251 P.3d 183 (2010)
2011 OK CIV APP 26
Patrick MALLOY, III, As Bankruptcy Trustee for Constance Quarles, Spouse of James Q. Quarles, Plaintiff/Appellant,
v.
George B. CALDWELL, M.D. and Emergency Care, Inc. d/b/a Medcenter II of Tulsa, Inc., Defendants/Appellees.
No. 107,318. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.
Court of Civil Appeals of Oklahoma, Division No. 4.
December 2, 2010.
Certiorari Denied February 7, 2011.
*184 Stephen J. Capron, Capron & Edwards, PLLC, Tulsa, OK, for Plaintiff/Appellant.
Matthew B. Free, Dan Ernst, Amy Kempfort, Best & Sharp, Tulsa, OK, for Defendants/Appellees.
KEITH RAPP, Judge.
¶ 1 The trial court plaintiff, Patrick Malloy, III, (Malloy) as bankruptcy trustee for Constance Quarles (Quarles), spouse of James Q. Quarles, deceased, appeals a judgment entered on the jury verdict in favor of the defendants, George B. Caldwell, M.D. (Caldwell) and Emergency Care, Inc.(Emergency Care).[1]

BACKGROUND
¶ 2 This case involves a claim of medical malpractice against Caldwell arising out of treatment provided to the decedent James Q. Quarles in 2000. The issues include malpractice resulting in death and drug overdose as an alternative cause of death. The case was tried to a jury and a verdict was rendered in favor of the defendants. However, this appeal does not involve the trial, but rather events transpiring prior to trial that Malloy claims denied him a fair trial.[2]
¶ 3 Quarles filed this case in 2001, dismissed it and then refiled on January 6, 2003. From then until September 2005, the trial court entered a scheduling order, discovery cut-off and set a pretrial conference date. Quarles failed to comply with all of the terms of the scheduling order and the court entered an amended scheduling order. Quarles did not comply in a timely fashion with the amended scheduling order.
¶ 4 Quarles provided the names of expert witnesses on November 16, 2004, about six weeks late, prompting a defendants' motion to dismiss. On April 1, 2005, the trial court denied the motion to dismiss, but granted a motion to compel answers to interrogatories. The court set July 15, 2005, as a discovery deadline and August 24, 2005, as a pretrial conference date. Another motion to dismiss by Caldwell was overruled. The court entered a pretrial conference order on September 7, 2005.
¶ 5 The event leading to this appeal occurred on February 26, 2004, when Quarles filed for bankruptcy. She did not notify the trial court or the defendants about this filing. Moreover, she did not list this lawsuit in her bankruptcy action and Malloy, as the trustee, was unaware of the existence of the action. Quarles received a discharge.
¶ 6 Defendants learned of the bankruptcy in late August or early September 2005. They initiated pleadings to seek dismissal of the state court action. Ultimately, the bankruptcy court ruled that the action was an asset of the estate and reopened the bankruptcy. Malloy was substituted as the real party in interest and undertook prosecution of the lawsuit against Caldwell and ECI as of November 17, 2005.
¶ 7 Thus, the time frame relevant to the appeal comprises the period between February 26, 2004 and November 17, 2005, during which Malloy asserts that actions, or inactions, by counsel for Quarles involving trial scheduling, pretrial and discovery resulted in trial court orders and sanctions, with the attendant consequence of a diminishing of the bankruptcy estate.
¶ 8 Malloy contends that orders and sanctions during this period are not binding on the bankruptcy trustee, who had no notice of the litigation. He argues that the trial denied him: (1) the opportunity to conduct discovery as to plaintiff's experts, (2) the right to name more than one expert; and, (3) denied the right to have a pretrial conference and order. Last, Malloy claims that the trial court denials deprived him of Due Process of Law and Equal Protection of the Law.
¶ 9 Caldwell and ECI respond first by arguing that Malloy did not preserve his *185 appellate arguments because he did not raise the constitutional issues at trial and did not seek a continuance, mistrial or directed verdict. Second, Malloy went to trial and presented his expert testimony and cross-examined fully the defense experts. Malloy did present an expert on medical malpractice and another as to economic losses. Last, the defendants argue that the trial court did not abuse its discretion under the circumstances of the case.
¶ 10 After a jury trial resulted in a verdict for the defendants, judgment was entered accordingly. Malloy appeals.

STANDARD OF REVIEW
¶ 11 Malloy argues for a de novo standard of review on the basis that the appeal involves undisputed facts, procedural rulings and constitutional issues. The defendants maintain that the "abuse of discretion" standard applies because the appeal pertains to discovery-related issues, but the constitutional issues present questions of law subject to the de novo standard of review.
¶ 12 A trial court is accorded broad discretion in deciding discovery matters, and its determination in such matters will not be disturbed absent a finding of abuse of discretion or that the decision is contrary to law. Bank of Oklahoma, N.A. v. Briscoe, 1995 OK CIV APP 156, ¶ 27, 911 P.2d 311, 318. However, there was a substitution of the bankruptcy trustee, Malloy, and the threshold decisions of the trial court involved whether to grant relief from existing scheduling and pretrial orders, which incidently involved discovery, but also additional issues such as the number of plaintiff's witnesses.
¶ 13 Therefore, the appeal questions legal rulings by the trial court made during the course of proceedings leading up to the trial. Where the facts are not disputed, an appeal presents only a question of law. Baptist Building Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874 P.2d 68, 69. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. If an appeal asserts a violation of constitutional rights, the appellate court will exercise its own independent judgment, if it becomes necessary to determine the constitutional question. Ranola Oil Co. v. Corporation Commission of Oklahoma, 1988 OK 28, ¶ 7, 752 P.2d 1116, 1118.

ANALYSIS AND REVIEW
¶ 14 As of the date Quarles filed for bankruptcy, February 26, 2004, this action belonged to the Trustee in bankruptcy, Malloy. For some reason, Quarles, or her counsel in this action, did not disclose the bankruptcy and the bankruptcy was discovered over a year later.
¶ 15 Without contradiction, Trustee's Brief lists a series of actions taken by the trial court during the period between the bankruptcy filing and his appearance in the case. Included were scheduling orders, a pretrial conference order and sanctions limiting plaintiff to eight fact witnesses and limiting plaintiff's exhibits. Trustee maintains that all such actions are a nullity because they were taken without notice to or participation by Trustee as the real party in interest.
¶ 16 Trustee next listed events occurring after his appearance. There, Trustee outlined his efforts to obtain a new scheduling order, new pretrial, additional discovery and relief from the limitation of witnesses. Trustee demonstrated that there were several months of time available before trial, but proposed to limit the additional discovery to sixty days.
¶ 17 The trial court ruled that Trustee had to demonstrate "manifest injustice" in order to gain relief. Rule 5(K), Rules For District Courts, 12 O.S.2001, ch. 2 app. The trial court allowed Trustee to substitute his medical expert because the original witness did not want to continue. All other relief was denied. The denied relief included: Denial of permission to add a witness from the Medical Examiner's Office knowledgeable about the autopsy; denial of permission to add any additional experts; denial of expansion of the number and type of exhibits; and denial of further discovery.
*186 ¶ 18 This Court finds that the trial court did err by failing to consider the Trustee's status as the real party to the action effective on the date of filing the bankruptcy. Abibo v. Sunset Mortgage Co., L.P., 2007 OK CIV APP 17, ¶ 17, 154 P.3d 715, 718.[3] As a result, the orders and sanctions entered after that date and before Trustee's appearance were not binding on Trustee. U.S. Through Farmers Home Administration v. Hobbs, 1996 OK 77, 921 P.2d 338. However, this finding does not resolve whether the trial court's error constitutes reversible error because of the provisions of 12 O.S.2001, § 78 and 20 O.S.2001, § 3001.1.[4] Absent a showing of prejudice, any error is harmless and an insufficient basis for reversal. 12 O.S. 2001, § 78 (affect a substantial right); 20 O.S.2001, § 3001.1 (miscarriage of justice or substantial violation of a constitutional or statutory right); Conservative Loan Co. v. Sarkey, 1923 OK 354, 92 Okla. 257, 219 P. 107 (Syl. 6); Norman v. Mercy Memorial Health Center, Inc., 2009 OK CIV APP 55, 215 P.3d 841. As to alleged errors, not inherently prejudicial, the test of prejudice is: "The likelihood that the verdict would have been different had they not occurred as measured by the usual criterion of the verdict's support in the evidence." Karriman v. Orthopedic Clinic, 1973 OK 141, ¶ 21, 516 P.2d 534, 540. Error does not require reversal unless examination of the entire record discloses that miscarriage of justice probably has resulted, or that there was a violation of statutory or constitutional rights. Falletti v. Brown, 1971 OK 18, ¶ 8, 481 P.2d 744, 746.
¶ 19 Without dispute, Trustee did not raise constitutional issues before the trial court. Failure to present constitutional issues at trial results in a waiver of those issues. Bane v. Anderson, Bryant & Co., 1989 OK 140, ¶ 33, 786 P.2d 1230, 1237.
¶ 20 Review of the record for the purpose of ascertaining prejudice discloses the following. Trustee does not challenge the trial itself. Specifically, Trustee does not demonstrate how the verdict would have been different in the absence of the errors of the trial court.
¶ 21 Moreover, Trustee did not seek a continuance, extraordinary relief from a higher court, or present any post trial motions.[5] Trustee did not make relevant offers of proof regarding any witness or exhibit that may have been barred by the trial court.[6] Trustee did not object to any defense witness testimony on the ground of lack of discovery, did not move to strike testimony, and did not cross-examine the defense experts. Trustee did not ask for a directed *187 verdict and did not make any motions at the conclusion of the evidence.
¶ 22 Trustee argues that the trial court's denial of additional "fact witnesses" is one ground for reversal. However, Trustee has not shown who these witnesses may be, the nature of their testimony, or how the testimony might affect the trial outcome. In fact, Trustee's Supplement to the Motion to Set Scheduling Order states that only three witnesses are involved. These are a medical expert, an economics expert and someone from the medical examiner's office to testify as to the cause of death as determined by the autopsy.
¶ 23 Trustee was allowed to obtain a new medical expert and used the economics expert obtained by Quarles. Trustee has not identified any additional medical experts.
¶ 24 The medical examiner's records, including the death certificate, were admitted into evidence and listed the cause of death as "acute bronchopneumonia," the condition which it was alleged Caldwell failed to diagnose.[7] The records also included the finding that the deceased had "toxic effects of tramadol and codeine" as significant medical conditions. Thus, the jury was provided a cause of death consistent with the cause claimed by Trustee.
¶ 25 This Court concludes that, notwithstanding the trial court error, Trustee has not demonstrated that such error has resulted in prejudice requiring reversal of the judgment in this case. Therefore, the judgment is affirmed.
¶ 26 AFFIRMED.
GABBARD, P.J., and GOODMAN, J., concur.
NOTES
[1]  According to the Journal Entry of Judgment, Medcenter II of Tulsa, Inc. was deleted from the caption by agreement.
[2]  Appellant's Reply Brief, p. 1.
[3]  See also Kirby v. U.S., 2009 WL 302077 (N.D.Okla., 2009), an unreported case ruling that a debtor's cause of action belongs to the Trustee immediately upon filing the bankruptcy petition.
[4]  Section 78 provides:

