Texas v. Ysleta Del Sur Pueblo

• Decision Date: 11 February 2019
• Docket Number: EP-17-CV-179-PRM
• Parties: State of TEXAS, Plaintiff, v. YSLETA DEL SUR PUEBLO, the Tribal Council, and the Tribal Governor Michael Silvas or His Successor, Defendants. Ysleta del Sur Pueblo, the Tribal Council, and the Tribal Governor Michael Silvas or His Successor, Counter-Plaintiffs, v. Ken Paxton, in His Official Capacity as Texas Attorney General, Counter-Defendant.
• Court: U.S. District Court — Western District of Texas

367 F.Supp.3d 596

State of TEXAS, Plaintiff,

v.YSLETA DEL SUR PUEBLO, the Tribal Council, and the Tribal Governor Michael Silvas or His Successor, Defendants.

Ysleta del Sur Pueblo, the Tribal Council, and the Tribal Governor Michael Silvas or His Successor, Counter-Plaintiffs,

v.Ken Paxton, in His Official Capacity as Texas Attorney General, Counter-Defendant.

EP-17-CV-179-PRM

United States District Court, W.D. Texas, El Paso Division.

Signed February 11, 2019

Anne Marie Mackin, Benjamin S. Lyles, Michael Abrams, Office of the Attorney General of Texas, Austin, TX, for Plaintiff.

Joseph Daniel Austin, Richard Andrew Bonner, Kemp Smith LLP, El Paso, TX, Michelle T. Miano, Randolph Barnhouse, Pro Hac Vice, Barnhouse Keegan Solimon & West LLP, Los Ranchos Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING COUNTER-DEFENDANT KEN PAXTON'S MOTION FOR SUMMARY JUDGMENT

PHILIP R. MARTINEZ, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Counter-Defendant Ken Paxton, in his official capacity as the Attorney General's [hereinafter "Paxton"] "Motion for Summary Judgment" (ECF No. 147) [hereinafter "Motion"], filed on November 14, 2018; Counter-Plaintiffs Ysleta del Sur Pueblo, the Tribal Council, and Tribal Governor Michael Silvas or his Successor's [hereinafter, collectively, "Pueblo" or "the Tribe"] "Response in Opposition to Counter-Defendant Ken Paxton's Motion for Summary Judgment on Defendants' Counterclaim" (ECF No. 153) [hereinafter "Response"], filed on December 5, 2018; and Counter-Defendant Paxton's "Reply in Support of Counter-Defendant Ken Paxton's Motion for Summary Judgment" (ECF No. 158) [hereinafter "Reply"], filed on December 14, 2018, in the above-captioned cause. After due consideration, the Court is of the opinion that Paxton's Motion should be granted, for the reasons that follow.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case is the most recent chapter of a decades-long dispute between the State of Texas and the Tribe regarding gaming activities on Pueblo tribal land. In 1987, the Restoration Act restored a federal trust relationship and federal assistance to the Tribe. See generally Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat. 666 (1987). In relevant part, § 107(a) of the Restoration Act provides that "[a]ll gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe." After the Restoration Act was enacted, litigation regarding the Tribe's gaming activities and the Restoration Act's meaning began quickly and has continued for more than twenty-five years.¹

The current dispute involves bingo activities on the Tribe's reservation. Am. Compl., Aug. 15, 2017, ECF No. 8. According to the State, "[t]he Pueblo currently operates several thousand one-touch ‘electronic bingo’ slot machines, as well as an unlicensed 24/7 bingo operation, on its El Paso reservation." Id. at 1. The State asserts that the Tribe's activities violate Texas law and the Restoration Act; therefore, the State seeks to enjoin the Tribe's operations. Id. The Tribe, however, avers that its gaming operations are permissible forms of bingo. Pueblo Defs.' First Am. Counterclaim 18 [hereinafter "Counterclaim"], Sept. 7, 2018, ECF No. 121.

The Texas Constitution provides that "[t]he Legislature by law may authorize and regulate bingo games conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs." TEX. CONST. Art. 3 § 47 (b). The Bingo Enabling Act is the operative statute that enables charitable bingo in Texas. See TEX. OCC. CODE § 2001. The Bingo Enabling Act defines which types of organizations are allowed to conduct charitable bingo, provides parameters for bingo occasions, and discusses bingo licensing requirements. Id.

