[Motion filed on December 16, 2002.] ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

VIRGINIA PHILLIPS, District Judge

Plaintiffs' Motion for Preliminary Injunction came before the Court for hearing on January 27, 2003. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court DENIES the Motion.

I. BACKGROUND

Plaintiffs Craig Wendt ("Wendt"), Nancy Colburn ("Colburn"), and Theodora Goodgame ("Goodgame") seek review of an Opinion and Order of the Chemehuevi Tribal Court ("Tribal Court") ordering the eviction of Plaintiffs from their residences. Plaintiffs seek a preliminary injunction enjoining the Tribal Court from enforcing the Order pending the outcome of this case.

Plaintiffs allege that there is no lawfully created Chemehuevi Reservation and that the Tribal Court's Order therefore exceeds its jurisdiction. Defendants allege that the Reservation was legitimately created in 1907 by order of the Secretary of the Interior. (Webb Decl., ¶ 4.) According to Defendants, title of the Reservation is held by the United States in trust for the Chemehuevi Tribe ("Tribe"). The Tribe is the beneficial owner. (Webb Decl., ¶ 3.)

In 1941, the Secretary of the Interior designated portions of land in the Chemehuevi Indian Reservation to build the Parker Dam pursuant to the Parker Dam Act of July 8, 1940. (Smith Decl., ¶ 6; Webb Decl, f 6.) The result was Lake Havasu. The lake level, however, did not rise to the predicted elevation line, leaving a strip of land owned by the United States "between the high-water mark of Lake Havasu (i.e., 450^th contour line) and the 465th contour line (ie., those lands originally designated by the Secretary of the Interior)." (Webb Decl, ¶ 6.) For over 30 years, the United States, through the Bureau of Land Management and the United States Fish and Wildlife Service, issued permits to non-Indians to operate concessions and build small cabins or vacation homes on the property. (Webb Decl., ¶ 7.) In 1974, Secretarial Orders restored "`equitable ownership" to the Tribe of this Lake Havasu "Shoreline Area" which consisted of all land between the 450th and 465th elevation lines. (Webb Decl., ¶ 7, Exh. B,) This area includes land commonly referred to as the "Colony" where Plaintiffs reside. (Smith Decl., ¶ 8)

Several permit-holders in the Shoreline Area brought suit challenging the validity of the 1974 Secretarial Order. Havasu Landing, Inc., et al., v. Morton, et al., United States District Court for the Central District of California, Case No. CV 74-3665 EC ("Morton"). The parties entered into a settlement agreement ("Settlement") before the case went to trial. According to the Settlement, the Tribe had "full equitable title to all lands within the Chemehuevi Indian Reservation riparian to Lake Havasu." (Settlement, Smith Decl., Exh. A at 8.) All of the Morton plaintiffs signed a Release ("Release") agreeing never to challenge the legality of the Secretarial Orders. (Smith Decl., ¶ 9, Exh. A at 15.) The Release stated: "The releases, covenants, agreements, representations, and waivers herein shall be binding upon and inure to the benefit of the agents, representatives, heirs, successors and assigns of the parties to this agreement." (Id., Exh. A at 17.) As consideration, the Tribe entered into leases with the Morton plaintiffs that expired on July 1, 1990.

Plaintiff Goodgame was a party to the Settlement and signed the Release for Lot # 18. (Smith Decl., ¶¶ 10, 12, Exh. BJ Goodgame's lease expired on July 4, 1990. (Id., ¶ 12.) She entered into another lease, which was approved by the Tribe and the Secretary of the Interior. This lease expired on July 3, 1995. (Id., ¶ 14, Exh. F.) Goodgame was offered a new lease with the Tribe and refused to accept it. (Id., ¶ 17.) Goodgame has not paid rent or other compensation to the Tribe since July 3, 1995. (Esquerra Decl., Exh. A, T, 29, Smith Decl., ¶ 5.)

Plaintiff Colburn is an assignee of the permit granted to Ernest and Linda Higgenbothem, who were assignees of the permit granted to Leo and Peggy Rossier. The Rossiers were original parties to the Settlement and signed the Release. (Smith Decl., Exhs. C, D, E.) Colburn's lease for Lot # 40 expired on July 4, 1990. (Id., ¶ 12.) She was offered a new lease with the Tribe and refused to accept it. (Id., ¶ 13, 17.) Colburn has not paid rent or other compensation to the Tribe since July 4, 1990. (Esquerra Decl., Exh. A, T. 29, Shirley Smith Decl., ¶ 4.)