The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.
Section 3001.1 provides:
No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
[5]  Trustee does not have to file a motion for new trial as a prerequisite to an appeal. 12 O.S.2001, § 991. The record indicates that Trustee contemplated seeking extraordinary relief. See Motion for Stay, Rec., p. 875.
[6]  Trustee did file an offer of proof. Rec., p. 1033. This offer pertained to Quarles' mother, a nurse. The offer of proof stated that she would have testified to having observed the deceased's body and made observations regarding dehydration. The offer did not contain the qualifications of the witness or any affidavit from the proposed witness as to her testimony or qualifications. The offer recited that the testimony would be supportive of the expert actually called. The offer did not purport to show that the witness had any personal knowledge or opinion of the examination and treatment given by Caldwell.

Plaintiff's offer of proof at trial involved additional testimony from Plaintiff's expert. That offer was denied and has not been appealed. Tr., pp. 187-88. At the same time, Plaintiff asked to add the former medical examiner to testify as to the details of the medical examiner's report, but not as an expert. Plaintiff did not make a formal offer of proof as to that witness. Id.
[7]  Plaintiff's Ex. 3. Plaintiff's medical expert testified, without objection, that the cause of death was acute bronchopneumonia and not prescription drugs. Tr., p. 49.


594 F.2d 243
U. S.v.Bennett
No. 78-1660
United States Court of Appeals, Ninth Circuit
1/22/79

1
N.D.Cal.

AFFIRMED


                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        JUL 29 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT

UTE DISTRIBUTION
CORPORATION, a Utah corporation,

             Plaintiff-Appellee,
                                                      No. 96-4194
v.

UTE INDIAN TRIBE,

             Defendant-Appellant.

                  Appeal from the United States District Court
                            for the District of Utah
                           (D.C. No. 95-CV-376-W)

Max D. Wheeler, Snow, Christensen & Martineau, Salt Lake City, Utah, (Camille
N. Johnson, Snow, Christensen & Martineau, Salt Lake City, Utah, with him on
the brief), for Plaintiff-Appellee.

Robert S. Thompson, III, Office of Legal Counsel, Ute Indian Tribe, Fort
Duchesne, Utah, (Sandra Hansen, Office of Legal Counsel, Ute Indian Tribe, Fort
Duchesne, Utah, Tod J. Smith, Whiteing & Smith, Boulder, Colorado, with him
on the brief), for Defendant-Appellant.

Before BALDOCK, HOLLOWAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.

       The Ute Indian Tribe (“Tribe”) appeals the district court’s ruling that the

Tribe’s immunity was waived by the provisions of the Ute Partition and

Termination Act of 1954 (“UPA”) in suits concerning certain tribal assets jointly

managed by the Tribal Business Committee and the Ute Distribution Corporation

(“UDC”). Exercising jurisdiction pursuant to 28 U.S.C. § 1292, this court

reverses.

                                      I. BACKGROUND

       The Ute Partition and Termination Act of 1954, 25 U.S.C. §§ 677-677aa,

was one of a series of Indian termination statutes enacted during a period in which

the federal government pursued a policy of terminating its supervisory

responsibilities for Indian tribes.    See Affiliated Ute Citizens v. United States   , 406

U.S. 128, 133 n.1 (1972);     Hackford v. Babbitt , 14 F.3d 1457, 1461-62 (10th Cir.

1994); Ute Distrib. Corp. v. United States     , 938 F.2d 1157, 1159 (10th Cir. 1991).

       The termination statutes in general provided for the termination of federal

guardianship over certain tribes deemed ready to assimilate into Anglo-society.

The statutes terminated the federal trust relationship with the designated tribes

and terminated the tribes’ and individual tribal members’ eligibility for special

federal services. In addition, the statutes ended the tribes’ coverage under federal

                                             -2-
Indian laws and imposed state jurisdiction over the terminated tribes. The

termination statutes also typically provided for the division and distribution of

tribal land and other assets to individual members of terminated tribes and ended

federal restrictions on the alienation of such land.   1
                                                           See generally Felix S. Cohen,

Handbook of Federal Indian Law 170-80, 811-13 (1982); Robert N. Clinton et al.,

American Indian Law 155-58 (3d ed. 1991).

       The UPA focused on the Ute Indian Tribe of the Uintah and Ouray

Reservation in Utah. The UPA did not terminate federal supervision over the

entire Ute Indian Tribe, but instead divided the Ute Indian Tribe into two groups,

“full-blood” members and “mixed-blood” members,            2
                                                               and provided for the

       1
        In all, over 100 tribes and bands were terminated during the 1950s and
early 1960s. See Robert N. Clinton et al., American Indian Law 158 (3d ed.
1991). The termination policy came under attack in the early 1960s, and
Congress has since abandoned the termination policy and has instead generally
pursued a policy of protecting and promoting tribal self-determination. See Felix
S. Cohen, Handbook of Federal Indian Law 180, 811 n.1 (1982); see also Three
Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S. 877, 890
(1986) (noting Congress’ goal of promoting tribal self-government); United States
v. Felter, 546 F. Supp. 1002, 1006 n.5 (D. Utah 1982) (“It is ironic that while the
mixed-blood Utes were being terminated from federal supervision in 1961 . . .
new directions in Indian policy were being formulated by Congress. Termination
as a policy was effectively abandoned by Congress a few years later in favor of
tribal self-determination within a continuing federal trusteeship.”).

       We recognize the terms “mixed-blood” and “full-blood” may be considered
       2

offensive. Because the UPA employs these terms, however, we do the same to
avoid confusion. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 133
n.3 (1972).

                                              -3-
termination of federal supervision only as to the mixed-blood members.        3
                                                                                The

stated purposes of the UPA were to partition and distribute the assets of the Ute

Indian Tribe between the mixed-blood group and full-blood group; to end federal

supervision over the trust and restricted property of the mixed-blood group; and to

create a development program for the full-blood members to assist them in

preparing for later termination of federal supervision over their property.        See 25

U.S.C. § 677.

       The UPA directed that membership rolls be prepared for the full-blood and

mixed-blood groups.     See id. § 677g. In 1956, the Secretary of Interior published

the final membership rolls listing 1314 full-blood members (approximately 73%)

and 490 mixed-blood members (approximately 27%).             See 21 Fed. Reg. 2208-12

(Apr. 5, 1956). The UPA provided that, upon publication of the final rolls, the Ute

Indian Tribe was to “consist exclusively of full-blood members” and the mixed-

blood group was to retain “no interest therein except as otherwise provided” in the

UPA. 25 U.S.C. § 677d.

       Under the UPA, the “full-blood” group was comprised of those individuals
       3

with at least “one-half degree of Ute Indian blood and a total of Indian blood in
excess of one-half.” 25 U.S.C. § 677a(b). The “mixed-blood” group was
comprised of those individuals who either did not possess sufficient Indian or Ute
Indian blood to qualify as a full-blood tribal member or became a mixed-blood
member by choice under provisions of the UPA. See id. §§ 677a(c), 677c.

                                             -4-
           After the final rolls were published, the Tribal Business Committee,

representing the full-blood members, and the “authorized representatives” of the

mixed-blood members were directed to divide the tribal assets          4
                                                                           “then susceptible

to equitable and practicable distribution” (the “divisible assets”).          Id. § 677i. The

divisible assets were to be divided according to the relative number of persons on

the final membership rolls of each group.        See id. The assets of the mixed-blood

group were then to be distributed to the individual mixed-blood Utes.             See id.

§ 677 l.

       The UPA provided for the termination of federal supervision over the assets

which were distributed to the individual members of the mixed-blood group.

Federal supervision remained, however, over the assets partitioned to the full-

blood group. Federal supervision also remained over the “unadjudicated or

unliquidated claims against the United States, all gas, oil, and mineral rights of

every kind, and all other assets not susceptible to equitable and practicable

distribution” (the “indivisible assets”).     Id. § 677i. These indivisible assets

remained in trust for the benefit of both the full-blood and mixed-blood groups

and were to be “managed jointly by the Tribal Business Committee and the

       4
        Tribal assets were defined by the UPA to include “any property of the
tribe, real, personal or mixed, whether held by the tribe or by the United States in
trust for the tribe.” Id. § 677a(f).

                                              -5-
authorized representatives of the mixed-blood group, subject to such supervision

by the Secretary [of Interior] as is otherwise required by law.”     Id.

       In 1961, federal guardianship over the mixed-blood Utes was officially

terminated by issuance of a proclamation of the Secretary of Interior.         See 26 Fed.

Reg. 8042 (1961); see also 25 U.S.C. § 677v (requiring publication of

proclamation declaring termination). Once this proclamation was issued, the

mixed-blood Utes were no longer “entitled to any of the services performed for

Indians because of [their] status as . . . Indian[s],” and all federal statutes

“affect[ing] Indians because of their status as Indians [were] no longer . . .

applicable to such [terminated Utes],” who were instead subjected to state laws.

