Case 3:99-cv KC Document 591 Filed 12/29/15 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION STATE OF TEXAS, Plaintiff, v. YSLETA DEL SUR PUEBLO, TIGUA GAMING AGENCY, THE TRIBAL COUNCIL, TRIBAL GOVERNOR CARLOS HISA OR HIS SUCCESSOR, No. EP-99-CA-0320-KC Defendants. REPLY IN SUPPORT OF PUEBLO DEFENDANTS MOTIONS TO VACATE INJUNCTION AND DISMISS CASE -OR IN THE ALTERNATIVE- TO MODIFY INJUNCTION AND STAY FURTHER PROCEEDINGS

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 2 of 24 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii REPLY IN SUPPORT OF MOTION TO DISMISS...1 ARGUMENT... 1 I. Plaintiff Misstates Fifth Circuit Case Law and NIGC s Historic Position... 1 A. Plaintiff Wrongly Claims that the Fifth Circuit Court of Appeals Has Rejected the Argument that IGRA Applies to Class II Gaming on the Pueblo... 1 B. The Court Already Has Rejected Plaintiff s Claims Regarding NIGC s Past Position on its Jurisdiction Under IGRA... 4 II. Congress Cannot Saddle this Court with Regulatory Tasks in Perpetuity... 6 III. This Court Must Defer to the Executive Branch Determinations that IGRA Applies to Class II Gaming on the Pueblo... 8 A. NIGC Is an Independent Agency Whose Determinations Do Not Need Approval by the Secretary of the Interior... 8 B. NIGC s Determination that the Pueblo s Lands Are Indian lands Under IGRA Is Entitled to Chevron Deference... 9 C. Both the Department of Interior s Determination and NIGC s Reliance on that Determination Are Entitled to Deference... 10 IV. The APA Arguments in Plaintiff s Response Are Without Merit... 11 V. Plaintiff Has Conceded Those Issues it Chose to Ignore... 16 A. Plaintiff s Single Sentence Argument Responding to its Failure to Name Two Indispensable Parties Is Insufficient to Support a Ruling for Plaintiff... 16 B. Plaintiff Did Not Address, Let Alone Dispute, the Power of this Court to Amend its Injunction, and Ignored all Arguments Supporting Amendment and Entry of a Stay... 17 CONCLUSION... 17 CERTIFICATE OF SERVICE... 18 ii

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 3 of 24 TABLE OF AUTHORITIES Page CASES Accord Brock v. El Paso Nat. Gas Co., 26 F.2d 369, 374 (5th Cir. 1987)...4 Accord Canal Ins. Co. v. XMEX Transp., LLC, 48 F. Supp. 3d 958, 970 (W.D. Tex. 2014)...5 Accord Ry. Labor Executives Ass n v. Wheeling & Lake Erie Ry. Co., 756 F. Supp. 249, 255 (E.D. Va. 1991)...7 Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1291-92 (11th Cir. 2015)...1, 16 Cf. Printz v. United States, 21 U.S. 898, 935 (1997)...7 Chambers v. Sears Roebuck & Co., 428 F. App x 400, 408 (5th Cir. 2011)... 17-18 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984)...6 City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1870-71 (2013)...9 Commonwealth v. Wampanoag Tribe of Gay Head, No. CV 13-13286-FDS, 2015 WL 7185436, at *20 (D. Mass. Nov. 13, 2015)...10 de la O v. Hous. Auth. of City of El Paso, Tex., 417 F.3d 495, 501 (5th Cir. 2005)...16 Diamond Game Enterprises, Inc. v. Reno, 230 F.3d 365, 369 (D.C. Cir. 2000)...9 Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1297 (5th Cir. 1994)...16 Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1148 (9th Cir. 2013)... 10-11 Gordon v. N.Y.S.E., Inc., 422 U.S. 659, 689-691 (1975)...15 iii

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 4 of 24 Luminant Generation Co. v. U.S. E.P.A., 714 F.3d 841, 857 (5th Cir. 2013)...5 McMaster v. United States, 731 F.3d 881, 892 (9th Cir. 2013)...10 Marine Cooks & Stewards, AFL v. Panama S.S. Co., 362 U.S. 365, 369 (1960)...6 Match E Be Nash She Wish Band of Pottawatomi Indians v. Patchak, U.S. 132 S.Ct. 2199, 2208 (2012)...1 Nat l Cable & Telecommunications Ass n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005)...3 O Lone v. Estate of Shabazz, 482 U.S. 342, 349-50 (1987)...6 Passamaquoddy Tribe v. State of Me., 75 F.3d 784, 791 (1st Cir. 1996)...13 Pittston Co. v. United States, 368 F.3d 385, 394 (4th Cir. 2004)...15 Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1265 (10th Cir. 2001)...9 Simons v. Vinson, 394 F.2d 732, 736 (5th Cir. 1968)...17 State of R.I. v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994)...11 Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d Cir. 2003)...15 Texas v. del Sur Pueblo, 220 F.Supp. 2d 668, 674 (W.D. Tex. 2001), modified (May 17, 2002)...2, 8 Texas v. Ysleta del Sur Pueblo, 20 F. Supp. 2d 668 (W.D. Tex. 2001)...2, 8 Texas v. Ysleta del Sur Pueblo, 69 F. App x. 659 (5th Cir. 2003)...2, 8 iv

