MAVERICK GAMING LLC v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; DEB HAALAND, in her official capacity as Secretary of the Interior; BRYAN NEWLAND, in his official capacity as Assistant Secretary Indian Affairs; JAY INSLEE, in his official capacity as the Governor of Washington; ROBERT FERGUSON, in his official capacity as the Attorney General of Washington; ALICIA LEVY, in her official capacity as Chair of the Washington State Gambling Commission; JULIA PATTERSON, in her official capacity as Vice-Chair of the Washington State Gambling Commission; BUD SIZEMORE, in his official capacity as Commissioner of the Washington State Gambling Commission; KRISTINE REEVES, in her official capacity as Commissioner of the Washington State Gambling Commission; SARAH LAWSON, in her official capacity as Commissioner of the Washington State Gambling Commission; STEVE CONWAY, in his official capacity as ex officio member of the Washington State Gambling Commission; JEFF HOLY, in his official capacity as ex officio member of the Washington State Gambling Commission; SHELLEY KLOBA, in her official capacity as ex officio member of the Washington State Gambling Commission; BRANDON VICK, in his official capacity as ex officio member of the Washington State Gambling Commission; TINA GRIFFIN, in her official capacity as Director of the Washington State Gambling Commission; SHOALWATER BAY TRIBE
No. 23-35136
United States Court of Appeals for the Ninth Circuit
December 13, 2024
D.C. No. 3:22-cv-05325-DGE
FOR PUBLICATION
MAVERICK GAMING LLC, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; DEB HAALAND, in her official capacity as Secretary of the Interior; BRYAN NEWLAND, in his official capacity as Assistant Secretary Indian Affairs; JAY INSLEE, in his official capacity as the Governor of Washington; ROBERT FERGUSON, in his official capacity as the Attorney General of Washington; ALICIA LEVY, in her official capacity as Chair of the Washington State Gambling Commission; JULIA PATTERSON, in her official capacity as Vice-Chair of the Washington State Gambling Commission; BUD SIZEMORE, in his official capacity as Commissioner of the Washington State Gambling Commission; KRISTINE REEVES, in her official capacity as Commissioner of the Washington State Gambling Commission; SARAH LAWSON, in her official capacity as Commissioner of the Washington State Gambling Commission; STEVE CONWAY, in his official capacity as ex officio member of the Washington State Gambling Commission; JEFF HOLY, in his official capacity as ex officio member of the Washington State Gambling Commission; SHELLEY KLOBA, in her official capacity as ex officio member of the Washington State Gambling Commission; BRANDON VICK, in his official capacity as ex officio member of the Washington State Gambling Commission; TINA GRIFFIN, in her official capacity as Director of the Washington State Gambling Commission, Defendants-Appellees, and SHOALWATER BAY TRIBE, Intervenor-Defendant-Appellee.
OPINION
Argued and Submitted March 27, 2024 Seattle, Washington
Filed December 13, 2024
Before: Kim McLane Wardlaw, William A. Fletcher, and Eric D. Miller, Circuit Judges.
Opinion by Judge Wardlaw; Concurrence by Judge Miller
SUMMARY*
Indian Regulatory Gaming Act / Fed. R. Civ. P. 19
The panel affirmed the district court‘s dismissal of Maverick Gaming LLC‘s action—which alleged that the State of Washington‘s tribal-state compacts allowing sports betting on tribal land violate the Indian Regulatory Gaming Act, the Equal Protection Clause, and the Tenth Amendment—because the Shoalwater Bay Indian Tribe is a required party that cannot be joined to the litigation.
The panel held that the Tribe is a required party under
Concurring, Judge Miller agreed that Maverick‘s action cannot proceed because the Tribe is a required party but sovereign immunity prevents the Tribe from being joined without its consent. He wrote separately to explain that (1) this Court‘s precedent on Rule 19 has not adequately considered the distinctive character of litigation under the Administrative Procedure Act, and (2) a competitive injury, by itself, is not enough to make a tribe a required party.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Lochlan F. Shelfer (argued), Matthew D. McGill, and Theodore B. Olson, Gibson Dunn & Crutcher LLP, Washington, D.C., for Plaintiff-Appellant.
Amber B. Blaha (argued) and Rebecca M. Ross, Attorneys; Todd S. Kim, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Tera M. Heintz (argued), Deputy Solicitor General; William D. McGinty, Assistant Attorney General, Complex Litigation Division; Robert Ferguson, Attorney General; Office of the Washington Attorney General, Olympia, Washington; Brian H. Rowe, Kristin Beneski, Assistant Attorneys General; Office of the Washington Attorney General, Seattle, Washington;
Scott D. Crowell (argued), Crowell Law Offices Tribal Advocacy Group, LLP, Sedona, Arizona; Lael Echo-Hawk, MThirtySix PLLC, Washington, D.C.; for Intervenor-Defendant-Appellee.
