1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 Plaintiff also moves for a modification of the Pretrial

Scheduling Order (“PSO”) for the court to hear its motion for

summary judgment on its first four claims for relief. However,

for the reasons set forth herein, plaintiff’s motion to modify

the PSO is DENIED as moot.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

CACHIL DEHE BAND OF WINTUN

INDIANS OF THE COLUSA INDIAN

COMMUNITY, a federally

recognized Indian Tribe, 

Plaintiff,

NO. CIV. S-04-2265 FCD KJM

v.

MEMORANDUM AND ORDER

STATE OF CALIFORNIA;

CALIFORNIA GAMBLING CONTROL

COMMISSION, an agency of the

State of California; and

ARNOLD SCHWARZENEGGER,

Governor of the State of

California, 

Defendants.

__________________________/

----oo0oo----

This matter is before the court on defendants’ motion

for judgment on the pleadings.1 Plaintiff opposes defendants’

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 1 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff also submitted three declarations in support of

its opposition to defendants’ Rule 12(c) motion. Because this

matter is before the court on a motion for judgment on the

pleadings, consideration of material outside the pleadings,

except for those properly considered pursuant to judicial notice,

is not appropriate. See Hal Roach Studios, Inc. v. Richard

Feiner & Co., Inc., 896 F.2d 1549, 1550 (9th Cir. 1990). The

court will not consider this motion as a motion for summary

judgment. 

2 The court takes judicial notice of the Compact. Fed.

R. Civ. Proc. 201; Cal. Gov’t Code § 12012.25 (ratifying the 1999

Compacts). 

2

motion. For the reason’s set forth below, defendants’ motion is

GRANTED.

BACKGROUND

Plaintiff, Cachil Dehe Band of Wintun Indians of the Colusa

Indian Community (the “Tribe”), is an American Indian Tribe with

a governing body duly recognized by the Secretary of the

Interior. (Pl.s’ Compl., filed Oct. 25, 2004, ¶ 2). The Tribe

entered into a Class III Gaming Compact (the “Compact”) with the

State of California (the “State”) in 1999. (Id. ¶ 24). At the

same time, 56 other tribes (the “Compact Tribes”) also executed

virtually identical compacts with the State. (Id.; see Artichoke

Joe’s California Grand Casino v. Norton, 353 F.3d 712, 717-18

(9th Cir. 2003); Artichoke Joe’s California Grand Casino, 216 F.

Supp. 2d 1084, 1094 (E.D. Cal. 2002)). 

The Compact sets forth various provisions relating to the

operation of Class III Gaming Devices. The Compact sets the

limit of the amount of Gaming Devices operated by each individual

tribe at 2,000. (Compl. ¶ 14; Tribal-State Compact between the

State of California and the Colusa Indian Community (“Compact”),

attached as Ex. 1 to Defs.’ Request for Judicial Notice, §

4.3.2.2).2 The Compact also sets a statewide maximum on the

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 2 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3 The statewide cap is calculated pursuant to a formula

provided in § 4.3.2.2 of the Compact. 

3

number of Gaming Devices that all Compact Tribes may license in

the aggregate.3 (Id.) Gaming Device licenses are distributed

among all the 1999 Compact Tribes pursuant to the license draw

process provided by the Compact. (Compact § 4.3.2.2). Tribes

are awarded licenses based upon the tribe’s placement in one of

five priority tiers. (Id.) Placement in a particular tier is

based upon the number of Gaming Devices operated by the tribe. 

(Id.) On or about March 31, 2001, then-Governor Gray Davis

issued Executive Order D-31-01 in which he declared that the

California Gambling Control Commission (“CGCC”) shall control

gaming device licensing. (Compl. ¶ 18). Prior to that date, a

tribal draw administrator conducted gaming device license draws. 

(Id. ¶ 16). In June 2002, the CGCC declared that the licenses

issued in those draws were invalid and that they would be

replaced by licenses issued by the CGCC. (Id. ¶ 21). 

