UNITED STATES v. SEMINOLE NATION
FILED
United States Court of Appeals
Tenth Circuit
DEC 31 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 01-7108
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
SEMINOLE NATION OF OKLAHOMA,
a Federally Recognized Indian
Tribe,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 01-CV-35-X)
M. Alice Thurston, Department of Justice, Washington, D.C., (David C. Shilton,
Department of Justice, Washington, D.C.; Thomas L. Sansonetti, Assistant
Attorney General, Washington, D.C.; Sheldon J. Sperling, United States
Attorney, Muskogee, Oklahoma; Linda A. Epperley, Assistant United States
Attorney, Muskogee, Oklahoma; Kevin K. Washburn, William F. Grant, and
Sandra J. Ashton, Washington, D.C., with her on the briefs), for Plaintiff-
Appellant.
Gary S. Pitchlynn, (Patrick A. Morse, with him on the brief), Pitchlynn &
Morse, P.A., Norman, Oklahoma, for Defendant-Appellee.
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.
MURPHY, Circuit Judge.
I. INTRODUCTION
Plaintiff, the United States of America, filed this action in federal
district court to enforce temporary closure orders issued to Defendant,
Seminole Nation of Oklahoma (the "Nation"), by the Chairman of the National
Indian Gaming Commission ("NIGC"). Although the government moved for
preliminary injunction, the district court notified the parties by order that the
hearing on the government's motion would be combined with a trial on the
merits of the government's suit. The district court dismissed the government's
suit reasoning that the NIGC Chairman exceeded his authority in ordering the
closure of the Nation's gaming facilities rather than just the particular games at
issue. The government appeals the district court's dismissal of the suit.(1) This
court has jurisdiction under 28 U.S.C. 1291 and vacates the district court
order for the reasons stated below. Further, the Nation's motion to dismiss
this appeal for mootness is denied.
(1) Because the district court reached the merits of the government's
complaint in dismissing the action, any discussion by the district court of the
standard for reviewing a motion for preliminary injunction was irrelevant to the
disposition of the case.
2
II. BACKGROUND
In 1988, Congress enacted the Indian Gaming Regulatory Act ("IGRA")
which provided a comprehensive system to regulate gambling activities on
Indian lands. See 25 U.S.C. 2701-2721. Under IGRA, Indian gaming is
divided into three classes: Class I games (social games solely for prizes of
minimal value or traditional forms of Indian gaming); Class II games (bingo,
including pull-tabs, lotto, punch boards, tip jars, instant bingo, other games
similar to bingo, and certain card games); and Class III games (all other
gaming). 25 U.S.C. 2703(6)-(8). Class I games are not subject to regulation
under IGRA. Id. at 2710(a). Class II games are permitted under IGRA if the
game is conducted in a state that permits Class II gaming for any purpose by
any entity and if the NIGC has approved a gaming ordinance adopted by the
tribe. Id. at 2710(b). Class III games are permitted under IGRA if, in
addition to meeting the requirements imposed on Class II games, they are
"conducted in conformance with a Tribal-State compact." Id. at 2710(d).
The NIGC is charged with the development of regulations and
administrative enforcement of IGRA. Id. 2705, 2706. In accordance with
the discharge of this duty, the NIGC Chairman is authorized to order the
temporary closure of gaming activities and impose civil fines if he determines
that any person or tribe is conducting gaming in substantial violation of IGRA.
Id. 2705(a), 2713(b)(1). Under the NIGC's regulations, a temporary closure
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order may extend to "all or part of an Indian gaming operation" and is "effective
upon service." 25 C.F.R. 573.6(a), 573.6(b).
The Nation operates gaming activities at four gaming facilities in
Seminole County, Oklahoma. In an effort to increase revenues from these
facilities, the Nation added "coin-operated amusement games," which it
characterizes as games of skill. The Nation offered for play one particular
coin-operated amusement game known as, "Red Hot Re-Spin."
On May 30, 2000, the NIGC Chairman concluded that the Red Hot Re-
Spin machines were impermissible Class III gaming devices and issued a
temporary closure order ("May Order") directing the Nation to cease operating
these machines. The Nation filed an appeal of the May Order with the NIGC.
After receiving the May Order, the Nation offered for play several new
coin-operated amusement machines, in addition to Red Hot Re-Spin, under the
following names: "Buffalo Nickels," "Rainbow Reels," "Fantasy Fives," "Pot O
Gold," and "Lucky Cherries." On September 12, 2000, the NIGC Chairman
determined that these new games were also Class III games. Accordingly, the
NIGC Chairman issued a second temporary closure order ("September Order")
ordering the Nation to cease all gaming activities in all of its gaming facilities.
