________________________________________________________________ No. 17-16655 ________________________________ UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT ________________________________________________________________ JAMUL ACTION COMMITTEE, et al., Plaintiffs-Appellants, v. JONODEV CHAUDHURI, Chairman of the National Indian Gaming Commission, et al., Defendants-Appellees ________________________________ On Appeal from the United States District Court for the Eastern District of California Hon. Kimberly J. Mueller, No. 2:13-cv-01920 KJM ________________________________ TRIBALLY-RELATED DEFENDANTS’-APPELLEES’ ANSWERING BRIEF ________________________________ FRANK LAWRENCE, CA Bar No. 147531 ZEHAVA ZEVIT, Of Counsel, CA Bar. No 230600 LAW OFFICE OF FRANK LAWRENCE 578 Sutton Way No. 246 Grass Valley, CA 95945 (530) 478-0703 Counsel for Tribally-Related Defendants-Appellees Case: 17-16655, 02/20/2018, ID: 10770372, DktEntry: 19, Page 1 of 88
FRANK LAWRENCE, CA Bar No. 147531ZEHAVA ZEVIT, Of Counsel, CA Bar. No 230600LAW OFFICE OF FRANK LAWRENCE578 Sutton Way No. 246Grass Valley, CA 95945(530) 478-0703Counsel for Tribally-Related Defendants-Appellees
Pursuant to Federal Rule of Appellate Procedure 26.1, defendant PennNational Gaming, Inc., hereby certifies that it has no parent corporation and thereis no publicly held corporation that owns 10% or more of its stock. Defendant SanDiego Gaming Ventures LLC hereby certifies that it is a limited liability companywith a sole member which is defendant Penn National Gaming, Inc. DefendantC.W. Driver, Inc. certifies that it is a wholly owned subsidiary of C.W. DriverHoldings, Inc. and there is no publicly held corporation that owns 10% or more ofits stock.
RULE 26.1 CORPORATE DISCLOSURE STATEMENT..................................... ii
I. INTRODUCTION................................................................................................. 1
II. JURISDICTIONAL STATEMENT. ................................................................. 16
III. STATEMENT OF ISSUES. ............................................................................. 17
IV. STATEMENT OF THE CASE. ....................................................................... 17
A. Factual Background. ................................................................................ 18
B. Procedural Background........................................................................... 23
V. SUMMARY OF ARGUMENT. ........................................................................ 26
VI. ARGUMENT.................................................................................................... 29
A. The District Court Correctly Dismissed the SAC as Against theTribally-Related Defendants for Failure to Join the Tribe as aNecessary and Indispensable Party. ................................................... 29
1. Standard of Review on Appeal of Rule 19 Dismissals. ................. 29
2. Dismissal under Fed. R. Civ. P. 19. ............................................... 30
3. The District Court Correctly Found that the Tribe is a Necessary,Indispensable and Required Party............................................ 32
4. The District Court Correctly Held that the Tribe Cannot be JoinedBecause It is Immune from Suit............................................... 42
5. Tribal Officials are Immune from Suit and Cannot Represent theTribe’s Interests In This Case. ................................................. 48
6. The Tribe’s Interests Are Not Represented. ................................... 52
B. This Court Should Not Adjudicate Most of the Issues Discussed in theOpening Brief Because The Issues Were Not Adjudicated in theDistrict Court and are Foreclosed Under Big Lagoon. ....................... 54
VII. CONCLUSION. .............................................................................................. 57
STATEMENT OF RELATED CASES.................................................................. 57
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS............................................................... 63
STATUTORY AND REGULATORY ADDENDUM. ......................................... 64
I. RELEVANT PROVISIONS OF THE INDIAN REORGANIZATIONACT.................................................................................................... 65
II. RELEVANT PROVISIONS OF THE FEDERALLY RECOGNIZEDINDIAN TRIBES LIST ACT. ........................................................... 66
III. RELEVANT PROVISIONS OF THE INDIAN GAMINGREGULATORY ACT........................................................................ 67
IV. RELEVANT PROVISIONS OF THE NATIONALENVIRONMENTAL POLICY ACT , 42 U.S.C. §§ 4321-4370H.... 71
IV. RELEVANT PROVISIONS OF TRIBAL-STATE GAMINGCOMPACT. ....................................................................................... 71
CERTIFICATE OF SERVICE. .............................................................................. 77
Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002). . 10, 11, 12, 31
American Vantage Cos., Inc. v. Table Mountain Rancheria, 292 F.3d 1091 (9th Cir. 2002). ........................................................................... 45
Big Lagoon Rancheria v. California, 789 F.3d 947 (9th Cir. 2015). ..................................................... 16, 29, 55, 56, 57
California ex rel. Department of Fish and Game v Quechan Tribe of Indians,595 F.2d 1153 (9th Cir. 1979). ........................................................................... 44
Chemehuevi Tribe v. California Board of Equalization, 757 F.2d 1047 (9th Cir.1985), rev’d on other grounds, 474 U.S. 9 (1985)........................................ 44, 45
Clinton v. Babbitt, 180 F.3d 1081 (9th Cir. 1999).................................................. 30
Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496 (9th Cir. 1991). ........................................................................... 40
Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718 (9th Cir. 2008)........... 9, 50, 51
Dawavendewa v. Salt River Project Agr. Imp. and Power District, 276 F.3d 1150 (9th Cir. 2002). ..................................................................... 32, 52
E.E.O.C. v. Peabody Western Coal Company, 610 F.3d 1070 (9th Cir. 2010). ..................................................................... 31, 35
Ex Parte Young, 209 U.S. 123 (1908). ................................................................... 52
Exxon Shipping Company v. Baker, 544 U.S. 471 (2008). .............................. 17, 55
Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489 (9th Cir. 1995). ............................................................................. 54
In re Greene, 980 F.2d 590 (9th Cir. 1992)............................................................. 44
Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985). .............. 49
Ingrassia v. Chicken Ranch Bingo and Casino, 676 F. Supp. 2d 953 (E.D. Cal. 2009). ............................................................... 47
JAC v. Iwasaki, 140 Cal. Rptr. 3d (Cal. App. 2012). ............................................. 46
James v. U.S. Department of Health and Human Servs., 824 F.2d 1132 (D.C. Cir. 1987). ......................................................................... 48
Kescoli v. Babbitt, 101 F.3d 1304 (9th Cir. 1996).................................................. 30
Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751 (1998). ............... 45, 48
