## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 31 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. SEMINOLE NATION OF OKLAHOMA, a Federally Recognized Indian Tribe,

Defendant-Appellee. No. 01-7108

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 01-CV-35-X)
M. Alice Thurston, Department of Justice, Washingto n, D.C., (David C. Shilton, Department of Justice, Washington, D.C.; Thomas L. Sansonetti, Assistant Attorney General, Washington, D.C.; Sheldon J. Sper ling, United States Attorney, Muskogee, Oklahoma; Linda A. Epperley, Assistant Un ited States Attorney, Muskogee, Oklahoma; Kevin K. Washburn, William F. G rant, and Sandra J. Ashton, Washington, D.C., with her on the briefs), for Plaintiff-Appellant. Gary S. Pitchlynn, (Patrick A. Morse, with him on the brief), Pitchlynn & Morse, P.A., Norman, Oklahoma, for Defendant-Appellee.

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.1 Because the district court reached the merits of the government’s

complaint in dismissing the action, any discussion by the district court of the standard for reviewing a motion for preliminary inj unction was irrelevant to the disposition of the case. 2 -2- MURPHY , Circuit Judge.

I. INTRODUCTION Plaintiff, the United States of America, filed this action in federal district court to enforce temporary closure orders issued to Defendant, Seminole Nation of Oklahoma (the “Nation”), by the Chairman of the National Indian Gaming Commission (“NIGC”). Although the government movedfor preliminary injunction, the district court notified the parties by order that the hearing on the government’s motion would be combined with a trial on the merits of the government’s suit. The district court dismissed th e government’s suit reasoning that the NIGC Chairman exceeded his authority in or dering the closure of the Nation’s gaming facilities rather than just the particular games at issue. The government appeals the district court’s dismissal o f the suit. 1 This court has jurisdiction under 28 U.S.C. § 1291 and vacates the district court order for the reasons stated below. Further, the Nation’s motionto dismiss this appeal for mootness is denied

.3 -3- II. BACKGROUND In 1988, Congress enacted the Indian Gaming Regulat ory Act (“IGRA”) which provided a comprehensive system to regulate g ambling activities on Indian lands. See 25 U.S.C. §§ 2701-2721. Under IGRA, Indian gaming is divided into three classes: Class I games (social games solely f or prizes of minimal value or traditional forms of Indian gaming); Class II games (bingo, including pull-tabs, lotto, punch boards, tip jars, instant bingo, othergames similar to bingo, and certain card games); and Class III games (all othergaming). 25 U.S.C. § 2703(6)- (8). Class I games are not subject to regulation u nder IGRA. Id. at § 2710(a). Class II games are permitted under IGRA if the game is conducted in a state that permits Class II gaming for any purpose by any enti ty and if the NIGC has approved a gaming ordinance adopted by the tribe. Id. at § 2710(b). Class III games are permitted under IGRA if, in addition to m eeting the requirements imposed on Class II games, they are “conducted in c onformance with a TribalState compact.” Id. at § 2710(d). The NIGC is charged with the development of regulations and administrative enforcement of IGRA. Id. §§ 2705, 2706. In accordance with the discharge of this duty, the NIGC Chairman is author ized to order the temporary closure of gaming activities and impose civil fines if he determines that any person or tribe is conducting gaming in substantial violation of IGRA. Id. §§4 -4- 2705(a), 2713(b)(1). Under the NIGC’s regulations, a temporary closure order may extend to “all or part of an Indian gaming oper ation” and is “effective upon service.” 25 C.F.R. §§ 573.6(a), 573.6(b). The Nation operates gaming activities at four gamin g facilities in Seminole County, Oklahoma. In an effort to increase revenue s from these facilities, the Nation added “coin-operated amusement games,” whichit characterizes as games of skill. The Nation offered for play one particul ar coin-operated amusement game known as, “Red Hot Re-Spin.” On May 30, 2000, the NIGC Chairman concluded that the Red Hot Re-Spin machines were impermissible Class III gaming device s and issued a temporary closure order (“May Order”) directing the Nation to cease operating these machines. The Nation filed an appeal of the May Or der with the NIGC. After receiving the May Order, the Nation offered f or play several new coin-operated amusement machines, in addition to Re d Hot Re-Spin, under the following names: “Buffalo Nickels,” “Rainbow Reels, ” “Fantasy Fives,” “Pot O Gold,” and “Lucky Cherries.” On September 12, 2000 , the NIGC Chairman determined that these new games were also Class III games. Accordingly, the NIGC Chairman issued a second temporary closure ord er (“September Order”) ordering the Nation to cease all gaming activities in all of its gaming facilities.2 While the parties stated at oral argument that bo th the May and

