Petition for Writ of Certiorari — Schwarzenegger v. Rincon Band of Luiseno Mission Indians of the Rincon Reservation (No. 08-1030)

Supreme Court, U.S.

P FILED

\4 ~() No, 081030 FEB 11 2009

In the Supreme Court of the GAnited States

ARNOLD SCHWARZENEGGER, GOVERNOR OF CALIFORNIA AND

THE STATE OF CALIFORNIA,

Petitioners,

V.

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,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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

QUESTION PRESENTED

In 1999, the State of California and sixty-one

federally recognized tribes entered into virtually

identical tribal-state class III gaming compacts

(Compacts) under the authority of the Indian Gaming

Regulatory Act, 25 U.S.C. §§ 2701-2721 (IGRA). The

Compacts allow those tribes to operate slot machines

if they have been issued licenses for those devices

from a prioritized and limited license pool established

by the Compacts, or if they have obtained a compact

amendment allowing them to operate slot machines

without reference to that license pool. The question

presented is:

May the asserted ability of a court of appeals to

resolve inconsistent district court decisions on the

same claim for relief be relied upon to conclude that

an absent person need not be joined under Federal

Rule of Civil Procedure 19(a)?

TABLE OF CONTENTS

Petition for a Writ of Certiorari

Opinions Below

Jurisdiction

Statutory Provisions Involved

Statement

Reasons for Granting the Petition

Discussion

The Ninth Circuit’s refusal to recognize

the State’s exposure to inconsistent

obligations, warrants this Court’s review

Conclusion

TABLE OF AUTHORITIES

CASES

Keweenaw Bay Indian Community v. Michigan

ED F.3d. 1349 (OT Cir. 1993). nssese....rccscoeseoees ibd Fi biagse Siena 7

Republic of the Philippines v. Pimentel

128 S. Ct. 2180 (2008)

STATUTES

25 U.S.C. §§ 2701-2721

28 U.S.C. § 1254(1)

COURT RULES

Federal Rule of Civil Procedure

S| ee Bit ahaa pabidginde sccwuesaiencah vivesalebgpiisd (dues aiaaebane nae

Rule 19(a)

TABLE OF CONTENTS

Page

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 A)

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 Rincon Reservation v.

Arnold Schwarzenegger, et al. (Appendix B)

District court order granting in part and denying in

part plaintiffs motion for reconsideration (Mar. 22,

2005), Case No. 04-CV-01151 W, Rincon Band of

Luiseno Mission Indians of the Rincon Reservation v.

Arnold Schwarzenegger, et al. (Appendix C)

Ninth Circuit order amending opinion and denying

the petition for pane! rehearing and petition for

rehearing en banc and amended opinion (August 8,

2008), Case No. 06-16145, Cachi/] dehe Band of

Wintun Indians of the Colusa Indian Community v.

State of California, et al. (Appendix D)

Ninth Circuit opinion (Aug. 8, 2008), Case No. 06-

16145, Cachil dehe Band of Wintun Indians v. State

of California, et al. (Appendix E)

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 Wintun Indians of the Colusa

Indian Community v. State of California, et al.

(Appendix F)

Ninth Circuit memorandum (Oct. 6, 2008), Case No.

07°55536, San Pasqua/ Band of Mission Indians v.

State of California, et al. (Appendix G)

_ a OR rrr a = ee rt Re

TABLE OF CONTENTS

(continued)

Page

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 H)

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)

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

(Appendix J)

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 K)

Amendment to the Tribal-State Compact Between

the State of California and the Pechanga Band of

Luiseno Indians (Appendix L)

Federal Rules of Civil Procedure, Rule 19

(Appendix M)

— tt ot Se

PETITION FOR A WRIT OF CERTIORARI

Arnold Schwarzenegger, Governor of California

and the State of California appearing by and through

Edmund G. Brown Jr., Attorney General of

California, respectfully petition this Honorable Court

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra, at 1-4) is unreported. The opinion of the

district court is unreported. (App. C, infra, at 7-18.)

JURISDICTION

The judgment of the court of appeals was

entered on August 8, 2008. A petition for rehearing

was denied on November 14, 2008. (App. B, infra, at

5: A Court has jurisdiction under 28 U.S.C. §

1254(1

STATUTORY PROVISIONS INVOLVED

The pertinent statutory provision, specifically

Federal Rule of Civil Procedure 19 is set forth in an

appendix to this brief. (App. M, infra, at 290-92.)

STATEMENT

In 1999, the State of California (State) and

sixty-one federally ‘ecognized tribes entered into

class III gaming compacts (the Compacts) that

provided the tribes the right to operate slot machines

and certain banked and percentage card games free

of non-tribal competition for twenty years. (See,

htup jw ww .cgce.ca.govicompacts asp; App. J, znfra, at

127-85.

Specifically, the Compacts allow each tribe to

operate up to 350 slot machines or the number of slot

machines that tribe was operating on September 1,

1999, whichever is greater. (App. J, infra, at 135-6.)

In addition, the Compacts provide that the tribes

may operate additional slot machines if they are able

to obtain licenses for those devices from a license

pool. (/d. at 137.)

The Compacts limit the number of available

licenses according to a formula and require that the

tribes pay specified fees in consideration of receiving

such licenses. (App. J, infra, at 137.) They also

establish a priority system for the issuance of these

licenses. (/d. at 138-39.) The California Gambling

Control Commission (Commission), as the trustee of

the fund into which such license fees are paid,

calculated the number of available licenses, and

utilized the priority system established by the

Compacts to issue licenses to tribes that applied for

them, until the available licenses were Po onl

From that point onward, the Commission utilized the

Compacts’ priority system to issue licenses that

became’ available through the return' or

relinquishment of previously-issued licenses to the

license pool. Other than through acquisition of such

licenses under the Compacts’ priority system, tribes

seeking to operate additional slot machines were

required to obtain the right to operate those

machines through a compact amendment. (App. J,

infra, at 139; 181.)