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 5 of 24 Texas v. Ysleta del Sur Pueblo, 431 F. App x 326 (5th Cir. 2011)...2 Texas v. United States, 497 F.3d 491, 508 (5th Cir. 2007)...3, 8 U.S. v. Crittenden, 600 F.2d 478 (5th Cir. 1979)...14 U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)...16 U.S. ex rel. Gage v. Davis S.R. Aviation, L.L.C., 613 F. App x 445, 447 n. 9 (5th Cir. 2015)...3 U.S. v. Holtzman, 762 F.2d 720 (9th Cir. 1985)...7 U.S. ex rel. Lam v. Tenet Healthcare Corp., 481 F. Supp. 2d 673, 680 (W.D. Tex. 2006)...5 U.S. v. Mead Corp., 533 U.S. 218, 234-35 (2001)...10 Verizon Commc ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 414-15 (2004)...6 Ysleta Del Sur Pueblo v. State of Tex., 852 F. Supp. 587, 597 (W.D. Tex. 1993)...15 Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994)...2, 15 STATUTES 25 U.S.C. 1300g-2(a)...12 25 U.S.C.A. 1300g-6...14 25 U.S.C. 1300g-6(a)...13 25 U.S.C. 1300g-6(b)...9, 13, 14 25 U.S.C. 1735(b)...13 5 U.S.C. 2701 et seq...9 25 U.S.C.A. 2702...14 v

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 6 of 24 RULES Fed. R. Civ. P. 60 (b)...3, 4 OTHER AUTHORITY Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (2003)... 6 Democracy by Decree: What Happens When Court s Run Government... 6 vi

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 7 of 24 ARGUMENT Plaintiff does not, and cannot, dispute that it bears the burden of showing that this Court has jurisdiction in this matter. But instead of attempting to meet that burden, Plaintiff s response ignores the majority of the jurisdictional arguments and instead focuses on the propriety of two federal executive branch decisions. The propriety of those decisions is a garden variety APA claim 1 raising a collateral issue that cannot be raised in this case. 2 The issue the Court directed the parties to address, the issue on which Plaintiff bears the burden, and the issue squarely raised in the pending motions is this Court s jurisdiction to continue acting as the de facto regulatory agency overseeing gaming on the Pueblo, when Congress has created a federal executive branch agency specifically tasked to perform that function. Because Congress could not have intended to saddle this Court with regulatory tasks in perpetuity, because there are two indispensable parties who must be - but are not - parties to this case, and because two offices of the Executive Branch have confirmed that IGRA provides the regulatory framework under which gaming is to be conducted on the Pueblo, this Court is without jurisdiction in this case. I. Plaintiff Misstates Fifth Circuit Case Law and NIGC s Historic Position. A. Plaintiff Wrongly Claims that the Fifth Circuit Court of Appeals Has Rejected the Argument that IGRA Applies to Class II Gaming on the Pueblo. Plaintiff claims in its response that the issue of whether IGRA applies to class II gaming on the Ysleta del Sur Pueblo has three times been rejected by the Fifth Circuit Court of Appeals. ECF No. 538 at 7. In support of its claim, Plaintiff cites to three Fifth Circuit decisions without further explanation. Id. at note 3. But the three cited decisions did not decide regulation 1 Match E Be Nash She Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2208 (2012) (characterizing challenge to Interior decision as a garden-variety APA claim ). 2 Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1291-92 (11th Cir. 2015) ( We hold that Alabama cannot raise in this lawsuit a collateral challenge to the Secretary s authority... ). 1

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 8 of 24 of class II gaming, and instead only resolved class III gaming issues. 1. Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994), applied only to class III gaming compacts: the Tribe has already made its compact with the state of Texas, and the Restoration Act embodies that compact. If the Ysleta del Sur Pueblo wishes to vitiate the compact it made to secure passage of the Restoration Act, it will have to petition Congress to amend or repeal the Restoration Act rather than merely comply with the procedures of IGRA. Id. at 1335 (emphasis added). The Court so held after a lengthy discussion of how the term compact is a term of art under IGRA applying solely to class III gaming. 3 2. The litigation leading to Texas v. Ysleta del Sur Pueblo, 69 F. App x. 659 (5th Cir. 2003), once again involved class III gaming devices. See Texas v. del Sur Pueblo, 220 F.Supp. 2d 668, 674 (W.D. Tex. 2001), modified (May 17, 2002) (describing operation of slot machines, card games and dice games). The four sentence appellate opinion does not mention IGRA or the Restoration Act, and instead simply affirms the discretion given this Court s on matters involving its injunction. Texas, 69 F. App x at 659. 3. Finally, the litigation leading to Texas v. Ysleta del Sur Pueblo, 431 F. App x 326 (5th Cir. 2011), once again involved class III gaming devices. Id. at 329 n.14. And once again in its opinion, the Fifth Circuit only held that this Court s sanctions for conducting class III gaming (as subsequently modified) were not criminal in nature, and did not delegate any regulatory, enforcement, or adjudicatory power to the State. Id. at 331. 3 IGRA requires a tribe that seeks to engage in Class III gaming to negotiate a compact with the state in which it is located. Congress viewed tribal-state compacts as the most effective means of balancing tribal sovereignty with the states need to protect the public against the risks typically associated with Class III-type gaming. If a state refuses to negotiate a compact with a tribe, IGRA permits the tribe to sue the state in federal court. 2