Plaintiff Wendt entered into a lease with the Tribe for Lot # 38 that expired on July 3, 1995. (Smith Decl., ¶ 15, Exh. G.) Wendt has not had a lease since it expired. (Id.) Wendt has paid no rent or other compensation to the Tribe since July 3, 1995. (Esquerra Decl., Exh. A, T. 29, Shirley Smith Decl., ¶ 7.)

B. Procedural History

On June 20, 2001, the Tribe instituted an action in Tribal Court against Plaintiffs alleging trespass. The Tribal Court issued an Order on August 23, 2002, ordering the Plaintiffs ejected from the property ("Tribal Court Order"). The Tribal Court issued a Judgment on October 25, 2002. On November 22, 2002, the Parties stipulated to defer enforcement of the Order and Judgment pending this Court's ruling on a motion for preliminary injuction ("Stipulation"). Plaintiffs filed a Motion for Preliminary Injunction on December 16, 2002 ("Mot."). Defendants filed Opposition on January 13, 2003 ("O99'n". Defendants also filed a Request for Judicial Notice on January 13, 2003 ("Jud. Not."). Plaintiffs filed a Reply ("Reply") on January 17, 2003.

II. LEGAL STANDARD

Under the Ninth Circuit's preliminary injunction standard, the moving party must demonstrate either "(1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party." Stuhlberg Int'l Sales Co., Inc. v. John D. Brush Co., Inc. , 240 F.3d 832, 839-40 (9th Cir. 2001) (citing Dr. Seuss Enter, v. Penguin Books USA. Inc., 109 F.3d 1394, 1397 n. 1 (9th Cir. 1997)). See also University of Hawaii Prof. Assembly v. Cayetano, 183 F.3d 1096, 1101 (9th Cir. 1999). These are not two distinct tests but ends of a continuum where the required showing of harm varies inversely with the required showing of merit. Id. (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)).

III. JUDICIAL NOTICE

Plaintiffs ask the court to take judicial notice of the various Secretarial Orders, Chemehuevi Tribe Ordinances, a 1907 Commissioner of Indian Affairs report and letter, and the papers filed in the eviction proceeding before the Tribal Court. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed, R. Evid. 201(b). A court may not take judicial notice of a fact that is "subject to reasonable dispute," Fed.R.Evid. 201(b). The Defendants have not opposed the request. Since the accuracy of these documents is not questioned, the Request is granted.

IV. DISCUSSION

Plaintiffs allege they have "competing claims to occupy certain parcels in the Colony." (Mot. at 3.) This allegation is unfounded. Plaintiffs have presented no evidence that they enjoy any right, title, or interest in the property at issue in this case. They do not own the land. Although they rented the property in the past and were parties to valid lease agreements/ they have not paid rent in some cases for over a decade. Plaintiffs present no argument that they have valid possession of the land; they merely contest whether the Tribe has the power to evict them.

A. Irreparable Injury and the Balance of Hardships

Plaintiffs argue that they will suffer irreparable injury if a preliminary injunction is not issued because the Tribe will confiscate both their real and personal property. (Mot. at 13-14. See also, Wendt Decl., Exh. 8 at 2.) In fact, Plaintiffs' personal property will only be taken if Plaintiffs do not remove it themselves before the eviction. Plaintiffs are already on notice that an eviction may occur. As the Tribal Court's Judgment states, "personal property . . . remaining on the land . . . shall be deemed abandoned . . ." (Mot. at 13, Exh. 7 at 4.) Plaintiffs can easily avoid this harm by removing their personal belongings in anticipation of the eviction. This argument is unfounded and does not serve Plaintiffs' credibility.

The real property at issue, however, is not replaceable. According to Plaintiffs, the Tribe has already advertised the houses to tribal members for reassignment. (Wendt Decl., Mot., Exh. 8 at 2.) Tribal members will immediately occupy the residences. Defendants contend that Plaintiffs will not suffer irreparable harm because their houses are vacation homes rather than primary residences. (Opp'n at 4.) More importantly, however, Plaintiffs cannot suffer irreparable harm — despite the uniqueness of the real property — when they do not have any claim of right, title, or interest in the land they occupy. (Id.) Plaintiffs do not deny that the land is, at the very least, owned by the Federal Government. Plaintiffs are no longer leasing the property. Plaintiffs have failed to show that they have any legitimate right in this real property. An eviction from property to which they have no legal claim does not amount to irreparable harm.

In the alternative, Plaintiffs argue that the balance of hardships nonetheless tips in their favor, because they will suffer irreparable injury while Defendants will suffer "absolutely no harm." (Mot. at 14.) Defendants, however, have already been deprived of the use of, and income from, the land at issue in this case. (Opp'n at 5.) Based on appraisals commissioned by the Secretary of the Interior, Plaintiffs Colburn, Goodgame, and Wendt may owe the Tribe over $70,610.08, $31,866,49, and $23,170.74, in rent, respectively, (Esquerra Decl., Exh. A, T. 29 at 3.) Meanwhile, Plaintiffs merely risk losing rent-free possession of property to which they have presented no evidence of any claim of right, title, or interest. The balance of hardships tips in favor of the Tribe.

