Late last month, Judge David Estudillo of the federal Western District of Washington issued an order in the case Maverick Gaming brought against the U.S. Department of the Interior.
The order came in response to a motion from the Shoalwater Bay Tribe, which has sought to intervene in the case on a limited basis. The Tribe filed its motion to intervene in early August. Subsequently, Maverick Gaming – an operator of card rooms in Washington and other states – filed a motion for summary judgment.
Judge Estudillo has now put a pause on the proceedings. The case will wait until there is time to hear the Shoalwater Bay Tribe’s motion to intervene. Estudillo can issue his ruling on the Tribe’s motion to dismiss the case at that point.
Refresher on the Maverick Gaming Litigation
Last year, the State of Washington entered into new gaming compacts allowing tribes throughout the state to begin offering sports wagering on their land. Shortly after, Maverick filed a lawsuit alleging that the Department of the Interior and State officials should not have approved the compact.
The card room operator presented a three-part argument. It claims:
- The awarding of tribal gaming monopolies violates the Equal Protection Clause of the Constitution by giving preferred treatment to tribal operators.
- The Indian Gaming Regulatory Act (IGRA) does not permit a state to allow a tribe to offer a gaming activity that is not otherwise permitted in the state.
- IGRA violates the Tenth Amendment’s anti-commandeering doctrine by mandating that states enter into negotiations with Tribes.
One challenge facing Maverick is that the Ninth Circuit has already addressed the first two arguments. Maverick acknowledges this, stating:
Maverick acknowledges that its equal-protection argument is currently foreclosed in this Circuit by the Ninth Circuit’s decision in Artichoke Joe’s Cal. Grand Casino v. Norton, but it respectfully preserves its argument for further review (internal citation omitted);
and
Maverick acknowledges that its statutory argument concerning the proper interpretation of IGRA is foreclosed in this Circuit by the Ninth Circuit’s decision in Artichoke Joe’s, but it respectfully preserves its argument for further review (internal citation omitted).
The third argument has a different problem. There, the issue is that it isn’t clear that Maverick is the proper party to bring the claim forward.
Maverick’s Arguments Might Not Matter Anyway
The Shoalwater Bay motion creates another issue entirely, one which could pull the rug out from under the case.
If the Court grants the Tribe’s motion for limited intervention, it would potentially open the door to a separate motion to dismiss. Here, the Tribe would argue that sovereign immunity prevents the Tribe from being sued. That would terminate the case without the plaintiff having a chance to present those arguments.
That said, while the goal of the Shoalwater Bay Tribe is to enter the litigation and terminate it, there are a few steps to go.
Everything else is on hold in the meantime. With support from the Washington State defendants, the Tribe filed a motion to stop all deadlines relating to the summary judgment proceedings. At the end of August, the Court issued an order doing just that. That order will remain in effect until the Court rules on the Tribe’s intervention and motion to dismiss.
Maverick’s Objections
Maverick objected to the delay. However, Judge Estudillo said Maverick had failed to show that it would suffer undue prejudice from the delay. The Court’s opinion is that the hearing on the Tribe’s motion will be largely inconsequential to the timeline. Additionally, Judge Estudillo found that Tribe would face a disproportionate hardship if he did not pause the timeline. Finally, he determined that:
whether the Tribe is an indispensable party and entitled to sovereign immunity is a threshold inquiry that should be addressed before the parties’ summary judgment motions to conserve judicial and litigant resources.
Judge Estudillo contends that steamrolling through the litigation without addressing the Tribe’s claims would not serve the interests of the Court. Therefore, despite Maverick’s arguments that the Tribe is not an indispensable party, it is in the interest of justice to hear the Tribe’s arguments as to why they are.
What to Make of the Shoalwater Bay Tribe’s Intervention?
This latest development will undoubtedly cause some delay in the case. However, as Judge Estudillo says, it is likely to be a matter of weeks and not months.
It seems prudent for the Court to resolve the Shoalwater Bay Tribe’s motion before proceeding with the summary judgment motion. A denial of the Shoalwater Bay Tribe’s motion would send the Tribe on a path to the Ninth Circuit Court of Appeals.
If the Court refused to pause the case and pushed ahead, it could complicate the appeals process. While Maverick Gaming undoubtedly wants this resolved as quickly as possible, this case is destined for the Ninth Circuit, regardless.
If Judge Estudillo pressed ahead, it would have put the litigation on a track nearly parallel to what is playing out in the D.C. Court of Appeals. There, the Seminole Tribe of Florida is appealing its exclusion from the case while simultaneously advocating for the federal government as amicus curiae.
Getting this issue out of the way in the meantime will make things simpler for all parties during the inevitable appeal. Despite some of the bluster, there will likely be a ruling on the Tribe’s motion within a few weeks.
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