Wendell Long v. Snoqualmie Gaming Commission

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WENDELL LONG, an individual, ) No. 77007-1 -I

)

Appellant, ) DIVISION ONE

)

v. )

) PUBLISHED OPINION

SNOQUALMIE GAMING )

COMMISSION, a political subdivision )

of the Snoqualmie Indian Tribe, )

)

Respondent. ) FILED: February 25, 2019

_________________________________________________________________________________ )

LEACH, J. — Wendell Long appeals the superior court’s dismissal of his

lawsuit against the Snoqualmie Gaming Commission (Commission) for lack of

jurisdiction due to the Commission’s sovereign immunity and Long’s failure to

state a claim. Because the Commission has sovereign immunity and did not

waive it, we affirm.

FACTS

The Snoqualmie Indian Tribe (Tribe) is a federally recognized sovereign

Indian tribe. The Indian Gaming Regulatory Act requires that tribes enter into

gaming compacts with states to authorize class III (casino-style) gaming on tribal

lands.1 The Tribe entered into a gaming compact with Washington State.2 It

25 U.S.C. § 2710(d)(1)(C).

1

Tribal-State Compact for Class III Gaming Between the Snoqualmie

2

Indian Tribe and the State of Washington (2002 & amend. 2008).

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obligated the Tribe to establish an independent “Tribal Gaming Agency” to

regulate the gaming activities on tribal land.3 To satisfy this obligation the Tribe

adopted the Snoqualmie Tribe Tribal Gaming Act, which established the

Commission.4 The STTGA declares the Commission “independent of the Tribal

Council in all matters within the Commission’s purview.”5 It also provides the

Commission with “sovereign immunity from suit absent express consent from the

Tribal Council.”6

The compact gives the Commission the “primary responsibility for the on-

site regulation, control and security of the Gaming Operation authorized by [the]

Compact” and for its enforcement on Snoqualmie tribal lands.7 The Commission

must report “incident and investigation reports and final dispositions to the State

Gaming Agency.”8 The Commission has concurrent jurisdiction with the State

Gaming Agency to investigate compact violations and to bring administrative

charges against individuals or business entities licensed under the compact for

violation of tribal and state law.9

~ Tribal-State Compact § Vl(B).

~ Snoqualmie Tribe Tribal Gaming Act § 7.01, (2015) (STTGA),

http://www.snoqualmietribe. us/sites/default/files/gaming_act. pdf.

~ STTGA § 7.04.

6 STTGA § 7.02.

~ Tribal-State Compact § Vl(B).

8 Tribal-State Compact § Vl(F).

~ Tribal-State Compact § Vl(F).

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No. 77007-1 -I I 3

The Commission has the exclusive authority to issue, suspend, and

revoke gaming licenses for the Snoqualmie Casino’s employees, vendors, and

contractors.1°

On March 27, 2015, the Tribe hired Long as the chief executive officer of

the Snoqualmie Casino.11 The Tribe and Long signed a written agreement

stating the terms of Long’s employment. In this contract, Long warranted ‘that

there [were] no impediments to his . . . being licensed by the Snoqualmie Gaming

Commission for gaming purposes” and “to maintain [his] gaming license in good

standing.” Long applied to the Commission for this license and received it in May

2015.

The contract addressed the Tribe’s sovereign immunity:

Except as expressly provided herein, nothing in this Agreement

shall be deemed or construed as a waiver or limitation of the Tribe’s

inherent sovereign immunity from unconsented suit. The Tribe

hereby grants a limited waiver of sovereign immunity to Employee

for the express and limited purpose of adjudicating a dispute arising

out of the terms of this Agreement in the Snoqualmie Tribal Court.

Any such claim must be filed with the Tribal Court within one

hundred-twenty (120) days of the act or omission giving rise to the

claim. This waiver does not extend to nor allow for any award of

punitive or exemplary damages, or attorneys’ fees against the

Tribe.

10STTGA~ 7.03, §~ 9-11.

11 The Tribe is a federally recognized “Indian Entity.” Indian Entities

Recognized and Eligible To Receive Services from the United States Bureau of

Indian Affairs, 82 Fed. Reg. 4915, 4918 (Jan. 17, 2017).

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In October 2015, the Tribe fired Long. In December 2015, the Tribe sued

Long in King County Superior Court for breach of fiduciary duty, conversion, and

unjust enrichment. Long answered and counterclaimed.

