good morning ladies and gentlemen george broker is participating by a video link from massachusetts one of the consequences of that may be a lag  transmission between when she speaks or when you speak and when she hears it so i i may ask you to hold up if i see her talking and you haven't responded or the reverse but we will try to make reserve six minutes from above the district court erred by untimely a by the just this or court erred by dismissing his untimely stockbridge once his lawsuit brought against the hotel nation for illegal class three gave me and against the state of wisconsin for fell into taken foresman action against such illegal gaming the stock richmond's he does not seek damages does not seek monetary relief rather it seeks compliance going forward not the more congress was very hope you will some time in your argument address what seems to me a potential problem in the way you judge what that it is clear in the statute that an indian nation can bring a suit but is it clear that an indian group can bring a suit complaining about competition i've looked through the statute and i can't see anything protecting one tribe from competition by another in other words i'm i'm interested in whether your client is within the zone of interest protected by this statu any type of protection of competition against another trial but the act provides for tribes and states to reach compaq's which are the documents that govern the gaming activities on indian lands that is but that's precisely what leads to mine concert because there's nothing in the end that protects one tribe from competition by another if the other tribe in the state saw an it company why would the state of wisconsin and the compact provided by the trunk nation and the state of wisconsin and indeed all of the wisconsin compacts provide for four zones of interest regarding the protection of their particular markets in fact of the state interest in two different provisions with the different tribes all designed with the idea that different markets would be protected one of those was the commitment that whole chunks gaming operation would be an ancillary facility by being an ancillary facility it's limited the type of gaming that can be conducted on those lands because the compact which is derivative from the act and it's the document to govern gaming activity it and we're looking for the i'm for squint of that agreement then when the tribe is another tribe standing there is no doubt that your client claims the injury maybe i'll ask the parties to post supplemental memos on this but the zone of interest requirement is built into all federal laws  and the supreme court has fairly recent cases like wax mark elaborated on the nature of that report none of the parties has addressed it and it concerns me  in two thousand and eight but he did that in the context of addressing the a political abuse statute of limitations not in the context of latches and latches the factual inquiry is one whether there was an unreasonable lack of diligence by the announced the expansion that the lawsuit was brought and so in the prejudice that that whole chunk inflicted by going upon themselves going forward from that point was going to standing for example there's a question of whether whether when the whole truth was operating this low level modest gaming facility that didn't peril stockbridge is interest stockbridge l situation and said well you know maybe we have standing maybe we don't maybe it's a material breach maybe we don't and there wasn't this in peril here that's imminently in front of them as a result of  reasonableness of the tribes timing and the litigation and the lack of prejudice because the result of that time but you can't expect the district right to take from that that you're arguing lachish you're not arguing that area of the district court the district specifically and found that it was reasonable for for whole time to expect stockbridge mercy to file the litigation earlier so the elements of lapses were clearly in front of the district court my figure out what you mean when there's a word called latches that sexist that  we made it clear that statute of limitations isn't the appropriate standard we made it clear that it was that there was an actual argument that it was reasonable for four stockbridge months see to pursue this  litigation at the time that we did we made the presentation and the argument that there is no prejudice the whole chunk other than what is self inflicted by their going forward and spending that money for the expansion only after knowledge of stock not argue in the brief that the statute of limitations for public nuisance should apply here radin the six year one that was adopted but the district court stated that the argument was not timely is sergei did so if you could tell us whether that claim was adequately preserved and where i think that would be somewhat helpful certainly ruled on the tribes a motion for judgment on the pleadings asked for four supplemental pleading as to whether the state should also be dismissed and in that pleading the tribe laid out in quite some detail the the appropriateness of the public nuisance agreement we had at the same time the tribe subsequently filed a motion for to file the proposed first amended complaint and it was submitted in that briefing as well and what is the public nuisance law that you are arguing is the most analogous yet for statute of limitation purposes the wisconsin statute that allows for a party to file a lawsuit to stop illegal gambling and that statute says there's a six year statute of limitations but the way that that statute is applied is it looks to the underlying nature of the activity and if the underlying activity that's being complained of is one that was permanent and led to two subsequent harm then you have to file the action within the six year period both wisconsin state laws says when that action is is an ongoing activity that is capable of abatement then the state six year statute of limitations does not apply you're the complaint here as judge easterbrook pointed out earlier focuses on the economic injury to your client not on any public annoyance what is it in the allegations that were support your argument well as public nuisance cost it's it's it's both it's both the the tribes economic interest and the tribes government the governmental interests the proper regulation of indian gaming is the cornerstone of the indian gaming regulatory act now that's why we think it's appropriate the congress specifically provided the ability of one tribe to file a lawsuit to enforce the compliance of another tribe