has, in fact, entered into a Compact with the Tribe and there are
no allegations that the State has not negotiated in good faith.
Further, the Compact waives the State's sovereign immunity with
respect to Class III gaming activities; thus, in this case, the
balance between the Nation and the State struck by Congress in
IGRA has not been upset. See, e.g., U.S. v. Santa Ynez Band of
Chumash Mission Indians of the Santa Ynez Reservation,
33 F. Supp.2d 862 (C.D.Cal. 1998) (applying Spokane and granting an
injunction where State negotiated in good faith).
(3) Primary Jurisdiction
The Nation's third argument is that under the doctrines of
primary jurisdiction, exhaustion of administrative remedies, and
ripeness, the Court must defer this dispute, in the first
instance, to the NIGC, the federal agency that enforces IGRA.
The doctrine of primary jurisdiction is a flexible concept
concerned with "promoting proper relationships between the courts
and administrative agencies charged with particular regulatory
duties." Board of Ed. v. Harris, 622 F.2d 599, 606 (2d Cir.
1979), cert. denied, 449 U.S. 1124, 101 S.Ct. 940, 67 L.Ed.2d
110 (1981). Simply put, it "allows a federal court to refer a
matter extending beyond the `conventional experiences of judges'
or `falling within the realm of administrative discretion' to an
administrative agency with more specialized experience,
expertise, and insight." Nat'l Communications Ass'n, Inc. v. Am.
Tel. and Telegraph Co., 46 F.3d 220, 222-23 (2d Cir. 1995) ("AT
& T") (quoting Far East Conference v. United States,
342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576 (1952)). Typically, a court
applies the doctrine of primary jurisdiction to cases involving
factual or policy issues that fall within an agency's mandate
from Congress. See AT & T, 46 F.3d at 223. The doctrine springs
from the notion that Congress has entrusted the regulation of a
certain subject matter to an administrative agency; thus, before
a court takes any action to resolve a dispute, it should defer to
the agency for guidance based on the agency's specialized
knowledge. See General Elec. Co. v. MV Nedlloyd, 817 F.2d 1022,
1026 (2d Cir. 1987), cert. denied, 484 U.S. 1011, 108 S.Ct.
710, 98 L.Ed.2d 661 (1988).
Although there is no magic formula for determining when the
doctrine applies, the following four factors guide the inquiry:
"(1) whether the question at issue is within the conventional
experience of judges or whether it involves technical or policy
considerations within the agency's particular field of expertise;
(2) whether the question at issue is particularly within the
agency's discretion; (3) whether there exists a substantial
danger of inconsistent rulings; and (4) whether a prior
application to the agency has been made." AT & T, 46 F.3d at
222-223. Additionally, a court must "balance the advantages of
applying the doctrine against the potential costs resulting from
complications and delay in the administrative proceedings." AT &
T, 46 F.3d at 223. A court ordinarily does not defer when the
issue involved is purely a legal question, or when the issue does
not implicate agency expertise or would not benefit from an
agency's fact finding prowess. See Harris, 622 F.2d at 607.
Applying these factors here, deferral to the NIGC is not
warranted. The Complaint does not raise technical or policy
considerations within the specialized knowledge of the NIGC.
See, e.g., AT & T, 46 F.3d at 223 (agency did not have primary
jurisdiction where decision did not "present any issues involving
intricate interpretations or applications that might need
agency's technical or policy expertise"). Rather, the question
here is simply whether the Nation has violated the Compact by
offering Multi-Game. The Compact, moreover, does not include
novel words or unusual language that may need specialized
Moreover, the State has not invoked the authority of the NIGC
to resolve this dispute.
Compare Golden Hill Paugussett Tribe of Indians v. Weicker,
39 F.3d 51, 60 (2d Cir. 1994) ("deferral is fully warranted here
where the plaintiff has already invoked [the Bureau of Indian
Affair's] authority."); thus, there exists no danger of
inconsistent rulings if the case is decided by the Court because
the issue presented involves the interpretation of a particular
Compact. See Mason Tenders Dist. Council Welfare Fund v. ITRI
Brick & Concrete Corp., 1997 WL 678164, *8-*9 (S.D.N.Y. Oct.31,
1997) (stating that there is no chance of inconsistent rulings
when no application has been made to an agency).
