Case 2:16-cv AWI-EPG Document 39 Filed 07/19/17 Page 1 of 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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1 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 DANIELLE SPINELLI (PRO HAC VICE) CHRISTOPHER E. BABBITT (SBN ) WILMER CUTLER PICKERING HALE AND DORR LLP Pennsylvania Avenue, N.W. Washington, D.C. 000 Telephone: (0) -000 Facsimile: (0) - danielle.spinelli@wilmerhale.com christopher.babbitt@wilmerhale.com JOHN A. MAIER (SBN ) MAIER PFEFFER KIM GEARY & COHEN LLP 0 Broadway, Suite Oakland, CA Telephone: (0) -00 Facsimile: (0) jmaier@jmandmplaw.com Attorneys for THE NORTH FORK RANCHERIA OF MONO INDIANS OF CALIFORNIA UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 0 STAND UP FOR CALIFORNIA!, et al. v. Plaintiffs, UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. Case No. :-cv-0-awi-epg INTERVENOR THE NORTH FORK RANCHERIA OF MONO INDIANS OPPOSITION TO PLAINTIFFS MOTION TO STAY ACTION Date: Time: Court:, th Floor Judge: Honorable Anthony W. Ishii

2 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... ARGUMENT... I. THE CALIFORNIA SUPREME COURT S DECISION IS NOT NECESSARY TO RESOLVE ANY OF STAND UP S CLAIMS... II. A. The California Supreme Court s Decision Is Irrelevant To Stand Up s First Three Claims Challenging The Secretarial Procedures And Its FOIA Claim... B. Stand Up s Fifth Claim Also Fails As A Matter Of Federal Law, Regardless Of The California Supreme Court s Decision... THIS COURT LACKS AUTHORITY TO STAY THIS CASE EVEN IF THE CALIFORNIA SUPREME COURT S DECISION WERE RELEVANT TO ONE OF STAND UP S CLAIMS... A. Colorado River Supplies The Governing Law For Determining Whether A Federal Case May Be Stayed For A Pending State-Court Case... III. B. This Court Lacks Authority To Stay Stand Up s Case Under Colorado River... THIS CASE SHOULD NOT BE STAYED UNDER LANDIS EVEN IF THIS COURT HAD AUTHORITY TO DO SO...0 A. A Stay Will Damage North Fork...0 B. Stand Up Will Not Face Inequity From Proceeding With Its Own Case... C. A Stay Would Impede The Orderly Course Of Justice... 0 CONCLUSION... CERTIFICATE OF SERVICE - i -

3 Case :-cv-0-awi-epg Document Filed 0// Page of Cases TABLE OF AUTHORITIES Page(s) 0 Washington Street Corp. v. Lusardi, F.d (th Cir. )... Abrahamson v. Berkley, 0 WL 00 (E.D. Cal. Sept., 0)... passim Ambrosia Coal & Construction Co. v. Pages Morales, F.d 0 (th Cir. 00)... Aminoil U.S.A., Inc. v. California State Water Resource Control Board, F.d (th Cir. )... Anderson v. Air West, Inc., F.d (th Cir. )...0 City & County of San Francisco v. United States, 0 F. Supp. (N.D. Cal. )... Clinton v. Jones, 0 U.S. ()...0 CMAX, Inc. v. Hall, 00 F.d (th Cir. )...0 Colorado River Water Conservation District v. United States, U.S. 00 ()... passim Cottrell v. Duke, F.d (th Cir. 0)... Dependable Highway Exppress v. Navigators Insurance Co., F.d 0 (th Cir. 00)... Doe v. AOL, LLC, F. Supp. d 0 (N.D. Cal. 00)...0 Fishman Jackson PLLC v. Israely, 0 F. Supp. d (N.D. Tex. 0)... Holder v. Holder, 0 F.d (th Cir. 00)... I.K. ex rel. E.K. v. Sylvan Union School District, F. Supp. d (E.D. Cal. 00)... In re ConAgra Foods, Inc., 0 WL 00 (C.D. Cal. Dec., 0) ii -

