The opinion
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ECONOMIC DEVELOPMENT )
AUTHORITY OF THE FORT SILL )
CHIRICAHUA WARM SPRINGS )
APACHE TRIBE, )
)
Plaintiff, )
v. )
) Case No. CIV-24-661-R
THE BUSINESS COMMITTEE OF )
THE FORT SILL CHIRICAHUA )
WARM SPRINGS APACHE TRIBE, )
et al., )
)
Defendants. )
ORDER
Before the Court is Plaintiff’s Motion for Temporary Restraining Order [Doc. No.
3] requesting that the Court enter a TRO without notice to the opposing party pursuant to
Federal Rule of Civil Procedure 65(b).1 Having reviewed Plaintiff’s request, the Court is
not persuaded that entry of a TRO on an ex parte basis is warranted.
Plaintiff is the Economic Development Authority of the Fort Sill Chiricahua Warm
Springs Apache Tribe, an entity established by the Tribe pursuant to the Tribe’s Economic
Development Code. The EDA engages in economic development activities for the benefit
of the Tribe and is governed by a Board of Trustees appointed by the Tribal Chairperson.
1 Plaintiff’s submitted an Amended Affidavit [Doc. No. 5] in support of its request for a
TRO. The Court therefore considers only the Amended Affidavit in determining whether a
TRO is warranted.
Defendants in this action are the Business Committee of the Fort Sill Chiricahua Warm
Springs Apache Tribe, the Tribe’s Chairperson, and the Business Committee’s members.
The Business Committee is the political arm of the Tribe that oversees the governmental
roles of the Tribe. According to the EDA, the Business Committee is engaged in a “coup”
and is seeking to seize control of the EDA’s activities and assets. More specifically, the
EDA asserts that the Business Committee held a series of secret meetings where it passed
three resolutions which purport to suspend all non-gaming activities of the EDA Trustees,
take control of the bank account and assets of the EDA, suspend an EDA Trustee without
due process, and limit the EDA’s authority over its employees. The EDA maintains that
these resolutions exceed the Business Committee’s authority under tribal law, violate due
process, violate the Indian Gaming Regulatory Act, and undermine principles of tribal self-
governance.
In support of their request for a TRO, Plaintiff identifies several harms that they
describe as immediate and irreparable, including the loss of control over their non-gaming
bank accounts and assets, interference with ongoing business operations and contracts,
potential violations of the IGRA that could expose the Tribe to enforcement actions and
closure of gaming operations, breach of a non-impairment agreement entered into between
the EDA and a lender that covers $45,000,000 in loans, damage to the EDA’s reputation
with business partners, and disruption of the EDA’s ability to fulfill its economic
development mission for the Tribe.
The granting of a TRO “is an extraordinary remedy” that requires the movant to
“demonstrate a clear and unequivocal right” to the relief requested. O Centro Espirita
Beneficiente Uniao Do Vegetal v. Duke, 286 F. Supp. 3d 1239, 1252 (D.N.M. 2017)
(quotation marks and citation omitted). To obtain a preliminary injunction, the movant
bears the burden of establishing four factors: “(1) a likelihood of success on the merits; (2)
a likelihood that the moving party will suffer irreparable harm if the injunction is not
granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary
injunction is in the public interest.” Republican Party of New Mexico v. King, 741 F.3d
1089, 1092 (10th Cir. 2013). Additionally, where, as here, the movant seeks a TRO without
notice to the opposing party, Rule 65(b) requires “specific facts in an affidavit or a verified
complaint” that “clearly show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in opposition.” An irreparable
injury is one that is “certain, great, actual and not theoretical.” Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal quotation marks and citations omitted).
Further, “the injury must be of such imminence that there is a clear and present need for
equitable relief to prevent irreparable harm.” Id. (internal quotation marks and citations
omitted). In this regard, “vague assurances” that an action “could” be taken or evidence
showing a “mere possibility” of harm are not sufficient. State v. U.S. Env't Prot. Agency,
989 F.3d 874, 886-87 (10th Cir. 2021).
Upon consideration of Plaintiff’s motion and amended affidavit, the Court is not
persuaded that Plaintiff has clearly shown that an immediate and irreparable injury will
occur before the adverse party can be heard in opposition. Although Plaintiff asserts that
the actions of the Business Committee have put the EDA’s gaming operations, reputation,
and financial obligations at risk, it has not included specific facts clearly showing that an
adverse action is imminent. The Court is prepared to schedule a prompt hearing to
determine whether any form of preliminary relief is appropriate. However, the scheduling
of a hearing will require compliance with the notice provisions of Rule 65(a).
Accordingly, Plaintiff's Motion for Temporary Restraining Order [Doc. No. 3] is
DENIED without prejudice.
IT IS SO ORDERED this 3" day of July, 2024.
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE