county may proceed may it please the court but the shop for the tribal appellants i'll be sharing argument time today with counsel for the state mr allman there are three questions on appeal with the court's permission mr element plans to briefly address the sovereign immunity issue i plan to address the other two issues and handle rebuttal now i'm happy to answer any questions about the settlement of land claim issue but i'd like to focus my affirmative argument on the compact claim that is your side there's a total of the defendant nation would breach the compact at issue overwhelming record evidence establishes the consistent understanding during negotiations the gaming would proceed on a market by market basis such that the tucson area says the nation cannot open a casino in phoenix but what we do know under arizona law is you don't need that explicit notation in fact you don't even need ambiguous language before you apply the party's understandings in the taylor case for example the arizona law where it's not there how do we how do we get to where you want to be so your honor i think there are several indications in the compact and i think the two provisions to focus on are within section three c of the compact and if it's helpful to follow along those appear in the read brief in the back of the nation's brief on page three of the addendum and the first provision i would turn to a section three c five that's again on a dent in three of the nation's brief at the back of their brief is the easiest place i think to find it that is the gay device allocation table and i think there are a couple features in that table which point and reinforce the clear understanding that the state in the compact in parties had that this would proceed on a market by market basis and the tucson area tribes cannot open a phoenix casino so the first is in the first column act of self authorizes class three gaming it does authorize class three gaming there's no dispute about that but there are restrictions on the location of that gaming in locations there's no dispute that these are geographic locations the bottom two tribes the tohono o'odham nation and past are the tucson area tribes the next four tribes up to the phoenix tribes the rest of them are rural tribes now if there's any dispute about that it's illuminated by excerpts of record four seventy two which puts explicit labels on that when it talks about the phoenix area tribe it says the merrick ound market area excerpts of record for seventy two says when you're talking about the facilities the fourth phoenix tribes are talking about the phoenix market the two tucson tribes are labeled tucson market area and when you're talking about their casinos you're talking about the tucson casinos now that is repeated every version of the gaming chart if you look at the excerpts from four fifty five all the way through for seventy two you see the arc of the negotiations on prior versions of the table everyone has a footnote for each phoenix area tribe that says they will be negotiating the allocation of machines and facilities amongst the phoenix tribes market parity and the same for the tucson tribes but not saying they want to go sheet between phoenix and ensure phoenix market parity now the second indication in this table and three c five is the last column which is entitled revise gaming for realty allocation that column is not only allocating the number of facilities but it's doing so with the geographic implicit geographic limitation and here is how we know what you'll see in column for revised gaming facility allocation that has with it not just the number but there's an implicit geographic limitation if you look at the four phoenix area tribes that are grouped together auction for mcdowell salt river and hilo river if you compare columns three and four this was a painstaking critical part of the negotiations each of those tribes agreed to reduce their right to build an additional casino in phoenix each of the numbers in column four or one less than their previous gaming allocation huge part of the negotiations ample mountain of evidence on the record that each of them agreed to do this to satisfy the state's requirement that there would be no additional casinos in phoenix now that negotiation and that of the phoenix tribes agreeing to take one less casino not build an extra casino in phoenix makes absolutely no sense if they agreed on those painstaking negotiations and to end the tucson area tribe which had no no voice in the negotiation about phoenix area casinos could simply drop a casino in phoenix the other side does not provide any coherent account as to why you would have three years of negotiations reaching that compromise and it could simply be subverted by a tucson area tribe building a casino in phoenix the third indication within section three c five this gaming chart i would point to and again the other side has no coherent explanation here of this is the number four when it refers to the odum nations allocation now that for allocation of four casinos you'll see their allocation did not reduce by any they kept for casinos that was sixty point in the negotiations and what and there is undisputed evidence about this and even the nation doesn't dispute this the reason why they were everyone agreed that they could keep work as you know is because one of those casinos would be kept in a rural area the other three in tucson that's made explicit on e r page for seventy two when you see the number four and the number four is defined right next to it as three casinos within the two thousand arizona plus the current rural facility at y now if you look at the intrinsic evidence now i'm not notation that the four casinos that the nation would have would be three casinos in tucson and one rural facility that was then codified in the compact and section three c three of the contract so just a couple provisions up in the compact that that footnote was essentially made into three c three and it's on page a dent in page two way of the nation's brief if you're looking there and what that provision says is if the tribe is the nation and if the tribe operate for gaming facilities then at least one of those four facilities shall be at least fifty miles from the gaming facilities in the tucson metropolitan area now our claim is not that this new phoenix casino would violate that provision but this provision would make absolutely no sense it would essentially read it out of the compact if you accepted their reading and that is because under their reading they could simply move all four casinos to phoenix because phoenix is fifty miles outside of tucson before that and why doesn't section j with them do that well well your honor it doesn't let them it would clearly flout the undisputed purpose the undisputed purpose of three c three is to limit the fourth casino to a rural area that purpose is served if and only if tucson is the sole metropolitan area in which in which the nation can build a casino if they can build in other metropolitan areas then you might as well put a big x through c three c a three c three they simply it does not serve any rule limitation at all unless you read the gaming chart in three c five to read it as every contacting tribe and the state read it which is a to impose a geographic limitation the phoenix area tribes could build casinos in phoenix the tucson area tribes could build casinos in tucson the footnote count for the fact that the section entitled location of gaming saudi doesn't contain what you're saying well your honor in section three j are you talking about the location there was section three j is not the only limitation on location and you don't have to look any further than three c three in the compact that is clearly limiting locations of facilities and so the argument that everything about location has to be in three j just doesn't make any sense as to how the party set up this compact location is  gaming facility is sort of expected to be discussing the location but your honor there's no dispute the three j does discuss location but three c three is an explicit isn't explicit provision on location it discusses the location of the nation facilities if the nation operates so many casinos then it talks about where they may be present that provision would not preclude would not limit the nation to a rural casino under the nation's current reading of the the gaming compact and that would flout the undisputed purpose it would make a mockery of the compact one of the sticking points in the negotiations were no additional you know as in phoenix and that the nation if they were to build for casinos one of them has to be a rural casino under their reading tomorrow the nation could move that rural facility in why smack dab in the phoenix or smack dab into tucson and not not violate the contract that is not what the parties intended every indication there's a good way to put it and you can see that from three c three c is obviously setting up restrictions on the number and locations of facilities that does that by its terms and three c three and again there is no coherent account  of the of the gaming compact if you don't give ways to that geographical market by market limitation this there was undisputed evidence the tribes jointly and the nation itself numerous times put out statements that one of the governing principles of this compact would be that there would be no additional casinos in the phoenix market the voters of arizona approve the contract on that basis the state of arizona negotiated it the other not twenty compact in tribes of signed this compact based upon that understanding under arizona law and the other side will say but there is no explicit limitation on phoenix location they've said that repeatedly under arizona law you don't need that explicit limitation you don't even need facial ambiguity under the johnson case the arizona court of appeals said in that particular case and that was the least ace and it was whether premises the term premises which was defined in that contract as three suites within a building does that include a parking spot well the contract itself defined premises as the receipt suites within a building did not make any mention of a parking spot at all could not be restatement section two zero one it says you look at the party's understandings and if you can give if it's not inconsistent if you can find indications in the agreement that gives effect to the party's understanding then we will do that and they said yeah the parties intended include a parking spot and so we're going to do that same thing here every indication is that the parties here intended to limit the casinos in phoenix and have this market specific market limitation imposed in the  part of the land settlement claim with you section twenty seven nineteen because the thirty million dollars which was given by the government to the tribe could have been used for other purposes and therefore the purchase of land parcel number two was not and the sensual part of a settlement for a land claim your honor i don't think i would push our argument that far i think our argument is a little because i didn't see that in your right wing brief and i saw it in a footnote at page eleven of your reply brief but not very well developed or you're not making that i wouldn't stand on that argument yes and i'd like to reserve time for that for the state morning your honor may it please the court robert altman for the state of arizona to be clear if the compact already reflects the geographic limitation that the state bargained for then there will be no need for the court to address whether  provisions include the state's claims that the nation obtained the compact through fraud or misrepresentation however if the court does construe the scope of  we simply ask that this court take the same approach that the tenth circuit took in the mescalero case and declined to create an unwarranted exception for causes of action that go to formation or validity once a compact goes into effect under subsection d three b a state can seek injunctive relief based on any cause of action the challenges the lawfulness of class three gaming activity  work if both parties are negotiating in good faith so the abrogation provision has to be at least broad enough to prohibit not only the state but the tribes from making empty promises during good faith negotiations only to invoke immunity to repudiate them after the compact goes into effect no other construction will achieve the statutes purpose of fairly balancing the many competitive economic interests at stake with india and because you know gaming your honor i'd like to reserve the rest of our time for a bottle if you have you made us all counsel thank you will hear from the nation compact expressly permits the nation to game anywhere that is permitted by a group including on lands acquired in settlement of the land claims the district court a very care in a very careful set of rulings consider all of the plaintiffs purported extrinsic evidence in the light most favorable to them we for the record vigorously dispute their assertions of fact but nonetheless as judge campbell recognize none of that can change the express authority in the compact to game anywhere on the nation's indian lands into a prohibition on gaming in phoenix the court correctly held quote that no reasonable reading of the compact could lead a person to conclude that it prohibited new casinos in the phoenix area now the plaintiff's argument is essential argument that this additional term should be applied as an additional consistent term but the compact in this case includes the most uncompromising integration clause that provides in paragraph in section twenty five quote the compact contains the entire agreement of the parties and no other statement agreement or promise shall be valid or forty nine location of the facility i'm sorry what was your what was the record cite seven forty nine the j one yes so point out to me where it says the tribe can place the casino on any land whatsoever because i thought that's what you said oh no no no and any indian land indian lands is a defined term and paragraph  was a disc that the state of arizona wanted i'm leaving aside the expressed language of c three for a minute the state of arizona basically offered the tribes the opportunity to have more machines in exchange for fewer facilities and a number of tribes agreed to do that including the tribes that mr shot was referring to the nation refused to do it because it is not purely a metropolitan tribe nor is it a tucson tribe rather than a phoenix tribe it has reservation lands in a vast and a number of parts of the state much of which is rural and it explained there's no dispute about this that it had a rural casino in y arizona that essentially made no money but provided employment and they wouldn't reduce the number of pacino's to three because if they kept a rural casino they wouldn't be able to use the number of machines that the state was allowing the larger tribes and the nation is the second largest tribe in the state so as to location mr shah is quite correct that in general what the compact says is the navy the the nation may game on any of its indian lands including lands covered by section twenty seven nineteen and however if it operates  casino that casino must be located at least i think it's twenty five miles or fifty miles from its existing casinos in tucson is that because you in phoenix that it was and noted that because the facility in why which was i guess you could say the third they have three facilities now one this rule facility and why is your position that the fourth casino is a lease fifty miles from tucson phoenix yes ok i got you i was saying that you can't imply any additional term into the contract to both we have a and integration clause which says this is the whole agreement and no other statement of agreement or promise shall be valid or binding and in any event the additional clause that they want to imply which i must say to this day they have not been able to articulate it something like no casino in the phoenix area that is not consistent with the existing contract it contradicts the expressed language of the compact that says that the nation can game anywhere on its indian lands with the caviar at that if there is if there are four casinos one of them has to be at least fifty miles from tucson and in any event as judge campbell found it's a five common sense to think that the parties would have quote naturally omitted a ban on gaming in phoenix the plaintiffs told judge campbell that the state consider this issue to be of nuclear importance and the notion that and that a provision so important would not be included now but instead the state would agree to an integration clause that says this is the whole agreement and no other statements or promises have any effect is i think incoherent now the other side argues that it was always understood and the nation always represented that it would not open a casino in phoenix there is nothing in the record that demonstrates that the nation ever made such a representation in fact what the there is no also no question in the record that mr dahl strom who was the lawyer for the healer river band expressly advocated the inclusion in the compact of a ban on gaming on after acquired lands and the states separately were for wanted that both in the one nine hundred ninety three compact and in the two thousand and two compact and in fact as our brief points out mr dahl strums point for this we want to