Troy L. Nunley, United States District Judge.
The matter is before the Court on cross motions for judgment on the pleadings by Plaintiff the Estom Yumeka Maidu Tribe (hereinafter "Plaintiff") and Defendant the State of California (hereinafter "Defendant"). (ECF Nos. 14, 17.) The Court has carefully considered the factual and legal issues presented in the parties' filings, and the arguments raised in the amicus brief submitted by the California legislature (ECF No. 19). For the reasons discussed below, the Court GRANTS Plaintiff's motion for judgment on the pleadings, and DENIES Defendant's motion.
Under the federal Indian Gaming Regulatory Act ("IGRA"), an Indian tribe seeking to conduct casino-style gaming on Indian land must request that the state enter into good faith negotiations to conclude a gaming compact. 25 U.S.C. § 2710(d)(3). Under California law, the governor is tasked with negotiating a compact, and the legislature is tasked with ratifying it. Cal. Const., Art. IV, § 19(f). In this case, Plaintiff negotiated and signed a compact (the "Compact") with Governor Jerry Brown in 2012. However, the legislature essentially took no further action and did not hold a vote on ratification. The Compact eventually expired on its own terms in July 2014.
Plaintiff's immediate remedy under the IGRA is to bring suit. After Plaintiff has
Defendant's position is that the legislature's inaction cannot form the basis for suit under the IGRA, because only the governor negotiated the instant Compact. Plaintiff's position is that the IGRA's negotiation mandate extends to activities by the legislature. Both parties have moved for judgment on the pleadings on the issue of whether Defendant has negotiated the instant Compact in good faith, and thus whether Plaintiff is entitled to relief under the IGRA.
Plaintiff was federally recognized as a sovereign Indian tribe in 1915. According to Plaintiff, during the 20th century it exercised jurisdiction over two parcels of land, both 40 acre parcels located near the former town of Enterprise in Northern California. Plaintiff still exercises jurisdiction over one of those parcels which apparently is unsuitable for building. The other parcel was transferred to the State of California in 1965 via Congressional Act, Public Law 88-453. (Compl. ¶¶ 25-28.)
In 2002, Plaintiff submitted a fee-to-trust application to the Secretary of the Interior (the "Secretary"), seeking to have an additional 40 acres of land in Yuba County taken into trust on its behalf. See 25 U.S.C. § 465 ("The Secretary of the Interior is authorized, in his discretion, to acquire ... any interest in lands ... for the purpose of providing land for Indians"). In 2006, Plaintiff supplemented its application with a request that the Secretary also find the parcel gaming-eligible. See 25 U.S.C. § 2719(b)(1)(A) (providing that the Secretary may find a gaming establishment to be "in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination"). (Compl. ¶¶ 31-32.)
On September 1, 2011, the Secretary determined the parcel to be gaming-eligible, and on August 30, 2012, Governor Jerry Brown concurred. On May 15, 2013, the Department of the Interior took the parcel into trust on behalf of Plaintiff for the purpose of gaming. (Compl. ¶¶ 34-36.)
While proceedings relative to trust acquisition and gaming-eligibility were ongoing, Plaintiff also sought to negotiate a
Class III gaming on Indian lands may occur if permitted by state law and if conducted in in accordance with a tribal-state gaming compact. 25 U.S.C. § 2710(d)(1)(B) and (C). A tribe intending to conduct class III gaming shall request that the state "enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact." 25 U.S.C. § 2710 (d)(3)(A).
In March 2000, California voters ratified Proposition 1A, which permitted certain class III gaming only on Indian lands. See In re Indian Gaming Related Cases, 331 F.3d 1094, 1103, 1107 (9th Cir.2003); Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 602 F.3d 1019, 1023 (9th Cir.2010) ("Not only did Proposition 1A permit tribes to conduct class III gaming lawfully, it effectively gave tribes a state constitutional monopoly over casino gaming in California"). The same referendum also established a two-part procedure for negotiating and ratifying gaming compacts. Under this procedure, "the Governor is authorized to negotiate and conclude compacts, subject to ratification by the Legislature." Cal. Const., Art. IV, § 19(f).
