ANTHONY W. ISHII, Senior District Judge.
Plaintiff North Fork Rancheria of Mono Indians of California ("North Fork" or "the Tribe") has brought suit against the State of California ("State" or "California") based on an alleged failure of the State to negotiate in good faith for the purpose of entering into a Tribal-State compact governing the conduct of class III gaming activities as required by the Indian Gaming Regulatory Act ("IGRA"). See 25 U.S.C. § 2710(d)(3)(A). The parties have filed competing motions for judgment on the pleadings. This matter is ripe for adjudication.
The facts in this matter are not in dispute and are largely matters of public record. As will be more fully detailed, this case revolves around a Tribal-State compact which was approved by the Governor and ratified by the legislature before the issue was certified for referendum vote in the November 2014 election. The people of the State of California voted "No" — overturning the legislative ratification of the Tribal-State compact.
In response in part to the Supreme Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), where the Supreme Court rejected an attempt by the State of California to enforce its penal code section prohibiting operation of bingo halls against an Indian tribe, Congress enacted IGRA. 25 U.S.C. §§ 2701, 2702; See Artichoke Joe's California Grand Casino v. Norton, 353 F.3d 712, 714-715 (9th Cir. 2003). IGRA was designed "to provide a statutory basis for the operation and regulation of gaming by Indian tribes." Idaho v. Coeur D'Alene Tribe, ___ F.3d ____, 2015 WL 4461055 (9th Cir. July 22, 2015) (citation omitted). IGRA created three classes of gaming, each subject to a different regulatory scheme. Artichoke Joe's, 353 F.3d at 715. Class I gaming consists of "social games solely for prizes of minimal value or traditional forms of Indian gaming . . . in connection with tribal ceremonies or celebrations. 25 U.S.C. § 2703(6). Class II gaming consists of bingo, and card games that are explicitly authorized or not explicitly prohibited by the State. 25 U.S.C. § 2703(7)(A).
On March 7, 2000, California voters approved Amendment 1A to the California Constitution, permitting federally recognized Indian tribes to operate certain specified betting games on Indian lands if authorized by the Governor in a Tribal-State compact that is then ratified by the legislature. 2000 Cal. Legis. Serv. Prop. 1A — Gambling on Tribal Lands (Ca. 2000); amending Cal. Const. Art. IV, § 19(f).
North Fork is a federally recognized Indian tribe, listed in the Federal Register.
After reviewing the results of the EIS, the submissions of state and local officials and surrounding Indian tribes,
On February 5, 2013, the federal government took the Madera parcel into trust for North Fork pursuant to the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465, in anticipation of North Fork's construction of a class III gaming facility as contemplated by IGRA. Compl. at ¶¶ 2, 43.
In July of 2004, soon after the Tribe started down the road to acquiring the Madera parcel, it entered into discussions with representatives of the then-Governor, Arnold Schwarzenegger, regarding framing of a Tribal-State compact. Compl. at ¶ 44. Those discussions bore fruit in April of 2008 when Governor Schwarzenegger and the Tribe executed a gaming compact ("2008 Compact"). However, because the acquisition of the Madera parcel was stalled due to the lengthy EIS process, the 2008 Tribal-State compact was never presented to the legislature.
A second draft of the Tribal-State compact prepared by the Governor's office and the North Fork Tribe was presented to Governor Brown.
On May 2, 2013, the California Assembly passed AB 277; on June 27, 2013, the California Senate passed AB 277; and on July 3, 2013 the Governor approved AB 277 and it was filed with the Secretary of State. See Cal.Govt.Code. § 12012.59. At some time shortly thereafter,
On July 19, 2013, a ballot summary and title were issued by the Attorney General of California's office for what would be commonly known as California Proposition 48 — Referendum on Indian Gaming Compacts (2014).
On November 4, 2014, California voters rejected Indian Gaming Compacts Referendum, labeled Proposition 48, to ratify the North Fork and Wiyot Tribe compacts.
