Bettor Racing, Inc. v. National Indian Gaming Commission et al
Filing
35
ORDER granting 7 Motion to Intervene; clerk directed to file Tribe's answer and counterclaim; Tribe's request for judicial notice is granted in part; stay is lifted; and parties will jointly file a proposed schedule by 11/20/2013. Signed by U.S. District Judge Karen E. Schreier on 11/6/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BETTOR RACING, INC. and J.
RANDY GALLO,
Plaintiffs,
vs.
NATIONAL INDIAN GAMING
COMMISSION,
Defendant.
FLANDREAU SANTEE SIOUX
TRIBE,
Applicant for
Intervention.
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CIV. 13-4051-KES
ORDER GRANTING APPLICANT’S
MOTION TO INTERVENE AND
GRANTING IN PART APPLICANT’S
REQUEST FOR JUDICIAL NOTICE
Applicant for intervention, the Flandreau Santee Sioux Tribe, moves to
intervene as a matter of right in this case, or alternatively, to intervene
permissively. Docket 7. Plaintiffs, Bettor Racing, Inc., and J. Randy Gallo,
oppose the motion. Defendant, the National Indian Gaming Commission
(NIGC), has not taken a position on the motion to intervene. Additionally, the
Tribe requests that the court take judicial notice of the action pending in tribal
court between the Tribe and Bettor Racing and Gallo. Docket 9. Plaintiffs
oppose this motion also. For the reasons set forth below, the Tribe’s motion to
intervene is granted, and the Tribe’s request to take judicial notice is granted in
part.
BACKGROUND
According to the facts alleged in the application for intervention:
The Tribe, a federally recognized tribe, operates Royal River Casino near
Flandreau, South Dakota. The casino, located on tribal lands, is subject to the
Indian Gaming Regulatory Act of 1988 (IGRA).1 The NIGC is an independent
federal agency charged with enforcement of the IGRA and regulation of tribal
gaming. Gallo lives in Jupiter, Florida, and operates Bettor Racing, a
corporation organized under South Dakota law. Bettor Racing is a parimutuel
betting business.2
The Tribe, Bettor Racing, and Gallo have a decade-long history. In 2003,
Gallo approached the Tribe about relocating Bettor Racing from its location in
Sioux Falls, South Dakota, to Royal River Casino to avoid a state tax on
parimutuel betting. On March 22, 2004, the Tribe and Bettor Racing reached
agreement on a management contract and submitted that contract to the NIGC
for approval. The NIGC requested a number of changes that the parties
subsequently incorporated. The NIGC approved the revised management
contract on March 17, 2005.
1
25 U.S.C. §§ 2701-2720.
2
Parimutuel betting is “a form of betting and of handling the betting on
horse races at racetracks, in which those holding winning tickets divide the
total amount bet in proportion to their wagers, less a percentage for the
management, taxes, etc.” Dictionary.com, http://dictionary.reference.com/
browse/parimutuel (last visited October 28, 2013).
2
On September 20, 2004, while NIGC approval of the management
contract was still pending, Bettor Racing entered into a consulting agreement
with the Tribe under which it assisted the Tribe in running a parimutuel
betting operation at Royal River Casino. This consulting agreement was never
approved by the NIGC. From September 20, 2004, to March 17, 2005, Bettor
Racing managed the parimutuel betting operation at Royal River Casino under
the unapproved consulting agreement in exchange for a share of the net
revenue. After the management contract was approved by the NIGC on
March 17, 2005, the Tribe and Bettor Racing operated under its terms through
February 15, 2007.