September Orders are at issue in this appeal, the p arties confine their arguments on appeal exclusively to the September Order. 5 -5- On January 19, 2001, the government filed a complai nt in federal district court for enforcement of the May and September clos ure orders. 2 The government moved for a preliminary injunction. The district c ourt notified the parties by order that the hearing on the government’s motion w ould be combined with a trial on the merits of the government’s suit. On February 27, 2001, the district court denied the motion and dismissed the suit reasoning that the NIGC Chairman exceeded his authority in ordering the closure of a ll the Nation’s gaming facilities. The government appeals the district co urt’s dismissal of the suit. On February 4-6, 2002, a hearing was held before a Presiding Official (“PO”) appointed by the United States Department of the Interior’s Office of Hearings and Appeals on the Nation’s appeals from the May and September Orders. On April 8, 2002, the PO issued a Recommen ded Decision in which he concluded that the NIGC met its burden of proof with regard to the May Order but failed to meet its burden of proof with regard to t he September Order. The PO recommended that the May Order be sustained and the September Order be vacated. The NIGC reviewed the PO’s recommendations. In a w ritten Notice of Decision and Order entered on May 7, 2002, the NIGC adopted the PO’s6 -6- recommendation as to the May Order but rejected the PO’s recommendation as to the September Order. The NIGC directed that both t he May and September Orders become permanent. On August 16, 2002, the Nation filed suit in federa l district court seeking review of the NIGC’s permanent closure order. This case is still pending before the district court.
III. DISCUSSION
A. Mootness The Nation has moved for dismissal under Rule 27 of the Federal Rules of Appellate Procedure, arguing that the government’s appeal is moot because the NIGC Chairman’s temporary closure orders were super seded by the NIGC’s permanent closure order. Pursuant to Article III of the Constitution, federa l courts may adjudicate only actual controversies. Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477-78 (1990); Fischbach v. N.M. Activities Ass’n. , 38 F.3d 1159, 1160 (10th Cir. 1994). The controversy must exist during all stages of the appellate review. Fischbach , 38 F.3d at 1160. Once such controversy ceases to e xist, the action is moot and this court lacks jurisdiction to adjudicate the matter. Id . An exception to the mootness doctrine, however, arises when the case is “capable of repetition, yet evading review.” Gannett Co. v. DePasquale , 443 U.S. 368, 377 (1979)7 -7- (quotation omitted); Fischbach , 38 F.3d at 1161. This exception applies when: (1) the duration of the challenged action is “too s hort to be fully litigated prior to its cessation or expiration,” and (2) there is “a r easonable expectation that the same complaining party . . . [will] be subjected to the same action again.”
Gannett , 443 U.S. at 377. The NIGC Chairman’s temporary closure orders have b een superseded by the issuance of a permanent closure order by the NI GC. Thus, the temporary closure orders are no longer in effect. This case, however, fits the narrow exception to the mootness doctrine for conduct capable of repetition, yet evading review. The NIGC Chairman’s temporary closure orde rs are too short in duration to be fully litigated in court prior to their admin istrative expiration or replacement by permanent orders. Temporary closure orders, by their very nature, are short in duration. IGRA requires the NIGC to quickly reviewtemporary closure orders and either dissolve them or issue permanent closure orders. 25 U.S.C. § 2713(b)(2) (providing an Indian tribe with the right to a hearing before the Commission to review a temporary closure order with in thirty days of its issuance and requiring the Commission to decide whether to d issolve the order or issue a permanent closure order within sixty days of the he aring). The Nation argues, however, the NIGC Chairman’s temporary orders are n ot so short in duration as to require this court to exercise jurisdiction over th is appeal. Rather, the Nation8 -8- argues, the government’s failure to seek an expedit ed appeal and its multiple requests for additional time to file appellate brie fs delayed appellate review until after the issuance of the permanent order. The cou rse of proceedings in this appeal, however, are irrelevant. The NIGC’s statut ory obligation to quickly conduct a hearing within thirty days of the issuanc e of a temporary order and decide whether to dissolve or make permanent the or der within sixty days of the hearing, creates a paradigm in which a temporary or der will not remain in effect throughout the appellate process. Accordingly, the NIGC Chairman’s temporary closure orders are of a sufficiently limited durati on to ordinarily escape appellate review. The Nation also argues that the issues in this appeal are not of a limited duration because they will be litigated in the case involving the permanent closure order. The issue in this appeal is whether the NIG C Chairman’s statutory authority to issue temporary closure orders extends to the closure of a tribe’s entire gaming operation. The NIGC Chairman’s statutory authority, however, is not at issue in an appeal from permanent closure or ders because the NIGC, and not the NIGC Chairman, issues permanent closure ord ers under IGRA. 25 U.S.C. § 2713(b)(2). Accordingly, a district court hearin g an appeal from a permanent closure order will consider the NIGC’s authority to issue the order and the9 -9- NIGC’s conclusion that the gaming operation was in substantial violation of
IGRA. See generally id . at § 2713(c). To constitute an exception to the mootness doctrine , it is not enough that an issue will escape review because of limited duratio n. It is also necessary that there be “a reasonable expectation that the same co mplaining party . . . [will] be subjected to the same action again.” Gannett , 443 U.S. at 377. Because the district court’s denial of injunctive relief was ba sed on the specific facts of this case, the Nation argues, the government has no reas onable expectation that it will bring a substantially similar action for enforcement of a temporary closure order in the future. The Nation also argues that the cou rt should not presume that it will not comply with future temporary closure order s. At oral argument, however, the Nation conceded it would again challenge the sc ope of the Chairman’s authority under IGRA. Accordingly, there is a reas onable expectation that the Nation will again challenge the NIGC Chairman’s authority to issue temporary closure orders that apply to all the Nation’s gamin g facilities. Therefore, while the NIGC Chairman’s temporary orde rs were superseded by the NIGC’s permanent closure order, this court’s “jurisdiction is not defeated” because this appeal fits the exception to mootness for conduct capable of repetition, yet evading review. See id

