Appendix — California v. Cachil Dehe Band of Wintun Indians (No. 08-931)

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Supreme Court of the UnGeaotatesic cier«

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STATE OF CALIFORNIA; CALIFORNIA GAMBLING

CONTROL COMMISSION, an agency of the State

of California; and ARNOLD SCHWARZENEGGER,

Governor of the State of California,

Petitioners,

Vv.

CACHIL DEHE BAND OF WINTUN INDIANS

OF THE COLUSA INDIAN COMMUNITY,

a federally recognized Indian Tribe,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

- Sf

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

°

EDMUND G. BROWN JR.

Attorney General of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT L. MUKAI

Senior Assistant Attorney General

SARA J. DRAKE /

Supervising Deputy Attorney General

PETER H. KAUFMAN

Deputy Attorney General

Counsel of Record

110 West A Street, Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2020

Fax: (619) 645-2012

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

APPENDIX

Page

Ninth Circuit order amending opinion and

denying the petition for panel rehearing and

petition for rehearing en banc and amended

opinion (August 8, 2008), Case No. 06-16145,

Cachil dehe Band of Wintun Indians of the

Colusa Indian Community v. State of Cali-

fornia, et al. GAPPENGIX A)............scrcescsoceseessoees App. 1

Ninth Circuit opinion (Aug. 8, 2008), Case

No. 06-16145, Cachil dehe Band of Wintun

Indians v. State of California, et al. (Appen-

ERR ER EERE, aR een eon ee al App.

District court memorandum and order granting

defendants’ motion for judgment on the

pleadings (May 16, 2006), Case No. CIV S-

04-2265 FCD KJM, Cachil dehe Band of Win-

tun Indians of the Colusa Indian Community

v. State of California, et al. (Appendix C).....App.

District court judgment in a civil case (May 16,

2006), Case No. CIV 8-04-2265 FCD KJM,

Cachil dehe Band of Wintun Indians of the

Colusa Indian Community v. State of Cali-

fornia, Of Gl. (ADPONGIE D) .......0000.00rcsecsceseeseee App.

Ninth Circuit memorandum (Aug. 8, 2008), Case

No. 06-55259, Rincon Band of Luiseno Mission

Indians of the Rincon Reservation v. Arnold

Schwarzenegger, et al. (Appendix E)................ App.

33

64

86

87

il

TABLE OF AUTHORITIES — Continued

Page

District court order granting in part and deny-

ing in part plaintiff’s motion for reconsidera-

tion (Mar. 22, 2005), Case No. 04-CV-01151

W, Rincon Band of Luiseno Mission Indians

of the Rincon Reservation v. Arnold Schwar-

zenegger, et al. (Appendix F).................0seeeeeee App. 91

Ninth Circuit order denying petition for panel

rehearing and petition for rehearing en banc

(Nov. 14, 2008), Case No. 06-55259, Rincon

Band of Luiseno Mission Indians of the Rin-

con Reservation v. Arnold Schwarzenegger, et

cl. (Aspen Gay iiccgcaet es ee cece ene App. 104

Ninth Circuit memorandum (Oct. 6, 2008),

Case No. 07-55536, San Pasqual Band of

Mission Indians v. State of California, et al.

(Appendiig FA) ...cikicisce een aeeetiaincceereivnees App. 106

District court order granting motion to dismiss

second amended complaint (Mar. 20, 2007),

Case No. 06-cv-0988-LAB (AJB), San

Pasqual Band of Mission Indians v. State of

California, et al. (Appendix I)................00606 App. 109

Ninth Circuit order denying petition for panel

rehearing (Dec. 29, 2008), Case No. 07-

55536, San Pasqual Band of Mission Indians

v. State of California, et al. (Appendix J)....App. 146

Ninth Circuit petition for rehearing en banc or

panel rehearing (Aug. 28, 2008), Case No.

06-16145, Cachil dehe Band of Wintun Indi-

ans of the Colusa Indian Community v. State

of California, et al. (Appendix K)................ App. 148

lii

TABLE OF AUTHORITIES — Continued

Ninth Circuit petition for rehearing en banc or

panel rehearing (Aug. 28, 2008), Case No.

06-55259, Rincon Band of Luiseno Mission

Indians of the Rincon Reservation v. Arnold

Schwarzenegger, et al. (Appendix L)............ App.

Ninth Circuit petition for panel rehearing and

suggested rehearing en banc (Oct. 27, 2008),

Case No. 07-55536, San Pasqual Band of

Mission Indians v. State of California, et al.

CRI BI os iscisviivsinnss ecsoesreeioiciael animes App.

Tribal-State Gaming Compact (Sep. 10, 1999)

CTI FFP oncsssesssisteomtionaninndnaanme App.

Amendment to the Tribal-State Compact

Between the State of California and the

Pauma Band of Luiseno Mission Indians of

the Pauma & Yuima Reservation (Jun. 21,

2004) (Appendix Q)...... aR Der EN MeN eRe Net App.

Amendment to the Tribal-State Compact

Between the State of California and the Pen-

changa Band of Luiseno Indians (Appendix

Federal Rules of Civil Procedure, Rule 19

IE FF fecikisinticcenmminmuciaceniaiin App.

Page

169

182

197

266

.315

379

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CACHIL DEHE BAND OF WINTUN No. 06-16145

INDIANS OF THE COLUSA INDIAN D.C. No

CoMMUNITY, a federally recog- CV-04-02265-FCD

nized Indian Tribe, és aa

Plaintiff-Appellant, Peo

v. OPINION AND

STATE OF CALIFORNIA; CALIFOR- D aa

NIA GAMBLING CONTROL Com-

FOR PANEL

MISSION, an agency of the State

Hes REHEARING AND

of California; and ARNOLD PETITION FOR

SCHWARZENEGGER, Governor

of the State of California REHEARING EN

; BANC AND

Defendants-Appellees. AMENDED

OPINION

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrelli, District Judge, Presiding

Argued and Submitted

April 9, 2008 — Pasadena, California

Filed August 8, 2008

Amended October 24, 2008

App. 2

Before: William C. Canby, Jr., Andrew J. Kleinfeld,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Canby

COUNSEL

George Forman, Forman & Associates, San Rafael,

California, for the plaintiff-appellant.

Christine M. Murphy, Deputy Attorney General,

Sacramento, California (briefs); Peter H. Kaufman,

Deputy Attorney General, San Diego, California (oral

argument); for the defendants-appellees.

ORDER

The opinion filed in this case on August 8, 2008,

slip op. at 10159, to appear at 536 F.3d 1034 (9th Cir.

2008), is amended as follows:

At slip op. at 10166, first full paragraph, line 6:

Insert “by the tribe on September i, 1999,” after

“number of gaming devices operated.”

At slip op. at 10169, lines 3-4: delete “for the

issuance of up to 22,500 additional gaming device

licenses” and substitute therefor: “ior the operation of

up to 22,500 additional gaming devices.”

At slip op. 10174, lines 11-12: delete “for the

issuance of up to 22,500 additional licenses” and

substitute therefor: “for the operation of up to 22,500

additional gaming devices.”

App. 3

With these amendments, the panel has voted to

deny the petition for panel rehearing. Judges Klein-

feld and Bybee have voted to deny the petition for

rehearing en banc, and Judge Canby has so recom-

mended.

The petition for en banc rehearing, together with

these amendments, has been circulated to the full

court, and no judge of the court has requested a vote

on the petition for rehearing en banc. Fed. R. App. P.

35(b).

The petition for panel rehearing and the petition

for rehearing en banc are DENIED. No further peti-

tions for rehearing or rehearing en banc may be filed.

No other petitions for panel or en banc rehearing

remain pending.

OPINION

CANBY, Circuit Judge:

This appeal concerns the joinder requirements of

Rule 19 of the Federal Rules of Civil Procedure and

their *ffect on litigation brought by an Indian tribe

engaged in casino gaming. The Cachil Dehe Band of

Wintun [Indians of the Colusa Indian Community

(“Colusa”), a federally recogi ized Indian tribe, en-

tered into a gaming compact with the State of Cali-

fornia in 1999. Colusa brought this action for

declaratory and injunctive relief acainst the State, its

Governor and the California Gambling Control Com-

mission (collectively, “the State”). Colusa challenges

App. 4

the Commission’s interpretation of the compact and

the Commission’s assumption of authority to admin-

ister unilaterally the licensing of electronic gaming

devices. The district court concluded that the many

other Indian tribe: that had entered into identical

gaming compacts with the State in 1999, as well as

California’s non-gaming tribes, were required parties

to this action. Because Indian tribes enjoy sovereign

immunity and the action could not proceed in their

absence, the district court granted the State’s motion

for judgment on the pleadings. Colusa appeals. Be-

cause we conclude that the absent tribes are not

required parties to this action, we reverse the district

court’s judgment (with one minor exception) and

remand for further proceedings.

BACKGROUND

In 1988, Congress enacted the Indian Gaming

Regulatory Act (“IGRA”) “to provide a statutory basis

for the operation of gaming hy Indian tribes as a

means .* promoting tribal economic development,

self-sufficiency, and strong tribal governments.” 25

U.S.C. § 2702(1). IGRA recognizes three classes of

gaming. 25 U.S.C. § 2703(6)-(8). Slot machines and

equivalent gaming devices, which are the exclusive

subject of this litigation, are Class III games. See 25

U.S.C. § 2703(7)(B)i), (8). Under the statute, a tribe

may conduct Class III gaming activities only “in

conformance with a Tribal-State compact entered into

by the Indian tribe.” 25 U.S.C. § 2710(d)(1)(C).

App. 5

In September 1999, Colusa entered into a gaming

compact (the “Compact”) with the State of California,

which sets forth various provisions relating to the

operation of Class III] gaming devices. See Tribal-

State Gaming Compact Between the Colusa Indian

Community and the State of California (Oct. 8, 1999).

At the same time, sixty-two other tribes (the “Com-

pact Tribes”) executed virtually identical bilateral

compacts with the State (the “1999 Compacts”).' See

Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d

712, 717-18 (9th Cir. 2003). The 1999 Compacts limit

the number of gaming devices operated by each tribe

to 2,000. See 1999 Compacts, § 4.3.2.2(a). They also

establish a formula setting a statewide maximum

number of gaming devices that all Compact Tribes

may license in the aggregate under the 1999 Com-

pacts. Id. § 4.3.2.2(a)(1).

A Compact Tribe, however, is not free to choose

unilaterally how many gaming devices to operate,

even if it wishes to operate fewer devices than the

2,000 limit. The Compacts establish a threshold

number of devices that tribes may operate without a

license. Id. § 4.3.1. In Colusa’s case, that number was

set at the number of gaming devices, 523, operated by

the Tribe on September 1, 1999. For each additional

gaming device, Colusa is required to obtain a license.

Id. § 4.3.2.2(a). These licenses are distributed among

' A generic copy of a 1999 Compact is available at http://

www.cgcc.ca.gov/enabling/tsc. pdf (last visited July 31, 2008).

App. 6

the Compact Tribes who apply to obtain them pursu-

ant to a detailed draw process. See id. § 4.3.2.2(a)(3).

Under this process, a Compact Tribe’s likelihood of

being awarded a license hinges on its placement in

one of five priority tiers. Jd. Placement in a particular

tier depends in part — though not exclusively — upon

the number of gaming devices already operated by

the tribe; the fewer gaming devices a tribe operates,

the higher its priority tier. Jd. If, in any given round,

more licenses are requested in aggregate by the

Compact Tribes than the Commission is distributing,

the license draw process is structured to award the

bulk of those licenses to the Compact Tribes who have

not yet developed large gaming operations. /d.

In 2001, then-Governor Gray Davis issued an

executive order requiring the California Gambling

Control] Commission (“Commission”) to take control of

the licensing of gaming devices. Exec. Order No. D-

29-01 (Mar. 8, 2001). Previously, a tribal administra-

tor had conducted gaming device license draws. As

soon as the Commission assumed control, it declared

the licenses issued in previous draws invalid and

replaced them with licenses issued by the Commis-

sion.

The 1999 Compacts also envision a revenue-

sharing mechanism for the benefit of California’s non-

gaming tribes. See 1999 Compacts, § 4.3.2.1. In order

to acquire licenses for gaming devices in excess of

their initial allowance, Compact Tribes must pay “a

non-refundable one-time pre-payment fee” of $1,250

for each gaming device being licensed. Jd. § 4.3.2.2(e).

App. 7

In addition, in order to keep their licenses current,

Compact Tribes must pay annual fees for each li-

censed device in accordance with a pre-determined

fee schedule. Id. § 4.3.2.2(a)(2). The fees are to be

deposited in the Revenue Sharing Trust Fund

(“Revenue Fund”), a fund created by the California

State Legislature and administered by the Commis-

sion as trustee. Jd. Each Non-Compact Tribe’ is

entitled to receive a distribution of $1.1 million per

year from the Revenue Fund, unless the funds

therein are insufficient, in which case the available

funds are distributed in equal shares among the Non-

Compact Tribes. Jd. § 4.3.2.1(a). The Commission has

interpreted the 1999 Compacts as providing that the

non-refundable, one-time pre-payment fee may be

used as a credit toward annual license fees, and that

no annual fees would be required for the first 350

licenses issued to a tribe.

Pursuant to the 1999 Compacts, the Legislature

also created the Indian Gaming Special Distribution

Fund (“Distribution Fund”). Cal. Govt Code

§ 12012.85. The 1999 Compacts direct each gaming

tribe to contribute to the Distribution Fund a portion

of its revenues calculated according to the number of

* For purposes of revenue sharing, the 1999 Compacts

define a Compact Tribe as a tribe having a compact with the

State authorizing Class III Gaming; Non-Compact Tribes are

defined as federally recognized tribes that are operating fewer

than 350 gaming devices, whether or not such a tribe has a

compact with the State.

App. 8

gaming devices operated by the tribe on September 1,

1999, and the “net wins” of those devices. 1999 Com-

pacts § 5.1(a). The Legislature may then appropriate

funds from the Distribution Fund to make up for

“shortfalls that may occur in the ... Revenue .

Fund. This shall be the priority use of moneys in the

... Distribution Fund.” Cal. Gov’t Code § 12012.85(d).

In 2002, the Commission notified Colusa and

other Compact Tribes that it would conduct a round

of gaming device license draws that September. Prior

to the draw, Colusa was operating its threshold

number of 523 gaming devices for which it did not

need licenses. Colusa notified the Commission of its

intent to draw 250 licenses and tendered a $312,500

check as its non-refundable one-time pre-payment

fee. Colusa was placed in the third priority tier and

received 250 licenses. In November 2003, the Com-

mission notified Colusa that it would conduct another

round of draws in December 2003. Colusa requested

377 licenses and submitted a pre-payment of

$471,250. Colusa was assigned to the fourth priority

tier, a classification that Colusa challenges in this

litigation. Colusa alleges that it was assigned to the

fourth tier because it had previously drawn some

licenses in the third tier, even though the number of

gaming devices it operated after the earlier drawing

should have continued to place it in the third tier. The

December drawing was held with Colusa in the

fourth tier and it received no licenses. The Commis-

sion refunded the pre-payment for those requested

licenses in full. In October 2004, the Commission

App. 9

conducted a third draw. Colusa advanced fees for 341

licenses and was again placed in the fourth priority

tier. It received only 73 licenses. Colusa anticipates

receiving a refund of the pre-payment on the licenses

that it did not receive in the draw.

Immediately after the December 2003 draw,

Colusa requested that the Governor meet and confer

with the Tribe with regard to (1) Colusa’s assignment

to the fourth priority tier in the December 2003 draw;

(2) the Commission’s determination of the statewide

aggregate number of licenses available to all tribes

for issuance under the 1999 Compacts; (3) the Com-

mission’s role and authority in the draw process; and

(4) the Commission’s retention of the $312,500 ten-

dered by the Tribe in connection with its draw of 250

licenses in September 2002. After an unsuccessful

meeting, the State formally rejected each of Colusa’s

positions. Colusa then initiated this litigation.

In its complaint, Colusa asserts that the State,

through the actions of the Commission, breached the

Compact by: (1) excluding Colusa from the third

priority tier in the December 2003 and October 2004

draws; (2) unilaterally determining the aggregate

number of licenses authorized by the Compact; (3)

refusing to refund Colusa’s non-refundable one-time

pre-payment fee in conjunction with the licenses

Colusa obtained in September 2002 and October

2004; (4) conducting rounds of draws of licenses

without authority; and (5) failing to negotiate in good

faith. The State filed a motion for judgment on the

pleadings, seeking to dismiss Colusa’s first, second,

App. 10

third, and fourth claims for failure to join necessary

and indispensable parties and its fifth claim for

failure to exhaust non-judicial remedies.’ The district

court granted the State’s motion to dismiss and

entered judgment in its favor. Colusa appeals.

While Colusa’s appeal was pending, the State

negotiated and executed amendments to the 1999

Compacts individually with at least five Indian tribes,

not including Colusa.“ These amended compacts,

° Colusa lists its fifth cause of action — failure to negotiate

in geod faith — among its grounds for appeal. It does not, how-

ever, advance any argument in support of reversing the district

court’s judgment with respect to that claim. Accordingly, we

deem the claim abandoned. See Fed. R. App. P. 28(a)(9)(A);

Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (“Issues

raised in a brief which are not supported by argument are

deemed abandoned.”) (quoting Leer v. Murphy, 844 F.2d 628, 634

(9th Cir. 1988)). We therefore affirm the district court’s dismissal

of that claim.