25 U.S.C. § 677v. Although the proclamation ended federal supervision over the

assets distributed to the mixed-blood group, it did not terminate the trust status of

the indivisible assets.   See Affiliated Ute Citizens , 406 U.S. at 139.   5

       5
        The termination of the mixed-blood Utes and the distribution and
management of tribal assets under the UPA’s provisions has led to extensive
litigation. For a more complete discussion of the background of the UPA and a
collection of cases involving the UPA, see Hackford v. Babbitt, 14 F.3d 1457,
1463-64 (10th Cir. 1994).

                                             -6-
                          II. DISTRICT COURT OPINION

       In 1995, the UDC, the mixed-blood Utes’ “authorized representative” for

purposes of managing the indivisible assets with the Tribal Business Committee,       6

brought this action seeking a declaratory judgment that certain tribal water rights

were not partitioned, that they remain in trust for the benefit of the mixed-blood

and full-blood Utes, and that they are subject to joint management by the UDC and

the Tribal Business Committee under the supervision of the Secretary of Interior.

See Ute Distrib. Corp. v. Secretary of Interior    , 934 F. Supp. 1302, 1306 (D. Utah

1996). The Tribe responded by filing a motion to dismiss, asserting, among other

things, that it is immune from suit and has not waived its immunity by consenting

to be sued.   See id.

       The district court held the Tribe was not immune from suit, determining that

the UPA limited the Tribe’s immunity with respect to the adjudication of issues

concerning the joint management of the indivisible assets.     See id. at 1307. The

district court reached this conclusion by determining that although the UPA “lacks

any language expressly authorizing a cause of action in federal court, the structure

       6
        The mixed-blood Utes’ “authorized representative,” for purposes of the
partition and distribution of the divisible tribal assets and the management of the
indivisible assets, was initially the Affiliated Ute Citizens of Utah (“AUC”). The
AUC delegated the authority to act as the terminated Utes’ authorized
representative in managing the indivisible assets to the UDC in 1959. See
Affiliated Ute Citizens, 406 U.S. at 136; Murdock v. Ute Indian Tribe of Uintah &
Ouray Reservation, 975 F.2d 683, 685 (10th Cir. 1992).

                                             -7-
and purpose of the Act clearly divests the Tribe” of its immunity in suits

concerning the indivisible tribal assets.   Id. at 1309.

       In examining the structure and purpose of the UPA, the district court noted

that the UPA mandates the joint management of the indivisible tribal assets by the

Tribal Business Committee and the UDC under the supervision of the Secretary of

Interior and, as to those assets, preserves the federal trust relationship with both

the mixed-blood and full-blood members.       See id. at 1308-10. The court therefore

determined the indivisible assets are “not under the traditional sovereign control of

the Ute Tribe, but are held in trust by the Government for the benefit of both the

Tribe and the [UDC], who must jointly share the management responsibilities for

the indivisible assets.”   Id. at 1310. The court then concluded it would be

              incongruous with the structure and intent of the UPA to
              conclude that the Ute Indian Tribe may assert sovereign
              immunity in actions brought to determine the status of, or
              rights in, assets held in trust by the United States for the
              benefit of both the Tribe and the mixed-bloods. Such a
              result would frustrate the purpose of the Act by
              effectively allowing the Tribe to exclude the mixed-
              bloods’ representative, the UDC, from participating in
              the joint management of the indivisible assets, and would
              clearly run counter to the plain language of the UPA
              requiring that such assets “shall be managed jointly by
              the Tribal Business Committee and the [UDC].”

Id. (alteration in original) (quoting 25 U.S.C. § 677i).

       In support of its ruling that the Tribe was not immune from suit, the district

court further concluded that allowing the Tribe to assert immunity “would

                                            -8-
contradict the overriding national interest of ensuring that federal trust property is

managed in an orderly manner according to the joint scheme set forth by Congress

in the UPA.” Id.

                                  III. DISCUSSION

       The Tribe asserts the district court erred in concluding it was not immune

from suit and thus denying its motion to dismiss. The Tribe argues that, given the

absence of any language in the UPA expressly authorizing a suit in federal court

against the Tribe to enforce the joint management provisions of the UPA, the

district court improperly determined the Tribe’s immunity from suit was waived by

the UPA. The UDC argues the district court properly found that, based on the

“plain language” of the joint management provisions of the UPA, the Tribe’s

immunity from suit was waived for the adjudication of issues concerning the

indivisible assets.   Alternatively, the UDC contends that the “sue and be sued”

provision in the Tribe’s corporate charter constitutes an express waiver by the

Tribe of its immunity in this case.

       This court reviews de novo the legal question of whether a party can assert

immunity. See Fletcher v. United States    , 116 F.3d 1315, 1323-24 (10th Cir. 1997).

             A. Congressional Waiver of Tribal Immunity in the UPA

       In Santa Clara Pueblo v. Martinez   , 436 U.S. 49 (1978), the Supreme Court

established the rule for determining whether a tribe’s immunity from suit has been

                                           -9-
waived. The Court stated, “Indian tribes have long been recognized as possessing

the common-law immunity from suit traditionally enjoyed by sovereign powers.”

Id. at 58. The Court recognized that “[t]his aspect of tribal sovereignty, like all

others, is subject to the superior and plenary control of Congress,” which may

limit or abrogate a tribe’s immunity from suit.      Id. Nevertheless, “[i]t is settled

that a waiver of sovereign immunity cannot be implied but must be unequivocally

expressed.” Id. (internal quotations omitted);      see also Kiowa Tribe of Okla. v.

Manufacturing Techs., Inc. , No. 96-1037, 1998 WL 260001, at *6 (U.S. May 26,

1998) (reaffirming doctrine of tribal immunity and stating Congress can alter the

limits of tribal immunity through “explicit legislation”).    7

       7
        As suggested in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978),
courts have traditionally regarded tribal immunity as an aspect of the tribes’
inherent sovereignty. See id. at 55-56, 58-59; see also Oklahoma Tax Comm’n v.
Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991). Courts have
also treated tribal immunity as “necessary to preserve the autonomous political
existence of the tribes and to preserve tribal assets.” Chemehuevi Indian Tribe v.
California State Bd. of Equalization, 757 F.2d 1047, 1051 (9th Cir. 1985)
(citation omitted); see also Enterprise Management Consultants, Inc. v. Hodel,
883 F.2d 890, 892 (10th Cir. 1989); American Indian Agric. Credit Consortium,
Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1985).
       Recently, however, in Kiowa Tribe v. Manufacturing Technologies, Inc.,
No. 96-1037, 1998 WL 260001 (U.S. May 26, 1998), the Supreme Court
questioned these traditional bases for tribal immunity. In Kiowa Tribe, the Court
considered whether the doctrine of tribal immunity barred a suit against a tribe in
state court arising from a contract involving off-reservation commercial conduct.
See id. at *2. The Court examined the early Supreme Court precedent for tribal
immunity, concluding that the doctrine of tribal immunity “developed almost by
accident” in Supreme Court case law. Id. at *4. The Court also stated that
“[t]here are reasons to doubt the wisdom of perpetuating the doctrine” of tribal

                                             -10-
       In Santa Clara Pueblo , a female member of an Indian tribe invoked the

Indian Civil Rights Act of 1968 (“ICRA”), 25 U.S.C. §§ 1301-1303, to challenge

a tribal ordinance denying tribal membership to children of female members who

married outside the tribe while extending membership to children of male

members who married non-members.            See 436 U.S. at 51. The threshold issue

before the Supreme Court was whether the ICRA authorizes suits for declaratory

or equitable relief against a tribe or tribal officer to enforce its substantive

provisions. See id. at 51-52.

       The Court first considered whether an ICRA suit against the tribe was

barred by tribal immunity. After setting out the basic rule that any waiver of

tribal immunity must be unequivocally expressed, the Court stated: “Nothing on

the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the

federal courts in civil actions for injunctive or declaratory relief.”   Id. at 59. The

only remedial provision expressly supplied in the ICRA is a provision allowing a

habeas corpus action to be brought by “any person, in a court of the United States,

immunity, indicating that although tribal immunity may have at one time “been
thought necessary to protect nascent tribal governments,” “[i]n our interdependent
and mobile society . . . tribal immunity extends beyond what is needed to
safeguard tribal self-governance.” Id. at *5. Nevertheless, the Court refused to
judicially limit or abrogate tribal immunity, stating that “the doctrine of tribal
immunity is settled law and controls this case.” Id. at *4. The Court further
reaffirmed that Congress has always been at liberty to alter or abrogate tribal
immunity through “explicit legislation,” but until Congress acts, tribes are entitled
to immunity from suit. Id. at *6.

                                              -11-
to test the legality of his detention by order of an Indian tribe.” 25 U.S.C. § 1303.

The Court noted that, “since the respondent in a habeas corpus action is the

individual custodian of the prisoner, the [provision allowing a federal habeas

corpus action] can hardly be read as a general waiver of the tribe’s sovereign

immunity.” 436 U.S. at 59 (citation omitted). Therefore, given “the absence . . .

of any unequivocal expression of contrary legislative intent,” the Court concluded

the tribe’s sovereign immunity barred suits brought against the tribe to enforce the

ICRA’s provisions.   Id.

      Like the ICRA, the UPA is devoid of any language clearly expressing an

intent to subject the Tribe to lawsuits in federal court over the joint management

of the indivisible tribal assets. As the district court recognized, the UPA “lacks

any language expressly authorizing a cause of action in federal court [against the

Tribe].” Ute Distrib. Corp. , 934 F. Supp. at 1309. The UPA contains no

references to a waiver or limitation of tribal immunity, nor does the UPA contain

any provisions purporting to give the terminated Utes the right to sue the Tribe to

enforce the UPA’s joint management provisions.     Cf. Fluent v. Salamanca Indian

Lease Auth. , 928 F.2d 542, 546 (2d Cir. 1991) (noting that “[w]hen Congress has

chosen to limit or waive the sovereign immunity of Indian tribes, it has done so in

clear language” and citing as examples 1958 and 1974 statutes providing that

tribes could “commence or defend” actions against each other). Moreover, the

                                         -12-
UPA contains no reference to federal court jurisdiction over disputes arising from

the management of the indivisible assets.     Cf. Public Serv. Co. v. Shoshone-

Bannock Tribes , 30 F.3d 1203, 1206-07 (9th Cir. 1994) (holding Hazardous

Materials Transportation Act abrogates tribes’ immunity in federal court for

preemption suits because statute’s language expressly provides that tribes, like

states, are subject to preemption rules, including the provision that allows

preemption suits to be brought in “any court of competent jurisdiction”);   Northern

States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community          , 991

F.2d 458, 462-63 (8th Cir. 1993) (same).

