Wilbur v. Locket

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN WILBUR, JR., Trustee of 
the SALISH TRUST dba Trading Post
at March Point; MARVIN WILBUR,
SR.; JOAN WILBUR,
Plaintiffs-Appellants,
v.
GARY LOCKE, Governor of the No. 03-35911
State of Washington; FREDERICK
KIGA, Director, Revenue  D.C. No.
CV-03-00873-RSL
Department of the State of
Washington; GARY O’NEIL, OPINION
Assistant Director, Revenue
Department of the State of
Washington; REVENUE
DEPARTMENT OF THE STATE OF
WASHINGTON; STATE OF
WASHINGTON,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
May 6, 2005—Seattle, Washington
Filed September 9, 2005
Before: J. Clifford Wallace, Barry G. Silverman, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Wallace
12843
WILBUR v. LOCKE 12847
COUNSEL
James E. Lobsenz, Carney Badley Spellman, P.S., Seattle,
Washington, for the plaintiffs-appellants.
Christine O. Gregoire, Attorney General, and David M.
Hankins, Assistant Attorney General, Olympia, Washington,
for the defendants-appellees.
OPINION
WALLACE, Senior Circuit Judge:
The plaintiffs sought relief from an anticipated contract
between the State of Washington and the Swinomish Indian
12848 WILBUR v. LOCKE
Tribe (Tribe) regarding taxation of cigarette sales by Indian
retailers. The district court held that the Tax Injunction Act
(TIA), 28 U.S.C. § 1341, barred the action and dismissed it.
The district court had jurisdiction over this timely appeal pur-
suant to 28 U.S.C. §§ 1331 and 2201, and we have jurisdic-
tion pursuant to 28 U.S.C. § 1291. We affirm, but on grounds
different from the district court.
I.
Washington law authorizes the Governor “to enter into con-
tracts concerning the sale of cigarettes” with certain Indian
tribes. Wash. Rev. Code § 43.06.450. Such contracts must
“provide for a tribal cigarette tax in lieu of all state cigarette
taxes and state and local sales and use taxes on sales of ciga-
rettes in Indian country by Indian retailers,” but the tribe may
“allow an exemption for sales to tribal members.” Id.
§ 43.06.455(3). The contracts must also “provide that the
tribal cigarette tax rate be one hundred percent of the state
cigarette and state and local sales and use taxes within three
years of enacting the tribal tax.” Id. § 43.06.460. Tax revenue
retained by a tribe must be used for certain statutorily defined
“essential government services.” Id. § 43.06.455(8), (14)(a).
Thus, cigarette tax contracts must provide that the state will
not impose any tax, and must require a tribe to collect taxes
effectively equal to the previously imposed state taxes, and
use the revenue for essential government services. In addition,
cigarette tax contracts must include a number of provisions
regulating Indian retailers’ activities, such as provisions
requiring tax stamps, governing the purchase of cigarettes by
retailers, and ensuring compliance. Id. § 43.06.455(4), (5),
(7).
Marvin Wilbur, Jr., Marvin Wilbur, Sr., and Joan Wilbur
are enrolled members of the Tribe and the operators of a retail
store located on trust land within the Swinomish Indian Res-
ervation. In April 2003, the Wilburs filed an action against
various Washington officials and the Department of Revenue
WILBUR v. LOCKE 12849
(State) alleging that the State and the Tribe were negotiating
a cigarette tax contract. They alleged that the statutes govern-
ing cigarette tax contracts and the proposed agreement vio-
lated the Indian Commerce Clause, U.S. Const. art. I, § 8, cl.
3, the Sherman Antitrust Act, 15 U.S.C. §§ 7-276, the Treaty
of Point Elliot, 12 Stat. 927 (Jan. 22, 1855), and a host of
other constitutional and statutory provisions. The Tribe was
not named as a defendant.
The complaint requested, among other relief, a declaratory
judgment that Wash. Rev. Code §§ 43.06.450, 43.06.455, and
43.06.460 are “void, unlawful and unenforceable as applied to
cigarettes transported, distributed, received or sold by Plain-
tiffs’ retail businesses located within the exterior boundaries
of the Swinomish reservation”; an injunction “preventing the
Defendants from enforcing any provision of the statutes or
contracting in any way with the Swinomish Tribe or any per-
son or entity regarding a cigarette tax on any cigarettes to be
received or sold by Indian-owned retail businesses within the
exterior boundaries of the Swinomish Reservation”; and a
“declaration that any agreement or contract entered into by
the Swinomish Tribe with Defendants is invalid when
attempted to be imposed or any way applied to Plaintiffs.”
The State filed a motion to dismiss the Wilburs’ complaint,
arguing that the Wilburs lacked standing, that the TIA and the
Eleventh Amendment barred the Wilburs’ action, that the
Tribe was an indispensable party, and that the complaint
failed to state a claim for which relief could be granted. While
that motion was pending, the State and the Tribe executed a
cigarette tax contract (Compact). However, because the par-
ties did not inform the district court of this fact, the court was
under the impression that the Compact was still awaiting
approval by the Governor when it granted the State’s motion
to dismiss. Based largely on this misunderstanding, the court
concluded that the Tribe was not a necessary party. The court
asserted that the Wilburs “likely” lacked standing, but based
its decision on the proposition that the TIA deprived it of sub-
12850 WILBUR v. LOCKE
ject matter jurisdiction over the Wilburs’ suit. Therefore the
district court dismissed the action without discussing the
State’s other arguments.
