Yocha Dehe Wintun Nation Amicus Brief

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Docket No. 10-56671 In the United States Court of Appeals for the Ninth Circuit ______JIM MAXWELL and KAY MAXWELL, individually and as guardians of Trevor Allen Bruce and Kelton Tanner Bruce; et al., Plaintiffs and Appellants, vs. COUNTY OF SAN DIEGO; VIEJAS FIRE DEPARTMENT; BRADLEY AVI; JEREMY FELBER; et al., Defendants and Appellees ______AMICUS BRIEF OF YOCHA DEHE WINTUN NATION, CALIFORNIA TRIBAL FIRE CHIEFS’ ASSOCIATION, CORTINA BAND OF WINTUN INDIANS, HOPLAND BAND OF POMO INDIANS, PALA BAND OF MISSION INDIANS, PAUMA BAND OF LUISEÑO INDIANS, PECHANGA BAND OF LUISEÑO MISSION INDIANS, REDDING RANCHERIA, RINCON BAND OF LUISEÑO INDIANS, ROUND VALLEY INDIAN TRIBES, SAN MANUEL BAND OF MISSION INDIANS, SAN PASQUAL BAND OF MISSION INDIANS, SHINGLE SPRINGS BAND OF MIWOK INDIANS, SOBOBA BAND OF LUISEÑO INDIANS, TABLE MOUNTAIN RANCHERIA AND WASHOE TRIBE OF NEVADA & CALIFORNIA IN SUPPORT OF APPELLEES VIEJAS BAND OF KUMEYAAY INDIANS’, BRADLEY AVI’S AND JEREMY FELBER’S PETITION FOR REHEARING AND REHEARING EN BANC ______On Appeal from the United States District Court For The Southern District of California, No. 3:07-cv-02385-JAH-WMC, Honorable John A. Houston, Judge ______Paula M. Yost (CA Bar # 156843) ● Sanford Kingsley (CA Bar # 99849) Sara Dutschke Setshwaelo (CA Bar # 244848) SNR DENTON US LLP 525 Market Street, 26th Floor San Francisco, California 94105 Telephone: (415) 882-5000; Facsimile: (415) 882-0300 ______Attorneys for Amicus Curiae Yocha Dehe Wintun Nation, California Tribal Fire Chiefs’ Association, Pala Band of Mission Indians, Redding Rancheria, Shingle Springs Band of Miwok Indians, and Table Mountain Rancheria (Counsel for Other Amici Curiae Parties Listed on Subsequent Pages) Case: 10-56671 11/08/2012 ID: 8394029 DktEntry: 39-2 Page: 2 of 24

• Pala Band of Mission Indians Stephen V. Quesenberry (CA Bar # 63423) Hobbs Straus Dean& Walker, LLP 2000 Hearst Avenue, Suite 401 Berkeley, California 94709 Telephone: (510) 280-5135 Facsimile: (510) 849-0749

Attorney for Pala Band of Mission Indians

• Pechanga Band of Luiseño Mission Indians Steve M. Bodmer (CA Bar # 257123) Deputy General Counsel Pechanga Indian Reservation P.O. Box 1477 Temecula, California 92593 Telephone: (951) 770-6171 Facsimile: (951) 693-2293

Attorney for Pechanga Band of Luiseño Mission Indians

• Soboba Band of Luiseño Indians Marcia L. Green (CA Bar # 90683) Soboba Band of Luiseño Indians P.O. Box 487 San Jacinto, California 92581 Telephone: (951) 654-5544 Facsimile: (951) 654-4198

Attorney for Soboba Band of Luiseño Indians

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• Cortina Band of Wintun Indians, Round Valley Indian Tribes, and Hopland Band of Pomo Indians Alex Cleghorn (CA Bar # 231983) Law Offices of Alex Cleghorn 4200 Park Boulevard, #542 Oakland, California 94602 Telephone: (510) 863-0636 Facsimile: (510) 296-6133

