[00:00:02] Speaker 05: Thank you, Your Honor, and may it please the Court. [00:00:04] Speaker 05: Did you want to introduce the case? [00:00:05] Speaker 05: Sorry. [00:00:06] Speaker 04: Well, yes. [00:00:07] Speaker 04: This is Maverick Gaming versus Shell Water Bay Tribe. [00:00:11] Speaker 04: And I understand you have a particular order in which you're presenting your argument. [00:00:16] Speaker 04: Do you want to explain that? [00:00:18] Speaker 05: So I don't know all of the details. [00:00:19] Speaker 05: My name is Lachlan Shelfer. [00:00:21] Speaker 05: I represent appellate Maverick Gaming. [00:00:23] Speaker 05: So I'm arguing solely for the appellants. [00:00:25] Speaker 04: OK. [00:00:25] Speaker 04: So it's the other side that has to. [00:00:27] Speaker 05: The appellees are dividing their time. [00:00:28] Speaker 05: That's right. [00:00:29] Speaker 04: All right. [00:00:29] Speaker 04: Thank you. [00:00:30] Speaker 05: I'll let them describe that. [00:00:31] Speaker 04: All right. [00:00:33] Speaker 04: So you may proceed. [00:00:34] Speaker 05: Thank you, Your Honor. [00:00:35] Speaker 05: As I said, Lachlan Schelfer for Appellant, Maverick Gaming. [00:00:38] Speaker 05: I'd like to reserve five minutes of my time, if I may. [00:00:42] Speaker 04: Marshal's your clock. [00:00:43] Speaker 05: I will. [00:00:44] Speaker 05: Thank you. [00:00:46] Speaker 05: The core of this case is a straightforward APA challenge to final government action. [00:00:53] Speaker 05: Maverick has challenged the Secretary of the Interior's approval of compact amendments [00:00:59] Speaker 05: which have given tribes a monopoly over sports betting in the state of Washington. [00:01:04] Speaker 05: It's the same sort of APA challenge that's brought in courts across the country every day. [00:01:08] Speaker 05: The district court below, however, took the stunning position that a non-party tribe has the right to unilaterally intervene and short circuit that judicial review just because the underlying federal action can affect the tribe in some way. [00:01:24] Speaker 05: If this theory were turned into such a categorical rule, [00:01:27] Speaker 05: Indian tribes, states, even foreign countries could insulate wide swaths of federal governmental action from judicial review just by asserting an interest in the underlying federal government action. [00:01:38] Speaker 05: This extreme position squarely conflicts with the consistent practice of courts across the country and with the settled position of the United States. [00:01:47] Speaker 00: Let me understand the argument. [00:01:48] Speaker 00: You're saying that the tribe does not have an interest sufficient under Rule 19? [00:01:53] Speaker 05: No, Your Honor, that is not our argument. [00:01:55] Speaker 05: We do not contest that they have an interest in the case underlying here in the compacts. [00:02:02] Speaker 05: What we are saying is that the district court's key error was assuming that they were bound, that it was bound by this court's recent decisions in D&A Citizens and Judge Ward-Lawyer decision. [00:02:19] Speaker 04: How do you distinguish those cases from this case? [00:02:22] Speaker 05: Yes, I would like to explain how I distinguish those. [00:02:25] Speaker 05: I would like to start by pointing out Judge Fletcher's recent opinion in Jamal Action Committee, which I think gives a good description of the doctrine here in the Ninth Circuit. [00:02:35] Speaker 05: So there, Judge Fletcher, you said that the general rule is found in Southwest Center. [00:02:41] Speaker 05: And Southwest Center says that usually the United States is an adequate representative of an Indian tribe absent some conflict of interest. [00:02:49] Speaker 05: And then you went on to say that Dene Citizens represents an exception to that rule in circumstances where the statute at issue creates a conflict, a tension between the interests of the United States and the interests of the tribe. [00:03:03] Speaker 05: So the Dene Citizen Klamath Irrigation situation is an exception to the general rule. [00:03:08] Speaker 05: And the reason that those cases created this tension, an unusual tension I would submit, [00:03:14] Speaker 05: is because the statutes at issue there, which were NEPA and the Endangered Species Act, split the loyalty of the United States. [00:03:23] Speaker 05: Judge Wardlaw, in your decision in Klamath Irrigation, you say that the United States was under the nearly impossible task of having to balance all of these competing interests. [00:03:32] Speaker 05: So there, the statute directs the United States to balance interests like [00:03:38] Speaker 05: national environmental impacts, national economic impacts, national security impacts, other prudential concerns. [00:03:47] Speaker 06: But isn't the same thing true here? [00:03:49] Speaker 06: I mean, IGRA doesn't demand that the secretary just do whatever is most in the interest of the tribe. [00:03:55] Speaker 06: The secretary in interpreting IGRA has to balance [00:03:59] Speaker 06: different interests. [00:04:00] Speaker 06: So it seems like you could say the same thing here. [00:04:02] Speaker 06: I don't think so, Your Honor. [00:04:03] Speaker 05: I think, respectfully, I would disagree with that. [00:04:06] Speaker 05: When the Secretary of the Interior is confronted with a compact, a proposed compact, the Secretary must approve that compact unless one of two things. [00:04:18] Speaker 05: Either it violates or goes against the interests of the tribe, [00:04:23] Speaker 05: or it violates federal law. [00:04:25] Speaker 05: There is no balancing. [00:04:27] Speaker 05: There is no prudential judgments or considering of different interests. [00:04:31] Speaker 05: There's only consideration of the tribe's interest and just the straightforward, not a balancing test, but just does it violate federal law, federal statute or IGRA or the Constitution itself. [00:04:43] Speaker 05: So I would say, I would submit it's very different than the situation in Klamath Irrigation and in D&A Citizens. [00:04:52] Speaker 05: And in fact, [00:04:53] Speaker 05: The only interest I would submit that IGRA really imposes on the United States is one consistent with the tribe's interest. [00:05:03] Speaker 05: We submitted recently a 28-J letter in which we noted a final IGRA rule that the United States recently promulgated, and there the United States emphasized Congress's intent that Indian gaming continue to provide a critical revenue source for tribal government and reflect an exercise of tribal sovereignty and government. [00:05:22] Speaker 