American Greyhound Racing, Inc. v. Hull
| Decision Date | 19 September 2002 |
| Docket Number | No. 01-17319.,No. 01-17321.,No. 01-16672.,01-16672.,01-17319.,01-17321. |
| Citation | 305 F.3d 1015 |
| Parties | AMERICAN GREYHOUND RACING, INC., a Delaware corporation; Western Racing, Inc., a Delaware corporation; TP Racing LLLP, an Arizona limited liability partnership, Plaintiffs-Appellees, v. Jane Dee HULL, Governor of Arizona; State of Arizona; Janet Napolitano, Attorney General of the State of Arizona; State of Arizona, Defendants-Appellants, and Richard Romley, County Attorney of Maricopa County, Arizona, Defendant, v. Tucson Greyhound Park, Inc., Plaintiff-Intervenor-Appellee. American Greyhound Racing, Inc., a Delaware corporation; Western Racing, Inc., a Delaware corporation; TP Racing LLLP, an Arizona limited liability partnership, Plaintiffs-Appellants, v. Jane Dee Hull, Governor of Arizona; State of Arizona; Janet Napolitano, Attorney General of the State of Arizona; Richard Romley, County Attorney of Maricopa County, Arizona; State of Arizona, Defendants-Appellees, v. Tucson Greyhound Park, Inc., Plaintiff-Intervenor. American Greyhound Racing, Inc., a Delaware corporation; Western Racing, Inc., a Delaware corporation; TP Racing LLLP, an Arizona limited liability partnership, Plaintiffs, v. Jane Dee Hull, Governor of Arizona; State of Arizona; Janet Napolitano, Attorney General of the State of Arizona; State of Arizona, Defendants-Appellees, and Richard Romley, County Attorney of Maricopa County, Arizona, Defendant, v. Tucson Greyhound Park, Inc., Plaintiff-Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scott Bales, Lewis and Roca LLP, Phoenix, AZ, for the defendants-appellants-appellees.
Neil Vincent Wake, Linda D. Skon, Law Offices of Neil Vincent Wake, Phoenix, AZ, for the plaintiffs-appellees-appellants.
Donald M. Peters, Miller LaSota & Peters, PLC, Phoenix, AZ, for plaintiff-intervenor-appellee-appellant.
Thomas L. Hudson, Osborn, Maledon, P.A., Phoenix, AZ; Eric N. Dahlstrom, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Frye, LLP, Phoenix, AZ; Daniel J. Quigley, Quigley & Whitehill, P.L.C., Tucson, AZ; Frank R. Jozwiak, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA, for the amici curiae.
Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-00-02388-RCB.
Before: CANBY and RYMER, Circuit Judges, and BERTELSMAN,* Senior District Judge.
Opinion by Judge CANBY; Dissent by Judge RYMER.
Racetrack owners and operators brought this action against the Governor of Arizona1 to challenge the legality of the Governor's actions in negotiating new gaming compacts with Indian tribes, or in extending the tribes' existing compacts. The district court denied the Governor's motion to dismiss on the ground that the compacting tribes were indispensable parties. The court then granted the plaintiffs relief principally on two grounds: (1) the state statute authorizing the Governor to negotiate compacts, A.R.S. § 5-601, was an unlawful delegation of legislative power without sufficient standards for its exercise; and (2) in any event, A.R.S. § 5-601 did not authorize the Governor to negotiate compacts for most casino-type games because such games were prohibited by state law. Am. Greyhound Racing, Inc. v. Hull, 146 F.Supp.2d 1012 (D.Ariz.2001). The district court accordingly enjoined the Governor from executing new compacts pursuant to A.R.S. § 5-601 and ordered her to give notice of non-renewal of existing compacts entered pursuant to that statute. It further enjoined the Governor against modifying such existing contracts to increase the amount or kind of gaming permitted by the compacts.
We vacate the district court's judgment and remand with instructions to dismiss the action because we conclude that the compacting tribes were indispensable parties with sovereign immunity from suit.
Because the question whether a party is indispensable "can only be determined in the context of particular litigation," Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), it is necessary to set forth in some detail the legal and factual context of the present controversy.
The Indian Gaming Regulatory Act ("IGRA")
Congress enacted the Indian Gaming Regulatory Act ("IGRA") in 1988, following the Supreme Court's decision of California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). Congress declared that IGRA's primary purpose was "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments."2
IGRA establishes three classes of gaming. Class I includes social games for prizes of minimal value and traditional forms of Indian gaming. 25 U.S.C. § 2703(6). Class II includes bingo, similar games, and certain card games. Id. at § 2703(7)(A). Class III comprises all games not in classes I or II. Id. at § 2703(8). Slot machines, keno, and blackjack are Class III games. See id. § 2703(7)(B).