After the 2014 referendum, the State refused to enter into negotiations with North Fork regarding a new Tribal-State compact, concluding that any attempt at negotiation a compact regarding the Madera parcel would be futile. Compl. at ¶ 60, Exh. G. On that basis, North Fork brings the instant action, contending that the State's failure to negotiate triggers the remedial provisions of IGRA.
Section 2710(d)(3)(A) of Title 25 of the United States Code provides:
The good faith negotiation section of IGRA is not without teeth. Sections 2710(d)(7)(B)(i)-(vii) provide a detailed remedial scheme designed to prevent a State from seeking to wrongfully inhibit an Indian tribe from engaging in Class III gaming activity. Under that procedure, 180 days after an Indian tribe requests the opening of negotiations with the state, that Indian tribe may bring suit to (1) compel a state to enter into negotiations with the tribe for the purpose of entering into a compact, or (2) to compel a state to negotiate in good faith. 25 U.S.C. § 2710(d)(7)(B)(i); 25 U.S.C. § 2710(d)(7)(A)(i).
Based on the submissions of the Indian tribe and the State, the court must determine whether the State failed to negotiate in good faith. In making that determination the court may consider "public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities"; the court "shall consider any demand for taxation" by the State as evidence that negotiation was not conducted in good faith. 25 U.S.C. § 2710(d)(7)(B)(iii). If the court finds an absence of good faith, it "shall order the state and Indian Tribe to conclude . . . a compact within a 60-day period." Id.
If, after 60 days, no compact has been entered, the parties will submit to mediation wherein each party will submit a proposed compact to the mediator and the mediator will select the compact most in line with federal law and the findings of the court. 25 U.S.C. § 2710(d)(7)(B)(iv). Thereafter the State has 60 days to consent to the compact selected. 25 U.S.C. § 2710(d)(7)(B)(vi)-(vii). If the State fails or refuses to do so, the mediator will forward the selected compact to the Secretary of the Interior who prescribes, in consultation with the Indian tribe, procedures under which Class III gaming may be conducted. 25 U.S.C. § 2710(d)(7)(B)(vii).
Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial." "A motion for judgment on the pleadings should be granted where it appears the moving party is entitled to judgment as a matter of law." Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir.2003). "Analysis under Rule 12(c) is `substantially identical' to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." Pit River Tribe v. Bureau of Land Management, 793 F.3d 1147, 1155 (9th Cir. 2015) (quoting Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.2012)). Judgment on the pleadings is appropriately granted in favor of a defendant when, even if all of the allegations in the pleadings are true, the defendant is entitled to judgment as a matter of law. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). Similarly, judgment on the pleadings is appropriately granted in favor of a plaintiff when, assuming the truth of the pleadings, the plaintiff is entitled to judgment as a matter of law. If there is a material dispute in the parties' pleadings, a motion for judgment on the pleadings cannot be granted.
The Court will address its jurisdiction and the State's waiver of sovereign immunity, then the two IGRA violations alleged by North Fork. In the first of the alleged IGRA violations, North Fork contends that the State failed to negotiate in good faith toward and enforceable compact — within the meaning of 25 U.S.C. § 2710(d)(7) — when it "refus[ed] to honor the 2012 Compact based on the . . . referendum" vote. Compl. at ¶ 72. Second, it alleges that the State had a duty to continue negotiation after the referendum yet refused to enter into negotiations. Id. at ¶¶ 75-79. The Court need only decide the second alleged IGRA violation.
The State has raised Eleventh Amendment immunity as a defense in this action. It alleges that the Court's jurisdiction over this action is restricted to the State's negotiation with the tribe — a role delegated under California law exclusively to the Governor. Because this defense would, if successful, divest this Court of jurisdiction over a portion of this action, the Court addresses this argument before the merits of the Tribe's case.
In Seminole, 517 U.S. 44, the Supreme Court held that in authorizing Indian tribes to sue the state pursuant to IGRA, Congress impermissibly sought to abrogate Eleventh Amendment immunity. In order to avoid offending the Eleventh Amendment, a State must explicitly consent to suit. Id. California has consented to suit for IGRA actions in limited circumstances. Specifically, California Government Code section 98005 provides that "the State of California. . . submits to the jurisdiction of the courts of the United States in any action brought against the state by any federally recognized California Indian tribe asserting any cause of action arising from the state's refusal to enter into negotiations with that tribe for the purpose of entering into a. . . Tribal-State compact pursuant to IGRA or to conduct those negotiations in good faith. . . ."
The State draws the Court's attention to the fact that under the California Constitution only the Governor has the authority to negotiate compacts with an Indian tribe. Doc. 21-1 at 21 (citing Cal Const. art IV, §19(f) ("[T]he Governor is authorized to negotiate and conclude compacts [with Indian tribes], subject to ratification by the Legislature."). See Cal Gov't Code § 12012.25(d) ("The Governor is the designated state officer responsible for negotiating and executing, on behalf of the state, tribal-state gaming compacts . . . pursuant to [IGRA].") It contends that the jurisdictional grant of section 98005 applies only to suits based on the Governor's conduct because, under California law, the Governor is the only person authorized to negotiate on behalf of the State. The State therefore contends that because North Fork alleges that the state as a whole — rather than the Governor — has failed to negotiate, the Court lacks jurisdiction over the portion of this action that relating to conduct by actors other than the Governor. The Court disagrees.
In 1998, in an effort to resolve conflicts between the State of California and Indian tribe relative to class III gaming, an initiative measure proposing section 98005 — Proposition 5 — was presented to California voters as part of the Tribal Government Gaming and Economic Self-Sufficiency Act of 1998. See Hotel Employees and Restaurant Employees International Union v. Davis, 21 Cal.4th 585, 597-598 (1999) ("Hotel Employees"); but see Artichoke Joe's, 353 F.3d at 717 ("A coalition of California tribes drafted Proposition 5.") The people of the State of California approved Proposition 5 on the November 1998 ballot.
Moreover, the two provisions that the State relies upon are inconsistent with the then-existing law; the Governor's role as the exclusive negotiator (i.e. the only entity negotiating on behalf of the State) and acting exclusively as the negotiator (i.e. not possessing the power to enact or ratify a compact) was not in place when consent to suit was given. Section 98002 was enacted as part of the now-largely-invalidated Tribal Government Gaming and Economic Self-Sufficiency Act of 1998. It required the Governor to enter into any negotiations required by IGRA and authorized the Governor "to reach agreement and execute that compact on behalf of the state[;] [exercise of that] authority [did] not require action by the Legislature . . ." except in limited circumstances.
Further, as North Fork correctly notes, as enacted, section 98005 separately uses the terms "State of California" and "Governor."
In sum, this Court finds that the State has consented to federal jurisdiction regarding the State's failure to negotiate or negotiate in good faith with an Indian tribe; the consent to jurisdiction is not limited to an action against the State of California based on conduct by the Governor. See also Big Lagoon Rancheria v. California, 789 F.3d 947, 950 n.1 (9th Cir. 2015) (en banc) (citing Rincon, 602 F.3d at 1026 (9th Cir. 2010)) (The State of California "has waived its immunity to suit" where it is sued for failure to negotiate in good faith concerning class III gaming rights.); Fort Independence Indian Community v. California, 679 F.Supp.2d 1159 (E.D. Cal. 2009) (recognizing jurisdiction over an action pursuant to IGRA against "the State of California and associated officials"). In fact, the language and legislative history of IGRA make clear that the State itself — rather than any of its agents — is the proper party. See 25 U.S.C. § 2710(d)(7)(A)(i) (District Courts have jurisdiction over "any cause of action initiated by an Indian tribe arising from the failure of a State to" negotiate in good faith regarding class III gaming rights); S. Rep. 100-446, *14 (1988) (noting that IGRA "grants a tribe the right to sue a state if compact negotiations are not concluded"); Seminole, 517 U.S. at 75 (holding that IGRA requires that any action brought by the Tribe for a failure to engage in good faith negotiation be brought against the state itself rather than against a state officer under Ex parte Young); see also Pueblo of Sandia v. Babbit, 47 F.Supp.2d 49, 52 (D.D.C. 1999) (holding that the state is an indispensible party in an IGRA action). Although the State's liability is based on the conduct of its agents, it is the State that is the proper defendant when a tribe alleges a failure to negotiate in good faith. See Seminole, 517 U.S. at 75; Big Lagoon Rancheria, 789 F.3d at 947 (engaging in a discussion of the Governor's conduct in negotiating where the action named only the State of California as a defendant).
