State ex rel Susan Dewberry v. Kitzhaber

• Decision Date: 14 November 2013
• Docket Number: A146366.,160323044
• Citation: 313 P.3d 1135,259 Or.App. 389
• Parties: STATE ex rel Susan DEWBERRY, Carol Holcombe, Suzanne Danielson, and Arnold Buchman, Relators–Appellants, v. The Honorable John KITZHABER, Governor of the State of Oregon; and other Executive Officers in the State of Oregon, Defendants–Respondents, and The Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians, Intervenor–Respondent.
• Court: Oregon Court of Appeals

259 Or.App. 389

313 P.3d 1135

STATE ex rel Susan DEWBERRY, Carol Holcombe, Suzanne Danielson, and Arnold Buchman, Relators–Appellants,

v. The Honorable John KITZHABER, Governor of the State of Oregon; and other Executive Officers in the State of Oregon, Defendants–Respondents,andThe Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians, Intervenor–Respondent.

160323044; A146366.

Court of Appeals of Oregon.

Argued and Submitted Oct. 23, 2012.

Decided Nov. 14, 2013.

Kristian Roggendorf, Portland, argued the cause for appellants. With him on the briefs were Kelly Clark and O'Donnell, Clark & Crew LLP.

Stephanie L. Striffler, Senior Assistant Attorney General, and Bruce R. Greene, pro hac vice, Boulder, Colorado, argued the cause for respondents. With them on the joint brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General, and Sharon A. Rudnick.

Dennis Karnopp, Shayleen Allen, Brett Kenney, Dirk Doyle, Dan Hester, Rob Greene, and Craig J. Dorsay filed the joint brief amici curiae for Confederated Tribes of the Warm Springs Reservation, the Klamath Tribes, the Coquille Indian Tribe, the Cow Creek Band of Umpqua Tribe of Indians, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Grand Ronde Community of Oregon, and the Confederated Tribes of Siletz Indians of Oregon.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

In 2003, respondents, the Governor and other executive officers of the State of Oregon, signed a tribal-state gaming compact between the state and the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (the Tribes) pursuant to the Indian Gaming Regulatory Act, 25 USC §§ 2701–2721 (IGRA). Under IGRA, states are required to negotiate with tribes in good faith for a compact covering all gaming activities that are permitted in a state “for any purpose by any person, organization, or entity.” 25 USC § 2710(d)(1)(B); 25 USC § 2710(d)(3)(A) (good faith requirement). The 2003 gaming compact concerned so-called class III gaming activities at a casino on Indian lands located within the geographic borders of Oregon near Florence. Relators Dewberry, Holcombe, Danielson, and Buchman own property in or near Florence. They have long opposed the development of the casino and, in this mandamus action, sought to require the Governor to withdraw his signature from the tribal-state gaming compact. The trial court agreed with the state and the Tribes that the Governor had authority to sign the compact and that the compact was valid. The court granted their motions for summary judgment and denied relators' motion for summary judgment. We affirm the trial court's judgment.

I. FACTS AND PROCEDURAL HISTORY

This action has an extensive procedural background, including parallel federal litigation and an earlier appeal resulting in the Oregon Supreme Court's remand of the case to the trial court in 2009. The salient facts, however, are straightforward and undisputed. We begin with the facts concerning the compact and development of the Tribes' casino and then summarize the procedural background of relators' legal challenges to the casino's development and continuing operation.

The Tribes are a federally-recognized Indian tribe with headquarters in Coos Bay. Their status as a federally-recognized Indian tribe was restored in 1984 after being terminated in 1954. Oregon v. Norton, 271 F.Supp.2d 1270, 1272 (D.Or.2003).

The Tribes built and operate the Three Rivers Casino & Hotel, a facility with more than 90 rooms and suites, a casino, and five restaurants, on the Hatch Tract. The Hatch Tract is a 98–acre parcel of Indian land located in Florence. Norton, 271 F.Supp.2d at 1272. The Hatch Tract lies within the former Siletz Reservation, to which the Tribes were removed in 1862, and has been held by the Tribes or its members since then. Id. at 1272–73. In 1998, the Secretary of the Interior acquired the Hatch Tract in trust for the benefit of the Tribes. Id. at 1273.

Under IGRA, tribes may engage in “class III” casino-style gaming on Indian lands if, among other things, such gaming is authorized by a tribal-state gaming compact. 25 USC § 2710(d)(1)(C). In 2002, the Tribes began negotiating a gaming compact with Governor Kitzhaber to authorize casino-style gaming, including card games (blackjack, several forms of poker, let-it-ride, mini-baccarat), various other games of chance (video lottery, keno, big 6 wheel, roulette, craps), and off-track wagering on animal racing, at a casino on the Hatch Tract.