Keith M. Harper, Leonard R. Powell, and Allison M. Tjemsland, Jenner & Block LLP, Washington, D.C.; Cory J. Albright and Reed C. Bienvenu, Kanji & Katzen PLLC, Seattle, Washington, for Amicus Curiae Non-Party Compacting Tribes.
OPINION
WARDLAW, Circuit Judge:
In 1988, Congress enacted the Indian Regulatory Gaming 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.”
Maverick Gaming LLC (“Maverick“) is a casino gaming company. Maverick owns several hotels and casinos in Nevada and Colorado, where it offers a variety of class III games, such as roulette and craps. In 2019, shortly after the Supreme Court struck down a federal statute that prohibited states from allowing sports gambling, see Murphy v. Nat‘l Collegiate Athletic Ass‘n, 584 U.S. 453 (2018), Maverick acquired nineteen cardrooms in the State of Washington. Maverick subsequently lobbied the Washington legislature to enact a law that would allow it to offer sports betting at these cardrooms, but without success. Consistent with its criminal prohibition of all other forms of class III gaming, the Washington legislature did not legalize sports betting for private entities. However, the legislature enacted a law that allows Indian tribes to amend their gaming compacts to authorize sports betting on their land.
In response, Maverick filed this lawsuit. Maverick‘s complaint alleges that Washington‘s tribal-state compacts and the sports betting compact amendments violate IGRA, the Equal Protection Clause, and the Tenth Amendment of the United States Constitution. The complaint names as defendants the United States and various federal officials responsible for the approval of the tribal-state gaming compacts, as well as the various Washington state officials involved in the execution and administration of those compacts. Although Maverick seeks relief that would invalidate the gaming compacts of all tribes in Washington, Maverick did not include any of these tribes as parties to the suit.
The Shoalwater Bay Indian Tribe (“Tribe“) moved to intervene in the suit for the limited purpose of filing a motion to dismiss. The Tribe argues that it is a required party that cannot be joined in the action on account of its sovereign immunity. The district court granted the motion to intervene and the ensuing motion to
I. FACTUAL BACKGROUND
A. Federal History
In 1987, the Supreme Court decided its landmark decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Invoking the “traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development,” Cabazon held that a state cannot enforce its generally applicable gaming regulations on tribal land without Congress‘s express authorization. Id. at 217 (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983)).
In response, Congress enacted IGRA. See In re Indian Gaming Related Cases (Coyote Valley II), 331 F.3d 1094, 1097 (9th Cir. 2003). While drafting the legislation, the Select Committee on Indian Affairs acknowledged the importance of gaming to tribal sovereignty, explaining that the income from gaming has enabled tribes “to provide a wider range of government services to tribal citizens and reservation residents than would otherwise have been possible” and often spells “the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.” S. Rep. No. 100-446, at 2–3 (1988). But the Committee also recognized that some sort of regulatory scheme was necessary “to protect both the tribes and the gaming public from unscrupulous persons.” Id. at 2. Congress thus created IGRA “to balance the need for sound enforcement of gaming laws and regulations, with the strong federal interest in preserving the sovereign rights of tribal governments to regulate activities and enforce laws on Indian land.” Id. at 5.
To this end, IGRA‘s stated purpose is “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,” while simultaneously seeking “to provide a statutory basis for the regulation of gaming by an Indian tribe.”
IGRA creates three classes of gaming, each of which is subject to a different level of regulation. Class I games include social games for prizes of minimal value and traditional forms of Indian gaming.
IGRA permits class III gaming on tribal land if three conditions are met: (1) the tribe has authorized the class III gaming by a tribal ordinance or resolution; (2) the state in which the tribe is located permits such gaming for any purpose by any person, organization, or entity; and (3) the class III gaming is conducted in conformity with a tribal-state compact that is in effect.
Once the state and tribe have entered into a compact, the compact is sent to the Secretary of the Interior (the “Secretary“) for approval.
B. Washington State History
For the first 83 years of Washington‘s existence, the state‘s constitution prohibited all forms of gambling. See
A few years after IGRA went into effect, the legislature enacted
In March 2020, the Governor of Washington signed into law House Bill 2638 (“H.B. 2638“). H.B. 2638 created
casinos.5 The legislature ultimately decided against allowing private entities to offer sports betting, explaining:
It has long been the policy of this state to prohibit all forms and means of gambling except where carefully and specifically authorized and regulated. The legislature intends to further this policy by authorizing sports wagering on a very limited basis by restricting it to tribal casinos in the state of Washington. Tribes have more than twenty years’ experience with, and a proven track record of, successfully operating and regulating gaming facilities in accordance with tribal gaming compacts. Tribal casinos can operate sports wagering pursuant to these tribal gaming compacts, offering the benefits of the same highly regulated environment to sports wagering.