This procedure is also codified in Cal. Gov. Code § 12012.25(c) and (d), which provides that compacts "shall be ratified by a statute approved by each house of the Legislature," while "the Governor is the designated state officer responsible for negotiating and executing, on behalf of the state, tribal-state gaming compacts...."
According to Plaintiff, in June 2000, it sent California a request to begin compact negotiations. Plaintiff sent an additional request in 2004. California initially rejected these requests, although Plaintiff continued to meet to discuss a proposed gaming facility with the legislative staff of Governor Schwarzenegger and, beginning in 2011, a senior advisor to Governor Jerry Brown. (Compl. ¶ 40.)
In August 2012, compact negotiations "began in earnest," relative to the Secretary's September 1, 2011, determination that the parcel to be taken into trust was gaming eligible under 25 U.S.C. § 2719(b)(1)(A). (Compl. ¶ 41.) Plaintiff submits that "the Governor indicated that he was giving serious consideration to concurring in the Secretary's [] determination, but only if the Tribe would first agree to negotiate and enter into a tribal-state compact that provided the State and its
After further negotiation, including acceptance by Plaintiff of provisions found in other compacts which the legislature had ratified, Plaintiff and the governor signed the instant Compact on August 30, 2012.
Shortly after the Compact was signed it was transmitted from the governor's office to the California legislature. After the parcel of land was taken into trust in May, 2013, Plaintiff informed the governor's office and members of the legislature, and requested that the Compact be ratified. The legislature took no activity to ratify the Compact during the 2013 session. (Compl. ¶ 50.)
Throughout the first half of 2014, Plaintiff engaged in a "concerted effort" with the governor's office to secure ratification in the legislature. (Compl. ¶ 51.) In May, 2014, Assemblyman Adam Gray introduced AB 1098, to ratify the Compact but according to Plaintiff, the legislature "held neither an information hearing nor a vote" on that bill, and the Compact was not ratified. (Compl. ¶ 51.) The Compact expired by its own terms on July 1, 2014. (Compl. ¶ 53.) The parties appear to agree, with some qualifications noted infra, that the legislature has taken no action on the Compact.
Based on the legislature's inaction, Plaintiff seeks redress under 25 U.S.C. § 2710(d)(7). Under this scheme, 180 days after a tribe requests the opening of compact negotiations with the state, the tribe may bring suit arising from the state's failure to enter into a compact or to negotiate in good faith. If the tribe then produces evidence that a compact was never entered into and the state did not respond to the tribe's request to negotiate in good faith, the burden is on the state to prove that it has in fact negotiated with the tribe in good faith to conclude a compact. 25 U.S.C. § 2710(d)(7)(A) and (B).
If the court still finds the state has failed to negotiate a compact in good faith, the court must order the state and the tribe to conclude a compact within 60 days. If no compact is concluded, the court appoints a mediator to select from the compacts proposed by the tribe and the state. The state then has 60 additional days to consent to that selected compact. If the state does not consent, the Secretary of the Interior prescribes the procedures under
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." "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) (citing Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.2012)). As to a defendant's motion, judgment on the pleadings is appropriate when, even if all allegations in the complaint 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). As to a plaintiff's motion, similarly, judgment is appropriate when, assuming the truth of the factual allegations, the plaintiff is entitled to judgment as a matter of law. Judgment may properly be granted only if "there is no issue of material fact in dispute." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). See North Fork Rancheria of Mono Indians of California v. State of California, No. 1:15-cv-00419-AWI-SAB, at *7-8 (E.D. Cal. Nov. 13, 2015).
