United States District Court, D. Arizona
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Tohono O'odham Nation, Plaintiff: Danielle Spinelli, Seth
P Waxman, LEAD ATTORNEYS, Wilmer Cutler Pickering Hale & Dorr
LLP, Washington, DC; Jonathan Landis Jantzen, LEAD ATTORNEY,
Tohono O'odham Nation, Office of the Attorney General,
Sells, AZ; Kelly P Dunbar, Sonya L Lebsack, LEAD ATTORNEYS,
Wilmer Cutler Pickering Hale & Dorr LLP - Washington, DC,
Washington, DC; Laura Lynn Berglan, LEAD ATTORNEY, Tohono
O'odham Nation Office of the Attorney General, Sells, AZ.
Douglas A Ducey, named as: Douglas Ducey - Governor of
Arizona - in his official capacity, Defendant: Brett William
Johnson, Heidi McNeil Staudenmaier, Sara Jane Agne, LEAD
ATTORNEYS, Snell & Wilmer LLP, Phoenix, AZ; Thomas James
Clees, LEAD ATTORNEY, Snell & Wilmer LLP - Phoenix, AZ,
Mark Brnovich, Arizona Attorney General - in his official
capacity, Defendant: Karen J Hartman-Tellez, LEAD ATTORNEY,
Office of the Attorney General - Phoenix, Phoenix, AZ; Thomas
K Chenal, LEAD ATTORNEY, Office of the Attorney General,
Daniel Bergin, Director, Arizona Department of Gaming - in
his official capacity, Defendant: Carrie Alane Pixler
Ryerson, Doug C Northup, Patrick Irvine, LEAD ATTORNEYS,
Fennemore Craig PC - Phoenix, AZ, Phoenix, AZ; Matthew A
Hoffman, Timothy W Loose, LEAD ATTORNEYS, Gibson Dunn &
Crutcher LLP - Los Angeles, CA, Los Angeles, CA; Matthew D
McGill, Gibson Dunn & Crutcher LLP - Washington, DC,
G. Campbell, United States District Judge.
Tohono O'odham Nation (the " Nation" ) is
currently constructing a major casino on land purchased in
2003 near Glendale, Arizona. In May 2013, this Court ruled
that the 2002 Gaming Compact between the State of Arizona and
the Nation did not prohibit construction of another casino in
the Phoenix metropolitan area, and the Nation elected to
begin construction of the casino even though that ruling is
on appeal. As construction has progressed, the State and its
officials have refused to certify vendors and employees to
work at the casino. In response, the Nation brings this
action for declaratory and injunctive relief to prohibit the
State from continuing to bar the casino's progress.
Before the Court is the Nation's motion for preliminary
injunction (Doc. 3), Defendants Douglas Ducey and Mark
Brnovich's joint motion to dismiss (Doc. 49), and
Defendant Daniel Bergin's motion to dismiss (Doc. 50).
The Court heard oral argument on September 10, 2015. For the
reasons set forth below, the Court will deny the Nation's
motion for preliminary injunction, grant Ducey and
Brnovich's motion to dismiss,
and grant Bergin's motion to dismiss in part.
The Indian Gaming Regulatory Act.
California v. Cabazon Band of Mission Indians, 480
U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), the Supreme
Court held that states could not regulate gaming on Indian
lands. In response, Congress passed the Indian Gaming
Regulatory Act (" IGRA" ), 25 U.S.C. § §
2701-2721, which granted " states some role in the
regulation of Indian gaming." Artichoke Joe's
California Grand Casino v. Norton, 353 F.3d 712, 715
(9th Cir. 2003). " '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.'" Id. (quoting
Artichoke Joe's v. Norton, 216 F.Supp.2d 1084,
1092 (E.D. Cal. 2002)).
divides gaming into three classes: Class I, which includes
social games with prizes of minimum value and traditional
forms of Indian gaming; Class II, which includes bingo and
certain card games; and Class III, which includes all gaming
that falls outside of Classes I and II, typically referred to
as " casino-style" gaming. 25 U.S.C. § §
2703(7)(A), (7)(B), (8). Under IGRA, " Class I gaming on
Indian lands is within the exclusive jurisdiction of the
Indian tribes[.]" Id. § 2710(a)(1). Class
II gaming is also " within the jurisdiction of the
Indian tribes," but subject to some federal regulation.
Id. § 2710(a)(2). Class III gaming is permitted
if it is authorized by a tribal ordinance, conducted in a
state that permits such gaming, and " conducted in
conformance with a Tribal-State compact entered into by the
Indian tribe and the State[.]" Id. §
Arizona Department of Gaming.
carry out the state regulation allowed by IGRA, Arizona
created the Arizona Department of Gaming (" ADG" ).
