act under the terms of that act that way on must be held in trust for the tribe by the federal secretary of the interior and he wants to test that claim by making a submission to the secretary and asking her for agency action with the district court and joined the tribe for making that federal administrative submission so the artist can litigate while the parties litigate the claim that the state has raised here which is the tribes and not so filing would violate the terms  class three gaming that are between the tribe in the state of michigan now that injunction can be via can be vacated should be vacated for lack of jurisdiction or lack of likelihood of success on the merits because the balance of harms sharply favors the tribe or at a minimum because it's overbroad but in my time this morning i'd like to focus on a couple of overarching points one of them is that the entire legal framework here relates to class three or four casino style games and that's relevant both to jurisdiction and you didn't jurisdiction that's the statute that lifts the immunity of the tribe and says sold same thing right that's the indian gaming regulatory act which has a provision which the stay in the district court have relied on think that's right the only abrogation of travel in the unity here would come from that and it's been suggested would come from that provision and that i'd also like to spend some time on the balance of arms but i want to hear about the balance arms in this i think that's that's a certainly a critical issue that that one has to consider worth a time they've been jocularly but i think it's particularly significant here because i think the record shows that while there's not this and that's relevant to jurisdiction because the air provision that we're talking about authorizes suits quote to enjoin a class three gaming activity whereas what the district court actually has enjoined here is a federal administrators mission under the tier three getting well permanently barred wouldn't be an appropriate preliminary injunction but we do think that's the only injunction that could be entered as as permanent really and we think correspondingly the only appropriate when we're injunction if there could be one the intent is to engage in gaming and if we can do class three we will do class three if we can only do class two we'll do class two but that issue is far down the road so what the state's trying to do is is prevent us from even taking the first step toward establishing our right to have the land taken into trust on the premise that someday down the road we might do class three within which you have under milk so milk milk with the knocks on milk so right and that's that's a federal statutory right and frankly an obligation of ours to that is our legal position that position like many other issues here will have to be tested and that and thirty years the other when you say many other issues the other issue is that section nine of the pact right now is the two big issues where the two big issues and two big issues that might keep you from doing class three that that's correct and then the question up here is the right question to help then here's my next question if i am it seems to me that those issues that congress could have intended that those issues could not be litigated in the propre and if this is not the time because the action that has been enjoined is a preliminary action that might not  might not necessarily lead to bias re gaming when is the appropriate time when there would be a waiver of sovereign immunity and those issues could be litigated in federal  sense yes and the tribe has always been frank about that we've always conceded that if we succeed in having the land taken into trust underdogs and if we stablish our right to conduct classes or gaming or conduct gaming or even if we just go ahead and start conducting gaming at that point if it's class three gaming then this provision of bigger would apply there would be class three gaming going on on what would you have to do in order to make it right i guess to very immediate or realistic music normally in the ordinary words of bringing a suit to enjoin something includes bringing a suit to enjoin it before it happens that oftentimes it's not true that's entirely correct and i think the specific language that we're dealing with here says that you that the congress has authorized a suit to enjoin the conduct of a class three gaming activity on indian lands in violation of a contract those are all let me let me put it this way if you're going to argue that they have to wait until the gaming in until the chips are and and cards are actually being dealt with that undermines your argument that they can't bring suit now so if you could identify a point in the in between it would strengthen your argument that you can't bring suit now am i making sense because it just seems strange that congress would say you can bring suit to challenge something but only when the chips are down and so you know only when the only said if we got to a point where we had gone down the road clearly proceeding at our own risk we would be ill will suit you know position to claim that what is at that point but second because of my class to class three point which i want to come back to the notion that we would get all the way to building x ino and then it would be total waste if that were enjoined is just false because what we could do with that space is class two gaming which is not in violation of a grid and would not be in violation of the contract and the same i'm still trying to get you to identify some time earlier than when you're actually gambling you're going to you're now saying that your position is that there's no waiver of sovereign immunity till there is actual gambling going on so they can wait and hold their their lawsuit papers but they've got to wait until there's a better placed before they can sue is that your position with respect there clearly is jurisdiction at that point and there may not be my question and there may very well be jurisdiction the conduct class through gaming and it was let me put it this way is there a way we can rule for you if that's what we think the law requires at this point and clearly preserve the ability to sue at some point prior to when the chips are down yes i think you actually what would we suggest that he would say that at a minimum on it's not right now the land has to go into trust there has to be a realistic immediate and relatively imminent prospect of immediate now it's not and if we say there's not then you'll say well under that opinion you can't do it until the chips are down maybe i should turn from over to the balance of ours because i think it is well that's a mean we'll give you time to talk about the balance of arms but i don't know the answer the i really doubt trying to be difficult here but we we think the answer is that congress provided there's as a sovereign immunity issue the technical area where any application has to be a lucid under the law we think it's clear under th what i'm asking is if we disagree with you just assume for the moment that we just disagree with you that you have to wait until gambling starts to why doesn't that mean that you can sue now it could be it could mean that there there could be jurisdiction and i guess i'd also like to say fundamentally for the tribe we understand that we are going to have to litigate this issue with the state that's