4 Case :-cv-0-awi-epg Document Filed 0// Page of In re Taco Bell Wage & Hour Actions, 0 WL (E.D. Cal. Aug. 0, 0)... Intel Corp. v. Advanced Micro Devices, Inc., F.d 0 (th Cir. )...,,, Jaladian v. Hernandez, 0 WL 0 (E.D. Cal. Aug., 0)...0 Landis v. North American Co., U.S. ()...,, Legal Economic Evaluations, Inc. v. Metropolitan Life Insurance Co., F.d (th Cir. )... Leyva v. Certified Grocers of California, Ltd., F.d (th Cir. )... Lockyer v. Mirant Corp., F.d 0 (th Cir. 00)...0 Medema v. Medema Builder, F.d 0 (th Cir. )... Minucci v. Agrama, F.d (th Cir. )...,,, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 0 U.S. ()..., Railroad Street & Co. v. Transportation Insurance Co., F.d (th Cir. 0)... Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 0 F.d 0 (th Cir. 00)..., Schulein v. Petroleum Development Corp., 0 WL (C.D. Cal. June, 0)... Scotts Co. v. Seeds, Inc., F.d (th Cir. 0)...,, Silberkleit v. Kantrowitz, F.d (th Cir. )... Smith v. Central Arizona Water Conservation District, F.d 0 (th Cir. 00)... Stand Up for California! v. U.S. Department of Interior, 0 F. Supp. d (D.D.C. 0)..., - iii -

5 Case :-cv-0-awi-epg Document Filed 0// Page of Unichappell Music, Inc. v. Modrock Products, LLC, 0 WL 0 (C.D. Cal. June 0, 0)..., United Auburn Indian Community of Auburn Rancheria v. Brown, P.d (Cal. 0)... Washington v. Andrews, 0 WL (E.D. Cal. Jan., 0)...0 Docketed Cases Picayune Rancheria of Chukchansi Indians v. U.S. Department of Interior (E.D. Cal. No. -0)..., Stand Up for California! v. State of California (Cal. No. S0)... United Auburn Indian Community v. Brown (Cal. No. S)... Statutes, Rules, and Regulations U.S.C. 0(d)... U.S.C. (b)()(a)... Cal. R. Ct.... Other Authorities A Van Arsdale et al., Federal Procedure.0 (0)... AA Wright et al., Federal Practice & Procedure. (th ed. 0)... Jenkins, California Supreme Court In 0: A Year In Transition (Feb., 0), available at - iv -

6 Case :-cv-0-awi-epg Document Filed 0// Page of INTRODUCTION This lawsuit is the latest iteration of what the Chief Judge of the United States District Court for the District of Columbia characterized as [t]he Stand Up plaintiffs scorched earth effort to undermine the legitimacy of federal steps needed for North Fork to develop its gaming project. See Stand Up for California! v. U.S. Dep t of Interior, 0 F. Supp. d, (D.D.C. 0). After four years of litigation in that court, Stand Up lost on all of the Administrative Procedure Act ( APA ) claims it had brought under the Indian Reorganization Act ( IRA ), the Indian Gaming Regulatory Act ( IGRA ), the National Environmental Policy Act ( NEPA ), and the Clean Air Act ( CAA ), which challenged the Secretary of the Interior s ( Secretary s ) decisions to acquire gaming-eligible land ( the Madera Site ) for North Fork. See id. Undeterred, Stand Up has now filed another APA lawsuit against the Secretary here, raising claims under the same statutes. Stand Up challenges the procedures that the Secretary issued to authorize class III gaming pursuant to IGRA s remedial provision, U.S.C. 0(d). As the Ninth Circuit has instructed, the structure and content of 0(d) make clear that the function of the good faith requirement and judicial remedy is to permit the tribe to process gaming arrangements on an expedited basis. Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 0 F.d 0, 0 (th Cir. 00) (emphasis added). But Stand Up having chosen to initiate this lawsuit now seeks to delay its case indefinitely, arguing that one of its claims turns on a question of state law that the California Supreme Court may resolve after deciding another case being briefed there. See Stand Up for California! v. State of California (Cal. No. S0), held for United Auburn Indian Community v. Brown (Cal. No. S). Stand Up should not be permitted to stay its case and to maintain a continuing cloud of federal litigation over North Fork s project pending resolution of the California Supreme Court case. First, a stay is unwarranted because none of Stand Up s claims turns on the California Supreme Court s decision. Stand Up does not even contend that the California Supreme Court s decision affects the legal issues in its first four claims, and Stand Up is wrong that the California Supreme Court s decision affects this Court s resolution of its fifth claim. That claim, which - -

