Wendell Long v. Snoqualmie Gaming Commission

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WENDELL LONG, an individual, ) No. 77007-1 -I
)
Appellant, ) DIVISION ONE
)
v. )
) PUBLISHED OPINION
SNOQUALMIE GAMING )
COMMISSION, a political subdivision )
of the Snoqualmie Indian Tribe, )
)
Respondent. ) FILED: February 25, 2019
_________________________________________________________________________________ )
LEACH, J. — Wendell Long appeals the superior court’s dismissal of his
lawsuit against the Snoqualmie Gaming Commission (Commission) for lack of
jurisdiction due to the Commission’s sovereign immunity and Long’s failure to
state a claim. Because the Commission has sovereign immunity and did not
waive it, we affirm.
FACTS
The Snoqualmie Indian Tribe (Tribe) is a federally recognized sovereign
Indian tribe. The Indian Gaming Regulatory Act requires that tribes enter into
gaming compacts with states to authorize class III (casino-style) gaming on tribal
lands.1 The Tribe entered into a gaming compact with Washington State.2 It
25 U.S.C. § 2710(d)(1)(C).
1
Tribal-State Compact for Class III Gaming Between the Snoqualmie
2
Indian Tribe and the State of Washington (2002 & amend. 2008).
No.77007-1-1/2
obligated the Tribe to establish an independent “Tribal Gaming Agency” to
regulate the gaming activities on tribal land.3 To satisfy this obligation the Tribe
adopted the Snoqualmie Tribe Tribal Gaming Act, which established the
Commission.4 The STTGA declares the Commission “independent of the Tribal
Council in all matters within the Commission’s purview.”5 It also provides the
Commission with “sovereign immunity from suit absent express consent from the
Tribal Council.”6
The compact gives the Commission the “primary responsibility for the on-
site regulation, control and security of the Gaming Operation authorized by [the]
Compact” and for its enforcement on Snoqualmie tribal lands.7 The Commission
must report “incident and investigation reports and final dispositions to the State
Gaming Agency.”8 The Commission has concurrent jurisdiction with the State
Gaming Agency to investigate compact violations and to bring administrative
charges against individuals or business entities licensed under the compact for
violation of tribal and state law.9
~ Tribal-State Compact § Vl(B).
~ Snoqualmie Tribe Tribal Gaming Act § 7.01, (2015) (STTGA),
http://www.snoqualmietribe. us/sites/default/files/gaming_act. pdf.
~ STTGA § 7.04.
6 STTGA § 7.02.
~ Tribal-State Compact § Vl(B).
8 Tribal-State Compact § Vl(F).
~ Tribal-State Compact § Vl(F).
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No. 77007-1 -I I 3
The Commission has the exclusive authority to issue, suspend, and
revoke gaming licenses for the Snoqualmie Casino’s employees, vendors, and
contractors.1°
On March 27, 2015, the Tribe hired Long as the chief executive officer of
the Snoqualmie Casino.11 The Tribe and Long signed a written agreement
stating the terms of Long’s employment. In this contract, Long warranted ‘that
there [were] no impediments to his . . . being licensed by the Snoqualmie Gaming
Commission for gaming purposes” and “to maintain [his] gaming license in good
standing.” Long applied to the Commission for this license and received it in May
2015.
The contract addressed the Tribe’s sovereign immunity:
Except as expressly provided herein, nothing in this Agreement
shall be deemed or construed as a waiver or limitation of the Tribe’s
inherent sovereign immunity from unconsented suit. The Tribe
hereby grants a limited waiver of sovereign immunity to Employee
for the express and limited purpose of adjudicating a dispute arising
out of the terms of this Agreement in the Snoqualmie Tribal Court.
Any such claim must be filed with the Tribal Court within one
hundred-twenty (120) days of the act or omission giving rise to the
claim. This waiver does not extend to nor allow for any award of
punitive or exemplary damages, or attorneys’ fees against the
Tribe.
10STTGA~ 7.03, §~ 9-11.
11 The Tribe is a federally recognized “Indian Entity.” Indian Entities
Recognized and Eligible To Receive Services from the United States Bureau of
Indian Affairs, 82 Fed. Reg. 4915, 4918 (Jan. 17, 2017).
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No.77007-1-1/4
In October 2015, the Tribe fired Long. In December 2015, the Tribe sued
Long in King County Superior Court for breach of fiduciary duty, conversion, and
unjust enrichment. Long answered and counterclaimed.
