Pueblo of Pojoaque v. New Mexico

• Decision Date: 30 September 2016
• Docket Number: No. CIV 15-0625 JB/GBW,CIV 15-0625 JB/GBW
• Parties: PUEBLO OF POJOAQUE, a federally recognized Indian Tribe; and Joseph M. Talachy, Governor of the Pueblo of Pojoaque, Plaintiffs, v. State of NEW MEXICO, Susana Martinez, Jeremiah Ritchie, Jeffery S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, Carl E. Londene and John Does I-V, Defendants.
• Court: U.S. District Court — District of New Mexico

214 F.Supp.3d 1028

PUEBLO OF POJOAQUE, a federally recognized Indian Tribe; and Joseph M. Talachy, Governor of the Pueblo of Pojoaque, Plaintiffs,

v.State of NEW MEXICO, Susana Martinez, Jeremiah Ritchie, Jeffery S. Landers¹ , Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, Carl E. Londene and John Does I-V, Defendants.

No. CIV 15-0625 JB/GBW

United States District Court, D. New Mexico.

Signed September 30, 2016

Carrie A. Frias, Pueblo of Pojoaque Legal Department, Santa Fe, New Mexico and Scott Crowell, Steffani Ann Cochran, Crowell Law Office Tribal Advocacy Group, P.L.L.C., Sedona, Arizona, Attorneys for the Plaintiffs.

Henry M. Bohnhoff, Edward Ricco, Krystle A. Thomas, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone's Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc. 60)("Qualified Immunity Motion"); (ii) Defendants Susana Martinez, Jeremiah Ritchie, Jeffry [sic] S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene's Motion for Stay of Discovery Pending Qualified Immunity Rulings, filed December 4, 2015 (Doc. 61)("Motion to Stay Discovery"); (iii) the Defendants' Motion to Stay or Suspend the Court's October 7, 2015 Preliminary Injunction, filed December 18, 2015 (Doc. 64)("Motion to Stay Injunction"); (iv) the Defendants' Motion to Reconsider and Either Vacate or Modify the Court's October 7, 2015 Preliminary Injunction, and for Relief Pursuant to Fed. R. Civ. P. 62.1, filed December 18, 2015 (Doc. 65)("Motion to Reconsider Injunction"); (v) Defendant State of New Mexico's Motion to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendant State of New Mexico Based on the State's Eleventh Amendment Sovereign Immunity, filed December 22, 2015 (Doc. 69)("Sovereign Immunity Motion"); (vi) the Defendants' Motion to Dismiss Counts III and IV of the Plaintiffs' Complaint, filed December 22, 2015 (Doc. 71)("Motion to Dismiss Counts III and IV"); (vii) the Defendants' Motion to Dismiss Count II of Plaintiffs' Complaint, filed December 22, 2015 (Doc. 72)("Motion to Dismiss Count II"); (viii) the Defendants' Motion to Dismiss Count V of Plaintiffs' Complaint, filed December 22, 2015 (Doc. 73) ("Motion to Dismiss Count V"); (ix) the Pueblo's Motion to Stay Proceedings Pending Defendants' Interlocutory Appeal of Order Issuing Preliminary Injunction, filed February 17, 2016 (Doc. 93)("Motion to Stay Proceedings"); and (x) the Pueblo's Motion for Leave to Submit Supplemental Brief in Support of Pueblo's Motion to Stay Proceedings Pending Defendants' Interlocutory Appeal of Order Issuing Preliminary Injunction, filed March 29, 2016 (Doc. 111)("Supplemental Briefing Motion"). The Court held a hearing on the Qualified Immunity Motion and Motion to Stay Discovery on January 12, 2016. The Court held a hearing on the Sovereign Immunity Motion, the Motion to Stay Discovery, the Motion to Reconsider Injunction, the Motion to Dismiss Counts III and IV, the Motion to Dismiss Count II, and the Motion to Dismiss Count V on March 2, 2016. The Court held a hearing on the Motion to Stay Proceedings and Supplemental Briefing Motion on April 22, 2016.

The primary issues are: (i) whether the Defendants' interlocutory appeal of the Court's October 7, 2015, preliminary injunction, divests the Court of its jurisdiction over the present motions; (ii) whether Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone (collectively, the "Individual Defendants"), violated Plaintiff Pueblo of Pojoaque's federal rights by taking a series of actions under color of state law against non-Indian, state-licensed gaming manufacturer vendors—thereby potentially affecting Pojoaque Pueblo's ability to do business with such vendors—based on the Individual Defendants' determination that the vendors violated New Mexico law in supplying equipment to or receiving proceeds from gaming enterprises that the Pojoaque Pueblo allegedly conducted on its tribal lands in the absence of a compact with Defendant State of New Mexico, as the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701 -2721 ("IGRA"), requires; (iii) whether the Individual Defendants are entitled to qualified immunity with respect to Count IV, and whether discovery should be stayed pending the Court's ruling on the qualified immunity defense; (iv) whether Defendant State of New Mexico is entitled to dismissal of all Counts on the basis of sovereign immunity; (v) whether the Individual Defendants are entitled to immunity from the Plaintiffs' claim for tortious interference with contractual relations; and (vi) whether the Court should stay, suspend, vacate or modify Judge Brack's October 7, 2015, preliminary injunction enjoining the Defendants "from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based wholly or in part on grounds that such licensee is conducting business with the Pueblo."