In 2006, South Dakota reduced its tax on parimutuel gaming from
4.5 percent to 0.25 percent for certain operations. SDCL 42-7-102. In response
to that change, Bettor Racing and the Tribe agreed on a modification of the
management contract that reduced the guaranteed minimum payment to be
paid to the Tribe. Bettor Racing managed the parimutuel betting operation at
Royal River Casino under the modified terms from February 15, 2007, to July
31, 2008. Following an industry-wide increase in racetrack fees charged to offtrack facilities, Bettor Racing and the Tribe executed a second modification to
the management contract that further reduced the minimum guaranteed
payment to the Tribe. The Tribe and Bettor Racing operated under the second
modification to the management contract from August 1, 2008, to April 5,
2010. Neither modification was approved by the NIGC.
3
In August 2009, the NIGC conducted a compliance review and issued a
notice of noncompliance to Bettor Racing. AR 31-33.3 The NIGC found that
while Bettor Racing was managing the parimutuel gaming at Royal River
Casino under the consulting agreement and the first and second modifications
to the management contract, Bettor Racing received fees in excess of the
amount allowed under 25 U.S.C. § 2711(c)(1) and (2). Additionally, the NIGC
found that Bettor Racing and the Tribe had an arrangement which was
designed to cover up the excess payments to Bettor Racing. Under this
arrangement, Bettor Racing remitted to the Tribe the amount approved in the
original management contract, and the Tribe payed Bettor Racing a bonus
equal to the additional amount due Bettor Racing under the modifications.
Following an investigation, the NIGC served Bettor Racing and Gallo
individually with a notice of violation directing Bettor Racing to pay $4,544,755
to the Tribe as a remedy for the alleged overpayments. AR 2510. The Tribe
reached a settlement agreement with the NIGC concerning the Tribe’s
violations. AR 2611.
Plaintiffs appealed the notice of violation, and the Tribe intervened in the
administrative process. AR 2540, 2544. The NIGC also assessed a civil fine
against plaintiffs totaling $5,000,000. AR 2665. In its Final Decision and Order,
the NIGC upheld the civil fine but stated that the fine supplanted the remedial
3
All citations to “AR” refer to the appropriate page of the administrative
record.
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payments to the Tribe. See AR 3043, 3049 (“As the remedial measure has been
supplanted by the [civil fine], the Commission will not consider this issue.”); see
also AR 3066 (denying motion for clarification with respect to the remedial
payment to the Tribe).
In January 2013, the Tribe filed suit against plaintiffs in Flandreau
Santee Sioux Tribal Court, alleging breach of contract and unjust enrichment.
Docket 9-1, Docket 9-2. Plaintiffs have filed a counterclaim in that action
alleging that the Tribe engaged in fraud. Subsequently, plaintiffs filed this suit
against the NIGC on May 10, 2013, seeking relief from the Final Order and
Decision of the NIGC. Docket 1. The Tribe moved to intervene on June 17,
2013. Docket 7.
DISCUSSION
I.
Article III Standing
In addition to meeting the requirements of Rule 24, a party seeking to
intervene must establish Article III standing. United States v. Metro St. Louis
Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009). “ ‘To show Article III standing, a
[party] has the burden of proving: (1) that he or she suffered an injury-in-fact,
(2) a causal relationship between the injury and the challenged conduct, and (3)
that the injury likely will be redressed by a favorable decision.’ ” South Dakota v.
U.S. Dep’t of Interior, 665 F.3d 986, 989-90 (8th Cir. 2012) (quoting Pucket v.
Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1157 (8th Cir. 2008)). An
applicant for intervention must submit a pleading stating its claims or
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defenses, and the court accepts all allegations as true and construes the
pleading in favor of the applicant for intervention. Metro St. Louis Sewer Dist.,
569 F.3d at 834.
A. Injury in Fact
An injury in fact is “ ‘an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.’ ” Charvat v. Mut. First Fed. Credit Union, 725 F.3d 819, 822 (8th
Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
To ensure that an injury is not too speculative, the Supreme Court has
“repeatedly reiterated that ‘threatened injury must be certainly impending to
constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not
sufficient.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)
(emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)).
The Tribe asserts the following injuries in fact: (1) impairment to the
Tribe’s claims against Bettor Racing in tribal court; (2) reinstatement of the
administrative action to which the Tribe is a party; and (3) the inability to
participate in the enforcement of federal and tribal gaming laws. Docket 8 at
10-11. Plaintiffs contend that those injuries do not constitute injuries in fact
sufficient to confer Article III standing on the Tribe because (1) the Tribe’s
counterclaims do not arise under federal law and the Tribe cannot establish a
case or controversy; (2) the Tribe did not pursue its own appeal of the NIGC’s
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Final Decision and Order; (3) the tribal court has authority to determine the
Tribe’s claims regardless of the outcome in this action; and (4) the management
contract divests this court of jurisdiction. Docket 16 at 3-10.