On January 22, 2016, before the expiration of Long’s gaming license, the

Commission voted to suspend it pending a revocation hearing. Long sued the

Commission in tribal court to enjoin the revocation of his license. The

Commission asked the tribal court to dismiss this lawsuit for lack of subject

matter jurisdiction. It did.

After an administrative hearing, the Commission revoked Long’s license.

Long appealed this revocation to the Snoqualmie Tribal Court. In August 2016,

the tribal court found that the Commission’s decision was arbitrary and capricious

and remanded the case for further proceedings.12 In September 2016, the

Commission, on remand, affirmed its earlier decision and issued a final decision

revoking Long’s license. In response, Long filed a new complaint against the

Commission in tribal court.13

In January 2017, a settlement agreement ended the litigation in superior

court between Long and the Tribe started by the Tribe. The only parties to the

12 The court indicated that the Commission’s written decision revoking

Long’s license failed to sufficiently link the findings to the dishonesty and lack of

integrity the Commission claimed violated the gaming act.

13 The Commission states in its brief that on November 13, 2017, the tribal

court denied Long’s motion for summary judgment, granted the Commission’s

motion for summary judgment, and affirmed the Commission’s final decision to

revoke Long’s license. Our record does not contain this tribal court decision.

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No. 77007-1-I I 5

settlement agreement are Long and the Tribe. The agreement does not mention

the Commission. The agreement describes a single lawsuit, the one started by

the Tribe. The agreement makes no reference to either the proceedings

between Long and the Commission or Long’s gaming license. The Commission

and its counsel did not know about the settlement until January 11, 2017.

The settlement agreement states that Long and the Tribe waive all claims

against each other incurred before the agreement, including but not limited to

those upon which the suit was based.14 The agreement includes a limited waiver

of sovereign immunity: “The Tribe hereby expressly and unequivocally waives

any and all claim(s) of sovereign immunity for purposes of either Party seeking

relief in Washington State Superior Court, King County, as outlined in this

paragraph, for purposes of resolving any dispute arising under this Agreement.”

After the settlement, Long asked the Commission to rescind the

revocation of his gaming license. It refused. In January 2017, he sued the

14 Paragraph 5 states,

The Parties agree that the agreements herein are made entirely

for the purpose of a compromise and settlement of a litigated

dispute. Neither the consideration set forth herein, nor the

compromise and settlement of said dispute, nor anything

contained herein shall be construed to be an admission by any

Party of liability to any other Party or to any other person or entity,

nor shall it be construed to create any rights or interests in third

persons or entities. The Parties agree and acknowledge that the

fact of this settlement may not be used by any Party to prove or

establish liability in any other action or proceeding of any kind

whatsoever.

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Commission in superior court, contending that the Commission violated the terms

of the settlement agreement by refusing to rescind the revocation of his gaming

license. Long submitted a number of discovery requests to the Commission.

The Commission asked the superior court to dismiss the lawsuit for lack of

subject matter jurisdiction due to its sovereign immunity and to stay discovery

pending resolution of its dismissal request. The superior court granted the

Commission’s request to stay discovery. Later, the superior court dismissed

Long’s lawsuit.. It included the following statement in its order: “[T]he Court

notes that if the Commission is deemed a party to the [s]ettlement as Plaintiff

asserts and his license was revoked prior to the [s]ettlement, Plaintiff appears to

have released his ‘claim’ for license reinstatement by virtue of the [s]ettlement

agreement.” The superior court denied Long’s motion for reconsideration. Long

appeals.

STANDARD OF REVIEW

We review the superior court’s dismissal of a claim under CR 12(b)(1) or

CR 12(b)(6) de novo. 15 Once a defendant requests dismissal under CR 12(b)(1)

on the basis of sovereign immunity, the party asserting jurisdiction has the

burden of proving the other party has no immunity or waived it.16

15 Wright v. Colville Tribal Enter. Corp., 159 Wn.2d 108, 111, 147 P.3d

1275 (2006); Outsource Servs. Mgmt. LLC v. Nooksack Bus. Corp., 172 Wn.

App. 799, 807-08, 292 P.3d 147 (2013).

16 Outsource Servs. Mgmt. LLC, 172 Wn. App. at 807.

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No. 77007-1 -I I 7

We review a superior court’s reconsideration decisions and orders to stay

proceedings for abuse of discretion.17 A court abuses its discretion when it

bases its decision on untenable grounds or reasons.18

ANALYSIS

Long claims that the tribal council waived the Commission’s sovereign

immunity. He also claims the court should have granted his motion for

reconsideration. Finally, he contends the court abused its discretion by staying

discovery pending disposition of the Commission’s dismissal request. Long fails

to establish that the tribal council waived the Commission’s immunity. Since the

superior court properly dismissed the case, we decline to review his other

assertions.

