FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN WILBUR, JR., Trustee of 

the SALISH TRUST dba Trading Post

at March Point; MARVIN WILBUR,

SR.; JOAN WILBUR,

Plaintiffs-Appellants,

v.

GARY LOCKE, Governor of the No. 03-35911

State of Washington; FREDERICK

D.C. No. KIGA, Director, Revenue  CV-03-00873-RSL Department of the State of

Washington; GARY O’NEIL, OPINION

Assistant Director, Revenue

Department of the State of

Washington; REVENUE

DEPARTMENT OF THE STATE OF

WASHINGTON; STATE OF

WASHINGTON,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

May 6, 2005—Seattle, Washington

Filed September 9, 2005

Before: J. Clifford Wallace, Barry G. Silverman, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Wallace

12843
COUNSEL

James E. Lobsenz, Carney Badley Spellman, P.S., Seattle,

Washington, for the plaintiffs-appellants. 

Christine O. Gregoire, Attorney General, and David M.

Hankins, Assistant Attorney General, Olympia, Washington,

for the defendants-appellees. 

OPINION

WALLACE, Senior Circuit Judge: 

The plaintiffs sought relief from an anticipated contract

between the State of Washington and the Swinomish Indian

WILBUR v. LOCKE 12847
Tribe (Tribe) regarding taxation of cigarette sales by Indian

retailers. The district court held that the Tax Injunction Act

(TIA), 28 U.S.C. § 1341, barred the action and dismissed it.

The district court had jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1331 and 2201, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but on grounds

different from the district court. 

I.

Washington law authorizes the Governor “to enter into contracts concerning the sale of cigarettes” with certain Indian

tribes. Wash. Rev. Code § 43.06.450. Such contracts must

“provide for a tribal cigarette tax in lieu of all state cigarette

taxes and state and local sales and use taxes on sales of cigarettes in Indian country by Indian retailers,” but the tribe may

“allow an exemption for sales to tribal members.” Id.

§ 43.06.455(3). The contracts must also “provide that the

tribal cigarette tax rate be one hundred percent of the state

cigarette and state and local sales and use taxes within three

years of enacting the tribal tax.” Id. § 43.06.460. Tax revenue

retained by a tribe must be used for certain statutorily defined

“essential government services.” Id. § 43.06.455(8), (14)(a).

Thus, cigarette tax contracts must provide that the state will

not impose any tax, and must require a tribe to collect taxes

effectively equal to the previously imposed state taxes, and

use the revenue for essential government services. In addition,

cigarette tax contracts must include a number of provisions

regulating Indian retailers’ activities, such as provisions

requiring tax stamps, governing the purchase of cigarettes by

retailers, and ensuring compliance. Id. § 43.06.455(4), (5),

(7). 

Marvin Wilbur, Jr., Marvin Wilbur, Sr., and Joan Wilbur

are enrolled members of the Tribe and the operators of a retail

store located on trust land within the Swinomish Indian Reservation. In April 2003, the Wilburs filed an action against

various Washington officials and the Department of Revenue

12848 WILBUR v. LOCKE
(State) alleging that the State and the Tribe were negotiating

a cigarette tax contract. They alleged that the statutes governing cigarette tax contracts and the proposed agreement violated the Indian Commerce Clause, U.S. Const. art. I, § 8, cl.

3, the Sherman Antitrust Act, 15 U.S.C. §§ 7-276, the Treaty

of Point Elliot, 12 Stat. 927 (Jan. 22, 1855), and a host of

other constitutional and statutory provisions. The Tribe was

not named as a defendant. 

The complaint requested, among other relief, a declaratory

judgment that Wash. Rev. Code §§ 43.06.450, 43.06.455, and

43.06.460 are “void, unlawful and unenforceable as applied to

cigarettes transported, distributed, received or sold by Plaintiffs’ retail businesses located within the exterior boundaries

of the Swinomish reservation”; an injunction “preventing the

Defendants from enforcing any provision of the statutes or

contracting in any way with the Swinomish Tribe or any person or entity regarding a cigarette tax on any cigarettes to be

received or sold by Indian-owned retail businesses within the

exterior boundaries of the Swinomish Reservation”; and a

“declaration that any agreement or contract entered into by

the Swinomish Tribe with Defendants is invalid when

attempted to be imposed or any way applied to Plaintiffs.” 

The State filed a motion to dismiss the Wilburs’ complaint,

arguing that the Wilburs lacked standing, that the TIA and the

Eleventh Amendment barred the Wilburs’ action, that the

Tribe was an indispensable party, and that the complaint

failed to state a claim for which relief could be granted. While

that motion was pending, the State and the Tribe executed a

cigarette tax contract (Compact). However, because the parties did not inform the district court of this fact, the court was

under the impression that the Compact was still awaiting

approval by the Governor when it granted the State’s motion

to dismiss. Based largely on this misunderstanding, the court

concluded that the Tribe was not a necessary party. The court

asserted that the Wilburs “likely” lacked standing, but based

its decision on the proposition that the TIA deprived it of subWILBUR v. LOCKE 12849
ject matter jurisdiction over the Wilburs’ suit. Therefore the

district court dismissed the action without discussing the

State’s other arguments.

II.

