#28688-a-JMK
2019 S.D. 41
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
JENNIFER CHASE ALONE, as the
Personal Representative of ELFREDA
ANN TAKES WAR BONNETT,
Deceased, Plaintiff,
v.
C. BRUNSCH, INC., a South Dakota
Corporation, doing business as Defendant, Third-Party
Lakota Plains Propane, Inc., Plaintiff, and Appellant,
and
WESTERN COOPERATIVE COMPANY, INC., Defendant and Third-Party
a Nebraska corporation, Plaintiff,
v.
Oglala Sioux Lakota Housing Authority,
Richard Hill, Derek Janis, Wes Cottier,
William White, Ben Plenty Arrows,
Renaldo Two Bulls, Brandon Wes, Derek
Slim, Robin T. (last name unknown), and Third-Party Defendants and
John and Jane Doe 1-100, Appellees.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
OGLALA LAKOTA COUNTY, SOUTH DAKOTA
…
THE HONORABLE JEFFREY R. CONNOLLY
Judge
…
ARGUED ON MARCH 27, 2019
OPINION FILED 07/10/19
ROBERT J. GALBRAITH
JOHN K. NOONEY of
Nooney & Solay, LLP
Rapid City, South Dakota Attorneys for defendant, third-party plaintiff, and appellant.
EVAN THOMPSON of
Browning, Kaleczyc, Berry
& Hoven, P.C.
Helena, Montana
MARK F. MARSHALL of
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Rapid City, South Dakota Attorneys for appellees.
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KERN, Justice
[¶1.] Third-party defendants, who are enrolled tribal members and a tribal
housing authority, moved to dismiss a complaint filed against them for tortious
conduct occurring exclusively on the Pine Ridge Indian Reservation. After a limited
evidentiary hearing, the circuit court concluded it lacked jurisdiction and granted
the motion pursuant to SDCL 15-6-12(b)(1). Third-party plaintiff appeals. We
affirm.
Facts and Procedural History
[¶2.] On October 6, 2016, a duplex in Pine Ridge exploded after propane
entered a joint crawl space between Units 157 and 158 through an uncapped gas
line. A spark from the water heater pilot flame in Unit 158 most likely caused the
catastrophic explosion, which demolished the duplex and killed four people,
including Elfreda Ann Takes War Bonnett. Jennifer Chase Alone, her mother and
the personal representative of her Estate, filed an action in state court against the
building’s propane suppliers, Lakota Propane and Western Cooperative Company,
Inc. (Western Co-op), on May 31, 2017. She alleged negligence, strict liability, and
breach of warranty.
[¶3.] In the early stages of the litigation, the Oglala Sioux Housing
Authority (Housing Authority) was not a party to the lawsuit. At some point,
however, Lakota Propane discovered that the Housing Authority had, in 2013,
employed individuals to remove debris from Unit 157 after a fire damaged it. As
part of the Housing Authority’s cleanup work, they shut off Lakota Propane’s gas
services and removed a propane water heater.
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[¶4.] Until the spring of 2016, the Unit remained vacant while the Housing
Authority replaced several propane appliances in Unit 157 with electrical
appliances. When installing the appliances, the employees of the Housing
Authority allegedly did not check the gas lines from the previously removed propane
appliances to ensure that they were capped. On March 18, 2016, Lakota Propane
sold propane to the Housing Authority for the duplex. Gas from the uncapped lines
eventually filled the crawl space beneath the units which led to the tragic explosion
on October 6, 2016.
[¶5.] Lakota Propane requested and received information from the Housing
Authority regarding the nature of the work done on the units and the names of the
employees involved with maintaining it. Lakota Propane and Western Co-op then
filed a third-party complaint against the Housing Authority and several tribal
members in their individual capacities,1 alleging they caused the explosion by
failing to cap one or more propane lines that had previously supplied gas to the
propane appliances. Eventually, the court granted Western Co-op’s motion for
summary judgment, dismissing it from the case after concluding it owed Takes War
Bonnett no duty because it did not supply the propane that caused the explosion.
[¶6.] On September 12, 2017, Lakota Propane served the Housing Authority
with its first set of interrogatories and requests for production of documents. In the
interrogatories, it asked the Housing Authority to provide general information
regarding the renovations but did not include questions aimed at determining
1. The third-party complaint named Richard Hill, Derek Janis, Wes Cottier,
William White, Ben Plenty Arrows, Renaldo Two Bulls, Brandon Wes, Derek
Slim, and Rob Tuttle.
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subject matter jurisdiction, such as the tribal enrollment status of the individuals or
the Housing Authority’s relationship with the Tribe. Lakota Propane did not seek
discovery from any of the individually named defendants.