      Despite the absence of any provision in the UPA expressly subjecting the

Tribe to suit, the UDC asserts this court should find a waiver of immunity by

implication to avoid undermining the purposes of § 677i of the UPA. The UDC

argues that such a waiver is consistent with the UPA’s provisions and necessary to

ensure the Tribe’s compliance with the joint management scheme set out in the

UPA. The UDC also argues that tribal immunity in this case frustrates overriding

national interests in the orderly management of the indivisible assets held in trust

by the federal government pursuant to the UPA. None of the UDC’s arguments,

however, allow this court to find a waiver of tribal immunity in the absence of

clear congressional abrogation of that immunity.

1. Limits on Tribe’s Sovereign Powers in UPA

                                            -13-
      The UDC first asserts that the joint management provisions of the UPA

limit the sovereign powers of the Tribe because the Tribe lacks authority to take

“unfettered, unilateral action with respect to [the indivisible] assets.” The UDC

then suggests that because the Tribe’s sovereign powers have been limited by the

UPA, the Tribe’s immunity has likewise been restricted.

      This court considered a similar argument in       Nero v. Cherokee Nation , 892

F.2d 1457 (10th Cir. 1989). In      Nero , the plaintiffs asserted that certain treaty

language which limited the Cherokee Nation’s sovereignty concomitantly limited

the tribe’s immunity.   See id. at 1459. The court rejected the argument as

inconsistent with the reasoning and holding of the Supreme Court in         Santa Clara

Pueblo . The court stated that in    Santa Clara Pueblo , the Supreme Court

             adhered to the traditional doctrine of sovereign immunity
             even though the ICRA imposes substantive constraints
             on tribes. The underlying premise of the Court’s ruling
             is that a tribe acting in derogation of the ICRA, and thus
             arguably beyond the scope of its sovereign powers, is
             nonetheless immune from suit absent a waiver of
             sovereign immunity. The Court implicitly refused to
             find a waiver arising solely from the alleged violation of
             the ICRA, requiring instead that an explicit waiver be
             found in some other source.

Id. at 1461. The court then concluded that “[l]ike the provisions of the ICRA at

issue in Santa Clara Pueblo , [the treaty provision relied on by the plaintiffs] only

places substantive constraints on the Tribe, it does not waive the Tribe’s immunity

from a suit alleging noncompliance with these constraints.”        Id.

                                             -14-
       Likewise, even though the UPA places limits on the Tribe’s control over the

indivisible assets, this does not itself constitute the requisite clearly expressed

waiver of the Tribe’s immunity from suits involving disputes over the assets.

2. Waiver Based on Purpose and Structure of UPA

       The UDC next asserts, and the district court agreed, that although there is

no language in the UPA expressly abrogating tribal immunity, a waiver of

immunity is necessarily implicated by the joint management provisions and the

purpose of the UPA. Even assuming, as the UDC argues, the Tribe’s assertion of

immunity undermines the UPA’s scheme for the joint management of the

indivisible assets,   8

       8
        In arguing the Tribe’s assertion of immunity undermines the purpose of the
UPA, the UDC contends that if the Tribe is allowed to assert immunity from suit
in federal court, the Tribe will be able to avoid complying with the joint
management requirements of the UPA. The UDC asserts that unless it is able to
bring a suit in federal court against the Tribe, it will be without a remedy should
the Tribe attempt to exclude the UDC from participating in the joint management
of the indivisible assets and attempt to exercise unilateral control over the assets.
In response, the Tribe asserts that the UDC has other remedies
available—including administrative remedies—for enforcing the Tribe’s
obligation to jointly manage with the UDC the indivisible assets. The Tribe states
that “the [Secretary of Interior’s] continuing trust obligation [over the indivisible
assets] provides the joint managers with legal remedies to address claims
pertaining to the management of the indivisible assets.”
       While not expressly stated, implicit in the UDC’s assertions is the argument
that the Tribe’s immunity must be waived because the UDC is otherwise left
without a judicial remedy. The proposition that tribal immunity is waived if a
party is otherwise left without a judicial remedy is inconsistent with the reasoning
of Santa Clara Pueblo. In Santa Clara Pueblo, the Court considered whether a
suit could be brought under the ICRA against either tribal officers or the tribe. In

                                          -15-
this court must still reject the UDC’s argument. Finding a waiver of tribal

immunity based on the purpose of the UPA, rather than an unequivocal expression

addressing whether the ICRA allows a federal cause of action against tribal
officers, who are not protected by tribal immunity, the Court considered the
availability of tribal forums to resolve disputes under the ICRA. See 436 U.S. at
65-66. In determining whether the tribe could be sued for violations of the ICRA,
however, the Court did not consider such factors as the availability or absence of
an alternate forum, but instead required an unequivocal expression of
congressional intent to waive the tribe’s immunity. See id. at 58-59; see also
Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 547 (2d Cir. 1991)
(rejecting contention that tribal immunity does not bar federal jurisdiction when
no other forum is available for the resolution of claims); Makah Indian Tribe v.
Verity, 910 F.2d 555, 560 (9th Cir. 1990) (“Sovereign immunity may leave a party
with no forum for [that party’s] claims.”). But cf. Dry Creek Lodge, Inc. v.
Arapahoe & Shoshone Tribes, 623 F.2d 682, 685 (10th Cir. 1980) (creating
limited exception to tribal immunity in ICRA cases when the dispute does not
concern internal tribal issues, the plaintiff is a non-Indian, and tribal remedies are
unavailable); see White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir.
1984) (recognizing “Dry Creek opinion must be regarded as requiring narrow
interpretation in order to not come into conflict with the decision of the Supreme
Court in Santa Clara”); Enterprise Management Consultants, Inc. v. United States
ex rel. Hodel, 883 F.2d 890, 892 (10th Cir. 1989) (stating Dry Creek exception,
“arising from highly unusual circumstances,” “must be narrowly construed”);
Nero v. Cherokee Nation, 892 F.2d 1457, 1460 n.5 (10th Cir. 1989) (“It is . . .
clear that tribal sovereign immunity may preclude federal court jurisdiction over
non-Indian complaints brought under the ICRA even if tribal remedies are
unavailable.”).
       Even assuming the lack of a judicial forum to resolve disputes is part of the
equation for determining when tribal immunity is waived, however, the UDC has
not demonstrated that its rights under the UPA are not adequately protected under
25 U.S.C. §§ 677i and 677aa. See 25 U.S.C. § 677i (providing that indivisible
assets would be jointly managed subject to the “supervision [of] the Secretary [of
Interior] as is otherwise required by law”); id. § 677aa (“Whenever any action
pursuant to the provisions of this subchapter requires the agreement of the mixed-
blood and full-blood groups and such agreement cannot be reached, the Secretary
[of Interior] is authorized to proceed in any manner deemed by him to be in the
best interests of both groups.”).

                                          -16-
of intent to waive immunity, is inconsistent with both the language and the

analysis of the Supreme Court in   Santa Clara Pueblo .

      In Santa Clara Pueblo , the Court focused on the face of the statute at issue

to determine whether Congress had unequivocally expressed an intent to waive

tribal immunity.   See 436 U.S. at 59. The Court did not attempt to glean some

congressional intent to waive immunity based on an examination of the structure

or purpose of the statute. Given the absence of an unequivocal expression of

congressional intent to waive immunity, the Court ruled that the tribe was immune

from suit. In so holding, the Court rejected the argument, much like that

advanced by the UDC, that because the ICRA was “‘designed to provide

protection against tribal authority, the intention of Congress to allow suits against

the tribe was an essential aspect [of the ICRA]. Otherwise, it would constitute a

mere unenforceable declaration of principles.’”   Id. at 55 (alteration in original)

(quoting Martinez v. Santa Clara Pueblo     , 540 F.2d 1039, 1042 (10th Cir. 1976)).

Similarly, this court may not infer congressional intent to waive tribal immunity

whether based on a determination that immunity is inconsistent with the purpose

of the UPA or a determination that allowing the UDC to bring a suit against the

Tribe in federal court would ensure the Tribe’s compliance with the UPA’s

provisions.

3. Unique Context of UPA

                                           -17-
      The UDC further argues that this court should find a waiver of the Tribe’s

immunity based on the “unique context” of the UPA. The UDC asserts that the

cases relied on by the Tribe in which courts have affirmed tribal immunity in the

absence of an unambiguously expressed waiver are fundamentally distinguishable

from this case. The UDC further asserts, without providing any support, that “the

determination of whether an Indian tribe enjoys sovereign immunity from suit

depends upon the precise factual and legal milieu in which sovereign immunity is

asserted.”

