Lundgren v. Upper Skagit Indian Tribe ( 2017 )

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3 V{ J.d ~ J.tJNt?f,fSJ. SUSAN L. CARLSON
CHIEF JUSTICE -) SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SHARLINE LUNDGREN and RAY )
LUNDGREN, wife and husband, ) No. 91622-5
)
Respondents, )
)
v. ) EnBanc
)
UPPER SKAGIT INDIAN TRIBE, )
)
Appellant. )
) Filed FEB 1 6 2017
JOHNSON, J.-This case involves the relationship between in rem
jurisdiction, Superior Court Civil Rule (CR) 19, and sovereign immunity. The
issue is whether the Upper Skagit Indian Tribe's (Tribe) assertion of sovereign
immunity requires dismissal of an in rem adverse possession action to quiet title to
a disputed strip of land on the boundary of property purchased by the Tribe. The
superior court concluded that because it had in rem jurisdiction, it could determine
ownership of the land without the Tribe's participation. An inquiry under CR 19,
as required by our cases, involves a merit-based determination that some interest
will be adversely affected in the litigation. Where no interest is found to exist,
especially in an in rem proceeding, nonjoinder presents no jurisdictional barriers.
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
We find that the Tribe does not have an interest in the disputed property; therefore,
the Tribe's sovereign immunity is no barrier here to this in rem proceeding. The
trial court properly denied the Tribe's motion to dismiss and granted summary
judgment to the property owner. We affirm.
FACTS AND PROCEDURAL HISTORY
Sharline and Ray Lundgren and the Tribe own adjacent properties in Skagit
County, Washington. A barbed wire fence runs along the southern portion of the
Tribe's land. The fence spans the width of the Tribe's lot, with a gate approximately
halfway along the fence line. The land between the fence and the southern boundary
of the Tribe's lot is the land at issue in this case. For ease of reference, we refer to this
land as the "disputed property."
The Lundgrens bought the 10 acres of land immediately south of the disputed
property in 1981. The property had been in their extended family since 1947, when
Sharline Lundgren's grandmother first bought the property. The Lundgrens
established that the fence on the disputed property has been in the same location since
at least 1947, and that for as long as their property has been in the family, they have
treated the fence as the boundary line. Since 1947, the Lundgren family exclusively
has harvested timber, cleared brush, kept the fence clear of fallen trees, and treated the
disputed property on the southern side of the fence as their own.
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Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
The Tribe's land had been previously owned by Annabell Brown for many
decades. In 1984, she quitclaimed a 1/4 undivided interest in the property to her son
David Brown. Upon her death, the rest of the property passed to her other children,
Paul Brown, Vivian Jennings, and Barbara Carrell. In 2013 the Tribe bought the
property from Paul Brown, Jennings, and Carrell, receiving a statutory warranty deed.
The Tribe was evidently unaware of the fence when it purchased the property. The
Tribe's surveyors alerted the Tribe to the presence of the fence in October 20 13 while
surveying the property "in an effort to take the land into Trust." Clerk's Papers (CP) at
115.
In September 2014, the Tribe notified the Lundgrens in a letter that the fence
did not represent the boundary and that they were asserting ownership rights to the
entire property deeded to them in 2013. The Lundgrens initiated this lawsuit in March
20 15. They asked the court to quiet title in the disputed property to them and sought
injunctive relief. The Lundgrens moved for summary judgment, arguing they acquired
title to the disputed property by adverse possession or by mutual recognition and
acquiescence long before the Tribe bought the land. The Tribe moved to dismiss
under CR 12(b)( 1) for a lack of subject matter jurisdiction based on the Tribe's
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Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
sovereign immunity and under CR 12(b)(7), 1 which requires joinder of a necessary
and indispensable party under CR 19.2
In the trial court, Judge Dave Needy denied the Tribe's motion to dismiss. The
Tribe moved for direct discretionary review of this ruling. Judge Susan Cook later
granted the Lundgrens' motion for summary judgment, holding the Lundgrens'
"claims of title ownership by adverse possession and mutual recognition and
acquiescence is established. Legal title to the disputed property is owned by
Plaintiffs." CP at 159. Judge Cook noted that the fence was not hidden. Both parties
1
"How Presented. Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the following defense[] may at the
option of the pleader be made by motion: ... (7) failure to join a party under [CR] 19."
2
"(a) Persons to Be Joined if Feasible. A person who is subject to service of process
and whose joinder will not deprive the court of jurisdiction over the subject matter of the action
shall be joined as a party in the action if (1) in the person's absence complete relief cannot be
accorded among those already parties, or (2) the person claims an interest relating to the subject
of the action and is so situated that the disposition of the action in the person's absence may (A)
as a practical matter impair or impede the person's ability to protect that interest or (B) leave any
of the persons already parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the person's claimed interest. If the person has
not been so joined, the court shall order that the person be made a party. If the person should join
as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects to venue and the person's joinder would render
the venue of the action improper, the joined party shall be dismissed from the action.
"(b) Determination by Court Whenever Joinder Not Feasible. If a person joinable
under (1) or (2) of section (a) hereof cannot be made a party, the court shall determine whether in
equity and good conscience the action should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as indispensable. The factors to be considered
by the court include:(l) to what extent a judgment rendered in the persons absence might be
prejudicial to the person or those already parties; (2) the extent to which, by protective provisions
in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or
avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether
the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder."
4
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
recognized the fence as the boundary line and that it had clearly been on the property
for much longer than the necessary 10 years. She noted that the Lundgrens' labor on
the property was established by numerous witness declarations. Importantly, she
stated that "this is as clear as a case as I've had on the bench." Verbatim Report of
Proceedings (VRP) (May 7, 2015) at 20. The Tribe amended its motion for
discretionary review to seek review of both Judge Needy's and Judge Cook's orders.
We accepted direct review. See Order, Lundgren v. Upper Skagit Indian Tribe, No.
91622-5 (Wash. Feb. 10, 2016).
ANALYSIS
The superior court concluded that because it had in rem jurisdiction, it could
determine ownership of the land without the Tribe's participation. See VRP (Apr. 24,
20 15) at 24. While it recognized it could not join the Tribe against its will, the court
found the Tribe's attempt to use CR 19 to be "contrary to common sense, fairness, and
due process for all involved." VRP (Apr. 24, 2015) at 32.