II.
The State urges us to affirm the district court’s ruling that
the TIA bars this action, or to affirm on one of the other
grounds that it argued in the district court or on the additional
ground that the case is now moot. See Wolfe v. Strankman,
392 F.3d 358, 362 (9th Cir. 2004) (“We may affirm the dis-
trict court’s dismissal on any ground supported by the
record”). Because we now know facts, undisclosed to the dis-
trict court, bringing into question whether the Tribe is an
indispensable party pursuant to Rule 19, we first determine
whether we may proceed directly to the Rule 19 issue or
whether we must first address jurisdictional issues.
The Supreme Court has “adhered to the requirement that a
court address questions pertaining to its or a lower court’s
jurisdiction before proceeding to the merits.” Tenet v. Doe,
125 S. Ct. 1230, 1235 n.4 (2005), citing Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 94-95 (1998). How-
ever,
[w]hile Steel Co. reasoned that subject-matter juris-
diction necessarily precedes a ruling on the merits,
the same principle does not dictate a sequencing of
jurisdictional issues. “[A] court that dismisses on . . .
non-merits grounds such as . . . personal jurisdiction,
before finding subject-matter jurisdiction, makes no
assumption of law-declaring power that violates the
separation of powers principles underlying Mans-
field [C. & L. M. Ry. Co. v. Swan, 111 U.S. 379
(1884)] and Steel Company.” It is hardly novel for a
federal court to choose among threshold grounds for
denying audience to a case on the merits. Thus, as
the Court observed in Steel Co., district courts do not
WILBUR v. LOCKE 12851
overstep Article III limits when they decline jurisdic-
tion of state-law claims on discretionary grounds
without determining whether those claims fall within
their pendent jurisdiction, or abstain under Younger
v. Harris, 401 U.S. 37 . . . (1971), without deciding
whether the parties present a case or controversy.
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85
(1999) (citations omitted); see also Kowalski v. Tesmer, 125
S. Ct. 564, 567 & n.2 (2004) (assuming existence of Article
III standing and addressing “alternative threshold question”
whether prudential requirements of standing were satisfied).
The difficulty here is that it is unclear whether a Rule 19
issue is the sort of “threshold” question to which a court may
directly proceed without first addressing other “threshold”
questions. We are unaware of any case discussing how Rule
19 fits within the Steel Co./Ruhrgas scheme, and the parties
have not briefed the issue. Moreover, it is not always easy to
determine whether a particular issue is the type of “threshold”
matter which, if decided adversely to the plaintiff, obviates
the need to address other threshold questions. Compare
Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F.3d 650,
652-54 (5th Cir. 2005) (holding that “district court erred in
dismissing the case on forum non conveniens grounds without
first determining whether it had subject matter jurisdiction”)
with Monegasque De Reassurances S.A.M. v. Nak Naftogaz of
Ukraine, 311 F.3d 488, 497-98 (2d Cir. 2002) (holding that
court could pass over question of statutory subject matter
jurisdiction and “go[ ] directly to [a] forum non conveniens
issue”); compare also Calderon v. Ashmus, 523 U.S. 740, 745
& n.2 (1998) (stating that court “must first address” whether
action presented Article III case or controversy before
addressing Eleventh Amendment issue) and Cox v. City of
Dallas, 256 F.3d 281, 303-04 (5th Cir. 2001) (stating that
Article III standing “must be examined before the Eleventh
Amendment”) with Snoeck v. Brussa, 153 F.3d 984, 988 (9th
Cir. 1998) (“Because the Eleventh Amendment bar conclu-
12852 WILBUR v. LOCKE
sively ends this dispute we need not address the related issue
of [Article III] standing which the district court found plain-
tiffs lacked”) and Pederson v. La. State Univ., 213 F.3d 858,
866 (5th Cir. 2000) (addressing issues of Article III standing
and state sovereign immunity “in no particular order”).
[1] Although there is no clear precedent, we conclude that
jurisdictional issues should be decided before reaching the
Rule 19 issue. This is so because questions of subject matter
jurisdiction, “i.e., the courts’ statutory or constitutional power
to adjudicate the case,” Steel Co., 523 U.S. at 89, must gener-
ally be decided before the merits. See Ruhrgas, 526 U.S. at
577 (“[A] federal court may not hypothesize subject-matter
jurisdiction for the purpose of deciding the merits”). Thus, we
must decide the questions of standing and mootness, both of
which “go[ ] to the Article III jurisdiction of this Court and
the courts below,” Arizonans for Official English v. Arizona,
520 U.S. 43, 67 (1997), as well as the question whether the
TIA barred subject matter jurisdiction. See Arkansas v. Farm
Credit Servs. of Cent. Ark., 520 U.S. 821, 825 (1997) (“We
have interpreted and applied the Tax Injunction Act as a
‘jurisdictional rule’ and a ‘broad jurisdictional barrier’ ”
(quoting Moe v. Confederated Salish & Kootenai Tribes of
Flathead Reservation, 425 U.S. 463, 470 (1976))). We have
also held that “we may not bypass [an Eleventh Amendment]
issue in favor of deciding the case on the merits.” Cardenas
v. Anzai, 311 F.3d 929, 934 n.2 (9th Cir. 2002), citing Cal.