      Contrary to the UDC’s assertions, the requirement that a waiver of tribal

immunity be “clear” and “unequivocally expressed” is not a requirement that may

be flexibly applied or even disregarded based on the parties or the specific facts

involved. Cf. Chemehuevi Indian Tribe v. California State Bd. of Equalization      ,

757 F.2d 1047, 1052 n.6 (9th Cir. 1985) (“[S]overeign immunity is not a

discretionary doctrine that may be applied as a remedy depending upon the

equities of a given situation.”). In the absence of a clearly expressed waiver by

either the tribe or Congress, the Supreme Court has refused to find a waiver of

tribal immunity based on policy concerns, perceived inequities arising from the

assertion of immunity, or the unique context of a case.   See Kiowa Tribe , 1998

WL 260001, at *5 (refusing to limit tribe’s immunity, despite expressing doubt as

to necessity or wisdom of continuing doctrine of tribal immunity to protect tribal

                                           -18-
self-governance and despite recognizing that tribal immunity, in economic

context, “can harm those who are unaware that they are dealing with a tribe, who

do not know of tribal immunity, or who have no choice in the matter, as in the

case of tort victims”);   Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian

Tribe , 498 U.S. 505, 909-10 (1991) (reaffirming that while state may tax cigarette

sales by tribe’s store to nonmembers, tribe enjoys immunity from suit by state to

collect unpaid taxes, thereby rejecting argument that tribal immunity should be

abandoned or narrowed because immunity impermissibly burdens the

administration of state tax laws and because tribal businesses have become so far

removed from traditional tribal interests that immunity “no longer makes sense in

this context”); see also Santa Clara Pueblo , 436 U.S. at 58, 64 (refusing to find

waiver of tribal immunity or creation of federal cause of action against tribal

officer, despite recognizing that allowing a federal suit would be useful in

securing compliance with substantive provisions of the ICRA).

4. Overriding National Interests

       The UDC also argues that allowing the Tribe to assert immunity in an

action such as this would contradict the overriding “national interest in seeing that

the property over which the Secretary of the Interior has trust responsibility [i.e.,

the indivisible assets] is managed according to the scheme set forth by Congress

in the [UPA].”

                                         -19-
      In Washington v. Confederated Tribes of Colville Indian Reservation

(hereinafter “ Colville ”), 447 U.S. 134 (1980), the Supreme Court stated:

             This Court has found . . . a divestiture [of tribal powers]
             in cases where the exercise of tribal sovereignty would
             be inconsistent with the overriding interests of the
             National Government, as when the tribes seek to engage
             in foreign relations, alienate their lands to non-Indians
             without federal consent, or prosecute non-Indians in
             tribal courts which do not accord the full protections of
             the Bill of Rights.

Id. at 153-54; see also United States v. Wheeler   , 435 U.S. 313, 326 (1978)

(describing areas in which “implicit divestiture of sovereignty has been held to

have occurred”).   Relying on Colville , the district court stated that “to allow the

Ute Tribe to assert sovereign immunity in this action would contradict the

overriding national interest of ensuring that federal trust property is managed in

an orderly manner according to the joint scheme set forth by Congress in the

UPA.” Ute Distrib. Corp. , 934 F. Supp. at 1310. The UDC argues that, in light

of this alleged overriding national interest, the Tribe’s immunity must be divested.

Even assuming the Tribe’s assertion of immunity frustrates the federal

government’s interest in the orderly management of property held in trust for the

UDC and the Tribe, this interest simply does not rise to the level of an overriding

                                          -20-
national interest such as those identified in      Colville . 9 Cf. Bank of Okla. v.

Muscogee (Creek) Nation , 972 F.2d 1166, 1169 (10th Cir. 1992).

             B. Waiver of Immunity by Tribe in Corporate Charter

       The UDC finally asserts that the “sue and be sued” provision of the Tribe’s

corporate charter   10
                         constitutes an express waiver of immunity in this case. The

       9
        It is unclear whether a tribe’s immunity from suit, in contrast with its
ability to affirmatively exercise sovereign powers, may be implicitly divested
when inconsistent with some overriding national interest. In Colville, the
Supreme Court referred to instances in which tribes’ sovereignty has been found
to be limited because the tribes’ exercise of certain sovereign powers was
inconsistent with overriding national interests. See Washington v. Confederated
Tribes of Colville Indian Reservation, 447 U.S. 134, 153-54 (1950). The Colville
Court did not address whether a tribe’s immunity from suit, as opposed to a
tribe’s affirmative exercise of tribal powers, could be implicitly divested because
inconsistent with some overriding federal interest. Nor has the Supreme Court
found that a tribe’s immunity was implicitly divested in light of some overriding
federal interest. Cf. Richardson v. Mt. Adams Furniture (In re Greene), 980 F.2d
590, 596 (9th Cir. 1992) (discussing Supreme Court’s “dependent status analysis,”
which applies when a tribe is affirmatively asserting its sovereignty in dealing
with its property or with non-tribal members, and noting that this analysis has not
been applied by Supreme Court to issues of tribal immunity). Because we
conclude there is no overriding national interest here rising to the level of the
interests described in Colville, however, we need not decide whether the
balancing test referred to in Colville can be applied to implicitly divest a tribe of
its immunity from suit.

        The Tribe was chartered as a federal corporation in 1938, pursuant to
       10

section 17 of the Indian Reorganization Act (“IRA”), 25 U.S.C. § 477. The Tribe
had previously adopted a constitution and bylaws, pursuant to section 16 of the
IRA, 25 U.S.C. § 476. The Tribe’s corporate charter provides, in relevant part:
             5. The Tribe, subject to any restrictions contained in the
             Constitution and laws of the United States, or in the
             Constitution and By-laws of the Tribe, shall have the
             following corporate powers, in addition to all powers
             already conferred or guaranteed by the tribal constitution

                                                -21-
UDC states that this provision constitutes a waiver of immunity when the Tribe is

sued in its corporate capacity and asserts, without any citation, that “[i]n this

action, UDC sues the Tribe, as a federally chartered corporation.” In response, the

Tribe asserts it has never undertaken to act as a federally chartered corporation

with respect to the UPA or the indivisible tribal assets and argues that the Tribe’s

“[s]ection 17 corporation, to the extent it exists, has absolutely no relationship to

any aspect of the UPA.” The Tribe further asserts there is “no evidence . . . the

Tribe pledged or assigned any indivisible tribal assets . . . to a corporation or

executed any documents related to this action in its corporate capacity.”

      Although courts have held that a “sue and be sued” clause in a tribe’s

corporate charter may constitute a waiver of immunity of the tribal corporation,

this waiver is limited to actions involving the corporate activities of the tribe and

does not extend to actions of the tribe in its capacity as a political governing body.

See Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation       , 673 F.2d 315,

320 (10th Cir. 1982) (holding that presence of “sue and be sued” provision in

             and by-laws:
             ....
             (I) To sue and to be sued in courts of competent jurisdiction within
             the United States; but the grant or exercise of such power to sue and
             be sued shall not be deemed a consent by the said Tribe or by the
             United States to the levy of any judgment, lien, or attachment upon
             the property of the Tribe other than income or chattels specially
             pledged or assigned.

                                          -22-
corporate charter does not affect immunity of tribe as a constitutional entity);

Rosebud Sioux Tribe v. Val-U Constr. Co.     , 50 F.3d 560, 563 (8th Cir. 1995)

(holding “sue and be sued” clause in tribe’s corporate charter does not operate as a

general waiver of the tribe’s immunity from suit);   see also Seneca-Cayuga Tribe v.

Oklahoma , 874 F.2d 709, 715 n.9 (10th Cir. 1989) (explaining that the corporate

charters authorized by the Indian Reorganization Act “usually include a ‘sue and

be sued’ clause to enable the tribes to engage in commercial activity as

corporations without losing their sovereign immunity as tribes”).

      The district court stated that it was unclear, based on the UDC’s Complaint,

whether the UDC actually brought suit against the Tribe as a corporate entity

rather than as a governmental entity. The court thus concluded that “it is at least

facially ambiguous whether the tribal corporate entity is indeed a defendant in this

case.” Ute Distrib. Corp. , 934 F. Supp. at 1310. The district court further

recognized that “[w]hether the ‘sue and be sued’ clause of the charter serves as a

waiver of sovereign immunity depends on whether the Ute Tribe as constitutional

organization or the Ute Tribe as federal corporation is the proper defendant here.”

Id. The court deferred ruling on this issue, however, stating: “At this stage of the

litigation, it is unclear whether the Tribal Business Committee’s exercise of its

joint management function with respect to the indivisible assets is a corporate

activity, or whether the Committee is acting on behalf of the tribal organization.”

                                           -23-
Id. at 1311. Because the district court did not rule on this issue below, this court

does not address the UDC’s argument that the “sue and be sued” clause operated

as a waiver of the Tribe’s immunity in this case, but instead remands to the district

court to determine whether the tribal corporate entity is both a named and proper

defendant in this case.

                                IV. CONCLUSION

      Because the UPA lacks any unequivocal expression of congressional intent

to subject the Tribe to suit in federal court in actions brought by the terminated

Utes to enforce the UPA’s joint management provisions, the district court erred in

concluding that the Tribe’s immunity from suit was waived by the UPA. This

court REVERSES and REMANDS for further proceedings consistent with this

opinion.

