal waiver of sovereign immunity.

         ¶18 Prior to the promulgation of Utah Rule of Civil Procedure 12, a party that made a general appearance in a case waived any claim that the court lacked personal jurisdiction. If the party made a special appearance with the sole purpose of challenging the court's jurisdiction, the party's jurisdictional argument was not waived. Charles Alan Wright et al., 5C Fed. Prac. & Proc. Civ. § 1362 (3d ed. 2017 update) ("Formerly, a jurisdictional challenge was made by means of a . . . 'special' appearance. However, if a challenge of this type was joined with any nonjurisdictional defenses, the appearance became 'general' and the party's right to object to the court's jurisdiction over his or her person was deemed waived." (citations omitted)); but see Utah R. Civ. P. 12(b) ("No defense or objection is waived by being joined with one or more other defenses or objections in a . . . motion . . . ."). This only applied to personal jurisdiction, as subject matter jurisdiction can be raised at any time during the pendency of the case and typically cannot be waived. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 25 ("[S]ubject matter jurisdiction goes to the heart of a court's authority to hear a case, it is not subject to waiver and may be raised at any time . . . ." (citation omitted)). Thus, the common law doctrine of general appearances does not apply to subject matter jurisdiction.

         ¶19 However, while sovereign immunity has been classified as an issue of subject matter jurisdiction, it is not the same as other defects in subject matter jurisdiction. Cash Advance & Preferred Cash Loans v. State, 242 P.3d 1099, 1113 (Colo. 2010) (en banc) (stating that courts vary on whether sovereign immunity affects subject matter jurisdiction, and holding that, "tribal sovereign immunity bears a substantial enough likeness to subject matter jurisdiction to be treated as such for procedural purposes"). Subject matter jurisdiction, generally, cannot be waived, Curtis, 789 P.2d at 726, but sovereign immunity can be waived. Kiowa Tribe of Okla., 523 U.S. at 754. When sovereign immunity itself has been waived, there is no defect with subject matter jurisdiction. The tribe does not waive subject matter jurisdiction; it waives sovereign immunity, which removes the jurisdictional bar. Thus, the issue is not whether the tribe has waived subject matter jurisdiction by making a general appearance (which is not possible), but whether it has clearly and unequivocally waived sovereign immunity, thereby removing the defect in jurisdiction. There may very well be instances in which a tribe takes actions in a lawsuit that clearly and unequivocally waive its sovereign immunity.

          ¶20 Harvey cites three cases supporting the proposition that the Ute Tribe can, and did, clearly and unequivocally waive its sovereign immunity by its actions in the current lawsuit. In Friends of East Willits Valley v. County of Mendocino, the court stated that a "[t]ribe waived sovereign immunity previously when it made a general appearance in this case." 123 Cal.Rptr.2d 708, 715 (Cal.Ct.App. 2002). But that court did not cite any authority for the proposition nor did it discuss any facts that led the court to conclude that the tribe had made a general appearance. Additionally, the court held that the tribe had "expressly waived sovereign immunity" in a contract. Id. Friends is not persuasive because it contains no analysis, cites no authority, and relied on an independent basis for holding that the tribe's sovereign immunity had been waived. The next case cited by Harvey, Nushake, Inc. v. State Compensation Insurance Fund, is likewise unpersuasive because there was a settlement agreement containing an unequivocal waiver of immunity and a consent to enforcement of the agreement in state court. No. CGC-05-441299, 2011 Cal. Super. LEXIS 319, at *1 (Cal.App. Dep't Super. Ct. Apr. 29, 2011). The final case cited by Harvey is United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981). In that case, the tribe intervened in an ongoing lawsuit to "protect its treaty fishing rights." Id. at 1014. The court held that the tribe's intervention "constitutes consent." Id.

         ¶21 At most, the cases cited by Harvey show that a tribe could possibly waive its immunity when it proactively enters litigation. This case is clearly different. Here, the Ute Tribe was sued and then sought to dismiss the complaint against itself under sovereign immunity, and against its officers and the other defendants for failure to join an indispensable party-namely, the failure to keep the Ute Tribe as a defendant. Moving to dismiss itself on sovereign immunity grounds is the opposite of a clear and unequivocal waiver of immunity; in fact, it is an assertion of that immunity.