As an initial matter, it does not appear the parties dispute material facts that would preclude judgment on the pleadings. The parties, and legislative counsel on behalf of the California legislature, have offered different accounts on the thoroughness of the instant tribal-state negotiations and how the legislature ordinarily considers a bill. However, clearly the parties would like this Court to make a decision on the legal issue of whether the legislature's inactivity is covered by the IGRA's good faith negotiation mandate.
The Court takes the parties' moving papers to raise four main issues: Defendant's immunity (or waiver thereof) under the Eleventh Amendment; the implications under the Tenth Amendment of subjecting the legislature to the IGRA's negotiation mandate; whether Plaintiff has fulfilled the prerequisites under IGRA for putting the state to its burden of showing it has negotiated in good faith; and whether the legislature's inactivity actually constitutes a lack of good faith under the IGRA. The Court therefore turns to each of these issues.
In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court held that the Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against states under the IGRA. The IGRA "cannot grant jurisdiction over a State that does not consent to be sued." Id. at 47, 116 S.Ct. 1114. In some circumstances, California has consented to suit under the IGRA. Cal. Gov. Code § 98005 provides in relevant part:
Defendant argues that the legislature's lack of activity regarding a governor-negotiated
First, the Court notes a similar argument was recently rejected by a court in this District. See North Fork Rancheria of Mono Indians of California v. State of California, No. 1:15-cv-00419-AWI-SAB, ECF No. 25 (E.D. Cal. Nov. 13, 2015) (Ishii, J.). In North Fork, the governor initially approved a gaming compact with the tribe and the legislature ratified it, but the compact was overturned by a popular referendum. Thereafter, the state refused to enter into negotiations regarding a new compact. Judgment in North Fork was entered in favor of the tribe, and the parties were ordered to conclude a compact within 60 days, per the same remedial provision Plaintiff seeks in the instant case, 25 U.S.C. § 2710(d)(7)(B)(iii). Relative to the Eleventh Amendment, the North Fork court characterized the state's argument as: "because [plaintiff] 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 relat[es] to conduct by actors other than the Governor." North Fork at *9. The court rejected that argument. Factual differences aside, this Court agrees with the reasoning in North Fork.
As an overriding matter, the language of California's waiver of immunity appears to be crafted to fit the IGRA's grant of jurisdiction to federal district courts over failures in compact negotiations. Compare Cal. Gov. Code § 98005, supra, with the IGRA: "The United States district courts shall have jurisdiction over — (i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact...or to conduct such negotiations in good faith...." 25 U.S.C. § 2710(d)(7)(A)(i). The instant lawsuit fits within the plain language of California's waiver, because it arises from "the state's refusal to enter into negotiations ... or to conduct those negotiations in good faith... or the state's violation of the terms of any Tribal-State compact to which the state is or may become a party." Cal. Gov. Code § 98005.
Further, the full text of § 98005 refers to both the "Governor" and the "State of California", indicating that if the California legislature had wanted to restrict suits only to those involving conduct by the governor, it could have done so. North Fork at *11. Elsewhere in the IGRA, a state's governor is referred to specifically as the relevant entity. 25 U.S.C. § 2719(b)(1)(A) provides that gaming may occur on lands acquired after the IGRA's enactment, if the "Governor of the State" concurs with the Secretary of the Interior that gaming is in the best interest of a tribe and is not detrimental to the community. Therefore, both California's gaming law and the IGRA acknowledge a distinction amongst state actors, but did not make that distinction relative to a state's immunity from suit.
Defendant has not submitted either state or federal case authority in support of the position that if activity by the legislature constitutes the alleged offense conduct, then the § 98005 waiver no longer applies. The relevant language of § 98005 quoted above refers only to the state, and not a more specific entity. For the above reasons, the Court finds Defendant is not immune from suit under the Eleventh Amendment.
Defendant also contends that subjecting the California legislature to the IGRA's negotiation mandate would invade a fundamental aspect of Defendant's sovereignty, which is prohibited by the Tenth Amendment. Defendant argues that "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs," Printz v. United States, 521 U.S. 898, 925, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).
