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Donius v. Mazzetti

September 21, 2010

MARVIN DONIUS, PLAINTIFF,
v.
BO MAZZETTI; STEPHANIE SPENCER; CHARLIE KOLB; DICK WATENPAUGH; STEVE STALLINGS; KENNY KOLB; DOE I AND DOE II, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the following motions filed by Defendants: Motion to Dismiss Complaint (Doc. # 7); Ex Parte Application Requesting Judicial Notice of Supplemental Authorities (Doc. # 14); and Ex Parte Application for Request for Judicial Notice (Doc. # 15).

I. Background

This action concerns tribal regulation of non-Indian fee simple land located within the boundaries of the reservation of the Rincon Band of Luiseno Mission Indians. Defendants are tribal officials sued in their individual and official capacities. (Compl. ¶ 4, Doc. # 1).

On March 22, 2010, Plaintiff Marvin Donius initiated this action by filing the Complaint for Declaratory Relief and for Injunctive Relief ("Complaint"). (Doc. # 1).

A. Allegations of the Complaint

In 1989, Plaintiff purchased property from Rincon Mushroom Corporation of America ("RMCA") which is located within the boundaries of the Rincon Band of Luiseno Mission Indians' reservation. Id. ¶¶ 11, 12. In 1960, the property was "allotted and conveyed out of Tribal ownership by a Bureau of Indian Affairs fee patent." Id. ¶ 10. The property is located in an open portion of the reservation across a San Diego County highway from the Harrah's Rincon Casino & Resort. Id. ¶ 12. Plaintiff is not an Indian or a member of the tribe. Id. ¶ 8. RMCA is, and was at all relevant times, a California corporation comprised entirely of non-Indian shareholders. Id.

"[A]t least four years ago, and continuing to the present date, the Rincon Tribe... and from time to time the Tribal defendants... have devised, and have attempted to implement and effectuate, a plan... to acquire... 'on the cheap' [Plaintiff's] five-acre parcel." Id. ¶ 14. The plan "has included various efforts by these defendants to diminish and depreciate the value of [the] subject property." Id. ¶ 15.

On March 15, 1960, the Rincon Tribe enacted Articles of Association, which state that the "Rincon Tribal Business Committee... shall have jurisdiction over the lands within the boundaries of the Rincon Reservation." Id. ¶ 19. "In... April 2007,... the Rincon Tribe enacted a Tribal Environmental Policy Ordinance that... purportedly placed under the governmental jurisdiction of the Tribe the subject parcel, on the asserted basis that the Tribe's regulatory authority extended to and included all land within the exterior boundaries of the Rincon Reservation." Id. ¶ 20 (quotations omitted). "[T]he Rincon Tribe enacted an Environmental Enforcement Code that as revised on... July 10, 2007 purported to extend tribal environmental regulatory authority over and as to [the] subject property, on the basis of the Tribe's claim of such authority over all lands within the exterior boundaries of the Rincon Indian Reservation." Id. ¶ 21 (quotations omitted). "On... September 30, 2008, these defendants caused the Rincon Tribe to enact a Tribal Court Jurisdiction Ordinance that purported to claim regulatory as well as in personam and subject matter adjudicative jurisdiction over non-tribal member [RMCA], non-tribal member Donius, and as to subject non-tribal fee property,... and also purports to extend the Tribe's Territorial Jurisdiction over any fee lands within the external boundaries of the Rincon Reservation...." Id. ¶ 22 (quotations omitted).

The first cause of action of the Complaint seeks a judicial declaration that "any prospective or future actual or attempted enforcement by these defendants of" the above-referenced Articles of Association, Tribal Environmental Policy Ordinance, Environmental Enforcement Code, and Tribal Court Jurisdiction Ordinance is "facially unconstitutional, unconstitutional as applied, and/or illegal, and/or entirely unenforceable, pursuant to applicable provisions of federal and California law, both with respect to plaintiff as well as concerning subject property." Id. ¶ 23(a). "[P]laintiff contends that this Court should find, declare and adjudge that neither the Rincon Tribe nor the above-named Tribal defendants presently have, nor in the future could as a matter of law have, any regulatory or adjudicative authority of any nature whatever over or as to plaintiff and/or over or as to subject property...." Id. ¶ 23(d).

The second cause of action of the Complaint seeks the issuance of "a permanent injunction requiring and ordering that the above-named Tribal defendants desist and refrain from any further actual or attempted enforcement, prospectively and in the future, of any and all purported Rincon Tribe regulatory or adjudicative authority over or as to plaintiff and/or over or as to subject property." Id. ¶ 29.

The Complaint does not seek monetary relief.

B. Procedural History

On March 14, 2010, Defendants filed the Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(7). (Doc. # 7). On May 14, 2010 and September 1, 2010, Defendants filed evidence in support of the Motion to Dismiss. (Doc. # 7-9, 14-18). On June 7, 2010, ...


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