U.S. v. Seminole Nation of Oklahoma, 01-7108.

• Citation: 321 F.3d 939
• Decision Date: 31 December 2002
• Docket Number: No. 01-7108.,01-7108.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. SEMINOLE NATION OF OKLAHOMA, a Federally Recognized Indian Tribe, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

321 F.3d 939

UNITED STATES of America, Plaintiff-Appellant, v. SEMINOLE NATION OF OKLAHOMA, a Federally Recognized Indian Tribe, Defendant-Appellee.

No. 01-7108.

United States Court of Appeals, Tenth Circuit.

December 31, 2002.

M. Alice Thurston, Department of Justice, Washington, DC, (David C. Shilton, Department of Justice, Washington, DC; Thomas L. Sansonetti, Assistant Attorney General, Washington, DC; Sheldon J. Sperling, United States Attorney, Muskogee OK; Linda A. Epperley, Assistant United States Attorney, Muskogee, OK; Kevin K. Washburn, William F. Grant, and Sandra J. Ashton, Washington, DC, with her on the briefs), for Plaintiff-Appellant.

Gary S. Pitchlynn, (Patrick A. Morse, with him on the brief), Pitchlynn & Morse, P.A., Norman, OK, for Defendant-Appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff, the United States of America, filed this action in federal district court to enforce temporary closure orders issued to Defendant, Seminole Nation of Oklahoma (the "Nation"), by the Chairman of the National Indian Gaming Commission ("NIGC"). Although the government moved for preliminary injunction, the district court notified the parties by order that the hearing on the government's motion would be combined with a trial on the merits of the government's suit. The district court dismissed the government's suit reasoning that the NIGC Chairman exceeded his authority in ordering the closure of the Nation's gaming facilities rather than just the particular games at issue. The government appeals the district court's dismissal of the suit.¹ This court has jurisdiction under 28 U.S.C. § 1291 and vacates the district court order for the reasons stated below. Further, the Nation's motion to dismiss this appeal for mootness is denied.

II. BACKGROUND

In 1988, Congress enacted the Indian Gaming Regulatory Act ("IGRA") which provided a comprehensive system to regulate gambling activities on Indian lands. See 25 U.S.C. §§ 2701-2721. Under IGRA, Indian gaming is divided 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). 25 U.S.C. § 2703(6)-(8). Class I games are not subject to regulation under IGRA. Id. at § 2710(a). Class II games are permitted under IGRA if the game is conducted in a state that permits Class II gaming for any purpose by any entity and if the NIGC has approved a gaming ordinance adopted by the tribe. Id. at § 2710(b). Class III games are permitted under IGRA if, in addition to meeting the requirements imposed on Class II games, they are "conducted in conformance with a Tribal-State compact." Id. at § 2710(d).

The NIGC is charged with the development of regulations and administrative enforcement of IGRA. Id. §§ 2705, 2706. In accordance with the discharge of this duty, the NIGC Chairman is authorized to order the temporary closure of gaming activities and impose civil fines if he determines that any person or tribe is conducting gaming in substantial violation of IGRA. Id. §§ 2705(a), 2713(b)(1). Under the NIGC's regulations, a temporary closure order may extend to "all or part of an Indian gaming operation" and is "effective upon service." 25 C.F.R. §§ 573.6(a), 573.6(b).

The Nation operates gaming activities at four gaming facilities in Seminole County Oklahoma. In an effort to increase revenues from these facilities, the Nation added "coin-operated amusement games," which it characterizes as games of skill. The Nation offered for play one particular coin-operated amusement game known as "Red Hot Re-Spin."

On May 30, 2000, the NIGC Chairman concluded that the Red Hot Re-Spin machines were impermissible Class III gaming devices and issued a temporary closure order ("May Order") directing the Nation to cease operating these machines. The Nation filed an appeal of the May Order with the NIGC.

After receiving the May Order, the Nation offered for play several new coin-operated amusement machines, in addition to Red Hot Re-Spin, under the following names: "Buffalo Nickels," "Rainbow Reels," "Fantasy Fives," "Pot O Gold," and "Lucky Cherries." On September 12, 2000, the NIGC Chairman determined that these new games were also Class III games. Accordingly, the NIGC Chairman issued a second temporary closure order ("September Order") ordering the Nation to cease all gaming activities in all of its gaming facilities.

