case 2:14-cv-01939-tln-ckd document 17-1 filed · pdf file2016-02-17 · ps and as...

1 KAMALA D. HARRIS Attorney General of California

2 SARAJ. DRAKE Senior Assistant Attorney General

3 JAMES G. W AIAN, State Bar No. 152084 Deputy Attorney General

4 NEIL D. HOUSTON, State Bar No. 168058 Deputy Attorney General

5 1300 I Street, Suite 125 P.O. Box 944255

6 Sacramento, CA 94244-2550 Telephone: (916) 322-5476

7 Fax: (916) 327-2319 E-mail: [email protected]

8 Attorneys for Defendant, State ofCalifornia

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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14 THE ESTOM YUMEKA MAIDU TRIBE OF THE ENTERPRISE RANCHERIA,

2: 14-cv-0 193 9-TLN -CKD

15 CALIFORNIA,

v.

STATE OF CALIFORNIA,

Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE OF CALIFORNIA'S CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS

Date: Time:

Defendant. Dept: Judge: Trial Date:

April 9, 2015 2:00p.m. 2 The Honorable Troy L. Nunley None Set

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------------------------------~ Action Filed: 8/20/2014

Ps and As in Support of State of California's Cross-Motion for Judgment on the Pleadings (2:14-cv-01939-TLN-CKD)

Case 2:14-cv-01939-TLN-CKD Document 17-1 Filed 02/12/15 of 14

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TABLE OF CONTENTS

Page

Introduction ..................................................................................................................................... 1

Statement of Facts ...................................................................................................... ; .................... 2

Argument ........................................................................................................................................ 3

I. Because the Governor discharged his duty to negotiate and conclude ·a compact with the Tribe, there is no basis for a bad faith finding against the State under IGRA .............................................. , .......................................... : ..... : ..... 3

A.

B.

c.

The NLRA cases cited in the Tribe's motion do not support its claims under IGRA ...................................................................................... 5

The fact that the Enterprise compact expired before ratification by the Legislature reflects the terms of the compact, not bad faith under IGRA ................................................................................................. 7

Enterprise has a remedy under IGRA ......................................................... 8

II. This action is ba,rred by the State's eleventh amendment immunity ...................... 9

A. The waiver of State sovereign immunity does not extend to Enterprise's claims ...................................................................................... 9

Conctusion .................................................................................................................................... 1 0



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TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal 556 U.S. 662 (2009) ..................................................................................................................... 3

Chalk Metal Co. 197 N.L.R.B. 1133 (1972) ......................................................................................................... 7

Erickson v. Boston Scientific Corp. 846 F.Supp.2d 1085 (C.D. Cal. 2011) ....................................................................................... 3

Fleming v. Pickard 581 F.3d 922 (9th Cir. 2009) ..................................................................................................... 3

In re Indian Gaming Related Cases 331 F.3d 1094 (9th Cir. 2003) ................................................................................................... 6

In re Indian Gaming Related Cases v. California 147 F. Supp. 2d 1011 (N.D. Cal. 2001), aff'd, 331 F.3d 1094 (9th Cir. 2003) ................. 2, 5, 6

NL.R.B. v. Alva Allen Industries, Inc. 369 F.2d 310 (8th Cir. 1966): .................................................................................................... 8

NL.R.B. v. Clegg 304 F.2d 168 (8th Cir. 1962) ..................................................................................................... 8

18 . NL.R.B. v. Crockett-Bradley, Inc. 598 F.2d 971 (5th Cir. 1979) ..................................................................................................... 8

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National Management Consultants, Inc. 1993 NLRB LEXIS 654, aff'd313 N.L.R.B. 405 (1993) ......................................................... 7

National Management Consultants, Inc. 313 N.L.R.B. 405 (1?93) ....................................... .' .................................................................. 7

Printz v. United States 521 U.S. 898 (1997) ............................................................ · ...................................................... 6

Pueblo of Santa Ana v. Kelly 25 104 F.3d 1546 (lOth Cir.1997) .................................................................................................. 4

26 · Rincon Band of Luiseno Indians v. Schwarzenegger

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602 FJd 1019 (9th Cir. 2010) ................................................................................................... 2

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Ps and As in Support of State of California's Cross-Motion for Judgment on the Pleadings (2: 14-cv-01939-TLN-CKD)