The Tribe argues that dismissal is required for two reasons. First, it argues the
superior court lacks jurisdiction because the Tribe has sovereign immunity from suit,
which neither the Tribe nor Congress has waived for quiet title actions. See
Appellant's Opening Br. at 10. The Tribe differentiates between an in rem claim and
in rem jurisdiction, asserting that "jurisdiction in this case can only lie if the Court has
both subject matter jurisdiction and personal jurisdiction over the claims and parties.
5
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
Thus, the mere fact of an in rem claim does not affect or somehow avoid threshold
jurisdictional questions such as sovereign immunity." Appellant's Reply Br. at 5.
Second, it argues that even if the lower court had in rem jurisdiction to hear the case,
CR 19 requires dismissal because the Tribe is a necessary and indispensable party that
cannot be joined due to sovereign immunity. See Appellant's Opening Br. at 24-30;
Appellant's Reply Br. at 1.
The Lundgrens acknowledge that the Tribe has sovereign immunity. Resp'ts'
Br. at 6 ("The Lundgrens admit that the Tribe is entitled to sovereign immunity.").
They argue that because the court has in rem jurisdiction over the quiet title action,
personal jurisdiction over the Tribe is unnecessary and its immunity is irrelevant.
They also assert that because they obtained title by adverse possession before the
Tribe purchased the property, "[t]he Tribe's sovereign immunity does not deprive the
court of jurisdiction over land the Tribe never owned." Resp'ts' Br. at 23. With regard
to CR 19, the Lundgrens argue, "[b]ecause the Court has in rem jurisdiction,
sovereign immunity is not a bar to jurisdiction, the Tribe is not an indispensable party,
and Civil Rule 19 does not prevent the case from proceeding." Resp'ts' Br. at 29.
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Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
I. In Rem Jurisdiction
Superior courts in Washington have jurisdiction to exercise in rem
jurisdiction to settle disputes over real property. 3 Quiet title actions are proceedings
in rem. Phillips v. Tompson, 73 Wash. 78, 82, 131 P. 461 (1913); see also 14 KARL
B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE§ 5:1, at 155 (2d ed.
2009). In such proceedings, the court has jurisdiction over the property itself. See
TEGLAND, supra. Personal jurisdiction over the landowner is not required. In re
Acquisition of Land & Other Prop. by City ofSeattle, 56 Wash. 2d 541, 544-45, 353
P.2d 955 (1960); see also In re Condemnation Petition City ofLynnwood, 118 Wn.
App. 674, 679 & n.2, 77 P.3d 378 (2003) (noting that quiet title actions are
proceedings in which the court can exercise in rem jurisdiction, and that "[ c]ourts
may have jurisdiction to enter judgment with respect to property ... located within
the boundaries of the state, even if personal jurisdiction has not been obtained over
the persons affected by the judgment").
A court exercising in rem jurisdiction is not necessarily deprived of its
jurisdiction by a tribe's assertion of sovereign immunity. The United States
Supreme Court has recognized this principle. In County of Yakima v. Confederated
3
Article IV, section 6 of the Washington Constitution expressly establishes that our
state's superior courts "shall have original jurisdiction in all cases at law which involve the title
or possession of real property." See also RCW 2.08.010.
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Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255, 112 S. Ct. 683, 116
L. Ed. 2d 687 (1992), the county sought to foreclose property within the Yakama
Indian Reservation for failure to pay ad valorum taxes. The Yakama Nation argued
that state jurisdiction could not be asserted over fee-patented reservation land. The
Supreme Court held that the Indian General Allotment Act allowed Yakima
County to impose ad valorum taxes on reservation land. 25 U.S.C. §§ 334-381.
The Court reached that conclusion by characterizing the county's assertion of
jurisdiction over the land as in rem, rather than an assertion of in personam
jurisdiction over the Yakama Nation. In other words, the Court had jurisdiction to
tax on the basis of alienability of the allotted lands, and not on the basis of
jurisdiction over tribal owners. See Anderson & Middleton Lumber Co. v. Quinault
Indian Nation, 130 Wash. 2d 862, 869-72, 929 P .2d 3 79 (1996) (describing County of
Yakima, 502 U.S. 251 ).
This court has similarly upheld a superior court's assertion of in rem
jurisdiction over tribally owned fee-patented land. In Anderson, this court held that
the Grays Harbor County Superior Court had in rem jurisdiction over an action to
partition and quiet title to fee-patented lands within the Quinault Indian
Reservation. In that case, the Quinault Indian Nation purchased a 1/6 interest in the
surface estate of fee-patented land subject to a pending suit to partition and to a lis
8
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
pendens. Relying on County of Yakima, and noting that an action to partition and
quiet title is "a much less intrusive assertion of state jurisdiction over reservation
fee patented land" than taxing and foreclosing fee lands, the court concluded the
"Superior Court had proper in rem jurisdiction over [the] suit to quiet title and
partition alienable and encumberable fee patented property situated within the
Quinault Indian Reservation .... An action for partition of real property is a
proceeding in rem." Anderson, 130 Wash. 2d at 872, 873. Furthermore, it was
not disputed that the trial court had proper jurisdiction over this action
when it was filed. The subsequent sale of an interest in the property to
an entity enjoying sovereign immunity (Quinault Nation) is of no
consequence in this case because the trial court's assertion of
jurisdiction is not over the entity in personam, but over the property or.
the "res" in rem.
Anderson, 130 Wash. 2d at 873. The court was exercising jurisdiction over the
property, not over the Quinault Indian Nation, and thus the land was "subject to a
state court in rem action which does nothing more than divide it among its legal
owners according to their relative interests." Anderson, 130 Wash. 2d at 873. Because
the court determined there was in rem jurisdiction, it did not need to address
sovereign immunity.
Relying on Anderson, Division One of the Court of Appeals held that the
court could exercise in rem jurisdiction in a quiet title action in which the
Stillaguamish Tribe of Indians purchased land with notice of a pending quiet title
9
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
action. Smale v. Noretep, 150 Wash. App. 476, 208 P.3d 1180 (2009). In Smale, the
Smales sought to quiet title to property they claimed to have acquired through
adverse possession against Noretep, the non-Indian original owner. After the
Smales sued, Noretep sold the property by statutory warranty deed to the
Stillaguamish Tribe. The deed noted the pending quiet title action, and the Smales
added the Stillaguamish Tribe as a defendant. The Stillaguamish Tribe argued that
sovereign immunity barred the action. The court found:
Because courts exercise in rem jurisdiction over property subject to
quiet title actions, our Supreme Court has held that transferring the
disputed property to a tribal sovereign does not bar the continued
exercise of subject matter jurisdiction over the property. Accordingly,
we hold that the superior court's continuing jurisdiction over the land
claimed by the Smales for the purposes of determining ownership
does not offend the Tribe's sovereignty.