Attorney for Cortina Band of Wintun Indians, Round Valley Indian Tribes, and Hopland Band of Pomo Indians

• San Manuel Band of Mission Indians Erin Copeland (CA Bar # 130520) General Counsel San Manuel Band of Mission Indians 26569 Community Center Drive Highland, California 92346 Telephone: (909) 864-8933 Facsimile: (909) 425-0913

Attorney for San Manuel Band of Mission Indians

• Pauma Band of Luiseño Indians David Clifford (CA Bar # 224532) Kewenvoyouma Law PLLC 5872 Owens Avenue, Suite 100 Carlsbad, California 92008 Telephone: (760) 658-9090 Facsimile: (760) 444-3557

Attorney for Pauma Band of Luiseño Indians

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• Rincon Band of Luiseño Indians Scott Wheat (WA Bar # 25565) Crowell Law Offices — Tribal Advocacy Group PLLC 10 N. Post, Suite 445 Spokane, Washington 99201 Telephone: (509) 474-1265 Facsimile: (425) 828-8978

Attorney for Rincon Band of Luiseño Indians

• Washoe Tribe Of Nevada & California Lynelle K. Hartway (AZ Bar# 020486) General Counsel Washoe Tribe of Nevada & California 919 Highway 395 South Gardnerville, Nevada 89410 Telephone: (775) 265-8600, ext. 1155 Facsimile: (775) 265-6240

Attorney for Washoe Tribe Of Nevada & California

• San Pasqual Band of Mission Indians Glenn M. Feldman (AZ Bar# 010867) Mariscal Weeks McIntyre & Friedlander, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, Arizona 85012 Telephone: (602) 285-5138 Facsimile: (602) 285-5100

Attorney for San Pasqual Band of Mission Indians

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... v

STATEMENT OF AUTHORSHIP AND FUNDING...... vii

I. INTRODUCTION AND STATEMENT OF INTEREST...... 1

II. MUTUAL AND AUTOMATIC AID AGREEMENTS ARE VITAL TO PROTECT PERSONS AND PROPERTY IN RURAL CALIFORNIA...... 3

III. THE HOLDING IN MAXWELL THREATENS TRIBAL PARTICIPATION IN MUTUAL AID AND AUTOMATIC AID AGREEMENTS WHICH IS CONTRARY TO THE PUBLIC INTEREST...... 11

IV. CONCLUSION...... 13

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TABLE OF AUTHORITIES

Page(s) FEDERAL CASES

Cook v. Avi Casino Enterprises, Inc., 548 F.3d 718 (9th Cir. 2008)...... 11

Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991)...... 11

Linneen v. Gila River Indian Community, 276 F.3d 492 (9th Cir. 2002) ...... 11

Snow v. Quinault, 709 F.2d 1319 (9th Cir. 1983)...... 11

United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) ...... 11

STATE STATUTES AND REGULATIONS Cal. Health & Safety Code § 13863(a) ...... 7

Cal. Health & Safety Code § 1797.170 ...... 5

Cal. Health & Safety Code §1797.172 ...... 5

Cal. Vehicle Code § 9104.2 ...... 7

Cal. Code Regs. Title 19, § 2415(a)...... 7

Cal. Code Regs. Title 22, § 100074……...... 5

Cal. Code Regs. Title 22, § 100139……...... 5

Cal. Code Regs. Title 22, § 100145…...... 5

Cal. Code Regs. Title 22, § 100158...... 5

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RULES Fed. R. App. P. 29(a) ...... 2

Fed. R. App. P. 29(c)(5)...... 1

Fed. R. App. P. 32(a)(5)...... 15

Fed. R. App. P. 32(a)(6)...... 15

Circuit Rule 29-2...... 1, 15

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STATEMENT OF AUTHORSHIP AND FUNDING