                                          -24-


96 F.Supp. 1 (1951)
PFITZINGER
v.
UNITED STATES CIVIL SERVICE COMMISSION.
Civ. No. 580-49.
United States District Court D. New Jersey.
March 13, 1951.
Frederick F. Richardson, New Brunswick, N. J., for petitioner.
Grover C. Richman, U.S. Atty., Edward V. Ryan, Asst. U.S. Atty., Newark, N. J., for respondent.
*2 SMITH, District Judge.
This matter is before the Court on a petition for review filed herein pursuant to Section 12(c) of the Hatch Political Activity Act, as amended, 5 U.S.C.A. § 118k(c). The petitioner avers that he is aggrieved by the report heretofore made by the United States Civil Service Commission and the order entered thereon. The entire record, certified and filed herein by the Commission pursuant to the mandate of the statute, is before the Court. There is no genuine issue as to any material fact and the Court's consideration has, therefore, been limited to the questions of law.
We see no reason to discuss at length the many arguments advanced in support of the petition. The only important questions raised by these arguments have been fully answered by the Supreme Court. State of Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794; United Public Workers v. Mitchell, 330 U.S. 75, 94 et seq., 67 S.Ct. 556, 91 L.Ed. 754. The opinion of the Court in the latter case contains a complete discussion of the legislation and the reasons which prompted its enactment. There is but one argument here made which requires discussion.
The record discloses that the petitioner appeared at the hearing in obedience to a subpoena which was apparently issued by the Commission pursuant to Section 12(d) of the Act, 5 U.S.C.A. § 118k(d). He was called as a witness by the designated examiner and gave relevant testimony as to the nature of the political activity in which he had been engaged. The record further discloses that the petitioner was represented by counsel and that neither he nor his counsel interposed any objection to his being called as a witness. The constitutional privilege against self-incrimination was not invoked at the hearing.
The petitioner here urges for the first time that he was compelled to testify at the hearing in violation of his constitutional privilege against self-incrimination. Const. Amend. V. This privilege is personal and is deemed waived unless appropriately invoked. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560; Edwards v. United States, 10 Cir., 131 F.2d 198, 199; May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, 1001. The failure of the petitioner to assert his constitutional immunity at the hearing, even if we assume that he had a right to assert it, must be interpreted as a waiver of the privilege. Ibid. This interpretation is fortified by the fact that the petitioner voluntarily filed an answer in which he admitted the specific charges made in a Letter of Charges filed by the Commission.
We must concede that the petitioner was required to appear at the hearing in obedience to the subpena, but, notwithstanding the language of the statute, he could not be compelled to give self-incriminatory testimony in violation of the Fifth Amendment. The statute contains the following provision: "No person shall be excused from attending and testifying * * * in obedience to a subpena on the ground that the testimony or evidence, * * *, required of him may tend to incriminate him or subject him to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify, * * *, before the Commission in obedience to a subpena issued by it". This provision must be construed as coextensive with and not in violation of the Fifth Amendment. Any other construction would make the provision unconstitutional and void. This statutory provision must be narrowly construed despite its apparently broad language.
The constitutional privilege against self-incrimination cannot be invoked unless the witness is called upon to give evidence which will expose him to either criminal prosecution or imposition of a penalty under a federal law. Boyd v. United States, 116 U.S. 616, 633 et seq., 6 S.Ct. 524, 29 L. Ed. 746; United States v. Murdock, 284 U. S. 141, 148 et seq., 52 S.Ct. 63, 76 L.Ed. 210. The testimony which the petitioner gave at the hearing, and without objection, was not of such a nature as to expose him to either of these consequences. The political activity in which the petitioner admittedly engaged, and concerning which he *3 gave testimony, warranted nothing more than the imposition of a remedial sanction, to wit, removal from his position.
The imposition of such a remedial sanction, although it may be of serious consequence to the person affected, may not be regarded as the forfeiture of a right; it is our opinion that it is nothing more than the withholding of a privilege. A person may have a right to qualify for and hold "public office," but he has no right to "public employment;" the latter is nothing more than a privilege which is subject to termination at the will of the employer, subject only to the applicable civil service laws. The distinction is recognized by the Act, which by its express terms is not applicable to: "(1) the Governor or the Lieutenant Governor of any State or any person who is authorized by law to act as Governor, or the mayor of any city; (2) duly elected heads of executive departments of any State, or municipality who are not classified under a State or municipal merit or civil-service system; (3) officers holding elective offices." Section 12(a), 5 U.S.C.A. § 118k(a).
The order of the United States Civil Service Commission is affirmed.


Filed 12/19/13 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2013 ND 241

Richard Dahm, 		Appellant

v.

Stark County Board of County Commissioners, 		Appellees

No. 20130238

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

Amy L. De Kok (argued), Jillian Rupnow (appeared), and Lawrence Bender (on brief), P.O. Box 1855, Bismarck, ND 58502-1855, for appellant.

Mitchell D. Armstrong, P.O. Box 460, Bismarck, ND 58502-0460, for appellees.

Dahm v. Stark County Board of County Commissioners

No. 20130238

VandeWalle, Chief Justice.

[¶1]	Richard Dahm appealed from a district court judgment affirming the decision of the Stark County Board of County Commissioners (“County Board”) to deny his application for a zoning change and a preliminary plat approval.  We affirm, holding the County Board’s decision to deny the application and institute a six-month appearance prohibition was not arbitrary, capricious, or unreasonable.  We also hold the district court did not err in denying Dahm’s motion to submit additional evidence.

I

[¶2]	In July 2012, Dahm submitted an application to the County Board for a zoning amendment to change his property designation from agricultural to residential.  Dahm also sought approval of a preliminary plat called Duck Creek Estates.  The purpose of the application was to obtain approval for the creation of a ninety-nine lot residential subdivision to “provide a rural living environment in a quasi-urban setting . . . .”  The land at issue is located within a portion of the East Half of Section 2, Township 139, Range 97.  The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south.  The property is adjacent to a previously platted subdivision called Maryville Subdivision.

[¶3]	Two public hearings were held before the Planning and Zoning Commission.  At the first hearing, City and County Planner Steve Josephson recommended denying Dahm’s application based on several alleged deficiencies: Dahm did not specify which residential district he wanted to re-zone; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in “pinching” the water flow of Duck Creek; and no potable water was available at the site.  Planner Josephson also found the application was inconsistent with the Stark County Comprehensive Plan, a guide for county land development.  Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application.

[¶4]	In response, Dahm submitted additional information to the County Board, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps.  The Southwestern District Health Unit also submitted a letter stating that Dahm’s plans for a sewer system were satisfactory.  Prior to the second public hearing, Planner Josephson again recommended denying Dahm’s application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and the application was inconsistent with the Stark County Comprehensive Plan.

[¶5]	At the second public hearing, Dahm’s attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent owner’s property could also be re-zoned.  Dahm’s attorney also claimed traffic density would be about 925 vehicles per day.  Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control.  Planner Josephson also spoke in opposition to the application.  Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains.  Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request.

[¶6]	The County Board adopted the recommendation of the Zoning Commission and denied Dahm’s request by a vote of 5-0.  In voting to deny the application, Commissioner Elkin stated:

This project has come before us three times already — three months in a row. The issues that were of concern by the planning and zoning board were never addressed, fencing issues, road issues, sewage issues, and with that I’m going to second that motion to deny with a condition that they not be allowed to come before us for six months.

In its motion denying the application, the County Board also included a provision that Dahm could not appear before the County Board for six months.

[¶7]	Dahm appealed the County Board’s decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board.  Dahm also argued two of the County Commissioners, Jay Elkin and Russell Hoff, had “direct pecuniary involvement in recent land development in the same vicinity as the Project,” and their decision to deny the application had possibly been colored by their own economic self-interest.  The court denied Dahm’s motion to submit additional evidence and affirmed the County Board’s decision to deny the application for zoning change.

II

[¶8]	In an appeal from a board of county commissioners, we have stated that the “principle of separation of powers precludes parties from relitigating the correctness and propriety of the county [board’s] decision and prevents a reviewing court from sitting as a super board and redeciding issues that were decided in the first instance by the county commission.”
Hagerott v. Morton Cnty. Bd. of Comm’rs
, 2010 ND 32, ¶ 7, 778 N.W.2d 813.  Accordingly, our standard of review is very deferential:

When considering an appeal from the decision of a local governing body under N.D.C.C. § 28–34–01, our scope of review is the same as the district court’s and is very limited. This Court’s function is to independently determine the propriety of the [Board’s] decision without giving special deference to the district court decision. The [Board’s] decision must be affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision. A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.

Grand Forks Hous. Authorities v. Grand Forks Bd. of Cnty. Comm’rs
, 2010 ND 245, ¶ 6, 793 N.W.2d 168 (internal citations omitted).  “Such a standard of review ensures that the court does not substitute its judgment for that of the local governing body which initially made the decision.”
Hector v. City of Fargo
, 2009 ND 14, ¶ 9, 760 N.W.2d 108.  In an appeal from a county board, “the record is adequate to support the findings and conclusions of the [board] if it allows us to discern the rationale for the decision.”
Id.

III

[¶9]	Dahm contends the decision of the County Board to deny his application for zoning change and preliminary plat was arbitrary, capricious, and unreasonable.  Dahm asserts two main rationales why the County Board erred.  First, he argues the County Board failed to adequately consider his application and the evidence he presented.  Second, he argues two county commissioners had conflicts of interest which were founded on preference for their own land development projects and prejudice against Dahm’s competing Duck Creek Estates project.

A. Failure to Adequately Consider Evidence

[¶10]	“On appeal from a decision of a county commission, a reconsideration of evidence is limited to the extent that such evidence was presented to the county commission, and the evidence must be reviewed in light of the commission’s decision to determine whether that decision was arbitrary, capricious, or unreasonable.”
Pulkrabek v. Morton Cnty.
, 389 N.W.2d 609, 613 (N.D. 1986).  The burden is on the moving party to show that the decision of the County Board was arbitrary, capricious, unreasonable or that there is no substantial evidence to support the decision
.
Id.
  “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Hanson v. Indus. Comm’n of N.D.
, 466 N.W.2d 587, 590 (N.D. 1991).

[¶11]	At the time Dahm’s application was submitted and denied, a Stark County ordinance provided that “the county commissioners of Stark County are hereby empowered to regulate the use of land, height and bulk of buildings, and areas of yards and lots.”  Stark Cnty. Zoning Ordinance, Art. I, § 1.02 (1983).  The purpose of the ordinance was to “promote the public health, safety and general welfare of the people of Stark County, to secure the orderly development of the county, and to provide the sound and appropriate use of land.”
Id.
 at § 1.01.  A new ordinance was enacted during the pendency of this appeal.

[¶12]	The new ordinance requires all subdivision lots to be at least five acres, or 217,800 square feet.  Under the old ordinance, serviced single-family, modular, or duplex lots were only required to be 7,000 square feet.  Although Dahm contends the new ordinance will make his future zoning applications more “onerous,” neither he nor the County Board argue that the new ordinance applies to the scope of this appeal beyond that fact.  To that extent, the new ordinance does not apply to our analysis on the issue of whether the decision of the County Board was arbitrary, capricious, unreasonable or not supported by substantial evidence.
See

Mini Mart, Inc. v. City of Minot
, 347 N.W.2d 131, 138 n.4 (N.D. 1984) (declining to take judicial notice of a new ordinance passed during the pendency of appeal because the parties did not brief or argue it applied).

[¶13]	The old ordinance provided the procedural framework for applicants seeking to apply for zoning amendments.