North Fork alleges that the State violated IGRA in failing to negotiate with the Tribe after the 2014 referendum. Compl. at ¶¶ 75, 78. The Tribe argues, assuming that the referendum vote and the State's refusal to recognize the 2012 Compact were in full compliance with the good faith requirements, the Governor's refusal to negotiate with the tribe after the referendum vote violates the good faith negotiation requirement of IGRA. The State notes that its refusal to enter into negotiations regarding a new tribal-state compact was limited to the Madera parcel. It contends that in light of the "fact that the people had recently `voted overwhelmingly to reject Proposition 48' . . . for the Madera [p]arcel," the State did not act in bad faith in refusing to negotiate regarding that land. Doc 21-1 at 20.
In order to prevail on this claim, the Tribe must (1) "introduce evidence that `a Tribal-State compact has not been entered into . . .,' and [(2)] `the State [(a)] did not respond to the request to negotiate . . . or [(b)] did not respond . . . in good faith.'" Pauma Band of Luiseno Mission Indians v. California, ___ F.3d ____, 2015 WL 6445610, *12 (9th Cir. Oct 26, 2015) (quoting 25 U.S.C. § 2710(d)(7)(B)(I-II)) (emphasis removed). As to the first question, it is undisputed that the State and the Tribe have not entered into an enforceable compact.
The State concedes that it refused to negotiate with the Tribe regarding construction of a class III facility on the Madera parcel after the 2014 referendum. North Fork characterizes the refusal to negotiation over the Madera parcel as an independently actionable failure that triggers the remedial provisions of IGRA. Doc. 19-1 at 27; Doc. 22 at 23. The State asserts that its refusal to enter compact negotiations with North Fork was location-specific to the Madera parcel; it did not reject negotiations altogether. Doc. 21-1 at 20. Instead, the State contends that it was willing to negotiate over a different construction site for the proposed gaming facility. Id.
The Court must determine whether the State's responses to North Fork's letters constituted a "failure to enter into negotiations" for purposes of IGRA. 25 U.S.C. § 2710(d)(7)(A)(i). Section 2710(d)(3)(A) provides that an "Indian tribe having jurisdiction over the lands upon which a class III gaming activity is being conduct, or is to be conducted, shall request" that the state engage in negotiations. 25 U.S.C. § 2710(d)(3)(A) (emphasis added). An obligation for a state to negotiate in good faith is triggered when (1) an Indian tribe that (2) possesses Indian land — defined by section 2703(4)(B) to include "any lands title to which is held in trust by the United States for any Indian [t]ribe" — not otherwise ineligible for gaming,
North Fork sent letters on June 27, 2014 (pre-referendum) and January 2, 2015 (post-referendum) to Joginder S. Dhillon, Senior Advisor for Tribal Negotiations, "request[ing] that the State of California . . . enter into negotiations with [North Fork] . . . for the purpose of entering into a . . . compact governing the conduct of class III gaming activities on [the Madera parcel]." Doc. 1-6 at 2; see Doc. 1-7. The State responded to the pre-referendum letter on July 8, 2014, declining to enter into negotiations and indicating that the request for negotiation was premature because the referendum vote regarding the 2012 Compact had not yet occurred. Doc. 1-8 at 2. The State responded to the post-referendum letter on January 16, 2015, again declining to enter into negotiations regarding the Madera parcel because, "[g]iven that the people have spoken, entering into [such] negotiations . . . would be futile." Doc 1-9 at 2.