The State urges us to affirm the district court’s ruling that

the TIA bars this action, or to affirm on one of the other

grounds that it argued in the district court or on the additional

ground that the case is now moot. See Wolfe v. Strankman,

392 F.3d 358, 362 (9th Cir. 2004) (“We may affirm the district court’s dismissal on any ground supported by the

record”). Because we now know facts, undisclosed to the district court, bringing into question whether the Tribe is an

indispensable party pursuant to Rule 19, we first determine

whether we may proceed directly to the Rule 19 issue or

whether we must first address jurisdictional issues. 

The Supreme Court has “adhered to the requirement that a

court address questions pertaining to its or a lower court’s

jurisdiction before proceeding to the merits.” Tenet v. Doe,

125 S. Ct. 1230, 1235 n.4 (2005), citing Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 94-95 (1998). However, 

[w]hile Steel Co. reasoned that subject-matter jurisdiction necessarily precedes a ruling on the merits,

the same principle does not dictate a sequencing of

jurisdictional issues. “[A] court that dismisses on . . .

non-merits grounds such as . . . personal jurisdiction,

before finding subject-matter jurisdiction, makes no

assumption of law-declaring power that violates the

separation of powers principles underlying Mansfield [C. & L. M. Ry. Co. v. Swan, 111 U.S. 379

(1884)] and Steel Company.” It is hardly novel for a

federal court to choose among threshold grounds for

denying audience to a case on the merits. Thus, as

the Court observed in Steel Co., district courts do not

12850 WILBUR v. LOCKE
overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds

without determining whether those claims fall within

their pendent jurisdiction, or abstain under Younger

v. Harris, 401 U.S. 37 . . . (1971), without deciding

whether the parties present a case or controversy. 

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85

(1999) (citations omitted); see also Kowalski v. Tesmer, 125

S. Ct. 564, 567 & n.2 (2004) (assuming existence of Article

III standing and addressing “alternative threshold question”

whether prudential requirements of standing were satisfied).

The difficulty here is that it is unclear whether a Rule 19

issue is the sort of “threshold” question to which a court may

directly proceed without first addressing other “threshold”

questions. We are unaware of any case discussing how Rule

19 fits within the Steel Co./Ruhrgas scheme, and the parties

have not briefed the issue. Moreover, it is not always easy to

determine whether a particular issue is the type of “threshold”

matter which, if decided adversely to the plaintiff, obviates

the need to address other threshold questions. Compare

Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F.3d 650,

652-54 (5th Cir. 2005) (holding that “district court erred in

dismissing the case on forum non conveniens grounds without

first determining whether it had subject matter jurisdiction”)

with Monegasque De Reassurances S.A.M. v. Nak Naftogaz of

Ukraine, 311 F.3d 488, 497-98 (2d Cir. 2002) (holding that

court could pass over question of statutory subject matter

jurisdiction and “go[ ] directly to [a] forum non conveniens

issue”); compare also Calderon v. Ashmus, 523 U.S. 740, 745

& n.2 (1998) (stating that court “must first address” whether

action presented Article III case or controversy before

addressing Eleventh Amendment issue) and Cox v. City of

Dallas, 256 F.3d 281, 303-04 (5th Cir. 2001) (stating that

Article III standing “must be examined before the Eleventh

Amendment”) with Snoeck v. Brussa, 153 F.3d 984, 988 (9th

Cir. 1998) (“Because the Eleventh Amendment bar concluWILBUR v. LOCKE 12851
sively ends this dispute we need not address the related issue

of [Article III] standing which the district court found plaintiffs lacked”) and Pederson v. La. State Univ., 213 F.3d 858,

866 (5th Cir. 2000) (addressing issues of Article III standing

and state sovereign immunity “in no particular order”). 

[1] Although there is no clear precedent, we conclude that

jurisdictional issues should be decided before reaching the

Rule 19 issue. This is so because questions of subject matter

jurisdiction, “i.e., the courts’ statutory or constitutional power

to adjudicate the case,” Steel Co., 523 U.S. at 89, must generally be decided before the merits. See Ruhrgas, 526 U.S. at

577 (“[A] federal court may not hypothesize subject-matter

jurisdiction for the purpose of deciding the merits”). Thus, we

must decide the questions of standing and mootness, both of

which “go[ ] to the Article III jurisdiction of this Court and

the courts below,” Arizonans for Official English v. Arizona,

520 U.S. 43, 67 (1997), as well as the question whether the

TIA barred subject matter jurisdiction. See Arkansas v. Farm

Credit Servs. of Cent. Ark., 520 U.S. 821, 825 (1997) (“We

have interpreted and applied the Tax Injunction Act as a

‘jurisdictional rule’ and a ‘broad jurisdictional barrier’ ”

(quoting Moe v. Confederated Salish & Kootenai Tribes of

Flathead Reservation, 425 U.S. 463, 470 (1976))). We have

also held that “we may not bypass [an Eleventh Amendment]

issue in favor of deciding the case on the merits.” Cardenas

v. Anzai, 311 F.3d 929, 934 n.2 (9th Cir. 2002), citing Cal.

Franchise Tax Bd. v. Jackson (In re Jackson), 184 F.3d 1046,

1048 (9th Cir. 1999). Thus, we will decide certain jurisdictional issues before turning to the Rule 19 question.

