                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 05 2013

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID M. EVANS, an individual; et al.,           No. 13-35003

              Plaintiffs - Appellants,           D.C. No. 4:12-cv-00417-BLW

  v.
                                                 MEMORANDUM*
SHOSHONE-BANNOCK LAND USE
POLICY COMMISSION; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                     Argued and Submitted November 5, 2013
                                Portland, Oregon

Before: M. SMITH and HURWITZ, Circuit Judges, and MAHAN, District Judge.**

       Plaintiffs-Appellants (collectively, Evans) seek to enjoin Defendants-

Appellees (collectively, the Tribes) from challenging Evans’ construction of a

single-family house on non-Indian fee land in tribal court. Evans appeals from the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
district court’s orders (1) denying his motion to strike the majority of the Tribes’

evidentiary submissions; (2) denying his motion for a preliminary injunction; and

(3) dismissing this action without prejudice for failure to exhaust tribal remedies.

For the reasons below, we affirm the district court’s denial of Evans’ motion to

strike. For the reasons set forth in an opinion filed contemporaneously with this

memorandum disposition, we otherwise reverse the judgment of the district court

and remand for further proceedings.

      Evans first contends that the district court should have excluded most of the

Tribes’ evidence because the Tribes presented it with their reply brief, in purported

violation of Federal Rule of Civil Procedure 56 and Local Civil Rule 7.1 of the

District of Idaho. But the district court cured any prejudice by granting Evans the

opportunity to rebut this evidence. See Harper v. City of Los Angeles, 533 F.3d

1010, 1030 (9th Cir. 2008); see also Houston v. Bryan, 725 F.2d 516, 517–18 (9th

Cir. 1984). Evans’ argument that this rebuttal opportunity was worthless because

the district court “had already reached a conclusion of the case’s outcome,” is

entirely speculative, and we reject it.

      Evans next argues that the district court should have excluded much of the

Tribes’ evidence because, inter alia, (1) it is irrelevant; (2) the declarants lack

adequate personal knowledge; and (3) the Tribes failed to provide supporting


                                            2
documentation. Contrary to Evans’ argument, however, the challenged evidence

has some “tendency to make a fact more or less probable than it would be without

the evidence.” Fed R. Evid. 401. Further, the declarants’ avowed personal

experience provides an adequate basis for their testimony, see Fed. R. Evid. 602,

and it is not clear that any failure to provide adequate documentation prejudiced

Evans. The district court similarly did not abuse its “broad discretion” in rejecting

the remainder of Evans’ evidentiary challenges. Harper, 533 F.3d at 1030.

      For the foregoing reasons, we affirm the district court’s denial of Evans’

motion to strike. For the reasons set forth in the opinion filed contemporaneously

with this memorandum disposition, we otherwise reverse the judgment of the

district court and remand for further proceedings. Defendants-Appellees shall bear

costs on appeal. See Fed. R. App. P. 39(a)(4).

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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