2020 Wash. Sess. Laws ch. 127, § 1. In 2021 and 2022, the legislature again rejected
then, twenty of Washington‘s federally recognized tribes have received the Secretary‘s approval for compact amendments allowing sports wagering on their land.7
C. Shoalwater Bay Indian Tribe‘s History
The Shoalwater Bay Indian Tribe is a federally recognized Indian tribe located on the Shoalwater Bay Indian Reservation (“Reservation“) in rural western Washington.8 Like the other twenty-eight federally recognized tribes in Washington today, the Tribe has reached agreement with the State on a gaming compact that allows it to offer class III gaming on its land.9
Despite ultimately reaching agreement on a gaming compact with the State, the Tribe‘s relationship with the State is best characterized as adversarial. In 1998, after several years of the Tribe‘s efforts to negotiate a gaming compact, and the State‘s refusal to do so, the Tribe began operating 108 gambling machines at the Reservation‘s casino over the objection of the State and without a compact. See United States v. Shoalwater Bay Indian Tribe, 205 F.3d 1353, 1999 WL 1269343, at *1 (9th Cir. 1999). In response, the United States filed an in rem forfeiture action and seized the Tribe‘s gambling machines. Id. Undeterred, the Tribe installed a different type of gaming machine on tribal property the following year. Further enforcement action followed. The National Indian Gaming Commission issued a Notice of Violation and Order of Closure, which accused
the Tribe of violating IGRA by conducting class III gaming activities on its land without a tribal-state compact. The conflict persisted until the United States Department of the Interior‘s Office of Hearings and Appeals enjoined the National Indian Gaming Commission from taking further enforcement action against the Tribe in 2002, at which point the Tribe and the State were able to reach an agreement, negotiating and entering into a gaming compact that became effective with the Secretary‘s approval in November 2002.10
The Tribe has since negotiated and received the Secretary‘s approval for three amendments to its compact.11 The most recent amendment, effective September 15, 2021, authorizes the Tribe to offer sports gambling.12
Today, the Reservation‘s casino and restaurant are operated by Willapa Bay Enterprises, and help to sustain the Tribe‘s economic well-being. Incorporated by the Tribe in 2007, Willapa Bay Enterprises employs 120 individuals, approximately thirty percent of whom are tribal members, tribal spouses, or the immediate family
II. PROCEDURAL BACKGROUND
After failing to persuade Washington officials to enact legislation that would allow sports betting at its cardrooms, Maverick decided to try a new strategy. On January 11, 2022, Maverick sued the various federal officials (collectively, “Federal Defendants“) and Washington state officials (collectively, “State Defendants“) responsible for the creation, approval, and administration of the Washington tribes’ gaming compacts and sports betting compact amendments in the United States District Court for the District of Columbia. The complaint did not name any of Washington‘s twenty-nine federally recognized tribes as defendants.
Maverick‘s complaint alleged three claims. The first claim, against the Federal Defendants under the Administrative Procedure Act (“APA“), alleged that the Secretary‘s approval of the Washington tribes’ sports betting compact amendments violated IGRA, the Equal Protection Clause of the U.S. Constitution, and the anticommandeering principle of the Tenth Amendment (“APA claim“). Maverick sought declaratory relief to that effect, as well as a declaration that the Tribes’ sports gaming violated IGRA and sought vacatur of the Secretary‘s approval of the sports betting amendments.
Maverick‘s second claim against the State Defendants, brought under
In its third claim, also against the State Defendants under
On February 24, 2022, the State Defendants moved to transfer venue to the Western District of Washington based on the D.C. District Court‘s lack of personal jurisdiction over them and in the interests of justice and convenience. In response, Maverick moved for leave to amend its complaint to drop the State Defendants as defendants, even though it maintained its challenge to the Washington laws. In opposition, the State Defendants argued that they were required parties under
Shortly thereafter, the Tribe moved to intervene for the limited purpose of filing a motion to dismiss under
The district court granted the Tribe‘s motion to dismiss, ruling that the Tribe is a required party under Rule 19(a). Because of “the long history of tribal gaming and associated employment benefits for the tribes and the surrounding community” the district court found that Maverick‘s suit may impair the Tribe‘s legally protected interest in “the economic and sovereign rights” conferred by its gaming compact. The district court rejected Maverick‘s argument that existing parties to the suit could adequately represent these interests in the Tribe‘s absence, explaining that, under Diné Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, 932 F.3d 843 (9th Cir. 2019) and its progeny, the Federal Defendants’ interests in defending their approval of the sports betting compact amendments “clearly diverge” from the Tribe‘s sovereign interest in the continued operation of class III gaming.