[¶7.] The Housing Authority refused to answer the discovery requests,
asserting the defense of sovereign immunity in response to every inquiry. For the
same reason, it moved for a protective order when Lakota Propane served it with a
notice of deposition. The Housing Authority and Richard Hill, one of the
defendants, moved to dismiss the third-party complaint pursuant to SDCL 15-6-
12(b)(1) for lack of subject matter jurisdiction. In support of its motion, the Housing
Authority attached an affidavit from Doyle Pipe On Head, an employee of the
Housing Authority, attesting that all named defendants were either tribal members
or a tribal entity and the tort occurred on the Reservation.
[¶8.] On January 4, 2018, the Housing Authority served a notice of hearing
on Lakota Propane regarding its motion to dismiss but did not disclose its plan to
present evidence at the hearing beyond the pleadings. In the two weeks between
the Housing Authority’s notice and the scheduled hearing, Lakota Propane filed an
affidavit in accordance with SDCL 15-6-56(f), requesting that the court convert the
motion to dismiss into a summary judgment motion. It argued written discovery
and a deposition pursuant to SDCL 15-6-30(b)(6) were necessary to resolve factual
disputes on the issues of subject matter jurisdiction and sovereign immunity prior
to ruling on the Housing Authority’s motion to dismiss.
[¶9.] At the January 18, 2018 hearing, the Housing Authority voiced its
intention to call Pipe On Head to the stand and offer exhibits based on his
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testimony. Lakota Propane responded by objecting to any questions touching on
topics that had not yet been subject to discovery. The court overruled the objection
but permitted a brief recess to allow Lakota Propane an opportunity to examine the
documents not received through discovery. Thereafter, Pipe On Head was called to
the stand and testified that he was “100% sure” all individually named defendants
were enrolled members of the Tribe. He also testified that the tort occurred
exclusively on tribal trust land. To support his statements, the Housing Authority
submitted several exhibits establishing that each defendant named in the third-
party complaint was either an enrolled member of the Tribe or a tribal entity. After
taking the matter under advisement, the circuit court issued a memorandum
opinion dismissing Lakota Propane’s third-party complaint against the Housing
Authority for lack of subject matter jurisdiction.
[¶10.] Lakota Propane appeals, alleging the circuit court erred in dismissing
the third-party complaint.
Analysis and Decision
[¶11.] Motions to dismiss for lack of subject matter jurisdiction fall into one of
two categories: (1) facial attacks on allegations of subject matter jurisdiction within
the complaint; or (2) disputes regarding the facts upon which subject matter
jurisdiction rests. See Hutterville Hutterian Brethren, Inc. v. Waldner, 2010 S.D. 86,
¶ 20,
791 N.W.2d 169, 174–75. “Jurisdictional issues, whether they involve
questions of law or fact, are for the court to decide.” Godfrey v. Pulitzer Pub. Co.,
161 F.3d 1137, 1140 (8th Cir. 1998).
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[¶12.] Both parties agree that in this case, the motion to dismiss constituted
a factual attack on subject matter jurisdiction. When presented with a factual
attack, the circuit court does not assume the allegations in the complaint are
accurate. See Hutterville, 2010 S.D. 86, ¶ 20,
791 N.W.2d at 175. “Because at issue
in a factual 12(b)(1) motion is the [circuit] court’s jurisdiction—its very power to
hear the case—there is substantial authority that the [circuit] court is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case.”
Osborn v. United States,
918 F.2d 724, 730 (8th Cir. 1990). To resolve the question,
the court may hold hearings, consider live testimony, or review affidavits and
documents. See id.; Wright & A. Miller, Federal Practice & Procedure § 1350 at
243–49 (3d ed. 2004). On appeal, we review challenges to subject matter
jurisdiction de novo. See City of Sioux Falls v. Missouri Basin Mun. Power Agency,
2004 S.D. 14, ¶ 9,
675 N.W.2d 739, 742. However, a circuit court’s findings of fact
“cannot be disturbed unless they are clearly erroneous.” Ainsworth v. Erck,
388 N.W.2d 886, 888 (S.D. 1986).
[¶13.] We are empowered to hear only those cases constitutionally or
statutorily authorized. See Red Fox v. Hettich,
494 N.W.2d 638, 643 (S.D. 1993).
Our Constitution declares that “Indian lands shall remain under the absolute
jurisdiction and control of the Congress of the United States[.]” S.D. Const. art.
