Texas v. U.S., A-04-CA-143-LY.
| Decision Date | 18 August 2004 |
| Docket Number | No. A-04-CA-143-LY.,A-04-CA-143-LY. |
| Citation | 362 F.Supp.2d 765 |
| Parties | State of TEXAS, Plaintiff, v. UNITED STATES of America, United States Department of the Interior, and Gale A. Norton in Her Official Capacity as Secretary of the Department of the Interior, Defendants, v. Kickapoo Traditional Tribe Of Texas, Defendant-Intervenor. |
| Court | U.S. District Court — Western District of Texas |
William T. Deane, Office of the Attorney General, General Litigation Division-019, Austin, TX, for State of Texas, plaintiff.
John F. Paniszczyn, U.S. Attorney's Office, San Antonio, TX, Pilar M. Thomas, Department of Justice, Environment and Natural, Resources Div., Indian Resources Section, Bridget Garcia, Office of the Solicitor, Division of Indian Affairs, U.S. Dept. of the Interior, Washington, DC, Gaines West, West, Webb, Allbritton, Gentry & Rife, PC, College Station, TX, Gloria Hernandez, Kickapoo Traditional Tribe of Texas, General Counsel, Eagle Pass, TX, Jennifer P. Hughes, M. Frances Ayer, Joseph H. Webster, Hobbs, Straus, Dean & Walker, LLP, Washington, DC, Edmund Clay Goodman, Hobbs, Straus, Dean and Walker LLP, Portland, OR, for United States of America, United States Department of the Interior, Gale A. Norton, in her Official Capacity as Secretary of the Department of the Interior, Kickapoo Traditional Tribe of Texas, defendants.
Before the Court are Plaintiff's Motion for Summary Judgment filed July 14, 2004 (Doc. # 46); United States Motion for Judgment on the Pleadings or in the Alternative Cross-Motion for Summary Judgment filed August 18, 2004 (Doc. # 48); Defendant-Intervenor's Response in Opposition to Plaintiff's Motion for Summary Judgment filed August 18, 2004 (Doc. # 49); Defendant-Intervenor's Motion to Dismiss, or in the Alternative for Summary Judgment filed August 18, 2004 (Doc. # 50); Plaintiff's Response to the United States' Motion for Judgment on the Pleadings and Defendant-Intervenor's Motion to Dismiss filed August 27, 2004 (Doc. # 53); Plaintiff's Response to the United States Defendants' and Defendant-Intervenor's Motions for Summary Judgment filed August 27, 2004 (Doc. # 54); Defendant-Intervenor's Reply to Plaintiff's Response to Defendant-Intervenor's Motion to Dismiss and Motion for Summary Judgment filed September 7, 2004 (Doc. # 55); and United States' Combined Reply to Plaintiff's Response to United States Motion for Judgment on the Pleadings and Plaintiff's Response to United States Defendants' and Defendant-Intervenor's Motions for Summary Judgment filed September 7, 2004 (Doc. # 57). A hearing was held on the above-listed motions on October 26, 2004, at which the Court heard the arguments of counsel on all motions. After the hearing the parties filed with the Court the following additional documents: Plaintiff's Letter Brief filed November 5, 2004 (Doc. # 64); Defendant-Intervenor's Letter Brief filed November 9, 2004 (Doc. # 65); Defendant United States' Supplemental Brief filed November 12, 2004 (Doc. # 66); Defendant-Intervenor's Submission of Recently Decided Supplemental Authority filed December 1, 2004 (Doc. # 67); Plaintiff's Second Letter Brief filed December 6, 2004 (Doc. # 68); and Defendant-Intervenor's Letter Brief in Reply to Plaintiff's Second Letter Brief filed December 27, 2004 (Doc. # 71). Having reviewed the summary-judgment motions, responses, replies, and additional briefing, as well as all summary-judgment evidence submitted by the parties and the arguments of counsel at the hearing, the Court finds that although the State of Texas does have standing generally to bring its cause of action, its specific claims are premature until a final decision is rendered by the Department of the Interior on whether the Kickapoo Traditional Tribe of Texas's application for Class III gaming would be consistent with Texas law and public policy.
The following factual summary was provided in part by the parties' Joint Stipulations of Fact (Doc. # 47) filed July 14, 2004. The Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-21 (2001), was enacted on October 17, 1988. By adopting IGRA, Congress preempted all other regulation of Indian gaming. See 25 U.S.C. § 2702(3).