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 9 of 24 The Fifth Circuit has never been called upon to rule on the issue of regulatory authority over class II gaming by the Pueblo. 4 And even if it had, NIGC would not be bound by that analysis. Nat l Cable & Telecommunications Ass n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005) ( a court s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative,... the agency may... choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes ). Ignoring that reality, Plaintiff has woven a fairy tale description of what it wishes the litigation to be about, and what it imagines has and has not been decided. But the Executive Branch determinations, and the pending motions, require the Court to look beyond what Plaintiff wishes had happened in the past and instead address the actual procedural posture and pending legal issues now present in this case. Because the Fifth Circuit has never addressed regulation of class II gaming on the Pueblo under IGRA, and given the NIGC s authority to review the issue even if it had, this Court must now give proper deference to these Executive Branch decisions, particularly as they apply to the motion to amend the injunction under Fed. R. Civ. P. 60 (b). United States ex rel. Gage v. Davis S.R. Aviation, L.L.C., 613 F. App x 445, 447 n.9 (5th Cir. 2015) (reversing and remanding where district court failed to reach the merits of a Rule 60(b) motion, stating the district court need not seek leave to consider a Rule 60(b) motion even after appellate review is finished ). 5 4 Plaintiff similarly misconstrues the holding in Texas v. United States, 497 F.3d 491 (5th Cir. 2007). That case does not stand for the proposition that the Secretary of Interior has no power to adopt regulations under IGRA. Instead, the Court held that [t]he only exception to the [Class III gaming] compact requirement Congress envisioned was the promulgation of procedures after a bad-faith determination and in concert with the proposal selected by a court-appointed mediator. Id. at 508-09 (emphasis added). 5 Plaintiff makes a vague reference to stare decisis in its memorandum, ECF No. 538 at 15, but does not elaborate on the issue which, as noted above, is not applicable here. Accord Brock v. El 3

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 10 of 24 B. The Court Already Has Rejected Plaintiff s Claims Regarding NIGC s Past Position on its Jurisdiction Under IGRA. Plaintiff s response laments what it describes as the abrupt reversal in legal position by the NIGC. ECF No. 538 at 7. But once again Plaintiff ignores history and procedural fact. At a hearing on November 16, 2009, this Court asked counsel for the Plaintiff to identify an independent third party that could provide regulatory oversight of gaming activities on the Pueblo. Transcript of Record (Nov. 16, 2009) at 39:3-4. In its April 21, 2010 status report, the Pueblo notified the Court that in response to that request, the Pueblo was seeking to have NIGC exercise regulatory jurisdiction over the Pueblo. ECF No. 319. Neither the Court nor the Plaintiff objected. In its July 28, 2010, status report the Pueblo updated the Court: The Pueblo wrote to NIGC asking that it provide technical assistance and training. NIGC denied that request. On May 12, 2010, the Pueblo filed a Complaint for Declaratory and Injunctive Relief against NIGC in the District of Columbia where NIGC has its headquarters. Counsel for the State of Texas, in the action before this Court, requested a copy of the complaint, which the Pueblo has provided. NIGC has filed preliminary motions to which the Pueblo has responded and on which the Pueblo has requested a hearing. The suit is pending and the Pueblo will report to this Court on any relevant developments as the suit progresses. ECF No. 322. Once again Plaintiff did not object. On December 29 of that same year, the Court administratively closed this case. ECF No. 342. 6 In the Pueblo s case against NIGC, NIGC did not move to dismiss based on a position that IGRA was inapplicable. Instead, NIGC moved for a change of venue to the Western District of Texas. Case 1:10-cv-00760-ESH ECF 4. 7 In ruling on that motion, and with full knowledge of the Fifth Circuit s opinions in this case, the District of Paso Nat. Gas Co., 826 F.2d 369, 374 (5th Cir. 1987) ( Stare decisis means that like facts will receive like treatment in a court of law ) (citation omitted). 6 Defendants also notified the Court and the Plaintiff of its efforts to confirm NIGC regulatory authority in their motion to reschedule the October 6, 2014, hearing. ECF No. 479. 7 The Court may take judicial notice of court filings. United States ex rel. Lam v. Tenet Healthcare Corp., 481 F. Supp. 2d 673, 680 (W.D. Tex. 2006). 4

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 11 of 24 Columbia District Court did not rule that IGRA was inapplicable, and instead simply granted the motion for change of venue. Case 1:10-cv-00760-ESH ECF 11. Once the case was before this Court, NIGC moved to dismiss [Case 3:10-cv-00315-HLH ECF 18], but withdrew that motion and filed a new motion to supercede and replace Defendant s Motion to Dismiss and Memorandum in Support, which was submitted for filing on September 13, 2010. Case 3:10-cv-00315-HLH ECF 20. The Court then reviewed the Pueblo s claims under IGRA, and held: An analysis of the IGRA leads to the conclusion that it was Congress clear intent to limit judicial review to certain final agency actions those enumerated in Section 2714. The advisory letter from the general counsel of the NIGC does not fall within any of the statutory categories as to which the IGRA provides judicial review. Therefore the IGRA does not confer jurisdiction in this case. Case 3:10-cv-00315-HLH ECF 24 at 5. It is telling that NIGC did not argue in its motion that IGRA did not apply, and neither this Court nor the District of Columbia Court ever questioned its jurisdiction under IGRA based upon then existing legal precedent. Accord Canal Ins. Co. v. XMEX Transp., LLC, 48 F. Supp. 3d 958, 970 (W.D. Tex. 2014) ( [f]ederal courts must be assured of their subject matter jurisdiction at all times and may question it sua sponte at any stage of judicial proceedings ) (citation omitted). 8 This Court s holding required the Pueblo to identify statutory categories as to which the IGRA provides judicial review. Case 3:10-cv-00315-HLF ECF. 24 at 5. The Pueblo s class II gaming ordinance had been approved by NIGC on October 19, 1993. That approval had never been withdrawn. In part to exhaust administrative remedies, the Pueblo submitted to NIGC amendments to the Pueblo s then still valid class II gaming ordinance. The submission required NIGC to undertake the exhaustive administrative 8 In any event, [a]n agency is not bound to follow a prior, incorrect interpretation of its own policy. Moreover, an agency is permitted to change its policy interpretations. Luminant Generation Co. v. U.S. E.P.A., 714 F.3d 841, 857 (5th Cir. 2013) (citation omitted). 5

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 12 of 24 analysis 9 that lead to its October 5 decision. That is NIGC s final decision on the issue, and one which is entitled to deference. II. Congress Cannot Saddle this Court with Regulatory Tasks in Perpetuity. Plaintiff asks this Court to reject NIGC s decision that IGRA requires NIGC regulation of class II gaming on the Pueblo. Plaintiff s argument would leave this Court as the regulatory body, a task the Court has wrestled with for years. The deference the Supreme Court required in Chevron rests on the recognition that judges cannot constitutionally usurp the role of the political branches of government. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984). Consistent with that separation of powers requirement, both the United States Supreme Court and Congress strongly disapprove of courts acting as regulators. Verizon Commc ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 414-15 (2004) (agreeing that a problem should be deemed irremediable when compulsory access requires the court to assume the dayto-day controls characteristic of a regulatory agency ) (citation omitted); O Lone v. Estate of Shabazz, 482 U.S. 342, 349-50 (1987) (adopting standard that avoids unnecessary intrusion of the judiciary into problems particularly ill suited to resolution by decree ) (citation omitted); Marine Cooks & Stewards, AFL v. Panama S.S. Co., 362 U.S. 365, 369 (1960) ( Congress was intent upon taking the federal courts out of the labor injunction business ). 10 If Congress cannot compel the States to enact or enforce a federal regulatory program it cannot constitutionally turn the federal courts into federal executive branch regulatory bodies. Cf. Printz v. United States, 521 U.S. 898, 935 (1997). 9 See ECF No. 479-1. 10 Legal scholars similarly recognize the impropriety of courts assuming permanent regulatory authority. E.g., Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (2003). 6

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 13 of 24 This Court has bemoaned its conversion into a federal regulator. E.g., Transcript of Record (Mar. 10, 2014) at 5:22-24 ( Now I recite all of this because this Court has great concern over this sort of neverending saga that we re in. This case seems to go on and on ). Even now there is pending Plaintiff s request that the Court resolve regulatory issues such as permissible brightness of lighting, language on signage and availability of refreshments. ECF No. 514 at 33-34. The Court, and the injunctive process, are ill-suited to resolve, on a daily basis, this regulatory minutia. Accord Ry. Labor Executives Ass n v. Wheeling & Lake Erie Ry. Co., 756 F. Supp. 249, 255 (E.D. Va. 1991) ( In general, injunctive relief should be narrowly tailored to remedy or guard against the specific apprehended harm. ), aff d, 943 F.2d 49 (4th Cir. 1991). 11 This is a public nuisance action that has no underlying nuisance. 12 Bingo is not a public nuisance in Texas it is a rampant legal gambling activity engaged in on an immense scale and involving billions of dollars. See ECF No. 584 at 4-5 (Pueblo Defendants Response in Opposition to Motion for Leave to File Brief as Amici Curiae). 13 Most of the money collected goes not to charitable causes, but instead to the businesses that conduct these State-sanctioned operations. Id. And class II bingo conducted pursuant to IGRA is not prohibited by the laws of the State of Texas [25 U.S.C.A. 1300g-6] as confirmed by the class II operation conducted by the Kickapoo 11 To this end, injunctions should be carefully limited in time and scope to avoid unwarranted, nonremedial effects. See United States v. Holtzman, 762 F.2d 720 (9th Cir.1985); Ry. Labor Executives Ass n, 756 F. Supp. at 255 ( the Court concludes that the permanent injunction in this matter should last only so long as there is a realistic risk that labor plaintiffs may resort to illegal self-help measures ). 12 Texas repeatedly has confirmed that it has never sought to extend its criminal laws onto the Pueblo s reservation under PL 280 including in its filings to this Court. E.g., ECF No. 514 at 6 ( Texas has not opted-in for Public Law 280 to apply its state criminal laws to the Tigua Tribe ) 13 The Court has recognized unresolved and multifarious issues of what is and is not permitted by the 1991 amendment to the Texas constitution s gaming prohibitions. ECF No. 510 at 45. That has not changed. See, e.g., Texas Racing Commission refuses to nix historical racing, agency could shut down http://www.star-telegram.com/news/politicsgovernment/article49873430.html 7

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 14 of 24 Tribe in Eagle Pass. See generally Texas v. United States, 497 F.3d 491 (5th Cir. 2007). This Court has recognized the Pueblo Defendants right to conduct bingo, and at one point instructed the Pueblo to procure a license from the Commission while confirming that: the Court s determination does not mean that the Tribe is subject to the regulatory jurisdiction of the Commission. It is not. Upon the Tribe s otherwise qualified showing, and modification of the injunction, the Tribe s charitable bingo activities would not be subject to the Commission s regulatory scheme. Texas v. Ysleta del Sur Pueblo, 220 F. Supp. 2d 668, 707 (W.D. Tex. 2001), modified (May 17, 2002), aff d 69 F. App x 659 (5th Cir. 2003). The Pueblo secured a license as instructed, and now is not subject to the Commission s regulatory scheme. See ECF No. 520 at 12, 17. 14 This nuisance action has imposed upon the Court a regulatory burden for which Congress provided a remedy in IGRA. NIGC, the federal agency specifically tasked by Congress with regulating this very activity, agrees that it is the agency tasked with regulatory oversight of these matters. The Court should reject Plaintiff s argument, defer to that Executive Branch determination, and rid itself of ongoing regulatory oversight never intended by Congress. III. This Court Must Defer to the Executive Branch Determinations that IGRA Applies to Class II Gaming on the Pueblo. A. NIGC Is an Independent Agency Whose Determinations Do Not Need Approval by the Secretary of the Interior. Plaintiff s Response confuses the power and authority of NIGC with that of the Secretary of Interior. NIGC is independent, and not under the control of the Department of Interior: Significantly, however, neither the Secretary nor the Department of the Interior in general is charged with administering IGRA. When Congress enacted IGRA, it established the National Indian Gaming Commission (Commission) and charged the Commission with the exclusive regulatory authority for Indian gaming conducted pursuant to IGRA. 14 As this Court later noted, this noble experiment has not worked in practice. It is time for a new approach to resolving the obvious tension between federal law and state law in relation to the conduct of charitable bingo. ECF No. 282 at 6. Yet to date no workable new approach other than federal regulatory oversight has been identified by either party or the Court. 8

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 15 of 24 Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1265 (10th Cir. 2001). Therefore, and contrary to Plaintiff s argument, this Court must give Chevron deference to NIGC s determination as to its jurisdiction under IGRA. City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1870-71 (2013) ( judges should not waste their time in the mental acrobatics needed to decide whether an agency s interpretation of a statutory provision is jurisdictional or nonjurisdictional.... the question in every case is, simply, whether the statutory text forecloses the agency s assertion of authority, or not ). No further action by the Secretary of Interior is required, or allowed, on NIGC s determination here. Diamond Game Enterprises, Inc. v. Reno, 230 F.3d 365, 369 (D.C. Cir. 2000) ( Congress created the National Indian Gaming Commission, headed by a Chair appointed by the President and confirmed by the Senate presumably for his or her expertise on Indian gaming ). Congress, in the Indian Gaming Regulatory Act, delegated authority to NIGC to monitor and regulate all class II gaming on Indian lands, without exception. 25 U.S.C 2701 et seq. The Court must defer to NIGC on the scope of its regulatory jurisdiction under IGRA. B. NIGC s Determination that the Pueblo s Lands Are Indian lands Under IGRA Is Entitled to Chevron Deference. It is beyond dispute that NIGC has regulatory authority over gaming on Indian lands as that term is defined in IGRA (a fact which Plaintiff has not contested). It is also beyond dispute that in the Restoration Act, Congress unambiguously confirmed that Texas has no civil or criminal regulatory authority over gaming on the Pueblo s lands. 25 U.S.C. 1300g-6(b). Because Texas has no jurisdiction, and the Pueblo does have jurisdiction over its lands, the Pueblo s lands qualify as Indian lands under IGRA as confirmed by NIGC. And because the Pueblo s lands qualify as Indian lands under IGRA, cases that turn on that question are inapplicable to the issues now before the Court. E.g., Commonwealth v. Wampanoag Tribe of 9

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 16 of 24 Gay Head, No. CV 13-13286-FDS, 2015 WL 7185436, at *20 (D. Mass. Nov. 13, 2015) (applying two step Narragansett approach and holding that the Tribe has not met its burden of demonstrating that it exercises sufficient governmental power over the Settlement Lands, and therefore IGRA does not apply ). C. Both the Department of Interior s Determination and NIGC s Reliance on that Determination Are Entitled to Deference. Because NIGC s determination is entitled to Chevron deference and confirms the application of IGRA to the Pueblo, NIGC s decision is the operative Executive Branch action for purposes of the pending motions. However, the DOI letter also is entitled to deference: To agree with the Court of Appeals that Customs ruling letters do not fall within Chevron is not, however, to place them outside the pale of any deference whatever. Chevron did nothing to eliminate Skidmore s holding that an agency s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires. United States v. Mead Corp., 533 U.S. 218, 234-35 (2001) (citations omitted). Applying this Supreme Court precedent, courts have given deference to Solicitor s letters such as the one issued in this case. E.g., McMaster v. United States, 731 F.3d 881, 892 (9th Cir. 2013). It is telling that in the single case cited by Plaintiff in support of its argument that the DOI letter is not entitled to deference [ECF No. 538 at 8 n.7], the court agreed with the determination reached in the Solicitor s letter, and disagreed with the Secretary of Interior who parted ways with the Field Solicitor s report and concluded that the term corporate limits was not ambiguous. Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1148 (9th Cir. 2013), as amended (July 9, 2013). And contrary to Plaintiff s implication, the Court of Appeals held that it was the Secretary, and not the Court, who had the authority to resolve the issue 729 F.3d at 1147 ( we conclude the statute is ambiguous. The Secretary s decision reflects a failure to grapple with the 10

