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

Filing 77

MEMORANDUM DECISION AND ORDER denying 51 Motion for Reconsideration and Motion for Summary Judgment; granting in part and denying in part 72 Motion to Compel Discovery. 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) a motion to reconsider or, in the alternative, a motion
for summary judgment, filed by the Secretary and (2) a motion to compel discovery filed
by the plaintiffs. The motions are fully briefed and at issue. For the reasons set forth
below, the Court will grant the plaintiffs’ motion, allow a limited period of discovery on
certain issues, and deny the Secretary’s motion without prejudice to the Secretary’s right
to re-file the motion after the discovery period.
ANALYSIS
The Secretary’s motion seeks reconsideration, or summary judgment, based on
new evidence that the Secretary alleges shows that plaintiffs have no standing and that
their claims are barred by the statute of limitations. The plaintiffs respond by opposing

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both arguments and requesting more discovery on those issues. To resolve these matters,
the Court must first review the plaintiffs’ allegations.
The Complaint
Plaintiffs Wendy Know and Richard Dotson challenge the Secretary’s decision to
approve gaming compacts between Idaho and several tribes. This approval, plaintiffs
assert, authorized the Tribes to install slot machines at the Fort Hall casino. See Amended
Complaint, Dkt. 4 at ¶ 28.
Knox and Dotson allege that they both became “compulsive gamblers” after the
Fort Hall Casino installed slot machines. Knox and Dotson gamble “almost exclusively”
at Fort Hall Casino “because of its close proximity to their respective residences,
compared to the next nearest casino gambling establishments located hundreds of miles
away.” Id. Of all the different types of gambling available at the Fort Hall Casino, Knox
and Dotson played only the slot machines. Id. They allege that “[b]ecause of the slot
machines at the Fort Hall Casino, [they] both developed clinical and devastating
addictions to gambling at the Fort Hall Casino.” Id.
Knox estimates her slot machine losses at Fort Hall Casino at about $50,000.00,
and Dotson estimates his slot machine losses at Fort Hall Casino at about $30,000.00. Id.
They also incurred additional debt they otherwise would not have incurred and “were
subjected to intrusive and humiliating collection efforts, stress, anxiety and marital and
family strife, and tremendous emotional distress.” Id. Dotson lost his house and job, and

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was convicted of the crime of forgery in order to obtain gambling funds. Id. Both
plaintiffs continue to receive treatment for their destructive gambling addictions through
Gambler’s Anonymous. Id. Dotson has also obtained counseling from a private licensed
counselor for his gambling addiction. Id.
The plaintiffs allege that “[i]f the defendants had originally acted in accordance
with [Indian Gaming Regulatory Act] and the Johnson Act, the slot machines would not
have been installed at Fort Hall Casino, or would have been removed therefrom, and
neither Plaintiff would have suffered the harm set forth above.” Id. They allege that if
the Court declares that the slot machines violate the law, “Fort Hall Casino will be forced
to remove its slot machines, and such gambling would be much less readily available to
Plaintiffs, dramatically speeding and increasing their recovery from gambling addiction
and preventing or minimizing further harm to the Plaintiffs of the kind set forth above.
Id.
Court’s Earlier Decision Denying Motions to Dismiss
The Secretary filed a motion to dismiss alleging, among other things, that plaintiffs
lacked standing. The Court disagreed, finding that plaintiffs had sufficiently alleged a
specific injury caused by the Secretary that would be redressed by a favorable decision.
See Memorandum Decision (Dkt. 46).
In pursuing this standing challenge, the Secretary argued that a favorable decision
would not redress plaintiffs’ injuries because gambling was so widely available that

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removing video gaming machines from the Fort Hall Casino would not ultimately cure
plaintiffs’ gambling addiction – they would just gamble elsewhere. The Court rejected
this argument, finding that plaintiffs alleged that they gamble “almost exclusively” at Fort
Hall Casino and played “only” the video gaming machines. See Amended Complaint,
Dkt. 4 at ¶ 28. All inferences must be granted in favor of the plaintiffs, Bernhardt, 279
F.3d at 867, and one reasonable inference is that plaintiffs’ gambling addiction is tied
directly and exclusively to the Tribes’ video gaming machines. Referring to an earlier
discussion of Ninth Circuit authority, the Court stated that “plaintiffs need not
demonstrate that there is a ‘guarantee’ that their injuries will be addressed by a favorable
decision, but need only show that it is ‘likely’ as opposed to ‘merely speculative’ that a
favorable decision will redress their injury.” The Court found that plaintiffs’ allegations
were sufficient under that standard.
The Secretary had also argued that plaintiffs’ action is untimely. The applicable
statute of limitations is set forth in 28 U.S.C. § 2401 and is six years. The Secretary
argued that its approval of the four compacts was originally granted in 2000, and that this
action was time-barred because it was not filed until 9 years later in 2009. In its earlier
decision, the Court disagreed. The Court reasoned that the four compacts challenged by
plaintiffs did not authorize video gaming – the type of gaming challenged by plaintiffs –
in 2000. Thus, plaintiffs had no injury – or right to sue – in 2000, and the limitations
period could not have started at that time. See Acri v. International Ass’n of Machinists &