         ¶22 Likewise, moving to dismiss its officers and the other defendants from the case for the inability to add the tribe as a party does not constitute a clear and unequivocal waiver of immunity. Moving to dismiss the other defendants for failure to join an indispensable party is not the same as filing a complaint or moving to intervene in a case. By filing a complaint or intervening in a case, a party proactively enters litigation and "makes himself vulnerable to complete adjudication by the . . . court of the issues in litigation between the" parties. United States v. Oregon, 657 F.2d at 1014 (citation omitted). Conversely, under Utah Rule of Civil Procedure 19(a)(2), a non-party has the right to get the case dismissed if the person "claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may . . . impair or impede [its] ability to protect that interest." One of the central issues in this case is the ability of the tribe to require permits and regulate oil and gas companies that access tribal land. The tribe apparently did not want the case to proceed, and possibly affect its interests, if the tribe were to be dismissed.

         ¶23 These motions to dismiss, alone, are not enough to constitute a clear and unequivocal waiver of sovereign immunity. Indeed, as noted above, the tribe's actions were just the opposite of waiving sovereign immunity: it asserted its sovereign immunity by seeking to dismiss itself, and then sought to have the remainder of the case dismissed so that its interests would not be affected by a judgment in a case where the tribe was not a party. While we do not definitively state how or if a tribe can waive its immunity by participating in a lawsuit, we hold that the Ute Tribe did not unequivocally waive its immunity in this case. We affirm the district court and hold that the Ute Tribe is immune from suit and is dismissed under Utah Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

         II. CLAIMS AGAINST THE TRIBAL OFFICIALS IN THEIR OFFICIAL CAPACITIES AND IN THEIR INDIVIDUAL CAPACITIES

         ¶24 Harvey's amended verified complaint names Director Wopsock, Commissioner LaRose, and Commissioner Cesspooch as defendants in their individual and in their official capacities. However, there are different standards with different remedies when a tribal official is sued in her official capacity versus her individual capacity. Unfortunately, the complaint neither separated the claims or the remedies sought between the tribal officials in their official versus their individual capacities, nor did Harvey separate his arguments on appeal. He merely argues that the tribal officials acted ultra vires and, therefore, are not immune from suit.[6] Nevertheless, we construe complaints "to do substantial justice, " Utah R. Civ. P. 8(f), often "disregard[ing] technicalities" and looking at the "substance, " Lang v. Lang, 403 P.2d 655, 657 (Utah 1965). See Fishbaugh v. Utah Power & Light, a Div. of Pacificorp, 969 P.2d 403, 406 (Utah 1998) (liberal notice pleading only requires pleadings to "be sufficient to give 'fair notice of the nature and basis of the claim asserted and a general indication of the type of litigation involved'" (citation omitted)). We therefore read his complaint "under our liberal standard of notice pleading." Canfield v. Layton City, 2005 UT 60, ¶ 14, 122 P.3d 622.

         ¶25 In parsing Harvey's complaint, we must align the remedies sought with the claims brought. In general, a claim cannot be brought against a tribal official when the tribe is the real party in interest (also known as an official capacity suit), because the tribe's sovereign immunity extends to the tribal official. See Lewis v. Clarke, 137 S.Ct. 1285, 1290 (2017) ("[C]ourts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit."); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985) ("[T]ribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority."). There is at least one exception to this general rule-a plaintiff may sue a tribal official in her official capacity for an injunction under Ex parte Young, 209 U.S. 123 (1908).

         ¶26 A plaintiff can bring a claim against a tribal officer in her individual capacity only if the individual, not the tribe, is the real party in interest. "The critical inquiry" in determining the real party in interest is "who may be legally bound by the court's adverse judgment." Lewis, 137 S.Ct. at 1292-93. The plaintiff's claim is "an official-capacity claim, " rather than an individual capacity claim, "[if] the relief sought is only nominally against the official and in fact is against the official's office and thus the sovereign itself." Id. at 1291. "In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign." Id. at 1290. If the remedy operates against the tribe or the "official's office" rather than the individual, the claim is not truly against the individual and it is typically barred by the tribe's sovereign immunity. Id. at 1291. If it operates solely against the individual, such as a claim for money damages that only the individual would be liable for, it is an individual capacity suit. Harvey seeks multiple declaratory judgments and injunctions, the majority of which are to operate against the "Ute Tribe and tribal officials." He also seeks general, specific, treble, and punitive damages. We discuss Harvey's claims and remedies against the tribal officials in their official capacities, then in their individual capacities.