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), Yocha Dehe

Wintun Nation, California Tribal Fire Chiefs’ Association, Cortina Band of

Wintun Indians, Hopland Band of Pomo Indians, Pala Band of Mission Indians,

Pauma Band of Luiseño Indians, Pechanga Band of Luiseño Mission Indians,

Redding Rancheria, Rincon Band of Luiseño Indians, Round Valley Indian Tribes,

San Manuel Band of Mission Indians, San Pasqual Band of Mission Indians,

Shingle Springs Band of Miwok Indians, Soboba Band of Luiseño Indians, Table

Mountain Rancheria and Washoe Tribe of Nevada & California (collectively

“Amici”) declare:

1. No party’s counsel authored this brief in whole or in part;

2. No party or party’s counsel contributed money to fund preparing or submitting this brief; and

3. No person or entity other than Amici contributed money to fund preparing or submitting this brief.

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ARGUMENT

I. INTRODUCTION AND STATEMENT OF INTEREST Pursuant to Federal Rule of Appellate Procedure 29(a) and Circuit Rule 29-

2, Yocha Dehe Wintun Nation, Cortina Band of Wintun Indians, Hopland Band of

Pomo Indians, Pala Band of Mission Indians, Pauma Band of Luiseño Indians

Pechanga Band of Luiseño Mission Indians, Redding Rancheria, Rincon Band of

Luiseño Indians, Round Valley Indian Tribes, San Manuel Band of Mission

Indians, San Pasqual Band of Mission Indians, Shingle Springs Band of Miwok

Indians, Soboba Band of Luiseño Indians, Table Mountain Rancheria and Washoe

Tribe of Nevada & California, federally recognized sovereign Indian Tribes located in California and Nevada (collectively “Amici Tribes”), and the California

Tribal Fire Chiefs Association (“CTFCA”) (Amici Tribes and CTFCA are collectively referenced as “Amici”) present this amicus brief in support of the

Petition for Rehearing and Rehearing En Banc filed by Appellees Viejas Band Of

Kumeyaay Indians, Bradley Avi and Jeremy Felber (“the Tribal Defendants”).

Amici Tribes are sovereign tribal governments that provide and receive critical emergency services through a series of mutual aid agreements and automatic aid agreements with neighboring communities throughout California.

Amicus CTFCA is professional organization of 17 chief fire officers who lead 15

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tribal fire departments throughout California, which provides a collaborative forum

for collective representation of tribal governments’ interests in fire service matters.

Amici believe that the Court’s holding in this matter ― specifically, that individual employees of a tribal fire department, acting within the course and scope of their official duties, lack the Tribe’s sovereign immunity and can be sued in their individual capacities for providing critical lifesaving firefighting and paramedic services1― contradicts long standing precedent of this Court and, consequently, rehearing should be ordered.2 Amici are particularly concerned that

the holding presents a direct threat to the cooperation and tangible benefits that

California’s Indian Tribes and their neighboring communities derive from mutual

and automatic aid agreements. If the Court’s holding stands as valid precedent,

Amici believe that it will discourage tribal governments from entering into such

agreements, resulting in a degradation of the levels of public safety on both tribal

lands and in nearby communities. This brief addresses the issues which surround

tribal participation in mutual and automatic aid agreements and the deleterious

effect of the Court’s holding on them. These issues are not addressed in the Tribal

Defendants’ Petition for Rehearing and Rehearing En Banc or by other amici

1 See Slip Opn. at p. 31 (“We therefore hold that sovereign immunity does not bar the suit against the Viejas Fire paramedics as individuals.”). 2 Amici fully support and incorporate by reference the arguments set forth in the Tribal Defendants’ Petition for Rehearing and Rehearing En Banc.

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curiae. Because of the importance of these issues, Amici urge a grant of a panel

rehearing or rehearing en banc.