Plaintiff's position is that the IGRA's compacting requirement does not compel Defendant to implement a federal program. In part, this is due to the fact that Defendant need not permit class III gaming in the first place. 25 U.S.C. § 2710(d)(1)(B). California has elected to do so. Further, Defendant is not under a duty to negotiate. It may refuse to do so, which ultimately leads to gaming conditions determined by the Secretary of the Interior.
It should be noted that while the IGRA preempts state regulation of class III gaming, it does extend to Defendant a role in the regulatory process by providing for a
S. REP. 100-446, 6, 1988 U.S.C.C.A.N. 3071, 3075-76.
The IGRA's preemptive effect is consistent with the plenary power afforded to the federal government over Indian affairs. See Bryan v. Itasca County, Minnesota, 426 U.S. 373, 376 n. 2, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976) (Congress has "plenary and exclusive power... to deal with Indian tribes"); Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (plenary power is "drawn both explicitly and implicitly" from the Indian Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, and the President's treaty power, U.S. Const. Art. II, § 2, cl. 2); United States v. Sioux Nation of Indians, 448 U.S. 371, 413, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980) (citing Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 47 L.Ed. 299 (1903)) ("Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning..."). As such, Plaintiff's position that Defendant's power to regulate Class III gaming "derive[s] not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty," is supported. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995).
Defendant refers to Printz, supra, which considered the constitutionality of the Brady Handgun Violence Prevention Act under the Tenth Amendment. That Act required chief law enforcement officers at the local level to conduct background checks and perform related tasks on an interim basis until the national system for doing so became operative. The Supreme Court held that violated the Tenth Amendment because it effectively permitted the federal government to "impress into its service — and at no cost to itself — the police officers of the 50 states," a power ordinarily reserved for the states. Printz, 521 U.S. at 922, 117 S.Ct. 2365. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 24-25, 25 S.Ct. 358, 49 L.Ed. 643 (1905). By contrast, here "the Congressional intent and purpose of IGRA as a whole emphasize that the relationship between the State and the Tribes is that of two sovereign entities cooperating to reconcile potentially competing interests, but remaining subject to federal regulation and authority." Rumsey Indian Rancheria of Wintun Indians, Table Mountain
This is particularly so, in light of the fact that Defendant is not required to permit class III gaming in the first place. If a state does permit class III gaming, it is not required to negotiate with a tribe to conclude a compact, in the sense that there is no ultimate mandate that a tribal-state be agreed upon. As the Tenth Circuit reasoned: "IGRA's directive to the states to conclude a compact must be read in the context of the sections that immediately follow in § 2710(d)(7), which contemplate that a state and tribe may fail to agree to a compact. In that event, the states are not required to do anything further, and instead the Secretary of the Interior takes over. Had Congress intended to mandate that the states enter into compacts with Indian tribes, it would not have included these latter sections in § 2710(d)(7)." Ponca Tribe of Oklahoma v. State of Oklahoma, 37 F.3d 1422, 1435 (10th Cir.1994). See id. at 1433-1434 (referencing New York, 505 U.S. 144, 112 S.Ct. 2408, 2420-24, 120 L.Ed.2d 120 (1992))(Congress "may direct a state to consider implementing a federal program so long as the states retain the prerogative to decline Congress' invitation"); Cheyenne River Sioux Tribe v. State of S.D., 3 F.3d 273, 281 (8th Cir. 1993) (internal quotation marks omitted) ("We agree with the district court that the IGRA gives states the right to get involved in negotiating a gaming compact because of the obvious state interest in gaming casino operations within the state boundaries, but does not compel it").
