Wisconsin v. Stockbridge-Munsee Community, 98-C-0871.

Citation67 F.Supp.2d 990
Decision Date30 September 1999
Docket NumberNo. 98-C-0871.,98-C-0871.
CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
PartiesState of WISCONSIN, Plaintiff, v. STOCKBRIDGE-MUNSEE COMMUNITY, and Robert Chicks, Defendants.

John S. Greene, Assistant Attorney General, Wisconsin Department of Justice, Office of Attorney General, Madison, WI, for Plaintiff.

Brian L. Pierson, Attorney at Law, von Briesen Purtell & Roper, John W. Hein, Attorney at Law, von Briesen Purtell & Roper, Milwaukee, Paul W. Stenzel, Attorney at Law, Stockbridge-Munsee Community Legal Office, Bowler, WI, for Defendants.

MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

GORENCE, United States Magistrate Judge.

The plaintiff, State of Wisconsin, filed this action on September 3, 1998, against the defendants, alleging that defendant Stockbridge-Munsee Community (the Tribe) is operating Class III electronic games of chance at the Pine Hills Golf and Supper Club (Pine Hills) which are specifically prohibited by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq. The complaint further alleges that the State of Wisconsin and the Stockbridge-Munsee Community entered into the Stockbridge-Munsee Community and State of Wisconsin Gaming Compact of 1992 (compact) for the conduct of Class III gaming as required by 25 U.S.C. § 2710(d)(1)(C) and that by its terms, the compact limits the operation of such games of chance to locations "on tribally owned land or land held in trust by the United States on behalf of the tribe, but only on such lands within the exterior boundaries of the tribal reservation." (Complaint ¶ 13) (quoting Compact, Section XV, Part H [emphasis added]).

The plaintiff also alleges that the Tribe obtained the Pine Hills property and in December 1995, conveyed it to the United States of America to be held in trust for the benefit of the Tribe pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 465. Id. ¶¶ 16-17. The complaint further alleges that operation of Class III electronic games of chance at the Pine Hills location is not permitted by the express terms of the compact because the land is located outside the boundaries of the Tribe's reservation and because Pine Hills does not meet the requirements of 25 U.S.C. § 2719(b)(1)(A). Id. ¶¶ 19, 20-21.

As relief, the plaintiff seeks a preliminary and permanent injunction prohibiting the defendants from conducting Class III electronic games of chance at the Pine Hills location. The plaintiff also seeks a declaratory judgment identifying the current boundaries of the Stockbridge-Munsee Reservation and declaring that the Pine Hills Golf Course and Supper Club is not located within those boundaries.

The court has jurisdiction over this action pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii) and 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue in this judicial district is proper under 28 U.S.C. § 1391(b). This case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 13.03 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Local Rule 13.05(a) (E.D.Wis.).

Presently pending is the plaintiff's motion for a preliminary injunction prohibiting the defendants from conducting Class III electronic games of chance at Pine Hills pending final disposition of this action. The court held a hearing on plaintiff's motion on October 27 through 28 and 30, 1998.

At the hearing, the following individuals testified on behalf of the plaintiff: James A. Clifton, Ph.D., Scholar-in-Residence, Department of Anthropology, Western Michigan University, Kalamazoo, Michigan, who testified as an expert witness; Chief Deputy Milton Marquardt of the Shawano County Sheriff's Department Jeffrey Kuglitsch, Corporation Counsel for Shawano County; and Fred Kafura, a resident of Gresham, Wisconsin. The court also heard testimony from the defendants' witnesses: James W. Oberly, Ph.D., Professor of History, University of Wisconsin at Eau Claire, who testified as an expert witness; Robert Chicks, President of the Stockbridge-Munsee Community Band of Mohican Indians; and Sheila Powless, Land and Enrollment Manager of the Stockbridge-Munsee Community Band of Mohican Indians.

Following the hearing, the parties submitted post hearing briefs and proposed findings of fact and conclusions of law. Subsequently, the parties were granted leave to supplement the record.

Based on the testimony and evidence adduced at the preliminary injunction hearing and the submissions of the parties and upon due consideration of the applicable law, this court will now address the plaintiff's motion for preliminary injunction.