II. MUTUAL AND AUTOMATIC AID AGREEMENTS ARE VITAL TO PROTECT PERSONS AND PROPERTY IN RURAL CALIFORNIA. Most of California’s 115 federally recognized tribes are situated in rural and sparsely populated parts of the state. Some tribes, like the Yocha Dehe Wintun

Nation, Pala Band of Mission Indians, Pauma Band of Luiseño Indians, Pechanga

Band of Luiseño Mission Indians, Rincon Band of Luiseño Indians, Round Valley

Indian Tribes, San Manuel Band of Mission Indians and San Pasqual Band of

Mission Indians provide their own fire protection and emergency services through tribal fire departments, staffed with paid, professional, full-time fire fighters. These tribal fire departments protect tribal land, including gaming facilities or other commercial enterprises and serve and protect not only tribal citizens, but patrons, guests and employees. Other Amici Tribes such as the Cortina Band of Wintun

Indians, Hopland Band of Pomo Indians, Redding Rancheria, Shingle Springs

Band of Miwok Indians, Soboba Band of Luiseño Indians and Table Mountain

Rancheria have no fire department but depend on neighboring local, tribal or state fire departments for fire and emergency medical response.

By way of example, Yocha Dehe, as the owner of Cache Creek Casino

Resort, a major casino located between San Francisco and Sacramento with a hotel and several thousand daily visitors, has a highly trained and skilled fire

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department. The 35-member Yocha Dehe Fire Department (“YDFD”) serves not only Yocha Dehe’s tribal lands,3 but also provides important critical emergency

services to neighboring communities throughout Yolo County (and beyond)

through a series of mutual aid agreements and automatic aid agreements. Out of a

total of 33,000 professional fire departments nationwide, YDFD is one of the only

152 career fire departments accredited by the Commission on Fire Accreditation

International. Of the 18 fire departments in Yolo County, YDFD is only one of two

departments certified to perform search-and-rescue and swiftwater rescue

operations and only one of three fire agencies in the county certified for confined

space and trench rescue operations. Of the 30 line YDFD fire fighters, 21 are

licensed as paramedics, a proportion far higher than found at other fire

departments, whether rural or urban.

Small rural communities near or adjacent to tribal lands typically have only

volunteer fire departments staffed with part-time fire fighters whose level of

resources vary widely from community to community.4 For residents in these

communities, the nearest county-provided full-time professional paid fire

department may be more than an hour away. Similarly, the availability and level of

3 All references to “tribal lands” mean land held in trust by the United States government for the benefit of the sovereign tribes and/or individual members of the tribe. 4 For example, in Guinda and Capay, the two towns closest to the Yocha Dehe, the local fire departments are part-time, volunteer organizations.

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emergency medical care offered on tribal lands and in adjacent communities varies as many volunteer fire agencies only offer the services of an Emergency Medical

Technician (“EMT”) and do not employ paramedics, who are qualified to

administer a broader range of medical procedures than EMT’s.5 In the case of the

YDFD, it is the only fire agency in Yolo County with paramedics on staff. Thus, the existence of a highly trained and sophisticated fire department on Indian land provides an important tangible benefit to the communities that adjoin or are nearby

Yocha Dehe.

Similarly, the San Manuel Band of Mission Indians’ 29-member full-time fire department provides emergency response services to its Southern California reservation and to surrounding areas, using state-of-the-art fire service equipment, including the only ladder truck that serves most of the neighboring City of

Highland. All San Manuel Fire Department (“SMFD”) personnel are state-certified

as paramedics (10 individuals) or EMT’s (19 individuals). SMFD responders are

5 In California, the medical training and scope of practice standards for EMT’s and paramedics are established and regulated by the California Emergency Medical Services Authority, a state agency. See California Health & Safety Code §§ 1797.170, 1797.172. EMT’s have 120 hours of training (Cal. Code Regs. tit. 22, § 100074) and may transport patients and provide advanced first aid including CPR. Paramedics, by contrast, must have 1,090 hours of instruction and are trained in all elements of pre-hospital advanced life support. ( Id. §§ 100139, 100158.) Paramedics are authorized to administer drugs intravenously and through other specified methods, take blood samples, operate defibrillators, intubate patients and carry out other specified medical procedures. (Id. § 100145.)