XXII; see also Risse v. Meeks,
1998 S.D. 112, ¶ 11,
585 N.W.2d 875, 877.
[¶14.] In the civil adjudicatory context, absent preemption by federal law,
state court subject matter jurisdiction turns on “whether the state action [would
infringe] on the right of reservation Indians to make their own laws and be ruled by
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them.” See Williams v. Lee, 358 U.S. 217, 220,
79 S. Ct. 269, 271,
3 L. Ed. 2d 251
(1959). We have consistently upheld this principle, which is commonly referred to
as the infringement test. See, e.g., Risse,
1998 S.D. 112, ¶ 27,
585 N.W.2d at 879
(Konenkamp, J., concurring); Sage v. Sicangu Oyate Ho, Inc.,
473 N.W.2d 480, 481–
82 (S.D. 1991); Harris v. Young,
473 N.W.2d 141, 144, (S.D. 1991); Wells v. Wells,
451 N.W.2d 402, 405 (S.D. 1990).
[¶15.] To determine jurisdiction in accordance with the infringement test, we
assess the interests of the tribal and federal governments “on the one hand, and
those of the State, on the other.” See Washington v. Confederated Tribes of Colville
Indian Reservation,
447 U.S. 134, 156,
100 S. Ct. 2069, 2083,
65 L. Ed. 2d 10 (1980).
Under this standard, whether all defendants named in this action are member
Indians or tribal entities and whether the tort occurred within the confines of
Indian country are highly relevant in determining whether the exercise of
jurisdiction will infringe on tribal self-government. See, e.g., Williams,
358 U.S. at
220,
79 S. Ct. at 271.
[¶16.] At the motions hearing, the Housing Authority submitted certificates
of Indian blood issued by the Oglala Sioux Tribe’s Department of Enrollment
establishing that each individual defendant was a tribal member. To demonstrate
the Housing Authority’s status as a tribal entity, it provided its charter, which
declares its powers and duties as an entity of the Oglala Sioux Tribe. Although the
Housing Authority is a tribal governmental body rather than an individual, it falls
within the definition of a tribal member for purposes of jurisdiction due to its status
as a tribal entity. See generally Weeks Const., Inc. v. Oglala Sioux Hous. Auth., 797
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F.2d 668, 670–71 (8th Cir. 1986) (noting that the Housing Authority is “an arm of
tribal government . . . .”); cf. United States v. Big Crow,
327 F.3d 685, 686 (8th Cir.
2003) (“The Oglala Sioux Lakota Housing Authority is an Indian tribal
organization . . . .”).
[¶17.] To determine whether the tort occurred within the confines of the Pine
Ridge Indian Reservation, we rely upon the Congressional definition of Indian
country, which states, in part, that Indian country is “all land within the limits of
any Indian reservation under the jurisdiction of the United States[.]” See
18 U.S.C.
§ 1151(a). As evidence that the tort occurred in Indian country as defined in
§ 1151(a), the Housing Authority introduced into evidence funding documentation
showing it receives federal financial aid for providing housing on an Indian
reservation. It also submitted land title status reports and several aerial
photographs of the street in Pine Ridge where the explosion occurred.
[¶18.] From our review of the record and the controlling precedent, the court
correctly determined it did not have subject matter jurisdiction over the third-party
complaint. Lakota Propane has not identified any federal law that would provide
our courts with jurisdiction over its claims. Further, if the State asserted
jurisdiction over the complaint, it would infringe upon tribal self-governance.
Lakota Propane’s claims are asserted against member Indians and a tribal entity
and arise from tortious conduct occurring entirely within the Pine Ridge Indian
Reservation. See Williams,
358 U.S. at 218,
79 S. Ct. 269 (requiring a non-Indian
plaintiff to file his claim against member Indians in tribal court under infringement
principles).
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[¶19.] Nevertheless, Lakota Propane argues it was subjected to trial by
ambush because the court allowed the Housing Authority to present evidence at the
hearing without first permitting Lakota Propane to obtain full discovery. In Lakota
Propane’s view, when courts consider evidence outside the pleadings, even when
they are doing so to assess jurisdiction under a SDCL 15-6-12(b)(1) motion, the
rules of discovery should be broadened. Lakota Propane urged the circuit court to
convert its motion to dismiss into a motion for summary judgment. By applying the
summary judgment standard, Lakota Propane asserts “all parties [would] be given
reasonable opportunity to present all material made pertinent to such a motion by
§ 15-6-56.” See SDCL 15-6-12(b). Therefore, Lakota Propane requests that we
remand the case back to the circuit court for additional discovery on claims related
to both subject matter jurisdiction and sovereign immunity.
[¶20.] Lakota Propane is correct that, as a general rule, when conducting its
review, a circuit court should give each party an equal opportunity to request
discovery on the facts giving rise to a jurisdictional question. However, in some
cases the court’s threshold inquiry into its jurisdiction may be so narrow and
involve such uncontroverted facts as to make discovery unnecessary. Indeed, “a
party is not entitled to jurisdictional discovery if the record shows that the
requested discovery is not likely to produce the facts needed to withstand a Rule
12(b)(1) motion.” See Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009).