Preliminary Injunction Standard

At the outset, the court notes that the parties disagree as to the proper standard for determining whether the plaintiff's motion for a preliminary injunction should be granted. The state maintains that it is not required to show irreparable harm and that the "statutory injunction" test should be utilized, while the Tribe contends that the traditional preliminary injunction test is appropriate.

Under traditional principles of equity, a party is entitled to a preliminary injunction if it demonstrates that 1) it has a reasonable likelihood of prevailing on the merits, 2) it has no adequate remedy at law, 3) it will suffer irreparable harm if the preliminary injunction is not issued, 4) the irreparable harm it will suffer if the preliminary injunction is not granted outweighs the irreparable harm the defendants will suffer if the injunction is granted, and 5) the injunction will not harm the public interest. See Roth, M.D. v. Lutheran General Hosp., 57 F.3d 1446, 1453 (7th Cir.1995); Storck UNITED STATES OF AMERICA, L.P. v. Farley Candy Co., 14 F.3d 311, 313-14 (7th Cir.1994); Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014-15 (7th Cir.1990).

If the plaintiff meets its burden of showing some likelihood of success on the merits and a lack of an adequate remedy at law and that it will suffer "irreparable harm" if preliminary relief is denied, then the district court engages a "sliding scale" analysis by balancing the harms to the parties and the public interest. Roth, 57 F.3d at 1453; Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir.1992) (citations omitted); Ping v. National Educ. Ass'n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original). If the moving party cannot establish either of these prerequisites, a court's inquiry ends and the injunction must be denied. Abbott Labs., 971 F.2d at 11. This sliding scale approach is properly characterized as "subjective and intuitive, one which permits district courts to `weigh the competing considerations and mold appropriate relief.'" Id. at 12. A district court has broad discretion in deciding whether to grant a motion for injunctive relief. Advent Elecs., Inc. v. Buckman, 112 F.3d 267, 274 (7th Cir.1997).

"The purpose of a preliminary injunction is to minimize the hardship to the parties pending the ultimate resolution of the lawsuit." Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir.1988). "The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor in order to get the injunction; the less likely he is to win, the more it need weigh in his favor." Ping, 870 F.2d at 1371-72 (citation omitted).

The plaintiff asserts that it is not required to show irreparable harm in this case because injunctive relief is being sought pursuant to a statutory provision. In such actions "where the plaintiff seeks an injunction to prevent the violation of a federal statute that specifically provides for injunctive relief, it need not show irreparable harm." Illinois Bell Tel. Co. v. Illinois Commerce Comm'n, 740 F.2d 566, 571 (7th Cir.1984). Because Congress has seen fit to act in a given area by enacting a statute, irreparable injury must be presumed in a statutory enforcement action. United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 176 (9th Cir.1987).

Thus, in actions for statutory injunctions, once a violation of the act or regulation is shown, the moving party need show only that there is some reasonable likelihood of future violations. Commodity Futures Trading Comm'n v. Hunt, 591 F.2d 1211, 1220 (7th Cir.1979). In Commodity Futures, the court noted that "when Congress has integrated traditional modes of equitable relief into a statutory enforcement scheme, the court's equitable power should be exercised in harmony with the overall objectives of the legislation." Id. at 1219 (citing SEC v. Advance Growth Capital Corp., 470 F.2d 40, 53 [7th Cir.1972]).

Here, the plaintiff is bringing this action pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii) which provides in relevant part:

The United States district courts shall have jurisdiction over — (ii) any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact ... that is in effect.

The plaintiff maintains this language is an express authorization of injunctive relief and, thus, the "statutory injunction" test should be applied in this case.

In Illinois Bell, cited by the plaintiff to support its position, the plaintiff sought a preliminary injunction pursuant to 47 U.S.C. § 401(b) to compel the Illinois Commerce Commission to comply with an order of the Federal Communications Commission (FCC) and to place into effect a rate increase for intrastate service. 740 F.2d at 571. Section 401 contains the enforcement provisions for the Federal Communications Act, 47 U.S.C. § 151 et seq., which is a comprehensive scheme for regulation of interstate communications. See Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957). Section 401(b) sets forth procedures for enforcement of orders of the FCC and provides that if a person...

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