MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion to Stay the Order and Restore the Preliminary Injunction Pending Appeal, filed October 4, 2016 (Doc. 123)(“Motion to Stay MOO”);. (ii) the Plaintiffs’ Motion for Leave to File Supplemental Brief, filed November 2,2016 (Doc. 140)(“Suppl. Brief Motion”); and (iii) Defendants’ Response to Plaintiffs’ Motion for Leave to File Supplemental Brief, filed November 21, 2016 (Doc. 141)(“Suppl. Brief Motion Response”). The Court held hearings on October 27, 2016, and December 9, 2016. The primary issues are: (i) whether the Court, pursuant to rule 62(c) of the Federal Rules of Civil Procedure, should stay the order that it made in its Memorandum Opinion and Order, filed September 30, 2016 (Doc. 118)(“Stay MOO”), staying the preliminary injunction that the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico entered in his Memorandum Opinion and Order, filed October 7, 2015 (Doc. 31)(“PI MOO”), pending Plaintiff Pueblo of Pojoaque’s appeal of that judgment to the United States Court of Appeals for the Tenth Circuit; (ii) whether, in the alternative, the Court should grant a sixty-day temporary stay of its judgment to allow time for the Tenth Circuit -to decide a motion for a stay that Pojoaque Pueblo will assert pursuant to rule 8(a)(1)(A) and (C) of the Federal Rules of Appellate Procedure; (iii) whether - the Court should allow Pojoaque Pueblo to file a supplemental brief to address issues that arose during the Court’s October 27, 2016, hearing; and (iv) whether, if the Court allows Pojoaque Pueblo a supplemental brief, it should allow the Defendants, to file
FACTUAL BACKGROUND
This action arises out of Defendant State of New Mexico and Pojoaque Pueblo’s failure to successfully negotiate a state-tribal gaming compact pursuant to the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (“IGRA”), and a resultant dispute over New Mexico’s authority to take regulatory enforcement actions against non-Indian, state-licensed gaming manufacturer vendors doing business with Pojoaque Pueblo’s gaming enterprises, despite the absence of a compact. On October 7, 2015, the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico, issued a preliminary injunction barring the Defendants from taking such regulatory actions, holding that New Mexico lacked “authority or jurisdiction” absent a gaming compact to “harass[ ] and threaten! ]” Pojoaque Pueblo’s vendors. PI MOO at 20. On September 30, 2016, the Court stayed the effects of Judge Brack’s preliminary injunction, holding that Poj-oaque Pueblo failed to make the requisite “strong showing” that it was likely to succeed on the merits of its claim underlying the injunction. Stay MOO at 141-44 (quoting Hilton v. Braunskill,
The Court discussed this case’s facts at length in its September 30, 2016, Stay MOO. See Stay MOO at 4-18. Because the Court’s resolution of Pojoaque Pueblo’s Motion to Stay MOO requires a fact-intensive inquiry, however, the Court will again carefully review the events surrounding the present dispute. Additionally, because the Court grants Pojoaque Pueblo’s Supplemental Brief Motion, the Court’s discussion of the facts will incorporate facts which that Motion adds to the recox-d.
1. Overview of the Parties.
Pojoaque Pueblo is a federally-recognized Indian Tribe that operates two gaming facilities on its tribal lands: the Buffalo Thunder Resort & Casino and the Cities of Gold Hotel <⅞ Casino. See Complaint [Failure to Conclude Compact Negotiations in Good Faith, 25 U.S.C. § 2710(d); Declaratory Judgment and Injunctive Relief; Violation of Civil Rights, 42 U.S.C § 1983; Pendant Claim of Tortious Interference with Existing Contractual Relationships] If 14, at 7, filed July 18, 2015 (Doc. l)(“Complaint”); Pueblo of Pojoaque, http://pojoaque.org/visit/gaming/ (last visited December 22, 2016). Plaintiff Joseph M. Talachy is Pojoaque Pueblo’s Governor. See Complaint ¶ 15, at 7.
New Mexico is a sovereign state. See Complaint ¶ 16, at 7. Defendants Jefirey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone (collectively, the “Gaming Board Members”) are Members of .the New Mexico Gaming Control Board. See Complaint ¶¶ 19-23, at 7-8. Landers also serves as Chairman of the Gaming Board. See Complaint ¶ 19, at 7. Defendant Susana Maxtinez, New Mexico’s Governor, appointed each Gaming Board membei’. See Complaint ¶ 17, pt 7; id. ¶¶ 19-23, at 7-8. Defendant Jeremiah Ritchie serves as Martinez’ Deputy Chief of Staff and primary IGRA compact negotiator. See Complaint ¶ 18, at 7.
On July 19, 2005, New Mexico and Poj-oaque Pueblo executed a Class III gaming compact
Before the expiration of New Mexico and Pojoaque Pueblo’s outstanding compact on June 30, 2015, Pojoaque Pueblo formally requested that New Mexico enter into a new agreement. See Complaint ¶ 2, at 2. Talks were unsuccessful, however, because, similar to the 2007 compact, New Mexico proposed terms which increased the “tax on net win to a range of 8.75% to 10.75% of net win, or gross gaming revenue, while acquiescing to an increase in non-Indian gaming activity in the State.” Complaint ¶ 51, at 17. As before, Pojoaque Pueblo viewed these terms as increasing the gaming tax while decreasing Pojoaque Pueblo’s “exclusivity” in its gaming operations.- Complaint ¶ 51, at 18. Accordingly, Pojoaque Pueblo did not agree to the terms of what eventually became New Mexico’s 2015 Form Compact. See Complaint ¶ 54, at 18. See generally Tribal-State Class III Gaming Compact (Indian Gaming Compact Between the State of New Mexico and the _ [sic] )(drafted February 2015)(“2015 Form Compact”).
Believing that New Mexico’s “tactics and positions” regarding what later became the 2015 Form Compact violated federal law, on December 13, 2013, Pojoaque Pueblo filed suit against New Mexico for failing to negotiate a compact under IGRA in good faith. Complaint ¶ 55, at 19. New Mexico promptly asserted sovereign immunity under the Eleventh Amendment to the Constitution of the United States of America as an affirmative defense, and, accordingly, the Honorable James A. Parker, Senior United States District Judge for the United States District Court for the District of New Mexico, dismissed the lawsuit on March 3, 2014. See Complaint ¶ 56, at 19;
With compact negotiations stalled, Poj-oaque Pueblo submitted a proposal for Class III gaming to the United States Secretary of the Interior pursuant to IGRA § 2710(d)(7)(B) and 25 C.F.R. Part 291. See Complaint ¶ 57, at 19. The remedial scheme in IGRA § 2710(d)(7)(B) enables the Interior Secretary to promulgate procedures for Class III gaming if a state refuses to agree to a compact. See 25 U.S.C. § 2710(d)(7)(B)(vii). The Interior Secretary may initiate such procedures once a federal court makes a determination that a state acted in bad faith in failing to negotiate a compact. See 25 U.S.C. § 2710(d)(7)(B)(iv)-(v). A state’s ability to assert sovereign immunity as an affirmative defense to bad faith suits under IGRA, however, effectively neutralizes this remedial scheme. See Seminole Tribe I,
On August 7, 2014, New Mexico filed suit against the United States challenging the Interior Secretary’s authority to promulgate the regulations in 25 C.F.R. Part 291. See New Mexico v. Dep’t of Interior,
On November 3, 2014, Pojoaque Pueblo informed New Mexico of its renewed desire to negotiate a compact to govern its Class III gaming operations past the June 30, 2015, termination of the extant state-tribal agreement. See Complaint ¶ 60, at 19. Pojoaque Pueblo again renewed and reaffirmed this request on January 23, 2015. See Complaint ¶ 61, at 19. New Mexico and Pojoaque Pueblo representatives subsequently met on several occasions to negotiate a new compact; however, talks again were unsuccessful, and New Mexico and Pojoaque Pueblo never reached an agreement. See Complaint ¶¶ 62-64, at 19-20.
On February 26, 2015, Becker, on the Gaming Board’s behalf, requested to perform the Gaming Board’s routine annual compliance review of Pojoaque Pueblo’s gaming operations on November 3-5, 2015. See Complaint ¶ 65, at 20. On May 6, 2015, however, Becker notified Pojoaque Pueblo by letter of the Gaming Board’s intention to conduct an earlier compliance review in advance of the existing compact’s expiration. See Complaint ¶¶ 65-66, at 20. In the letter, Becker requested that Pojoaque Pueblo provide “(a]ny and all contracts] with Class III Gaming Machine Manufacturers, including and [sic] Lease, Purchase and Service Agreements.” Complaint ¶ 66, at 20. Pursuant to its obligations under the outstanding compact, Pojoaque Pueblo produced the requested vendor contracts. See Complaint ¶ 66, at 20.
Starting in early June 2015, the Interior Secretary posted notices in the Federal Registrar and sent letters to the fifteen pueblos and tribes that executed the 2015 Form Compact explaining that each compact was “deemed approved”—that is, that the agreements were approved by operation of law. Suppl. Brief at 3 (referencing, e.g., Letter from Kevin K. Washburn to Danny H. Breuninger Jr. Regarding Approval of Compact Between the State of New Mexico and the Mescalero Apache Tribe (dated June 9, 2015), filed November 2, 2016 (Doc. 140-3)(“Mescalero Apache Letter”); Letter from Kevin K. Washburn to Luis Romero Regarding Approval of Compact Between the State of New Mexico and the Pueblo of Taos (dated July 23, 2015), filed November 2, 2016 (Doc. 140-II)(“Taos Pueblo Letter”); Letter from Lawrence S. Roberts to Francisco I. Lujan Regarding Approval of Compact Between the State of New Mexico and the Pueblo of Sandia (dated March 29, 2016), filed November 2, 2016 (Doc. 140-15)(“Sandia Pueblo Letter”)). Each letter explained that, pursuant to IGRA § 2710(d)(8)(A) and (B), the Interior Secretary is empowered either to affirmatively approve or to disapprove a state-tribal gaming compact. See Mescalero Apache Letter at 1; Taos Pueblo Letter at 1; Sandia Pueblo Letter at 1. In the event that the Interior Secretary neither approves nor disapproves a compact within-45 days of its submission, the letters continued, the compact is deemed approved - under IGRA § 2710(d)(8)(C), to the extent- that its terms are consistent with IGRA’s provisions. See Mescalero Apache Letter at 1; Taos Pueblo Letter at 1; Sandia Pueblo Letter at 1. Thus, the letters stated that, because “no action was taken on the 2015 Compact within the 45-day review period,” the compacts were “considered approved by operation of law[.]” Taos Pueblo Letter at 1; Sandia Pueblo Letter at 1. See Mes-calero Apache Letter at 1 (stating the same).
Each letter from the Interior Secretary included some discussion of the 2015 Form Compact’s terms. See Mescalero Apache Letter at 1-3; Taos Pueblo Letter at 2-3; Sandia Pueblo Letter at 1-3. The letters stated that IGRA requires that states engage in good-faith compact negotiations, and that it was the Interior Secretary’s understanding that “each of the New Mexico Tribes ... made an independent determination that adopting the 2015 Compact was in its best interest.” Taos Pueblo Letter at 2; Sandia Pueblo Letter at 1. See Mescalero Apache Letter at 2 (same). The letters then proceeded to discuss the 2015 Form Compact’s revenue sharing requirements, explaining that such requirements are “closely scrutinize^]” under a two-prong inquiry: (i) “whether the state has offered meaningful concessions that it was not otherwise required to negotiate”; and (ii) “whether the value of the concessions provides substantial economic benefits to the tribe to justify the revenue sharing negotiated.” Sandia Pueblo Letter at 1-2. See Mescalero Apache Letter at 2 (same); Taos Pueblo Letter at 2 (same). Under the
New Mexico and Pojoaque Pueblo’s Class III gaming compact expired at midnight on June 30, 2015. See Complaint ¶69, at 21. Earlier that day, Damon P. Martinez, United States Attorney for the District of New Mexico, issued a letter to Talachy stating that, once the compact expired, “[cjontinued gaming operations by the Pueblo ... would violate federal law.” Letter From Damon P. Martinez to Joseph M. Talachy Regarding Expiration of Pojoaque Pueblo’s Class III Gaming Compact with New Mexico at 1 (dated June 30, 2015), filed October 1, 2015 (Doc. 28-3)(“U.S. Attorney’s Letter”). This pronouncement notwithstanding, the U.S. Attorney’s Letter indicated that Mr. Mai’-tinez would “exercise [ ] discretion to withhold enforcement action against the Pueblo” during the pendency of the appeal in New Mexico v. Dep’t of Interior, 14-2222, challenging Judge Parker’s ruling that the Secretarial Procedures in 25 C.F.R. Part 291 are invalid. See U.S. Attorney’s Letter at 1. Mr. Martinez expressly conditioned his decision on Poj-oaque Pueblo agreeing to maintain the status quo of its gaming operations according to the expiring compact’s terms and on Pojoaque Pueblo placing in trust funds that it would otherwise pay to New Mexico under the compact. See U.S. Attorney’s Letter at 1. The U.S. Attorney’s Letter stipulated that it did not “create any rights, substantive or procedural, enforceable at law or in equity by any party in the matter, civil or criminal .... ” U.S. Attorney’s Letter at 1.
That same day, on June 30, 2015, the Gaming Board issued a public statement that Mr. Martinez’ decision to allow Poj-oaque Pueblo’s casinos to remain in operation “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Complaint ¶ 68, at 21. Shortly thereafter, on July 15, 2015, the Gaming Board held a closed meeting to discuss tribal gaming compliance issues. See Complaint ¶ 73, at 22. Following the meeting, the Gaming Board announced that it had determined that Pojoaque Pueblo’s casinos were operating illegally in the absence of a Class III gaming compact and “placed in abeyance approval of any license application or renewal for the Pueblo’s vendors.” Complaint ¶73, at 22. The Gaming Board did not place any other vendors’ applications in abeyance. See Complaint ¶ 73, at 22.
PROCEDURAL BACKGROUND
Pojoaque Pueblo commenced this action on July 18, 2015, seeking redress for two primary claims: (i) that New Mexico failed to conclude compact negotiations in good faith for the regulation of Class III gaming activities on Pojoaque Pueblo’s lands, in violation of IGRA § 2710(d); and (ii) that the Individual Defendants—Martinez, Rit-chie, Landers, Maniaci, Becker, Doughty, and Londene—conspired under color of state law to “deprive the federal right of the Pueblo and its members to be free of state jurisdiction over activities that occur on the Pueblo lands.” Complaint ¶ 1, at 1-2. Pojoaque Pueblo’s theory of the case is that New Mexico has “wrongfully asserted] State jurisdiction over gaming activities on the Pueblo’s Indian lands” in the absence of a Class III gaming compact, thereby violating the Supremacy Clause of the Constitution of the United States of America and federal civil rights statutes. Complaint ¶ 8, at 4. To redress these violations, Pojoaque Pueblo seeks declaratory relief, an injunction preventing New Mexico from interfering with Pojoaque Pueblo’s gaming vendors, the appointment of a mediator to facilitate negotiations, $50,000,000.00 per year in money damages, attorney’s fees, and “such other relief as may be just and equitable, including ancillary relief.” Complaint ¶¶ A-W, at 37-40. The case was assigned to Judge Brack. See Notice of Case Reassignment to District Judge Robert C. Brack as Trial Judge, filed September 10, 2015 (Doc. 19)( [text-only-entry]).
The Court divides its discussion of the case’s Procedural Background into six parts. First, the Court will review the Gaming Board’s actions following Pojoaque Pueblo’s filing of this lawsuit, Judge Brack’s issuance of a preliminary injunction prohibiting those actions, and the Defendants’ interlocutory appeal of that preliminary injunction. Second, the Court will discuss the Gaming Board’s actions in the wake of Judge Brack’s PI and the Court’s opinion holding that those actions do not violate the PI. Third, the Court will discuss its opinion staying the effects of Judge Brack’s PI and dismissing the case, as well as Pojoaque Pueblo’s appeal of that judgment to the Tenth Circuit. Fourth, the Court will review Pojoaque Pueblo’s Motion to Stay the Court’s judgment and restore the preliminary injunction. Fifth, the Court will discuss the Defendants’ motion to dismiss their interlocutory appeal of Judge Brack’s preliminary injunction. Sixth, the Court will discuss Pojoaque Pueblo’s Supplemental Brief Motion.
1. Judge Brack’s Preliminary Injunction.
On September 9, 2015, the Gaming Board sent letters to Pojoaque Pueblo’s gaming vendors. See Letter From Donovan Lieurance to Manufacturer Licensee at 1 (dated September 9, 2015), filed September 25, 2015 (Doc. 23-14)(“Vendor Letter”). The Vendor Letter informed the vendors that, on June 30, 2015, Mr. Martinez determined that Pojoaque Pueblo’s continued gaming operations past the expiration of its gaming compact with New
Shortly after sending the Vendor Letter, on September 25, 2015, the Gaming Board “-issued State Citations to all of the vendors doing business with the Pueblo.” Second Supplemental Declaration of Terrence “Mitch” Bailey
Pojoaque Pueblo promptly moved for a temporary restraining order and/or preliminary injunction on September 25, 2015. See Pueblo of Pojoaque’s Motion for Temporary Restraining Order and/or Preliminary Injunction, filed September 25, 2015 (Doc. 23)(“PI Motion”), In Pojoaque Pueblo’s view, .the Gaming Board’s recent issuance of letters and citations to its gaming vendors was an attempt at asserting “jurisdiction over gaming activities on the Pueblo’s Indian lands,” despite the termination of New Mexico’s jurisdiction over such activities “on June 30, 2015 when the Compact expired.” PI Motion at 13-14. Pojoaque Pueblo accordingly sought to prohibit the Gaming Board “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board [ ] based wholly or in part on grounds that such licensee is conducting business with the Pueblo.” PI Motion at 1.
The Defendants responded on October 1, 2015, contending that the Gaming Board did “not engage[] in any regulatory actions. against Plaintiffs ,... ” State Defendants’ Response to Plaintiffs’ Request for Temporary Restraining Order- at 3, filed October 1, 2015 (Doc. 28)(“PI Motion Response’’). The Defendants stressed that no direct enforcement action was threatened against Pojoaque Pueblo; rather, the Gaming Board’s actions at most “threatened regulatory consequences to third parties with ‘employment and business relationships with the Pueblo.’” PI Motion Response at 13. The Defendants reasoned that, in any event, vendor's “have not been instructed that they cannot conduct business with the Pueblo.” PI Motion Response at 4. The Defendants noted that, further, according to the U.S. Attorney’s Letter, Pojoaque Pueblo’s continued Class III gaming operations after the expiration of its compact with New Mexico violated
Judge Brack held a hearing on the matter On October 2, 2015. See Transcript of Preliminary Injunction Order Hearing held on October 2, 2015, filed October 22, 2015 (Doc. 38)(“PI Hearing Tr.”). Throughout the hearing, Pojoaque Pueblo argued extensively about its “right to be free from state jurisdiction over its gaming activities absent a tribal-state compact,” PI Hearing Tr. at 82:9-18 (Crowell), and the four requirements for the issuance of a preliminary injunction, .especially irreparable harm, see, e.g„ PI Hearing Tr. at 36:18-25, 37:1-25, 38:1-4 (Crowell). In response, the'Defendants repeatedly stated that New Mexico had no intention of barring vendors from continuing to do business with Pojoaque Pueblo. See, e.g., PI Hearing Tr. at 57:7-9 (Walz)(“[N]obody’s been ordered that they cannot do business with the Pueblo of Pojoaque.”). Pojoaque Pueblo countered that New Mexico “assert[ed] jurisdiction over the tribe’s gaming activities in the form of threatening vendors regarding their licenses to do business with other entities in the state over which they [ ] have jurisdiction.” PI Hearing Tr. at 37:16-19 (Crowell). The consequence of this action, Pojoaque Pueblo argued, would be to deter vendors from dealing with Pojoaque Pueblo, thereby “shutting] off a source of revenue [.] upon which all of the tribe’s governmental- operations ... very heavily rely.” PI Motion at 37:21-24 (Crowell). Because the issue whether federal law preempts the Defendants’ actions was not briefed by the parties, it was not argued at the hearing.
On October 7, 2015, Judge Brack granted the PI Motion. See PI MOO at 23. In issuing the PI, Judge Brack dismissed the “Defendants’ protestations that the regulation of vendors doing business with the Pueblo does not constitute regulation of the Pueblo’s gaming activities” as “disingenuous and inconsistent with the record.” PI MOO at 20. Rather, Judge Brack reasoned, the “Defendants’ actions are based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal—a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.” PI MOO at 20. Concluding that Pojoaque Pueblo had established a likelihood of irreparable harm in the absence of preliminary relief, Judge Brack observed:
Defendants’ harassment and threatening conduct directed ■ at the vendors is a thinly disguised attempt to accomplish indirectly that which the Defendants know they are without authority or jurisdiction to accomplish directly. Defendants’ contention that the enforcement actions against the vendors do not harm the Pueblo is disingenuous. The undisputed evidence establishes that the Pueblo will lose significant revenue and its Casinos may shut down due to Defendants’ intimidation of the Pueblo’s vendors.
PI MOO at 20. Accordingly, Judge Brack adopted' the PI Motion’s proposed language, and ordered that the “Defendants are enjoined from taking any action that threatens, revokes,- conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing -with the New Mexico Gaming Control Board based wholly or in part on grounds that such licensee is conducting business with the Pueblo.” Preliminary Injunction at 1, filed October 7, 2015 (Doc. 32). Judge Brack added that, to serve the
The Defendants filed an interlocutory appeal of Judge Brack’s PI to the Tenth Circuit on October 29, 2015. See Pueblo of Pojoaque v. State of New Mexico, 15-2187, Notice of Appeal at 1, filed October 29, 2015 (Doc. 40). On March 24, 2016, the panel assigned to review the matter sua sponte ordered that the appeal be abated pending the issuance of a decision on the appeal of Judge Parker’s opinion invalidating the regulations in 25 C.F.R. Part 291, in New Mexico v. Department of the Interior, 14-2222. See Tenth Circuit Court of Appeals Order Abating Appeal at 1, filed March 24, 2016 (Doc. 112).
2. The Court’s Contempt Opinion.
The Gaming Board held its first formal public meeting following Judge Brack’s issuance of the PI on October 21, 2015. See Stay MOO at 13. At the meeting, the Gaming Board considered a total of twenty-nine applications by vendors for “gaming license” renewals and “certifications of findings of suitability.” Stay MOO at 13-15 (internal footnote, quotation marks, alterations, and citation omitted). Regarding companies not doing business with Poj-oaque Pueblo, the Gaming Board approved eighteen applications, deferred one application for a one-month period, and took no vote on one application. See Stay MOO at 15 (internal footnote and citation omitted). The Gaming Board deferred all nine applications—without a date set for future consideration—by companies doing business with Pojoaque Pueblo. See Stay MOO at 15 (internal footnote and citation omitted).
On October 29, 2015, this case was reassigned to the Court after the Defendants retained new counsel with a law firm that previously employed Judge Brack, thereby creating a conflict. See Notice of Case Reassignment to District Judge James O. Browning, entered October 29, 2015 (Doc. 42)( [text-only-entry]).
As a result of the Gaming Board’s actions at its October 21, 2015, meeting, Poj-oaque Pueblo moved the Court on November 19, 2015, to: (i) “issue an Order to Show Cause” for the Gaming Board Members to “appear and present evidence as to why [they] should not be held in civil contempt of court for violating the Preliminary Injunction issued by [Judge Brack]”; (ii) impose sanctions on the Gaming Board Members upon a finding of civil contempt; and (iii) award Pojoaque Pueblo attorney’s fees and costs. Motion for Order to Show Cause Re Civil Contempt at 1-2, filed November 19, 2015 (Doc. 53)(“Contempt Motion”). Pojoaque Pueblo argued that the Gaming Board violated Judge Brack’s PI by “deferring license decisions on all applications for persons or companies doing business with the Pueblo.” Contempt Motion at 2. In Pojoaque Pueblo’s view, the Gaming Board’s actions were new attempts at “asserting jurisdiction over the Pueblo’s gaming activities by threatening the licenses of those persons or companies doing business with the Pueblo’s gaming operations.” Contempt Motion at 3.
The Gaming Board Members, represented by new counsel, responded to the Contempt Motion on December 7, 2015. See New Mexico Gaming Control Board Defendants’ Response to Plaintiffs’ Motion for Order to Show Cause Re Civil Contempt at 1, filed December 7, 2015 (Doc. 62)(“Contempt Motion Response”). The Gaming Board Members contended that, because New Mexico’s “police power to enforce state law regarding non-Indian gaming manufacturers’ licenses ... outside of tribal lands, based on the manufacturers’ continued involvement with the Pueblo’s now-illegal gaming operations, re
The Court held a hearing on the Contempt Motion on December 29, 2015. See Transcript of Order to Show Cause Proceedings held on December 29, 2015, filed January 7, 2016 (Doc. 76)(“Contempt Hearing Tr.”). The Court stated that it was “not inclined to grant civil contempt,” because the Gaming Board’s actions did not rise to the level of “threats” under the “carefully crafted” language of Judge Brack’s PI. Contempt Hearing Tr. at 2:19-3:6 (Court). The Court cautioned, however, that the Gaming Board was “playing a little bit with fire” and that, if the Gaming Board continued “down this path, the pueblo may be able to show that your deferrals have become threat[s].” Contempt Hearing Tr. at 3:14-22 (Court). In response, Pojoaque Pueblo contended that it filed the PI Motion because the Gaming Board issued deferrals, and that Judge Brack accordingly understood the word “threaten” to include deferrals. Contempt Hearing Tr. at 6:10-7:1 (Court, Crowell). The Gaming Board Members demurred, asserting that the earlier deferrals, issued before Judge Brack’s PI MOO, did not prompt the PI. See Contempt Hearing Tr. at 24:20-26:7 (Bohnhoff). The later deferrals, they continued, were “not for the purpose of taking some future enforcement action but rather [were] deferred pending the resolution of the litigation.” Contempt Hearing Tr. at 26:18-21 (Bohnhoff). In rejoinder, Pojoaque Pueblo again emphasized that the Gaming Board was attempting to send “a message to the vendors that what we do with your licenses is contingent upon what you do with the pueblo, and that is a threat.” Contempt Hearing Tr. at 62:4-6 (Crowell). Nonetheless, the Court maintained that, although deferrals could amount to a threat in certain circumstances, the Gaming Board’s actions did not rise to that level. See Contempt Hearing Tr, at 65:13-66:8 (Court).