This court has jurisdiction over plaintiffs’ appeal of the NIGC decision. 25
U.S.C. § 2713(c). To intervene, the Tribe needs to show a concrete and
impending injury to a judicially cognizable interest. That injury can be denial of
a benefit, Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 878 (8th Cir.
2003), or the threat of liability. Lyon v. Gila River Indian Community, 626 F.3d
1059, 1077 (9th Cir. 2010) cert. denied, 132 S. Ct. 498 (2011). The desire to
ensure compliance with a favorable judgment can also confer standing. See
Salazar v. Buono, 130 S. Ct. 1803, 1814-15 (2010) (plurality opinion) (“A party
that obtains a judgment in its favor acquires a ‘judicially cognizable’ interest in
ensuring compliance with that judgment.”).
If the court rules in favor of plaintiffs in this case, the Tribe would suffer
actual or potential injury in a number of ways. First, to the extent that the
findings of the NIGC are admissible in tribal court to prove the Tribe’s claims,
particularly with respect to the validity of the management contract and its
subsequent modifications, the Tribe would lose the ability to rely on those
findings in proving its claims in tribal court, if the NIGC is unsuccessful in this
federal court action. The Tribe has a significant financial interest in the
outcome of the tribal court case, particularly because the NIGC judgment no
longer requires plaintiffs to pay restitution to the Tribe. Second, because the
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Tribe is a party to the NIGC proceedings, the Tribe would incur additional delay
and expense if the court rules in favor of plaintiffs in this case and remands for
further administrative proceedings. Third, the Tribe directly benefits from the
enforcement of the IGRA and NIGC regulations. If the court rules in favor of
plaintiffs in this case, the Tribe would lose the benefits Congress intended to
confer by passing the IGRA. Therefore, the Tribe is in danger of sustaining a
direct injury which is sufficient to confer Article III standing.
B. Traceability
“ ‘Traceability requires proof of causation, showing the injury resulted
from the actions of the defendant and not . . . [from] the independent action of
some third party not before the court.’” Charvat, 725 F.3d at 824 (quoting Oti
Kaga, 342 F.3d at 878) (internal quotation marks omitted). “ ‘Not every infirmity
in the causal chain deprives a [party] of standing.’ ” Id. at 825 (quoting ABF
Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954, 961 (8th Cir. 2011)).
There is a causal connection between the Tribe’s alleged injuries and
plaintiffs’ attempt to invalidate the decision of the NIGC. If the court grants
plaintiffs’ requested relief, the Tribe will suffer the injuries enumerated above.
The Tribe’s injuries are therefore traceable to the relief plaintiffs request. See
Cal. Valley Miwok Tribe v. Salazar, 281 F.R.D. 43, 47 (D.D.C. 2012) (“The
causation prong is satisfied because the threatened loss . . . is fairly traceable
to the agency action that the plaintiffs seek to compel in the instant action.”).
Therefore, the Tribe satisfies the traceability requirement of standing as well.
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C. Redressability
In order to demonstrate Article III standing, the Tribe must show “a
likelihood that the requested relief will redress the alleged injury.” Miller v.
Redwood Toxicology Lab., Inc., 688 F.3d 928, 934 (8th Cir. 2012). The Tribe has
shown redressability because the injuries alleged—inability to use the NIGC
decision in tribal court, expense and delay of further administrative
proceedings, and the loss of protection given to the Tribe by proper enforcement
of the IGRA—would be redressed by a judicial determination in this case that
the NIGC’s decision should stand. Accordingly, the Tribe has standing to
intervene.
II.
Timeliness
Both intervention of right and permissive intervention must be timely.
