It was a busy last week for Todd Kim and the team of Department of Justice lawyers from the Environment and Natural Resources Division who filed a response to West Flagler Associates’ petition for a rehearing en banc in the D.C. Circuit of Appeals, then filed an answering brief in the Ninth Circuit Court of Appeals in the Washington sports betting litigation initiated by multi-state gaming operator Maverick Gaming.
The Maverick Gaming case centers on the gaming compacts signed with the State of Washington, which allowed tribes throughout the state to offer WA sports betting. Maverick argues that the new compacts, which provide a monopoly to the state’s tribes over sports betting, discriminates against the multi-state gaming operator, as they do not have the ability to enter the market.
The 48-page brief filed by the DOJ on behalf of the Department of the Interior highlighted that the federal government believes that the Western District of Washington Court of Appeals was correct when the federal court granted the Shoalwater Bay Tribe‘s motion to intervene, which led to a dismissal on sovereign immunity grounds. This essentially means that the government believes that the Shoalwater Bay Tribe was an essential part of the litigation, and without them agreeing to join the case, the case can proceed.
Not until we say so
The problem for Maverick is that as a sovereign entity, the Tribe needs to agree to be sued, which it has not done. The government argues that Maverick Gaming gets its characterization of the federal government’s interest in the case wrong and that it believes that the Shoalwater Bay Tribe did not waive its sovereign immunity.
Joining the federal government’s brief were separate answering briefs from the State of Washington defendants and the Shoalwater Bay Tribe, who continued to maintain that controlling precedent supports the District Court’s conclusion that the Tribe is a necessary party under Rule 19 of the Federal Rules of Civil Procedure and that as a necessary party with sovereign immunity, unless they consent to suit, which they have not, the case must be dismissed.
It appears the Ninth Circuit is only a stop on an inevitable road to a Supreme Court petition for Maverick Gaming, and its counsel, Ted Olson. Olson has noted that prior decisions in the Ninth Circuit are unfavorable to his client, making such a disclosure seems to indicate an intent to take the case to the Supreme Court.
Court watchers should expect the next shot to be fired from Maverick Gaming in a reply brief due on or before Friday.
Feds brief in Washington sports betting case
The federal government argued that the District Court applied precedent correctly. The federal government’s brief argued even contrary to Maverick’s contention that the federal government is the only necessary party, the Shoalwater Bay Tribe has unique interests in the case as a sovereign government.
Maverick asserts that the federal government’s trust responsibility makes it an adequate representative of the Tribe. This is incorrect. Although there is a trust relationship between the United States and Indian tribes, the Federal Defendants have no obligation to represent the interests of the Tribe, a separate sovereign, in this litigation.
The feds argued that there is more nuance to the assertion and that the federal government adequately represents the Tribe’s interests clarifying that:
Federal Defendants do not adequately represent tribal interests as to the legality of the Compacts, nor do they necessarily have the same interests as the Tribe in defending certain aspects of the Compact Amendments.
The federal government closes by arguing that the Shoalwater Bay Tribe did not waive its sovereign immunity.
State of Washington brief
In its brief, the State of Washington gets straight to the point and argues that the Shoalwater Bay Tribe is a necessary party. The State argues that because the relief that Maverick asks for would impair the Tribe’s gaming compact and the federal government is unable to adequately represent the Tribe they are a necessary party. Of course, this leads to the natural problem that the District Court cited for dismissing the case, the Tribe cannot be added without its consent because it has sovereign immunity.
The State concludes by arguing despite Maverick’s claim that it could be provided with an adequate remedy without enjoining the Tribe, such as enjoining the State from enforcing its criminal laws. The State, however, says that the proposal is meritless and the gaming operators are trying to thread the needle around the absence of a necessary party. The State argues:
Maverick attempts to end-run Rule 19 by imagining an indirect remedy that avoids invalidating any tribal–state gaming compacts by decriminalizing unauthorized gambling in Washington state across the board.
The Shoalwater Bay Tribe’s brief
The Shoalwater Bay Tribe’s brief was the longest of the three filed September 1, clocking in at 75 pages. The brief essentially contained the greatest hits of the other two briefs. The Tribe argued that the federal government is incapable of adequately protecting its interests, in regard to Claims II and III which are brought against the State, not the federal government.
The Tribe also argues that the other defendants cannot be expected to raise arguments that the Tribe would raise. As a sovereign, the Tribe argues that it is uniquely positioned to defend its own interests and those interests cannot be adequately represented by either the federal or state government defendants.
The Tribe concludes its brief by, again, emphasizing its sovereign immunity from suit, absent consent, and noting that the Tribe is a necessary party under Rule 19 of the Federal Rules of Civil Procedure.
What now in Washington sports betting case?
Up next, assuming all goes according to schedule, will be a reply brief from the plaintiff, Maverick Gaming. The brief will need to be filed on or before September 22.
In all likelihood, the plaintiff will argue that the Shoalwater Bay Tribe’s interests have been adequately represented by the state and federal defendants, and therefore the Tribe is not a necessary party. Following the filing of the expected reply brief, the case will likely get an oral argument date.
The Ninth Circuit appears booked through November, so it appears December would be the earliest that the case gets an argument, but it is conceivable that the case does not get oral arguments until the new year.