7 Case :-cv-0-awi-epg Document Filed 0// Page of alleges that the Secretary s issuance of Secretarial Procedures was invalid based on the asserted invalidity of the Governor of California s concurrence in an earlier decision by the Secretary, does not require this Court to resolve any state-law issue because it fails as a matter of federal law. Second, even if the California Supreme Court s decision is relevant to one of Stand Up s claims, this Court lacks authority to stay this case. The U.S. Supreme Court s decision in Colorado River Water Conservation District v. United States, U.S. 00 (), supplies the governing law for when a federal court may stay a federal case to await a decision in a pending state-court case. The Ninth Circuit has squarely held that under Colorado River, a district court has no authority to stay claims within exclusive federal jurisdiction. Minucci v. Agrama, F.d, (th Cir. ). Stand Up s claims including its fifth claim are APA claims, therefore falling within exclusive federal jurisdiction, so this Court lacks authority to stay them. Moreover, even if federal courts could stay APA claims pending state-court proceedings, this Court would lack authority to stay this case because Colorado River does not permit a stay where the pending state-court proceeding will not resolve the federal litigation. The California Supreme Court s decision will not resolve this action or any of Stand Up s claims. Third, Colorado River and Minucci preclude this Court from issuing a stay for the pending state-court case under Landis v. North American Co., U.S. (), which applies only when there are concurrent federal cases. But even if this Court had authority to stay Stand Up s case under Landis, Stand Up has not shown that a stay of its own case is warranted. Stand Up s motion should be denied. ARGUMENT I. THE CALIFORNIA SUPREME COURT S DECISION IS NOT NECESSARY TO RESOLVE ANY OF STAND UP S CLAIMS Stand Up s motion to stay fails at the outset because its premise is wrong: None of Stand Up s claims turns on an issue of state law. All of its claims including its fifth claim instead turn on issues of federal law. This Court should not stay its resolution of those claims because the California Supreme Court decision is not necessary to resolve any of them. - -

8 Case :-cv-0-awi-epg Document Filed 0// Page of A. The California Supreme Court s Decision Is Irrelevant To Stand Up s First Three Claims Challenging The Secretarial Procedures And Its FOIA Claim Stand Up s first four claims raise federal issues unrelated to the Governor s concurrence. Its first three claims are APA claims challenging whether the Secretary s issuance of the Secretarial Procedures violated IGRA and the Johnson Act, see st Am. Compl., Doc. - ; NEPA, see id. -; and the CAA, see id. -0. Its fourth claim is brought under the Freedom of Information Act ( FOIA ). See id. -. The Governor s concurrence is irrelevant to this Court s resolution of those claims. Because Stand Up has made clear that it will continue to press them even if the California Supreme Court upholds the validity of the Governor s concurrence under state law (Doc. at ), there is no reason to stay this Court s resolution of them for the California Supreme Court case. B. Stand Up s Fifth Claim Also Fails As A Matter Of Federal Law, Regardless Of The California Supreme Court s Decision Stand Up s fifth claim also does not require this Court to adjudicate any issue of California law and does not turn on the California Supreme Court s decision. It too fails on federal law grounds independent of the state court s decision for the reasons explained in North Fork s summary judgment brief. See Doc. at -. Stand Up s fifth claim is an APA claim alleging that the Secretary s prescription of Secretarial Procedures was unlawful, st Am. Compl., Doc., on the ground that (Stand Up claims) the Madera Site is not eligible for gaming because the Governor of California lacked authority to concur in the Secretary s two-part determination under U.S.C. (b)()(a), Doc. at. As North Fork has explained in its summary judgment brief, that claim fails for three reasons of federal law. First, Stand Up is collaterally estopped from bringing a claim based on the Governor s concurrence in this Court because the District of Columbia court held that the State of California is an indispensable party to any federal claim based on that issue, a ruling that Stand Up did not appeal. Doc. at -. Second, Stand Up s claim fails on the merits because, as a matter of federal law, the Secretary was not required to consider the validity of the concurrence under state law in issuing the Secretarial Procedures - -

9 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 and Stand Up cannot challenge issuance of the Secretarial Procedures by collaterally attacking the Madera Site s eligibility for gaming. Doc. at -. Third, Stand Up s claim fails even if the Secretary were required to consider the concurrence because the lawfulness of the Secretary s action must be evaluated based on the record before the agency when the action was taken not based on a subsequent state-court decision and also because the Secretary was entitled to rely on the Governor s facially valid concurrence. Doc. at -. This Court can and should resolve Stand Up s claim on any of those grounds, without regard to whether the Governor s concurrence is held to be valid under state law. Because the Secretary s prescription of the Secretarial Procedures should be upheld as a matter of federal law regardless of how the California Supreme Court disposes of Stand Up s case against the Governor, this Court should not stay its resolution of Stand Up s fifth claim. II. THIS COURT LACKS AUTHORITY TO STAY THIS CASE EVEN IF THE CALIFORNIA SUPREME COURT S DECISION WERE RELEVANT TO ONE OF STAND UP S CLAIMS Stand Up s motion also fails as a threshold matter because this Court lacks authority to 0 stay this case under the governing U.S. Supreme Court and Ninth Circuit law. First, a federal court may not stay an APA action for a pending state-court case because the APA confers exclusive jurisdiction on federal courts. Second, federal courts may not stay any federal action for a pending state-court case if the state-court case will not resolve the federal litigation. A. Colorado River Supplies The Governing Law For Determining Whether A Federal Case May Be Stayed For A Pending State-Court Case Stand Up argues (Doc. at 0-) that this Court has authority to stay its case under Landis v. North American Co., U.S. (). That is wrong. The relevant standard is supplied by Colorado River Water Conservation District v. United States, U.S. 00 (), which does not permit this Court to stay this case because Stand Up s claims against the Secretary fall under exclusive federal jurisdiction. Stand Up notes (Doc. at ) that in the related Picayune case pending before this Court, North Fork had stated that if the Court disagreed with North Fork s position that - -