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TABLE OF AUTHORITIES (continued)

Rumsey Indian Rancheria of Wintun Indians v. Wilson 64 F.3d 1250 (9th Cir.1994), amended by 99 F.3d 321 (9th Cir. 1996) ................................... 1

Seminole Tribe of Florida v. Florida 51 7 u.s. 44 ( 1996) """ ""."."""" """""""" "" ".""" """ ". "" "."""""" """".". """"""" "."" 8' 9

STATUTES

25 United States Code § 2701, et seq ............................................................................................................................ 1 § 2702 .. ·, ............ " ........ " .. " .... "" ........... , .... " .. " .. " ... " ......... ; .: ............ "."." ..... " .... " .. "" ..... " .. "" .. 1 § 271 0( d)( 1 )(C) ......................................................................................................................... 1 § 271 0( d)(3 )(A) ................................................................................................................. 1, 6, ·9 § 2710(d)(3)(B) .......................................................................................................................... 8 § 2710(d)(3)(C) ......................................................................................................................... 3 § 271 O(d)(7)(A)(i) ......................................................................................................... 3, 6, 8, 9 § 271 0( d)(7)(B)(ii) ....................................................................... · .............................................. 9 § 271 0( d)(7)(B)(ii)(I-II) ............................................................................................................ 8 § 271 0( d)(7)(B)(iii)-(vii) ........................................................................................................... 9 § 271 0( d)(7)(B)(iii) et seq ......................................................................................................... 7

29 United States Code § § 151-169 .................................................................................................. 4

California Goverrunent Code § 12012.5(d) ............................... · ................................................................................................ 4 § 120 12.25( d) .. "" ... "" .... " ...... "" ... """"" ...... " ........... " .. "" ..... "" ............. "";" ............ "".". 10, 4 § 120 12.25( e) ......... · ................................................................................................................... 4 § 98005 ................................................................................................................................ 9, 10

CONSTITUTIONAL PROVISIONS

California Constitution, Article IV,§ 19(f) ..................... ~: .................................................... passim

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1 INTRODUCTION

2 Under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq. (IGRA), Congress

3 created a statutory framework for the operation and regulation of gaming by Indian tribes. Id.

4 § 2702. IGRA provides that Indian tribes may conduct certain gaming activities only if

5 authorized pursuant to a valid compact between the tribe and the state in which the gaming

6 activities are located. See id. § 271 0( d)(l )(C). If a tribe requests that a state negotiate over .

7 . gaming activities that are permitted within that state, the state must negotiate in good faith toward

8 the formation of a compact that governs the proposed gaming activities. See id. § 2710(d)(3)(A);

9 Rumsey Indian Rancheria ofWintun Indians v. Wilson, 64 F.3d 1250, 1256-58 (9th Cir.1994),

10 amended by 99 F.3d 321 (9th Cir. 1996). Tribes may bring suit in federal court against a state

11 that fails to negotiate in good faith to compel performance of that duty.

12 In California, the job of negotiating and concluding compacts is constitutionally delegated

13 to the Governor, while the Legislature's role is to exercise the power ofratification of any

14 compact that the Governor has negotiated. Cal. Const. art. IV, § 19(f) ("[T]he Governor is

15 authOrized to negotiate and conclude compacts, subject to ratification by the Legislature.").

16 On August 30, 2012, after months of negotiations, Governor Edmund G. Brown Jr.

17 (Governor) and the Estom Yumeka Maidu Tribe of the Enterprise Rancheria (Enterprise or Tribe)

18 concluded a Tribal-State class III gaming compact (Enterprise Compact). Although the Governor

19 timely submitted the Enterprise Compact to the California Legislature for ratification, the

20 Legislature did not act on his request and the compact eventually expired by its own terms.

21 On these facts, which are not disputed, the Tribe alleges that the "State of California"

22 negotiated in bad faith. This case ultimately presents an issue of first impression-:-- whether

23 IGRA's "good faith" requirement extends not only to the Governor's negotiations towards

24 conclusion of a compact, but also to the Legislative ratification process. Because ICiRA' s "good

25 faith" requirement extends only to compact negotiations, and the Governor has discharged his

26 duty under the California Constitution to "negotiate and conclude" a compact with Enterprise,

27 and did so in a manner consistent with IGRA's "good faith" requirement, the Complaint fails to

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1 state facts sufficient to constitute a claim upon which relief may be granted, and the State's

2 motion for judgment on the pleadings should be granted.