to the terms of its of a what's the nature of the public and neuer that you have alleged in the complaint to support your public nuisance argue illegal gambling which is it which is a which compliance if there wasn't a provision in the compact regarding regarding competitive interests that there wasn't a complete of for provision of the contract compact providing the limitations on ancillary facilities we wouldn't be here but those does but the money that it does pay is very significant in terms of the bottom line to the stockbridge months tried in terms of the ability to use that gaming revenue for government of purposes and we're looking to the state and hope to it here to the commitments that they made in their compacts which are not merely contracts as they want to characterize them but are the greed upon documents as prescribed by congress and the of the act to govern the activities that occur on indian lands and you now you also argue that sovereign immunity principles preclude applying the wisconsin statute of limitations here but didn't the court merely look to state law to determine the appropriate federal limitations period here rather than actually apply wisconsin state law i think the answer is probably probably mixed you know what what what congress you know the first the congressional statute the act that you know has its own inherent time limitation because it only allows for an action for prospect of equitable relief if it's not current and ongoing activity then there is no basis in which to bring an action under the pr and it grows when the state when the court says well we're going to borrow state law as a matter of federal law you know that distinction gets really muddled because what you're doing then is coming up with  abel's the state legislature to manipulate their own laws in a manner that impacts trial rights under the indian gaming regulatory at and congress in the passage of big growth made degree state law applies to federal indian lands what congress didn't say that it it seems to me that because the federal sachi didn't indicate that the claim had no limitations period two points first you know the only this appropriate i don't think it's correct to say that there was no to its limitations period in the federal statute that the very nature of the federal statute i only i sent it indicate that the claim had no limitations period of but that's what i'm disagreeing with i think the statute indicates that it's limitations period it's limited to two situations where you have the ability to see prospect of at the relief which means that the activity being complained of must be ongoing and must be capable of abatement the the the federal preemption issue becomes becomes relevant because if you allowed it to stand you basically then allow the state of wisconsin and actually any state in multiple states to to thwart the exercise of tribal rights by manipulating the statute of limitations the federal courts would then use to apply apply that that congress in passing it made it very clear that the only and manner in which a state may a state law may apply is by remit between the tribe in the state in the context of a tribal state compact and wisconsin could have negotiated that in the compacts they did not there's nothing in the compacts that suggests in their dispute resolution contacts this is the your morning your honour's may please the court the first issue i think you need to address is whether or not the district court had jurisdiction in this case it's our position that it did not and the reason that it didn't is because it didn't meet the criteria set forth  indian lands second there has to be a violation of the contract and third it's our counsel your argument seems to be that because the claim is no good substantively there's no jurisdiction there is for long history of the supreme court considering arguments of that sort they don't work and that's just the principle holding a bell against what is there anyway your argument is compatible with bell against would well i believe it is we are looking when you have a statute and the statute is ambiguous on its face the court is required to interpret the statute and here there is an ambiguity and that is what indian tribe is authorized to bring a cause of action under the statute in order to bring that cause of action again let me put it this differently why isn't the jurisdiction under the federal question jurisdiction twenty eight u s c thirteen thirty one this is a claim based on a federal statute thirteen thirty one says there's jurisdiction over any claim arising under federal law you don't need the act to supply jurisdiction believe the act of supplying a claim or remedy my argument is that this is a even though a compact is an agreement between solve in the field of federal jurist i've read the statute i've read the case but i quite honestly on as i sit here i don't remember my sister just to get moved to some other argument well they haven't stated a cause of action because there is no violation of the compact in order to be a violation of the compact we have to be not conducting gaming on indian lands that is subject to the twenty seven one thousand prohibition and we have to be conducting gaming in a facility that is not an ancillary facility first of all we are conducting gaming on indian lands in one thousand nine hundred six the secretary of the interior issued a proclamation proclaiming that the wittenburg parcel the cars i got i think it's fine if you work for you to address the merits but i wonder if you're going to defend the district court's  knew that they were being harmed and that specific act was when the nation began conducting games on a parcel of land that they al believed was not indian lands and in a facility that they believed was an ancillary facility they candidly admit in the hoarsely declaration that's in the record that they began losing revenue yet they took no action and as a result of that delay waiting until the nation began to x took out a loan incurring millions of more dollars in debt to expand the facility they think they that they waited until that to occur the nation was harmed they were prejudiced and as a result of that if you want to do equity if you're coming to the court you want to click to do at u a b equity then you have to do equity yourself and here they didn't do that cases that stockbridge months he cited into their brief that discussed latches but they didn't actually argue that latches before the district court having said that for the reasons that i just said i think that there are sufficient facts in the record for this court  