B. Serious Questions of Merit

Even if we assume, without deciding, that the balance of hardships tips in Plaintiffs' favor, Plaintiffs fail to show that there are serious questions of merit that warrant a preliminary injunction. Plaintiffs argue that the eviction proceedings are invalid because the Tribal Court lacks jurisdiction to issue such an Order. Plaintiffs contend that the "tribal ordinance establishing the Tribal Court pointedly limits its jurisdiction to land which is (1) held in trust for the Tribe by the United States or (2) within the Tribe's reservation." (Mot. at 2, Exh. 3 at 3.) According to Plaintiffs, the Tribal Court lacks jurisdiction for three reasons: (1) the Tribe has no reservation as a matter of federal statutory law; (2) Plaintiffs' residences are on land not held in trust for the Tribe by the United States; and (3) Plaintiffs' residences are on land not owned by the Tribe in fee absolute. (Mot. at 2.)

1. Jurisdiction of Tribal Court

Plaintiffs' arguments are premised on a theory that the Chemehuevi Indian Reservation was not lawfully established. They argue that the land is not held in trust for the Chemehuevi Tribe or that the Reservation was not established according to statutory requirements.

a. Source of Jurisdiction

The Court need not determine the nature of the Chemehuevi's title to the land because the merits of Plaintiffs1 claims are insufficient on other grounds. First, the Tribal Court's jurisdiction derives from a Congressional delegation of authority, not merely from the Tribal Ordinances. Congress specifically delegated the Tribal Court with the authority to regulate non-members in order "to prevent the sale, disposition, lease, or encumbrance, of tribal lands, interests in lands, or other tribal assets without the consent of the tribe." 25 U.S.C. § 476(e).

In fact, the purpose of the tribal ordinance establishing the Tribal Court was to give effect to this Congressional delegation. The ordinance's use of the language "in trust" reflects the Tribe's perception of the status of title to the land. (See Mot., Exh. 3.) Congress has given tribal courts broad jurisdiction, however, over "tribal lands, interests in lands, or other tribal assets." (Id.) Although Plaintiffs present evidence that questions the nature of the status of title, there is no serious question of whether the Tribe even has an "interest in the land."

For example, Plaintiffs argue that the Chemehuevi were not intended to be included in the land originally withdrawn for the Mission Indian Relief Act Amendment of March 1, 1907, that created the Chemehuevi Indian Reservation, (Reply at 5; 34 Stat. 1015.) Plaintiffs cite a Department of the Interior memorandum in support of this contention. (Reply., Exh. B at 22.) Noticeably, this memorandum is not provided to the Court in its entirety. Further, what is available to the Court also states that the "Chemehuevis have, rather, been recognized to have far greater title than can be granted by a patent . . . The Chemehuevi Reservation has been recognized by the Secretary of the Interior in the 1907 withdrawal order, in the 1939 decision cited above, by approval of the Tribal . . ." (Id.) The conclusion of this sentence, and the rest of the memorandum, are not included in the materials Plaintiffs provided to the Court — The page numbering is consecutive, however, so it does not appear to be a copying or collating error. We find that Plaintiffs have failed to present sufficient evidence that the Tribal Court has exceeded its jurisdiction to justify a preliminary injuction.

b. Estoppel

In addition, a tenant in possession is estopped from contesting the landlord's title in an ejectment action. See Richardson v. Van Dolah, 429 F.2d 912, 917 (9th Cir. 1970 (tenant in peaceful possession is estopped to question title of landlord); Goode v. Gaines, 145 U.S. 141, 152 (1892) (estoppel which prevents tenant from claiming title adversely to landlord does not depend on validity of landlord's title); Williams v. Morris. 95 U.S. 444, 455 (1877) (whenever tenant gains possession under any species of tenancy, the tenant is estopped from denying title of landlord). The purpose of this doctrine is to "prevent a tenant from defending a suit for rent by challenging his landlord's right to put him into possession." Richardson, 429 F.2d at 917.