 To apply for an amendment, the applicant needed to acquire an application from the zoning administrator, complete the application, and re-submit it.
Stark Cnty. Zoning Ordinance,
Art. IX, § 9.05.
The administrator submitted the application to the Zoning Commission for review at their next scheduled public hearing.  The Zoning Commission would then hold a public hearing, review the amendment, and forward a recommendation to approve or deny the application to the County Board.
Upon receipt of the recommendation, the County Board would approve or deny the application.

[¶14]	In framing its zoning decisions, the Zoning Committee and County Board also looked to the Stark County Comprehensive Plan, a growth management policy established pursuant to
N.D.C.C. § 11-33-03.  The Plan was amended in 2010 based on the county’s rapid growth in the agricultural and energy sectors.  The Plan sets forth various aspirational goals for long term development.  Key to this appeal is the goal of efficient land use; to “[a]ssure that the use of land is properly planned and compatible with adjacent land uses.”  To
achieve this goal, the plan seeks to encourage the wise use of agricultural land, protect the agricultural integrity of rural areas, ensure orderly and desirable energy development, provide for proper growth management practices, and avoid conflicts between land uses.  In accord with these objectives, the Plan also sets forth various implementation strategies including: prohibiting non-agricultural uses of flood plain areas; ensuring subdivision development programs do not create runoff, siltation, or conflicting uses for adjacent property owners; the establishment of rural subdivisions in accessible, easy to service areas; and providing that adequate water and waste disposal is available prior to subdivision approval.

[¶15]	In declining Dahm’s application for a zoning amendment and preliminary plat approval, the County Board adhered to the established ordinance procedure for reaching a reasoned decision.  Dahm obtained and submitted a zoning application.  The application was reviewed by Planner Josephson.  Josephson noted the plan conflicted with several goals and objectives of the Comprehensive Plan.  The application was reviewed by the Zoning Commission.  At least two public meetings were held.  Dahm was allowed to speak in favor of the amendment while neighboring individuals from the Maryville Subdivision spoke out against the application.  At the second meeting, commissioners questioned Dahm on several apparent deficiencies, including the impact on wetlands, whether there was adequate water and waste disposal, population density, and the impacts of increased traffic.  Commissioner Hoff stated, “
[w]ater, that’s still a question . . . the water well there isn’t even good enough for cattle anymore. . . . And the roads, we know most of the traffic is still going to come out at Maryville Subdivision. And how fair is that to intrude on another subdivision?  I don’t think it’s fair.”  Commissioner Jackson stated “it still comes down to being a high density — higher density urban development out in the country, even if we end up being satisfied with the water, sewer, and the access.
”

[¶16]	After reviewing the evidence, the Zoning Commission recommended a denial.
In its official recommendation, the Zoning Commission stated “
there continues to be concerns with density, traffic, and sewer and water issues for residential development of the property.”  Additionally, the Zoning Commission determined the application was inconsistent with at least four goals of the Comprehensive Plan:

1. LAND USE—Stark County supports subdivision designs that are compatible with the environmental characteristics of the site, as well as complement the location;

2. LAND USE—Stark County supports ensuring that adequate water and waste disposal are available prior to subdivision approval;

3. NATURAL RESOURCES—Stark County supports the preservation of open spaces and natural resources in private and public development;

4. TRANSPORTATION—Stark County supports the prohibition of non-farm development from being placed in a location that does not have a paved road or highway as its primary route of access to the development’s local street system.

The County Board adopted these findings.

[¶17]	The procedural compliance of the Zoning Commission and the County Board indicates that the decision to deny the application was not
arbitrary, capricious, or unreasonable.  This Court has previously stated that, where a zoning commission follows “steps, analysis, and hearings as required and denoted” in the ordinance, and where the decision is based on “reasoned and rational analysis of the issues underlying the amendments, including the nature of the surrounding property, the goals of the [County] in developing the area, and the breadth of the [applicant’s] request,” the decision is neither arbitrary, capricious or unreasonable.
Hector
, 2009 ND 14, ¶ 19, 760 N.W.2d 108.  The procedure followed here characterizes
 an “exercise
of discretion” that is the product of a “rational mental process by which the facts and the law relied upon are considered together . . . .”
Grand Forks Hous. Authorities
, 2010 ND 245, ¶ 6, 793 N.W.2d 168
.

[¶18]
With the “increased scrutiny of the cost of public services, changing economic trends, growing concern about the effects of land consumption, and energy development” in Stark County, county planners sought to “[a]ssure that the use of land is properly planned and compatible with adjacent land uses.”  The evidence in the record reflects the Zoning Commission’s concern with population density was at odds with Dahm’s proposal to create ninety-nine new residential lots.  Given the goal of compatible land use, preservation of open spaces and natural resources, traffic control, and adequate water, the County Board did not act in an arbitrary, capricious or unreasonable manner in denying the application.
Here,
 “the record is adequate to support the findings and conclusions” of the County Board because the decision allows this Court “to discern the rationale for the decision.”
Hector
, 2009 ND 14, ¶ 9, 760 N.W.2d 108.

[¶19]	Dahm also argues “[w]here
a subdivision plat addresses all issues listed in a county’s subdivision regulations the plat must be ‘finally approved.’ N.D.C.C. § 11-

33.2-12.”  Dahm contends, “[o]nce the applicable regulations are complied with, it becomes the ‘mandatory duty’ of the zoning authority to approve a subdivision plat.”  Dahm argues he addressed each of the alleged deficiencies in his application, and the County Board must approve it.  In determining whether a plat shall be approved or disapproved, the County Board shall:

determine if appropriate provisions are made for the public health, safety, and general welfare, for open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and school grounds, but its determination is not limited to the foregoing. The board shall consider all other relevant facts and determine whether the public interest will be served by the subdivision. . . .
If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served . . . then the board of county commissioners shall disapprove the proposed plat.

N.D.C.C. § 11-33.2-12(3).   The Zoning Commission and the County Board did take into account such factors as open spaces, drainage, streets, water supplies, and waste disposal, in addition to other considerations, in denying the application.  Because it found Dahm’s application was at odds with the Comprehensive Plan, it was under no duty to approve the request.

[¶20]	Dahm’s argument that the County Board failed to adequately consider the evidence essentially urges this Court to re-weigh the evidence in favor of approval.  He asserts the County failed to review the evidence and arbitrarily constructed new hurdles each time he appeared.  However, in reviewing appeals from county boards,  “the principle of separation of powers precludes parties from relitigating the correctness and propriety of the county commission’s decision and prevents a reviewing court from sitting as a super board and redeciding issues that were decided in the first instance by the county commission.”
Hagerott
, 2010 ND 32, ¶ 7, 778 N.W.2d 813.  It is not the province of this Court to substitute its judgment for that of the County Board.

B. Conflict of Interest

[¶21]	Dahm also argues the denial was arbitrary and capricious because “the denial was founded on preference for [Commissioner Hoff and Elkin’s] own projects, and prejudice against [his] competing project.”  Dahm alleges Commissioner Hoff purchased a large tract of land near Dickinson in August 2010, and sold a portion of the property to Roers Development in July 2012.  Dahm asserts Roers Development intends to develop 1,000 acres, including land Hoff still owns, into commercial and high density residential lots in the vicinity of Dahm’s proposed Duck Creek Estates project.  Dahm contends Commissioner Elkin engaged in similar land and financial transactions with Bakken Shale Development, a company allegedly developing land in the vicinity of the proposed Duck Creek Project.

[¶22]	Dahm did not raise the issue of a conflict of interest to the County Board.  He attempted to introduce the evidence in the district court, but the court denied his motion.  “On appeal from a decision of a county [board], a reconsideration of evidence is limited to the extent that such evidence was presented to the county [board] . . . .”
Pulkrabek
, 389 N.W.2d 609, 613 (N.D. 1986).  This Court has also held, “[t]he failure to raise the issue of judicial bias in the [district] court precludes our review on appeal.”
Frueh v. Frueh
, 2009 ND 155, ¶ 20, 771 N.W.2d 593.

[¶23]	Dahm argues he was at first unaware of the potential conflict, and that, even if he did have such knowledge, “it would likely not have been prudent for Dahm to address such issues at a public hearing. Such information would not have been received well, and would have made it even less likely that the Application would be approved.”  The County Board argues Dahm cannot use the appeal process to assert issues that should have been raised below.  The County Board cites
Rakowski v. City of Fargo
, 2010 ND 16, ¶ 15, 777 N.W.2d 880, for the proposition that “‘[o]ne of the touchstones for an effective appeal on any proper issue’ is that the issue was properly raised below so that the original decisionmaker has a meaningful opportunity to make a correct decision and an adequate record is developed for appeal.”

[¶24]	Because the additional evidence Dahm seeks to admit is speculative in nature and was not presented to the County Board, we decline to reconsider such evidence here and we limit our review to the evidence that was presented to the County Board.
See

Pulkrabek
, 389 N.W.2d 609, 613 (N.D. 1986).
We conclude the decision of the County Board to deny the application was not arbitrary
, capricious, or unreasonable, and there is substantial evidence to support the decision.

IV

 [¶25]	Dahm argues the six-month restriction from appearing before the County Board was not only arbitrary, capricious, and unreasonable, it was also unconstitutional.  Dahm alleges, because the new ordinance was passed during the six-month prohibition period, he is now forced to apply for an amendment “under the more onerous” new ordinance and its requirements for much larger subdivision lots.  Dahm contends he purchased the Duck Creek Estates land “with the intent to subdivide the property and provide affordable single family housing in a ‘quasi-rural’ setting.  Dahm did so in reliance on the original ordinance and subdivision regulations. Because the County Board’s decision deprived Dahm of all reasonable use of the property, the decision constitutes an unconstitutional taking.”