See A.R.S. § 5-604(A). ADG is managed by a
governor-appointed director, Defendant Daniel Bergin. ADG is
tasked with " certify[ing], as provided in tribal-state
compacts, prospective gaming employees, facility support
employees, tribal gaming office employees, financiers,
management contractors, providers of gaming services and
manufacturers and distributors of gaming devices to ensure
that unsuitable individuals or companies are not involved in
[gaming]." Id. § 5-602(A). ADG is also
charged with promoting " the public welfare and public
safety" and seeking " to prevent corrupt influences
from infiltrating Indian gaming." Id.
January 24, 2003, the Secretary of the Interior approved a
tribal-state compact between the Nation and Arizona (the
" Compact" ). Doc. 1, ¶ 49. The Compact
permits the Nation to operate four gaming facilities and
provides that it does not apply to Class I or Class II
gaming. Id., ¶ ¶ 41, 51. The Compact
requires prospective gaming employees, contractors, and
vendors to obtain certification from ADG. Specifically, it
provides that ADG " shall conduct the necessary
background investigation to ensure the Applicant is qualified
for State Certification." Doc. 1-3 at 4. Once a
background check is completed, ADG must either issue the
certification or deny the application and provide the grounds
for denial. Id. ADG may deny
certifications on several grounds, including prior felony
convictions, providing false statements, or previous
violations of gaming laws. Id. at 5.
the Compact was executed, the Nation purchased unincorporated
land in Glendale, Arizona, located just west of Phoenix.
Several years later, in 2009, the Nation announced plans to
use the land for a Class III gaming facility to be known as
the West Valley Resort. Doc. 1, ¶ 64. The State of
Arizona filed suit in this Court, arguing that gaming on the
Glendale land was not authorized by IGRA and violated the
Compact's ban on additional casinos in the Phoenix area.
The State also asserted that the Nation committed fraud by
agreeing with the State and the voters that there would be no
more casinos in the Phoenix area, while secretly planning to
acquire land and open the West Valley Resort. See
Arizona v. Tohono O'odham Nation, 944 F.Supp.2d
748 (D. Ariz. 2013). The Court held that the Nation's
construction of a casino on the Glendale land would not
violate any provision of the Compact and was permitted by
IGRA. Id. at 754. The Court also found the
State's claims of fraud and promissory estoppel barred by
the Nation's sovereign immunity. Id. at 769. The
decision was appealed to the Ninth Circuit and remains
The Present Dispute.
Nation began construction of the West Valley Resort in
December 2014. The building currently under construction will
serve as an interim facility until construction of the entire
resort takes place in the future. Doc. 62-2 at 240. On
February 2, 2015, Defendant Bergin expressed concern to the
Nation that the casino was " not authorized, and, as a
consequence, . . . ADG would not have the authority to
participate in any certification or approval processes
relating to the opening or operation of the casino."
Doc. 1, ¶ 75. On April 10, 2015, Bergin informed the
Nation that " ADG lacks statutory authority to approve
[the Nation's] Glendale casino notwithstanding [the
Court's earlier decision]." Doc. 1-5 at 2. Bergin
expressed a belief that the Nation committed fraud during the
formation of the Compact and that the fraud "
nullif[ied] any right that [the Nation] would otherwise have
under the compact to build the Glendale casino."
Id. He referenced A.R.S. § 5-602(C), which
" requires ADG to execute the State's duties under
tribal-state compacts 'in a manner that is consistent
with this state's desire to have extensive, thorough
and fair regulation of Indian gaming permitted
under the tribal-state compacts.'" Id. at 3
(quoting § 5-602(C) (emphasis in Bergin letter)). Bergin
stated that " the record created in [the prior
litigation] includes credible and largely unrefuted evidence
that [the Nation] engaged in deceptive behavior and made
significant misrepresentations during the compact
negotiations[.]" Id. at 3-4. He concluded that
ADG would " exceed its authority if it were to proceed
with any certification or approval processes relating to the
opening or operation" of the casino, and noted that the
casino does not qualify as " Indian gaming permitted
under the Tribal-State compact." Id.
2015, ADG issued a new notice for its certification
applications, which stated the following:
Please be advised this application for certification is valid
only for authorized Arizona gaming facilities. Providing
goods or services to any location considered by the State to
be unauthorized, or in pending litigation with the State
concerning whether it is authorized, would be outside the
approval granted through State Certification. Vendors
providing goods or services to unauthorized facilities may be
subject to legal and/or regulatory risks.