         A. Harvey's Claims Against the Tribal officials in Their Official Capacities

         ¶27 Under Ex parte Young, state officials can be sued for injunctive relief in their official capacities for violating federal law. 209 U.S. at 167. This is because federal law is the "supreme authority of the United States, " and no subordinate sovereign, like a state or tribe, can "impart to the official immunity" from the supreme law of the land. Id. This doctrine "permits actions for prospective non-monetary relief against state or tribal officials in their official capacity to enjoin them from violating federal law." Salt River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1181 (9th Cir. 2012); see also Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir. 2001); Edelman v. Jordan, 415 U.S. 651, 667-68 (1974) (stating that plaintiffs may seek prospective injunctions against officials, which may have "an ancillary effect on the state treasury, " but not damages for past actions). This doctrine applies to tribal officials as well as state officials. Big Horn Cty. Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 954 (9th Cir. 2000) ("[S]uits for prospective injunctive relief are permissible against tribal officers under the Ex parte Young framework.") (citing Burlington N. R.R. Co. v. Blackfeet Tribe of Blackfeet Indian Reservation, 924 F.2d 899, 901 (9th Cir. 1991), as amended (Mar. 18, 1991), overruled on other grounds by Big Horn Cty. Elec. Co-op., Inc., 219 F.3d 944).

         ¶28 On appeal, Harvey only indirectly argues for the application of Ex parte Young. He argues that the tribal officials acted ultra vires and are therefore not immune from suit. Many of the cases Harvey cites for this proposition, however, cite back to Ex parte Young.[7] See, e.g., Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 514 (1991) (citing Ex parte Young for the proposition that "we have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State"); Blackfeet Tribe, 924 F.2d at 901 (citing Ex parte Young for the proposition that "sovereign immunity does not extend to officials acting pursuant to an allegedly unconstitutional statute").

         ¶29 The tribal officials, along with the Ute Tribe, argue that Ex parte Young does not apply to a claim that the tribal officials exceeded their authority under tribal law.[8] This assertion is correct- Ex parte Young only applies when bringing a claim under federal law, it does not apply to bringing a claim against a tribal official for violating tribal law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124-25 (1984) (holding that Ex parte Young does not apply to a claim that state officials violated state law); Salt River, 672 F.3d at 1181.

         ¶30 But this misses the point on some of Harvey's claims. Two of his claims assert that the Ute Tribe and the UTERO exceeded their jurisdiction. These claims "seek an injunction restraining the Ute Tribe and Tribal officials from attempting to regulate Plaintiffs' business activities in a manner that exceeds the jurisdiction of the Tribe, [and] the authority of the Tribal officials." Harvey's claim that the tribal officials exceeded the tribe's jurisdiction is a question of federal law. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985) ("[F]ederal law defines the outer boundaries of an Indian tribe's power over non-Indians."). The remedies sought are clearly against the tribe as the real party in interest. For this reason, we treat Harvey's claims for injunctions as against the tribal officials acting in their official capacities. The tribal officials, in their official capacities, do not enjoy sovereign immunity for these two claims and the injunctions sought under these two claims.

         ¶31 But any claim that the tribal officials, in their official capacities, exceeded the authority granted to them by the tribe is not subject to Ex parte Young and is barred under sovereign immunity, along with the rest of Harvey's state law claims and requests for monetary damages. See Halderman, 465 U.S. at 124-25 (Ex parte Young applies only to federal law claims). Harvey is not entitled to damages against the officials in their official capacities because official capacity suits, under Ex parte Young, may only be brought for prospective injunctive relief. Thus, we treat Harvey's claims for injunctive relief as against the officials in their official capacities, and his claims for damages as against the officials in their individual capacities.

         B. Harvey's Claims Against the Tribal Officials in Their Individual Capacities

         ¶32 The U.S. Supreme Court recently clarified that a tribal official is not protected by sovereign immunity when she is sued in her individual capacity. Lewis, 137 S.Ct. at 1291. The court stated that, in "[p]ersonal-capacity suits" the plaintiff "seek[s] to impose individual liability upon a government officer for actions taken under color of [tribal] law." Id. Thus, because the individual-not the tribe-will "be legally bound by the court's adverse judgment, " sovereign immunity is not applicable. Id. at 1292-93. While not entitled to sovereign immunity, "[a]n officer in an individual-capacity action . . . may be able to assert personal immunity defenses." Id. at 1291.