Lack of Jurisdiction Due to Sovereign Immunity

The parties agree that the Commission has sovereign immunity. But Long

asserts that his settlement agreement with the Tribe waived the Commission’s

immunity for its licensing decisions. Long supports his position with two

arguments. First, he claims any waiver of sovereign immunity by the Tribe

waives that immunity for its agencies. Second, he asserts that the agreement’s

17 King v. Olympic Pipeline Co., 104 Wn. App. 338, 348, 16 P.3d 45

(2000); Kohfeld v. United Pac. Ins. Co., 85 Wn. App. 34, 40, 931 P.2d. 911

(1997).

18 Olympic Pipeline Co., 104 Wn. App. at 348.

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No. 77007-1-I I 8

waiver provision unambiguously includes the Commission. We find both

arguments unpersuasive.

Federally recognized Indian tribes are “separate sovereigns pre-existing

the Constitution.”19 These tribes have common law sovereign immunity as “a

necessary corollary to Indian sovereignty and self-governance.”20 This immunity

extends to a tribe’s agencies and instrumentalities.21 Washington courts must

and do apply federal law to resolve whether tribal sovereign immunity applies.22

So, contrary to Long’s assertions, a settlement agreement provision requiring

that it be interpreted in accordance with the substantive law of Washington State

does not change the law this court applies to resolve the immunity issue.

Absent a tribe’s express waiver of immunity or congressional abrogation,

that tribe may not be sued in state or federal court.23 In either event, any waiver

19 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S. Ct. 1670, 56 L.

Ed. 2d 106 (1978).

20 Three Affil. Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S.

877, 890, 106 S. Ct. 2305, 90 L. Ed. 2d. 881 (1986); see also, Foxworthy v.

Puyallup Tribe of Indians Ass’n, 141 Wn. App 221, 225-26, 169 P.3d 53 (2007);

Wright, 159 Wn.2d at 112 (citing Santa Clara Pueblo, 436 U.S. at 59).

21 Kiowa Tribe of OkIa. v. Mfg. Techs., Inc., 523 U.S. 751, 757-58, 118 S.

Ct. 1700, 140 L. Ed. 2d 981 (1998) (citing Mescalero Apache Tribe v. Jones, 411

U.S. 145, 93 5. Ct. 1267, 36 L. Ed. 2d 114 (1973)); Wright, 159 Wn. 2d at 112.

22 Auto. United Trades Org. v. State, 175 Wn.2d. 214, 226, 285 P.3d 52

(2012) (citing Kiowa Tribe of OkIa., 523 U.S. at 754).

23 Auto. United Trades Org., 175 Wn.2d at 226 (citing Kiowa Tribe of

OkIa., 523 U.S. at 754).

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No. 77007-1 -l I 9

“must be unequivocally expressed” and cannot be implied.24 A tribe can limit the

extent of its waiver to a particular claim, a particular forum, or a particular party.25

The Commission suggests that federal common law requires a court to

interpret any claimed immunity waiver “liberally in favor of the Tribe and

restrictively against the claimant.” We do not address this claim because Long’s

argument fails without application of this broad rule of construction.

The Tribe’s constitution gives the tribal council the exclusive authority to

waive sovereign immunity and requires that any waiver be express and

unambiguous.26 Consistent with its constitution, the Tribe’s Judiciary Act states

that “all Tribal agencies shall be immune from suit for any acts or omissions done

during the performance of Tribal duties” and gives the tribal council exclusive

authority to waive immunity for any of these bodies.27

The STTGA, which created the Commission, includes one “limited,

irrevocable waiver of sovereign immunity” for disputes between patrons and

casino staff.28 The STTGA states that “nothing in [it] shall be construed as a

waiver of the sovereign immunity of the Commission, Tribe, or any other

governmental subdivision or economic enterprise of the Tribe.”29 Again,

24 Santa Clara Pueblo, 436 U.S. at 58 (internal quotation marks omitted).

25Auto. United Trades Org., 175 Wn.2d at 227.