Fed. R. Civ. P. 24(a), (b)(1). When considering whether a motion to intervene is
timely, a court “should specifically consider: (1) the extent the litigation has
progressed at the time of the motion to intervene; (2) the prospective
intervenor’s knowledge of the litigation; (3) the reason for the delay in seeking
intervention; and (4) whether the delay in seeking intervention may prejudice
the existing parties.” Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad.,
643 F.3d 1088, 1094 (8th Cir. 2011).
The Tribe moved to intervene slightly over one month after this action
was initially filed. When the motion to intervene was filed, the NIGC had not
filed an answer. Plaintiffs make no argument that the motion to intervene is not
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timely. Given the very early stage of this litigation, the fact that the Tribe did
not delay in filing its motion to intervene, and the minimal prejudice to the
existing parties, the Tribe’s motion to intervene is timely.
III.
Intervention of Right
Under Rule 24, the court must permit a party to intervene when:
[The movant] claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.
Fed. R. Civ. P. 24(a)(2); see also Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485
F.3d 1006, 1008 (8th Cir. 2007) (citing Chiglo v. City of Preston, 104 F.3d 185,
187 (8th Cir. 1997)) (requiring a “cognizable interest” that “may be impaired as
a result of the litigation” and “is not adequately protected by the existing
parties”). The Eighth Circuit construes Rule 24 liberally and resolves any
doubts in favor of the proposed intervenors. See United States v. Union Elec. Co.,
64 F.3d 1152, 1159 (8th Cir. 1995) (listing cases); see also Sierra Club v.
Robertson, 960 F.2d 83, 86 (8th Cir. 1992) (“Doubts regarding the propriety of
permitting intervention should be resolved in favor of allowing it, because this
serves the judicial system’s interest in resolving all related controversies in a
single action.”).
A. Cognizable Interest
“An interest is cognizable under Rule 24(a)(2) only where it is ‘direct,
substantial, and legally protectable.’ ” Med. Liab. Mut. Ins. Co., 485 F.3d at
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1008 (quoting Union Elec. Co., 64 F.3d at 1161). An economic interest alone or
an interest that is “ ‘contingent upon a sequence of events before it becomes
colorable’ ” will not satisfy Rule 24(a)(2). Id. (quoting Standard Heating & Air
Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 571 (8th Cir. 1998)).
“[I]ntervention may be based on an interest that is contingent upon the
outcome of the litigation.” Union Elec. Co., 64 F.3d at 1162. The interest
requirement is a practical standard that should be construed broadly. Id.
(quoting SEC v. Flight Transp. Corp., 699 F.2d 943, 949 (8th Cir. 1983)) (“The
court should be mindful that ‘[t]he interest test is primarily a practical guide to
disposing of lawsuits by involving as many apparently concerned parties as is
compatible with efficiency and due process.’ ”).
The Tribe has a cognizable interest that supports intervention in this
case. The Tribe has a direct interest in the tribal court case, and its ability to
litigate certain elements of that case might be impacted by this court’s decision
in the instant case. Furthermore, a finding for plaintiffs in this case would
impose expenses and delay on the Tribe due to its involvement in the
administrative matter. Finally, the Tribe has a financial, social, and legal
interest in the effective and fair enforcement of the IGRA, both in this case and
generally. These interests are sufficient to establish that, as a practical matter,
the Tribe is a party concerned with the outcome of this case and should be
allowed to intervene.
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B. Impairment of Interest
Rule 24(a)(2) does not require the Tribe to prove to a certainty that its
interests will be impaired, but only that the disposition of this action may as a
practical matter impair its interests. See Kan. Pub. Emps. Ret. Sys., 60 F.3d at
1307-08 (summarizing various formulations of the standard). Plaintiffs argue
that because the Tribe would still be able to bring its claims in tribal court, its
interests would not be impaired by a ruling in this case. The court disagrees.
Even though the tribal court forum would still be available, the Tribe’s ability to
litigate certain issues, such as the validity of the consulting agreement,
management contract, and the modifications to the management contract; the
permissibility of the bonus payments to plaintiffs; and the ultimate
responsibility for the violation of the IGRA, could be substantially limited.
Furthermore, the interest of the Tribe in the finality of the administrative
appeal process to which it is a party would be impaired if this court finds in
favor of the plaintiffs, forcing the Tribe to incur additional expense and delay.