Franchise Tax Bd. v. Jackson (In re Jackson), 184 F.3d 1046,
1048 (9th Cir. 1999). Thus, we will decide certain jurisdic-
tional issues before turning to the Rule 19 question.
III.
“To satisfy Article III’s standing requirements, a plaintiff
must show (1) she has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as
WILBUR v. LOCKE 12853
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Bernhardt v. County of
Los Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002), quoting
Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000). “Standing is a question of law
reviewed de novo.” Id. at 867.
“A plaintiff has the burden of establishing the elements
required for standing, and ‘[f]or purposes of ruling on a
motion to dismiss for want of standing, both the trial and
reviewing courts must accept as true all material allegations
of the complaint, and must construe the complaint in favor of
the complaining party.’ ” Takhar v. Kessler, 76 F.3d 995,
1000 (9th Cir. 1996), quoting Warth v. Seldin, 422 U.S. 490,
501 (1975).
“As with all questions of subject matter jurisdiction except
mootness, standing is determined as of the date of the filing
of the complaint . . . . The party invoking the jurisdiction of
the court cannot rely on events that unfolded after the filing
of the complaint to establish its standing.” Kitty Hawk Air-
cargo, Inc. v. Chao, ___ F.3d ___, 2005 WL 1692613, at *5
(5th Cir. July 20, 2005) (quotation marks and citations omit-
ted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
570 n.4 (1992) (stating that “ ‘[t]he existence of federal juris-
diction ordinarily depends on the facts as they exist when the
complaint is filed’ ” and rejecting argument that events which
occurred after filing “retroactively created a redressability
(and hence a jurisdiction) that did not exist at the outset”
(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S.
826, 830 (1989) (emphasis in Lujan))). Thus, we examine
whether the Wilburs had standing under the facts extant at the
time of filing, when the Compact had not yet been signed.
The complaint alleged anticipated injuries from two types
of provisions in the proposed Compact. The first anticipated
injury concerns provisions of the Compact imposing taxes on
sales to other tribe members and the second anticipated injury
12854 WILBUR v. LOCKE
relates to compliance with the regulatory scheme articulated
in Wash. Rev. Code § 43.06.455(4), (5), (7). We need not get
to the first if we conclude that the Wilburs had standing to
seek prospective relief to prevent the regulatory burden. We
therefore turn to that issue.
[2] The regulations contemplated by the proposed Compact
would cause the Wilburs cognizable economic injury by forc-
ing them to incur additional costs. See Clark v. City of Lake-
wood, 259 F.3d 996, 1007 (9th Cir. 2001) (“ ‘The Court
routinely recognizes . . . economic injury resulting from gov-
ernmental actions . . . as sufficient to satisfy the Article III
‘injury in fact’ requirement’ ” (quoting Clinton v. City of New
York, 524 U.S. 417, 432-33 (1998))). The district court stated
that because the Compact had not been executed, the injury
was “likely” not “actual or imminent.” However, the Wilburs
sought a declaration that the challenged statutes were invalid,
an injunction preventing the consummation of any cigarette
tax contract pursuant to those statutes, and a declaration that
any contract actually executed was invalid. While plaintiffs
seeking injunctive and declaratory relief “must show that the
feared harm is ‘actual or imminent, not conjectural or hypo-
thetical,’ ‘[o]ne does not have to await the consummation of
threatened injury’ before challenging a statute.” Canatella v.
State of California, 304 F.3d 843, 852 (9th Cir. 2002), quot-
ing Lujan, 504 U.S. at 560, and Babbitt v. United Farm Work-
ers Nat’l Union, 442 U.S. 289, 298 (1979). Nothing in the
complaint suggests that, at the time of filing, the Compact’s
consummation was not “ ‘certainly impending.’ ” Lujan, 504
U.S. at 564 n.2, quoting Whitmore v. Arkansas, 495 U.S. 149,
158 (1990). On the contrary, the complaint alleged that the
State and Tribe were in negotiations and that the Compact
would be executed “within the near future.” At the pleading
stage, we accept this allegation as true. See Takhar, 76 F.3d
at 1000. Thus, the prospect of injury to the Wilburs from the
proposed Compact was sufficiently imminent to satisfy the
requirement of an injury in fact.
WILBUR v. LOCKE 12855
[3] The causation and redressability requirements are also
satisfied. True, the Wilburs’ injury was partly dependent on
the actions of the Tribe, in the sense that the Compact could
not be executed without its participation. See Yesler Terrace
Cmty. Council v. Cisneros, 37 F.3d 442, 446 (9th Cir. 1994)
(“[I]t usually is difficult to establish causation and redressi-
bility when a plaintiff’s alleged injury depends on the actions
of a third party not before the court”). But the opposite is also
true: had the State not enacted statutes authorizing cigarette
tax contracts and negotiated with the Tribe, the prospect of
injury from the proposed Compact would not have material-
ized. Thus, the Wilburs’ injuries are adequately traceable to
the State’s actions. See Artichoke Joe’s v. Norton, 216 F.