Larimer v. Konocti Vista Casino Resort, Marina and RV Park, 814 F. Supp. 2d 952 (N.D. Cal. 2011). ............................................................... 47
League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 507 F.2d 517 (9th Cir. 1974). ............................................................................. 36
Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001). .................................... 51
Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990). .......................... 11, 39
Miami Nation of Indians of Indiana, Inc. v. U.S. Department of the Interior, 255 F.3d 342 (7th Cir. 2001). ............................................................................. 47
In re Mortg. Store, Inc., 773 F.3d 990 (9th Cir. 2014)............................................ 56
Mulher v. Morongo Casino, Resort and Spa, 2015 WL 3824160 (C.D. Cal. June 17, 2015). ................................................... 47
NVG Gaming, Limited v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061 (N.D. Cal. 2005). ............................................................. 54
Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Auth.,207 F.3d 21 (1st Cir. 2000)................................................................................. 45
Okla. Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991)...................................................................................... 43, 44
Parke v. Raley, 506 U.S. 20 (1992). ....................................................................... 30
Pit River Home and Agr. Co-op. Assoc. v. U.S., 30 F.3d 1088 (9th Cir. 1994). ....................................................................... 30, 44
Purcell v. Gonzalez, 549 U.S. 1 (2006). ................................................................. 30
Puyallup Tribe v. Wash. Dept. of Game, 433 U.S. 165 (1977). ........... 43, 44, 45, 46
Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir. 1994). ............................ 44
Ramah Navajo School Board v . Babbitt, 87 F.3d 1338 (D.C. Cir. 1996).............. 42
Rosales v. U.S., 477 F. Supp. 2d 119 (D. D.C. 2007)......................................... 3, 19
Rosales v. U.S., Number 07-624, 2007 WL 4233060 (S.D. CA 2007). ................... 3
Rosales v. U.S., 73 F. App’x 913 (9th Cir. 2003)............................................. 14, 15
Sac and Fox Nation v. Hanson, 47 F.3d 1061 (10th Cir. 1995).............................. 45
Salt River Project Ag. Improvement and Power Dist. v. Lee, 672 F.3d 1176 (9th Cir. 2012). ........................................................................... 52
San Pasqual Band of Mission Indians v. State, 241 Cal. App. 4th 746 (2015) ...... 36
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ........................... 43, 44, 46, 48
Singleton v. Wulff, 428 U.S. 106 (1976).......................................................... 17, 56
Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983). .......................... 49
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877 (1986)............................................................................................ 48
Turner v. U.S., 248 U.S. 354 (1919)................................................................. 43, 46
U.S. v. Oregon, 657 F.2d 1009 (9th Cir. 1981). ..................................................... 49
U.S. v. Testan, 424 U.S. 392 (1976). ...................................................................... 44
U.S. v. U.S. Fidelity and Guaranty Co., 309 U.S. 506 (1940).......................... 43, 62
U.S. v. White Mountain Apache Tribe, 537 U.S. 465 (2003)................................. 44
Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993). .... 48
Defendants-Appellees Raymond Hunter, Carlene Chamberlain, Robert
Mesa, Richard Tellow, and Julia Lotta, – all current or former government officials
of the Jamul Indian Village (“Tribe”), a federally recognized Indian Tribe -- the
Tribe’s development partners Penn National Gaming, Inc. and San Diego Gaming
Ventures LLC, and the Tribe’s general contractor C.W. Driver, Inc. (collectively
“Tribally-Related Defendants”) hereby answer plaintiffs’ opening brief in support
of their appeal of the District Court’s Order (ER 8-211) and final judgment (ER 2)
dismissing the Second Amended Complaint in its entirety as against them and the
federal defendants.
Appellants’ opening brief is replete with inaccuracies, citations to
documents not in the record, and irrelevant argumentation. It is but the latest
example of Appellants’ years-long abuse of the judicial system. Appellant Jamul
Action Committee (together with the other appellants in this case “JAC”) and its
privies have long twisted the legal system seeking to delay, harass, and ultimately
stop the Tribe from exercising its federal right to build and operate a wholly-owned
1References to Appellants’ Excerpts of Record are to the corrected and refiledversions and appear herein as “ER [page no.].” References to Tribally RelatedDefendants’ supplemental excerpts of record appear as “SER [page no.].” References to JAC’s opening brief appear as “OB [page no.].” References toentries in the District Court Docket appear as “Dkt. [docket entry no.].”
tribal casino on its Reservation. In this case, one of dozens of frivolous cases filed
by JAC and its privies, JAC reiterates two central arguments that numerous courts,
including this Court, have already considered and rejected: (1) that the Tribe is not
federally recognized; and (2) that the Tribe’s lands are not federal Indian lands.
JAC has promoted these arguments unsuccessfully in lawsuit after lawsuit. JAC
and its privies have – incredibly – been doing this for decades, forcing the Tribe to
re-litigate the same issues again and again, and wasting the resources and time of
the Federal and State courts, Interior Board of Indian Appeals, Department of the
Interior, Department of Justice, and the Tribe.2 Like all of JAC’s and its privies’
2 Several years ago, the U.S. Federal Court of Claims decided two cases filed byone of JAC’s lawyers that "represent[ed] but the most [recent] iterations ofplaintiffs' persistent attempts – in the face of repeated dismissals and unfavorablejudgments over the course of 15 years – to ... wrest from the [Jamul Indian] Villagethe beneficial ownership of ... tribal land.” Rosales v. U.S., 89 Fed. Cl. 565, 571(2009). The court noted that these plaintiffs "have litigated or sought to litigatethese same and related issues in no fewer than fourteen legal actions [nowapproaching 40, including appeals] brought before tribal tribunals, administrativeboards, and federal [and State] courts in California and the District of Columbia,all without success.” Id. The court warned plaintiffs that their "current attempt todefy their fate – an attempt this court strongly admonishes plaintiffs to make theirlast – miscarries again.” Id. Plaintiffs and their privies have now filed at least adozen new lawsuits and appeals since that admonition, including this case, infurther meritless attempts to annihilate the Tribe's hopes for self-sufficiency. See,e.g., the related case of Rosales v. Dutschke, No. 2:15-cv-01145 (E.D. CA), appealpending with this Court, case No. 17-16967; Jamulians Against the Casino v.California Department of Fish and Wildlife, No. 34-2014-80001894 (Sac. Sup.Ct.);
previous legal actions, this one too is entirely devoid of merit and was properly
dismissed.