The Ninth Circuit has acknowledged the multiple interests balanced by the IGRA, and has even characterized the state's role under as the IGRA as an "obligation". See In re Indian Gaming Related Cases, 331 F.3d at 1096 (citing Artichoke Joe's v. Norton, 216 F.Supp.2d 1084, 1092 (2002)) ("IGRA is an example of `cooperative federalism' in that it seeks to balance the competing sovereign interests of the federal government, state governments, and Indian tribes, by giving each a role in the regulatory scheme"); Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 602 F.3d 1019, 1030 (9th Cir.2010) ("In IGRA, Congress took from Plaintiffs collectively whatever sovereign rights they might have had to engage in unregulated gaming activities, but imposed on the states the obligation to work with tribes to reach an agreement under the terms of IGRA permitting Plaintiffs to engage in lawful class III gaming activities"). Based on the foregoing, the Court finds that subjecting the California legislature to the IGRA's negotiation provision would not invade a fundamental aspect of Defendant's sovereignty, thereby violating the Tenth Amendment.
Importantly, the foregoing is not at odds with the fact that Defendant may determine the procedure by which a compact is negotiated and entered into. See North Fork at *22; Tulalip Tribes of Washington
Id. at 1543.
In the same vein, as the North Fork court reasoned, the IGRA defines negotiation broadly as an activity between Plaintiff and Defendant. California may then specify which intra-state entity does the negotiation, but that state-created definition is not what the Court looks to in determining whether negotiation, per the IGRA, has been conducted in good faith. North Fork at *22. The Court is bound to evaluate negotiation as described in the broad sense under the IGRA, which refers only to the state, not the governor or the legislature.
As a further reference point, Plaintiff submits and it appears to be the case that in Arizona, the governor alone "may enter into negotiations and execute tribal-state compacts" for class III gaming. A.R.S. § 5-601. Were a scenario to exist in which the Arizona governor negotiated a gaming compact, but then refused to take further action on it for nearly two years, surely that would suggest a violation of the IGRA's good faith negotiation mandate. That is the scenario in this case, except California has divided the authority for negotiating and ratifying the compact between two entities. The Court does not view the fact that Defendant, under state law, has elected to enter into a compact in this manner to be grounds for a violation of Defendant's state sovereignty under the Tenth Amendment.
The parties do not appear to dispute that, standing alone, the governor and Plaintiff's negotiations were conducted in good faith prior to the Compact being sent to the legislature. Plaintiff has filed the Compact with the Court, and explained some of the key points of negotiation leading to that agreement. (ECF No. 1-2, Ex. E; Compl. ¶¶ 40-48.) In this lawsuit, Defendant has not identified any specific provisions in the Compact which are objectionable. Rather, the issue is whether the
Based on the parties' filings, the Court takes Defendant's activity after the Compact was signed, to be as follows: After the Compact was signed in August, 2012, it was transmitted from the governor's office to the legislature. After the Yuba parcel was taken into trust, in May, 2013, Plaintiff informed the governor's office and members of the legislature of this development, and requested that the Compact be ratified. No action was taken by the legislature during the 2013 session. Throughout the first half of 2014, Plaintiff engaged in a "concerted effort" with the governor's office to secure ratification. (Compl. ¶¶ 49-51.)
According to legislative counsel's amicus brief, after the legislature accepted the Compact from the governor, the California Senate sought input from stakeholders in an effort to better understand the impact of gaming compacts, including the instant Compact, on Defendant.
Plaintiff has also filed a copy of a July, 2013, letter to the governor from California Senator Kevin de Leòn. (ECF No. 1-2, Ex. G.) Senator Leòn related that the senate was creating a working group to examine gaming compacts which permitted tribes to operate casinos on non-reservation lands. He expressed a concern specifically relative to the compact which was the subject of the North Fork litigation, which had been signed by the governor and ratified by the legislature. He requested that the governor not submit such gaming compacts to the legislature for ratification, until the working group had "completed its ratification and California ha[d] adopted a clear and coherent policy on off-reservation gaming." (ECF No. 1-2, Ex. G at 277.)