Supp. 2d 1084, 1104 (E.D. Cal. 2002) (where plaintiffs sued
Governor and sought declaration that gaming compacts
between state and Indian tribes violated federal law, causation
was satisfied because “the Governor approved the compacts
that gave rise to the plaintiffs’ injuries”), aff’d, 353 F.3d 712,
719 n.9 (9th Cir. 2003) (agreeing with district court’s standing
analysis). Indeed, we have held that causation was satisfied at
the pleading stage where the connection between the defen-
dants’ conduct and the plaintiff’s injury was more tenuous
than that involved here. See Bernhardt, 279 F.3d at 869
(where plaintiff alleged that “[a]s a direct result of the [Coun-
ty’s policy of settling civil rights actions for a lump sum
including attorney fees], plaintiff has been unable to obtain a
civil rights lawyer,” plaintiff’s “pleading adequately estab-
lished the causation element required for standing”).
[4] Redressability likewise is satisfied. “Plaintiffs need not
demonstrate that there is a ‘guarantee’ that their injuries will
be redressed by a favorable decision. . . . [P]laintiffs ‘must
show only that a favorable decision is likely to redress [their
injuries], not that a favorable decision will inevitably redress
[their injuries].’ ” Graham v. FEMA, 149 F.3d 997, 1003 (9th
Cir. 1998) (citation omitted). The Wilburs’ requests for pro-
spective relief, if granted, would have been likely to redress
12856 WILBUR v. LOCKE
the injury from the anticipated Compact. We hold that the
requirements of Article III standing are satisfied.
IV.
The State contends that the case is moot because the Wil-
burs sought an injunction barring the State from consummat-
ing the Compact with the Tribe, and the Compact has now
been executed. However, the Wilburs sought not only such an
injunction, but also declaratory relief voiding several statutes
and any cigarette tax contract executed by the State and Tribe.
“[T]he controversy regarding [these requests for relief] is as
‘live’ now as it was when [the Wilburs] first sought relief.”
S. Pac. Transp. Co. v. Pub. Util. Comm’n, 9 F.3d 807, 810
(9th Cir. 1993). Thus, although the Wilburs’ request for an
injunction might be moot, this does not prevent us from con-
sidering other requests for relief which are not moot. See
Powell v. McCormack, 395 U.S. 486, 496 n.8 (1969) (“Where
several forms of relief are requested and one of these requests
subsequently becomes moot, the Court has still considered the
remaining requests”); S. Pac. Transp. Co., 9 F.3d at 810
(although one claim was moot, court “may address the
remaining, live claims”).
V.
The district court held that the TIA deprived it of subject
matter jurisdiction over the Wilburs’ action. We review the
district court’s dismissal for lack of subject matter jurisdic-
tion, as well as its interpretation of a federal statute, de novo.
See May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d
1261, 1265 (9th Cir. 2004). The TIA provides:
The district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax
under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.
WILBUR v. LOCKE 12857
28 U.S.C. § 1341.
[5] In dismissing the action, the district court did not con-
clude that the Wilburs sought to “enjoin, suspend or restrain
the assessment, levy or collection” of a tax under Washington
law. Rather, the court held that the “anticipated tribal tax
arises under state law for purposes of the Tax Injunction Act”
because, among other reasons, “[i]n the absence of [the antici-
pated Compact] Indian retailers selling cigarettes to individu-
als who are not members of the Tribe could be required to
collect state taxes on such transactions.” See United States v.
Baker, 63 F.3d 1478, 1489 (9th Cir. 1995) (“[T]he right of a
state to impose and enforce a tax on cigarettes sold by Indians
to nontribal members is . . . clearly established”).
The district court’s focus on the anticipated Tribal tax
misses the point. Even accepting the premise that the Wilburs’
suit sought to “enjoin, suspend or restrain the assessment,
levy or collection” of the Tribal tax (which the Wilburs dis-
pute), the anticipated Tribal tax was not a State tax. If the
Tribe imposed a tax independently of any contract with the
State and retained the revenues, the TIA would not apply to
a suit seeking to “enjoin, suspend or restrain the assessment,
levy or collection” of that tax for the obvious reason that the
Tribe is not a state. Cf. Bluebeard’s Castle, Inc. v. Gov’t of
the Virgin Islands, 321 F.3d 394, 397 & n.5 (3d Cir. 2003)
(TIA does not apply to Virgin Islands because it is not a
state). We are aware of no authority for the proposition that
a tax under Tribal law is transformed into a tax “under state
law” simply because the Tribe agrees to enact that law in
exchange for a promise by the State not to levy similar taxes.
Such an agreement does not alter the fact that the Tribe
remains the taxing authority and the sovereign to which tax
payments are remitted. Thus, the question is not whether the
Wilburs sought to “enjoin, suspend or restrain the assessment,
levy or collection” of a Tribal tax, but whether they sought to
“enjoin, suspend or restrain the assessment, levy or collec-
tion” of a Washington tax.
12858 WILBUR v. LOCKE
[6] We are assisted by the Supreme Court’s decision in
Hibbs v. Winn, 124 S. Ct. 2276 (2004). In Hibbs, the plaintiffs
challenged a state law authorizing certain tax credits, and
sought to enjoin the law’s operation, on Establishment Clause
grounds. See id. at 2281. The Court rejected the position that
the TIA “prevent[s] federal-court interference with all aspects
of tax administration,” id. at 2288 (quotation marks omitted),
and held that the TIA did not bar the plaintiffs’ action “be-
cause that action, if successful, ‘would result in the state’s
receiving more funds that could be used for the public bene-
fit.’ ” May Trucking, 388 F.3d at 1267, quoting Hibbs, 124
S. Ct. at 2283. Thus, “[a]fter Hibbs, the dispositive question
in determining whether the Act’s jurisdictional bar applies is
whether ‘[f]ederal-court relief . . . would have operated to
reduce the flow of state tax revenue.’ ” Id., quoting Hibbs,
124 S. Ct. at 2288. Although Hibbs had not been decided at
the time of the district court’s decision, our decision which
Hibbs affirmed, Winn v. Killian, 307 F.3d 1011 (9th Cir.