* Amendment to the Tribal-State Compact Between the

State of California and the Agua Caliente Band of Cahuilla

Indians (Aug. 8, 2006); Amendment to the Tribal-State Compact

Between the State of California and the Morongo Band of

Mission Indians (Aug. 29, 2006); Amendment to the Tribal-State

Compact Between the State of California and the Pechanga

Band of Luiseno Mission Indians (Aug. 28, 2006); Amendment to

the Tribal-State Compact Between the State of California and

the Sycuan Band of the Kumeyaay Nation (Aug. 30, 2006);

Amendment to the Tribal-State Compact Between the State of

California and the San Manuel Band of Serrano Mission Indians

of the San Manuel Reservation (Aug. 28, 2006); see also Indian

Gaming, 72 Fed. Reg. 71,929-02 — 71,939-04 (Dec. 19, 2007)

(notices); Indian Gaming, 73 Fed. Reg. 3,480-01 (Jan. 18, 2008)

(notice); California Gambling Control Commission, Tribal-State

Gaming Compacts, http://www.cgcc.ca.gov/compacts.asp (last

(Continued on following page)

App. 1l

which became effective between December 2007 and

January 2008 (“2007 Amended Compacts”), provide

for the operation of up to 22,500 additional gaming

devices outside the limits established by the 1999

Compacts.’ See 2007 Amended Compacts §II.B

(amended § 4.3.1(a)). In addition, four of the five 2007

Amended Compacts provide that, if a shortfall occurs

in the Revenue Fund, “the State Gaming Agency shall

direct a portion of the revenue contribution” made by

each of the 2007 Compact Tribes “to increase the

revenue contribution to the [Revenue Fund] in an

amount sufficient to ensure the [Revenue Fund] has

sufficient resources for each eligible recipient Indian

tribe to receive quarterly payments pursuant to

Government Code Section 12012.90.” E.g., Amend-

ment to the Tribal-State Compact Between the State

of California and the Morongo Band of Mission Indi-

ans §I11.B (Aug. 29, 2006) (amended § 4.3.1.(Z)),

visited July 31, 2008). We take judicial notice of these amended

compacts pursuant to Federal Rule of Evidence 201, which

“permits us to ‘take judicial notice of the records of state [enti-

ties] and other undisputed matters of public record,’ [including]

executed Compact(s] ... not in the district court record.” Wilbur

v. Locke, 423 F.3d 1101, 1112 (9th Cir. 2005) (quoting Disabled

Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866

n.1 (9th Cir. 2004)). We note and overrule the State’s objection to

our consideration of these materials.

* The 2007 Amended Compacts allow the amending tribes

to continue operating machines pursuant to licenses previously

issued under the pool provision as well as machines which were

operated on September 1, 1999. The pool provision licenses

remain in force even though the 2007 Amended Compacts repeal

the pool provision itself.

App. 12

available at http://www.cgcc.ca.gov/compacts.asp (last

visited July 31, 2008). The aggregate revenue contri-

bution made by these four tribes, which is therefore

available to fill any shortfall in the Revenue Fund,

exceeds $140 million per year. See 2007 Amended

Compacts § II.B (amended § 4.3.1(b)(i)).

DISCUSSION

In addressing the State’s Rule 19 motion to

dismiss Colusa’s claims for failure to join required

parties, “the proper approach is first to decide

whether the tribes are ... ‘[required]’ parties who

should normally be joined under the standards of

Rule 19(a).” Am. Greyhound Racing, Inc. v. Hull, 305

F.3d 1015, 1022 (9th Cir. 2002).° If, as the district

court concluded in this case, the tribes are required

parties, “the court must determine whether, in equity

and good conscience, the action should proceed among

° The language of Federal Rule of Civil Procedure 19 has

been amended since the district court’s dismissal of this action.

The Rules Committee advised that the changes were “stylistic

only,” see Fed. R. Civ. P. 19 advisory comm. nn. (2008), and the

Supreme Court has agreed, see Republic of the Philippines v.

Pimentel, 128 S. Ct. 2180, 2184 (2008). Two changes are relevant

to this case. First, the word “required” replaced the word

“necessary” in subparagraph (a). Second, the word “indispensa-

ble” is deleted from the current text of subparagraph (b). All

quotations hereinafter to materials predating the 2007 amend-

ment are altered, with brackets, to reflect the current language

of Rule 19.

App. 13

the existing parties or should be dismissed.” Fed. R.

Civ. P. 19(b). On appeal, we review the district court’s

Rule 19 determinations for an abuse of discretion.

Am. Greyhound Racing, 305 F.id at 1022; cf: Republic

of the Philippines v. Pimentel, 128 S. Ct. 2180, 2189

(2008) (declining to address the standard of review for

Rule 19(b) decisions). To the extent that in its inquiry

the district court “decided a question of law, we

review that determination de novo.” Am. Greyhound

Racing, 305 F.3d at 1022.

The issue that we find dispositive of all contested

portions of this appeal is whether the absent tribes

are “required” parties to the adjudication of Colusa’s

first, second, third and fourth claims within the

meaning of Rule 19(a). We conclude that they are not,

and that the district court abused its discretion in

finding that the absent tribes were required parties

to the disposition of these claims. We accordingly

reverse the district court’s judgment with respect to

those claims and remand for further proceedings. Our

conclusion that the absent tribes are not required

parties under Rule 19(a) makes inapplicable the

provisions of Rule 19(b) governing the decision

whether to proceed with litigation when a required

" The parties do not dispute that the absent tribes enjoy

sovereign immunity. See Santa Clara Pueblo v. Martinez, 436

U.S. 49, 58 (1978). Accordingly, because they have not consented

to suit, they cannot be joined in this action.

App. 14

party cannot be joined; we therefore do not address

the district court’s determination of that issue.’

[1] The absent tribes are “required” parties to

this action if they “claim| ] an interest relating to the

subject of the action and [are] so situated that dispos-

ing of the action in [their] absence may: (i) as a prac-

tical matter impair or impede [their] ability to protect

the interest; or (i1) leave an existing party subject to a

substantial risk of incurring double, multiple, or

otherwise inconsistent obligations because of the

interest.” Fed. R. Civ. P. 19(a)(1)(B) (emphases added).”

A crucial premise of mandatory joinder, then, is that

the absent tribes possess an interest in the pending

litigation that is “legally protected.” Makah Indian

Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). We

have developed few categorical rules informing this

inquiry. At one end of the spectrum, we have held

that the interest at stake need not be “property in the

sense of the due process clause.” Am. Greyhound

Racing, 305 F.3d at 1023. .t the other end of the

* For the same reason, our analysis is not affected by the

Supreme Court’s recent holding in Pimentel, 128 S. Ct. at 2190.

In Pimentel, the Supreme Court reversed the decision of a panel

of this court because it had not “giv[en] full effect to sovereign

immunity” in its Rule 19(b) calculus. Jd. Because in our case the

absent tribes are not required parties under Rule 19(a), we are

unaffected by the Rule 19{b) analysis set forth in Pimentel.

* The State does not contend that, in the absence of the

other Compact (or Non-Compact) Tribes, “the court cannot

accord complete relief among existing parties.” Fed. R. Civ. P.

19{a)(1)(A).

App. 15

spectrum, we have recognized that the “interest must

be more than a financial stake, and more than specu-

lation about a future event.” Makah, 910 F.2d at 558

(citations omitted); see also N. Alaska Envtl. Ctr. v.

Hodel, 803 F.2d 466, 468-69 (9th Cir. 1986) (holding

that miners who had submitted mining plans to

National Park Service were not necessary parties to

an action to enjoin mining in parks until environ-

mental impact statements were prepared). Within the

wide boundaries set by these general principles, we

have emphasized the “practical” and “fact-specific”

nature of the inquiry. Makah, 910 F.2d at 558; see

also Bakia v. County of Los Angeles, 687 F.2d 299, 301

(9th Cir. 1982) (per curiam) (“There is no precise

formula for determining whether a particular non-

party should be joined under Rule 19(a).... The

determination is heavily influenced by the facts and

circumstances of each case.”). Accordingly, an interest

that “arises from terms in bargained contracts” may

be protected, but we have required that such an

interest be “substantial.” Am. Greyhound Racing, 305

F.3d at 1023. An interest in a fixed fund or limited

resource that the court is asked to allocate may also

be protected. Makah, 910 F.2d at 558-59. At the same

time, an absent party has no legally protected inter-

est at stake in a suit merely to enforce compliance

with administrative procedures. See N. Alaska, 803

F.2d at 469; Makah, 910 F.2d at 559 (“The absent

tribes would not be prejudiced because all of the

tribes have an equal interest in an administrative

process that is lawful.”).

App. 16

The Size of the License Pool

Colusa challenges the Commission’s computation

of the statewide maximum number of licenses that

may be issued under the 1999 Compacts. The district

court dismissed Colusa’s claim, concluding that the

other Compact Tribes are required parties in the

absence of which the action should be dismissed.

Although we agree with the district court that some

absent tribes may prefer that the State issue fewer

licenses, we reverse its dismissal of Colusa’s claim

because the absent tribes’ only interest relevant for

Rule 19(a) purposes is freedom from competition. We

hold that this interest, without more, is not “legally

protected” for Rule 19 purposes.

[2] It is important to identify clearly the Com-

pact Tribes’ interest at stake. Those Compact Tribes

that currently enjoy a dominant position in the

gaming industry will likely prefer to maintain a low

statewide maximum number of licenses available

under the 1999 Compacts. On the other hand, those

who intend to expand their gaming operations and

compete with the dominant gaming tribes will gladly

accept an increase in the size of the license pool

created by the 1999 Compacts. Indeed, the State itself

repeatedly characterizes the absent tribes’ interest at

stake as the preservation of their “market share”

within California’s gaming industry. Properly framed,

then, the respective advantages that various tribes

may enjoy under a more generous or restrictive

interpretation of the pool provision are an economic

App. 17

incident of their market positions under a common

licensing regime.

[3] The mere fact that the outcome of Colusa’s

litigation may have some financial consequences for

the non-party tribes is not sufficient to make those

tribes required parties, however. See, e.g., Makah, 910

F.2d at 558 (“(The] interest must be more than a finan-

cial stake.”). The absent tribes must have a legally

protected interest and, on this record, the only poten-

tial protection lies in the 1999 Compacts themselves.

The interest could be protected if it actually “arises

from terms in bargained contracts.” Am. Greyhound

Racing, 305 F.3d at 1023. We conclude that it does

not.” The 1999 Compacts do not purport to establish,

through the license pool provision or otherwise, an

overarching limit on the number of gaming licenses

generally available in California. Rather, they =:!ace a

limit only on the smaller universe of licenses that

'° We do not decide the broader question whether avoiding

competition ever qualifies as a legally protected interest under

Rule 19(a) in the context of Indian gaming. We note, however,

that the legislative history of IGRA casts considerable doubt on

a state’s assertion of any such interest in the context of Indian

gaming; the Senate’s Select Committee on Indian Affairs

reported its intent that the states not use IGRA’s Class III

gaming compact requirement as a protectionist measure,

although that concern was directed at the protection of non-

tribal operators, not absent tribes as in this case. See S. Rep. No.

100-446, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 3071,

3083.

App. 18

may be issued under the 1999 Compacts.’ This limit

alone is insufficient to determine the competitive

Jandscape of California’s gaming industry, for it

leaves the State at liberty to issue an unlimited

number of licenses outside the pool created by the

1999 Compacts. Indeed, the State has recently nego-

tiated amendments, now in effect, to the 1999 Com-

pacts with several tribes. These amendments provide

for the operation of up to 22,500 additional gaming

devices outside the pool created by the 1999 Com-

pacts. These actions reflect the reality that the 1999

Compacts afford no express or implied protection

against competition per se. The interest of some of

the absent tribes in avoiding competition does not

“arise [] from terms in bargained contracts,” id., and

is accordingly not “legally protected” under the cir-

cumstances of this case. The absent 1999 Compact

tribes thus are not required parties for litigation of

Colusa’s claim seeking to raise the aggregate limit on

licenses under the 1999 Compacts.

In reaching this conclusion, we reject the State’s

contention that its licensing scheme is compaiable to

the system for the allocation of limited resources at

issue in Makah. In Makah, we held that absent tribes

had a protected interest that made them necessary

parties to a claim for amendment of a pre-existing

" The 1999 Compacts establish a formula for a limit on

the “number of machines that all Compact Tribes in the aggre-

gate may license pursuant to this Section... .” 1999 Compacts

§ 4.3.2.2(a)(1) (emphasis added).

App. 19

allocation of a finite resource — a particular year’s

off-shore salmon harvest — because an allocation to

one tribe necessarily entailed the parallel deprivation

of another. Makah, 910 F.2d at 556-57. The resource

at issue was finite: ocean fishing of salmon in excess

of the total permitted harvest would jeopardize the

survival of the species’ population in the region’s

weakest runs. Id. at 557. In contrast, the gaming

licensing scheme at issue here rations a resource —

licenses for gaming devices — that is, if not for purely

economic considerations, effectively unlimited. Thus,

for the reasoning of Makah to be at all relevant to

this case, the State would need to show that, despite

not being inherently finite, the resource of licenses for

gaming devices is rendered at least legally finite by

operation of the terms of the 1999 Compacts. As we

have already explained, however, the statewide cap

put in place by the 1999 Compacts does not, without

more, constrain the number of gaming licenses gen-

erally available in California. Thus, the absent tribes

have no legally protected interest in the determina-

tion of the license pool that may be issued under the

1999 Compacts.

[4] Finally, we also find it significait that, unlike

the plaintiff in American Greyhound Racing, Colusa

does not seek to invalidate compacts to which it is not a

party; this litigation is not “aimed” at the other tribes

and their gaming. Am. Greyhound Racing, 305 F.3d

at 1026. On the contrary, Colusa seeks to enforce

a provision of its own Compact which may affect

other tribes only incidentally. Under the specific

App. 20

circumstances of this case, the Compact Tribes are

not required parties to the adjudication of Colusa’s

cnallenge to the size of the 1999 Compact license

pool.”

Colusa’s Placement in Priority Tier [V

Colusa next challenges its placement in the

fourth priority tier since the December 2003 draw.

The district court dismissed Colusa’s claim on the

ground that the absent Compact Tribes “would be

deprived of thleir gaming] licenses or the opportunity

to obtain those licenses.” This ruling was error, for it

misconstrues both the nature of the absent tribes’

interest in the licenses that may be issued in the

future and the consequences of litigating Colusa’s

challenge to its placement in the fourth tier. It is true

that, if one assumes that the license pool is finite, an

order to issue new licenses to Colusa may render

those licenses unavailable to the absent tribes,

thereby depriving them of their “opportunity” to

obtain them. Nonetheless, we conclude that the

absent tribes’ interest in their “opportunity” to obtain

We also are not persuaded by the State’s unexplained

contention that adjudication of Colusa’s challenge to the Com-

mission’s determination of the statewide cap would expose the

State to a significant risk of “inconsistent obligations” within the

meaning of Rule 19. Should different district courts reach

inconsistent conclusions with respect to the size of the license

pool created under the 1999 Compacts, such inconsistencies

could be resolved in an appeal to this court.

App. 21

future licenses is insufficient to render them “re-

quired” parties for Rule 19(a) purposes.

is] Once again, it is necessary carefully to

identify the absent parties’ interest at stake. To the

extent that the “opportunity” to obtain licenses means

the entitlement to participate in future rounds of

draws, the litigation of Colusa’s tier assignment wi!l

not “as a practical matter impair or impede the

[absent tribes’) ability to protect the interest.” Fed. R.

Civ. P. 19(a)(1)(B)(i). The absent tribes remain free to

enter future draws. The possible complaint of the

absent tribes, however, i that assignment of Colusa

to a higher priority tier raay dilute the probability

that the absent tribes will obtain the licenses they

apply .or. But the absent tribes have no guarantee

against having to compete with any particular num-

ber of tribes in their tier or a higher-priority tier. Nor

can it be said that any particular degree of likelihood

of receiving licenses “arises from terms in bargained

contracts” and, more specifically, from the 1999

Compacts. Am. Greyhound Racing, 305 F.3d at 1023.

Under IGRA, entering into a compact with state

authorities is, of course, a threshold requirement for

Indian tribes wishing to develop Class III gaming

operations. See 25 U.S.C. § 2710(d)1)(C). In that

sense, if it were not for the 1999 Compacts, the ab-

sent tribes would have no likelihood of ever obtaining

any licenses. In our “practical” and “fact-specific”

Rule 19 inquiry, however, we require more than mere

“but-for” causation vefore recognizing a legally pro-

tected interest. Makah, 910 F.2d at 558; see also

App. 22

Bakia, 687 F.2d at 301. Here, in addition to the

threshold requirement of a compact, a number of

other factors determine the actual likelihood that any

given tribe will receive any licenses. As the facts of

this litigation demonstrate, crucial among ‘these

factors is the past, present and future demand for

new licenses by other tribes placed in higher or equal

priority tiers. A tribe wishing to obtain additional

licenses has absolutely no contro) over the overall

demand for new licenses, or over the number of tribes

that may be placed in the same or a higher priority

tier. Thus, the causal connection between the terms of

the 1999 Compacts and an absent tribe’s likelihood of

obtaining future licenses is attenuated indeed. See

Makah, 910 F.2d at 558 (“speculation about a future

event” does not give rise to a legally protected inter-

est). We therefore conclude that no particular degree

of likelihood of obtaining licenses “arises from terms

in bargained contracts,” Am. Greyhound Racing, 305

F.3d at 1023. As a consequence, the opportunity to

obtain licenses does not qualify as a legally protected

interest for Rule 19 purposes.

The interest of the absent tribes in Colusa’s tier

assignment is therefore quite different from the

interest of the absent tribes in American Greyhound

Racing. In that case, we emphasized that the gaming

compacts between Arizona and the Indian tribes,

which were the subject of that litigation, “provide[d]

for automatic renewal if neither party gives the

requisite notice of termination. [That] provision [was]

an integral part of the existing compacts, and was

App. 23

part of the bargain that the tribes entered with the

State.” Am. Greyhound Racing, 305 F.3d at 1023. We

reversed the district court’s injunction because it

modified the compacts of the absent tribes and

stripped those tribes of the very object of their bar-

gain — automatic renewal unless the parties affirma-

tively terminated the compacts. /d. Here, Colusa’s

tier claim does not negate any absent tribe’s right to

its place in any tier, or its right to participate in the

manner guaranteed by the Compacts. Colusa’s claim

at most increases the competition for licenses to be

drawn but, as we have explained, the 1999 Compacts

do not guarantee freedom from competition, nor do

they grant an entitlement to draw any specific license

or number of licenses or even a predetermined place

in line that may entail a particular likelihood of

obtaining new licenses. Thus, American Greyhound

Racing does not control, because litigation of Colusa’s

claim for placement in a higher tier cannot impair

any Compact rights that were the object of the bar-

gain of the absent tribes.

