Chicken Ranch Rancheria of Me-Wuk Indians v. California

• Decision Date: 25 April 2023
• Docket Number: 21-15751
• Parties: CHICKEN RANCH RANCHERIA OF ME-WUK INDIANS; CHEMEHUEVI INDIAN TRIBE; BLUE LAKE RANCHERIA; HOPLAND BAND OF POMO INDIANS; ROBINSON RANCHERIA, Plaintiffs-Appellees, v. STATE OF CALIFORNIA; GAVIN NEWSOM, Governor of California, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

1

CHICKEN RANCH RANCHERIA OF ME-WUK INDIANS; CHEMEHUEVI INDIAN TRIBE; BLUE LAKE RANCHERIA; HOPLAND BAND OF POMO INDIANS; ROBINSON RANCHERIA, Plaintiffs-Appellees,
v.
STATE OF CALIFORNIA; GAVIN NEWSOM, Governor of California, Defendants-Appellants.

No. 21-15751

United States Court of Appeals, Ninth Circuit

April 25, 2023

Argued and Submitted February 16, 2023 San Francisco, California

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding D.C. No. 1:19-cv-00024- AWI-SKO

Aimee Feinberg (argued), Deputy Solicitor General; Timothy M. Muscat, Deputy Attorney General; William P. Torngren, Supervising Deputy Attorney General; Sara J. Drake, Senior Assistant Attorney General; Rob Bonta, Attorney General of California; Office of the California Attorney General; Sacramento, California; Noel Fischer, Deputy Attorney General; Office of the California Attorney General; San Diego, California; for Defendants-Appellants.

Lester J. Marston (argued), Rapport and Marston, Ukiah, California; David B. Dehnert, Dehnert Law PC, Marina Del Rey, California; Kostan R. Lathouris, Lathouris Law PLLC, Henderson, Nevada; for Plaintiffs-Appellees.

Kristin L. Martin, McCracken Stemerman & Holsberry LLP, Oakland, California, for Amicus Curiae Unite Here International Union.

George Forman, Jay B. Shapiro, and Margaret C. Rosenfeld, Forman Shapiro & Rosenfeld, Nicasio, California, for Amici Curiae Bear River Band of Rohnerville Rancheria, Cahuilla Band of Indians, Cachil Dehe Band of Wintun Indians of the Colusa Indian Community, and the Soboba Band of Luisen o Indians.

Laura E. Hirahara, California State Association of Counties, Sacramento, California, for Amicus Curiae California State Association of Counties.

Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.

2

SUMMARY^[*]

Attorneys' Fees

The panel denied a request for attorneys' fees by Indian Tribes that prevailed in their lawsuit against the State of California under the federal Indian Gaming Regulatory Act.

The Tribes sued the State of California for its failure to comply with IGRA. In an earlier opinion (Chicken Ranch I), the panel ruled for the Tribes, first noting that California Government Code § 98005 explicitly waived the state's sovereign immunity from suit. The panel held that California violated IGRA by failing to negotiate in good faith a Class III gaming compact with the Tribes, and it ordered the district court to implement IGRA's remedial framework.

After prevailing, the Tribes sought attorneys' fees spent litigating the Chicken Ranch I appeal. Because IGRA does not authorize fee shifting, the Tribes sought attorneys' fees under California Code of Civil Procedure § 1021.5, which allows an award of fees to a prevailing party "in any action which has resulted in the enforcement of an important right affecting the public interest," if certain other conditions are met.

California argued that, although it consented to the Tribes' underlying IGRA action, it did not submit to federal court adjudication of an attendant attorneys' fee motion because attorneys' fees are not available through an IGRA

3

action. The panel concluded that this contention merely collapsed California's sovereign immunity defense into its merits argument that IGRA's lack of a fee-shifting provision was dispositive.

The panel held that, because the Tribes prevailed on a federal cause of action, they were entitled to attorneys' fees only if federal law allowed them. Because it did not, the panel denied the Tribes' fee request. The panel rejected the Tribes' argument that there is an exception authorizing attorneys' fees in federal question cases when the claims implicate "substantial and significant issues of state law." The panel distinguished Independent Living Center of Southern California, Inc. v. Kent, 909 F.3d 272 (9th Cir. 2018), in which there was no federal cause of action but there was federal question jurisdiction over a state-law claim that fell within a small category cases where a federal issue is necessarily raised, actually disputed, substantial, and capable of resolution in federal court without disturbing the federal-state balance approved by Congress.

