Town Pump, Inc. v. Judith Laplante , 394 F. App'x 425 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOWN PUMP, INC.; MAJOR BRANDS No. 10-35090
DISTRIBUTING IMPORTS, INC.,
D.C. No. 4:09-cv-00054-SEH
Plaintiffs - Appellees,
v. MEMORANDUM *
JUDITH LAPLANTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted August 30, 2010
Seattle, Washington
Before: HAWKINS, McKEOWN and BEA, Circuit Judges.
Judith LaPlante, an enrolled member of the Blackfeet Nation, appeals the
district court’s grant of summary judgment and permanent injunction of her further
prosecution of claims in Blackfeet Tribal Court against Town Pump, Inc., and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Major Brands Distributing Imports, Inc. (together, “Town Pump”). LaPlante
alleges personal injury by toxic discharges from a Town Pump gas station within
the exterior boundaries of the Blackfeet Indian Reservation. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
Contrary to LaPlante’s position, the presumption against tribal court
jurisdiction over nonmembers established in Montana v. United States, 450 U.S.
544, 564-66 (1981), and progeny applies to this case. See Nevada v. Hicks, 533
U.S. 353, 360 (2001) (explaining that “the general rule of Montana applies to both
Indian and non-Indian land”); accord Smith v. Salish Kootenai Coll., 434 F.3d
1127, 1135 (9th Cir. 2006) (en banc).
LaPlante satisfies neither of Montana’s exceptions for tribal court
jurisdiction over nonmembers. LaPlante does not allege that Town Pump entered
into “consensual relationships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565. Nor
does Town Pump’s alleged delay in challenging the tribal court’s jurisdiction
constitute consent to jurisdiction. Because tribal court jurisdiction is an issue of
subject matter jurisdiction, it may not be waived, and Town Pump may raise the
issue at any time during the suit. See Stock W., Inc. v. Confederated Tribes of the
Colville Reservation, 873 F.2d 1221, 1228 (9th Cir. 1989); see also Hicks, 533
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U.S. at 373 (noting that challenges to tribal court jurisdiction “would presumably
be nonwaivable”).
LaPlante’s reliance on Town Pump’s prior litigation in tribal court—against
different parties and with respect to different claims—is also unavailing. “A
nonmember’s consensual relationship in one area . . . does not trigger tribal civil
authority in another—it is not ‘in for a penny, in for a Pound.’” Atkinson Trading
Co. v. Shirley, 532 U.S. 645, 656 (2001). In addition, although a nonmember’s
consent to tribal jurisdiction may be inferred when it files suit in tribal court as a
plaintiff, see Smith, 434 F.3d at 1137, in this suit Town Pump “is being haled into
tribal court against [its] will” as a defendant. Philip Morris USA, Inc. v. King
Mountain Tobacco Co., 569 F.3d 932, 940 (9th Cir. 2009). Smith’s rationale does
not extend to Town Pump’s indemnity action; that action does not meet the consent
prong of the Montana exceptions. Town Pump’s prior third-party claim against the
Blackfeet Tribe also cannot constitute consent to tribal court jurisdiction, as Town
Pump was barred from raising this claim elsewhere in state or federal court under
the doctrine of tribal sovereign immunity. See Santa Clara Pueblo v. Martinez, 436
U.S. 49, 58 (1978).
Nor does LaPlante’s personal injury suit satisfy the second Montana
exception. The conduct alleged does not have a “direct effect on the political
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integrity, the economic security, or the health or welfare of the tribe.” Montana,
450 U.S. at 566. Rather, LaPlante sues over her personal injuries alone.
Although the Tribal Court of Appeals held that it had jurisdiction over LaPlante’s
tort claims on the theory that “[t]he people, the members of the Blackfeet Tribe, are
all one” and that “where one of us is affected[,] all of us as members are affected,”
the Supreme Court has specifically rejected this “no man is an island” logic with
respect to the second Montana exception. Burlington N. R.R. Co. v. Red Wolf,
196 F.3d 1059, 1065 (9th Cir. 1999) (internal quotation marks omitted) (citing
Strate v. A-1 Contractors, 520 U.S. 438, 458-59 (1997)).
Finally, Town Pump’s prior suit against its insurer in tribal court does not
provide a basis for judicial estoppel. Town Pump’s theory of jurisdiction in that
case sought to link the availability of environmental clean-up funds with the
interests of the Tribe. This position is not “clearly inconsistent” with the position
Town Pump has taken here—i.e., that the second Montana exception does not
apply because LaPlante seeks to remedy her personal injuries alone and has alleged
only a generalized threat to tribal interests. See New Hampshire v. Maine, 532
U.S. 742, 750-51 (2001) (internal quotation marks omitted). As a result, estoppel
is not warranted.
AFFIRMED.
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