2002), had been.
[7] Here, the Wilburs sought a declaration of the invalidity
of the statutes governing cigarette tax contracts, an injunction
preventing the State from entering into any contract, and a
declaration that any agreement actually executed was void.
This relief would not have operated to reduce the flow of
Washington’s tax revenues; instead, it would have prevented
the State from agreeing not to impose a tax. Thus, the district
court erroneously dismissed the case on TIA grounds.
The State argues that the TIA applies because the cigarette
tax contract scheme “benefits the State by saving the State
resources in enforcing collection of the state taxes,” and
points to a legislative finding that cigarette tax contracts will
“enhance enforcement of the state’s cigarette tax law, ulti-
mately saving the state money and reducing conflict.” Wash.
Rev. Code § 43.06.450 (emphasis added). Because the Wil-
burs’ action, if successful, might harm the public fisc by
depriving the State of the benefits of cigarette tax contracts,
WILBUR v. LOCKE 12859
the State submits that it should be barred by the TIA. But the
TIA proscribes only those actions which would operate to
decrease a state’s tax revenue, see May Trucking, 388 F.3d at
1267, not any lawsuit which might place financial burdens
upon the State. Whatever impact the Wilburs’ action might
have on the State’s litigation and enforcement costs, it surely
will not reduce the State’s tax revenues. Further, the State’s
prediction about how this action might affect the State’s
financial bottom line in the future is too speculative to cir-
cumvent the holding of Hibbs.
Nor do principles of comity bar this lawsuit. The Supreme
Court has relied on such principles “to preclude original
federal-court jurisdiction only when plaintiffs have sought
district-court aid in order to arrest or countermand state tax
collection.” Hibbs, 124 S. Ct. at 2289 n.9. The Wilburs seek
no such relief.
VI.
The State also argues that the Eleventh Amendment pre-
cludes the Wilburs’ action, another jurisdictional hurdle we
must discuss, even though the district court did not address
this argument.
“The Eleventh Amendment bars suits against a state or its
agencies, regardless of the relief sought, unless the state
unequivocally consents to a waiver of its immunity.” Yakama
Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d
1241, 1245 (9th Cir. 1999). The Wilburs concede that the
State has not waived its immunity and that all claims against
the state and its agency, the Department of Revenue, must
therefore be dismissed.
However, the Wilburs properly contend that the Eleventh
Amendment does not bar their claims for declaratory and
injunctive relief against the Governor and the Director and
Assistant Director of the Department of Revenue. “Since the
12860 WILBUR v. LOCKE
Supreme Court’s decision in Ex parte Young, 209 U.S. 123
. . . (1908), courts have recognized an exception to the Elev-
enth Amendment bar for suits for prospective declaratory and
injunctive relief against state officers, sued in their official
capacities, to enjoin an alleged ongoing violation of federal
law.” Agua Caliente Band of Cahuilla Indians v. Hardin, 223
F.3d 1041, 1045 (9th Cir. 2000); see also Los Angeles County
Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (“[T]he
Eleventh Amendment does not bar actions seeking only pro-
spective declaratory or injunctive relief against state officers
in their official capacities”).
[8] “[I]n determining whether ‘the doctrine of Ex Parte
Young avoids an Eleventh Amendment bar to suit, a court
need only conduct a straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.’ ” ACS of
Fairbanks, Inc. v. GCI Communication Corp., 321 F.3d 1215,
1216-17 (9th Cir. 2003) (Order), quoting Verizon Md., Inc. v.
Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002). The complaint
alleged that the challenged statutes authorize the state to enter
into agreements which violate federal law and, accordingly,
sought a declaration that the statutes were invalid, an injunc-
tion preventing the state from utilizing the authority granted
by those statutes to enter into any agreement, and a declara-
tion that any agreement entered was invalid. The complaint
therefore “alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Id.; see
also Artichoke Joe’s, 216 F. Supp. 2d at 1109-11 (Ex Parte
Young permitted claim against Governor seeking declaration
that gaming compacts between state and Indian tribes violated
federal law). Thus, the State of Washington and its Depart-
ment of Revenue must be dismissed but not the individual
government officers.
VII.
With these jurisdictional issues behind us, we can now
address the Rule 19 question. In the district court, the State
WILBUR v. LOCKE 12861
argued that the action should be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(7) because the Tribe is an
indispensable party pursuant to Rule 19. The district court
held that the Tribe was not a necessary party. We generally
review for an abuse of discretion the district court’s decision
regarding joinder, but review de novo any legal conclusions
underlying that decision. See Disabled Rights Action Comm.
v. Las Vegas Events, Inc., 375 F.3d 861, 879 (9th Cir. 2004).
Application of Rule 19 involves “three successive inqui-
ries.” EEOC v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th
Cir. 2005).
First, the court must determine whether a nonparty
should be joined under Rule 19(a). We and other
courts use the term “necessary” to describe those
“[p]ersons to [b]e [j]oined if [f]easible.” . . . .