III.

“To satisfy Article III’s standing requirements, a plaintiff

must show (1) she has suffered an ‘injury in fact’ that is (a)

concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly traceable to

the challenged action of the defendant; and (3) it is likely, as

12852 WILBUR v. LOCKE
opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Bernhardt v. County of

Los Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002), quoting

Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 180-81 (2000). “Standing is a question of law

reviewed de novo.” Id. at 867. 

“A plaintiff has the burden of establishing the elements

required for standing, and ‘[f]or purposes of ruling on a

motion to dismiss for want of standing, both the trial and

reviewing courts must accept as true all material allegations

of the complaint, and must construe the complaint in favor of

the complaining party.’ ” Takhar v. Kessler, 76 F.3d 995,

1000 (9th Cir. 1996), quoting Warth v. Seldin, 422 U.S. 490,

501 (1975). 

“As with all questions of subject matter jurisdiction except

mootness, standing is determined as of the date of the filing

of the complaint . . . . The party invoking the jurisdiction of

the court cannot rely on events that unfolded after the filing

of the complaint to establish its standing.” Kitty Hawk Aircargo, Inc. v. Chao, ___ F.3d ___, 2005 WL 1692613, at *5

(5th Cir. July 20, 2005) (quotation marks and citations omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,

570 n.4 (1992) (stating that “ ‘[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the

complaint is filed’ ” and rejecting argument that events which

occurred after filing “retroactively created a redressability

(and hence a jurisdiction) that did not exist at the outset”

(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S.

826, 830 (1989) (emphasis in Lujan))). Thus, we examine

whether the Wilburs had standing under the facts extant at the

time of filing, when the Compact had not yet been signed. 

The complaint alleged anticipated injuries from two types

of provisions in the proposed Compact. The first anticipated

injury concerns provisions of the Compact imposing taxes on

sales to other tribe members and the second anticipated injury

WILBUR v. LOCKE 12853
relates to compliance with the regulatory scheme articulated

in Wash. Rev. Code § 43.06.455(4), (5), (7). We need not get

to the first if we conclude that the Wilburs had standing to

seek prospective relief to prevent the regulatory burden. We

therefore turn to that issue. 

[2] The regulations contemplated by the proposed Compact

would cause the Wilburs cognizable economic injury by forcing them to incur additional costs. See Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001) (“ ‘The Court

routinely recognizes . . . economic injury resulting from governmental actions . . . as sufficient to satisfy the Article III

‘injury in fact’ requirement’ ” (quoting Clinton v. City of New

York, 524 U.S. 417, 432-33 (1998))). The district court stated

that because the Compact had not been executed, the injury

was “likely” not “actual or imminent.” However, the Wilburs

sought a declaration that the challenged statutes were invalid,

an injunction preventing the consummation of any cigarette

tax contract pursuant to those statutes, and a declaration that

any contract actually executed was invalid. While plaintiffs

seeking injunctive and declaratory relief “must show that the

feared harm is ‘actual or imminent, not conjectural or hypothetical,’ ‘[o]ne does not have to await the consummation of

threatened injury’ before challenging a statute.” Canatella v.

State of California, 304 F.3d 843, 852 (9th Cir. 2002), quoting Lujan, 504 U.S. at 560, and Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). Nothing in the

complaint suggests that, at the time of filing, the Compact’s

consummation was not “ ‘certainly impending.’ ” Lujan, 504

U.S. at 564 n.2, quoting Whitmore v. Arkansas, 495 U.S. 149,

158 (1990). On the contrary, the complaint alleged that the

State and Tribe were in negotiations and that the Compact

would be executed “within the near future.” At the pleading

stage, we accept this allegation as true. See Takhar, 76 F.3d

at 1000. Thus, the prospect of injury to the Wilburs from the

proposed Compact was sufficiently imminent to satisfy the

requirement of an injury in fact. 

12854 WILBUR v. LOCKE
[3] The causation and redressability requirements are also

satisfied. True, the Wilburs’ injury was partly dependent on

the actions of the Tribe, in the sense that the Compact could

not be executed without its participation. See Yesler Terrace

Cmty. Council v. Cisneros, 37 F.3d 442, 446 (9th Cir. 1994)

(“[I]t usually is difficult to establish causation and redressibility when a plaintiff’s alleged injury depends on the actions

of a third party not before the court”). But the opposite is also

true: had the State not enacted statutes authorizing cigarette

tax contracts and negotiated with the Tribe, the prospect of

injury from the proposed Compact would not have materialized. Thus, the Wilburs’ injuries are adequately traceable to

the State’s actions. See Artichoke Joe’s v. Norton, 216 F.

Supp. 2d 1084, 1104 (E.D. Cal. 2002) (where plaintiffs sued

Governor and sought declaration that gaming compacts

between state and Indian tribes violated federal law, causation

was satisfied because “the Governor approved the compacts

that gave rise to the plaintiffs’ injuries”), aff’d, 353 F.3d 712,

719 n.9 (9th Cir. 2003) (agreeing with district court’s standing

analysis). Indeed, we have held that causation was satisfied at

the pleading stage where the connection between the defendants’ conduct and the plaintiff’s injury was more tenuous

than that involved here. See Bernhardt, 279 F.3d at 869

(where plaintiff alleged that “[a]s a direct result of the [County’s policy of settling civil rights actions for a lump sum

including attorney fees], plaintiff has been unable to obtain a

civil rights lawyer,” plaintiff’s “pleading adequately established the causation element required for standing”). 

