By J. Harry Jones / SignOnSanDiego / Originally published October 28, 2011
The Los Coyotes Indian tribe can evict the military training center that has been operating on its remote North County reservation since last year, according to a ruling a federal judge issued Friday.
U.S. District Court Judge William Q. Hayes refused to grant a temporary restraining order against the tribe, which would have barred it from evicting ERTC LLC, formerly known as the Eagle Rock Training Center. The business, which caters to the military and law enforcement, insists it has a valid 25-year lease to conduct business on virtually the entire 25,000-acre North County reservation.
The ruling means the tribe does not have to allow ERTC employees or those who have contracted to train on the reservation access to its land.
In federal court in San Diego on Friday, a lawyer for the training facility said the military had contracted to train on the reservation starting Monday. Hayes said in the ruling that ERTC has not proven that the tribe as a whole approved the lease, which is required.
ERTC did not respond immediately to a request Friday for comment.
The ruling sets up a court confrontation, possibility in early December or sooner, at which the validity of the lease will be aired more fully. ERTC argued in court filings and at the hearing Friday that if the tribe was allowed to block access to the reservation it would “irreparably damage” the reputation of the business and could force ERTC into bankruptcy.
ERTC maintains it signed a valid lease for 24 years and 11 months with the tribe last year, but the tribe says the lease, which among other things waives the tribe’s sovereign immunity, was never approved by the Los Coyotes Executive Council or the tribe’s General Council. The General Council consists of all the adult members of the tribe. The waiving of sovereign immunity would mean that legal disputes would be handled in federal court rather than tribal court.
Hayes cited in his order previous court rulings stating sovereign immunity cannot be implied but must be unequivocally expressed, and there is a strong presumption against waiver of tribal sovereign immunity.
The tribe has about 300 members, about 60 of whom live on the reservation east of Warner Springs.
In dueling court declarations, former tribal spokeswoman and Chairwoman Francine Kupsch, who signed the lease, and current tribal Chairman Shane Chapparosa, offered drastically different versions of the situation.
Kupsch stated: “It is the custom and practice of the Tribe to have the Tribal Spokesperson and Chairman to have authority to enter into contracts and agreements, including leases, on behalf of the Tribe.” She said she signed the lease and understood its implications.
Chapparosa, in a declaration filed Thursday, said the tribal chair does not have the power to execute contracts or agreements without first obtaining the consent and concurrence of the executive and general councils. “That has always been the Los Coyotes’ Band custom and tradition.”
The tribe was never presented the lease before it was signed, he said.
Chapparosa also points out in the filing that the lease defines the lease premises as 25,000 acres. “The Los Coyotes Reservation consists of a total area of approximately 25,049 acres. As a result the ‘lease’ purports to be for the entirety of the Los Coyotes Reservation, which consists of Indian lands held in trust by the United States.”
The tribe maintains the lease is invalid and therefore sovereign immunity has not been abandoned. It argues the case then does not belong before the federal court but should be handled by the Tribal Court of Southern California. On Sept. 29 the tribe filed a petition in tribal court for “exclusion and eviction” seeking the right to bar all ERTC employees from the reservation.
That was the third time such an eviction notice has been served on the business since June.
Also in dispute is whether the Bureau of Indian Affairs must approve the lease. ERTC says that is not the law, the tribe says it is. Such approval by the bureau has not been given.
J. Harry Jones: (760) 752-6780; email@example.com; Twitter: @jharryjones