If an absentee is a necessary party under Rule
19(a), the second stage is for the court to determine
whether it is feasible to order that the absentee be
joined. . . .
Finally, if joinder is not feasible, the court must
determine at the third stage whether the case can
proceed without the absentee, or whether the absen-
tee is an “indispensable party” such that the action
must be dismissed. . . . Rule 19 uses “the word
‘indispensable’ only in a conclusory sense, that is, a
person is ‘regarded as indispensable’ when he cannot
be made a party and, upon consideration of the fac-
tors [in Rule 19(b)], it is determined that in his
absence it would be preferable to dismiss the action,
rather than to retain it.”
Id. at 779-80 (citations omitted). We address each of these
inquiries in turn.
12862 WILBUR v. LOCKE
A.
[9] The State argues that the Tribe is a “necessary” party
because the Tribe “claims an interest relating to the subject of
the action and is so situated that the disposition of the action
in the [Tribe’s] absence may . . . as a practical matter impair
or impede the [Tribe’s] ability to protect that interest.” Fed.
R. Civ. P. 19(a)(2)(i). In deciding whether Rule 19(a)(2)(i) is
satisfied, we “must determine whether the absent party has a
legally protected interest in the suit,” and, if so, whether “that
interest will be impaired or impeded by the suit.” Makah
Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990).
The district court, laboring under the mistaken impression
that the Compact was still awaiting approval from the Gover-
nor, concluded that “[b]ecause the subject of this action does
not affect the Tribe’s interest in an existing, enforceable
agreement, . . . the interest claimed on behalf of the tribe is
[not] ‘legally protected.’ ” We need not determine whether the
court correctly held that the Tribe had no “legally protected”
interest in this action prior to execution of the Compact, but
instead determine whether the Tribe has such an interest now
that we are aware that the Compact was in effect at the time
of the district court decision. Because Federal Rule of Evi-
dence 201 permits us to “take judicial notice of the records of
state [entities] and other undisputed matters of public record,”
we may take notice of the executed Compact even though it
was not in the district court record. Disabled Rights Action
Comm., 375 F.3d at 866 n.1 (taking notice of licensing agree-
ments to which state agency was a party that had not been
entered into district court record).
[10] Here, the Wilburs must establish the illegality of the
Compact in order to succeed on the merits of any of their
claims. Because the Tribe has an interest in retaining the
rights granted by the Compact, the requirement of a “legally
protected” interest is satisfied. See Dawavendewa v. Salt
River Project Agric. Improvement & Power Dist., 276 F.3d
WILBUR v. LOCKE 12863
1150, 1156-57 (9th Cir. 2002) (holding that tribe was neces-
sary party under Rule 19(a)(2) where tribe “claim[ed] a
legally protected interest in its contract rights with [the defen-
dant]”).
[11] In addition, disposition of this action in the Tribe’s
absence may impair or impede the Tribe’s ability to protect its
interest. If the Compact is invalidated, the State would be
released from its contractual obligation to refrain from taxing
cigarette sales by Indian retailers to non-Indians and non-
Tribe members. If the State resumed imposing such taxes, the
Tribe would be forced to choose between double-taxing its
own retailers or foregoing tax revenue for essential govern-
ment services. Thus, “the instant litigation threatens to impair
the [Tribe’s] contractual interests, and . . . its fundamental
economic relationship with [the State].” Id. at 1157. As we
stated in Dawavendewa, it is a “fundamental principle” that
“a party to a contract is necessary, and if not susceptible to
joinder, indispensable to litigation seeking to decimate that
contract.” Id.; see also Manybeads v. United States, 209 F.3d
1164, 1166 (9th Cir. 2000) (where plaintiff sought to
“undo[ ]” agreements to which tribe was a party, tribe “quali-
fie[d] as a necessary party under both parts of Rule 19(a)”);
Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996)
(where plaintiff’s action would affect agreements to which
tribes were parties, tribes were necessary pursuant to Rule
19(a)(2)(i)); Northrop Corp. v. McDonnell Douglas Corp.,
705 F.2d 1030, 1044 (9th Cir. 1983) (“[A]ll parties who may
be affected by a suit to set aside a contract must be present”);
Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir.
1975) (“No procedural principle is more deeply imbedded in
the common law than that, in an action to set aside a lease or
a contract, all parties who may be affected by the determina-
tion of the action are indispensable”); 4 James Wm. Moore et
al., Moore’s Federal Practice § 19.06[4] (3d ed. 2005) (“As
a general rule, all parties to a contract will be necessary in an
action to set aside the contract”).
12864 WILBUR v. LOCKE
The Wilburs argue that the Tribe is not necessary because
the State can adequately represent its interest. See Washington
v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999) (“As a practical
matter, an absent party’s ability to protect its interest will not
be impaired by its absence from the suit where its interest will
be adequately represented by existing parties to the suit”). We
have held, however, that absent tribes’ interests were not ade-
quately represented by a state in a case similar to this one. In
American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015,
1018 (9th Cir. 2002), plaintiffs “challenge[d] the legality of
the [Arizona] Governor’s actions in negotiating new gaming
compacts with Indian tribes, or in extending the tribes’ exist-
ing compacts.” We held that the Governor could not ade-
quately represent the absent tribes because, among other
reasons, “the State and the tribes have often been adversaries
in disputes over gaming, and the State owes no trust duty to
the tribes.” Id. at 1023 n.5. Here, too, the Wilburs challenge
the state’s actions in entering into agreements with the Tribe;
the Tribe and the state have been adversaries in disputes over
the subject of those agreements in the past (indeed, resolution
of a “long-standing disagreement” regarding cigarette taxation
was one of purposes recited in the Compact’s preamble); and
the state owes the Tribe no trust duty that might ensure vindi-
cation of the Tribe’s interest. Hull thus requires us to reject
the Wilburs’ contention.