The Compact also provides for revenue sharing with nongaming tribes. The Compact sets forth that a tribe may acquire

and maintain additional Gaming Device licenses by paying annual

fees in accordance with a fee schedule and by paying, for each

Gaming Device license, “a non-refundable one-time pre-payment

fee” in the amount of $1,250 for each Gaming Device being

licensed. (Id. ¶ 14). The monies are to be received, deposited,

and distributed from the Revenue Sharing Trust Fund (“RSTF”), a

fund created by the Legislature and administered by the CGCC as

trustee. (Compact § 4.3.2). For purposes of revenue sharing,

the Compact defines a Compact Tribe as a tribe having a compact

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 3 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

with the State authorizing Class III Gaming; Non-Compact Tribes

are defined as federally-recognized tribes that are operating

fewer than 350 Gaming Devices, whether or not such a tribe has a

Compact with the State. (Compl. ¶ 10; Compact § 4.3.2(a)(1)). 

The revenue sharing provisions of the Compact provide that NonCompact Tribes shall receive $1.1 million per year, unless there

are insufficient funds, in which case, the available monies in

the RSTF shall be distributed in equal shares to the Non-Compact

Tribes (the “RSTF-eligible Tribes”). (Compact § 4.3.2.1). The

CGCC interpreted that the non-refundable, one-time pre-payment

fee could be used as a credit toward annual license fees and that

no annual fees would be required for the first 350 licenses

issued to a tribe. (Compl. ¶ 21).

Section 9 of the Compact also establishes a procedure to be

followed in the event of a dispute relating to the Compact. The

parties are to meet and confer in good faith not later than 10

days after one party gives the other party notice of the

existence of a dispute. (Id. ¶ 33). If the dispute is not

resolved within 30 days after the first meeting, either party may

seek to have the dispute resolved by an arbitrator or a federal

district court, or if the district court declines jurisdiction,

any State court of competent jurisdiction. (Id.)

In 2002, the CGCC notified plaintiff and other Compact

Tribes that the CGCC would conduct a round of Gaming Device

license draws in September 2002. (Id. ¶ 22). Prior to the draw,

and as of September 1, 1999, the Tribe was operating 523 Gaming

Devices. (Id. ¶ 28). The Tribe notified the CGCC of its intent

to draw 250 licenses and tendered a check in the amount of

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 4 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

$312,500 as the non-refundable one-time pre-payment fee. (Id. ¶

22). The Tribe was placed in the third priority tier and

received 250 licenses. (Id. ¶ 28). In November 2003, the CGCC

notified the Tribe that another round of draws, in which 750

licenses would be available to be drawn, would be conducted on

December 19, 2003. (Id. ¶ 27). Plaintiff requested 377 licenses

and submitted a pre-payment of $471,250. (Id. ¶ 32). The Tribe

was assigned to the fourth priority tier and received no

licenses. (Id. ¶¶ 31-32). The CGCC refunded the pre-payment of

$471,250 in full. (Id. ¶ 32). On October 21, 2004, the CGCC

conducted another draw, in which the Tribe, placed in the fourth

priority tier, pre-paid fees for 341 licenses and received only

73. (Id. ¶ 31). The Tribe anticipates receiving a refund of the

pre-payment on the licenses that it did not receive in the draw. 

(Id. ¶ 32).

On December 30, 2003, the Tribe wrote to Governor

Schwarzenegger to request that the State meet and confer with the

Tribe about (1) the assignment of the Tribe to the fourth

priority tier in the December 19, 2003 round of draws; (2) the

CGCC’s determination of the number of licenses available for

issuance; (3) the CGCC’s role and authority in the draw process;

and (4) the CGCC’s retention of the $312,500 tendered by the

Tribe in connection with its draw of 250 Gaming Device licenses

in September 2002. (Id. ¶ 34). A meeting took place on February

3, 2004. (Id. ¶ 35). No agreement was reached on any of the

issues the Tribe raised. (Id. ¶ 36). By letter dated February

23, 2004, the State formally rejected each of the Tribe’s

positions. (Id.)

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 5 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 Plaintiff also asserts that the State is violating its

obligations under the Indian Gaming Regulatory Act of 1988

(“IGRA”) by failing to negotiate in good faith. (Compl. ¶ 58).