05: identical to the tribes' interest. [00:05:25] Speaker 05: Now, IGRA also talks about several other interests that are promoted by IGRA, such as getting rid of corruption and some other prudential concerns. [00:05:40] Speaker 05: But the point is that there's no balancing that the United States has to undergo. [00:05:44] Speaker 05: And so I would submit it's a lot closer. [00:05:46] Speaker 05: to what happened in Southwest Center. [00:05:49] Speaker 05: So Southwest Center, it's not a very long opinion, so it's a little difficult to understand exactly what was going on there. [00:05:57] Speaker 05: The decisions in DNA Citizen and climate irrigation note that there, the interests of the United States and the tribe were aligned. [00:06:04] Speaker 05: They both wanted to increase water access for the tribe at Roosevelt Lake by adjusting the dam to increase water access for the tribe. [00:06:13] Speaker 05: And so you might wonder, well, why did the United States have this same interest as the tribe? [00:06:18] Speaker 05: And you have to go to the district court decision in Southwest Center to footnote five. [00:06:23] Speaker 05: So I would encourage you to take a look at that. [00:06:25] Speaker 05: But what that directs you to is a statute, just like an IGRA. [00:06:29] Speaker 05: And the statute says, the statute directs the Secretary of the Interior [00:06:34] Speaker 05: to increase water access for the tribe. [00:06:37] Speaker 05: It's a very simple plain statute. [00:06:40] Speaker 05: I think it memorialized a settlement with the tribe. [00:06:44] Speaker 05: The point being that to understand DNA citizen and Klamath irrigation [00:06:50] Speaker 05: to create sort of a per se categorical rule that applies to all statutes would really turn, it would convert rule 19 from a shield into a sword and it would essentially, it could be the death knell for general APA litigation moving forward. [00:07:08] Speaker 06: How would you articulate then the rule that those cases, Dine and Klamath, establish? [00:07:16] Speaker 06: What sorts of statutes will make the United States an inadequate representative? [00:07:22] Speaker 05: Yes, thank you, Your Honor. [00:07:23] Speaker 05: So again, I would start with Jamal Action Committee, which creates this dichotomy. [00:07:27] Speaker 05: There's the general rule that usually the United States is an adequate representative for an absent tribe unless there's a conflict of interest. [00:07:35] Speaker 05: And then it recognizes some exceptions. [00:07:37] Speaker 05: One exception was actually for tribal lands. [00:07:39] Speaker 05: The other exception, though, for Dene citizens is when the statute itself [00:07:44] Speaker 05: creates tension, creates a conflict. [00:07:47] Speaker 05: And so DNA citizens in climate irrigation, I'm not saying are the only situation, but that paradigm that they represent are something where the considerations that the United States has to make are prudential balancing decisions between different interests, one of which may or may not be a tribe. [00:08:05] Speaker 05: So in DNA citizen climate irrigation, it was in a biological opinion. [00:08:10] Speaker 05: OK, and so the concern as I read those cases was that, well, the district court might say, United States, you did not balance these interests correctly. [00:08:20] Speaker 05: And so you got to go back to the drawing board. [00:08:23] Speaker 05: So it's all one proceeding, right? [00:08:25] Speaker 05: It would go be remanded to the agency. [00:08:27] Speaker 05: And then the United States would have to, [00:08:29] Speaker 05: rebalance the factors in the correct way after the district court has given it more instructions, and then it would go back up to the district court. [00:08:37] Speaker 05: But the concern is that the tribe's interests, meanwhile, are not being protected by anybody, because the United States doesn't particularly care that it happened to reach an outcome that the tribe liked in that case, because there's no statutory interest that the United States is directed to. [00:08:56] Speaker 05: The United States doesn't have [00:08:57] Speaker 05: sort of personal motivations, not a personal motivation of one, you know, member of the agency or something like that, or the secretary. [00:09:06] Speaker 05: The United States has the interests that Congress delineates for it. [00:09:11] Speaker 06: And so here, I mean, I take the point that under IGRA, [00:09:15] Speaker 06: The secretary is supposed to take into account the interests of the tribe in deciding whether to approve the compact. [00:09:19] Speaker 06: But the secretary is also supposed to make his own assessment of whether the compact complies with IGRA. [00:09:28] Speaker 06: And his view of that question might be different from the tribe's, right? [00:09:33] Speaker 06: So isn't that a potential divergence of interest, similar to those who recognized in Klamath? [00:09:42] Speaker 05: Yeah. [00:09:42] Speaker 05: So I don't think so, Your Honor, for a couple of reasons. [00:09:45] Speaker 05: every time the United States takes any action, they have to make their own judgment as to whether that action violates federal law or not. [00:09:53] Speaker 05: So there's nothing unique about that for IGRA. [00:09:56] Speaker 05: So if the court were to hold that every time the United States takes an action that it could only take if that action were legal, then that would essentially be the exception that swallows the rule. [00:10:09] Speaker 05: Because there are no circumstances where the United States can act in a way that it thinks is contrary to federal law. [00:10:14] Speaker 05: So that's the first thing. [00:10:15] Speaker 05: The second thing I would note, just as a practical matter, that the constitutional and statutory challenges that we have brought to IGRA and to tribal gaming monopolies are not new. [00:10:28] Speaker 05: People have identified these defects in the statute for decades and have been bringing these challenges. [00:10:34] Speaker 00: And have those challenges worked out? [00:10:36] Speaker 05: They have not worked out in this court, certainly. [00:10:39] Speaker 05: But we soldier on, and we have [00:10:43] Speaker 05: You know, we still believe in these arguments very much. [00:10:46] Speaker 05: But the point being that the case to which Judge Fletcher is referring is Artichoke Joe's, which was decided 20 years ago. [00:10:53] Speaker 05: That was under the second Bush administration. [00:10:56] Speaker 05: That position of the United States that IGRA and the Constitution