Plaintiff has also filed with this Court a Los Angeles Times article from August, 2013, reporting that Senator de Leòn wanted the governor to delay submitting the instant Compact for legislative approval. (ECF No. 1-2, Ex. H.) Plaintiff avers that the governor was aware of the legislature's intent, but nonetheless intended to work toward ratification. (Compl. ¶ 54.)
In summary, the Compact was submitted to the legislature shortly after signature by the governor and Plaintiff in August, 2012. The Compact was eventually amended into a bill and referred to the Senate Committee on Rules, in May, 2014. Thereafter, no action on the Compact took place. The Compact expired by its own terms on July 1, 2014. Thus, nearly two years passed since the Compact was signed and submitted to the legislature before the Compact expired. The parties have not noticed the Court of any new activity taking place in the legislature with respect to the Compact or a new compact.
An Indian tribe may initiate a cause of action arising from the state's failure to enter into a compact or to conduct good faith negotiations, only after the close of a 180-day period beginning on the day on which the request was made to enter into negotiations. 25 U.S.C. § 2710(d)(3)A) and (7)(A)-(B). It has been over 180 days since Plaintiff's negotiations with the governor "began in earnest" in August, 2012. (Compl. ¶ 41.) After the parcel of land was taken into trust in May, 2013, Plaintiff informed the governor's office and members of the legislature, and requested that the Compact be ratified. The legislature took no activity to ratify the Compact during the 2013 session. (Compl. ¶ 50.) Throughout the first half of 2014, Plaintiff engaged in a "concerted effort" with the governor's office to secure ratification in the legislature. (Compl. ¶ 51.) Although the filings with this Court indicate that Plaintiff sent a request to begin compact negotiations with the governor as far back as 2000, the Court finds that, at minimum, the negotiations that occurred in August, 2012 establish that the 180-day requirement under 25 U.S.C. § 2710(d)(3)A) and (7)(A)-(B) is met.
Defendant argues that Plaintiff — prior to filing suit — must request that Defendant again enter into negotiations. Then if good faith negotiations do not occur a second time, Plaintiff may file suit. Defendant does not provide any legal authority in support of this argument. However, Plaintiff made several requests during the terms of at least three governors to negotiate a compact, some of which were rejected. According to Plaintiff after negotiations began in 2012, "the Governor indicated that he was giving serious consideration to concurring in the Secretary's [] determination, but only if the Tribe would first agree to negotiate and enter into a tribal-state compact that provided the State and its residents with the same or similar protections as other compacts in California." (Compl. ¶ 41.) After further negotiation, including acceptance by Plaintiff of provisions found in other compacts which the legislature had ratified, Plaintiff and the governor signed the instant Compact on August 30, 2012. It is undisputed that those negotiations were conducted in good faith and resulted in the Compact being signed in August, 2012. Thus, the request by Plaintiff to enter into good faith negotiations was actually honored. After the Compact was signed, in May of 2013, Plaintiff informed the governor and the legislature that the land had been taken into trust and requested that the compact be ratified. The instant lawsuit does not arise from the failure of Defendant to enter into compact negotiations or conduct those negotiations in good faith. Essentially, Defendant's argument would require that the request for negotiations under the IGRA, for purposes of suit, be called for at multiple stages of the process depending on where a hold-up in negotiations occurred.
For example, in North Fork, a compact was signed by the governor, ratified by the legislature, and noticed to the Secretary of the Interior who approved it. Subsequently, a popular referendum overturned the Compact. At that point, Plaintiff requested again for further negotiations with the state in order to conclude the compact. After the state refused, Plaintiff brought suit.