See generally, e.g., Lopes v. Jetsetdc, LLC,
4 F. Supp. 3d 238, 242 (D.D.C. 2014);
Sizova v. Nat’l Inst. of Standards & Tech,
282 F.3d 1320, 1326 (10th Cir. 2002)
(“Although a district court has discretion in the manner by which it resolves an
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issue of subject matter jurisdiction under Rule 12(b)(1), . . . a refusal to grant
discovery constitutes an abuse of discretion if the denial results in prejudice to a
litigant.”).
[¶21.] Regardless, the discovery issue was not, strictly speaking, presented to
the circuit court as a separate and distinct issue. Lakota Propane did not seek an
order compelling discovery or otherwise invoke the procedure for litigating
discovery disputes set out in SDCL 15-6-37(a)(2). Instead, the general plea for
discovery was used as a subsidiary argument to Lakota Propane’s claim that the
Housing Authority’s motion to dismiss was premature or should be converted to a
summary judgment motion after additional discovery. See SDCL 15-6-56(f).
[¶22.] However, SDCL 15-6-56(f) does not apply here because a motion under
SDCL 15-6-12(b)(1) cannot be analyzed under the merits-based summary judgment
provisions of SDCL 15-6-56. In reaching this conclusion, we find persuasive the
reasoning of a number of federal appellate courts holding that summary judgment
procedures are inappropriate when determining questions of jurisdiction. Summary
judgment involves finding undisputed facts and resolving cases on the merits as a
matter of law. As the Fifth Circuit so aptly noted in Kirkham v. Société Air France,
429 F.3d 288, 291 (D.C. Cir. 2005), this is a task that cannot be accomplished if the
court lacks jurisdiction to hear the dispute.2
2. Gaspard v. Amerada Hess Corp.,
13 F.3d 165, 168 (5th Cir. 1994) (“We have
previously expressed doubt as to the propriety of summary judgment as a tool
for disposing of a case on jurisdictional grounds when the district court does
not actually purport to address the merits of the parties’ dispute.”); Rogers v.
Stratton Indus., Inc., 798 F.2d 913, 917 (6th Cir. 1986) (“Normally, Rule
12(b)(6) judgments are dismissals on the merits and Rule 12(b)(1) dismissals
(continued . . .)
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[¶23.] In this case, Lakota Propane has not presented any indication that it
can uncover evidence that would establish subject matter jurisdiction in state court.
Instead, its basis for requesting remand for additional discovery is grounded solely
on the issue of whether the Housing Authority or the individually named
defendants were entitled to sovereign immunity. However, subject matter
jurisdiction and sovereign immunity, though often construed as a single concept, are
quite different.
[¶24.] “Subject matter jurisdiction is the power of a court to act[.]” Cable v.
Union Cty. Bd. of Cty. Comm’rs, 2009 S.D. 59, ¶ 20,
769 N.W.2d 817, 825. “[I]n the
absence of subject matter jurisdiction there can be no preclusive findings or
conclusions on the merits . . . .” Calvello v. Yankton Sioux Tribe,
1998 S.D. 107, ¶
16, n.5,
584 N.W.2d 108, 114 n.5. In contrast, sovereign immunity, although
“jurisdictional in nature[,]” see FDCI v. Meyer,
510 U.S. 471, 475,
114 S. Ct. 996,
127
L. Ed. 2d 308 (1994), is a defense that can be nullified by consent, waiver, or, with
respect to the Indian tribes, abrogation. See Michigan v. Bay Mills Indian Comty.,
572 U.S. 782, 782,
134 S. Ct. 2024, 2027,
188 L. Ed. 2d 1071 (2014). When the court
discovered it lacked subject matter jurisdiction, it correctly concluded that it must
end its inquiry and dismiss the case based on the motion to dismiss made pursuant
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(. . . continued)
are not . . . . [I]f a court does not have jurisdiction, ipso facto, it cannot
address the merits of a case.”); Capitol Leasing Co. v. FDIC, 999 F.2d 188,
191 (7th Cir. 1993) (“Whereas a grant of summary judgment is a decision on
the merits, . . . a court must dismiss the case without ever reaching the
merits if it concludes that it has no jurisdiction.”); O’Donnell v. Wien Air
Alaska, Inc., 551 F.2d 1141, 1144–45 n.4 (9th Cir. 1977) (“It is . . . error to
rule on a summary judgment motion or any other matter going to the merits
where a court determines that it lacks jurisdiction over the subject matter.”)
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to SDCL 15-6-12(b)(1). Therefore, it did not err by restricting Lakota Propane’s
right to conduct additional discovery. We affirm.
[¶25.] GILBERTSON, Chief Justice, JENSEN and SALTER, Justices, and
SEVERSON, Retired Justice, concur.
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