ORDER
Plaintiff Tohono O’odham Nation (the “Nation”) is currently constructing a major casino on land purchased in 2003 near Glendale, Arizona. In May 2013, this Court ruled that the 2002 Gaming Compact between the State of Arizona and the'Nation did not prohibit construction of another casino in the Phoenix metropolitan area, and the Nation elected to begin construction of the casino even though that ruling is on appeal. As construction has progressed, -the State and its officials have refused to certify vendors and employees to work at the casino. In response, the Nation brings this action for declaratory and injunctive relief to prohibit the State from continuing to bar the casino’s progress. Before the Court is the Nation’s motion for preliminary injunction (Ddc. 3), Defendants Douglas Ducey and Mark Brnovich’s joint motion to dismiss (Doc. 49), and Defendant Daniel Bergin’s motion to dismiss (Doc. 50). The Court heard oral argument on September 10, 2015. For the reasons set forth below, the Court will deny the Nation’s motion for preliminary injunction, grant Ducey and Brnovich’s motion to dis
I. Background.
A.The Indian Gaming Regulatory Act.
In California v. Cabazon Band of Mission Indians,
IGRA divides gaming into three classes: Class I, which includes social games with prizes of minimum value and traditional forms of Indian gaming; Class II, which includes bingo and certain card games; and Class III, which includes all gaming that falls outside of Classes I and II, typically referred to as “casino-style” gaming. 25 U.S.C. § 2703(7)(A), (7)(B), (8). Under IGRA, “Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribest.]” Id. § 2710(a)(1). Class' II gaming is also “within the jurisdiction of the Indian tribes,” but subject to some federal regulation. Id. § 2710(a)(2). Class III gaming is permitted if it is authorized by a tribal ordinance, conducted in a state that permits such gaming, and “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State[J” Id. § -2710(d)(1).
B. Arizona Department of Gaming.
To carry out the state regulation ‘ allowed by IGRA, Arizona created the Arizona Department of Gaming (“ADG”). See A.R.S. § 5-604(A). ADG is managed by a governor-appointed director, Defendant Daniel Bergin. ADG is tasked with “certify [ing], as provided in tribal-state compacts, prospective gaming employees, facility support employees, tribal gaming office employees, financiers, management contractors, providers of gaming services and manufacturers and distributors of gaming devices to ensure that unsuitable individuals or companies are not involved in [gaming].” Id. § 5-602(A). ADG is also charged with promoting “the public welfare and public safety” and seeking “to prevent corrupt influences from infiltrating Indian gaming.” Id.
C. The Compact.
On January 24, 2003, the Secretary of the Interior approved a tribal-state compact between the Nation and Arizona (the “Compact”). Doc. 1, ¶ 49. The Compact permits the Nation to operate four gaming facilities and provides that it does'not apply to Class I or Class’ II gaming. Id., ¶¶ 41, 51. The Compact requires prospective gaming employees, contractors, and vendors to obtain certification from ADG. Specifically, it provides that. ADG “shall conduct the necessary background investigation to ensure the Applicant is qualified for State Certification.” Doc. 1-3 at 4.
After the Compact was executed, the Nation purchased unincorporated land in Glendale, Arizona, located just west of Phoenix. Several years later, in 2009, the Nation announced plans to use the land for a Class III gaming facility to be known as the West Valley Resort. Doc. 1, ¶ 64. The State of Arizona filed suit in this Court, arguing that gaming on the Glendale land was not authorized by IGRA and violated the Compact’s ban on additional casinos in the Phoenix area. The State also asserted that the Nation committed fraud by agreeing with the State and' the voters that there would be no more casinos in the Phoenix area, while secretly planning to acquire land and open the West Valley Resort. See Arizona v. Tohono O’odham Nation,