6

On October 25, 2004, plaintiff filed a complaint in this

court, alleging violations of the Compact. Plaintiff asserts

that defendants violated the Compact by: (1) excluding the Tribe

from participating in the third priority tier in the December 19,

2003 round of draws; (2) unilaterally determining the number of

Gaming Device licenses authorized by § 4.3.2.2(a)(1) of the

Compact; (3) failing to refund money paid pursuant to the nonrefundable one-time pre-payment fee set forth in § 4.3.2.2(e) of

the Compact; (4) CGCC conducting rounds of draws of Gaming Device

licenses without authority; and (5) failing to negotiate in good

faith.4 On March 28, 2006, defendants filed this motion for

judgment on the pleadings, seeking to dismiss plaintiff’s first

second, third, and fourth claims for relief for failure to join

necessary and indispensable parties and plaintiff’s fifth claim

for relief for failure to exhaust non-judicial remedies. 

STANDARD

Rule 12(c) of the Federal Rules of Civil Procedure provides

in relevant part:

After the pleadings are closed but within such time as

not to delay the trial, any party may move for judgment

on the pleadings. 

In considering a motion for judgment on the pleadings, the

standard applied by the court is virtually identical to the

standard for dismissal for failure to state a claim upon which

relief can be granted pursuant to Rule 12(b)(6). Fajardo v. City

of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999).

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 6 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

A claim will not be dismissed “unless it appears beyond

doubt that plaintiff can prove no set of facts in support of his

[or her] claim that would entitle him [or her] to relief.” 

Yamaguchi v. Dep’t of the Air Force, 109 F.3d 1475, 1480 (9th

Cir. 1997)(quoting Lewis v. Tel. Employees Credit Union, 87 F.3d

1537, 1545 (9th Cir. 1996)). “All allegations of material fact

are taken as true and construed in the light most favorable to

the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d

336, 337-38 (9th Cir. 1996). 

Given that the complaint is construed favorably to the

pleader, the court may not dismiss the claim unless it appears

beyond a doubt that the plaintiff can prove no set of facts in

support of the claim which would entitle him or her to relief. 

Conley v. Gibson, 355 U.S. 41, 45 (1957); NL Indus., Inc. v.

Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

Nevertheless, it is inappropriate to assume that plaintiff

“can prove facts which it has not alleged or that the defendants

have violated the . . . laws in ways that have not been alleged.” 

Associated Gen. Contractors of Cal., Inc. v. California State

Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the

court “need not assume the truth of legal conclusions cast in the

form of factual allegations.” United States ex rel. Chunie v.

Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).

In ruling upon a motion for judgment on the pleadings, the

court may consider only the complaint, any exhibits thereto, the

responsive pleading, and matters which may be judicially noticed

pursuant to Federal Rule of Evidence 201. See Mir v. Little Co.

Of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 7 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d

1035, 1042 (C.D. Cal. 1998).

ANALYSIS

I. Rule 19 Joinder 

Defendants assert that plaintiff’s first four claims should

be dismissed for failure to join necessary and indispensable

parties. Rule 19(a) provides for joinder of necessary and

indispensable parties. To determine if a party is necessary and

indispensable to a suit, the court must (1) determine whether the

absent party is a “necessary” party, and (2) if the absent party

is necessary, but joinder is not feasible, whether the party is

“indispensable.” Kescoli v. Babbit, 101 F.3d 1304, 1309 (9th

Cir. 1996). The moving party bears the burden of persuasion. 

See Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.

1990).

A. Necessary Party

To determine whether a party is necessary to an action, the

court must undertake another two-part analysis. Makah, 910 F.2d

at 558. Rule 19(a)(1) provides that a person is a necessary

party where “in the person’s absence complete relief cannot be

accorded among those already parties. Fed. R. Civ. Proc. 19(a). 

Rule 19(a)(2) provides that a person is also a necessary party

where 

the person claims an interest relating to the subject

of the action and is so situated that the disposition

of the action in the person’s absence may (i) as a

practical matter impair or impede the person’s ability

to protect that interest or (ii) leave any of the

persons already parties subject to a substantial risk

of incurring, double, multiple, or otherwise

inconsistent obligations by reason of the claimed

interest.

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 8 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 Specifically, plaintiff asks the court to declare that

CGCC has a ministerial duty immediately to issue 377 licenses and

to enjoin the State from declining immediately to issue 377

licenses.

9

Id. The interest referenced in Rule 19(a)(2) must be a legally

protectable interest in the suit, more than a financial stake and

more than speculation about a future event. Makah, 910 F.2d at

558. However, a fixed fund or a finite amount of resources which

a court is asked to allocate may create a protectable interest in

beneficiaries of the fund. Id. (citing Wichita & Affiliated

Tribes of Oklahoma v. Hodel, 788 F.2d 765, 774 (D.C. Cir. 1986). 

Interests arising from terms in bargained contracts are also

legally protectable. Am. Greyhound Racing, Inc. v. Hull, 305

F.3d 1015, 1023 (9th Cir. 2002). 

Defendants argue that all 1999 Compact Tribes and RSTFeligible Tribes, which have not been joined, are necessary

parties to the current suit. Defendants assert that these tribes

have a legally protectable interest in the litigation that will

be practically impaired by a favorable judgment to plaintiff and

that the disposition of this matter would subject the State to

inconsistent obligations.

At issue in plaintiff’s first and second claims for relief

is the validity of the State and CGCC’s interpretation of the

clauses set forth in § 4.3.2.2 of the Compact, addressing

participation in Gaming Device license draws and the authorized

number of Gaming Device licenses. As relief for its first and

second claims, plaintiff asks the court to grant various forms of

declaratory relief and to order the CGCC to issue 377 Gaming

Device licences to the Tribe.5 (Compl., Prayer for Relief at 17-

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 9 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

18). There is a statewide limit on the number of gaming licenses

that all Compact Tribes in the aggregate may receive. (Compl. ¶

14). As such, plaintiff requests the court allocate licenses

from a finite number of available licenses. An order to issue

any additional licenses to plaintiff would necessarily and

practically impair the rights of the other Compact Tribes who

would be deprived of those licenses or the opportunity to obtain

those licenses. Accordingly, all Compact Tribes are necessary

parties to plaintiff’s first and second claims for relief. See

Makah, 910 F.2d at 558-59.

Plaintiff’s third claim for relief involves the Tribe’s onetime pre-payment of $1,250 for each Gaming Device license that

the Tribe draws. Because the CGCC determined that this one-time

pre-payment is to be credited against the annual license fees due

on Gaming Device licenses, and because the Tribe does not owe any

annual license fees, plaintiff seeks a refund of the $403,750 it

has paid. The funds collected through the one-time pre-payment

is deposited in the RSTF. (Compl. ¶ 16). The Compact provides

that each Non-Compact Tribe shall receive distribution from the

RSTF, either in the amount of $1.1 million per year, or if there

are insufficient monies for this sum, any available monies in the

RSTF shall be distributed to Non-Compact Tribes in equal shares. 

(Compact § 4.3.2.1(a)). Any excess monies left in the fund after

distribution remain in the RSTF for disbursement in future years. 

Id. Therefore, an award of a refund to plaintiff will

practically impair the rights of Non-Compact, RSTF-eligible

Tribes because the return of any RSTF monies will lessen the

amount of money in the fund for reimbursement to those other

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 10 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

tribes. In other words, to the extent that there is insufficient

money to pay each non-Compact Tribe $1.1 million, an award to

plaintiff will lessen the amount of money distributed to each

other tribe. To the extent that there is sufficient money to pay

each Non-Compact tribe $1.1 million, an award to plaintiff

decreases the funds available for disbursement the following

year. Therefore, the interests of the Non-Compact, RSTF-eligible

Tribes will be practically impaired by the relief sought by

plaintiff. As such, the Non-Compact, RSTF-eligible Tribes are

necessary parties to plaintiff’s third claim for relief.

Plaintiff’s fourth claim for relief alleges that CGCC lacks

authority to conduct rounds of draws for Gaming Device licenses. 

If the court were to grant plaintiff’s requested relief and

declare that CGCC lacked authority to administer the Gaming

Device licence draws, the CGCC would be unable to conduct further

draws and all previously issued licenses would be invalidated. 