On January 22, 2016, before the expiration of Long’s gaming license, the
Commission voted to suspend it pending a revocation hearing. Long sued the
Commission in tribal court to enjoin the revocation of his license. The
Commission asked the tribal court to dismiss this lawsuit for lack of subject
matter jurisdiction. It did.
After an administrative hearing, the Commission revoked Long’s license.
Long appealed this revocation to the Snoqualmie Tribal Court. In August 2016,
the tribal court found that the Commission’s decision was arbitrary and capricious
and remanded the case for further proceedings.12 In September 2016, the
Commission, on remand, affirmed its earlier decision and issued a final decision
revoking Long’s license. In response, Long filed a new complaint against the
Commission in tribal court.13
In January 2017, a settlement agreement ended the litigation in superior
court between Long and the Tribe started by the Tribe. The only parties to the
12 The court indicated that the Commission’s written decision revoking
Long’s license failed to sufficiently link the findings to the dishonesty and lack of
integrity the Commission claimed violated the gaming act.
13 The Commission states in its brief that on November 13, 2017, the tribal
court denied Long’s motion for summary judgment, granted the Commission’s
motion for summary judgment, and affirmed the Commission’s final decision to
revoke Long’s license. Our record does not contain this tribal court decision.
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No. 77007-1-I I 5
settlement agreement are Long and the Tribe. The agreement does not mention
the Commission. The agreement describes a single lawsuit, the one started by
the Tribe. The agreement makes no reference to either the proceedings
between Long and the Commission or Long’s gaming license. The Commission
and its counsel did not know about the settlement until January 11, 2017.
The settlement agreement states that Long and the Tribe waive all claims
against each other incurred before the agreement, including but not limited to
those upon which the suit was based.14 The agreement includes a limited waiver
of sovereign immunity: “The Tribe hereby expressly and unequivocally waives
any and all claim(s) of sovereign immunity for purposes of either Party seeking
relief in Washington State Superior Court, King County, as outlined in this
paragraph, for purposes of resolving any dispute arising under this Agreement.”
After the settlement, Long asked the Commission to rescind the
revocation of his gaming license. It refused. In January 2017, he sued the
14 Paragraph 5 states,
The Parties agree that the agreements herein are made entirely
for the purpose of a compromise and settlement of a litigated
dispute. Neither the consideration set forth herein, nor the
compromise and settlement of said dispute, nor anything
contained herein shall be construed to be an admission by any
Party of liability to any other Party or to any other person or entity,
nor shall it be construed to create any rights or interests in third
persons or entities. The Parties agree and acknowledge that the
fact of this settlement may not be used by any Party to prove or
establish liability in any other action or proceeding of any kind
whatsoever.
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No. 77007-1-1/6
Commission in superior court, contending that the Commission violated the terms
of the settlement agreement by refusing to rescind the revocation of his gaming
license. Long submitted a number of discovery requests to the Commission.
The Commission asked the superior court to dismiss the lawsuit for lack of
subject matter jurisdiction due to its sovereign immunity and to stay discovery
pending resolution of its dismissal request. The superior court granted the
Commission’s request to stay discovery. Later, the superior court dismissed
Long’s lawsuit.. It included the following statement in its order: “[T]he Court
notes that if the Commission is deemed a party to the [s]ettlement as Plaintiff
asserts and his license was revoked prior to the [s]ettlement, Plaintiff appears to
have released his ‘claim’ for license reinstatement by virtue of the [s]ettlement
agreement.” The superior court denied Long’s motion for reconsideration. Long
appeals.
STANDARD OF REVIEW
We review the superior court’s dismissal of a claim under CR 12(b)(1) or
CR 12(b)(6) de novo. 15 Once a defendant requests dismissal under CR 12(b)(1)
on the basis of sovereign immunity, the party asserting jurisdiction has the
burden of proving the other party has no immunity or waived it.16
15 Wright v. Colville Tribal Enter. Corp., 159 Wash. 2d 108, 111, 147 P.3d
1275 (2006); Outsource Servs. Mgmt. LLC v. Nooksack Bus. Corp., 172 Wn.
App. 799, 807-08, 292 P.3d 147 (2013).
16 Outsource Servs. Mgmt. LLC, 172 Wash. App. at 807.
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No. 77007-1 -I I 7
We review a superior court’s reconsideration decisions and orders to stay
proceedings for abuse of discretion.17 A court abuses its discretion when it
bases its decision on untenable grounds or reasons.18
ANALYSIS
Long claims that the tribal council waived the Commission’s sovereign
immunity. He also claims the court should have granted his motion for
reconsideration. Finally, he contends the court abused its discretion by staying
discovery pending disposition of the Commission’s dismissal request. Long fails
to establish that the tribal council waived the Commission’s immunity. Since the
superior court properly dismissed the case, we decline to review his other
assertions.