D. The Present Dispute.
The Nation began construction of the West Valley Resort in December 2014. The building currently under construction will serve as an interim facility until construction of the entire resort takes place in the future. Doc. 62-2 at 240. On February 2, 2015, Defendant Bergin expressed concern to the Nation that the casino was “not authorized, and, as a consequence,... ADG would not have the authority to participate in any certification or approval processes relating to the opening or Operation of the casino.” Doc. 1, ¶ 75. On April 10, 2015, Bergin informed the Nation that “ADG lacks statutory authority to approve [the Nation’s] Glendale casino notwithstanding [the Court’s earlier decision].” Doc. 1-5 at 2. Bergin expressed a belief that the Nation committed fraud during the formation of the Compact and that the fraud “nullified] any right that [the Nation] would otherwise have under the compact to build the Glendale casino.” Id. Hé referenced A.R.S. § 5-602(C), which “requires ADG to execute the State’s duties under tribal-state compacts ‘in a manner that is consistent with this state’s desire to have extensive, thorough and fair regulation of Indian gaming permitted under the tribal-state compacts.’ ” Id. at 3 (quoting § 5-602(C) (emphasis in Bergin letter)). Bergin stated that “the record created in [the. prior litigation] includes credible and largely unrefuted evidence that, [the Nation] engaged in deceptive behavior -and made significant misrepresentations during the compact negotiationsf.]” Id. at 3-4. He concluded that ADG would “exceed its authority if it were to proceed with any certification or approval processes relating to the opening or operation” of the casino, and noted that the casino does not qualify as “Indian gaming permitted under the Tribal-State compact.” Id.
In May 2015, ADG issued a new notice for its certification applications, which stated the following:
Please be advised this application for certification is valid only for authorized Arizona gaming facilities. Providing goods or services to any location considered by the State to be unauthorized, or in pending litigation with the State concerning whether it is .authorized, would be outside, the approval granted through State .Certification. Vendors providing goods or services to unauthorized facilities may be subject to legal and/or regulatory risks. . ■■■
On June 22„ 2015, the Nation filed this action against Arizona Governor Douglas Ducey, Arizona Attorney General Mark Brnovich, and ADG Director Daniel Bergin. It alleges that Ducey and Brnovich directed Bergin to deny certifications for the West Valley Resort and that Defendants" Have violated the Supremacy 'Clause because IGRA preempts state regulation of gaming on Indian lands. It-further alleges that Defendants are violating IGRA by illegally regulating Class II gaming, specifically because the notice appears to apply to any gaming that may take place at the West Valley Resort. The Nation asks the Court to enjoin Defendants from refusing to grant the Class III certifications and from regulating Class II gaming. The Court will address the merits of Defendants’ motions to dismiss before turning to the Nation’s motion for preliminary injunction.
II, Motions to Dismiss.
Defendants Ducey and Brnovich argue that the Nation’s claims should be dismissed for several reasons: (1) sovereign immunity bars suit against them in their official capacities, '(2) the Nation’s claims are a disguised and improper mandamus action, (8) the Nation’s claims are nonjusticiable, and (4) the Nation fails to state a claim for relief. Defendant Bergih argues that the "claims should' be dismissed for similar reasons: (1) sovereign immunity bars, the Nation’s claims against him because IGRA provides ah alternative enforcement mechanism, (2) the Nation’s claim regarding Class II gaming is-not ripe," (3) the Nation’s complaint fails to state a claim for relief, and (4) the Nation’s requested relief would violate the Tenth Amendment. Because courts generally treat sovereign immunity as a threshold issue, the Court will address it first. See Confederated Tribes & Bands of the Yakama Indian Nation v. Locke,
A. Sovereign Immunity.
The Eleventh Amendment bars federal court lawsuits against a state “by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This bar applies to suits against states by federally-recognized Indian tribes. See Seminole Tribe of Florida v. Florida, 517. U.S. 44, 55,
There are several exceptions to the protection of sovereign immunity, one of which is at issue in this case. The Supreme Court held in Ex parte Young,
The Ex parte Young exception has two limitations that are relevant here. First, it does not apply to all state officers. The officer named in the suit “must have some connection with the enforcement of the act” to be enjoined.
Defendants’ invoke both of these limitations. The Nation seeks to enjoin Defendants from denying certifications in violation of IGRA and the Supremacy Clause. Defendants Ducey and Brnovich argue that they lack the necessary connection to the granting of such certifications. Defendant Bergin' argues that he cannot be sued bécause IGRA includes a comprehensive enforcement mechanism. The Court will address these arguments separately.
1. Connection to Enforcement of the Act.
Ex park, Young’s required connection between the defendant and a challenged law can be established when the law specifically grants the defendant enforcement authority. See, e.g., Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
The Nation instead asserts that “Ducey and Brnovich intervened in the normal course of ADG’s business, directed ADG to take steps to block the [casino], and caused ADG to adopt” the position of refusing certifications for potential employees and vendors. Doc. 60 at 11. Specifically, the Nation notes that Ducey and Brnovich wrote letters to Bergin essentially directing him to adopt the State’s view that the West Valley Resort was procured by fraud.
