tribe shall waive its right to search are going to be up to the limits of the policy in accordance with the tribal ordinance referenced in some to be ok so isn't it isn't the isn't the proposed waiver only one of claims that would be covered by the policy not the way not the way it's raised in the count while trying to be a strange way to say we'd waive all claims it says were waiving claims and it occurs right after it right after something that says we'll get a power gen comprehensive liability policy and there were way of claims up to the limits of that policy and it doesn't doesn't that really say they're only waiving claims they have only intend to wave comes with put aside the issue whether they actually waive them but does not only issue indicate that they shall wait claims that would be covered by the yes yes absolutely yes so you think they would be covered by the general policy yes and there's a lot of california law that says the claims of this type are not covered by a general comprehensive liability policy they only cover accidents  whatever happened to your client wasn't an accident intentional toward is not an accident and a comprehensive policy only covers accidents a claim for bodily injury property damage or personal injury arising out of connected with relating to the operation of the gaming facility you're reading policy i start your reading policy i don't at the there i have never seen a post as far as i know there's this you can take judicial notice it's it refers to the standard comprehensive liability policy which is on file with the california department of insurance and that comprehensive policy only covers accidents i don't think your client had an accident whatever else happened now there's a separate issue here which we can get to later but i just i'm not clear that the premise of your argument that they were required to waive in unity for the kind of claim to your clients bringing is correct that's why i'm asking i understand your honor the way i read the compact and would suggest what we call fact is that it is broadly waiving all tort claims property damage what personal injury as far as i understand it the tribe is self insured they're not they haven't adopted a policy we don't have the language of the policy in front of us the tort that drives tort liability ordinance itself uses the same language  yes and that's the problem ok you know then that then let me get to that question isn't if the tribe broke its promise if you will to adopt an ordinance that would cover your client's claims where can we go are they still ordinance as a waiver of sovereign immunity don't you need a positive waiver of sovereign immunity by a tribe in order to sue it absolutely and and so the ordinance here is not a positive waiver even if we find the ordinance invalid it doesn't become a very specific ordinance that waive sovereignty and if so what if it broke its promise that's my question to is that zero is is it's breach of its promise itself a waiver of sovereign immunity or they did you are they just contract breakers the compact controls if the tribe is then allowed to turn around and enforce any tort liability ordinance that it pleases the tort liability ordinance laid out in section ten point two b what what what do you do with the part that says employment related claims are not being waived where does it say that when i'm looking here is it the t l a section six which is the well it's a very specific provision that deals with employment claims why should we read the other provision to cover employment claims because a blue flames report claims that employment claim is a claim he's got to put well first off this is not an  that it was for the federal courts to determine whether or not mr constantine those claims are arbiter of all if there if there is a star a waiver of sovereign immunity correct well that's part of the court's for what if that's right so that men and that's the that's the essential issue in this case see that's that's where i have some difficulty i think don't you have to argue that the compact itself weighs the waves in unity it does what i do you have to argue that right is not your essential argument that's what i'm asking i've i'm reluctan is the compact it is on enforceable ok but if it's again let me just try this again because you and i are missing each other and as the ordinance may be an enforceable but there's that make this that mean the ordinance is a waiver of sovereign immunity you have to go back a limited waiver to allow the state of california to bring a dispute resolution process voluntary arbitration and then federal court to enforce any term of the compact that it believes the trial is in breach of and you're exactly right that if the tribes tort claims ordinance didn't meet its obligations under the compact the only entity that has around that when he said that the only the only thing you agree with me you're going to be careful about agreeing with  that your ordinance complies with the comp one hundred percent complies with the compact and i'll tell you willing yet i'll tell you why the tort claims ordinance began life in the ninety nine compact as a patron take concerned judge norris of this court was the governor's chief negotiator i was involved in representing shawn and other tribes in those negotiations the concern was look you're creating a casino in your reservation you're inviting california citizens on what happens if somebody slips and falls we need to have some kind of protection section ten deals with public health and safety and if you read all of section ten it's you know all kinds of provisions that deal with the building and safety code it incorporates from the earlier section it deals with ten point one is general public health safety  the state wanted more up for the insurance requirements from five million to ten million and it required arbitration of claims within its scope your honor is correct about that and  but there is no waiver in section ten what section ten says the first part of ten point two says the tribe will get insurance there's a right there's a record in this case and it was a question judge or lawyer asked there's the record in this that's why i was interested in what the policy i guess and then some part two hundred ten point two d talks about the tribe shall an act its own law that includes the following terms so the waiver as the patron to claims is in the ordinance it's not in the compact and all you have to do to if you want to see a waiver of sovereign immunity in the compact is read section nine it's very clear just all the supreme court cases all the cases and this court waivers have to be very clear and section nine provides that and then you read section ten point she's actually ten says you're going to do it you're going to do it in your own tribal law and right so his argument and i want you to respond to it is that when you did it you didn't and you didn't discharge your pick your contractual obligations under the compact and therefore the ordinance should be construed as covering his client i'm rephrasing is your argument that's why i was asking  that's right he he said his his request is that the federal court's going to take the tribal law and excise three or four sections of it that flatly bars claims he wants you to rewrite the tribes law what law gives this point of standing a waiver of sovereign immunity and a private right of action to seek that relief against the tribal law there is none that is known if the tribes law violates the pump act the state can enforce it if the tribe violates the indian gaming regulatory arms the federal regulatory agency the national