As a result, other Compact Tribes would not be able to draw any

available licenses in the future. Further, the licenses

distributed to other Compact Tribes in previous draws would be

meaningless. Thus, the interests of other Compact Tribes would

be practically impaired by the relief sought by plaintiff. See

Am. Greyhound, 305 F.3d at 1024 (holding that all tribes were

necessary parties to declaratory judgment that gaming operations

were unlawful because the judicial determination would affect the

tribes’ interest as a practical matter). Accordingly, all

Compact Tribes are necessary parties to plaintiff’s first and

second claims for relief.

/////

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 11 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

Further, the relief sought by plaintiff, if granted, would

leave defendants subject to a substantial risk of inconsistent

obligations. While plaintiff asserts that the Compact between

the Tribe and defendants is a bilateral contract, it is, in

reality, one of many virtually identical Compacts. See Artichoke

Joe’s, 353 F.3d at 717. To the extent that plaintiff asserts

that it seeks the court to rule only on the interpretation of its

“bilateral agreement” with defendants, any interpretation could

result in defendants requirement to perform in one manner under

plaintiff’s contract and in a directly incongruous manner under

the other virtually identical contracts. For example, if

plaintiff prevailed on its fourth claim of relief, CGCC would not

have authority to administer Gaming Device license draws under

its contract, but would have authority to administer Gaming

Device license draws under the other Compacts. Accordingly, all

1999 Compact Tribes are necessary parties to plaintiff’s first

four claims for relief. 

B. Indispensable Party

Rule 19(b) sets forth the standard to apply when joinder of

necessary parties is not feasible. In this case, joinder of the

1999 Compact Tribes and RSTF-eligible Tribes is not feasible

because each of these tribes is immune from suit under the common

law doctrine of tribal sovereign immunity. Kiowa Tribe of

Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754 (1998)

(“As a matter of federal law, an Indian tribe is subject to suit

only where Congress has authorized the suit or the tribe has

waived its immunity.”).

/////

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 12 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

Rule 19(b) provides that if a necessary party cannot be

joined, “the court shall determine whether in equity and good

conscience the action should proceed among the parties before it,

or should be dismissed, the absent person being thus regarded as

indispensable.” Fed. R. Civ. Proc. 19(b). In making this

determination, the court undertakes a four-part analysis, looking

at (1) the prejudice to any party resulting from a judgment; (2)

whether the court can shape relief to lessen prejudice to absent

parties; (3) if an adequate remedy, even if not complete, can be

awarded without the absent party; and (4) whether an alternative

forum is available to the plaintiff. Id.; Makah, 910 F.2d at

560.

Defendants assert that the absent tribes will be prejudiced

by plaintiff’s requested relief. “Not surprisingly, the first

factor of prejudice, insofar as it focuses on the absent party,

largely duplicates the consideration that made a party necessary

under Rule 19(a).” Am. Greyhound, 305 F.3d at 1024-25 (citations

omitted). To the extent that plaintiff seeks the award of

additional gaming device licenses, that award would come at the

expense of the absent tribes because of the finite nature of the

gaming devices that all tribes may license. To the extent that

plaintiff seeks a refund of its pre-payment, the relief would

prejudice the RSTF-eligible Tribes because it would lessen the

amount of money in the fund to be distributed on an equal basis. 

Finally, to the extent plaintiff asks the court to declare that

CGCC does not have authority to conduct the gaming license draws,

the relief would prejudice those Compact Tribes who would seek

licenses in a future draw as well as Compact Tribes who were

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 13 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

previously awarded licenses in the draw system. Plaintiff cannot

adequately represent the absent tribes because of the potential

intertribal conflicts over the rights to the limited number of

gaming devices and licenses. See Makah, 910 F.2d at 560. Thus,

the relief sought by plaintiff would prejudice the absent tribes.

Defendants argue that the prejudice cannot be lessened or

avoided through shaping the relief. Plaintiff argues that the

court lessen or avoid the prejudice through ordering the issuance

of an additional 24,800 licenses, such that the absent tribes

would also receive all licenses previously requested in the draw

process. This does not take into account the interests of

Compact Tribes that may be opposed to the state’s award of more

gaming device licenses, specifically those in close geographical

proximity to plaintiff, whose market share of class III gaming

would be affected by the inundation of licenses. Therefore,

because any relief would be detrimental to either plaintiff or

the absent tribes, the court has no way to shape the relief to

lessen or avoid prejudice. See Makah, 910 F.2d at 560. 