3 STATEMENT OF FACTS

4 The determination under IGRA of whether a state has negotiated in good faith to conclude a

5 class III gaming compact is evaluated objectively based on the official record of the negotiations.

6 See Rincon Band ofLuiseno Indians v. Schwarzenegger, 602 F.3d 1019, 1041 (9th Cir. 2010); In

7 re Indian Gaming Related Cases v. California, 147 F. Supp. 2d 1011, 1015 (N.D. Cal. 2001),

8 aff'd, 331 F .3d 1094 (9th Cir. 2003).

9 Enterprise has alleged no acts of bad faith during the Governor's negotiations with the

10 Tribe over the Enterprise Compact. Instead, the Tribe's allegations ofbad faith relate to the

11 inaction ofthe.Legislature after the negotiations were completed and the Enterprise Compact was

12 signed and transmitted to the Legislature for ratification. These allegations are outside the official

13 record of gubernatorial negotiations and should not be considered by the Court in determining

14 whether the State negotiated in good faith with the Tribe for a class III gaming compact.

15 The Tribe's allegations concerning the negotiations that led to the Enterprise Compact are

16 contained in paragraphs 40 through 48 of the Complaint. 1 In material part, Enterprise alleges that

17 "[n]egotiation of a compact ... began in earnest in the final days of August 2012'' (Complaint,

18 ~ 41), and the Compact was finalized and signed on August 30, 2012 (Complaint,~ 48). The

19 Enterprise Compact was transmitted by the Governor's Office to the California Legislature . .

20 shortly after it was signed by the parties. (Complaint,~ 49.) The Complaint does not allege that

21 anything that occurred during the negotiation of the Enterprise Compact between the Governor

22 and the Tribe constituted bad faith on the part of the State. (See Complaint,~~ 40-48.) The

23 Complaint alleges instead that the Legislature's subsequent failure to consider or ratify the

24 Enterprise Compact, as well as the Enterprise Compact's expiration by its own terms on July 1,

25 2014, evinces bad faith. (See Complaint,~~ 50-53.)

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1 These paragraphs also refer to the State's initial rejection of Enterprise's requests to negotiate in 2000 and 2004 (Complaint,~ 40), but these matters are not at issue in this action.

2 Ps and As in Support of State of California's Cross-Motion for

Judgment on the Pleadings (2:14-cv-01939-TLN-CKD)


1 ARGUMENT

2 Judgment on the pleadings is appropriate when, even if all material facts in the pleading

3 under attack are true, the moving party is entitled to judgment as a matter of law. Fleming v.

4 Pickard, 581 F.3d 922, 925 (9th Cir. 2009). "Rule 12(c) is 'functionally identical to Rule

5 12(b)(6)." Erickson v. Boston Scientific Corp. 846 F.Supp.2d 1085, 1089 (C.D. Cal. 2011) (citing

6 text). The court must assume the truthfulness of the material facts alleged in the complaint. All

7 inferences reasonably drawn from these facts must be construed in favor of the responding party.

8 Fleming v. Pickard, 581 F.3d at 925. However, courts are not bound to accept as true allegations

9 that are legal conclusions, even if cast in the form of factual allegations. See Ashcroft v. [qbal,

10 556 u.s. 662, 681 (2009).

· 11 I.

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BECAUSE THE GOVERNOR DISCHARGED HIS DUTY TO NEGOTIATE AND CONCLUDE A COMPACT WITH THE TRIBE, THERE IS No BASIS FOR A BAD FAITH FINDING AGAINST THE STATE UNDER IGRA.

13 (State's Affirmative Defenses I, III, V, VI)

14 Enterprise's claims are brought under 25 U.S.C. § 2710(d)(7)(A)(i). (Complaint,~ 1.) This

15 provision extends federal court jurisdiction to any cause of action "arising from the failure of a

16 State to enter into negotiations with [an] Indian tribe ... or to conduct such negotiations in good

17 faith." 25 U.S.C. § 2710(d)(7)(A)(i). Enterprise's bad faith claim is based entirely on the manner

18 in which the Legislature discharged its duty of ratification of the Enterprise Compact, not on any

19 failure of the Governor to negotiate. No bad faith claim lies under IGRA on these facts.