10 Case :-cv-0-awi-epg Document Filed 0// Page 0 of Picayune s case required adjudication of only federal issues and instead determined that Picayune s case required adjudication of state-law issues pending before the California Supreme Court then it would be appropriate either to stay the case, citing Landis, or decide the state-law issue on the merits. See Picayune Rancheria of Chukchansi Indians v. U.S. Dep t of Interior, No. -0, Doc. at (E.D. Cal. Mar., 0). Stand Up s case is different from Picayune s because Stand Up has brought additional claims that do not depend on its allegation that the Governor s concurrence is invalid under state law and Stand Up has made clear that it will continue to prosecute this action even if the California Supreme Court upholds the Governor s concurrence. Regardless, upon researching the stay issue in response to Stand Up s motion, North Fork discovered preexisting Ninth Circuit authority it believes to be controlling; accordingly, it no longer believes that Landis authorizes this Court to stay the Picayune litigation, and instead believes that Ninth Circuit authority precludes a stay in either case. North Fork thus filed a notice in the Picayune case to withdraw its prior position on a stay and to provide this Court with the Ninth Circuit authority that North Fork believes is binding in both cases. See Picayune, Doc.. Picayune is currently briefing its response. See id., Doc. 0. For similar reasons explained below, this Court lacks authority to stay Stand Up s case. Colorado River not Landis supplies the governing law for any stay of a federal action based on a pending state-court proceeding. This Court recently addressed that issue in Abrahamson v. Berkley, 0 WL 00 (E.D. Cal. Sept., 0) (Ishii, J.). It pointed out North Fork filed a notice of supplemental authority in the Picayune case because North Fork discovered the relevant Ninth Circuit authorities after it had completed its summary judgment briefing in that case specifically, in preparing its opposition to Stand Up s stay motion. North Fork believed that it had a duty to inform the Court of binding Ninth Circuit precedent inconsistent with the position taken in its briefing. Cf. Fed. R. App. P. (j) (notice of supplemental authorities in an appeal may be filed for pertinent and significant authorities [that] come to a party s attention after the party s brief has been filed ); AA Wright et al., Federal Practice & Procedure. (th ed. 0) (Rule (j) notice can be used to bring to the court s attention an authority that existed, but was not found by counsel, prior to briefing or argument ); A Van Arsdale et al., Federal Procedure.0 (0) (Rule (j) does not require that the supplemental authority be unavailable at the time of briefing; it requires only that the supplemental material come to the attention of a party after the party s brief has been filed ). When the Court granted the federal defendants unopposed motion for an extension of the briefing schedule in this litigation, North Fork believed it was appropriate to promptly inform the Court of the pertinent authority in the related Picayune litigation, rather than let the issue go unaddressed in that case while the briefing in this case was continued. See Stand Up, Doc. ; Picayune, Doc.. The Court has now granted Picayune s request for an opportunity to respond by August. See Picayune, Doc

11 Case :-cv-0-awi-epg Document Filed 0// Page of that Landis and Colorado River are separate doctrines. Id. at *. It observed that although courts had not taken a uniform approach to Landis, it was not aware of a Ninth Circuit or Supreme Court case that has authorized a Landis stay when there is a parallel state case pending. Id. at * n.. Stand Up also has not cited any such case. This Court further noted that in Colorado River, the Supreme Court distinguished between cases like Landis that are pending concurrently in federal courts, where though no precise rule has evolved, the general principle is to avoid duplicative litigation, and cases instead that are pending concurrently in a state court and a federal court, where the federal courts have a virtually unflagging obligation to exercise the jurisdiction given them. Id. (quoting Colorado River, U.S. at ). This Court recognized that therefore some courts have found that Landis does not apply in concurrent state-federal cases, and it found that the rationale of these cases is persuasive. Id. The Court, however, declined to definitively decide whether Landis, as opposed to Colorado River, could apply in concurrent state-federal cases because no stay was warranted under either Landis or Colorado River and parties had not adequately briefed the issue. Id. Here, this Court should apply Colorado River not Landis to determine whether a stay is both authorized and warranted (if it decides that Stand Up s case turns on state-law issues at all). As the Ninth Circuit has explained, the Colorado River doctrine allows a district court to stay or dismiss a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration, as an exception to the federal courts virtually unflagging obligation to exercise the jurisdiction given them. Minucci v. Agrama, F.d, (th Cir. ) (quoting Moses H. Cone Mem l Hosp. v. Mercury Constr. Corp., 0 U.S., - () (emphasis added by Ninth Circuit)); see Intel Corp. v. Advanced Micro Devices, Inc., F.d 0, (th Cir. ) ( The Supreme Court has stressed that the Colorado River exception to the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them is a narrow one. ). Under the Colorado River framework, however, the Ninth Circuit has held that courts may only stay claims that are within the concurrent jurisdiction of the federal courts. Minucci, F.d at ; see also Scotts Co. v. Seeds, Inc., F.d, (th Cir. 0) ( The - -