Doc. 1, ¶ 86. The notice also stated that " based
upon the fraud and misrepresentation committed" by the
Nation, " [ADG] has determined that the proposed West
Valley casino is not authorized." Id., ¶
88. The notice does not distinguish between Class II and
Class III gaming. Id., ¶ 89. ADG requires the
Nation to use these forms for prospective vendors and
employees of the casino. Id., ¶ 90-91.
22, 2015, the Nation filed this action against Arizona
Governor Douglas Ducey, Arizona Attorney General Mark
Brnovich, and ADG Director Daniel Bergin. It alleges that
Ducey and Brnovich directed Bergin to deny certifications for
the West Valley Resort and that Defendants have violated the
Supremacy Clause because IGRA preempts state regulation of
gaming on Indian lands. It further alleges that Defendants
are violating IGRA by illegally regulating Class II gaming,
specifically because the notice appears to apply to any
gaming that may take place at the West Valley Resort. The
Nation asks the Court to enjoin Defendants from refusing to
grant the Class III certifications and from regulating Class
II gaming. The Court will address the merits of
Defendants' motions to dismiss before turning to the
Nation's motion for preliminary injunction.
Motions to Dismiss.
Ducey and Brnovich argue that the Nation's claims should
be dismissed for several reasons: (1) sovereign immunity bars
suit against them in their official capacities, (2) the
Nation's claims are a disguised and improper mandamus
action, (3) the Nation's claims are non-justiciable, and
(4) the Nation fails to state a claim for relief. Defendant
Bergin argues that the claims should be dismissed for similar
reasons: (1) sovereign immunity bars the Nation's claims
against him because IGRA provides an alternative enforcement
mechanism, (2) the Nation's claim regarding Class II
gaming is not ripe, (3) the Nation's complaint fails to
state a claim for relief, and (4) the Nation's requested
relief would violate the Tenth Amendment. Because courts
generally treat sovereign immunity as a threshold issue, the
Court will address it first. See Confederated
Tribes & Bands of the Yakama Indian Nation v. Locke, 176
F.3d 467, 469 (9th Cir. 1999).
Eleventh Amendment bars federal court lawsuits against a
state " by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U.S. Const. amend. XI.
This bar applies to suits against states by
federally-recognized Indian tribes. See Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct.
1114, 134 L.Ed.2d 252 (1996); see also
Blatchford v. Native Village of Noatak, 501 U.S.
775, 782, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). State
agencies such as ADG fall within the protection of the
Eleventh Amendment. See Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137
L.Ed.2d 55 (1997).
are several exceptions to the protection of sovereign
immunity, one of which is at issue in this case. The Supreme
Court held in Ex parte Young, 209 U.S. 123, 28 S.Ct.
441, 52 L.Ed. 714 (1908), that state officials can, in some
circumstances, be sued to enjoin violations of federal law.
This exception to sovereign immunity applies when lawsuits
are brought against state officers in their official
capacities for an injunction prohibiting future violations of
federal law. Such " official-capacity actions for
prospective relief are not treated as actions against the
State" for purposes of the Eleventh Amendment. Will
v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10,
109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (internal quotations
omitted). This is because
" state officers have no authority to violate the
Constitution and laws of the United States," and an
injunction against such violations therefore does not
infringe any legitimate state power. Erwin Chemerinsky,
Federal Jurisdiction, § 7.5 (6th ed. 2012).
Ex parte Young exception has two limitations that
are relevant here. First, it does not apply to all state
officers. The officer named in the suit " must have some
connection with the enforcement of the act" to be
enjoined. 209 U.S. at 157. The connection between the officer
and the act " must be fairly direct; a generalized duty
to enforce state law or general supervisory power over the
persons responsible for enforcing the challenged provision
will not subject an official to suit." Coal. to
Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134
(9th Cir. 2012) (quoting L.A. Cty. Bar Ass'n v.
Eu, 979 F.2d 697, 704 (9th Cir. 1992)); Sweat v.
Hull, 200 F.Supp.2d 1162, 1167 (D. Ariz. 2001). Second,
" where Congress has prescribed a detailed remedial
scheme for the enforcement against a State of a statutorily
created right, a court should hesitate before casting aside
those limitations and permitting an action against a state
officer based upon Ex parte Young."
Seminole Tribe, 517 U.S. at 74. Permitting suit
under Ex parte Young in such a circumstance might
render the congressionally-created remedial scheme
superfluous. Id. at 75.
invoke both of these limitations. The Nation seeks to enjoin
Defendants from denying certifications in violation of IGRA
and the Supremacy Clause. Defendants Ducey and Brnovich argue
that they lack the necessary connection to the granting of
such certifications. Defendant Bergin argues that he cannot
be sued because IGRA ...