The Second Amended Complaint (“SAC”), the dismissal of which JAC now
appeals, was triggered by the National Indian Gaming Commission’s (NIGC)
publication in the Federal Register of a notice of intent to prepare a supplemental
Environmental Impact Statement. See 78 Fed. Reg. 21398 (April 10, 2013). The
NIGC published the notice in response to the Tribe’s request for federal approval
of a contract the Tribe had executed for the management of its casino. Tribes are
permitted under federal law to manage their own casinos, in which case they
require no approval to do so. However when, as here, a Tribe elects to contract
2(...continued)
Jamulians Against the Casino v. California Department of Transportation, No.34-2016-80002343 (Sac. Sup. Ct.); Jamulians Against the Casino v. CaliforniaDepartment of Transportation, No. 34-2015-80002231 (Sac. Sup. Ct.); JamuliansAgainst the Casino v. California Department of Transportation, No. 34-2014-80001752 (Sac. Sup. Ct.), appeal dismissed, 3rd Dist. Ct. App. No. C077806;Rosales v. Off Duty Officers, No. 37-2009-00092322-CU-PO-CTL (San DiegoSup. Ct), dism’d, 4th Dist. Ct. App. No. D064058 (7/30/2013); Jamulians Againstthe Casino v. Iwasaki/California Department of Transportation, No. 34-2010-8000428 (Sac. Sup. Ct.), 3rd Dist. Ct. App. No. C067138 (3/29/2012); Rosales v.U.S., No. 07-624, 2007 WL 4233060 (S.D. CA 2007), app. dism’d, No. 08-55027(9th Cir. Aug. 12, 2009). See also Rosales v. U.S., 477 F. Supp. 2d 119 (D.D.C.),aff’d 275 Fed. Appx. 1 (D.C. Cir. March 27, 2008); Rosales v. U.S., No. 01-951(S.D. CA), aff’d 73 Fed. Apx. 913 (9th Cir. 2003), cert. den. 541 U.S. 936(3/22/2004); Rosales v. U.S., 89 Fed. Cl. 565 (Fed. Ct. Cl. 2009), aff’d, No. 2010-5028, cert. den. 131 U.S. 2882 (2011).
with a third party to manage its casino, the Indian Gaming Regulatory Act
(“IGRA”), 25 U.S.C. § 2711,3 requires the Tribe to obtain federal approval. The
Jamul Indian Village sought the NIGC’s approval and, in response, the NIGC
determined that it would first conduct a supplemental environmental review under
the National Environmental Policy Act (“NEPA”), supplementing an
environmental analysis it had conducted 10 years earlier in response to a prior, now
withdrawn, tribal approval request. The NIGC sought this supplemental
environmental analysis to determine what impacts, if any, its approval of the
Tribe’s management contract might have on the environment, and published a
notice stating as much. See 78 Fed. Reg. 21398-01 (April 10, 2013).
JAC’s SAC claimed that the NIGC’s notice of intent to conduct a
supplemental environmental review in advance of taking final agency action on the
Tribe’s request for approval of a management contract actually constituted a
disguised final determination by the NIGC that the Tribe’s lands qualify as “Indian
lands” under IGRA. ER 351 at ¶2. JAC raised this argument despite the fact that
the NIGC’s notice was focused entirely on the potential environmental impacts of
its prospective approval of the Tribe’s management agreement, and not on
3Relevant provisions of pertinent laws are set forth verbatim and with appropriatecitation in an addendum introduced by a table of contents and bound with thisbrief. See 9th Circ. Rule 28-2.
anything having to do with the status of Tribal lands under IGRA, and despite the
fact that the federal government had only expressed an intent to conduct an
analysis but had not yet taken any final agency action.
JAC’s SAC also made a series of additional unrelated allegations, most of
which were aimed at the federal defendants and not at the Tribally-Related
defendants.4 The vast majority of the SAC focused on alleging that the Tribe is not
federally recognized and that its lands are not Indian lands, both of which are
frivolous claims rejected by numbers courts, including this Court. See generally
E.R. at 351-380.
JAC also attacked the NIGC’s approval in 2013 of the Tribe’s gaming
ordinance. See ER 351-380 ¶¶ 6, 75-76, 79, 85, 88, 99, 127, 133-34, 142 and
Prayer for Relief ¶¶ A, C, F, I. JAC argued that the NIGC had failed to conduct an
environmental review under NEPA prior to approving that ordinance. In one of
JAC’s prior interlocutory appeals in this case, this Court ruled that no such
4For example, it alleged that “based on” the NIGC notice of intent to conduct anenvironmental review, the NIGC approved a Tribal gaming ordinance for gaming. See SAC ¶ 3 at ER 351. It also alleged that the NIGC approved the Tribe’sproposed management contract without first conducting an environmental review, See SAC ¶ 4 at ER 351, even though the management contract had not yet beenapproved at that point and would only be approved two years later, on September30, 2016. SER 395-398; ER 4 lines 13-15.
dismissal was warranted, among many other reasons, because the Tribe was a
necessary and indispensable party that could not be joined.5 See SER 158-165.
Defendants explained that the SAC implicated questions that go to the core of the
Jamul Indian Village’s existence as a federally-recognized Tribe on tribal lands.
The SAC challenged the status of the Tribe’s federal Indian lands and alleged that
the Tribe is not federally-recognized. The remedies JAC sought expressly asked
the Court to declare as much. The Tribe was thus a necessary party. Yet the Tribe
was not a party to the action, nor could it be joined because it is immune from suit.
5 Tribally-Related Defendants also argued that dismissal was warranted because theSAC failed to state a claim. See generally SER 149-158. The SAC complainedabout actions that were taken either by the federal government or by the Tribe, butnone of the actions alleged were taken by, or attributed to, any of the Tribally-Related Defendants. Indeed, none of these defendants could have taken any ofthese actions which, by definition, can only be taken by a federal agency or a tribalgovernment, not by private individuals or corporations. See SER 149-151. Tribally-Related Defendants noted that the SAC also failed to state a claim becauseit alleged violations of statutes that either do not apply to them or do not provideJAC a cause of action. See SER 151-158. Defendants also noted that JAC lackedArticle III standing since the injunctive and declaratory relief it sought would notredress the alleged harms. See SER 175-176. Dismissal was also warranted as todefendants Carlene Chamberlain, an elected Tribal government official, andRaymond Hunter, Robert Mesa, Richard Tellow, and Julia Lotta, former Tribalgovernment officials, because they were sued for actions they took within thescope of their authority as Tribal government officials acting within their officialcapacities, and as such were immune from suit. See SER 170-172. Dismissal wasfurther warranted by collateral estoppel. See SER 165-169. Finally, dismissal wasfurther warranted as to defendants Chamberlain, Mesa, Tellow and Lotta becausethey were not served. SER 177-180.
The District Court’s holding that the Tribe is an indispensable party applied
to all claims (but the fifth6) because, as to each dismissed claim, “the JAC alleges
that the Tribe [is] not a federally recognized Indian tribe, that the real property on
which the casino will be built is not ‘Indian lands’ as defined by IGRA, or that the
casino’s construction and operation would violate the Tribe’s state compact.” ER
19 lines 4-7. The court also noted that “JAC asks the court to declare in effect that
the Tribe is not an Indian tribe, that its land is not its own, and that it violated its
compact with California.” Id. lines 7-9. The court concluded that the “Tribe is a
necessary party, it cannot be joined, and its absence prevents this case from
moving forward.” Id. lines 9-10.