12 Case :-cv-0-awi-epg Document Filed 0// Page of federal district courts ordinarily must apply the test outlined in Colorado River in determining whether to stay federal proceedings in favor of pending state court proceedings concerning the same subject matter. ) (quoting 0 Wash. St. Corp. v. Lusardi, F.d, (th Cir. )). For claims under the exclusive jurisdiction of the federal courts, there is no such exception to the federal courts virtually unflagging obligation to exercise their jurisdiction. As the Ninth Circuit has held: [T]he district court has no discretion to stay proceedings as to claims within exclusive federal jurisdiction under the wise judicial administration exception. Id. (quoting Silberkleit v. Kantrowitz, F.d, (th Cir. ) (emphasis added by Ninth Circuit)). Colorado River and Minucci limit any discretionary authority that the Court could otherwise have under Landis. Indeed, the authority allowed under Landis cannot be read without reference to the limitation imposed by Minucci, because doing so would render Minucci meaningless. Unichappell Music, Inc. v. Modrock Prods., LLC, 0 WL 0, at * (C.D. Cal. June 0, 0). The Ninth Circuit has summarized: [T]he circuit courts, and the Ninth Circuit in particular, have uniformly held that a district court may not grant a stay in this context. Intel Corp., F.d at n. (citing Minucci, F.d at ; Silberkleit, F.d at ; Medema v. Medema Builder, F.d 0, (th Cir. )). Many other courts have similarly held that Colorado River not Landis governs when there are parallel federal and state proceedings, as this Court recognized. See Abrahamson, 0 WL 00, at * n. (citing cases). Landis s discretionary rule does not apply, in other words, because [a] policy permitting federal courts to yield jurisdiction to state courts cavalierly would betray the virtually unflagging obligation to exercise the jurisdiction given [to the federal courts]. Ambrosia Coal & Constr. Co. v. Pages Morales, F.d 0, (th Cir. 00). To permit a district court to rely solely on its inherent power to control its docket, when the effect of the district court s order is to accomplish the same result contemplated by Colorado River, would allow a court to bypass the rigorous test set out by the Supreme Court. Cottrell v. Duke, F.d, (th Cir. 0). See also, e.g., Fishman Jackson PLLC v. Israely, 0 F. Supp. d, (N.D. Tex. 0) ( This Court concludes that the correct view is that the Colorado River standard and not a standard derived from Landis applies when a court is considering a motion to stay in favor of a state court proceeding - -