allows these tribal gaming monopolies has remained consistent through the Obama, the Trump, and Biden administrations. [00:11:06] Speaker 05: So there's no reason to think that there would be a sudden switch. [00:11:12] Speaker 05: in position on that. [00:11:13] Speaker 05: And even if there were, just if I could add to sort of pivot a little bit maybe, even if there were a concern that the United States might, some speculation that the United States might change its position on the legal issue, and that that created a Rule 19 concern, I will note that Rule 19B, prong one, so Rule 19A asks, is there an adequate representative [00:11:43] Speaker 05: And so even if the court were to think, well, the hypothetical of the United States changing its long-held legal position here is enough to make it an inadequate representative, under rule 19b, prong one, the court then needs to ask, well, what is the extent of the possible prejudice here, which I think [00:12:05] Speaker 05: I would urge you to consider, what is the likelihood of this happening? [00:12:11] Speaker 05: How much prejudice are we really talking about? [00:12:13] Speaker 05: What is the real chance of prejudice? [00:12:17] Speaker 06: Could you address Count 3? [00:12:20] Speaker 06: I mean, so if we agree with you on the Rule 19 issues, those are the only issues before us, and so we would remand. [00:12:26] Speaker 06: But what is your claim on the merits on Count 3? [00:12:32] Speaker 05: Sure. [00:12:32] Speaker 05: Yes, Your Honor, so we've brought [00:12:35] Speaker 05: a count under count three. [00:12:37] Speaker 05: which is seeking a declaration that the Washington official's enforcement of the gambling prohibition against Maverick is unconstitutional. [00:12:45] Speaker 05: At core, our asserted injury is one of disequal treatment. [00:12:49] Speaker 05: We say that we are being treated unequally vis-a-vis otherwise similarly situated entities that can offer gaming. [00:12:58] Speaker 06: And how is that not squarely foreclosed by Morton against Mancari? [00:13:02] Speaker 06: I mean, it seems even worse than Morton from your [00:13:06] Speaker 06: point of view, because it's not that the state is saying, you know, individuals who happen to be members of tribes can conduct gaming, it's saying that tribes as, you know, sovereign entities can conduct gaming. [00:13:17] Speaker 06: So how do you assert an equal protection? [00:13:22] Speaker 05: Well, on the merits, I mean, we would love to brief them, we would love to have the opportunity to brief them. [00:13:27] Speaker 06: I just understand where you see this going, if it were to go forward. [00:13:31] Speaker 05: So yeah, so Morton v. Mancari, we find to be very limited. [00:13:35] Speaker 05: We think it's limited, for instance, by cases like Rice v. Cayetano, and that it has limited application outside of the narrow BIA context in which that case arose. [00:13:53] Speaker 05: And I would also note that our arguments are not purely equal protection either. [00:13:59] Speaker 05: We also assert under IGRA. [00:14:01] Speaker 05: that IGRA itself does not allow these sorts of tribal gaming monopolies. [00:14:09] Speaker 05: And we also have anti-commandeering. [00:14:10] Speaker 05: We have a range of arguments, including anti-commandeering, which this Court has not yet addressed. [00:14:16] Speaker 05: The point being, though, under Rule 19, just to pivot to Rule 19 for a moment, if this Court were to be concerned about any of Count 2 or Count 3, for instance, [00:14:30] Speaker 05: I would just note, as I mentioned at the outset of the argument, that the core of this case, as I said, is an APA case, a conventional, straightforward APA challenge to federal governmental final action. [00:14:44] Speaker 05: If the court is at all concerned about any of the relief sought or the counts, I would urge the court to narrow the relief to count one, APA challenge seeking vacatur. [00:14:59] Speaker 05: And that accords with the goal of rule 19 right the whole point of rule 19 [00:15:06] Speaker 05: is to allow cases to proceed to the greatest extent possible. [00:15:12] Speaker 05: This court, in cases like Maca, has said that courts should be extremely cautious before just dismissing a case based on sovereign immunity. [00:15:23] Speaker 05: And Southwest Center notes that courts should be careful not to let assertions of sovereign immunity totally defeat meritorious suits. [00:15:31] Speaker 05: The Wright and Miller treatise talks about the obligation of courts [00:15:35] Speaker 05: shape relief or somehow allow cases to proceed to the greatest extent possible. [00:15:41] Speaker 05: And that's why Rule 19 has all of these safety valves throughout. [00:15:46] Speaker 05: And Rule 19A talks about there being an adequate representative. [00:15:50] Speaker 05: Is there an adequate representative to represent the absent party? [00:15:54] Speaker 05: Rule 19B talks about how can courts shape relief or somehow mold or shape the action such that the core of it can continue to proceed, the public rights exception, [00:16:07] Speaker 05: is another safety valve that says, well, for really big important actions against the government that involve big constitutional statutory issues, we should let those proceed. [00:16:17] Speaker 05: They all are running from the same theme under Rule 19, which is that it should not be converted from a shield into a sword and allowed to insulate, especially allowed to insulate governmental action from judicial review. [00:16:34] Speaker 04: I'd like to save the balance of my time. [00:16:35] Speaker 04: I'd like to reserve five minutes. [00:16:38] Speaker 04: Thank you, Your Honor. [00:16:45] Speaker 04: We may proceed. [00:16:51] Speaker 01: May it please the court, Scott Crowell on behalf of the limited intervener, Show Water Bay Indian Tribe, to Judge Wardlaw's question. [00:16:58] Speaker 01: We've chosen to allocate our time where I will take eight minutes of the allotted time, the United States will take four minutes, and the state of Washington and the state defendants will take eight minutes. [00:17:09] Speaker 04: In that order? [00:17:11] Speaker 04: Yes. [00:17:12] Speaker 01: Okay. [00:17:13] Speaker 01: Let me go directly to the questions that have been raised, because frankly I heard a contradiction where he's saying, well, the tribe's position here is to create a blanket rule, but really [00:17:29] Speaker 01: southwest, I mean, Klamath Irrigation and Dene citizens apply when there is inherent intention in the underlying statutes that are at stake. [00:17:38] Speaker 