Finally, the Tribe’s interests in the enforcement of the IGRA could be impaired
by a decision in favor of the plaintiffs if the court finds, as plaintiffs request,
that NIGC procedures do not comply with the Constitution.
C. Representation by Present Parties
Ordinarily, an applicant for intervention bears only a “ ‘minimal burden
of showing that its interests are not adequately represented by the parties.’ ”
South Dakota ex rel. Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 785 (8th Cir.
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2003) (quoting Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th Cir. 1996)). But the
Eighth Circuit imposes a heavier burden on an applicant for intervention with
respect to this factor when a party in the suit has an obligation to represent the
interests of the applicant. See id. (citing Union Elec. Co., 64 F.3d at 1168). This
heavier burden is appropriate when, as here, “one of the parties is an arm or
agency of the government, and the case concerns a matter of sovereign
interest . . . [because] the government is presumed to represent the interests of
all its citizens.” Mausolf, 85 F.3d at 1303 (internal quotations omitted). “[An
applicant for intervention] can rebut the presumption that the government is
adequately representing its interests by showing that its interests actually differ
from or conflict with the government’s interests.” South Dakota ex rel. Barnett,
317 F.3d at 785-86 (citing Union Elec. Co., 64 F.3d at 1169). A conflict of
interest cannot be potential, theoretical, unsubstantiated, or speculative. See
id. at 786.
Plaintiffs argue that the NIGC will adequately represent the Tribe in this
matter because the NIGC’s purpose is the enforcement of the IGRA, and the
IGRA “serves to promote ‘tribal economic development, self-sufficiency, and
strong tribal governments’ and shield tribes from the influence of organized
crime to ensure that the tribes are the primary beneficiaries of tribal gaming.”
Colombe v. Rosebud Sioux Tribe, 918 F. Supp. 2d 952, 956 (D.S.D. 2013)
(quoting First Am. Kickapoo Operations, LLC v. Multimedia Games, Inc., 412 F.3d
1166, 1167 (10th Cir. 2005)); see also 25 U.S.C. § 2702.
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It is true that the NIGC and the Tribe have some overlapping interests.
But the Tribe has interests that the NIGC does not share. First, while the NIGC
is interested in upholding its administrative decision, the Tribe is interested in
preserving parts of that decision for a different purpose, namely, to establish
facts beneficial to the Tribe’s action in tribal court. Second, the Tribe’s narrow
financial interest is not adequately represented by the NIGC, as evidenced by
the fact that the NIGC upheld the civil fine against plaintiffs but found that the
fine supplanted the nearly $3.5 million still owed by Bettor Racing to the Tribe
under the initial NIGC decision. Because the Tribe’s interests could be impaired
by the outcome of this case, and the Tribe is not adequately represented by the
existing parties, the court grants the Tribe’s motion to intervene under Rule
24(a)(2).
IV.
Permissive Intervention
In the alternative, even if the court denied intervention of right in this
case, the court would grant the Tribe’s motion for permissive intervention. Rule
24 states that:
On timely motion, the court may permit anyone to intervene who . .
. has a claim or defense that shares with the main action a
common question of law or fact. . . . In exercising its discretion, the
court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights.
Fed. R. Civ. P. 24(b). If an applicant for intervention satisfies the requirements
of Rule 24(b), “permissive intervention is wholly discretionary.” South Dakota ex
rel. Barnett, 317 F.3d 787. “The principal consideration in ruling on a Rule
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24(b) motion is whether the proposed intervention would unduly delay or
prejudice the adjudication of the parties’ rights.” Id. (citing United States v.
Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994)).
A. Common Questions of Law or Fact
The Tribe’s claims and defenses share questions of law or fact with the
main action in this case. Plaintiffs try to escape this conclusion by arguing that
they are only challenging the action of the NIGC as it applies to them. But a
review of plaintiffs’ complaint indicates that there are numerous factual
allegations made by plaintiffs which implicate the Tribe in the alleged violations
of the IGRA. See Docket 8 at 2-3. In asserting its defense of the NIGC’s decision
and its counterclaims, the Tribe is in a unique position to dispute relevant and
probative facts. The requirement that the Tribe’s claims and defenses share a
question of law or fact with the underlying action is satisfied.