North Fork is undisputedly an Indian tribe within the meaning of 25 U.S.C. § 2703(5). See Compl. at ¶ 2. It is also undisputed that both the 80-acre reservation in North Fork, California and the Madera parcel are gaming-eligible Indian lands within the meaning of 25 U.S.C. §§ 2703(4) and 2719(b)(1)(A). As to the North Fork request for negotiations, if nothing else, the post-referendum letter sent on January 2, 2015, was a request that the State enter into negotiations regarding the Madera parcel. See Doc. 1-7. The text of § 2710(d)(3)(A) is not explicit as to whether Congress had envisioned that Indian tribes would submit requests to negotiate regarding specific parcels of Indian lands or whether the request was to be made regarding all eligible Indian lands. In Engler, the Sixth Circuit explained that the requirement that the Tribe possess Indian lands is significant, in part, because it "give[s] the State notice of where [the gaming site] will be. . . . In the absence of a location, the State would have no way to assess the environmental, safety, traffic, and other problems that such a casino could pose." Engler, 304 F.3d at 618. Such a reading is consistent with the requirement that an Indian tribe request negotiations regarding "the lands upon which a class III gaming activity . . . is to be conducted." See 25 U.S.C. § 2710(d)(3)(A); see also Big Lagoon Rancheria, 789 F.3d at 951 (noting that "the State . . . negotiate[ed] with Big Lagoon Rancheria directly with respect to" a specific eleven-acre parcel). Otherwise, an Indian tribe possessing at least two tracts of non-contiguous Indian lands that generally requests negotiations over its lands without specifying "the lands upon which . . . [the] gaming activity . . . is to be conducted" would not place the State on notice of the location of the gaming site, as is required. A request for negotiations should specify a particular piece of land for the proposed gaming site. North Fork's request that the State "negotiate with the Tribe, pursuant to 25 U.S.C. § 2710(d)(3)(A), to enter into an enforceable compact regarding class III gaming on the Madera [p]arcel" (Doc. 1-6 at 2; see Doc 1-7 at 2) was a request for negotiations within the meaning of 25 U.S.C. § 2710(d)(3)(A).
The State's post-referendum letter in response to North Fork's requests for negotiations can only be reasonably interpreted as a denial of that request.
Assuming arguendo that the State's response was not a refusal to enter into negotiations but an attempt at negotiation, that attempt was not in good faith within the meaning of IGRA.
In coming to that conclusion the Court limits the inquiry to the question of whether a state negotiates in good faith when it refuses to permit class III gaming on a specific parcel of gaming-eligible Indian land — without reference to any § 2710(d)(3)(C) topic — notwithstanding the fact that the United States Secretary of the Interior had concluded that the Tribe's only other lands are "remote, environmentally sensitive . . ., difficult to access," and generally "far less compatible" with the operation of a gaming facility. See Doc. 1-4 at 49. To answer that question, this Court first looks to the permissible scope of the parties' negotiations. IGRA sets out the provisions that may be contained in a compact governing class III gaming (see 25 U.S.C. § 2710(d)(3)(C)(i-vii)) and what courts may consider in determining whether the a state negotiated in good faith (see 25 U.S.C. § 2710(d)(7)(B)(iii)(I)). A compact may contain provisions relating to:
25 U.S.C. § 2710(d)(3)(C)(i-vii). In determining whether the State has negotiated (regarding the permissible § 2710(d)(3)(C) topics) in good faith, a court "may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities. . . ." 25 U.S.C. § 2710(d)(7)(B)(iii)(I).