[12] The Wilburs argue, however, that the state is an ade-
quate representative because the state and the Tribe “have the
exact same interest in seeing to it that their contract is not
invalidated.” This argument assumes too much. Virtually any
party to a contract would prefer to see that contract preserved.
Under the Wilburs’ logic, one seeking to nullify an agreement
could simply sue one of the signatories and then argue that the
remaining signatories were not necessary because the existing
defendant would “adequately represent” their interest in
defending the contract. However, the general rule is exactly
the opposite: all parties to a contract are necessary in litigation
seeking to “decimate” that contract. See Dawavendewa, 276
WILBUR v. LOCKE 12865
F.3d at 1157. There is no reason to depart from that general
rule in this case. We conclude that the State cannot adequately
represent the interests of the Tribe, and thus the Tribe is a
necessary party pursuant to Rule 19(a)(2)(i).
B.
[13] We now address whether joinder is feasible. “Feder-
ally recognized Indian tribes enjoy sovereign immunity from
suit, and may not be sued absent an express and unequivocal
waiver of immunity by the tribe or abrogation of tribal immu-
nity by Congress.” Id. at 1159 (citations omitted). The Wil-
burs offer no persuasive argument that the Tribe’s immunity
has either been waived or abrogated. Accordingly, joinder is
not feasible. See id.
C.
[14] We now address “whether in equity and good con-
science the action should proceed among the parties before it,
or should be dismissed, the absent person being thus regarded
as indispensable.” Fed. R. Civ. P. 19(b). In making this deter-
mination, we consider four issues:
first, to what extent a judgment rendered in the per-
son’s absence might be prejudicial to the person or
those already parties; second, 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; third, whether a judgment ren-
dered in the person’s absence will be adequate;
fourth, whether the plaintiff will have an adequate
remedy if the action is dismissed for nonjoinder.
Id.
[15] The first three tests point toward dismissal. “[T]he first
factor of prejudice, insofar as it focuses on the absent party,
12866 WILBUR v. LOCKE
largely duplicates the consideration that made a party neces-
sary under Rule 19(a): a protectible interest that will be
impaired or impeded by the party’s absence.” Hull, 305 F.3d
at 1024-25; see also Dawavendewa, 276 F.3d at 1162 (“The
prejudice to the Nation stems from the same impairment of
legal interests that makes the Nation a necessary party under
Rule 19(a)(2)(i)”). If the Compact is invalidated in the Tribe’s
absence, the Tribe will be prejudiced to a great extent.
As to the second test, it is not possible to lessen or avoid
any prejudice by the shaping of relief or protective provisions
in the judgment. The Wilburs want nothing less than nullifica-
tion of the Compact. If they succeed, the Tribe will be
deprived of the contractual benefits for which it bargained.
Moreover, although the Wilburs stress that the Tribe could
have intervened if it wished, “we cannot require the [Tribe]
to intervene to minimize the potential prejudice, since inter-
vention would require a waiver of sovereign immunity.” Pit
River Home & Agric. Coop. Ass’n v. United States, 30 F.3d
1088, 1102 (9th Cir. 1994).
The third test, whether a judgment rendered in the Tribe’s
absence will be adequate, also “does not favor the plaintiffs,”
because if the Compact is invalidated, the Tribe’s “protectible
interests [would be] impaired.” Hull, 305 F.3d at 1025; see
also Dawavendewa, 276 F.3d at 1162 (no partial relief ade-
quate when “[a]ny type of injunctive relief necessarily results
in . . . prejudice to [absent tribe]”); Pit River Home, 30 F.3d
at 1102 (adequate judgment not possible when plaintiff’s
claims could not be addressed without prejudicing absent
party).
[16] The fourth test supports proceeding in the Tribe’s
absence, as it is unclear whether the Wilburs will have an ade-
quate remedy if the action is dismissed. Nonetheless, even
assuming the Wilburs have no other forum in which to pursue
a remedy, we have “regularly held that the tribal interest in
immunity overcomes the lack of an alternative remedy or
WILBUR v. LOCKE 12867
forum for the plaintiffs.” Hull, 305 F.3d at 1025, citing Dawa-
vendewa, 276 F.3d at 1162; see also Clinton v. Babbitt, 180
F.3d 1081, 1090 (9th Cir. 1999); Kescoli, 101 F.3d at 1311;
Pit River Home, 30 F.3d at 1102; Quileute Indian Tribe v.
Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994); Confederated
Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d
1496, 1500 (9th Cir. 1991); Verity, 910 F.2d at 560; Lomayak-
tewa, 520 F.2d at 1326-27. Thus, a balance of the four tests
in Rule 19(b) supports dismissal of the action.
