                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 23 2014

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



                            FOR THE NINTH CIRCUIT


EXC INCORPORATED, a Nevada                       No. 12-16958
corporation, DBA D.I.A. Express
Incorporated, DBA Express Charters;              D.C. No. 3:10-cv-08197-JAT
CONLON GARAGE INCORPORATED,
a Colorado corporation; GO AHEAD
VACATIONS; NATIONAL                              MEMORANDUM*
INTERSTATE INSURANCE
COMPANY; RUSSELL J. CONLON,

              Plaintiffs - Appellees,

  v.

JAMIEN RAE JENSEN, individually, and
as parent and next friend of D.J.J., and as
Personal Representative of the Wrongful
Death Estate of Corey Johnson; CHAVIS
JOHNSON, individually, and as Personal
Representative of the Wrongful Death
Estate of Burch Corey Johnson;
MARGARET JOHNSON; FRANK
JOHNSON, individually, and as parents
and next friends of H.J. and D.J.;
FRANCESCA JOHNSON, individually;
JUSTIN JOHNSON, individually;
RAYMOND JENSEN, Sr., individually;
LOUISE R. JENSEN, individually;
NICOLE JENSEN, individually; RYAN


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JENSEN, individually; JUSTIN JENSEN,
individually; KATRINA JENSEN,
individually; RAYMOND JENSEN, Jr.,
individually; MURPHY JENSEN,
individually,

              Defendants - Appellants,

  And

KAYENTA DISTRICT COURT;
NAVAJO NATION SUPREME COURT;
JENNIFER BENALLY, Judge of the
Kayenta District Court,

              Defendants.


                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                     Argued and Submitted November 21, 2014
                             San Francisco, California

Before: RAWLINSON and FRIEDLAND, Circuit Judges, and MARSHALL,
Senior District Judge.**

      Appellants, members of the Jensen/Johnson family, appeal the district

court’s holding that the Navajo Nation tribal courts may not exercise adjudicatory

jurisdiction over a highway accident that occurred on a stretch of U.S. Highway


        **
              The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.

                                          1
160—an Arizona state highway—within the exterior boundaries of the Navajo

Reservation. We review determinations of tribal court jurisdiction de novo, and we

review factual findings for clear error. Water Wheel Camp Recreational Area, Inc.

v. LaRance, 642 F.3d 802, 808 (9th Cir. 2011).

      Appellants conceded at oral argument that the Navajo Nation has not

retained the right to exclude nonmembers on U.S. Highway 160. Consequently,

the highway is the equivalent of non-Indian fee land for jurisdictional purposes,

and this case is governed by Strate v. A-1 Contractors, 520 U.S. 438 (1997). See

Strate, 520 U.S. at 455-56.

      Under Strate, tribal jurisdiction is appropriate only if one of the two

exceptions articulated in Montana v. United States, 450 U.S. 544 (1981), applies.

Strate, 520 U.S. at 456. The first Montana exception covers “the activities of

nonmembers who enter consensual relationships with the tribe or its members,

through commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at

565. This exception does not apply to this case, because the unsigned permit

agreement—even if binding on Appellees—did not provide sufficient notice that

EXC would be subject to tribal court jurisdiction on U.S. Highway 160 to be a

basis for imputing consent. See Water Wheel, 642 F.3d at 818 (“For purposes of

determining whether a consensual relationship exists under Montana’s first


                                          2
exception, consent may be established ‘expressly or by [the nonmember’s]

actions.’” (citing Plains Commerce Bank v. Long Family Land & Cattle Co., 554

U.S. 316, 337 (2008)) (alteration in original)). The second Montana exception

allows tribes to exercise jurisdiction over nonmember conduct “when that conduct

threatens or has some direct effect on the political integrity, the economic security,

or the health or welfare of the tribe.” 450 U.S. at 566. A tort suit arising out of a

state highway accident does not implicate the second Montana exception. Strate,

520 U.S. at 459.

      For the foregoing reasons, we AFFIRM.




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