include a ban on gaming on after acquired lands because he said the cierra cow apache have their historic lands in the phoenix area and unless we do that they may get recognition and could open a casino all of the other tribes rejected the proposal to include an after acquired lands ban when it was proposed by the state when it was part of legislation introduced by the state and when the river's lawyer proposed it including as we point out i think the citations are like him or what page of our brief including ironically by salt river who spoke up and said we will never agree to that they are now a plaintiff in this case and so the minute you question about sovereign immunity you say there's no no evidence that they promised anything other than what's in the contract they take a take that to be the case let me ask  hypothetical suppose they went into the parking lot and said i'll tell you what we would ever see in the contract we promise you that we won't build a casino in phoenix could you be could dr be sued for the it could not be sued for that was the waiver of sovereign immunity under it grows i mean that the nation is sovereign and i think it's important judge silverman to recognize that it is a commonplace feature as the supreme court recognized i think in by the bay mills decision it is commonplace in these compacts for the parties to waive sovereign immunity with respect to any dispute with respect to gaming or the compact not only was that not done in this case but section sixteen of the dispute that the tribe did anything to play fast one but the way that the say protects itself just as the way the nation protects itself when the state pulls a fast one is to negotiate as expressly permits a dispute resolution mechanism that includes a more expansive waiver of sovereign immunity and that was considered that was rejected that is paragraph of that the waiver of sovereign immunity is limited under twenty seven ten and there was an express rejection by both sides apparently of any waiver of their sovereign rights in paragraph sixteen so the answer is if you negotiate a compact and the compact doesn't include that says the you can game anywhere on your indian lands including equal footing lands and this is the whole agreement and no other promises or statements or agreements have any effect whatsoever and there is no waiver of sovereign immunity either by the state or the nation in this case that's correct now you know the united states you know that the nation has no sovereign immunity against the united states and the secretary but the state bargained for a very very fulsome retention of sovereign immunity on both sides in this agreement and as i said it's reflected here and the notion that even assuming their asserted facts were true campbell did take them as true the notion that you could say ok well we've had three years of  ons including years of negotiations about a ban on gaming on after acquired lands which was rejected every single time including and again here the record is undisputed we authorities on page five of our brief the nation expressly on two different occasions in two different years bringing the landes replacement act to the attention of the state so that the state understood what the after acquired lands consequences could be in this case that i reject the notion that that the nation did anything untoward but as i recognise that as judge campbell did you have to take the facts in a light most favorable to the plaintiffs but you do have to examine those facts as judge campbell did based on what their evidence really was not what the overblown characterization of that evidence is in their briefs so you know in sure we think that this is a case in which you know we take issue with judge we took issue with judge campbell about whether federal interpretive principles or the state of arizona interpretive principles need to apply but we think that he got it absolutely right when even applying arizona's more relaxed version of the parole evidence rule he concluded that there is no reasonable reading of the compact that could lead a person to conclude that it prohibits new casinos in the phoenix area and now i have diverted to this but i didn't really explain it the question is you know what is this additional term that they want to put in here we propounded in iraq the tories when they filed their complaint that basically said what do you think this geographic limitation is and what they said is well there was an agreement not to open a new facility within i believe it was forty miles of the exteriors boundary of phoenix when we pointed out in briefing that that includes not only the cme lucy district the flooded area but includes portions of the nation's main reservation it includes hit the town of fuel bend it includes florence the nation has property in as a reservation land in pima county maricopa county they said ok well maybe it doesn't mean that and ended up with some six or seven paragraph articulation that essentially said we don't have to define that term because this property just exterior of glendale certainly is within that area but they are asking the court to take the extraordinary step of inserting a term that nowhere appears in this compact and is inconsistent with the compact on a theory that everybody agreed that it would be the case and that it was quote natural to omit that nuclear term in the compact and the very fact that during the year and a half i think or almost two years of litigation in front of judge campbell in this case they never have been able to articulate what that suppose it express geographic i think speaks volumes about their argument that this court should reverse judge campbell and hold that there is such a term however it is defined unless the court has further questions either on sovereign immunity or oh i think i was clear about this but