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Ninth Circuit:
Tribal Immunity Inures to Benefit of Contractor, Diocese
Opinion Says Efforts to Construct Casino-Hotel Can’t Be Thwarted Though Action Against Bot Would-Be Builder of Structure, Donor of Land, Where Holder of Title Is Indian Village, Necessary/Indispensable Party, Impervious to Suit
By a MetNews Staff Writer
Parties seeking to block construction of a casino-hotel cannot sidestep tribal immunity by suing a construction company, which would build the structure, and the Catholic Church which, in 2017, conveyed the land to the Jamul Indian Village which had long used a small portion of it as a burial ground, the Ninth U.S. Circuit Court of Appeals has declared.
Signing Friday’s memorandum opinion were Chief Judge Mary H. Murguia and Judges Mark J. Bennett and Anthony S. Johnstone. They affirmed the dismissal of the action brought by Walter Rosales and others against Oakland construction-contractor Condon-Johnson Associates, Inc. and against “The Roman Catholic Bishop of San Diego,” interpreted by the court to denote the diocese,
The judges also upheld the joint and several imposition of sanctions totaling $203,379.15 against the plaintiffs, their San Diego lawyer, Patrick D. Webb, and his firm, Webb & Carey.
Previous Holdings
In arguing for dismissal, Condon-Johnson contended “that numerous courts in the last thirty years, including the Southern District of California, Eastern District of California, and Court of Federal Claims, have held that these same Plaintiffs may not bring a suit which impacts the Tribe’s property interests and rights without joining the Tribe as a party, but because it cannot be joined due to sovereign immunity, Plaintiffs’ claims must be dismissed.”
The church contended:
“[O]nce all the hyperbole and convoluted arguments are stripped away, it is clear that the Opposition (like the complaint) is just the latest of more than 14 attempts over the last two decades—to attack and deny the Jamul Indian Village’s ownership of its property…, which is the central issue in this case. Thus, in this case, like every one of Plaintiffs’ previous cases, the Jamul Indian Village is a necessary and indispensable party under Federal Rule of Civil Procedure 19, which has not been and cannot be sued.”
The plaintiffs countered that “have never been told by any court that their state law claims against” Condon-Johnson “and the Bishop are ‘completely barred’ or ‘entirely precluded’ in light of the tribe’s “alleged sovereign immunity,” adding:“Just because the prior claims ere dismissed without prejudice, because the courts elected not to exercise jurisdiction over them, does not mean the claims were without merit or frivolous.”
District Court’s Ruling
District Court Judge Andrew George Schopler of the Southern District of California, in siding with the defendants on Feb. 29, 2024, pointed out that the plaintiffs were seeking to have the 2017 conveyance set aside and said that “[t]his—combined with the more immediate impact on the ongoing construction in support of the Village’s hotel—plainly implicates the Village’s property interest,” rendering it “a necessary party.” He remarked:
“This conclusion should not shock plaintiffs or their attorney. It’s been a consistent court finding each time they’ve attempted to deprive the Village of land.”
Murguia, Bennett, and Johnstone agreed. They wrote:
“We hold that the Jamul Indian Village is a necessary party: Plaintiffs seek to halt the Village’s construction project and to rescind the deed transfer of the Property to the Village. But the Village, as a federally recognized Indian tribe, has sovereign immunity and cannot be sued without its consent….And for the same reasons the Village is a necessary party, the Village is indispensable[.]”
In imposing sanctions, Schopler wrote:
“What type of sanction is required to deter future abuses? Judicial admonishment and even outright dismissal have been ineffective. At a minimum, a monetary penalty is due (and likely overdue). Thus, the Court assesses a compensatory sanction equal to all the defense’s attorneys’ fees in defending this case…dating back to its removal to federal court….Perhaps an even stiffer penalty is justified, but this appears to be the first monetary sanction leveled against plaintiffs or their attorney. This should drive the point home. Plaintiffs and their attorney are now on notice: If they keep mounting meritless lawsuits against the Village or its partners—and waste valuable court resources along the way—they will likely face escalating financial sanctions.
“The Court holds plaintiffs, their attorney, and their attorney’s firm jointly liable for paying the assessed penalty.”
The judge subsequently set the amounts at $119,509 for Condon-Johnson and $83,870.15 in favor of the Roman Catholic Bishop of San Diego.
Ninth Circuit Agrees
The Ninth Circuit judges found thar sanctions were levied properly bot under a court rule and pursuant to a District Court’s inherent authority. They noted that in a 2020 Ninth Circuit case, “a group largely consisting of the same plaintiffs as here sought to enjoin the Jamul Indian Village’s construction of a casino on the same federal trust land at issue in this case,” relating:
“We have found at least 20 such cases.”
They commented:
“This latest suit can be understood only as part of Plaintiffs’ decades-long campaign to stop the Village’s casino construction project, typically premised on Plaintiffs’ allegations that the project disturbs the funerary remains of Plaintiffs’ relatives. Plaintiffs have repeatedly been urged to cease these efforts….Given this extensive history, the district court did not abuse its discretion in finding that this suit was brought in bad faith with the intent to harass.
“We also hold that the district court did not abuse its discretion in determining that Plaintiffs’ claims are frivolous.
They pointed out in a footnote that Webb “has represented Plaintiffs in numerous cases dismissed based on the Village’s sovereign immunity.”
The case is Rosales v. Roman Catholic Bishop of San Diego, 24-3754.
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