Lack of Jurisdiction Due to Sovereign Immunity
The parties agree that the Commission has sovereign immunity. But Long
asserts that his settlement agreement with the Tribe waived the Commission’s
immunity for its licensing decisions. Long supports his position with two
arguments. First, he claims any waiver of sovereign immunity by the Tribe
waives that immunity for its agencies. Second, he asserts that the agreement’s
17 King v. Olympic Pipeline Co., 104 Wash. App. 338, 348, 16 P.3d 45
(2000); Kohfeld v. United Pac. Ins. Co., 85 Wash. App. 34, 40, 931 P.2d. 911
(1997).
18 Olympic Pipeline Co., 104 Wash. App. at 348.
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No. 77007-1-I I 8
waiver provision unambiguously includes the Commission. We find both
arguments unpersuasive.
Federally recognized Indian tribes are “separate sovereigns pre-existing
the Constitution.”19 These tribes have common law sovereign immunity as “a
necessary corollary to Indian sovereignty and self-governance.”20 This immunity
extends to a tribe’s agencies and instrumentalities.21 Washington courts must
and do apply federal law to resolve whether tribal sovereign immunity applies.22
So, contrary to Long’s assertions, a settlement agreement provision requiring
that it be interpreted in accordance with the substantive law of Washington State
does not change the law this court applies to resolve the immunity issue.
Absent a tribe’s express waiver of immunity or congressional abrogation,
that tribe may not be sued in state or federal court.23 In either event, any waiver
19 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S. Ct. 1670, 56 L.
Ed. 2d 106 (1978).
20 Three Affil. Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S.
877, 890, 106 S. Ct. 2305, 90 L. Ed. 2d. 881 (1986); see also, Foxworthy v.
Puyallup Tribe of Indians Ass’n, 141 Wn. App 221, 225-26, 169 P.3d 53 (2007);
Wright, 159 Wash. 2d at 112 (citing Santa Clara Pueblo, 436 U.S. at 59).
21 Kiowa Tribe of OkIa. v. Mfg. Techs., Inc., 523 U.S. 751, 757-58, 118 S.
Ct. 1700, 140 L. Ed. 2d 981 (1998) (citing Mescalero Apache Tribe v. Jones, 411
U.S. 145, 93 5. Ct. 1267, 36 L. Ed. 2d 114 (1973)); Wright, 159 Wash. 2d at 112.
22 Auto. United Trades Org. v. State, 175 Wn.2d. 214, 226, 285 P.3d 52
(2012) (citing Kiowa Tribe of OkIa., 523 U.S. at 754).
23 Auto. United Trades Org., 175 Wash. 2d at 226 (citing Kiowa Tribe of
OkIa., 523 U.S. at 754).
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No. 77007-1 -l I 9
“must be unequivocally expressed” and cannot be implied.24 A tribe can limit the
extent of its waiver to a particular claim, a particular forum, or a particular party.25
The Commission suggests that federal common law requires a court to
interpret any claimed immunity waiver “liberally in favor of the Tribe and
restrictively against the claimant.” We do not address this claim because Long’s
argument fails without application of this broad rule of construction.
The Tribe’s constitution gives the tribal council the exclusive authority to
waive sovereign immunity and requires that any waiver be express and
unambiguous.26 Consistent with its constitution, the Tribe’s Judiciary Act states
that “all Tribal agencies shall be immune from suit for any acts or omissions done
during the performance of Tribal duties” and gives the tribal council exclusive
authority to waive immunity for any of these bodies.27
The STTGA, which created the Commission, includes one “limited,
irrevocable waiver of sovereign immunity” for disputes between patrons and
casino staff.28 The STTGA states that “nothing in [it] shall be construed as a
waiver of the sovereign immunity of the Commission, Tribe, or any other
governmental subdivision or economic enterprise of the Tribe.”29 Again,
24 Santa Clara Pueblo, 436 U.S. at 58 (internal quotation marks omitted).
25Auto. United Trades Org., 175 Wash. 2d at 227.
