Tohono O'odham Nation v. Ducey
130 F. Supp. 3d 1301
D. Ariz.2015Background
- Tohono O’odham Nation (the Nation) is constructing the West Valley Resort casino on land near Glendale, AZ; the site was purchased in 2003 and construction began in December 2014.
- The Nation previously litigated whether the 2002 Arizona–Nation Gaming Compact barred a Phoenix-area casino; the district court held the Compact did not prohibit the Glendale casino and that decision is on appeal to the Ninth Circuit.
- Arizona’s Department of Gaming (ADG), led by Director Daniel Bergin, issues certifications for gaming employees, vendors, and contractors under A.R.S. § 5-602 and attached Compact provisions.
- ADG—after letters from Governor Ducey and Attorney General Brnovich and Bergin’s own analysis—refused to certify persons for the West Valley Resort, citing alleged fraud by the Nation and a lack of authority to participate for an unauthorized facility; ADG’s notice did not distinguish Class II from Class III gaming.
- The Nation sued Governor Ducey, AG Brnovich, and Director Bergin seeking declaratory and injunctive relief that the State may not deny certifications or otherwise regulate beyond Compact-authorized authority; it moved for a preliminary injunction.
- The court: denied the Nation’s preliminary injunction, granted Ducey and Brnovich’s motion to dismiss (Ex parte Young nexus insufficient), and granted Bergin’s motion in part (dismissed Count II as unripe; other claims survive).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex parte Young nexus for Governor Ducey and AG Brnovich | Ducey and Brnovich directly intervened and sent letters that caused ADG to refuse certifications, creating an enforcement connection | Letters and influence are insufficient; officials lack statutory authority under §5-602 to deny certifications so Ex parte Young does not apply | Court: Ex parte Young does not apply to Ducey and Brnovich; dismissal granted against them |
| Ex parte Young / comprehensive enforcement (Bergin) — whether IGRA forecloses suit | Nation: IGRA contains no comprehensive remedial scheme for §2710(d)(1) preemption claims; equitable relief remains available | Bergin: Seminole Tribe bars Ex parte Young where Congress provided a remedial scheme under IGRA | Court: Seminole Tribe’s bar does not control here; IGRA does not show Congress intended to foreclose equitable relief for these claims; Bergin not dismissed on this ground |
| Ripeness of Class II regulation claim (Count II) | Nation: ADG’s undifferentiated notice chills vendors/employees and threatens Class II operations; imminent injury supports review | ADG: State concedes it lacks authority over Class II gaming and ADG has told vendors that it does not regulate Class II; alleged injuries are speculative | Court: Claim unripe; no substantial, imminent controversy and no vendor/employee refusals shown; Count II dismissed |
| Preliminary injunction — preemption and irreparable harm | Nation: Likely to succeed because ADG’s refusals are preempted by IGRA and Supremacy Clause; irreparable harm from interference with federal rights and sovereign immunity prevents money damages | State: Nation hasn’t shown ADG acted outside Compact authority; factual and contractual issues unresolved; no irreparable harm shown (facility will open as Class II; conversion costs are sunk) | Court: Nation failed to show likelihood of success or irreparable harm; PI denied |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (authorizes official-capacity equitable suit against state officers to enjoin ongoing federal-law violations)
- Seminole Tribe v. Florida, 517 U.S. 44 (1996) (limits Ex parte Young where Congress created a detailed remedial scheme)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standards for preliminary injunction: likelihood of success, irreparable harm, balance of equities, public interest)
- Armstrong v. Exceptional Child Ctr., 135 S. Ct. 1378 (2015) (Supremacy Clause does not create private cause of action; courts assess whether Congress intended to foreclose equitable relief)
- Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256 (9th Cir. 2000) (IGRA implies private causes of action only where expressly provided)
- Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996) (under IGRA, states have regulatory roles only as expressly authorized by compacts)