Tribes v. Stitt

• Docket Number: Case No. CIV-19-1198-D
• Decision Date: 24 February 2023
• Citation: 658 F.Supp.3d 1043
• Parties: WICHITA AND AFFILIATED TRIBES, Plaintiff, v. J. Kevin STITT, in his official capacity as the Governor of the State of Oklahoma, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

658 F.Supp.3d 1043

WICHITA AND AFFILIATED TRIBES, Plaintiff, v. J. Kevin STITT, in his official capacity asthe Governor of the State of Oklahoma, Defendant.

Case No. CIV-19-1198-D

United States District Court, W.D. Oklahoma

Signed February 24, 2023

Keron Kirke Kickingbird, William G. Guedel, William R. Norman, Jr., Zachary Thomas Stuart, Michael D. McMahan, Hobbs Straus Dean & Walker, Oklahoma City, OK, for Plaintiff.

Bryan G. Cleveland, Oklahoma State Department of Education, Oklahoma City, OK, Kyle Peppler, Mithun S. Mansinghani, Zachary P. West, Oklahoma Office of the Attorney General, Oklahoma City, OK, Garry M. Gaskins, II, Drummond Law PLLC, Tulsa, OK, for Defendant.

ORDER

TIMOTHY D. DeGIUSTI, Chief United States District Judge

The remaining parties in this case following the entry of a final judgment under Fed. R. Civ. P. 54(b) are Plaintiff-Intervenor Wichita and Affiliated Tribes (the "Tribe") and Defendant J. Kevin Stitt, in his official capacity as Governor of the State of Oklahoma (the "State").¹ See Final J. [Doc. No. 157]. The amended caption on this Order reflects the current controversy and shall be used in all future filings in the case.

The only remaining claims in this case under the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-21, are two claims asserted by the Tribe in its Amended Complaint in Intervention [Doc. No. 103] and a counterclaim asserted by the State in its Answer and Counterclaims [Doc. No. 109]. See Final J. [Doc. No. 157] at 2. All claims concern the State-Tribal Gaming Compact in effect between the parties (the "Compact"), which utilizes the Model Tribal Gaming Compact provided by Okla. Stat. tit. 3A, § 281. In Count XIII of the Amended Complaint, the Tribe seeks declaratory relief regarding the proper interpretation of an exclusivity provision of the Compact.² Specifically, the Tribe claims the State "has violated the exclusivity provision contained in subparagraph A of Part 11 of the Compact ('Part 11.A') by permitting the operation of additional forms of gaming and changing its laws to permit additional electronic gaming" and, as a result of this violation, the Tribe allegedly "is entitled to damages from the State pursuant to Part 11.E of the Compact." See Am. Compl. ¶¶ 203, 205 and pp.56-57 (Prayer for Relief). In Count XIV, the Tribe claims Governor Stitt engaged in conduct that "breached both the State's obligation [under Part 13.B] to defend the Compacts [sic] and violated his constitutional duty to faithfully execute the State's laws." Id. ¶¶ 209-10 (citing Okla. Const. art. VI, § 8). The State counterclaims that the Tribe breached the Compact "by failing to remit all substantial exclusivity fees owed to the State pursuant to Part 11.A." See Countercl. ¶¶ 54, 70.

Following a period of discovery and unsuccessful settlement discussions, the following motions are before the Court for decision pursuant to Fed. R. Civ. P. 56: Defendant's Motion for Summary Judgment [Doc. No. 182]; and the Tribe's Motion for Summary Judgment [Doc. No. 183]. Each movant seeks a determination in its favor of a dispositive issue raised by Count XIII, namely, whether the State has breached the exclusivity provision in Part 11.A of the Compact by amending or enacting certain laws. The State also requests a dismissal of Count XIV. Neither party addresses the State's counterclaim. The Motions are fully briefed. See 10/1/21 Order [Doc. No. 122].³

Standard of Decision

Summary judgment is proper "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." Fed. R. Civ. P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for either party." Id. at 255, 106 S.Ct. 2505. All facts and reasonable inferences must be viewed in the light most favorable to the nonmoving party. Id. "Cross-motions for summary judgment are treated as two individual motions for summary judgment and held to the same standard, with each motion viewed in the light most favorable to its nonmoving party." Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).