B. Undue Delay or Prejudice
Plaintiffs object to permissive intervention because they claim the Tribe is
attempting to argue issues that the Tribe forfeited by not appealing the Tribe’s
notice of violation. Plaintiffs argue that those additional claims would unduly
delay or prejudice the adjudication of plaintiffs’ rights. Plaintiffs also suggest
that including the Tribe’s counterclaims would change the focus of the instant
case and thereby create undue prejudice and delay.
Despite plaintiffs’ assertions, the Tribe has an important role to play in
the adjudication of the factual allegations made by plaintiffs. Plaintiffs would
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not suffer undue prejudice from the involvement of the Tribe, particularly when
many of plaintiffs’ claims relate to the interaction between plaintiffs and the
Tribe over almost a decade. Furthermore, due to the early stage at which the
Tribe seeks to intervene, there will be little unnecessary delay or duplication in
this litigation if intervention is allowed. Finally, intervention by the Tribe will
improve judicial economy by including a party with such a direct relationship
to the claims raised by plaintiffs. Therefore, the court alternatively grants the
Tribe’s motion to permissively intervene under Rule 24(b).
V.
Judicial Notice
Federal Rule of Evidence 201 states that a court “may judicially notice a
fact that is not subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). “A court may take judicial notice at any stage
of the proceeding.” Fed. R. Evid. 201(d). The court “must take judicial notice if a
party requests it and the court is supplied with the necessary information.”
Fed. R. Evid. 201(c)(2).
“Writers generally agree that courts can take judicial notice of court
records under Rule 201(b)(2).” 21B Charles Alan Wright & Kenneth W. Graham,
Jr., Fed. Prac. & Prod. Evid. § 5106.4 (2d ed. 2005). A court “may take judicial
notice of a document filed in another court . . . to establish the fact of such
litigation and related filings.” United States v. Jones, 29 F.3d 1549, 1553 (11th
Cir. 1994) (internal quotations omitted). Plaintiffs argue that it is improper for
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the court to notice facts which are still disputed, and that the court cannot take
notice of court records other than opinions.
Plaintiffs provide the court with no authority supporting their position
that the existence of a separate court proceeding is not an adjudicative fact.
Establishing the existence of the tribal court case is a relevant component for
the Tribe to demonstrate one of its proffered interests justifying intervention.
Additionally, the court is not restricted to only taking judicial notice of formal
opinions. See Great Plains Trust Co. v. Union Pacific R.R. Co., 492 F.3d 986, 99697 (8th Cir. 2007) (citing Conforti v. United States, 74 F.3d 838, 840 (8th Cir.
1996)) (taking judicial notice of “proceedings in other courts that relate directly
to matters at issue”).
Therefore, the court will take judicial notice of the complaint filed in the
tribal court for the limited purpose of showing that an action has been filed by
the Tribe against plaintiffs. The court does not take judicial notice of any
allegations made in the tribal court action by either party, or any testimony or
argument before the tribal court, as those facts are not indisputable.
CONCLUSION
The court takes judicial notice of the tribal court complaint for the limited
purpose of establishing that an action by the Tribe against plaintiffs is pending
there. Additionally, the court finds that the Tribe is entitled to intervene of right
under Rule 24(a)(2). The court alternatively grants permission for the Tribe to
intervene under Rule 24(b)(1)(B). Accordingly, it is
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ORDERED that the Tribe’s motion to intervene (Docket 7) is granted.
IT IS FURTHER ORDERED that the Clerk of Courts will file the Tribe’s
answer and counterclaim (Docket 10).
IT IS FURTHER ORDERED that the Tribe’s request for judicial notice
(Docket 9) is granted in part, and the court will take judicial notice of the fact
that an action is pending in tribal court.
IT IS FURTHER ORDERED that the stay dated October 22, 2013, is
lifted, and the parties will jointly file a proposed schedule for further
proceedings by November 20, 2013.
Dated November 6, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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