Smale, 150 Wash. App. at 477.
The court noted, "The quiet title action in Anderson is similar to the quiet
title action here in two crucial ways: both are proceedings in rem to determine
rights in the property at issue and neither has the potential to deprive any party of
land they rightfully own." Smale, 150 Wash. App. at 483. The Smales alleged they
acquired title to the land via adverse possession before the original owner sold to
the Stillaguamish Tribe. If this were true, the Stillaguamish Tribe never possessed
the land and thus never had land to lose. Nor were the Smales attempting to
10
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
adversely possess against a sovereign. The court concluded that, as in Anderson,
the doctrine of sovereign immunity did not apply and did not bar the quiet title
action. County of Yakima, Anderson, and Smale establish the principle that our
superior courts have subject matter jurisdiction over in rem proceedings in certain
situations where claims of sovereign immunity are asserted.
II. CR 19
Next, we turn to whether the Tribe must be joined to allow the action to
proceed under CR 19. The Tribe asserts that even if the trial court had in rem
jurisdiction to hear the case, CR 19 requires dismissal because the Tribe is a necessary
and indispensable party that cannot be joined due to sovereign immunity. Appellant's
Opening Br. at 24. We disagree. In reaching our decision, we highlight the
importance of CR 19 as a prudential standard that asks not whether a court has the
power to decide a case, but rather whether it should.
CR 19(a) involves a three-step analysis. Auto. United Trades Org. v. State,
175 Wash. 2d 214, 222-23, 285 P.3d 52 (2012). First, the court determines whether
absent persons are "necessary" for a just adjudication. If the absentee parties are
"necessary," the court determines whether it is feasible to order the absentee's
joinder. Joinder is generally not feasible when tribal sovereign immunity is
asserted. Auto. United Trades Org., 175 Wash. 2d at 222 (citing Equal Emp 't
11
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
Opportunity Comm 'n v. Peabody W. Coal Co., 400 F.3d 774, 780-81 (9th Cir.
2005)). "If joining a necessary party is not feasible, the court then considers
whether, 'in equity and good conscience,' the action should still proceed without
the absentees under CR 19(b)." Auto. United Trades Org., 175 Wash. 2d at 222. We
have recognized that "[d]ismissal under CR 12(b)(7) for failure to join an
indispensable party is a 'drastic remedy' and should be ordered only when the
defect cannot be cured and significant prejudice to the absentees will result." Auto.
United Trades Org., 175 Wash. 2d at 222-23 (citing Gildon v. Simon Prop. Grp., Inc.,
15 8 Wash. 2d 483, 494, 145 P .3d 1196 (2006) (citing 7 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §
1609, at 130 (3d ed. 2001)).
A. "Necessary" Party
A party must be joined if adjudication of the matter in the party's "absence
may (A) as a practical matter impair or impede the person's ability to protect that
interest or (B) leave any of the persons already parties subject to substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by reason of the
person's claimed interest." CR 19(a). The heart of the rule is the safeguarding of
the absent party's legally protected interest. Auto. United Trades Org., 175 Wash. 2d
at 223.
12
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
The Tribe asserts that it has a legally protected interest because it claims
record title ownership of the disputed property. Appellant's Opening Br. at 25. An
inquiry under CR 19, as required by our cases, involves a merit-based
determination that an interest will be adversely affected in the litigation. In an in
rem action, the property at issue is the focus of the proceeding. The nature and end
result of an in rem action determines often competing interests in the property.
This analysis is in contrast to civil actions, where the nature and end result is relief
or judgment. This difference is important here in the context of a legally protected
interest because the Lundgrens are not seeking to divest a sovereign of ownership
or control. Rather, they are attempting to retain what they already own. Where no
interest exists, nonjoinder presents no jurisdictional barriers. While this analysis
seems, in a way, to put "the cart before the horse," this is the relevant CR 19
analysis. Here, as our cases recognize, and as the trial court found, Sharline and
Ray Lundgren acquired ownership by adverse possession long before the property
was purchased by the Tribe. To find sovereign immunity, some impact on a
sovereign's interest should exist. No such interest exists in this case. In the trial
court, the Tribe challenged the Lundgrens' lawsuit to quiet title and defended
13
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
against the motion for summary judgment. 4 The Tribe claimed material issues of
fact existed and challenges the summary judgment order here. Considering the
facts in the light most favorable to the nonmoving party, we will affirm the trial
court's grant of summary judgment if we determine "that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law." CR 56( c). The Lundgrens are entitled to judgment as a matter of
law if the undisputed facts establish that the Lundgrens would have succeeded on
an adverse possession claim. We hold that they have.
To succeed on an adverse possession claim, possession must be "(I) open
and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile." ITT
Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin v.
Sanders, 100 Wash. 2d 853, 857, 676 P.2d 431 (1984)). "Possession of the property
with each of the necessary concurrent elements must exist for the statutorily
prescribed period of 10 years." ITT Rayonier, Inc., 112 Wash. 2d at 757 (citing RCW
4.16.020). Additionally, we have held that title becomes vested when the elements
of adverse possession, specifically the 10 year time period, are established. In
Gorman v. City of Woodinville, 175 Wash. 2d 68, 283 P.3d 1082 (2012), we
4
In rem actions require giving notice to any and all persons or entities who may claim an
interest in the property to allow those potential claimants the opportunity to participate in the
action and assert their interest.
14
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
recognized this principle. In that case, the claim was asserted and we found that
title was acquired before the government purchased the land in question. We held
that, as long as the requisites of adverse possession were met before the property
was transferred to the government, RCW 4.16.160-which otherwise shields the
government from claims of adverse possession-did not control. We found that the
quiet title lawsuit against the city could proceed since the legal determination only
confirmed that the claim of adverse possession was satisfied before the city
acquired the property. The principles recognized in Gorman are important here
because the Lundgrens' claim is based on the fact that title to the land was acquired
long before the Tribe purchased the adjacent land.·
The trial court, in granting summary judgment, relied on numerous
declarations to find in favor of the Lundgrens. The record establishes that the
disputed property has been in the Lundgrens' extended family since 1947, first
purchased by Sharline Lundgren's grandmother. A permanent, visible, 1,306 foot
long fence marked the boundary between the two properties for decades. The Tribe
argues that evidence exists that "shows a dispute as to the parties' knowledge of
the existence of the fence." Appellant's Opening Br. at 34. Annabell Brown's
brother-in-law, Ray Brown, confirmed that both families were aware of the
boundary fence and treated it as the property line. The Tribe asserts that Annabell
Brown's son, David Brown, had no idea the fence was there. Assuming this is true,
15
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
David Brown's lack of knowledge is not material to the legal issue in this case
because the Lundgrens' use of the land was sufficient to satisfy the elements of
adverse possession. "Open" and "notorious" mean that activities or objects on the
land are visible and discoverable, if not actually known, to the true owner. 17
WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL
ESTATE: PROPERTY LAW§ 8.11, at 523 (2d ed. 2004). "[T]he owner is charged with
constructive notice of permanent, visible objects placed on the ground, even if they
are only slightly upon the land and would be seen to intrude only by scrupulous
inspection or even by professional survey." STOEBUCK & WEAVER, supra, at 525.