[6] Different considerations apply to the inter-

est of the absent tribes in the licenses that they have

already received. We do not question that the Com-

pact Tribes which requested and obtained licenses in

the December 2063 and subsequent draws by placing

ahead of Colusa have a legally protected interest in

those licenses. In order for the absent tribes to be

“required” parties under Rule 19, however, the

State must also show that their ability to protect

their interest “may ... as a practical matter [be]

App. 24

impair[ed]” by the litigation of Colusa’s claim tv a

higher tier placement. Fed. R. Civ. P. 19(a)(1)(B)(G). To

the extent that Colusa seeks prospective relief in the

form of a declaration that may place it in the third

priority tier in future draws, such relief, if granted,

would not prejudice the absent tribes’ legally pro-

tected interest in their existing licenses.” It was

therefore an abuse of discretion for the district court

to prohibit Colusa from litigating the legality of the

Commission’s interpretation of the tier system. Like

the Makah court, however, we emphasize that “the

scope of the relief available [to Colusa] . . . is narrow.”

Makah, 910 F.2d at 559. Accordingly, to the extent

Colusa seeks injunctive relief requiring the Commis-

sion to restore Colusa to the position it would have

occupied under its claimed interpretation of the

Compact by issuing new licenses, such relief may be

granted only insofar as it does not interfere with the

validity or distribution of the licenses already as-

signed to the other Compact Tribes."

'’ The State’s contention that prospective relief is inar vosite

because Colusa’s tier placement would be determined by a

formula not available to the other Compact Tribes is unavailing.

As we explained, the 1999 Compacts do not create a legally

protected interest in either freedom from competition, see supra

p. 14927-28, or a specific place in line in future draws, see supra

p. 14932-33.

‘ We reject the State’s argument that, if Colusa prevailed

on its first claim that it was entitled to a higher tier placement,

the entire license draw process would have to be retroactively

undone. Colusa does not seek this remedy and we see no reason

why a court of equity would be compelled to grant it.

(Continued on following page)

App. 25

Colusa’s Pre-payment Fees

In its next claim, Colusa seeks restitution of the

$403,750 it tendered to the Commission as pre-

payment for the 323 licenses it has obtained in the

draws thus far. The Commission, as trustee of the

Revenue Fund, is holding the pre-payment as a credit

against future annual fees. Colusa argues that the

pre-payment should be refunded because Colusa will

not owe any annual fees until it draws at least 350

licenses — an illusory prospect so long as the tribe is

assigned to the fourth priority tier.” The district court

dismissed the claim because Colusa’s non-refundable

pre-payment is deposited in the Revenue Fund and,

“to the extent that there is insufficient money to pay

each Non-Compact Tribe $1.1 million per year, an

award to plaintiff will lessen the amount of money

distributed to each other tribe.” Thus the district

court held that the claim could not be litigated in the

absence of the non-Compact tribes eligible for distri-

butions from the Fund.

We also reject the State’s contention that “the other 1999

Compact tribes, which have been placed in tiers based on the

Commission’s interpretation of the tier process, would neverthe-

less have suffered prejudice.” The licenses that have already

been issued comprise the absent tribes’ only legally protected

interest at stake. As we have made clear, however, none of those

licenses may be invalidated at the remedial stage.

'° The Tribe drew 250 licenses in September 2002, and

another 73 in October 2004, for a total of 323 licenses. Colusa

represents that it will not be permitted to draw any more

licenses so long as it remains in a low-priority tier.

App. 26

(71 We need not decide whether the district

court’s Rule 19(a) determination was correct. The

State’s intervening amendment and ratification of its

1999 Compacts with several gaming tribes, which is

memorialized in the 2007 Amended Compacts, have

significantly altered the financing of the Revenue

Fund. Four of the 2007 Amended Compacts that are

now in effect contain the following provision:

If it is determined that there is an insuffi-

cient amount in the Indian Gaming Revenue

Sharing Trust Fund in a fiscal year to dis-

tribute the quarterly payments pursuant to

Government Code Section 12012.90 to each

eligible recipient Indian tribe, then the State

Gaming Agency shall direct a portion of the

revenue contribution in Section 4.3.1(b)(i) to

increase the revenue contribution to the In-

dian Gaming Revenue Sharing Trust Fund in

Section 4.3.2.2 in an amount sufficient to en-

sure the Indian Gaming Revenue Sharing

Trust Fund has sufficient resources for each

eligible recipient Indian tribe to receive

quarterly payments pursuant to Government

Code Section 12012.90.

E.g., Amendment to the Tribal-State Compact Be-

tween the State of California and the Morongo Band

of Mission Indians § II.B (Aug. 29, 2006), (amended

§ 4.3.1(1)). The “revenue contribution” specified in

amended section 4.3.1(b)(i) of these four 2007

Amended Compacts, in turn, guarantees an annual

aggregate inflow to the State in excess of $140 mil-

lion. See 2007 Amended Compacts § II.B (amended

ee

App. 27

§ 4.3.1(b)(i)). Should a shortfall develop in the Reve-

nue Fund, the Commission “shall” direct a sufficient

portion of this amount to the Revenue Fund to make

up for the shortfall. The potential backfill of more

than $140 million per year guaranteed by the 2007

Amended Compacts appears as a practical matter to

be more than sufficient to make up for any shortfall

in the Revenue Fund.” We therefore conclude that

the refund of Colusa’s $403,750 pre-payment fee, if

appropriate under the Compact, will not “as a practi-

cal matter impair or impede [the Non-Compact

Tribes’] ability to protect [their] interest” in receiving

their annual $1.1-million distribution as required by

California state law. Fed. R. Civ. P. 19(a)(1)(B)(i)."”

'° As of September 20, 2007, 71 Indian tribes were eligible

to receive the $1.1-million annual distribution from the Revenue

Fund. See, e.g., California Gambling Control Commission, Revenue

Sharing Trust Fund Recipients (Sept. 20, 2007), available at

http//www.cgcc.ca.gov/rstfi/2008/DistribF undReport020503%20%20-

%203312008.pdf (last visited July 31, 2008).

We reject the State’s argument that “actual implementa-

tion (which is not described in [the 2007 Compacts] ) cou!d result

in delayed reimbursement” to the Non-Compact Tribes. Rule 19

requires “more than speculation about a future event.” Makah,

910 F.2d at 558 (citations omitted).

App. 28

In the alternative, the State contends that the

Compact Tribes are also required parties to the pre-

payment fee claim. It argues that Colusa’s success in

obtaining its refund would impair the Compact

Tribes’ ability to protect their interest in “the 1999

Compact’s interpretation and the fulfillment of its

terms by all 1999 Compact tribes.” The State’s argu-

ment sweeps much too broadly. Nothing in the Com-

pact establishes any obligation towards the other

Compact Tribes insofar as the payment or refundabil-

ity of Colusa’s advance fees into the Revenue Fund

are concerned.” With respect to the pre-payment

provision, the 1999 Compacts are quintessentially

bilateral. Accordingly, the Compact Tribes’ relevant

Rule 19 interest must arise, if at all, from the bare

fact that the Compact Tribes are simultaneously

parties to identical bilateral compacts with the State.

We have never held that the mere coincidence of

parallel and independent contractual obligations vis-

a-vis a common party requires joinder of all similarly

situated parties. Cf’ Dawavendewa v. Salt River Project

Agric. Improvement & Power Dist., 276 F.3d 1150,

1157 (9th Cir. 2002) (“{A] party to a contract is neces-

sary, and if not susceptible to joinder, indispensable to

‘* It is true that, under the Compact, Colusa “agree[d] with

all other Compact Tribes ... that each Non-Compact Tribe in the

State shall receive the sum of $1.1 million per year.” 1999

Compacts, § 4.3.2.1(a) (emphasis added). No reciprocal obliga-

tion to contribute any specific amount or forgo otherwise legiti-

mate claims to the pre-payment fees, however, arises from this

joint commitment.

App. 29

litigation seeking to decimate that contract.”) (em-

phasis added). The mutuality-of-party requirement of

res judicata and defensive collateral estoppel ensures

that the similarly situated absent tribes will not be

prejudiced if and when they decide to challenge the

Commission’s interpretation of the refund provision of

the 1999 Compacts.” On the facts of this case, we

decline the State’s invitation to extend the scope of

mandatory joinder.

[8] Finally, we reject the State’s argument that

failure to join the Compact Tribes may expose the

State to inconsistent obligations. As the First Circuit

has cogently explained,

“lilnconsistent obligations” are not ... the

same as inconsistent adjudications or re-

sults. Inconsistent obligations occur when a

party is unable to comply with one court’s

order without breaching another court’s or-

der concerning the same incident. Inconsis-

tent adjudications or results, by contrast,

occur when a defendant successfully defends

a claim in one forum, yet loses on another

'° We also note that the State’s contention that Colusa’s

success wouid impair “the fulfillment of [tne 1999 Compacts’]

terms by all Compact tribes” is vitiated by its circular reasoning.

If Colusa succeeds in its claim, it will obtain relief that will, by

definition, “fulfill” the pre-payment term of the Compact. In

other words, the only “fulfillment” that Colusa’s claim, if suc-

cessful, would impair is that of the Commission’s current

interpretation of the provision. The Compact Tribes, however,

have no “legally protected” interest in the “fulfillment” of the

Commission’s particular interpretation of the Compact.

App. 30

claim arising from the same incident in an-

other forum.

Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st

Cir. 1998) (per curiam) (footnote and citations omit-

ted); see also 4 James Wm. Moore et al., Moore’s

Federal Practice — Civil § 19.03[4][d] (2008). We adopt

the approach endorsed by the First Circuit. Accord-

ingly, the possibility that the State may have to

refund Colusa’s pre-payment fees while adhering to a

different interpretation of the Compact in its dealings

with some other tribes does not, without more, rise

to the level of creating a “substantial risk” of

incurring “inconsistent obligations.” Fed. R. Civ. P.

19(a)(1)(B)(ii).

The Commission’s Authority to Conduct

Rounds of Draws

Colusa finally argues thai the Commission lacks

authority under the compact unilaterall:, to conduct

draws of gaming device licenses. As relief, Colusa

requests a declaration that the Commission “has no

authority under the Compact unilaterally to adminis-

ter the system established under the Compact for the

issuance of Gaming device licenses, but only to do so

in consultation with the Tribe.” “he district court

concluded that, if Colusa “prevailed, the relief would

deprive absent parties of their legal entitlements to

the licenses awarded pursuant to an invalid process.”

We reverse the district court’s determination because

it is contrary to our decision in Makah.

App. 31

[9] In Makah, we held that the absent tribes

were not required parties to the adjudication of the

plaintiff tribe’s “procedural claims” — its claim that

the harvest quotas imposed by the Secretary of Com-

merce “were the product of commitments made out-

side the administrative process.” Makah, 910 F.2d at

557 (internal quotation marks omitted). We reasoned

that “(tlhe absent tribes would not be prejudiced

because all of the tribes have an equal interest in an

administrative process that is lawful.” Jd. at 559. In

so holding, we also made clear that Rule 19 required

“the scope of the relief available to the Makah on

their procedural claims [to be] narrow” and limited to

prospective relief. Jd. We find this reasoning disposi-

tive in this case as well. Much like their counterparts

in Makah, the absent tribes “have an equal interest

in an administrative process that is lawful,” id. — that

is, that the Commission not conduct the draws of

licenses ultra vires. Moreover, as we have already

made clear, Rule 19 necessarily confines the relief

that may be granted on Colusa’s claims to remedies

that do not invalidate the licenses that have already

been issued to the absent Compact Tribes. See

Makah, 910 F.2d at 559. Thus, we reverse the district

court’s dismissal of Colusa’s fourth claim, albeit with

the proviso that, were Colusa to prevail on the merits,

no existing license may be invalidated at the remedial

stage.”

* We reject the State’s contention that, if Colusa prevailed

in establishing its fourth claim, the existing licenses would

(Continued on following page)

App. 32

CONCLUSION

We affirm the district court’s judgment dismiss-

ing Colusa’s claim for failure to negotiate in good

faith. We reverse the district court’s judgment dis-

missing Colusa’s other claims on the pleadings, and

remand for further proceedings consistent with this

opinion. Colusa is entitled to its costs on appeal.

AFFIRMED IN PART; REVERSED AND

REMANDED IN PART.

necessarily be void ab initio. It is true that, in Lockyer vu, City

and County of San Francisco, the Supreme Court of California

held that marriage licenses issued by the City of San Francisco

to same-sex couples in violation of state law were “void and of no

legal effect from their inception.” 33 Cal. 4th 1055, 1113 (2004).

In that case, however, the Supreme Court of California empha-

sized the “unusual, perhaps unprecedented, set of circum-

stances” surrounding the invalidation of the marriage licenses in

question. Jd. Moreover, in reaching its conclusion, the court

relied exclusively on the relevant provisions of California’s

Family Code and on case law addressing specifically marriages

celebrated in violation of state law. Jd. at 1113-14. Thus, Lockyer

is not controlling. The parties have directed our attention to no

other case — and we could find none — in support of the proposi-

tion that, under California law, the district court may not limit

relief to future conduct if Colusa prevailed on the merits of its

claim.

App. 33

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CACHIL DEHE BAND OF WINTUN

INDIANS OF THE COLUSA INDIAN

COMMUNITY, a federally

recognized Indian Tribe,

Plaintiff-Appellant,

L -

No. 06-16145

D.C. No.

STATE OF CALIFORNIA; CALIFORNIA | CV-04-02265-FCD

GAMBLING CONTROL COMMISSION,

an agency of the State of OPINION

California; and ARNOLD

SCHWARZENEGGER, Governor

of the State of California,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

April 9, 2008 — Pasadena, California

Filed August 8, 2008

Before: William C. Canby, Jr., Andrew J. Kleinfeld,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Canby

App. 34

COUNSEL

George Forman, Forman & Associates, San Rafael,

California, for the plaintiff-appellant.

Christine M. Murphy, Deputy Attorney General,

Sacramento, California (briefs); Peter H. Kaufman,

Deputy Attorney General, San Diego, California (oral

argument); for the defendants-appellees.

OPINION

CANBY, Circuit Judge:

This appeal concerns the joinder requirements of

Rule 19 of the Federal Rules of Civil Procedure and

their effect on litigation brought by an Indian tribe

engaged in casino gaming. The Cachil Dehe Band of

Wintun Indians of the Colusa Indian Community

(“Colusa”), a federaily recognized Indian tribe, en-

tered into a gaming compact with the State of Cali-

fornia in 1999. Colusa brought this action for

declaratory and injunctive relief against the State, its

Governor and the California Gambling Control Com-

mission (collectively, “the State”). Colusa challenges

the Commission’s interpretation of the compact and

the Commission’s assumption of authority to admin-

ister unilaterally the licensing of electronic gaming

devices. The district court concluded that the many

other Indian tribes that had entered into identical

gaming compacts with the State in 1999, as well as

California’s non-gaming tribes, were required parties

to this action. Because Indian tribes enjoy sovereign

App. 35

immunity and the action could not proceed in their

absence, the district court granted the State’s motion

for judgment on the pleadings. Colusa appeals. Be-

cause we conclude that the absent tribes are not

required parties to this action, we reverse the district

court’s judgment (with one minor exception) and

remand for further proceedings.

BACKGROUND

In 198%, Congress enacted the Indian Gaming

Regulatory Act (“IGRA”) “to provide a statutory basis

for the operation of gaming by Indian tribes as a

means of promoting tribal economic development,

self-sufficiency, and strong tribal governments.” 25

U.S.C. § 2702(1). IGRA recognizes three classes of

gaming. 25 U.S.C. § 2703(6)-(8). Slot machines and

equivalent gaming devices, which are the exclusive

subject of this litigation, are Class III games. See 25

U.S.C. § 2703(7)(B)(ii), (8). Under the statute, a tribe

may conduct Class Ill gaming activities only “in

conformance with a Tribal-State compact entered into

by the Indian tribe.” 25 U.S.C. § 2710(d)(1)(C).

In September 1999, Colusa entered into a gaming

compact (the “Compact”) with the State of California,

which sets forth various provisions relating to the

operation of Class III gaming devices. See Tribal-

State Gaming Compact Between the Colusa Indian

Community and the State of California (Oct. 8, 1999).

At the same time, sixty-two other tribes (the “Com-

pact Tribes”) executed virtually identical bilateral

App. 36

compacts with the State (the “1999 Compacts”).' See

Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d

712, 717-18 (9th Cir. 2003). The 1999 Compacts limit

the number of gaming devices operated by each tribe

to 2,000. See 1999 Compacts, § 4.3.2.2(a). They also

establish a formula setting a statewide maximum

number of gaming devices that all Compact Tribes

may license in the aggregate under the 1999 Com-

pacts. Id. § 4.3.2.2(a)(1).

A Compact Tribe, however, is not free to choose

unilaterally how many gaming devices to operate,

even if it wishes to operate fewer devices than the

2,000 limit. The Compacts establish a threshold

number of devices that tribes may operate without a

license. Jd. § 4.3.1. In Colusa’s case, that number was

set at the number of gaming devices, 523, operated by

the Tribe on September 1, 1999. For each additional

gaming device, Colusa is required to obtain a license.

Id. § 4.3.2.2(a). These licenses are distributed among

the Compact Tribes who apply to obtain them pursu-

ant to a detailed draw process. See id. § 4.3.2.2(a)(3).