Courts have recognized that the connection required by Ex parte Young .may be
When Bergin wrote to the Nation on April 10, 2015, to explain that ADG would not grant certifications for those working at the West Valley Resort, he attached letters from Ducey and Brnovich. The letter from Brnovich, dated April 2, 2015, reiterated Arizona’s belief that “the Nation committed fraudulent misrepresentation and concealment[.]” Doc. 1-5 at 5. Brnovich noted that ADG “remains statutorily charged with a broad regulatory mission to protect the public, ensure compliance with the Tribal-State Gaming Compacts and to regulate the gaming industry.” Id. Citing § 5-602, Brnovich wrote that “[i]n determining whether to certify the proposed casino, [ADG] is vested with the statutory discretion to determine whether the application- is at odds with the public welfare and safety and/or is consistent with the thorough and fair regulation of gaming in Arizona.” Id. at 6. Brnovich stated:
[ADG] is bound to the conclusion that the Nation did commit actionable malfeasance in its pursuit of a new casino near Glendale. Thus, [ADG] should consider this in-its certification deliberations. [ADG] may ultimately deny the certification if it determines that the Nar tion has not met its obligations with respect to the regulatory structure set forth in the Arizona Tribal-State Gaming Compact.
Id.
The letter 'from Ducey, dated April 8, 2015, also asserted that the casino is “contrary to the public interest and... the product of fraud, fraudulent concealment, and misrepresentation.” Id. at 7. Ducey “urged” ADG to consider this in its deliberations regarding certifications. Id. Ducey further stated that “if in the course of your duties you agree with me that the evidence referred to above would, without more, be grounds for denial of the regulatory approvals necessary to operate the proposed casino, then I ask that you communicate those grounds” to the Nation. Id. at 8.
There can be little doubt that these letters influenced ADG’s decision. Bergin attached the letters to his letter to the Nation and explained: “Based upon this advice and further consideration I have concluded that ADG lacks statutory authority to approve [the casino operations].” Id. at 2. .His decision, at least in part, was based on the advice from Ducey and Brnovich.
The Court cannot conclude, however, that this advice establishes the connection required by Ex parte Young. State executive officers routinely influence decisions of the state’s executive branch — which is virtually always the branch whose actions are challenged rh cases' raising' the Ex parte Young exception — and yet courts consistently hold that “general supervisory power over the persons responsible for en
True, Defendants Ducey and Brnpvich did more in this case than simply possess the power to influence; they actually influenced the ADG decision. But their actions do not rise to the level of those that have been found sufficient for Ex parte Young to apply. In each case cited by the Nation, the state official took some actual enforcement action toward the plaintiff. In Del Papa,
Similar .facts are missing here. Ducey and Brnovich have not written directly to the Nation or' otherwise directly threatened enforcement of the law against the Nation. And the Nation cites no state- law that- gives Ducey or Brnovich authority to deny certificates. In the absence of such a “fairly direct” connection to § 5-602, the Court concludes that the Ex parte Young exception does not apply. Coal. to Defend Affirmative Action,
2. Comprehensive Enforcement Mechanism.
Citing the Supreme Court’s decision in Seminole Tribe, Defendant Bergin argues that the claims should be dismissed because IGRA provides a comprehensive enforcement mechanism. The Nation responds that IGRA does hot provide a comprehensive enforcement scheme for violations of § 2710(d)(1),' the provision that regulates Class III' gaming. The Nation argues that Seminole Tribe’s holding applies only to § 2710(d)(3) of IGRA, which
In Seminole Tribe, the plaintiff brought suit against Florida and its governor for failure to negotiate a gaming compact in good faith as required by § 2710(d)(3) of IGRA.
The Supreme Court held that permitting suit under Ex parte Young would run afoul of this intricate and moderated scheme, frustrating the intent of Congress. Allowing such a suit would render entirely superfluous the detailed procedures crafted by Congress in § 2710(d)(7). Id. It would also permit sanctions far greater...than those allowed by the statute. Id. at 75-76,
Defendant Bergin argues that the same result should obtain here. He points to § 2710(d)(3)(C) as the IGRA remedy available to the Nation in this case and argues that it is comparable to the remedial provisions that precluded the use of. Ex parte Young in Seminole Tribe. But § 2710(d)(3)(C) contains nothing, like the detailed remedial scheme considered in Seminole Tribe. It provides only that a tribal-state, compact.,“may include provisions relating to... remedies for breach of contract.” 25 U.S.C. § 2710(d)(3)(C). It contains no detailed procedures that must be followed; it does not limit available remedies in any way; and it makes the inclusion of breach of contract provisions entirely optional, stating only that they “may” be included in a compact.
