State of Oklahoma v. Hobia et al

Filing 152

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting in part and denying in part 137 Motion for Miscellaneous Relief (Re: 150 Opinion and Order, Ruling on Motion for Preliminary Injunction ) (hbo, Dpty Clk)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STATE OF OKLAHOMA,
Plaintiff,
v.
TIGER HOBIA, as Town King
and member of the Kialegee Tribal
Town Business Committee; et al.,
Defendants.

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Case No. 12-CV-054-GKF-TLW

OPINION AND ORDER
Before the court is defendants’ Motion to Modify the Preliminary injunction [Dkt.
#137]. 1 In the motion, defendants ask the court to “modify [the preliminary injunction order] to
allow the [d]efendants to continue construction of buildings to be used for sport bar/restaurant
purposes.” [Id. at 3]. Plaintiff State of Oklahoma (the “state”) opposes the motion.
I. Background
The State filed suit on February 8, 2012, seeking declaratory, preliminary, and permanent
injunctive relief to prevent Tiger Hobia, Town King of the Kialegee Tribal Town (as well as
other tribal officers), Florence Development Partners, LLC (“Florence”) and the Kialegee Tribal
Town, a federally chartered corporation (the “Town Corporation”), from proceeding with the
construction and operation of the proposed “Red Clay Casino” in Broken Arrow, Oklahoma.
The State alleged defendants’ actions violated both the April 12, 2011 Gaming Compact between
the Kialegee Tribal Town and the State (the “Kialegee-State Gaming Compact”) and the Indian
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The court, in a minute order entered May 31, 2012 [Dkt. #136], stated it would treat defendant’s Notice of
Changed Circumstances and Motion for Modification of Court’s Oral Order as two separate and distinct motions:
(1) a Motion to Modify the Preliminary Injunction; and (2) a Motion to Reconsider the Preliminary Injunction in
light of subsequent changed circumstances.

Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (“IGRA”). The same day, it filed a Motion for
Preliminary Injunction. [Dkt. #4].
The court conducted a hearing on the State’s Motion for Preliminary Injunction on May
16-18, 2012. At the conclusion of the hearing, the court issued an oral ruling granting the
motion. [Dkt. #127]. 2 On July 20, 2012, the court entered a written Opinion & Order containing
findings of fact and conclusions of law. [Dkt. #150]. The court concluded defendants’ actions
violated IGRA and the Kialegee-State Gaming Compact because the restricted allotment was not
the Kialegee Tribal Town’s “Indian lands” as defined by IGRA, and that the Tribal Town did not
exercise government power over the property within the meaning of IGRA. [Id. at 35-37, ¶¶37,
40-41]. The court concluded that defendants’ “efforts to construct and operate a gaming facility
on the Broken Arrow Property violate IGRA and—as to Class III gaming—the Kialegee-State
Gaming Compact.” [Id. at 41].
The court preliminarily enjoined defendants from (1) proceeding with development or
construction of the proposed Red Clay Casino or any other gaming facility on the Broken Arrow
Property; and (2) conducting Class III gaming on the Broken Arrow Property. [Id.]. The court
noted defendants had admitted at the hearing the building under construction was “designed to be
a sports bar and a casino,” but stated “the court will entertain a motion to modify the injunction if
defendants wish to alter the purpose of the structure and have obtained the necessary regulatory

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A week later, on May 25, 2012, Tracie Stevens, Chairwoman of the National Indian Gaming Commission
(“NIGC”) advised Town King Tiger Hobia the NIGC had concluded that while the Broken Arrow Property qualified
as Indian land under IGRA, it is not within the Kialegee Tribal Town’s jurisdiction because the Tribe had not
demonstrated its legal jurisdiction over the parcel. [Dkt. ##134-1, 134-2]. She directed the Kialegee Tribal Town
not to commence gaming under IGRA. [Id.]. On May 29, 2012, the Tribal Town submitted a Request for
Reconsideration, in which, inter alia, it informed Stevens it had enrolled Giles and Capps as members on May 26,
2012. [Dkt. #138-1]. In a response dated June 8, 2012, the NIGC denied the Request for Reconsideration. [Dkt.
#138-2]. Citing Miami Tribe of Okla. v. U.S., 656 F.3d 1129 (10th Cir. 2011), United States v. Mazurie, 419 U.S.
544 (1975), and Kansas v. U.S., 249 F.3d 1213 (10th Cir. 2001), Stevens concluded “the change in circumstance
presented does not alter the May 25 decision.” [Id.].

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approvals from the [Bureau of Indian Affairs] and/or the Muskogee (Creek) Nation for the
alternative proposed use or uses.” [Id. at 40-41].
II. Motion to Modify
Defendants seek modification of the preliminary injunction to permit continued
construction of the structure and operation of a restaurant/sports bar. Additionally, they advise
the court that the property owners have requested defendants “to provide an asphalt surface over
the access area and parking surface to allow the interim uses of a portion of the site,” including
use as a smoke shop. [Dkt. #133 at 2].
In its Motion for Preliminary Injunction, the State sought entry of a preliminary
injunction prohibiting defendants from constructing or operation a casino on the Broken Arrow
Property. The State did not seek to enjoin the construction and/or operation of any type of nongaming facility.
This court previously noted it has subject matter jurisdiction over “any cause of action
initiated by a State . . . to enjoin a class III gaming activity located on Indian lands and conducted
in violation of any Tribal-State compact entered into pursuant to IGRA, 25 U.S.C. § 2710
(d)(7)(A)(ii).” [See Dkt. #105 at 15, 22 (internal quotation marks omitted”]. However, this court
is without subject matter jurisdiction over a dispute between the current parties relating to the
construction and operation of a restaurant/sports bar (and/or the laying of asphalt for a parking
lot and entrances) on the Broken Arrow property.
As set forth in the court’s written Opinion and Order of July 20, 2012, development or
construction of a casino is enjoined. [See Dkt. #150 at 40-41]. However, this court is without
subject matter jurisdiction to enjoin construction and operation of proposed non-gaming
facilities. Accordingly, defendants’ Motion to Modify is granted so as to clarify the scope of the

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injunction. Additionally, the first complete sentence on page 41 of Docket #150 3 is stricken. The
Motion to Modify is denied to the extent defendants seek an order affirmatively permitting or
authorizing “construction of buildings to be used for sport bar/restaurant purposes” [see Dkt.
#133 at 3], as this court is without subject matter jurisdiction to approve or disapprove the
defendants’ proposed non-gaming land use.
III. Conclusion
For the reasons set forth above, defendants’ Motion to Modify the Preliminary Injunction
[Dkt. #137] is granted in part and denied in part.

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The sentence states: “However, the court will entertain a motion to modify the injunction if defendants wish to
alter the purpose of the structure and have obtained the necessary regulatory approvals from the BIA and/or the
Muskogee (Creek) Nation for the alternative proposed use or uses.” [See Dkt. #150 at 41].

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