Furthermore, this case has been pending for close to five
years. There is no discernable reason to now halt these
proceedings and defer to the NIGC for what might be a lengthy
determination there when resolution of the matter here is
approaching. See Mason Tenders, 1997 WL 678164, at *9, and
cases cited therein; Hill, 39 F.3d at 60 ("There clearly is a
public interest in reasonably prompt adjudication of plaintiff's
Accordingly, deferral is not warranted under the doctrine of
primary jurisdiction. The Court further notes that the Nation's
vague reliance on the doctrines of administrative exhaustion and
ripeness are unpersuasive.
(4) Violation of the Compact
The Court now turns to the Nation's fourth argument that the
Complaint, which relies upon the A(ii) provision, fails to state
a claim because it contains no allegation of a Compact violation
as required by that section. The A(ii) provision provides
district courts jurisdiction over "any cause of action initiated
by a State or Indian tribe to enjoin a class III gaming activity
located on Indian lands and conducted in violation of any
Tribal-State compact entered into." The Nation reads the
Complaint as alleging that the unauthorized offering of
Multi-Game is actually a violation of IGRA's requirement that
Class III gaming be "conducted in conformance with a Tribal-State
compact" instead of a violation of the Compact itself. See
25 U.S.C. § 2710(d)(1)(C). The Nation also contends that, to the
extent the Complaint alleges that Multi-Game violates the
Compact, "this allegation is wholly conclusory" and "there is no
allegation . . . of any Compact term that has been violated."
See Nation Memorandum of Law, at 7.
The Court cannot agree for several reasons. First, the
Complaint is replete with allegations that the Nation violated
the Compact. For instance, paragraph one of the Complaint alleges
that the Nation's offering of Multi-Game at the Turning Stone
Casino violates the Compact. Similarly, paragraph 41 alleges that
the Nation acted in violation of the terms of the Compact because
Multi-Game has not been approved by the State.
Second, and contrary to the Nation's representation, paragraph
35 of the Complaint does allege a specific violation of the
Compact — namely, section 15. That section addresses the parties'
rights and obligations with respect to adding new gaming
offerings, such as Multi-Game.
Third, looking beyond the style of the legal claim to the belly
of the Complaint, it is plain that the underlying factual
assertions support the conclusion that the Complaint alleges
violations of the Compact. For instance, paragraph 39 of the
Complaint asserts that "at the time the Nation made its request
for the addition of a new game to Appendix A to add multi-game,
the Nation knew or should have known that only the Governor or
his authorized representative could approve a substantive change,
consisting of the addition of a new game, to Appendix A of the
Compact and only Patrick Brown was authorized to negotiate such a
Fourth, the Nation's characterization of the Complaint is
directly at odds with the observation of the Second Circuit. On
appeal of a prior decision of this Court, the Second Circuit
stated: "It is clear from the
Complaint and from the arguments of counsel that the State's
theory is that the Board did not have the authority to amend
[A]ppendix A, and thus the appendix was not amended to include
Instant Multi-Game. Thus, the State claims, Instant Multi-Game is
not authorized by the Compact." The Oneida Indian Nation of New
York, 90 F.3d at 62 (emphasis added).
Lastly, the Nation's reliance on the Ninth Circuit's decision
in Cabazon, 124 F.3d 1050, which it believes is "directly on
point," is faulty because, as detailed above, Cabazon is
distinguishable on the facts. In this case, the State's Complaint
specifically alleges that the Nation violates the Compact because
it failed to follow the agreed upon procedures in offering
Accordingly, this case does not present the same situation as
Cabazon where the Ninth Circuit found that the State attempted
to exercise regulatory control outside the ambit of the
Complaint, and the Court finds that the Nation's argument that
the Complaint does not allege a violation of the Compact is
(5) Allegations that the Racing and Wagering Board Lacked
Authority to Approve Multi-Game
The Nation's final argument is better viewed as raising two
subarguments: (1) that the Complaint is facially deficient
because it fails to allege that the Board lacked authority to
approve Multi-Game; and (2) that even if the Complaint does
allege lack of authority by the Board, the State's claim must
nonetheless fail because under the plain terms of the Compact the
Board had authority to approve Multi-Game.