After the license pool was depleted, the

Governor and various tribes commenced compact

amendment negotiations. In those negotiations, the

tribes sought to obtain the right to operate slot

machines other than through issuance of licenses by

the Commission from the license pool established by

the Compacts. In 2004, the Governor and five tribes

arrived at an agreement on certain amendments to

the Compacts, (see,

http://www.cgcc.ca.gov/compacts.asp.) subsequently

ratified by the California Legislature under

provisions of California law and approved by the

Secretary of the Interior under [GRA. In 2007,

compact amendments arrived at with several

additional tribes in 2006 became effective. (/d.) The

amendments allowed the tribes to operate additional

slot machines without licenses, increased the period

during which the tribes’ slot machines could be

operated and provided a monetary remedy in the

event non-tribal class III gaming is permitted in

California. In return, the tribes agreed: (a) to

increase their revenue sharing contributions to the

State over that which was required under the

Compacts; (h) to mitigate adverse environmental

impacts stemming from their casino operations; and

(c) to protect the health and safety of patrons and

employees through a series of regulatory measures

not found in the Compacts. (See, generally, a 2004

compact amendment, App. K, infra, at 186-230 anda

2007 compact amendment, App. L, infra, at 231-89.)

The terms of these compact amendments render

the operation of slot machines under the

amendments more costly to the signatory tribes than

under the Compacts’ license structure. (E.g.,

compare 1999 Compact per device costs, App. J,

infra, at 138; 140 with per device costs in a 2004

amendment, App. K, infra, at 188-90 and in a 2007

amendment, App. L, infra, at 233-39.)

The Rincon Band of Luiseno Mission Indians

(Rincon) filed suit against Governor Schwarzenegger

and the State for breach of compact on the basis of

the Commission’s alleged miscalculation regarding

the number of available slot machine licenses. (App.

A, infra, at 2.)

In senarate suits, the San Pasqual Band of

Mission Indians (San Pasqual) and the Cachil dehe

Band of W:ntun Indians of the Colusa Community

(Colusa), likewise, sued the State for breach of

compact based upon a claim the Commission had

miscalculated the number of licenses available. (App.

G, infra, at 92; App. D, infra, at 26.)

All three suits were dismissed by three separate

federal district judges under Rule 19 on the ground

that the other tribes that were signatories to the

Compacts were necessary (required)! parties that

could not be joined because of their tribal sovereign

immunity. The district court in the Ayncon suit

concluded that the absent tribal signatories to the

Compacts were required because the State faced the

risk of inconsistent obligations with respect to the

number of slot machine licenses available under the

Compacts. (App. C, infra, at 12.) The district court

in the Colusa suit determined that the absent tribes

were required, in part, because the Commission could

face inconsistent obligations from multiple suits on

the same claims for relief with respect to the number

of Mesa. slot machine licenses. (App. F, infra, at

83.

The district court in the San Pasqua/ suit also

determined that the absent tribes were required

parties because the State faced the possibility of

inconsistent obligations. In addition, it ruled that

the five tribes with amended compacts had a

contract-derived interest in any calculation of the

maximum number of slot machines that a signatory

tribe could operate without a compact amendment.

(App. I, infra, at 112; 118.)

Each district court decision was appealed to the

Ninth Circuit. The Co/usa and Hincon appeals were

not consolidated, but were argued on the same day.

(App. A, infra, at 1; App. E, infra, at 47.) The Ninth

Circuit did not permit oral argument on the San

Pasqual appeal. (App. G, infra, at 92.) The Ninth

Circuit issued a decision certified for publication in

'The language of Rule 19 has been amended since the

district court decisions. The word “required” replaces the word

“necessary” in Rule 19(a).

the Colusa appeal, in which it reversed the district

court’s decision to dismiss each of Colusa’s breach of

compact claims for relief. (App. E, infra, at 48-49.)

The Ninth Circuit held that the district court had

abused its discretion in finding the absent tribes

were required parties. (/d. at 56-57.) The Ninth

Circuit then issued unpublished memorandum

decisions in the Aincon and San Pasqual appeals in

which it reversed the district court decisions based on

its decision in the Colusa appeal. (App. A, infra, at 3;

App. G, infra, at 93.)

The Ninth Circuit denied subsequent petitions

for rehearing filed in the Colusa, Rincon and San

Pasqual appeals (App. D, infra, at 21; App. B, znfra,

at 6; App. H, infra, at 94), but did amend its decision

in the Co/usa appeal on October 24, 2008. (App. D,

infra, at 20°21.) That amendment did not alter the

Ninth Circuit’s original holding that the absent tribes

were not required parties.

The Ninth’Circuit held that the State would not

be subject to a significant risk of inconsistent

obligations within the meaning of Rule 19(a) with

respect to the number of slot machine licenses that

could be issued because “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. D, infra, at 35 n.12.)

REASONS FOR GRANTING THE PETITION

The Ninth Circuit's decision warrants this

Court’s review for the same reason the Ninth

Circuit’s decision in the Colusa case warrants

review.” Review is appropriate because the appellate

2 The State filed a petition for writ of certiorari in State

of California et al v. Cachil dehe Band of Wintun Indians of the

(continued...)

court's decision conflicts with the established

construction of a rule of civil procedure federal courts

must routinely apply in thousands of cases each year.

The Ninth Circuit's decision undermines a

fundamental purpose this Court and other circuits

have identified as underlying Rule 19. That purpose

is to avoid exposing a party to the possibility of facing

inconsistent obligations stemming from multiple

suits on the same claim for relief in different actions

by requiring the joinder, under Rule 19(a), of absent

parties that might bring the same claim in a different

action,

Absent this Court’s review, the Ninth Circuit's

decision could create severe strains in the efficient

administration of justice throughout the country by

inundating already overburdened district courts with

multiple suits raising the same claim for relief.