[4] Redressability likewise is satisfied. “Plaintiffs need not

demonstrate that there is a ‘guarantee’ that their injuries will

be redressed by a favorable decision. . . . [P]laintiffs ‘must

show only that a favorable decision is likely to redress [their

injuries], not that a favorable decision will inevitably redress

[their injuries].’ ” Graham v. FEMA, 149 F.3d 997, 1003 (9th

Cir. 1998) (citation omitted). The Wilburs’ requests for prospective relief, if granted, would have been likely to redress

WILBUR v. LOCKE 12855
the injury from the anticipated Compact. We hold that the

requirements of Article III standing are satisfied.

IV.

The State contends that the case is moot because the Wilburs sought an injunction barring the State from consummating the Compact with the Tribe, and the Compact has now

been executed. However, the Wilburs sought not only such an

injunction, but also declaratory relief voiding several statutes

and any cigarette tax contract executed by the State and Tribe.

“[T]he controversy regarding [these requests for relief] is as

‘live’ now as it was when [the Wilburs] first sought relief.”

S. Pac. Transp. Co. v. Pub. Util. Comm’n, 9 F.3d 807, 810

(9th Cir. 1993). Thus, although the Wilburs’ request for an

injunction might be moot, this does not prevent us from considering other requests for relief which are not moot. See

Powell v. McCormack, 395 U.S. 486, 496 n.8 (1969) (“Where

several forms of relief are requested and one of these requests

subsequently becomes moot, the Court has still considered the

remaining requests”); S. Pac. Transp. Co., 9 F.3d at 810

(although one claim was moot, court “may address the

remaining, live claims”).

V.

The district court held that the TIA deprived it of subject

matter jurisdiction over the Wilburs’ action. We review the

district court’s dismissal for lack of subject matter jurisdiction, as well as its interpretation of a federal statute, de novo.

See May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d

1261, 1265 (9th Cir. 2004). The TIA provides: 

The district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any tax

under State law where a plain, speedy and efficient

remedy may be had in the courts of such State. 

12856 WILBUR v. LOCKE
28 U.S.C. § 1341. 

[5] In dismissing the action, the district court did not conclude that the Wilburs sought to “enjoin, suspend or restrain

the assessment, levy or collection” of a tax under Washington

law. Rather, the court held that the “anticipated tribal tax

arises under state law for purposes of the Tax Injunction Act”

because, among other reasons, “[i]n the absence of [the anticipated Compact] Indian retailers selling cigarettes to individuals who are not members of the Tribe could be required to

collect state taxes on such transactions.” See United States v.

Baker, 63 F.3d 1478, 1489 (9th Cir. 1995) (“[T]he right of a

state to impose and enforce a tax on cigarettes sold by Indians

to nontribal members is . . . clearly established”). 

The district court’s focus on the anticipated Tribal tax

misses the point. Even accepting the premise that the Wilburs’

suit sought to “enjoin, suspend or restrain the assessment,

levy or collection” of the Tribal tax (which the Wilburs dispute), the anticipated Tribal tax was not a State tax. If the

Tribe imposed a tax independently of any contract with the

State and retained the revenues, the TIA would not apply to

a suit seeking to “enjoin, suspend or restrain the assessment,

levy or collection” of that tax for the obvious reason that the

Tribe is not a state. Cf. Bluebeard’s Castle, Inc. v. Gov’t of

the Virgin Islands, 321 F.3d 394, 397 & n.5 (3d Cir. 2003)

(TIA does not apply to Virgin Islands because it is not a

state). We are aware of no authority for the proposition that

a tax under Tribal law is transformed into a tax “under state

law” simply because the Tribe agrees to enact that law in

exchange for a promise by the State not to levy similar taxes.

Such an agreement does not alter the fact that the Tribe

remains the taxing authority and the sovereign to which tax

payments are remitted. Thus, the question is not whether the

Wilburs sought to “enjoin, suspend or restrain the assessment,

levy or collection” of a Tribal tax, but whether they sought to

“enjoin, suspend or restrain the assessment, levy or collection” of a Washington tax. 

WILBUR v. LOCKE 12857
[6] We are assisted by the Supreme Court’s decision in

Hibbs v. Winn, 124 S. Ct. 2276 (2004). In Hibbs, the plaintiffs

challenged a state law authorizing certain tax credits, and

sought to enjoin the law’s operation, on Establishment Clause

grounds. See id. at 2281. The Court rejected the position that

the TIA “prevent[s] federal-court interference with all aspects

of tax administration,” id. at 2288 (quotation marks omitted),

and held that the TIA did not bar the plaintiffs’ action “because that action, if successful, ‘would result in the state’s

receiving more funds that could be used for the public benefit.’ ” May Trucking, 388 F.3d at 1267, quoting Hibbs, 124

S. Ct. at 2283. Thus, “[a]fter Hibbs, the dispositive question

in determining whether the Act’s jurisdictional bar applies is

whether ‘[f]ederal-court relief . . . would have operated to

reduce the flow of state tax revenue.’ ” Id., quoting Hibbs,

124 S. Ct. at 2288. Although Hibbs had not been decided at

the time of the district court’s decision, our decision which

Hibbs affirmed, Winn v. Killian, 307 F.3d 1011 (9th Cir.