13 Case :-cv-0-awi-epg Document Filed 0// Page of B. This Court Lacks Authority To Stay Stand Up s Case Under Colorado River Stand Up cannot show that its case meets the exceedingly rare circumstances when Colorado River authorizes a stay for the reasons below. See Smith v. Cent. Ariz. Water Conserv. Dist., F.d 0, 0 (th Cir. 00); see also Scotts, F.d at. First, as noted, the Ninth Circuit has squarely held that under Colorado River, a district court has no authority to stay claims within exclusive federal jurisdiction. Minucci, F.d at (th Cir. ); see also Legal Econ. Evaluations, Inc. v. Metro. Life Ins. Co., F.d, (th Cir. ) ( The district court followed binding Ninth Circuit precedent which precludes Colorado River abstention where federal jurisdiction is exclusive. ); Intel Corp., F.d at n.. Federal courts have exclusive jurisdiction to review challenges to federal agency actions under the APA. Aminoil U.S.A., Inc. v. California State Water Res. Control Bd., F.d, (th Cir. ). Stand Up s claims challenging the Secretary s prescription of Secretarial procedures including its fifth claim are APA claims and fall within exclusive federal jurisdiction. Therefore, this Court lacks authority to stay them. See City & Cty. of San Francisco v. United States, 0 F. Supp., (N.D. Cal. ) ( Plaintiff has brought its action under the [APA], U.S.C. 0 et seq., which creates exclusive jurisdiction in the federal courts to review decision of federal agencies. Thus, the court has no discretion to stay its review. ); cf. Unichappell Music, 0 WL 0, at * ( [Defendant s] request for a stay under the Colorado River doctrine is fatally flawed because the instant case involves a claim for federal copyright infringement, which is within the exclusive jurisdiction of the federal courts. ). Second, the Ninth Circuit has also held that even when there is concurrent state-federal jurisdiction over a case, Colorado River does not permit a stay where the state proceeding will not resolve the federal litigation. Among other requirements, a district court may enter a Colorado River stay order only if it has full confidence that the parallel state proceeding will end the litigation. Intel Corp., F.d at. Where there is any substantial doubt as to whether the parallel state-court litigation will be an adequate vehicle for the complete and when the state court preceding will have a preclusive effect on any of the issues being considered by the federal court. ); Schulein v. Petroleum Dev. Corp., 0 WL, at * (C.D. Cal. June, 0). - -

14 Case :-cv-0-awi-epg Document Filed 0// Page of prompt resolution of the issues between the parties, it would be a serious abuse of discretion [for the court] to grant the stay or dismissal at all. Moses H. Cone Mem l Hosp., 0 U.S. at ; e.g., Holder v. Holder, 0 F.d, (th Cir. 00) (district court abused discretion [b]ecause there is substantial doubt that a final determination in the [state] proceeding will resolve all of the issues in the federal case). As this Court has accordingly summarized, the existence of a substantial doubt as to whether the state proceedings will resolve the federal action precludes Colorado River stay or dismissal. Abrahamson, 0 WL 00, at *0 (quoting Railroad St. & Co. v. Transp. Ins. Co., F.d,, (th Cir. 0)). The California Supreme Court s decision will not resolve this federal action. Stand Up has not even asserted that the California Supreme Court s decision is relevant to its first four claims, which challenge the Secretary s issuance of the Secretarial Procedures and compliance with FOIA on grounds unrelated to the Governor s concurrence. Instead, it has made clear (Doc. at ) that it will continue to prosecute those claims even if it loses in the California Supreme Court. Therefore, the California Supreme Court s decision will not resolve this action, and this Court lacks authority to stay this case. Moreover, there is substantial doubt as to whether the California Supreme Court s decision would resolve even Stand Up s fifth claim. Stand Up has made clear that it will continue to prosecute that claim if the California Supreme Court does not uphold the Governor s concurrence, but, as North Fork argues in its summary judgment brief, there are independent reasons of federal law why Stand Up s claim would still fail as a matter of federal law regardless of the California Supreme Court s decision. Thus, notwithstanding that decision, the parties would still need to litigate and this Court would still need to adjudicate those federal-law defenses to Stand Up s claim. The Ninth Circuit has held that when a statecourt decision will resolve a federal claim only if it is decided in favor of one party (but not the other), that contigenc[y] raises the substantial doubt sufficient to preclude a Colorado River stay. Intel Corp., F.d at. North Fork s federal-law defenses raise the same substantial doubt that precludes a stay here. - -

15 Case :-cv-0-awi-epg Document Filed 0// Page of 0 III. THIS CASE SHOULD NOT BE STAYED UNDER LANDIS EVEN IF THIS COURT HAD AUTHORITY TO DO SO Even if Colorado River does not preclude a stay and instead Landis supplies the proper 0 0 standard, Stand Up has not met its burden of demonstrating that a stay of its own case is warranted under Landis. In determining whether to grant a Landis stay, courts consider [] the possible damage which may result from the granting of a stay, [] the hardship or inequity which a party may suffer in being required to go forward, and [] the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. Lockyer v. Mirant Corp., F.d 0, 0 (th Cir. 00) (quoting CMAX, Inc. v. Hall, 00 F.d, (th Cir. )). Stand Up cannot meet its burden on any of those factors. See Clinton v. Jones, 0 U.S., 0 () ( proponent of a stay bears the burden of establishing its need ). A. A Stay Will Damage North Fork A stay will harm North Fork by delaying resolution of this case. Courts within this Circuit have repeatedly recognized the inherent prejudice to [the defendant] resulting from a stay. Doe v. AOL, LLC, F. Supp. d 0, 0 (N.D. Cal. 00); see, e.g., Washington v. Andrews, 0 WL, at * (E.D. Cal. Jan., 0); Jaladian v. Hernandez, 0 WL 0, at * (E.D. Cal. Aug., 0); In re ConAgra Foods, Inc., 0 WL 00, at * (C.D. Cal. Dec., 0); see generally Anderson v. Air West, Inc., F.d, (th Cir. ) ( The law presumes injury from unreasonable delay in resolving an action.). In particular, a stay here would maintain a cloud of federal litigation over North Fork s project. Stand Up notes (Doc. at ) that a stay would not prevent North Fork from engaging in class III gaming activity because the Secretarial Procedures have already issued. But so long as Stand Up s challenges to the Procedures remain pending, those challenges inject uncertainty into North Fork s project and remain an impediment to other significant steps in North Fork s project, such as financing. North Fork s project is critical to its efforts to bring its citizens out of poverty, to achieve self-determination, and to fulfill IGRA s other goals. Stand Up should not be - 0 -