01: And when you compare the inherent tension in the NEPA and ESA statutes that were at stake in those two cases with the inherent tension that is in IGRA, then you [00:17:49] Speaker 01: You should come to the conclusion that those cases apply here. [00:17:54] Speaker 01: As Judge Wardlaw explained eloquently in her concurrence in Chicken Ranch recently, Yigra has this inherent conflict in terms of balancing interests between the tribes' rights to regulate gaming on their own Indian lands. [00:18:09] Speaker 04: No one cited Chicken Ranch, did they? [00:18:11] Speaker 04: I mean, no one's cited to chicken wrench. [00:18:13] Speaker 01: Oh, yes, it is cited. [00:18:14] Speaker 01: It is cited? [00:18:15] Speaker 01: Okay. [00:18:15] Speaker 01: I was just wondering. [00:18:17] Speaker 01: Yes. [00:18:18] Speaker 01: And, you know, you pointed out that there's this inherent tension between the tribes' rights to exercise their gaming rights and the federal government's obligation to ensure that the gaming is operated in a safe manner. [00:18:36] Speaker 04: But I don't think, and tell me if the cases are being read this way, that certainly Klamath did not rely on inherent tensions, it relied on past actual litigation. [00:18:50] Speaker 01: In part. [00:18:52] Speaker 04: Well, I believe that the analysis did look to the inherent tension, and in their briefs... In addition, but there was actual, in Klamath, prior litigation over the same set of resources. [00:19:05] Speaker 01: And here, you have actual litigation over that same tension between the Showwater-based tribe's right to exercise its gaming rights for the entirety of the 1990s, [00:19:18] Speaker 01: Several Washington tribes, not just Show Water Bay, were adverse to both the United States and the state of Washington because the state was hiding behind the 11th Amendment immunity and would not negotiate a compact. [00:19:32] Speaker 01: And so the federal government took the position, no compact, no right to gain. [00:19:37] Speaker 01: The tribes took the position that no, the Indian, you know, Cabezon established the sovereign right of tribes to game on their territory. [00:19:46] Speaker 01: The Cabezon, the Indian Gaming Regulatory Act did not create or establish that right. [00:19:51] Speaker 01: It codified that right and provided an opportunity for the states to be involved in the regulation. [00:19:58] Speaker 01: And it identified potential tensions that could come at several [00:20:02] Speaker 01: different points. [00:20:03] Speaker 01: So we have the prior litigation that would be analogous to what happened in climate derogation, but we also have the inherent tension, both at the position of the department deciding whether to approve or disapprove or allow a compact to go into effect is deemed approved. [00:20:22] Speaker 01: Those tensions exist there, but what the result here that they're looking to [00:20:27] Speaker 01: which goes to where the parties would be in the outcome, is to invalidate the very compacts that led to the resolution of the very disputes that existed between the tribes and the state in the United States prior to those compacts being negotiated and going into effect. [00:20:45] Speaker 06: So doesn't that mean that in essentially any APA case in which a government agency has [00:20:54] Speaker 06: here, or approved a compact, or issued a permit, or done something that confers an interest on a tribe if somebody challenges the APA act, challenges the agency's action under the APA. [00:21:05] Speaker 06: the tribe is going to be a required party under Rule 19. [00:21:09] Speaker 01: In your view? [00:21:10] Speaker 01: I wholesale reject the notion that somehow we're creating a blanket rule that requires these cases to be dismissed. [00:21:19] Speaker 01: Well, why not? [00:21:19] Speaker 06: I mean, the point you were just making about the inherent tension seems like it would exist. [00:21:25] Speaker 06: The agency has done something that benefited the tribe. [00:21:28] Speaker 06: The challenger, definitionally, is trying to invalidate that. [00:21:31] Speaker 06: And if it's invalidated, then it'll be up to the agency to do something which might be something different that would not benefit the tribe, right? [00:21:38] Speaker 06: So there's always going to be that tension, isn't there? [00:21:40] Speaker 01: Well, my colleague pointed out in Southwest Biological that the underlying statute at stake was basically [00:21:46] Speaker 01: basically the codification of a settlement agreement reached between the Salt River Pima Tribe and the United States to where there was a shared interest in the water storage system at place. [00:21:58] Speaker 01: And this court in Dine Citizens distinguished that case from the case in front of it by pointing out that you didn't have a core sovereign authority at issue in Dine Citizens. [00:22:15] Speaker 01: Here you have it, I mean in Southwest, you have it in Dene citizens, you have it here. [00:22:21] Speaker 01: So there's another example of where there wouldn't be a blanket rule. [00:22:25] Speaker 01: The court in Dene citizens also distinguished Aalto v. Black to point out that in there the San Pasqual tribe had delegated to the United States the obligation and responsibility in determining the [00:22:40] Speaker 01: eligibility of membership into the San Pasqual tribe, and because it delegated that authority to the United States, there wasn't this inherent tension that would be a conflict. [00:22:51] Speaker 01: You could come up with any one of another series of examples. [00:22:56] Speaker 01: Judge Fletcher in the Hamul Action Committee versus Sememeyer pointed out that it's one thing to make a challenge regarding prospective relief, [00:23:08] Speaker 01: from retrospective relief. [00:23:11] Speaker 01: And even when you have prospective relief, if it has the impact of undoing an established right retroactively, then the case should still be dismissed. [00:23:22] Speaker 01: And there it was the underlying rights of the Humul Indian community to be able to game under its compact with the state of California that was at stake. [00:23:32] Speaker 01: So, you know, the notion that there is a blanket rule here, you know, really, really just is just a false notion. [00:23:40] Speaker 01: And they're, you know, they're labeling it as such. [00:23:43] Speaker 01: But the reality is that all these cases are very fact-specific. [00:23:49] Speaker 01: And when you apply these facts and circumstances and the particular history regarding Washington, the Washington State, the