On April 21, 2016, the Court denied the Contempt Motion. See Memorandum Opinion and Order at 7, filed April 21, 2016 (Doc. 115)(“Contempt MOO”). Consistent with its pronouncements at the hearing, the Court held that the Gaming Board’s license deferrals did not “threaten” the
the Gaming Board has established a “pattern of practice” of allowing licenses to remain in effect between the time that a licensee files for a renewal and the time that it approves the renewal. Reply at 8. Defendant Jeffrey Landers has submitted a declaration describing his review of the Gaming Board’s licensing records. See Declaration of Jeffrey S. Landers ¶ 3, at 2 (taken December 7, 2015), filed December 7, 2015 (Doc. 62-2)(“Landers Declaration”). Landers states that the Gaming Board has “approved a renewal application after the nominal expiration date of an existing license” on approximately thirty occasions between 2003 and 2015. Landers Declaration ¶ 3, at 2. Landers adds that “all” of the licensees “were permitted to continue operating during the period between the expiration date of the existing license and the approval of the renewal application.” Landers Declaration ¶ 3, at 2. The Gaming Board also represented during the hearing that this practice “isn’t something that the board has done just recently and only in the case of the manufacturers who are doing business with the pueblo. This is something that the board has done as Mr. Landers stated in his declaration over 30 times since 2003.” [Contempt Motion] Tr, at 37:14— 19 (Bohnhoff). The Plaintiffs’ argument that they cannot rely on the Gaming Board’s past practice as a defense to an enforcement action is unconvincing. See Reply at 11 (“The Certain Defendants want this Court to believe that ... a [Gaming Board] track record of defying the applicable statute and its own regulations will be a successful defense[.]”). As discussed above, § 60-2E-16(H) is inconsistent with the regulations that the Gaming Board would use to support an enforcement action. Given this conflict, the statute would govern the dispute, and its language—that “a license, certification or permit shall continue in effect upon proper payment of the initial and renewal fees”—would not support an enforcement action here. N.M. Stat. Ann. § 60-2E-16(H).
Contempt MOO at 26-27. The Court added that
it is likely that any enforcement action— whether grounded in statutes or regulations, or not—would be seen as a threat and a violation of Judge Brack’s PI. The important thing is that the Gaming Board’s practice and representations send a signal to the vendors that it is not going to do anything while Judge Brack’s PI is in place. After all, preserving the status quo is the aim of injunc-tive relief, and at the present time, the vendors are not threatened and do not appear to feel threatened.
Contempt MOO at 27. Having concluded that the deferrals would not have any “immediate legal impact on the vendors’ operations,” the Court held that the deferrals “do not otherwise constitute threats,” for three reasons. Contempt MOO at 27. First, the Court concluded that “Judge Brack’s PI Language is not sufficiently clear to support a finding of civil contempt for deferrals.” Contempt MOO at 28. Second, the Court concluded that the deferrals “were likely intended to preserve the status quo,” and that, “even if that is not the Gaming Board’s intent and it has some more nefarious purpose, the effect is to preserve the status quo.” Contempt MOO at 28. Last, the Court expressed “reluctance] to conclude that the deferrals constituted threats in the absence of conci*ete evidence that the Plaintiffs’ vendors feel
Although the Court denied the Contempt Motion, it cautioned that “[t]he Gaming Board must proceed with caution.” Contempt MOO at 30. The Court explained that the Gaming Board could properly defer applications under the PI, but that “its actions may become threats if the vendors start pulling their business from Pojoaque Pueblo.” Contempt MOO at 30. The Court elaborated:
It is true that the situation does not have to get to that point before there is a violation, but right at the moment, the vendors—who are smart, savvy business people—understand what is going on in New Mexico. These gaming vendors are a salty bunch, and not easily scared off from doing business. Moreover, the State of New Mexico has little economic self-interest in ruining the business of all vendors by eventually penalizing them down the road, so the threat, if any, appears not to exist now or in the future.
Contempt MOO at 30. The Court concluded that
Judge Brack’s PI has, for the time being, achieved what he wanted—maintaining the status quo until the case is over. Until a vendor appears and states that the situation is no longer working, the Court does not think it prudent to take the prophylactic action of contempt that the Plaintiffs suggest.
Contempt MOO at 30.
3. The Court’s Stay MOO Staying the Pi’s Effects and Dismissing the Case.
In December 2015 the Defendants filed eight motions raising, for the first time, the question-whether federal law preempts the Gaming Board’s regulatory enforcement actions against non-Indian, state-licensed gaming vendors. In February 2016, Pojoaque Pueblo moved the Court to stay proceedings pending the Tenth Circuit’s resolution of the Defendants’ interlocutory appeal of Judge Brack’s PI MOO. The Court will briefly review these nine motions and then discuss its September 30, 2016, Stay MOO disposing of these motions and dismissing the case. The Court will then turn to discuss Pojoaque Pueblo’s appeal of the Court’s Stay MOO to' the Tenth Circuit. Finally, the Court will dis- • cuss the issue, that the Tenth Circuit raised sua sponte, whether' the Court’s judgment in its Stay MOO constitutes an appealable final judgment.
a. The Qualified Immunity Motion.
On December 4, 2015, the Individual Defendants moved to dismiss the Complaint’s Count IV—which alleges that the Gaming Board’s “actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands” violaté Pojoaque Pueblo’s “federal right to engage in conduct free from the jurisdiction of the state,” Complaint ¶ 145, at 36—on the basis of qualified immunity, see Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty. Ill, and Carl E. Londone’s. Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc..60)(“QI Motion”). The Individual Defendants, contend, first, that the Gaming Board’s, actions do not violate Pojoaque Pueblo’s federal rights under IGRA, because IGRA does not preempt regulation of non-Indian, state-licensed gaming manufacturer vendors pursuant to New Mexico’s police power. See QI Motion at 8. In the Individual Defendants’ view, IGRA does not evince “clear and manifest” Congressional intent to preempt such actions, QI Motion at 12 (quoting Rice v. Santa Fe Elevator Corp.,
In response to the QI Motion, Pojoaque Pueblo contends that its rights under IGRA to be free from New Mexico’s exercise of jurisdiction over its gaming operations is clearly established, and that the Individual Defendants knew or should have known that their actions violated those rights. See Plaintiffs Pueblo of Poj-oaque and Joseph M. Talachy’s Opposition to Defendants’ Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene Motion to Dismiss Count IV on the Basis of Qualified Immunity at 4, filed December 18, 2015 (Doc. 66)(“QI Motion Response”). Pojoaque Pueblo contends that Judge Brack already concluded in his PI MOO that the Individual Defendants violated Pojoaque Pueblo’s clearly established federal rights, and that his reasoning “compels denial of [the] Motion to Dismiss.” QI Motion Response at 6. Pojoaque Pueblo points to Judge Brack’s admonition that the Gaming Board’s actions are “based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal—a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.” QI Motion Response at 6 (quoting PI MOO at 20)(internal quotation marks omitted). Pojoaque Pueblo also argues that Judge Brack concluded that the Individual Defendants “‘know’ that they have stepped over the line in their attempt to assert state jurisdiction over the Pueblo’s gaming.” QI Motion Response at 6 (quoting PI MOO at 20). Thus, Pojoaque Pueblo argues that Judge Brack’s reasoning defeats both prongs of qualified immunity analysis—that the Individual Defendants violated a federal right and that they knowingly violated that right. See QI Motion Response at 6.
b. The Motion to Stay Discovery.
Contemporaneously with their QI Motion, the Individual Defendants moved the Court on December 4, 2015, for a “stay of discovery pending a ruling on their motion to dismiss.” Defendants Susana Martinez, Jeremiah Ritchie, Jeffry [sic] S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene’s Motion for Stay of Discovery Pending Qualified Immunity Rulings at 1, filed December 4, 2015 (Doc. 61)(“Motion to Stay Discovery”). The Individual Defendants contend that a stay of discovery is warranted in light of the polices underlying
In response, Pojoaque Pueblo contends that the policy rationale underlying the qualified immunity defense does not apply, because “the Defendant Officials will remain in, and be burden by this litigation regardless of whether Count IV is dismissed.” Plaintiffs Pueblo of Pojoaque and Joseph M. Talachy’s Opposition to Defendants’ Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene Motion to Stay Discovery Pending Qualified Immunity Rulings at 3, filed December 18, 2015 (Doc. 67)(“Motion to Stay Discovery Response”). Accordingly, Pojoaque Pueblo asserts, the issue of qualified immunity should not be resolved this early in the litigation. See Motion to Stay Discovery Response at 4.
c. The Motion to Stay Judge Brack’s PI.
On December 18, 2015, the Defendants moved, pursuant to rule 62(c) of the Federal Rules of Civil Procedure and rule 8(a)(1) of the Federal Rules of Appellate Procedure, to stay or suspend Judge Brack’s PI pending the resolution of their interlocutory appeal of the PI at the'Tenth Circuit. See Defendants’ Motion to Stay or Suspend the Court’s October 7, 2015 Preliminary Injunction at 1, filed December 18, 2015 (Doc. 64)(“Motion to Stay PI”). The Defendants assert that motions to stay injunctions pending appeal are analyzed under the following factors: “(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay of injunction is granted; and (d) any risk of harm to the public interest.” Motion to Stay PI at 2 (citing General Protecht Group, Inc. v. Leviton Mfg. Co., No. CIV 10-1020 JB/LFG, slip op. at 5,
Here, the Defendants contend, Pojoaque Pueblo cannot succeed on the merits of its claim underlying Judge Brack’s PI, because New Mexico’s regulation of non-Indian gaming activity “is a valid exercise of the State’s police power,” Motion to Stay PI at 5 (citing Srader v. Verant,
Pojoaque Pueblo responded on January 25, 2016; incorporating by reference the preemption arguments that it makes elsewhere in its briefings. See Response in Opposition to State Defendants’ Motion to Stay or Suspend- the Court’s October 7, 2015 Preliminary Injunction at 2, filed January 25, 2016 (Doc. 90)(“Motion to Stay PI Response”). Pojoaque Pueblo also advances a new argument: that the Defendants improperly determined that Poj-oaque Pueblo’s Class III gaming operations in the absence of a compact is illegal. See Motion to Stay PI Response at 2. Pojoaque Pueblo asserts that it “has done everything- IGRA requires it to do” and that “[i]t is the State that is acting illegally in violation of its obligations under IGRA.” Motion to Stay PI Response at 3. Pojoaque' Pueblo argues that, in light of the Supreme Court’s holding in Seminole Tribe I that Congress lacked Constitutional authority to subject non-consenting states to suit by Indian tribes under IGRA, the Court should “re-evaluate[ ]” IGRA’s requirement that Class III gaming activities on Indian lands are legal only if a state-tribal compact is in effect. Motion to Stay PI Response at 3. Pojoaque Pueblo contends that “Seminole Tribe I revealed that IGRA was broken” and that the Court should invoke severance doctrine < to make the statute comport with Congressional intent. Motion to Stay PI Response at 3-4. In Pojoaque Pueblo’s view, Congress would not have intended to criminalize Class III gaming conducted without a compact if a tribe did not have the ability to sue a state for failing to negotiate a- compact in good faith. See Motion to Stay PI Response at 3-16.
Accordingly, Pojoaque Pueblo proposes that the Court (i) sever IGRA’s requirement that a court must first find that a state acted in bad faith before IGRA’s remedial provisions apply; and (ii) modify IGRA’s provision for a court-appointed mediator to select one of two compacts that the tribe and the state propose, to allow the mediator to consider only the compact that the tribe proposes. See Motion to Stay PI Response at 13-14. In Pojoaque Pueblo’s version of the statute, a state would be required either to consent to the tribe’s proposed compact or to be subject to secretarial procedures based on the tribe’s compact. See Motion to Stay Injunction Response at 13-14. Pojoaque Pueblo proposes, moreover, that the Court sever IGRA’s requirement that a Class III gaming compact must be in effect for such gaming to be lawful. See Motion to Stay PI Response at 15. Pojoaque Pueblo’s version of the statute, rather, would allow tribes to conduct gaming “in a State in which gambling devices are legal.” Motion to Stay PI Response at 15. In short, Pojoaque Pueblo proposes that “the Class III provisions of IGRA in their entirety should' be struck' down, and the Pueblo should be able to govern gaming activities on its Indian lands without regard to IGRA Motion to Stay PI Response at 16.
d. The Motion to Reconsider Judge Brack’s PI.
On December 18, 2015, the Defendants moved, pursuant to rules 54(b), 62(c), and 62.1 of the Federal Rules of Civil Procedure, to reconsider, and either to vacate or to modify Judge Brack’s PI, or, in the alternative, to grant “related relief available under Rule 62.1.” Defendants’ Motion to Reconsider and Either Vacate or Modify the Court’s October 7, 2015 Preliminary Injunction, and for Relief Pursuant to Fed. R. Civ. P. 62.1 at 1, filed December 18, 2015 (Doc. 65)(“Motion to Reconsider
Turning to their analysis, the Defendants advance the same arguments that they articulate elsewhere in their briefings regarding the legality of the Gaming Board’s actions. First, the Defendants assert that New Mexico has a “sovereign interest” in enforcing its police powers within its jurisdiction. Motion to Reconsider PI at 16 (citing Mashantucket Pequot Tribe v. Town of Ledyard,
Pojoaque Pueblo responded on January 25, 2016, focusing substantially on the Defendants’ preemption arguments and ignoring the arguments regarding the Court’s authority to take action on Judge Brack’s PI. See Response in Opposition to State Defendants’ Motion to Reconsider and Either Vacate or Modify the Court’s October 7, 2015 Preliminary Injunction and for Other Relief Pursuant to Fed. R. Civ. P. 62.1 at 2-16, filed January 25, 2016 (Doc. 85)(“Motion to Reconsider PI Response”). Pojoaque Pueblo first contends that, in the context of “a state’s authority to regulate activities on tribal lands, courts must apply standards different from those applied in other areas of federal preemption.” Motion to Reconsider PI Response at 3 (citing Jicarilla Apache Tribe v. Supron Energy Corp.,
Turning to the Defendants’ specific preemption arguments, Pojoaque Pueblo asserts that the Defendants “carefully frame[]” the issue in terms of whether IGRA preempts state regulatory actions “outside of Indian country” while simultaneously conceding that “IGRA is intended to expressly preempt the field in the governance of gaming activities on Indian lands.” Motion to Reconsider PI Response at 9 (emphasis and internal quotation marks omitted). Pojoaque Pueblo notes that it “does not dispute or take issue with the State’s ability to use its police powers to regulate gaming on State lands,” but argues that New Mexico’s use of its police power to “regulate gaming on Pueblo tribal lands ... breaches] the preemptive force of IGRA.” Motion to Reconsider PI Response at 9. The dispositive question, Pojoaque Pueblo asserts, is whether “actions related to state enforcement of state law ‘clearly and substantially involve, regulate, or interfere with gaming.’ ” Motion to Reconsider PI Response at 13 (quoting Srader v. Verant,
e. The Sovereign Immunity Motion.
On December 22, 2015, New Mexico asserted sovereign immunity as an affirmative defense under the Eleventh Amendment and moved the Court “to remove the State as an enjoined party, and dismiss[ ] Plaintiffs’ Complaint as against the State.” Defendant State of New Mexico’s Motion to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendant State of
Pojoaque Pueblo, in response, does not contest New Mexico’s request that the Court dismiss the entire Complaint as against New Mexico. See Response to State Defendants’ Motion to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendants [sic] State of New Mexico Based on the State’s Eleventh Amendment Sovereign Immunity at 2-3, filed January 25, 2016 (Doc. 88)(“Sovereign Immunity Motion Response”). Pojoaque Pueblo concedes that, “under these circumstances, this Court lacks jurisdiction” to hear Pojoaque Pueblo’s claims against New Mexico. Sovereign Immunity Motion Response at 2. Pojoaque Pueblo also does not contest New Mexico’s request that the Court modify Judge Brack’s PI and remove New Mexico as an enjoined party. See Sovereign Immunity Motion Response at 2-3 (stating only that New Mexico “acknowledges that the modification of the Preliminary Injunction to remove the State as a named party will continue in effect against the remaining Individual Defendants”).
f. The Motion to Dismiss Counts III and IV.
On December 22, 2015, the Individual Defendants moved to dismiss the Complaint’s Counts III and IV, which seek prospective injunctive relief and damages for the Individual Defendants’ alleged “wrongful[] assertion] of State jurisdiction over gaming activities on the Pueblo’s Indian lands ... in violation of 42 U.S.C. §§ 1983 and 1985.” Complaint ¶¶ 138-142, at 35; id. ¶¶143-151, at 35-37. See Defendants’ Motion to Dismiss Counts III and IV of the Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 71)(“Motion to Dismiss Counts III and IV”). The Individual Defendants assert that “[s]ections 1983 and 1985 do not ... confer any rights; instead they are merely a vehicle for a plaintiff to bring an action ‘against state actors to enforce rights created by federal statutes as well as by the Constitution.’ ” Motion to Dismiss Counts III and IV at 8 (quoting Gonzaga Univ. v. Doe,
With respect to the Complaint’s § 1983 claim, the Individual Defendants posit two primary reasons why the claim fails to allege a violation of a federal right. See Motion to Dismiss Counts III and IV at 9. First, the Individual Defendants assert that there is no violation of federal law, because IGRA does not preempt the Gaming Board’s actions. See Motion to Dismiss Counts III and IV at 9. Second, the Individual Defendants contend that, even assuming that IGRA preempts the Gaming Board’s actions, the Complaint “fail[s] to state a claim under Section 1983 because a mere violation of federal law is not sufficient to establish a violation of a federal right, as is required for a Section 1983
Pojoaque Pueblo responded on January 25, 2016. See Response in Opposition to State Defendants’ Motion to Dismiss Counts III and IV of Plaintiffs’ Complaint at 1, filed January 25, 2016 (Doc, 87)(“ Motion to Dismiss Counts III and IV Response”). Pojoaque Pueblo first notes that the dispute regarding Count IV is moot, because the Court already determined that the Individual Defendants are entitled to qualified immunity as to that Count. See Motion to Dismiss Counts III and IV Response at 2. With respect to Count III, Pojoaque Pueblo incorporates by reference the arguments from its various briefings regarding IGRA’s preemption of the Individual Defendants’ actions. See Motion to Dismiss Counts III and IV Response at 5, Finally, specifically addressing the Individual Defendants’ arguments regarding the racial component of § 1985 claims, Poj-oaque Pueblo contends that “[t]he Complaint clearly alleges that the Individual Defendants conspired to wrongfully assert jurisdiction because of their invidiously discriminatory animus against the Pueblo and its members.” Motion to Dismiss Counts III and IV Response at 6. Poj-oaque Pueblo asserts that “[i]t is difficult to comprehend how the Individual Defendants would characterize the allegations in any other way.” Motion to Dismiss Counts III and IV Response at 6. Accordingly, Pojoaque Pueblo asserts, Count III states a claim upon which relief can be granted. See Motion to Dismiss Counts III and IV Response at 6.
g. The Motion to Dismiss Count II.
On December 22, 2015, the Individual Defendants moved to dismiss the Complaint’s Count II, which alleges a violation of Pojoaque Pueblo’s “right, based on the Supremacy Clause, to engage in activity on the Pueblo’s Indian lands in a manner that is free form interference.” Complaint ¶ 133, at 34. See Defendants’ Motion to Dismiss Count II of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 72)(“Motion to Dismiss Count II”). The Individual Defendants argue that the Supremacy Clause is “ ‘not a source of any federal rights’; it ‘secures federal rights by according them priority whenever they come in conflict with state law.’ ” Motion to Dismiss Count II at 6 (quoting Golden State Transit Corp v. Los Angeles,
In response, Pojoaque Pueblo concedes that the Supremacy Clause does not create a private right of action. See Response in Opposition to State Defendants’ Motion to Dismiss Count II of the Plaintiffs [sic] Complaint at 2, filed January 25, 2016 (Doc. 86)(“Motion to Dismiss Count II Response”). Pojoaque Pueblo contends, however, that the “Supreme Court has recently affirmed and recognized the existence of the cause of action set forth in Count II in Armstrong v. Exceptional Child Ctr., Inc., — U.S. -[,
h. The Motion to Dismiss Count Y.
On December 22, 2015, the Defendants moved to dismiss the Complaint’s Count V, which seeks unspecified relief for the Defendants’ alleged tortious interference With Pojoaque Pueblo’s existing contract relations as “recognized by the courts of the State of New Mexico.” Complaint ¶ 153, -at 37. See Defendants’ Motion to Dismiss Count V of Plaintiffs’ Complaint; filed December 22, 2015 (Doc. 73)(“Mótion to Dismiss Count V”). The Defendants argue, first, that New Mexico is “immune from suit in federal court pursuant to the Eleventh Amendment” and that New Mexico has not waived this immunity. Motion to Dismiss Count V at 1-3. Second, the Defendants contend that, pursuant to the New Mexico Tort Claims Act, N.M.S.A. §§ 41-4-1 to -30 (the “NMTCA”); New Mexico and it's employees are “immune from liability under state tort liability.” Motion to Dismiss Count V at 1.
Pojoaque Pueblo, in response, agrees to • the dismissal of Count V “by reason of the State’s assertion of Eleventh Amendment immunity.” Response to State Defendants’ Motion to Dismiss Count V of Plaintiffs [sic] Complaint at 2, filed 'January 25, 2016 (Doc. 89)(“Motion to Dismiss Count V Response”). Pojoaque Pueblo “concurs with the Defendants that under these circumstances, this Court lacks jurisdiction to hear Count V.” Motion to Dismiss Count V Response at 2.
i. The Motion to Stay Proceedings.
On February 17, 2016, Pojoaque Pueblo moved to stay proceedings pending the Defendants’ interlocutory appeal of Judge Brack’s PI. See Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction at 1, filed February 17, 2016 (Doc. 93)(“Motion to. Stay .Proceedings”),
In any event, Pojoaque Pueblo asserts, the Court should stay proceedings, because Pojoaque Pueblo has “established] the four criteria considered in deliberation of motions to stay proceedings pending appeals.” Motion to Stay Proceedings at 9. Pojoaque Pueblo contends that, first, Judge Brack’s PI MOO established the likelihood of Pojoaque Pueblo’s success on appeal. See Motion to Stay Proceedings at 10. Second, Pojoaque Pueblo argues that “the irreparable harm to the Pueblo if the stay is denied is the otherwise unnecessary legal fees and costs of litigation proceeding in this Court ..., ” Motion to Stay Proceedings at 10-11. Third, Pojoaque Pueblo avers that “the balance of hardships tips heavily in the Pueblo’s favor.” Motion to Stay Proceedings at 11. Last, Pojoaque Pueblo argues that “the requested stay would promote the public interest in accuracy of judicial proceedings and in efficient use of government resources.” Motion to Stay Proceedings at 11.
The Defendants responded on March 7, 2016. See Defendants’ Response to Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction at 1, filed March 7, 2016 (Doc. 106)(“Motion to Stay Proceedings Response”). The Defendants argue that the “complete divestiture rule” articulated in Stewart v. Donges “stems from, and its scope is limited by, the nature of the defense that is the subject of the appeal.” Motion to Stay Proceedings Response at 2. The Defendants note, however, that “there are £exception[s] to this general rule.’ ” Motion to Stay Proceedings Response at 3 (quoting Anderson Living Trust v. WPX Energy Prod., LLC,
Regarding Pojoaque Pueblo’s prudential arguments, the Defendants assert that “stay requests are judged by the funda
j. The Court’s Stay MOO.
The Court issued its Stay MOO disposing of the nine aforementioned motions on September 30, 2016. See Stay MOO at 1. The Court began its analysis by concluding that, notwithstanding the Defendants’ interlocutory appeal of Judge Brack’s PI, the Court had “jurisdiction to ‘proceed to determine the action on the merits.’ ” Stay MOO at 97 (quoting Free Speech,
Having established its jurisdiction, the Court turned to the merits of the Defendants’ motions, concluding that the Defendants did not violate Pojoaque Pueblo’s federal rights by taking regulatory enforcement actions against Pojoaque Pueblo’s gaming vendors. See Stay MOO at 98-126. First addressing the litigation’s central preemption issue, the Court held that IGRA “does not preempt New Mexico’s regulatory actions with respect to non-Indian, state-licensed vendors doing business with non-Indian gaming operators.” MOO at 120. The Court reasoned that IGRA does not evince any “clear and manifest” Congressional intent to preempt the exercise of regulatory actions outside tribal lands, because IGRA concerns only regulation of “gaming on Indian lands, and nowhere else.” Stay MOO at 106 (quoting Bay Mills,
The Court then held that the Defendants’ actions do not otherwise violate Poj-oaque Pueblo’s federal rights under the Supremacy Clause or under 42 U.S.C. §§ 1983 and 1985. See MOO at 121-126. First; with respect to Pojoaque Pueblo’s allegation that the Gaming Board’s actions “constitute a violation of the Supremacy Clause,” Complaint ¶ 8, at 4, the Court held: that the Complaint, fails to. state a claim, because “the Supremacy Clause ‘is not a source .of any federal rights,’ ” Stay MOO at 121 (quoting Golden State Transit Corp. v. Los Angeles,
Turning to the QI Motion, the Court concluded that the Individual Defendants are entitled to qualified immunity with respect to the Complaint’s Count IV. See Stay MOO at 127. The Court first extended its previous analysis regarding IGRA’s preemptive scope, holding that “the Individual Defendants’ regulatory actions towards third-party vendor licensees did not violate Pojoaque Pueblo’s federal rights under IGRA.” Stay MOO at 128. The Court likewise held that the Individual Defendants did not- “violate Pojoaque Pueblo’s rights under the Supremacy Clause, or under 42 U.S.C. §§ 1983 or 1985.” Stay MOO at 128. Thus, the Court concluded that “no ‘constitutional right would have been violated on the facts alleged.’ ” Stay MOO at 128 (quoting Saucier v. Katz,
The Court declined, however, to grant a stay of discovery pending the Court’s ruling on the QI Motion. See Stay MOO at 132. The Court acknowledged that “it is true that discovery should normally be stayed pending the resolution of a qualified immunity defense.” Stay MOO at 133 (citing Harlow v. Fitzgerald,
The Court next addressed New Mexico’s assertion of sovereign immunity from suit. See Stay MOO at 134, The Court first concluded that New Mexico is entitled to sovereign immunity with respect to Poj-oaque Pueblo’s bad-faith compact negotiation claim asserted pursuant to IGRA § 2710(d)(7), because “§ 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued.” Stay MOO at 135 (quoting Seminole Tribe I,
The Court then turned to the Individual Defendants’ Motion to Dismiss Count V on the grounds of immunity under the NMTCA, § 41-4-1 to -30. See Stay MOO at 137. The Court noted that, because “[t]he NMTCA does not waive liability for intentional torts, ... New Mexico officials cannot be held liable for tortious interference with contractual relations.” Stay MOO at 138 (citing El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation Dist.,
The Court’s analysis then turned to the Defendants’ motions concerning Judge Brack’s PI. See Stay MOO at 138. First, with respect to the Motion to Stay PI, the Court invoked its authority pursuant to rule 62(c) and stayed the PI. See Stay MOO at 138-144. The Court reasoned that
The Court left the preliminary injunction intact, however. See Stay MOO at 144-145. The Court reasoned that “[a] district court [ ] has no jurisdiction to vacate or dissolve a preliminary injunction that has been appealed.” Stay MOO at 145 (citing Coastal Corp. v. Tex. E. Corp.,
Having dismissed all claims against all parties, the Court entered Final Judgment concomitantly with its Stay MOO on September 30, 2016. See Final Judgment at 1, filed September 30, 2016 (Doc. 119). In the Final Judgment, the Court “dismissed Defendant State of New Mexico without prejudice, and all other Defendants with prejudice.” Final Judgment at 1.
k. Pojoaque Pueblo’s Appeal of the Court’s Stay MOO.