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fully credentialed by the California Incident Command Certification System, and its units are regulated under agreement with the Inland Counties Emergency

Medical Agency.

Another example is the Pechanga Fire Department (“PFD”) operated by the

Pechanga Band of Luiseño Mission Indians. PFD serves the Pechanga tribal reservation in Riverside County as well as nearby communities. Specifically PFD

operates two Advanced Life Support units and all PFD personnel are either EMT’s

(27 individuals) or paramedics (8 individuals).

The Pala Band of Mission Indians also operates a modern, fully equipped fire department with 30 full-time fire suppression personnel and 15 reserve firefighters which serves not only its reservation community and casino, but also responds to calls for fires, traffic accidents, and paramedic services that occur outside its reservation’s boundaries. At the nearby Rincon Band of Luiseño

Indians, located in wildfire-prone North San Diego County, the tribe operates a full-time professional fire department with an annual operating budget of $2.2 million dollars and 23 full-time and 20 authorized reserve firefighters, including 24

EMT’s and 13 paramedics. In addition to its firefighting equipment, the Rincon

Fire Department staffs an ambulance with a minimum of a paramedic and an EMT

24 hours per day, seven days per week. Near Rincon, the Pauma Reservation Fire

Department is a 12-person, full-time professional fire department that serves the

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Pauma Reservation and Casino but also provides services throughout the agriculturally rich Pauma Valley. This is also true of the 25-member San Pasqual

Reservation Fire Department which provides fire, rescue, and emergency medical services.

To ensure the availability of the highest level of firefighting and emergency medical services on tribal lands and in adjacent communities, tribes and tribal fire departments enter mutual aid agreements with state and local agencies. Cal. Health

& Safety Code § 13863(a) (“A [fire protection] district may enter into mutual aid agreements with any federal or state agency, any city, county, city and county, special district, or federally recognized Indian tribe.” (emphasis added)). 6 These agreements allow for the coordination of information, resources and priorities among the participating fire departments and agencies and typically provide that the nearest agency to the incident will respond — or provide required backup services — regardless of the jurisdiction in which the incident occurs.7

6 See also Vehicle Code § 9104.2 (exempting vehicles owned by a federally recognized Indian tribe that has entered into a mutual aid agreement with a state, county, city, or other governmental municipality for fire protection and emergency response from fees due under the Vehicle Code). 7 See Cal. Code Regs. tit 19, § 2415(a) defining “mutual aid” as: “voluntary aid and assistance by the provision of services and facilities, including but not limited to: fire, police, medical and health, communication, transportation, and utilities. Mutual aid is intended to provide adequate resources, facilities, and other support to jurisdictions whenever their own resources prove to be inadequate to cope with a given situation.”

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The YDFD, for example, has entered into four separate mutual aid agreements, including the statewide California Fire Assistance Agreement, as well as four “automatic aid” agreements to provide fire and emergency response services to communities located off tribal land and for non-tribal back-up in the event of a major incident located on tribal land. As a result of these agreements, the

YDFD is regularly dispatched by the Yolo County Communications Center to incidents off tribal land, so approximately one-third of all YDFD services

(approximately 200 out of 600 service responses over the last 12 months) are provided to residents and property in neighboring communities. Under the terms of the California Fire Assistance Agreement, the YDFD has responded to and participated in 8 separate fire incidents from Clear Lake to Susanville during 2012 alone.