         ¶33 Harvey has asserted claims against the tribal officials in their individual capacities for damages, making the individuals the real parties in interest. We do not hold that Harvey has valid claims against the tribal officials in their individual capacities, merely that they do not enjoy sovereign immunity at this stage of the litigation. If, at some point, it becomes clear that any remedy sought by Harvey would essentially operate against the tribe, those claims must be dismissed against the officials unless they comply with the requirements of Ex parte Young. The district court must tread carefully in this area to avoid meddling with the internal operations of the tribal government.

         III. THE DISTRICT COURT ERRED IN DISMISSING THE CASE FOR FAILURE TO JOIN AN INDISPENSABLE PARTY

         ¶34 Having determined that the tribe is entitled to sovereign immunity, but that the tribal officials are not, we are led to the ultimate question. Did the district court err in dismissing the tribal officials and the remaining defendants because the Ute Tribe is a necessary and indispensable party but is immune from suit? Utah Rule of Civil Procedure 12(b)(7) mandates the dismissal of an action for "failure to join an indispensable party." Dismissal under rule 12(b)(7) is only appropriate under the circumstances listed in Utah Rule of Civil Procedure 19. Ludlow v. Salt Lake Cty. Bd. of Adjustment, 893 P.2d 1101, 1103 (Utah Ct. App. 1995). Rule 19 necessitates a three step analysis: 1) is the person necessary, 2) can the person be joined, and 3) is the person indispensable. See Utah R. Civ. P. 19; Landes v. Capital City Bank, 795 P.2d 1127, 1130-32 (Utah 1990).

         ¶35 A person is necessary under rule 19(a) in three different instances. First, a person is necessary if in the person's "absence complete relief cannot be accorded among those already parties." Utah R. Civ. P. 19(a)(1). Second, the person is necessary if she claims an interest in the action and her absence would "impair or impede [that person's] ability to protect that interest." Id. 19(a)(2)(i). Finally, the person is necessary if she claims an interest in the action and her absence would "leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Id. 19(a)(2)(ii). Under these standards, the Ute Tribe is not a necessary party in this case.

         ¶36 The Ute Tribe is immune from all of Harvey's claims in this case. See supra ¶¶ 16-23. Also, the tribe claims an interest in the outcome of this case because any court order must determine the ability of the tribe, and its officials, to issue orders to oil and gas businesses operating on tribal land. But the tribal officials are not immune from suit under Ex parte Young, 209 U.S. 123 (1908). Salt River Project Agricultural Improvement and Power District v. Lee is instructive. 672 F.3d 1176 (9th Cir. 2012). In that case, Navajo officials argued that the Navajo Nation was a necessary and indispensable party. Id. at 1178. The court held that the Navajo Nation was not a necessary party because the tribal officials, acting in their official capacities, would adequately represent the interests of the tribe. Id. at 1181. This case is similar.

         ¶37 First, complete relief may be granted to Harvey because he could obtain an injunction against the tribal officials from interfering with his businesses. This injunction would "remain[] in force against the officer's successors." Id. at 1180. While Harvey cannot get an injunction against the Ute Tribe, an injunction against the tribal officials would essentially operate against the tribe. Id. at 1181 (stating that tribe could not enforce its ordinance "without the aid of its officers . . . who would be bound by the . . . injunction"). Additionally, his claims for money damages may be entered against the tribal officials in their individual capacities and against the other defendants, assuming they are liable under some legal theory. Harvey could thus receive his requested relief even without adding the tribe as a party.

         ¶38 Second, the tribe will not be impaired or impeded from protecting its interests, because the tribal officials "can be expected to adequately represent the [Ute Tribe's] interests." Id. at 1180. There is no argument that the tribal officials will do anything antithetical to the interests of the tribe or that they will fail to make any "reasonable argument that the tribe would make if it were a party." Id.