26 SNOQUALMIE TRIBE CONST. art. 1, § 3.
27 Snoqualmie Tribe Judiciary Act § 10.
28 STTGA § 12.06(B).
29 STTGA § 15.
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No. 77007-1 -l / 10
consistent with the tribe’s constitution, it states that any waiver of immunity for
the Commission is not effective unless approved by a resolution of the tribal
council.30
The Commission has hearing regulations. They include “an express and
limited waiver” of sovereign immunity for the sole purpose of an appeal of a final
tribal gaming license revocation to the tribal court.31 The regulations limit the
waiver to this forum and authorize the tribal court to decide whether a final
Commission decision revoking a tribal gaming license is “arbitrary and
capricious, or contains an error of law.”32 The regulations condition this waiver
on the tribal court conducting the appeal confidentially.33 It does not “extend to
any further appeal beyond the Tribal Court.”34 The regulations also limit the relief
available in the tribal court to an affirmation or a remand to the Commission for
further proceedings.35 Finally, the regulations conclude with this statement: “The
Commission explicitly does not waive its immunity from [among other things] suit
from matters collateral to the appealed decision [or] matters arising from the
same set of facts or controversy as the appealed decision.”36
30 STTGA § 15.
31 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10.
32 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(A)(6).
~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(A)(5).
~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(C).
~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(D).
36 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(E).
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No. 77007-1-I Ill
A. Coextensive Immunity
Long correctly notes that the STTGA states that the Commission
possesses “all of the rights, privileges, and immunities of the Tribe.” He asserts
that because the Tribe and the Commission have coextensive sovereign
immunity, any waiver of that immunity by the Tribe also waives the Commission’s
immunity. Since the Tribe waived immunity for some purposes in its settlement
agreement with Long, he contends that this waiver also waived the Commission’s
immunity. We disagree.
The Commission’s exclusive authority over gaming licenses and its
relationship to the Tribe and the Washington State Gambling Commission show
that any claimed waiver of its sovereign immunity must be analyzed
independently of the Tribe’s waiver. The STTGA adopted by the Tribe, the
Commission’s regulations, and Long’s employment contract all recognize the
unique and independent status of the Commission.
The STTGA establishes the Commission: “Establishment of the
Commission. The Tribe hereby establishes the Commission as an independent
governmental subdivision of the Tribe.”37 The STTGA also describes the scope
of the Commission’s independence: “Importance of Independence of
Commission. The Tribe recognizes the importance of an independent gaming
37STTGA § 7.01.
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No. 77007-1 -l /12
commission in maintaining a well-regulated Gaming Operation. The Commission
shall be independent of the Tribal Council in all matters within the Commission’s
purview.”38
Tribal council members are not eligible to serve on the Commission.39
The primary management officials and key employees of the Tribe’s gaming
operation must have a gaming license issued by the Commission.4° The
Commission has exclusive authority to deny, suspend, and revoke any tribal
gaming license.41 The tribal council does not have any authority to review the
Commission’s gaming license decisions.42
The Commission has the power to adopt regulations implementing the
STTGA and “generally to promulgate Regulations relating to gaming on the
Tribe’s Indian Lands.”43 While the Commission must provide notice of proposed
regulations to the tribal council and consider its comments, the Council does not
control the Commission’s rule- making power.44
The Commission’s regulations provide for a limited right of review by the
tribal court and a corresponding express and limited waiver of immunity:
38 STTGA § 7.04.
~ STTGA § 7.07(B)(1).
40 STTGA § 11.04.
41 STTGA § 7.08, .09.
42 STTGA § 7.04.
~ STTGA § 7.11(C).
~ STTGA § 7.11(C)(1)(b), (c).
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No. 77007-1-I / 13
Section 2.10 Appeals
The Commission hereby authorizes an express and limited
waiver of its immunity from suit for the sole purpose of an appeal to
the Snoqualmie Tribal Court only from a final decision to revoke a
tribal gaming license reached pursuant to these Regulations, which
waiver is subject further to the limitations set out in this Section
2.10. This limited waiver of immunity for the purposes of allowing
appeals of final revocation decisions to the Tribal Court shall be
construed narrowly, and any appeal outside the scope of this
Section 2.10 shall not be deemed to be within the scope of this
limited waiver.
(D) This limited waiver of sovereign immunity for
purposes of appeal is further limited to decisions by
the Tribal Court that would either affirm the
Commission’s or that remand to the Commission for
further proceedings. There is no waiver of the
Commission’s immunity to any claims for any other
kind of relief, including but not limited to damages,
injunctive relief, attorney fees, or any other relief.
