State of California v. Picayune Rancheria of Chukchansi Indians of California

Filing 107

ORDER RE OBJECTIONS FILED BY MONICA DAVIS TRIBAL COUNCIL AND DECLINING TO MODIFY JUDGMENT AND PERMANENT INJUNCTION, signed by District Judge Lawrence J. O'Neill on 12/22/15. (Coffman, Lisa)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STATE OF CALIFORNIA,

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CASE NO. 1:14-CV-01593-LJO-SAB

Plaintiffs,

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ORDER RE OBJECTIONS FILED
BY “MONICA DAVIS TRIBAL
COUNCIL”

v.

10 PICAYUNE RANCHERIA OF CHUKCHANSI
INDIANS OF CALIFORNIA, A FEDERALLY
11 RECOGNIZED INDIAN TRIBE,
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Defendant,

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On December 21, 2015, the Plaintiff, the State of California (“State”), and the Tribal Council of
the Picayune Rancheria of Chukchansi Indians of California elected on October 3, 2015 (“New Tribal
Council”) (collectively, “Moving Parties”) filed an Ex Parte Joint Request to Enter Judgment and
Permanent Injunction (“Request”), Doc. 98, and an Ex Parte Application to Shorten Time
(“Application”), Doc. 99. Among other things, the Request indicated that (1) the State has entered into a
settlement agreement with the New Tribal Council with regard to the claims in this case, and (2) the
Moving Parties desire entry of a Judgment and a Permanent Injunction embodying the terms of their
agreement. The Court found that, based upon the Application, there was good cause for expedited
treatment of the Request and set a deadline of 5:00 pm on December 22, 2015 for the filing of any
responses to the Request. See Doc. 100.1 One such response, from the so-called “Distributees” was

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On December 16, 2015, the Moving Parties gave generic notice to all parties in this case that they anticipated filing a

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received at approximately 9:45 pm, December 21, 2015. Doc. 101. Operating under the mistaken

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assumption that the Distributees were the only potential objectors, the Court issued a modified Judgment

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and Permanent Injunction at approximately 12:30 pm, December 22, 2015, addressing the Distributees’

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arguments and adopting some of their recommendations. Doc. 102. At approximately 4:20 pm on

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December 22, 2015, an additional opposition was received from the “Monica Davis Tribal Council”

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(“Davis Council”). Doc. 105. This objection was timely filed according to the briefing schedule. Having

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fully considered the arguments made therein, the Court concludes that, even had the Davis Council’s

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opposition been received and considered prior to entry of the Judgment and Permanent Injunction,

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neither the outcome nor the wording of the Judgment and Permanent Injunction would have changed.

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The Davis Council, which appears to be a successor-in-interest to a group that formerly

11 participated in this case as the “McDonald Faction” (see Doc. 78), raises jurisdictional objections that
12 previously have been rejected by this court. Specifically, the Davis Council argues that neither 25 U.S.C.
13 § 2710(d)(7)(A)(ii), a subsection of the Indian Gaming Regulatory Act (“IGRA”), nor 28 U.S.C. § 1331
14 provide this Court with subject matter jurisdiction over the claims brought by the State in this case. The
15 October 29, 2014 Preliminary Injunction Order addresses these arguments directly:
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Jurisdiction exists in this case pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii), a
provision of the IGRA, which provides in pertinent part that the “United
States district courts shall have jurisdiction over ... any cause of action
initiated by a State or Indian tribe to enjoin a class III gaming activity
located on Indian lands and conducted in violation of any Tribal-State
compact....” Here, the State alleges that the Tribe is operating class III
gaming activities in the Casino in violation of the Compact, triggering 25
U.S.C. § 2710(d)(7)(A)(ii).
The McDonald Faction objects to a finding of jurisdiction under this
provision on the ground that the failure of the Tribe to provide adequate
security to maintain public safety is not a “Class III gaming activity,”
insofar as the asserted violations have “nothing to do with what games are
authorized, whether criminals are playing the games, whether the games
are being played fairly, and whether the Tribe is receiving the revenues
from the playing of the games.” Doc. 33 at 7. The McDonald Faction

25 request for Judgment and Permanent Injunction. Doc. 97 (“Notice”). That Notice explained, generally, the nature of the
Judgment and Permanent Injunction that would be requested. Id.