In this case, Plaintiffs are not directly attacking the title of their landlord; they couch their challenge as one on the jurisdiction of the Tribal Court. Plaintiffs contend that a defect in the Tribe's title destroys the Tribal Court's authority to exercise jurisdiction over this land. This is precisely the argument that this doctrine bars: a tenant "defending a suit for rent by challenging his landlord's right to put him into possession." Id.

c. Waiver

Further, Plaintiffs have all submitted to the jurisdiction of the Tribal Court, thus waiving any such challenge. Both Goodgame and Wendt entered into new leases with the Tribe in which they specifically agreed to jurisdiction of the Tribal Court. The lease states, in relevant part, "Lessee, it's [sic] employees, guests and agents, and assignees and their employees, guests and agents hereby consent to the jurisdiction of the Chemehuevi Indian Tribe and the Tribal Court of said Tribe and/or Federal Court." (Smith Decl, Exh. G.) Colburn was assigned a use-permit. This permit, approved by the United States and the Tribe, specifically states that "Assignee acknowledges that any right, title, or interest in the Permit are only those rights that Assignor has in the Permit, which is governed by the Tribe, and Assignee agrees to abide by them," (Smith Decl., Exh. DJ (emphasis added) Since all Plaintiffs have expressly submitted to the Tribal Court's jurisdiction, this challenge to it is waived. As a result, there is no serious question of merit regarding the Tribal Court's jurisdiction that justifies a preliminary injunction.

2. Indispensable Parties and the Quiet Title Act

The crux of Plaintiffs' allegations is the validity of the establishment and existence of the Chemehuevi Indian Reservation. Plaintiffs do not argue that they own the property. Instead, they argue that the United Stats has title, though not in trust for the Tribe. Plaintiffs conceded at the hearing that the disputed property is Federal land. As a result, the United States is an indispensable and necessary party to determine the status of title to the land. According to the Quiet Title Act ("QTA"), the United States may generally be named as a plaintiff in lawsuits seeking the adjudication of a disputed title to land. The United States is immune, however, from suit when the interest is "based upon that property's status as trust or restricted Indian lands." 28 U.S.C. § 2409a(a);Metropolitan Water District of Southern California v. United States, 830 F.2d 139, 143 (9th Cir. 1987); Block v. North Dakota, 461 U.S. 273, 284-86 (1983).

According to the legislative history of the QTA, this exception was "necessary to prevent abridgement of `solemn obligations' and `specific commitments' that the Federal Government [has] made to the Indians regarding Indian lands." Mottaz v. United States, 476 U.S. 834, 843, n. 6 (1986) (citing H.R. Rep. No. 92-1559, p. 13 (1972)). This exception applies even where the Plaintiff is not seeking to quiet title in itself, but where "a determination of the boundaries" would have the effect of quieting title in others than the Tribe. Metropolitan Water. 830 F.2d at 143. The United States' claim that the disputed property is Indian lands merely needs to be "colorable" for the exception to apply. State of Alaska v. Babbitt, 182 F.3d 672, 675 (9th Cir. 1999). In Metropolitan Water, the Court held that "nothing in the [QTA] or its history suggests that the United States was to be put to the burden of establishing its title when it has a colorable claim and has chosen to assert its immunity on behalf of land of which the Government declares that it is the trustee for Indians." 830 F.2d at 144 (quoting Wildman v. United States, 827 F.2d 1306, 1309 (9th Cir. 1987)). The United States7 claim in this case is clearly colorable. Since Plaintiffs' arguments rely on an adjudication of the land's trust status, the claims would likely be barred.

3. Sovereign Immunity

Defendants also argue that they are immune from suit based on the principle of sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). The Tribe cannot be sued without tribal consent that is unequivocally indicated. Rehner v. Rice, 678 F.2d 1340, 1351 (9th Cir. 1982), rev'd on other grounds. 463 U.S. 713 (1983). This immunity applies to tribal officials acting in their official capacity within the scope of their authority. Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir. 1983),cert. denied, 467 U.S. 1214 (1984). Plaintiffs argue, however, that "tribal immunity is not a bar to actions which allege conduct that is determined to be outside the scope of a tribe's sovereign powers." (Reply at 7, citing Snow, 709 F.2d at 1321.) If Plaintiffs' allegations are that the Tribal Court's Order exceeded its jurisdiction, Defendants would not be protected by sovereign immunity. Plaintiffs also argue that Defendants waived sovereign immunity by expressly consenting to be sued in this Court. (Reply at 6.) The mere fact that the Tribal Court recognized Plaintiffs' intent to file this action, however, does not amount to an express waiver of its immunity.

We do not decide whether Plaintiffs have shown that the Tribal Court lacked jurisdiction to issue the Order evicting Plaintiffs from the land at issue in this case. We are not, at this time, determining the status of title to the land. We merely hold that the evidence presented is insufficient to justify a preliminary injunction.

V. CONCLUSION

For the aforementioned reasons, Plaintiffs1 Motion for a Preliminary Injunction is DENIED.