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 17 of 24 ambiguity and prompts us to remand for the Secretary to bring his expertise to bear to interpret the provision anew ). Here, in contrast, DOI did grapple with the ambiguity. The Solicitor opinion is detailed and exhaustive. The Solicitor s office took months to draft its letter, taking twenty-one single spaced pages to set out the Solicitor s analysis with specificity, including the legislative history supporting its conclusions. The DOI letter is entitled to this Court s deference. IV. The APA Arguments in Plaintiff s Response Are Without Merit. Plaintiff s response raises a number of challenges to the NIGC and DOI letters, confirming the need to include those Executive Branch agencies as parties in this litigation. E.g., ECF No. 538 at 7. The Pueblo Defendants nevertheless address certain of Plaintiff s attacks on the Executive Branch determinations to demonstrate that they lack merit. So, for example, the Solicitor s reliance on the conceptual approach adopted by the court in State of R.I. v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994), is well placed. ECF No. 532 at 12-20. The Solicitor confirmed the Narragansett court s two-step analysis: first asking whether the tribe possesses the requisite jurisdiction for the IGRA to apply to the tribe s lands; and next asking whether the tribe s settlement act and the IGRA can be read together, or whether the IGRA impliedly repealed the settlement act s gaming provisions. Id. at 17. Plaintiff does not challenge the propriety of this two-step approach. Instead, Plaintiff simply argues that the facts in Narragansett are different from those presented here. ECF No. 538 at 9-10. Of course they are, but that does not undermine the wisdom of the two-step process, or the propriety of applying that process here. Plaintiff nowhere challenges the Solicitor s decision under the first step of the process the Pueblo possesses the requisite jurisdiction for IGRA to apply to its lands. The only challenge Plaintiff mounts is to the Solicitor s determination of IGRA s impact on the Restoration Act in the context of class II gaming, and the 11

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 18 of 24 NIGC s reliance on that determination in confirming that it is the proper federal regulator of class II gaming on the Pueblo under IGRA. But Plaintiff s direct attack on the NIGC s jurisdictional determination must be brought by way of an APA action against NIGC. Plaintiff s argument regarding what it describes as the Restoration Act s Savings Clause is similarly flawed. ECF No. 538 at 12. Section 103(a) of the Restoration Act is not a savings clause but instead by its very terms confirms the Pueblo s federal trust relationship: (a) Federal trust relationship The Federal trust relationship between the United States and the tribe is hereby restored. The Act of June 18, 1934 (48 Stat. 984), as amended, and all laws and rules of law of the United States of general application to Indians, to nations, tribes, or bands of Indians, or to Indian reservations which are not inconsistent with any specific provision contained in this subchapter shall apply to the members of the tribe, the tribe, and the reservation. 15 25 U.S.C.A. 1300g-2(a). Even if this Court were to read this as a savings clause, it applies to specific provision[s], and nothing more. The only specific provision that the Fifth Circuit found to be inconsistent with IGRA was the class III compact requirement. See I(A) supra. The only specific provision in the Restoration Act that the solicitor found to be inconsistent with IGRA is the enforcement regime. ECF No. 523-2 at 18-19. Because the Restoration Act has no regulatory scheme for class II gaming, there cannot be any inconsistency with the class II regulatory scheme in IGRA. The Restoration Act has one specific provision addressing regulation: Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas. 25 U.S.C.A. 1300g- 6(b). IGRA also does not grant civil or criminal regulatory jurisdiction to states. Because the Restoration Act has no other regulatory provision applicable to class II gaming, and because this 15 The Pueblo has been a sovereign Indian nation since time immemorial. That was confirmed in 1968, but the federal government assigned its trust obligations to the State of Texas. The Restoration Act did not establish the Pueblo, it only restored the federal trust relationship. 12