United States, and the Shoalwater Bay tribe, it compels dismissal under Rule 19. [00:24:01] Speaker 00: Help me understand in practical terms why the United States at this point is not an appropriate representative for the interests of the tribe. [00:24:11] Speaker 00: I mean, we've got IGRA, we've got a compact in place, it's approved and so on. [00:24:15] Speaker 00: So why now is the United States not a fully appropriate representative of the tribe? [00:24:21] Speaker 01: Two points. [00:24:22] Speaker 01: Number one, my colleague up here is going to come up here and tell you in a moment that their position regarding the applicability of Rule 19 and the correctness of Dene citizens may shift. [00:24:33] Speaker 04: But two- I think they've said they don't agree with it. [00:24:37] Speaker 01: Correct. [00:24:38] Speaker 01: But they said that it applies, and it's the appropriate result here is dismissal. [00:24:43] Speaker 01: But two, play out where this litigation would go. [00:24:48] Speaker 01: If it went on to the merits and found that either equal protection or IGRA or the anti-commandeering clause had been violated, then you need to look at the remedial stage. [00:25:06] Speaker 00: Won't the United States defend on all of those grounds? [00:25:12] Speaker 00: That is to say, I would be very surprised if the United States government says IGRA is unconstitutional because it treats tribes and private gambling operations separately, differently. [00:25:22] Speaker 01: I share your confidence that on the liability question, the merits question, that the United States is likely to make the arguments that the tribe would want to make. [00:25:32] Speaker 01: But in the remedy stage, where they're looking to seek a determination that the tribes' activities are illegal, that the tribes need to be shuttered, that the compacts need to be vacated, well then the very issue that was at stake in the 1990s comes into play, because the tribes' position is that [00:25:53] Speaker 01: The Indian Gaming Regulatory Act cannot be interpreted and applied in a manner that deprives the tribe of its inherent authority to govern gaming as established under Cabezon. [00:26:04] Speaker 01: And that arguing that IGRA has this inherent equal protection problem to it comes then to the question of then, well, what do we do with IGRA? [00:26:15] Speaker 01: And the position of the tribes is that IGRA has to be interpreted in a way that allows the tribes to exercise the gaming rights that the United States Supreme Court made clear in the Cabezon case. [00:26:27] Speaker 06: Why are those issues within the scope of an APA case? [00:26:35] Speaker 06: litigation is confined to the question of whether the secretary acted unlawfully in approving the compact and whether the secretary's approval needs to be set aside. [00:26:47] Speaker 06: And the secretary is going to say that the secretary acted lawfully and that the compact approval should not be set aside, right? [00:26:54] Speaker 01: Right. [00:26:54] Speaker 01: But that's not the prayer for relief that's in their complaint. [00:26:57] Speaker 01: Their prayer for relief is to declare that the tribe's activities are illegal. [00:27:01] Speaker 01: Their prayer for relief is to order that the compacts be vacated. [00:27:05] Speaker 01: Their prayer for relief is a declaration. [00:27:08] Speaker 06: But the vacator part, the vacator part is the part that we can count on the secretary to oppose, right? [00:27:14] Speaker 06: I mean, the Secretary, I mean, we can ask the Secretary, but, you know, I don't think I've, one doesn't normally see APA litigation when the Secretary doesn't say that the Secretary's action should not be vacated, right? [00:27:26] Speaker 01: But that's not, but that's, you know, the inquiry under Rule 19 is, [00:27:30] Speaker 01: is not just what relief that the United States might argue is appropriate. [00:27:37] Speaker 01: It's the take a look at the arguments that the plaintiffs are making and are there responses to those arguments that the absent tribes will make that [00:27:45] Speaker 01: the United States won't. [00:27:47] Speaker 01: And when it comes to the appropriateness of the scope of relief that they've asked, they're the master of their complaint, they've cast their complaint seeking this broad relief that even enjoins the state of Washington from taking any actions regarding its obligations under the compact, then there are issues in response to that that we cannot rely upon the United States to make. [00:28:13] Speaker 04: All right, thank you, Council. [00:28:15] Speaker 04: We will move to the United States. [00:28:35] Speaker 02: Good morning. [00:28:35] Speaker 02: May it please the court, Amber Blaha, for the federal parties in this case. [00:28:40] Speaker 02: This court held in both Dene Citizens and Klamath Irrigation District that an APA challenge to federal agency action was properly dismissed in the absence of a tribe whose existing legal rights would potentially be impacted by that challenge. [00:28:55] Speaker 02: And so holding, this court rejected the federal government's arguments that it could adequately represent the absent tribe's interest in seeing the government's own action upheld. [00:29:04] Speaker 02: And we've stated our disagreement with those decisions, but they're the law of the circuit, and they do appear to control the outcome here. [00:29:10] Speaker 02: I'd like to make a few quick points in response to what my co-counsel have said. [00:29:18] Speaker 02: I think Maverick has now conceded that it's count one needs to be limited to what is available properly in an APA claim, which I don't think is how it was originally formulated. [00:29:29] Speaker 02: And I agree that once that is done, once the APA claim count one is limited to just declaring unlawful the assistant secretary's decisions, the concerns about this potential conflict, about things that happened in the 90s or things that could happen years down the road if those decisions are overturned, isn't a conflict that arises in the APA action. [00:29:55] Speaker 02: I understand why the tribe argued it did because they didn't frame it properly as an APA action in their complaint. [00:30:01] Speaker 02: But if it's narrowed, I do think that conflict goes away. [00:30:04] Speaker 02: I also want to be clear, I don't think Mavericks really made any meaningful response to our argument that the federal government does not represent the tribe's interests for accounts two or three. [00:30:14] Speaker 02: And so that should not be an issue in this case. [00:30:18] Speaker 