A movant bears the initial burden of demonstrating the absence of a dispute of material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant carries this burden, the nonmovant must then go beyond the pleadings and "set forth specific facts" that would be admissible in evidence and that show a genuine dispute. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Fed. R. Civ. P. 56(c)(1)-(2), (e). "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998); see Fed. R. Civ. P. 56(c)(1)(A). "The court need consider only the cited materials, but may consider other materials in the record." Fed. R. Civ. P. 56(c)(3); see Adler, 144 F.3d at 672.

The inquiry is whether there is a need for a trial - "whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 251, 106 S.Ct. 2505. "The interpretation of an unambiguous contract is a question of law to be determined by the court, and may be decided on summary judgment." Pub. Serv. Co. v. Burlington N. R.R. Co., 53 F.3d 1090, 1096 (10th Cir. 1995) (citations omitted).

Statement of Undisputed Facts

The case concerns "Class III gaming" under the Indian Gaming Regulatory Act ("IGRA"). See 25 U.S.C. § 2703(8). This is a broad, catch-all category that may include slot machines, casino games, banking card games, parimutuel wagering on racing, and lotteries. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). IGRA imposes conditions to conduct Class III gaming, including that the activities must be "located in a State that permits such gaming for any purpose by any person, organization, or entity" and must be "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under [§ 2710(d)(3)], that is in effect." Id. § 2710(d)(1)(B) and (C).

The parties have stipulated to several material facts. See Joint Status Rep. [Doc. No. 162] at 4. The Tribe, which consists of affiliated Native American tribes, is a federally recognized Indian tribe. The Tribe and the State are parties to the Compact, which is a tribal-state gaming compact formed under IGRA and the State-Tribal Gaming Act ("STGA"), Okla. Stat. tit. 3A, §§ 261-82. The Compact took effect in September 2006.⁴ The Court has determined that the Compact remains in effect. See 7/28/20 Order [Doc. No. 149]. Part 11.A of the Compact provides in pertinent part as follows:

The parties acknowledge and recognize that this Compact provides tribes with substantial exclusivity and, consistent with the goals of IGRA, special opportunities for tribal economic opportunity through gaming within the external boundaries of Oklahoma in respect to the covered games. In consideration thereof, so long as the state does not change its laws after the effective date of this Compact to permit the operation of any additional form of gaming by any such organization licensee, or change its laws to permit any additional electronic or machine gaming within Oklahoma, the tribe agrees to pay the following fees:

1. The tribe covenants and agrees to pay to the state a fee derived from covered game revenues calculated as set forth in paragraph 2 of this subsection . . . .

Model Tribal Gaming Compact Between the Wichita & Affiliated Tribes and the State of Oklahoma (hereafter, the "Compact") [Doc. No. 103-1] at 23 (ECF page numbering) (emphasis added).⁵ Part 11.E provides:

[T]he state agrees that it will not, during the term of this Compact, permit the nontribal operation of any machines or devices to play covered games or electronic or mechanical gaming devices otherwise presently prohibited by law within the state in excess of the number and outside of the designated locations authorized by the State-Tribal Gaming Act. The state recognizes the importance of this provision to the tribe and agrees, in the event of a breach of this provision by the state, to require any nontribal entity which operates any such devices or machines in excess of such number or outside of the designated location to remit to the state at least quarterly no less than fifty percent (50%) of any increase in the entities' adjusted gross revenues following the addition of such excess machines. The state further agrees to remit at least quarterly to eligible tribes, as liquidated damages, a sum equal to fifty percent (50%) of any increase in the entities' adjusted gross revenues following the addition of such excess machines. For purposes of this Part, "eligible tribes" means those tribes which have entered into this Compact and are operating gaming pursuant to this Compact within forty-five (45) miles of an entity which is operating covered game machines in excess of the number authorized by, or outside of the location designated by, the State-Tribal Gaming Act . . . .

Id. at 24.

Oklahoma enacted STGA in 2004 when voters approved a legislative referendum known as State Question 712 in a statewide general election. In addition to offering a model tribal gaming compact, STGA provided for "organization licensees" - that is, horse racetracks - to conduct authorized gaming under licenses issued by the Oklahoma Horse Racing Commission ("OHRC"). See Okla. Stat. tit. 3A, § 262; see id. §§ 205.1, 205.2. STGA "is 'game-specific' and allows for...