On January 19, 2001, the government filed a complaint in federal district court for enforcement of the May and September closure orders.² The government moved for a preliminary injunction. The district court notified the parties by order that the hearing on the government's motion would be combined with a trial on the merits of the government's suit. On February 27, 2001, the district court denied the motion and dismissed the suit reasoning that the NIGC Chairman exceeded his authority in ordering the closure of all the Nation's gaming facilities. The government appeals the district court's dismissal of the suit.

On February 4-6, 2002, a hearing was held before a Presiding Official ("PO") appointed by the United States Department of the Interior's Office of Hearings and Appeals on the Nation's appeals from the May and September Orders. On April 8, 2002, the PO issued a Recommended Decision in which he concluded that the NIGC met its burden of proof with regard to the May Order but failed to meet its burden of proof with regard to the September Order. The PO recommended that the May Order be sustained and the September Order be vacated.

The NIGC reviewed the PO's recommendations. In a written Notice of Decision and Order entered on May 7, 2002, the NIGC adopted the PO's recommendation as to the May Order but rejected the PO's recommendation as to the September Order. The NIGC directed that both the May and September Orders become permanent.

On August 16, 2002, the Nation filed suit in federal district court seeking review of the NIGC's permanent closure order. This case is still pending before the district court.

III. DISCUSSION

A. Mootness

The Nation has moved for dismissal under Rule 27 of the Federal Rules of Appellate Procedure, arguing that the government's appeal is moot because the NIGC Chairman's temporary closure orders were superseded by the NIGC's permanent closure order.

Pursuant to Article III of the Constitution, federal courts may adjudicate only actual controversies. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); Fischbach v. N.M. Activities Ass'n., 38 F.3d 1159, 1160 (10th Cir.1994). The controversy must exist during all stages of the appellate review. Fischbach, 38 F.3d at 1160. Once such controversy ceases to exist, the action is moot and this court lacks jurisdiction to adjudicate the matter. Id. An exception to the mootness doctrine, however, arises when the case is "capable of repetition, yet evading review." Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (quotation omitted); Fischbach, 38 F.3d at 1161. This exception applies when: (1) the duration of the challenged action is "too short to be fully litigated prior to its cessation or expiration," and (2) there is "a reasonable expectation that the same complaining party ... [will] be subjected to the same action again." Gannett, 443 U.S. at 377, 99 S.Ct. 2898.

The NIGC Chairman's temporary closure orders have been superseded by the issuance of a permanent closure order by the NIGC. Thus, the temporary closure orders are no longer in effect. This case, however, fits the narrow exception to the mootness doctrine for conduct capable of repetition, yet evading review. The NIGC Chairman's temporary closure orders are too short in duration to be fully litigated in court prior to their administrative expiration or replacement by permanent orders. Temporary closure orders, by their very nature, are short in duration. IGRA requires the NIGC to quickly review temporary closure orders and either dissolve them or issue permanent closure orders. 25 U.S.C. § 2713(b)(2) (providing an Indian tribe with the right to a hearing before the Commission to review a temporary closure order within thirty days of its issuance and requiring the Commission to decide whether to dissolve the order or issue a permanent closure order within sixty days of the hearing). The Nation argues, however, the NIGC Chairman's temporary orders are not so short in duration as to require this court to exercise jurisdiction over this appeal. Rather, the Nation argues, the government's failure to seek an expedited appeal and its multiple requests for additional time to file appellate briefs delayed appellate review until after the issuance of the permanent order. The course of proceedings in this appeal, however, are irrelevant. The NIGC's statutory obligation to quickly conduct a hearing within thirty days of the issuance of a temporary order and decide whether to dissolve or make permanent the order within sixty days of the hearing, creates a paradigm in which a temporary order will not remain in effect throughout the appellate process. Accordingly, the NIGC Chairman's temporary closure orders are of a sufficiently limited duration to ordinarily escape appellate review.

The Nation also argues that the issues in this appeal are not of a limited duration because they will be litigated in the case involving the permanent closure order. The issue in this appeal is whether the NIGC Chairman's statutory authority to issue temporary closure orders extends to the closure of a tribe's entire gaming operation. The NIGC Chairman's statutory authority, however, is not at issue in an appeal from permanent closure orders because...