Austin Land Development v. Navajo Tribal Utility Authority ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 AUSTIN LAND DEVELOPMENT
3 COMPANY, INC., and its successors
4 in interest, BILL ESTES, M, M. & M
5 INVESTMENT CO., DARLAN
6 GATHINGS, and DESIREE GATHINGS,
7 Plaintiffs-Appellants,
8 v. NO. 32, 601
9 NAVAJO TRIBAL UTILITY AUTHORITY,
10 a Navajo Nation Enterprise,
11 Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Karen L. Townsend, District Judge
14 Kelley Law Offices
15 Cody K. Kelley
16 Albuquerque, NM
17 for Appellants
18 Nordhaus Law Firm, LLP
19 Alan R. Taradash
20 Daniel I.S.J. Rey-Bear
21 Albuquerque, NM
22 for Appellee
1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {1} Plaintiffs appeal from an order dismissing the underlying proceedings. We
4 issued a notice of proposed summary disposition, proposing to uphold the ruling of
5 the district court. Plaintiffs have filed a memorandum in opposition, and the Navajo
6 Tribal Utility Authority (NTUA) filed a memorandum in support. After due
7 consideration, we affirm.
8 {2} Below, the district court concluded that the NTUA is immune from suit, such
9 that it lacked subject matter jurisdiction. In our notice of proposed summary
10 disposition we observed that the district court’s determination is well supported. See
11 Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 7, 132 N.M. 207, 46 P.3d 668
12 (“Without an unequivocal and express waiver of sovereign immunity or congressional
13 authorization, state courts lack the power to entertain lawsuits against tribal entities.”);
14 Armijo v. Pueblo of Laguna, 2011-NMCA-006, ¶ 12, 149 N.M. 234, 247 P.3d 1119
15 (“The locus of the Pueblo’s activity does not determine the applicability of tribal
16 sovereign immunity.”); Hoffman v. Sandia Resort & Casino, 2010-NMCA-034, ¶ 12,
17 148 N.M. 222, 232 P.3d 901 (“Corporate entities under tribal control are extended the
2
1 same sovereign immunity as the tribe itself.”); Sanchez v. Santa Ana Golf Club, Inc.,
2 2005-NMCA-003, ¶ 7, 136 N.M. 682, 104 P.3d 548 (“Tribal entities may not be sued
3 absent consent to be sued.”).
4 {3} In their memorandum in opposition we understand Plaintiffs to continue to
5 argue that the exercise of jurisdiction by the district court in this case would not
6 infringe upon tribal sovereignty, because this case involves a claim of trespass outside
7 of tribal lands and because it involves a tribal business enterprise’s relationship with
8 nonmembers. [MIO 3-5] However, as we previously observed in the notice of
9 proposed summary disposition and as the authorities cited above clearly reflect,
10 neither the locus of the disputed activity on privately-owned fee land or the status of
11 the NTUA as a business enterprise diminish the NTUA’s entitlement to immunity.
12 See Armijo, 2011-NMCA-006, ¶ 12; Hoffman, 2010-NMCA-034, ¶ 12. None of the
13 various out-of-state cases cited by Plaintiffs, addressing different issues in different
14 contexts, [MIO 3-5] persuade us that any departure from our own well-established
15 jurisprudence is warranted. We therefore conclude that the underlying proceedings
16 were properly dismissed for want of subject matter jurisdiction. See generally
17 Gallegos, 2002-NMSC-012, ¶ 36 (concluding that sovereign immunity precludes
18 subject matter jurisdiction and affirming the district court’s dismissal for lack of
19 subject matter jurisdiction).
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1 {4} Accordingly, for the reasons stated above and in the notice of proposed
2 summary disposition, we affirm.
3 {5} IT IS SO ORDERED.
4 __________________________________
5 LINDA M. VANZI, Judge
6 WE CONCUR:
7 _________________________________
8 MICHAEL D. BUSTAMANTE, Judge
9 _________________________________
10 M. MONICA ZAMORA, Judge
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