Governor Arnold Schwarzenegger and the State,

therefore, respectfully request that this Court hold

this petition pending disposition of the petition for

writ of certiorari filed in State et al v. Cachil dehe

Band of Wintun Indians of the Colusa Indian

Community, No. 08°931 and, if that petition is

granted, grant and hold this petition pending

disposition of that case.

DISCUSSION

THE NINTH CIRCUITS REFUSAL TO

RECOGNIZE THE STATE'S EXPOSURE TO

INCONSISTENT OBLIGATIONS, WARRANTS

THIS COURT’S REVIEW

As this Court and other circuits have found, the

“social interest in the efficient administration of

(...continued)

Colusa Indian Community, No. 08-931 on January 22, 2008.

justice and the avoidance of multiple litigation is an

interest that has traditionally been thought to

support compulsory joinder of absent and potentially

adverse claimants under Rule 19(a).” Republic of the

Philippines v. Pimentel, 128 S. Ct. 2180, 2193 (2008)

(citing Illinois Brick Co. v. Illinois, 431 U.S. 720, 737-

388 (1977)) (internal quotation marks omitted);

Keweenaw Bay Indian Community v. Michigan 11

F.3d. 1341 (6th Cir. 1993)

Notwithstanding these precedents, the Ninth

Circuit’s decision assiduously avoids finding the

absent tribes to be required parties through its

conclusion that even though the State and the

Commission might be subject to _ inconsistent

leterminations regarding the number of slot machine

licenses authorized by the Compacts, the absent

tribes are not required parties because the Ninth

Circuit could resolve any such inconsistencies on

appeal. (App. D, infra, at 35 n.12.) This conclusion,

unsupported by any precedent, is inconsistent with

Republic of the Philippines v. Pimentel, 128 S. Ct.

2180, 2193 (2008) in which this Court held that it

“would not further the public interest in settling...

disputels] as a whole because [the absent parties]

would not be bound by . . . [a] judgment in an action

where they were not parties.” /d.

The Ninth Circuit’s decision, therefore, rests on

two presumptions, both of which are erroneous.

First, it assumes that an appellate court could bind:

absent tribal signatories to the Compacts to a

judgment. Second, it speculates that all claims for

relief regarding the maximum number of slot

machine licenses authorized by the Compacts

whenever and wherever they are brought either will

be appzaled in a manner that allows all such appeals

to be considered at the same time, or that an

appellate court will follow prior decisions on the same

question regarding later appeals.

While, in this case, the Ninth Circuit easily

conformed the appellate results of three trial court

decisions which had not yet been h2ard on the

merits, there 1s no guarantee of such a result in the

future. Thus, the possibility of inconsistent appellate

decisions on the same claim for velief exist in cases

which do not fortuitously come before the same

appellate court on the same issue, in time to permit

simultaneous confirmation of conflicting or

inconsistent judgments below.

Further, if a subsequent appellate panel were to

consider itself bound by a prior appellate decision on

the same claim, irrespective of the merit of

arguments advanced in favor of a _ different

conclusion, litigants would be deprived of due

process. If future litigants perceived the possibility

of such an outcome, individuals and entities that

otherwise would be immune from suit or otherwise

not subject to joinder could be forced to waive their

immunity in order to protect their interests.

CONCLUSION

For the foregoing reasons, petitioners

respectfully request that this petition be held

pending this Court’s disposition of the petition for

writ of certiorari now pending in State et al. v. Cachil

dehe Band of Wintun Indians of the Colusa Indian

Community, No. 08-931 and, if that petition is

granted, grant and hold this petition pending the

Court’s disposition of the petition in that case.

Dated: February 9, 2009

Respectfully submitted

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

Counsel for Petitioners

SA2006300920

80330461 .duc

APPENDIX A

APPENDIX A

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

SCHWARZENEGGER,

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.

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

pursuant 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.

We review for abuse of discretion a dismissal

under Rule 19 for failure to join a required party. See

' 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.

Dawavendewa v. Salt River Project, 276 F.3d 1150,

1154 (9th Cir. 2002). We review de novo legal

conclusions 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

meaning of the joiner 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 Cholula Ready

Mix, Inc. v. Civic, 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

memorandum 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 reverse the decision of the district court and

remand this claim for further appropriate

proceedings.

We affirm the district court's dismissal of

Rincon'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 damages

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 dismissal of this

claim.

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

APPENDIX B

APPENDIX B

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 Luiseno Band Of

Mission Indians A/K/A Rincon

Band Of Luiseno Indians,

Plaintiff - Appellant,

ARNOLD

SCHWARZENEGGER,

Governor of California;

WILLIAM LOCKYER,

Attorney General of California;

STATE OF CALIFORNIA,

Defendants - Appellees.

Case No. 06-55259

D.C. NO.

CV-04-01151-TJW

ORDER

(Filed Nov. 14,

2008)

Before: CANBY, KLEINFELD, and BYBEE, Circuit

Judges.

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

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 full court, and no judge of the court

has requested a vote on the petition for rehearing en

bane. Fed. R. App. P. 35(b).

The petition for panel rehearing and the petition

for rehearing en banc are DENIED.

APPENDIX C

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RINCON BAND OF Case No.