         ¶39 Finally, there is no risk that the other parties may be subjected to inconsistent obligations. Defendant Newfield argues that if the tribe is not a party, it could be subject to an order from a state court requiring it to pay damages to Harvey for not using Harvey's services, yet be subject to the March 20th letter from the UTERO prohibiting Newfield from using Harvey's services as long as Newfield desires to continue to operate on tribal land. No such threat exists if the tribal officials are enjoined from enforcing the March 20th letter. Additionally, if other tribal officials "attempted to enforce the [March 20th letter] against [Newfield], the plaintiffs would be free . . . to seek an injunction against those officials." Id. at 1181. None of the defendants have argued any other possible conflicting obligations.

         ¶40 The Ute Tribe does not meet any of rule 19's requirements to be a necessary party because the presence of the tribal officials, in their official capacities under Ex parte Young, addresses all of the concerns raised in rule 19. The district court erred in dismissing the tribal officials and the other defendants under rule 12(b)(7).

         IV. THE TRIBAL EXHAUSTION DOCTRINE PREVENTS UTAH STATE COURTS FROM REVIEWING THIS CASE AT THIS TIME

         ¶41 While we hold that the tribal officials may be sued for an injunction in their official capacities under Ex parte Young, 209 U.S. 123 (1908), and that the defendants other than the Ute Tribe should not have been dismissed under rule 12(b)(7), we hold that Harvey failed to exhaust tribal remedies.[9] The exhaustion of tribal remedies doctrine is founded on the premise that "[p]romotion of tribal self-government and self-determination require[] that the Tribal Court have 'the first opportunity to evaluate the factual and legal bases for the challenge' to its jurisdiction." Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15-16 (1987) (citation omitted). The Ninth Circuit has held that exhaustion of tribal remedies, when a tribe's jurisdiction is at issue, is mandatory before another court exercises jurisdiction.

The Supreme Court has mandated the exhaustion of tribal remedies as a prerequisite to a federal court's exercise of its jurisdiction: "[E]xhaustion is required before such a claim may be entertained by a federal court." In Iowa Mutual Ins. v. LaPlante, the Supreme Court said that "federal policy . . . directs a federal court to stay its hand, " and "proper respect . . . requires" tribal remedy exhaustion. Therefore, non-Indian petitioners "must exhaust available tribal remedies." The LaPlante Court emphasized that "National Farmers Union requires that the issue of jurisdiction be resolved by the Tribal courts in the first instance." The Supreme Court's mandate of exhaustion of tribal court remedies as a prerequisite to a federal court's exercise of its jurisdiction applies squarely to this case.

Burlington N. R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991) (alterations in original) (citations omitted).

         ¶42 The requirement that plaintiffs exhaust their remedies in tribal court is a prudential matter, "based on principles of comity." Nevada v. Hicks, 533 U.S. 353, 398 (2001); see also Strate v. A-1 Contractors, 520 U.S. 438, 451 (1997) ("[T]he exhaustion rule stated in National Farmers [is] 'prudential.'"). When a case concerns a tribe's right to exclude individuals from their land, plaintiffs should exhaust their remedies in tribal court before getting a review in any other court. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983) ("A tribe's power to exclude nonmembers entirely or to condition their presence on the reservation is . . . well established."); Strate, 520 U.S. at 454 ("tribes retain considerable control over nonmember conduct on tribal land"). This is because the tribe's right to "manage the use of [tribal] territory and resources by both members and nonmembers [and] to undertake and regulate economic activity within the reservation" is necessary to protect tribal self-government. Mescalero Apache Tribe, 462 U.S. at 335. This doctrine does not require a case to be pending in the tribal court. See Crow Tribal Council, 940 F.2d at 1246 (exhaustion requirement applies even when the plaintiff "sought a declaration of sovereign authority before it was ever prosecuted in Crow Tribal Court or otherwise subjected to Crow tribal authority"); Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 814 (7th Cir. 1993) ("Several appellate courts . . . have applied the tribal exhaustion rule to cases in which there existed no first-filed tribal court action."); Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 674 (8th Cir. 1986).