Pojoaque Pueblo promptly appealed the Court’s Stay MOO to the Tenth Circuit on October 3, 2016. See Pueblo of Pojoaque v. State of New Mexico, No. 16-2228, Notice of Appeal at 1, filed October 3, 2016 (Doc. 120). On October 17, 2016, the Tenth Circuit panel assigned to review the matter sua sponte issued an order indicating that “[i]t appears that the district court’s September 30, 2016 judgment is not yet final.” United States Court of Appeals for the Tenth Circuit’s Order at 1, filed October 17, 2016 (Doc. 128)(“Tenth Circuit FJ Order”). The Tenth Circuit noted that Poj-oaque Pueblo, in response to the docketing statement question, “Does the judgment or order to be reviewed dispose of all claims by and against all parties?” answered “Yes, with the caveat that the District Court represents that the Order being appealed from is a Final Judgment while simultaneously indicating that it would take future action on the Preliminary Injunction in effect.” Tenth Circuit FJ Order at 1 (internal quotation marks and emphases omitted). Based on that statement, the Tenth Circuit expressed that the Court’s Stay MOO appeared to reserve jurisdiction to “dissolve or vacate the pre
On October 26, 2016, Pojoaque Pueblo indicated that, “[u]nless this Court provides an explanation that would correct or explain the error, the Pueblo intends to notify the Tenth Circuit that it is correct and that the appeal should be dismissed.” Plaintiffs’ Reply to Defendants’ Response to Motion to Stay Order and Restore the Preliminary Injunction Pending Appeal at 1 n.2, filed October 26, 2016 (Doc. 131)(“Motion to Stay MOO Reply”).
The Court held a hearing on October 27, 2016. See Transcript of Motion Hearing at 6:6-22 (taken October 27, 2016), filed December 30, 2016 (Doc. 147)(Crowell)(“FJ Tr.”). The Court first explained that it entered Final Judgment in part to assist Pojoaque Pueblo in its ability to quickly appeal the Court’s Stay MOO to the Tenth Circuit. See FJ Tr. at 7:7-20 (Court). The Court noted that, in its view, the “purpose of an indicative ruling is to tell [the Tenth Circuit] that if they will divest themselves of their jurisdiction, this is what I will do,” and that, in the circumstances of this case, there is no way “to give an indicative ruling without a final judgment.” FJ Tr. at 7:21-8:2 (Court). Indeed, the “whole purpose of an indicative ruling,” the Court reasoned, “is when the court doesn’t have jurisdiction.” FJ Tr. at 18:2-4 (Court). If the Court had jurisdiction, the Court continued, it could just vacate or dissolve the PI. See FJ Tr. at 8:1-4 (Court). It follows, the Court explained, that the Court did not reserve any jurisdiction that would defeat the finality of its Final Judgment, because it had no jurisdiction to reserve. See FJ Tr. at 8:1-4 (Court). The Court emphasized that it was careful in its MOO “not [to] touch [the] preliminary injunction,” because it perceived that it was divested of jurisdiction because of the Defendants’ interlocutory appeal to the Tenth Circuit. FJ Tr. at 31:10-18 (Court). Accordingly, the Court noted that it stayed the PI pursuant to rule 62(c), but that it left the injunction itself intact and simply issued an indicative ruling under rule 62.1. See FJ Tr. at 31:10-18 (Court). The Court concluded that it could think of nothing further that it could do in the case, because the Court had “resolve[d] all parties and all claims.” Tr. at 19: 10-14 (Court).
The Defendants opened their argument by stating that, if given the opportunity, they “would defend the finality of the judgment” before the Tenth Circuit. FJ Tr. at 18:19-21 (Bohnhoff). The Defendants noted, however, that the Tenth Circuit FJ Order “required input only from the Pueblo, not from the State.” FJ Tr. at 18:22-23 (Bohnhoff). Thus, the Defendants indicated that they would likely file a motion with a Tenth Circuit “asking for an opportunity to be heard.” FJ Tr. at 18:24-19:4 (Bohn-hoff). The Defendants averred that, in their view, the Court had “jurisdiction to enter the final judgment.” FJ Tr. at 21:22-23 (Bohnhoff).
The 'Court queried why it is in Pojoaque Pueblo’s interest to argue that the Court
In rejoinder, Pojoaque Pueblo disputed that it was “motivated by delay,” clarifying that it desires to “avoid [ ] going through all the expense and time of an appeal, to possibly have the court say, well, we didn’t have jurisdiction in the first place.” FJ Tr. at 42:13-21 (Crowell). Accordingly, Poj-oaque Pueblo explained that it simply “want[s] a final judgment that [it] can take to the court of appeals, and where the court of appeals clearly has jurisdiction to resolve the issues.” FJ Tr. at 44:14-17 (Crowell). As it stands, however, Pojoaque Pueblo indicated that it planned to confess error by the Court in entering Final Judgment, because the Court’s Final Judgment appears to leave certain issues unresolved. See FJ Tr. at 44:6-11 (Crowell). Based on this alleged error, Pojoaque Pueblo proposed that the Court vacate the Final Judgment pending the Tenth Circuit’s resolution of the Defendants’ interlocutory appeal of the preliminary injunction, at which time the Court could enter a judgment that is indisputably final. See FJ Tr. at 44:21-25 (Crowell).
In light of the Court’s clarifications at the hearing regarding the finality of the Final Judgment, Pojoaque Pueblo subsequently filed a brief at the Tenth Circuit in which it argued that, contrary to its earlier assertion that the Stay MOO did not reach a final decision, the Stay MOO “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute judgment.’” Appellants Pueblo of Pojoaque and Governor Joseph M. Talachy Response to October 17, 2016 Court Order at 2, filed November 1, 2016 (Doc. 138-1)(“FJ Response”)(quoting Cunningham v. Hamilton Cnty.,
The Court issued an opinion denying Pojoaque Pueblo’s request to vacate the Final Judgment on November 2, 2016. See Memorandum Opinion and Order at 2, filed November 2, 2016 (Doc. 139)(“FJ MOO”). The Court explained that the Stay MOO reached a final decision on the merits, because it dismissed all claims against all parties. See FJ MOO at 15 (noting that the Stay MOO dismissed all claims against the Individual Defendants with prejudice and dismissed all claims against New Mexico without prejudice). The Court reasoned, further, that its statement in the Stay MOO that the Court would “dissolve or vacate the preliminary injunction if the Defendants dismiss the appeal and/or the Tenth Circuit remands the case for the Court’s consideration” was an indicative ruling that did not reserve any jurisdiction that would defeat the finality of the Final Judgment. FJ MOO at 17 (quoting Stay MOO at 145). The Court explained that it “did not by operation of its indicative ruling carve out a reservation of jurisdiction to vacate the preliminary injunction in the future; rather, it merely signaled what course of action it will take if it reacquires jurisdiction on remand.” FJ MOO at 17 (citing Fed. R. Civ. P. 62.1). The Court concluded that, “[plainly, the Court has not reserved jurisdiction, because it has no jurisdiction to reserve.” FJ MOO at 17-18.
On October 4, 2016, Pojoaque Pueblo moved, pursuant to rule 62(c) of the Federal Rules of Civil Procedure, and rule 8(a)(1)(A) and (C) of the Federal Rules of Appellate Procedure, to stay the Court’s order in its Stay MOO staying the effects of Judge Brack’s PI and to restore the PI pending the resolution of Pojoaque Pueblo’s appeal of the Stay MOO to the Tenth Circuit. See Motion to Stay MOO at 1. Pojoaque Pueblo moved, in the alternative, for a sixty-day temporary stay of the Court’s order to allow time for the Tenth Circuit to consider and rule on a motion for a stay that Pojoaque Pueblo will assert pursuant to rule 8(a)(1)(A) and (C) of the Federal Rules of Appellate Procedure. See Motion to Stay MOO at 1. The Court will discuss Pojoaque Pueblo’s Motion to Stay MOO and its responsive pleadings in turn,
a. The Motion to Stay MOO.
Pojoaque Pueblo’s Motion to Stay MOO largely recasts the arguments thát it advanced in its earlier motions. See Motion to Stay MOO at 1-27. Pojoaque Pueblo contends that the Court should grant a stay for two primary reasons: (i) “because the Court never had jurisdiction to rule on the pleadings, as Defendants’ interlocutory appeal of the Order granting preliminary injunction divested the Court of jurisdiction”; and (ii) “because even if the Court did have jurisdiction to rule on the pleadings, the elements for granting a stay pending appeal have been met.” Motion to Stay MOO at 2. The Court reviews these arguments in turn.
i. Jurisdictional Arguments.
Pojoaque Pueblo contends that, first, the Court in its Stay MOO “wrongly concluded that the Defendants’ interlocutory appeal of Judge Brack’s preliminary injunction does not divest the Court of jurisdiction to ‘proceed to determine the action on the merits.’ ” Motion to Stay MOO at 9 (quoting-Stay. MOO at 97). Pojoaque Pueblo asserts that the Court failed to “apply the bright line rule established by the Tenth Circuit in Stewart-v. Donges” that, “[o]nce a party has filed an- appeal from an interlocutory order, ... the District Court is divested of jurisdiction pending the appeal, except in very limited circumstances ..., or unless the District Court certifies that the appeal is frivolous.” Motion-" to Stay MOO at 9 (citing Stewart v. Donges,
Pojoaque Pueblo, contends that, rather than “embrac[e] the bright line rule” in Stewart v. Donges, the Court “incorrectly applies” Free Speech. Motion to Stay MOO at 10-11. Pojoaque Pueblo- stresses the importance of Free Speech’s procedural posture. See Motion to Stay MOO at 10. Pojoaque Pueblo notes that ,“[t]he plaintiffs in Free Speech filed, an interlocutory .appeal from a denial of their motion for preliminary injunction, and while that appeal was technically pending, the District Court granted the federal defendants’ motion to dismiss.” Motion to Stay M0.0 at 10. Pojoaque -Pueblo contends that ■“Free
Finally with regard to the Court’s jurisdiction, Pojoaque Pueblo asserts that the Tenth Circuit has “affirmatively cited Donges and its progeny, after the June 25, 2013 issuance of the Free Speech decision, as valid law.” Motion to Stay MOO at 11 (citing Martinez v. Mares,
ii. Arguments Regarding the Standard for Granting a Stay.
Turning to its argument regarding the propriety of a stay, Pojoaque Pueblo argues that, “[i]f the Court continues to assert that it maintains jurisdiction to rule on the pleadings, a stay should still be ordered because the four elements required to issue a stay pending appeal have been met.” Motion to Stay MOO at 12. Pojoaque Pueblo contends that Tenth Circuit Rule 8.1 requires that a plaintiff seeking a stay pending appeal demonstrate: (i) likelihood of success on appeal; (ii) the threat of irreparable harm if the stay or injunction is not granted; (iii) the absence of harm to opposing parties if the stay or injunction is granted; and (iv) any risk of harm to the public interest. See Motion to Stay MOO at 2 (citing McClendon v. City of Albuquerque,
First, Pojoaque Pueblo contends that there is a substantial likelihood that it will prevail on the merits of its appeal. See Motion to Stay MOO at 12. Pojoaque Pueblo argues that IGRA preempts the Gaming Board’s regulatory actions, because those actions “directly target and have an impact on the Pueblo and its gaming operations,” Motion to Stay MOO at 12. Pojoaque Pueblo cites California v. Cabazon Band of Mission Indians, 480 U.S.
As in its earlier briefings, Pojoaque Pueblo argues that Judge Brack’s PI MOO “established that the Defendants are ‘interfering with the Pueblo’s federal protected right to tribal sovereignty and the ability to conduct them gaming activities.’ ” Motion to Stay MOO at 13 (quoting PI MOO at 15). Pojoaque Pueblo isolates several “assumptions the Court made in direct contradiction to Judge Brack’s conclusions.” Motion to Stay MOO at 14. First, Pojoaque Pueblo argues that “the Court assumes that the State is relying on the United States Attorney’s statement that the Pueblo is gaming illegally.” Motion to Stay MOO at 14. Second, Pojoaque Pueblo contends that “the Court assumes that the Pueblo is gaming illegally.” Motion to Stay MOO at 14. Pojoaque Pueblo contends that the Court’s “determination that the Pueblo is operating illegally” ignores “the Defendants’ actions which led the Pueblo to operate without a compact,” namely, the “Defendants’ bad faith negotiations,” New Mexico’s assertion of Eleventh Amendment sovereign immunity from suit, and the “Defendants’ actions to sue the federal government when the Pueblo attempted to go through the Secretarial Procedures process.” Motion to Stay MOO at 14.
Pojoaque Pueblo also asserts that “the Court assumes that any actions taken by the State off-reservation do not affect the Pueblo’s gaming on-reservation.” Motion to Stay MOO at 14. Judge Brack, Pojoaque Pueblo contends, “previously recognized that ‘Defendants’ protestations that the regulation of vendors doing business with the Pueblo does not constitute regulation of the Pueblo’s gaming activities are disingenuous and inconsistent with the record.’ ” Motion to Stay MOO at 14-15 (quoting PI MOO at 20). Indeed, Pojoaque Pueblo argues that Judge Brack concluded that “the Pueblo will lose significant revenue and its Casinos may be shut down due to Defendants’ intimidation of the Pueblo vendors.” Motion to Stay MOO at 15 (quoting PI MOO at 20)(internal quotation marks omitted). Pojoaque Pueblo contends that the Court’s Stay MOO, by contrast, holds that “the Defendants’ actions do not prohibit the Pueblo from continuing its gaming operations, nor do they prevent vendors from supplying equipment to the Pueblo for such operations.” Motion to Stay MOO at 15 (citing Stay MOO at 107). This analysis, Pojoaque Pueblo asserts, “would support the State building a barrier around the Reservation ... so long as the barriers are placed just outside the Pueblo boundary.” Motion to Stay MOO at 15. Pojoaque Pueblo adds that, “if the State’s motive was to starve the Tribe into extinction, that would be fine so long as the State’s actions occur off-reservation.” Motion to Stay MOO at 15. In short, Poj-oaque Pueblo asserts that the Court’s distinction between “on” and “off-reservation” regulatory actions is inapposite, because the issue is the “assertion of state civil or
Pojoaque Pueblo also contends that the Court-erred in its conclusion that the Gaming Board did not violate Pojoaque Pueblo’s federal rights under the Supremacy Clause or Under 42 U.S.C. §§ 1983 and 1985. See Motion to Stay MOO at 16-17. First, Pojoaque Pueblo argues that the Complaint’s Count- II is based on the Court’s inherent equitable jurisdiction and not the Supremacy Clause, and that, therefore, it states a cognizable claim. See Motion to Stay MOO at 16-17 (relying on Armstrong v. Exceptional Child Ctr., Inc. and Tohono O’odham Nation v. Ducey,
.Finally, Pojoaque Pueblo argues that the Court committed “[cjlear error” when it determined “that it need not conduct severance analysis to determine that the Pueblo is operating illegally.” Motion to Stay MOO at 17 (citing Stay MOO at 142-44). Pojoaque Pueblo asserts that the Court’s “ruling rewards the State for negotiating with impunity” and “leaves the Pueblo without any viable remedy.” Motion to Stay MOO at 17-18. In Pojoaque Pueblo’s view, although the Court “seeks to avoid rewriting IGRA,” redrafting is “precisely what [the Court] has done with this decision.” Motion to Stay MOO at 18.
All the above notwithstanding, Pojoaque Pueblo argues that “it is actually not necessary for this Court to agree that the Pueblo will prevail on the merits because this Court’s Order is in direct contradiction to [the PI MOO] ... as well as established tenets of federal Indian law.” Motion to Stay MOO at 18. Pojoaque Pueblo asserts that the “Court’s decision has created ‘questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberative investigation.’ ” Motion to Stay MOO at 18 (quoting Chanute v. Kan. Gas & Elec. Co.,
Turning to irreparable harm, Pojoaque Pueblo argues that “significant interference with tribal self-governance satisfies the irreparable harm criteria for preliminary injunctive relief and should similarly satisfy the same criteria for stay pending appeal.” Motion to Stay MOO at 19. Poj-oaque Pueblo asserts, moreover, that “the inability to recovér monetary damages because of state Eleventh Amendment immunity renders the harm to be irreparable for purposes of preliminary injunctive relief.” Motion to Stay MOO at 19 (citing Prairie Band of Potawatomi Indians v. Pierce,
With respect to whether a stay would cause irreparable harm to the Defendants, Pojoaque Pueblo contends that “[a]ny harm caused to the Defendants by granting the stay pending appeal is substantially outweighed by the harm that the Pueblo will suffer if the Court does not grant the stay.” Motion to Stay MOO at 25. Indeed, in Pojoaque Pueblo’s view, “[t]here is no harm .., that the State will suffer if the requested relief is granted.” Motion to Stay MOO at 26. Pojoaque Pueblo notes that its gaming operations have continued since the June 30, 2015, expiration of its compact with New Mexico “in exactly the same manner that they occurred prior to June 30, 2015.” Motion to Stay MOO at 26.
Finally, Pojoaque Pueblo argues that the public interest in “issuing a stay pending appeal weighs heavily in favor of the Pueblo.” Motion to Stay MOO at 26. Poj-oaque Pueblo contends that there are “significant” public interests in tribal economic development and employment, social and education programs and benefits, and “life and public safety services that are funded by gaming revenue generated on Indian lands.” Motion to Stay MOO at 27. Poj-oaque Pueblo argues, further, that the public “has a genuine interest in helping to assure tribal self-government, self-sufficiency and self-determination ” Motion to Stay MOO at 27. This goal, Pojoaque Pueblo asserts, “is the ‘paramount federal policy.’ ” Motion to Stay MOO at 27 (quoting PI MOO (citing Seneca-Cayuga Tribe v. Oklahoma,
b. The Motion to Stay MOO Response.
The Defendants responded to Pojoaque Pueblo’s Motion to Stay MOO on October 21, 2016. See Defendants’ Response to Pueblo’s Motion to Stay the Order and Restore the Preliminary Injunction Pending Appeal, filed October 21, 2016 (Doc. 129)(“Motion to Stay MOO Response”). The Defendants advance two primary arguments. See Motion to Stay MOO Response at 1-14. First, the Defendants argue that, notwithstanding the interlocutory appeal of the PI, the Court had jurisdiction to determine the action on the merits in the Stay MOO. See Motion to Stay MOO Response at 2, Second, the Defendants assert that prudential concerns do not support a stay pending appeal. See Motion to Stay MOO Response at 3. The Court discusses these arguments in turn,
i. Jurisdictional Arguments.
The Defendants argue that the Court properly exercised jurisdiction to rule on the merits in the Stay MOO. See Motion to Stay MOO Response at 2. Pojoaque Pueblo, the Defendants assert, improperly relies on Stewart v. Donges for the proposition that “a court is divested of jurisdiction during the pendency of an interlocutory appeal ....” Motion to Stay MOO Re--sponse at 2. Pojoaque Pueblo’s reliance on this general rule is misplaced, the Defendants contend, because an interlocutory appeal from a preliminary injunction is “one of the ‘exception[sj to this general rule.’ ” Motion to Stay MOO Response at 2 (quoting Anderson Living Trust v. WPX Energy Prod., LLC,
ii. Prudential Arguments.
The Defendants argue that the factors required for a stay pending appeal under rule 62(c) of the Federal Rules of Civil Procedure and rule 8(a) of the Federal Rules of Appellate Procedure do not support a stay in this case. See Motion to Stay MOO Response at 3. As in their earlier briefings, the Defendants focus substantially on the likelihood-of-success-on-the-merits factor. See Motion to Stay MOO Response at 4-9. The Defendants assert that, contrary to Pojoaque Pueblo’s portrayal of the governing standard, the likelihood-of-success-on-the-merits factor is not diminished when the other factors are met, nor is Pojoaque Pueblo required to show only “questions going to the merits so serious, substantial difficult and doubtful as to make the issues ripe for litigation and deserving of more deliberative investigation.” Motion to Stay MOO Response at 4 (quoting Motion to Stay MOO at 3 (quoting Chanute v. Kan. Gas & Elec. Co.,
The Defendants assert that Pojoaque Pueblo’s continued reliance on Judge Brack’s PI MOO as establishing likelihood of success is “misplaced,” because the PI “was by no means determinative, and was not even ‘a preliminary adjudication on the merits but rather a device for preserving the status quo Motion to Stay MOO Response at 6 (quoting Sierra On-Line, Inc. v. Phx. Software, Inc.,
The Defendants contend that Pojoaque Pueblo’s arguments regarding IGRA’s preemptive scope “are the same arguments that this Court thoroughly considered and rejected” in the Stay MOO. Motion to Stay MOO Response at 7. The Defendants assert that Pojoaque Pueblo continues to “fail to appreciate the difference between regulation of gaming on Indian lands and gaming off Indian lands, and erroneously conflate[s] impact with regulation.” Motion to Stay MOO Response at 7. The Defendants cite with approval the Court’s statement that IGRA “‘is intended to expressly preempt the field in the governance of gaming activities on Indian lands,’ leaving ‘fully intact a State’s regulatory power over tribal gaming outside Indian territory—which is capacious.’ ” Motion to Stay MOO Response at 7 (quoting Stay MOO at 101).
With respect to Pojoaque Pueblo’s severance arguments, the Defendants assert that severance “misses the point,” because likelihood of success “turns on whether the Defendants’ regulatory actions violated the Plaintiffs’ rights at the time they occurred.” Motion to Stay MOO Response at 8 (quoting Stay MOO at 142-43 (citing Hilton v. Braunskill,
Finally, with regard to Pojoaque Pueblo’s contestation of the Court’s dismissal of its claims asserted pursuant to the Supremacy Clause and 42 U.S.C. §§ 1983 and 1985, the Defendants assert that Pojoaque Pueblo fails to “identify a federal right that Defendants have violated.” Motion to Stay MOO Response at 9. The Defendants contend that they did not violate Pojoaque Pueblo’s federal rights under IGRA and that “invidious discrimination,” which § 1985 requires, did not motivate the Gaming Board’s regulatory enforcement actions against Pojoaque Pueblo. Motion to Stay MOO Response at 9 n.5. Indeed, the Defendants assert, Pojoaque Pueblo “cannot colorably claim that Defendants’ actions were taken because of their race or national origin when Defendants have entered into compacts with all of the other Pueblos and Tribes in New Mexico and have taken no action against other Tribes’ vendors.” Motion to Stay MOO Response at 9 n.5.
Turning to the irreparable injury factor, the Defendants assert that Pojoaque Pueblo’s alleged injury lacks support in admissible evidence. See Motion to Stay MOO Response at 10. Pojoaque Pueblo’s alleged injury, the Defendants argue, would occur only if its vendors “cease to do business with the Pueblo,” yet Pojoaque Pueblo has not submitted evidence from its vendors that this injury would occur if the Court does not enjoin the Defendants from taking enforcement action against them. Motion to Stay MOO Résponse at 10. The Defendants argue, moreover, that Poj-oaque Pueblo’s alleged harm is “outdated and vastly overstated.” Motion to Stay MOO Response at 11. The Defendants note that, since Judge Brack entered the PI, Pojoaque Pueblo has upgraded its casino management system, and, thus, the principal harm that Pojoaque Pueblo asserted before Judge Brack is now moot. See Motion to Stay MOO Response at 11. The Defendants further note that the Gaming Board’s actions and this litigation have not affected Pojoaque Pueblo’s Class II gaming rights, and that Pojoaque Pueb
With respect to the balance-of-hardships factor, the Defendants contend that New Mexico’s “sovereign interests [ ] are suffering irreparable injury in this case,” because the PI “has barred the State for almost a year from exercising its legitimate police power.” Motion to Stay MOO Response at 12 (citing Mashantucket Pequot Tribe v. Town of Ledyard,
Turning finally to the public-interest factor, the Defendants argue that “the ‘public interest’ prong ... is nothing more than a restatement of the ‘balance of hardships’ prong,” because both Pojoaque Pueblo’s and the Defendants’ “claim of the public interest is largely a restatement of their own ... interest[,]” Motion to Stay MOO Response at 13. Thus, the Defendants posit, the public interest weighs in their favor, because the balance of hardships “favors Defendants.” Motion to Stay MOO Response at 13. The Defendants note, moreover, that “other Indian Tribes in New Mexico vigorously dispute the suggestion that the Pueblo of Pojoaque’s continued operation of its casinos in violation of federal law is in the public interest.” Motion to Stay MOO Response at 13 (citing Declaration of Jeremiah L. Ritchie ¶ 9, at 2 (executed October 19, 2016), filed October 21, 2016 (Doc. 129-l)(“Ritchie Decl.”).
c. The Motion to Stay MOO Reply.
Pojoaque Pueblo filed a Reply on October 26, 2016. See Reply to Defendants’ Response to Motion to Stay Order and Restore the Preliminary Injunction Pending Appeal at 1, filed October 26, 2016 (Doc. 131)(“Motion to Stay MOO Reply”). Pojoaque Pueblo largely reiterates the arguments from its original Motion regard-
First, with respect to the Court’s jurisdiction to determine the action on the merits, Pojoaque Pueblo insists that the rule that the Tenth Circuit articulated in Stewart v. Donges unambiguously divests a district court of jurisdiction once a party has filed an appeal from an interlocutory order. See Motion to Stay MOO Reply at 1-2 (citing Stewart v. Donges,
Second, Pojoaque Pueblo argues that the four requirements for a stay pending appeal are all present. See Motion to Stay MOO Reply at 4. With respect to likelihood of success, Pojoaque Pueblo contends that it need meet only the “fair ground- for litigation” standard. Motion to Stay MOO Reply at 4. Thus, Pojoaque Pueblo asserts that likelihood of success requires a showing that there are “questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation - and deserving of more deliberative investigation.” Motion to Stay MOO Reply at 4 (quoting Chanute v. Kan. Gas & Elec. Co.,
Turning to irreparable harm, Pojoaque Pueblo contends that
dismissal of the.Preliminary Injunction could result in a fatal blow to the Pueblo’s gaming operations,. cause essential governmental services to be-eliminated, put thousands out of work, and result inthe cancellation of lucrative contracts with local businesses, thereby harming the entire region and seriously crippling the Pueblo and its members.