LUISENO MISSION 04-CV-01151 W

INDIANS OF THE

RINCON RESERVATION, | ORDER GRANTING

IN PART AND

Plaintiff DENYING IN PART

PLAINTIFF'S

v. MOTION FOR

RECONSIDERATION

ARNOLD

SCHWARZENEGGER, (Filed Mar. 22, 2005)

WILLIAM LOCKYER;

STATE OF CALIFORNIA,

Defendants

Plaintiff Rincon Band of Luiseno Mission

Indians ("Plaintiff) move 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 helow, the Court

GRANTS in part and DENIES in part Plaintiff's

reconsideration motion,

BACKGROUND

The background of this case is well known to the

arties and is more fully set forth in this Court's

Reptewbee 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

supplemental jurisdiction under 28 U.S.C. § 1367 to

consider Plaintiff's remaining claims, consisting of

various breach of contract claims. As no claims

remained, 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 Plaintiffs breach of contract

claims under 28 U.S.C. § 1331 and § 1362. Plaintiff

does not seek reconsideration of this Court's dismissal

of Plaintiffs first two claims for failure to join a

necessary and indispensable party.

Il. 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

F.3d 1186, 1192 (9th Cir. 1996). A district court

should generally leave a previous decision undisturbed

Since they were filed within ten days of the September

21 Order, the Court will treat both of Plaintiffs motions as

reconsideration motions under Rule 59(e)

absent a showing that it either represented clear error

or would work a manifest injustice. Christianson uv.

Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).

A district court may alter or amend a judgment 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.

No. 1d, Multnomah County v. ACandS Inc., 5 F.3d

1255, 1263 (9th Cir. 1993)

IiIl. 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

Jurisdiction Over Plaintiffs 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

Court concluded that Plaintiffs contract claims arose

under state law and declined to “xercise supplemental

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 original

jurisdiction of the District Courts.

In Gila River Indian Community _ uv.

Henningham, Durham. and Richardson the Ninth

Circuit held that there was "no reason ... to extend the

reach of federal common law to cover all contracts

entered into by Indian tribes. Otherwise the federal

courts 20 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)(). 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 Compact related contract claims

pursuant to 28 U.S.C. §§ 1331 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.

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 11 121-46). Each of these claims

are founded on Defendants' alleged breaches of

obligations arising directly from the Compact.

Therefore, 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

é 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.

(continued...)

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. Plaintiffs Fifth and Seventh Claims

Must be Dismissed

Although the Court has jurisdiction over

Plaintiff's fifth and seventh claims, having reviewed

the record and the parties' original briefing regarding

Defendants’ motion to dismiss, the Court concludes

that Plaintiffs fifth and seventh claims must be

dismissed.

Plaintiffs Fifth Claim Must

be Dismissed for Failure to

Join a Necessary and

Indispensible Party

Plaintiff's fifth claim for relief seeks a

declaratory judgment stating the correct number of

gaming device licenses available under the 1999

Compacts. (Complaint 11 42). Defendants contend that

this claim, like Plaintiff's first and second claims must

be dismissed for failure to join the other 61 Tribes

benefitting from the license pool See (Def’s Mot.

Dismiss at 20). Plaintiff opposes, offering nearly

identical grounds to those this Court rejected

regarding Plaintiffs first and second claims in its

September 21 Order. For the reasons expressed in the

September 21 Order and below, the Court concludes

(...continued)

Alternatively, the Court exercises its discretion in lhght of its

amended ruling and grants supplemental jurisdiction to claim

seven under section 1367.

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

parties, or (2) 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 interest or

(ii) leave any of the persons already parties

subject to a substantial risk of incurring

double, multiple, or otherwise inconsistent

obligations by reason of the claims interest.

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

FED. R. Civ. PRoc. 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. Id.; United States v. Bowen,

172 F3d 682, 688 (9th Cir. 1999).° Although Plaintiff

3 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

monetary interest in the Compact section at issue in this

declaratory judgment claim. See (Def Mot. to Dismiss, Ex. B).

may be correct that it adequately represents the other

61 tribe's interests regarding the license pool, absent

their joiner Plaintiff certainly cannot protect

Defendants from the very real _ possibility of

inconsistent judgraents 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. Crv. PRoc. 19 (a)(2)(ii).

As discussed in detail in the September 21

Order, the absent tribes cannot be joined.* This Court

has already concluded that the tribes are entitled to

sovereign immunity and that Congress did not waive

that immunity under IGRA. See (September 21 Order).

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

regarding the number of available !icenses. 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

conflicting 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

4 Although the September 21 Order focused on the joinder

of the Five Tribes whose Compacts Plaintiff sought to

invalidate, 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.

dispositive. 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 Plaintiffs fifth claim. As they cannot be

joined, Plaintiff's fifth claim must be dismissed.

2. Plaintiffs 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 US.

Constitution grants sovereign immunity against "any

suit in 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.

Constitution 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 jurisdiction 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 implication 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).

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_ different Tribal-State compact

pursuant to IGRA or to conduct those

negotiations in good faith, the _ state's

refusal to enter into negotiations

concerning the amendment of a Tribal-

State compact to which the state is a party,

or to negotiate in good faith concerning

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 & Restaurant 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

jurisdiction clause in Section 98005. Id. at 615.

Plaintiff argues that California waived its

sovereign immunity for the purpose of the seventh

claim for relief under section 98005. The Court

respectfully disagrees.

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 immunity

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. Atascadero, 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 7 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.SC. § 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:

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

—_ ee specific performance,

u

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

circumstances 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

litigation. Therefore, Defendant Lockyer will be

removed as a named defendant from all further

proceedings in this case.

IV. CONCLUSION AND ORDER

In light of the foregoing, the Court GRANTS

Plaintiffs motion for a new trial and reconsideration

(Doc. Nos. 38-1, 38-2). The Court GRANTS

Defendants’ 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 IS SO ORDERED.