         ¶43 In this case, the majority of the actions Harvey complains of relate to the ability of the Ute Tribe to exclude non-Indians from their reservation. Harvey seeks injunctions to restrain the tribe and tribal officials from "interfering in Plaintiffs' relationship with oil and gas companies, " and from "harassing, threatening, intimidating, extorting, and retaliating against Plaintiffs" and companies that do business with the plaintiffs. Harvey's factual allegations in support of these requests for injunctive relief, and the claims that the tribe exceeded its jurisdiction, are centered on four different actions that allegedly harmed the plaintiffs. First, tribal officials threatened to "'shut down' Plaintiffs' businesses and confiscate Plaintiffs' equipment" if Harvey did not obtain a UTERO license and permit, which Harvey eventually did, even though he argues he does not in fact access tribal land. Second, even after Harvey obtained a permit, Commissioner Cesspooch "attempted to extort money from Ryan [Harvey] in the IFA parking lot saying that he 'sure needed a good riding horse.'" Third, Harvey alleges that "[a] couple of weeks after refusing to pay Commissioner Cesspooch, " Harvey's license and permit were revoked. Finally, Harvey alleges that on March 20, 2013, the UTERO sent a letter to all oil and gas companies threatening sanctions against any business utilizing Harvey's services. We address each of these allegations in turn.

         ¶44 Any harm actually suffered by Harvey is tied to whether the tribal officials had the authority to require him to obtain a permit, revoke his permit, and issue a letter telling oil and gas companies that they would suffer sanctions if they continued to use Harvey and operate on tribal lands.[10] The central question thus becomes whether the tribal officials were regulating who may come onto tribal land. Whether the tribe may demand that Harvey obtain a permit is a jurisdictional question that must be heard in the tribal courts in the first instance. Whether the tribal officials unlawfully revoked Harvey's permit is a question of tribal law, as the regulation of who may enter tribal lands is a matter of self-governance. The tribal court must have the first opportunity to address these issues. Otherwise, we may be supplanting tribal law that manages tribal governmental operations with state tort law.

         ¶45 The March 20th letter's primary and direct effect also governs who may enter tribal land. The tribe issued the letter to "all Oil & Gas Companies, " including defendant Newfield. The letter states:

[T]he UTERO Commission revoked the UTERO License for [Rocks Off and Harvey] for failure to comply with the UTERO Ordinance, Ord. No. 10-002 (July 27, 2010).
As a result of such action, these businesses and individuals are no longer authorized to perform work on the Uintah and Ouray Reservation. Any use of [Rocks Off or Ryan Harvey] by an employer doing work on the Reservation after receipt of this Notice may result in the assessment of penalties and/or sanctions against such employer to the fullest extent of the law.

         The letter only directly impacts oil and gas companies wishing to conduct business on Ute Tribal land. If an oil and gas company wishes to continue to operate on Ute Tribal land and avoid sanctions, they cannot use Rocks Off or Ryan Harvey. While the letter also affects Rocks Off and Harvey, the oil and gas companies may very well decide not to operate on Ute Tribal land and continue to use Harvey in any way they see fit. Either way, the tribe's ability to regulate business operations on their land, even if it may have an indirect effect on business off of their land, is a core question of tribal self-government.

         ¶46 Additionally, the actual effect of the letter on Harvey is a matter of interpretation. The letter clearly, if only indirectly, affects Harvey's businesses. However, it is susceptible to two different readings. First, the letter could be read to prohibit all oil and gas companies from using Harvey anywhere, even off of the reservation. This interpretation is supported by the letter's language that "[a]ny use of" Harvey will result in penalties. The second interpretation is that oil and gas companies may not use Harvey's equipment or products on tribal land. "Any use" may be qualified by the preceding sentences saying that Rocks Off and Harvey "are no longer authorized to perform work on the Uintah and Ouray Reservation." (Emphasis added).

         ¶47 Thus, the letter could be interpreted to only restrict the use of Harvey's equipment and material on tribal land or to affect use off tribal land. Either of these interpretations are reasonable, and under the doctrine of tribal exhaustion, this question of interpretation should be resolved in the first instance by a tribal court. LaPlante, 480 U.S. at 16 (stating that the tribal court should have "'the first opportunity to evaluate the factual and legal bases for the challenge' to its jurisdiction" (emphasis added) (citation omitted)). If the letter restricts use of Harvey off of the reservation, it might exceed the jurisdiction of the tribe. If it only restricts use of Harvey on the reservation, it may be within the authority of the tribe.

         ¶48 In a similar case decided by the Ninth Circuit, the Crow Tribe enacted an ordinance that governed private railroad operations across tribal lands. Crow Tribal Council, 940 F.2d 1239. The sole railroad operating on tribal lands filed for declaratory judgment in federal court, alleging that "the ordinance is null and void because it exceeds tribal sovereign power." Id. at 1241. The Ninth Circuit analyzed the "[t]hree imperatives ...


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