The evidence shows that the Lundgrens exclusively possessed and maintained the
disputed property. The Tribe asserted no evidence to rebut the testimony that the
Lundgrens and their predecessors have gone onto the property, cut trees, trimmed
branches, and perhaps mended the fence in the last 70-plus years. Significantly,
Judge Cook, in granting summary judgment, stated that "this is as clear as a case as
I've had on the bench." VRP (May 7, 2015) at 20. We find the material facts
undisputed and affirm the entry of order of summary judgment.
B. "Indispensable" Party
Because we have found that the Tribe is not a necessary party, we need not
continue the CR 19 analysis. However, it is important to note that the principle of
indispensability is rooted in equitable considerations. Auto. United Trades Org.,
16
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
175 Wash. 2d at 227 (citing Crosby v. Spokane County, 137 Wash. 2d 296, 309, 971
P.2d 32 (1999)). The central question is whether an action can proceed "in equity
and good conscience." CR 19(b). The CR 19 inquiry requires "careful exercise of
discretion" and is '"heavily influenced by the facts and circumstances of individual
cases.'" Auto. United Trades Org., 175 Wash. 2d at 229 (quoting WRIGHT, MILLER &
KANE, supra,§ 1604, at 39). Of importance here is that dismissal would result in
no adequate remedy for the plaintiff. Because of a strong aversion to dismissal,
great weight is given to this factor. There is no alternative judicial forum for the
Lundgrens. See Wash. Supreme Court oral argument, Lundgren v. Upper Skagit
Indian Tribe, No. 91622-5 (June 9, 2016), at 11 min., 42 sec. to 12 min., 07 sec.,
audio recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org (explaining that although there is a tribal court, "the Upper
Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal
court, so there would not be a claim in the Upper Skagit Tribal Court to be brought
by the plaintiffs").
The purpose of CR 19 is to serve "'complete justice"' by permitting disputes
to go forward only when all parties are present to defend their claims. Auto. United
Trades Org., 175 Wash. 2d at 233. But as we stated in Automotive United Trades
Organization, "'complete justice' may not be served when a plaintiff is divested of
all possible relief because an absent party is a sovereign." 175 Wash. 2d at 233. In
17
Lundgren v. Upper Skagit Indian Tribe, No. 91622-5
this instance, dismissal leads to no justice at all. In Automotive United Trades
Organization, we emphasized that sovereign immunity is meant to be raised as a
shield by a tribe, not as a sword. Here, a survey of the property was done a month
after the property was deeded to the Tribe. See Appellant's Opening Br. at 5-6. A
survey of the property before purchase would have disclosed the existence of the
fence and at minimum put a purchaser on notice to determine the property boundaries.
The Lundgrens had acquired title by adverse possession decades before the Tribe
acquired record title in 2013. After the Lundgrens commenced the quiet title action,
the Tribe claimed sovereign immunity and joinder under CR 19 to deny the
Lundgrens a forum to acquire legal title to property they rightfully own. The Tribe has
wielded sovereign immunity as a sword in disguise. While we do not minimize the
importance of tribal sovereign immunity, allowing the Tribe to employ sovereign
immunity in this way runs counter to the equitable purposes underlying compulsory
joinder. See Auto. United Trades Org., 175 Wash. 2d at 233-34. Finding otherwise, as
correctly articulated by the trial court, is "contrary to common sense, fairness, and
due process for all involved."
18
Lundgren v. Upper Skagit Indian Tribe, No. 91622~5
VRP (Apr. 24, 2015) at 32. We affirm the superior court.
WE CONCUR:
19
Lundgren v. Upper Skagit Indian Tribe
No. 91622-5
STEPHENS, J. (dissenting)-It is well established that "tribal sovereign
immunity comprehensively protects recognized American Indian tribes from suit
absent explicit and 'unequivocal' waiver or abrogation." Wright v. Colville Tribal
Enter. Corp., 159 Wash. 2d 108, 112, 147 P.3d 1275 (2006) (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 59, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978)).
"'[S]ociety has consciously opted to shield Indian tribes from suit,"' Auto. United
Trades Org. v. State, 175 Wn.2d214, 230,285 P.3d 52 (2012) (internal quotation marks
omitted) (quotingFluentv. SalamancaindianLeaseAuth., 928 F.2d 542,548 (2d Cir.
1991)), because tribes are "'separate sovereigns pre-existing the Constitution,"'
Michigan v. Bay Mills Indian Cmty., _U.S._, 134 S. Ct. 2024,2030, 188 L. Ed.
2d 1071 (2014) (quoting Santa Clara Pueblo, 436 U.S. at 56). Brushing aside this
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
fundamental principle, the majority concludes that the Upper Skagit Indian Tribe
(Tribe) must either waive its sovereign immunity and defend against Sharline and
Ray Lundgren's adverse possession claim, or else risk having judgment entered in its
absence. The majority justifies this result on the ground that personal jurisdiction over
the Tribe is unnecessary in an in rem action to quiet title. Majority at 7. It also insists
that the Tribe has no interest in the disputed property because the Lundgrens' claim
of adverse possession predates the Tribe's ownership, and therefore the Tribe is not
a necessary party to this suit. !d. at 2, 13.
I respectfully dissent. While the existence of in rem jurisdiction gives a court
authority to quiet title to real property without obtaining personal jurisdiction over
affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the
face of a valid assertion of sovereign immunity. Proceeding without regard to the
Tribe's defense, the majority gives "insufficient weight" to the sovereign status of
the Tribe and erroneously "reach[es] and discount[s] the merits of [the Tribe's]
claims." Republic ofPhilippines v. Pimentel, 553 U.S. 851, 855,864, 128 S. Ct. 2180,
171 L. Ed. 2d 131 (2008).
Applying the analysis of CR 19, I would conclude that the Tribe is a necessary
and indispensable party that cannot be joined in this quiet title action. The result is
clear under our precedent: we should dismiss this case without reaching the merits
-2-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
of the Lundgrens' claims. Accordingly, I would reverse the superior court and remand
for entry of an order of dismissal under CR 12(b)(7).