The Court cannot conclude that allowing suit under Ex parte Young would run afoul of any congressional intent discerned from this provision. Allowing suit would not render § 2710(d)(3)(C) superfluous. If the parties .elected" not to include in their compact a.remedy for breach of the compact — as § 2710(d)(3)(C) allows — application of Ex parte Young would not frustrate any alternative remedial scheme. And if the parties chose to include a breach remedy in their compact, they presumably could also de.cide to make it exclusive, in which event a court might elect to require that the partiere use their agreed-upon dispute resolu
In summary, the circumstances underlying the Supreme Co,u,rt’s decisipn in Seminole Tribe simply are npt present here, and the Court finds that it does not apply. Other courts have reached similar conclusions. See Friends of Amador Cty. v. Salazar, No. CIV. 2:10-348 WBS KJM,
B. Ripeness.
Defendant Bergin argues that there is no live controversy over Class II gaming. This issue, sometimes referred to as “ripeness,” has two components: “constitutional ripeness and prudential ripeness,” In re Coleman,
Prudential ripeness considers “[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.” Wolfson v. Brammer,
Count two alleges that “Defendants’ recent notice and letters to vendors and employees of the Nation threaten to interfere with Class II gaming at the West Valley Resort.” Doc. 1, ¶ 118. The Nation claims that the notice and letters “threaten legal and regulatory action against vendors or employees who provide services to the West Valley Resort without clarifying that the State has no authority to regulate Class II gaming.” Id. Because the notice sent by the State does not differentiate between Class II and Class III gaming, the,Nation asserts, the notice threatens to “chill vendors’ and employees’ willingness to provide goods and services relating to lawful Class II gaming at the West Valley Resort.” Id. In essence, the Nation complains about the ambiguous nature of the notice and seeks an order declaring that the State cannot sanction employees, vendors, or contractors who provide services to a Class II facility. During oral argument, counsel for the Nation stated that the Nation has decided to open the West Valley Resort as a Class II facility in December 2015 and convert it to a Class III facility at a later date.
The State readily concedes that it has no authority to regulate Class II gaming-at the West Valley Resort. Bergin made this concession, in his briefs and at oral argument, and asserts that ADG has responded to inquiries from potential vendors by stating that it does not regulate Class II gam
The Nation argues, nonetheless, that ADG’s actions have chilled its ability to complete and open the West Valley Resort as a Class II facility. Elizabeth Francisco, the Chief Operating Officer of the Nation’s Gaming Enterprise, testified during her deposition that the ADG notice has resulted in “five of the slot gamers” saying, “at some point,” that “they could not do business with us[.]” Doc. 62-2 at 18. She also testified that at least one vendor “is requesting that they be indemnified” as a result of the notice (Doc. 73-2 at 14), and that potential employees were “concerned” with the notice and possible sanctions (id at 11). Jerry Derrick testified on behalf of the Nation that he spoke with at least one employee who expressed “concern” about the notice. Doc. 73-4 at 3. He also stated that the Nation has “concerns as far as whether we can effectively recruit well-qualified applicants,” and that an inability to certify employees for both Class II and Class III gaming could undermine employee flexibility. Id. at 4-5.
When the factual record is considered as a whole, the evidence shows that count two is not ripe. When asked whether any vendors have indicated that they will not do business with the West Valley Resort as a Class II facility, Francisco unequivocally answered “No.” Doc. 62-2 at 21. She further confirmed that ADG’s notice and letters have not delayed the opening of the facility in December 2015. Id. at 23. With respect to the five vendors who “at some point” stated they could not work with the Nation because of the ADG notice, she clarified that four are now in negotiations with the Nation to provide Class II services and the fifth has not yet made a decision. Id., at 25. With respect to employee hiring, Francisco stated that she did not personally speak with any employees or know how many expressed a concern, nor could she testify as to whether the Nation has incurred any extra costs as a result of such concerns. Id. at 129.