JAC now appeals dismissal of the SAC. JAC’s rambling opening brief
devotes 54 out of 59 pages to wholly irrelevant matters including alleged (and
grossly inaccurate) centuries-old allegedly “historical” tidbits that have no bearing
on legal issues in this appeal. The brief also includes extensive unsupported
allegations about matters that are not at issue in this case, were never adjudicated,
and/or do not appear in the case’s record. For example, the brief includes
incorrect, misleading, and unsupported allegations about the status of various land
6The Rule 19 finding did not resolve JAC’s fifth claim – that the federal defendantspurportedly violated NEPA – because it was leveled solely at the federaldefendants, not at the Tribally-Related Defendants.
accompanying Request for Judicial). Those documents were never admitted into
the District Court’s record and thus are not part of the record in this appeal. The
same is true for all the documents JAC included in its Excerpts of Record from
page 253 through 350.
Another example of JAC’s inappropriate reliance on documents not in the
record occurs at OB 21, where JAC relies ER 141-146. These documents were
improperly submitted to this Court, not to the trial court, after oral argument in
JAC’s failed interlocutory appeal in this case. See JAC v. Chadhuri, No. 15-16021,
ECF 53. Tribally-Related Defendants objected to the inappropriate filing at ECF
54. Such documents are not part of the trial court record in this appeal.7
Further, JAC’s opening brief improperly attempts to re-argue matters on
which this Court has already ruled. For example, JAC wants this Court to rule that
the Tribe is not federally recognized and that it lacks sovereign immunity. See,
e.g., OB at 1, 4, 29, 34, 37, 45, 49, . JAC asks this Court to deny the Tribe’s federal
recognition despite the fact that numerous courts – including this Court, in this
case – have affirmed the Tribe’s federal recognition and sovereignty. See, e.g.,
7Tribally-Related Defendants hereby object all of the above referenced documentsimproperly included in JAC’s Excerpts of Record because they were not admittedinto the record by the District Court, along with any and all additional documentsthat are not properly part of the record on appeal.
The opening brief includes a section entitled “Statement of the Facts.” OB
13-22. Most of the material presented there is flawed either because it is
unsupported or because it is incomplete. Further, much of the material presented
as “fact” is actually JAC’s skewed (and wishful) thinking. More importantly,
however, the vast majority of JAC’s alleged “facts” are irrelevant for purposes of
this appeal.8
The Opening Brief’s “Statement of the Case,” OB 22-28, essentially repeats
the SAC’s substantive claims. None of these substantive claims was adjudicated in
the District Court, and accordingly they are not at issue on appeal. Accordingly,
Tribally-Related Defendants refrain from addressing them here.9
8To conserve resources and this Court’s time, Tribally-Related Defendants refrainfrom addressing the irrelevant allegations set forth in this section of the openingbrief except to the limited extent addressed below. Tribally-Related Defendantsobject to all of JAC’s alleged “facts” beyond those addressed herein as irrelevant.
9To the extent this Court nonetheless elects to adjudicate any of these claims,Tribally-Related Defendants direct the Court’s attention to SER 130-181 (Motionto Dismiss Second Amended Complaint), 182-332 (Declaration of Erica Pinto,with exhibits), and 333-353 (Reply Brief in Support of Motion to Dismiss), whichdemonstrate that JAC has failed to state a claim with regard to each and every one
See SER at 175-176. In addition, plaintiffs were collaterally estopped from
arguing that the Tribe was not a required party under Rule 19. See SER at 165-
169. Finally, plaintiffs failed to serve the complaint on specially-appearing
defendants Carlene Chamberlain, Robert Mesa, Richard Tellow and Julia Lotta
within the allotted time. See SER at 177-180.
In sum, the District Court properly dismissed the SAC as against the
Tribally-Related Defendants under Rule 19. This Court should affirm. This Court
should not, as appellants now oddly request, issue any injunctions JAC failed to
request in the lower court or adjudicate any substantive matters – including the
status of the Tribe and its lands – that this Court has already said are foreclosed by
Big Lagoon and which were not adjudicated in the District Court.
VI. ARGUMENT
A. The District Court Correctly Dismissed the SAC as Against theTribally-Related Defendants for Failure to Join the Tribe as aNecessary and Indispensable Party
1. Standard of Review on Appeal of Rule 19 Dismissals
Plaintiffs misrepresent the standard of review on appeal.10 This Court
10 OB 34-36 discusses various irrelevant standards of review. For example, at page35 it discusses an alleged standard for reviewing 12(b)(6) dismissals (for failure to
reviews a district court's decision to dismiss for failure to join an indispensable
party for abuse of discretion. See Ward v. Apple, Inc., 791 F.3d 1041, 1047 (9th
Cir. 2015); Clinton v. Babbitt, 180 F.3d 1081, 1086 (9th Cir. 1999); Kescoli v.
Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996). “To the extent that the district court's
determination whether a party's interest is impaired involves a question of law, we
review de novo.” Pit River Home & Agric. Coop. Assoc. v. United States, 30 F.3d
1088, 1098 (9th Cir. 1994).
JAC must overcome the presumption that the district court’s decision is
correct. See Walsh v. Centeio, 692 F.2d 1239, 1244 (9th Cir. 1982) (deferring to
district court’s discretion in analyzing abuse of discretion under Rule 19). See also
Parke v. Raley, 506 U.S. 20, 30 (1992); Purcell v. Gonzalez, 549 U.S. 1, 5 (2006).
JAC’s claimed error must implicate substantial rights, and this Court must
disregard any district court “errors or defects which do not affect the substantial
rights of the parties.” 28 U.S.C. § 2111. This Court may affirm on any ground
with support in the record, whether or not the district court decision relied on those
10(...continued)
state a claim). While Tribally-Related defendants argued, among other grounds fordismissal, that the SAC failed to state a claim, the District Court did not adjudicateJAC’s failure to state a claim. Instead, it dismissed the SAC as against theTribally-Related Defendants under Rule 19. Thus, the only relevant standard ofreview on appeal is that which applies to Rule 19 dismissals.
Indian lands, and that its agreements and ordinances should be effectively
invalidated. See id.
Similarly, JAC’s appeal asks this Court to rule on the very same issues. JAC
wants this Court to determine (1) whether the Tribe is entitled to a reservation (OB
4, 33); (2) whether the Tribe’s lands are “Indian lands” eligible for gaming under
IGRA (OB 5, 33) and (3) whether the Tribe is federally-recognized (OB 33, 34).