ANALYSIS
The only difference between this case and others in which we have respected
assertions of tribal sovereign immunity is that the superior court's jurisdiction to quiet
title rests on in rem jurisdiction. Focusing on this jurisdictional basis, the majority looks
to cases that recognize the superior court's power to proceed. See, e.g., County of
Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251,
112 S. Ct. 683, 116 L. Ed. 2d 687 (1992); Anderson & Middleton Lumber Co. v.
Quinault Indian Nation, 130 Wash. 2d 862, 929 P.2d 379 (1996); Smale v. Noretep, 150
Wash. App. 476, 208 P.3d 1180 (2009). The majority is correct that these cases support
finding "where claims of sovereign immunity are asserted," a superior court has
"subject matter jurisdiction over in rem proceedings" and may determine the status of
the property without obtaining in personam jurisdiction over the tribe. Majority at 11.
If these cases represented the sole line of relevant authority, I might affirm. Cf. Cass
County Joint Water Res. Dist. v. 1.43 Acres ofLand, 2002 ND 83, 643 N.W.2d 685,
691-95 (2002) (relying in part on County of Yakima and Anderson, and holding tribal
sovereign immunity does not bar "a purely in rem action against land held by the Tribe
in fee and which is not reservation land, allotted land, aboriginal land, or trust land");
-3-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
Miccosukee Tribe of Indians v. Dep 't of Envtl. Prot. ex rel. Bd. of Trs. of Internal
Improvement Tr. Fund, 78 So. 3d 31, 34 (Fla. Dist. Ct. App. 2011) (holding tribal
"sovereign immunity is not implicated and does not bar" an eminent domain action
because it is "an action against land held in fee by the Tribe" and there is in rem
jurisdiction over the land). 1 However, a finding that the court has in rem jurisdiction
does not answer the issues before us. None of these cases address the impact of a tribe's
CR 19 claim.
I. CR 19 Counsels against Exercising in Rem Jurisdiction in the Face of a Valid
Assertion of Sovereign Immunity
The majority acknowledges that CR 19 reflects a prudential standard: "CR 19
... asks not whether a court has the power to decide a case, but rather whether it
1
It is worth noting, however, that recent decisions question whether a court may
exercise in rem jurisdiction over cases in which a tribe asserts its sovereign immunity,
particularly since the Supreme Court issued its decision in Bay Mills, which reiterated the
importance of sovereign immunity. See Hamaatsa, Inc. v. Pubelo ofSan Felipe, 2016 WL
3382082, at *7 (N.M. June 16, 2016) (holding "regardless of whether Hamaatsa asserts
claims that lie in rem or in personam, its action against the Pueblo is barred in accordance
with federal law. Because tribal sovereign immunity divests a court of subject matter
jurisdiction it does not matter whether Hamaatsa's claim is asserted in rem or in personam"
and specifically noting that while Anderson carved out an exception "to tribal sovereign
immunity for in rem actions," that case was decided before Bay Mills, which
"unequivocally bars us from carving out a similar exception"); Cayuga Indian Nation v.
Seneca County, 761 F.3d 218, 221 (2d Cir. 2014) (finding Bay Mills reaffirmed the
importance of sovereign immunity and that it protects a tribe from any suit absent waiver
or congressional authorization, and declining "to draw ... a distinction between in rem and
in personam proceedings"). Because I would decide this case under CR 19, I do not
reexamine our precedent in light of Bay Mills.
-4-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
should." Majority at 11. But the majority fails to acknowledge the significance of the
Tribe's interest and the Lundgrens' inability to obtain personal jurisdiction over the
Tribe. Instead, the majority seems to believe that because the court has in rem
jurisdiction, there is no need to engage in a full CR 19 analysis. This reasoning is
flawed. The court's authority to exercise in rem jurisdiction does not obviate the need
to determine which parties must be joined to fully and justly adjudicate the action.
Which parties are necessary and indispensable is a separate question from the court's
jurisdiction-one I find dispositive in this case given the Tribe's sovereign immunity.
Sovereign immunity affects personal jurisdiction. See, e.g., Santa Clara Pueblo,
436 U.S. at 58 ("'Indian Nations are exempt from suit"' (emphasis added) (quoting
United States v. US. Fid. & Guar. Co., 309 U.S. 506, 512,60 S. Ct. 653, 84 L. Ed. 894
(1940))); see also Anderson, 130 Wash. 2d at 876 (describing tribal sovereign immunity
under the "personal jurisdiction" section). 2 Though personal jurisdiction does not
2
Sovereign immunity has been variously characterized as a matter of subject matter
jurisdiction, and as a matter of personal jurisdiction. See, e.g., Miner Elec., Inc. v.
Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (lOth Cir. 2007) ("'Tribal sovereign
immunity is a matter of subject matter jurisdiction.'" (quoting E. F. W v. St. Stephen's
Indian High Sch., 264 F.3d 1297, 1302-03 (lOth Cir. 2001)); Wright, 159 Wash. 2d at 111
("The existence of personal jurisdiction over a party asserting tribal sovereign immunity is
a question of law reviewed de novo."). It is not necessary to resolve this dispute here
because this case can be resolved under CR 19. Under that standard, in quiet title actions
where an absent sovereign may be stripped of land to which it has a legitimate claim, an
assertion of sovereign immunity is dispositive and requires dismissal.
-5-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
impact a superior court's subject matter jurisdiction for in rem proceedings, In re
Acquisition ofLand & Other Prop. by City ofSeattle, 56 Wash. 2d 541, 544-45, 353 P.2d
955 (1960), it does impact a superior court's ability to join a nonparty. SeeEqualEmp 'l
Opportunity Comm 'n v. Peabody W. Coal Co., 400 F.3d 774,779 (9th Cir. 2005) ("Rule
19(a) sets forth three circumstances in which joinder is not feasible: when venue is
improper, when the absentee is not subject to personal jurisdiction, and when joinder
would destroy subject matter jurisdiction." (emphasis added)); see also WILLIAM W.
SCHWARZER, A. WALLACE TASHIMA & JAMES M. WAGSTAFFE, FEDERAL CIVIL
PROCEDURE BEFORE TRIAL 7-37 (2010) ("Joinder is not 'feasible' where ... the party
sought to be joined is immune from suit."). Personal jurisdiction is thus very relevant
to a court's CR 19 analysis.