DATE: March 21, 2005

/si/ HON. THOMAS J. WHELAN

HON. THOMAS J. WHELAN

United States District Court

Southern District of California

APPENDIX D

App. 19

APPENDIX D

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. CV-04-

COMMUNITY, a Federally 02265-FCD

Recognized Indian Tribe,

Plaintiff-Appellant, ORDER

AMENDING

v. OPINION AND

DENYING THE

STATE OF CALIFORNIA; PETITION FOR

CALIFORNIA GAMBLING CONTROL PANEL

COMMISSION, an Agency of the REHEARING AND

State of California; and ARNOLD PETITION FOR

SCHWARZENEGGER, Governor of REHEARING EN

the State of California, BANC AND

AMENDED

Defendants-Appellees. OPINION

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

Amended October 24, 2008

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 1, 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: "for 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."

With these amendments, the panel has voted to

deny the petition for panel rehearing. Judges

Kleinfeld and Bybee have voted to deny the petition

for rehearing en banc, and Judge Canby has so

recommended.

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

petitions 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 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 federally recognized Indian tribe, entered

into a gaming compact with the State of California in

1999. Colusa brought this action for declaratory and

injunctive relief against the State, its Governor and

the California Gambling Control Commission

(collectively, "the State"). Colusa challenges the

Commission's interpretation of the compact and the

Commission's assumption of authority to administer

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

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.

Because 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 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 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).

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

"Compact 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

A generic copy of a 1999 Compact is available at

http://www.cgcc.ca.gov/enabling/tsc.pdf (last visited July 31,

2008).

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 Compacts. 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

the Compact Tribes who apply to obtain them

pursuant 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. Id.

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 administrator

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 Commission.

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. Id. § 4.3.2.2(e).

In addition, in order to keep their licenses current,

Compact Tribes must pay annual fees for each

licensed 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

Commission 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

nonrefundable, 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. Go’s Code §

2

For purposes of revenue sharing, the 1999 Compacts

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

State authorizing Class Ill 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.

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 by the tribe on September 1,

1999, and the "net wins" of those devices. 1999

Compacts § 5.l(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’ts 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

Commission 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 Commission

refunded the prepayment 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.

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

Commission's role and authority in the draw process;

and (4) the Commission's retention of the $312,500

tendered 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

Col:'sa 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 failure

to exhaust non-judicial remedies.* The district court

3 Colusa lists its fifth cause of action-failure to negotiate in

good faith -among its grounds for appeal. It does not, however,

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

(continued...)

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,

(...continued)

v. Estelle, 7 F.3d 139, 144 (9thCir. 1992) ("Issues raised in a brief

whicn are not supported by argument are deemed abandcned.")

(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. 71,939-02-71,939-04 (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

[entities] 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.I (9th Cir. 2004)). We note and overrule

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

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.,

Amendment to the Tribal-State Compact Between the

State of California and the Morongo Band of Mission

Indians § IAMB (Aug. 29, 2006) (amended § 4.3.1.(1)),

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

visited July 31, 2008). The aggregate revenue

contribution 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

? 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.

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. 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.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 contested

portions of this appeal is whether the absent tribes

are "required" parties to the adjudication of Colusa's

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

"indispensable" is deleted from the current text of subparagraph

(b). All quotations hereinafter to materials predating the 2007

amendment are altered, with brackets, to reflect the current

language of Rule 19.

7 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.

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. °

[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

disposing of the action in [their] absence may: (I) as a

practical matter impair or impede (their) ability to

protect the interest; or (ii) 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

8 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 "givien} full effect to sovereign

immunity" in its Rule 19(o) calculus. Jd. Because in our case the

absent tribes are not requi ed 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-Con *t) Tribes, “the court cannot

accord complete relief among exis! ng parties." Fed. R. Civ. P.

19(a)(1)(A).

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. At the other end

of the spectrum, we have recognized that the "interest

must be more than a financial stake, and more than

speculation about a future event." Makah, 910 F.2d at

558 (citations omitted); see also N. Alaska Envitl. 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

environmental, 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 nonparty 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 interest 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 vould 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 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

Compact Tribes' interest at stake. Those Compact

Tribes that currently enjoy on 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 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

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

legally protected interest and, on this record, the only

potential protection lies in the 1999 Compacts

themselves. The interest could be protected if it

actually "arises from terms in bargained contracts."

Am. reyhound Racing, 305 F.3d at 1023. We

conclude that it does not.'""The 1999 Com pacts 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 place a limit only on the

smaller universe of licenses that may be issued under

the 1999 Compacts. ”' This limit alone is insufficient to

determine the competitive landscape 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 negotiated amendments, now in effect, to the

1999 Compacts with several tribes. These

amendments provide for the operation of up to 22,500

additional gaming devices outside the pool created by

10 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.

m “The 1999 Compacts establish a formula for a limit on

the “number of machines that all Compact Tribes in the

aggregate may license pursuant to this Section. . , ," 1999

Compacts § 4.3.2.2(a)(1) (emphasis added),

the 1999 Compacts. 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 avuiding competition does

not "arise [ ] from terms in bargained contracts," id.,

and is accordingly not "legally protected" under the

circumstances 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 preexisting

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 rescurce

license for gaming devices-that is, if not for purely

economic considerations, effectively unlimited. Thus,

for the reasoning of Makah to beat 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

generally available in California. Thus, the absent

tribes have no legally protected interest in the

determination 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

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 circumstances of this case, the Compact

Tribes are not required parties to the adjudication of

Colusa's challenge to the size of the 1999 Compact

license pool.'”

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.

12 We also are not persuaded by the State's unexplained

contention that adjudication of Coiusa's challenge to the

Commission's determination of the statewide cap would expose

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

the meaning of Rule 1%. 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

Nonetheless, we conclude that the absent tribes'

interest in their "opportunity" to obtain future

licenses is insufficient to render them "required"

parties for Rule 19(a) purposes.

{5} 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 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 future draws. The possible compiaint 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 absent

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 protected

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, 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

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 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 F2d at

558 ("speculation about a future event” does not give

rise to a legally protected interest). 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

bargain-automatic renewal unless’ the _ parties

affirmatively terminated the compacts. id. 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 bargain of the absent tribes.