In January 2003, the state and the Tribes signed their Amended Tribal–State Compact for Regulation of Class III Gaming Between the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians and the State of Oregon. However, IGRA prohibits any gaming on Indian lands acquired after October 17, 1988, subject to an exception for restored lands. 25 USC § 2719(b)(1)(B)(iii). Because the Secretary acquired the Hatch Tract in 1998, the compact required a final determination that the Hatch Tract was subject to the restored lands exception in IGRA. The Tribes were able to achieve that determination.

In 2002, after litigation initiated by the Tribes, the Secretary concluded that the Hatch Tract had a historical, geographical, and temporal connection to the Tribes and constituted lands restored to the Tribes under IGRA. Norton, 271 F.Supp.2d at 1274. Although the state challenged that determination in federal district court, that court affirmed the Secretary's determination in July 2003, id. at 1280, and the state did not appeal.

The Secretary's determination that the Hatch Tract constituted restored lands paved the way for the compact to go into effect. In February 2003, the Acting Assistant Secretary–Indian Affairs, pursuant to the Secretary of the Interior's delegation of authority, approved the compact. The Tribes moved forward with development of the casino, and, in January 2004, the Tribes' Gaming Ordinance 30B was approved by the Chairman of the National Indian Gaming Commission. The Tribes' casino opened in the summer of 2004.

While the Tribes moved forward with developing and opening the casino, relators took legal action to try to halt the casino's development. Several months after the state's unsuccessful challenge to the secretary's determination that the Hatch Tract constituted restored lands, relators initiated litigation. Relators began by seeking a writ of mandamus against Governor Kulongoski from the Oregon Supreme Court in September 2003 to enjoin further development of the casino on the Hatch Tract, which the court denied in an order issued in November 2003.

Relators then commenced this action in December 2003, petitioning the Lane County Circuit Court for a writ of mandamus. In response, the state argued, among other things, that relators were not entitled to relief because they had an adequate remedy at law under the Oregon Declaratory Judgments Act, ORS 28.010 to 28.160. In 2004, the circuit court entered a judgment dismissing relators' mandamus petition, which they appealed. We allowed relators' appeal to be held in abeyance pending the resolution of their separate declaratory judgment action. State ex rel. Dewberry v. Kulongoski, 220 Or. 345, 220 Or.App. 345, 349, 187 P.3d 220 (2008), aff'd,346 Or. 260, 210 P.3d 884 (2009).

Relators filed their complaint under the Oregon Declaratory Judgments Act in March 2004. Id. The defendants were Governor Kulongoski, other state executive officers, and the Tribes. The state defendants then removed the case from the circuit court to the United States District Court for the District of Oregon. Id. The district court dismissed the declaratory judgment action upon granting the defendants' summary judgment motions. Dewberry v. Kulongoski, 406 F.Supp.2d 1136, 1157 (D.Or.2005). The district court concluded that relators lacked standing because their alleged injuries were not sufficiently concrete or particularized. Id. at 1143. The court also concluded that the Tribes were an indispensable party because an adverse disposition in the litigation—a challenge to the Tribes' compact with the state—would, as a practical matter, impede or impair the Tribes' ability to protect their interests. Id. at 1147. The court further ruled that the Tribes had sovereign immunity, id. at 1146, and that the claims against the Tribes had to be dismissed because joinder of the Tribes was not feasible. Id. at 1150. The court nevertheless went on to address the merits of the parties' arguments concerning IGRA in the interests of judicial economy, in an effort to avoid the need for remand to the state circuit court after an appeal to the Ninth Circuit Court of Appeals. Id. at 1142. On the merits, the district court concluded that the tribal-state gaming compact between the state and the Tribes was valid and that the state had authority to enter into the compact. Id. at 1152–57.

After losing the declaratory judgment action in the district court, however, relators chose not to appeal and instead litigated their challenge to the gaming compact in their pending mandamus action on appeal in this court. Relators reactivated their first appeal in this case and were successful in reversing the dismissal of their petition for a writ of mandamus. State ex rel Dewberry, 220 Or. 345, 220 Or.App. at 349, 361, 187 P.3d 220.

We concluded in the first appeal in this case that the trial court erred in dismissing relators' petition and reversed and remanded. Id. at 361, 187 P.3d 220. We held that a declaratory judgment action was not a plain or adequate remedy at law for two reasons: (1) the Tribes controlled the availability of an adjudication on the merits through their status as a necessary party and ability to assert sovereign immunity in such an action, id. at 358–59, 187 P.3d 220; and (2) the Tribes did not have to be joined as a party in this action because ORCP 29 A, concerning...