Next, because the Tribe had not waived its sovereign immunity by intervening for the limited purpose of asserting that it was a required party under
Finally, the district court concluded that the threat posed by Maverick‘s suit to the Tribe‘s “legal entitlements is sufficient such that the public rights exception,” which applies in cases filed to vindicate a public right, did not relax the joinder rules here. The court noted its doubt that this case was brought in the public interest given Maverick‘s detailed statements in the complaint explaining how “invalidation of the tribal compacts would increase Maverick‘s commercial revenue.”
III. STANDARD OF REVIEW
“We review a district court‘s decision to dismiss a case for failure to join a required party under Rule 19 for abuse of discretion, and we review any legal questions underlying that decision de novo.” Klamath Irrigation, 48 F.4th at 943. We review de novo issues of tribal sovereign immunity. Jamul Action Comm. v. Simermeyer, 974 F.3d 984, 991 (9th Cir. 2020).
IV. DISCUSSION
A party may move for dismissal of a complaint under
A. The Shoalwater Bay Indian Tribe is a required party.
We must first determine whether the Tribe is a “required party” under
(A) in that person‘s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person‘s absence may:
(i) as a practical matter impair or impede the person‘s 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.
1.
“To come within the bounds of
The district court correctly concluded that, because of the importance of tribal gaming compacts and the revenue that these compacts provide to Washington‘s federally recognized tribes, as well as the long history of tribal gaming and its associated benefits for the tribes and their surrounding communities, Maverick‘s suit implicates the Tribe‘s legally protected economic and sovereign interests. Maverick does not contest this conclusion. In fact, Maverick concedes that the Tribe has a legitimate interest in the legality of its gaming compact and sports betting amendment. Therefore, because Maverick‘s APA and equal protection claims seek relief that would result in the invalidation of the Tribe‘s gaming compact and sports betting amendment, Maverick does not dispute that the Tribehas a legally protected interest in the first and second claims in the First Amended Complaint challenging the Secretary‘s approval and
Straying from the text of the complaint and its argument below, which focuses on the Tribe‘s exemption from Washington‘s criminal laws prohibiting class III gaming, Maverick now contends that the Tribe has no legally protected interest in the Criminal Prohibition claim. This issue is not preserved for appellate review because it was not “raised sufficiently for the trial court to rule on it.” Cornhusker Cas. Ins. Co. v. Kachman, 553 F.3d 1187, 1192 (9th Cir. 2009) (quoting In re E.R. Fegert, 887 F.2d 955, 957 (9th Cir. 1989)). Maverick states “in passing,” Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010), that the district court “could redress Maverick‘s injuries by simply enjoining the State defendants from enforcing [Washington‘s criminal laws prohibiting class III gaming] against Maverick.” This statement is far removed from a specific and distinct argument that the Criminal Prohibition claim “does not threaten the Tribe‘s compact or its gaming activities at all.” See id. Our court generally “will not hear an issue raised for the first time on appeal,” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992), and we decline to do so here.
2.
Maverick also argues that the Tribe‘s interest will not be impaired or impeded because the Federal Defendants canadequately represent the Tribe‘s interests in this litigation.14 “As a practical matter, an absent party‘s ability to protect its interest will not be impaired by its absence from the suit where its interest will be adequately represented by existing parties to the suit.” Alto v. Black, 738 F.3d 1111, 1127 (9th Cir. 2013) (quoting Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999)). We have held that
whether an existing party may adequately represent an absent required party‘s interests depends on three factors: (1) whether the interests of a present party to the suit are such that it will undoubtedly make all of the absent party‘s arguments; (2) whether the party is capable of and willing to make such arguments; and (3) whether the absent party would offer any necessary element to the proceedings that the present parties would neglect.