As an initial matter, Plaintiff submits and Defendant has not disputed, that Plaintiff conducted negotiations with the governor's office to secure ratification, after the Compact had been signed and transmitted to the legislature. (Compl. ¶ 51.) In North Fork, the compact had already been concluded in the sense Plaintiff seeks here, which is legislative ratification, presumably followed by notice to the Secretary of the Interior. 25 U.S.C. § 2710(d)(8). As an overriding matter, however, Defendant does not identify authority holding that the state-created process — negotiation by the governor and ratification by the legislature — is not subject to the IGRA's plain statement that Plaintiff may bring suit if 180 days have passed since Plaintiff requested negotiations. The IGRA provides that upon request the "State" shall enter into good faith negotiations over a compact, and permits suit after 180 days arising from the "failure of a State" to do so. 25 U.S.C. § 2710(d)(3)(A) and (7)(A)-(B). Defendant does not cite to authority holding that IGRA requires additional requests depending on the stage at which compact negotiations with the state are stalled or otherwise halted. Further, it appears the course of events in this case are: negotiation with the governor in 2012; the signing of the Compact and transmission to the legislature; and the eventual expiration of the Compact. Nothing like the disruptive event at issue in North Fork — overturning the compact by referendum vote after it had already been concluded for the purposes of IGRA — is suggested by the parties here.
After a tribe brings suit, it must then introduce evidence that a "compact has not been entered into" and "the State did not respond to the request of the Indian tribe to negotiate such a compact or did not respond to such request in good faith." 25 U.S.C. § 2710(d)(7)(B)(ii). No compact has been entered into. The legislature's nearly two years of inactivity regarding the Compact until it expired, and no activity since then, constitute evidence that Defendant has not responded in good faith to requests to negotiate.
After the introduction of such evidence, the "burden of proof shall be on the State to prove that the State has negotiated with the Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities." 25 U.S.C. § 2710(d)(7)(B)(ii). Therefore, the Court turns to whether Defendant has met its burden.
"The structure and content of § 2710(d) make clear that the function of the good faith requirement and judicial remedy is to permit Plaintiff to process gaming arrangements on an expedited basis, not to embroil the parties in litigation over their subjective motivations. We therefore hold that good faith should be evaluated objectively based on the record of negotiations...." Rincon, 602 F.3d at 1041. Plaintiff also relies upon cases in the National Labor Relations Act ("NLRA") context as the standard for what constitutes good faith negotiation. Courts considering
First, Plaintiff argues that bad faith is present because the entity with ultimate approval authority (the legislature) is not present at the negotiations and then refuses to approve a negotiated compact. See e.g. H.J. Heinz Co. v. NLRB, 311 U.S. 514, 526, 61 S.Ct. 320, 85 L.Ed. 309 (1941). Defendant responds that the NLRB standard proposed by Plaintiff would eliminate the legislature's ability to decline to ratify a compact. Defendant also argues that curtailing the legislature's role would violate Defendant's sovereign immunity under the Tenth Amendment.
However, the issue is not whether a federal court may eliminate the legislature's ability to decline to ratify a Compact. This is not a scenario where the legislature has voted not to ratify a Compact, thus prompting a lawsuit. The issue is whether inaction by the legislature can support a finding of bad faith negotiation under the IGRA. Neither party has cited authority specific to the IGRA context, discussing whether inaction may support bad faith negotiation. However, the Court agrees that the minimal activity undertaken by the legislature supports a finding of bad faith negotiation in violation of the IGRA. The thrust of Defendant's argument on this point is analogous to its argument under the Tenth Amendment: that the legislature is not subject to IGRA's negotiation mandate. Defendant's argument is unavailing. As this Court has stated in relation to Defendant's Tenth Amendment argument, supra, the ultimate mandate for the state under the IGRA is not to compel negotiation. If the state refuses to negotiate, gaming conditions will ultimately be determined by the Secretary of the Interior.