Rule 19 requires that the Court uphold dismissal here because JAC failed to
join the Tribe, which is both a required party and not feasibly joined. The District
Court correctly concluded that the Tribe has numerous “legally protected interests”
in this action which only the Tribe can represent. ER 16, lines 6- 8. For example,
the Tribe has a fundamental sovereign interest in its beneficial ownership of, and
governmental authority over, its federal Indian lands. See Rosales, 73 Fed. Appx.
at 914-15. The Tribe also has a fundamental interest in its continued status as a
federally-recognized Indian tribe, without which it cannot get access to critically
necessary government programs in the areas of housing, health care and education,
to name just a few.11
11 See, e.g., Indian Self-Determination and Education Assistance Act, 25 U.S.C. §450a (“the United States is committed to supporting and assisting Indian tribes inthe development of strong and stable tribal governments, capable of administeringquality programs and developing the economies of their respective communities”);
The Tribe also has an interest here because if the Court were to accept JAC’s
arguments, it could result in the invalidation or modification of its federally
approved Compact and Gaming Ordinance. See SAC at pp. 30-31 Prayer for
Relief, ER 379-80. The Indian Gaming Regulatory Act provides for tribal gaming
ordinances that are “adopted by the government body of the Indian tribe having
jurisdiction over such lands ....” 25 U.S.C. § 2710§(d)(1)(A)(i). IGRA further
provides for the execution of Tribal-State compacts by “[a]ny Indian tribe having
jurisdiction over the Indian lands upon which” gaming is conducted. 25 U.S.C. ¶
2710(d)(3)(A). And the Tribe’s Compact authorizes the Tribe to operate a gaming
facility “only on [its] Indian lands ....” Compact § 4.2, Pinto Dec. Ex. 2, SER 215.
Yet the SAC argues, and asks the Court to establish, that the Tribe’s federal Indian
trust lands are not its lands. See SAC pp. 10-12, 16, 30, at ER 359-361, 365, 379.
Without Indian lands over which the Tribe exercises jurisdiction, the Tribe’s
Compact and Gaming Ordinance would effectively be invalidated and the Tribe
would lose the right to operate a governmental gaming enterprise under the Indian
Gaming Regulatory Act. See Peabody W. Coal Co., 610 F.3d at 1082.
11(...continued)
25 U.S.C. § 450f (“The Secretary is directed, upon the request of any Indian tribeby tribal resolution, to enter into a self-determination contract or contracts with atribal organization to plan, conduct, and administer programs ...”); Indian HealthCare Improvement Act, 25 U.S.C. § 1601.
The Tribe’s Gaming Ordinance is also at stake because JAC directly attacks
it. The SAC expressly asks the Court to enjoin implementation of that Ordinance.
See SAC, Prayer for Relief, pp. 30-31 ¶ I at ER 379-380. Such an injunction
would effectively invalidate that Ordinance.
In addition, the Tribe has contractual interests that are directly at stake. The
Tribe entered into agreements for the management, construction and operation of
its governmental gaming facility. Pinto Dec. ¶ 13, SER 185. The SAC expressly
seeks an order enjoining “continued construction … on the parcel” and
implementation of “any aspect of the … management and development contracts.”
See SAC, Prayer for Relief, p. 31 ¶¶ E, I, J at ER 380. JAC’s action could thus
potentially result in invalidation of the Compact, which is a federal law,12 a state
law,13 and also a contract between the Tribe and State,14 and invalidate or modify
12 See League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 507 F.2d 517,522 (9th Cir. 1974) (federally authorized and/or approved compact under theCompacts Clause, Const. Art. I § 10, cl. 3, "was a ‘statute of the United States'").
13 See Cal. Const. art. IV, § 10(a) ("Each bill passed by the [California] Legislatureshall be presented to the Governor. It becomes a statute if it is signed by theGovernor"); Cal. Gov't Code § 12012.77 (S.B. 187 ratifying the Tribe's amendedCompact with California).
14 See 25 U.S.C.A. § 2710(d)(3)(C) (“Any Tribal-State compact negotiated undersubparagraph (A) may include provisions relating to – ... (v) remedies for breach ofcontract”); San Pasqual Band of Mission Indians v. State, 241 Cal. App. 4th 746,
on the Court’s finding that the Tribe is not federally recognized and that its lands
are not Indian lands under IGRA. Indeed, JAC expressly asks the Court to declare
that the Tribe’s federal Indian trust lands are not in fact trust lands or Indian lands
under IGRA and that the Tribe should not be treated as a federally-recognized
Tribal entity. See SAC Prayer for Relief p. 30 ¶¶ B, D at ER 379.
In this respect this case is distinguishable from Ramah Navajo School Board
v . Babbitt, 87 F.3d 1338 (D.C. Cir. 1996) which JAC cites at OB 55. In the
particular circumstances in that case some tribes were parties and some were not.
The court found that the complaint did not affect any legally protected interests of
any of the tribes who were not parties to the action. Id. at p. 1351.15 Here, by
contrast, the SAC directly affects, and seeks remedies relating to, the absent
Tribe’s legally protected interests, which cannot be adjudicated in the Tribe’s
absence.
15Specifically, the court found that the Contract Support Funds at issue in that case“most definitely would not be used to increase existing contracts to a higherfunding level” for the non-party tribes, such that they did not have a legallycognizable interest at stake. Ramah Navajo School Bd. Inc., 87 F.3d at 1351(internal quotation omitted).
436 U.S. at 58-59; Puyallup Tribe, 433 U.S. at 172-173; U.S. Fidelity & Guaranty
Co., 309 U.S. at 512-513; Turner, 248 U.S. at 358. The case JAC cites, Michigan
v. Bay Mills, holds:
“Among the core aspects of sovereignty that tribes possess – subject, again,to congressional action – is the “common-law immunity from suittraditionally enjoyed by sovereign powers.” [] That immunity, we haveexplained, is “a necessary corollary to Indian sovereignty and self-governance.” [] And the qualified nature of Indian sovereignty modifies thatprinciple only by placing a tribe’s immunity, like its other governmentalpowers and attributes, in Congress’s hands. [] Thus, we have time and againtreated the “doctrine of tribal immunity [as] settled law” and dismissed anysuit against a tribe absent congressional authorization (or a waiver).”
Id. at 2030 (citations omitted).
The Jamul Indian Village is federally recognized by the United States. See
82 Fed. Reg. 4915, 4916 (January 17, 2017). This Court, like others before it, has
already acknowledged the Tribe’s federal recognition. SER 357, 376. See also
Rosales v. U.S., 73 Fed. Appx. 913 (9th Cir. 2003); Rosales v. U.S., 89 Fed. Cl. 565
(2009); JAC v. Iwasaki, 140 Cal. Rptr. 3d 484, 490 (Cal. App. 2012) (JAC
conceded, and the court agreed, that the Tribe is “a sovereign nation not subject to
suit”); SER 210 (State of California compacted with the “Jamul Indian Village, a
federally recognized Indian Tribe”).
The Jamul Indian Village has long been federally recognized, and included
on the federal government’s list of recognized entities. The U.S. Department of the
circumvent tribal immunity” by the simple expedient of naming an officer of the
Tribe as a defendant, rather than the sovereign entity. Id.