The Court cannot conclude that the imprecise “concerns” identified by the Nation are sufficient'to establish that count two is constitutionally 'ripe for judicial review. When ADG wrote* its initial letters and issued its notice, the Nation was "planning to open a Class III facility. That was the only kind of facility the Nation had announced.' Thus, in context, the letters and notice were limited to Class III operations. Later letters from Bergin’s counsel to counsel for the Nation confirm that “the State does not regulate Class II gaming.” See Doc. 71 at 2. Arid as noted, ADG has made clear in this litigation that it has no authority to regulate Class II gaming. The Court therefore cannot conclude that Bergin has taken steps to suggest that ADG can' or will attempt to regulate the West Valley Resort as a Class II gaming facility.
.Moreover, the Nation.has conceded that the ADG notice andjetters have not delayed the opening of the West Valley Resort or increased its cost.. And there is no evidence that any vendor has finally refused to work at the Class II facility because of the notice. • The fact that one vendor is seeking additional contractual protections and that another is still contemplating its decision is not enough to create a live Class II controversy, particularly where the Nation has informed vendors that it is “clear[ ] [that] the state has no jurisdiction over class II” and that the West Valley Resort'will be opening on schedule .as a Class II facility. Doc. 62-2 at 233. Finally, when ADG has received inquiries from prospective vendors and employees regarding the notice, it has responded that the State does not regulate Class II gaming. Doc. 71. The record con
Given this record, the Court cannot conclude “that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Braren,
C. Failure to State a Claim.
Defendant Bergin argues that the Nation fails to state a claim because neither the Supremacy Clause nor IGRA provides a private cause of action for the conduct complained about in this case. He also asserts the Nation cannot state a claim for preemption. The Court will address the first argument here, and will address the preemption argument in the next section.
The Supremacy Clause “creates a rule of decision: Courts ‘shall’ regard the ‘Constitution’ and all laws ‘made in Pursuance thereof,’ as ‘the supreme Law of the Land.’ They must not give effect to state laws that conflict with federal laws.” Armstrong v. Exceptional Child Ctr., Inc., — U.S. -,
The Nation also disavows any private right of action found in’ IGRA. Id. This too is wise, as the Ninth Circuit has noted that “where IGRA creates a private cause of action, it does so explicitly.” Hein v. Capitan Grande Band of Diegueno Mission Indians,
Lacking a private right of action under the Supremacy Clause and IGRA, the Nation argues that its claims “rest on federal courts’ inherent equitable power to ‘issue an injunction" upon finding.. state regulatory actions preempted.’ ” Doc. 59 at 15 (quoting Armstrong,
The “power of federal courts of equity to enjoin -unlawful executive action is subject to express and implied statutory limitations.” Armstrong,
Defendants rely heavily on the Supreme Court’s recent decision in Armstrong.
IGRA’provides no comparable remedy for allegedly preempted state efforts to regulate Indian' gaming. Bergin argues that § 2710(d)(3)(C) — which allows compacts to include remedies for their breach — is comparable to the remedy addressed in Armstrong. But that clearly is not the case. Permitting the parties to agree upon remedies for breach of the compact is not the same as specifically entrusting the remedy to an executive branch agency .and prescribing complex procedures for the dispute’s resolution. And, as noted above, § 2710(d)(3)(C) is optional, leaving parties free to include no remedy for breach, in which event court action may be the only available alternative, or to agree that breaches of the compact will be resolved in court. Such a flexible provision does not evince a congressional intent to keep disputes out of court.
Armstrong also'relied on the fact that the statutory provision the plaintiff sought to enforce — § 30A — was unusually complex and contained standards that reasonably could be applied only with the expertise of the executive branch agency. The same is not true here. Courts are well suited to deciding equitable claims.
For these reasons, the Court is not convinced that Congress intended to foreclose an equitable cause of action asserting preemption. The Supreme Court recognized the existence of such a cause of action in Armstrong, and Bergin has cited no IGRA provision that shows a congressional intent to foreclose it.
III. The Nation’s Motion for Preliminary Injunction.
“[I]njunctive relief [is] an extraordinary remedy that may only be awarded upon a ■ clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Defense Council, Inc.,
A. Likelihood of Success on the Merits.
Count one of the Nation’s complaint asserts that ADG’s attempted regulation of the West Valley Resort is preempted by IGRA. Doc. 1 at 25-31. In its preliminary injunction motion, the Nation argues that it is likely to succeed on this claim. As the Court noted at oral argument, however, the parties’ positions on this claim have evolved during the course of this dispute.