4

OPINION

BRESS, CIRCUIT JUDGE

We decide an issue of attorneys' fees. The plaintiff Indian Tribes prevailed in their lawsuit against the State of California under the federal Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. But because IGRA does not authorize fee shifting, the Tribes ask for attorneys' fees under California law. We hold that because the plaintiffs prevailed on a federal cause of action, they are entitled to attorneys' fees only if federal law allows them. Because it does not, we deny the Tribes' fee request.

5

I

The plaintiff Tribes-Chicken Ranch Rancheria of Me-Wuk Indians, Blue Lake Rancheria, Chemehuevi Indian Tribe, Hopland Band of Pomo Indians, and Robinson Rancheria-sued the State of California for its failure to comply with IGRA. In Chicken Ranch Rancheria of Me-Wuk Indians v. California, 42 F.4th 1024 (9th Cir. 2022) (Chicken Ranch I), we ruled for the Tribes.

We considered in Chicken Ranch I whether California violated IGRA by failing to negotiate in good faith a Class III gaming compact with the Tribes. See 25 U.S.C. § 2710(d)(3)(A). Class III gaming-high-stakes Las Vegas-style casino gambling-is permitted on Indian lands only if, among other things, a tribe and the state enter a tribal-state compact. Chicken Ranch I, 42 F.4th at 1032. In Chicken Ranch I, we first noted that California Government Code § 98005 explicitly waived the state's sovereign immunity from suit. Id. at 1032 n.1. We then held that, under IGRA, California had failed to engage in good faith negotiations with the Tribes because California had insisted that the Tribes agree to compact provisions relating to family law, environmental regulation, and tort law that were far outside of IGRA's permissible topics of negotiation. Id. at 1029 (citing 25 U.S.C. § 2710(d)(3)(C)).

Because California had not negotiated in good faith, we ordered the district court to implement IGRA's remedial framework, which is "designed to force the state to the bargaining table and get the deal done." Id. at 1029. Chicken Ranch I contains extensive discussion of the intricacies of IGRA's compact negotiation framework and how California had violated it. But what matters here is that the Tribes sued under IGRA and won.

6

After prevailing, the Tribes filed a motion in this court seeking over $1 million in attorneys' fees spent litigating the Chicken Ranch I appeal. The Tribes argue that we should order fees under California Code of Civil Procedure § 1021.5, which allows an award of fees to a prevailing party "in any action which has resulted in the enforcement of an important right affecting the public interest," if certain other conditions are met. We thus consider whether the Tribes are entitled to appellate attorneys' fees. See 9th Cir. R. 39-1.6; Orn v. Astrue, 511 F.3d 1217, 1218-19 (9th Cir. 2008) (per curiam).

II

A

California first argues that sovereign immunity bars the Tribes' request for a fee award. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). States generally enjoy sovereign immunity from suit, but a state "may choose to waive its immunity in federal court at its pleasure." Sossamon v. Texas, 563 U.S. 277, 284 (2011). "A State's consent to suit must be 'unequivocally expressed' in the text of the relevant statute." Id. (quoting Pennhurst State Sch. &Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). It "may not be implied." Id. And when a court does find waiver, it is to be "strictly construed, in terms of its scope, in favor of the sovereign." Id. at 285 (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)).

Even against this demanding standard, we already recognized that California consented to suit in this case. As we noted in our earlier opinion, through California Government Code § 98005, "California has expressly consented to federal suits brought by California tribes under IGRA." Chicken Ranch I, 42 F.4th at 1032 n.1

7

(citing In re Indian Gaming Related Cases (Coyote Valley II), 331 F.3d 1094, 1101 &n.9 (9th Cir. 2003)). California explicitly consented "to the jurisdiction of the courts of the United States in any action brought against the state by any federally recognized California Indian tribe asserting any cause of action arising from the state's refusal to enter into negotiations . . . pursuant to IGRA or to conduct those negotiations in good faith." Cal. Gov't Code § 98005.

California responds that, although it consented to the Tribes' underlying IGRA action, it did not submit to federal court adjudication of an attendant attorneys' fee motion. California does not suggest that, had IGRA contained a feeshifting provision, the waiver of sovereign immunity in § 98005 would not encompass such relief. Instead, California maintains that attorneys' fees are just not available through an IGRA action. That contention, however, merely collapses California's sovereign immunity defense into its merits argument that IGRA's lack of a feeshifting provision is dispositive. Cf. Mashiri v. Dep't of Educ., 724 F.3d 1028, 1032 (9th Cir. 2013) (per curiam) (addressing analogous situation in which...