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offers no authority that remotely suggests the grant of jurisdiction in §
2710(d)(7)(A)(ii) is so limited. The plain language of § 2710(d)(7)(A)(ii)
provides a federal forum in which either party to a Tribal-State compact
may challenge operation of class III gaming conducted in violation of a
compact. Such a violation is alleged here.

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The McDonald Faction asserts that to find jurisdiction exists in this case
would require this Court to assume jurisdiction over “a full array of minor
breach of contract actions; such as minor violations regarding the
preparation of food, fire code violations regarding the number of overhead
sprinklers, and uniform building code violations pertaining to public
health and safety.” Doc. 33 at 7. The Court expresses no opinion as to
whether 25 U.S.C. § 2710(d)(7)(A)(ii) would provide a federal forum for
such public health and safety violations. But, this Court does not hesitate
to hold that where a Tribal-State compact provides that the tribe “will not
conduct Class III gaming in a manner that endangers the public health,
safety, or welfare...., ” 25 U.S.C. § 2710(d)(7)(A)(ii) provides a district
court with jurisdiction to address circumstances that present imminent
public health and safety danger.

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Alternatively, this Court has federal question jurisdiction pursuant to 28
U.S.C. § 1331. As the Ninth Circuit held in Cabazon Band of Mission
Indians v. Wilson, 124 F.3d 1050, 1056 (9th Cir. 1997), Tribal-State
compacts are “creation[s] of federal law.” Therefore, one party’s claim to
enforce a compact arises under federal law and is cognizable under 28
U.S.C. § 1331. See id. The McDonald Faction’s arguments regarding
Cabazon amount to an attempt to re-write the Ninth Circuit’s decision.
Specifically, the McDonald Faction argues that the issue in Cabazon was
whether or not the IGRA prohibited the State from imposing in the
Cabazon Tribal-State compact a tax in the form of a license fee on the
plaintiff tribes’ off-reservation, off-track betting facilities. Therefore, their
argument continues, Cabazon should not control here because it concerned
a claim arising directly under the IGRA, not one arising out of the
compact. Doc. 33 at 3. The text of Cabazon explicitly holds otherwise,
explaining that the IGRA issue had been resolved in favor of the tribe in a
prior decision and that the remaining issue concerned enforcement of the
State’s agreement in the compact to turn over the collected fees if the fees
were found impermissible. 124 F.3d at 1053. Cabazon is analogous to the
present circumstances.

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Jurisdiction exists under both 25 U.S.C. § 2710(d)(7)(A)(ii) and 28 U.S.C.
§ 1331.

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Doc. 48 at 5-6. Now, the Davis Council cites for the first time to Michigan v. Bay Mills Indian
Community, 134 S.Ct. 2024 (2014),2 for the proposition that there is “absolutely no room for the
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The Court notes that Bay Mills, decided May 27, 2014, predates the initiation of this lawsuit.

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argument that a violation of the public safety provision of Section 10.1 of the Compact constitutes a

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violation of the playing of the games authorized under the Compact.” Doc. 105 at 11. The Court does

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not agree with this characterization of Bay Mills. In that case, the state of Michigan sued to enjoin the

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Bay Mills Indian Community (“Bay Mills Tribe”) from engaging in gaming activities off tribal land.

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The Supreme Court found that in such a circumstance tribal sovereign immunity had not been abrogated

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by 25 U.S.C. § 2710(d)(7)(A)(ii), which allows a State to sue in federal court to “enjoin a class III

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gaming activity located on Indian lands and conducted in violation of any Tribal–State compact ... that is

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in effect.” 134 S.Ct. at 2028-29. Michigan attempted to argue that its suit fit within § 2710(d)(7)(A)(ii)

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because the Bay Mills Tribe “authorized, licensed, and operated” its casino from within its own

