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Citizens Against Casino Gambling In Erie County Rose v. Hogen

August 26, 2008

CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY JOEL ROSE AND ROBERT HEFFERN, AS CO-CHAIRPERSONS, REV. G. STANFORD BRATTON, D. MIN., EXECUTIVE DIRECTOR OF THE NETWORK OF RELIGIOUS COMMUNITIES, NETWORK OF RELIGIOUS COMMUNITIES, NATIONAL COALITION AGAINST GAMBLING EXPANSION, PRESERVATION COALITION OF ERIE COUNTY, INC., COALITION AGAINST GAMBLING IN NEW YORK-ACTION, INC., THE CAMPAIGN FOR BUFFALO-HISTORY ARCHITECTURE AND CULTURE, ASSEMBLYMAN SAM HOYT, MARIA WHYTE, JOHN MCKENDRY, SHELLEY MCKENDRY, DOMINIC J. CARBONE, GEOFFREY D. BUTLER, ELIZABETH F. BARRETT, JULIE CLEARY, ERIN C. DAVISON, ALICE E. PATTON, MAUREEN C. SCHAEFFER, JOEL A. GIAMBRA, PASTOR KEITH H. SCOTT, SR., DORA RICHARDSON, AND JOSEPHINE RUSH, PLAINTIFFS,
v.
PHILIP N. HOGEN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE NATIONAL INDIAN GAMING COMMISSION, THE NATIONAL INDIAN GAMING COMMISSION, THE UNITED STATES DEPARTMENT OF THE INTERIOR, AND DIRK KEMPTHORNE, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE INTERIOR, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

On July 8, 2008, the Court issued a Decision and Order on all motions pending in this case and entered a final judgment vacating the National Indian Gaming Commission's approval of the Seneca Nation of Indians' June 9, 2007 Class III Gaming Ordinance ("Ordinance"). Currently before the Court are two post-judgment motions. Plaintiffs have filed a Motion for an Order Enforcing the Judgment (Docket No. 63) and Defendants have filed a Motion to Amen1d the Judgment to include a Remand to the Chairman of the National Indian Gaming Commission ("NIGC") (Docket No. 65). As set forth fully below, Plaintiffs' Motion is granted in part and denied in part, and Defendants' motion is denied.

II. DISCUSSION

A. Plaintiffs' Motion to Enforce the Judgment

Plaintiffs ask that the Court enforce its July 8, 2008 Decision by directing Defendants, and in particular the Chairman of the NIGC, to order the permanent closure of the Seneca Nation of Indians' ("SNI") gambling casino located on a 9-1/2 acre site in downtown Buffalo, New York, referred to in the Decision as the "Buffalo Parcel."

1. Background

Under the Indian Gaming Regulatory Act ("IGRA"), Class III gambling is lawful only when, among other requirements: (1) the tribe wishing to conduct gambling activities adopts a gaming ordinance that meets the IGRA's requirements; and (2) the ordinance is approved by the NIGC Chairman. 25 U.S.C. § 2710(d)(1). The Court's July 8, 2008 Decision vacated the Chairman's approval of the SNI's Ordinance. NIGC regulations state that the operation of a gaming facility "without a tribal ordinance or resolution that the Chairman has approved under part 522 or 523 of this chapter" is a "substantial violation" of the IGRA. 25 C.F.R. § 573.6 (emphasis supplied).

On the same day the Court issued its Decision, Plaintiffs' counsel wrote to the United States Attorney's Office requesting that it "immediately advise whether or not the Chairman of the NIGC intends to exercise his authority pursuant to 25 U.S.C. § 2713(b) to order immediate cessation of the current gaming operation conducted by the Seneca Nation of Indians at the Buffalo Parcel." Docket No. 63-3, Ex. B. Plaintiffs' counsel followed, on July 9, 2008, with a request that the U.S. Attorney's Office advise "no later than 5:00 p.m. Eastern Daylight Time on Thursday, July 10, 2008, with respect to whether or not the Chairman of the National Indian Gaming Commission will be taking the steps specified in my letter to you yesterday, and if so, when." Id., Ex. C. Penny Coleman, Esq., counsel for the NIGC, apparently contacted Plaintiffs' counsel on the afternoon of Thursday, July 10, 2008, to advise that the NIGC was still considering its options and that there would be nothing further to report by 5:00 p.m. that day. Id., Ex. D. Plaintiffs filed their motion seeking enforcement on Monday, July 14, 2008. The parties have not advised the Court of any further communications between them relative to this matter. Defendants do not indicate that they have taken any enforcement action.

In moving for relief, Plaintiffs point to the NIGC Chairman's authority under the IGRA to order the temporary closure of gaming activities. They urge that, in the face of the Court's ruling, the NIGC's refusal to issue an order directing the SNI to close its Buffalo casino frustrates the purpose of the Court Decision.