02: I do want to address quickly one point made by Mavericks Council about what the secretary is doing when they're reviewing compacts under IGRA. [00:30:30] Speaker 02: I don't think it was presented quite correctly. [00:30:34] Speaker 02: The secretary has discretion to disapprove a compact if it doesn't comply with IGRA itself, doesn't comply with other federal laws, or doesn't comport with the United States' trust responsibility to tribes generally. [00:30:49] Speaker 02: And so I don't think the distinction of balancing tests or other things is quite appropriate here. [00:30:56] Speaker 02: And the government's trust responsibility to tribes is not [00:31:01] Speaker 02: the same as doing whatever that particular tribe says it's in its best interests. [00:31:07] Speaker 02: The regulations that Maverick submitted as part of its 28-J letter actually refer to one specific example I can give you, and that's a tribe may want a compact that has some geographic exclusivity provisions, but the secretary might not approve that because it doesn't serve the interests of tribes more generally. [00:31:28] Speaker 04: As I recall when we were discussing chicken ranch, the secretary had recently disapproved some compacts that the tribes were willing to enter. [00:31:40] Speaker 02: Yes, it does happen. [00:31:41] Speaker 02: Some of the concerns on that are laid out in those regulations. [00:31:48] Speaker 02: I guess in our view, you know, when we look at Hamal action committee's been cited to this court, you know, looking at that case, the court said, applying the DNA standard or describing DNA, we've held the federal defendants would not adequately represent an absent tribe where their obligations to follow relevant environmental laws were in tension with tribal interests. [00:32:13] Speaker 02: You know, I don't think we believe that there is any tension here. [00:32:16] Speaker 02: We're prepared to fully defend the Assistant Secretary's approval. [00:32:20] Speaker 02: But at the same time, I think we struggle to see the daylight between this case and D.N.A. [00:32:25] Speaker 02: because the federal government does have obligations to follow the Constitution. [00:32:30] Speaker 02: They say we violated the Constitution and the approvals and other federal laws and IGRA itself. [00:32:36] Speaker 02: And so I think we were struggling to see where that distinction was. [00:32:41] Speaker 02: I don't think Hummel talks about balancing. [00:32:43] Speaker 02: I don't think Klamath and Dene really talk about balancing. [00:32:46] Speaker 02: We have to comply with environmental laws as well. [00:32:49] Speaker 06: And so just to be clear, is it your view that even if count one were understood to be confined to seeking only the relief that's properly available in an APA action, in your view, it would still not be meaningfully distinguishable from Klamath and Dene? [00:33:05] Speaker 02: I don't think we saw a way to distinguish it based on our understanding of the way the court had framed certain aspects of those opinions, but I think we've also said that we think the better outcome would be to not have dismissal, that we do think we can adequately represent the interest in seeing the federal government's action upheld. [00:33:29] Speaker 00: Now, can adequately represent is different from will necessarily adequately represent. [00:33:38] Speaker 00: It could be. [00:33:39] Speaker 00: If I'm the tribe, I'm interested in will necessarily represent the interest of the tribe rather than can represent the interest of the tribe. [00:33:47] Speaker 02: I mean, the federal government in, you know, the, I don't want to say there's never a case, but generally when there's an agency action that's challenged, we are prepared to defend that action. [00:33:57] Speaker 02: And the APA review is on the basis of what the agency said about why it was doing what it did. [00:34:03] Speaker 02: And, and we're prepared to defend that. [00:34:05] Speaker 02: There's nothing certainly in the record here. [00:34:07] Speaker 02: And I would maybe say even more broadly that suggests that we wouldn't do so. [00:34:15] Speaker 02: If the court has no further questions, thank you very much. [00:34:17] Speaker 04: Thank you very much, counsel. [00:34:18] Speaker 04: Now the state defendants. [00:34:34] Speaker 03: Good morning, Your Honors. [00:34:35] Speaker 03: Tara Hynes on behalf of the state defendants. [00:34:38] Speaker 03: This case is at its core an attack on the tribal gaming compacts between Washington State and its 29 federally recognized tribes. [00:34:47] Speaker 03: Maverick argues that these gaming compacts constitute race-based discrimination as the predicate for each of its claims. [00:34:54] Speaker 03: And contrary to Maverick's assertions, the federal defendants have no obligation to defend Washington State law authorizing class 3 gaming only under those tribal gaming compacts. [00:35:06] Speaker 03: This court has repeatedly recognized that in such circumstances, the tribes are both a necessary and indispensable party to the proceedings, and the court should affirm the dismissal of Maverick's claims. [00:35:17] Speaker 03: And I want to start first with the discussion of what the test was under Dene and Klamath irrigation, because there the test is not just whether there's an inherent tension within the statute, which I do think exists here under IGRA. [00:35:30] Speaker 03: but also whether the federal government has the same stake in the substantive outcome of the case, not just a superficial alignment of litigation positions. [00:35:40] Speaker 03: And here, the federal government is clear that in an APA case, it is here to defend its very limited decision-making under IGRA. [00:35:48] Speaker 03: It is not here to defend Washington state substantive law. [00:35:52] Speaker 03: And that is what the court of this case is, contrary to how Maverick has characterized it. [00:35:56] Speaker 03: They are trying to overturn Mancari and get a ruling that any time you classify the tribes, that that is a race-based classification as opposed to a political classification. [00:36:11] Speaker 03: They are seeking to undo all of the gaming compacts that have been in place since 2002. [00:36:17] Speaker 03: There is no question that the tribes have a legally protectable interest in those gaming compacts. [00:36:23] Speaker 03: They have been in place for decades. [00:36:25] Speaker 03: and that in this situation, the federal defendants cannot adequately represent the tribes in that context. [00:36:34] Speaker 00: So your argument