The Tribe is not subject to personal jurisdiction because, as is conceded, it has
sovereign immunity. Resp'ts' Br. at 6. Therefore, while the Tribe is incorrect that "[in
rem] jurisdiction in this case can only lie if the Court has both subject matter jurisdiction
and personal jurisdiction over the claims and parties," Appellant's Reply Br. at 5, it is
correct that personal jurisdiction, in part, dictates the outcome of this case. We must
consider personal jurisdiction under the analysis of CR 19.
-6-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
II. The Tribe Is a Necessary and Indispensable Party
We recently addressed CR 19 in a case implicating tribal sovereignty, noting that
it applies "when the joinder of absent persons is needed for a just adjudication." Auto.
United Trades Org., 175 Wash. 2d at 221. "Where the feasibility of joinder is contested,
courts engage in a three-step analysis." !d. First, the court determines whether the
absent party is '"necessary"' under CR 19(a). !d. at 222. If the party is "necessary,"
the court then determines whether joinder is feasible. See id. If it is not feasible to join
the party, the court "determine[s] whether in equity and good conscience the action
should proceed among the parties before it, or should be dismissed." CR 19(b). If the
action cannot proceed "in equity and good conscience" without the absent party, that
party is considered "indispensable." !d.; Auto. United Trades Org., 175 Wash. 2d at 229.
The party urging dismissal for failure to join a necessary and indispensable party
bears the burden of persuasion. See Auto. United Trades Org., 175 Wash. 2d at 222. "We
review a [superior] court's decision under CR 19 for an abuse of discretion and review
any legal determinations necessary to that decision de novo." !d. We find an abuse of
discretion "if the [superior] court relies on unsupported facts, takes a view that no
reasonable person would take, applies the wrong legal standard, or bases its ruling on
an erroneous view of the law." Gildon v. Simon Prop. Grp., Inc., 158 Wash. 2d 483, 494,
145 P.3d 1196 (2006). Dismissal under CR 12(b)(7) is a "'drastic remedy."' Auto.
-7-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
United Trades Org., 175 Wash. 2d at 222 (quoting Gildon, 158 Wash. 2d at 494). Because
our Civil Rule and Federal Rule of Civil Procedure (FRCP) 19 are substantially similar,
we may look to federal case law for guidance. !d. at 223.
Here, the superior court denied dismissal based on CR 19 without engaging in
the required analysis. In its oral ruling, the court stated that although it understood it
could not join the Tribe against its will,
it seems to me that the Tribe is the one saying that this property, which by its
appearance may be adversely possessed long before the Tribe came into it, is
asking to bar litigation for the other side rather than the other way around ... and
I fmd that contrary to common sense, fairness, and due process for all involved.
Verbatim Report of Proceedings (Apr. 24, 2015) (VRP) at 32. While the superior
court's concerns are understandable, they reflect a desire to reach the merits of the
action so that both parties can have their day in court. The majority adopts this approach
unapologetically, asserting without a full analysis of the rule's factors that CR 19
requires "a merit-based determination," even though this seems "to put 'the cart before
the horse."' Majority at 13. In fact, CR 19 precludes a court from considering the
merits when one of the parties validly asserts sovereign immunity. See, e.g., Auto.
United Trades Org., 175 Wash. 2d at 224 (noting the CR 19 analysis focuses "on whether
a party claims a protected interest, not whether it actually has one"); see also Gildon,
158 Wash. 2d at 494 (contrasting "[d]ismissal under CR 12(b)(7)" with "trials on the
merits" (emphasis added)). As the Supreme Court recognized in Pimentel, beyond the
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Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
threshold determination that claims are not frivolous in evaluating the CR 19 factors,
"consideration of the merits [is] itself an infringement on foreign sovereign immunity."
553 U.S. at 864. Indeed, it would make no sense that a court evaluating the interests
of a party who cannot be joined to an action could summarily decide the party will
lose, and therefore has no interests to protect. 3
A. The Tribe Is a "Necessary" Party
A party is "necessary" if "the person claims an interest relating to the subject of
the action and is so situated that the disposition of the action in the person's absence
may ... as a practical matter impair or impede the person's ability to protect that
interest." CR 19(a)(2)(A). The claimed interest must be legally protected. Auto. United
3
The Court of Appeals analysis in Smale, on which the superior court and the
majority rely, is problematic in this regard when read in light of the CR 19 cases. See VRP
at 31. The Smale court broadly stated that the quiet title action at issue did not have "the
potential to deprive any party of land they rightfully own" because the Smales asserted
they acquired title by adverse possession before the Tribe bought the property. 150 Wn.
App. at 483; see also id. at 480-81 ("[I]fthe Smales acquired title before the suit was filed
and Noretep attempted to convey the land, Noretep had no title to convey. Thus, the tribe
never had any property to lose."). The court justified its consideration ofthe merits on the
procedural posture of the case; the tribe moved to dismiss for lack of jurisdiction under CR
12(b)(l), so the court assumed the Smales could prove adverse possession. !d. at 481 n.l5.
The majority's reliance on Smale is concerning for two reasons. First, the majority goes
further than Smale by actually resolving the merits. Compare majority at 13 (the
Lundgrens "are attempting to retain what they already own" (emphasis added)), with
Smale, 150 Wash. App. at 482 ("the Smales are attempting to retain what they allegedly own"
(emphasis added)). Second, no similar presumption to that under CR 12(b)(1) applies in
considering CR 19 and a motion to dismiss under CR 12(b)(7).
-9-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
Trades Org., 175 Wash. 2d at 224. As noted above, the main inquiry here is "whether a
party claims a protected interest, not whether it actually has one." Id.
In concluding that the Tribe has no interest because the Lundgrens satisfied the
elements of adverse possession, the majority takes its CR 19 analysis too far. Majority
at 13-16. The Tribe claims record title ownership of the disputed property. This is a
cognizable claim for a legally protected property interest. See Cady v. Kerr, 11 Wash. 2d
1, 8, 14-15, 118 P.2d 182 (1941) (stating that parties with a legal or equitable interest
in property directly affected by a boundary dispute must be defendants in the boundary
line adjudication); Reitz v. Knight, 62 Wash. App. 575, 585, 814 P.2d 1212 (1991) ("In
the context ofboundary line disputes, joinder ordinarily is required only of persons who
own property adjacent to the disputed boundary line."); RCW 7.28.010 ("[a]ny person
having a valid subsisting interest in real property, and a right to the possession
thereof, may recover the same by action in the superior court of the proper county,
to be brought against the tenant in possession; if there is no such tenant, then against
the person claiming the title or some interest therein" (emphasis added)); Quileute
Indian Tribe v. Babbitt, 18 F.3d 1456, 1458-59 (9th Cir. 1994) (finding the Quinault
Indian Nation was a necessary party because it had a claim to escheated property within
its reservation). The Tribe is clearly a necessary party to this lawsuit.