my co counsel wants me to reiterate that this case is not about and i believe mr shaw greed this case is not about the facility that's the subject of the three c three provision because there is a casino in why and the nation only has three casinos so the question is what does it do with what limitations exist as to the location of sure your honor i will start there upon your suggestion your honor the fact that there is an integration clause under arizona law does not mean that you look to the parties clear understanding of what the terms of the contract mean the two critical cases under arizona law which both the parties spend ample time briefing johnson and taylor both had integration clauses in those contracts and what the arizona court says is yes an integration clause means you don't contradict the terms of the contract or read separate agreements into the contract we are not contrary to mr waxman cares characterization we are not trying to seek to add or contradict terms in the contract we want to construe the contract that exists to be consistent with the party's undisputed understanding's during this evolution so the fact that there is integration clause does not preclude the court from looking at that overwhelming evidence of understanding of the terms of the contract nor does it preclude the court from applying restatement section two zero one two which in fact restatement to all one was also an issue in johnson and what the arizona courts have said is look we are different we are different than the normal federal rule or the contract rule that most of you most of us learned in contract law you don't simply look for ambiguity in the contract and then go to the extrinsic evidence to see if that supports it instead what you do is you look to see can you read the contract in a way that gives thirty nine c three it is the one of more than fifty miles from your honor the that is the upshot of their reasoning even though that force because the were not saying the three c three is violated in this case but the upshot of their reasoning which they make clear in their brief and which met mr waxman clear today is they can close all rural facilities and locate them in phoenix because phoenix is more than fifty miles per tucson there is overwhelming and this evidence is undisputed  correct so so i don't want to put words in mr x amount by understanding is from their position that they're rural why facility which is there which is one of their four facilities satisfied three three c three and we don't disagree with that the rural why facility satisfies three c three our point about c three three c three is this under their reading there is no geographic limitation that limits them to the tucson metropolitan market that is under their view they can open an urban casino in any city in phoenix so if you read three c three by its terms that means they could open all four casinos in phoenix now that clearly conflicts with the understanding with three c three was supposed to do with three c three was supposed to do was to make sure that at least one of their casinos was in a rural area unless you read the gaming charted three c five to limit them to tucson casinos in terms of their urban casinos then they would no longer be limited to a rule casino representations that there would be no additional casinos your honor there is a mountain of evidence in the record this is on summary judgment you can look no further than e r four seventy seven this is a document put out by the tribes jointly and in fact says that the nation was a major funder of this document it says flat there shall be no additional casinos in phoenix under this compact it's quoted it's clear e r to sixty two sixty two sixty three this is testimony from the executive director of the organization created by the tribes including the nation to do this he points to two specific members of the nation that explicitly said in meetings with legislators that there will be no additional casinos in phoenix under the impact you can look at other sites in our brief it's not even a close call overwhelming evidence shows that that's the view they adopted they knew that the state had that view they knew that the other twenty contacting tribes had that view that was the main sticking point over three years of negotiations how do you think about the fact that the critical point is not in the country ok so your honor there is direct testimony as to what from the state's lead negotiator point blank a deposition he was asked that very question and it's a fair question why didn't you put it in explicit terms and obviously that would have been the better practice but his response and this is the e r two zero zero nine two zero tenet cited on our brief is this he said look the party sat down in good faith these are sovereign tribes this is the state for three years the cornerstone of the scope of gaming chart was that the phoenix area tribes could build in phoenix the tucson area tribes could build in tucson that's reflected in every version of the gaming chart from four fifty five to four seventy two in the excerpts of record and he said that was the cornerstone it simply was understood by everyone to impose that limitation and i know it's hard coming to this record cold when you read the contract and see well no you don't you don't understand that but for the folks who lived through this negotiation and it's explicit testimony on summary judgment the only reason they didn't put it in there is because they said everyone there was no doubt everyone share that understanding it was as if the sky was blue that was the cornerstone from which they negotiated and none of the provisions of the compact quite frankly make sense thank you counsel your time has expired thank you you're on the case just argued will be submitted for decision in the court will take a ten minute recess