Under this process, a Compact Tribe’s likelihood of

being awarded a license hinges on its placement in

one of five priority tiers. Jd. Placement in a particular

tier depends in part — though not exclusively — upon

the number of gaming devices already operated by

the tribe; the fewer gaming devices a tribe operates,

A generic copy of a 1999 Compact is available at http://

www.cgcc.ca.gov/enabling/tsc. pdf (last visited July 31, 2008),

App. 37

the higher its priority tier. Jd. If, in any given round,

more licenses are requested in aggregate by the

Compact Tribes than the Commission is distributing,

the license draw process is structured to award the

bulk of those licenses to the Compact Tribes who have

not yet developed large gaming operations. Jd.

In 2001, then-Governor Gray Davis issued an

executive order requiring the California Gambling

Control Commission (“Commission”) to take control of

the licensing of gaming devices. Exec. Order No. D-

29-01 (Mar. 8, 2001). Previously, a tribal administra-

tor had conducted gaming device license draws. As

soon as the Commission assumed control, it declared

the licenses issued in previous draws invalid and

replaced them with licenses issued by the Commis-

sion.

The 1999 Compacts also envision a revenue-

sharing mechanism for the benefit of California’s non-

gaming tribes. See 1999 Compacts, § 4.3.2.1. In order

to acquire licenses for gaming devices in excess of

their initial allowance, Compact Tribes must pay “a

non-refundable one-time pre-payment fee” of $1,250

for each gaming device being licensed. Jd. § 4.3.2.2(e).

In addition, in order to keep their licenses current,

Compact Tribes must pay annual fees for each li-

censed device in accordance with a pre-determined

fee schedule. Jd. § 4.3.2.2(a)(2). The fees are to be

deposited in the Revenue Sharing Trust Fund

(“Revenue Fund”), a fund created by the California

App. 38

State Legislature and administered by the Commis-

sion as trustee. Jd. Each Non-Compact Tribe’ is

entitled to receive a distribution of $1.1 million per

year from the Revenue Fund, unless the funds

therein are insufficient, in which case the available

funds are distributed in equal shares among the Non-

Compact Tribes. Id. § 4.3.2.1(a). The Commission has

interpreted the 1999 Compacts as providing that the

non-refundable, one-time pre-payment fee may be

used as a credit toward annual license fees, and that

no annual fees would be required for the first 350

licenses issued to a tribe.

Pursuant to the 1999 Compacts, the Legislature

also created the Indian Gaming Special Distribution

Fund (“Distribution Fund”). Cal. Govt Code

§ 12012.85. The 1999 Compacts direct each gaming

tribe to contribute to the Distribution Fund a portion

of its revenues calculated according to the number of

gaming devices operated and the “net wins” of those

devices. 1999 Compacts § 5.1(a). The Legislature may

then appropriate funds from the Distribution Fund to

make up for “shortfalls that may eccur in the .

Revenue ... Fund. This shall be the priority use of

* For purposes of revenue sharing, the 1999 Compacts

define a Compact Tribe as a tribe having a compact with the

State authorizing Class III Gaming; Non-Compact Tribes are

defined as federally recognized tribes that are operating fewer

than 350 gaming devices, whether or noi such a tribe has a

compact with the State.

App. 39

moneys in the... Distribution Fund.” Cal. Gov’t Code

§ 12012.85(d).

In 2002, the Commission notified Colusa and

other Compact Tribes that it would conduct a round

of gaming device license draws that September. Prior

to the draw, Colusa was operating its threshold

number of 523 gaming devices for which it did not

need licenses. Colusa notified the Commission of its

intent to draw 250 licenses and tendered a $312,500

check as its non-refundable one-time pre-payment

fee. Colusa was placed in the third priority tier and

received 250 licenses. In November 2003, the Com-

mission notified Colusa that it would conduct another

round of draws in December 2003. Colusa requested

377 licenses and submitted a pre-payment of

$471,250. Colusa was assigned to the fourth priority

tier, a classification that Colusa challenges in this

litigation. Colusa alleges that it was assigned to the

fourth tier because it had previously drawn some

licenses in the third tier, even though the number of

gaming devices it operated after the earlier drawing

should have continued to place it in the third tier. The

December drawing was held with Colusa in the

fourth tier and it received no licenses. The Commis-

sion refunded the pre-payment for those requested

licenses in full. In October 2004, the Commission

conducted a third draw. Colusa advanced fees for 341

licenses and was again placed in the fourth priority

tier. It received only 73 licenses. Colusa anticipates

receiving a refund of the pre-payment on the licenses

that it did not receive in the draw.

App. 40

Immediately after the December 2003 draw,

Colusa requested that the Governor meet and confer

with the Tribe with regard to (1) Colusa’s assignment

to the fourth priority tier in the December 2003 draw;

(2) the Commission’s determination of the statewide

aggregate number of licenses available to all tribes

for issuance under the 1999 Compacts; (3) the Com-

mission’s role and authority in the draw process; and

(4) the Commission’s retention of the $312,500 ten-

dered by the Tribe in connection with its draw of 250

licenses in September 2002. After an unsuccessful

meeting, the State formally rejected each of Colusa’s

positions. Colusa then initiated this litigation.

In its complaint, Colusa asserts that the State,

through the actions of the Commission, breached the

Compact by: (1) excluding Colusa from the third

priority tier in the December 2003 and October 2004

draws; (2) unilaterally determining the aggregate

number of licenses authorized by the Compact; (3)

refusing to refund Colusa’s non-refundable one-time

pre-payment fee in conjunction with the licenses

Colusa obtained in September 2002 and October

2004; (4) conducting rounds of draws of licenses

without authority; and (5) failing to negotiate in good

faith. The State filed a motion for judgment on the

pleadings, seeking to dismiss Colusa’s first, second,

third, and fourth claims for failure to join necessary

and indispensable parties and its fifth claim for

App. 41

failure to exhaust non-judicial remedies.’ The district

court granted the State’s motion to dismiss and

entered judgment in its favor. Colusa appeals.

While Colusa’s appeal was pending, the State

negotiated and executed amendments te the 1999

Compacts individually with at least five Indian tribes,

not including Colusa.“ These amended compacts,

* Colusa lists its fifth cause of action — failure to negotiate

in good faith — among its grounds for appeal. It does not, how-

ever, advance any argument in support of reversing the district

court’s judgment with respect to that claim. Accordingly, we

deem the claim abandoned. See Fed. R. App. P. 28(a)(9)(A);

Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (“Issues

raised in a brief which are not supported by argument are

deemed abandoned.”) (quoting Leer v. Murphy, 844 F.2d 628, 634

(9th Cir. 1988)). We therefore affirm the district court’s dismissal

of that claim.

* Amendment to the Tribal-State Compact Between the

State of California and the Agua Caliente Band of Cahuilla

Indians (Aug. 8, 2006); Amendment to the Tribal-State Compact

Between the State of California and the Morongo Band of

Mission Indians (Aug. 29, 2006); Amendment to the Tribal-State

Compact Between the State of California and the Pechanga

Band of Luiseno Mission Indians (Aug. 28, 2006); Amendment to

the Tribal-State Compact Between the State of California and

the Sycuan Band of the Kumeyaay Nation (Aug. 30, 2006);

Amendment to the Tribal-State Compact Between the State of

California and the San Manuel Band of Serrano M‘ssion Indians

of the San Manuel Reservation (Aug. 28, 2006); see also Indian

Gaming, 72 Fed. Reg. 71,939-02 — 71,939-04 (Dec. 19, 2007)

(notices); Indian Gaming, 73 Fed. Reg. 3,480-01 (Jan. 18, 2008)

(notice); California Gambling Control Commission, Tribal-State

Gaming Compacts, http://www.cgcec.ca.gov/compacts.asp (last

visited July 31, 2008). We take judicial notice of these amended

compacts pursuant to Federal Rule of Evidence 201, which

“permits us to ‘take judicial notice of the records of state

(Continued on foliowing page)

App. 42

which became effective between December 2007 and

January 2008 (“2007 Amended Compucts”), provide

for the issuance of up to 22,500 additional gaming

device licenses outside the limits established by the

1999 Compacts.” See 2007 Amended Compacts § II.B

(amended § 4.3.1(a)). In addition, four of the five 2007

Amended Compacts provide that, if a shortfall occurs

in the Revenue Fund, “the State Gaming Agency shall

direct a portion of the revenue contribution” made by

each of the 2007 Compact Tribes “to increase the

revenue contribution to the [Revenue Fund] in an

amount sufficient to ensure the [Revenue Funa! has

sufficient resources for each eligible recipient Indian

tribe to receive quarterly payments pursuant to Gov-

ernment Code Section 12012.90.” E.g., Amendment to

the Tribal-State Compact Between the State of Cali-

fornia and the Morongo Band of Mission Indians § II.B

(Aug. 29, 2006) (amended § 4.3.1.(/)), available at

http://www.cgcec.ca.gov/compacts.asp (last visited July

31, 2008). The aggregate revenue contribution made

[entities] and other undisputed matters of public record,

fincluding] executed Compact{s] ... not in the district court

record.” Wilbur v. Locke, 423 F.3d 1101, 1112 (9th Cir. 2005)

(quoting Disabled Rights Action Comm. v. Las Vegas Events,

Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004)). We note and overrule

the State’s objection to our consideration of these materials.

* The 2007 Amended Compacts allow the amending tribes

to continue operating machines pursuant to licenses previously

issued under the pool provision as well as machines which were

operated on September 1, 1999. The pool provision licenses

remain in force even though the 2007 Amended Compacts repeal

the pool provision itself.

App. 43

by these four tribes, which is therefore available to

fill any shortfall in the Revenue Fund, exceeds $140

million per year. See 2007 Amended Compacts § II.B

(amended § 4.3.1(b)(i)).

DISCUSSION

In addressing the State’s Rule 19 motion to

dismiss Colusa’s claims for failure to join required

parties, “the proper approach is first to decide

whether the tribes are ... ‘[required]’ parties who

should normally be joined under the standards of

Rule 19(a).” Am. Greyhound Racing, Inc. v. Hull, 305

F.3d 1015, 1022 (9th Cir. 2002).° If, as the district

court concluded in this case, the tribes are required

parties, “the court must determine whether, in equity

and good conscience, the action should proceed among

the existing parties or should be dismissed.” Fed. R.

* The language of Federal Rule of Civil Procedure 19 has

been amended since the district court’s dismissal of this action.

The Rules Committee advised that the changes were “stylistic

only,” see Fed. R. Civ. P. 19 advisory comm. nn. (2008), and the

Supreme Court has agreed, see Republic of the Philippines v.

Pimentel, 128 S. Ct. 2180, 2184 (2008). Two changes are relevant

to this case. First, the word “required” replaced the word

“necessary” in subparagraph (a). Second, the word “indispensa-

ble” is deleted from the current text of subparagraph (b). All

quotations hereinafter to materials predating the 2007 amend-

ment are altered, with brackets, to reflect the current language

of Rule 19.

" The parties do not dispute that the absent tribes enjoy

sovereign immunity. See Santa Clara Pueblo v. Martinez, 436

(Continued on following page)

App. 44

Civ. ?. 19(b). On appeal, we review the district court’s

Rvuie 19 determinations for an abuse of discretion.

Am. Greyhound Racing, 305 F.3d at 1022; cf. Republic

of the Philippines v. Pimentel, 128 S. Ct. 2180, 2189

(2008) (declining to address the standard of review for

Rule 19(b) decisions). To the extent that in its inquiry

the district court “decided a question of law, we

review that determination de novo.” Am. Greyhound

Racing, 305 F.3d at 1022.

The issue that we find dispositive of all conte ted

portions of this appeal is whether the absent tribes

are “required” parties to the adjudication of Colusa’s

first, second, third and fourth claims within the

meaning of Rule 19(a). We conclude that they are not,

and that the district court abused its discretion in

finding that the absent tribes were required parties

to the disposition of these claims. We accordingly

reverse the district court’s judgment with respect to

those claims and remand for further proceedings. Our

conclusion that the absent tribes are not required

parties under Rule 19(a) makes inapplicable the

provisions of Rule 19(b) governing the decision

whether to proceed with litigation when a required

party cannot be joined; we therefore do not address

the district court’s determination of that issue.”

U.S. 49, 58 (1978). Accordingly, because they have not consented

to suit, they cannot be joined in this action.

" For the same reason, our analysis is not affected by the

Supreme Court’s recent holding in Pimentel, 128 S. Ct. at 2190.

In Pimentel, the Supreme Court reversed the decision of a panel

(Continued on following page)

App. 45

{1} The absent tribes are “required” parties to

this action if they “claim [] an interest relating to the

subject of the action and [are] so situated that dispos-

ing of the action in [their] absence may: (i) as a prac-

tical matter impair or impede [their] ability to protect

the interest; or (11) leave an existing party subject to a

substantial risk of incurring double, multiple, or

otherwise inconsistent obligations because of the

interest.” Fed. R. Civ. P. 19(a)(1)(B) (emphases added).’

A crucial premise of mandatory joinder, then, is that

the absent tribes possess an interest in the pending

litigation that is “legally protected.” Makah sndian

Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). We

have developed few categorical rules informing this

inquiry. At one end of the spectrum, we have held

that the interest at stake need not be “property in the

sense of the due process clause.” Am. Greyhound

Racing, 305 F.3d at 1023. At the other end of the

spectrum, we have recognized that the “interest must

be more than a financial stake, and more than specu-

lation about a future event.” Makah, 910 F.2d at 558

(citations omitted); see also N. Alaska Envtl. Ctr. v.

Hodel, 803 F.2d 466, 468-69 (9th Cir. 1986) (holding

of this court because it had not “givfen] full effect to sovercign

immunity” in its Rule 19(b) caiculus. Jd. Because in our case the

absent tribes are not required parties under Rule 19(a), we are

unaffected by the Rule 19(b) analysis set forth in Pimentel.

* The State does not contend that, in the absence of the

other Compact (or Non-Compact) Tribes, “the court cannot

accord complete relief among existing parties.” Fed. R. Civ. P.

19(a)(1)(A).

App. 46

that miners who had submitted mining plans to

National Park Service were not necessary parties to

an action to enjoin mining in parks until environ-

mental impact statements were prepared). Within the

wide boundaries set by these general principles, we

have emphasized the “practical” and “fact-specific”

nature of the inquiry. Makah, 910 F.2d at 558; see

also Bakia v. County of Los Angeles, 687 F.2d 299, 301

(9th Cir. 1982) (per curiam) (“There is no precise

formula for determining whether a particular non-

party should be joined under Rule 19(a).... The

determination is heavily influenced by the facts and

circumstances of each case.”). Accordingly, an interest

that “arises from terms in bargained contracts” may

be protected, but we have required that such an

interest be “substantial.” Am. Greyhound Racing, 305

F.3d at 1023. An interest in a fixed fund or limited

resource that the court is asked to allocate may also

be protected. Makah, 910 F.2d at 558-59. At the same

time, an absent party has no legally protected inter-

est at stake in a suit merely to enforce compliance

with administrative procedures. See N. Alaska, 803

F.2d at 469; Makah, 910 F.2d at 559 (“The absent

tribes would not be prejudiced because all of the

tribes have an equal interest in an administrative

process that is lawful.”).

The Size of the License Pool

Colusa challenges the Commission’s computation

of the statewide maximum number of licences that

may be issued under the 1999 Compacts. The district

App. 47

court dismissed Colusa’s claim, concluding that the

other Compact Tribes are required parties in the

absence of which the action should be dismissed.

Although we agree with the district court that some

absent tribes may prefer that the State issue fewer

licenses, we reverse its dismissal of Colusa’s claim

because the absent tribes’ only interest relevant for

Rule 19(a) purposes is freedom from competition. We

hold that this interest, without more, is not “legally

protected” for Rule 19 purposes.

[2] It is important to identify clearly the Com-

pact Tribes’ interest at stake. Those Compact Tribes

that currently enjoy a dominant position in the

gaming industry will likely prefer to maintain a low

statewide maximum number of licenses available

under the 1999 Compacts. On the other hand, those

who intend to expand their gaming operations and

compete with the dominant gaming tribes will gladly

accept an increase in the size of the license pool

created by the 1999 Compacts. Indeed, the State itself

repeatedly characterizes the absent tribes’ interest at

stake as the preservation of their “market share”

within California’s gaming industry. Properly framed,

then, the respective advantages that various tribes

may enjoy under a more generous or restrictive

interpretation of the pool provision are an economic

incident ef their market positions under a common

licensing regime. ;

[3] The mere fact that the outcome of Colusa’s

litigation may have sore financial consequences for

the non-party tribes is not sufficient to make those

App. 48

tribes required parties, however. See, e.g., Makah,

910 F.2d at 558 (“[The] interest must be more than a

financial stake.”). The absent tribes must have a

legally protected interest and, on this record, the only

potential protection lies in the 1999 Compacts them-

selves. The interest could be protected if it actually

“arises from terms in bargained contracts.” Am.

Greyhound Racing, 305 F.3d at 1023. We conclude

that it does not.’ The 1999 Compacts do not purport

to establish, through the license pool provision or

otherwise, an overarching limit on the number of

gaming licenses gemerally available in California.

Rather, they place a limit only on the smaller uni-

verse of licenses that may be issued under the 1999

Compacts.’ This limit alone is insufficient to deter-

mine the competitive landscape of California’s gam-

ing industry, for it leaves the State at liberty to issue

an unlimited number of licenses outside the pool

'° We do not decide the broader question whether avoiding

competition ever qualifies as a legally protected interest under

Rule 19(a) in the context of Indian gaming. We note, however,

that the legislative history of IGRA casts considerable doubt on

a state’s assertion of any such interest in the context of Indian

gaming; the Senate’s Select Committee on Indian Affairs

reported its intent that the states not use IGRA’s Class III

gaming compact requirement as a protectionist measure,

although that concern was directed at the protection of non-

tribal operators, not absent tribes as in this case. See S. Rep. No.

100-446, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3083.

" The 1999 Compacts establish a formula for a limit on

the “number of machines: that all Compact Tribes in the aggre-

gate may license pursuamt to this Section... .” 1999 Compacts

§ 4.3.2.2(a)(1) (emphasis added).