4
On January 19, 2001, the government filed a complaint in federal district
court for enforcement of the May and September closure orders.(2) The
government moved for a preliminary injunction. The district court notified the
parties by order that the hearing on the government's motion would be
combined with a trial on the merits of the government's suit. On February 27,
2001, the district court denied the motion and dismissed the suit reasoning that
the NIGC Chairman exceeded his authority in ordering the closure of all the
Nation's gaming facilities. The government appeals the district court's
dismissal of the suit.
On February 4-6, 2002, a hearing was held before a Presiding Official
("PO") appointed by the United States Department of the Interior's Office of
Hearings and Appeals on the Nation's appeals from the May and September
Orders. On April 8, 2002, the PO issued a Recommended Decision in which he
concluded that the NIGC met its burden of proof with regard to the May Order
but failed to meet its burden of proof with regard to the September Order. The
PO recommended that the May Order be sustained and the September Order be
vacated.
(2) While the parties stated at oral argument that both the May and
September Orders are at issue in this appeal, the parties confine their
arguments on appeal exclusively to the September Order.
5
The NIGC reviewed the PO's recommendations. In a written Notice of
Decision and Order entered on May 7, 2002, the NIGC adopted the PO's
recommendation as to the May Order but rejected the PO's recommendation as
to the September Order. The NIGC directed that both the May and September
Orders become permanent.
On August 16, 2002, the Nation filed suit in federal district court
seeking review of the NIGC's permanent closure order. This case is still
pending before the district court.
III. DISCUSSION
A. Mootness
The Nation has moved for dismissal under Rule 27 of the Federal Rules
of Appellate Procedure, arguing that the government's appeal is moot because
the NIGC Chairman's temporary closure orders were superseded by the NIGC's
permanent closure order.
Pursuant to Article III of the Constitution, federal courts may adjudicate
only actual controversies. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78
(1990); Fischbach v. N.M. Activities Ass'n., 38 F.3d 1159, 1160 (10th Cir.
1994). The controversy must exist during all stages of the appellate review.
Fischbach, 38 F.3d at 1160. Once such controversy ceases to exist, the action
is moot and this court lacks jurisdiction to adjudicate the matter. Id. An
exception to the mootness doctrine, however, arises when the case is "capable
6
of repetition, yet evading review." Gannett Co. v. DePasquale, 443 U.S. 368,
377 (1979) (quotation omitted); Fischbach, 38 F.3d at 1161. This exception
applies when: (1) the duration of the challenged action is "too short to be fully
litigated prior to its cessation or expiration," and (2) there is "a reasonable
expectation that the same complaining party . . . [will] be subjected to the same
action again." Gannett, 443 U.S. at 377.
The NIGC Chairman's temporary closure orders have been superseded by
the issuance of a permanent closure order by the NIGC. Thus, the temporary
closure orders are no longer in effect. This case, however, fits the narrow
exception to the mootness doctrine for conduct capable of repetition, yet
evading review. The NIGC Chairman's temporary closure orders are too short
in duration to be fully litigated in court prior to their administrative expiration
or replacement by permanent orders. Temporary closure orders, by their very
nature, are short in duration. IGRA requires the NIGC to quickly review
temporary closure orders and either dissolve them or issue permanent closure
orders. 25 U.S.C. 2713(b)(2) (providing an Indian tribe with the right to a
hearing before the Commission to review a temporary closure order within
thirty days of its issuance and requiring the Commission to decide whether to
dissolve the order or issue a permanent closure order within sixty days of the
hearing). The Nation argues, however, the NIGC Chairman's temporary orders
are not so short in duration as to require this court to exercise jurisdiction
7
over this appeal. Rather, the Nation argues, the government's failure to seek an
expedited appeal and its multiple requests for additional time to file appellate
briefs delayed appellate review until after the issuance of the permanent order.
The course of proceedings in this appeal, however, are irrelevant. The NIGC's
statutory obligation to quickly conduct a hearing within thirty days of the
issuance of a temporary order and decide whether to dissolve or make
permanent the order within sixty days of the hearing, creates a paradigm in
which a temporary order will not remain in effect throughout the appellate
process. Accordingly, the NIGC Chairman's temporary closure orders are of a
sufficiently limited duration to ordinarily escape appellate review.
