Evans v. Shoshone-Bannock Land Use Policy Commission , 549 F. App'x 625 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. EVANS, an individual; et al., No. 13-35003
Plaintiffs - Appellants, D.C. No. 4:12-cv-00417-BLW
v.
MEMORANDUM*
SHOSHONE-BANNOCK LAND USE
POLICY COMMISSION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted November 5, 2013
Portland, Oregon
Before: M. SMITH and HURWITZ, Circuit Judges, and MAHAN, District Judge.**
Plaintiffs-Appellants (collectively, Evans) seek to enjoin Defendants-
Appellees (collectively, the Tribes) from challenging Evans’ construction of a
single-family house on non-Indian fee land in tribal court. Evans appeals from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
district court’s orders (1) denying his motion to strike the majority of the Tribes’
evidentiary submissions; (2) denying his motion for a preliminary injunction; and
(3) dismissing this action without prejudice for failure to exhaust tribal remedies.
For the reasons below, we affirm the district court’s denial of Evans’ motion to
strike. For the reasons set forth in an opinion filed contemporaneously with this
memorandum disposition, we otherwise reverse the judgment of the district court
and remand for further proceedings.
Evans first contends that the district court should have excluded most of the
Tribes’ evidence because the Tribes presented it with their reply brief, in purported
violation of Federal Rule of Civil Procedure 56 and Local Civil Rule 7.1 of the
District of Idaho. But the district court cured any prejudice by granting Evans the
opportunity to rebut this evidence. See Harper v. City of Los Angeles, 533 F.3d
1010, 1030 (9th Cir. 2008); see also Houston v. Bryan, 725 F.2d 516, 517–18 (9th
Cir. 1984). Evans’ argument that this rebuttal opportunity was worthless because
the district court “had already reached a conclusion of the case’s outcome,” is
entirely speculative, and we reject it.
Evans next argues that the district court should have excluded much of the
Tribes’ evidence because, inter alia, (1) it is irrelevant; (2) the declarants lack
adequate personal knowledge; and (3) the Tribes failed to provide supporting
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documentation. Contrary to Evans’ argument, however, the challenged evidence
has some “tendency to make a fact more or less probable than it would be without
the evidence.” Fed R. Evid. 401. Further, the declarants’ avowed personal
experience provides an adequate basis for their testimony, see Fed. R. Evid. 602,
and it is not clear that any failure to provide adequate documentation prejudiced
Evans. The district court similarly did not abuse its “broad discretion” in rejecting
the remainder of Evans’ evidentiary challenges. Harper, 533 F.3d at 1030.
For the foregoing reasons, we affirm the district court’s denial of Evans’
motion to strike. For the reasons set forth in the opinion filed contemporaneously
with this memorandum disposition, we otherwise reverse the judgment of the
district court and remand for further proceedings. Defendants-Appellees shall bear
costs on appeal. See Fed. R. App. P. 39(a)(4).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
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