Rincon Mushroom Corporation of v. Bo Mazzetti

FILED

NOT FOR PUBLICATION JUL 19 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RINCON MUSHROOM CORPORATION No. 10-56521 OF AMERICA, a California corporation, D.C. No. 3:09-cv-02330-WQH- Plaintiff - Appellant, POR Southern District of California, v. San Diego

BO MAZZETTI; et al.,

ORDER

Defendants - Appellees.

Before: SILVERMAN and RAWLINSON, Circuit Judges, and TUNHEIM, District Judge.*

A majority of the panel has voted to grant the petition for panel rehearing.

Judge Rawlinson voted to deny the petition for panel rehearing.

The petition for panel rehearing is GRANTED. The Memorandum filed on

April 20, 2012 is withdrawn and replaced by the Memorandum filed

contemporaneously with this order.

The suggestion for rehearing en banc is denied as moot.

* The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.

FILED

NOT FOR PUBLICATION JUL 19 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF…

ORDER

A majority of the panel has voted to grant the petition for panel rehearing. Judge Rawlinson voted to deny the petition for panel rehearing.

The petition for panel rehearing is GRANTED. The Memorandum filed on April 20, 2012 is withdrawn and replaced by the Memorandum filed contemporaneously with this order.

The suggestion for rehearing en banc is denied as moot.

MEMORANDUM **

Plaintiff Rincon Mushroom Corporation of America, the owner of a five-acre parcel *13 within the Rincon Band of Luiseno Mission Indians tribal reservation, appeals the district court’s dismissal of its action to enjoin Rincon tribal officials from enforcing tribal environmental and land-use regulations on its property on the ground that Rincon Mushroom has not exhausted its tribal remedies.

Before bringing suit in federal court to challenge tribal jurisdiction, a non-Indian generally must first exhaust tribal court remedies. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 , 105 S.Ct. 2447 , 85 L.Ed.2d 818 (1985). Rincon Mushroom argues that this case falls within an exception to the tribal exhaustion requirement for assertions of tribal jurisdiction that are not…

dissenting:

On the issue of tribal jurisdiction over non-Indians, the United States Supreme Court is moving in one direction and we are moving in another. In recent years, the Supreme Court has clearly signaled that tribal jurisdiction over non-Indians on fee simple land is tenuous, at best. The majority seemingly ignores that signal.

This case concerns the efforts of the Rincon Band of Luiseno Indians (the Tribe) to force compliance with its Environmental Enforcement Code and Tribal Court Jurisdiction Ordinance upon a non-Indian on fee simple land.

Exhaustion of tribal court remedies was not required in this case because tribal court jurisdiction was not “colorable or plausible.” Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 848 (9th Cir.2009) (citation omitted). Rather, requiring exhaustion in this case “would serve no purpose other than delay.” Id. at 847 , quoting Nevada v. Hicks, 533 U.S. 353, 369 , 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001).

In recent years, the Supreme Court has clarified that “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction .... ” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 , 128…