the latches issue the district court found that documents his claims were barred by the statute of limitations period the district court did exactly what the united states supreme court and the federal courts of appeal have directed the district courts to do and that is where you have a cause of action in the federal statute and there's no statute limitations period set forth in the cars in the step in the federal statute or the act in this case in the federal courts as opposed to look to the it in the district court below we made the argument that the secretary of the interiors actions in approving the compact and no issue asking about that i'm asking about a particular hundred fifty eight i don't believe so your honor we argued and said that twenty eight u s c section twenty four fifteen here which is a six year statue limitations period for bringing in any particular reason why you didn't rely on sixteen fifty eight no we argued to the district court that the appropriate statue limitations period was the state secure statute of limitations period in this year when sixteen fifty eight is a general federal statute of limitations for all federal statutes wacking their own statute of limitation but the case law for years but the case law says that it's approach that con familiar with the statute john and what i've read it ok i'm making the argument that the that the district court acted appropriately in adopting the state statute of limitations because that's what the federal cases in this united states supreme court has said that that's what question is whether they the indian get game regulatory act that's been sufficiently amended after the inequity dated sixteen fifty eight but since no one seems to be arguing about it i will pursue the alternative why was that appropriate rather than giving them another bite at the apple that well because because first of all that the stoppage muncie changed its position in the middle of the litigation nationally they alleged in their original complaint that they were harmed when the nation initially opened its gaming facility then it sought to amend its complaint and allege that it wasn't harmed until the expansion took place and the district court simply said i'm not going to allow you to do that but the case law allows i think they put that in the alternative and the case law certainly allows parties to plead in the alternative regardless of whether the harm occurred when the nation initially began gaming or when or the harm occurred with the expansion that they sat on their rights harmed by the expansion there was enough facts before the district court to say no that wasn't the case you were harmed when you up when the initial gaming facility opened up and there was just continuing harm and therefore there was a specific act in a specific honor excuse me i'd like to start off on right where you were near the end of the last questioning regarding twenty eight u s c sixteen fifty eight a while it is true that the parties did not consider and brief that statute i just took a quick look at it and it appears to me that it that that default statute of limitations only applies where the statute in question that lacks a statute of limitations was enacted after section and their claims against the state in this case the claims against chunk seek to enjoin class three gaming activity that's allegedly being conducted on lawfully while the claims against the state don't seek to enjoin class three gaming activity but seek to enforce contractual obligations of the state under its compact with the stockbridge and i think this makes a difference to the arguments that they make against the state in this appeal their first argument i think their primary argument is i think essentially a policy argument based on the x purpose of providing a legal framework for tribal gaming as a tool of tribal economic development but they basically argue that applying a statute of limitations to an action to enjoin on lawful gaming activity would allow such activity potentially to continue forever and that would undermine the purpose of figaro but that argument doesn't apply to the claims against the state because those are not claims that seek to enjoy in gaming activity their claims that seek to inforce compact are obligations in any event i think that if the court finds that there is a statute of limitations for compact based claims that would not be contrary to the policy of fostering tribal economic development congress chose the tribal state compact as one of the primary mechanisms for advancing the economic development goals of the act and one of the ways in which compaq's do that is by enabling tribes and states to negotiate a secure and settled business environment for tribal gaming statutes of limitation further the same goal by reducing uncertainty and reducing the disruptive affects that longstanding unsettled claims can have on economic activity stockbridge is making cuts both ways and can work against tribal interests as well as in their favor stockbridge argues that the bigger that the x policy of helping tribes would be undermined if a time limit were placed on the tribes claims against the state but if that argument is correct then states would also have no time limit for bringing compact claims against tribes and tribes with them be exposed to the to the possibility of long and settle claims which again provides uncertainty in the business environment and works against rather than for the tribal economic development the contractual nature of the claim against the state also affects their second argument which is that no statute of limitations applies because they are seeking equitable rather than legal relief in the form of an injunction of a class three gaming but again as i just said i think their claims against the state don't involve in joining on lawful gaming activity so i don't think that argument connects up in the way they have suggested with their claims against the state they seek to enforce comp contractual obligations under compact and actions to enforce a contract typically are subject to statutes of limitation i also think that their  claim is more legal than equitable their claim against the state is more legal than that equitable in character in another respect which is that they seek declaratory relief which would fix certain financial obligations between the parties on the compact and that declaratory relief if given could serve as the foundation for a future attempt to obtain monetary relief against the state even though they haven't specifically asked for monetary relief in this action they have suggested in briefing