Similarly, the only “adequate” remedy would be at the cost of the

absent parties. See id. 

Finally, defendants argue that plaintiff would have an

alternative forum in which to seek relief. Defendants assert

that the Compact provides that the terms and conditions of the

contract may be amended by the mutual and written agreement of

the parties, (Compact § 12.1), and that plaintiff is free to

request re-negotiation of its 1999 Compact with the State. 

However, plaintiff is left without a judicial forum in which to

bring suit against defendants. The Ninth Circuit has held that

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 14 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 Plaintiff’s argument that the public rights exception

applies is somewhat disingenuous given that the majority of its

opposition argues that all 1999 Compact Tribes or RSTF-eligible

Tribes are not necessary parties to this action because plaintiff

seeks to enforce its own rights under a bilateral contract. 

15

this factor is not one to be dispensed with lightly. Manybeads

v. United States, 209 F.3d 1164, 1166 (9th Cir. 2000). However,

the Ninth Circuit has also recognized the importance of tribal

sovereign immunity, which may leave a party with no forum for its

claim. See Wilbur v. Locke, 423 F.3d 1101, 1115 (9th Cir. 2005)

(finding the absent Indian tribe indispensable despite the lack

of an alternative forum); Manybeads, 209 F.3d at 1166 (same);

Makah, 910 F. 2dd at 560 (same). Therefore, a balance of the

four factor analysis supports the determination that the Compact

Tribes and the RSTF-eligible Tribes are indispensable parties

pursuant to Rule 19(b).

C. Public Rights Exception

Plaintiff contends that this case falls within the “public

rights” exception to joinder rules.6 “Under this exception, even

if the [t]ribes are necessary parties, they are not deemed

indispensable and, consequently, dismissal is not warranted.” 

Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996); Makah,

910 F.2d at 559 n.6. Generally, to qualify for the public rights

exception, “the litigation must transcend the private interests

of the litigants and seek to vindicate a public right.” Id.

(citing Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 11491, 1500

(D.C. Cir. 1995). However, “although the litigation may

adversely affect the absent parties’ interests, the litigation

must not ‘destroy the legal entitlements of the absent parties.’” 

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 15 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7 Although plaintiff relies heavily on Makah, in Makah

the Ninth Circuit found that the reallocation of finite

resources, in that case quotas on fishing rights, did not qualify

for the public rights exception. 

16

Id. (quoting Connor v. Burford, 848 F.2d 1441, 1459 (9th Cir.

1988). 

In its first and second claims for relief, plaintiff seeks

the reallocation of Gaming Device licenses such that the Tribe

will be awarded 377 additional licenses.7 In its first claim,

plaintiff seeks a determination that it should have been placed

in the third priority tier instead of the fourth priority tier. 

This claim is a private one, focused on the merits of plaintiff’s

dispute regarding its placement in a specific priority tier. In

its second claim, plaintiff seeks a determination that the

statewide cap determined by the State is void. This claim is

also a private one, seeking the court to determine that a larger

total of Gaming Device licences is allowed, such that plaintiff

may be awarded the licenses it seeks. Finally, plaintiff’s third

claim of relief seeks a refund of moneys paid into the RSTF. 

This claims seeks adjudication of plaintiff’s right to specific

monetary relief, not a determination of a public right. 

Therefore, plaintiff’s first, second, and third claims for relief

do not seek to vindicate a public right, but rather to advance

plaintiff’s private interests in receiving more Gaming Devices

and a refund of its pre-payment for licenses previously received.

Plaintiff’s fourth claim of relief alleges that the CGCC is

not authorized to administer the Gaming Device license draws. 

This claim may seek to vindicate a public right in ensuring that

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 16 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8 However, the court remains skeptical, given the tenor

of plaintiff’s first three claims for relief, whether plaintiff’s

challenge to CGCC’s authority is merely a pretext for vindicating

its private grievance that it was not awarded the requested

licenses through CGCC’s draw process. 