In Rincon, the Ninth Circuit Court of Appeal explained that § 2710(d)(3)(C) provides an exhaustive list of provisions that may be contained in a compact, specifically noting that "IGRA limits [the] permissible subjects of negotiation" to those topics. Rincon, 602 F.3d at 1028-1029, n.9; accord In re Indian Gaming Related Cases, 331 F.3d 1094, 1111 (9th Cir. 2003) ("Coyote Valley II"); see Seminole Pueblo of Santa Ana v. Nash, 972 F.Supp.2d 1254, 1265 (D. NM. 2013); Fort Independence Indian Community v. California, 679 F.Supp.2d 1159, 1172 (E.D. Cal. 2009); S. Rep. 100-446 at *14; but see Wisconsin Winnebago Nation v. Thompson, 824 F.Supp. 167, 171 (W.D. Wis. 1993) ("Wisconsin Winnebago I") (IGRA "denotes some, but not all of the considerations that should be addressed in concluding a tribal-state compact.") aff'd on other grounds 22 F.3d 719, 724 (7th Cir. 1994) ("Wisconsin Winnebago II") (assuming that IGRA gives tribes the right to set the location of a gaming facility anywhere on tribal land, but holding that a tribe could not demand negotiation over an additional gaming facility immediately after concluding a different compact with the state). Reading § 2710(d)(3)(C) as exhaustive is consistent with the report by the Senate Select Committee on Indian Affairs which explains that "[s]ection [2710](d)(3)(C) describes the issues that may be the subject of negotiations between the tribe and State in reaching a compact." S. Rep. 100-466 at *14. That reading is also consistent the Congressional intent to limit the framework for compact negotiations between tribes and states to those topics that have a direct relationship to the operation of gaming activities so as to prevent compacts from being used as a subterfuge for imposing state jurisdiction on tribes concerning issues unrelated to gaming. Id.; see Coyote Valley II, 331 F.3d 1094, 1111 (9th Cir. 2003). An attempt to negotiate (or refusal to negotiate based on) topics not enumerated in § 2710(d)(3)(C) violates a state's duty to negotiate in good faith. See Fort Independence, 679 F.Supp.2d at 1172. (An attempt to negotiate topics outside of § 2710(d)(3)(C) is "strong, if not determinative, evidence of bad faith.")
The State relies heavily upon Wisconsin Winnebago I for the proposition that a state may refuse to negotiate over a specific piece of gaming-eligible Tribal land without triggering the remedial provisions of IGRA. Doc. 23 at 12-13. The Court does not find Wisconsin Winnebago I persuasive for three reasons. First, Wisconsin Winnebago I ruling relies upon the determination that the items articulated in § 2710(d)(3)(C) are not an exhaustive list of the negotiation topics under IGRA. Wisconsin Winnebago I, 824 F.Supp. at 171 ("[T]he Act denotes some, but not all considerations that should be addressed in concluding a tribal-state compact.")
Second, the Wisconsin Winnebago I court's determination that the location of a gaming facility falls within the catchall provision — any other subjects that are "directly related to the operation of gaming activities" — is an oversimplification. Wisconsin Winnebago I, 824 F.Supp. at 171 (quoting 25 U.S.C. § 2710(d)(3)(C)(vii)). As a preliminary matter, no part of § 2710(d)(3)(C) explicitly provides that the location of a gaming facility is a permissible subject of negotiation. In fact, most of the items concern licensing, regulation, taxation, and safe operation standards. See 25 U.S.C. § 2710(d)(3)(C). The Ninth Circuit has considered the catchall provision only twice in published opinions,
Location by itself, much like gaming revenue, is not the appropriate topic of negotiation under 2710(d)(3)(C)(vii) because it has no direct relationship to the operation of gaming activities. If, however, (1) the public interest, public safety, criminality, financial integrity, adverse economic impacts on existing gaming activities, combatting negative externalities of gaming, or some other state interest, (2) directly related to operation of gaming activity, were at issue and moving the location of the gaming facility might be a means of remedying that issue, then the location of the gaming facility may appropriately be introduced by the state.