is that there's enough risk that the United States government will all of a sudden support the position that it's a forbidden form of discrimination. [00:36:46] Speaker 00: Is that the argument? [00:36:47] Speaker 03: No, Your Honor. [00:36:48] Speaker 03: No, Your Honor, not at all. [00:36:49] Speaker 03: Here the question under 19A is whether there is a party that is undoubtedly, undoubtedly willing and capable [00:36:57] Speaker 03: of making all of the arguments that the absent party would make. [00:37:01] Speaker 03: And so under Dene and Klamath, what this court has recognized is the way to meet that test is to determine whether or not the federal government has esteemed stake in the outcome. [00:37:10] Speaker 03: So while they may defend it, they may not defend it as rigorously as the tribe would. [00:37:15] Speaker 03: They've also said they don't really have an interest in defending Washington state law. [00:37:20] Speaker 03: Under IGRA, they are completely agnostic as to whether Washington state allows gaming under tribal gaming compacts as well as other mechanisms. [00:37:30] Speaker 03: So they don't have the same stake in ensuring that these tribal gaming compacts continue. [00:37:35] Speaker 03: They don't have the same stake as ensuring that Washington state law is defended as the tribes would. [00:37:42] Speaker 03: And that is ultimately the question. [00:37:44] Speaker 03: whether the present party would undoubtedly make all of the same arguments that the absent party would make. [00:37:53] Speaker 04: So this claim seems to have arisen since Washington State allowed sports betting. [00:38:01] Speaker 04: That's right. [00:38:02] Speaker 03: Yes, Your Honor. [00:38:02] Speaker 04: That's the trigger for this type of action. [00:38:06] Speaker 04: Can you explain? [00:38:08] Speaker 04: that is is this a challenge to allowing that washington law to allow sports betting i mean many other states are in the same situation california recently allowed sports betting for example no your honor it's not limited just to sports betting if you go to count one two and three they are um [00:38:27] Speaker 03: saying that all of the tribal gaming compacts, the entire frameworks going back to 2002 is race-based discrimination. [00:38:36] Speaker 03: And that is a predicate for their equal protection claim. [00:38:39] Speaker 03: So this shows us that American Greyhound v. Hull is directly on point. [00:38:44] Speaker 03: In that case, there was the same claim that allowing gaming only under the tribal gaming compacts was an equal protection violation because it was race-based discrimination. [00:38:54] Speaker 03: and the court held that the tribes are necessary parties in that context. [00:38:59] Speaker 03: They're also indispensable because the state cannot represent its interests. [00:39:03] Speaker 03: And as to count two and count three, the federal defendants are not even parties to that claim. [00:39:08] Speaker 03: So American Whole v. Greyhound is materially indistinguishable in that context. [00:39:13] Speaker 06: So what about count three? [00:39:15] Speaker 06: The declaration that sought in Count 3 is a declaration that the defendants, the states, continued enforcement of Washington's criminal laws prohibiting Class 3 gaming violate the Constitution and seeking an injunction prohibiting from the defendants from enforcing those laws against Maverick. [00:39:33] Speaker 06: Why, what legally protected interest would that injunction, what legally protected interest of the tribes would such an injunction impair? [00:39:43] Speaker 03: Well, if you look at ER 121 and 122, paragraph 198 and 199, Maverick specifically predicates its equal protection claim on its assertion that the gaming compacts are race-based discrimination. [00:39:56] Speaker 03: That was the exact same claim in American Greyhound v. Hall. [00:39:59] Speaker 06: Right, I understand that the argument is, [00:40:03] Speaker 06: The argument has a number of problems with it on the merits. [00:40:06] Speaker 06: The argument is also one that, if taken seriously, would impair various interests of the tribes. [00:40:14] Speaker 06: But the relief that is sought in that claim is just a relief that we're allowed to conduct gaming, not that the tribes aren't. [00:40:22] Speaker 03: And I don't think that relief is available under count 2, under count 3. [00:40:27] Speaker 06: That may be another reason that they would lose, but that's not a rule 19 problem, is it? [00:40:31] Speaker 03: It is a rule 19 under American Greyhound, because this court held that whenever you have a claim that is a declaration, that is tantamount to a determination that a tribal gaming compact is unconstitutional and illegal, that does practically impair the tribe's interests. [00:40:47] Speaker 03: because local governments may seek to enforce that declaration. [00:40:50] Speaker 03: At that point, once you've got a declaration that's binding on the state, it beggars belief that that is not going to have an impairment on the tribal rights. [00:40:59] Speaker 06: But again, the declaration they want is just a declaration that you can't enforce the gaming laws against us. [00:41:06] Speaker 06: And if they get that, then they can conduct gaming. [00:41:09] Speaker 04: That is not the only declaration. [00:41:10] Speaker 04: In practical matter, though, introducing a new [00:41:14] Speaker 04: entity that as competition for the Indians will necessarily reduce the profit and the ability to live off the [00:41:26] Speaker 04: gaming proceeds for the Indians because it would direct people, potential sports betting patrons, from making their way to the tribal lands and they'll just do it in whatever city they happen to be in. [00:41:46] Speaker 03: We, as a state, have not argued that increased competition is necessarily a legally protectable interest. [00:41:52] Speaker 03: But in American Greyhound, the court held that when you have a declaration that is tantamount to- But you see what I'm saying. [00:41:57] Speaker 03: Yes, I do. [00:41:58] Speaker 04: Yes. [00:41:59] Speaker 04: It hurts the tribal interests necessarily by allowing this potential competitor. [00:42:05] Speaker 03: Yes. [00:42:06] Speaker 03: And absolutely, Your Honor, it is a practical determination. [00:42:09] Speaker 03: So the court looks to- That's where I'm trying to go. [00:42:11] Speaker 04: The practical test. [00:42:14] Speaker 04: Well, go ahead. [00:42:16] Speaker 06: I mean, I think you were saying that we have said that the sort of economic interest in being free from competition is