A tribe may engage in Class III gaming only if: (1) the tribe has authorized the Class III gaming by a tribal ordinance or resolution; (2) the Class III gaming will be "located in a State that permits such gaming for any purpose by any person, organization, or entity"; and (3) the Class III gaming is conducted in conformity with a tribal-state compact that is in effect. See 25 U.S.C. § 2710(d)(1).
Indian gaming in Arizona is now well-established, but it had rocky beginnings that were well described in detail by the district court. See Am. Greyhound, 146 F.Supp.2d at 1054-59. It is sufficient to note here that, shortly after IGRA was enacted, the Yavapai-Prescott Indian Tribe, after unsuccessful negotiations, sued the State to require it to enter a compact. See Yavapai-Prescott Indian Tribe v. Arizona, 796 F.Supp. 1292 (D.Ariz.1992). Several other tribes intervened. Then, in 1992, the state legislature passed and Governor Symington signed A.R.S. § 5-601. That statute provided, among other things:
A. Notwithstanding any other law, this state, through the governor, may enter into negotiations and execute tribal-state compacts with Indian tribes in this state pursuant to the Indian gaming regulatory act of 1988....
Under the authorization of this statute, Governor Symington entered pacts with the Yavapai-Prescott and three other tribes. Three tribes remaining in the Yavapai-Prescott litigation went to mediation and the mediator approved the tribes' proposal. After a period of resistance,4 Governor Symington entered compacts with the three tribes in 1993, and shortly thereafter entered compacts with several more tribes. By 1994, Governor Symington had entered compacts with sixteen tribes pursuant to A.R.S. § 5-601. The later compacts were for initial terms of ten years.
After sixteen compacts were executed, this court decided Rumsey Indian Rancheria of Wintun Indians v. Wilson, 41 F.3d 421, 427 (9th Cir.1994), as amended, 99 F.3d 321 (9th 14476 Cir.1996), which held that states were not required to negotiate for particular types of Class III games that were not otherwise permitted under state law. In light of Rumsey, Governor Symington refused to execute a compact with the Salt River Pima-Maricopa Indian Community on the ground that, although Arizona permitted some Class III gaming, it did not permit the slot machines and other casino-type gaming sought by the Salt River Community. The Salt River Community responded with a successful initiative campaign that resulted in A.R.S. § 5-601.01, which provided:
A. Notwithstanding any other law or the provisions of § 5-601, the state, through the governor, shall enter into the state's standard form of gaming compact with any eligible Indian tribe that requests it.
B. For purposes of this section:
1. The state's standard form of gaming compact is the form of compact that contains provisions ... that are common to the compacts entered into by this state with Indian tribes in this state on June 24, 1993.
...
2. An eligible Indian tribe is an Indian tribe that has not entered into a gaming compact with the state.
Pursuant to this statute, the Salt River Community tendered a proposed standard compact, but Governor Symington attempted to add a clause requiring the location of casinos on the reservation to be approved by the State. The Salt River Community sued, and prevailed in the Arizona Supreme Court, which required the governor to enter the tendered compact. Salt River Pima-Maricopa Indian Cmty. v. Hull, 190 Ariz. 97, 945 P.2d 818 (1997). Subsequently, individual plaintiffs sued to prevent the governor from entering the compact on the ground that casino-type gaming was prohibited by Arizona law; the plaintiffs prevailed in trial court but the decision was set aside for lack of standing by the Arizona Supreme Court. Sears v. Hull, 192 Ariz. 65, 961 P.2d 1013 (1998). The Court recognized that it had discretion under state law to waive the requirement of standing in cases "of great public importance that are likely to recur," but declined to do so in part because "the Sears' opposition to gaming and their interpretation of the statutes involved[] are not of such great moment or public importance as to convince us to consider this challenge to executive conduct." Id. at 1019-20.
The ten-year terms of several of the early compacts end in 2003. The compacts provide, however, that the terms shall be automatically extended for additional, successive terms of five years unless either party serves a notice of nonrenewal 180 days before expiration of the original or any extended term. Governor Hull, who succeeded Governor Symington, indicated an interest in negotiating modified compacts to take effect when the original ten-year terms...
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