New Mexico v. Dep't of the Interior

Citation854 F.3d 1207
Decision Date21 April 2017
Docket NumberNos. 14-2219 & 14-2222,s. 14-2219 & 14-2222
Parties State of NEW MEXICO, Plaintiff-Appellee, v. DEPARTMENT OF the INTERIOR; Ryan Zinke, in his official capacity as Secretary of the Interior, Defendants-Appellants, and Pueblo of Pojoaque, a federally-recognized Indian Tribe, Intervenor Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

854 F.3d 1207

State of NEW MEXICO, Plaintiff-Appellee,
v.
DEPARTMENT OF the INTERIOR; Ryan Zinke, in his official capacity as Secretary of the Interior,* Defendants-Appellants,
and
Pueblo of Pojoaque, a federally-recognized Indian Tribe, Intervenor Defendant-Appellant.

Nos. 14-2219 & 14-2222

United States Court of Appeals, Tenth Circuit.

Filed April 21, 2017


J. David Gunter II, U.S. Department of Justice, Environment & Natural Resources Div., Washington, D.C. (John C. Cruden, Assistant Attorney General, Steven Miskinis and Yosef M. Negose, U.S. Department of Justice, Environment & Natural Resources Div., Washington, D.C., with him on the briefs), for Defendants-Appellants.

Steffani A. Cochran, Pueblo of Pojoaque Legal Department, Santa Fe, New Mexico, and Scott Crowell, Crowell Law Offices, Sedona, Arizona, for Intervenor Defendant-Appellant.

854 F.3d 1211

Eric D. Miller, Perkins Coie, Seattle, Washington (Jennifer A. MacLean, Perkins Coie, Washington, D.C., and Jeremiah L. Ritchie, Office of the Governor, Santa Fe, New Mexico, with him on the briefs), for Plaintiff-Appellee.

Before HOLMES, McHUGH, and MORITZ, Circuit Judges.

HOLMES, Circuit Judge.

The State of New Mexico ("the State" or "New Mexico") brought suit against the Department of the Interior ("DOI") to challenge its authority to promulgate the regulations found at 25 C.F.R. § 291 et seq. ("Part 291"). The challenged regulations concern the process under which Indian tribes and states negotiate compacts to allow gaming on Indian lands. Congress established in the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq. , that states have a duty to negotiate in good faith with tribes regarding compacts and that tribes could enforce this duty by bringing suit in federal court. As the Supreme Court would later decide, however, Congress lacked the authority to make states subject to suit by Indian tribes in federal court. Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). However, the Court left intact the bulk of IGRA, and Congress has not amended it in the intervening years.

More specifically, IGRA provides that when a tribe believes a state has failed to negotiate in good faith, the tribe may sue in federal court to, inter alia , obtain an order enjoining a state to negotiate a gaming compact and potentially subjecting the state to court-ordered mediation or the issuance of gaming procedures by the Secretary of the Interior ("the Secretary") without the state's consent. However, the Supreme Court, in Seminole Tribe , made clear that a state can invoke sovereign immunity in response to such a suit, thus effectively sidestepping the process that IGRA contemplates. See id. at 47, 116 S.Ct. 1114 ("We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause [U.S. Const. art. I, § 8, cl. 3 ] does not grant Congress that power, and therefore [25 U.S.C.] § 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued."). In response to Seminole Tribe , DOI promulgated Part 291 to allow the Secretary to prescribe gaming regulations for a tribe following the dismissal of a tribe's suit against a state on sovereign-immunity grounds.

As relevant here, the Part 291 process was implicated after the Pueblo of Pojoaque tribe ("the Pojoaque" or "the Tribe") sued New Mexico under IGRA and the State asserted sovereign immunity. Following the dismissal of the case on sovereign-immunity grounds, the Pojoaque asked the Secretary to prescribe gaming procedures pursuant to Part 291. Before the Secretary did so, New Mexico filed the present suit, seeking a declaration that the Part 291 regulations are not a valid exercise of the Secretary's authority. The Pojoaque intervened.

