Tohono O'odham Gaming Enter. v. Tohono O'odham Gaming Office, (2022)

• Docket Number: AV2022-0056
• Decision Date: 15 July 2022
• Citation: Tohono O'odham Gaming Enter. v. Tohono O'odham Gaming Office, 4 TOR3d 188, AV2022-0056 (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division Jul 15, 2022)
• Parties: TOHONO O'ODHAM GAMING ENTERPRISE, an enterprise of the Tohono O'odham Nation, Petitioner v. TOHONO O'ODHAM GAMING OFFICE, a department within the Executive Branch of the Tohono O'odh Nation, JERRY DERRICK, Executive Director, in his official capacity, CATALINA PATRONSKI, Licensing Manager, in her official capacity; and JOHN DOES AND JANE DOES 1-40, Respondents
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

4 TOR3d 188

TOHONO O'ODHAM GAMING ENTERPRISE, an enterprise of the Tohono O'odham Nation, Petitioner v. TOHONO O'ODHAM GAMING OFFICE, a department within the Executive Branch of the Tohono O'odh Nation, JERRY DERRICK, Executive Director, in his official capacity, CATALINA PATRONSKI, LicensingManager, in her official capacity; and JOHN DOES AND JANE DOES 1-40, Respondents

No. AV2022-0056

Judicial Court of the Tohono O'odham Nation Adult Civil Division

July 15, 2022

ORDER

Joseph Hardy, Jr., Judge.

This is before the Court on PetitionerTohono O'odham Gaming Enterprise's ("TOGE")Motion for Immediate Stay of March 30, 2022 Final Decision of the Tohono O'odham Gaming Office(the "Motion").

RespondentTohono O'odham Gaming Office("TOGO") filed its Response in Opposition to TOGE's Motion to Stay(the "Response").

As noted by Petitioner TOGE, the Court may, pursuant to Section 8,Rule 10(a)(1) of the Tohono O'odham Rules of Court stay TOGO'S March 30, 2022 decision pending final disposition of this case.

Respondent TOGO argues that TOGE's Motion is procedurally deficient because it was filed before TOGE's complaint was filed or served.

4 TOR3d 189

The Court does not find a requirement that a motion for stay in an administrative appeal must be filed after the complaint is filed or served.Only that notice has been provided to the agency.T.O. R. Ct. § 8, Rule 10(a)(1).

That notice has been provided here.Accordingly, the Court will substantively consider TOGE's Motion, and TOGO'S Response.

As TOGE noted, (i) it must show "good cause" to grant a stay, and (ii)Tohono O'odham law does not provide a definition for that in this context.The Court did find however, a comparable Arizona case: P&P Mehta LLC v Jones,211 Ariz. 505(Ct. App.2005).And in the absence of Tohono O'odham law on point, the Court may look to Arizona law for guidance in its discretion.4 T.O.C. Chapt. 1 § 1-102.

The Court exercises that discretion here.The test for good cause announced in the Mehta case is on point here, and well-researched and reasoned.Accordingly, this Court will apply a similar standard: to establish good cause for a stay TOGE must show (A) a colorable claim ("a seemingly valid, genuine, or plausible claim under the circumstances") and (B) the balance of harm favors granting the stay.Mehta,211 Ariz. at 510.

Upon review of TOGE's Motion, and the cited authorities, the CourtFUNDS that TOGE has shown at least a seemingly plausible, and therefore "colorable", claim that TOGO may not consider TOGE's compliance with the employment preference mandate contained in its charter when making licensing decisions.Therefore, TOGE has met this first requirement for a stay.^[1]

4 TOR3d 190

The Court is presently unable, however, to balance the harms.TOGE laid out its harms in its Motion.TOGO did not specify its harms if the Court were to grant the stay.

As the Court had not previously ruled that it would use the good cause test announced in Mehta,the CourtORDERS TOGO to supplement its Response, to...