Second, Plaintiff argues that the delay by the legislature in taking up the Compact for a vote constitutes a lack of good faith. See e.g. NLRB v. Nat'l Shoes, 208 F.2d 688, 692 (2d Cir.1953). Plaintiff argues that the IGRA's remedial provision codifies this principle, by requiring specifically that a State engage in good-faith
Defendant responds that there is no basis for importing a labor negotiation timeline into the IGRA. The IGRA's 180 day period is not a deadline, but a waiting period that must pass before Plaintiff may sue. The Ninth Circuit has held that delay in the negotiating process, by itself, does not necessarily indicate bad faith. See In re Indian Gaming Related Cases, 331 F.3d at 1109-10 (finding seven years of Tribal-State negotiations did not indicate bad faith). Defendant reiterates that Plaintiff does not allege delay in the negotiation process itself, which the governor engaged in, but delay in ratification by the legislature, which Defendant argues is not actionable under the IGRA.
However, in In re Indian Gaming Related Cases, most of the negotiation at issue occurred in the 1990s, before California had even enacted its current statute permitting certain class III gaming only on Indian lands. At the time the amended complaint was filed by plaintiff in the district court, seeking redress under the IGRA, the state remained willing to meet with plaintiff for further discussions. Id. at 1110. The Ninth Circuit also stated plaintiff's main objections in that case were not to the "timing and procedure" of the negotiations, but to substantive provisions in the gaming compact. Id. at 1110.
The difference in this case is that the parties have not presented any dispute over substantive provisions in the Compact. Plaintiff's argument is that the legislature has not considered the Compact or presented any concerns with its provisions. Legislative counsel points out that there is no internal rule compelling the houses to ratify a compact within a certain period of time, and some bills are reintroduced from one legislative session to another. Further, under the plain terms of the IGRA, the 180 day period is not a deadline for the conclusion of compact negotiations; it is a minimum period after which Plaintiff may bring suit. 25 U.S.C. § 2710(d)(7)(B). However, Defendant does not cite to any authority holding that the legislature may sit on a compact indefinitely, with the possibility of taking the compact up for a vote at an undetermined point, and thereby make the state immune from the IGRA's period for permitting suit after 180 days. The nearly two-year period of inaction by the legislature before the Compact expired, and no additional activity since then, supports a finding of IGRA bad faith negotiation.
Third, Plaintiff argues that if the legislature has legitimate concerns regarding the Compact, it must articulate those concerns so that the parties may seek redress through further negotiation. See e.g. Nat'l Mgmt. Consultants, Inc. 313 NLRB 405, 408 (1993) (finding that company had failed to negotiate in good faith where it "offered no reasons, offered no counterproposals, and made no attempt to schedule any meetings to discuss the matter" with the union).
Defendant responds that the legislature's ability to make counterproposals is not stated in the California Constitution Article IV, section 19(f), which speaks only of ratification. Further, there is no basis to import NLRA requirements regarding counterproposals into the IGRA.
As an initial matter, Plaintiff's position that the legislature can do more than passively review and vote on a compact has some support. For instance, as discussed immediately below, Plaintiff submits that
Ultimately, it is Defendant's burden to show it has negotiated in good faith.
For the foregoing reasons, Plaintiff's motion for a judgment on the pleadings is GRANTED, and Defendant's motion for judgment on the pleadings is DENIED. Defendant and Plaintiff are ordered to proceed pursuant to the remedial process set forth in the IGRA, 25 U.S.C.
Plaintiff filed the complaint in this matter on August 20, 2014. Defendant answered on October 15, 2014. (ECF No. 11.) Plaintiff moved for judgment on the pleadings on January 12, 2015, and Defendant moved for judgment on the pleadings on February 12, 2015. (ECF Nos. 14, 17.) The California legislature (via legislative counsel) filed an amicus brief in support of Defendant, on March 5, 2015. (ECF No. 19.) The parties have filed additional reply briefs. (ECF Nos. 20, 21, 23.) Plaintiff submitted a notice of supplemental authority on December 18, 2015, discussed infra, and Defendant and Legislative Counsel have filed responses to that notice. (ECF Nos. 24, 25, 26.)