Motion to Stay MOO Reply at 7. Pojoaque Pueblo asserts that it is immaterial whether it upgraded its casino management system, because, “as with most technologies, further and continuous upgrades are always required.” Motion to Stay MOO Reply at 7. Regarding the Defendants’ contention that the Pi’s existence does not affect Pojoaque Pueblo’s ability to conduct Class II gaming, Pojoaque Pueblo asserts that most of its gaming machines are Class III machines, and that Class II gaming “would generate far less revenue than Class III gaming.” Motion to Stay MOO Reply at 7-8 (citing Allgeier Decl. ¶¶ 34-40, at 11-12). Pojoaque Pueblo also avers that its “current financial agreements require that the Pueblo offer Class III gaming or risk default.” Motion to Stay MOO Reply at 7-8 (citing Allgeier Decl. ¶ 40, at 12). Finally, with respect to the Defendants’ argument that Pojoaque Pueblo can avoid any harm by signing a compact with New Mexico, Pojoaque Pueblo contends that New Mexico has negotiated in bad faith and that it “has always been open to negotiating a fair compact as mandated by IGRA[.]” Motion to Stay MOO Reply at 8. “That compacts have been entered in the wake of Seminole Tribe [I],” Pojoaque Pueblo reasons, “does not mean that the terms were fair, or legal, or even ‘negotiated.’” Motion to Stay MOO Reply at 9.
Pojoaque Pueblo next addresses the Defendants’ balance-of-hardships arguments. See Motion to Stay MOO Reply at 9. Poj-oaque Pueblo contends that the Defendants “all but ignore[ ] the equally sovereign interests of the Pueblo.” Motion to Stay MOO Reply at 9 (citing Motion to Stay MOO Response at 12). Pojoaque Pueblo asserts that “any claimed and temporary hardship on the part of the State must be balanced against the Pueblo’s hardship in losing its sovereign right to conduct gaming within the boundaries of the Pueblo.” Motion to Stay MOO Reply at 10. In Pojoaque Pueblo’s view, any harm to New Mexico “is minimal at best, and the Defendants have consistently failed to show how not being able to target the Pueblo’s vendors creates an irreparable harm to the State.” Motion to Stay MOO Reply at 10. Pojoaque Pueblo notes, moreover, that Mashantucket Pequot Tribe v. Town of Ledyard, upon which the Defendants rely, holds that a state’s sovereign “interest is diminished where, as here, the sole application of the state law at issue is on the Tribe’s reservation, which occupies a unique status within the state.” Motion to Stay MOO Reply at 10 (quoting Mashantucket Pequot Tribe v. Town of Ledyard,
Turning finally to the public interest, Pojoaque Pueblo notes that IGRA is expressly intended 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.” Motion to Stay MOO Reply at 11 (quoting 25 U.S.C. § 2702(l))(internal quotation marks omitted). The public interest in assuring these goals, Pojoaque Pueblo asserts, is “significant.” Motion to Stay MOO Reply at 11. Pojoaque Pueblo further presses that the public “has a genuine interest in helping to ensure tribal self-government, self-sufficiency and self-determination.” Motion to Stay MOO Reply at 11-12 (citing Sac & Fox Nation v. LaFaver,
d. The Hearing.
The Court held a hearing on the Motion to Stay MOO on October 27, 2016. See Transcript of Motion Hearing at 1 (taken October 27, 2016), filed December 30, 2016 (Doc. 147)(“Motion to Stay MOO Tr.”). At the hearing, the parties mostly stuck to the arguments in their briefings. See Motion to Stay MOO Tr. at 46:14-144:22. Pojoaque Pueblo opened by addressing the Court’s jurisdiction to enter the Stay MOO, arguing that the Court “improperly carved out a preliminary injunction exception to the Donges Rule, when there is no such exception recognized by the Tenth Circuit.” Motion to Stay MOO Tr. at 47:24-48:2 (Crowell). Pojoaque Pueblo insisted that “[t]he Free Speech case that this Court relied upon, that the State relied upon, did not even address the jurisdictional issues, did not even address Donges.” Motion to Stay MOO Tr. at 48:3-8 (Crowell). Regardless, Pojoaque Pueblo contended that, even if the Court is not divested of jurisdiction under Stewart v. Donges, the Court still lacks jurisdiction, because “the issues on appeal are inextricably bound to the issues remaining at the district court.” Motion to Stay MOO Tr. at 48:12-17 (Crowell).
Assuming that the Court had jurisdiction, however, Pojoaque Pueblo turned to the factors for granting a stay pending appeal. See Motion to Stay MOO Tr. at 48:22 (Crowell). Pojoaque Pueblo asserted that it was likely to prevail on the merits under the “typical” standard, but that the “question is whether the appeal raises serious questions of law,” which, in Pojoaque Pueblo’s view, it “clearly” does. Motion to Stay MOO Tr. at 49:7-13 (Crowell). Poj-oaque Pueblo stressed that Judge Brack and the Court reached divergent conclusions “on the same issues.” Motion to Stay MOO Tr. at 50:5-6 (Crowell). As to IGRA’s preemptive scope, Pojoaque Pueblo criticized the Stay MOO’s distinction between on-/off-reservation actions, arguing that “the State can’t exercise its jurisdiction in a way that directly interferes with the Tribe’s governance of its gaming activities.” Motion to Stay MOO Tr. at 50:6-23 (Crowell). Pojoaque Pueblo asserted that “there is no doubt” that New Mexico’s actions are “specifically directed at regulating or interfering with the Tribe’s governance of its gaming activities,” and that the Defendants are attempting to “coerce the Pueblo into signing a bad compact, with illegal terms not negotiated in good faith[.]” Motion to Stay MOO Tr. at 50:23-51:7 (Crowell).
Turning to irreparable harm, Pojoaque Pueblo asserted that “it’s not even a close issue.” Motion to Stay MOO Tr. at 52:1-2 (Crowell). Pojoaque Pueblo argued that its business will be “crippled,” that “thousands of people” will lose employment, and that governmental programs will be cut. Motion to Stay MOO Tr. at 52:2-14 (Cro-well). Pojoaque Pueblo noted that “the Tribe is a government, too,” and that “the Tribe has police powers, too.” Motion to Stay MOO Tr. at 52:15-16 (Crowell). Failure to stay the Court’s Stay MOO, Poj-oaque Pueblo asserted, would thus interfere with “the Tribe’s ability to govern its gaming activities on its lands.” Motion to Stay MOO Tr. at 52:24-53:2 (Crowell).
The public interest likewise favors granting a stay, Pojoaque Pueblo contended. See Motion to Stay MOO Tr. at 53:3-12 (Crowell). Pojoaque Pueblo stressed that IGRA expressly seeks to empower “tribes to become strong tribal governments, economically self-sufficient.” Motion to Stay MOO Tr. at 53:3-10 (Crowell). Pojoaque Pueblo asserted that it “is being deprived of its ability to do that, because of the State’s actions here.” Motion to Stay MOO Tr. at 53:10-12 (Crowell). Judge Brack,
. The Court interjected, stating that, since Judge: Brack issued the PI, Pojoaque Pueblo’s situation has greatly improved, because it has acquired the software update that it desired which will enable it to “continue to do what it’s doing for a very lengthy period of time, and certainly during the period of time that it would take the' Tenth Circuit” to rulé on Pojoaque Pueblo’s appeal of the Stay MOO. Motion to Stay MOO Tr. at 56:24-57:22 (Court). In response, Pojoaque Pueblo noted its “strong ‘disagreement” with the Court’s portrayal of events. Motion to Stay MOO Tr. at 57:24-25 (Crowell). Pojoaque Pueblo asserted that the Gaming Board’s actions are “squeezing out 98 percent of the primary Class 3 gaming product providers in the industry” and that “it won’t be a long period of time that the games could remain operational.” Motion to Stay MOO Tr. at 58:1-5 (Crowell). In addition, Pojoaque Pueblo contended that “[a]ll of the Tribe’s vendors would be impacted by the State’s moves’’ and not only Scientific Games, Inc. Motion to Stay MOO Tr. at 59:7—8 (Cro-well). ..
After a short break, the Court informed thé parties that the Tenth Circuit had just issued an opinion in Dine Citizens Against Ruining. Our Environment v. Jewell,
Pojoaque Pueblo then proffered testimony of Michael Allgeier, CEO of the Buffalo Thunder Development Authority, which includes Pojoaque Pueblo’s Buffalo Thunder Resort & Casino and . Cities of Gold Hotel & Casino. See Motion to Stay MOO Tr. at 64:18-20 (Allgeier). Asked to comment on the implications of gaming vendors ceasing doing business with Pojoaque Pueblo, All-geier stated, that Pojoaque Pueblo would be unable able to fix software glitches and would be forced to shut down its casinos. See Motion to Stay MOO Tr. at 64:21-65:11 (Frias, Allgeier). Allgeier stated that this problem “could happen at any time” and that, “periodically, it does happen.” Motion to Stay MOO Tr. at 65:12-16 (Fri-as, Allgeier). Allgeier further stated that, to his knowledge, vendors supplying ninety percent of Pojoaque Pueblo’s gaming equipment have received citations from the Gaming Board. See Motion to Stay MOO Tr. at 67:2-12 (Frias, Allgeier). Pojoaque Pueblo’s casinos “would have to close down” if it was unable to do business with those vendors, Allgeier asserted. Motion to Stay MOO Tr. at 67:13-16 (Frias, Allgeier).
On cross-examination, the Defendants queried only whether Pojoaque Pueblo has “done any contingency planning as to what it would do if Scientific Gaming terminates its contract with the Pueblo.” Motion to Stay MOO Tr. at 68:4-7 (Bohnhoff). Allgeier responded that Pojoaque Pueblo has not conducted such planning.. See Motion to Stay MOO Tr. at 68:8 (Allgeier).
The Court took up examination, asking when Pojoaque Pueblo last had a software problem that required assistance from its gaming vendors. See Motion to Stay MOO Tr. at 68:20-23 (Court). Allgeier stated
The Court turned to Pojoaque Pueblo’s counsel, Scott Crowell, and asked whether Pojoaque Pueblo is “holding up its end of the bargain with Mr. Martinez” in terms of placing suspended payments to New Mexico in trust. Motion to Stay MOO Tr. at 72:8-21 (Court). Mr. Crowell responded that Pojoaque Pueblo has “established an independent fund” which Thomas F. Gede, the former Director of the Western Conference of Attorneys General, monitors and that an outside accounting firm is also providing “monthly reports and quarterly reports to ensure compliance” with Poj-oaque Pueblo’s obligations to pay into the fund. Motion to Stay MOO Tr. at 72:24-73:7 (Crowell). Mr. Crowell added that Pojoaque Pueblo is also working with the National Indian Gaming Commission, which has supplied reports showing that Pojoaque Pueblo is in compliance with the obligations of its agreement with Mr. Martinez. See Motion to Stay MOO Tr. at 73:7-17 (Crowell). Mr. Crowell indicated that he “would be happy to supplement the pleadings with a declaration attaching'all of those reports.” Motion to Stay MOO Tr. at 73:20-22 (Crowell).-
Turning back to Allgeier, the Court queried whether Pojoaque Pueblo requires the accounting software that Scientific Games provided and maintains to calculate what it has paid in the past to New Mexico. See Motion to Stay MOO Tr. at 73:23-74:3 (Court). Allgeier replied affirmatively, explaining that the software calculates Poj-oaque Pueblo’s payments. See Motion to Stay MOO Tr. at 74:4-10 (Allgeier). Without the software, Allgeier asserted, and without upgrades to “make' sure that the hardware is intact and working,” Pojoaque Pueblo would not be able to calculate what it is currently putting into the trust fund. Motion to Stay MOO Tr. at 74:7-10 (All-geier). ■
The Defendants again took up cross-examination of Allgeier. See Motion to Stay MOO Tr. at 78:13 (Bohnhoff). The Defendants inquired whether Pojoaque Pueblo has a tribal ordinance that establishes rules for Class III gaming and whether that ordinance requires that Poj-oaque Pueblo have a compact with New Mexico to engage in such gaming. See Motion to Stay MOO Tr. at 78:13-23 (Bohnhoff). Allgeier responded that Poj-oaque Pueblo has such an ordinance. See Motion to Stay MOO Tr. at 78:24 (Allgeier).
The Defendants then took up argument on the Motion to Stay MOO. See Motion to Stay MOO Tr. at 80:19 (Bohnhoff). The Defendants argued, first, that the Motion to Stay MOO is “really a thinly disguised motion to reconsider the Court’s September 30 ruling.” Motion to Stay MOO Tr. at
With respect to the standard for granting a stay, the Defendants argued that the “fair grounds for litigation” test is inapplicable, because Judge Brack’s PI enjoins governmental action taken in the public interest. Motion to Stay MOO Tr. at 84:22-85:8 (Bohnhoff). The Defendants contended that Pojoaque Pueblo’s assertion that the governmental-action-in-the-public-interest standard does not apply where two sovereigns are involved lacks support in the cases upon which Pojoaque Pueblo relies. See Motion to Stay MOO Tr. at 85:11-23 (Bohnhoff). Moreover, the Defendants argued that Pojoaque Pueblo “is missing the point” by contending that “New Mexico is not acting pursuant to a regulatory scheme because there is no more compact in effect.” Motion to Stay MOO Tr. at 86:13-17 (Bohnhoff). The Defendants noted that New Mexico is enforcing its Gaming Control Act and not the compact with Pojoaque Pueblo. See Motion to Stay MOO Tr. at 86:17-20 (Bohnhoff).
Rather than reexamine the same arguments that the Court already resolved in the Stay MOO, the Defendants appealed to the Court to affirm its earlier conclusion that Pojoaque Pueblo is not likely to succeed on the merits. See Motion to Stay MOO Tr. at 87:6-21 (Bohnhoff). The Defendants asserted that the Court concluded, “after exhaustive analysis,” that the Defendants did not violate Pojoaque Pueblo’s federal rights under IGRA. Motion to Stay MOO Tr. at 87:18-21 (Bohnhoff). Essentially, the Defendants reasoned, the Court “ruled that the Pueblo has no federal right to bar the State from taking enforcement action against non-Indian vendors’ off-reservation activities based upon their participation in what is unquestionably illegal gambling activity at the Pueblo’s casino.” Motion to Stay MOO Tr. at 87:21-88:1 (Bohnhoff). Indeed, the Defendants asserted, in light of the Court’s “comprehensive analysis, ... [Pojoaque Pueblo] can no longer show that the question of whether or not it has a cause of action is even serious or doubtful.” Motion to Stay MOO Tr. at 88:2-8 (Bohnhoff). The Defendants added that Pojoaque Pueblo’s heavy reliance on Judge Brack’s analysis is unavailing, because that analysis did not benefit from briefing regarding preemption under IGRA. See Motion to Stay MOO Tr. at 88:9-21 (Bohnhoff).
Putting aside Pojoaque Pueblo’s likelihood of success, the Defendants argued that Pojoaque Pueblo cannot establish the remaining three elements required for a stay. See Motion to Stay MOO Tr. at 89:6-9 (Bohnhoff). The Defendants averred, first, that Pojoaque Pueblo cannot demonstrate irreparable harm, because the harms that Pojoaque Pueblo isolates are not “imminent, certain, and great.” Motion to Stay MOO Tr. at 89:11-13 (Bohnhoff). The Defendants explained that Pojoaque Pueblo does not face an imminent threat, because it has already installed new gambling equipment. See Motion to Stay MOO Tr. at 89:19-22 (Bohnhoff). The Defendants contended that, despite that Poj-
The Court interjected, querying why those vendors would “dare try to do business with Pojoaque, if they don’t even have a license in New Mexico[.]” Motion to Stay MOO Tr. at 96:24-97:1 (Court). The Court commented “that would be highly risky for them to do that.” Motion to Stay MOO Tr. at 97:2 (Court). In response, the Defendants explained that “[t]here is no New Mexico law that requires a vendor doing business with a pueblo, with an Indian tribe, to have a New Mexico license.” Motion to Stay MOO Tr. at 97:4-6 (Bohnhoff). Rather, the Defendants stated, a vendor “needs a New Mexico license only to do business with non-Indian gaming operators outside of Indian tribal boundaries.” Motion to Stay MOO Tr. at 97:6-8 (Bohn-hoff). Regardless, the Defendants contended, a stay should not be granted based on “speculation” what Pojoaque Pueblo’s vendors might do. Motion to Stay MOO Tr. at 98:1-2 (Bohnhoff).
Finally with respect to irreparable harm, the Defendants argued that the dispute is devolving into a question of damages, which disproves that the harm is irreparable. See Motion to Stay MOO Tr. at 98:10-12 (Bohnhoff). The Defendants noted that Pojoaque Pueblo disputes the suggestion that it conduct Class II gaming instead of Class III gaming, because Class II gaming is less profitable. See Motion to Stay MOO Tr. at 98:7-9 (Bohnhoff). The Defendants elaborated that, even if the Gaming Board’s actions violated Pojoaque Pueblo’s federal rights, Pojoaque Pueblo “would have a damages remedy.” Motion to Stay MOO Tr. at 98:14-15 (Bohnhoff). If Pojoaque Pueblo has such a remedy, the Defendants concluded, “there is no irreparable harm, and there is no right to a stay.” Motion to Stay MOO Tr. at 98:16-17 (Bohnhoff). Moreover, the Defendants argued that Pojoaque Pueblo could sign the 2015 Form Compact, as all other Indian tribes in New Mexico have done. See Motion to Stay MOO Tr. at 98:19-21 (Bohn-hoff). Because the other tribes have found that compact acceptable, the Defendants reasoned, “it’s hard for the Pueblo to make a credible claim that it would suffer irreparable harm by itself signing the document.” Motion to Stay MOO Tr. at 98:21-24 (Bohnhoff). Ultimately, the Defendants averred, Pojoaque Pueblo opposes the 2015 Form Compact, only because it “doesn’t think it can make as much money ... as it thinks it can make with the compact that it would prefer to have in place.” Motion to Stay MOO Tr. at 99:17-20 (Bohnhoff). “That’s not irreparable harm,” the Defendants argued. Motion to Stay MOO Tr. at 106:1 (Bohnhoff). The Defendants concluded that Pojoaque Pueblo “can’t claim irreparable harm when they have the alternative available of the 2015 compact that all of the other Indian tribes in New Mexico think is acceptable.” Motion to Stay MOO Tr. at 106:7-10 (Bohnhoff).
The Defendants turned finally to the public interest factor. See Motion to Stay MOO Tr. at 106:24 (Bohnhoff). The Defendants contended that “it’s a debatable point whether it’s in the public interest ] to permit Pojoaque to continue to conduct gaming activities without a compact.” Motion to Stay MOO Tr. at 107:3-5 (Bohn-hoff). More “dispositive of the public interest [inquiry],” the Defendants argued, is that Pojoaque Pueblo “is currently engaged in illegal—in fact, criminal, under federal law—activity” by conducting Class III gaming without a compact. Motion to Stay MOO Tr. at 107:17-23 (Bohnhoff). The Defendants asserted that “the public interest is not advanced by condoning or enabling ... illegal activity,” Motion to Stay MOO Tr. at 107:25-108:2 (Bohnhoff).
The Court interposed and asked the Defendants “[h]ow far is the State going to go,” namely, whether Pojoaque Pueblo’s contention that New Mexico might “try to put a wall around the Pueblo” is justifiable. Motion to Stay MOO Tr. at 109:11-19 (Court). The Defendants responded that New Mexico “has no intention at all of building a wall around Pojoaque Pueblo, of arresting people as they go into the Pueblo.” Motion to Stay MOO Tr. at 110:5-8 (Bohnhoff). Rather, the Defendants argued, “New Mexico intends to enforce state law,” the parameter of which is “non-Indian vendors’ transactions with non-Indian gaming operators.” Motion to Stay MOO Tr. at 110:12-15 (Bohnhoff). Poj-oaque Pueblo objected to this characterization of New Mexico’s intentions. See Motion to Stay MOO Tr. at 111:6-8 (Crowell). Pojoaque Pueblo contended that New Mexico has publicly warned that “anybody having anything to do with the Pueblo are at risk.” Motion to Stay MOO Tr. at 111:9— 12 (Crowell). Accordingly, Pojoaque Pueblo argued that “there is no reason to believe that the State won’t go further” than issuing citations-to state-licensed gaming vendors. Motion to Stay MOO Tr. at 111:17-21 (Crowell). Pojoaque Pueblo postulated, for example, that New Mexico could prosecute customers of Pojoaque Pueblo’s casinos for “conspiring to engage in illegal gambling.” Motion to Stay MOO Tr. at 111:21-112:6 (Court, Crowell). Poj-oaque Pueblo added that such actions would be proper in light of the Court’s Stay MOO, because nothing in the Stay MOO “suggests ... that there is a line to be crossed off reservation that would be illegal interference on reservation.” Motion to Stay MOO Tr. at 113:6-9 (Crowell).
Pojoaque Pueblo pivoted to address the Defendants’ remaining arguments. See Motion to Stay MOO Tr. at 113:13 (Cro-well). First, Pojoaque Pueblo disputed that its Motion to Stay MOO is a “disguised motion to reconsider,” arguing that Poj-oaque Pueblo is only “looking for this Court to stay [the Stay MOO].” Motion to Stay MOO Tr. at 113:14-18 (Crowell). Second, Pojoaque Pueblo disagreed that “the 2015 form compact is, quote, ‘acceptable to all of New Mexico’s tribes,’ ” stating that those tribes “were confronted with the same ... dilemma [with which] Pojoaque is confronted.” Motion to Stay MOO Tr. at 113:18-114:4 (Crowell). Pojoaque Pueblo explained that the Interior Secretary did
Regarding the robustness of the showing required for the likelihood-of-success factor in this context, Pojoaque Pueblo argued that the Defendants “fail to understand that the Tribe, too, is a sovereign government; that the Tribe, too, has its interests in seeing that its laws are enforced on its Indian lands[.]” Motion to Stay MOO Tr. at 119:13-20 (Crowell). Thus, Pojoaque Pueblo argued, the “stricter standard” does not apply, because New Mexico’s actions interfere with and “diminish! 1 the Tribe’s ability to protect its public interests, as reflected in its laws, and as reflected in [IGRA].” Motion to Stay MOO Tr. at 119:24-120:6 (Crowell). Pojoaque Pueblo- added, however, that, even if the stricter standard applies,- Pojoaque Pueblo has established a likelihood of prevailing on the merits. See Motion to Stay MOO Tr. at 120:18-24 (Crowell).
Pojoaque Pueblo next addressed the Defendants’ argument that there -are thirty out-of-state vendors of Class III gaming equipment with whom Pojoaque! Pueblo can do business, in the event its current vendors cut business ties with Pojoaque Pueblo. See Motion to Stay MOO Tr. at 122:14-20 (Crowell). Pojoaque Pueblo asserted that it is unclear whether those vendors could supply the same products as its current vendors, and that, regardless, those vendors’ existence does not “defeat the evidence” that, if Pojoaque Pueblo is “not allowed to operate, pending appeal, without the vendors being threatened by the State, [it is] likely to have to close down or be seriously crippled as a result.” Motion to Stay MOO Tr’ at 123:18-124:1 (Crowell). Indeed, Pojoaque Pueblo contended, “a modest drop in revenue will put the Tribe in default, and that itself could cause the Tribe to shut down .... ” Motion to Stay MOO Tr. at 124:5-8 (Crowell).
Pivoting to - the Defendants’ argument that the current dispute is ultimately about damages, Pojoaque Pueblo asserted that “[t]he argument is to protect the Tribe’s governance and sovereignty and gaming on its lands.” Motion to Stay MOO Tr. at 125:7-12 (Crowell). Pojoaque Pueblo noted, however, that, even if the dispute is about damages, there is still irreparable' harm, because Eleventh Amendment immunity protects New Mexico, and, thus, any action against New Mexico for damages would be frivolous. See Motion to Stay MOO Tr, at 125:13-20 (Crowell).
The Court interjected, noting that Poj-oaque Pueblo could sue the Individual Defendants in their individual capacity for damages pursuant to 42 U.S.C § 1983. See Motion to Stay MOO Tr. at 126:19-127:5 (Court). In response, Pojoaque Pueblo insisted that the Individual Defendants could ultimately assert qualified immunity as an affirmative defense, especially in light of
Pojoaque Pueblo asserted, further, that, contrary to the Defendants’ portrayal of events, it is not “undisputed that the Pueblo is engaged in criminal activity!)]” Motion to Stay MOO Tr. at 130:3-5 (Crowell). Rather, Pojoaque Pueblo contended, “[t]he only thing that is real clear is [] the State’s defiance of the Indian Gaming Regulatory Act ... and the State’s refusal to abide by the process of what congress intended .... ” Motion to Stay MOO Tr. at 130:5-11 (Crowell). Pojoaque Pueblo insisted that, should New Mexico “get[] away with this,” it will “set a precedent that [ ] says, States, you can negotiate with Indian tribes with impunity.” Motion to Stay MOO Tr. at 130:12-20 (Crowell).
5. The Defendants’ Motion to Dismiss Appeal.
The Defendants moved to dismiss their interlocutory appeal of Judge Brack’s PI on October 6, 2016. See Appellants’ Motion to Dismiss Appeal at 1, filed October 10, 2016 (Doc. 125-2)(Doc. 01019701539 in Pueblo of Pojoaque v. State of New Mexico, 15-2187)(“Motion to Dismiss Appeal”). In support of their Motion, the Defendants note that the Stay MOO (i) stays the PI; (ii) includes an indicative ruling pursuant to rule 62.1(b) that the Court will dissolve or vacate the PI if the Defendants dismiss the appeal and/or the Tenth Circuit remands the case; and (iii) dismisses all claims against the Defendants. See Motion to Dismiss Appeal ¶2, at 2. The Defendants assert that these actions “justify dismissal of the appeal” for several reasons. Motion to Dismiss Appeal ¶ 4, at 2. First, the Defendants argue that an appellate court, “upon receipt of a ruling indicating that the district court would grant relief from a judgment or order but for the jurisdictional barrier presented by a pending appeal, ... may ‘remand for further proceedings but retain[] jurisdiction’ or ‘expressly dismiss!] the appeal.’” Motion to Dismiss Appeal ¶ 4.a, at 2 (alterations in Motion)(quoting Fed. R. App. P. 12.1). Second, the Defendants assert that the Tenth Circuit “need not retain jurisdiction but should dismiss the appeal and allow the district court to take any further action necessary to dispose of the preliminary injunction.” Motion to Dismiss Appeal ¶ 4.b, at 2-3 (citing United States ex rel. Bergen v. Lawrence,
Pojoaque Pueblo responded on October 20, 2016. See Plaintiffs-Appellees Pueblo of Pojoaque and Joseph M. Talachy Opposition to Defendants-Appellants Motion to Dismiss Appeal at 1, filed October 28, 2016 (Doc. 136-l)(Doc. 01019708472 in Pueblo of Pojoaque v. State of New Mexico, 15-2187)(“Motion to Dismiss Appeal Response”). Pojoaque Pueblo advances three primary arguments in opposition to the Defendants’ Motion to Dismiss Appeal. First, Pojoaque Pueblo contends that the Defendants’ interlocutory appeal should continue to be abated pending the Tenth Circuit’s resolution of the consolidated appeals in New Mexico v. Department of Interior, 14-2219 and 14-2222, because the resolution of those appeals “will likely impact the outcome of this matter.” Motion to Dismiss Appeal Response at 7. Second, Pojoaque Pueblo argues that the Tenth
The Tenth Circuit granted the Motion to Dismiss Appeal on November 30, 2016. See Order at 1, filed November 30, 2016 (Doc. 143-l)(Doc. 01019728817 in Pueblo of Pojoaque v. State of New Mexico, 16-2187).