10 reservation. Id. at 2032. According to Michigan, “that necessary administrative action—no less than,
11 say, dealing craps—is ‘class III gaming activity,’ and because it occurred on Indian land, this suit to
12 enjoin it can go forward.” Id.
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The Supreme Court rejected this argument, offering a lengthy discussion of the meaning of

14 “gaming activity” under the IGRA.
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[T]hat argument comes up snake eyes, because numerous provisions of
IGRA show that “class III gaming activity” means just what it sounds
like—the stuff involved in playing class III games. For example, §
2710(d)(3)(C)(i) refers to “the licensing and regulation of [a class III
gaming] activity” and § 2710(d)(9) concerns the “operation of a class III
gaming activity.” Those phrases make perfect sense if “class III gaming
activity” is what goes on in a casino—each roll of the dice and spin of the
wheel. But they lose all meaning if, as Michigan argues, “class III gaming
activity” refers equally to the off-site licensing or operation of the games.
(Just plug in those words and see what happens.) See also §§
2710(b)(2)(A), (b)(4)(A), (c)(4), (d)(1)(A) (similarly referring to class II
or III “gaming activity”). The same holds true throughout the statute.
Section 2717(a)(1) specifies fees to be paid by “each gaming operation
that conducts a class II or class III gaming activity”—signifying that the
gaming activity is the gambling in the poker hall, not the proceedings of
the off-site administrative authority. And §§ 2706(a)(5) and 2713(b)(1)
together describe a federal agency’s power to “clos[e] a gaming activity”
for “substantial violation[s]” of law—e.g., to shut down crooked blackjack
tables, not the tribal regulatory body meant to oversee them. Indeed,
consider IGRA's very first finding: Many tribes, Congress stated, “have
licensed gaming activities on Indian lands,” thereby necessitating federal
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regulation. § 2701(1). The “gaming activit[y]” is (once again) the
gambling. And that means § 2710(d)(7)(A)(ii) does not allow Michigan's
suit even if Bay Mills took action on its reservation to license or oversee
the Vanderbilt facility.

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134 S.Ct. at 2032-33. This reasoning stands only for the proposition that off site administration of
gaming activity is not gaming activity. It speaks not one word to the question of whether or not a TribalState Compact may be conditioned upon conducting gaming activities in a manner that protects public
health, safety, and welfare. Nor does it speak to whether a district court may adjudicate disputes over
any such public safety Compact condition. The Court finds that Bay Mills provides no basis for it to alter
its previous rulings on jurisdiction.
The Davis Council raises several other issues that were addressed (and essentially adopted) by

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the Court in the Judgment and Permanent Injunction. For example, the Davis Council argues that the
Court has no jurisdiction to exclude its members from the Government Complex. The Court modified
the proposed Judgment and Permanent Injunction to avoid doing so. See Doc. 102 at 13-16.3
Finally, the Davis Council objects that due process requires the Court to provide a full and fair

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opportunity to respond to the Request and to fully brief the issues presented therein. Doc. 105 at 18. The
Court has, consistent with Local Rule 144(e), found good cause exists to shorten time for decision on the
Request. The Court has also received and fully considered the Davis Council’s objections. The
objections that pertain to any possible “property interest” held by Davis Council members (e.g., their
purported right to access the Government Complex) have been adopted by the Court. The only objection
that has not been adopted by the Court is a purely legal objection to this Court’s jurisdiction. As
discussed above, that objection previously has been heard and rejected, and the Court finds no basis
upon which to revisit its prior rulings on that subject. The Davis Council has not been prejudiced by the
expedited treatment of the Request and has not been deprived of any property interest without due

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In contrast to the Distributees, the Davis Council does not object to the extension of the weapons ban to the Government

25 Complex. Compare Doc. 101 at 5 (Distributees implying objection to 1000 ft. perimeter weapons ban) with Doc. 105 at 17
(Davis Council disclaiming such an objection).

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process of law.
Accordingly, and for the reasons set forth above, the Court finds there is no need to modify the

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Judgment and Permanent Injunction in light of the Davis Council’s objections.

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IT IS SO ORDERED
Dated: December 22, 2015

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/s/ Lawrence J. O’Neill
United States District Judge

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