(E) The express, limited waiver of sovereign immunity
shall only apply to the appeal at hand. Eflj~
Commission explicitly does not waive its immunity
from suit from matters collateral to the appealed
decision, matters arising from the same set of facts or
controversy as the appealed decision, or matters
beyond the revocation of a gaming Iicense.~45~
(Emphasis added.)
The employment contract between Long and the Tribe recognizes the
Commission’s independence. In this agreement, Long warrants “that there
[were] no impediments to his. . . being licensed by the Snoqualmie Gaming
Commission for gaming purposes” and “to maintain [his] gaming license in good
standing.” The Tribe makes no corresponding warranty that Long’s license
application will be approved by the Commission. Instead, the agreement
~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10.
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No. 77007-1-I I 14
requires that Long seek the license from the Commission, independent of his
employment with the Tribe.
Long asserts that if this court affirms the superior court’s conclusion that
the STTGA establishes the Commission’s independence, the record establishes
that the Tribe in fact controls the Commission to such an extent that the
Commission is not independent. He points to the declaration by Bopha Yath, a
former agent of the Commission, who stated that the Tribe and the Commission
do not always act independently for licensing purposes. We reject this assertion
for two reasons.
First, “jurisdiction over a party asserting tribal sovereign immunity is a
question of law.”46 Long cites no authority to support his contention that this
court should consider Yath’s declaration to resolve this legal issue. Second,
Yath’s declaration describes events that occurred before November 2014. The
Tribe adopted the STTGA on January 22, 2015. Thus, Yath provides no
information about the conduct of the Tribe and the Commission under the
STTGA.
We conclude that the Commission’s independent role in Indian land
gaming regulation requires that its immunity be analyzed separately from any
waiver of immunity by the Tribe. This means that the Tribe’s waiver of its own
46 Wriciht, 159 Wash. 2d at 111.
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No. 77007-1.-I /15
immunity, without more, does not waive the Commission’s sovereign immunity in
matters falling within its exclusive purview, like gaming license revocation. A
contrary view would frustrate the independence of the Commission contemplated
by the STTGA and the compact between the State of Washington and the Tribe.
It would also ignore the carefully worded limited waivers found in the
Commission’s regulations.
B. Broad Application of the Language of the Agreement
Long claims that the settlement agreement provision waiving sovereign
immunity clearly and unambiguous waives the immunity of the Commission. We
disagree.
A waiver of tribal sovereign immunity “must be unequivocally
expressed.”47 Long claims that two settlement agreement provisions, when read
together, unequivocally waive the Commission’s immunity from suit over its
gaming license decision for Long:
2. Effective upon execution of this Agreement, the Parties,
on behalf of themselves, and all persons, spouses, entities, or
agencies claiming by, through or under them, and their heirs,
successors, administrators, trustees and assigns, hereby knowingly
and voluntarily unequivocally, irrevocably and absolutely grant and
provide to the other Party to the full extent permitted by law, a full
and complete general release and discharge of any and all claims,
known and unknown, asserted and unasserted, that any party may
have against any other Party as of the date of execution of this
Agreement.
~ Santa Clara Pueblo, 436 U.S. at 58; Wright, 159 Wash. 2d at 115.
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No. 77007-1 -I /16
11. This Agreement shall be construed, enforced, and
interpreted in accordance with the substantive law of the State of
Washington. Any dispute arising out of, or related to, this
Agreement shall be brought in Washington State Superior Court,
King County, and the Parties hereby irrevocably submit to the
jurisdiction of the Court to resolve any dispute arising under this
Agreement and waive any right to challenge the jurisdiction of said
Court or to alter or change venue. The Tribe hereby expressly and
unequivocally waives any and all claim(s) of sovereign immunity for
purposes of either Party seeking relief in Washington State
Superior Court, King County, as outlined in this paragraph, for
purposes of resolving any dispute arising under this Agreement.
We make several observations about the settlement agreement. First, the
Commission is not a party to the agreement and did not know about it before the
parties signed it. Second, the agreement makes no mention of the proceedings
between the Commission and Long or any tribal court decision. Third, the
agreement makes no mention of Long’s gaming license. Fourth, the agreement
does not describe any action to be taken or abstained from by the Commission.
We also note the Commission regulations addressing its sovereign
immunity. They contain a limited waiver for the sole purpose of an appeal to
tribal court to review a final gaming license revocation. They limit the relief
available in the tribal court to an affirmation of the Commission’s decision or a
remand to the Commission for further proceedings.48 They prohibit any appeal
beyond tribal court. Finally, the regulations conclude with this statement: “The
Commission explicitly does not waive its immunity from [among other things] suit
48 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(D).