In opposition to Plaintiffs' motion, Defendants concede that the IGRA grants the Chairman authority to order the closure of gaming facilities. However, they contend that Congress vested the NIGC with absolute discretion relative to enforcement and "has not expressed an intent to circumscribe the discretion of the NIGC to decide when or whether to pursue enforcement actions." Docket No. 71 at 4 (emphasis supplied). According to Defendants, because the IGRA provides no meaningful standard by which to evaluate the NIGC's exercise of its "prosecutorial discretion," a decision not to enforce is not subject to judicial review and the Court is without jurisdiction to compel the NIGC to act. Id. at 5-6.

Plaintiffs' motion requires the Court to first consider the IGRA's remedial scheme.

2. The IGRA's Enforcement Provisions

Congress established the National Indian Gaming Commission when it enacted the IGRA. 25 U.S.C. § 2704(a). The Commission is comprised of three members: a Chairman appointed by the President with the advice and consent of the Senate, and two associate members appointed by the Secretary of the Interior. Id. § 2704(b). At least two Commission members must be enrolled members of any Indian tribe, and no more than two members can be of the same political party. Id. § 2704(b)(3).

Congress charged the NIGC and its Chairman with the enforcement of IGRA's provisions, and directed the NIGC to promulgate such regulations and guidelines as it deems appropriate to implement the Act. 25 U.S.C. §§ 2705, 2706. In short, Congress entrusted the NIGC with the important task of ensuring that operators of tribal gaming facilities comply with the law.

The IGRA's enforcement procedure is set forth in 25 U.S.C. § 2713. Generally speaking, the Chairman is authorized to level and collect civil fines for "any violation" of the IGRA or its regulations, id. § 2713(a)(1), and to order the temporary closure of a gaming facility for a "substantial violation" of the IGRA or its regulations, id. § 2713(b)(1). Enforcement is triggered by § 2713(a)(3), which provides, in pertinent part, that:

Whenever the Commission has reason to believe that the tribal operator of an Indian game . . . is engaged in activities regulated by this chapter . . . that may result in the imposition of a fine under subsection (a)(1) of this section [or] the permanent closure of such game . . . the Commission shall provide such tribal operator . . . with a written complaint stating the acts or omissions which form the basis for such belief and the action or choice of action being considered by the Commission. The allegation shall be set forth in common and concise language and must specify the statutory or regulatory provisions alleged to have been violated, but may not consist merely of allegations stated in statutory or regulatory language. (emphasis supplied). See Amoco Prod. Co. v. Watson, 410 F.3d 722, 733 (D.C. Cir. 2005) (noting that under 25 U.S.C. § 2713(a)(3), administrative proceedings are initiated by issuance of a "complaint"); Sac & Fox Tribe of the Mississippi in Iowa v. United States, 264 F. Supp. 2d 830, 836-37) (N.D. Iowa 2003) ("complaint" must be issued before Chairman can assess fines or issue temporary closure order); Cheyenne-Arapaho Gaming Comm'n v. National Indian Gaming Comm'n, 214 F. Supp. 2d 1155, 1161 (N.D. Okla. 2002) (same).

The NIGC's regulations provide that the complaint, referred to in the regulations as a "notice of violation" ("NOV"), may also be issued by the Chairman alone. 25 U.S.C. § 2705(b); 25 C.F.R. § 573.3. The NOV shall contain: (1) a citation to the federal requirement that has been or is being violated; (2) a description of the circumstances surrounding the violation, set forth in common and concise language; (3) measures required to correct the violation; (4) a reasonable time for correction, if immediate measures cannot be taken; and (5) notice of rights of appeal. 25 C.F.R. § 573.3. If the Chairman concludes that a fine is appropriate, NIGC regulations anticipate that he will serve a proposed assessment within 30 days after the NOV is issued. Id. § 575.5(b). The Chairman may issue a temporary closure order contemporaneous with or subsequent to issuance of the NOV. Id. § 573.6. Alleged violators have the right to appeal to the Commission, inter alia, any violation alleged in a NOV, the assessment of a civil fine, or an order of temporary closure. Id. § 577.1.

The parties' respective requests and arguments must be considered in light of this statutory scheme. The Court first rejects Defendants' assertion that the NIGC has been granted absolute discretion to "decide when or whether to pursue enforcement actions." Section 2713(a)(3) provides that the NIGC shall issue a complaint whenever it has reason to believe a tribal gaming facility is operating in violation of the IGRA. This language is mandatory, it connotes immediacy, and it is entirely consistent with Congress's charge to the NIGC to safeguard the integrity of Indian gaming. Congress directs the NIGC to act upon any indication of the existence of a violation; it does not give the Commission discretion to ignore violations or choose not to issue a complaint.

Congress did give the Chairman and the Commission discretion, within the IGRA's mandatory remedial framework, to determine what type of enforcement action is appropriate to the circumstances of a particular violation or substantial violation. Thus, Plaintiffs' request that the Court give effect to its July 8, 2008 Decision by directing the Chairman to take a specific enforcement action is not in accord with the IGRA's remedial scheme.*fn1

The question that remains is whether the All Writs Act, upon which Plaintiffs base their request, is applicable in light of ...


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