Klamath Irrigation, 48 F.4th at 944 (quoting Diné Citizens, 932 F.3d at 852) (internal quotation marks omitted). The complaint states only the APA claim against the Federal Defendants; only the State Defendants are named in the second and third claims. The district court did not abuse its discretion in finding that, under Diné Citizens and Klamath
Irrigation, the Federal Defendants will not be able to adequately represent the Tribe‘s interest here.15
In Diné Citizens, a coalition of tribal, regional, and national conservation organizations sued the U.S. Department of the Interior challenging its reauthorization of coal mining activities on land reserved to the Navajo Nation. 932 F.3d at 847. The plaintiffs challenged the agency‘s approval of renewals to leases and mining permits
Affirming the district court‘s dismissal, we rejected the plaintiffs’ argument that the federal government could adequately represent the tribe‘s interests. We reasoned that, “[a]lthough Federal Defendants have an interest in defending their decisions, their overriding interest . . . must be in complying with environmental laws.” Id. at 855. We determined that “[t]his interest differs in a meaningful sense from NTEC‘s and the Navajo Nation‘s sovereign interest in ensuring that the Mine and Power Plant continue to operate and provide profits to the Navajo Nation.” Id. Weexplained that a judicial holding that “these statutes required something other than what Federal Defendants have interpreted them to require could similarly change Federal Defendants’ planned actions, affecting the lease, rights-of-way, and permits at stake,” and therefore the “Federal Defendants’ interest might diverge from that of NTEC.” Id.
Three years later in Klamath Irrigation, plaintiffs sued the federal Bureau of Reclamation (“Reclamation“) to challenge the agency‘s operating procedures for the distribution of water in the Klamath Water Basin. 48 F.4th at 938. In adopting these procedures, Reclamation had “the ‘nearly impossible’ task of balancing multiple competing interests,” including the interests of the irrigation district members, the requirements of the
We held that Reclamation could not adequately represent the absent tribes’ water and fishing rights. Id. at 944-45. Applying Diné Citizens, we explained that although the federal agency and the absent tribes “share an interest in the ultimate outcome of this case, our precedent underscores that such alignment on the ultimate outcome is insufficient for us to hold that the government is an adequate representative of the tribes.” Id. at 945. Rather, because “[t]he Tribes’ primary interest is in ensuring the continued fulfillment of their reserved water and fishing rights, while Reclamation‘s primary interest is in defending its [action] taken pursuant to the
We agree with the district court that under Diné Citizens and Klamath Irrigation, the Federal Defendants cannot adequately represent the Tribe‘s interests here. The federal government and the Tribe undoubtedly “share an interest in the ultimate outcome of this case“—they both seek to defend the Secretary‘s approval of the compacts and sports betting compact amendments. Id. at 945. But they “share an interest in the ultimate outcome of this case for very different reasons.” Id. As the district court explained, “though the federal government maintains an interest in defending its own analysis that formed the basis of its decision to approve the sports-betting compact amendments, it
Maverick attempts to distinguish Diné Citizens and Klamath Irrigation by arguing that they were challenges to the federal agency enforcement of statutes and regulations other than
Maverick also relies upon Alto and Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998)
Similarly, in Southwest Center, environmental organizations brought an action under the
Here, in contrast, although the Federal Defendants and Tribe share an interest in defending the Secretary‘s approval of the gaming compacts and sports betting amendments, the Federal Defendants do not share the Tribe‘s sovereign and economic interests in protecting and furthering its class III gaming operations. Maverick contends that this is an improper formulation of the adequate representation inquiry. According to Maverick, so long as there is no conflict of interest between the government and the Tribe, the federal government can adequately represent an absent tribe‘s interests. Maverick relies upon Washington v. Daley for this proposition. However, neither Daley, nor any other precedent cited by Maverick, stands for the proposition that whether the government can adequately represent a tribe‘s interests turns solely on whether there is a present conflict of interest between the government and the tribe. Rather, we have consistently examined (1) “whether the interests of a present party to the suit are such that it will undoubtedlymake all of the absent party‘s arguments; [(2)] whether the party is capable of and willing to make such arguments; and [(3)] whether the absent party would offer any necessary element to the proceedings that the present parties would neglect.” Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992) (quoting Cnty. of Fresno v. Andrus, 622 F.2d 436, 439 (9th Cir. 1980)) (internal quotations omitted); Southwest Center, 150 F.3d at 1153-54 (quoting Shermoen, 982 F.2d at 1318); Daley, 173 F.3d at 1167 (same); Alto, 738 F.3d 1127-28 (same). In the process of this examination some of our older
The Tribe contends that the federal government cannot be expected to assert an important legal argument that the Tribe would raise: That under our precedent, the Tribe can lawfully offer class III gaming even without a compact.17 In
response, Maverick contends that it is irrelevant whether the Federal Defendants would be willing to make this argument, because the question of whether the Tribe can offer class III gaming without a compact would become pertinent, if ever, only after Maverick succeeded in invalidating those compacts in this current litigation. But Maverick‘s view cannot be reconciled with Diné Citizens, which explained that the federal government could not adequately represent the tribe‘s interest because the “Federal Defendants’ interest might diverge from that of” the Tribe if the district court decided that “the federal agencies’ analyses underlying the approval was flawed.” Diné Citizens, 932 F.3d at 855 (emphasis added).