JAC’s implication that the Tribal officials could – if they were not otherwise
immune from suit – represent the Tribe or its interests in this litigation, is also
wrong. The Tribal officials named as defendants in the SAC are purportedly sued
in their “personal” capacities. ER 353-354. As such, the only interests they
represent in this lawsuit are their personal interests.17 The individual defendants’
17Indeed, four of the five named tribal officials are no longer in office and thuscould not represent the tribal government's interests in any capacity. Onlydefendant Carlene Chamberlain remains as a current member of the Tribal Councilas of today’s date. The Court make take judicial notice of the Tribe’s currentelected leadership, which is undisputed in the public record, generally known
personal interests clearly differ from the Tribe’s governmental interests discussed
above. If, on the other hand, there were (as JAC claims) a unity of interest between
these defendants in their personal capacities and the Tribe, the lawsuit must be
dismissed as an illegitimate attempt at circumventing the Tribe’s sovereign
immunity. See Cook v. AVI Casino, 548 F.3d at 727 (dismissing complaint against
Tribal employees where the recovery sought would operate against the Tribe).
Accordingly, the Tribal government defendants, concerned with proving their
cases in their “personal” capacities, do not and cannot adequately represent the
Tribe’s unique governmental interests.
JAC cites three cases on the topic of Tribal official immunity: Ex Parte
Young, 209 U.S. 123 (1908), Bay Mills Indian Community, 134 U.S. 2024, and Salt
River Project Agricultural Improvement and Power District v. Lee, 672 F.3d 1176
(9th Cir. 2012). OB 59. These cases actually undermine JAC’s arguments. Salt
17(...continued)
within this Court’s territorial jurisdiction, and can be accurately and readilydetermined from sources whose accuracy cannot reasonably be questioned,namely, publication on the Tribe’s websitehttp://www.jamulindianvillage.com/tribal-government/ SeeFed. R. Evid. 201; Harris v. County of Orange, 682 F3d 1126, 1131-1132 (9th Cir.2012) (“documents not attached to complaint may be judicially noticed if no partyquestions their authenticity and complaint relies upon them”); Lee v. City of LosAngeles, 250 F.3d 668, 689 (9th Cir. 2001) (judicial notice of undisputed mattersof public record).
Wilderness Soc. v. U.S. Forest Service, 630 F.3d 1173 (9th Cir. 2011) (“We reject
appellees' claim that amicus curiae status is sufficient for appellants to protect their
interests by expressing their concerns to the court regarding the propriety and
scope of injunctive relief”) (citations omitted). Thus, the fact that the Tribe was
once permitted to file an amicus, almost three years ago, in a proceeding unrelated
to the SAC at issue here, with regard to a complaint that was dismissed long ago,
has no bearing on its indispensability now. The Tribe’s interests remain
unprotected, no other party can represent them, and the Tribe remains necessary
and indispensable.
B. This Court Should Not Adjudicate Most of the Issues Discussed in theOpening Brief Because The Issues Were Not Adjudicated in the DistrictCourt and are Foreclosed Under Big Lagoon
Appellants’ opening brief includes a list of issues purportedly
presented for review on appeal, including “Whether [the Tribe] ... is entitled to a
reservation under IRA or a casino under IGRA” (OB 4); and “[w]hether ... the
parcels on which the Jamul Casino is located is an “Indian reservation” eligible for
Indian gaming...” (OB 5). It also includes the questions of whether the federal
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
This brief complies with the type-volume limitation of Fed. R. App. P.32(a)(7)(B) because it contains 13,273 words, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii).
I. RELEVANT PROVISIONS OF THE INDIAN REORGANIZATION ACT
25 U.S.C. § 465. Acquisition of lands, water rights or surface rights;appropriation; title to lands; tax exemption
The Secretary of the Interior is authorized, in his discretion, to acquire,through purchase, relinquishment, gift, exchange, or assignment, any interest inlands, water rights, or surface rights to lands, within or without existingreservations, including trust or otherwise restricted allotments, whether the allotteebe living or deceased, for the purpose of providing land for Indians.
25 U.S.C. § 467. New Indian reservations
The Secretary of the Interior is hereby authorized to proclaim new Indianreservations on lands acquired pursuant to any authority conferred by this Act, orto add such lands to existing reservations: Provided, That lands added to existing
reservations shall be designated for the exclusive use of Indians entitled byenrollment or by tribal membership to residence at such reservations.
25 U.S.C. § 476. Organization of Indian tribes; constitution and bylaws
and amendment thereof; special election
(f) Privileges and immunities of Indian tribes; prohibition on newregulations. Departments or agencies of the United States shall not promulgate anyregulation or make any decision or determination pursuant to the Act of June 18,1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act ofCongress, with respect to a federally recognized Indian tribe that classifies,enhances, or diminishes the privileges and immunities available to the Indian triberelative to other federally recognized tribes by virtue of their status as Indian tribes.
(g) Privileges and immunities of Indian tribes; existing regulations. Anyregulation or administrative decision or determination of a department or agency of
the United States that is in existence or effect on May 31, 1994, and that classifies,enhances, or diminishes the privileges and immunities available to a federallyrecognized Indian tribe relative to the privileges and immunities available to otherfederally recognized tribes by virtue of their status as Indian tribes shall have noforce or effect.
(h) Tribal sovereignty. Notwithstanding any other provision of this Act --
(1) each Indian tribe shall retain inherent sovereign power to adoptgoverning documents under procedures other than those specified in this section;
* * *
II. RELEVANT PROVISIONS OF THE FEDERALLY RECOGNIZEDINDIAN TRIBES LIST ACT
25 U.S.C. § 479a
For the purposes of this title:
(1) The term “Secretary” means the Secretary of the Interior.
(2) The term “Indian tribe” means any Indian or Alaska Native tribe, band,nation, pueblo, village or community that the Secretary of the Interioracknowledges to exist as an Indian tribe.
(3) The term “list” means the list of recognized tribes published by theSecretary pursuant to section 479a?1 of this title.
25 U.S.C. § 479a-1. Publication of list of recognized tribes
(a) Publication of list. The Secretary shall publish in the Federal Register alist of all Indian tribes which the Secretary recognizes to be eligible for the specialprograms and services provided by the United States to Indians because of theirstatus as Indians.
(b) Frequency of publication. The list shall be published within 60 days ofNovember 2, 1994, and annually on or before every January 30 thereafter.
* * *
III. RELEVANT PROVISIONS OF THE INDIAN GAMINGREGULATORY ACT
25 U.S.C. § 2701. Findings
The Congress finds that –
(1) numerous Indian tribes have become engaged in or have licensed gamingactivities on Indian lands as a means of generating tribal governmental revenue;
(2) Federal courts have held that section 81 of this title requires Secretarialreview of management contracts dealing with Indian gaming, but does not providestandards for approval of such contracts;
(3) existing Federal law does not provide clear standards or regulations forthe conduct of gaming on Indian lands;
(4) a principal goal of Federal Indian policy is to promote tribal economicdevelopment, tribal self-sufficiency, and strong tribal government; and
(5) Indian tribes have the exclusive right to regulate gaming activity onIndian lands if the gaming activity is not specifically prohibited by Federal law andis conducted within a State which does not, as a matter of criminal law and publicpolicy, prohibit such gaming activity.