whether we had a clue to get it now or later is not our fundamental  fundamental concern is being barred in that in the meantime while we sort that question out on the merits or even getting started with the federal administrative process on their looks and that's where i think the balance of arms but because here what's happened here is the tribe needs to we we have a development plan that poses a number of legal questions we talked about some of them the first one is whether this land needs to be held in trust by the secretary of interior because of how we acquired we want to get that resolved the way to get it to submit that question to the secretary finally resolving it will take time we are working under a january twenty seventh deadline this injunction has already cost us a year which is time we will never be able to get that is serious immediate and irreparable harm now on the other side it's hard for me to understand what harm the state actually faces from having this injunction denied for two reasons one the most relief they're ever entitled to whether it's now or later is an injunction barring class three gaming on the lancing property and they can get that at any time and they can get that if we go forward and they get this now without a preliminary injunction they can get that injunction at the end there  how do you respond though to the state's assertion that they're going to suffer irreparable harm in that if you if you're allowed to go forward without this contracting in place that other tribes may be in courage to act and irritation of the company in the think that balance is clear and the notion that other third parties might look at this litigation and choose to take other steps to to change their position is think is highly speculative but to tribes that i mean been isn't that the congressional intent that you are not going to create a situation in which various tribes are going out independently and creating off the reservation gambling casinos and keeping all the revenue and wasn't the purpose of the act to create this imbalance among the tribes the state both and then you know create the complex that would prevent this huge pulling for ration of casinos competing with one another among the various truck can you get away from the congressional  ne important aspect of the compact mechanism is that they are these are specifically instructed by congress and the statute that they made they may negotiate over in foresman terms now the state didn't do that here or where did i mean there are in force when terms of the contract they don't touch the situation and the two terms that are not covered by the specifics of the contract both sides both the state and the tribe reserve expressly reserve their sovereign immunity so i just don't think it's possible to say that the balance of the congress had in mind here has been has been over turn but what the parties here left was the congressional default mechanism for a dispute resolution over this kind of dispute and that is that what we've got here is two potential loopholes yours and daniel and now the supreme court has said we're going to look at by males and i know that you are under a different lupo or exception has said we're going to look at why why should we not let the supreme court upon on those two very particular issues that that i think form the core thing is that the the temple question is different because that the conundrum and the mills was that once i was saying this is indian lands now and always will be on the other side we're saying it's not in the lands now and never will be we're saying it's not indian lands now but it will be indian lands if immunity i guess what i'm struggling with is the practical outcome it seems to me that you've got two different routes that really do the sign thing they undercut the balance that was created by the indian and sorry but i fundamentally disagree about it being the same outcome because we have never questioned that there will be a time for the state to bring this action and to get an education if we are conducting a class three gaming on this property just if i can say as a practical matter although as a practical matter the tribe will want that question resolved so i think you can be confident that the trial will he that question not just in our view which we would do by going either to the interior secretary or to the national indian gaming commission and seeking an opinion that you're right about the indian lands issue and if that opinion is rendered that it will be challengable in federal court by the state or others of the a p a but we view that as the second question here not the first the first question is whether we have anything to have a question about section twenty or not because this land either is going to go into trust or it's not and there's that question that is antecedent all the others and it's that that we're trying to get teed up for a logical orderly decision which the state will have every opportunity to contest but we can't get started on that question because of the injunction entered by the district court here and that injunction on that basis is fundamental thank you coun it and just just so we understand your ultimate position it's that it doesn't fit under the settlement lands category we certainly will that's one of the two thousand are gone of the claims that think the supreme court's decision is going to be struck if it's for the same reasons that mr de ma and i should point out that as i understand the private argument they say that they know klein that it is an exception to the program bish and on class three game one you've got i guess i'm i'm just struggling because it seems to me though you go different routes you're ending up in the same spot  essence seeking an injunction against a step against a preliminary steps to class three gaming yeah and and it seems to me that that's not under the literal words low probably isn't be a step toward something else right so it doesn't doesn't exactly fit within the language well i can't deny that but why would it make sense to wait until they do application to have the land taken in trust and he argues that if you take this preliminary step then there are other avenues that that you know the other people can take should they perceive this process but that the harm to it soon as we learned about it we said we couldn't do that it went ahead and bought this piece property over our objects are warning bells to a large extent whatever harm they are may be occurring here which is they're saying is w now are we armed first of all mr demond pointed out there are other avenues that we will have to pursue later we will probably have to file some sort of administrative decision read in the midst of appeal probably have to sue the united states in the process of some cases that they would never have to do to drive on or promise that it wouldn't file that have and when i see the logic of your argument but it seems like it would ruling in your favor on that ground would lead to sort of that the next time this kind of thing happens they just have to take it without saying what their plans are well that's that's a possibility if i'm going to have credibility and not that but just because i mean it seems kind of anomalous doesn't i mean we're not we shouldn't pass we should rule in a way that just sort of encourages them to hide the ball well they made a promise not to do it or that promise made middle ear