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Tohono O'odham Nation v. Ducey

United States District Court, D. Arizona

June 21, 2016

Tohono O’odham Nation, Plaintiff,
v.
Douglas A Ducey, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Daniel Bergin, Director of the Arizona Department of Gaming, moves to compel the Tohono O’odham Nation to produce certain notes, minutes, and agendas from closed sessions of the Tohono O’odham Council (“TON Council”) - which is the legislative body of the Nation’s government - and the San Lucy District Council (“SLD Council”) - which is the legislative body for one of the Nation’s political subdivisions. Doc. 153. In addition, Director Bergin seeks to compel the Nation’s witnesses to testify about certain issues that may have been discussed at these closed sessions. Id. The motion has been fully briefed (Docs. 156, 158) and neither party has requested oral argument. For the reasons that follow, the Court will grant the motion in part and deny it in part.

         I. Background.

         In August 2003, Vi-ikam Doag Industries, Inc. (“VDI”), an economic development corporation chartered by the Nation, purchased a plot of unincorporated land within the outer boundaries of Glendale, Arizona (the “Glendale Property”). VDI subsequently transferred the land to the Nation, which had the land taken into trust by the Department of the Interior in 2010. The Nation announced plans to conduct casino-style gaming on the property, an announcement that resulted in a protracted legal battle with the State of Arizona and other entities.

         The Nation has successfully argued before this Court and the Ninth Circuit that the 2003 gaming compact it entered with the State (the “Compact”) does not prohibit gaming on the Glendale Property. See Arizona v. Tohono O’odham Nation, 944 F.Supp.2d 748 (D. Ariz. 2013), aff’d, 818 F.3d 549 (9th Cir. 2016). The Director, who must issue certifications with respect to certain aspects of gaming in Arizona, has refused to certify casino-style gaming on the Nation’s property, claiming that the Nation procured the Compact by fraud. The Nation brought this action to bar the Director from refusing certifications, and the Director asserted counterclaims alleging that the Nation publicly represented that the Compact would prohibit new casinos in the Phoenix metropolitan area, while secretly planning to acquire property in the western part of that area for the purpose of opening just such a casino.

         The Director seeks to compel discovery of certain documents related to closed sessions of the TON Council and the SLD Council that occurred around the time the Compact was finalized. The documents are:

(1) Typed minutes, authored by the SLD Council Secretary on June 18, 2002, regarding “Closed Session on West Valley Property”;
(2) Handwritten notes, authored by a member of the Nation’s Commerce Committee on August 29, 2002, regarding “TON legislative council session addressing the San Lucy District Land Proposal”;
(3) Typed agenda and handwritten notes, authored by the SLD Council Secretary on December 29, 2002, regarding “Closed Council Session on the West Valley Project”;
(4) Typed minutes, authored by the SLD Council Secretary on February 27, 2003, regarding “Closed Council Session VDI Report”;
(5) Handwritten notes, authored by an unknown individual on February 27, 2003, regarding SLD “Closed Council Session on Phoenix Property”;
(6) Typed agenda, minutes, and handwritten notes, authored by the SLD Council Secretary on March 4, 2003, regarding “Closed Council Session -Report from VDI to Council”;
(7) Handwritten notes, authored by an unknown individual on March 13, 2003, regarding “Report from VDI to [SLD] Closed Council Session”;
(8) Handwritten notes, authored by an unknown individual on July 13, 2003, regarding “Special [SLD] Council Meeting re Chairwoman Saunders’ Response to District’s Position”.

Doc. 153 at 4-5.[1]

         In addition, the Director seeks an order barring the Nation’s witnesses from invoking the legislative privilege to avoid answering certain questions that may implicate discussions held in a closed legislative session. Id. at 2. Specifically, the Director seeks to ask the Nation’s witnesses about:

• The location(s) where the Nation intended to build a fourth casino before Proposition 202;
• The identities of those involved in the decision to purchase the Glendale property;
• The dates on which witnesses first learned of the plan to purchase the Glendale property;
• The Nation’s intentions for the Glendale property before and after it was purchased;
• The dates on which witnesses first learned of the plan to conduct Class III gaming on the ...

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