17

a lawful procedure is followed in the future.8 As such, the

claim may be closer akin to the vindication of a public right

approved of in Makah, ensuring an agency’s future compliance with

statutory procedures, than plaintiff’s other challenged claims. 

Makah, 910 F.2d at 559. However, if plaintiff prevailed, the

relief would deprive absent parties of their legal entitlements

to the licenses awarded pursuant to an invalid process. See

Kescoli, 101 F.3d at 1312. Because the process by which the

licenses were procured was invalid, the licenses could be

rendered meaningless. 

In view of the essentially private nature of the present

litigation and the significant threat to the Compact Tribes’

interests, the application of the public rights exception is not

appropriate in this case. See id. Defendants’ motion for

judgment on the pleadings regarding plaintiff’s first, second,

third, and fourth claims for relief is GRANTED for failure to

join necessary and indispensable parties. 

II. Failure to Exhaust Non-Judicial Remedies

Defendants contend that the Tribe’s fifth claim for relief

is jurisdictionally deficient because the Tribe has not satisfied

two preconditions to its right to sue the State. First,

defendants assert that the Tribe has not exhausted the meet and

confer provision set forth in § 9.1 of the Compact. Second,

defendants contend that the Tribe has not given the State notice

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 17 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9 Plaintiff presented some related facts through a

declaration submitted with plaintiff’s opposition. As stated

previously, the court will not consider documents outside of the

pleadings, except those judicially noticed, on defendants’ Rule

12(c) motion.

18

and opportunity to cure any alleged breach as required by §

11.2.1 of the Compact.

Plaintiff’s fifth claim for relief alleges that defendant

failed to negotiate in good faith after the state requested

renegotiation of §§ 4.3.1-4.3.2 of the Compact. (Compl. ¶ 60). 

Section 9.1 of the Compact provides that “the parties

establishe[d] a threshold requirement that disputes between the

Tribe and the State first be subjected to a process of meeting

and conferring in good faith.” (Compact § 9.1). Plaintiff’s

complaint does not allege that the Tribe met and conferred with

the State in regards to its claim of failure to negotiate in good

faith. In its opposition, plaintiff admits that it did not meet

and confer, but argues that it did not exhaust the § 9.1 dispute

resolution process because exhaustion would be futile. However,

plaintiff did not allege in its complaint that the dispute

resolution process would be futile, nor did it allege facts that

would support this argument.9 Further, plaintiff asserts that

the Tribe has requested that the State meet and confer and that a

meeting was set for April 27, 2006. 

Because plaintiff failed to exhaust the meet and confer

requirement set forth in § 9.1 of the Compact prior to filing

suit in this court and because plaintiff has not sufficiently

alleged that such exhaustion is futile, defendant’s motion for

judgement on the pleadings regarding plaintiff’s fifth claim for

relief is GRANTED. 

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 18 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10 The Pretrial Scheduling Order, filed May 20, 2005,

provides that “No further . . . amendments to pleadings is

permitted without leave of court, good cause having been shown.”

19

In its opposition, plaintiff requests that the court allow

plaintiff to supplement its Complaint to allege exhaustion of the

meet and confer process under § 9.1 of the Compact. However,

plaintiff has not filed a motion to amend the Pretrial Scheduling

Order pursuant to Rule 16,10 nor has plaintiff filed a motion to

amend or supplement the pleadings pursuant to Rule 15. Further,

plaintiff has presented no evidence that the meet and confer

process has been exhausted. Rather, defendants assert that the

meet and confer process will not be exhausted until May 27, 2006. 

As such, the court does not give plaintiff leave to amend or

supplement its complaint. 

CONCLUSION

For the reasons stated above, defendants’ motion for

judgment on the pleadings is GRANTED. Plaintiff’s first, second,

third, and fourth claims for relief are dismissed for failure to

join necessary and indispensable parties. Plaintiff’s fifth

claim for relief is dismissed for failure to exhaust non-judicial

remedies. The Clerk of the Court is directed to close this file.

IT IS SO ORDERED.

DATED: May 16, 2006.

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, JR.

United States District Judge

Case 2:04-cv-02265-FCD-KJN Document 25 Filed 05/16/06 Page 19 of 19