6. Pojoaque Pueblo’s Supplemental Brief Motion.
On November 2, 2016, Pojoaque Pueblo moved to file a supplemental brief to address issues that arose at the October 27, 2016, hearing on the Motion to Stay MOO. See Suppl. Brief Motion at 1. Pojoaque Pueblo attached to its Motion a proposed Supplemental Brief. See Suppl. Brief at 1. The Defendants responded to the Supplemental Brief Motion on November 21, 2016, and attached a proposed Supplemental Brief Response. See Suppl. Brief Motion Response at 1; Defendants’ Proposed Response to Plaintiffs’ “Proposed” Supplemental Brief in Support of their Motion to Stay the Order and Restore the Preliminary Injunction Pending Appeal at 1, filed November 21, 2016 (Doc. 141-l)(“Suppl. Brief Response”). Pojoaque Pueblo filed a Reply on December 5, 2016. See Plaintiffs’ Reply in Support of Plaintiffs’ Motion to File Supplemental Brief on Motion to Stay Order at 1, filed December 5, 2016 (Doc. 145)(“Suppl. Brief Reply”). The Court discusses these briefings in turn and then reviews the hearing on the Supplemental Brief Motion that the Court held on December 9, 2016.
a. The Supplemental Brief Motion and Proposed Supplemental Brief.
Pojoaque Pueblo moves to “file a supplemental brief to address several questions and issues that arose during the hearing” on the Motion to Stay MOO. Suppl. Brief Motion at 1. Pojoaque Pueblo notes that, pursuant to rule 15(d) of the Federal Rules of Civil Procedure, “the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Suppl. Brief Motion at 1 (quoting Fed. R. Civ. P. 15(d))(internal quotation marks omitted). Pojoaque Pueblo requests leave to provide information on five issues. See Suppl. Brief Motion at 1-2. First, Poj-oaque Pueblo requests to discuss the relevance of Dine, which Pojoaque Pueblo “did not have an earlier opportunity to address,” because the Tenth Circuit decided the case on the day of the October 27, 2016, hearing. Suppl. Brief Motion at 1-2. Second, Pojoaque Pueblo seeks to analyze “two preliminary injunction cases cited by Defendants for the first time during [the] October 27, 2016 hearing such that the Pueblo was given no chance to reply in a response motion.” Suppl. Brief Motion at 2 (referring to Baker v. Bray,
Pojoaque Pueblo’s proposed Supplemental Brief opens by explaining the significance of the “deemed approved” letters that the Interior Secretary sent to the Pueblos and Tribes that signed the 2015 Form Compact with New Mexico. Suppl. Brief at 2 (referencing, e.g., Mescalero Apache Letter; Taos Pueblo Letter; San-dia Pueblo Letter). Pojoaque Pueblo notes that, pursuant to IGRA § 2710(d)(8), a proposed compact is deemed approved by operation of law when the Interior Secretary neither approves or disapproves the compact within forty-five days of its submission. See Suppl. Brief at 2. In such cases, Pojoaque Pueblo contends, “the Secretary only approves those provisions of the compact that are consistent with IGRA.” Suppl. Brief at- 2. Pojoaque Pueblo notes that the Interior Secretary deemed approved the 2015 Form Compacts that fifteen New Mexico Pueblos and Tribes signed. See, Suppl. Brief at 3, Pojoaque Püeblo asserts that each letter explaining the Interior Secretary’s decision to deem the compacts approved indicated that revenue sharing requirements are viewed with “great scrutiny.” Suppl. Brief at 3 (referencing, e.g., Mescalero Apache Letter at 2; Taos Pueblo Letter at 2; Sandia Pueblo Letter' at 2). Pojoaque Pueblo stresses that, while the letters state that New Mexico “has conceded partial exclusivity over slot machines and full exclusivity over other forms of Class III gaming,” the letters also convey “skeptic[ism] about the overall value of the 2015 Compacts’ additional claimed concessions.” Suppl. Brief at 3 (quoting Sandia Pueblo Letter at 2)(inter-nal quotation marks omitted)).
Pojoaque Pueblo’s Supplemental Brief next analyzes the “preliminary injunction cases” that the Defendants cited at the Motion to Stay MOO hearing. Suppl. Brief at 3. Pojoaque Pueblo argues that the Defendants proffered two cases at the hearing that, in their view, demonstrate that the PI “is moot due to the dismissal of the underlying case, even though they previously filed an interlocutory appeal asking the Tenth Circuit to reconsider the [PI].” Suppl. Brief at 3. Pojoaque Pueblo asserts that these cases are distinguishable, because “neither case has the identical procedural posture to this case as Defendants claimed in the October 27, 2016 hearing.” Suppl. Brief at 4. Pojoaque Pueblo contends first that, in Baker v. Bray, the Tenth Circuit held that “an appeal from an order was moot because the preliminary injunction, the subject of an interlocutory appeal, only applied to an election that had since passed.” Suppl. Brief at 4 (citing Baker v. Bray,
Turning to Dine, Pojoaque Pueblo asserts that the case “likely does not apply” here, because “[t]here has been no indication by any court that the ruling in Diñé extends to motions to stay[.]” Suppl. Brief at 6. Pojoaque Pueblo notes that the Tenth Circuit concluded in Dine that a relaxed likelihood-of-success test is not appropriate where the other three prongs for preliminary injunctive relief are met. See Suppl. Brief at 6-7 (referring to Pine’s cite to Winter v. NRDC, Inc.,
Pojoaque Pueblo next discusses the Defendants’ argument at the hearing that “there would be no harm to the Pueblo without a stay of this Court’s order ... [,] because the Pueblo could simply use out-of-state vendors who do not require licensing by the New Mexico Gaming Control Board.” Suppl. Brief at 7. Pojoaque Pueblo demurs, noting that New Mexico law prohibits transportation of gaming devices into the state by an unlicensed manufacturer or distributor. See Suppl. Brief at 7-8 (citing N.M.A.C. § 15.1.16.9(A) (2016)). Accordingly, Pojoaque Pueblo argues that it “would be unable to do business with vendors who are unlicensed by the NMGCB as those vendors would be breaking state law by transporting the gaming devices from other states into New Mexico.” Suppl. Brief at 8.
Pivoting to the issue raised at the hearing whether Pojoaque Pueblo has complied with its obligation to place in trust suspended payments to New Mexico, Poj-oaque Pueblo asserts that it can verify that it has made the required payments. See
Pojoaque Pueblo next reviews a letter regarding the Stay MOO that the United States filed at the Tenth Circuit in New Mexico v. Department of Interior, 14-2219 and 14-2222, on October 28, 2016. See Suppl. Brief at 9. Pojoaque Pueblo notes that the letter informs the Tenth Circuit that the Court’s reasoning in the Stay MOO “illustrates what is at stake in this appeal.” Suppl. Brief at 9 (quoting U.S. Letter Re: Stay MOO at 1). Pojoaque Pueblo quotes the letter at length:
The district court sought to avoid “upsetting the careful balance” of bargaining power between the parties “that Congress has created.” Id at 121, But Congress did not design this “balance;” it attempted to create a process in which both parties had a duty and an incentive to negotiate in good faith. See U.S. Br. At 38-37; U.S. Reply at 16. The Supreme Court’s Seminole Tribe decision eliminated that incentive for the State. The district court in Pojoaque was reluctant to “put a thumb on the scale” for the Pueblo, Opinion at 121, but the scale is already unbalanced.
Suppl. Brief at 9 (quoting U.S. Letter Re: Stay MOO at 2).
Finally, Pojoaque Pueblo argues that New Mexico has cut its Tribal Infrastructure Funds (“TIF”) “in direct response to litigation.” Suppl. Brief at 9. Pojoaque Pueblo notes that, on October 28, 2016, it received a letter from Kelly Zunie, Cabinet Secretary of the New Mexico Indian Affairs Department, “informing the Pueblo that the State was rejecting proposals and reverting funds allocated to the Pueblo from the [TIF].” Suppl. Brief at 9 (citing TIF Letter at 1). Pojoaque Pueblo notes that the TIF Letter “claims there is a conflict of interest due to this litigation and cites an irrelevant provision of New Mexico statute regarding the State’s procurement policy as support of this position.” Suppl. Brief at 9-10 (citing TIF Letter at 1). Pojoaque Pueblo asserts that this action is evidence of the Defendants’ “continued bad faith negotiation and coercion of the Pueblo with regards to an illegal gaming compact.” Suppl. Brief at 10.
b. The Supplemental Brief Motion Response and Proposed Supplemental Brief Response.
The Defendants’ Supplemental Brief Motion Response contends that Pojoaque Pueblo’s Supplemental Brief “goes far beyond addressing issues that arose during the October 27, 2016, hearing, and, in so doing, raises a number of tangential issues that are not dispositive of the Motion to Stay.” Suppl. Brief Motion Response at 1.
The Defendants’ Supplemental Brief Response begins by addressing Pojoaque Pueblo’s attempt to distinguish this case from Baker v. Bray and Debardeleben v. Pugh. See Suppl. Brief Response at 2. The Defendants argue that those cases “stand for the proposition that a preliminary injunction is dissolved by operation of law upon dismissal of the underlying cause of action or entry of final judgment, even if there is a pending interlocutory appeal of the preliminary injunction.” Suppl. Brief Response at 2. Pojoaque Pueblo’s “attempts to distinguish these cases are unavailing,” the Defendants assert, because, “in both cases, there was an appeal of a preliminary injunction that was pending at the time the final judgment was entered, and the courts in each case recognized that the appeal was mooted by the entry of final judgment, which extinguished the preliminary injunction by operation of law.” Suppl. Brief Response at 2 (citing Baker v. Bray,
Turning to the issue of Pine’s relevance to this case, the Defendants contend that the case is instructive, because the standards for granting a preliminary injunction and for granting a stay “are the same.” Suppl. Brief Response at 4 (citing Homans v. City of Albuquerque,
Next, the Defendants contend that the Interior Secretary “did not disapprove the 2015 form compact.” Suppl. Brief Response at 6. The Defendants contend that Pojoaque Pueblo “selectively quote[s] from the Secretary’s letters to suggest that the compacts’ legality is in question or they otherwise are somehow improper.” Suppl. Brief Response at 6. The Defendants note that the. Sandia Pueblo Letter, upon which Pojoaque Pueblo specifically relies, states that New Mexico “has granted some meaningful concessions to the tribe,” including partial exclusivity over slot machines and full exclusivity over all other forms of Class III gaming in the state. Suppl. Brief Response at 6 (quoting Sandia Pueblo Letter at 2)(internal quotation marks omitted). The Defendants assert that, despite the “skepticism” that the Interior Secretary expressed over the 2015 Form Compact’s
With respect to Pojoaque Pueblo’s contention that out-of-state gaming vendors would violate N.M.A.C. § 15.1.16.9(A) if they supplied gaming devices to Pojoaque Pueblo, the Defendants argue that “[t]his is not the case.” Suppl. Brief Response at 7. The Defendants assert that the restrictions codified in N.M.A.C. § 15.1.16.9(A) “apply only to ‘persons licensed by the Gaming Control Board to sell, supply, ship, transport, distribute, or receive gaming devices.’” Suppl. Brief Response at 7 (quoting N.M.A.C. § 15.1.16.2). Thus, the Defendants contend, “if the Pueblo contracted with vendors who are not licensed by the New Mexico Gaming Control Board ..., the New Mexico Gaming Control Board would have no jurisdiction over these vendors to enforce any such provision (which it would not intend to do in any event).” Suppl. Brief Response at 7.
Turning to the U.S. Letter Regarding the Stay MOO, the Defendants note that New Mexico responded to the letter, “explaining that the State’s good faith negotiation is confirmed by the fact that fifteen Tribes and Pueblos have signed on to the 2015 compact, preferring that compact to the existing 2001 and 2007 compacts that previously governed tribal gaming in New Mexico.” Suppl. Brief Response at 7-8 (citing Letter from Eric D. Miller to Elisabeth A. Shumaker Regarding New Mexico v. Dep’t of Interior, 14-2219 and 14-2222 at 1 (dated October 31, 2016), filed November 21, 2016 (Doc. 141— l.C)(“N.M. Letter Re: Stay MOO”)). The Defendants note that that the U.S. Letter Regarding the Stay MOO states that “the current impasse between the State and the Pueblo of Pojoaque stems from ‘the Pueblo’s insistence on significantly more favorable compact terms,’ and that the Pueblo is attempting ‘to resolve that impasse by making the unilateral choice to continue gaming unlawfully Suppl. Brief Response at 8 (quoting N.M. Letter Re: Stay MOO at 1).
The Defendants next address the TIF Letter. See Suppl. Brief Response at 8. The TIF Letter is irrelevant, the Defendants assert, because it “came from the Secretary of the New Mexico Indian Affairs Department (TAD’)—who has no participation in gaming compact negotiations—without the advice or direction of either Defendants or the Governor’s office.” Suppl. Brief Response at 8 (citing Declaration of Kelly K. Zunie ¶¶ 2—4, at 1 (executed November 17, 2016), filed November 21, 2016 (Doc. 141-l.D)(“Zuni
Last, the Defendants address the issue of software failure at Pojoaque Pueblo’s casinos. See Suppl. Brief Response at 9. The Defendants note that, at the hearing on the Motion to Stay MOO, Allgeier testified that, if Pojoaque Pueblo’s software or server failed, “the casinos would have to be completely shut down because the software contains critical accounting functions.” Suppl. Brief Response at 9 (citing Motion to Stay MOO Tr. at 68:20-71:25 (Court, Allgeier)). The Defendants contend that this testimony is inconsistent with accounts provided by “the Downs at Albuquerque (the ‘Downs’),” which uses the same casino management system as Poj-oaque Pueblo to “monitor its gaming floor and perform accounting functions.” Suppl. Brief Response at 9 (citing Declaration of Eric Roybal ¶¶ 2-4, at 1 (executed November 16, 2016), filed November 21, 2016 (Doc. 141-l.E)(“Roybal Decl.”)). The Defendants note that, “[i]n the more than three years that the Downs has utilized this software, there have been only four patches/úpdates to improve functionality, and without these patches the Downs would nonetheless have been able to continue to operate its entire gambling floor.” Suppl. Brief Response at 10 (citing Roybal Decl. ¶4, at 1). The Defendants posit, moreover, that, in the event of a “catastrophic failure” of the Downs’ casino management system, the “Downs would still be able to operate its gaming floor because the Downs would simply utilize the meters within its slot machines to determine the amount of coin-in and jackpots paid out by each machine.” Suppl. Brief Response at 10' (citing Roybal Decl. ¶¶ 5-6, at 1-2). This experience, the Defendants assert, illustrates that Pojoaque Pueblo is unlikely to “suffer any failure over the next three years that would prevent it from using.its casino management system,” and that, even if such a failure occurred, “there is ho reason why the Pueblo could not manually account for the coin-in and jackpots paid out by each machine ....” Suppl. Brief Response at 10. . '
c. The Supplemental Brief Reply. ‘
Pojoaque Pueblo replied to the Defendants’ proposed Supplemental. Brief Response on December 5, 2016. See Suppl. Brief Reply at 1. Beginning with the “deemed approved” letters, Pojoaque Pueblo argues that the. Interior Secretary’s skepticism about the value of the 2015 Form Compacts’ concessions “demonstrates, the harm here if the, stay is not granted and the Pueblo is forced to sign the 2015 Compact.” Suppl. Brief Reply at 2 (citing Motion to Stay MOO Reply at 8—9; id. at 9 n.4). Pojoaque Pueblo argues, that, contrary to the Defendants’ assertion that the Interior Secretary could sever one of the 2015 Form Compact’s provisions if it violates IGRA, the “Compact provides that its revenue-sharing provision is not severa-ble.” Suppl. Brief Reply at 2 (citing 2015 Form Compact § 11, at 24; id. § 19, at 29). Pojoaque Pueblo contends, moreover, that it “has not sought any meaningful concession by the State in the form.., of ‘exclusivity’ or otherwise, and has objected to the State’s position that it will not execute a compact without a State tax on the Pueblo’s .gaming revenue.” Suppl. Brief Reply at 3 (citing Complaint ¶4, at 1).
Turning to Dine, Pojoaque Pueblo objects to the Defendants’ depiction of' the standards for granting and staying a PI as “the same.” Suppl. Brief Reply at 5 (citing Suppl. Brief Response at 4-5). Pojoaque Pueblo contends that, “while ‘[tjhere is substantial overlap between these [factors for granting a stay] .and the factors gov
With respect to the Defendants’ argument that unlicensed, out-of-state gaming vendors can lawfully transport gaming devices into New Mexico, Pojoaque Pueblo asserts that “[s]uch a position contravenes the plain language of the regulation.” Suppl. Brief Reply at 8. The regulation’s plain language, Pojoaque Pueblo stresses, provides that “[n]o person shall initiate transport of any gaming device into the state other than a licensed manufacturer or distributor.” Suppl. Brief Reply at 8 (quoting N.M.A.C. § 15.1.16.9(A))(internal quotation marks omitted). Pojoaque Pueblo asserts that this regulation “does not provide that it ‘only’ applies to licensed vendors.” Suppl. Brief Reply at 8.
Pojoaque Pueblo responds finally to the Defendants’ arguments concerning Allgeier’s testimony at the Motion to Stay MOO hearing, namely, that Pojoaque Pueblo’s gaming enterprises could still operate if its casino management system failed. See Suppl. Brief Reply at 10. Pojoaque Pueblo asserts that it is a violation of New Mexico regulations for a gaming enterprise to “operate a gaming machine that is not connected and communicated to an approved central monitoring system, which is what the [casino management system] is.” Suppl. Brief Reply at 11 (citing Declaration of Michael Allgeier ¶ 6, at 3 (executed December 5, 2016), filed December 5, 2016 (Doc. 140-3)(“Allgeier Decl.”)). Pojoaque Pueblo further argues that “it is a violation of Pueblo of Pojoaque Gaming Ordinance Rule 12 for a slot machine’s software to be expired or revbked.” Suppl. Brief Reply at 10 (citing Allgeier Decl. ¶ 14, at 4). Accordingly, Pojoaque Pueblo asserts that it could not operate its gaming machines absent an up-to-date casino management system, because that “would violate the applicable regulations.” Suppl. Brief Reply at 11. Regardless of such operations’ legality, Pojoaque Pueblo contends that its gaming enterprises “could not practically operate” without a functioning casino management system. Suppl. Brief Reply at 11-12.
d. The Hearing.
The Court held a hearing on the Supplemental Brief Motion on December 9, 2016. See Draft Transcript of Motion Hearing held on December 9, 2016 (“Suppl. Brief Tr.”).
With respect to the applicable standard for the likelihood-of-success factor, the Defendants argued that Pojoaque Pueblo offers no support for the proposition that the governmental-action-in-the-public-interest standard does not apply where there are government entities on both sides of the dispute. See Suppl. Brief Tr. at 5:12-15 (Bohnhoff). The Defendants asserted, moreover, that the Tenth Circuit “expressly rejects that proposition” in Hobby Lobby Stores, Inc. v. Sebelius. Suppl. Brief Tr. at 5:15-17 (Bohnhoff). Additionally, the Defendants contended that the Tenth Circuit in Dine “moots that distinction.” Suppl. Brief Tr. at 5:18-20 (Bohnhoff). Poj-oaque Pueblo asks the Court to ignore this binding Tenth Circuit precedent, the Defendants assert. See Suppl. Brief Tr. at 6:10-17 (Bohnhoff).
Even assuming, the Defendants contended, that the standard for granting a PI is different than that for granting a stay, the Court should apply the standard for granting a PI in this context. See Suppl. Brief Tr. at 7:19-8:5 (Bohnhoff). The Defendants reasoned that, rather than requesting a stay of the Stay MOO, Poj-oaque Pueblo is effectively requesting a re-imposition of the PI that the Court “dissolved by entry of final judgment.” Suppl. Brief Tr. at 7:21-24 (Bohnhoff). The Defendants argued, moreover, that the Court’s “exhaustive” preeinption analysis in the Stay MOO indicates that there is no “substantial difficult question” for appeal. Suppl. Brief Tr. at 8:5-15 (Bohnhoff). Accordingly, the Defendants argued that, even applying the lesser standard, Poj-oaque Pueblo cannot demonstrate likelihood of success on appeal. See Suppl. Brief Tr. at 8:13-15 (Bohnhoff). Finally, the Defendants answered Pojoaque Pueblo’s assertion that the more liberal standard applies, because an appealing party could never win a stay if the court required the same rigorous showing as it did when it first rejected that party’s arguments. See Suppl. Brief Tr. at 8:25-9:3 (Bohnhoff). This logic is “backwards,” the Defendants contended, because, “if a court has rejected a plaintiffs case on the merits with a final judgment, [] that plaintiff properly should be required to make an even more compelling case for relie[f] pending appeal than it had to make at the beginning of the case for a preliminary injunction.” Suppl. Brief Tr. at 9:3-10 (Bohnhoff).
The Court interposed, asking whether the Court should be reassured by the United States’ statement in the U.S. Letter Regarding the Stay MOO that the United States does not disagree with the Court’s preemption analysis. See Suppl. Brief Tr. at 11:6-15 (Court). The Defendants responded that, “in the abstract ... [the Court can] draw comfort from the fact that the United States, which has a trust responsibility for the pueblo doesn’t argue
Pojoaque Pueblo maintained that the cases -cited by the Defendants do not change that the lesser “serious question standard” for likelihood-of-success still applies where the other three factors are established. Suppl. Brief Tr. at 12:8-22 (Crowell). Pojoaque Pueblo further argued that it does not “make sense to require a tribe or a plaintiff to go to the district court to seek a stay if it’s futile to pursue the likelihood , of success [on the] merits.” Suppl. Brief Tr. at 12:22-25 (Crowell). Poj-oaque Pueblo argued, moreover, that, “although Dine may be persuasive on the question, it’s not dispositive of the question .... ” Suppl. Brief Tr. at 13:13-14 (Cro-well). Pojoaque Pueblo advanced that, until the Tenth Circuit rules that Dine equally applies to motions to stay, “it is not precedent and it is not binding on how the Court deals with the current motion to stay.” Suppl. Brief Tr. at 14:23-15:2 (Cro-well). Additionally, Pojoaque Pueblo stressed its view that it “has done everything that IGRA requires” and that “the pueblo acted in good faith ..., ” Suppl. Brief Tr. at 14:9-13 (Crowell). Should the Court leave the Stay MOO’s effects intact, Pojoaque Pueblo averred, Pojoaque Pueblo wiíl be irreparably harmed by New Mexico “basically either extorting [the] pueblo into an illegal compact or forcing the pueblo to shutter a good part of its gaming facilities .... ” Suppl. Brief Tr. at 14:3-9 (Crowell).
■ With respect to- the United States’ letter to the Tenth Circuit regarding the Stay MOO,- Pojoaque Pueblo disagreed that the letter conveys that the United States “agrees with this Court’s preemption analysis.” Suppl. Brief Tr. at 16:5-8 (Crowell). Rather, Pojoaque Pueblo asserted, the letter’s purpose is to “point out the [Stay MOO’s] disruption of the balance of federal, state and Tribal interests that ... Congress intended when they passed [IGRA].” Suppl. Brief Tr. at 16:8-14 (Crowell). Poj-oaque Pueblo contended that, although the Court expressed concern with “putting its thumb on the scales,” the Stay MOO “has totally tipped those scales by basically endorsing a policy that allows ■ a state like New Mexico to negotiate with impunity.” Suppl. Brief Tr. at 16:13-17 (Crowell). Highlighting this disruption of Congress’ carefully wrought balance, Pojoaque Pueblo averred, was the point of the United States’ letter. See Suppl. Brief Tr. at 16:21-17:2 (Crowell).
Having heard both sides’ argument, the Court granted the Supplemental Brief Motion. See Suppl. Brief Tr. at 17:11-13 (Court). The Court also granted the Defendants’ request to file a response brief to Pojoaque Pueblo’s proposed Supplemental Brief. See Suppl. Brief Tr. at 17:13-15 (Court).
LAW REGARDING A DISTRICT COURT’S JURISDICTION DURING THE PENDANCY OF AN INTERLOCUTORY APPEAL
The filing of an interlocutory appeal generally divests the district court of jurisdiction over matters involved in the appeal. See Stewart v. Donges,
Because the district court retains jurisdiction over “peripheral matters unrelated to the disputed right,” application of the divestiture rule turns on the nature of the defense that is the subject of the appeal. Stewart v. Donges,
In contrast to some interlocutory appeals under 28 U.S.C. § 1292(b) that challenge discrete orders that can be carved out and isolated from the remainder of the case, a motion to dismiss the entire proceeding based on a defense of double jeopardy or qualified immunity cannot be so isolated. If the defense is valid, then no part of the action should proceed against the defendant.. In that regard, an interlocutory appeal from an order refusing to dismiss on double jeopardy or qualified immunity grounds relates to the entire action and, therefore, it divests the district court of jurisdiction to proceed with any part of the action against- an appealing defendant.
The divestiture rule articulated in Stewart v. Donges is “virtually complete,”
Interlocutory injunction appeals would come at high cost if the trial court were required to suspend proceedings pending disposition of the appeal. The delay and disruption alone would be costly. As importantly, cases involving injunctive relief are apt to present an urgent needfor action. An injunction can seriously disrupt the affairs of those bound by it. Denial of an injunction can destroy the capacity to grant effective relief after trial. Continuing trial court proceedings, moreover, often pose little threat to orderly disposition of the appeal; ordinarily the scope of the appeal will be limited to consideration of the preliminary injunction decision itself, despite the power to reach out to other matters
Wright & Miller § 3921.2, at 58 (footnote omitted). Wright and Miller further distinguish preliminary injunction orders from permanent injunction orders, noting that “interlocutory appeals from permanent injunction orders come closer to final judgment appeals” which divest the district court of jurisdiction over the matter. Wright & Miller § 3921.2, at 58-59.
Because of the unique nature of interlocutory injunction appeals, the exception to divestiture for such appeals allows the district court to address matters that are involved in the appeal. Cf. Stewart v. Donges,
The Tenth Circuit has recognized the exception for interlocutory injunction appeals in at least two circumstances. See Free Speech,
Although a court of appeals may determine whether a claim has been stated as part of the interlocutory appeal, a district court nonetheless retains jurisdiction to dismiss for failure to state a claim pending appeal. This power is desirable “both in the interest of expeditious disposition and in the face of uncertainty as to the extent to which the court of appeals will exercise its power.”
Free Speech,
LAW REGARDING MOTIONS TO RECONSIDER INTERLOCUTORY ORDERS
Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall into three categories:
(i) a motion to reconsider filed within [twenty-eight] days of the entry of judgment is treated as a motion to alter or amend the judgment under rule 59(e);
(ii) a motion to reconsider filed more than [twenty-eight] days after judgment is considered a motion for relief from judgment under rule 60(b); and (iii) a motion to reconsider any order that is not final is a general motion directed at the court’s inherent power to reopen any interlocutory matter in its discretion. See Price v. Philpot,420 F.3d 1158 , 1167 & n.9 (10th Cir. 2005).
