                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 04 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THE KALISPEL TRIBE OF INDIANS,                   No. 08-36022
a Native American tribe,
                                                 D.C. No. 2:03-cv-00423-EFS
             Plaintiff - Appellee,

  v.                                             MEMORANDUM *

SPOKANE RACEWAY PARK, INC.,
a Washington corporation; et al.,

             Defendants,

 and

ORVILLE MOE; et al.,

             Defendants - Appellants.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                           Submitted November 6, 2009 **
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: ALARCÓN, KLEINFELD and CLIFTON, Circuit Judges.

       Orville and Deonne Moe appeal the district court’s summary judgment

disposing of Orville Moe’s counterclaims and the district court’s denial of the

Moes’ motion to reconsider granting summary judgment against them for damages.

We affirm.

       The district court had jurisdiction over the claims despite the Moes’

assertion otherwise. See Oneida Indian Nation of N.Y. State v. Oneida County, New

York, 414 U.S. 661, 677 (1974); see also Mescalero Apache Tribe v. Burgett

Floral Co., 503 F.2d 336, 338 (10th Cir. 1974). While no party challenged our

appellate jurisdiction, we examined that question independently and determined

that we have jurisdiction. Although the district court never finally resolved the

Tribe’s claims against the Moes for a permanent injunction and for quiet title, it is

clear that the district court intended to dispose of all the claims before it, and it is

clear from the Tribe’s filings that it has treated this case as finally decided in the

district court and has abandoned any unresolved claims. See Lovell v. Chandler,

303 F.3d 1039, 1049–50 (9th Cir. 2002).

       The district court properly held that Orville Moe’s counterclaims for tort

damages are barred by tribal sovereign immunity. The Kalispel Tribe made no




                                             2
express and unequivocal waiver to its immunity from those claims. See United

States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992).

      We need not decide whether the Tribe waived its immunity to Orville Moe’s

counterclaim for contract damages as a third-party beneficiary, because Moe failed

to present a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). Neither the Joint Venture Agreement nor any other document specified the

amount of compensation board members were to receive or how that amount was

to be determined. Given the lack of details in the agreement, Moe had to produce

evidence of what compensation was due and that the Tribe was responsible for that

compensation. He failed to do so.

      The board-meeting minutes suggest that the Tribe bore no responsibility for

compensating Moe. Moe’s argument that the lawyers identified in the minutes

were not empowered to amend the Joint Venture Agreement is beside the point.

The discussion as reported in the minutes does not appear to have been intended or

treated as an amendment to that agreement. Rather, the minutes appear to reflect

how those involved—including Moe—interpreted the agreement. Moe was present

at the meeting and apparently voiced no disagreement or objection. Most

importantly, he submitted no evidence in favor of a contrary interpretation of the

agreement.


                                          3
      The Moes failed to comply with the district court’s local rules in opposing

the Tribe’s motion for summary judgment for damages. They submitted an

inadequate response that was four weeks late. District courts have broad discretion

in interpreting and applying their local rules. See Farrakhan v. Washington, 338

F.3d 1009, 1013 n.7 (9th Cir. 2003); Delange v. Dutra Construction Co., 183 F.3d

916, 919 n.2 (9th Cir. 1999). The district court did not abuse its discretion when it

accepted the facts upon which the Tribe based its motion as “admitted to exist

without controversy.” See E.D. Wash. L.R. 56.1(d). Nor did it abuse its discretion

when it denied the Moes’ attempt to raise arguments in a motion to reconsider that

should have been raised in a proper response to the Tribe’s motion for summary

judgment. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

F.3d 873, 880 (9th Cir. 2009).

      The judgment of the district court is AFFIRMED. Because we disagree that

the Moes’ appeal was frivolous, the Tribe’s motion for sanctions is DENIED.




                                           4