[¶26]	Regarding the constitutional nature of Dahm’s claim, this Court has previously held that, on appeal from a county commission decision under N.D.C.C. § 11-33-12, the moving party cannot turn an appeal from a denial of a change in zoning request into an inverse condemnation action.  In
Gowan v. Ward Cnty. Comm’n
, 2009 ND 72, ¶ 11, 764 N.W.2d 425, this Court stated, “Gowan also claims the Commission’s action has resulted in an unconstitutional taking of his property without just compensation. This is not an inverse condemnation action, but is an appeal from a decision of a local governing body . . . . Gowan cannot turn this appeal into an inverse condemnation action.”   Here, as in
Gowan
, we decline to address Dahm’s claim on appeal that the County Board’s decision resulted in an unconstitutional taking of his property.
See also

Hagerott
, 2010 ND 32, ¶ 24, 778 N.W.2d 813.

[¶27]	The decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable.  In making its decision, the County Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density.  As the district court reasoned, “the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County’s authority and obligation to regulate land use . . . by their decision to impose the six month prohibition.”  Here, given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

V

[¶28]	Dahm argues the district court erred in denying his motion to submit additional evidence.  Dahm contends the district court should have allowed him to offer evidence not only pertaining to Commissioners Elkin and Hoff’s alleged conflicts of interest,  but evidence of similar residential subdivisions that were previously approved as well.

[¶29]	Under N.D.C.C. § 28-34-01(3), a district court “may order that such additional evidence be taken, heard, and considered by the local governing body on such terms and conditions as the court may determine” if it is shown to the satisfaction of the court that “such additional evidence is material and that there are reasonable grounds for the failure to adduce such evidence in the hearing . . . or that such evidence is material to the issues involved and was rejected or excluded by the local governing body . . . .”  “A district court’s decision whether to order the taking of additional evidence under N.D.C.C. § 28–34–01(3) is discretionary.”
Grand Forks Homes, Inc. v. Grand Forks Bd. of Cnty. Comm’rs
, 2011 ND 50, ¶ 8, 795 N.W.2d 381.  “A trial court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.”
State v. Ramsey
, 2005 ND 42, ¶ 8, 692 N.W.2d 498.

[¶30]	The district court found that the evidence Dahm sought to admit was not “material evidence” or sufficient to reverse the County Board’s decision.  The court reasoned, “[d]ecisions made in regard to other subdivisions were made in relation to the unique characteristics of those parcels, the unique circumstances concerning the time, and other factors surrounding each application.”  The court found if such evidence were allowed, the entire record of allegedly similar projects would have to be included.  The court further stated, “times change.”  When Dahm submitted his application, a new County Planner had been hired to review zoning amendments.  “The Zoning Commission had more resources that allowed them to better examine an application and hold an applicant to a higher level of scrutiny.”  Additionally, the court found Commissioner Elkin and Hoff’s alleged conflict of interest were not material.  The court noted the Zoning Commission and County Board decisions were unanimous, and that Dahm did not provide a reasonable explanation for failing to present the bias evidence to the County Board.

[¶31]	 We conclude the district court’s application of the facts and law was not arbitrary, capricious, or unreasonable.
  We agree with the analysis of the court that past zoning decisions do not necessarily reflect the realities of the current rapid growth in Stark County.  In exercising its planning and zoning responsibilities, the County Board should learn from its past experiences and be allowed a reasonable time to make the necessary modifications to the zoning ordinances and County Comprehensive Plan before approving further applications that may be inconsistent with those modifications.

[¶32]	Additionally, the court’s finding that the alleged conflicts of interest should have first been introduced to the County Board and that the decisions of the Zoning Commission and the County Board were unanimous, also support the reasonableness of the court’s decision.  This Court has held,
“[w]e do not believe the legislature envisioned nullification of a proceeding where a disqualified board member casts a non-determinative vote.”
Klindt v. Pembina Cnty. Water Res. Bd.
, 2005 ND 106, ¶ 30, 697 N.W.2d 339.  We conclude the district court did not abuse its discretion in denying Dahm’s motion to submit additional evidence.

VI

[¶33]	We affirm the judgment of the district court holding the County Board’s decision to deny Dahm’s application and institute a six-month appearance prohibition was not arbitrary, capricious, or unreasonable.  We also hold the district court did not err in denying Dahm’s motion to submit additional evidence.

[¶34]	Gerald W. VandeWalle, C.J.

Carol Ronning Kapsner

Mary Muehlen Maring

Daniel J. Crothers

Dale V. Sandstrom


103 F.3d 142
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Howard James HARRIS, Defendant-Appellant.Howard James HARRIS, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
Nos. 95-10239, 95-15255.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 12, 1996.Decided Nov. 6, 1996.

1
Before:  O'SCANNLAIN, LEAVY, Circuit Judges, and HUFF*, District Judge.

2
MEMORANDUM**

3
Appellant Howard James Harris moves to set aside a guilty plea entered in a 1988 narcotics distribution case.  Appellant seeks to set aside his plea although he has already received a sentence from the lower court.  Appellant is currently serving a 292-month sentence pursuant to a plea bargain implicating him in two of the several drug counts handed down against appellant in his indictment and superseding indictment.  On January 20, 1995, the lower court issued an order denying defendant's motion to withdraw his plea agreement.  Defendant appeals the denial of his motion.  This court has jurisdiction under 28 U.S.C. section 1291.  We affirm.

4
I. POST-SENTENCING WITHDRAWAL OF GUILTY PLEA

5
A district court's decision whether or not to grant a motion for withdrawal of a guilty plea is subject to review under an abuse of discretion standard.  United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995);  United States v. Oliveros-Orosco, 942 F.2d 644, 645-46 (9th Cir.1991).  Abuse of discretion may be defined as "a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found."  International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (quoting Washington Capitols Basketball Club, Inc., 419 F.2d 472, 476 (9th Cir.1969)).

6
We find no abuse of discretion in the district court decision to deny appellant's motion to withdraw his guilty plea once Harris received a sentence that was not to his satisfaction.  Harris was facing an underlying indictment and a superseding indictment when he and his counsel negotiated with the government for the entry of a guilty plea in exchange for the dismissal of certain counts in the two indictments.  Fed.R.Crim.P. 11(e)(1)(A).

7
Appellant raises the meritless contention that he would have proceeded to trial had he realized that the sentencing judge could legally aggregate the narcotics from the dismissed counts in calculating appellant's sentence.  Notably, the terms of Harris's plea agreement specified that the sentencing judge was not a party to the agreement and that the judge was free to impose the maximum penalties under law.  Memorandum of Plea Agreement p 12.  At no point does appellant argue that he was forced to execute the plea agreement with the government.  Harris's claim is contradicted by the provisions of his plea agreement.  Memorandum of Plea Agreement pp 2, 3, 9, 11, 12.  Likewise, at no point does appellant argue that the district court failed to comply with Fed.R.Crim.P. 11(d) by determining in open court that Harris freely entered into the negotiations resulting in his guilty plea.

8
The law of this circuit and of several other circuits supports the use of dismissed counts to determine the offense level in cases such as appellant's.  See e.g., United States v. Turner, 898 F.2d 705, 711 (9th Cir.), cert. denied, 495 U.S. 962 (1990) (affirming the actions of the district court in aggregating total amount of drugs involved in the transactions listed on defendant's indictment to determine defendant's relevant conduct, and, accordingly, defendant's total sentence);  United States v. Wright, 873 F.2d 437, 440-41 (1st Cir.1989) (declaring that the fact that the guidelines largely base sentences on the amount of drugs possessed does not make a plea bargain under Fed.R.Crim.P. 11(e)(1)(A) "futile");  United States v. Rodriguez-Nuez, 919 F.2d 461, 464 (7th Cir.1990) (rejecting the argument that it was "fundamentally unfair" to increase a sentence based on quantities of drugs contained in counts dismissed by plea bargain);  United States v. Restrepo, 903 F.2d 648, 653 (9th Cir.1990), cert. denied, 503 U.S. 961 (1992) (holding that, on the basis of conduct, the guidelines allow the grouping of drug amounts);  United States v. Scroggins, 880 F.2d 1204, 1213-14 (11th Cir.1989), cert. denied, 494 U.S. 1083 (1990) (refuting the claim that the application of § 1B1.3(a)(2) to a dismissed count was "inequitable," as the plea bargain did not preclude the district court from considering the entirety of the evidence).

9
Appellant has no right under the law, except in cases of manifest injustice, to withdraw a guilty plea entered after his sentence.  Absent manifest injustice, a guilty plea may not be withdrawn after sentencing.  United States v. Ramos, 923 F.2d 1346, 1358 (9th Cir.1991).  Appellant has shown no such injustice.  Nearly seven months after the trial court accepted appellant's guilty plea, defendant appeared for his first sentencing.  Fed.R.Crim.P. 11(d).  While the trial court declared that it would sentence Harris "on the facts contained in the plea agreement," the plea agreement signed by the parties stated that the sentencing judge was not bound by the agreement and could opt to impose the maximum penalties, should the court see fit.  Memorandum of Plea Agreement p 12.  The plea agreement also informed Harris that the government, as a party to the agreement, might disagree as to facts in the case.  Id. p 7.   The agreement put Harris on notice that the government was entitled to fully apprise the court of the nature, scope and extent of the defendant's conduct regarding the charge against him.  Id. p 13.   When the trial court sentenced appellant on the facts in the plea agreement, the trial court imposed sentence in accordance with a highly-contested set of facts.

10
We conclude that the trial court at sentencing neither induced the guilty plea entered approximately seven months before, nor committed itself to ignore the dismissed narcotics counts.  Appellant's plea bargain did not limit the presentation of facts or the court's acceptance of the full facts.  To the contrary, the agreement contained a clause explaining that the Attorney General's office would fully apprise the court "of the nature, scope and extent of the defendant's conduct regarding the charge against him."  Id. p 13.   Harris fails to show "manifest injustice" resulting from the inclusion of relevant conduct in the total drug calculation.  Ramos, 923 F.2d at 1358.

11
Since the trial court did not abuse its discretion in denying the motion to withdraw the guilty plea, we need not determine whether appellant's failure to raise the issue in two previous appeals waives his right to raise it on this appeal.

12
AFFIRMED.

*
 The Honorable Marilyn L. Huff, United States District Judge for the Southern District of California, sitting by designation

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3