App. 49

created by the 1999 Compacts. Indeed, the State has

recently negotiated amendments, now in effect, to the

1999 Compacts with several tribes. These amend-

ments provide for the issuance of up to 22,500 addi-

tional licenses outside the pool created by the 1999

Compacts. These actions reflect the reality that the

1999 Compacts afford no express or implied protec-

tion against competition per se. The interest of some

of the absent tribes in avoiding competition does not

“arise{ ] from terms in bargained coniracts,” id., and

is accordingly not “legally protected” under the cir-

cumstances of this case. The absent 1999 Compact

tribes thus are not required parties for litigation of

Colusa’s claim seeking to raise the aggregate limit on

licenses under the 1999 Compacts.

In reaching this conclusion, we reject the State’s

contention that its licensing scheme is comparable to

the system for the allocation of limited resources at

issue in Makah. In Makah, we held that absent tribes

had a protected interest that made them necessary

parties to a claim for amendment of a pre-existing

allocation of a finite resource — a particular year’s off-

shore salmon harvest — because an allocation to one

tribe necessarily entailed the parallel deprivation of

another. Makah, 910 F.2d at 556-57. The resource at

issue was finite: ocean fishing of salmon in excess of

the total permitted harvest would jeopardize the

survival of the species’ population in the region’s

weakest runs. /d. at 557. In contrast, the gaming

licensing scheme at issue here rations a resource —

licenses for gaming devices — that is, if not for purely

App. 50

economic considerations, effectively unlimited. Thus,

for the reasoning of Makah to be at all relevant to

this case, the State would need to show that, despite

not being inherently finite, the resource of licenses for

gaming devices is rendered at least legally finite by

operation of the terms of the 1999 Compacts. As we

have already explained, however, the statewide cap

pu‘ in place by the 1999 Compacts does not, without

more, constrain the number of gaming licenses gen-

erally available in California. Thus, the absent tribes

have no legally protected interest in the determina-

tion of the license pool that may be issued under the

1999 Compacts.

{4] Finally, we also find it significant that,

unlike the plaintiff in American Greyhound Racing,

Colusa does not seek to invalidate compacts to which

it is not a party; this litigation is not “aimed” at the

other tribes and their gaming. Am. Greyhound Rac-

ing, 305 F.3d at 1026. On the contrary, Colusa seeks

to enforce a provision of its own Compact which may

affect other tribes only incidentally. Under the spe-

cific circumstances of this case, the Compact Tribes

are not required parties to the adjudication of Co-

lusa’s challenge to the size of the 1999 Compact

license pool.”

* We also are not persuaded by the State’s unexplained

contention that adjudication of Colusa’s challenge to the Com-

mission’s determination of the statewide cap would expose the

State to a significant risk of “inconsistent obligations” within the

meaning of Rule 19. Should different district courts reach

inconsistent conclusions with respect to the size of the license

(Continued on following page)

App. 51

Colusa’s Placement in Priority Tier [IV

Colusa next challenges its placement in the

fourth priority tier since the December 2003 draw.

The district court dismissed Colusa’s claim on the

ground that the absent Compact Tribes “would be

deprived of thleir gaming] licenses or the opportunity

to obtain those licenses.” This ruling was error, for it

misconstrues both the nature of the absent tribes’

interest in the licenses that may be issued in the

future and the consequences of litigating Colusa’s

challenge to its placement in the fourth tier. It is true

that, if one assumes that the license pool is finite, an

order to issue new licenses to Colusa may render

those licenses unavailable to the absent tribes,

thereby depriving them of their “opportunity” to

obtain them. Nonetheless, we conclude that the

absent tribes’ interest in their “opportunity” to obtain

future licenses is insufficient to render them “re-

quired” parties for Rule 19(a) purposes.

[5] Once again, it is necessary carefully to iden-

tify the absent parties’ interest at stake. To the extent

that the “opportunity” to obtain licenses means the

entitlement to participate in future rounds of draws,

the litigation of Colusa’s tier assignment will not “as

a practical matter impair or impede the [absent

tribes’] ability to protect the interest.” Fed. R. Civ. P.

19(a)(1)(B)(i). The absent tribes remain free to enter

pool created under the 1999 Compacts, such inconsistencies

could be resolved in an appeal to this court.

App. 52

future draws. The possible complaint of the absent

tribes, however, is that assignment of Colusa to a

higher priority tier may dilute the probability that

the absent tribes will obtain the licenses they apply

for. But the absent tribes have no guarantee against

having to compete with any particular number of

tribes in their tier or a higher-priority tier. Nor can it

be said that any particular degree of likelihood of

receiving licenses “arises from terms in bargained

contracts” and, more specifically, from the 1999

Compacts. Am. Greyhound Racing, 305 F.3d at 1023.

Under IGRA, entering into a compact with state

authorities is, of course, a threshold requirement for

Indian tribes wishing to develop Class III gaming

operations. See 25 U.S.C. § 2710(d)(1)(C). In that

sense, if it were not for the 1999 Compacts, the ab-

sent tribes would have no likelihood of ever obtaining

any licenses. In our “practical” and “fact-specific”

Rule 19 inquiry, however, we require more than mere

“but-for” causation before recognizing a legally pro-

tected interest. Makah, 910 F.2d at 558; see also

Bakia, 687 F.2d at 301. Here, in addition to the

threshold requirement of a compact, a number of

other factors determine the actual likelihood that any

given tribe will receive any licenses. As the facts of

this litigation demonstrate, crucia! among these

factors is the past, present and future demand for

new licenses by other tribes placed in higher or equal

priority tiers. A tribe wishing to obtain additional

licenses has absolutely no control over the overall

demand for new licenses, or over the number of tribes

that may be placed in the same or a higher priority

App. 53

tier. Thus, the causal connection between the terms of

the 1999 Compacts and an absent tribe’s likelihood of

obtaining future licenses is attenuated indeed. See

Makah, 910 F.2d at 558 (“speculation about a future

event” does not give rise to a legally protected inter-

est). We therefore conclude that no particular degree

of likelihood of obtaining licenses “arises from terms

in bargained contracts,” Am. Greyhound Racing, 305

F.3d at 1023. As a consequence, the opportunity to

obtain licenses does not qualify as a legally protected

interest for Rule 19 purposes.

The interest of the absent tribes in Colusa’s tier

assignment is therefore quite different from the

interest of the absent tribes in American Greyhound

Racing. In that case, we emphasized that the gaming

compacts between Arizona and the Indian tribes,

which were the subject of that litigation, “provideld]

for automatic renewal if neither party gives the

requisite notice of termination. [That] provision [was]

an integral part of the existing compacts, and was

part of the bargain that the tribes entered with the

State.” Am. Greyhound Racing, 305 F.3d at 1023. We

reversed the district court’s injunction because it

modified the compacts of the absent tribes and

stripped those tribes of the very object of their bar-

gain — automatic renewal unless the parties affirma-

tively terminated the compacts. Jd. Here, Colusa’s

ter claim does not negate any absent tribe’s right to

its place in any tier, or its right to participate in the

manner guaranteed by the Compacts. Colusa’s claim

at most increases the competition for licenses to be

App. 54

drawn but, as we have explained, the 1999 Compacts

do not guarantee freedom from competition, nor do

they grant an entitlement to draw any specific license

or number of licenses or even a predetermined place

in line that may entail a particular likelihood of

obtaining new licenses. Thus, American Greyhound

Racing does not control, because litigation of Colusa’s

claim for placement in a higher tier cannot impair

any Compact rights that were the object of the bar-

gain of the absent tribes.

[6] Different considerations apply to the inter-

est of the absent tribes in the licenses that they have

already received. We do not question that the Com-

pact Tribes which requested and obtained licenses in

the December 2003 and subsequent draws by placing

ahead of Colusa have a legally protected interest in

those licenses. In order for the absent tribes to be

“required” parties under Rule 19, however, the State

must also show that their ability to protecc their

interest “may ... as a practical matter [be] im-

pairled]” by the litigation of Colusa’s claim to a

higher tier placement. Fed. R. Civ. P. 19(a)(1)(B)(G). To

the extent that Colusa seeks prospective relief in the

form of a declaration that may place it in the third

priority tier in future draws, such relief, if granted,

would not prejudice the absent tribes’ legally pro-

tected interest in their existing licenses.” It was

'" The State’s contention that prospective relief is inapposite

because Colusa’s tier placement would be determined by a

formula not available to the other Compact Tribes is unavailing.

(Continued on following page)

App. 55

therefore an abuse of discretion for the district court

to prohibit Colusa from litigating the legality of the

Commission’s interpretation of the tier system. Like

the Makah court, however, we emphasize that “the

scope of the relief available [to Colusa] ... is narrow.”

Makah, 910 F.2d at 559. Accordingly, to the extent

Colusa seeks injunctive relief requiring the Commis-

sion to restore Colusa to the position it would have

occupied under its claimed interpretation of the

Compact by issuing new licenses, such relief may be

granted only insofar as it does not interfere with the

validity or distribution of the licenses already as-

signed to the other Compact Tribes."

As we explained, the 1999 Compacts do not create a legally

protected interest in either freedom from competition, see supra

p. 10172-73, or a specific place in line in future draws, see supra

p. 10177-78.

'’ We reject the State’s argument that, if Colusa prevailed

on its first claim that it was entitled to a higher tier placement,

the entire license draw process would have to be retroactively

undone. Colusa does not seek this remedy and we see no reason

why a court of equity would be compelled to grant it.

We also reject the State’s contention that “the other 1999

Compact tribes, which have been placed in tiers based on the

Commission’s interpretation of the tier process, would neverthe-

less have suffered prejudice.” The licenses that have already

been issued comprise the absent tribes’ only legally protected

interest at stake. As we have made clear, however, none of those

licenses may be invalidated at the remedial stage.

App. 56

Colusa’s Pre-payment Fees

In its next claim, Colusa seeks restitution of the

$403,750 it tendered to the Commission as pre-

payment for the 323 licenses it has obtained in the

draws thus far. The Commission, as trustee of the

Revenue Fund, is holding the pre-payment as a credit

against future annual fees. Colusa argues that the

pre-payment should be refunded because Colusa will

not owe any annual fees until it draws at least 350

licenses — an illusory prospect so long as the tribe is

assigned to the fourth priority tier.’ The district court

dismissed the claim because Colusa’s non-refundable

pre-payment is deposited in the Revenue Fund and,

“to the extent that there is insufficient money to pay

each Non-Compact Tribe $1.1 million per year, an

award to plaintiff will lessen the amount of money

distributed to each other tribe.” Thus the district

court held that the claim could not be litigated in the

absence of the non-Compact tribes eligible for distri-

butions from the Fund.

[7] We need not decide whether the district

court’s Rule 19(a) determination was correct. The

State’s intervening amendment and ratification of its

1999 Compacts with several gaming tribes, which is

memorialized in the 2007 Amended Compacts, have

significantly altered the financing of the Revenue

' The Tribe drew 250 licenses in September 2002, and

another 73 in October 2004, for a total of 323 licenses. Colusa

represents that it will not be permitted to draw any more

licenses so long as it remains in a low-priority tier.

App. 57

Fund. Four of the 2007 Amended Compacts that are

now in effect contain the following provision:

If it is determined that there is an insuffi-

cient amount in the Indian Gaming Revenue

Sharing Trust Fund in a fiscal year to dis-

tribute the quarterly payments pursuant to

Government Code Section 12012.90 to each

eligible recipient Indian tribe, then the State

Gaming Agency shall direct a portion of the

revenue contribution in Section 4.3.1(b)(i) to

increase the revenue contribution to the In-

dian Gaming Revenue Sharing Trust Fund in

Section 4.3.2.2 in an amount sufficient to en-

sure the Indian Gaming Revenue Sharing

Trust Fund has sufficient resources for each

eligible recipient Indian tribe to receive

quarterly payments pursuant to Government

Code Section 12012.90.

E.g., Amendment to the Tribal-State Compact Be-

tween the State of California and the Morongo Band

of Mission Indians § JI.B (Aug. 29, 2006), (amended

§ 4.3.1(/)). The “revenue contribution” specified in

amended section 4.3.1(b)(i) of these four 2007

Amended Compacts, in turn, guarantees an annual

aggregate inflow to the State in excess of $140 mil-

lion. See 2007 Amended Compacts § II.B (amended

§ 4.3.1(b)(i)). Should a shortfall develop in the Reve-

nue Fund, the Commission “shall” direct a sufficient

portion of this amount to the Revenue Fund to make

up for the shortfall. The potential backfill of more

than $140 million per year guaranteed by the 2007

Amended Compacts appears as a practical matter to

App. 58

be more than sufficient to make up for any shortfall

in the Revenue Fund.” We therefore conclude that

the refund of Colusa’s $403,750 pre-payment fee, if

appropriate under the Compact, will not “as a practi-

cal matter impair or impede [the Non-Compact

Tribes’] ability to protect [their] interest” in receiving

their annual $1.1-million distribution as required by

California state law. Fed. R. Civ. P. 19(a)(1)(B){i).""

In the alternative, the State contends that the

Compact Tribes are also required parties to the pre-

payment fee claim. It argues that Colusa’s success in

obtaining its refund would impair the Compact

Tribes’ ability to protect their interest in “the 1999

Compact’s interpretation and the fulfillment of its

terms by all 1999 Compact tribes.” The State’s

argument sweeps much too broadly. Nothing in the

Compact establishes any obligation towards the other

Compact Tribes insofar as the payment or refundabil-

ity of Colusa’s advance fees into the Revenue Fund

‘* As of September 20, 2007, 71 Indian tribes were eligible

to reccive the $1.1-million annual distribution from the Revenue

Fund. See, e.g., California Gambling Control Commission,

Revenue Sharing Trust Fund Recipients (Sept. 20, 2007),

available at http://www.cgcc.ca.gov/rstfi/2008/DistribFundReport

020503%20%20-%2003312008. pdf (last visited July 31, 2008).

'' We reject the State’s argument that “actual implementa-

tion (which is not described in {the 2007 Compacts]) could result

in delayed reimbursement” to the Non-Compact Tribes. Rule 19

requires “more than speculation about a future event.” Makah,

910 F.2d at 558 (citations omitted).

App. 59

are concerned.” With respect to the pre-payment

provision, the 1999 Compacts are quintessentially

bilateral. Accordingly, the Compact Tribes’ relevant

Rule 19 interest must arise, if at all, from the bare

fact that the Compact Tribes are simultaneously

parties to identical bilateral compacts with the State.

We have never held that the mere coincidence of

parallel and independent contractual obligations vis-

a-vis a common party requires joinder of all similarly

situated parties. Cf. Dawavendewa v. Salt River

Project Agric. Improvement & Power Dist., 276 F.3d

1150, 1157 (9th Cir. 2002) (“[A] party to a contract is

necessary, and if not susceptible to joinder, indispen-

sable to litigation seeking to decimate that contract.”)

(emphasis added). The mutuality-of-party require-

ment of res judicata and defensive collateral estoppel

ensures that the similarly situated absent tribes will

not be prejudiced if and when they decide to chal-

lenge the Commission’s interpretation of the refund

provision of the 1999 Compacts.” On the facts of this

* It is true that, under the Compact, Colusa “agree[d] with

all other Compact Tribes ... that each Non-Compact Tribe in the

State shall receive the sum of $1.1 million per year.” 1999

Compacts, § 4.3.2.1(a) (emphasis added). No reciprocal obliga-

tion to contribute any specific amount or forgo otherwise legiti-

mate claims to the pre-payment fees, however, arises from this

joint commitment.

"* We also note that -he State’s contention that Colusa’s

success would impair “the fulfillment of [the 1999 Compacts’)

terms by all Compact tribes” is vitiated by its circular reasoning.

If Colusa succeeds in its claim, it will obtain relief that will, by

definition, “fulfill” the pre-payment term of the Compact. In

(Continued on following page)

App. 60

case, we decline the State’s invitation to extend the

scope of mandatory joinder.

[8] Finally, we reject the State’s argument that

failure to join the Compact Tribes may expose the

State to inconsistent obligations. As the First Circuit

has cogently explained,

“fijnconsistent obligations” are not ... the

same as inconsistent adjudications or re-

sults. Inconsistent obligations occur when a

party is unable to comply with one court’s

order without breaching another court’s or-

der concerning the same incident. Inconsis-

tent adjudications or results, by contrast,

occur when a defendant successfully defends

a claim in one forum, yet loses on another

claim arising from the same incident in an-

other forum.

Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st

Cir. 1998) (per curiam) (footnote and citations omit-

ted); see also 4 James Wm. Moore et al., Moore’s

Federal Practice-Civil § 19.03[4][d] (2008). We adopt

the approach endorsed by the First Circuit. Accord-

ingly, the possibility that the State may have to

refund Colusa’s pre-payment fees while adhering to a

different interpretation of the Compact in its dealings

other words, the only “fulfillment” that Colusa’s claim, if suc-

cessful, would impair is that of the Commission’s current

interpretation of the provision. The Compact Tribes, however,

have no “legally protected” interest in the “fulfillment” of the

Commission’s particular interpretation of the Compact.

App. 61

with some other tribes does not, without more, rise to

the level of creating a “substantial risk” of incurring

“inconsistent obligations.” Fed. R. Civ. P. 19(a)(1)(B)(i1).

The Commission’s Authority to Conduct

Rounds of Draws

Colusa finally argues that the Commission lacks

authority under the compact unilaterally to conduct

draws of gaming device licenses. As relief, Colusa

requests a declaration that the Commission “has no

authority under the Compact unilaterally to adminis-

ter the system established under the Compact for the

issuance of Gaming device licenses, but only to do so

in consultation with the Tribe.” The district court

concluded that, if Colusa “prevailed, the relief would

deprive absent parties of their legal entitlements to

the licenses awarded pursuant to an invalid process.”

We reverse the district court’s determination because

it is contrary to our decision in Makah.