2002), had been. 

[7] Here, the Wilburs sought a declaration of the invalidity

of the statutes governing cigarette tax contracts, an injunction

preventing the State from entering into any contract, and a

declaration that any agreement actually executed was void.

This relief would not have operated to reduce the flow of

Washington’s tax revenues; instead, it would have prevented

the State from agreeing not to impose a tax. Thus, the district

court erroneously dismissed the case on TIA grounds. 

The State argues that the TIA applies because the cigarette

tax contract scheme “benefits the State by saving the State

resources in enforcing collection of the state taxes,” and

points to a legislative finding that cigarette tax contracts will

“enhance enforcement of the state’s cigarette tax law, ultimately saving the state money and reducing conflict.” Wash.

Rev. Code § 43.06.450 (emphasis added). Because the Wilburs’ action, if successful, might harm the public fisc by

depriving the State of the benefits of cigarette tax contracts,

12858 WILBUR v. LOCKE
the State submits that it should be barred by the TIA. But the

TIA proscribes only those actions which would operate to

decrease a state’s tax revenue, see May Trucking, 388 F.3d at

1267, not any lawsuit which might place financial burdens

upon the State. Whatever impact the Wilburs’ action might

have on the State’s litigation and enforcement costs, it surely

will not reduce the State’s tax revenues. Further, the State’s

prediction about how this action might affect the State’s

financial bottom line in the future is too speculative to circumvent the holding of Hibbs. 

Nor do principles of comity bar this lawsuit. The Supreme

Court has relied on such principles “to preclude original

federal-court jurisdiction only when plaintiffs have sought

district-court aid in order to arrest or countermand state tax

collection.” Hibbs, 124 S. Ct. at 2289 n.9. The Wilburs seek

no such relief.

VI.

The State also argues that the Eleventh Amendment precludes the Wilburs’ action, another jurisdictional hurdle we

must discuss, even though the district court did not address

this argument. 

“The Eleventh Amendment bars suits against a state or its

agencies, regardless of the relief sought, unless the state

unequivocally consents to a waiver of its immunity.” Yakama

Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d

1241, 1245 (9th Cir. 1999). The Wilburs concede that the

State has not waived its immunity and that all claims against

the state and its agency, the Department of Revenue, must

therefore be dismissed. 

However, the Wilburs properly contend that the Eleventh

Amendment does not bar their claims for declaratory and

injunctive relief against the Governor and the Director and

Assistant Director of the Department of Revenue. “Since the

WILBUR v. LOCKE 12859
Supreme Court’s decision in Ex parte Young, 209 U.S. 123

. . . (1908), courts have recognized an exception to the Eleventh Amendment bar for suits for prospective declaratory and

injunctive relief against state officers, sued in their official

capacities, to enjoin an alleged ongoing violation of federal

law.” Agua Caliente Band of Cahuilla Indians v. Hardin, 223

F.3d 1041, 1045 (9th Cir. 2000); see also Los Angeles County

Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (“[T]he

Eleventh Amendment does not bar actions seeking only prospective declaratory or injunctive relief against state officers

in their official capacities”). 

[8] “[I]n determining whether ‘the doctrine of Ex Parte

Young avoids an Eleventh Amendment bar to suit, a court

need only conduct a straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.’ ” ACS of

Fairbanks, Inc. v. GCI Communication Corp., 321 F.3d 1215,

1216-17 (9th Cir. 2003) (Order), quoting Verizon Md., Inc. v.

Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002). The complaint

alleged that the challenged statutes authorize the state to enter

into agreements which violate federal law and, accordingly,

sought a declaration that the statutes were invalid, an injunction preventing the state from utilizing the authority granted

by those statutes to enter into any agreement, and a declaration that any agreement entered was invalid. The complaint

therefore “alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Id.; see

also Artichoke Joe’s, 216 F. Supp. 2d at 1109-11 (Ex Parte

Young permitted claim against Governor seeking declaration

that gaming compacts between state and Indian tribes violated

federal law). Thus, the State of Washington and its Department of Revenue must be dismissed but not the individual

government officers.

VII.

With these jurisdictional issues behind us, we can now

address the Rule 19 question. In the district court, the State

12860 WILBUR v. LOCKE
argued that the action should be dismissed pursuant to Federal

Rule of Civil Procedure 12(b)(7) because the Tribe is an

indispensable party pursuant to Rule 19. The district court

held that the Tribe was not a necessary party. We generally

review for an abuse of discretion the district court’s decision

regarding joinder, but review de novo any legal conclusions

underlying that decision. See Disabled Rights Action Comm.

v. Las Vegas Events, Inc., 375 F.3d 861, 879 (9th Cir. 2004).

Application of Rule 19 involves “three successive inquiries.” EEOC v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th

Cir. 2005). 

First, the court must determine whether a nonparty

should be joined under Rule 19(a). We and other

courts use the term “necessary” to describe those

“[p]ersons to [b]e [j]oined if [f]easible.” . . . . 