In this instance, the State has flatly refused to negotiate with the tribe regarding the Madera parcel. Again, assuming that the State sought its refusal to be an attempt to negotiate regarding a different gaming site, that attempt would only be permitted as a means to remedy an issue regarding a negotiable topic. The Secretary of the Interior determined and the Governor concurred in the determination that gaming on the [Madera parcel] would: "be in the best interests of the tribe and its members and would not be detrimental to the surrounding community." Doc 1-4 at 5. Specifically, gaming on the Madera parcel would "provide an opportunity for tribal citizens living far away to return to their community . . ., [an impact] consistent with [the] overall policy of self-determination . . .," Id. at 9, "increase visitors to Madera thereby benefitting the local economy as a whole," Id. at 10, "stimulat[e] tribal economic development, promoting tribal self-sufficiency, and providing resources for the development of a strong tribal government," Id., and "sustain . . . efforts of the Tribe and its citizens to revitalize and maintain their unique Mono heritage, language, and traditions. . . ." Id. The Secretary also concluded that proposed gaming site on the Madera parcel is "a distance from residential and other sensitive areas" and will not disrupt those uses. Id. at 27. As to potential impacts on neighboring gaming activities, the Secretary noted a potential economic impact on the Picayune Tribe of Chukchansi Indians due to competition from the Tribe's proposed gaming facility but concluded that competition alone is insufficient to determine that construction of the Tribe's facility would result in a detrimental impact to the Picayune tribe. The State does not now contend that any of the Secretary's determinations were incorrect, nor does it articulate any basis for its refusal to negotiate regarding the Madera parcel.
Similarly, the State does not allege that it refused to negotiate over the Madera parcel because some IGRA objective would be better served by construction of the gaming facility in a different location. As the State is aware, the Tribe's 80-acre Rancheria — the Tribe's only other Indian land eligible for gaming — is "remote, environmentally sensitive . . ., difficult to access," and generally "far less compatible" with the operation of a gaming facility. Doc. 1-4 at 49. The Madera parcel was taken into trust by the United States for the benefit of the Tribe for those very reasons.
The State has presented no legitimate state goal that could be accomplished by demanding a different location for the gaming site. Although not categorically prohibited, in this instance, the State has failed to show that its rejection of the Madera parcel as a gaming site was a permissible means of accomplishing a goal related to a § 2710(d)(3)(C) topic.
Third, Wisconsin Winnebago I is factually differentiable from the case at bar. In Wisconsin Winnebago I, the state of Wisconsin and the tribe had already concluded a compact when the tribe sought to reopen negotiations regarding a new gaming site. Wisconsin Winnebago I, 824 F.Supp. at 169. In the completed compact the state had agreed to three counties where gaming could be conducted but disallowed a fourth county, and specifically at a location known as the De Jope site. Id. Within a month of agreeing to the compact, the Wisconsin Winnebago tribe sought to reopen negotiations regarding the De Jope site. Id.; Wisconsin Winnebago II, 22 F.3d at 722. Because the parties had very recently concluded a compact which involved negotiation over the De Jope site, and because the concluded compact did not require additional negotiations over the De Jope site, the Wisconsin Winnebago I court held that the tribe could "not rely on [IGRA] to compel defendant to negotiate at [that] time over Class III gaming at the De Jope site." Wisconsin Winnebago I, 824 F.Supp. at 172; accord Wisconsin Winnebago II, 22 F.2d at 724. In coming to its conclusion, the Wisconsin Winnebago I court specifically noted that the tribe should have sued "under § 2710 prior to the conclusion of the compact negotiations, if it believed [the state] was not negotiating in good faith," Wisconsin Winnebago I, 824 F.Supp. at 172, rather than completing the compact and attempting "an end-run" around it, Wisconsin Winnebago II, 22 F.3d at 724. In contrast, North Fork and the State of California have failed to complete a compact. The Tribe is not engaged in any class III gaming activity. Rather, the Tribe has done exactly what the Wisconsin Winnebago courts suggested; it has brought suit, alleging bad faith in negotiation by the State, prior to the conclusion of a compact. Neither Wisconsin Winnebago I nor Wisconsin Winnebago II support the State's argument the may simply refuse to negotiate with the Tribe regarding class III gaming at the Madera parcel.