[9] In Makah, we held that the absent tribes

were not required parties to the adjudication of the

plaintiff tribe’s “procedural claims” — its claim that

the harvest quotas imposed by the Secretary of Com-

merce “were the product of commitments made out-

side the administrative process.” Makah, 910 F.2d at

557 (internal quotation marks omitted). We reasoned

that “[t]he sbsent tribes would not be prejudiced

because all of the tribes have an equal interest in an

administrative erocess that is lawful.” Jd. at 559. In

so holding, we also made clear that Rule 19 required

App. 62

“the scope of the relief available to the Makah on

their procedural claims [to bel narrow” and limited to

prospective relief. /d. We find this reasoning disposi-

tive in this case as well. Much like their counterparts

in Makah, the absent tribes “have an equal interest

in an administrative process that is lawful,” id. — that

is, that the Commission not conduct the draws of

licenses ultra vires. Moreover, as we have already

made clear, Rule 19 necessarily confines the relief

that may be granted on Colusa’s claims to remedies

that do not invalidate the licenses that have already

been issued to the absent Compact Tribes. See

Makah, 910 F.2d at 559. Thus, we reverse the district

court’s dismissal of Colusa’s fourth claim, albeit with

the proviso that, were Colusa to prevail on the merits,

no existing license may be invalidated at the remedial

stage.”

” We reject the State’s contention that, if Colusa prevailed

in establishing its fourth claim, the existing licenses would

necessarily be void ab initio. It is true that, in Lockyer v. City

and County of San Francisco, the Supreme Court of California

held that marriage licenses issued by the City of San Francisco

to same-sex couples in violation of state law were “void and of no

legal effect from their inception.” 33 Cal. 4th 1055, 1113 (2004).

In that case, however, the Supreme Court of California empha-

sized the “unusual, perhaps unprecedented, set of circum-

stances” surrounding the invalidation of the marriage licenses in

question. Jd. Moreover, in reaching its conclusion, the court

relied exclusively on the relevant provisions of California’s

Family Code and on case law addressing specifically marriages

celebrated in violation of state law. Jd. at 1113-14. Thus, Lockyer

is not controlling. The parties have directed our attention to

no other case — and we could find none — in support of the

(Continued on following page)

App. 63

CONCLUSION

We affirm the district court’s judgment dismiss-

ing Colusa’s claim for failure to negotiate in good

faith. We reverse the district court’s judgment dis-

missing Colusa’s other claims on the pleadings, and

remand for further proceedings consistent with this

opinion. Colusa is entitled to its costs on appeal.

AFFIRMED IN PART; REVERSED AND

REMANDED IN PART.

proposition that, under California law, the district court may not

limit relief to future conduct if Colusa prevailed on the merits of

its claim.

App. 64

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CACHIL DEHE BAND OF

WINTUN INDIANS OF

THE COLUSA INDIAN

COMMUNITY, a federally

recognized Indian Tribe,

Plaintiff

aintift, NO. CIV.

v. S-04-2265 FCD KJM

STATE OF CALIFORNIA; MEMORANDUM

CALIFORNIA GAMBLING AND ORDER

CONTROL COMMISSION, |

an agency of the State of (Filed May 16, 2006)

California; and ARNOLD

SCHWARZENEGGER,

Governor of the State of

California,

Defendants. /

This matter is before the court on defendants’

motion for judgment on the pleadings.’ Plaintiff

' Plaintiff also moves for a modification of the Pretrial

Scheduling Order (“PSO”) for the court to hear its motion for

summary judgment on its first four claims for relief. However,

for the reasons set forth herein, plaintiff’s motion to modify the

PSO is DENIED as moot.

(Cont. 1.ued on following page)

App. 65

opposes defendants’ motion. For the reason’s set forth

below, defendants’ motion is GRANTED.

BACKGROUND

Plaintiff, Cachil Dehe Band of Wintun Indians of

the Colusa Indian Community (the “Tribe”), is an

American Indian Tribe with a governing body duly

recognized by the Secretary of the Interior. (PI.s’

Compl., filed Oct. 25, 2004, 4 2). The Tribe entered

into a Class III Gaming Compact (the “Compact”)

with the State of California (the “State”) in 1999. (/d.

q 24). At the same time, 56 other tribes (the “Compact

Tribes”) also executed virtually identical compacts

with the State. (/d.; see Artichoke Joe’s California

Grand Casino v. Norton, 353 F.3d 712, 717-18 (9th

Cir. 2003); Artichoke Joe’s California Grand Casino,

216 F. Supp. 2d 1084, 1094 (E.D. Cal. 2002)).

The Compact sets forth various provisions relat-

ing to the operation of Class III Gaming Devices. The

Compact sets the limit of the amount of Gaming

Devices operated by each individual tribe at 2,000.

(Compl. "14; Tribal-State Compact between the

Plaintiff also submitted three declarations in support of its

Opposition to defendants’ Rule 12(c) motion. Because this matter

is before the court on a motion for judgment on the pleadings,

consideration of material outside the pleadings, except for those

properly considered pursuant to judicial notice, is not appropri-

ate. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

896 F.2d 1549, 1550 (9th Cir. 1990). The court will not consider

this motion as a motion for summary judgment.

App. 66

State of California and the Colusa Indian Community

(“Compact”), attached as Ex. 1 to Defs.’ Request for

Judicial Notice, § 4.3.2.2).2 The Compact also sets a

statewide maximum on the number of Gaming De-

vices that all Compact Tribes may license in the

aggregate. (Id.) Gaming Device licenses are distrib-

uted among all the 1999 Compact Tribes pursuant to

the license draw process provided by the Compact.

(Compact § 4.3.2.2). Tribes are awarded licenses

based upon the tribe’s placement in one of five prior-

ity tiers. (/d.) Placement in a particular tier is based

upon the number of Gaming Devices operated by the

tribe. Ud.) On or about March 31, 2001, then-

Governor Gray Davis issued Executive Order D-31-01

in which he declared that the California Gambling

Control] Commission (““CGCC”) shall control gaming

device licensing. (Compl. 4 18) Prior to that date, a

tribal draw administrator conducted gaming device

license draws. (Ud. 4 16). In June 2002, the CGCC

declared that the licenses issued in those draws were

invalid and that they would be replaced by licenses

issued by the CGCC. (dd. { 21).

The Compact also provides for revenue sharing

with non-gaming tribes. The Compact sets forth that

a tribe may acquire and maintain additional Gaming

* The court takes judicial notice of the Compact. Fed. R. Civ.

Proc. 201; Cal. Gov't Code § 12012.25 (ratifying the 1999 Com-

pacts).

* The statewide cap is calculated pursuant to a formula

provided in § 4.3.2.2 of the Compact.

App. 67

Device licenses by paying annual fees in accordance

with a fee schedule and by paying, for each Gaming

Device license, “a non-refundable one-time pre-

payment fee” in the amount of $1,250 for each Gam-

ing Device being licensed. (Jd. { 14). The monies are

to be received, deposited, and distributed from the

Revenue Sharing Trust Fund (“RSTF”), a fund cre-

ated by the Legislature and administered by the

CGCC as trustee. (Compact § 4.3.2). For purposes of

revenue sharing, the Compact defines a Compact

Tribe as a tribe having a compact with the State

authorizing Class III Gaming; Non-Compact Tribes

are defined as federally-recognized tribes that are

operating fewer than 350 Gaming Devices, whether

or not such a tribe has a Compact with the State.

(Compl. 410; Compact § 4.3.2(a)(1)). The revenue

sharing provisions of the Compact provide that Non-

Compact Tribes shall receive $1.1 million per year,

unless there are insufficient funds, in which case, the

available monies in the RSTF shall be distributed in

equal shares to: the Non-Compact Tribes (the “RSTF-

eligible Tribes”). (Compact § 4.3.2.1). The CGCC

interpreted that the non-refundable, one-time pre-

payment fee could be used as a credit toward annual

license fees and that no annual fees would be re-

quired for the first 350 licenses issued to a tribe.

(Compl. q 21).

Section 9 of the Compact also establishes a

procedure to be followed in the event of a dispute

relating to the Compact. The parties are to meet and

confer in good faith not later than 10 days after one

App. 68

party gives the other party notice of the existence of a

dispute. (Id. 733). If the dispute is not resolved

within 30 days after the first meeting, either party

may seek to have the dispute resolved by an arbitra-

tor or a federal district court, or if the district court

declines jurisdiction, any State court of competent

jurisdiction. (Jd.)

In 2002, the CGCC notified plaintiff and other

Compact Tribes that the CGCC would conduct a

round of Gaming Device license draws in September

2002. Id. J 22). Prior to the draw, and as of Septem-

ber 1, 1999, the Tribe was operating 523 Gaming

Devices. (Jd. J 28). The Tribe notified the CGCC of its

intent to draw 250 licenses and tendered a check in

the amount of $312,500 as the non-refundable one-

time pre-payment fee. (dd. { 22). The Tribe was

placed in the third priority tier and received 250

licenses. (/d. | 28). In November 2003, the CGCC

notified the Tribe that another round of draws, in

which 750 licenses would be available to be drawn,

would be conducted on December 19, 2003. Ud. ¥ 27).

Plaintiff requested 377 licenses and submitted a pre-

payment of $471,250. Ud. 4 32). The Tribe was as-

signed to the fourth priority tier and received no

licenses. Ud. {4 31-32). The CGCC refunded the pre-

payment of $471,250 in full. Ud. | 32). On October 21,

2004, the CGCC conducted another draw, in which

the Tribe, placed in the fourth priority tier, pre-paid

fees for 341 licenses and received only 73. Ud. { 31)

App. 69

The Tribe anticipates receiving a refund of the pre-

payment on the licenses that it did not receive in the

draw. (Id. { 32).

On December 30, 2003, the Tribe wrote to Gover-

nor Schwarzenegger to request that the State meet

and confer with the Tribe about (1) the assignment of

the Tribe to the fourth priority tier in the December

19, 2003 round of draws; (2) the CGCC’s determina-

tion of the number of licenses available for issuance;

(3) the CGCC’s role and authority in the draw proc-

ess; and (4) the CGCC’s retention of the $312,500

tendered by the Tribe in connection with its draw of

250 Gaming Device licenses in Septembex 2002. (Id.

{ 34). A meeting took place on February 3, 2004. (Jd.

q 35). No agreement was reached on any of the issues

the Tribe raised. Ud. { 36). By letter dated February

23, 2004, the State formally rejected each of the

Tribe’s positions. (/d.)

On October 25, 2004, plaintiff filed a complaint in

this court, alleging violations of the Compact. Plain-

tiff asserts that defendants violated the Compact by:

(1) excluding the Tribe from participating in the third

priority tier in the December 19, 2003 round of draws;

(2) unilaterally determining the number of Gaming

Device licenses authorized by § 4.3.2.2 (a)(1) of the

Compact; (3) failing to refund money paid pursuant to

the non-refundable one-time pre-payment fee set

forth in § 4.3.2.2(e) of the Compact; (4) CGCC con-

ducting rounds of draws of Gaming Device licenses

App. 70

without authority; and (5) failing to negotiate in good

faith. On March 28, 2006, defendants filed this

motion for judgment on the pleadings, seeking to

dismiss plaintiff’s first second, third, and fourth

claims for relief for failure to join necessary and

indispensable parties and plaintiff’s fifth claim for

relief for failure to exhaust non-judicial remedies.

STANDARD

Rule 12(c) of the Federal Rules of Civil Procedure

provides in relevant part:

After the pleadings are closed but within

such time as not to delay the trial, any party

may move for judgment on the pleadings.

In considering a motion for judgment on the

pleadings, the standard applied by the court is virtu-

ally identical to the standard for dismissal for failure

to state a claim upon which relief can be granted

pursuant to Rule 12(b)(6). Fajardo v. City of Los

Angeles, 179 F.3d 698, 699 (9th Cir. 1999).

A claim will not be dismissed “unless it appears

beyond doubt that plaintiff can prove no set of facts in

support of his [or her] claim that would entitle him

for her] to relief.” Yamaguchi v. Dep’t of the Air Force,

109 F.3d 1475, 1480 (9th Cir. 1997) (quoting Lewis v.

* Plaintiff also asserts that the State is violating its obliga-

tions under the Indian Gaming Regulatory Act of 1988 (“IGRA”)

by failing to negotiate in geod faith. (Compl. q 58).

App. 71

Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th

Cir. 1996)). “All allegations of material fact are taken

as true and construed in the light most favorable to

the nonmoving party.” Cahill v. Liberty Mut. Ins. Co.,

80 F.3d 336, 337-38 (9th Cir. 1996).

Given that the complaint is construed favorably

to the pleader, the court may not dismiss the claim

unless it appears beyond a doubt that the plaintiff

can prove no set of facts in support of the claim which

would entitle him or her to relief. Conley v. Gibson,

355 U.S. 41, 45 (1957); NL Indus., Inc. v. Kaplan, 792

F.2d 896, 898 (9th Cir. 1986).

Nevertheless, it is inappropriate to assume that

plaintiff “can prove facts which it has not alleged or

that the defendants have violated the ... laws in

ways that have not been alleged.” Associated Gen.

Contractors of Cal., Inc. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). Moreover, the

court “need not assume the truth of legal conclusions

cast in the form of factual allegations.” United States

ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th

Cir. 1986).

In ruling upon a motion for judgment on the

pleadings, the court may consider only the complaint,

any exhibits thereto, the responsive pleading, and

matters which may be judicially noticed pursuant to

Federal Rule of Evidence 201. See Mir v. Little Co. Of

Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu

Motors Ltd. v. Consumers Union of United States,

Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).

App. 72

ANALYSIS

I. Rule 19 Joinder

Defendants assert that plaintiff’s first four

claims should be dismissed for failure to join neces-

sary and indispensable parties. Rule 19(a) provides

for joinder of necessary and indispensable parties. To

determine if a party is necessary and indispensable to

a suit, the court must (1) determine whether the

absent party is a “necessary” party, and (2) if the

absent party is necessary, but joinder is not feasible,

whether the party is “indispensable.” Kescoli v. Bab-

bit, 101 F.3d 1304, 1309 (9th Cir. 1996). The moving

party bears the burden of persuasion. See Makah

Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.

1990).

A. Necessary Party

To determine whether a party is necessary to an

action, the court must undertake another two-part

analysis. Makah, 910 *.2d at 558. Rule 19 (a)(1)

provides that a person is a necessary party where “in

the person’s absence complete relief cannot be ac-

corded among those already parties. Fed. R. Civ. Proc.

19(a). Rule 19 (a)(2) provides that a person is also a

necessary party where

the person claims an interest relating to the

subject of the action and is so situated that

the disposition of the action in the person’s

absence may (i) as a practical matter impair

or impede the person’s ability to protect that

App. 73

interest or (ii) leave any of the persons al-

ready parties subject to a substantial risk of

incurring, double, multiple or otherwise in-

consistent obligations by reason of the

claimed interest.

Id. The interest referenced in Rule 19 (a)(2) must be a

legally protectable interest in the suit, more than a

financial stake and more than speculation about a

future event. Makah, 910 F.2d at 558. However, a

fixed fund or a finite amount of resources which a

court is asked to allocate may create a protectable

interest in beneficiaries of the fund. /d. (citing Wich-

ita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d

765, 774 (D.C. Cir. 1986). Interests arising from

terms in bargained contracts are also legally protect-

able. Am. Greyhound Racing, Inc. v. Hull, 305 F.3d

1015, 1023 (9th Cir. 2002).

Defendants argue that all 1999 Compact Tribes

and RSTF-eligible Tribes, which have not been joined,

are necessary parties to the current suit. Defendants

assert that these tribes have a legally protectable

interest in the litigation that will be practically

impaired by a favorable judgment to plaintiff and

that the disposition of this matter would subject the

State to inconsistent obligations.

At issue in plaintiff’s first and second claims for

relief is the validity of the State and CGCC’s inter-

pretation of the clauses set forth in § 4.3.2.2 of the

Compact, addressing participation in Gaming Device

license draws and the authorized number of Gaming

Device licenses. As relief for its first and second

App. 74

claims, plaintiff asks the court to grant various forms

of declaratory relief and to order the CGCC to issue

377 Gaming Device licenses to the Tribe.” (Compl.,

Prayer for Relief at 17-18). There is a statewide limit

on the number of gaming licenses that all Compact

Tribes in the aggregate may receive. (Compl. { 14). As

such, plaintiff requests the court allocate licenses

from a finite number of available licenses. An order to

issue any additional licenses to plaintiff would neces-

sarily and practically impair the rights of the other

Compact Tribes who would be deprived of those

licenses or the opportunity to obtain those licenses.

Accordingly, all Compact Tribes are necessary parties

to plaintiff’s first and second claims for relief. See

Makah, 910 F.2d at 558-59.

Plaintiff’s third claim for relief involves the

Tribe’s one-time pre-payment of $1,250 for each

Gaming Device license that the Tribe draws. Because

the CGCC determined that this one-time pre-

payment is to be credited against the annual license

fees due on Gaming Device licenses, and because the

Tribe does not owe-any annual license fees, plaintiff

seeks a refund of the $403,750 it has paid. The funds

collected through the one-time pre-payment is depos-

ited in the RSTF. (Compl. { 16). The Compact pro-

vides that each Non-Compact Tribe shall receive

* Specifically, plaintiff asks the court to declare that CGCC

has a ministerial duty immediately to issue 377 licenses and to

enjoin the State from declining immediately to issue 377 li-

censes.

App. 75

distribution from the RSTF, either in the amount of

$1.1 million per year, or if there are insufficient

monies for this sum, any available monies in the

RSTF shall be distributed to Non-Compact Tribes in

equal shares. (Compact §4.3.2.1{a)). Any excess

monies left in the fund after distribution remain in

the RSTF for disbursement in future years. Jd. There-

fore, an award of a refund to plaintiff will practically

impair the rights of Non-Compact, RSTF-eligible

Tribes because the return of any RSTF monies will

lessen the amount of money in the fund for reim-

bursement to those other tribes. In other words, to

the extent that there is insufficient money to pay

each non-Compact Tribe $1.1 million, an award to

plaintiff will lessen the amount of money distributed

to each other tribe. To the extent that there is suffi-

cient money to pay each Non-Compact tribe $1.1

million, an award to plaintiff decreases the funds

available for disbursement the following year. There-

fore, the interests of the Non-Compact, RSTF-eligible

Tribes will be practically impaired by the relief

sought by plaintiff. As such, the Non-Compact, RSTF-

eligible Tribes are necessary parties to plaintiff’s

third claim for relief.