The Nation initially asked the Court to enjoin Defendants from refusing to certify vendors and employees at the West Valley Resort and from “taking any other action to obstruct the Nation from conducting Class III gaming at the [resort].” Doc. 3 at 26. In other words, the Nation sought a complete bar on ADG interference with their planned Class III operation. As the Nation confirmed at oral argument, it has narrowed this request. The Nation now asks the Court only to enjoin Defendants from attempting to regulate the West Valley Resort on any basis not permitted by the Compact. The Nation does not seek an injunction against regulation permitted by the Compact. See Doc. 59 at 21.
Defendant Bergin’s position also has evolved. Bergin originally asserted in a letter to the Nation that ADG could regulate Class III gaming under § 5-602 “regardless of whether such gaming would otherwise be permitted by a valid tribal-state compact.” Doc. 1-5 at 14. In other words, Bergin asserted that ADG’s regulatory authority was not limited to the authority granted in the Compact. Bergin has narrowed his position, asserting now that ADG is simply regulating the West Valley Resort under the authority of the Compact. See Docs. 50 at 12, 68 at 8-9.
Thus, the parties seem to have reached an unacknowledged agreement on the nature of a state’s regulatory authority over Indian gaming: a state may regulate tribal gaming in accordance with the regulatory authority .reserved to it in the tribal-state compact, and state efforts to regulate outside of that authority are not valid. The Court is likely to agree with this view. As noted above, IGRA was passed in part to grant states some regulatory role with respect to Indian gaming. That role is found in the compact negotiated between the tribe and the state. Indeed, IGRA allows the parties to agree on fairly extensive state regulation of tribal gaming. The compact may include provisions on “the application of the criminal and civil laws and regulations of the... State that,are directly related to and necessary for” the regulation of the gaming, “the, allocation of crimi
This conclusion on thé scope of state regulatory authority, although now accepted by the parties, does not enable the Court to decide who will prevail in this case or, for present purposes, that the Nation is likely to prevail on count one. Whether ÁDG can withhold certifications on the basis of the Nation’s alleged fraud depends on whether the State is' granted that authority by the Compact, and that is an issue to which thé parties have devoted very little attention. The Nation does not assert a claim in its complaint that the State has breached the Compact. The complaint asserts generally that the Compact does not authorize ADG’s action (e.g., Doc. 1, ¶¶ 105, 108), but the Nation does not address the terms of the Compact in any detail in the complaint or the prehminary injunction briefing. Likewise, Defendant Bergin asserts generally that his actions are authorized by the Compact and makes reference to a few general Compact provisions (Docs. 50 at 12; 68 at 6-7, 9), but he provides no detailed explanation of the Compact provisions he relies upon or how they authorize his denial of certifications. Given this state of the record, the Court cannot conclude that the Nation likely will prevail on its argument that ADG’s actions are preempted because they are not authorized by the Compact.
Wdien the Court raised this issue at oral argument, ’ the Nation complained that ADG has not identified the Compact provisions under which it is acting. But the Nation bears the burden of showing it is entitled to injunctive relief, and has provided no analysis of the Compact which shows that ADG’s actions fall outside its provisions.
Moreover, given the scant attention paid by the parties to the terms of the Compact, the Court is not comfortable venturing into the document and deciding on its own whether ADG’s action is or is not authorized. This is particularly true given the Court’s previous conclusion that the Compact is governed by Arizona’s liberal parol evidence rule, Tohono O’odham Nation,
Because the parties have not addressed whether the Compact authorizes ADG’s refusal to grant certifications, the Court cannot conclude that the Nation is likely to succeed on its claim that the actions of ADG fall outside the Compact and are preempted.
B. Irreparable Harm.
The Nation asserts that the State’s actions will cost it substantial sums of money, and that the money constitutes irreparable harm because it cannot be recovered from the State due to sovereign immunity. The Court finds, however, that the Nation has not shown that ADG’s actions will cost it substantial sums. The Nation plans to open the West Valley Resort on schedule in December. Although it will open as a Class II facility rather than as a Class III, the Nation’s own consultant has opined that the facility will be just as profitable as a Class II operation as it would be as a Class III casino. Doc. 62-2 at 134 (“There is virtually no difference (± 3%) on net income projected by a Class II or a Class III operation at the West Valley interim facility.”). In addition, ’ Elizabeth Francisco testified at her deposition that the estimated costs of opening a Class II and a Class III facility are the same. Id. at 6-7.