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Aerospace Workers, 781 F.2d 1393, 1396 (9th Cir. 1986) (holding that “[u]nder federal
law a cause of action accrues when the plaintiff is aware of the wrong and can
successfully bring a cause of action”). The video gaming challenged here was not
approved until January 8, 2003. It was not until sometime after 2004 – at a point after the
Secretary approved the northern tribes’ amendments, the Tribes started video gaming
under their most-favored-nation provision, and the plaintiffs became addicted – that the
limitations period started running under Acri. This action, filed in 2009, was therefore
timely.
The Secretary’s Current Arguments
The Secretary now argues that new evidence requires reconsideration of the
Court’s earlier decision, or, in the alternative, requires summary judgment for the
Secretary. The Secretary has submitted declarations showing that video gaming has been
conducted at the Fort Hall Casino since 1992. See Small Declaration (Dkt. 51-5) at ¶ 10.
The Secretary also points to new evidence that Knox had been gambling at the Fort Hall
Casino since 1998. See Boyer Declaration (Dkt. 51-4), at exhibit B. The Secretary infers
from this that Knox must have been addicted to the video game gambling by the time it
was officially approved in January of 2003. That means, according to the Secretary, that
this action filed in April of 2009, was filed more than 6 years after Knox’s addiction had
arisen and at least her claim is time-barred.

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The flaw in this argument is that plaintiffs have had no opportunity to conduct
discovery on this issue. To adopt the Secretary’s argument, the Court would have to
construe facts in a light unfavorable to Knox, make a broad inference that she was
addicted by 2003, and deny her the opportunity to develop a full factual record on the
issue. That would be manifestly unfair. Knox has made a motion to allow limited
discovery to which she is entitled. The Court will therefore reject the Secretary’s
argument on this issue, allow limited discovery, and allow the Secretary to raise the
argument again after the discovery is completed.
The Secretary also argues that the controversy has become moot because new
evidence shows that both Knox and Dotson have been excluded from the Fort Hall Casino
and thus cannot be further injured by acting out on their gambling addiction. Knox selfexcluded herself from the Fort Hall Casino in 2008. See Boyer Declaration (Dkt. 51-4) at
¶ 7; Ex. B-F. Dotson was excluded by letter dated January 4, 2011, and he does not
contest that he did not appeal this exclusion. Id. at ¶¶ 10-12; Ex. G. In their amicus
brief, the Tribes assert their “demonstrated ability to detect and remove excluded
individuals from [Tribal] gaming facilities.” See Amicus Brief (Dkt. 73) at p. 18. They
assert that Knox and Dotson are well-known to their security personnel and will be kept
out of the Casino.
However, the evidence also shows that after the date of the exclusion letter,
Dotson entered the casino on three occasions in early 2011, gambling substantial amounts

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of money.

See Dotson Declaration (Dkt. 60-1) at ¶¶ 3, 4, 11. He states he will continue

to do so. Id. Dotson also states that even if excluded, he will have a friend gamble with
his money and distribute any winnings to him. Id. Knox has also gambled at the Fort
Hall Casino since her self-exclusion. See Boyer Declaration (Dkt. 51-4) at ¶ 9, p. 11.
The Secretary responds that Dotson’s Declaration shows that “he will presumably
go to any lengths to gamble, without regard to location, convenience, or legality.” See
Reply Brief (Dkt. 64) at p. 5. This means, according to the Secretary, that a favorable
decision here will not redress Dotson’s injuries.
Once again, the Secretary is asking the Court to make broad inferences
unfavorable to the plaintiffs who have not had a full opportunity to develop a factual
record. The present record is unclear on the impact of the exclusion of Knox and Dotson
from the Casino since both have gambled there since their exclusions. The willingness of
Dotson to gamble anywhere on whatever games are available will require inferences from
facts, and the present record is too sparse to permit such inferences by the Court as a
matter of law. For all these reasons, the Court will again reject the Secretary’s argument,
allow limited discovery on standing and statue of limitations issues, and permit the
Secretary to raise these issues again after discovery.
The plaintiffs motion to conduct discovery also sought discovery on matters
beyond these standing and statute of limitation issues, such as the matters considered by
the Secretary when it approval tribal compacts. The Court finds that the discovery focus

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at this time should be limited to the standing and statute of limitation issues.
Accordingly, the Court will deny the portion of plaintiffs’ motion seeking broader
discovery without prejudice to plaintiffs’ right to re-raise that motion after the standing
and statute of limitation issues are resolved.
In their amicus brief, the Tribes seek reconsideration of the Court’s ruling that the
Secretary adequately represents their interests. The Court will not take these issues up at
this time.
Conclusion
While the limited discovery into standing and statute of limitation issues may have
no impact on the Secretary’s motion to dismiss, there is also the possibility that it will
change the focus of the motion or preclude it altogether. The Court will certainly need
new briefing to explain the new discovery. Accordingly, the Court will deny the
Secretary’s motion at this time without prejudice to the right of the Secretary to re-file the
motion after the discovery has been completed.
Similarly, the Court will deny that portion of plaintiffs’ motion for discovery
seeking discovery on issues outside the standing and statute of limitation issues. Again,
the denial is without prejudice to the plaintiffs’ right to re-file that portion of the motion
after these issues are resolved.
ORDER
In accordance with the Memorandum Decision set forth above,

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NOW THEREFORE IT IS HEREBY ORDERED, that the motion to compel
discovery (docket no. 72) is GRANTED IN PART AND DENIED IN PART. It is
granted to the extent it seeks discovery on standing and statute of limitations issues to be
conducted and completed within 45 days from the date of this decision. It is denied in all
other respects, without prejudice to the rights of the plaintiffs to re-file the motion after
resolution of these issues.
IT IS FURTHER ORDERED, that the motion for reconsideration and for summary
judgment (docket no. 51) is DENIED without prejudice to the right of the Secretary to refile the motion after the discovery is completed as set forth above.

DATED: September 22, 2011

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

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