And, contrary to Maverick‘s statements otherwise, a conflict between the Tribe‘s and the federal government‘s interests exists in this case. Although today the Tribe and the State of Washington have a valid gaming compact pursuant to which the Tribe successfully operates its casino, that was not always the case. When Washington refused to negotiate a compact with the Tribe in the late 1990s, the federal government filed an in rem action against the Tribe, seized the Tribe‘s gambling machines, and issued a Notice of Violation and Order of Closure against the Tribe. At that time, the federal government relied on
Therefore, even though
B. The Shoalwater Bay Indian Tribe cannot feasibly be joined to this litigation.
Next, we determine whether the Tribe can feasibly be joined to the litigation. See Diné Citizens, 932 F.3d at 856. Because the Tribe enjoys sovereign immunity, we hold that it cannot.
“Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.” Jamul Action Comm., 974 F.3d at 991(quoting Okla. Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991)). “Among the core aspects of sovereignty that tribes possess is the common law immunity from suit traditionally enjoyed by sovereign powers.” Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 1011, 1016 (9th Cir. 2016) (internal quotation marks and alterations omitted). Although a tribe may waive this immunity, such waiver “cannot be implied but must be unequivocally expressed.” Id. (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)).
Here, the Tribe has unequivocally expressed its intent to not waive its immunity. When the Tribe filed its motion for limited intervention in the district court, it included the following language:
For avoidance of doubt, by intervening in this action for the limited purpose of moving to dismiss under
Rules 12(b)(7) and19 , the Tribe does not waive, and reserves in full, its sovereign immunity. Nothing herein shall be construed as waiver, in whole or in part, of the Tribe‘s immunity, or as the Tribe‘s consent to be sued, and the legal counsel for the Tribe, undersigned, lack authority to waive the Tribe‘s immunity or consent to the jurisdiction of this Court.
The Tribe‘s Chairwoman, Charlene Nelson, also submitted a declaration with the motion for limited intervention that explained that the Tribal Council had not waived its sovereign immunity in this matter nor authorized any of the Tribe‘s representatives, including its legal counsel, to do so.The Tribe reiterated this same position in its motion to dismiss.
Maverick nevertheless argues that the Tribe waived its sovereign immunity by voluntarily intervening in this suit. We disagree. It is well-established that a tribe‘s voluntary participation in litigation for a limited purpose does not constitute a blanket waiver of immunity from suit in general. Rather, “[t]he scope of the waiver depends on the particular circumstances, including the tribe‘s actions and statements as well as the nature and bounds of the dispute that the tribe put before the court.” Quinault Indian Nation v. Pearson for Estate of Comenout, 868 F.3d 1093, 1097 (9th Cir. 2017). That is why a “tribe‘s participation in litigation does not constitute consent to counterclaims asserted by the defendants in those actions,” McClendon v. United States, 885 F.2d 627, 630 (9th Cir. 1989); Potawatomi, 498 U.S. at 509-10 (holding that a tribe does not waive its immunity to compulsory counterclaims by voluntarily filing suit), and why “a tribe‘s voluntary participation in administrative proceedings does not waive its immunity in a subsequent court action filed by another party seeking review
Accordingly, where, as here, a tribe intervenes for the limited purpose of a motion to dismiss the action because it is a required party that cannot be joined due to its sovereign immunity, the court‘s jurisdiction is “limited to the issuesnecessary to decide” that controversy, only. McClendon, 885 F.2d at 630. “[I]t would defy logic” to conclude that “the Tribe clearly manifested its intent to waive the very immunity defense that it asserts.” Bodi, 832 F.3d at 1018.
Maverick takes out of context a statement in our decision in United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) to the effect that the tribe‘s “intervention” in that particular case waived its sovereign immunity. In that case, a tribe intervened in an action to establish and protect its treaty fishing rights and entered into a consent decree that “expressly retained [the court‘s] continuing jurisdiction in order to expedite enforcement of its decree.” Id. at 1011. Over the years, the court exercised its jurisdiction to modify the consent decree at the behest of the parties. Id. The district court adopted an agreement by the parties and later intervenors in an additional court order, which included a provision stating: “[I]n the event that significant management problems arise from this agreement that cannot be resolved by mutual agreement, the parties agree to submit the issues to federal court for determination. In any event, the Court shall retain jurisdiction over the case.” Id. at 1011, 1016.