The Nation also argues that the issues in this appeal are not of a limited
duration because they will be litigated in the case involving the permanent
closure order. The issue in this appeal is whether the NIGC Chairman's
statutory authority to issue temporary closure orders extends to the closure of
a tribe's entire gaming operation. The NIGC Chairman's statutory authority,
however, is not at issue in an appeal from permanent closure orders because the
NIGC, and not the NIGC Chairman, issues permanent closure orders under
IGRA. 25 U.S.C. 2713(b)(2). Accordingly, a district court hearing an appeal
from a permanent closure order will consider the NIGC's authority to issue the
order and the NIGC's conclusion that the gaming operation was in substantial
violation of IGRA. See generally id. at 2713(c).
8
To constitute an exception to the mootness doctrine, it is not enough that
an issue will escape review because of limited duration. It is also necessary
that there be "a reasonable expectation that the same complaining party . . .
[will] be subjected to the same action again." Gannett, 443 U.S. at 377.
Because the district court's denial of injunctive relief was based on the
specific facts of this case, the Nation argues, the government has no reasonable
expectation that it will bring a substantially similar action for enforcement of a
temporary closure order in the future. The Nation also argues that the court
should not presume that it will not comply with future temporary closure
orders. At oral argument, however, the Nation conceded it would again
challenge the scope of the Chairman's authority under IGRA. Accordingly,
there is a reasonable expectation that the Nation will again challenge the NIGC
Chairman's authority to issue temporary closure orders that apply to all the
Nation's gaming facilities.
Therefore, while the NIGC Chairman's temporary orders were superseded
by the NIGC's permanent closure order, this court's "jurisdiction is not
defeated" because this appeal fits the exception to mootness for conduct
capable of repetition, yet evading review. See id.
9
B. IGRA
The district court determined the NIGC Chairman's authority to issue
temporary closure orders is limited under 25 U.S.C. 2713(b)(1) to the
closure of individual games. Accordingly, the district court concluded the
NIGC Chairman exceeded his statutory authority by issuing the September
Order which required closure of all the Nation's gaming facilities. The
government argues that the NIGC Chairman is authorized under IGRA to issue a
temporary closure order applicable to an entire gaming facility and that the
district court, therefore, erred in refusing to enforce the September Order.
This court reviews the interpretation of a federal statute de novo. See Utah v.
Babbitt, 53 F.3d 1145, 1148 (10th Cir. 1995).
In interpreting a statute, this court gives effect to the statute's
unambiguous terms. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984); Aulston v. United States, 915 F.2d 584, 589
(10th Cir. 1990). "In ascertaining the plain meaning of the statute, the court
must look to the particular statutory language at issue, as well as the language
and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988). "[I]f the statute is silent or ambiguous with respect to the
specific issue," however, this court defers to the agency's reasonable
interpretation of the statute. Chevron, 467 U.S. at 843.
10
The Nation argues that the NIGC Chairman's authority to issue temporary
closure orders is limited to the closure of an individual game. To support its
argument, the Nation relies on 25 U.S.C. 2713(b)(1) which states:
The Chairman shall have power to order temporary closure of an Indian
game for substantial violation of the provisions of [IGRA, NIGC
regulations, and tribal regulations approved under IGRA].
While the narrow term "an Indian game" is used in 2713(b)(1), when read as a
whole IGRA unambiguously authorizes the NIGC Chairman to order the
temporary closure of entire gaming operations. In 2705(a)(1), the NIGC
Chairman is authorized to "issue orders of temporary closure of gaming
activities as provided in section 2713(b)." 25 U.S.C. 2705(a)(1) (emphasis
added). Accordingly, the phrases "gaming activities" and "an Indian game" are
used interchangeably in reference to the NIGC Chairman's authority to issue
temporary closure orders.
Moreover, the NIGC is required by 2713(b)(2) to review the NIGC
Chairman's temporary closure order and either dissolve it or order "a
permanent closure of the gaming operation." Id. 2713(b)(2). Because the
NIGC can act to either dissolve or make permanent the Chairman's temporary
order, the NIGC's permanent closure order is of the same scope as the NIGC
Chairman's temporary closure order. The reference in 2713(b)(2) to a
"gaming operation," therefore, is substantially equivalent to the phrase "an
Indian game" in 2713(b)(1).