25 U.S.C. § 2702. Declaration of policy
The purpose of this chapter is --
(1) to provide a statutory basis for the operation of gaming by Indian tribesas a means of promoting tribal economic development, self-sufficiency, and strongtribal governments;
(2) to provide a statutory basis for the regulation of gaming by an Indiantribe adequate to shield it from organized crime and other corrupting influences, toensure that the Indian tribe is the primary beneficiary of the gaming operation, andto assure that gaming is conducted fairly and honestly by both the operator andplayers; and
(3) to declare that the establishment of independent Federal regulatoryauthority for gaming on Indian lands, the establishment of Federal standards forgaming on Indian lands, and the establishment of a National Indian GamingCommission are necessary to meet congressional concerns regarding gaming andto protect such gaming as a means of generating tribal revenue.
25 U.S.C. § 2710. Tribal gaming ordinances
(a) Jurisdiction over class I and class II gaming activity.
(1) Class I gaming on Indian lands is within the exclusive jurisdictionof the Indian tribes and shall not be subject to the provisions of this chapter.
(2) Any class II gaming on Indian lands shall continue to be within thejurisdiction of the Indian tribes, but shall be subject to the provisions of thischapter.
(b) Regulation of class II gaming activity; net revenue allocation; audits;contracts.
(1) An Indian tribe may engage in, or license and regulate, class
II gaming on Indian lands within such tribe’s jurisdiction, if –
(A) such Indian gaming is located within a State that permits
such gaming for any purpose by any person, organization or entity (and suchgaming is not otherwise specifically prohibited on Indian lands by Federal law),and
(B) the governing body of the Indian tribe adopts an ordinance
or resolution which is approved by the Chairman. A separate license issued by theIndian tribe shall be required for each place, facility, or location on Indian lands atwhich class II gaming is conducted.
A separate license issued by the Indian tribe shall be required for each place,facility, or location on Indian lands at which class II gaming is conducted.
(2) The Chairman shall approve any tribal ordinance or resolutionconcerning the conduct, or regulation of class II gaming on the Indianlands within the tribe's jurisdiction if such ordinance or resolutionprovides that--
(A) except as provided in paragraph (4), the Indian tribe willhave the sole proprietary interest and responsibility for theconduct of any gaming activity;
(B) net revenues from any tribal gaming are not to be used forpurposes other than--
(i) to fund tribal government operations or programs;
(ii) to provide for the general welfare of the Indian tribeand its members;
(iii) to promote tribal economic development;
(iv) to donate to charitable organizations; or
(v) to help fund operations of local governmentagencies;
***
(d) Class III gaming activities; authorization; revocation; Tribal-Statecompact.
(1) Class III gaming activities shall be lawful on Indian lands only ifsuch activities are –
(A) authorized by an ordinance or resolution that --
(i) is adopted by the governing body of the Indian tribehaving jurisdiction over such lands,
(ii) meets the requirements of subsection (b) of thissection, and
(iii) is approved by the Chairman,
(B) located in a State that permits such gaming for any purpose
by any person, organization, or entity, and
(C) conducted in conformance with a Tribal-State compactentered into by the Indian tribe and the State under paragraph (3) that is in effect.
(2) (A)If any Indian tribe proposes to engage in, or to authorize anyperson or entity to engage in, a class III gaming activity on Indian lands of theIndian tribe, the governing body of the Indian tribe shall adopt and submit to theChairman an ordinance or resolution that meets the requirements of subsection (b)of this section.
(B) The Chairman shall approve any ordinance or resolutiondescribed in subparagraph (A), unless the Chairman specifically determines that --
(i) the ordinance or resolution was not adopted incompliance with the governing documents of the Indian tribe, or
(ii) the tribal governing body was significantly andunduly influenced in the adoption of such ordinance or resolution by any personidentified in section 2711(e)(1)(D) of this title. Upon the approval of such anordinance or resolution, the Chairman shall publish in the Federal Register suchordinance or resolution and the order of approval.
(C) Effective with the publication under subparagraph (B) of anordinance or resolution adopted by the governing body of an Indian tribe that hasbeen approved by the Chairman under subparagraph (B), class III gaming activityon the Indian lands of the Indian tribe shall be fully subject to the terms andconditions of the Tribal-State compact entered into under paragraph (3) by theIndian tribe that is in effect.
IV. RELEVANT PROVISIONS OF THE NATIONALENVIRONMENTAL POLICY ACT , 42 U.S.C. §§ 4321-4370H
42 U.S.C. 4332.
The Congress authorizes and directs that, to the fullest extent possible: (1)the policies, regulations, and public laws of the United States shall be interpretedand administered in accordance with the policies set forth in this chapter, and (2)all agencies of the Federal Government shall --
* * *
(C) include in every recommendation or report on proposals for legislationand other major Federal actions significantly affecting the quality of the humanenvironment, a detailed statement by the responsible official on -- (i) theenvironmental impact of the proposed action, (ii) any adverse environmental
effects which cannot be avoided should the proposal be implemented, (iii)alternatives to the proposed action, (iv) the relationship between local short-termuses of man’s environment and the maintenance and enhancement of long-
term productivity, and (v) any irreversible and irretrievable commitments ofresources which would be involved in the proposed action should it beimplemented.
***
IV. RELEVANT PROVISIONS OF TRIBAL-STATE GAMING COMPACT
Section 1.0. PURPOSES AND OBJECTIVES.
The terms of this Gaming Compact are designed and intended to:
(a) Evidence the goodwill and cooperation of the Tribe and State in fostering
a mutually respectful government-to-government relationship that will serve themutual interests of the parties.
(b) Develop and implement a means of regulating Class 111 gaming, andonly Class I11 gaming, on the Tribe's Indian lands to ensure its fair and honestoperation in accordance with IGRA, and through that regulated Class 111 gaming,enable the Tribe to develop self-sufficiency, promote tribal economic development,and generate jobs and revenues to support the Tribe's government andgovernmental services and programs.
(c) Promote ethical practices in conjunction with that gaming, through thelicensing and control of persons and entities employed in, or providing goods andservices to, the Tribe's Gaming Operation and protecting against the presence orparticipation of persons whose criminal backgrounds, reputations, character, orassociations make them unsuitable for participation in gaming, thereby maintaininga high level of integrity in tribal government gaming.
***
§ 3.0 CLASS III GAMING AUTHORIZED AND PERMITTED.
The Tribe is hereby authorized and permitted to engage in only the Class IIIGaming Activities expressly referred to in Section 4.0 and shall not engage inClass III gaming that is not expressly authorized in that Section.