Over a decade later, an action was brought to enforce the consent decree, and we determined that the tribe waived its sovereign immunity because it had expressly consented to suit. Id. at 1014-16. We reasoned that, “[b]y intervening [in the initial action], the Tribe assumed the risk that its position would not be accepted, and that the Tribe itself would be bound by an order it deemed adverse.” Id. at 1015. Indeed, we found that the tribe had “expressly consented to th[e] suit” by entering into the conservation agreement, in which the tribe “agree[d] to submit the issues to federal court for determination.” Id. at 1016. Thus, the tribe submitted tojurisdiction and engaged in the litigation for eleven years, and only attempted to assert sovereign immunity when the outcome appeared likely to favor conservation at the expense of its fishing rights.
Here, far from the “express[] consent” at issue in Oregon, the Tribe entered this litigation fully asserting its rights as a sovereign not subject to the court‘s jurisdiction. See id.
Maverick‘s reliance on Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002), in which the Supreme Court found that the State of Georgia‘s removal of a state court lawsuit against it to federal court amounted to a waiver of its Eleventh Amendment immunity, is also unavailing. In Bodi, we rejected a plaintiff‘s similar “attempt to extend Lapides from the Eleventh Amendment context to the tribal immunity context.” 832 F.3d at 1018. We explained that “States can waive their Eleventh Amendment immunity through litigation conduct that would not effect a waiver of tribal sovereign immunity,” and thus “parallels between the two are of limited utility.” Id. at 1020. Accordingly, although a State‘s removal of a state court case to federal court may waive its Eleventh Amendment immunity, a tribe‘s removal of a state court action filed against it to federal court does not waive its sovereign immunity where the tribe “asserted its immunity defense promptly upon removal to federal court and neither it, nor any Defendant, ever voiced an intent to litigate on the merits.” Id. at 1017. Thus, while there may be circumstances where a State‘s voluntary participation in litigation waives its Eleventh Amendment immunity, see, e.g., In re Lazar, 237 F.3d 967, 978 (9th Cir. 2001) (holding that when a state “files a proof of claim in a bankruptcy proceeding, the state waives its Eleventh Amendmentimmunity with regard to the bankruptcy estate‘s claims that arise from the same transaction or occurrence as the state‘s claim“), a tribe does not waive its sovereign immunity where, as here, it asserted its immunity defense promptly upon intervention in the suit and only ever voiced an intent to do precisely that.
The Tribe‘s limited intervention for the purpose of filing a motion to dismiss under
C. This litigation cannot proceed in equity and good conscience without the Shoalwater Bay Indian Tribe.
Turning to the final step of the
1.
“To determine whether a suit should proceed among the existing parties where a required party cannot be joined, courts consider (i) potential prejudice, (ii) possibility to reduce prejudice, (iii) adequacy of a judgment without the required party, and (iv) adequacy of a remedy with dismissal.” Klamath Irrigation, 48 F.4th at 947 (citing
The first
The district court also correctly concluded that the second factor, “the extent to which any prejudice could be lessened or
Maverick also asserts that we could lessen any prejudice to the Tribe by allowing it to participate instead as an amicus. But “[a]micus status is not sufficient” to lessen prejudice. Makah, 910 F.2d at 560 (citing Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 775 (D.C. Cir. 1986) (“If the opportunity to brief an issue as a non-party were enough to eliminate prejudice, non-joinder would never be a problem since the court could always allow the non-joinable party to file amicus briefs.“)).
The third consideration, however, weighs in Maverick‘s favor mitigating against dismissal. This factor evaluates “whether a judgment rendered in the person‘s absence would be adequate.”
Finally, we must determine “whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.”
2.
Alternatively, Maverick argues that the litigation should continue in the Tribe‘s absence under the public rights exception. “The public rights exception is a limited ‘exception to traditional joinder rules’ under which a party, although necessary, will not be deemed ‘indispensable,’ andthe litigation may continue in the absence of that party.” Diné Citizens, 932 F.3d at 858 (citing Conner v. Burford, 848 F.2d 1441, 1459 (9th Cir. 1988)). This exception is reserved for those circumstances where the litigation both “transcend[s] the private interests of the litigants and seek[s] to vindicate a public right,” and does not “destroy the legal entitlements of the absent parties.” Kescoli, 101 F.3d at 1311 (quoting Conner, 848 F.2d at 1459). Maverick‘s argument that this action comes within the public rights exception fails on both counts.