[6] Different considerations apply to the interest

of the absent tribes in the licenses that they have

already received. We do not question that the

Compact 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 protect

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

impair[ed}" by the litigation of Colusa's claim to a

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

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 absent tribes’ legally protected

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

13 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. 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.

F.2d at 559. Accordingly, to the extent Colusa seeks

injunctive relief requiring the Commission 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 assigned to the

other Compact Tribes.“

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 prepayment 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

= 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

nevertheless 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

(continued...)

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 Trib? $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

distributions 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

Fund. Four of the 2007 Amended Compacts that are

now in effect contain the following provision:

If it is determined that there is an

insufficient amount in the Indian

Gaming Revenue Sharing Trust Fund in

a fiscal year to distribute 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 Indian Gaming

Revenue Sharing Trust Fund in Section

4.3.2.2 in an amount sufficient to ensure

the Indian Gaming Revenue Sharing

Trust Fund has sufficient resources for

each eligible recipient Indian tribe to

(...continued)

represents that it will not be permitted to draw any more licenses

so long as it remains in a low priority tier.

receive quarterly payments pursuant to

Government Code Section 12012.90.

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

Between 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

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

§ 4.3.1(b)(~)). Should a shortfall develop in the

Revenue 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 Compacis apr-ars 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 practical 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 stats law. Fed. R. Civ. P.

19(a)(1)(B)i).”

16 As of September 20, 2007, 71 Indian tribes were eligible

to receive the $1.!-million annual distribution from the Revenue

Fund. See, e.g., California 14936 Gambling Control] Commission,

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

available at http://www.cgcc.ca.gov/

rstfi/2008/DistribFundReport020503%20%-20-%203312008. pdf

(last visited July 31, 2008).

si We reject the State's argument that “actual

implementation (which is not described in {the 2007 Compacts])

could result in delayed reimbursement" to the Non-Compact

(continued...)

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 refund ability of Colusa's

advance fees into the Revenue Fund are concerned.

With respect to the prepayment 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 ov. 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 susceptibie to joinder, indispensable to litigation

seeking to decimate that contract.") (emphasis added).

(...continued)

Tribes. Rule 19 requires "more than speculation about a future

event." Makah, 910 F.2d at 558 (citations omitted).

18 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 obligation

to contribute any specific .amount or forgo otherwise legitimate

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

commitment.

The mutuality-of-party requirement of res judicata

and defensive collateral estoppels 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,

"{ilnconsistent obligations" are not ... the

same as inconsistent adjudications or

results. Inconsistent obligations occur when

a party is unable to comply with one court's

order without breaching another court's

order concerning the same _ incident.

Inconsistent adjudications or results, by

contrast, occur when a_— defendant

successfully defends a claim in one forum,

yet loses on another clam arising from the

same incident in another forum.

ed We also note that the 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

other words, the only "fulfillment" that Colusa's claim, if

successful, 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.

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

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

omitted); 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.

Accordingly, 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. PP.

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

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’ u:.taterally to

administer 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 districs 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 "procedura! claims"- its claim that the

harvest quotas imposed by the Secretary of Commerce

“were the product of commitments made outside 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

dispositive 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.”

20 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 Fra:icisco 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

emphasized the "unusual, perhaps unprecedented, set of

circumstances" 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 proposition

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

to future conduct if Colusa prevailed on the merits of its claim.

CONCLUSION

We affirm the _ district court's judgment

dismissing Colusa's claim for failure to negotiate in

good faith. We reverse the district court's judgment

dismissing 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.

APPENDIX E

APPENDIX E

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(ACHIL DEHE BAND OF WINTUN

INDIANS OF THE COLUSA INDIAN

COMMUNITY, A Federally

Recognized Indian Tribe,

Plaintiff-Appellant, No. 06-16145

| D.C. No.

V. CV-04-02265-FCD

STATE OF CALIFORNIA; OPINION

CALIFORNIA GAMBLING CONTROL

COMMISSION, AN AGENCY OF

THE STATE OF 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

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 federally recognized Indian tribe, entered

into a gaming compact with the State of California in

1999. Colusa brought this action for declaratory and

injunctive relief against the State, its Governor and

the California Gambling Control Commission

(collectively, "the State"). Colusa challenges the

Commission's interpretation of the compact and the

Commission's assumption of authority to administer

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

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.

Because 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 by Indian tribes as a

means of promoting tribal economic development, sell-

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

aming devices, which are the exclusive subject of this

hiti gation, are Class III games. See 25 US.C. $

2703(7)(B) (ii), (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).

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

"Compact 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

l A generic copy of a 1999 Compact is available at

http://www.cgcc.ca.gov/enabling/tse.pdf (last visited July 31,

2008).

all Compact Tribes may license in the aggregate under

the 1999 Compacts. Id. § 4;3.2.2(a)()).

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

pursuant 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. Id. 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. Id.

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. Id.

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

administrator 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

Commission.

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. Id. § 4.3.2.2(e).

In addition, in order to keep their licenses current,

Compact Tribes must pay annual fees for each

licensed 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

State Legislature and administered by the

Commission 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 nonrefundable, 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. Gov't 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

2 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.

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 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

Commission 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

Commission refunded the prepayment 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-

= on the licenses that it did not receive in the

raw.

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

Commission's role and authority in the draw process;

and (4) the Commission's retention of the $312,500

tendered 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

prepayment 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 failure

to exhaust non-judicial remedies.’ The district court

3 Colusa lists its fifth cause of action-failure to negotiate ‘n

good faith-among its grounds for appeal. It does not, however,

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.")

(continued...)

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,

which became effective between December 2007 and

(...continued)

(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 (Avg. 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. 71,939-02-71,939-04 (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.cgcc.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

[entities] 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.