Pedroza v. Lomas Auto Mall, Inc.,
Considerable confusion exists among the bar regarding the proper standard for a district court to apply when ruling on a motion to reconsider one of its prior “interlocutory” or “interim” orders, he., an order that a district court issues while the case is ongoing, as distinguished from a final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a standard for analyzing them. A loose conflation in ter
While the Federal Rules of Civil Procedure do not explicitly address motions to reconsider interlocutory orders, rule 54(b) makes the following open-ended proclamation about their mutability: “[A]ny order or other decision that adjudicates fewer than all the claims ... does not end the action as to any of the claims or parties and may be revised at any time before the entry of final judgment .... ” Rule 54(b) therefore (i) provides that a district court may freely reconsider its prior rulings; and (ii) places no limit or governing standard on the district court’s ability to do so, other than that reconsideration must occur “before the entry of judgment.” Fed. R. Civ. P. 54(b). Indeed, the Supreme Court has stated that “every order short of final decree is subject to reopening at the discretion of the district judge.” Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,
Courts of Appeals recognize that district courts have “inherent” discretionary authority to reconsider a preliminary injunction. Sierra Club v. United States Army Corps of Eng’rs,
Notwithstanding these principles, the filing of a notice of appeal from an interlocutory order imposes jurisdictional constraints on a district court’s authority to reconsider its prior rulings. The Supreme Court has explained that “[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co.,
Nonetheless, the filing of a notice of appeal does not completely divest a district court of 'jurisdiction to modify its interlocutory rulings. Under rule 62(c) of the Federal Rules of Civil Procedure, a district court, during the pendency of an appeal from an interlocutory order that “grants, dissolves, or denies an injunction,” is authorized to “suspend, modify, restore, or grant an injunction .... ” This authorization is narrowly construed, however. See Griggs v. Provident Consumer Discount Co.,
LAW REGARDING STAYS PENDING APPEAL
Although different rules of procedure ' govern district courts’ and courts of appeals’ authority to stay an order pending appeal, see Fed. R. Civ. P. 62(c); Fed. R. App. P. 8(a), the factors regulating the issuance of a stay are “generally the same,” Hilton v. Braunskill,
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Nken v. Holder,
Although the factors required for a stay pending appeal are not identical to those required for granting an injunction, there is “substantial overlap” between both standards. Nken v. Holder,
Until recently, the Tenth Circuit has applied a modified likelihood-of-success standard where an applicant meets the other three requirements for an injunction or a stay pending appeal. See Walmer v. United States Dep’t of Defense,
LAW REGARDING IGRA
As “ ‘domestic dependent nations’ that exercise ‘inherent sovereign authorirty,’ ” Bay Mills,
In Cabazon, the Supreme Court held that states lacked regulatory authority over gambling activities occurring on Indian lands, because Congress had not expressly provided for such authority. See
Under IGRA, Class III gaming is “lawful on Indian lands only if such activities are ... (C) conducted in conformance with a Tribal-State compact ¿ntered into by the Indian' tribe 'and the State ... that is in effect.”‘25 U.S.C. § 2703(8). Absent a gaming compact, 18 U.S.C. § 1166(a) provides that, “for purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of gambling ... shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State.” In other words, any Class III gaming on tribal'lands that does not comport with state law violates federal law unless it is conducted pursuant to a valid compact with the state under IGRA. See 18 U.S.C. § 1166(a). Plainly stated, “a tribe cannot conduct class III gaming on its lands without a compact .... ” Bay Mills,
Just because IGRA requires a state-tribal compact for Class III gaming activities to be lawful, however, “it does not follow that the states have any authority to. regulate Class III gaming in the absence of a compact.” Wyandotte Nation v. Sebelius,
Article VI, clause 2, of the Constitution provides that the laws of the United States “shall be the Supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Consistent with the Supremacy Clause, the Supreme Court has “long recognized that state laws that conflict with federal law are ‘without effect.’ ” Altria Grp., Inc. v. Good,
Pre-emption may be either expressed or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
Preemption may be express or implied. See Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
Addressing express preemption requires a court to determine the preemption’s scope. That task entails scrutinizing the preempting words in light of two presumptions. First,
[i]n all pre-emption cases, and particularly in those in which Congress has legislated ... in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.
Medtronic, Inc. v. Lohr,
Congress’ intent, of course, primarily is discerned from the language of the preemption statute and the statutory framework surrounding it. Also relevant, however, is the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.
Medtronic, Inc. v. Lohr,
In a recent express preemption decision, see Bruesewitz v. Wyeth, LLC,
[a] claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation. Unlike in tort suits, claimants under the Act are not required to show that the administered vaccine was defectively manufactured, labeled, or designed.
No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.
Implied conflict preemption exists when it is impossible for a private party to comply with both state and federal requirements, see English v. General Elec. Co.,
The Supreme Court, in the past, found that implied preemption may take the form of “obstacle” preemption. Crosby v. Nat’l Foreign Trade Council,
serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption based on frustration of purposes—he., that state law is preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Geier v. Am. Honda Motor Co.,
The Supreme Court has now begun to back away from finding implied preemption based on an alleged conflict with the purposes underlying federal regulations. In 2003, the Supreme Court issued a unanimous decision in Sprietsma v. Mercury Marine,
it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the [Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. §§ 301, 321, 331-337, 341-350, 361-364, and 381-399; 21 C.F.R. § 201.80(e) (“FDCA”) ].
Wyeth v. Levine,
Of particular import for the current status of implied obstacle preemption is Justice Thomas’ concurring opinion in Wyeth v. Levine, in which he wrote:
I write separately, however, because I cannot join the majority’s implicit endorsement of far-reaching implied preemption doctrines. In particular, I have become increasingly skeptical of this Court’s “purposes and objectives” preemption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution, I concur only in the judgment.
Under the vague and potentially boundless doctrine of purposes and objectives preemption .,, the Court has pre-empt-ed state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law .... Congressional and agency musings, however, do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.
Wyeth v. Levine,
Moreover, the Supreme Court has put renewed emphasis on the presumption against preemption. See Wyeth v. Levine,
In Arizona v. United States, the Supreme Court once again emphasized the importance of clear Congressional intent when applying obstacle preemption. The Supreme Court struck down provisions- of an Arizona immigration law that would penalize aliens who sought, or engaged in, unauthorized employment, because it “would interfere with the careful balance struck by Congress with respect, to unau-: thorized employment of aliens.”
The Tenth Circuit has recognized federal preemption of state law in three categories: (i) when a federal statute expressly preempts state law (“express preemption”); (ii) where Congress intends to occupy a field (“field preemption”);, and (iii) to the extent that a state law conflicts with a federal law (“conflict preemption”). Colo. Dep’t of. Pub. Health & Env’t v. United States,
LAW REGARDING 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983. Section 1983 creates only the right of action, it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Nelson v. Geringer,
[A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.
Schaefer v. Las Cruces Public School Dist.,
Claims under 42 U.S.C. § 1985 are less common than claims under § 1983. Section 1985 pertains to the prohibition of conspiracies which interfere with civil rights. See 42 U.S.C. § 1985. The Supreme Court recognizes “five broad classes of conspiratorial activity” that § 1985 prohibits. Kush v. Rutledge,
To succeed on a § 1985 claim, a plaintiff must prove a conspiracy. See Dixon v. City of Lawton, Okla.,
The Tenth Circuit has held that it is error to “precondition consideration of a plaintiffs § 1985(3) claim upon the finding of § 1983 liability.” Dixon v. City of Lawton, Okla.,
Although neither § 1983 nor § 1985(3) create any substantive rights, a § 1983 claim generally describes a substantive violation of a right secured by the Constitution or laws, whereas a § 1985(3) claim generally describes a conspiracy of two or more persons for the purpose of depriving of another of equal protection of the laws or equal privileges and immunities under the laws.
Dixon v. City of Lawton, Okla.,
To state a claim under § 1985(3), a plaintiff must show: (i) a conspiracy, motivated by racially discriminatory animus; (ii) to deprive the plaintiff of equal protection or equal protections of the laws; (iii) an act in furtherance of the conspiracy; and (iv) an injury or deprivation resulting therefrom. See Paris v. Sw. Bell Tel. Co.,
The Tenth Circuit has stated that § 1985(3) was intended “to provide redress for victims of conspiracies impelled by a
• . In Martinez v. Martinez, the plaintiff alleged that M. Martinez, her ex-husband, Lynda .Latta, her ex-husband’s attorney, and the Honorable Elizabeth Whitefield, the judge who presided , over the Mar-tinezes’ divorce in state court, conspired against her to deprive her of her rights guaranteed under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States of America. See
14.- In .the Court’s Defendant 4’s [i.e., .Judge Whitefield’s] ruling to dismiss this case against Plaintiff first of all is. a violation of Federal Rule 60(b)(4) because the Court lacked jurisdiction over the subject matter and.that dismissal, .for lack of prosecution, which conduct was done as a state actor under color of law by [Judge Whitefield] and in conspiracy with [Ms. Latta] on behalf of [M. Martinez], to achieve these ends. [Ms. Latta] is included in this legal process, entered into knowingly and fraudulently to achieve the illegitimate end of depriving Plaintiff of her due civil rights by [Judge Whitefield’s] void ruling, which rights are afforded by 42 USC §§ 1983 and 1985(3) to a fair hearing of the property as she has attempted to litigate for these last years.
15. [Ms. Latta and Judge Whitefield] are participants with [M. Martinez] and have conspired to keep Plaintiff at bay in obtaining her rights to this undivided property by engaging improper courts and attempts to harass and exhaust Plaintiff of her financial resources ....
17. The Fourteenth Amendment states thus: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law ... And further in the Fifth Amendment “the Bill of Rights protects against abuse of government—the. ‘double jeopardy1 clause seems to be applied here, because Plaintiffs same former case 95-2963 was voluntarily dismissed by Plaintiff without prejudice in 2003, and resurrected from the dead improperly by [M. Martinez, Ms. Latta, and Judge Whitefield] on August 28,2007 by Motion.
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18. [Judge Whitefield] attempts to adjudicate a new dismissal of this same closed case by dismissing it again against Plaintiff for lack of prosecution and would attempt by doing so, to take away her right to adjudicate it elsewhere—this would be a gross violation for Plaintiff from [Judge Whitefield] and finds into the double jeopardy type of thinking easily—a double dismissal, one legitimate by Plaintiff and one illegitimate (reopened by Defendants by Motion) after this dismissal, and done (the second) with intention by [M. Martinez and Ms. Latta] and especially with the power of [Judge Whitefield], to attempt to deprive Plaintiff of her due process rights of hearing and eliminating herpossibility to adjudicate her claim because [Judge Whitefield’s] ruling would then be the second dismissal on the basis of lack of prosecution which then adjudicates a case and it could not be brought again by this Plaintiff.
Martinez v. Martinez,
ANALYSIS
The Court’s analysis proceeds as follows. The Court first reviews Pojoaque Pueblo’s request to file a Supplemental Brief to address issues that arose during the October 27, 2016, hearing. The Court concludes that such supplementation is warranted and the Court thus grants the Supplemental Brief Motion. The Court likewise grants the Defendants’ request to file a Response to Pojoaque Pueblo’s proposed Supplemental Brief. The Court next considers whether the Defendants’ interlocutory appeal of Judge Brack’s PI divested the Court of jurisdiction to determine in the Stay MOO the action on the merits. Concluding that its jurisdiction was not completely divested, the Court holds that Pojoaque Pueblo has not made the requisite showing for a stay of the judgment entered pursuant to the Stay MOO—particularly the order, therein that suspends Judge Brack’s PI—pending Pojoaque Pueblo’s appeal of that judgment to the Tenth Circuit. Accordingly, the Court denies the Motion to Stay MOO.
I. THE COURT GRANTS POJOAQUE PUEBLO’S SUPPLEMENTAL BRIEF MOTION AND GRANTS THE DEFENDANTS’ REQUEST TO FILE A RESPONSE TO POJ-OAQUE PUEBLO’S SUPPLEMENTAL BRIEF.
Pojoaque Pueblo moves to file a Supplemental Brief to address issues that arose during the hearing on the Motion to Stay MOO. See Suppl. Brief Motion at 1. The Defendants contend that Pojoaque Pueblo’s proposed Supplemental Brief “goes far beyond addressing issues that arose during the October 27,2016, hearing, and, in so doing, raises a number of tangential issues that are not dispositive of the Motion to Stay.” Suppl. Brief Motion Response at l.'The Defendants request, however, that, should the Court grant the Supplemental Brief Motion, the Court allow them to file a Supplemental Brief Response. See Suppl. Brief Motion Response at 1-2.
Pojoaque Pueblo asserts that supplementation is -warranted under rule 15(d). See Suppl. Brief Motion at 1. Rule 15(d), however, is inapposite. Under rule 15(d), a • district court has discretion to “permit a party to serve a supplemental pleading setting forth .., transactions, occurrences or events” that occurred after the date of the pleading to be supplemented. Walker v. UPS,
“Whether to allow supplemental briefing on a newly-raised issue is a ‘supervision of litigation’ question” that the Tenth Circuit reviews for abuse of discretion. Geddes v. United Staffing All. Emple. Med. Plan,
First, supplementation regarding the Interior Secretary’s “deemed approved” letters is appropriate, because the Court stated at the hearing that it was unfamiliar with those letters. Motion to Stay MOO Tr. at 121:25-122:2 (Court). Second, supplementation regarding Baker v. Bray and Debardeleben v. Pugh is warranted, because the Defendants cited those cases for the first time at the hearing. See Motion to Stay MOO Tr. at 23:13-23 (Bohnhoff). Third, supplementation regarding Pine’s relevance is proper, because the Tenth Circuit issued its opinion in that case on the day of and during the hearing. See Motion to Stay MOO Tr. at 62:22-63:15 (Court). Fourth, supplementation regarding New Mexico regulations on transportation of gaming devices into the state is appropriate, because the issue arose at the hearing whether Pojoaque Pueblo can legally use out-of-state gaming vendors to compensate for any decreased business with gaming vendors licensed by New Mexico. See Motion to Stay MOO Tr. at 122:14-20 (Crowell). Fifth, supplementation regarding Pojoaque Pueblo’s compliance with its commitment to place in trust suspended payments to New Mexico is warranted, because the Court inquired at the hearing whether Pojoaque Pueblo is compliant with that commitment. See Motion to Stay MOO Tr. at 72:8-21 (Court). Sixth, supplementation regarding the U.S. Letter Re: Stay MOO is proper, because the United States filed that letter at the Tenth Circuit the day after the hearing. See U.S. Letter Re: Stay MOO at 1. Seventh, supplementation regarding New Mexico’s threatened revocation of Poj-oaque Pueblo’s TIF money is appropriate, because New Mexico sent the TIF Letter after Pojoaque Pueblo filed the Motion to Stay MOO. See TIF Letter at 1. Eighth, supplementation regarding Allgeier’s testimony at the hearing is warranted, because the Defendants dispute that testimony in their Supplemental Brief Response. See Suppl. Brief Response at 9.
In short, the Court concludes that Poj-oaque Pueblo’s Supplemental Brief properly addresses “newly-raised issues,” Geddes v. United Staffing All. Emple. Med. Plan,
Accordingly, because the Court concludes that there is no sound reason to deny leave for Pojoaque Pueblo to file the Supplemental Brief, thé Court grants the Supplemental Brief Motion. The Court likewise grants the Defendants’ request to file a Supplemental Brief Response, which will provide the Court the benefit of adversarial analysis of the issues that Pojoaque Pueblo raises in its Supplemental Brief.
II. THE DEFENDANTS’ INTERLOCUTORY APPEAL DID NOT COMPLETELY DIVEST THE COURT OF ITS JURISDICTION TO DETERMINE THE ACTION ON THE MERITS IN THE STAY MOO.
The Court begins its analysis of the Motion to Stay MOO by considering its jurisdiction to determine the action on the merits notwithstanding the pendency of the Defendants’ interlocutory appeal of Judge Brack’s PI to the Tenth Circuit. Pojoaque Pueblo’s primary contention is that the Court failed to “apply the bright line rule established by the Tenth Circuit in Stewart v. Donges” that, “[o]nce a party has filed an appeal from an interlocutory order, ... the District Court is divested of jurisdiction pending the appeal, except in very limited circumstances ..., or unless the District Court certifies that the appeal is frivolous.” Motion to Stay MOO at 9 (citing Stewart v. Donges,
“Generally speaking, the filing of an interlocutory appeal divests the district court of jurisdiction.” Anderson Living Trust v. WPX Energy Prod., LLC,
Although the divestiture rule articulated in Stewart v. Donges is “virtually complete,”
In contrast to some interlocutory appeals under 28 U.S.C. § 1292(b) that challenge discrete orders that can be carved out and isolated from the remainder of the case, a motion to dismiss the entire proceeding based on a defense of double jeopardy or qualified immunity cannot be so isolated. If the defense is valid, then no part of the action should proceed against the defendant. In that regard, an interlocutory appeal from an order refusing to dismiss on double jeopardy or qualified immunity grounds relates to the entire action and, therefore, it divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant.
Pojoaque Pueblo contends that the “bright-line jurisdictional rule” articulated in Stewart v. Donges is dispositive of the Court’s jurisdiction to determine the action on the merits. See Motion to Stay MOO at 10 (quoting McCauley v. Halliburton Energy Servs.,
Pojoaque Pueblo is correct that the motions that the Court resolved in the Stay MOO did not involve “peripheral matters unrelated to the disputed right” at issue in the interlocutory appeal of Judge Brack’s PI. Stewart v. Donges,
The divestiture rule articulated in Stewart v. Donges is well-established, but there are limited exceptions to the rule. See United States v. Madrid,
Although a court of appeals may determine whether a claim has been stated as part of the interlocutory appeal, a district court nonetheless retains jurisdiction to dismiss for failure to state a claim pending appeal. This power is desirable “both in the interest of expeditious disposition and in the face of uncertainty as to the extent to which the court of appeals will exercise its power.”
Free Speech,
The Tenth Circuit’s analysis in Free Speech is on point. Here, as in Free Speech, the Defendants moved to dismiss the Complaint while an interlocutory appeal from Judge Brack’s PI was pending at the Tenth Circuit. Cf. Free Speech
Pojoaque Pueblo summarily dismisses Free Speech as inapposite, arguing that the case is “an anomaly, with a peculiar procedural posture[.]” Motion to Stay MOO at 12. Pojoaque Pueblo avers that, although the district court in Free Speech granted the motion to dismiss while the interlocutory appeal from the court’s denial of the PI was “technically pending,” the parties stipulated to dismiss the PI appeal four days after the plaintiffs appealed the district court’s order granting the motion to dismiss. Motion to Stay MOO at 10-11. Accordingly, Pojoaque Pueblo contends, to the extent that the Stewart v. Donges divestiture rule “may have been at issue in Free Speech, the issue was mooted by the expeditions termination of the earlier appeal.” Motion to Stay MOO at 11.
Pojoaque Pueblo’s attempts to distinguish Free Speech are inventive, yet unpersuasive. First, Free Speech is not anomalous within the Tenth Circuit, as Pojoaque Pueblo insists. See Motion to
Pojoaque Pueblo presses, however, that Stewart v. Donges remains good law, because Free Speech “does not even address Donges, much less overrule Donges.” Mo-tiop to Stay MOO at 10. See Motion to Stay MOO at 11 (noting that the Tenth Circuit has “affirmatively cited Donges and its progeny, after the June 25, 2013 issuance of the Free Speech decision, as valid law”)(citing Martinez v. Mares,
The argument that Free Speech “does not ... overrule DongeS,” Motion to Stay MOO at 10, moreover, misses the point. Free Speech enshrines an exception to the well-established rule in Stewart v. Donges—it is not inconsistent with Stewart v. Donges. See Free Speech,
It is worth mentioning that several Tenth Circuit cases—including Stewart v. Donges—expressly acknowledge a district court’s jurisdiction under rule 62(c) to “suspend, modify, restore, or grant an injunction during the pendency of the appeal.” Colorado v. Idarado Mining Co.,
■ Having reconsidered controlling Tenth Circuit precedent and this case’s procedural posture, the Court concludes that the Defendants’ interlocutory appeal of Judge Brack’s PI did not divest the Court of jurisdiction to “proceed to determine the action on the merits” in the Stay MOO. Free Speech,
III. POJOAQUE PUEBLO IS NOT LIKELY TO SUCCEED ON THE MERITS OF ITS APPEAL, BECAUSE THE DEFENDANTS’ REGULATION OF NON-INDIAN, STATE-LICENSED GAMING VENDORS DOES NOT VIOLATE POJOAQUE PUEBLO’S FEDERAL RIGHTS.
This litigation’s central issue remains whether the Defendants violated Pojoaque Pueblo’s federal rights by taking regulatory enforcement actions against non-Indian, state-licensed gaming vendors—thus potentially impacting Pojoaque Pueblo’s ability to do business with those vendors—based on a determination that the vendors violated New Mexico law by supplying equipment to or receiving proceeds from Pojoaque Pueblo’s Class III gaming enterprises operating in the absence of a gaming compact with New Mexico. Pojoaque Pueblo’s primary argument is that the Gaming Board’s regulation of these third-party vendors amounts to an “assertion] of jurisdiction ... over conduct occurring on Pueblo Indian lands” in violation of Pojoaque Pueblo’s “federal right to engage in conduct free from the jurisdiction of the State” under IGRA. Complaint ¶ 145, at 36. Pojoaque Pueblo contends, in short, that IGRA preempts the Gaming Board’s actions. Pojoaque Pueblo also argues that the Gaming Board’s alleged assertion of jurisdiction over its Class III gaming activities “constitute[s] a violation of the Supremacy Clause” and civil rights statutes, including 42 U.S.C. §§ 1983 and 1985. Complaint ¶ 8, at 4. The Court will discuss these allegations in turn.
Before reaching the merits of Pojoaque Pueblo’s allegations, however, the Court must first determine the robustness of the likelihood of success showing required for a stay pending appeal. In Pojoaque Pueblo’s view, a stay is warranted if “the other elements of a stay have been met,” Motion to Say MOO at 18, he., (i) irreparable harm absent a stay; (ii) lack of injury to opposing parties if the stay is granted; and (iii) absence of harm to the public interest, see Hilton v. Braunskill,
The Supreme Court has characterized the standard for a stay pending appeal as requiring a “strong showing” that the applicant is likely to succeed on the merits. Hilton v. Braunskill,
The Tenth Circuit has, however, applied a modified likelihood-of-success standard where an applicant meets the other three requirements for a stay pending appeal. See McClendon v. City of Albuquerque,
Pojoaque Pueblo’s appeal to the Tenth Circuit’s earlier precedent notwithstanding, the Tenth Circuit has recently abrogated the relaxed likelihood-of-success test. See Dine,
Pojoaque Pueblo asserts that Dine is inapposite, because it involves the standard for issuance of a PI and not the standard for a stay pending appeal. See Suppl. Brief at 7. In Pojoaque Pueblo’s view, the standards for granting a PI and staying an order are not “the same.” Suppl. Brief Reply at 5 (citing Suppl. Brief Response at 4-5). Pojoaque Pueblo contends that, accordingly, Dine does not overrule the relaxed test for stays pending appeal that the Tenth Circuit articulated in McClendon v. City of Albuquerque. See Suppl. Brief at 7.
Pojoaque Pueblo is correct that the standards for granting Pis and stays pending appeal are not identical. See Nken v. Holder,
Both standards, however, require that the moving party make a strong showing of likelihood of success as well as irreparable injury. See Winter v. NRDC,
This analysis counsels that the Supreme Court’s condemnation of the relaxed likelihood-of-success-on-the-merits standard in the PI context applies with equal force to stays pending appeal. In both contexts, relying on similar rationales, the Supreme Court has required a strong showing of likelihood-of-success and irreparable injury. See Winter v. NRDC,
Lest the Court’s analysis be read to gloss over important characteristics that distinguish Pis from stays pending appeal, the Court notes that the Tenth Circuit’s formulation of the relaxed likelihood-of-suecess test acknowledges that substantially the same standards govern Pis and stays pending appeal. The Tenth Circuit originally formulated the modified test in the PI context, holding that, when the other requirements for a PI are met, “it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.” Cont’l Oil Co. v. Frontier Ref. Co.,
Here, Pojoaque Pueblo relies primarily on McClendon v. City of Albuquerque’s recitation of the modified test in the stay-pending-appeal context while ignoring that the Tenth Circuit uncritically transposed that test from the PI context. See Suppl. Brief at 7. Pojoaque Pueblo, moreover, even quotes the “substantial, difficult and doubtful” questions language from a PI case when arguing that the Court should apply that test to the Motion to Stay MOO. Motion to Stay MOO at 18 (quoting Chanute v. Kan. Gas & Elec. Co.,
Having concluded that the relaxed fair-ground-for-litigation test is no longer viable, the Court can dispose of the parties’ remaining arguments regarding the likelihood-of-success factor. First, the Defendants’ argument that restoration of a PI which “seeks to enjoin governmental action taken in the public interest pursuant to a statutory or regulatory scheme” requires a “strong showing” of likelihood of success on the merits, Motion to Stay MOO Response at 4 (citing Heideman v. S. Salt Lake City,
Third, Pojoaque Pueblo’s contention that the Court should apply a relaxed likelihood-of-success standard, because applying the same level of scrutiny to motions to stay as to PI motions “would result in every such motion to stay being denied simply as a matter of course,” Suppl. Brief Reply at 6, inverts the logic of stays pending appeal. As the Court has previously explained, the four requirements of a stay pending appeal are “arguably even more rigorous[ ] than they are for a motion for a preliminary injunction.” Dine Citizens Against Ruining Our Env’t v. Jewell,
In short, to establish likelihood of success, Pojoaque Pueblo must meet a “heavy burden” of showing that the Court’s Stay MOO was “erroneous on the meritsf.]” Nken v. Holder,
A. THE DEFENDANTS DID NOT VIOLATE POJOAQUE PUEBLO’S RIGHTS UNDER IGRA.
The Court’s analysis of Pojoaque Pueblo’s arguments concerning the legality of the Defendants’ actions under IGRA proceeds as follows. First, the Court will consider whether IGRA preempts the Defendants’ regulatory enforcement actions against non-Indian, state-licensed gaming vendors doing business with Pojoaque Pueblo. Concluding that IGRA does not preempt the Defendants’ actions, the Court will consider Pojoaque Pueblo’s request that the Court conduct severance analysis to fix IGRA’s allegedly broken remedial scheme while also sanctioning Pojoaque Pueblo’s Class III gaming operations in the absence of a gaming compact with New Mexico.