If an absentee is a necessary party under Rule

19(a), the second stage is for the court to determine

whether it is feasible to order that the absentee be

joined. . . . 

Finally, if joinder is not feasible, the court must

determine at the third stage whether the case can

proceed without the absentee, or whether the absentee is an “indispensable party” such that the action

must be dismissed. . . . Rule 19 uses “the word

‘indispensable’ only in a conclusory sense, that is, a

person is ‘regarded as indispensable’ when he cannot

be made a party and, upon consideration of the factors [in Rule 19(b)], it is determined that in his

absence it would be preferable to dismiss the action,

rather than to retain it.” 

Id. at 779-80 (citations omitted). We address each of these

inquiries in turn.

WILBUR v. LOCKE 12861
A.

[9] The State argues that the Tribe is a “necessary” party

because the Tribe “claims an interest relating to the subject of

the action and is so situated that the disposition of the action

in the [Tribe’s] absence may . . . as a practical matter impair

or impede the [Tribe’s] ability to protect that interest.” Fed.

R. Civ. P. 19(a)(2)(i). In deciding whether Rule 19(a)(2)(i) is

satisfied, we “must determine whether the absent party has a

legally protected interest in the suit,” and, if so, whether “that

interest will be impaired or impeded by the suit.” Makah

Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). 

The district court, laboring under the mistaken impression

that the Compact was still awaiting approval from the Governor, concluded that “[b]ecause the subject of this action does

not affect the Tribe’s interest in an existing, enforceable

agreement, . . . the interest claimed on behalf of the tribe is

[not] ‘legally protected.’ ” We need not determine whether the

court correctly held that the Tribe had no “legally protected”

interest in this action prior to execution of the Compact, but

instead determine whether the Tribe has such an interest now

that we are aware that the Compact was in effect at the time

of the district court decision. Because Federal Rule of Evidence 201 permits us to “take judicial notice of the records of

state [entities] and other undisputed matters of public record,”

we may take notice of the executed Compact even though it

was not in the district court record. Disabled Rights Action

Comm., 375 F.3d at 866 n.1 (taking notice of licensing agreements to which state agency was a party that had not been

entered into district court record). 

[10] Here, the Wilburs must establish the illegality of the

Compact in order to succeed on the merits of any of their

claims. Because the Tribe has an interest in retaining the

rights granted by the Compact, the requirement of a “legally

protected” interest is satisfied. See Dawavendewa v. Salt

River Project Agric. Improvement & Power Dist., 276 F.3d

12862 WILBUR v. LOCKE
1150, 1156-57 (9th Cir. 2002) (holding that tribe was necessary party under Rule 19(a)(2) where tribe “claim[ed] a

legally protected interest in its contract rights with [the defendant]”). 

[11] In addition, disposition of this action in the Tribe’s

absence may impair or impede the Tribe’s ability to protect its

interest. If the Compact is invalidated, the State would be

released from its contractual obligation to refrain from taxing

cigarette sales by Indian retailers to non-Indians and nonTribe members. If the State resumed imposing such taxes, the

Tribe would be forced to choose between double-taxing its

own retailers or foregoing tax revenue for essential government services. Thus, “the instant litigation threatens to impair

the [Tribe’s] contractual interests, and . . . its fundamental

economic relationship with [the State].” Id. at 1157. As we

stated in Dawavendewa, it is a “fundamental principle” that

“a party to a contract is necessary, and if not susceptible to

joinder, indispensable to litigation seeking to decimate that

contract.” Id.; see also Manybeads v. United States, 209 F.3d

1164, 1166 (9th Cir. 2000) (where plaintiff sought to

“undo[ ]” agreements to which tribe was a party, tribe “qualifie[d] as a necessary party under both parts of Rule 19(a)”);

Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996)

(where plaintiff’s action would affect agreements to which

tribes were parties, tribes were necessary pursuant to Rule

19(a)(2)(i)); Northrop Corp. v. McDonnell Douglas Corp.,

705 F.2d 1030, 1044 (9th Cir. 1983) (“[A]ll parties who may

be affected by a suit to set aside a contract must be present”);

Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir.

1975) (“No procedural principle is more deeply imbedded in

the common law than that, in an action to set aside a lease or

a contract, all parties who may be affected by the determination of the action are indispensable”); 4 James Wm. Moore et

al., Moore’s Federal Practice § 19.06[4] (3d ed. 2005) (“As

a general rule, all parties to a contract will be necessary in an

action to set aside the contract”). 

WILBUR v. LOCKE 12863
The Wilburs argue that the Tribe is not necessary because

the State can adequately represent its interest. See Washington

v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999) (“As a practical

matter, an absent party’s ability to protect its interest will not

be impaired by its absence from the suit where its interest will

be adequately represented by existing parties to the suit”). We

have held, however, that absent tribes’ interests were not adequately represented by a state in a case similar to this one. In

American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015,

1018 (9th Cir. 2002), plaintiffs “challenge[d] the legality of

the [Arizona] Governor’s actions in negotiating new gaming

compacts with Indian tribes, or in extending the tribes’ existing compacts.” We held that the Governor could not adequately represent the absent tribes because, among other

reasons, “the State and the tribes have often been adversaries

in disputes over gaming, and the State owes no trust duty to

the tribes.” Id. at 1023 n.5. Here, too, the Wilburs challenge

the state’s actions in entering into agreements with the Tribe;

the Tribe and the state have been adversaries in disputes over

the subject of those agreements in the past (indeed, resolution

of a “long-standing disagreement” regarding cigarette taxation

was one of purposes recited in the Compact’s preamble); and

the state owes the Tribe no trust duty that might ensure vindication of the Tribe’s interest. Hull thus requires us to reject

the Wilburs’ contention. 