11
Finally, the NIGC Chairman is obligated to approve tribal ordinances
which, inter alia, provide for the protection of public health and safety at
gaming facilities. Id. 2710(b)(2)(E) (authorizing the Chairman to approve
tribal ordinances which provide that "construction and maintenance of the
gaming facility, and the operation of that gaming is conducted in a manner
which adequately protects the environment and the public health and safety").
The NIGC Chairman is authorized to enforce such tribal ordinances through the
issuance of temporary closure orders. Id. 2713(b)(1). The Nation conceded
at oral argument that the NIGC Chairman's authority to enforce such tribal
ordinances is derived from 2713(b)(1). If the NIGC Chairman's authority to
issue temporary closure orders was limited to the closure of individual games,
he would be unable to carry out this obligation. Accordingly, when
2710(b)(2)(E) and 2713(b)(1) are read together, the NIGC Chairman's
authority to issue temporary closure orders clearly includes the power to close
entire gaming facilities.(3)
Even assuming, arguendo, that the statute authorizing the NIGC
Chairman to issue temporary closure orders under IGRA is ambiguous,(4) the
NIGC's interpretation of the statute as embodied in their regulations is entitled
to deference. Chevron, 467 U.S. at 843. Under 25 C.F.R. 573.6, the NIGC
Chairman is authorized to issue "an order of temporary closure of all or part of
an Indian gaming operation" if the tribe violates certain provisions of IGRA.
25 C.F.R. 573.6(a). "The operator of an Indian gaming operation [must] close
the operation upon service" of the order. Id. 573.6(b). This regulation is a
reasonable interpretation of 2713(b)(1) and, therefore, is entitled to
deference under Chevron. See 467 U.S. at 843.
Accordingly, because the NIGC Chairman is authorized under IGRA to
issue a temporary closure order of an entire gaming facility, the district court
erred in dismissing the government's action seeking enforcement of the
September Order.
(3) The Nation argues that the NIGC Chairman is not empowered to close
games which are lawful under IGRA. This argument lacks merit. The closure
of an entire facility for violation of a safety regulation would necessitate the
closure of individual games which are otherwise permissible under IGRA. Such
a result is clearly authorized under the language of 25 U.S.C. 2710(b)(2)(E)
and 2713(b)(1).
(4) The Nation conceded at oral argument that 2713(b)(1) may, in fact,
be ambiguous and that the NIGC's reasonable regulations are entitled to
Chevron deference.
12
IV. CONCLUSION
For the reasons stated above,(5) the district court's order is VACATED.(6)
Further, the Nation's motion to dismiss this appeal for mootness is DENIED.
(5) In addition to concluding that the NIGC Chairman exceeded his
statutory authority by issuing a temporary closure order relating to all the
Nation's gaming facilities, the district court raised, sua sponte, the issue of
whether the Nation's due process rights were violated. As an additional reason
for dismissing the government's suit, the district court determined that the
Nation's due process rights were violated. Because resolution of this
constitutional issue was unnecessary to the adjudication of the case, the
district court abused its discretion in deciding the issue. See Dept. of
Commerce v. United States House of Representatives, 525 U.S. 316, 343
(1999) (reasoning it was proper to abstain from ruling on the constitutional
issue presented in the appeal because a decision could be reached on other
grounds). Moreover, the Nation has abandoned this issue on appeal.
Accordingly, this court does not have the benefit of appellate briefing on this
issue. In light of these circumstances and the conclusion that the district
court's opinion be vacated, this court will abstain from adjudicating the merits
of this issue.
Because this action was an enforcement action, the only issue properly
addressed by the district court was whether the NIGC Chairman had the
authority to order the temporary closure of all the Nation's gaming facilities.
Accordingly, the district court lacked jurisdiction over other issues raised by
the parties, including the classification of the games at issue and the validity of
IGRA provisions requiring that tribal-state compacts be obtained prior to
engaging in Class III gaming activities. These issues must be raised in an
appeal of the NIGC's permanent order. See 25 U.S.C. 2713(c) (conferring
jurisdiction over final, permanent orders of the NIGC on the federal district
court). Therefore, this court, like the district court, lacks jurisdiction to
resolve these issues.
(6) The NIGC Chairman's temporary closure orders have been superseded
by the NIGC's permanent closure order and they, therefore, cannot be enforced.
Because, as discussed above, the district court erred in dismissing the
government's suit and in refusing to enforce the NIGC Chairman's temporary
closure orders, this court vacates the district court's order.
13