This is true of other tribal fire departments as well. For example, In 2011 alone, pursuant to multiple mutual aid and automatic aid agreements, the SMFD responded to 548 emergencies outside the reservation, including medical and rescue emergencies, traffic collisions, and hazardous materials incidents. In 2012,

SMFD has already responded to 140 off-reservation fire emergencies. In fact, due to staffing cuts in financially strapped nearby jurisdictions, the demand for

SMFD’s services has increased significantly and made SMFD the closest available appropriate emergency resource for many areas outside the San Manuel

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reservation. Similarly, the Pala Band’s Fire Department responds to an average of

450 calls per year that occur outside reservation boundaries and has established

mutual and automatic aid agreements with many surrounding fire departments,

including Cal Fire.

Another example is Pechanga’s Fire Department which has an automatic aid agreement with the neighboring City of Temecula and is available to provide

mutual aid under the California Master Mutual Aid System throughout Riverside

County and Southern California. These agreements provide that the “closest available appropriate resource” be dispatched regardless of agency or political boundary; this is a crucial element of a swift and effective emergency response.

Over the past year, the PFD responded to 176 automatic or mutual aid requests emergency services off the Pechanga reservation. Like San Manuel’s fire department, the demand for PFD’s service to communities near the Pechanga reservation has increased given that many of the neighboring jurisdictions have cut staffing levels and response units due to economic conditions. The Rincon Band’s

Fire Department has entered into nine similar arrangements with local, county and tribal governmental agencies and is dispatched through Cal Fire’s Monte Vista

Emergency Communication Center along with Cal Fire, the Valley Center Fire

Protection District, the Pauma Reservation Fire Department, the San Pasqual

Reservation Fire Department and the Pala Fire Department. Through this

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coordinated dispatch, these agencies assist each other as needed to the benefit of the greater Valley Center community. As a result, about half of the Rincon Fire

Department’s approximately 1,100 responses over the past year were off the

Rincon Reservation. For the Pauma Reservation Fire Department, as a result of various agreements, over one-third of its response calls are off tribal land in the adjacent Pauma Valley. The PRFD also recently secured a federal grant along with the Rincon Tribe to purchase and operate a state-of-the-art Mobile Emergency

Command Center to coordinate various tribal, state and federal agencies in case of a regional or nationwide emergency or natural disaster. Similarly, through a series of mutual aid agreements the San Pasqual Fire Department provides service throughout North San Diego County.

In sum, these mutual and automatic aid agreements ensure that citizens ― wherever they are located ― receive the closest and most professional firefighting and emergency services available to them. While valuable everywhere, these agreements are particularly critical to public safety in rural communities, where tribal lands tend to be located, and where the non-tribal community must typically rely on volunteer fire service agencies with more limited resources.

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III. THE HOLDING IN MAXWELL THREATENS TRIBAL PARTICIPATION IN MUTUAL AID AND AUTOMATIC AID AGREEMENTS WHICH IS CONTRARY TO THE PUBLIC INTEREST. Tribal governments and fire departments entered into these mutual and

automatic aid agreements with the explicit understanding, consistent with this

Court’s long-established precedent, that the tribal fire departments as well as their

employees, acting within the course and scope of their duties, are protected by the

sovereign immunity of the tribe. See Cook v. Avi Casino Enterprises, Inc., 548

F.3d 718, 727 (9th Cir. 2008) (casino employees immune to suit); Linneen v.

Gila River Indian Community, 276 F.3d 492 (9th Cir. 2002) (tribal ranger

immune to suit); Imperial Granite Co. v. Pala Band of Mission Indians, 940

F.2d 1269 (9th Cir. 1991) (tribal officials possess immunity); Snow v.

Quinault, 709 F.2d 1319, 1322 (9th Cir. 1983) (tribal revenue clerk immune to

suit); United States v. Oregon, 657 F.2d 1009, 1012, n.8 (9th Cir. 1981) (tribal immunity extends to officials acting within the scope of their authority).

Here, the expectation that the individual Tribal Defendants carry this

immunity is expressly manifest in the agreements themselves. As the Court

correctly observed, “[e]ach [mutual aid] agreement identified by the Maxwells

explicitly retains the Viejas Band’s sovereign immunity.” Slip Opn. At p. 24.