1. IGRA Does Not Preempt the Defendants’ Actions.
Pojoaque Pueblo advances substantially the same arguments regarding IGRA’s preemption of the Defendants’ actions that the Court considered and declined to adopt in the Stay MOO. See Motion to Stay MOO at 12-15. Pojoaque Pueblo’s central thesis remains that the Gaming Board’s regulatory enforcement actions against gaming vendors dealing with Pojoaque Pueblo after the June 30, 2015, expiration of its Class III compact with New Mexico amount to “wrongful ] assertion of] State jurisdiction over gaming activities on the Pueblo’s Indian lands.” Complaint ¶ 8, at 4. IGRA preempts these actions, Pojoaque Pueblo asserts, because they “directly target and have an impact on the Pueblo and its gaming operations.” Motion to Stay MOO at 12. The Defendants counter that the Gaming Board’s actions are outside IGRA’s preemptive scope and that Poj-oaque Pueblo continues to “fail to appreciate the difference between regulation of gaming on Indian lands and gaming off Indian lands, and erroneously conflate[s] impact with regulation.” Motion to Stay MOO Response at 7. As in the Stay MOO, therefore, the measure of IGRA’s preemptive scope is the dispositive issue.
The Court begins its preemption analysis with the “assumption that the historic police powers of the States [are] not to be superseded by [federal law] unless that was the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518
• It is incontrovertible that New Mexico’s regulation of gambling activities is an exercise of the state’s historic police powers. “The police power of a state ‘extends to, all matters affecting the public health or the public morals.’ ” Stone v. Mississippi,
The Tenth Circuit has indicated that congressional intent to preempt state law is “clear and manifest” in three circumstances: (i) when a federal statute expressly preempts state law (“express preemption”); (ii) when Congress intends to occupy a field (“field preemption”); and (iii) when state law conflicts with a federal law (“conflict preemption”). Colo. Dep’t of Pub. Health & Env’t v. United States,
The context in which Congress enacted IGRA provides a useful analytical starting point. Congress enacted IGRA in response to the Supreme Court’s decision in Cabazon, which held that states lacked authority over gambling activities occurring on Indian lands, because Congress had not expressly provided for such authority. See
In light of this background, the Court concludes that Congress’ “clear and manifest” intent, Medtronic, Inc. v. Lohr,
Applying this statutory construction, the Court concluded in the Stay MOO that IGRA does not preempt the Gaming Board’s actions, because it has not taken any regulatory action on Pojoaque Pueblo’s tribal lands. See Stay MOO at 107. Rather, the Court reasoned, the Gaming Board’s regulation of “non-Indian manufacturers’ sales of gaming equipment to non-Indian operators off tribal lands” is outside IGRA’s preemptive scope. Stay MOO at 107 (quoting Motion to Reconsider PI)(internal quotation marks omitted). The Court stressed that these regulatory actions “do not prohibit Pojoaque Pueblo from continuing its gaming operations, nor do they prevent vendors from supplying equipment to Pojoaque Pueblo for such operations.” Stay MOO at 107 (citing Motion to Reconsider PI at 5). Indeed, the Court noted, notwithstanding the Gaming Board’s actions, Pojoaque Pueblo remains free to conduct Class III gaming activities as long as the United States Attorney forbears from enforcing IGRA. See U.S. Attorney’s Letter at 1.
Pojoaque Pueblo objects to this reasoning, asserting that the Court’s logic “would support the State building a barrier around the Reservation ... so long as the barriers are placed just outside the Pueblo boundary.” Motion to Stay MOO at 115. This argument is flawed for several reasons. First, the hypothetical is inapposite, because New Mexico is not erecting any banders—intangible or otherwise—between vendors and Pojoaque Pueblo. Vendors remain free to transact with Poj-oaque Pueblo if they wish; the threat of license revocation may act as a deterrent, but New Mexico is not directly intervening in vendor-tribe transactions, as the hypothetical suggests. Rather, New Mexico is regulating non-Indian third parties alone—the regulated parties are neither tribal entities nor are they prohibited from dealing with tribal entities. Second, Poj-oaque Pueblo’s logic would result in paralysis—New Mexico would never be able to enforce its gaming laws and regulations within its jurisdiction, because any effects of that enforcement on Pojoaque Pueblo’s
Third, Pojoaque Pueblo’s hypothetical is inapt, because the laws and regulations pursuant to which the Gaming Board is acting are generally applicable and do not target Pojoaque Pueblo, as a barrier presumably would. Specifically, New Mexico gambling law provides that “[mjanufactur-ers and distributors shall not ship gaming devices to any destination where possession of gaming devices is illegal.” N.M.A.C. § 15.1.16.12(B) (emphasis added). While it is true that, in this instance, the allegedly illegal gaming operation is being conducted on Pojoaque Pueblo’s tribal lands, the Gaming Board would be obligated to take the same enforcement actions against licensees supplying gaming equipment to an illegal operation in a different state. See N.M.A.C. § 15.1.16.12(B). As discussed above, New Mexico has a sovereign interest in taking such actions to enforce its generally applicable laws, see Mashantucket Pequot Tribe v. Town of Ledyard,
In response to this latter contention, Pojoaque Pueblo asserts that the Gaming Board’s actions were motivated solely by the “violation of gaming laws occurring on the Pueblo’s Indian lands, not outside of the reservation.” Motion to Reconsider PI Response at 11-12 (emphasis added). Motive, however, is not the test. IGRA does not preempt “motives” or intentions, but rather the “assertion of state civil or criminal jurisdiction over Indian gaming.” United Keetoowah Band of Cherokee Indians v. Oklahoma,
Pojoaque Pueblo presses, however, that the Gaming Board’s determination as to the illegality of Pojoaque Pueblo’s gaming activities is itself an assertion of jurisdiction that IGRA preempts. See Motion to Stay MOO at 13-14; Motion to Stay MOO
Second, in any event, IGRA does not abrogate a state’s authority to decide whether, or to assume, that a tribal gaming operation is unlawful—it simply preempts states’ ability to enforce state law against such an operation. See 18 U.S.C. § 1166(d). Under 18 U.S.C. § 1166(d), the United States has “exclusive jurisdiction over criminal prosecutions of violations of State gambling laws,” unless a tribe consents to state jurisdiction over such matters pursuant to a gaming compact. Here, New Mexico is not criminally prosecuting Pojoaque Pueblo, nor is it criminally prosecuting state vendor licensees. See Motion to Reconsider PI at 20. Indeed, New Mexican officials have not even entered Pojoaque Pueblo’s tribal lands. See Motion to Reconsider PI at 20. Rather, New Mexico has simply assessed that Pojoaque Pueblo is violating federal law and has accordingly taken actions to enforce its own laws within its own jurisdiction.
Third, New Mexico has not, as Pojoaque Pueblo asserts, made a “unilateral determination regarding the legality of gaming on Indian lands.” Complaint ¶ 133, at 34. The Gaming Board expressly based its determination that Pojoaque Pueblo is operating illegally on Mr. Martinez’ letter to Talachy, which stated that, upon the expiration of Pojoaque Pueblo’s compact with New Mexico, “[continued gaming operations by the Pueblo ... would violate federal law.” U.S. Attorney’s Letter at 1. The Gaming Board’s Vendor Letter, for example, stated that Mr. Martinez informed Talachy “that continued gaming operations by the Pueblo of Pojoaque after midnight on June 30, 2015, in the absence of a Tribal-State compact or Secretarial prescribed procedures, would violate federal law.” See Vendor Letter at 1. Pojoaque Pueblo summarily dismisses this evidence and asserts that “the Court assumes that the State is relying on the United States Attorney’s statement that the Pueblo is gaming illegally.” Motion to Stay MOO at 14. Pojoaque Pueblo offers no contrary evidence, however, that would suggest an alternative basis for the Gaming Board’s determination. Moreover, the Court has determined that Pojoaque Pueblo is operating illegally; New Mexico, accordingly, does not have to make that determination.
Pojoaque Pueblo attempts to circumvent all this analysis by arguing that its Class III gaming operations are not unlawful, because the Gaming Board’s actions “led the Pueblo to operate without a compact.” Motion to Stay MOO at 14. In support of this contention, Pojoaque Pueblo highlights New Mexico’s “bad faith negotiations” and assertion of Eleventh Amendment sovereign immunity from suit as well as the “Defendants’ actions to sue the federal government when the Pueblo attempted to go through the Secretarial Procedures process.” Motion to Stay MOO at 14. Pojoaque Pueblo’s portrayal of events may be accurate, but wrongdoing on .the part of New Mexico does not nullify IGRA’s unqualified provision that Class III gaming activities are “lawful on Indian lands only if ... conducted in conformance with a Tribal-State compact ,...” 25 U.S.C. § 2710(d)(1)(C). IGRA does not provide, as Pojoaque Pueblo implies, that a gaming compact is not required where a state takes the actions that New Mexico has taken. See 25 U.S.C. §§ 2701-2721. It.is noteworthy, moreover, .that Pojoaque Pueblo has an ordinance—independent from IGRA—that requires that a gaming compact be in effect for Class III gaming to be legal. See Motion to Stay MOO Tr. at 78:13-24 (Bohnhoff, Allgeier). The existence of this ordinance illustrates that Poj-oaque Pueblo understands the requisite conditions under which Class III '■ gaming may be conducted. New-Mexico’s' actions do not exempt Pojoaque Pueblo from complying with those conditions.
Pojoaque Pueblo asserts that, ultimately, regardless of its gaming operations’ legality, IGRA preempts New Mexico’s off-reservation regulatory enforcement actions. See Motion to Stay MOO at 13. Pojoaque Pueblo posits that thé extent of IGRA’s preemptive scope does not turn on whether a state regulates non-Indian entities outside of tribal lands. See Motion to Stay MOO at 13. Rather, Pojoaque Pueblo argues, “State jurisdiction is pre-empted ... if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify, the assertion of state authority.” Motion to Stay MOO at 14 (quoting Cabazon,
Preliminarily, Pojoaque Pueblo’s reliance on Cabazon as articulating the test for preemption under IGRA is misplaced, because Cabazon pre-dates IGRA. Indeed, the Supreme Court’s holding in Cabazon that states lacked authority to regulate gaming on Indian lands was the direct impetus for Congress’ enactment of IGRA, which grants states a measure of the authority that Cabazon held was absent. See Texas v. United States,
Pojoaque Pueblo’s argument, moreover, that Bay Mills does not draw the on-/off-reservation distinction upon which the Court relies, see Motion to Stay MOO Reply at 6, is unavailing. The Supreme Court observed in Bay Mills that the “problem Congress set out to address in IGRA (Cabazon’s ouster of state authority) arose in Indian lands alone,” and that “literally everything” in IGRA concerns the “regulation of] gaming on Indian lands, and nowhere else.” Bay Mills,
This reading of Bay Mills notwithstanding, Pojoaque Pueblo maintains that IGRA preempts both direct and indirect assertions of jurisdiction over tribal gaming operations in the absence of a compact. See Motion to Stay MOO at 3. Accordingly, in Pojoaque Pueblo’s view, New Mexico’s off-reservation regulatory actions are preempted, because they “directly target and have an impact on the Pueblo and its gaming operations.” Motion to Stay MOO at 12. This argument is inconsistent with IGRA’s text and with controlling case law.
First, textually, IGRA preempts only direct regulation of Indian gaming activity. See 25 U.S.C. §§ 2701-2721. Section 2710(d)(3)(C) provides that Class III gaming compacts “may include provisions relating to—(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity.” 25 U.S.C. § 2710(d)(3)(C)® (emphasis added). Hence, absent a compact, a state cannot directly enforce its gaming laws on Indian lands. See 25 U.S.C. § 2710(d)(3)(C)®. Because IGRA has no similar provision authorizing or proscribing enforcement of state law that is only indirectly related to the licensing and regulation of gaming on Indian lands, it follows that Congress did not intend to preempt such laws. Expres-sio unius est excusio alterius.
Second, Pojoaque Pueblo’s argument is inconsistent with the Supreme Court’s opinion in Bay Mills, which recognized states’ “capacious” authority over “tribal gaming outside Indian territory.”
The foregoing analysis indicates that Congress’ “clear and manifest intent,” Medtronic, Inc. v. Lohr,
Similar reasoning guides the Court’s analysis of the remaining inquiry— whether IGRA impliedly preempts the Gaming Board’s actions. See Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
The Supreme Court recently stated in Arizona v. United States that, “[w]here Congress occupies an entire field, ... even complimentary state regulation is impermissible.”
Unlike the Immigration Reform and Control Act,. IGRA does not evince Congressional intent to “preclude States from compliment[ing] the federal law, or enforcing] additional or auxiliary regula
If anything, IGRA’s authorization of gaming activities on Indian lands is dependent on the state within which the tribe is located legally sanctioning those activities. See 25 U.S.C. § 2701(5). Section 2701(5) provides that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is ... conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.” 25 U.S.C. § 2701(5)(emphasis added). If gaming activity on Indian lands is tied to state law, surely that same law binds third-party vendor licensees. It is thus difficult to conclude that there is field preemption, because Congress clearly intended to leave intact much of state gaming law. Accordingly, the Court concludes that IGRA is not “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
The Court likewise concludes that there is no “conflict preemption.” Crosby v. Nat’l Foreign Trade Council,
First, it is not a “physical impossibility,” Florida Lime & Avocado Growers, Inc. v.
Second, New Mexico’s gaming regulations do not pose an obstacle to the accomplishment of IGRA’s objectives. See Hines v. Davidowitz,
Finally, all the above notwithstanding, the Court is mindful that, where there are two plausible interpretations of a statute, the Court has a “duty to accept the reading that disfavors preemption.” Bates v. Dow Agrosciences, LLC,
In short, IGRA does not preempt—expressly, by field, or conflict—New Mexico’s regulatory actions with respect to non-Indian, state-licensed vendors doing business with non-Indian gaming operators. Consistent with the policies underlying IGRA’s enactment, the Court is mindful of Pojoaque Pueblo’s “inherent sovereign authority” and interests. Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe,
2. The Court Declines Pojoaque Pueblo’s Request to Invoke Severance Doctrine and Modify IGRA.
The Court’s preemption analysis, supra, holds that the Gaming Board has permissibly taken enforcement actions against non-Indian vendors that are “furthering, or profiting,” N.M.A.C. § 15.1.10.9(f), from Pojoaque Pueblo’s illegal Class III gaming enterprises. Pojoaque Pueblo disputes this analysis’ premise— i.e., that Pojoaque Pueblo’s gaming enterprises are unlawful. See Motion to Stay MOO at 14 (“[T]he Court assumes that the Pueblo is gaming illegally.”). In Pojoaque Pueblo’s view, its gaming operations are lawful despite the absence of a compact with New Mexico, because the Defendants’ actions “led the Pueblo to operate without a compact.” Motion to Stay MOO at 14. Pojoaque Pueblo maintains that, in light of the Defendants’ actions, the Court committed “[c]lear error” when it concluded in the Stay MOO “that it need not conduct severance analysis to determine that the Pueblo is operating illegally.” Motion to Stay MOO at 17 (citing Stay MOO at 142-44). According to Pojoaque Pueblo, the Stay MOO “rewards the State for negotiating with impunity” and “leaves the Pueblo without any viable remedy.” Motion to Stay MOO at 17-18. Indeed, Pojoaque Pueblo avers, the Stay MOO “rewrites] IGRA” and “upset[s] the careful balance that Congress has created.” Motion to Stay MOO at 18. These arguments fail to persuade the Court.
Preliminarily, as the Court has already detailed at length, supra, Pojoaque Pueblo’s continued Class III gaming operations in the absence of a compact with New Mexico are unlawful. IGRA explicitly provides that Class III gaming activities are “lawful on Indian lands only if ... conducted in conformance with a Tribal-State compact ....”25 U.S.C. § 2710(d)(1)(C). Binding Supreme Court and Tenth Circuit precedent likewise require a valid state-tribal compact for Class III gaming to be lawful. See Bay Mills,
Severance doctrine, moreover, is unavailing in this context. Pojoaque Pueblo argued in its Response to the Defendants’ Motion to Stay PI that it “has done everything IGRA requires it to do” and that, in light of Seminole Tribe I’s holding that Congress lacked authority to subject non-consenting states to suit by Indian tribes under IGRA, IGRA’s Class III gaming provisions should be “re-evaluated.” Motion to Stay PI Response at 3. According to Pojoaque Pueblo, Congress did not intend to criminalize Class III gaming activities conducted without a compact if a tribe did not have the ability to sue a state for negotiating a compact in bad faith. See Motion to Stay PI Response at 3-16. Poj-oaque Pueblo thus proposes several alterations to § 2710(d), IGRA’s primary Class III gaming provision. Regarding the re
Pojoaque Pueblo, in effect, asks the Court to sever IGRA to sanction its Class III gaming activities in the absence of a compact. Altering IGRA as Pojoaque Pueblo requests, however, would not transform the Defendants’ lawful regulatory actions into violations of Pojoaque Pueblo’s IGRA rights, nor would it illustrate Poj-oaque Pueblo’s likelihood of success on its IGRA allegations. Whether the Court validates Pojoaque Pueblo’s current gaming is immaterial—likelihood of success turns on whether the Defendants’ actions violated Pojoaque Pueblo’s IGRA rights, and the Court has already concluded, supra, that no such violation has occurred. Sanctioning Pojoaque Pueblo’s on-reservation gaming activities would not change that conclusion; it would not somehow transform the Defendants’ off-reservation regulation of non-Indian vendors into unlawful regulation .of Pojoaque Pueblo. It certainly is not a “strong showing” that Pojoaque Pueblo is likely to succeed on the merits of its IGRA allegations. Hilton v. Braunskill,
In any event, the Court declines to invoke severance doctrine in these ■ circumstances.- IGRA contains an express sev-erability clause. See 25 U.S.C. § 2721. Section 2721 provides: “In the event that any section or' provision of this chapter ... is held invalid, it is the intent of Congress that the remaining sections or provisions of this chapter ... shall continue in full force and effect.” 25 U.S.C. § 2721 (emphasis added). The Supreme Court has statéd that “the inclusion of such a clause creatés a presumption that Congress, did not ,intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.” Alaska Airlines, Inc. v. Brock,
Relying on IGRA’s severability clause, the United States Court of Appeals for the Eleventh Circuit, which decided the initial appeal before Seminole Tribe I, rejected the argument that IGRA’s unconstitutional abrogation of state sovereign immunity rendered the statute as a whole invalid. See Seminole Tribe v. Florida,
The presumption of validity that IGRA’s severability provision creates, however, is not conclusive. See Alaska Airlines, Inc. v. Brock,
Having considered this authority, the Court declines to sever additional IGRA provisions. The Court agrees with the Eleventh Circuit’s conclusion in Seminole Tribe v. Florida that IGRA’s express sev-erability clause, see 25 U.S.C. § 2721, plainly evinces Congressional intent that IGRA’s remaining provisions stand if the jurisdiction-granting provision in § 2710(d)(7) were held invalid, see Seminole Tribe v. Florida,
The Court concludes, further, that the Secretarial procedures in IGRA § 2710(d)(7)(B)(vii), which empower the Interior Secretary to promulgate Class III gaming procedures if a state refuses to agree to a compact, sufficiently effectuate Congress’ intent. See United States v. Spokane Tribe of Indians,
Even assuming, however, that tribes cannot effectively access IGRA’s secretarial procedures, the Court concludes that IGRA “remains ‘fully operative as a law’ ” that significantly comports with Congressional intent. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
All this notwithstanding, Pojoaque Pueblo’s proposed alterations to the statute, detailed supra, are unreasonable. For example, Pojoaque Pueblo’s request that the Court modify IGRA’s provision for a court-appointed mediator to select one of two compacts that the tribe and the state propose, to allow the mediator to consider only the compact' that the tribe proposes, see Motion to Stay PI Response at 13-15, would tip the scales heavily in the tribe’s favor. In Pojoaque Pueblo’s version of the statute, á tribe would be empowered to bypass the entire negotiation process and require a mediator to review a compact that benefits only the tribe; the mediator would have no occasion to consider the state’s legitimate interests. Such a scheme would contravene Congress’ avowed desire that IGRA grant states “a subordinate but significant role in regulating tribal gaming.” Texas v. United States, 497 F.3d at
In the end, IGRA is not perfect, because it is incapable of forcing states and tribes to agree on procedures to govern Class III gaming on tribal lands. The lucrative nature of the gaming business, however, means that “[tjhere’s a whole lot of [agree-in’] goin’ on [out there].” Guys ‘n’ Dolls, There’s a Whole Lot of Loving, Ariola Records 1975. Indeed, even without the ability to subject recalcitrant states to suit for bad faith negotiations, most tribes are reaching mutually beneficial state-tribal agreements. Pojoaque Pueblo, intent on reaching an agreement with more favorable terms .than those to which the other New Mexicp Pueblos and Tribes have agreed, presents the lone exception in the state. That Pojoaque Pueblo’s “choices under IGRA are constrained to its detriment does not,” however, “render the entirety of IGRA ‘incapable of functioning independently* from its jurisdiction-granting clause.” New Mexico v. Dep’t of Interior,
B. THE DEFENDANTS DID NOT VIOLATE POJOAQUE PUEBLO’S RIGHTS UNDER THE SUPREMACY CLAUSE.
Pojoaque Pueblo contends that the Court erred in the Stay MOO in its conclusion that the Defendants did not violate Pojoaque Pueblo’s rights under the Supremacy Clause. See Motion to Stay MOO at 16-17. The Court, Pojoaque Pueblo asserts, incorrectly reads the Complaint’s Count II as being “based on the Supremacy Clause rather than on the Court’s inherent equitable jurisdiction.” Motion to Stay MOO at 16-17 (citing Stay MOO at 121). Pojoaque Pueblo argues that Count II, rather, is based on the Court’s “inherent jurisdiction to hear claims for violation of the Supremacy Clause .... ” Motion to Stay MOO at 17 (quoting Complaint ¶ 10, at 5)(internal quotation marks omitted). Pojoaque Pueblo further asserts that Count II requests “prospective equitable relief as may be just and equitable, including ancillary, relief.” Motion to Stay MOO at 17 (quoting Complaint ¶ K, at 39)(em-
The Supremacy Clause provides that the laws of the United States “shall be the Supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Thus, state laws that “ ‘interfere with, or are contrary to,’ federal law” are invalid. Hillsborough Cnty. v. Automated Med. Labs., Inc.,
Despite this limitation, Pojoaque Pueblo contends that Count II states a cognizable claim under Armstrong v. Exceptional Child Ctr., Inc. and Tohono O’odham Nation v. Ducey. See Motion to Stay MOO at 17. In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court observed that, although the Supremacy Clause does not create a private right of action, “if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted.”
Pojoaque Pueblo is correct that an equitable cause of action asserting preemption of state law states a cognizable claim. See Armstrong v. Exceptional Child Ctr., Inc.,
First, Count II is explicitly “based on the Supremacy Clause.” Complaint ¶ 133, at 34 (emphasis added). Count II alleges that the Defendants violated Pojoaque Pueblo’s “right, based on the Supremacy Clause to engage in activity on the Pueblo’s Indian lands in a manner that is free from state interference .... ” Complaint ¶ 133, at 34. Aside from being entitled “Declaratory and Injunctive Relief,” Count II never mentions the Court’s equitable jurisdiction. Complaint ¶¶ 132-34, at 33-34. Pojoaque Pueblo thus lacks a sound basis
Second, Count II fails regardless, because the Court concludes that IGRA does not preempt the Gaming Board’s regulatory enforcement actions. See Armstrong v. Exceptional Child Ctr., Inc.,
C. THE DEFENDANTS DID NOT VIOLATE POJOAQUE PUEBLO’S RIGHTS UNDER 42 U.S.C. §§ 1983 and 1985.
Pojoaque Pueblo asserts that the Court in the Stay MOO improperly dismissed Counts III and IV, which allege violations of Pojoaque Pueblo’s rights pursuant to 42 U.S.C. §§ 1983 and 1985, see Complaint ¶¶ 138-40, at 35 (Count III); id. ¶143-51, at 35-37 (Count IV), based on a misperception that “the Complaint does not allege class-based discriminatory animus,” Motion to Stay MOO at 17. Pojoaque Pueblo contends that “[t]he entirety of this lawsuit is about the Defendants’ deprival of the Pueblo’s rights flowing from their status as an Indian Tribe and individual Indians.” Motion to Stay MOO at 17. These arguments, it appears, are directed at the Court’s analysis of Pojoaque Pueblo’s allegations under § 1985, which, as the Court noted in the Stay MOO, requires evidence of racially discriminatory animus. See Stay MOO at 125-26. Section 1983 does not require evidence of racial animus. See Stay MOO at 123-25. The Court reviews the sufficiency of the Complaint’s § 1983 allegations under and then reviews the Complaint’s § 1985 allegations.
