Knox et al v. United States Department of Interior et al

Filing 68

MEMORANDUM DECISION AND ORDER granting 53 Motion to file Amicus Brief; granting 65 Motion to file Amicus Brief; denying 67 Motion to Strike. The Tribes are authorized to file a single amicus brief in response to the Government's 51 MOTI ON for Reconsideration no longer than the 20-page limit to be filed within 10 days from the date of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WENDY KNOX and RICHARD DOTSON,
Plaintiffs,

Case No. 4:09-CV-162-BLW

v.

MEMORANDUM DECISION
AND ORDER

UNITED STATES DEPARTMENT OF THE
INTERIOR, KENNETH LEE SALAZAR,
Secretary of the Interior,
Defendants.
INTRODUCTION
The Court has before it (1) two motions filed by the Tribes seeking amicus status,
and (2) plaintiffs’ motion to strike. For the reasons explained below, the Court will grant
amicus status to the Tribes and deny the plaintiffs’ motion to strike.

LITIGATION BACKGROUND
In this lawsuit, plaintiffs challenge the Secretary’s decision to approve gaming
compacts between Idaho and several tribes. The Tribes are not parties to this action,
having invoked their sovereign immunity from suit. In an earlier decision, the Court
refused to dismiss the action, rejecting a claim, among others, that the Tribes were
indispensable parties who could not be joined. The Court held that the Tribes were
adequately represented by the Secretary.

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The Secretary filed a Motion For Reconsideration. The Tribes then filed a motion
for leave to file an amicus brief in support of the Secretary’s motion, and subsequently
filed another motion to file an additional brief and supporting affidavit arguing that
plaintiff Dotson’s claim was moot because he was excluded from gambling at the Tribes’
casino. The plaintiffs responded by moving to strike the Tribes’ factual submissions,
including (1) the Declaration of Nathan Small, the Chairman of the Fort Hall Business
Council, addressing the history of this litigation, and (2) the Declaration of Marvin
Osborne, the Executive Director of the Tribes’ Gaming Commission, addressing the
alleged mootness of plaintiff Dotson’s claim.
ANALYSIS
Tribes’ Motion to File as Amicus
This Court has “broad discretion” to appoint amicus curiae. Hoptowit v. Ray, 682
F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515
U.S. 472 (1995). In Hoptowit, the Government moved for amicus status in a case involving
prison conditions. The district court granted the motion and the Circuit affirmed, finding that the
Government “was helpful to [the district court] in investigating the facts and advising it on the
federal government’s position on issues of federal constitutional law.” Id. at 1260. The Circuit
also found it important that while the Government had an interest in vindicating federal
constitutional rights, there was no evidence that the Government “controlled the litigation” or
that the named plaintiffs “were mere strawmen to confer standing so that amicus could litigate its
views.” Id. at 1260.

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The same conditions exist here. The Tribes’ input would be helpful to the Court in
reviewing the Secretary’s motion to reconsider. The Tribes may have insight to add to that of
the Secretary because the Tribes’ gambling operations are at issue in this case. And there is no
evidence that the Secretary is a mere strawman for the Tribes or that the Tribes are controlling
this litigation.
While the Tribes have filed two motions to allow amicus briefs, and the Court will grant
both motions, the Court will require that the Tribes file only a single amicus brief, no longer than
the 20-page limit. The Court will require that this brief be filed within ten days from the date of
this decision.

Plaintiffs’ Motion To Strike
Plaintiffs seek to strike the two Declarations that the Tribes intend to file with their
amicus brief, and to prohibit the Tribes from addressing factual issues in their amicus
brief.
The plaintiffs cite no Ninth Circuit cases on point. While other courts typically
strike factual assertions by an amicus, those same courts have crafted an exception when
the facts relate to jurisdictional issues. See e.g., Gen. Electric Corp. v. Virgin Islands
Water & Power Auth., 805 F.2d 88, 92 n. 5 (3rd Cir. 1986) (“Generally, new issues by an
amicus are not properly before the court [but] jurisdictional issues may give rise to . . .
exceptional circumstances.”), Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994)
(“[W]e are obliged to consider [questions of jurisdiction] on our own and therefore

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welcome amici’s presentation.”). While these cases are not binding, the Court finds them
persuasive.
In this case, the Osborne Declaration addresses the issue whether Dotson’s claim is moot.
See Osborne Declaration (Dkt. 65-2). “If a case is moot, the court lacks jurisdiction.” Pinnacle
Armor, Inc. v. U.S., 2011 WL 2040870 (9th Cir. May 26, 2011). Because the factual assertions
in this Declaration go directly to a jurisdictional issue, the Court will not strike the Osborne
Declaration.
The Small Declaration discusses the history of the gambling controversy, and the Tribes’
relationship with the Government with regard to gambling. This Declaration addresses the
issues of joinder and sovereign immunity, which if not aligned properly, carry the same
consequence as a jurisdictional flaw – Dismissal. See Republic of Phillippines v. Pimentel, 553
U.S. 851, 867 (2008). The Court will therefore not strike the Small Declaration.
The Court also refuses to prohibit the Tribes from discussing factual matters in their
amicus brief. The Tribes will be addressing factual matters as they relate to jurisdiction, joinder,
and sovereign immunity, and the Court finds that proper.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motions to file amicus briefs
(docket nos. 53 & 65) are GRANTED, and the Tribes are authorized to file a single amicus brief
in response to the Government’s motion to reconsider (docket no. 51) no longer than the 20-page
limit to be filed within ten (10) days from the date of this Order.
IT IS FURTHER ORDERED, that the motion to strike (docket no. 67) is DENIED.

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DATED: July 9, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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