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No. 77007-1 -l /17
from matters collateral to the appealed decision [or] matters arising from the
same set of facts or controversy as the appealed decision.”49
Given the clear limits of the regulation waiver (both in forum and relief),
the Commission’s independence in gaming license matters, the absence of any
mention of the gaming license dispute in the settlement agreement, and the
circumstance that the Commission is not a party to that agreement, the contract
language relied on by Long cannot, as a matter of law, be described as an
unequivocal waiver of the Commission’s immunity.
Long suggests that had the Tribe wanted to exclude the Commission from
the settlement agreement waiver it could have, asserting that because the
agreement does not exclude the Commission, the waiver extends to it. This
argument stands tribal immunity law on its head by ignoring Long’s burden of
showing subject matter jurisdiction.50 Here, Long must show an express and
unambiguous waiver of immunity. This means that the Commission does not
have the burden of showing the absence of a waiver.
Long asserts that the context of the waiver clause in the agreement
requires extending that waiver to all agencies of the Tribe. He correctly notes
that paragraph 2 requires the parties to release one another and “all persons,
spouses, entities or agencies claiming by, through or under them” from claims
~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(E).
50 See Outsource Servs. Mqmt. LLC, 172 Wash. App. at 807.
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No. 77007-1 -l /18
arising prior to the agreement. He claims that this provision is superfluous unless
it is interpreted to extend the immunity waiver to the Commission. But this
provision has meaning if it is interpreted to extend the scope of the release to
derivative entities without extending the scope of the waiver.
Finally, Long claims the agreement applies to the Commission because it
contains an “unlimited waiver” in contrast to the “limited waiver” in his
employment agreement. But the settlement agreement has limitations too. It is
limited in time “as of the date of execution of th[e} Agreement.” The waiver is
limited to “dispute[sJ arising under th[e} Agreement.” The Commission had made
a final decision in the dispute between the Commission and Long before the
agreement was signed. Long points to no language in the agreement about his
gaming license. He does not persuasively explain how any dispute about his
revoked license arises under the settlement agreement. He certainly does not
explain how his cobbled argument describes an unequivocal expression of
waiver for the gaming license issue.
That the bommission based its decision on the same facts as the Tribe
also does not matter. The Commission’s regulations state clearly that the limited
waiver for appeals of licensing decisions to the tribal court does not extend to
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No. 77007-1-I /19
other “suit[s] from matters collateral to the appealed decision [or] matters arising
from the same set of facts or controversy as the appealed decision.”51
Since the tribal council did not unequivocally waive the Commission’s
sovereign immunity in the settlement agreement, the superior court properly
dismissed Long’s lawsuit for lack of subject matter jurisdiction.
Failure to State a Claim
Long asserts that the superior court also erroneously dismissed the suit
for a failure to state a claim under CR 12(b)(6). Because the Tribe did not waive
the Commission’s sovereignty, we decline to review this issue.
Stay of Discovery
Long challenges the superior court’s stay of discovery. A court has
discretion to stay discovery pending a determination about immunity from suit.52
The issue of immunity here can be determined on the basis of the law. So the
superior court did not abuse its discretion by staying discovery.
Long also asserts he should be given the chance to amend his complaint
to address the sovereign immunity claim in lieu of it being dismissed. He did not
ask the trial court to let him amend. We decline to consider this request.
51 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(E).
52 Behrens v. Pelletier, 516 U.S. 299, 308, 116 S. Ct. 834, 133 L. Ed 2d
773 (1996) (indicating that qualified immunity protects one from the burdens of
litigation, including pretrial actions, and therefore a court should stay discovery
during determination regarding immunity).
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No. 77007-1-1/20
Denial of Motion for Reconsideration
Long asserts that the superior court abused its discretion by not granting
his motion for reconsideration. Long does not provide any argument in his brief
to establish the grounds for reconsideration under CR 59. We need not address
an issue that a party does not argue in its brief.53 We decline to review this
issue.
CONCLUSION
Long fails to demonstrate that the Commission waived its sovereign
immunity. He thus fails to show that the superior court had subject matter
jurisdiction over his claim. The superior court did not err when it dismissed the
case. We affirm.
/
WE CONCUR:
L1J
~ Timson v. Pierce County Fire Dist. No. 15, 136 Wn .App. 376, 385, 149
P.3d 427 (2006) (citing State v. Thomas, 150 Wash. 2d 821, 868-69, 83 P.3d 970
(2004)).
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