1. Pojoaque Pueblo’s Allegations Under § 1983 Fail to State a Claim.
Section 1983 “imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution and laws.” Blessing v. Freestone,
Here, Counts III and IV identify no cognizable federal statutory or constitutional rights that the Defendants violated. See Complaint ¶¶ 138-51, at 35-37. Count III alleges that the Defendants are “wrongfully asserting State jurisdiction over gaming activities on the Pueblo’s Indian lands.” Complaint ¶ 138, at 35. Count IV alleges that the Defendants violated Pojoaque Pueblo’s “federal right to engage in conduct free from the jurisdiction of the state.” Complaint ¶ 145, at 36. To the extent that these claims can be read to assert a violation of a “right, based on the Supremacy Clause,” Complaint ¶ 133, at 34, that argument is unavailing, because the Supremacy Clause “ ‘is not a source of any federal rights,’ ” Golden State Transit Corp. v. Los Angeles,
Even assuming, however, that IGRA preempts the Defendants’ actions, Poj-oaque Pueblo does not identify a federal right that is cognizable under § 1983. The Supreme Court has held that a plaintiff seeking redress pursuant to § 1983 “must assert a violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone,
2. Pojoaque Pueblo’s Allegations Under § 1985 Fail to State a Claim.
Section 1985(3)
Pojoaque Pueblo alleges that the Defendants conspired to “force the Pueblo to acquiesce to the [sic] Governor Martinez’ demands that the Pueblo execute a compact that contains terms that are illegal and not the product of good faith negotiation under IGRA.” Complaint ¶ 81, at 24. Pojoaque Pueblo does not allege, however, that the conspiracy involved any racial or class-based “invidiously discriminatory animus.” Bray v. Alexandria Women’s Health Clinic,
IV. PRUDENTIAL FACTORS DO NOT SUPPORT A STAY PENDING APPEAL.
The Court’s discussion, supra Part III, holds that the Defendants’ regulatory enforcement actions against non-Indian, state-licensed gaming‘vendors do not violate Pojoaque Pueblo’s federal rights. First, the Defendants’ actions do not violate Pojoaque Pueblo’s IGRA rights, because IGRA does not preempt states’ off-reservation regulatory actions against non-Indian third parties. Second, the Defendants’ actions do not violate Pojoaque Puéblo’s rights pursuant to the Supremacy Clause, because the Supremacy Clause is not a source of federal right's and because, regardless, there is no federal/state law conflict that requires the Court to determine whether federal law is supreme. Third, the Defendants’ actions do not violate Pojoaque Pueblo’s rights under 42 U.S.C. § 1983, because there is no identifiable unambiguous right—pursuant to IGRA or otherwise—that the Defendants violated. Fourth, and finally, the Defendants’ actions do not violate, Pojoaque Pueblo’s rights under 42 U.S.C. § 1985(3), because there is no evidence that any racial or, class-based invidiously discriminatory animus motivated the Defendant?’ actions. Accordingly, Pojoaque Pueblo has
“A stay is an ‘intrusion into the ordinary processes of administration and judicial review,’ ” Nken v. Holder,
Nevertheless, the Court will review Poj-oaque Pueblo’s arguments concerning the remaining prudential factors required for a stay pending appeal. In addition to a “strong” likelihood of success on the merits, a stay pending appeal requires that a court consider (i) whether the applicant will be irreparably injured without a stay; (ii) whether a stay will “substantially injure the other parties interested in the proceeding”; and (iii) “where the public interest lies.” Nken v. Holder,
A. POJOAQUE PUEBLO HAS NOT DEMONSTRATED THAT IT WILL BE IRREPARABLY INJURED ABSENT A STAY.
An applicant for a stay pending appeal “must meet á heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal.” Nken v. Holder,
Pojoaque Pueblo’s first argument is that “significant interference with tribal self-governance satisfies the irreparable harm criteria for preliminary injunc-tive relief and should similarly satisfy the same criteria for stay pending appeal.” Motion to Stay MOO at 19. Pojoaque Pueblo cites several cases which, in its view, stand for the proposition that state regulation of activities on Indian lands irreparably harms tribal sovereignty and self-governance. See Motion to Stay MOO at 19-20. This argument is unpersuasive, however, because the Court has already concluded that the Defendants’ off-reservation regulation of non-Indian third parties does not amount to a regulation of Pojoaque Pueblo, much less a “significant interference” with Pojoaque Pueblo’s governance or sovereignty. Motion to Stay MOO at 19. Pojoaque Pueblo appeals, second, to Judge Brack’s irreparable harm finding in the PI MOO, asserting that the Stay MOO does not disturb that finding. See Motion to Stay MOO at 20-21. This argument, too, is unpersuasive. “A preliminary injunction, of course, is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v. Phx, Software, Inc.,
Nevertheless, Pojoaque Pueblo avers that failure to reinstate the effects of Judge Brack’s PI makes it “extremely likely that the Defendants will take action against the licensees,” which, in turn “would likely cause vendors to cease business with the Pueblo.” Motion to Stay MOO at 21. There is indeed evidence that the Gaming Board’s past enforcement actions against state vendor licensees discouraged those vendors from doing busi
■ Pojoaque Pueblo primarily argues that, should its vendors cut business ties in response to the Gaming Board’s enforcement actions, it will be unable to enter into contracts for new games and machines, which, in turn, will (i) deter customers who perceive that Pojoaque Pueblo’s games are “old and outdated”; and (ii) cause Poj-oaque Pueblo’s operations to “immediately lose 17% of their current revenue from an inability to support existing games;” Motion to Stay MOO at 22. Ultimately, Poj-oaque Pueblo asserts, “[ajbsent the continued business of its contracted vendors, the Pueblo would be forced to cease operations.” Motion to Stay MOO at 21. These harms, although significant, are not likely to occur pending appeal for several reasons.
, First, it is unclear how, in the months that may transpire before the Tenth Circuit resolves Pojoaque Pueblo’s appeal of the Stay MOO, Pojoaque Pueblo’s games will become, so noticeably “old and outdated” that customers will choose to play at competing casinos. Motion to Stay MOO at 22. The evidence does not suggest that Pojoaque Pueblo updates and replaces its games with such frequency that customers, accustomed to a rapidly-changing gaming floor, would notice an absence of such updates and replacements after a few months. Pojoaque Pueblo asserts that it operates “more than 1,800 gaming machines” at its casinos and obtains an average of “18 machines per month through the purchase, lease, conversion, or replacement of products and machines.” Allgeier Decl. ¶ 23, at 7. Assuming, therefore, that Gaming Board actions would result in Poj-oaque Pueblo losing thirteen machines each month, that loss would affect only 0.72 percent of Pojoaque Pueblo’s gaming floor—unlikely a noticeable loss to the average customer. Extrapolating this calculation to account for the Tenth Circuit’s resolution of Pojoaque Pueblo’s appeal does not make the loss significantly more noticeable. The Tenth Circuit’s average is 6.7 months from the filing of a notice of appeal to the disposition of an appeal. See Federal Court Management Statistics, U.S. Court of Appeals—Judicial Caseload Profile: Tenth Circuit at 24 (reporting period: September 30, 2015, to September 30, 2016), available at http://www.uscourts. gov/statistics-reports/federal-eourt-management-statistics-september-2016. If Pojoaque Pueblo lost thirteen machines each month for 6.7 months, it would lose roughly 87 machines, or 4.8 percent of its total gaming floor. Pojoaque Pueblo has not introduced evidence—such as customer surveys—indicating that a 4.8 percent loss would be the tipping point for customer flight. Regardless, even if customers noticed a lapse in updates, it is not likely that they will migrate en masse to competing casinos when Pojoaque Pueblo’s machines are virtually up-to-date. Again, Pojoaque Pueblo has not proffered evidence of customer preferences that would suggest that average customers would be deterred by somewhat dated gaming offerings. Finally, a lack of machine/software updates would not deter customers who are attracted to
Second, the evidence does not support Pojoaque Pueblo’s assertion that it will “immediately lose 17% of [its] current revenue from an inability to support existing games.” Motion to Stay MOO at 22. Poj-oaque Pueblo bases this assertion on All-geier’s September 25, 2015, Declaration, in which he states that, as Pojoaque Pueblo’s contracts with vendors that “account for 6% of the games at the Pueblo Casinos and 11% of the Pueblo Casinos’ revenue” expire, “the Pueblo Casinos will lose an estimated $7,000,000 in revenue from the loss of games that cannot be replaced with new games.”
Pojoaque Pueblo’s calculation regarding its expected seventeen percent revenue loss, further, has questionable utility, because it was made in 2015 before Judge Brack issued the PI. See Allgeier Decl. at 15 (indicating a September 25, 2015, execution date). Indeed, virtually all of Pojoaque Pueblo’s irreparable harm arguments are based on evidence that pre-dates Judge Brack’s PI. See Motion to Stay MOO at 18-25 (relying primarily on Allgeier Decl. and on Declaration of Joseph M. Talachy (executed September 25, 2015), filed September 25, 2015 (Doc. 23-l)(“Talachy Deck”)). Intervening events—such as the issuance of the PI and the Court’s suspension of the PI in the Stay MOO—suggest that the Court should treat these argu-
Pojoaque Pueblo’s assertion that it will ultimately be “forced to cease operations,” Motion to Stay MOO at 21, is unavailing for similar reasons. The Defendants aptly note that the primary harm upon which Pojoaque Pueblo relied when it moved for a PI—an inability to upgrade its casino management system—is moot, because Pojoaque Pueblo performed the necessary upgrade in March 2016. See Motion to Stay MOO Response at 11. Pojoaque Pueblo’s proffered evidence in favor of a PI indeed rested, in large part, on the assertion that, when “the current CMS needs parts or service and cannot be maintained, the Pueblo Casinos would close.” Allgeier Deck ¶ 33, at 10. Pojoaque Pueblo reasoned that its system “is antiquated, manufacturers no longer provide needed support to the outdated software and hardware, .and the marketing modules and player bonusing programs are ineffective,” Allgeier Deck ¶8, at 3. It follows, then, that Pojoaque Pueblo’s March 2016 upgrade resolved this concern. Nevertheless, Pojoaque Pueblo maintains that system failure remains likely, because “further and continuous upgrades are always required.” Motion to Stay MOO Reply at 7. Indeed, according to Pojoaque Pueblo, in the event that “the vendor providing the system [ ] cease[s] doing business with the Pueblo ..., the system could quickly become outdated or inoperative, and the substantial resources invested in the system would be lost.” Motion to Stay MOO Reply at 7 (citing Declaration of Michael Allgeier (executed October 25, 2016) ¶ 11, at 4, filed October 26, 2016 (Doc. 131-l)(“Second All-geier Deck”)).
Despite these assertions, the evidence does not suggest that system failure is likely to occur pending Pojoaque Pueblo’s appeal. First, it is notable that Pojoaque Pueblo began negotiating with vendors for a new casino management system in May 2013, see Allgeier Deck ¶ 7, at 3, and that it did not receive an upgrade until March 2016, see Second Allgeier Deck ¶ 5, at 2. Thus, despite its “antiquated,” “outdated,” and “ineffective” system, Allgeier Deck ¶ 8, at 3, Pojoaque Pueblo successfully maintained its operations for three years without suffering a catastrophic system failure. It is unclear why Pojoaque Pueblo’s newly-upgraded system would fail in a much shorter timeframe, especially when there is no evidence that the new system is deficient. Indeed, other regional casinos’ experience with the same management system contradicts the suggestion that Pojoaque Pueblo’s system will rapidly fail. The Downs casino in Albuquerque, New Mexico, for example, has had “only four patches/updates to improve functionality” in the more than three years that it has used that system. Suppl. Brief Response at 9-10 (citing Roybal Deck ¶¶ 2-4, at 1). See Suppl. Brief Motion Reply at 10-12 (not disputing this assertion). Accordingly, Poj-oaque Pueblo’s past experience, as well as that of other casinos, indicates that system failure is unlikely.
Second, Pojoaque Pueblo proffers no evidence that system failure is imminent— only evidence that system failure might occur at some point. In his Second Declaration, for example, Allgeier contends that, “[i]f Scientific Games stopped providing service and support to the new Bally CMS, the Pueblo Casinos would stop receiving necessary updates and the CMS would eventually become inoperative.” Second Allgeier Deck ¶ 12, at 4 (emphasis added). At the hearing, Allgeier added that total system failure “could happen at any time” and that, “periodically, it does happen.” Motion to Stay MOO Tr. at 65:12-16 (Fri-as, Allgeier). The Court does not dispute
It is unlikely, moreover, that software failure would cause Pojoaque Pueblo’ casinos to shut down—at least not immediately. Partial software failure, first, would not cripple Pojoaque Pueblo’s operations. At the Motion to Stay MOO hearing, Allgeier stated that, in the event that individual games “go down[,] that would be fine, we could still operate the rest of them.” Motion to Stay MOO Tr. at 71:11-13 (Allgeier). Indeed, Allgeier admitted that, although Pojoaque Pueblo’s individual games have software problems “[sjometimes ... four or five or 10” times a month, Poj-oaque Pueblo would “continue to offer gaming until officially it came up where we couldn’t offer it because the [management] system went down.” Motion to Stay MOO Tr. at 69:6-9, 69:25-70:3 (Allgeier). With respect to that system, the Court pressed Allgeier to explain why a lack of upgrades or a partial system failure would cause the entire system to be unusable and why Pojoaque Pueblo could not “go a long time with the software that [it] had.” Motion to Stay MOO Tr. at 70:9-24 (Court). Allgeier responded that, in the event that the system’s accounting functions fail, operations would shut down, because Pojoaque Pueblo would not be able to “accurately calculate [] win/loss.” Motion to Stay MOO Tr. at 71:3-7 (Allgeier). This assertion is unpersuasive, however, because there are alternative methods to calculate win/loss. For example, Pojoaque Pueblo could “utilize the meters within its slot machines to determine the amount of coin-in and jackpots paid out by each machine.” Suppl. Brief Response at 10 (citing Roybal Decl. ¶¶ 5-6, at l-2)(explaining that the Downs would use this method if its system failed). This solution is not, of course, a permanent one—indeed, Pojoaque Pueblo notes that it would be inefficient and costly. See Suppl. Brief Reply at 11-12. Nevertheless, this method would mitigate the effects of accounting software failure.
Ultimately, Pojoaque Pueblo’s irreparable-injury analysis glosses over the issue whether software failure is likely to occur and—assuming it is—focuses on the harms that would flow from such failure. See Motion' to Stay MOO at 18-25; Motion to Stay MOO Reply at 7-9. Proceeding from the assumption it would be “forced to cease operations,” Pojoaque Pueblo asserts that
[cjlosure of the Pueblo’s gaming operations would cause measurable, immediate and irreparable harm, including layoffs at both gaming and other commercial enterprises, as well as reductions in governmental services. See [Talachy Deck] ¶4[, at 2]. The result would cripple the Pueblo’s governmental operations and its economy. However, not only would the Pueblo be affected. The Pojoaque Valley’s entire regional economy as well as greater northern New Mexico would be devastated.
Motion to Stay MOO at 22. These harms are substantial; yet, without evidence that it is likely that Pojoaque Pueblo will suffer
B. THE HARM-TO-THE-OPPOSING-PARTY AND PUBLIC-INTEREST FACTORS WEIGH IN THE DEFENDANTS’ FAVOR.
The final two factors—the harm to the opposing party and the public interest—generally “merge when the Government is the opposing party.” Nken v. Holder,
1. New Mexico Will be Injured by a Stay.
The Defendants contend that a reinstatement of the Pi’s effects would harm New Mexico’s sovereign interest in enforcing its gaming laws. See Motion to Stay MOO Response at 13. The Tenth Circuit has indeed held that a state’s “ability ... to enact and enforce measures it deems to be in the public interest is [ ] an equity to be considered in balancing hardships.” Heideman v. S. Salt Lake City,
Pojoaque Pueblo objects that this reasoning “all but ignores the equally sovereign interests of the Pueblo.” Motion to Stay MOO Reply at 9. According to Poj-oaque Pueblo, “any claimed and temporary hardship on the part of the State must be balanced against the Pueblo’s hardship in losing its sovereign right to conduct gaming within the boundaries of the Pueblo.” Motion to Stay MOO Reply at 10. Poj-oaque Pueblo relies on Wyandotte Nation v. Sebelius, where the Tenth Circuit held that Kansas’ interest in applying its laws to the Wyandotte Nation’s Indian lands was “minimal at best whereas the harm to
These arguments are unavailing in light of the Court’s likelihood-of-success and irreparable-injury analysis, supra. The Gaming Board’s off-reservation regulatory actions do not yet interfere—and certainly not directly—with “the Pueblo’s ... sovereign right to conduct gaming within the boundaries of the Pueblo.” Motion to Stay MOO Reply at 10. Rather, the Gaming Board’s off-reservation regulation of third-party, non-Indian state licensees leaves intact Pojoaque Pueblo’s sovereign authority over gaming on its tribal lands. Wyandotte Nation v. Sebelius is thus inapposite, because this case does not involve the application of state law to Indian lands. In Wyandotte Nation v. Sebelius, Kansas “bypass[ed] the federal court system” and sent armed officials to storm, and seize files and proceeds from, a casino that the Wyandotte Nation operated on its Indian lands, which Kansas believed was operating in violation of state laws. See
The harm-to-the-opposing-party factor, moreover, doés not turn on whether Poj-oaque Pueblo will be injured absent a stay; it simply requires that the Court inquire “whether issuance of the stay will substantially injure the other parties interested in the proceeding.” Nken v. Holder,
2. Granting a Stay is Not in the Public Interest.
The Court must inquire, finally, “where the public interest lies.” Nken v. Holder,
Pojoaque Pueblo correctly notes that IGRA’s express 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.” Motion to Stay MOO Reply at 11 (quoting 25 U.S.C. § 2702(l))(internal quotation marks omitted). IGRA thus enshrines Congress’ judgment that the public interest is served by tribes’ lawful gaming operations—it is their primary revenue source, and the public has an interest that tribal governments are sufficiently funded. See Sac & Fox Nation v. LaFaver,
Nevertheless, while IGRA enshrines a public interest in tribes’ ability to generate revenue via gaming operations, it also expressly requires that such operations be conducted in accordance with a state-tribal compact. See 25 U.S.C. § 2710(d)(1)(C) (“Class III gaming activities shall be lawful on Indian lands only if ... (C) conducted in conformance with a Tribal-State compact .... ”). Thus, with IGRA, Congress decided that the public interest in tribal gaming is best served by requiring a collaborative compacting process with the state. As the statute’s legislative history provides, IGRA “does not contemplate and does not provide for the conduct of class III gaming activities on Indian lands in the absence of a tribal-State compact.” S. Rep No. 100-446, at 6. Accordingly, to hold that the public interest favors Pojoaque Pueblo would ignore Congress’ judgment that tribes’ ability to generate revenue via Class III gaming is dependent upon the existence of a state-tribal compact, because the public also has an interest that gaming operations are compliant with all applicable regulations. In short, under IGRA, the public interest favors the Defendants, because Congress did not intend for Indian tribes to generate revenue from Class III gaming operations without first negotiating a state-tribal compact. See 25 U.S.C. § 2710(d)(1).
IT IS ORDERED that: (i) the Plaintiffs’ Motion to Stay the Order and Restore the Preliminary Injunction Pending Appeal, filed October 4, 2016 (Doc. 123), is denied; (ii) the Plaintiffs’ Motion for Leave to File Supplemental Brief, filed November 2, 2016 (Doc. 140), is granted; and (iii) the request in the Defendants’ Response to Plaintiffs’ Motion for Leave to File Supplemental Brief, filed November 21, 2016 (Doc. 141), that the Court allow the Defendants to file a response to Poj-oaque Pueblo’s Supplemental Brief, is granted.
Notes
. As the Court will explain more fully infra, IGRA, 25 U.S.C. §§ 2701-2721, “divides gaming on Indian lands into three classes—I, II, and III—and provides a different regulatory scheme for each class.” Seminole Tribe of Fla. v. Florida,
. ' Terrence "Mitch” Bailey is the Executive Director of Gaming Operations at Pojoaque Pueblo’s gaming enterprises at Buffalo Thunder Resort & Casino and Cities of Gold Hotel & Casino. Bailey Decl. ¶ 1, at 1. Bailey is not a party to tins action.
. Pojoaque Pueblo’s Motion to Stay MOO cites the Declaration of Scott D. Crowell (executed March 29, 2016), filed March 29, 2016 (Doc. 111-1), in support of this argument. The Court’s review of that Declaration, however, reveals nothing related to Free Speech. Instead, it appears that Pojoaque Pueblo intends to cite to the Declaration that the Court cites in the text, which discusses the briefings in Free Speech. See Declaration of Scott D. Cro-well ¶ 5, at 2 (executed March 21, 2016), filed March 21, 2016 (Doc. 109-1).
. The Defendants originally argued that Poj-oaque Pueblo is doing business with all ten Class II gaming vendors. See Motion to Stay MOO Response at 11 (citing Declaration of Jeffrey S. Landers ¶¶ 3-7, at 1-2 (executed October 18, 2016), filed October 21, 2016 (Doc. 129-2)(“Landers Decl.”). The Defendants subsequently filed an Amended Response, however, clarifying that Pojoaque Pueblo is "currently doing business with three of the ten manufacturers for Class II gaming machines.” Defendants' Amended Response to Pueblo’s Motion to Stay the Order and Restore the Preliminary Injunction Pending Appeal at 11, filed October 21, 2016 (Doc. 130)(citing Landers Decl. ¶¶ 3-7, at 1-2),
. Morgan, Lewis & Bockius is a law firm and ' not an accounting firm. See Morgan Lewis, About Us (last visited January 13, 2017), https://www.morganlewis.com/our-firm/ about-us.
. The letter opens by stating that "[t]he United States does not take any position here on whether the court's preemption analysis was correct, but its reasoning illustrates what is at stake in this appeal.” U.S. Letter Re: Stay MOO at 1. Pojoaque Pueblo notably omits this portion of the letter. See Suppl. Brief at 9.
. The Court's citations to the hearing’s transcript refer to the court reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. The Tenth Circuit in Dine affirmed the Court’s conclusion in Diné Citizens Against Ruining Our Env't v. Jewell,
the proper standard applicable to the substantial-likelihood-of-success prong is that the movant must (i) carry the burden of production, ie., he or she must present a prima facie case; and (ii) make it reasonably likely—beyond just being ‘not unreasonable’—that the factfinder would actually find for the movant, he., that the movant would satisfy the burden of persuasion.
. Non-banked card games are "games in which the participants play against only each other; the host facility (the ‘house’) has no stake in the outcome.” Fla. House of Representatives v. Crist,
, IGRA established the National Indian Gaming Commission as an agency within the Department of the Interior. See 25 U.S.C. § 2704(a). The Commission has the authority to enforce the collection of civil fines, to investigate and audit Indian gaming, and to "promulgate such regulations and guidelines as it deems appropriate to implement [IGRA’s] provisions.” 25 U.S.C. § 2706.
. The Tenth Circuit's articulation of the interlocutory injunction appeal exception to divestiture heavily relies upon Wright & Miller's discussion of that exception. See Free Speech,
Interlocutory injunction appeals would come at high cost if the trial court were required to suspend proceedings pending disposition of the appeal. The delay and disruption alone would be costly. As importantly, cases involving injunctive relief are apt to present an urgent need for action. An injunction can seriously disrupt the affairs of those bound by it. Denial of an injunction can destroy the capacity to grant effective relief after trial. Continuing trial court proceedings, moreover, often pose little threat to orderly disposition of the appeal; ordinarily the scope of the appeal will be limited to consideration of the preliminary injunction decision itself, despite the power to reach out to other matters
Wright & Miller § 3921.2, at 58 (footnote omitted). Wright & Miller further distinguish PI orders from permanent injunction orders, noting that "interlocutory appeals from permanent injunction orders come closer to final judgment appeals.” Wright & Miller § 3921.2, at 58-59.
Wright & Miller note that “[t]he desirability of prompt trial-court, action in injunction cases justifies trial-court consideration even of issues that may be open in the court of appeals,” Wright & Miller § 3921.2, at 60. Wright & Miller note, for example, that, in the context of a motion to .dismiss for. failure to state a claim, "[tjhe court of appeals may determine whether a claim has been stated as part of the interlocutory appeal. District courts, however, have exercised the power to dismiss for failure to state a claim pending appeal.” Wright & Miller § 3921.2, at 60 (footnotes omitted). Such action is "desirable,” Wright & Miller assert, "both in the interest of expeditious disposition and in the face of uncertainty as to the extent to which the court of appeals will exercise its power.” Wright & Miller § 3921.2, at 60.
. The Tenth Circuit's decision in Free Speech is also not anomalous in light of Supreme Court precedent and prevailing case law in other Circuits. Wright & Miller note that the Supreme Court “clearly established” a district court’s authority to proceed toward a decision on the merits notwithstanding an interlocutory injunction appeal in 1906. Wright & Miller § 3921, at 59 (citing Ex parte Nat'l Enameling & Stamping Co.,
. The third edition of Moore's Federal Practice provides:
If an appeal is taken from a judgment that does not finally determine the entire action, the appeal does not prevent the district court from proceeding with matters not involved in the appeal. The filing of a timely and effective notice of appeal divests the district court of jurisdiction only with respect to the judgment brought up for review by the appeal. As an example, an appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits. Similarly, an appeal from an order that is appealable by virtue of certification under Rule 54(b) does not prevent the district court from proceeding with the remaining claims.
. The Court has no quarrel with Stewart v. Donges. It is well-established that qualified immunity gives "government officials a right, not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery.” Behrens v. Pelletier,
. Pojoaque Pueblo's proposed alterations to the remedial provisions in § 2710(d)(7) are reflected in the following modified version of the statute. The strikethrough text reflects the portions of the statute that Pojoaque Pueblo asks the Court to sever:
(A) The United States district courts shall have jurisdiction over—
(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith,
(ii) any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under paragraph (3) that is in effect, and
(iii) any cause of action initiated by the Secretary to enforce the procedures prescribed under subparagraph (B)(vii).
(B)
(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the Indian tribe requested the State to enter into negotiations under paragraph (3)(A).
(ii) In any action described in subpara-graph (A)(i), upon the introduction of evidence by an Indian tribe that—
(I) a Tribal-State compact has not been entered into under paragraph (3), and
(II) the State did not respond to the request of the Indian tribe to negotiate such a compact or did not respond to such request in good faith,
the burden of proof shall be upon the State to prove that the State has negotiated with tire Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities.
(iii) If, in any action described in subpar-agraph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact governing the conduct of gaming activities, the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period. In determining in such an action whether a State has negotiated in good faith, the court—
(I) may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities, and
(II) shall consider any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith.
(iv) If a State and an Indian tribe fail to conclude a Tribal-State compact governing the conduct of gaming activities on the Indian lands subject to the jurisdiction of such Indian tribe within the 60-day period provided in the order of a court issued under clause (iii), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court.
(v) The mediator appointed by the court under clause (iv) shall submit to the State and the Indian tribe the compact selected by the mediator under clause (iv).
(vi) If a State consents to a proposed compact during the 60-day period beginning on the date on which the proposed compact is submitted by the mediator to the State under clause (v), the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3).
(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures—
(I) which are consistent with the proposed compact selected by the mediator under clause
Motion to Stay PI Response at 13-14 (quoting 25 U.S.C. § 2710(d)(7)).
. Pojoaque Pueblo’s proposed alterations to § 2710(d)(6) are reflected in the following modified version of the statute. The striketh-rough text reflects the portions of the statute that Pojoaque Pueblo asks the Court to sever:
(6) The provisions of section 1175 of title 15 shall not apply to any . gaming conducted under a Tribal-State compact that—.
(A) is entered into under paragraph (3) by a State in which gambling devices aré legal, and
(B) is in effect. ■ •
Motion to Stay PI Response at 15 (quoting 25 U.S.C. § 2710(d)(6)).
. The United States has appealed Judge Parker’s invalidation of the regulations in 25 C.F.R. Part 291, and that litigation is ongoing. See New Mexico v. Dep’t of Interior, 14-2222. The Court anticipates that the Tenth Circuit will affirm Judge Parker’s judgment in New Mexico’s favor. The Court accordingly sees no sound' reason to modify IGRA before the Tenth Circuit resolves that appeal and determines the legality of the regulations in 25 C.F.R. Part 291.
. The Complaint does not identify the subsection of § 1985 upon which Counts III and IV are based. See Complaint ¶¶ 135-51, at , 34-37. Two subsections are plainly inapplicable, however. Subsection (1) prohibits conspiracies to interfere with federal officers’ performance of their duties, while subsection (2) prohibits conspiracies to obstruct justice or intimidate a party, witness, or juror. See 42 U.S.C. § 1985(1), (2).
. The Allgeier Declaration asserts that Poj-oaque Pueblo "will immediately lose 17% of [its] current revenue," Allgeier Decl. ¶ 33, at 10. Allgeier does not break down this calculation. See Allgeier Decl. ¶ 33, at 10. The Court’s review of the evidence suggests that Allegeier must have reached this calculation by combining his estimate that Pojoaque Pueblo will lose “6% of the games” with his estimate that it will lose “11% of the ... revenue.” Allgeier Decl, ¶ 28, at 9. The Court notes that “6% of the games” is a different metric than "11% of the Pueblo Casinos’ revenue”; these dissimilar metrics do not necessarily combine for a 17% revenue loss. A more likely reading of these data is that the 6% of the games at Pojoaque Pueblo that would be affected generate "11% of the Pueblo Casinos’ revenue.” Allgeier Decl. ¶ 33, at 10. Thus, the expiration of these contracts would result in an 11% revenue loss and not a 17% loss, as Pojoaque Pueblo asserts. Nevertheless, the Court will assume the validity of Pojoaque Pueblo's 17% assertion, because, in the Court’s estimation, such loss is not likely to "immediately” occur.-