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 19 of 24 Court has held that the Pueblo s bingo activities would not be subject to the Commission s regulatory scheme, 220 F. Supp. 2d at 707, IGRA s detailed class II regulatory provisions must apply to class II gaming activities like bingo which are not prohibited by the laws of the State of Texas. 25 U.S.C.A. 1300g-6(a). Moreover, when Congress does not want to have all laws of general application to Indians apply, it knows how to say so, as it did six years before passage of the Pueblo s Restoration Act in the federal act settling years of land claim litigation in Maine: 1735 Construction, (b) General Legislation The provisions of any federal law enacted after October 10, 1980 [the effective date of the Maine land claim settlement act], for the benefit of Indians, Indian nations, or tribes or bands of Indians, which would affect or preempt the application of the laws of the State of Maine,... shall not apply within the State of Maine, unless such provision of such subsequently enacted Federal law is specifically made applicable within the State of Maine. 25 U.S.C. 1735(b). The difference could not be more striking as confirmed by the Solicitor s letter, and the First Circuit s opinions in Narragansett 16 and Passamaquoddy. 17 Under the Restoration Act, [a]ll gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation. 25 U.S.C.A. 1300g-6. If a gaming activity is not prohibited by the laws of the State of Texas, then it is not prohibited on the reservation. Bingo is a gaming activity. Bingo is not prohibited by the laws of the State of Texas. So bingo is not prohibited on the Pueblo s reservation. The only question is who, if 16 19 F.3d at 704 ( Even in respect to jurisdiction over gaming, the two laws do not collide headon. Thus, in connection with class III gaming, the Gaming Act does not in itself negate the state s jurisdiction, but, instead, channels the state s jurisdiction through the tribal-state compact process. It is only with regard to class I and class II gaming that the Gaming Act ex proprio vigore bestows exclusive jurisdiction on qualifying tribes. And it is only to these small degrees that the Gaming Act properly may be said to have worked a partial repeal by implication of the preexisting statute ) (footnote omitted). 17 Passamaquoddy Tribe v. State of Me., 75 F.3d 784, 791 (1st Cir. 1996) ( Our opinion in Narragansett Indian Tribe is not to the contrary ). 13

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 20 of 24 anyone, regulates bingo on the Pueblo s reservation. We know it is not the State of Texas. 25 U.S.C.A. 1300g-6(b). Contrary to Plaintiff s argument, it is not inconsistent with any specific provision contained in the Restoration Act for the Pueblo s class II regulatory body to be the independent Federal regulatory authority for gaming on Indian lands. 25 U.S.C.A. 2702. Finally, Plaintiff is also wrong when it claims that the Indian canon of construction does not apply to these issues. The Indian canon requires that when construing ambiguities, courts must be guided by that eminently sound and vital canon, that statutes passed for the benefit of dependent Indian tribes... are to be liberally construed, doubtful expressions being resolved in favor of the Indians. ECF No. 510 at 70 (citation omitted). In 1993, when this Court first addressed gaming on the Pueblo, it held: The clear purpose and intent of the IGRA is to further the economic development of Indian Tribes and to further the longstanding federal goal of establishing tribal independence and self-sufficiency. The State is basically arguing that the IGRA and its clear purpose, allowing gaming activities to be conducted by tribes on tribal lands, should be ignored and that the Ysleta Del Sur Pueblo be barred from obtaining the benefits IGRA was intended to provide for Indian Tribes, this the Court is unwilling to do. The law is clear and well settled, it is basic statutory construction that where there is a conflict in two statutory enactments, the latter enactment will control U.S. v. Crittenden, 600 F.2d 478 (5th Cir.1979). Even if this Court were to follow the State s argument, the Restoration Act would have no effect on the relief the Tribe requests. The Tribe has requested Class III gaming activities which are not prohibited by the laws of the State of Texas. Ysleta Del Sur Pueblo v. State of Texas, 852 F. Supp. 587, 597 (W.D. Tex. 1993). The Court could not have been more clear in its rulings addressing class III gaming. But a three judge panel of the Fifth Circuit reversed for lack of jurisdiction, holding: While the State clearly raised the Eleventh Amendment as a defense to the Tribe s IGRA suit, it did not do the same with regard to the Restoration Act. The State s omission, however, does not mean we are precluded from raising the issue sua sponte, because the Eleventh Amendment operates as a jurisdictional bar. We find nothing in the record indicating that the state of Texas consented to the Tribe s suit. Likewise, in enacting the Restoration Act, Congress said nothing whatsoever which could be construed as an abrogation of the State s sovereign immunity. 14

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 21 of 24 Accordingly, we reverse the district court s summary judgment in favor of the Tribe and remand the case with instructions to dismiss the Tribe s suit for lack of jurisdiction. Ysleta del Sur Pueblo v. State of Texas, 36 F.3d 1325, 1335-37 (5th Cir. 1994). Now before the Court is the question of who regulates class II gaming on the Pueblo, a question as to which there is some dispute, to say the least. The Executive Branch agencies tasked by Congress to implement its will under IGRA and the Restoration Act both say that NIGC is the proper regulatory agency. Plaintiff disagrees, and urges this Court to hold that Congress expected the Court to regulate in perpetuity 18. All parties agree that Texas has no regulatory authority. In such instances, the Court must apply the Indian Canon of Construction, and Plaintiff is wrong when it argues otherwise. And in any event, the ambiguity, vel non, of each of these statutes must be addressed with the participation of the Executive Branch agencies tasked by Congress with their interpretation, underscoring the need for the State to raise these issues in an APA action, and not by way of an end-run around the APA in this pending matter. Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1291-92 (11th Cir. 2015) ( We hold that Alabama cannot raise in this lawsuit a collateral challenge to the Secretary s authority ). V. Plaintiff Has Conceded Those Issues it Chose to Ignore. A. Plaintiff s Single Sentence Argument Responding to its Failure to Name Two Indispensable Parties Is Insufficient to Support a Ruling for Plaintiff. 18 Plaintiff s argument that NIGC and DOI violated the non-delegation doctrine is without merit. ECF No. 538 at 14. The primary case Plaintiff relied on concerns the delegation of power to a private entity and not to a governmental agency. See Pittston Co. v. United States, 368 F.3d 385, 394 (4th Cir. 2004). Agencies created by Congress to administer a comprehensive regulatory scheme, such as NIGC under IGRA, can properly find implied repeals where laws conflict with the regulatory scheme they administer. See In re Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d Cir. 2003) ( The appropriateness of an implied repeal does not turn on whether the antitrust laws conflict with the current view of the regulatory agency; rather it turns on whether the antitrust laws conflict with an overall regulatory scheme that empowers the agency to allow conduct that the antitrust laws would prohibit. ); Gordon v. N.Y.S.E., Inc., 422 U.S. 659, 689-691 (1975) (finding an implied repeal of antitrust laws where those laws would unduly interfere with the SEC s administration of the Security Exchange Act). 15