not a legally protected interest in the Rule 19 sense, right? [00:42:27] Speaker 04: And so we have not argued that that would be the legally protectable interest matter it yes the whole purpose of necessarily increases Possible economic loss detriment self direction and [00:42:45] Speaker 04: as a sovereign. [00:42:46] Speaker 03: Absolutely, Your Honor. [00:42:47] Speaker 03: Those sovereign interests, the tribe's ability to financially support itself, is absolutely a consideration that can be considered under Rule 19. [00:42:56] Speaker 03: But I do also want to turn to the fact that the relief that Maverick would be seeking under Count 3 is not available to it. [00:43:03] Speaker 03: It would exceed this court's jurisdiction. [00:43:05] Speaker 03: Maverick and the U.S. [00:43:07] Speaker 03: Supreme Court has been clear that a remedy for a claim of unequal treatment is a mandate of equal treatment and that the court should not rewrite laws in its effort to seek a remedy. [00:43:19] Speaker 03: And that's what Maverick would be seeking. [00:43:21] Speaker 03: There is an entirely regulatory framework around gaming in Washington state. [00:43:26] Speaker 03: there are very narrow limits in which gaming can occur. [00:43:30] Speaker 03: On tribal lands, subject to a tribal agreement that itself addresses licensing and licensing's fee, how to prevent money laundering, how to ensure integrity in sports, all manner of issues are addressed in these tribal gaming compacts. [00:43:44] Speaker 03: And Maverick is asking that despite the fact that the Washington Constitution prohibits gaming absent approval of a super majority of the legislature, [00:43:54] Speaker 03: that the federal district court would set all of that aside, set aside the regulatory framing, and allow Maverick to have completely unlicensed gaming in Washington state, there is no support for an idea that a federal district court can intrude on the state police powers in such an extreme manner. [00:44:12] Speaker 03: For all these reasons, we would ask dismissal be affirmed. [00:44:15] Speaker 04: Thank you, counsel. [00:44:16] Speaker 04: All right. [00:44:17] Speaker 04: Maverick, gaming, Mr. Shelter? [00:44:20] Speaker ?: Sure. [00:44:22] Speaker 04: That was a lot. [00:44:24] Speaker 04: You can have five minutes. [00:44:31] Speaker 05: Thank you, Your Honor. [00:44:31] Speaker 05: Just a few quick points. [00:44:34] Speaker 05: First, I think it's clear now that the United States and the absent tribes are in violent agreement on all of the merits questions at issue here. [00:44:41] Speaker 05: There's no reason to think that they would not present every relevant argument with the same vigor that the absent tribes would. [00:44:49] Speaker 05: In fact, the burden is on the tribes. [00:44:51] Speaker 05: to identify some argument that the United States would not offer that it would. [00:44:55] Speaker 05: And the only thing that I heard was that if Maverick were to prevail, then later, outside of the context of this litigation, then the United States might bring an enforcement action against them for continuing to offer Class III gaming apps in a compact, which is totally irrelevant to the Rule 19 analysis for two reasons. [00:45:16] Speaker 05: One, Judge Fletcher, I think you identified it, which is that it's outside the context [00:45:20] Speaker 05: of the case. [00:45:33] Speaker 05: Court's cases like Chicken Ranch clearly violates the law, and you cannot have a Rule 19 interest in something that's not legally protected. [00:45:41] Speaker 05: Again, under Jumel Action Committee, it has to be a legally protected interest. [00:45:46] Speaker 05: I just want to reemphasize again that we are perfectly content to proceed under Count 1 under a conventional APA claim seeking the regular relief of vacatur. [00:45:58] Speaker 05: That would grant us all the relief that we required. [00:46:01] Speaker 05: Under Gila River, [00:46:03] Speaker 05: The district court was required to go claim by claim and relief by relief. [00:46:07] Speaker 05: And under the point of Rule 19 is to find shaping relief, find a way to let the case proceed. [00:46:13] Speaker 05: That was the real error. [00:46:14] Speaker 05: And that is what I urge this court to consider. [00:46:20] Speaker 06: On count three, could you address the point made by Ms. [00:46:24] Speaker 06: Hintz that American Greyhound suggests that the, you know, the practical effect of the kind of declaratory judgment you're seeking would necessarily impair tribal interests? [00:46:37] Speaker 05: You know, I don't think that that, the concern, so the American Greyhound is distinct in a couple of ways. [00:46:45] Speaker 05: First of all, it did not have the United States at all. [00:46:48] Speaker 05: And so the question there was more about the interest. [00:46:52] Speaker 05: Did the tribe have an interest in the proceedings? [00:46:54] Speaker 05: Certainly, they had it there, and they obviously have it here. [00:46:57] Speaker 05: And that's absolutely the case. [00:47:00] Speaker 05: That's not the question. [00:47:01] Speaker 05: Is there an adequate representative? [00:47:03] Speaker 05: In American Greyhound, the United States was not there, and the court held that the state defendants would not be an adequate representative. [00:47:10] Speaker 05: But that's not really on point here, because here there is no daylight between the United States position and the tribe's position. [00:47:19] Speaker 06: But specifically on count three, where the United States is not [00:47:22] Speaker 05: Well, the reason that it remains relevant is that all of the same arguments that the United States will deploy for count one are equally applicable to count two and three. [00:47:32] Speaker 05: The reason that we say that the entire scheme violates IGRA and violates the Constitution [00:47:38] Speaker 05: The same arguments apply for all three counts. [00:47:41] Speaker 05: It's the exact same legal analysis. [00:47:44] Speaker 05: So all of the arguments that the United States will offer will apply across the board. [00:47:48] Speaker 05: But even if the court is not persuaded of that and would prefer for us to proceed just on count one, we're perfectly content to do so. [00:47:58] Speaker 05: Thank you, Your Honor, we urge the court to reverse. [00:48:00] Speaker 04: Thank you very much. [00:48:02] Speaker 04: Maverick Gaming versus Joe Water Bay Tribe will be submitted and this court will take a five minute recess while this group gets organized and the next case is called. [00:48:18] Speaker 04: Thank you.