# Petition for Writ of Certiorari — Schwarzenegger v. Rincon Band of Luiseno Mission Indians of the Rincon Reservation (No. 08-1030) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0176%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0176%3A1. Public record. Not legal advice.