[12] The Wilburs argue, however, that the state is an adequate representative because the state and the Tribe “have the

exact same interest in seeing to it that their contract is not

invalidated.” This argument assumes too much. Virtually any

party to a contract would prefer to see that contract preserved.

Under the Wilburs’ logic, one seeking to nullify an agreement

could simply sue one of the signatories and then argue that the

remaining signatories were not necessary because the existing

defendant would “adequately represent” their interest in

defending the contract. However, the general rule is exactly

the opposite: all parties to a contract are necessary in litigation

seeking to “decimate” that contract. See Dawavendewa, 276

12864 WILBUR v. LOCKE
F.3d at 1157. There is no reason to depart from that general

rule in this case. We conclude that the State cannot adequately

represent the interests of the Tribe, and thus the Tribe is a

necessary party pursuant to Rule 19(a)(2)(i). 

B.

[13] We now address whether joinder is feasible. “Federally recognized Indian tribes enjoy sovereign immunity from

suit, and may not be sued absent an express and unequivocal

waiver of immunity by the tribe or abrogation of tribal immunity by Congress.” Id. at 1159 (citations omitted). The Wilburs offer no persuasive argument that the Tribe’s immunity

has either been waived or abrogated. Accordingly, joinder is

not feasible. See id.

C.

[14] We now address “whether in equity and good conscience the action should proceed among the parties before it,

or should be dismissed, the absent person being thus regarded

as indispensable.” Fed. R. Civ. P. 19(b). In making this determination, we consider four issues: 

first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or

those already parties; second, the extent to which, by

protective provisions in the judgment, by the shaping

of relief, or other measures, the prejudice can be

lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate;

fourth, whether the plaintiff will have an adequate

remedy if the action is dismissed for nonjoinder. 

Id.

[15] The first three tests point toward dismissal. “[T]he first

factor of prejudice, insofar as it focuses on the absent party,

WILBUR v. LOCKE 12865
largely duplicates the consideration that made a party necessary under Rule 19(a): a protectible interest that will be

impaired or impeded by the party’s absence.” Hull, 305 F.3d

at 1024-25; see also Dawavendewa, 276 F.3d at 1162 (“The

prejudice to the Nation stems from the same impairment of

legal interests that makes the Nation a necessary party under

Rule 19(a)(2)(i)”). If the Compact is invalidated in the Tribe’s

absence, the Tribe will be prejudiced to a great extent. 

As to the second test, it is not possible to lessen or avoid

any prejudice by the shaping of relief or protective provisions

in the judgment. The Wilburs want nothing less than nullification of the Compact. If they succeed, the Tribe will be

deprived of the contractual benefits for which it bargained.

Moreover, although the Wilburs stress that the Tribe could

have intervened if it wished, “we cannot require the [Tribe]

to intervene to minimize the potential prejudice, since intervention would require a waiver of sovereign immunity.” Pit

River Home & Agric. Coop. Ass’n v. United States, 30 F.3d

1088, 1102 (9th Cir. 1994). 

The third test, whether a judgment rendered in the Tribe’s

absence will be adequate, also “does not favor the plaintiffs,”

because if the Compact is invalidated, the Tribe’s “protectible

interests [would be] impaired.” Hull, 305 F.3d at 1025; see

also Dawavendewa, 276 F.3d at 1162 (no partial relief adequate when “[a]ny type of injunctive relief necessarily results

in . . . prejudice to [absent tribe]”); Pit River Home, 30 F.3d

at 1102 (adequate judgment not possible when plaintiff’s

claims could not be addressed without prejudicing absent

party). 

[16] The fourth test supports proceeding in the Tribe’s

absence, as it is unclear whether the Wilburs will have an adequate remedy if the action is dismissed. Nonetheless, even

assuming the Wilburs have no other forum in which to pursue

a remedy, we have “regularly held that the tribal interest in

immunity overcomes the lack of an alternative remedy or

12866 WILBUR v. LOCKE
forum for the plaintiffs.” Hull, 305 F.3d at 1025, citing Dawavendewa, 276 F.3d at 1162; see also Clinton v. Babbitt, 180

F.3d 1081, 1090 (9th Cir. 1999); Kescoli, 101 F.3d at 1311;

Pit River Home, 30 F.3d at 1102; Quileute Indian Tribe v.

Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994); Confederated

Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d

1496, 1500 (9th Cir. 1991); Verity, 910 F.2d at 560; Lomayaktewa, 520 F.2d at 1326-27. Thus, a balance of the four tests

in Rule 19(b) supports dismissal of the action. 