26 SNOQUALMIE TRIBE CONST. art. 1, § 3.

27 Snoqualmie Tribe Judiciary Act § 10.

28 STTGA § 12.06(B).

29 STTGA § 15.

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No. 77007-1 -l / 10

consistent with the tribe’s constitution, it states that any waiver of immunity for

the Commission is not effective unless approved by a resolution of the tribal

council.30

The Commission has hearing regulations. They include “an express and

limited waiver” of sovereign immunity for the sole purpose of an appeal of a final

tribal gaming license revocation to the tribal court.31 The regulations limit the

waiver to this forum and authorize the tribal court to decide whether a final

Commission decision revoking a tribal gaming license is “arbitrary and

capricious, or contains an error of law.”32 The regulations condition this waiver

on the tribal court conducting the appeal confidentially.33 It does not “extend to

any further appeal beyond the Tribal Court.”34 The regulations also limit the relief

available in the tribal court to an affirmation or a remand to the Commission for

further proceedings.35 Finally, the regulations conclude with this statement: “The

Commission explicitly does not waive its immunity from [among other things] suit

from matters collateral to the appealed decision [or] matters arising from the

same set of facts or controversy as the appealed decision.”36

30 STTGA § 15.

31 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10.

32 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(A)(6).

~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(A)(5).

~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(C).

~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(D).

36 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(E).

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No. 77007-1-I Ill

A. Coextensive Immunity

Long correctly notes that the STTGA states that the Commission

possesses “all of the rights, privileges, and immunities of the Tribe.” He asserts

that because the Tribe and the Commission have coextensive sovereign

immunity, any waiver of that immunity by the Tribe also waives the Commission’s

immunity. Since the Tribe waived immunity for some purposes in its settlement

agreement with Long, he contends that this waiver also waived the Commission’s

immunity. We disagree.

The Commission’s exclusive authority over gaming licenses and its

relationship to the Tribe and the Washington State Gambling Commission show

that any claimed waiver of its sovereign immunity must be analyzed

independently of the Tribe’s waiver. The STTGA adopted by the Tribe, the

Commission’s regulations, and Long’s employment contract all recognize the

unique and independent status of the Commission.

The STTGA establishes the Commission: “Establishment of the

Commission. The Tribe hereby establishes the Commission as an independent

governmental subdivision of the Tribe.”37 The STTGA also describes the scope

of the Commission’s independence: “Importance of Independence of

Commission. The Tribe recognizes the importance of an independent gaming

37STTGA § 7.01.

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No. 77007-1 -l /12

commission in maintaining a well-regulated Gaming Operation. The Commission

shall be independent of the Tribal Council in all matters within the Commission’s

purview.”38

Tribal council members are not eligible to serve on the Commission.39

The primary management officials and key employees of the Tribe’s gaming

operation must have a gaming license issued by the Commission.4° The

Commission has exclusive authority to deny, suspend, and revoke any tribal

gaming license.41 The tribal council does not have any authority to review the

Commission’s gaming license decisions.42

The Commission has the power to adopt regulations implementing the

STTGA and “generally to promulgate Regulations relating to gaming on the

Tribe’s Indian Lands.”43 While the Commission must provide notice of proposed

regulations to the tribal council and consider its comments, the Council does not

control the Commission’s rule- making power.44

The Commission’s regulations provide for a limited right of review by the

tribal court and a corresponding express and limited waiver of immunity:

38 STTGA § 7.04.

~ STTGA § 7.07(B)(1).

40 STTGA § 11.04.

41 STTGA § 7.08, .09.

42 STTGA § 7.04.

~ STTGA § 7.11(C).

~ STTGA § 7.11(C)(1)(b), (c).

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No. 77007-1-I / 13

Section 2.10 Appeals

The Commission hereby authorizes an express and limited

waiver of its immunity from suit for the sole purpose of an appeal to

the Snoqualmie Tribal Court only from a final decision to revoke a

tribal gaming license reached pursuant to these Regulations, which

waiver is subject further to the limitations set out in this Section

2.10. This limited waiver of immunity for the purposes of allowing

appeals of final revocation decisions to the Tribal Court shall be

construed narrowly, and any appeal outside the scope of this

Section 2.10 shall not be deemed to be within the scope of this

limited waiver.

(D) This limited waiver of sovereign immunity for

purposes of appeal is further limited to decisions by

the Tribal Court that would either affirm the

Commission’s or that remand to the Commission for

further proceedings. There is no waiver of the

Commission’s immunity to any claims for any other

kind of relief, including but not limited to damages,

injunctive relief, attorney fees, or any other relief.