January 2008 ("2007 Amended Compacts"), 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 Fund] has

sufficient resources for each eligible recipient Indian

tribe to receive quarterly payments pursuant to

Government Code: Section 1201290." E.g.,

Amendment to the Tribal-State Compact Between the

State of California and the Morongo Band of

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

4.3.1.(1)), available at

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

31, 2008). The aggregate revenue contribution 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 Ruie 19(a)."

hig 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.

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. 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.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 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

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 conim. 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

'~indispensable" is de'eted from the current text of subparagraph

(b). All quotations hereinafter to materials predating the 2007

amendment 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 Canta 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.

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.

{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

disposing of the action in [their] absence may: (i) as a

practical matter impair or impede [their] ability to

protect the interest; or (ii) 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

6 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).

"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

speculation about a future event." Makah, 910 F.2d at

558 (citations omitted); see also N. Alaska Envitl. 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

environmental 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 nonparty 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 interest 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 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 free 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

Compact 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 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

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

legally protected interest and, on this record, the only

potential protection lies in the 1999 Compacts

themselves. The interest could be protected if it

actually “arises from terms in bargained contracts."

Am. Snnhound 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 place a limit only on the

smaller universe of licenses that may be issued under

the 1999 Compacts.” This limit alone is insufficient to

determine the competitive landscape 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 negotiated amendments, now in effect, to the

1999 Compacts with several tribes. These

amendments provide for the issuance of up to 22,500

additional licenses outside the pool created by the

1999 Compacts. 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

circumstances of this case. The absent 1999 Compact

10 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 aggregate

may license pursuant to this Section " 1999 Compacts §

4.3.2.2(a)(l) (emphasis added).

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 preexisting

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 rmitted 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

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

generally available in California. Thus, the absent

tribes have no legally protected interest in the

determination 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

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 circumstances of this case, the Compact

ribes are not required parties to the adjudication of

Colusa's challenge to the size of the 1999 Compact

license pool.”

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 "required"

parties for Rule 19(a) purposes.

[5] Once again, it is necessary carefully to

identify the absent parties’ interest at stake. To the

We also are not persuaded by the State's unexplained

contention that adjudication of Colusa'’s challenge to the

Commission's determination of the statewide cap would expose

the State tu 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

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 impai: or impede the

[absent tribes'] ability to protect the interest." Fed. R.

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

enter 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 gaining

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

sense, if it were not for the 1999 Compacts, the absent

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 protected

interest. Makah, 910 F.2d at 558; see also Bakia, 687

F.2d at 301. MHere, 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

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 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 interest). 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 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 cbject of their bargain

automatic renewal unless the parties affirmatively

terminated the compacts. Jd. 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 pre-determined place in

line ethat 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 bargain of

the absent tribes.

[6] Different considerations apply to the interest

of the absent tribes in the licenses that they have

already received. We do not question that the

Compact 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 protect

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

impair[ed]" by the litigation of Colusa's claim to a

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

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

protected 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

Commission 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

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

legally protected interest in either freedom from competition, see

supra p. 10 172-73, or a specific place in line in future draws, see

supra p. 10177-78.

validity or distribution of the licenses already assigned

to the other Compact Tribes."

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, a3 trustee of the

Revenue Fund, is holding the prepayment 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

14

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: compelied 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 nevertheless 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.

court held that the claim could not be litigated in the

absence of the non-Compact tribes eligible for

distributions 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

Fund. Four of the 2007 Amended Compacts that are

now in effect contain the following provision:

If it is determined that there is an insufficient amount

in the Indian Gaming Revenue Sharing Trust Fund in

a fiscal year to distribute 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 Indian Gaming Revenue

Sharing Trust Fund in Section 4.3.2.2 in an amount

sufficient to ensure 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

Between 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

million. See 2007 Amended Compacts § II.B

(amended § 4.3.1 (b)(i)). Should a shortfall develop in

the Revenue 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 practical matter impair cor 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 refundability Colusa's

advance fees into the Revenue Fund are concerned.”

= 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/DistribFundReport020503%20

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

id We reject the State's argument that “actual

implementation (which is not described in {the 2007 Compacts})

cculd 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).

sas It is true that, under the Compact, Colusa "agree[d] with

(continued...)

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 ov. 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, indispensable to litigation

seeking to decimate that contract.") (emphasis 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

(...continued)

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 obligation

to contribute any specific amount or forgo otherwise legitimate

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

commitment.

i We also note that the 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

other words, the only “fulfillment” that Colusa's claim, if

successful, 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.

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,

"liJnconsistent obligations" are not... the

same as inconsistent adjudications or

results. Inconsistent cbligations occur

when a party is unable to comply with one

court’s order without breaching another

court's order concerning the same incident.

Inconsistent 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 another forum.

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

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

omitted); see also § 19.03[4][{d] (2008). We adopt the

approach endorsed by the First Circuit. Accordingly,

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 that the Commission lacks

authorit: 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

administer 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 Commerce

"were the product of commitments made outside 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. Id. We find this reasoning

dispositive 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.”° )

CONCLUSION

We affirm the _ district court's judgment

dismissing Colusa's claim for failure to negotiate in

good faith. We reverse the district court's judgment

dismissing 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

20

We reject the State's contention that, if Colusa prevailed

in establishing its fourth claim, the existing licenses would

necessarily be void ad 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

emphasized the “unusual, perhaps unprecedented, set of

circumstances" 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 111314. Thus, Lockyer

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

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

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

to future conduct if Colusa prevailed on the merits of its claim.

APPENDIX F

App. 73

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CACHIL DEHE BAND/OF WIN TUN

INDIANS OF THE COLUSA INDIAN

COMMUNITY, a Federally

Recognized Indian Tribe,

Case No. CIV, S-04-

Plaintiff, 2265 FCD KJM

V.