16 Case :-cv-0-awi-epg Document Filed 0// Page of permitted to keep its case hanging over the project. Stand Up is the plaintiff that chose to bring the case here; the defendants should be entitled to have the case timely resolved. Stand Up also mischaracterizes (Doc. at -) North Fork s position on any potential stay in the Picayune case. Contrary to Stand Up s assertion (id. at ), North Fork did not acknowledge that it was amenable to such a stay in response to a similar claim raised by Picayune. As noted above, North Fork made clear that it opposed a stay in Picayune because Picayune s case does not turn on issues of state law; North Fork supported a stay only if the Court rejected North Fork s federal-law arguments and instead decided that Picayune s case turned on state law. See Picayune, Doc. at ; id., Doc. at. Stand Up s case is not similar to Picayune s because Stand Up has made clear that it will continue to prosecute this action even if the California Supreme Court upholds the Governor s concurrence and Stand Up has brought claims that are unrelated to the Governor s concurrence. In any event, as explained above, North Fork no longer believes that the Court has authority to stay Picayune s case, and North Fork has therefore filed a notice in that case withdrawing its prior position. See Picayune, Doc.. This Court should not stay either case. B. Stand Up Will Not Face Inequity From Proceeding With Its Own Case Stand Up will not suffer any cognizable hardship or inequity in prosecuting the very case that it filed in this court only months ago. A party seeking a stay must make out a clear case of hardship or inequity in being required to go forward if there is even a fair possibility that the stay will work damage to the opposing party. Landis, U.S. at. Stand Up has not asserted and cannot show that it would suffer any hardship. Stand Up has already briefed its summary judgment motion with respect to its claims. Requiring Stand Up to complete the dispositive briefing on the very claims it elected to file (and has already begun briefing) does not prejudice Stand Up. North Fork consented to the federal defendants extension requests as a matter of professional courtesy not as an indication that it would not be prejudiced by delaying resolution of Stand Up s claims. - -

17 Case :-cv-0-awi-epg Document Filed 0// Page of Stand Up makes a passing assertion (Doc. at ) that any ruling by this Court on the legality of the Governor s concurrence would be contrary to the decision in Stand Up v. DOI [0 F. Supp. d (D.D.C. 0)] upon which Stand Up relied in bringing its fifth claim in this action, noting that Stand Up did not appeal the district court s decision dismissing its challenge to the concurrence. The fact that Stand Up has already litigated and lost one set of claims based on the Governor s concurrence provides no basis for staying this one. To the contrary, Stand Up s decision not to appeal its prior loss simply confirms that its concurrencerelated challenges are barred by collateral estoppel for the reasons set forth in North Fork s motion for summary judgment. See Doc. at -. C. A Stay Would Impede The Orderly Course Of Justice A stay of Stand Up s case would not further the orderly course of justice. Contrary to Stand Up s assertion (Doc. at 0), the California Supreme Court decision will not greatly simplify this case. The California Supreme Court has not even been presented with any issue raised by the first four claims; state law is irrelevant to them. Thus, Stand Up has made clear (id. at ) that it will continue to prosecute those claims regardless of whether it wins or loses in the California Supreme Court. Moreover, the California Supreme Court s decision will not necessarily simplify Stand Up s fifth claim because even if the California Supreme Court does not uphold the Governor s concurrence under state law and Stand Up continues to prosecute its claim here, the parties will have to litigate North Fork s federal-law defenses to Stand Up s fifth claim. Those defenses are already being briefed in this action. In short, a stay will not further the orderly course of justice because this case raises a number of legal issues not embodied in the state court action. I.K. ex rel. E.K. v. Sylvan Union Sch. Dist., F. Supp. d, (E.D. Cal. 00). Instead, a stay would frustrate the course of justice by undermining IGRA s goal of facilitating gaming by Indian tribes under Secretarial procedures on an expedited basis. Rincon Band, 0 F.d at 0. [A] stay should not be granted unless it appears likely the other proceedings will be concluded within a reasonable time in relation to the urgency of the claims presented to the court. Dependable Highway Exp., Inc. v. Navigators Ins. Co., F.d - -