(E) The express, limited waiver of sovereign immunity

shall only apply to the appeal at hand. Eflj~

Commission explicitly does not waive its immunity

from suit from matters collateral to the appealed

decision, matters arising from the same set of facts or

controversy as the appealed decision, or matters

beyond the revocation of a gaming Iicense.~45~

(Emphasis added.)

The employment contract between Long and the Tribe recognizes the

Commission’s independence. In this agreement, Long warrants “that there

[were] no impediments to his. . . being licensed by the Snoqualmie Gaming

Commission for gaming purposes” and “to maintain [his] gaming license in good

standing.” The Tribe makes no corresponding warranty that Long’s license

application will be approved by the Commission. Instead, the agreement

~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10.

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No. 77007-1-I I 14

requires that Long seek the license from the Commission, independent of his

employment with the Tribe.

Long asserts that if this court affirms the superior court’s conclusion that

the STTGA establishes the Commission’s independence, the record establishes

that the Tribe in fact controls the Commission to such an extent that the

Commission is not independent. He points to the declaration by Bopha Yath, a

former agent of the Commission, who stated that the Tribe and the Commission

do not always act independently for licensing purposes. We reject this assertion

for two reasons.

First, “jurisdiction over a party asserting tribal sovereign immunity is a

question of law.”46 Long cites no authority to support his contention that this

court should consider Yath’s declaration to resolve this legal issue. Second,

Yath’s declaration describes events that occurred before November 2014. The

Tribe adopted the STTGA on January 22, 2015. Thus, Yath provides no

information about the conduct of the Tribe and the Commission under the

STTGA.

We conclude that the Commission’s independent role in Indian land

gaming regulation requires that its immunity be analyzed separately from any

waiver of immunity by the Tribe. This means that the Tribe’s waiver of its own

46 Wriciht, 159 Wn.2d at 111.

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No. 77007-1.-I /15

immunity, without more, does not waive the Commission’s sovereign immunity in

matters falling within its exclusive purview, like gaming license revocation. A

contrary view would frustrate the independence of the Commission contemplated

by the STTGA and the compact between the State of Washington and the Tribe.

It would also ignore the carefully worded limited waivers found in the

Commission’s regulations.

B. Broad Application of the Language of the Agreement

Long claims that the settlement agreement provision waiving sovereign

immunity clearly and unambiguous waives the immunity of the Commission. We

disagree.

A waiver of tribal sovereign immunity “must be unequivocally

expressed.”47 Long claims that two settlement agreement provisions, when read

together, unequivocally waive the Commission’s immunity from suit over its

gaming license decision for Long:

2. Effective upon execution of this Agreement, the Parties,

on behalf of themselves, and all persons, spouses, entities, or

agencies claiming by, through or under them, and their heirs,

successors, administrators, trustees and assigns, hereby knowingly

and voluntarily unequivocally, irrevocably and absolutely grant and

provide to the other Party to the full extent permitted by law, a full

and complete general release and discharge of any and all claims,

known and unknown, asserted and unasserted, that any party may

have against any other Party as of the date of execution of this

Agreement.

~ Santa Clara Pueblo, 436 U.S. at 58; Wright, 159 Wn.2d at 115.

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11. This Agreement shall be construed, enforced, and

interpreted in accordance with the substantive law of the State of

Washington. Any dispute arising out of, or related to, this

Agreement shall be brought in Washington State Superior Court,

King County, and the Parties hereby irrevocably submit to the

jurisdiction of the Court to resolve any dispute arising under this

Agreement and waive any right to challenge the jurisdiction of said

Court or to alter or change venue. The Tribe hereby expressly and

unequivocally waives any and all claim(s) of sovereign immunity for

purposes of either Party seeking relief in Washington State

Superior Court, King County, as outlined in this paragraph, for

purposes of resolving any dispute arising under this Agreement.

We make several observations about the settlement agreement. First, the

Commission is not a party to the agreement and did not know about it before the

parties signed it. Second, the agreement makes no mention of the proceedings

between the Commission and Long or any tribal court decision. Third, the

agreement makes no mention of Long’s gaming license. Fourth, the agreement

does not describe any action to be taken or abstained from by the Commission.

We also note the Commission regulations addressing its sovereign

immunity. They contain a limited waiver for the sole purpose of an appeal to

tribal court to review a final gaming license revocation. They limit the relief

available in the tribal court to an affirmation of the Commission’s decision or a

remand to the Commission for further proceedings.48 They prohibit any appeal

beyond tribal court. Finally, the regulations conclude with this statement: “The

Commission explicitly does not waive its immunity from [among other things] suit

48 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(D).