20 The Enterprise Compact was transmitted to the Legislature after it was concluded by the

21 Tribe and the Governor, but the Legislature took no action to ratify it before the Compact expired

22 by its own terms. (See Complaint,~~ 49-53.) Enterprise contends that if the Legislature was

23 unwilling to ratify the Enterprise Compact, it was required to "articulate a ... permissible

24 rationale set forth under 25 U.S.C. § 2710(d)(3)(C)" for not doing so (Complaint,~ 51), convey

25 new proposed compact terms to the Governor (Complaint, ~52), or ask the Governor to

26 renegotiate its provisions (Complaint,~ 54). Enterprise further contends that "the entity with

27 authority to ratify an agreement-in this case, the Legislature-[ must] either do so or convey its

28 objection to the negotiating parties so that an agreement can be reached." (Complaint,~ 60.) 3

Ps and As in Support of State of California's Cross-Motion for Judgment on the Pleadings (2:14-cv-01939-TLN-CK.D)


1 Enterprise concludes with the allegation that "the State has not negotiated at all with the Tribe

2 since the Compact was transmitted to the Legislature .... " (Complaint,~ 61.)

3 Enterprise's allegations concerning the Legislature's duty to participate in the negotiation

4 of a compact are rooted not in IGRA, but instead are imported from labor cases decided under the

5 National Labor Relations Act, 29 U.S.C. §§ 151-169, (NRLA), which cases are inapplicable to

6 the present circumstances. Likewise, Enterprise's arguments about the Legislature's role with

7 respect to tribal-state gaming compacts find no legal support.

8 As a preliminary matter, nothing in IGRA specifies, or limits, the internal procedures a state

9 may adopt for negotiating and concluding compacts? In California, the specific legal and

10 political procedures that apply to such compacts are found in article IV, section 19(f) of the

11 California Constitution, which delegates to the Governor the power to negotiate and conclude

12 compacts with federally recognized California tribes for class III gaming. The Legislature,

13 meanwhile, is given the power to ratify compacts after negotiation and signature by the parties.

14 !d.

15 California's broad authorization oftribal class III gaming3 is predicated uponthe check and

· 16 balance provided by the distinct roles of the executive and legislative branches with respect to

17 entering into tribal-state class III gaming compacts. This division of state power, which is

. 18 permissible under IGRA, is a fundamental aspect of California's state sovereignty.4

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2 "Congress intended that state law determine the procedure for executing valid gaming compacts." Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1533 (lOth Cir.1997), quoting Pueblo of Santa Ana v. Kelly, 932 F.Supp. 1284, 1294 (D.N.M. 1996).

3 The primary forms of tribal class III gaming are slot machines and banking and percentage card games.

4 This separation of powers between the Governor and the Legislature ~s further articulated by statute. The California Government Code provides: "[t]he Governor is the designated state officer responsible for negotiating and executing, on behalf of the state, tribalstate gaming compacts with federally recognized Indian tribes ... pursuant to [IGRA] ... for the purpose of authorizing class III gaming ... on Indian lands." (Cal. Gov't Code§§ 12012.5(d), 12012.25(d).) The California Government Code also provides: "[f]ollowing completion of negotiations ... the Governor shall submit a copy of any executed tribal-state compact to both houses of the Legislature for ratification." (!d. § 12012.25(e).) Therefore, under both California constitutional and statutory law, only the Governor is authorized to negotiate tribal-state class III gaming compacts in California.




1 In order for the Tribe to prevail in this case, the Court would have to find that the

· 2 Legislature's failure to take any action to ratify the Enterprise Compact constituted bad faith

3 negotiations under IGRA. Enterprise asks this Court to interpret IGRA to require that the state

4 Legislature convey "new proposed compact terms" (Complaint, ~ 52), and "convey its objections

5 to the negotiating parties" (Complaint,~ 60), both of which would impermissibly require the

6 Legislature to involve itself in the negotiation of a tribal-state compact, which falls under the

7 Governor's exclusive province under California's constitution. Because IGRA does not require

8 states to alter their constitutionally-based ratification procedures, there is no legal support or

9 precedent for this request, and the Complaint fails to state facts sufficient to constitute a claim

10 upon which relief may be granted, and the State's motion for judgment on the pleadings should be

11 granted.

12 A. The NLRA Cases Cited in the Tribe's Motion Do Not Support its Claims UnderiGRA. ·

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14 Enterprise cites several N.L.R.B. cases to support its argument that the Legislature has a •.

· 15 role as negotiator under IGRA. But the Tribe's NLRA analogy is inapt because the dispute

16 framed by Enterprise relates to ratification, not negotiation. Although NLRA cases have

· 17 previously been cited by courts in some IGRA cases, it has been in the context of analyzing

18 negotiati~n practices between a tribe and the Governor. NLRA cases have never been relied upon

19 to impose duties on the Legislature, as Enterprise urges.

20 Moreover, the NLRA cases have not been embraced by other courts in the Ninth Circuit to .

21 the extent the Tribe argues. "The Court does not intend to import federal case law interpreting

22 the NLRA wholesale into its interpretation oftheiGRA. Obviously, the relationship of

23 employers to unions is not analogous to that of the State to tribes." In re Indian Gaming Related

24 Cases v. California, 14 7 F. Supp. 2d at 1021. Nonetheless, the Tribe argues that three specific

25 NLRA-derived negotiation obligations should apply to the Legislature in this case: 1) that it

26 constitutes IGRA bad faith when an entity with ultimate approval authority (the Legislature) is

27 not present at the negotiations but then refuses to approve a negotiated compact; 2) that NLRA

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compact negotiations; and 3) that an obligation to make counterproposals imposed under the

NLRA also applies in IGRA compact negotiations. Applying these principles to the Legislature I

in this context is inappropriate because, under the NLRA, they relate to the conduct of a party

with a statutory obligation to negotiate. Here, the Legislature lacks both an obligation and the

authority to negotiate compacts.

The Tribe's first argument fails because the Legislature, though given the authority to

review and ratify gaming compacts, is constrained by its constitutional and statutory authority,

and is not authorized to negotiate as a corporate board might be. The standard proposed by the

tribe would effectively eliminate the Legislature's ability to decline to ratify a compact.

Curtailing the Legislature's role under article IV, section 19(±) ofthe California Constitution

would invade a fundamental aspect of the State's sovereignty and would be inconsistent with

Congress's assumed intent to comply with the Tenth Amendment to the United States

Constitution when it enacted IGRA. See Printz v. United States, 521 U.S. 898, 925 (1997) ("the

Federal Government may not compel the States to implement, by legislation or executive action,

federal regulatory programs.")

There also is no basis for importing a labor negotiation timeline into IGRA. IGRA contains

no deadline for the completion of negotiations under 25 U.S.C. § 2710(d)(3)(A).5 See In re

Indian Gaming Related Cases, 147 F. Supp. 2d at 1015 ("IGRA does not specify the time period

that should be evaluated in determining whether a State negotiated in good faith."). Moreover, '

the Ninth Circuit has held that delay in the compact negotiation process does not, by itself,

constitute bad faith. In re Indian Gaming Related Cases, 331 F.3d at 1109-10. In this case,. the

Tribe has not alleged delay or any other dilatory tactic by the State in the negotiation process that

could be construed as bad-faith negotiation-the Tribe instead alleges delay in the process to

ratify a compact, which is not actionable under IGRA.

5 The only time period applicable to bad-faith negotiation claims under IGRA is the 180-day waitingperiod after negotiations have been requested before a tribe may initiate a cause of action under 25 U.S.C. § 2710(d)(7)(A)(i), i.e., .an action arising from the state's failure to enter into negotiations, or from a state's failure to conduct such negotiations in good faith. Under IGRA's plain meaning, the 180-day period is not a deadline by which negotiations, if started and conducted in good faith, must be completed.