The district court granted New Mexico's motion for summary judgment and denied that of DOI, holding that the Part 291 regulations are invalid and barring the Secretary from taking any further action on the Pojoaque's request for the issuance of gaming procedures under them. DOI and the Pojoaque now appeal from this order; they challenge the State's standing, the ripeness of the dispute, and the district court's holding that Part 291 is an invalid exercise of the Secretary's authority. Exercising our jurisdiction under 28 U.S.C. § 1291, we conclude that the dispute is justiciable and affirm the district court's judgment.

854 F.3d 1212

I

A

In 1987, the Supreme Court held that states lack regulatory authority over gaming activities on Indian land except where Congress has expressly provided for such authority. California v. Cabazon Band of Mission Indians , 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). Following this ruling, Congress enacted IGRA, 25 U.S.C. § 2701 et seq ., which gives states a role in the regulation of Indian gaming. The act divides gaming into three classes. See 25 U.S.C. § 2703. The present case concerns Class III gaming, which includes the most lucrative forms of gaming. 25 U.S.C. § 2703(8) ; see Seminole Tribe , 517 U.S. at 48, 116 S.Ct. 1114 ("Class III gaming ... includes such things as slot machines, casino games, banking card games, dog racing, and lotteries."). Under IGRA, Class III gaming activities "shall be lawful on Indian lands only if such activities are conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State [where the gaming is located] ... that is in effect." 25 U.S.C. § 2710(d)(1)(C). An Indian tribe desiring such a compact "shall request the State ... to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact." 25 U.S.C. § 2710(d)(3)(A).

This case concerns how the process unfolds in the event that these negotiations do not commence following a tribe's request or are unsuccessful. The statute provides that if no agreement is reached within 180 days of a tribe's request for negotiation, the tribe may initiate a "cause of action ... arising from the failure of [the] State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or to conduct such negotiations in good faith." 25 U.S.C. § 2710(d)(7)(A)(i) and (B)(i). It further provides that federal district courts shall have jurisdiction over such a suit. 25 U.S.C. § 2710(d)(7)(A)(i). If the district court in which a suit is filed finds that the state has failed to negotiate in good faith, "the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period." 25 U.S.C. § 2710(d)(7)(B)(iii). If the parties fail to reach an agreement within sixty days, the statute outlines a process under which the tribe and the state each would submit a proposed compact to a mediator, and the mediator would select one. 25 U.S.C. § 2710(d)(7)(B)(iv). At that point, the state may consent to the selected compact or it may decline to do so. If the state does not consent, the mediator is required to notify the Secretary, who "shall prescribe, in consultation with the Indian tribe, procedures ... consistent with the proposed compact selected by the mediator ... under which Class III gaming may be conducted." 25 U.S.C. § 2710(d)(7)(B)(vii)(I) to (II).

The Supreme Court's ruling in Seminole Tribe complicated the process outlined above. In that case, the Court held, in the context of the Indian Commerce Clause, that "the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States," and therefore a case against a state concerning whether it has failed to negotiate with a tribe in good faith cannot proceed unless the state has statutorily or otherwise waived its sovereign immunity or fails to assert its immunity as a defense.1

854 F.3d 1213

517 U.S. at 72, 116 S.Ct. 1114. However, states still retain the obligation to negotiate in good faith under 25 U.S.C. § 2710(d)(3)(A).

Following Seminole Tribe , DOI issued the Part 291 regulations to provide an alternative administrative remedial scheme that applies when a state asserts sovereign immunity in a § 2710(d)(7) suit. 25 C.F.R. § 291.1. Under these regulations, when a district court dismisses a suit following a state's assertion of sovereign immunity, the tribe "may ask the Secretary to issue Class III gaming procedures" by submitting proposed procedures.2 25 C.F.R. §§ 291.3, 291.4. Upon receipt of such a request, the Secretary must "notify the Indian tribe in writing whether the Indian tribe meets the eligibility requirements in § 291.3." 25 C.F.R. § 291.6. If the tribe meets those requirements, which are not directly at issue here, then the Secretary is required to submit the tribe's proposed procedures to the state, which then has sixty days to comment on the proposal. 25 C.F.R. § 291.7(a), (b). The Secretary "will also invite the [state] to submit an alternative proposal." 25 C.F.R. § 291.7.

The nature of the remainder of the process depends on whether the state submits its own proposal. In cases in which the state declines to do so by the end of the sixty-day comment period, the...

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