Colorado River Indian Tribes v. Town of Parker

776 F.2d 846
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 15, 1985
DocketNo. 84-1970
StatusPublished
Cited by51 cases

This text of 776 F.2d 846 (Colorado River Indian Tribes v. Town of Parker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846 (9th Cir. 1985).

Opinion

POOLE, Circuit Judge:

The Colorado Indian Tribe and the Town of Parker, Arizona, are involved in a jurisdictional dispute over the regulation of liquor on fee-patented lands in Parker and on rights of way through the Colorado Indian Reservation. At the Town’s request, the district court enjoined the Tribe from enforcing its liquor ordinance on those lands. The Tribe appeals from that grant of a preliminary injunction. We reverse.

I.

In December 1983, the Tribe brought this action in the United States District Court for the District of Arizona against the Town, an Arizona municipal corporation, each member of the Town Council, and the Town Clerk. The Tribe sought an injunction and declaration that the Tribe, and not the Town, has jurisdiction to regulate build[848]*848ing activities on lands within Parker owned by the Tribe and held in trust by the federal government. The Town answered and counterclaimed against the Tribe and members of the Tribal Council in their individual capacities, also seeking an injunction and declaration that, conversely to the position of the Tribe, it has the power to regulate all lands within the townsite. In support of their respective positions on this jurisdictional issue, the Tribe contends that the Town is still part of its reservation, whereas the Town claims that the portion of the Tribe’s reservation from which the town-site was reserved by Congress lost its reservation status.

The existing jurisdictional conflict between Parker and the Tribe was exacerbated when, pursuant to its Constitution and Bylaws, the Tribe amended its Health and Safety Code regulating land use and building activities on the Reservation by enacting Ordinance 82-4. That ordinance added to the Code Article 2, which regulates liquor by requiring persons selling or manufacturing liquor within the Reservation to obtain a license from the Tribe. The ordinance also prohibits the sale of liquor during certain hours of the day and to persons who are intoxicated or under age. Additionally, it requires liquor licensees to carry specified insurance and prohibits consumption of liquor in public nonlicensed places. Ordinance 82-4 became effective on February 19, 1984, thirty days after the Secretary of the Interior published notice of the ordinance in the Federal Register pursuant to 18 U.S.C. § 1161.

In response to the enactment of the liquor ordinance, the Town filed a motion for a temporary restraining order seeking to enjoin the Tribe, members of the Tribal Council, and all officers, agents, and employees of the Tribe from regulating liquor on fee-patented lands within the Town and on rights of way across the reservation. The motion was heard on April 12, 1984, at which time counsel for both parties agreed to treat it as a motion for a preliminary injunction.

On April 13, the district court issued the requested preliminary injunction. The Tribe responded by filing first a motion to dissolve the preliminary injunction, and then a timely notice of appeal from the grant of the preliminary injunction.

On June 11, 1984, the district court denied the Tribe’s motion for dissolution. The appeal before this court is only from the April 13, 1984, order granting the preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

II.

As an initial matter, the Tribe challenges the district court’s finding that Parker had standing to sue because the threatened enforcement of Ordinance 82-4 harmed Parker “in its capacity as a municipal corporation and in its capacity as par-ens patriae of its citizens.” Conclusions of law upon which injunctive relief is based are freely reviewable. Burrus v. Turnbo, 743 F.2d 693, 699 (9th Cir.1984). Thus, we review whether the Town had standing to sue de novo.

We have held that political subdivisions such as Parker cannot sue as parens patriae because their power is derivative and not sovereign. United States v. City of Pittsburg, California, 661 F.2d 783, 786-787 (9th Cir.1981); City of Rohnert Park v. Harris, 601 F.2d 1040, 1044 (9th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); In Re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir.), cert. denied, sub. nom. Morgan v. Automobile Manufacturers Association, Inc. 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Municipalities may, however, “sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants.” Id.

We find that the Town has demonstrated a sufficient stake in the controversy to justify our exercise of jurisdiction. Parker alleged threatened injury to its proprietary interest in revenues earned from its two percent sales tax on liquor sales, and the possibility of actual injury to its ability to function as a municipality in reg[849]*849ulating persons and property within its jurisdictional control. Thus, because Parker has alleged a “distinct and palpable injury” to itself, as required by Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), we conclude that the district court properly found that it had standing to sue.

III.

The district court’s order granting the preliminary injunction is subject to a limited standard of review. We reverse the grant of a preliminary injunction only when the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1212 (9th Cir.1984); Wilson v. Watt, 703 F.2d 395, 398 (9th Cir.1983). The injunction in this case will be upheld if the district court correctly found that the moving party (Parker) demonstrated either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of the hardships sharply favors the Town. Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 470 (9th Cir.1984). These are not two separate tests, but rather, merely extremes “of a single continuum.” Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980) (quoting Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert.

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Bluebook (online)
776 F.2d 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-river-indian-tribes-v-town-of-parker-ca9-1985.