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No. 77007-1 -l /17

from matters collateral to the appealed decision [or] matters arising from the

same set of facts or controversy as the appealed decision.”49

Given the clear limits of the regulation waiver (both in forum and relief),

the Commission’s independence in gaming license matters, the absence of any

mention of the gaming license dispute in the settlement agreement, and the

circumstance that the Commission is not a party to that agreement, the contract

language relied on by Long cannot, as a matter of law, be described as an

unequivocal waiver of the Commission’s immunity.

Long suggests that had the Tribe wanted to exclude the Commission from

the settlement agreement waiver it could have, asserting that because the

agreement does not exclude the Commission, the waiver extends to it. This

argument stands tribal immunity law on its head by ignoring Long’s burden of

showing subject matter jurisdiction.50 Here, Long must show an express and

unambiguous waiver of immunity. This means that the Commission does not

have the burden of showing the absence of a waiver.

Long asserts that the context of the waiver clause in the agreement

requires extending that waiver to all agencies of the Tribe. He correctly notes

that paragraph 2 requires the parties to release one another and “all persons,

spouses, entities or agencies claiming by, through or under them” from claims

~ Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(E).

50 See Outsource Servs. Mqmt. LLC, 172 Wn. App. at 807.

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No. 77007-1 -l /18

arising prior to the agreement. He claims that this provision is superfluous unless

it is interpreted to extend the immunity waiver to the Commission. But this

provision has meaning if it is interpreted to extend the scope of the release to

derivative entities without extending the scope of the waiver.

Finally, Long claims the agreement applies to the Commission because it

contains an “unlimited waiver” in contrast to the “limited waiver” in his

employment agreement. But the settlement agreement has limitations too. It is

limited in time “as of the date of execution of th[e} Agreement.” The waiver is

limited to “dispute[sJ arising under th[e} Agreement.” The Commission had made

a final decision in the dispute between the Commission and Long before the

agreement was signed. Long points to no language in the agreement about his

gaming license. He does not persuasively explain how any dispute about his

revoked license arises under the settlement agreement. He certainly does not

explain how his cobbled argument describes an unequivocal expression of

waiver for the gaming license issue.

That the bommission based its decision on the same facts as the Tribe

also does not matter. The Commission’s regulations state clearly that the limited

waiver for appeals of licensing decisions to the tribal court does not extend to

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No. 77007-1-I /19

other “suit[s] from matters collateral to the appealed decision [or] matters arising

from the same set of facts or controversy as the appealed decision.”51

Since the tribal council did not unequivocally waive the Commission’s

sovereign immunity in the settlement agreement, the superior court properly

dismissed Long’s lawsuit for lack of subject matter jurisdiction.

Failure to State a Claim

Long asserts that the superior court also erroneously dismissed the suit

for a failure to state a claim under CR 12(b)(6). Because the Tribe did not waive

the Commission’s sovereignty, we decline to review this issue.

Stay of Discovery

Long challenges the superior court’s stay of discovery. A court has

discretion to stay discovery pending a determination about immunity from suit.52

The issue of immunity here can be determined on the basis of the law. So the

superior court did not abuse its discretion by staying discovery.

Long also asserts he should be given the chance to amend his complaint

to address the sovereign immunity claim in lieu of it being dismissed. He did not

ask the trial court to let him amend. We decline to consider this request.

51 Snoqualmie Tribe Gaming Comm’n Hr’g Regs. § 2.10(E).

52 Behrens v. Pelletier, 516 U.S. 299, 308, 116 S. Ct. 834, 133 L. Ed 2d

773 (1996) (indicating that qualified immunity protects one from the burdens of

litigation, including pretrial actions, and therefore a court should stay discovery

during determination regarding immunity).

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Denial of Motion for Reconsideration

Long asserts that the superior court abused its discretion by not granting

his motion for reconsideration. Long does not provide any argument in his brief

to establish the grounds for reconsideration under CR 59. We need not address

an issue that a party does not argue in its brief.53 We decline to review this

issue.

CONCLUSION

Long fails to demonstrate that the Commission waived its sovereign

immunity. He thus fails to show that the superior court had subject matter

jurisdiction over his claim. The superior court did not err when it dismissed the

case. We affirm.

/

WE CONCUR:

L1J

~ Timson v. Pierce County Fire Dist. No. 15, 136 Wn .App. 376, 385, 149

P.3d 427 (2006) (citing State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970

(2004)).

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