-10-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
B. The Tribe Cannot Be Joined Due to Sovereign Immunity
Having determined that the Tribe is a necessary party, the next question is
whether the Tribe can feasibly be joined. "Joinder is not feasible when tribal sovereign
immunity applies." Auto. United Trades Org., 175 Wash. 2d at 222. Because the parties
agree that the Tribe has not waived its sovereign immunity, the Tribe cannot be joined.4
C. The Tribe Is an Indispensable Party
Because the Tribe is a necessary party that cannot be joined, we must determine
if the Tribe is indispensable. See Confederated Tribes of Chehalis Indian Reservation
v. Lujan, 928 F.2d 1496, 1499 (9th Cir. 1991).
Federal courts have consistently recognized "that when the necessary party is
immune from suit, there may be 'very little need for balancing [FRCP] 19(b) factors
because immunity itself may be viewed as the compelling factor.'" Quileute Indian
Tribe, 18 F.3d at 1460 (quoting Confederated Tribes of Chehalis Indian Reservation,
928 F.2d at 1499)). Indeed, "comity and respect for sovereign interests often outweigh
all other factors in disposing of the joinder question" because '"society has consciously
opted to shield Indian tribes from suit."' Auto. United Trades Org., 175 Wash. 2d at 230
4
Sovereign immunity may be waived either by the tribe or congressional
abrogation. Okla. Tax Comm 'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498
U.S. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). As noted above, the Lundgrens
admit that the Tribe is entitled to sovereign immunity. See Resp'ts' Br. at 6. They do not
argue that either the Tribe or Congress waived this immunity.
-11-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
(internal quotation marks omitted) (quoting Fluent, 928 F .2d at 548). Courts, however,
may still apply the four factors to determine whether a tribe is an indispensable party.
Quileute Indian Tribe, 18 F.3d at 1460. These factors are:
(1) to what extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties; (2) the extent to which, by
protective provisions in the judgment, by the shaping of relief, or other
measures, the prejudice can be lessened or avoided; (3) whether a judgment
rendered in the person's absence will be adequate; (4) whether the plaintiff
will have an adequate remedy if the action is dismissed for nonjoinder.
CR 19(b). Analyzing and balancing these factors, 5 I would conclude that the Tribe
is an indispensable party.
1. CR 19(b)(1): Prejudice
Under CR 19(b)(1), we "assess[] the likelihood and significance of any
prejudice." Auto. United Trades Org., 175 Wash. 2d at 229. This factor favors the
Tribe for two reasons. First, this court has found that "[i]n evaluating the extent of
prejudice, we accord heavyweight to the tribes' sovereign status." Id. "Indian tribes
are 'domestic dependent nations' that exercise inherent sovereign authority over
their members and territories." Okla. Tax Comm 'n v. Citizen Band of Potawatomi
5
The majority refuses to balance the parties' interests, choosing instead to ignore
three of the four factors. Majority at 17; cf Auto United Trades Org., 175 Wash. 2d at 229
("In examining each of the four factors ... the court determines how heavily the factor
weighs in favor of, or against, dismissal." (emphasis added)). The sole factor the majority
considers conveniently favors the Lundgrens (remedy for the plaintiffs), while the three it
ignores favor the Tribe (prejudice, avoiding or reducing prejudice, and adequacy of the
judgment).
-12-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
Indian Tribe of Okla., 498 U.S. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991)
(quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L. Ed. 25 (1831)).
"Among the core aspects of sovereignty that tribes possess-subject ... to
congressional action-is the 'common-law immunity from suit traditionally enjoyed
by sovereign powers."' Bay Mills, 134 S. Ct. at 2030 (quoting Santa Clara Pueblo,
436 U.S. at 58). That sovereign immunity against suit "is 'a necessary corollary to
Indian sovereignty and self-governance."' !d. (quoting Three Affil. Tribes of Fort
Berthold Reservation v. Wold Eng'g, PC, 476 U.S. 877, 890, 106 S. Ct. 2305, 90 L.
Ed. 2d 881 (1986)). "Where tribal sovereign immunity is concerned, 'respect for the
inherent autonomy Indian tribes enjoy has been particularly enduring."' Auto.
United Trades Org., 175 Wn.2d at230 (quoting Fla. Paraplegic Ass 'n v. Miccosukee
Tribe ofIndians ofFla., 166 F.3d 1126, 1130 (11th Cir. 1999)). This factor strongly
favors finding the Tribe to be an indispensable party. See id. at 229-31; cf Pimentel,
553 U.S. at 867 (discussing cases of joinder and the governmental immunity of the
United States; finding under the first factor that "[t]hese cases instruct us that where
sovereign immunity is asserted, and the claims of the sovereign are not frivolous,
dismissal of the action must be ordered where there is a potential for injury to the
interests of the absent sovereign").
-13-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
Importantly, a judgment entered in the Tribe's absence would not bind the
Tribe to a determination that the Lundgrens adversely possessed the disputed
property. See Cady, 11 Wash. 2d at 8 (explaining parties who have a direct interest in
the result of a boundary line dispute must be joined "for otherwise such persons are
not bound as to any determination of the location of the boundaries"); Pit River
Home & Agric. Coop. Ass'n v. United States, 30 F.3d 1088, 1099 (9th Cir. 1994)
(finding the tribal council to be a necessary party in a dispute over the beneficial
owners of trust property because "even if the Association obtained its requested
relief in this action, it would not have complete relief, since judgment against the
government would not bind the Council, which could assert its right to possess the
Ranch"); Confederated Tribes of Chehalis Indian Reservation, 928 F .2d at 1498
(finding that in an action challenging the United States' continuing recognition of
the Quinault Indian Nation as the sole governing authority for the Quinault Indian
Reservation that "[j]udgment against the federal officials would not be binding on
the Quinault Nation, which could continue to assert sovereign powers and
management responsibilities over the reservation").
A determination of title to the disputed property without the Tribe being a
party to the litigation casts a shadow over the Tribe's ownership. See Quileute
Indian Tribe, 18 F.3d at 1460 (agreeing with the lower court's conclusion "that the
-14-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
Quinaults 'would suffer severe prejudice by not being a party to an action which
could deplete the Quinaults' land interests or jeopardize their authority to govern the
lands in question'" (quoting Quileute Indian Tribe v. Lujan, C91-558C, 1992 WL
605423, at *3 (W.D. Wash. Aug. 28, 1992) (court order)). At the same time,
proceeding without the Tribe could prevent the Lundgrens from providing
marketable title should they someday wish to sell their property. See Hebb v.
Severson, 32 Wash. 2d 159, 166, 201 P.2d 156 (1948) ("[M]arketable title is one that
is free from reasonable doubt and such as reasonably well informed and intelligent
purchasers, exercising ordinary business caution, would be willing to accept."). It
thus prejudices both the Tribe and the Lundgrens. See CR 19(b)(1); Pimentel, 553
U.S. at 869 (FRCP 19(b)'s first factor "directs consideration of prejudice both to
absent persons and those who are parties"). This factor strongly favors dismissal.
2. CR 19(b)(2): Avoiding or Reducing Prejudice
A further relevant inquiry is whether the court could lessen or avoid prejudice
by "protective provisions in the judgment, by the shaping of relief, or [by] other ·
measures." CR 19(b)(2). The Lundgrens do not propose any way the court could
lessen prejudice. I am unable to imagine a remedy that would lessen the prejudice
that results from quieting title to disputed property in the absence of the record title
holder. The majority fails to acknowledge that we cannot require the Tribe to waive
-15-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
its sovereign immunity to lessen prejudice. See Confederated Tribes of Chehalis
Indian Reservation, 928 F .2d at 1500 ("the ability to intervene if it requires waiver
of immunity is not a factor that lessens prejudice" (citing Makah Indian Tribe v.
Verity, 910 F.2d 555,560 (9th Cir. 1990)). This factor also strongly favors dismissal.
3. CR 19(b)(3): Adequacy of the Judgment
The third factor-the adequacy of a judgment rendered without the Tribe-
also weighs in favor of dismissal. See CR 19(b)(3). "Adequacy" here "'refers to the
public stake in settling disputes by wholes, whenever possible."' Auto. United
Trades Org., 17 5 Wash. 2d at 232 (internal quotation marks omitted) (quoting
Pimentel, 553 U.S. at 870). "A party who seeks to quiet title to a piece ofland must
join all known persons who are claiming title in order to settle the property's
ownership without additional litigation." 7 CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1621, at
334 (3d ed. 2001). As noted above, the Tribe may not be bound by a determination
made in its absence, and the Lundgrens may not be able to obtain secure title absent
a judgment against the Tribe. The dispute cannot be completely and definitively
settled without joining the Tribe.
-16-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
4. CR 19(b)(4): Remedy for the Plaintiffs
Finally, I consider whether the Lundgrens would have a remedy if this case
were to be dismissed. See CR 19(b)(4). I agree with the majority that this factor
weighs in favor of the Lundgrens. It appears that the Lundgrens do not have another
judicial forum in which they may seek relief if this claim were to be dismissed for
failure to join the Tribe. See Wash. Supreme Court oral argument, Lundgren v.
Upper Skagit Indian Tribe, No. 91622-5 (June 9, 2016), at 11 min., 42 sec.,
recording by TVW, Washington State's Public Affairs Network, available at
http://www.tvw.org (explaining that although there is a tribal court, "the Upper
Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal
court, so there would not be a claim in the Upper Skagit Tribal Court to be brought
by the plaintiffs"). However, the majority fails to recognize that "lack of an
alternative forum does not automatically prevent dismissal of a suit." Makah Indian
Tribe, 910 F.2d at 560. Courts respect the need to dismiss claims for inability to join
a necessary and indispensable sovereign even when doing so denies the plaintiff any
remedy. See, e.g., Pit River, 30 F.3d at 1102-03; Quileute Indian Tribe, 18 F.3d at
1460-61; Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1500; cf
Pimentel, 553 U.S. at 872 ("Dismissal under [FRCP] 19(b) will mean, in some
instances, that plaintiffs will be left without a forum for definitive resolution of their
-17-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
claims. But that result is contemplated under the doctrine of foreign sovereign
immunity."). This simply underscores that dismissal under CR 19 can be a drastic
remedy, albeit a proper one.
D. Balancing the CR 19(b) Factors
Balancing these four factors, I would conclude that the Tribe is a necessary and
indispensable party that cannot be joined. The most logical result is that this case should
be dismissed pursuant to the Tribe's CR 12(b)(7) motion, as the Lundgrens' interest in
quieting title to the disputed property yields to the Tribe's interest in maintaining its
sovereign immunity. I recognize that dismissal potentially leaves the Lundgrens
without recourse. Although in our most recent CR 19 and sovereign immunity case we
rejected dismissal due in part to the plaintiffs inability to obtain relief, that was a unique
case in which the State attempted to assert tribal sovereign immunity "as a sword."
Auto. United Trades Org., 175 Wash. 2d at 233. We explained, "Sovereign immunity is
meant to be raised as a shield by the tribe, not wielded as a sword by the State." Id.
Dismissal in that case "would have the effect of immunizing the State, not the tribes,
from judicial review." !d. at 234. 6 Here, the Tribe has properly asserted its sovereign
6
The majority misses the mark when it asserts that the "Tribe has wielded sovereign
immunity as a sword in disguise." Majority at 18. This statement rests on the mistaken
premise that the Tribe seeks to take from the Lundgrens "title to property they rightfully
own." Id. Even accepting as established the Lundgrens' claim that they adversely
possessed the disputed property for decades before the Tribe took ownership, they never
-18-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
immunity as a shield to protect itself from suit. I would therefore respect the Tribe's
status as a sovereign and dismiss the case without reaching the merits of the Lundgrens'
claims.
CONCLUSION
I would reverse the superior court. Under the analysis ofCR 19, the Tribe is a
necessary and indispensable party that cannot be joined because of sovereign immunity.
Accordingly, the Tribe is entitled to dismissal, and I would remand for entry of an order
granting the Tribe's motion to dismiss under CR 12(b)(7).
brought a claim of ownership until now. As a putative defendant in the Lundgrens' quiet
title action, the Tribe holds record title-and the validity of that ownership is not in
question absent a merits adjudication. Thus, the Tribe is asserting sovereign immunity
defensively, to resist being haled into court. The situation could not be more different from
the State's offensive assertion of tribal sovereign immunity in Auto.
-19-
Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, J., dissenting)
-20-