Plaintiff’s fourth claim for relief alleges that

CGCC lacks authority to conduct rounds of draws for

Gaming Device licenses. If the court were to grant

plaintiff’s requested relief and declare that CGCC

lacked authority to administer the Gaming Device

license draws, the CGCC would be unable to conduct

further draws and all previously issued licenses

App. 76

would be invalidated. As a result, other Compact

Tribes would not be able to draw any available li-

censes in the future. Further, the licenses distributed

to other Compact Tribes in previous draws would be

meaningless. Thus, the interests of other Compact

Tribes would he practically impaired by the relief

sought by plaintiff. See Am. Greyhound, 305 F.3d at

1024 (holding that all tribes were necessary parties to

declaratory judgment that gaming operations were

unlawful because the judicial determination would

affect the tribes’ interest as a practical matter).

Accordingly, all Compact Tribes are necessary parties

to plaintiff’s first and second claims for relief.

Further, the relief sought by plaintiff, if granted,

would leave defendants subject to a substantial risk

of inconsistent obligations. While plaintiff asserts

that the Compact between the Tribe and defendants

is a bilateral contract, it is, in reality, one of many

virtually identical Compacts. See Artichoke Joe’s, 353

F.3d at 717. To the extent that plaintiff asserts that it

seeks the court to rule only on the interpretation of

its “bilateral agreement” with defendants, any inter-

pretation could result in defendants requirement to

perform in one manner under plaintiff’s contract and

in a directly incongruous manner under the other

virtually identical contracts, For example, if plaintiff

prevailed on its fourth claim of relief, CGCC would

not have authority to administer Gaming Device

license draws under its contract, but would have

authority to administer Gaming Device license draws

under the other Compacts. Accordingly, all 1999

App. 77

Compact Tribes are necessary parties to plaintiff’s

first four claims for relief.

B. Indispensable Party

Rule 19(b) sets forth the standard to apply when

joinder of necessary parties is not feasible. In this

case, joinder of the 1999 Compact Tribes and RSTF-

eligible Tribes is not feasible because each of these

tribes is immune from suit under the common law

doctrine of tribal sovereign immunity. Kiowa Tribe of

Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751,

754 (1998) (“As a matter of federal law, an Indian

tribe is subject to suit only where Congress has

authorized the suit or the tribe has waived its immu-

nity.”).

Rule 19(b) provides that if a necessary party

cannot be joined, “the court shall determine whether

in equity and good conscience the action should

proceed among the parties before it, or should be

dismissed, the absent person being thus regarded as

indispensable.” Fed. R. Civ. Proc. 19(b). In making

this determination, the court undertakes a four-part

analysis, looking at (1) the prejudice to any party

resulting from a judgment; (2) whether the court can

shape relief to lessen prejudice to absent parties; (3) if

an adequate remedy, even if not complete, can be

awarded without the absent party; and (4) whether

an alternative forum is available to the plaintiff. Jd.;

Makah, 910 F.2d at 560.

App. 78

Defendants assert that the absent tribes will be

prejudiced by plaintiff’s requested relief. “Not sur-

prisingly, the first factor of prejudice, insofar as it

focuses on the absent party, largely duplicates the

consideration that made a party necessary under

Rule 19(a).” Am. Greyhound, 305 F.3d at 1024-25

(citations omitted). To the extent that plaintiff seeks

the award of additional gaming device licenses, that

award would come at the expense of the absent tribes

because of the finite nature of the gaming devices

that all tribes may license. To the extent that plaintiff

seeks a refund of its pre-payment, the relief would

prejudice the RSTF-eligible Tribes because it would

lessen the amount of money in the fund to be distrib-

uted on an equal basis. Finally, to the extent plaintiff

asks the court to declare that CGCC does not have

authority to conduct the gaming license draws, the

relief would prejudice those Compact Tribes who

would seek licenses in a future draw as well as Com-

pact Tribes who were previously awarded licenses in

the draw system. Plaintiff cannot adequately repre-

sent the absent tribes because of the potential inter-

tribal conflicts over the rights to the limited number

of gaming devices and licenses. See Makah, 910 F.2d

at 560. Thus, the relief sought by plaintiff would

prejudice the absent tribes.

Defendants argue that the prejudice cannot be

lessened or avoided through shaping the relief. Plain-

tiff argues that the court lessen or avoid the prejudice

through ordering the issuance of an additional 24,800

licenses, such that the absent tribes would also

App. 79

receive all licenses previously requested in the draw

process. This does not take into account the interests

of Compact Tribes that may be opposed to the state’s

award of more gaming device licenses, specifically

those in close geographical proximity to plaintiff,

whose market share of class II] gaming would be

affected by the inundation of licenses. Therefore,

because any relief would be detrimental to either

plaintiff or the absent tribes, the court has no way to

shape the relief to lessen or avoid prejudice. See

Makah, 910 F.2d at 560. Similarly, the only “ade-

quate” remedy would be at the cost of the absent

parties. See Id.

Finally, defendants argue that plaintiff would

have an alternative forum in which to seek relief.

Defendants assert that the Compact provides that the

terms and conditions of the contract may be amended

by the mutual and written agreement of the parties,

(Compact § 12.1), and that plaintiff is free to request

re-negotiation of its 1999 Compact with the State.

However, plaintiff is left without a judicial forum in

which to bring suit against defendants. The Ninth

Circuit has held that this factor is not one to be

dispensed with lightly. Manybeads v. United States,

209 F.3d 1164, 1166 (9th Cir. 2000) However, the

Ninth Circuit has also recognized the importance of

tribal sovereign immunity, which may leave a party

with no forum for its claim. See Wilbur v. Locke, 423

F.3d 1101, 1115 (9th Cir. 2005) (finding the absent

Indian tribe indispensable despite the lack of an

alternative forum); Manybeads, 209 F.3d at 1166

App. 80

(same); Makah, 910 F. 2dd at 560 (same). Therefore, a

balance of the four factor analysis supports the de-

termination that the Compact Tribes and the RSTF-

eligible Tribes are indispensable parties pursuant to

Rule 19(b).

C. Public Rights Exception

Plaintiff contends that this case falls within the

“public rights” exception te joinder rules.° “Under this

exception, even if the [tjribes are necessary parties,

they are not deemed indispensable and, consequently,

dismissal is not warranted.” Kescoli v. Babbitt, 101

F.3d 1304, 1311 (9th Cir. 1996); Makah, 910 F.2d at

559 n.6. Generally, to qualify for the public rights

exception, “the litigation must transcend the private

interests of the litigants and seek to vindicate a

public right.” Jd. (citing Kickapoo Tribe of Indians v.

Babbitt, 43 F.3d 11491, 1500 (D.C. Cir. 1995). How-

ever, “although the litigation may adversely affect the

absent parties’ interests, the litigation must not

‘destroy the legal entitlements of the absent parties.’”

Id. (quoting Connor v. Burford, 848 F.2d 1441, 1459

(9th Cir. 1988).

* Plaintiff’s argument that the public rights exception

applies is somewhat disingenuous given that the majority of its

opposition argues that all 1999 Compact Tribes or RSTF-eligible

Tribes are not necessary parties to this action because plaintiff

seeks to enforce its own rights under a bilateral contract.

App. 81

In its first and second claims for relief, plaintiff

seeks the reallocation of Gaming Device licenses such

that the Tribe will be awarded 377 additional li-

censes.’ In its first claim, plaintiff seeks a determina-

tion that it should have been placed in the third

priority tier instead of the fourth priority tier. This

claim is a private one, focused on the merits of plain-

tiff’s dispute regarding its placement in a specific

priority tier. In its second claim, plaintiff seeks a

determination that the statewide cap determined by

the State is void. This claim is also a private one,

seeking the court to determine that a larger total of

Gaming Device licenses is allowed, such that plaintiff

may be awarded the licenses it seeks. Finally, plain-

tiff’s third claim of relief seeks a refund of moneys

paid into the RSTF. This claims seeks adjudication of

plaintiff’s right to specific monetary relief, not a

determination of a public right. Therefore, plaintiff’s

first, second, and third claims for relief do not seek to

vindicate a public right, but rather to advance plain-

tiff’s private interests in receiving more Gaming

Devices and a refund of its pre-payment for licenses

previously received.

Plaintiff’s fourth claim of relief alleges that the

CGCC is not authorized to administer the Gaming

" Although plaintiff relies heavily on Makah, in Makah the

Ninth Circuit found that the reallocation of finite resources, in

that case quotas on fishing rights, did not qualify for the public

rights exception.

App. 82

Device license draws. This claim may seek to vindi-

cate a public right in ensuring that a lawful proce-

dure is followed in the future.” As such, the claim may

be closer akin to the vindication of a public right

approved of in Makah, ensuring an agency’s future

compliance with statutory procedures, than plain-

tiff’s other challenged claims. Makah, 910 F.2d at

559. However, if plaintiff prevailed, the relief would

deprive absent parties of their legal entitlements to

the licenses awarded pursuant to an invalid process.

See Kescoli, 101 F.3d at 1312. Because the process by

which the licenses were procured was invalid, the

licenses could be rendered meaningless.

In view of the essentially private nature of the

present litigation and the significant threat to the

Compact Tribes’ interests, the application of the

public rights exception is not appropriate in this case.

See id. Defendants’ motion for judgment on the

pleadings regarding plaintiff’s first, second, third,

and fourth claims for relief is GRANTED for failure

to join necessary and indispensable parties.

* However, the court remains skeptical, given the tenor of

plaintiff’s first three claims for relief, whether plaintiff’s

challenge to CGCC’s authority is merely a pretext for vindicat-

ing its private grievance that it was not awarded the requested

licenses through CGCC’s draw process.

App. 83

Il. Failure to Exhaust Non-Judicial Remedies

Defendants contend that the Tribe’s fifth claim

for relief is jurisdictionally deficient because the Tribe

has not satisfied two preconditions to its right to sue

the State. First, defendants assert that the Tribe has

not exhausted the meet and confer provision set forth

in § 9.1 of the Compact. Second, defendants contend

that the Tribe has not given the State notice and

opportunity to cure any alleged breach as required by

§ 11.2.1 of the Compact.

Plaintiff’s fifth claim for relief alleges that

defendant failed to negotiate in good faith after the

state requested renegotiation of §§ 4.3.1-4.3.2 of the

Compact. (Compl. J 60). Section 9.1 of the Compact

provides that “the parties establishe[d] a threshold

requirement that disputes between the Tribe and the

State first be subjected to a process of meeting and

conferring in good faith.” (Compact § 9.1). Plaintiff’s

complaint does not allege that the Tribe met and

conferred with the State in regards to its claim of

failure to negotiate in good faith. In its opposition,

plaintiff admits that it did not meet and confer, but

argues that it did not exhaust the § 9.1 dispute reso-

lution process, because exhaustion would be futile.

However, plaintiff did not allege in its complaint that

the dispute resolution process would be futile, nor did

it allege facts that would support this argument.”

* Plaintiff presented some related facts through a declara-

tion submitted with plaintiff’s opposition. As stated previously,

(Continued on following page)

App. 84

Further, plaintiff asserts that the Tribe has requested

that the State meet and confer and that a meeting

was set for April 27, 2006.

Because plaintiff failed to exhaust the meet and

confer requirement set forth in § 9.1 of the Compact

prior to filing suit in this court and because plaintiff

has not sufficiently alleged that such exhaustion is

futile, defendant’s motion for judgment on the plead-

ings regarding plaintiff’s fifth claim for relief is

GRANTED.

In its opposition, plaintiff requests that the court

allow plaintiff to supplement its Complaint to allege

exhaustion of the meet and confer process under § 9.1

of the Compact. However, plaintiff has not filed a

motion to amend the Pretrial Scheduling Order

pursuant to Rule 16,” nor has plaintiff filed a motion

to amend or supplement the pleadings pursuant to

Rule 15. Further, plaintiff has presented no evidence

that the meet and confer process has been exhausted.

Rather, defendants assert that the meet and confer

process will not be exhausted until May 27, 2006. As

such, the court does not give plaintiff leave to amend

or supplement its complaint.

the court will not consider documents outside of the pleadings,

except those judicially noticed, on defendants’ Rule 12(c) motion.

'’ The Pretrial Scheduling Order, filed May 20, 2005,

provides that “No further ... amendments to pleadings is

permitted without leave of court, good cause having been

shown.”

App. 85

CONCLUSION

For the reasons stated above, defendants’ motion

for judgment on the pleadings is GRANTED. Plain-

tiff’s first, second, third, and fourth claims for relief

are dismissed for failure to join necessary and indis-

pensable parties. Plaintiff’s fifth claim for relief is

dismissed for failure to exhaust non-judicial reme-

dies. The Clerk of the Court is directed to close this

file.

IT IS SO ORDERED.

DATED: May 16, 2006.

/s/ Frank C. Damrell Jr.

FRANK C. DAMRELL, JR.

United States District Judge

App. 86

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CACHIL DEHE BAND

oF THE COLUSA IN ° JUDGMENT IN A

; CIVIL CASE

DIAN COMMUNITY,

CASE NO:

a: 2:04-CV-02265-FCD-

-STATE OF CALIFOR- KJM

NIA, ET AL.,

XX - Decision by the Court. This action came to

trial or hearing before the Court. The issues

have been tried or heard and a decision has

been rendered.

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY EN-

TERED IN ACCORDANCE WITH

THE COURT’S ORDER OF 5/16/06

Jack L. Wagner

Clerk of the Court

ENTERED: May 16, 2006

by: /s/ M. Price

Deputy Clerk

App. 87

APPENDIX E

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RINCON BAND OF LUISENO

MISSION INDIANS OF THE

RINCON RESERVATION, a/k/a

Rincon San Luiseno Band of

Mission Indians a/k/a Rincon

Band of Luiseno Indians,

Plaintiff-Appellant,

v.

ARNOLD SCHWARZENEG-

GER, Governor of California;

WILLIAM LOCKYER, Attorney

General of California; STATE

OF CALIFORNIA,

Defendants-Appellees.

No. 06-55259

D.C. No.

CV-04-01151-TJW

MEMORANDUM*

(Filed Aug. 8, 2008)

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, District Judge, Presiding

Argued and Submitted April 9, 2008

Pasadena, California

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

App. 88

Before: CANBY, KLEINFELD, and BYBEE, Circuit

Judges.

The Rincon Band of Luiseno Mission Indians

(“Rincon”) brought this action against the governor of

California’ (“the State”) seeking, inter alia, reliance

damages and a declaratory judgment regarding the

aggregate maximum number of slot machine licenses

available to Indian tribes in California who were

parties to approximately 60 essentially identical

Indian Gaming Compacts between those tribes and

the State. The district court dismissed several of

Rincon’s claims, including these two. It dismissed the

declaratory judgment action for failure to join all

other tribes with similar compacts, who were subject

to the same licensing pool, as required parties under

Federal Rule of Civil Procedure 19. It dismissed the

claim for damages as barred by the Eleventh

Amendment of the U.S. Constitution. A partial final

judgment was entered on the dismissed claims pur-

suant to Federal Rule of Civil Procedure 54(b). Rincon

brings this appeal to challenge the dismissal of the

declaratory judgment and reliance damage claims.

We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm in part and reverse in part.

' Originally, California Attorney General William Lockyer

was also named as a defendant. Rincon conceded at the district

court that Lockyer did not need to be a party to the litigation,

and the district court dismissed the claims against him.

App. 89

We review for abuse of discretion a dismissal

under Rule 19 for failure to join a required party. See

Dawavendewa v. Salt River Project, 276 F.3d 1150,

1154 (9th Cir. 2002). We review de novo legal conclu-

sions underlying the court’s decision. See Disabled

Rights Action Comm. v. Las Vegas Events, Inc., 375

F.3d 861, 879 (9th Cir. 2004). De novo review may

therefore extend to determinations of whether a third

party’s interests would be impaired within the mean-

ing of the joinder rules, if that determination decided

a question of law. Am. Greyhound Racing, Inc. v.

Hull, 305 F.3d 1015, 1022 (9th Cir. 2002). Immunity

under the Eleventh Amendment presents questions of

law reviewed de novo. See Cholla Ready Mix, Inc. v.

Civish, 382 F.3d 969, 973 (9th Cir. 2004).

Rincon’s declaratory judgment claim challenging

the State’s calculation of the maximum number of

licenses in the 1999 Compact pool presents an issue

identical to one addressed in Cachil Dehe Band of

Wintun Indians v. California, No. 06-16145 (August

8, 2008), filed contemporaneously with this memo-

randum disposition. In Cachil Dehe Band, we held

that an Indian tribe that is party to a 1999 Compact

with California may proceed to litigate the size of the

total license pool without joining other compacting

tribes, because those tribes have no protectable

interest in the size of the license pool that qualifies

them as required parties within the meaning of Rule

19(a). That ruling controls the present appeal of

Rincon’s declaratory judgment claim. Accordingly, we

App. 90

reverse the decision of the district court and remand

this claim for further appropriate proceedings.

We affirm the district court’s dismissal of Rin-

con’s action for reliance damages against the State. A

waiver of Eleventh Amendment immunity requires

“the most express language or ... overwhelming

implications ... as will leave no room for any other

reasonable construction.” Edelman v, Jordan, 415

U.S. 651, 673 (1974) (internal quotation marks,

citations and alterations omitted). Rincon identifies

no such waiver applicable here. The Compact does

not waive the State’s immunity from collateral dam-

ages actions. This damages action does not arise out

of a breach of the Compact, so it falls outside the

statutory waiver for actions “arising from ... the

state’s violation of the terms of any Tribal-State

compact to which the state is or may become a party.”