requires that we delve into what is there and and we know what that intent is but that isn't a reason not to an orthopod much is because one side is willing to do something that they agreed not to do and we have to look at what is there and you know that's not a that's not a reason to interpret what is that section nine in the  different form in a different place we will make those arguments it will do you don't think those arguments will be correct possibly well they'll be more complicated the more i understand of the more complicated but i'm trying to get a view if you  t fact you will be precluded from making those arguments because because all the all the pack does is prove brand taking into trust it doesn't prevent the gambling that follows taking in truck and since it's already been taken into trust there's no longer something that can be stopped he would make that are you know we would not make that argument so you would still make the argument whether it would be accepted or not absolutely that the that once it's taken into trust you can still rely on section nine t if the law for clues that when you're up to a final injunction you just have to apply the law even if it's harsh well i guess i'm not really sure that's true your honor that when i saw the cases i looked at augusta that basically when you're entering a permanent counsel said before is that and this argues against leaving the injunction places that we should be allowed to to continue because there are other means that can be used to  contest a certain issues and it would it if in the final analysis it turns out that we've constructed these if he knows them we're not allowed to do this by a street there are other uses so it's not going to be like well because we've made this investment you know everything is lost and he makes that as an argument for why they should be allowed to submit the application and proceed rather than lose all this time because there are alternate uses that can occur if in fact history it's not  the lines but he did not buy that argument and one reason for not lying is that there was nothing in the record before him that would support the argument that that is just an argument that we're going to open if we can't do plaster either we're going to open a class investor who's going to put up all the money ten million dollars we don't believe that in the agreement they're financier that he would agree to put up ten million dollars so that they can open the bangle pother and laughing quickly when there are seen as within easy driving distance in mount pleasant and free press and an hour away where there is a full fledged last three game and be much too risky to open at last who see you know a two hundred forty five million dollars to build it is with what they're saying and operate bingle in it it would lose their with of the tribe have not applied to have the land taken in trust which is what they promised to do in their pomp that do not apply there's a reason it's it's a very unique wording for that promise and there's a reason for it the parties back in issue of harm to the state let's assume that the state is correct about what section nine for habits which as you know we believe they are not what it entitle them to do is to bar class three day meeting on that property at the end of the day but what they say is the literal terms say bars take me into trusts and they and they've made the argument out that it also bars that the mechanism it uses is to bar the trust at the beginning but i want to be but clear to you you would be clear that you would not argue that because  this doesn't say that your contractual compact agreement doesn't say we once we get the lie and we won't do class three getting your  promise says an application to take land in trust for gaming purposes shall not be submitted to the secretary of the interior i'm struggling with your argument that we're doing this case too soon if if i had this line widget how could i and i have this language how can they not began with challenging the application because that's the promise if they hadn't challenge the application in time in lighter wouldn't you say sat on your rights i promise that i wouldn't take it that i wouldn't undertake an application and you sat on your rights while i did it i made the application they took it you're too light well so they free to bargain in this contract if they thought that this provision was critical and that required specific performance and that there ought to be an immediate action where in which they could get an injunction they were free to bargain for those things under it they didn't if you look at the speed resolution provisions in this compact you'll see they have nothing at all to do with this and what they do have is a is a reservation of both sides sovereign immunity that means they're remitted to the nec and as a congress left them which is the one we've been talking about the second point i want to make is that the compa court resolve about that but we have the legal right you can't contest that we have the legal rights pursue class to gaming if the land goes in the us and he's can see it in his brief the state has conceded in its brief in that sex but there's no basis for barring the class to gaming compact or under egg or for that matter so is there anything in your comprehensive development and agreement that would indicate that there is a financial feasibility to a bingo there is a you can express reservation in the development agreement of the right to do any kind of gaming to work last three i mean i don't on apologize i don't know if this is in the record there is an intergovernmental agreement that also addresses the possibility of revenue  the way that revenue sharing would be done under a class two arrangement as well as really so yes there are there are things in those agreements but that's really a shock and i guess i'm just getting back to the comprehensive development agreement in the expected revenues  not want to be practical here i mean the bottom line is if you do because you know class to getting at this facility are you going to lose your shirt and are you going to lose your investment dollars if you turn to your current investor and say we're not going to do a class three guy named we're going to bring them with respect that's a decision for the tribe and his development partners in the city of lansing all the all the agreements that you have in front of you where revive if you like show that the parties contemplate the possibility of either class to our class three class three is better i'm not contesting that we want to do it if we're entitled to but if we are legally barred from class three class two is a viable option and i could say a lot of things about that but they're not in the record you're not on scouts i see your time is up with respect to count four is that the one that does challenge class three gaming or seeks to challenge class three daming on the ground that we will or whatever but there are other things but presumably after some of these steps are taken it's going to get closer to ripeness that's correct and as i said we try we'll have every incentive as a practical matter  see this issue up for legal resolution before we get into making all the and that's when we do that the secretary where the united you see will have an opportunity to pass on and as you have been seated right here that any any of that there's been no concession or waiver