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 22 of 24 The Court s order of October 9, 2015, instructed the parties to address the impact of [ECF No. 523-2] on the Court s continuing jurisdiction. Responding to the Court s specific instruction, the Pueblo Defendants devoted nearly half of their brief to the dispositive issue of whether this Court must dismiss these proceedings due to the Plaintiff s failure (and inability) to name two indispensable parties. Yet inexplicably, Plaintiff responded to that central issue with a single sentence that is devoid of any legal citation. ECF No. 538 at 20. 19 Plaintiff s decision not to present argument concedes the propriety of dismissal for failure to name two indispensable parties. de la O v. Hous. Auth. of City of El Paso, Tex., 417 F.3d 495, 501 (5th Cir. 2005) ( perfunctory and conclusional assertion... will not suffice. Judges are not like pigs, hunting for truffles buried in briefs ) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ( A skeletal argument, really nothing more than an assertion, does not preserve a claim )). 20 The Executive Branch has determined that IGRA applies to the Pueblo, and repeals conflicting provisions in the Restoration Act. ECF No. 523-2. To determine its jurisdiction, the Court must consider and rule upon the deference it owes to these administrative decisions. Where, as here, administrative decisions are at issue, the administrative agency issuing the decision has an interest relating to the subject of the action that always is sufficient to make it a required party. Simons v. Vinson, 394 F.2d 732, 736 (5th Cir. 1968) (holding that the United States is an indispensable party where Appellants must show either that the statutes are void under which Congress authorized the Secretary of Interior to lease the disputed land, or that the Secretary or his agents acted beyond the scope of their statutory authority ). 19 The first page of the Response lists seven issues, none of which includes this Court s jurisdiction. ECF No. 538 at 5. The Response includes only four arguments (not seven), none of which address the jurisdictional issue. Id. at 2 (table of contents). 20 See also Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1297 (5th Cir. 1994) (where party cited no authority to support its position, we will not root about in the case law seeking support for it ). 16

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 23 of 24 B. Plaintiff Did Not Address, Let Alone Dispute, the Power of this Court to Amend its Injunction, and Ignored all Arguments Supporting Amendment and Entry of a Stay. The Plaintiff has a clear and exclusive remedy to address its concerns with NIGC s regulation of class II gaming on the Pueblo a garden-variety APA action. But the Pueblo Defendants have no such recourse, and must secure an amendment of the pending injunction before they can offer gaming regulated not by the Court but instead by NIGC. Plaintiff has not addressed the Pueblo Defendants request to vacate the injunction, nor has it even attempted to show any continued need for an injunction at this stage of these proceedings. As demonstrated by the Pueblo in its memorandum in support, and left unaddressed by the Plaintiff, there is no threat of irreparable harm, and changes in facts and law make prospective application of the injunction inequitable. Having failed to address, let alone dispute, the propriety of amending the injunction to allow comprehensive NIGC regulation pending resolution of Plaintiff s concerns by way of an APA action, Plaintiff has conceded the need for this Court to exercise its equitable powers and vacate its injunction. Chambers v. Sears Roebuck & Co., 428 F. App x 400, 408 (5th Cir. 2011) ( the Court has no obligation to raise and analyze a party s position in the absence of that party s meaningfully briefing the point ). CONCLUSION The Pueblo Defendants ask the Court to vacate the September 2001 Injunction and dismiss this case or, in the alternative, amend the September 2001 Injunction to allow class II gaming regulated by NIGC and stay further proceedings. Dated: December 23, 2015 Respectfully submitted, JOHNSON BARNHOUSE & KEEGAN LLP /s/ Randolph Barnhouse Randolph Barnhouse Justin J. Solimon 17

Case 3:99-cv-00320-KC Document 591 Filed 12/29/15 Page 24 of 24 Admitted Western Dist. of Texas 7424 4th Street N.W. Los Ranchos de Albuquerque, NM 87107 (505) 842-6123 (telephone) (505) 842-6124 (facsimile) Attorneys for Defendants dbarnhouse@indiancountrylaw.com jsolimon@indiancountrylaw.com CERTIFICATE OF SERVICE I hereby certify that on December 23, 2015, I caused a true and correct copy of the foregoing to be served via e-mail and by U.S. Mail on the following counsel of record: William T. Deane Bill.Deane@oag.state.tx.us; jean.reich@oag.state.tx.us Richard Andrew Bonner rbonner@kempsmith.com; ycas@kempsmith.com; kramirez@kempsmith.com /s/ Randolph Barnhouse Randolph Barnhouse 18