Undeterred, the Wilburs contend that this case falls within
the “public rights” exception to joinder rules. “Under this
exception, even if the [Tribe is a] necessary part[y], [it is] not
deemed indispensable and, consequently, dismissal is not
warranted.” Kescoli, 101 F.3d at 1311. In Kescoli, we
explained that, although “[t]he contours of the public rights
exception have not been clearly defined,” there are two
requirements that must be satisfied before the exception may
properly be invoked. Id. First, “the litigation must transcend
the private interests of the litigants and seek to vindicate a
public right.” Id. Second, “although the litigation may
adversely affect the absent parties’ interests, the litigation
must not ‘destroy the legal entitlements of the absent par-
ties.’ ” Id., quoting Conner v. Burford, 848 F.2d 1441, 1459
(9th Cir. 1988); see also Shermoen v. United States, 982 F.2d
1312, 1319 (9th Cir. 1992) (“[T]he public rights exception to
joinder rules is an acceptable intrusion upon the rights of
absent parties only insofar as the adjudication does not
destroy the legal entitlements of the absent parties” (quotation
marks, alterations and citation omitted)). We need not decide
whether the first requirement is satisfied, because the second
is not.
The Tribe would lose valuable contractual benefits if the
Compact was held invalid. This threat to the Tribe’s contrac-
tual interests precludes application of the public rights excep-
tion. See Kettle Range Conservation Group v. United States
Bureau of Land Mgmt., 150 F.3d 1083, 1087 (9th Cir. 1998)
12868 WILBUR v. LOCKE
(where plaintiffs sought rescission of contract pursuant to
which land had been transferred to absent private parties,
court had “no doubt that an order declaring the executed por-
tion of the land exchange void ab initio would ‘destroy the
legal entitlements of the absent parties’ ” (citation omitted));
Kescoli, 101 F.3d at 1311-12 (public rights exception inappli-
cable because, among other reasons, rights of absent tribes’
members under lease agreements “could be significantly
affected” if action proceeded in tribes’ absence).
D.
Finally, the Wilburs contend that the First Amendment
right to “petition the government for a redress of Grievances,”
U.S. Const. amend. I, cl. 6, prohibits, or at least weighs
against, dismissal of this action for nonjoinder pursuant to
Rule 19. In support of this novel argument, the Wilburs cite
two sets of cases. First, they rely upon two state court cases
suggesting that the lack of an alternative forum prevents dis-
missal of an action for nonjoinder even where an absent tribe
has not waived its sovereign immunity. See Panzer v. Doyle,
680 N.W.2d 666, 682-83 (Wis. 2004); Saratoga County
Chamber of Commerce, Inc. v. Pataki, 798 N.E.2d 1047,
1057-59 (N.Y. 2003). These decisions, however, do not apply
Federal Rule of Civil Procedure 19 and do not even discuss
the Petition Clause. Rather, they apply state law governing
joinder of indispensable parties. Unlike state courts applying
state law, we are bound by our own decisions interpreting fed-
eral Rule 19.
Second, the Wilburs rely on cases stating the general prop-
osition that “the right of access to the courts is an aspect of
the First Amendment right to petition the Government for
redress of grievances.” Bill Johnson’s Rests., Inc. v. NLRB,
461 U.S. 731, 741 (1983). This does not aid the Wilburs,
however, for the right of access to the courts is not absolute.
See Hudson v. Palmer, 468 U.S. 517, 523 (1984) (“[T]he con-
stitutional right to petition the Government for redress of their
WILBUR v. LOCKE 12869
grievances . . . includes a reasonable right of access to the
courts” (emphasis added)). Moreover, the right must be exer-
cised “within the limits . . . of [the courts’] prescribed proce-
dures.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404
U.S. 508, 515 (1972).
It is important to put this argument in context. Rule 19(b)
itself requires consideration of “whether the plaintiff will have
an adequate remedy if the action is dismissed for nonjoinder”
as one of four tests relevant to the determination whether an
action should be dismissed. Fed. R. Civ. P. 19(b). What the
Wilburs are arguing, then, is that the Petition Clause requires
us to give the lack of an alternative forum more weight in the
Rule 19(b) calculus than we have in our prior cases. Although
our prior decisions did not specifically discuss the relevance
of the Petition Clause to the Rule 19 analysis, we do not
believe our colleagues ignored the obvious constitutional
implications of depriving a party of a forum in which to pur-
sue its claims. Our prior cases turn not on a disrespect for a
plaintiff’s right of access to the courts, but “on the fact that
society has consciously opted to shield Indian tribes from suit
without congressional or tribal consent.” Quileute Indian
Tribe, 18 F.3d at 1461 (quotation marks and citation omitted).
The Wilburs’ invocation of the Petition Clause does not com-
pel a different result.
Lastly, the Wilburs argue that, if we hold that dismissal
pursuant to Rule 19 is proper, we should allow them to amend
their complaint to name a Tribal official as a defendant. That
issue is not before us because the Wilburs never sought to
amend their complaint in the district court and they raise this
issue for the first time in their reply brief. See Ventura Pack-
ers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 916 n.1 (9th
Cir. 2002) (declining request for leave to amend complaint
because it was not made in district court); Black v. Payne, 591
F.2d 83, 89 (9th Cir. 1979) (denying leave to amend because,
among other reasons, request was made for first time in reply
brief on appeal). We express no opinion on whether the Tribal
12870 WILBUR v. LOCKE
official could have been sued and, if so, whether this would
have enabled the suit to proceed in the Tribe’s absence.
DISMISSAL AFFIRMED.