Articles Posted in US Court of Appeals for the Tenth Circuit

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Plaintiffs-Appellants Pueblo of Pojoaque appealed a district court’s dismissal of its claim for declaratory and injunctive relief based on the New Mexico’s alleged unlawful interference with Class III gaming operations on the Pueblo’s lands. In July 2005, the Pueblo and New Mexico executed a Class III gaming compact pursuant to the Indian Gaming Regulatory Act (“IGRA”) that allowed it to operate casino-style gaming on its lands. Prior to the expiration of the compact, the New Mexico Gaming Control Board (“the Gaming Board”) sought to perform its annual compliance review of the Pueblo’s gaming operations. The Pueblo complied on June 24; on June 30, 2015, the compact expired at midnight. The Gaming Board announced that despite the U.S. Attorney’s decision allowing the Pueblo’s gaming operations to continue pending the review, the Pueblo’s casinos were operating illegally due to the absence of a compact, and it placed in abeyance approval of any license application or renewal for vendors who did business with the Pueblo. The Pueblo commenced this action, asserting in part that New Mexico failed to conduct compact negotiations in good faith in violation of IGRA and that individual defendants conspired under the 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.” The Pueblo sought an injunction, contending that the Gaming Board’s actions were an impermissible attempt to assert jurisdiction over gaming operations on tribal lands, despite the termination of New Mexico’s jurisdiction over such activities upon the expiration of the compact. The district court entered final judgment, stayed the effects of the preliminary injunction, and issued an indicative ruling that it would vacate or dissolve the preliminary injunction on remand. The Pueblo sought to stay the district court’s judgment and restore the preliminary injunction. The district court declined to do so, but the Tenth Circuit extended a temporary injunction against the State mirroring the preliminary injunction entered by the district court. On appeal, the Pueblo argued the district court did not have jurisdiction to proceed to the merits given the interlocutory appeal of the preliminary injunction and, even if it did, it erred in concluding that IGRA did not preempt New Mexico’s regulatory action. The Tenth Circuit found the text of IGRA clearly evinced congressional intent that Class III gaming would not occur in the absence of a compact, and no such compact existed. Accordingly, conflict preemption also does not apply. For similar reasons, the Court rejected the Pueblo’s argument that the Gaming Board’s determination as to the unlawful nature of the Pueblo’s gaming activities was an improper assertion of jurisdiction preempted by IGRA. Because the Pueblo’s gaming activities are not conducted pursuant to a compact or an alternative mechanism permitted under IGRA, the Pueblo’s present gaming is unlawful under federal law, and the State’s conclusion to this effect was not an exercise of jurisdiction that IGRA preempts. View "Pueblo of Pojoaque v. New Mexico" on Justia Law

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In response to a request from the Quapaw Tribe, the National Indian Gaming Commission (NIGC) Acting General Counsel issued a legal opinion letter stating that the Tribe’s Kansas trust land was eligible for gaming under the Indian Gaming Regulatory Act (IGRA). The State of Kansas and the Board of County Commissioners of the County of Cherokee, Kansas, filed suit, arguing that the letter was arbitrary, capricious, and erroneous as a matter of law. The district court concluded that the letter did not constitute reviewable final agency action under IGRA or the Administrative Procedure Act (“APA”). The Tenth Circuit affirmed: the IGRA’s text, statutory scheme, legislative history, and attendant regulations demonstrated congressional intent to preclude judicial review of legal opinion letters. Further, the Acting General Counsel’s letter does not constitute final agency action under the APA because it did not determine any rights or obligations or produced legal consequences. In short, the letter merely expresses an advisory, non-binding opinion, without any legal effect on the status quo ante. View "Kansas v. National Indian Gaming Comm'n" on Justia Law