Accordingly, even assuming the State's letter refusing to negotiate regarding the Madera parcel was an attempt to negotiate rather than a refusal to do so, that attempt would not meet the good faith requirement of § 2710(d)(3)(A).
North Fork contends that by the referendum vote the State failed to negotiate in good faith. North Fork's position is that the good faith negotiation requirement of IGRA applies to the State as a whole — including the people of the State in voting on a referendum. It contends that the people of the State of California failed to negotiate in good faith when they impermissibly considered: (1) whether the gaming was to take place on lands acquired after October 17, 1988, a determination appropriately made by the Governor and Secretary of the Interior;
A threshold question for this portion of the action is which person(s) or entity(s) owe a duty to negotiate in good faith on behalf of the State with the Tribe. The text of IGRA does not mandate that any particular state entity negotiate with Indian tribes. Section 2710(d)(3)(A) provides, in whole:
The duty to negotiate is imposed generally upon the State. The State's position is that the absence of clear direction from Congress as to which specific entity must negotiate with an Indian tribe leaves question to state law. Doc. 21-1 at 15-17 (citing Pueblo of Santa Ana v. Kelly, 932 F.Supp. 1284, 1294 (D.N.M. 1996) aff'd 104 F.3d 1546, 1558); see also Tulalip Tribes of Washington v. Washington, 783 F.3d 1151, 1153 (9th Cir. 2015) (noting that state and federal law govern the process of entering into a gaming compact). The Court agrees that a state may set its own procedure for engaging in negotiations with Indian tribes. In fact, the Supreme Court noted "that the duty . . . to `negotiate . . . in good faith to enter into' a compact with another sovereign [] stands distinct in that it is not of the sort likely to be performed by an individual state executive officer or even a group of officers." Seminole, 517 U.S. at 75, n. 17. That said, the system structured by state law for negotiation — regardless of the name given to each part of the process, whether it be negotiation, ratification, execution, or some other term — all falls within the IGRA requirement that the state negotiate in good faith. A state's use of the term "negotiate" in a fragmented system may be narrower than the duty imposed upon a state by IGRA to engage in good faith negotiation. In such a situation, whether the state-authorized entity did all within its authority to negotiate in good faith is not the dispositive inquiry.
For instance, under the State's framework, a state could designate an official to negotiate and another to approve; so long as the former official negotiates and concludes negotiations in good faith, the latter official can simply reject a compact for any reason — not holding the authority to renegotiate — and the state will have complied with IGRA. Although the state may structure its compact negotiation process as it sees fit, the state may not carve out additional procedural hurdles that fall outside of or are not subject to IGRA's negotiation requirement; doing so would render the duty to negotiate in good faith toothless. Such a framework is not consistent with the purpose of IGRA. See S. Rep. 100-446 at *13-14 ("It is the commission's intent that the compact requirement for class III not be used as a justification by a State for excluding Indian tribes from . . . gaming. . . . [IGRA] grants a tribe the right to sue a State if compact negotiations are not concluded."); 25 U.S.C. § 2701(5) ("Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity."); see generally 25 U.S.C. § 2702. In order for the good faith portion of the requirement that a state "negotiate with [an] Indian tribe in good faith to enter into . . . a compact" to have any significance, the negotiating party must have the authority to bind the state or the approving body must have some predictable standard by which it approves compacts.
Because the Court has already determined that the State's refusal to negotiate triggers the remedial provisions of IGRA, see Section IV(B)(1), supra, the Court need not come to any determination on this issue.
Based on the foregoing, the Court concludes that the State failed to enter into negotiations with North Fork for the purpose of entering into a Tribal-State compact within the meaning of § 2710. Accordingly, the parties ARE HEREBY ORDERED to conclude a compact within 60 days of the date of this order. See 25 U.S.C. § 2710(d)(7)(B)(iii).
IT IS SO ORDERED.
