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Ertc, LLC v. Los Coyotes Band of Cahuilla and Cupeno Indians

October 28, 2011

ERTC, LLC,
PLAINTIFF,
v.
LOS COYOTES BAND OF CAHUILLA AND CUPENO INDIANS, A FEDERALLY RECOGNIZED NATIVE AMERICAN CAHUILLA INDIAN TRIBE, DEFENDANT.



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

ORDER

The matter before the Court is the "Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction Pursuant to Fed. R. Civ. P. 65" ("Application for Temporary Restraining Order"). (ECF No. 11).

I. Background

On September 15, 2011, Plaintiff ERTC, LLC ("ERTC") filed a "Complaint for Declaratory and Injunctive Relief and Unjust Enrichment" against Defendant Los Coyotes Band of Cahuilla and Cupeno Indians ("Los Coyotes"). (ECF No. 1). Los Coyotes is a federally recognized Native American Indian Tribe whose Reservation is located in San Diego County California.

Plaintiff alleges that Plaintiff "has provided good and valid consideration for a lease of a portion of Los Coyotes' 25,000 acre reservation ... in Warner Springs ... for ERTC's use in providing shooting ranges and tactical training for law enforcement and military personnel. Los Coyotes approved the Lease and proceeded to further ratify it by repeatedly accepting the benefits of the Lease." (ECF No. 1 at 2). Plaintiff alleges that "Los Coyotes suddenly disavowed the Lease," and "[a]fter breaking off negotiations, on September 12, 2011, the Tribe issued a Notice of Violation of Tribal Ordinances." Id. Plaintiff alleges that "[m]embers of Los Coyotes even threatened to take matters into their own hands if ERTC did not vacate the leased property-tragically, such threats came to fruition when the Tribe allowed certain Tribal members to take matters into their own hands by pouring gasoline on ERTC's security booth and lighting it on fire, and destroying new surveillance cameras that were installed following the fire." Id.

On September 16, 2011, Plaintiff filed an Ex Parte Application for Temporary Restraining Order. (ECF No. 4). On September 19, 2011, Los Coyotes filed an Opposition to the application. (ECF No. 7). On September 20, 2011, a hearing on the application was held before this Court, at which the application was withdrawn. (ECF No. 8).

On October 26, 2011, Plaintiff filed a second Ex Parte Application for Temporary Restraining Order. (ECF No. 11). Plaintiff moves for a temporary restraining order "enjoining and restricting the Los Coyotes Band of Cahuilla and Cupeno Indians ..., its members, and anyone acting in concert with them, from committing the following acts:

(1) Taking any action to evict or forcibly remove ERTC, its personnel, its equipment, its improvements, and its guests from the leased premises;

(2) Taking any action to destroy, alter, tamper with, interfere with or inflict injury to ERTC personnel, its equipment, its improvements, and its guests;

(3) Taking any action to restrict ingress and egress to and from the leased premises by any ERTC personnel or its guests; and

(4) Taking any action to interfere with ERTC's operations. Id. at 7.

In support of the Application for Temporary Restraining Order, Plaintiff filed a Declaration of Francine Kupsch, who "served as the Tribal Spokesperson and Chairperson from on or about January 2008 to on or about December 2010." (Kupsch Decl. ¶ 1, ECF No. 12). Kupsch states that, "[o]n or about February or March 2010," she executed on behalf of Los Coyotes a lease between Los Coyotes and ERTC ("Initial Lease"). Id. ¶ 4. The Initial Lease, which is attached to Kupsch's Declaration, provides for a lease term of six years and eleven months, and states:

The Tribe irrevocably grants ERTC ... a waiver of the Tribe's sovereign immunity from suit on claims arising from or related to the parties' relationship and/or this Lease.... The Tribe consents to the jurisdiction of the United States District Court for the Southern District of California.... [T]he Tribe waives the right to have any dispute, controversy, suit, or any other proceeding heard in a tribal forum, council, tribunal, or adjudicative body. (ECF No. 16-2 at 7). The Initial Lease states that "[e]ach party represents and warrants to the other that ... this Lease has been duly and validly authorized, executed and delivered by such Party and no other action is requisite to the valid and binding execution, delivery and performance of this Lease by such Party...." Id. at 8. The signature page of the Initial Lease for the "Tribe" contains Kupsch's signature, and a blank space below the words: "[TRIBAL STAMP AND ASSEMBLY COUNCIL RATIFICATION TO BE INSERTED BELOW]." Id. at 11.

In her Declaration, Kupsch states that, on November 5, 2010, Kupsch executed two addenda to the Initial Lease, which extended the terms of the Lease to twenty-four years and eleven months. (Kupsch Decl. ¶ 6, ECF No. 12). Kupsch states that, on December 20, 2010, "the Initial Lease was revised and updated," and "[o]n behalf of the Tribe, I executed [the] Updated Lease." Id. ¶ 7-8. The Updated Lease, which is attached to Kupsch's Declaration, contains the same provisions as the Initial Lease quoted above, see ECF No. 16-7 at 7-8, and the signature page for the "Tribe" in the Updated Lease ...


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