18 Case :-cv-0-awi-epg Document Filed 0// Page of , 0 (th Cir. 00) (quoting Leyva v. Certified Grocers of Cal., Ltd., F.d, (th Cir. )). There is no likelihood that the California Supreme Court will render its decision in its Stand Up case in the near term. The Stand Up case is being held for another case, United Auburn, that is still in the middle of merits briefing. Oral argument has not yet been scheduled in United Auburn, and no decision is expected until late 0. The California Supreme Court will presumably return to Stand Up only after it disposes of United Auburn, at which point it could order briefing on the merits, transfer it back to the state intermediate court with instructions, or dismiss the matter, all of which could carry into 0 or beyond. See Cal. R. Ct... Stand Up does not dispute any of that. It merely cites (Doc. at 0) one case in which a partial stay was issued that does not support Stand Up s argument. See In re Taco Bell Wage & Hour Actions, 0 WL (E.D. Cal. Aug. 0, 0). In that case, the plaintiffs brought state claims that were entirely governed by state law, and the defendant sought a stay pending a California Supreme Court case that had been fully briefed and waiting for a decision by the California Supreme Court for over a year. Id. at *. In contrast, Stand Up has brought federal claims under the APA, which are governed by federal law; Stand Up, as the plaintiff, has sought a stay of its own case, which the defendants have opposed; and Stand Up has sought a stay for a California Supreme Court case in which merits briefing has not even begun and that is being held for another case on which briefing is not even complete. As this Court has noted in previously denying a Landis stay, it is well established that the general rule is that the pendency of an action in state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction. Abrahamson, 0 WL The California Supreme Court granted review of United Auburn case on January, 0. See United Auburn Indian Cmty. of Auburn Rancheria v. Brown, P.d (Cal. 0). The average time between when the California Supreme Court grants a civil case and when it decides the case is 00 days. See Jenkins, California Supreme Court In 0: A Year In Transition, Law0 (Feb., 0), available at If that average holds for the United Auburn case, there will not be a decision until December,

19 Case :-cv-0-awi-epg Document Filed 0// Page of 0 00, at * (quoting Colorado River, U.S. at ). Stand Up has not met its burden of demonstrating that its case falls outside that general rule. A stay is not warranted under Landis. CONCLUSION For the foregoing reasons, the Court should deny Stand Up s motion to stay this action. 0 0 DATED: July, 0 Respectfully submitted, By: /s/ Christopher E. Babbitt DANIELLE SPINELLI (PRO HAC VICE) CHRISTOPHER E. BABBITT (SBN ) WILMER CUTLER PICKERING HALE AND DORR LLP Pennsylvania Avenue, N.W. Washington, D.C. 000 Telephone: (0) -000 Facsimile: (0) - danielle.spinelli@wilmerhale.com christopher.babbitt@wilmerhale.com JOHN A. MAIER (SBN ) MAIER PFEFFER KIM GEARY & COHEN LLP 0 Broadway, Suite Oakland, CA Telephone: (0) -00 Facsimile: (0) jmaier@jmandmplaw.com Attorneys for Intervenor-Defendant THE NORTH FORK RANCHERIA OF MONO INDIANS OF CALIFORNIA Stand Up argues (Doc. at -) that there is sufficient reason in this case to support a stay based on the likelihood that the California Supreme Court will invalidate the concurrence. But as Stand Up acknowledges (id. at ) that is not a factor considered under Landis. Even if it were relevant, Stand Up is wrong that the California Supreme Court will likely invalidate the concurrence for the reasons explained in North Fork s summary judgment brief. See Doc. at

20 Case :-cv-0-awi-epg Document Filed 0// Page 0 of 0 STAND UP FOR CALIFORNIA!, et al., Plaintiffs, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. :-cv-0-awi-epg v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. CERTIFICATE OF SERVICE 0 0 I hereby certify that, on July, 0, I electronically filed the foregoing document with the Clerk of the Court for the U.S. District Court for the Eastern District of California using the CM/ECF system, which sent notification of such filing to counsel of record in this case. /s/ Christopher E. Babbitt CHRISTOPHER E. BABBITT (SBN ) WILMER CUTLER PICKERING HALE AND DORR LLP Pennsylvania Avenue, N.W. Washington, D.C. 000 Telephone: (0) -000 Facsimile: (0) - christopher.babbitt@wilmerhale.com CERTIFICATE OF SERVICE