Judgment on the Pleadings (2: 14-cv-0 1939-TLN-CKD)


1 Finally, the Legislature also cannot make counterproposals at the ratification stage. Article

2 IV, section 19(f) only speaks of"ratification." The Tribe's "counterproposal" requirement

3 derives from specific sections ofthe NLRA, as demonstrated by a full quotation from the

4 referenced authority: "[i]t needs no argument to support the conclusion that this failure and

5 refusal by Selvin to submit counterproposals completely frustrated further bargaining and

6 amounted to a clear rejection of the collective-bargaining duty spelled out in Section 8(a)(5) and

7 (d) of the Act." Chalk Metal Co., 197 N.L.R.B. 1133, 1147 (1972) (emphasis added). Similarly,

8 the purported counterproposal obligation arising from National Management Consultants, Inc.,

9 313 N.L.R.B. 405, 408 (1993), stems from "Section 8(a)(l) and (5) of the Act."6 Specific

10 negotiation requirements applicable to private party actors under the NLRA cannot be imposed

11 upon the Legislature to create extra-constitutional duties.

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B. The Fact that the Enterprise Compact Expired Before Ratification by the Legislature Reflects the Terms of the Compact, Not Bad Faith Under IGRA.

14 By this action, the Tribe asks the Court to expand the concept of good faith negotiations

15 under IGRA to include acts of the Legislature, the body charged under California law with

16 ratifying compacts, to justify imposition of the bad faith remedies provided under 25 U.S. C.

17 § 2710(d)(7)(B)(iii) et seq. There is no precedent to support such relief.

18 The Tribe asserts that the Legislature's failure to ratify the Enterprise Compact before it

19 expired last year "violates the basic tenets of good-faith negotiation." (Motion, p. 17.) As the .

20 Tribe concedes in its Complaint, the Governor negotiated with Enterprise in good faith, and the

21 parties' concluded a compact on August 30, 2012. While it is true that the Legislature took no

22 action to ratify the compact and it eventually expired by its own terms in July 2014 (Complaint,

23 ~ 47), this is not evidence ofbad faith within the meaning ofiGRA because it took place after the

24 State, acting through the Governor, had discharged its duty to negotiate in good faith.

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6 The term "counterproposal" does not appear in the cited case, and the language quoted by the Tribe actually appears in National Management Consultants, Inc., 1993 NLRB LEXIS 654 (June 16,1993), aff'd and modified by 313 N.L.R.B. 405 (1993), an unofficially reported case.




1 The structure ofiGRA recognizes that a state and tribe may fail to achieve a final,

2 enforceable compact for reasons other than the state's bad faith, e.g., non-ratification of a

3 negotiated compact by a legislature, failure to obtain the approval ofthe Secretary of the Interior

4 (see 25 U.S.C. § 2710(d)(3)(B)), or a legitimate impasse arrived at through good faith

5 negotiations. Recognition of this possibility is evident in the dual showing a tribe must make in

6 order to pursue an action against a state under 25 U.S.C. § 2710(d)(7)(A)(i). A tribe must show

7 that a tribal-state compact has not been entered into, and that the state did not respond to the

8 request of the Indian tribe to negotiate such a compact, or did not respond to such request in good

9 faith. 25 U.S.C. § 2710(d)(7)(B)(ii)(I-II); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 50

10 (1996). Only upon such a showing does the burden shift to the state to show that it acted in good

11 faith,· and then, if the court determines the state in fact did not negotiate in good faith, the court

12 must order a compact to be entered into within sixty days. 7 Seminole Tribe of Florida v. Florida,

13 517 U.S. at 50. To the extent this Court looks to NLRA cases for guidance concerning the

14 meaning of"good faith," NLRA cases also make it clear that the mere fact that parties have not

15 reached agreement is not an indication of bad faith. NL.R.B. v. Alva Allen Industries, Inc., 369

16 F .2d 310, 318 (8th Cir. 1966) (the "mere inability to reach an agreement in no way indicates a

17 failure to bargain in good faith"); see also NL.R.B. v. Clegg, 304 F .2d 168, 176 (8th Cir. 1962);

18 N.L.R.B. v. Crockett-Bradley, Inc., 598 F.2d 971, 976 (5th Cir. 1979). Accordingly, IGRA does

19 not guarantee a tribe a class III gaming compact. IGRA guarantees only that a state must

20 negotiate in good faith with a tribe when requested to do so. The fact that the Compact expired

21 on its own terms prior to ratification is, by itself, simply not relevant to evaluating a claim ofbad

22 faith under IGRA. As demonstrated above, the Governor, acting on behalf of the State, fulfilled

23 his duty to negotiate in good faith here.