Given this Court’s holdings over the past 30 years extending tribal sovereign

immunity to tribal employees acting within the course and scope of their official

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duties, there is no doubt the Viejas Band actually and reasonably expected that its

immunity as a sovereign fully extended to its employees, including the individual paramedics, even while providing life-saving services off tribal land.

To the extent this Court seeks to repudiate this long-standing precedent and

establish a new rule based on a “remedy-focused analysis”8 under which individual

tribal employees can be held liable while the tribe remains immune, this new rule

will have a chilling and deleterious effect on tribal participation in mutual aid

agreements. Few, if any, tribes will be willing to subject their employees to suit,

especially for services provided off tribal land.9 As a consequence, a tribe’s

willingness to participate in mutual and automatic aid agreements will diminish

with adverse and harmful impacts on the availability of public safety and

emergency services both on tribal lands and in neighboring communities. Without

mutual aid, emergency response times in communities adjacent to tribal lands will

lengthen ― in some communities dramatically ― and these communities will also

lose the benefit of a sophisticated and well-staffed tribal fire department. Simply

8 Slip Opn. at p. 25. 9 Even if tribal fire department employees are covered by the tribal department’s liability insurance while carrying out their official duties, no tribe will want to willingly subject its employees to the distraction and time commitment involved in litigation seeking to hold them personally liable for acts undertaken within the course and scope of their duties. Further, tribes will not be inclined to bear the increased insurance premium cost which is concomitant with the new liability exposure created by the Court’s holding in this matter.

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put, the holding in this case may well lead to a deterioration in the quality of available emergency services in communities near tribes that have trained fire departments and that would otherwise be available to respond to emergency calls.

Correspondingly, without mutual aid, tribes will also be harmed. Tribes and their first responders will lose the security and peace of mind that comes from knowing that nearby departments with additional manpower and resources are available in the event of a major incident on tribal land. Thus, in practical terms, this new “remedy-focused analysis” that holds tribal employees individually liable will not further public safety and will actually harm it. Further, given that the

“remedy-focused analysis” is directly contrary to this Court’s established precedent of over 30 years, rehearing, or alternatively rehearing en banc, should be granted.

IV. CONCLUSION Fire, of course, knows no jurisdictional lines. The cooperative effort that

exists under mutual and automatic aid agreements to combat fires — as well as

provide other emergency services within tribal and non-tribal communities — must be protected, not threatened by a decision that runs counter to 30 years of judicial precedent. The public interest requires no less.

Accordingly, and based on the foregoing, Amici respectfully request that this Court grant the Tribal Defendants’ petition for rehearing or a rehearing en banc.

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Respectfully submitted,

November 8, 2012 SNR DENTON US LLP Paula M. Yost Sanford Kingsley Sara Dutschke Setshwaelo

By /s/ Sanford Kingsley . Sanford Kingsley

Attorneys for Amicus Curiae Yocha Dehe Wintun Nation, California Tribal Fire Chiefs’ Association, Pala Band of Mission Indians, Redding Rancheria, Shingle Springs Band of Miwok Indians, and Table Mountain Rancheria, and on behalf of counsel for all other Amici

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CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the length limitation of Circuit Rule 29-2(c)(2) because it does not exceed 15 pages.

The undersigned also certifies that this brief complies with the typeface requirement of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief

has been prepared using Microsoft Word in a 14-point proportionally spaced font

that includes serifs.

November 8, 2012 SNR DENTON US LLP Paula M. Yost Sanford Kingsley Sara Dutschke Setshwaelo

By /s/ Sanford Kingsley . Sanford Kingsley

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on November 8, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

November 8, 2012 SNR DENTON US LLP Paula M. Yost Sanford Kingsley Sara Dutschke Setshwaelo

By /s/ Sanford Kingsley . Sanford Kingsley

27397805

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