that the state should be required to disgorge previous revenue sharing payments and even within the scope of this action i think that stockbridge is essentially asking the courts to declare and force the monetary obligations of the state on the tribe under the under the compact so in both of those respects i think that the claim for declaratory relief against the state can be considered more legal than equitable in character stockbridge also tries to analogize their claim to be a claim for injunctive relief in the sure case which is discussed in the in the briefing in which this court found that such a claim for injunctive relief was not barred by the statute of limitations under the americans with disabilities act now that the i think the shirt decision really was premised on the specific language of the of of the americans with disabilities act which clip expressly contemplated a cause of action being available where a person with a disability is being subjected to discrimination or about to be subjected to discrimination and i think that that created on an ongoing basis for claims for injunctive relief under the americans with disabilities act that is not  paralleled by the language of the indian gaming regulatory act upon which upon which stockbridge relies but be that as it may their claims against the state once again are based on that language which relates to enjoin in class through gaming it's based on the it's based on the compact obligations and i think that applying the rationale of a case like sure and this is the district court set said this that that the rationale of a case like sure is more appropriate in the context of civil rights cases and tort cases than it is in in a case where we're enforcing the requirements of a voluntary agreement by the parties where the underlying rule of liability is not the sort of special rule to do or not do certain things that would hurt other people other people in general the underlying rule of liability is one that was negotiated in the in the compact between the parties and it only applies to them   finally the contractual nature of stockbridge's claim against the state also defeats their public nuisance argument i think they argue that their claim is to enjoin the wittenberg to see no is analogous to a state law action to enjoin a gambling house as a public nuisance and they infer from that that they should get the kind of special statute of limitations treatment that is sometimes afforded to such public nuisance claims but once again their claims against the state do not involve in joining the wittenburg casino they relate to enforcing the contract so an action to enforce that agreement is not analogous i think to an action to a to a public action to abate a public nuisance it's analogous to an action to enforce a contract because that's what it is now the next main point i'd like to address is stockbridge is argument that its claims can't be subject to a statute of limitations because as a tribe it's a sovereign under the traditional common law doctrine of null and tempus the statute of limitations can't be asserted against the the first point here is that the tempest doctrine like any common law doctrine cham be overridden by legislation for example there are federal statutes that impose statutes of limitation on various categories of actions brought by the federal government in this case the district court borrowed the response of statute of limitations for contract actions and stockbridge in their known samples argument argued that statutes of limitations in wisconsin are subject to a known tempus doctrine but that's not true there hasn't been any showing that the doctrine has ever been applied by the wisconsin courts and more importantly the wisconsin legislature has by legislative action made statutes of limitation of political to do actions by the state the gnome tempest doctrine also doesn't apply here because stockbridge and the state have agreed in their compact section twenty two b to grant each other a limited waiver of sovereign immunity from certain claims in federal court there's no mention in the compact that the waiver of sovereign immunity does not include waiver of sovereign immunity from statutes of limitations the usual rule about statutes of limitations is that they are considered to be a restriction on a waiver of sovereign immunity from being sued that is when a sovereign consents to being sued unless it expresses otherwise it's only consenting to be two lawsuits brought against it within any a political statute of limitations period so statutes of limitation should not be construed in a way that would expand the sovereign's waiver of its defense of immunity from suit beyond what the sovereign intended so applying that to the doctrine of tempus against a sovereign defendant in a compact and for case like this one that would deprive the sovereign defendant in this case the state but it could be the tribe in another case would deprive the sovereign defendant of the benefit of the statute of limitations thank you counsel thank you anything further hasn't been raised the motion for judgment on pleadings was based on the affirmative defense the statute of limitations they did assert the form of the defense of lapses in their answer but they did  not make a motion to the court that the case should be dismissed on latches so we believe that it's perfectly appropriate as judge wapner suggests that her flush that this case be remanded for fact so that the factual record can be that all they had done prior to the knowledge of the lawsuit was take out a loan they didn't take draws on that loan but they had the ability to they had the ability upon that notice to to avoid the expense  going forward the expansion so many prejudice to them was self inflicted i want to make a point also regarding the you know the the the state's argument where they made a statement that this was really a case for money damages were an agreement that's voluntarily entered into between the parties well number one it's not a voluntary agreement between the parties it's a requirement thank you carol i'm sorry i see that i'm out of touch thank you case is taken under advisement the court requests all parties to file within fourteen days supplemental memoranda addressing the question of whether stockbridge community is within the zone of interests protected by the act with respect to the sort of claim being made in this case and council should look particularly at lexmark international against static control components it's five seventy two us one hundred eighteen we look forward to the receipt of those memos within fourteen