24 C. Enterprise Has a Remedy Under IGRA.

25 When a negotiated compact fails for a reason unrelated to negotiations, 25 U.S.C.

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7 Compelled negotiation is the first step in IGRA's remedies for a state's refusal to negotiate or bad faith in negotiation.




1 § 2710(d)(3)(A) provides the remedy-the tribe may, once again, request that the state enter into

2 negotiations for a tribal-state class III gaming compact. The state must do so, and do so in good

3 faith, or the tribe may then have a valid claim under 25 U.S.C. § 271 0( d)(7)(A)(i), and may be

4 able to make the showing required under 25 U.S.C. § 2710(d)(7)(B)(ii), and obtain IGRA's bad

5 faith remedies (see 25 U.S.C. § 2710(d)(7)(B)(iii)-(vii)).

6 Although this path may delay the tribe's eventual remedy until the state has either refused

7 to negotiate, or has done so in bad faith, it is the result compelled by IGRA, and it may lead to a

8 successfully negotiated compact that will be ratified by the Legislature. Because IGRA's

9 statutory process has not been exhausted, this action is premature. For this, and all the foregoing

10 reasons, the Complaint fails to state facts sufficient to constitute a claim upon which relief may be

11 granted, and the State's motion for judgment on the pleadings should be granted.

12 II. THIS ACTION IS BARRED BY THE STATE'S ELEVENTH AMENDMENT IMMUNITY

13 (STATE'S AFFIRMATIVE DEFENSE IV)

14 A. The Waiver of State Sovereign Immunity Does Not Extend to Enterprise's Claims.

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16 In Seminole Tribe of Florida v. Florida, 517 U.S. 44, the United States Supreme Court

17 found that Congress was unable to abrogate state sovereign immunity from suit under the

18 Eleventh Amendment when it enacted IGRA. It held, therefore, that unless a state has waived its

19 immunity to suit brought by an Indian tribe alleging a violation of IGRA, a state may not be sued

20 in federal court for any such violation.

21 The waiver of the State's Eleventh Amendment immunity from suit in federal court

22 contained in California Government Code section 98005 is, with relevance to this case, limited to

23 "an action brought against the state by any federally recognized California Indian tribe asserting

24 any cause of acti0n arising from the state's refusal to enter into negotiations with that tribe for the

25 purpose of entering into a different Tribal-State compact pursuant to IGRA or to conduct those

26 negotiations in good faith . .. or the state's violation of the terms of any Tribal-State compact to

27 which the state is or may become a party." Cal. Gov't Code§ 98005 (emphasis added).

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Ps and As in Support of State of California's Cross-Motion for Judgment on the Pleadings (2: 14-cv-01939-TLN-CKD)


1 This waiver applies only to suits brought to enforce the obligation to enter into negotiations

2 or to negotiate in good faith for a compact. Under California law, only the Governor has the

3 authority to negotiate compacts. Cal. Const. art. IV,§ 19(±); Cal. Gov't Code§ 12012.25(d). The

4 waiver in Government Code section 98005 thus applies only to suits based on the Governor's

5 failure to either enter into negotiations, or failure to negotiate in good faith. There is no support

6 for the idea that the waiver extends to suits based on the Legislature's failure to ratify a compact.

7 Accordingly, either the Court lacks subject matter jurisdiction to adjudicate Enterprise's claims,

8 or, in the alternative, the Complaint fails to state facts sufficient to constitute a claim upon which

9 relief may be granted, and the State's motion for judgment on the pleadings should be granted.

10 CONCLUSION

11 For all the foregoing reasons, the State respectfully requests that the State's motion for

12 judgment on the pleadings be granted.

13 Dated: September 12, 2015

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Respectfully Submitted,

KAMALA D. HARRIS Attorney General of California SARA J. DRAKE Senior Assistant Attorney General JAMES G. WAIAN Deputy Attorney General

Is/NEIL D. HOUSTON

NEIL D. HOUSTON Deputy Attorney General Attorneys for Defendant State of California

Ps and As in Support of State of California's Cross-Motion for Judgment on the Pleadings (2:14-cv-01939-TLN-CK.D)


case 2:14-cv-01939-tln-ckd document 17-1 filed · pdf file2016-02-17 · ps and as...

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