The Nation's first subargument need not detain the Court long
for the reasons previously explained. As noted, the basic premise
of the Complaint is that the Board did not have authority to
authorize Multi-Game. Paragraph 31 of the Complaint, for example,
alleges that "the Nation was or should have been aware that it
had not received approval form the state to operate
[Multi-Game]." Similarly, paragraphs 15 and 18 allege that it is
only the State that can approve new games and that the State is
defined differently than the Board. Accordingly, the Nation's
first subargument fails.
The Nation's second subargument is that the Complaint fails to
state a claim because under the plain terms of the Compact the
Board had authority to approve Multi-Game. To this end, the
Nation points to several sections of the Compact. It begins with
section 15(b)(3) of the Compact, which provides that "[i]f the
State accepts [a proposed] game or activity, the game or activity
and its specifications will be added to Appendix A." It then
points to section 4(a), which provides that "[t]he state shall
exercise its regulatory and oversight role under this compact
through its [Board]." It concludes, therefore, that the plain
meaning of the "regulatory and oversight role" encompasses the
approval of new games under the Compact. It also points to prior
practice, as evidenced in the Complaint, that the Board had
previously negotiated amendments to existing games.
The State, by contrast, points out that the Compact explicitly
recognizes the distinction between the Board and the State by
separately defining them and their roles. The State contends
that, under the plain terms of the Compact, only the State is
authorized to approve new games requested by the Nation. See
Compact, 15(b)(3). The State continues that the Compact restricts
the Board's role to a regulatory and oversight one, a function
defined separately from gaming changes. With respect to
amendments, the State continues that the Board's role is limited
to providing notice to the Nation when the State has approved a
new game elsewhere. Compact, § 15(b)(1).
The Supreme Court has stated that a compact is akin to a
contract. See Texas v. New Mexico, 482 U.S. 124, 128, 107 S.Ct.
2279, 96 L.Ed.2d 105 (1987) (quoting Petty v.
Bridge Comm'n, 359 U.S. 275, 285, 79 S.Ct. 785, 3 L.Ed.2d 804
(1959) (Frankfurter J., dissenting)); see also Oklahoma v. New
Mexico, 501 U.S. 221, 242, 111 S.Ct. 2281, 115 L.Ed.2d 207
(1990) (Rehnquist, C.J., concurring in part and dissenting in
part); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1556 (10th
Cir. 1997). Thus, in interpreting the Compact, the Court is
guided by ordinary principles of contract interpretation.
The determination of whether contract language is ambiguous is
a question of law. See O'Neil v. Retirement Plan for Salaried
Employees of RKO General, Inc., 37 F.3d 55, 58 (2d Cir. 1994).
If the contractual language is clear, the granting of a
dispositive motion is appropriate. Id. Conversely, if the
contract language is ambiguous, a question of fact arises for a
jury determination. Id.
After consideration, the Court cannot agree with the Nation
that, as a matter of law, the Compact plainly and unambiguously
vests authority with the Board to approve new games like
Multi-Game. At minimum, the Compact is ambiguous in that regard
for substantially the reasons argued by the State. Further, the
Nation's reliance on outside materials to support their
interpretation, including correspondences between the Board and
the Nation, is not appropriate on this 12(b)(6) motion. See
FED. R. CIV. P. 12(b). In short, the Court finds that the State's
Complaint states a claim against the Nation for offering
Multi-Game at the Turning Stone Casino in violation of the
The Stay in this action is vacated and for the foregoing
reasons, the Nation's motion to dismiss pursuant to FED. R. CIV.
P. 12(b)(1) and (6) is DENIED in all respects. IT IS SO ORDERED