§ 4.1. AUTHORIZED AND PERMITTED CLASS III GAMING. The Tribe ishereby authorized and permitted to operate the following Gaming Activities underthe terms and conditions set forth in this Gaming Compact:
(a) The operation of Gaming Devices.(b) Any banking or percentage card game.(c) The operation of any devices or games that are authorized under state law
to the California State Lottery, provided that the Tribe will not offer such gamesthrough use of the Internet unless others in the state are permitted to do so understate and federal law.
(e) Nothing herein shall be construed to preclude negotiation of a separatecompact governing the conduct of off-track wagering at the Tribe's GamingFacility.
§ 4.2. AUTHORIZED GAMING FACILITIES. The Tribe may establish andoperate not more than two Gaming Facilities, and only on those Indian lands onwhich gaming may lawfully be conducted under the Indian Gaming RegulatoryAct. The Tribe may combine and operate in each Gaming Facility any forms andkinds of gaming permitted under law, except to the extent limited under IGRA, thisCompact, or the Tribe's Gaming Ordinance.
***
§ 9.0. DISPUTE RESOLUTION PROVISIONS.
§ 9.1. VOLUNTARY RESOLUTION; REFERENCE TO OTHER MEANS OFRESOLUTION. In recognition of the government-to-government relationship ofthe Tribe and the State, the parties shall make their best efforts to resolve disputesthat occur under this Gaming Compact by good faith negotiations wheneverpossible. Therefore, without prejudice to the right of either party to seek injunctiverelief against the other when circumstances are deemed to require immediate relief,the parties hereby establish a threshold requirement that disputes between the Tribeand the State first be subjected to a process of meeting and conferring in good faithin order to foster a spirit of cooperation and efficiency in the administration andmonitoring of performance and compliance by each other with the terms,provisions, and conditions of this Gaming Compact, as follows:
(a) Either party shall give the other, as soon as possible after the event givingrise to the concern, a written notice setting forth, with specificity, the issues to beresolved.
(b) The parties shall meet and confer in a good faith attempt to resolve thedispute through negotiation not later than 10 days after receipt of the notice, unlessboth parties agree in writing to an extension of time.
(c) If the dispute is not resolved to the satisfaction of the parties within 30calendar days after the first meeting, then either party may seek to have the disputeresolved by an arbitrator in accordance with this section, but neither party shall berequired to agree to submit to arbitration.
(d) Disagreements that are not otherwise resolved by arbitration or othermutually acceptable means as provided in Section 9.3 may be resolved in the
United States District Court where the Tribe's Gaming Facility is located, or is tobe located, and the Ninth Circuit Court of Appeals (or, if those federal courts lackjurisdiction, in any state court of competent jurisdiction and its related courts ofappeal). The disputes to be submitted to court action include, but are not limited to,claims of breach or violation of this Compact, or failure to negotiate in good faithas required by the terms of this Compact. In no event may the Tribe be precludedfrom pursuing any arbitration or judicial remedy against the State on the groundsthat the Tribe has failed to exhaust its state administrative remedies. The partiesagree that, except in the case of imminent threat to the public health or safety,reasonable efforts will be made to explore alternative dispute resolution avenuesprior to resort to judicial process.
§ 9.2. ARBITRATION RULES. Arbitration shall be conducted in accordance withthe policies and procedures of the Commercial Arbitration Rules of the AmericanArbitration Association, and shall be held on the Tribe's land or, if unreasonablyinconvenient under the circumstances, at such other location as the parties mayagree. Each side shall bear its own costs, attorneys' fees, and one half the costs andexpenses of the American Arbitration Association and the arbitrator, unless thearbitrator rules otherwise. Only one neutral arbitrator may be named, unless theTribe or the State objects, in which case a panel of three arbitrators (one of whomis selected by each party) will be named. The provisions of Section 1283.05 of theCalifornia Code of Civil Procedure shall apply; provided that no discoveryauthorized by that section may be conducted without leave of the arbitrator. Thedecision of the arbitrator shall be in writing, give reasons for the decision, and shallbe binding. Judgment on the award may be entered in any federal or state courthaving jurisdiction thereof.
§ 9.3. NO WAIVER OR PRECLUSION OF OTHER MEANS OF DISPUTERESOLUTION. This Section 9.0 may not be construed to waive, limit, or restrictany remedy that is otherwise available to either party, nor may this Section beconstrued to preclude, limit, or restrict the ability of the parties to pursue, bymutual agreement, any other method of dispute resolution, including, but not
limited to, mediation or utilization of a technical advisor to the Tribal and StateGaming Agencies; provided that neither party is under any obligation to agree tosuch alternative method of dispute resolution.
§ 9.4. LIMITED WAIVER OF SOVEREIGN IMMUNITY.
(a) In the event that a dispute is
to be resolved in federal court or a state court of competent jurisdiction as provided
in this Section 9.0, the State and the Tribe expressly consent to be sued therein and
waive any immunity therefrom that they may have provided that:
(1) The dispute is limited solely to issues arising under this GamingCompact;
(2) Neither side makes any claim for monetary damages (that is, onlyinjunctive, specific performance, including enforcement of a provision of thisCompact requiring payment of money to one or another of the parties, ordeclaratory relief is sought); and
(3) No person or entity other than the Tribe and the State is party tothe action, unless failure to join a third party would deprive the court ofjurisdiction; provided that nothing herein shall be construed to constitute a waiverof the sovereign immunity of either the Tribe or the State in respect to any suchthird party.
(b) In the event of intervention by any additional party into any such actionwithout the consent of the Tribe and the State, the waivers of either the Tribe or theState provided for herein may be revoked, unless joinder is required to preserve thecourt's jurisdiction; provided that nothing herein shall be construed to constitute awaiver of the sovereign immunity of either the Tribe or the State in respect to anysuch third party.
(c) The waivers and consents provided for under this Section 9.0 shallextend to civil actions authorized by this Compact, including, but not limited to,actions to compel arbitration, any arbitration proceeding herein, any action toconfirm or enforce any judgment or arbitration award as provided herein, and anyappellate proceedings emanating from a matter in which an immunity waiver has
been granted. Except as stated herein or elsewhere in this Compact, no otherwaivers or consents to be sued, either express or implied, are granted by eitherparty.
***
§ 15.1. THIRD PARTY BENEFICIARIES. Except to the extent expresslyprovided under this Gaming Compact, this Gaming Compact is not intended to,and shall not be construed to, create any right on the part of a third party to bringan action to enforce any of its terms.
I hereby certify that I electronically filed the foregoing with the Clerk of theCourt for the United States Court of Appeals for the Ninth Circuit by using theappellate CM/ECF system on February 20, 2018.
Participants in the case are all registered CM/ECF users and will be servedby the appellate CM/ECF system.