MEMORANDUM

STATE OF CALIFORNIA; AND ORDER

CALIFORNIA GAMBLING CONTROL

COMMISSION, an Agency of the (Filed May 16, 2006)

State of 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.

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,

(continued...)

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. (Pl.s'

Compl., filed Oct. 25, 2004, 1 2). The Tribe entered

into a Class III Gaming Compact (the "Compact") with

the State of California (the "State") in 1999. U/d. 41 24).

At the same time, 56 other tribes (the "Compact

Tribes") also executed virtually identical compacts

with the State. (Ud.; 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

relating 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. 1 14; Tribal-State Compact between the State

of California and the Colusa Indian Community

("Compact"), attached as Ex. 1 to Defs.' Request for

Judicial Notice, § 4.3,2.2).* The Compact also sets a

(...continued)

consideration of material outside the pleadings, except for those

properly considered pursuant to judicial notice, is not

appropriate. See Hal Hoach 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

- The court takes judicial notice of the Compact. Fed.R

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

Compacts)

statewide maximum on the number of Gaming

Devices that all aes Tribes may license in the

aggregate. © (Id.) Gaming Device licenses are

distributed 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

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

based upon the number of Gaming Devices operated

by the tribe. (/d.) 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.U/d. 1 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, Ud. 4 21).

The Compact aiso provides for revenue sharing

with non-gaming tribes. The Compact sets forth that

a tribe may acquire and maintain additional Gaming

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 Gaming

Device being licensed. (Jd. 1 14). The monies are to be

received, deposited, and distributed from the Revenue

Sharing Trust Fund ("RSTF"), a fund created 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 II]

Gaming; Non-Compact Tribes are defined as federally-

recognized tribes that are operating fewer than 350

J The statewide cap is calculated pursuant to a formula

provided in § 4.3.2.2 of the Compact.

Gaming Devices, whether or not such a tribe has a

Compact with the State. (Compl. 1 10; Compact §

4.3.2(a)(1)). The' revenue sharing provisions of the

Sompnet 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 annua @ teenes fees and that

no annual fees would be required for the first 350

licenses issued to a tribe. (Compl. 1 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

party gives the other party notice of the existence of a

dispute. Ud. % 33). If the dispute is not resolved

within 30 days after the first meeting, either party

may seek to have the dispute resolved by an arbitrator

or a federal district court, or if the district court

declines jurisdiction, any State court of competent

jurisdiction. (/d.)

In 2002, the CGCC notified plaintiff and other

Compact Tribes that the CGCC would conduct a

round of Gaming Device license draws jin September

2002. Ud. % 22). Prior to the draw, and as of

September 1, 1999, the Tribe was operating 52:

Gaming Devices. (/d. | 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. Ud, 11 22). The

Tribe was placed in the third priority tier and received

250 licenses. Ud. 1 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. 1% 27).

App. 77

Plaintiff requested 377 licenses and submitted a pre-

payment of $471,250. (Ud. {1 32). The Tribe was

assigned to the fourth priority tier and received no

licenses. Ud. 111 31-32). The CGCC refunded the pre-

payment of $471,250 in full. Ud. 1 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. (Jd. 11 31).

The Tribe anticipates receiving a refund of the pre-

payment on the licenses that it did not receive in the

draw. (/d. 132).

On December 30, 2003, the Tribe wrote to

Governor 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 determination of the number of licenses

available for issuance; (3) the CGCC's role and

authority in the draw process; 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 September 2002. (/d. 11 34). A meeting took

place on February 3, 2004. (Ud. 1 35). No agreement

was reached on any of the issues the Tribe raised. (/d.

1 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.

Plaintiff 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

conducting rounds of draws of Gaming Device licenses

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

App. 78

faith.“ On March 28, 2006, defendants filed this

motion for judgment on the pleadings, seeking to

dismiss plaintiffs first second, third, and fourth

claims for relief for failure to join necessary and

indispensable parties and plaintiffs 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

virtually 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 [or

her] to relief." Yamaguchi v. Dep't of the Air Force, 109

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

4 Plaintiff also asserts that. the State is violating its

obligations under the Indian Gaming Regulatory Act of 1988

("IGRA") by failing to negotiate in good faith. (Compl. "4 58).

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).

ANALYSIS

RULE 19 JOINDER

Defendants assert that plaintiffs first four

claims should be dismissed for failure to join

necessary 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. Babbit, 101 F.3d 1304, 1309 (9th Cir. 1996). The

moving party bears the burden of persuasion. See

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

ir. 1990).

A. Necessary Party

To determine whether a party is necessary to an

action, the court must undertake another two-part

analysis. Makah, 910 F.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

accorded 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 interest or (ii) leave any of the persons

already parties subject to a substantial risk

of incurring, double, multiple ( or otherwise

inconsistent 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. Jd. (citing

Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788

F.2d 765, 774 (D.C. Cir. 1986). Interests arising from

terms in bargained contravts are also legally

protectable. 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

interpretation 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 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. 1 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 necessarily 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.

5 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

licenses.

Plaintiffs 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 deposited in the

RSTF. (Compl. 1 16). The Compact provides that each

Non-Compact Tribe shall receive 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. Id. Therefore, 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 reimbursement 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 sufficient money to pay each Non-Compact

tribe $1.1 million, an award to plaintiff decreases the

funds available for disbursement the following year.

Therefore, 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 plaintiffs third

claim for relief.

Plaintiffs fourth claim for relief alleges that

CGCC lacks authority to conduct rounds of draws for

Gaming Device licenses. If the court were to grant

plaintiffs 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 would

be invalidated. As a result, other Compact Tribes

would not be able to draw any available licenses 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

102 (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 clairns 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

interpretation could result in defendants requirement

to perform in one manner under plaintiffs 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

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 unde

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