Undeterred, the Wilburs contend that this case falls within

the “public rights” exception to joinder rules. “Under this

exception, even if the [Tribe is a] necessary part[y], [it is] not

deemed indispensable and, consequently, dismissal is not

warranted.” Kescoli, 101 F.3d at 1311. In Kescoli, we

explained that, although “[t]he contours of the public rights

exception have not been clearly defined,” there are two

requirements that must be satisfied before the exception may

properly be invoked. Id. First, “the litigation must transcend

the private interests of the litigants and seek to vindicate a

public right.” Id. Second, “although the litigation may

adversely affect the absent parties’ interests, the litigation

must not ‘destroy the legal entitlements of the absent parties.’ ” Id., quoting Conner v. Burford, 848 F.2d 1441, 1459

(9th Cir. 1988); see also Shermoen v. United States, 982 F.2d

1312, 1319 (9th Cir. 1992) (“[T]he public rights exception to

joinder rules is an acceptable intrusion upon the rights of

absent parties only insofar as the adjudication does not

destroy the legal entitlements of the absent parties” (quotation

marks, alterations and citation omitted)). We need not decide

whether the first requirement is satisfied, because the second

is not. 

The Tribe would lose valuable contractual benefits if the

Compact was held invalid. This threat to the Tribe’s contractual interests precludes application of the public rights exception. See Kettle Range Conservation Group v. United States

Bureau of Land Mgmt., 150 F.3d 1083, 1087 (9th Cir. 1998)

WILBUR v. LOCKE 12867
(where plaintiffs sought rescission of contract pursuant to

which land had been transferred to absent private parties,

court had “no doubt that an order declaring the executed portion of the land exchange void ab initio would ‘destroy the

legal entitlements of the absent parties’ ” (citation omitted));

Kescoli, 101 F.3d at 1311-12 (public rights exception inapplicable because, among other reasons, rights of absent tribes’

members under lease agreements “could be significantly

affected” if action proceeded in tribes’ absence).

D.

Finally, the Wilburs contend that the First Amendment

right to “petition the government for a redress of Grievances,”

U.S. Const. amend. I, cl. 6, prohibits, or at least weighs

against, dismissal of this action for nonjoinder pursuant to

Rule 19. In support of this novel argument, the Wilburs cite

two sets of cases. First, they rely upon two state court cases

suggesting that the lack of an alternative forum prevents dismissal of an action for nonjoinder even where an absent tribe

has not waived its sovereign immunity. See Panzer v. Doyle,

680 N.W.2d 666, 682-83 (Wis. 2004); Saratoga County

Chamber of Commerce, Inc. v. Pataki, 798 N.E.2d 1047,

1057-59 (N.Y. 2003). These decisions, however, do not apply

Federal Rule of Civil Procedure 19 and do not even discuss

the Petition Clause. Rather, they apply state law governing

joinder of indispensable parties. Unlike state courts applying

state law, we are bound by our own decisions interpreting federal Rule 19. 

Second, the Wilburs rely on cases stating the general proposition that “the right of access to the courts is an aspect of

the First Amendment right to petition the Government for

redress of grievances.” Bill Johnson’s Rests., Inc. v. NLRB,

461 U.S. 731, 741 (1983). This does not aid the Wilburs,

however, for the right of access to the courts is not absolute.

See Hudson v. Palmer, 468 U.S. 517, 523 (1984) (“[T]he constitutional right to petition the Government for redress of their

12868 WILBUR v. LOCKE
grievances . . . includes a reasonable right of access to the

courts” (emphasis added)). Moreover, the right must be exercised “within the limits . . . of [the courts’] prescribed procedures.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404

U.S. 508, 515 (1972). 

It is important to put this argument in context. Rule 19(b)

itself requires consideration of “whether the plaintiff will have

an adequate remedy if the action is dismissed for nonjoinder”

as one of four tests relevant to the determination whether an

action should be dismissed. Fed. R. Civ. P. 19(b). What the

Wilburs are arguing, then, is that the Petition Clause requires

us to give the lack of an alternative forum more weight in the

Rule 19(b) calculus than we have in our prior cases. Although

our prior decisions did not specifically discuss the relevance

of the Petition Clause to the Rule 19 analysis, we do not

believe our colleagues ignored the obvious constitutional

implications of depriving a party of a forum in which to pursue its claims. Our prior cases turn not on a disrespect for a

plaintiff’s right of access to the courts, but “on the fact that

society has consciously opted to shield Indian tribes from suit

without congressional or tribal consent.” Quileute Indian

Tribe, 18 F.3d at 1461 (quotation marks and citation omitted).

The Wilburs’ invocation of the Petition Clause does not compel a different result. 

Lastly, the Wilburs argue that, if we hold that dismissal

pursuant to Rule 19 is proper, we should allow them to amend

their complaint to name a Tribal official as a defendant. That

issue is not before us because the Wilburs never sought to

amend their complaint in the district court and they raise this

issue for the first time in their reply brief. See Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 916 n.1 (9th

Cir. 2002) (declining request for leave to amend complaint

because it was not made in district court); Black v. Payne, 591

F.2d 83, 89 (9th Cir. 1979) (denying leave to amend because,

among other reasons, request was made for first time in reply

brief on appeal). We express no opinion on whether the Tribal

WILBUR v. LOCKE 12869
official could have been sued and, if so, whether this would

have enabled the suit to proceed in the Tribe’s absence. 

DISMISSAL AFFIRMED.

12870 WILBUR v. LOCKE