Cal. Gov’t Code § 98005, upheld by Hotel Employees &

Restaurant Employees Int'l Union v. Davis, 981 P.2d

990 (Cal. 1999). Therefore, the Eleventh Amendment

bars the action. We affirm the district court’s dis-

missal of this claim.

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

App. 91

APPENDIX F

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RINCON BAND OF CASE NO. 04-CV-01151 W

LUISENO MISSION ORDER GRANTING

INDIANS OF THE AND

INCON RESERVATION aN PART DENT-

RINC + |ING IN PART PLAIN:

Plaintiff, TIFF’S MOTION FOR

i RECONSIDERATION

ZENEGGER; WILLIAM

LOCKYER; STATE OF

CALIFORNIA,

Defendants.

Plaintiff Rincon Band of Luiseno Mission Indians

(“Plaintiff”) moves for reconsideration of a portion of

this Court’s September 21, 2004 order dismissing this

action. Plaintiff asserts that the Court should have

retained jurisdiction over several dismissed claims

pursuant to 28 U.S.C. §§ 1331 and 1362. Defendants

Arnold Schwarzenegger, William Lockyer, and the

State of California (“Defendants”) oppose. All parties

are represented by counsel. The Court decides the

matter on the papers submitted and without oral

argument pursuant to Civil Local Rule 7.1(d.1). For

the reasons set forth below, the Court GRANTS in

part and DENIES in part Plaintiff’s reconsideration

motion.

App. 92

I. BACKGROUND

The background of this case is well known to the

parties and is more fully set forth in this Court’s

September 21, 2004 Order (“September 21 Order”)

dismissing two of Plaintiff’s claims for failure to join

a necessary and indispensable party. In its September

21 Order this Court also declined to exercise supple-

mental jurisdiction under 28 U.S.C. § 1367 to con-

sider Plaintiff’s remaining claims, consisting of

various breach of contract claims. As no claims re-

mained, the Court dismissed the action in its entirety.

On October 5, 2004 Plaintiff moved for a new

trial or for reconsideration of this Court’s refusal to

exercise supplemental jurisdiction over Plaintiff’s

contract claims.’ Plaintiff now claims that this Court

has jurisdiction over Plaintiff’s breach of contract

claims under 28 U.S.C. § 13831 and § 1362. Plaintiff

does not seek reconsideration of this Court’s dismissal

of Plaintiff’s first two claims for failure to join a

necessary and indispensable party.

II. LEGAL STANDARD

Under Fed. R. Civ. P. 59{e), a federal district

court has discretion to reconsider an order granting

final judgment. Sheet Metal Workers’ Int'l Ass’n Local

Union No. 359 v. Madison Indus., Inc., of Arizona, 84

‘ Since they were filed within ten days of the September 21

Order, the Court will treat both of Plaintiff's motions as recon-

sideration motions under Kule 59(e).

App. 93

F.3d 1186, 1192 (9th Cir. 1996). A district court should

generally leave a previous decision undisturbed

absent a showing that it either represented clear

error or would work a manifest injustice. Christianson

v. Colt Indus. Operating Corp., 486 U.S. 800, 817

(1988). A district court may alter or amend a judg-

ment under rule 59(e) only if the motion is filed no

later than ten days after entry of the judgment. Fed.

R. Civ. P. 59(e). “Reconsideration [under Rule 59(e)] is

appropriate if the district court (1) is presented with

newly discovered evidence, (2) committed clear error

or the initial decision was manifestly unjust, or (3) if

there is an intervening change in controlling law.”

School Dist. Ne. 1J, Multnomah County v. ACandS

Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

III. DISCUSSION

Having reviewed the parties’ moving papers and

the applicable law, the Court GRANTS Plaintiff’s

reconsideration motion. However, reviewing the

record before it, and Defendants’ original motion to

dismiss, the Court concludes that Plaintiff’s fifth and

seventh claims must be DISMISSED.

A. THis COURT HAS ORIGINAL FEDERAL JU.-

RISDICTION OVER PLAINTIFF’S CONTRACT

CLAIMS

Due to an inadvertent legal error, this Court

misinterpreted the federal jurisdictional limits of the

compacts at issue. In its September 21 Order this

App. 94

Court concluded that Plaintiff’s contract claims arose

under state law and declined to exercise supplemen-

tal jurisdiction. Upon further review of the Indian

Gaming Regulatory Act, 25 U.S.C. §2702, (“IGRA”)

and the applicable Ninth Circuit precedent, the Court

agrees with Plaintiff that Claims involving Tribal-

State compact interpretation fall within the origi.ial

jurisdiction of the District Courts.

In Gila River Indian Community v. Henningham,

Durham, and Richardson the Ninth Circuit held that

there was “no reason ... to extend the reach of fed-

eral common law to cover all contracts entered into by

Indian tribes. Otherwise the federal courts might

become a small claims court for all such disputes.”

626 F.2d 708, 714 (9th Cir. 1980). IGRA, however,

permits federal jurisdiction for contractual claims

arising under Tribal-State compacts. 25 U.S.C.

§2702(7)(a)(1). In Cabazon Band of Mission Indians v.

Wilson, the Ninth Circuit held that Tribal-State

Compacts under IGRA were a creation of federal law

and that district courts retain jurisdiction over Com-

pact-related contract claims pursuant to 28 U.S.C.

§§ 13831 and 1362. See Cabazon Band of Mission

Indians v. Wilson 124 F.3d 1050, 1055-56 (9th Cir.

1997). Although IGRA only explicitly grants federal

jurisdiction over Compact negotiation, the Cabazon

court recognized that “it would be extraordinary were

the statute to provide jurisdiction to entertain a suit

to force the State to negotiate a compact yet provide

no avenue of relief were the State to defy or repudiate

that very compact.” Cabazon, 124 F.3d at 1056.

App. 95

Here, Plaintiff’s third through eighth claims

all directly relate to interpretation, enforcement or

application of the 1999 Tribal-State Compacts under

IGRA. See (Complaint 44 121-46). Each of these

claims are founded on Defendants’ alleged breaches of

obligations arising directly from the Compact. There-

fore, these claims were validly asserted under this

Court’s original jurisdiction and should not have been

dismissed under 28 U.S.C. §1367.” Cabazon, 124 F.3d

at 1056. Accordingly, the Court GRANTS Plaintiff’s

motion to reconsider its earlier ruling declining to

exercise supplemental jurisdiction over these claims.

B. PLAINTIFF’S FIFTH AND SEVENTH CLAIMS

MUST BE DISMISSED

Although the Court has jurisdiction over Plain-

tiff’s fifth and seventh claims, having reviewed the

record and the parties’ original briefing regarding

Defendants’ motion to dismiss, the Court concludes

that Plaintiff’s fifth and seventh claims must be

dismissed.

* Although Plaintiff’s seventh claim is more loosely tied to

the Compact at issue, the Court concludes that it is sufficiently

related to arise under this Court’s original jurisdiction. Alterna-

tively, the Court exercises its discretion in light of its amended

ruling and grants supplemental jurisdiction to claim seven

under section 1367.

App. 96

1. PLAINTIFF’S FIFTH CLAIM MUST BE DIs-

MISSED FOR FAILURE TO JOIN A NECES-

SARY AND INDISPENSABLE PARTY

Plaintiff’s fifth claim for relief seeks a declara-

tory judgment stating the correct number of gaming

device licenses available under the 1999 Compacts.

(Complaint ¥ 42). Defendants contend that this claim,

like Plaintiff’s first and second claims must be dis-

missed for failure to join the other 61 Tribes benefit-

ting from the license pool. See (Def’s Mot. Dismiss at

20). Plaintiff opposes, offering nearly identical

grounds to those this Court rejected regarding Plain-

tiff’s first and second claims in its September 21

Order. For the reasons expressed in the September 21

Order and below, the Court concludes that Plaintiff’s

fifth claim must be dismissed for failure to join a

necessary and indispensable party.

Rule 19(a) provides that parties are necessary if:

1) in the person’s absence complete relief

cannot be accorded among those already par-

ties, or (2) the person claims an interest re-

lating to the subject of the action and is so

situated that the disposition of the action in

the person’s absence may (J) as a practical

matter impair or impede the person’s ability

to protect that interest or (ii) leave any of the

persons already parties subject to a substan-

tial risk of incurring double, multiple, or oth-

erwise inconsistent obligations by reason of

the claims interest.

App. 97

FED. R. Civ. Proc. 19(a). Here, the other 61 tribes

benefitting from the license pool certainly have an

interest in any declaration this Court might make

regarding the number of licenses available under the

1999 Compacts, in which all the tribes participate.

See Fep. R. Civ. Pro. 19(a)(2). However, any order

this Court might issue would not preclude those

tribes located outside of the Southern District of

California from seeking declaratory relief on the same

issue against the State in another forum, thereby

raising the specter of Defendants being subject to

inconsistent obligations. [d.; United States v. Bowen,

172 F3d 682, 688 (9th Cir. 1999).* Although Plaintiff

may be correct that it adequately represents the

other 61 tribe’s interests regarding the license pool,

absent their joinder Plaintiff certainly cannot protect

Defendants from the very real possibility of inconsis-

tent judgments regarding the number of available

licenses. Thus, the other 61 tribes are necessary

parties to Plaintiff’s fifth claim and must be joined if

feasible. FED. R. Civ. Proc. 19(a)(2)(ii).

As discussed in detail in the September 21 Order,

the absent tribes cannot be joined.“ This Court has

” Such potential inconsistent obligations are not merely a

theoretical possibility — five non-compact tribes, proceeding as

third-party beneficiaries, have already filed an action against

the State in Sacramento Superior Court regarding their mone-

tary interest in the Compact section at issue in this declaratory

judgment claim. See (Def. Mot. to Dismiss, Ex. B).

* Although the September 21 Order focused on the joinder

of the Five Tribes whose Compacts Plaintiff sought to invalidate,

(Continued on following page)

App. 98

already concluded that the tribes are entitled to

sovereign immunity and that Congress did not waive

that immunity under IGRA. See (September 21 Or-

der). The Court sees no reason to disturb that ruling

here.

Likewise, the absent tribes are indispensable for

reasons similar to those discussed in the September

21 Order. As discussed above, Defendants may be

prejudiced in the absence of the other 61 tribes by

facing the possibility of conflicting obligations regard-

ing the number of available licenses. Moreover, relief

cannot be shaped to lessen that prejudice. No matter

what declaration this Court might issue there is no

way for it to prevent other courts from issuing con-

flicting rulings. For the same reason, no adequate

remedy is available in the other 61 tribes’ absence.

Finally, although there may not be an alternative

forum available to Plaintiff, that factor alone is not

dispusitive. See Dawavendewa v. Salt River Project,

276 F.3d 1150, 1162 (9th Cir. 2002). The majority of

the Rule 19(b) factors therefore lead this Court to

conclude that the 61 absent tribes are indispensable

parties to Plaintiff’s fifth claim. As they cannot be

joined, Plaintiff’s fifth claim must be dismissed.

the same analysis applies to the other 61 Compact tribes. Even

if the 56 tribes who have not appeared as amici in this action

agreed to waive sovereign immunity, the five tribes who have

appeared as amici have unequivocally refused to do so. Thus,

joinder of all necessary parties would remain impossible.

App. 99

2. PLAINTIFF’S SEVENTH CLAIM IS BARRED

BY THE ELEVENTH AMENDMENT

Plaintiff’s seventh claim seeks $12,750,000 of

damages against Defendants for allegedly breaching

the 1999 Compact and requiring Plaintiff to build an

unnecessary temporary gaming facility. Defendants

contend that this claim is barred by the Eleventh

Amendment. Plaintiff counters that California

waived Defendants’ Eleventh Amendment immunity.

The Court disagrees.

The Eleventh Amendment to the U.S. Constitu-

tion grants sovereign immunity against “any suit ir.

law or equity, commenced or prosecuted against one

of the United States by citizens of another state, or by

citizens or subjects of a foreign state.” U.S. Constitu-

tion Amendment XI. Claims against sovereign states

in the federal courts are only permitted if the State

waives its sovereign immunity. The Supreme Court

has held “the test for determining whether a State

has waived its immunity from federal-court jurisdic-

tion is a stringent one.” Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 241 (1985) (superseded on

other grounds by statute). A State is “deemed to have

waived its immunity only where stated by the most

express language or by such overwhelming implica-

tion from the text as will leave no room for any other

reasonable construction.” Atascadero, 473 U.S. at

239-40 (internal quotations omitted). Federalism

interests “require that such a waiver be clear and

unequivocal.” Port Auth. Trans-Hudson Corp. v. Feeney,

495 U.S. 299, 305 (1990).

App. 100

California Government Code §98005 states in

part:

California also submits to the jurisdiction of

the courts of the United States in any action

brought against the state by any federally

recognized California Indian tribe asserting

any cause of action arising from the state’s

refusal to enter into negotiations with that

tribe for the purpose of entering into a differ-

ent Tribal-State compact pursuant to IGRA

or to conduct those negotiations in good

faith, the state’s refusal to enter into nego-

tiations concerning the amendment of a

Tribal-State compact to which the state is a

party, or to negotiate in good faith concern-

ing that amendment, or the state’s violation

of the terms of any Tribal-State compact to

which the state is or may become a party.

Id. Section 98005 was enacted through Proposition 5,

a California ballot referendum on Indian gaming,

subsequently struck down by the California Supreme

Court in Hotel Employees & Restav;ant Employees

Int'l Union v. Davis, 21 Cal. 4th 585 (Cal. 1999). The

Hotel Employees Court struck down the majority of

Proposition 5, yet left the last sentence of the juris-

diction clause in Section 98005. Id. at 615.

Plaintiff argues that California waived its sover-

eign immunity for the purpose of the seventh claim

for relief under section 98005. The Court respectfully

disagrees.

App. 101

Section 98005 permits federal court jurisdiction

over Tribal-State compact claims pursuant to IGRA

Claims involving Compact interpretation, injunctive

and declaratory relief are properly brought in federal

district court. However, nothing in Section 98005’s

text specifically waives the State’s sovereign immu-

nity against suits for monetary damages. Simply put,

there is there is no “overwhelming implication from

the text itself” that California submitted itself to

federal jurisdiction for Tribal damage claims. Atasca-

dero, 473 U.S. at 239-40 (1985).

Nor is there no other reasonable construction of

the statute’s language. Jd. The history of section

98005 suggests that its sole purpose was to make the

State amenable to suit under IGRA in the wake of the

Supreme Court’s decision in Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 55-56 (1996), which struck

down IGRA’s abrogation of state sovereign immunity.

See Hotel Employees, 21 Cal. 4th at 614-615. As the

invalid IGRA provision which section 98005 mimics

never authorized damages suits, it logically follows

that neither does section 98005. See Confederated

Tribes and Bands of Yakama Indian Nation v. Lowry,

968 F. Supp. 531, 535 n.6 (E.D). Wash.,1996) (noting

that 25 U.S.C. § 2710(d)(7)(A)(ii) did not authorize

damages suits under IGRA vacated on other grounds

by 176 F.3d 467. In fact, section 9.4(a)(2) of Rincon’s

Compact expressly provides that California has not

waived its sovereign immunity with respect to claims

for monetary damages:

App. 102

The State and the Tribe expressly consent to

be sued therein and waive any immunity

therefrom that they may have provided that

... (2) Neither side makes any claim for

monetary damages (that is only injunctive,

specific perfermance, including enforcement

of a provision of this Compact requiring

payment of money to one or another of the

parties, or declaratory relief is sought),

(Doc. No. 20, Ex. A at 29).

Thus, not only is it not overwhelmingly clear

from the statute’s text that the State intended to

waive its immunity from damages claims, the circum-

stances surrounding section 98005’s enactment

affirmatively suggest that such a waiver was not

intended. Accordingly, Plaintiff's seventh claim is

barred by the Eleventh Amendment.

C. ATTORNEY GENERAL BILL LOCKYER

Additionally, this Court agrees with Defendants

that California Attorney General Bill Lockyer

(“Lockyer”) has not been implicated by Plaintiff’s

claims and no remedy is directed towards Lockyer or

his duties under state law. Plaintiff concedes that the

Attorney General need not be a party to this litiga-

tion. Therefore, Defendant Lockyer will be removed

as a named defendant from all further proceedings in

this case.

App. 103

IV. CONCLUSION AND ORDER

In light of the foregoing, the Court GRANTS

Plaintiff’s motion for a new trial and reconsideration

(Doc. Nos. 38-1,38-2). The Court GRANTS Defen-

dants’ original motion to dismiss Plaintiff’s fifth and

seventh claims and to remove California Attorney

General Bill Lockyer as a named defendant in this

action. Finding that leave to amend would be futile,

Plaintiff’s fifth and seventh claims are DISMISSED

WITH PREJUDICE.

IT ISSO ORDERED.

DATE: March 21, 2005

/s/ Thomas J. Whelan

HON. THOMAS J. WHELAN

United States District Court

Southern District of California

App. 104

APPENDIX G

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RINCON BAND OF LUISENO

MISSION INDIANS OF THE

RINCON RESERVATION,

a/k/a Rincon San Luiseno Band

of Mission Indians a/k/a Rincon

Band of Lutseno Indians,

Plaintiff-Appellant,

v.

ARNOLD SCHWARZENEG-

GER, Governor of California;

WILLIAM LOCKYER, Attorney

General of California; STATE

OF CALIFORNIA,

Defendants-Appellees.

Before: CANBY, KLEINFELD,

Judges.

No. 06-55259

D.C. No.

CV-04-01151-TJW

ORDER

(Filed Nov. 14, 2008)

and BYBEE, Circuit

The motion of the Bands of Mission Indians to

file an amici brief in support of appellees’ petition for

panel rehearing and petition for rehearing en banc is

GRANTED. The amici brief is ordered filed. No

response need be filed.

The panel has unanimously voted to deny the

petition for panel rehearing. Judges Kleinfeld and

App. 105

Bybee have voted to deny the petition for rehearing

en banc, and Judge Canby has so recommended.

The petition for en banc rehearing has been

circulated to the fuli court, and

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