FACTUAL BACKGROUND

This action arises out of New Mexico and Pojoaque Pueblo's failure to negotiate a state-tribal gaming compact pursuant to IGRA § 2710(d), and an ensuing dispute as to New Mexico's authority to regulate non-Indian gaming activities in New Mexico—regulations which are motivated by, and have an indirect impact on, the Pojoaque Pueblo's gaming operations, notwithstanding the absence of a compact. The material facts of this case are undisputed. See , e.g. , Qualified Immunity Motion at 5-7 (listing, without disputing, the Plaintiffs' factual allegations).

Pojoaque Pueblo is a federally recognized Indian Tribe with 482 enrolled members located in northern New Mexico. See Complaint [Failure To Conclude Compact Negotiations in Good Faith, 25 U.S.C. § 2710(d) ; Declaratory Judgment and Injunctive Relief; Violation of Civil Rights, 42 U.S.C. § 1983 ; Pendant Claim of Tortious Interference with Existing Contractual Relationships] ¶ 1, at 1, filed July 18, 2015 (Doc. 1). The Pojoaque Pueblo operates two gaming facilities on its Indian lands: the Buffalo Thunder Resort & Casino and the Cities of Gold Hotel & Casino. See Complaint ¶ 14, at 7; Pueblo of Pojoaque, http://pojoaque.ors/visit/gaming/ (last visited September 20, 2016). Plaintiff Joseph M. Talachy is Governor of the Pojoaque Pueblo. See Complaint ¶ 15, at 7.

New Mexico is a sovereign state government. See Complaint ¶ 16, at 7. Landers, Maniaci, Becker, Doughty, and Londene (collectively, the "Gaming Board Members") are Members of the New Mexico Gaming Control Board. Complaint ¶¶ 19-23, at 7-8. Landers also serves as the Chairman of the Gaming Board. See Complaint ¶ 19, at 7. Martinez, the Governor of New Mexico, appointed each Gaming Board member.² See Complaint ¶¶ 17, at 7; id . at ¶¶ 19-23, at 7-8. Ritchie serves as Martinez' Deputy Chief of Staff and primary compact negotiator.³ See Complaint ¶ 18, at 7.

On July 19, 2005, New Mexico and Pojoaque Pueblo executed a Class III gaming compact⁴ pursuant to IGRA, 25 U.S.C. §§ 2710(d), permitting the operation of casino-style gaming on Pojoaque Pueblo's tribal lands, see 25 U.S.C. § 2703(8). See Complaint ¶ 46, at 16. Before the compact's expiration on June 30, 2015, the Pojoaque Pueblo formally requested that New Mexico enter into a new agreement. See Complaint ¶ 2, at 2. Talks were unsuccessful, however, and on December 13, 2013, the Pojoaque Pueblo filed suit against the State for failing to negotiate a compact under IGRA in good faith. See Complaint ¶ 55, at 19. New Mexico promptly asserted sovereign immunity under the Eleventh Amendment to the Constitution of the United States of America as an affirmative defense, and accordingly, the Honorable James A. Parker, Senior United States District Judge for the United States District Court for the District of New Mexico, dismissed the lawsuit on March 3, 2014. See Complaint ¶ 56, at 19; Pueblo of Pojoaque v. New Mexico , 2014 U.S. Dist. LEXIS 188665 (D.N.M. 2014) (Parker, J.).

After Judge Parker dismissed Pojoaque Pueblo's suit against New Mexico for failure to negotiate a compact in good faith, the Pojoaque Pueblo submitted a proposal for Class III gaming to the United States Secretary of the Interior pursuant to IGRA, 25 U.S.C. § 2710(d)(7)(B), and 25 C.F.R. Part 291. The remedial scheme in 25 U.S.C. § 2710(d)(7)(B) empowers the Secretary of the Interior to promulgate procedures for Class III gaming if a state refuses to agree to a compact. See 25 U.S.C. § 2710(d)(7)(B)(vii). The Secretary may initiate such procedures once a federal court makes a determination that a state acted in bad faith in failing to negotiate a compact. See 25 U.S.C. § 2710(d)(7)(B)(iv)–(v). However, this remedial scheme is effectively neutralized by the fact that a state may assert sovereign immunity as an affirmative defense to such a suit. See Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 47, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (holding that Congress had no authority to subject states to suit by Indian tribes for negotiating in bad faith under IGRA). To resolve this issue, the Interior Secretary created the regulations in 25 C.F.R. Part 291 to provide tribes with an alternate path to obtain Class III gaming procedures. These regulations provide that, where "[a] State and an Indian tribe are unable to voluntarily agree to a compact" and "[t]he state has asserted its immunity from suit brought by an Indian tribe," 25 C.F.R. Part 291.1, then a tribe "may use the Secretarial Procedures to obtain permission to operate Class III gaming without ...