First, although Maverick frames its suit as one merely “seeking to enforce governmental compliance with administrative and constitutional law,” we have already rejected this argument in American Greyhound Racing, Inc. v. Hull, where, as here, the plaintiffs challenged the validity of tribal-gaming compacts under
The same holds true here. The First Amended Complaint contains numerous allegations of the competitive harm Maverick suffers, and hopes to eradicate, by means of this lawsuit. For example, Maverick alleges that “[b]ecause the Tribes can offer [class III] games . . . but Maverick cannot, Maverick suffers competitive injury with tribal casinos,” and that because Washington‘s criminal laws prohibit it from offering class III gaming, “Maverick cannot establish or acquire gaming operations in Washington that can effectively compete with the Tribes’ operations.” To diminish this competition, Maverick seeks nothing less thanthe invalidation of the tribal-gaming compacts of all Washington‘s tribes. Just as in American Greyhound Racing, Maverick‘s suit does not “incidentally affect the gaming tribes in the course of enforcing some public right,” but is instead “aimed at the tribes and their gaming.” Id. at 1026. Any incidental affect that Maverick‘s suit could have in ensuring “governmental compliance with administrative and constitutional law” does not transcend Maverick‘s private interest in increasing its own revenue.
Maverick also argues that the district court erred in finding that its suit seeks to invalidate the Tribe‘s acknowledged legal entitlement, because tribal-state compacts do not confer private legal rights but rather set the balance of public regulatory authority among different sovereigns. Maverick is correct that
Even if “some of the interests [Maverick] seek[s] to vindicate, like the interest in being governed by constitutional laws, are public rights,” that is not sufficient where, as here, the litigation poses a threat “to the absent tribes’ legal entitlements, and indeed to their sovereignty.” See Shermoen, 982 F.2d at 1319. Because Maverick‘s suit could destroy these legal entitlements, the district court did not abuse its discretion in determining that the public rights exception does not apply.
V. CONLUSION
Because the Tribe is a required party that cannot be joined to the litigation on account of its sovereign immunity, and because the suit cannot in equity and good conscience proceed in the Tribe‘s absence, we AFFIRM the district court‘s dismissal of Maverick‘s First Amended Complaint.
AFFIRMED.
MILLER, Circuit Judge, concurring:
Maverick Gaming LLC brought this action against the United States and various federal and state officials challenging their actions relating to the regulation of gaming in Washington State, and, in particular, to a gaming compact between the State and the Shoalwater Bay Indian Tribe. Under our precedent, the Tribe is a required party that must be joined as a defendant. Because the Tribe‘s sovereign immunity prevents it from being joined without its consent, I agree with the court that Maverick‘s action cannot proceed. Although I join the court‘s opinion in full, I write separately to explain, first, that our precedent on
I
When an Indian tribe is a required party, it cannot be joined without its consent because it enjoys sovereign immunity. See Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014). Under
Those principles compel affirmance of the dismissal here. Although Maverick attempts to distinguish our decisions in Diné Citizens and Klamath Irrigation District, I agree with the court that its efforts to do so are unpersuasive. I am not convinced, however, that our precedents on this issue are correct. In my view, our decisions have not given adequate weight to the distinctive character of
In an
The required-parties approach of Diné Citizens threatens to “sound[] the death knell for any judicial review of executive decisionmaking” in the wide range of cases in which agency actions implicate the interests of Indian tribes. Conner v. Burford, 848 F.2d 1441, 1460 (9th Cir. 1988). That is so because, as noted, we have also held that “equity and good conscience” virtually always require dismissal in this context, see Diné Citizens, 932 F.3d at 857-58, and because we have refused to apply the “public rights” exception to joinder rules when tribal interests are at stake, see id. at 858-61. The combined effect of those holdings “produce[s] an anomalous result“—namely, that “[n]o one, except [a] Tribe, could seek review of” agency actions affecting tribal interests. Manygoats v. Kleppe, 558 F.2d 556, 559 (10th Cir. 1977). That result frustrates Congress‘s directive that a person “adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.”
Our decisions in Diné Citizens and Klamath Irrigation District have created a circuit conflict. The Tenth Circuit has held that a tribe is not a required party in an
II
Required-party status under
Count three seeks a declaration that the State‘s “enforcement of Washington‘s criminal laws prohibiting class III gaming . . . violates the Constitution‘s guarantee of equal protection, and a declaration prohibiting the Defendants from enforcing those laws against Maverick.” In other words, Maverick seeks a declaration that it is allowed to conduct gaming. That claim implicates the Tribe‘s economic interests because the Tribe would suffer competitive injury if non-tribal entities were allowed to conduct gaming. But it does not implicate any legally protected interest of the Tribe, which is what
As the court‘s opinion explains, however, Maverick did not preserve this issue below. To the contrary, the district court correctly observed that Maverick did not dispute that the Tribe “has a legally protected interest that could be impaired by the instant litigation,” without distinguishing among the different counts of the complaint. I therefore agree that we must affirm the dismissal of count three along with the rest of the complaint.