a required party with genuine interests in the outcome of the litigation that would not be adequately represented by the United States alone; and Shoalwater did not waive its sovereign immunity by intervening, and therefore, could not be joined to the suit. The court then performed a Rule 19(b) analysis to determine whether “in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” The court found that the action should have been dismissed. Finally, the district court also found that no public rights exception to the joinder rules applied. Maverick appealed to the U.S. Court of Appeals for the Ninth Circuit, filing its opening brief on July 3, 2023. In its appeal, Maverick argues that the district’s court’s interpretation: contradicted precedent that the United States could adequately represent a tribal government absent a conflict of interest; and would lead to what they viewed as absurd results—namely that a sovereign government preserving its immunity could “insulate…final agency actions [involving the sovereign] from any judicial review.” Maverick further notes that, since required-party status must be assessed on a claim-by-claim basis and at least one of its claims did not implicate Shoalwater, it was inappropriate for the district court to dismiss the matter as a whole. Overall, Maverick argues that dismissal because a sovereign cannot be joined by reason of their immunity, even when its interests are represented in the litigation by another party, unfairly deprives would-be plaintiffs of the chance to seek remedies to which they might otherwise be entitled and is not a result intended by law, which generally favors “judicial review of administrative action.” The United States, the State of Washington, and the Shoalwater Indian Tribe filed response briefs on September 1, 2023. Maverick filed its reply brief on October 9, 2023. The Ninth Circuit has not yet scheduled a date for oral arguments. West Flagler Associates, Ltd., et al. v. Haaland, et al. (D.C. Circuit June 30, 2023)— The United States appealed to the D.C. Circuit Court of Appeals and oral arguments were held on December 14, 2022. During arguments, West Flagler challenged the Secretary’s approval by inaction on four grounds: (1) the Compact’s authorization of gaming off Indian lands was unlawful under IGRA, (2) the compact violated the Wire Act, (3) the Compact violated UIGEA, and (4) the Compact violated the Fifth Amendment’s guarantee of Equal Protection. In a decision issued on June 30, 2023, the Circuit Court vacated the District Court’s opinion and entered judgment in favor of the Secretary. The Court rejected Plaintiff’s first claim that the Compact unlawfully violates IGRA by authorizing Class III gaming outside of Indian lands. The Secretary agreed that IGRA does not provide an independent source of legal authority for gaming outside of Indian lands.” However, the Secretary argued that “gaming outside of Indian lands … can be addressed in a compact.” The Court examined the language in the Compact discussing wagers on sports betting “made by players physically located within the State using a mobile or other electronic device,” which are “deemed to take place exclusively where received.” The Court reasoned that “the Compact does not say that these wagers are ‘authorized’ by the Compact.” Instead, this language “simply indicates that the parties to the Compact have agreed that they both consider such activity to occur on tribal lands. Because the compact requires all gaming disputes be resolved in accordance with tribal law, this ‘deeming’ provision simply allocates jurisdiction between Florida and the Tribe, as permitted by [IGRA].” The Circuit Court then reviewed the merits of the other three arguments brought by West Flagler, which the District Court did not reach in its analysis. In looking at the arguments regarding the Wire Act and the UIGEA, the Court found the Secretary was not required to disapprove the Compact on either basis as both arguments present questions requiring hypothetical outcomes following the implementation of the Compact. Finally, the Court found that the Secretary did not “authorize” or “grant the Tribe a statewide monopoly over online sports betting” and therefore did not violate the Fifth Amendment’s Equal Protection guarantee. However, the Court makes it clear that even if the Secretary did authorize such sports betting, her approval would survive rational basis review under Mancari , stating that the exclusivity provisions are “rationally related to the legitimate legislative purposes laid out in IGRA by ‘ensuring that the Indian tribe is the primary beneficiary of the gaming operation.’”
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