IGRA divides Indian gaming into three classes: "Class I games" (social games solely for prizes of minimal value or traditional forms of Indian gaming); "Class II games" (bingo, including pull-tabs, lotto, punch boards, tip jars, instant bingo, other games similar to bingo, and certain card games); and "Class III games" (all other gaming including roulette, blackjack, and parimutuel wagering). See id. § 2703(6)-(8). Class I games are not subject to regulation under IGRA. Id. § 2710(a). Class II games are permitted on Indian lands under IGRA if the game is conducted within a state that permits Class II gaming "for any purpose by any person, organization or entity." Id. § 2710(b). Class III gaming activities are Id. § 2710(d) (Supp.2004).
Known colloquially as a "cooperative federalism" statute, IGRA contemplates joint federal and state regulation. See Artichoke Joe's California Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir.2003). In order to engage in Class III gaming activities, an Indian tribe must "request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities." 25 U.S.C. § 2710(d)(3)(a). The state must negotiate in good faith with the tribe upon receipt of such a request. Id.
The Kickapoo Traditional Tribe of Texas ("Kickapoo Tribe") is an Indian tribe recognized in IGRA "by the Secretary for the special programs and services" and as "possessing powers of self-government." Id. § 2703(5). In 1995 representatives of the Kickapoo Tribe met with the Governor of Texas's staff to discuss the possibility of negotiating a compact to conduct Class III gaming in Texas. When the State of Texas rejected the Kickapoo Tribe's offer to negotiate a compact, the Kickapoo Tribe filed suit on October 13, 1995, alleging that Texas failed to negotiate in good faith under IGRA. Before the lawsuit was concluded, however, the United States Supreme Court decided Seminole Tribe of Florida v. Florida, in which the Court held that the enactment of IGRA did not waive a state's Eleventh Amendment immunity. 517 U.S. 44, 72-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In light of Seminole Tribe, Texas's motion to dismiss the Kickapoo Tribe's suit was granted on April 2, 1996. See Order on Defendants' Motion to Dismiss, Kickapoo Traditional Tribe of Texas v. State of Texas, Cause No. P-95-CA-66 (W.D. TX April 2, 1996).
In May 1996, the United States Department of the Interior (the "Department") published an Advanced Notice of Proposed Rulemaking seeking "comment on its authority under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2710, to promulgate `procedures' to authorize Class III gaming on Indian lands when a State raises an Eleventh Amendment defense to an action brought against it pursuant to Section 11 of the Act, 25 U.S.C. § 2710(d)(7)." 61 Fed.Reg. 21394 (May 10, 1996).1 After the comment period expired, the Department issued a Proposed Rule for Class III Gaming Procedures on January 22, 1998. See 63 Fed.Reg. 3289 (Jan. 22, 1998). The Department sought further comment on the Proposed Rule, in response to which Texas submitted its objections. Once appropriations were made available in 1999, the Department was able to publish its Final Rule for Class III Gaming Procedures in April of that year. See 64 Fed.Reg. 175353 (Apr. 12, 1999) (codified at 25 C.F.R. Part 291) (the "Gaming Procedures" at issue in this case).
On December 11, 2003, the Kickapoo Tribe submitted its Class III gaming application to the Department. On January 12, 2004, the Secretary of the Interior, acting through the Acting Deputy Assistant Secretary of Policy and Economic Development, notified Texas and the Kickapoo Tribe that the Secretary had determined that the Kickapoo Tribe's proposal was complete and met the eligibility requirements of the Gaming Procedures. The Secretary invited Texas to comment on the proposal or to submit an alternative proposal.
On March 11, 2004, Texas filed its original complaint and an Application for Preliminary Injunction and for Stay of Administrative Proceedings seeking to have the Gaming Procedures declared invalid and seeking a stay of the application of those procedures to Texas pending this Court's review. A hearing was held before this Court on April 20, 2004, following which the Court denied Texas's application. Following the ruling, the parties filed the various motions and cross-motions for summary judgment, to dismiss, and for judgment on the pleadings discussed herein.
Texas's motion for summary judgment seeks a finding by the Court that the Gaming Procedures are in direct conflict with IGRA and therefore constitute an unconstitutional delegation of legislative authority to the Secretary and violate the separation-of-powers doctrine. Further, Texas seeks a finding that the Gaming Procedures vest the Secretary with judicial and legislative authority that conflicts with the Secretary's position as "trustee" for the Indian Tribes under IGRA. In response, the Kickapoo Tribe asserts that Texas lacks standing to raise its claims and that its claims are not ripe for adjudication.
The United States' motion for judgment on the pleadings and cross-motion for summary judgment also raises the issue of standing because, the United States contends, there are no injuries and no final decision for Texas to...
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Texas v. U.S.
...authority under IGRA and his general statutory responsibility for Indian tribes to promulgate the Procedures. Texas v. United States, 362 F.Supp.2d. 765, 769-70 (W.D.Tex.2004). The State appealed. Responding to the parties' contentions in this court, we conclude that Texas has standing to s......