The Nation asserts that it will-cost $7 to $8 million to convert the facility to a Class III operation later, but, as the Nation acknowledged at oral argument, these are “sunk costs” that could not be avoided by an injunction. They do not support injunctive relief.
The Nation argues that the irreparable harm requirement can be satisfied by ADG’s interference with the Nation’s federal right to gaming under IGRA. Interference with a federal right may suffice as irreparable harm. See Arcamuzi v. Continental Air Lines, Inc.,
Finally, the Nation argues that it will suffer loss of goodwill and damage to its reputation, which it also views as irreparable harm. But the West Valley Resort is scheduled to open on schedule and offer gaming services that the Nation’s consultant predicts will generate the same level of profits as would a Class III facility. This state of affairs does not enable the Court to conclude that ADG’s actions will cause a loss of goodwill or damage to the. Nation’s reputation. . ...
C. Conclusion.
The Nation has failed to show that it is likely .to succeed on the merits of count one' or likely to suffer irreparable harm. The Nation is not entitled to preliminary injunctive relief, and the Court need' not address the remaining requirements for a preliminary injunction.
IV. Motions to Seal.
The parties have filed three motions to seal. Docs. 61, 67, 72. All of the motions" are -unopposed. Documents may be sealed if the court finds that “compelling reasons supported by specific factual findings... outweigh the general history of access and the public policies favoring disclpsure.” Pintos v. Pac. Creditors Ass’n,
IT IS ORDERED:
1. Defendants Ducey and Brnovich’s motion to dismiss (Doc. ,49) is granted,
2. Defendant Bergin’s motion to dismiss (Doc. 50) is granted with respect to count two and otherwise denied.
3. The Nation’s motion for preliminary injunction (Doc. 3) is denied.
4. The motions to seal filed by the parties (Docs. 61,, 67, 72) are granted.
5. The'Court will set a case management conference by separate order.
Notes
. Citations to pages in the Court's docket are to page numbers placed at the top of each page by the Court’s CM/ECF system, not to the original page numbers at the bottom of each page. ’
, The Nation does note that A.R.S. § 5-602.1 authorizes Brnovich to collect "civil penalties” imposed on employees and vendors by ADG. Doc. 60 at 14 n.7. But'the Nation argues only that this authority “further- intertwines” Brnovich with ADG’s decision. Id. The Court does not find this authority sufficient to satisfy Ex parte Young becáuse the Nation challenges denial of certificates, not imposition of civil penalties:
. Because Defendants Ducey and Brnovich cannot be sued under Ex parte Young/ the Court will not address their other arguments.
. The Nation could not establish a likelihood of success on the merits of count two because it is not ripe for judicial review. In addition, the Court could not conclude (for reasons explained in the ripeness discussion above) that the Nation is likely to prevail on its claim that the State is attempting to exercise Class II regulatory authority over vendors and employees at the West Valley Resort.
. In much of its complaint and preliminary injunction motion, the Nation argues that this Court has already held that operation of the West Valley Resort complies with the Compact. As the Court explained at oral argument, however, its previous orders held that the Compact did not prohibit a casino in the location of the West Valley Resort, but made no decision on whether the operation of that casino would otherwise comply with the Compact. Nor did the Court hold, as the Nation argues, that the State’s allegations of fraud and promissory estoppel lack merit. The Court held only that the claims asserting fraud and promissory estoppel were blocked by the Nation's sovereign immunity.
.' Given the evolution of the parties' positions, the Court cannot agree with .Bergin's argument that any relief obtained by the Nation would violate the Tenth Amendment by forcing the State to certify Indian casinos. Doc. 50 at 13-14. The Nation has. made clear that it does not seek an injunction that requires the State to issue certifications, only an injunction that prohibits the State from denying certifications on a preempted ground. And in light of Bergin’s agreement that the State may regulate Indian gaming only in accordance with the Compact, any attempt to exercise regulatory authority outside of the Compact would be invalid without running afoul of the Tenth Amendment.
. This same uncertainty precludes the Court from accepting Bergin's argument that the Nation has failed to plead a preemption claim. If ADG’s actions are not authorized by the -Compact, they may be preempted.- Although it is true that § 15 of the Cqmpact may require this issue to be resolved through arbitration, that is not the basis on which Bergin asserts that the Nation fails to state a claim.
Bergin also argues that Confederated Tribes of Siletz Indians of Oregon v. Oregon,