indian gaming commission has in force when authority finds closure orders the whole nine yards no private right of action by a third party the plaintiff's claims arise from the revocation of his gaming license his client was a dealer in the casino the tribal gaming commission exercising broad authority under section six of the compact revoke his license he's claiming damage parallel state court case there is ok section six point five point one of the compact which appears at page twenty four of appellants agendum six point five point one denial suspension or revocation of licenses provides all rights to notice and hearing for a revocation or suspension of a gaming license by the travel getting commission shall be governed by tribal law as to which the applicant will be notified  patrons have no remedy i mean that would be a violation of the compact violation of the compact under the terms of ten point two d it would be a material breach and you might get your license your gaming license removed or something like that no your honor the remedy that the state has for a material breach is terminations of the comp that's what i meant yeah yeah and this was not i mean but but i guess to your position is even if this ordinance didn't cover any toward claims it wouldn't matter at all creator you're out of the slip and fall i mean the accidents that this was intended to cover get resolved day in and day out this is a large facility there are thousands of people visiting that they process hundreds of these claims this claim is not the kind of claim that was intended to be covered the coverage for employment issues are in some other sections of the compact the coverage for licenses is in section six that i mentioned but this  was at patrons the other thing that happened in two thousand and six was it got expanded that the governor's office at that time said well what patrons aren't the only people in the casino th schwarzenegger ninety nine was davis and zero six was the terminator they expanded it to cover paid vendors and you'll see there's language right back and it says including but not limited but you know the the  issue was well what if somebody one you know they come and stay at the hotel and she goes gambling and he goes to play golf next door at the golf course right so there was there's a recognition that people could be coming on and connected to the to see you know activity but maybe remedies for his license revocation or under six point five point one six point five point five tribal law the tribal deny the law and the tribal law tribal gaming commission has regulations governing the whole process and he had a those regulations are in the record in that case they're not in the record in this case ok and then the campo case similarly dress i guess just a similar ordinance and did conclude that the claims had to be arbitrated  how do you distinguish you can make a lot of ways in capital the truck that the claim was by a patron who slipped and fell at the casino and her claim was was denied and they they denied arbitration there was a waiver for arbitration of patron claims and there was no process in the tribal ordinance for appealing that arbitration and what the campo panel said was well we think they meant to include that we're going to read that in essentially this kind of an equitable considered it was kind of an equitable decision the problem is the supreme court of united states of america has said travel sovereign immunity can't be abrogated by implication equitable considerations don't come into play at all those cases are in our in our brief campo you know in terms of finding a point so what what protections the employees well that's an excellent point your honor let me finish the cite to two thousand and six westlaw two three seven four six four three sullivan versus workers comp appeals  on that compact issue the protections for employees in the zero six compact are workers compensation which an unemployment insurance and disability worker's comp is ten point three eight unemployment disability ten point three b union rights are in ten point seven so there are some protections if the court were to take judicial notice of the four independence compact which went into effect in two thousand and fourteen and is publicly available on the website of the national indian gaming commission and the california gambling control commission the court will see along with the patron tort claim section we're talking about here there's an entirely new set of requirements that give employees similar kinds of rights that's missing from this compact which just highlights the fact that will and in gambling that's a powerful force in the political life of this day it's been a powerful force for good in indian country your honor it's the new buffalo is what they the indian gaming regulatory act has specific provisions that mandate the uses of net revenues of travel gaming operations can only be used for travel governmental health and welfare economic development strengthening tribal governments charitable contributions and and contributions to local governments for services and the compacts in california where the first in the nation to include revenue sharing to non gaming tribes look at section four that the benefits of indian gaming have been spread far and wide within has i'm not personally aware that i've personally participated in dispute resolution proceedings with the state on behalf of a number of tribes the state is not shy about raising it if it thinks the tribe is in breach so your dispute resolution you talk about arbitration i'm right there are there are three levels if you read section nine there's a meeting confer a vote and then there's voluntary arbitration of both parties agree and then there's a resort to court and we have an express sovereign immunity waiver with very strict limits on it including no third party participation to resolve contact disputes well is part of your argument that for the waiver is limited to is a movie word for it generally these tort claims with a compact doesn't promise a waiver of tort claims does it i'm not one hundred percent sure i have not been looking for the what the word i've been searching for the word tort and i can't find i think you're right about that i'm not one hundred thank you all this all right thank you i'm hoping for a little generosity on rebuttal here given the time it's been used but to answer your question quickly judge her which as far as i'm aware the word tort appears only at ten point lawful profession as a property right and they have interfered with his right to pursue that constitutional right so when they interfere with his right to pursue employment as a table against the law they've interfered with his if you're talking about property in the sense of due process deprivation deprivation be damage it's money they've taken out of his pocket forever he'll never be able to work at a table games do it again because of this reputation it's a to the extent that they're covered by the policy but what i said do you pay your debts that's why i asked the first question i would disagree about it says only up to the limits of the policy so it's basically it's limiting its liability to ten million dollars and whether it's self insured or there is actually a policy mr constantino is never going to get more than ten million dollars of the product so you think that even a claim not covered by the policy is required to be waived yeah if it's if it's a claim that falls within same language in a complaint so let's see section five is the limited waiver of sovereign immunity which i argue goes too far let's see say by five