In its Counterclaim, the Tribe contends that the Texas Constitution and Bingo Enabling Act² violate the Equal Protection Clause "by allowing certain organizations the right to conduct bingo, but omitting Indian nations and their members from that list." Counterclaim 20. Additionally, the Tribe asserts that Paxton has enforced Texas's gaming laws in a discriminatory manner. Specifically, the Tribe contends that Paxton "has never brought suit against non-Indians" to enforce gaming violations pursuant to the Texas Civil Practice and Remedies Code but "has worked for years to stop bingo on the Ysleta del Sur Pueblo" reservation. Id. at 21–22. Thus, the Tribe seeks a declaration that Texas's Bingo Enabling Act and/or enforcement of its gaming laws violate the Equal Protection Clause. Id. at 23.

II. LEGAL STANDARD

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a), a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Rogers v. Bromac Title Servs., LLC , 755 F.3d 347, 350 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

"Under Federal Rule of Civil Procedure 56(c), the party moving for summary judgment bears the initial burden of ... ‘identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.’ " Norman v. Apache Corp. , 19 F.3d 1017, 1023 (5th Cir. 1994) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). " Rule 56(c) mandates the entry of summary judgment ... upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548. Where this is the case, "there can be ‘no genuine issue as to any material fact,’ since complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. (quoting Rule 56(c) ).

In adjudicating a motion for summary judgment, a court "consider[s] evidence in the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in favor of that party." Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A. , 754 F.3d 272, 276 (5th Cir. 2014).

III. ANALYSIS

In his Motion, Paxton seeks summary judgment on the Tribe's Counterclaim. Specifically, Paxton asserts that 42 U.S.C. § 1983 is the appropriate vehicle for alleging a constitutional claim and that the Tribe is not a proper claimant pursuant to § 1983. Mot. 6, Reply 2. Additionally, Paxton contends that the Tribe's claims fail on their merits because the Bingo Enabling Act is not unconstitutionally written or enforced. Mot. 9–10.

A. Whether the Tribe has a cause of action apart from § 1983

According to the Tribe, its Counterclaim "does not include a claim under 42 U.S.C. § 1983" and, therefore, whether the Tribe is a proper claimant pursuant to § 1983 is irrelevant. Resp. 7. The Tribe presents two theories regarding how this case might be properly brought without invoking § 1983. First, the Tribe asserts that its claim is brought as "Declaratory Judgment Act litigation." Id. at 8. Second, the Tribe contends that "even if this were a ‘stand alone’ constitutional claim, it would be proper." Id. For the following reasons, the Court is of the opinion that the Declaratory Judgment Act does not provide an independent cause of action and that the Tribe's claim may not be brought as a freestanding constitutional claim. Accordingly, § 1983 is the proper vehicle for the Tribe's claim.

1. The Declaratory Judgment Act does not provide a cause of action.

The Declaratory Judgment Act provides no independent cause of action. The operation of the Declaratory Judgment Act is "only ‘procedural’ ... leaving ‘substantive rights unchanged.’ " Medtronic, Inc. v. Mirowski Family Ventures, LLC , 571 U.S. 191, 199, 134 S.Ct. 843, 187 L.Ed.2d 703 (2014) (quoting Aetna Life Ins. Co. v. Haworth , 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937) and then Beacon Theatres, Inc. v. Westover , 359 U.S. 500, 509, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) ). Therefore, the Act "is not an independent source of federal jurisdiction; the availability of such relief presupposes the existence of a judicially remediable right." Schilling v. Rogers , 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960) (internal citation omitted). Because the Declaratory Judgment Act provides no independent cause of action, the Tribe may not use the Act alone as a vehicle to bring its Equal Protection claim into federal court.³ Rather, the Tribe must identify a substantive source.

2. The Tribe cannot bring a standalone Equal Protection claim.

Further, the Tribe asserts that bringing this suit as a standalone constitutional claim is proper. Thus, the Court considers whether federal common law provides a cause of action for freestanding Equal Protection claims and determines that it does not.⁴

Courts have determined that "[t]he Equal Protection clause of the Fourteenth Amendment is not self-enforcing but requires application through some legislative act." Zentgraf v. Texas A & M Univ. , 492 F.Supp. 265, 270 (S.D. Tex. 1980) (citing Katzenbach v. Morgan , 384 U.S. 641, 649, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) and Ex parte Virginia , 100 U.S. 339, 345, 25 L.Ed. 676 (1880) ); see also Johnson v. Sutter Delta Med. Ctr. , No. C 11-03628 SI, 2011 WL 5444319, at *2 (N.D. Cal. Nov. 9, 2011) ("[T]he Fourteenth Amendment is not self-enforcing. Rather, § 5 of the Fourteenth Amendment grants Congress the power to enact legislation with the purpose of enforcing the Fourteenth Amendment....