.10 -10- B. IGRA The district court determined the NIGC Chairman’s authority to issue temporary closure orders is limited under 25 U.S.C. § 2713(b)(1) to the closure of individual games. Accordingly, the district court concluded the NIGC Chairman exceeded his statutory authority by issuing the Sep tember Order which required closure of all the Nation’s gaming facilities. The government argues that the NIGC Chairman is authorized under IGRA to issue a t emporary closure order applicable to an entire gaming facility and that th e district court, therefore, erred in refusing to enforce the September Order. This c ourt reviews the interpretation of a federal statute de novo

. See Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995). In interpreting a statute, this court gives effect to the statute’s unambiguous

terms. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-43 (1984); Aulston v. United States , 915 F.2d 584, 589 (10th Cir. 1990). “In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the languag e and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988). “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, this court defers to the agency’s reasonable interpretation of the statute. Chevron , 467 U.S.
at 843.11 -11- The Nation argues that the NIGC Chairman’s authority to issue temporary closure orders is limited to the closure of an indi vidual game. To support its argument, the Nation relies on 25 U.S.C. § 2713(b)( 1) which states: The Chairman shall have power to order temporary cl osure of an Indian game for substantial violation of the provisions of [IGRA, NIGC regulations, and tribal regulations approved under IGRA]. While the narrow term “an Indian game” is used in § 2713(b)(1), when read as a whole IGRA unambiguously authorizes the NIGC Chairm an to order the temporary closure of entire gaming operations. In § 2705(a)(1), the NIGC Chairman is authorized to “issue orders of temporary closure of gaming activities as provided in section 2713(b).” 25 U.S.C. § 2705( a)(1) (emphasis added). Accordingly, the phrases “gaming activities” and “a n Indian game” are used interchangeably in reference to the NIGC Chairman’s authority to issue temporary closure orders. Moreover, the NIGC is required by § 2713(b)(2) to r eview the NIGC Chairman’s temporary closure order and either disso lve it or order “a permanent closure of the gaming operation.” Id . § 2713(b)(2). Because the NIGC can act to either dissolve or make permanent the Chairman’s te mporary order, the NIGC’s permanent closure order is of the same scope as the NIGC Chairman’s temporary closure order. The reference in § 2713(b)(2) to a “gaming operation,” therefore, is substantially equivalent to the phrase “an India n game” in § 2713(b)(1).3 The Nation argues that the NIGC Chairman is not e mpowered to close

games which are lawful under IGRA. This argument l acks merit. The closure of an entire facility for violation of a safety regulation would necessitate the closure of individual games which are otherwise permissible under IGRA. Such a result is clearly authorized under the language of 25 U.S. C. § 2710(b)(2)(E) and § 2713(b)(1). 12 -12- Finally, the NIGC Chairman is obligated to approve tribal ordinances which, inter alia , provide for the protection of public health and s afety at gaming facilities. Id . § 2710(b)(2)(E) (authorizing the Chairman to appr ove tribal ordinances which provide that “construction and mai ntenance of the gaming facility, and the operation of that gaming is condu cted in a manner which adequately protects the environment and the public health and safety”). The NIGC Chairman is authorized to enforce such tribal ordinances through the issuance of temporary closure orders. Id. § 2713(b)(1). The Nation conceded at oral argument that the NIGC Chairman’s authority to enforce such tribal ordinances is derived from § 2713(b)(1). If the NI GC Chairman’s authority to issue temporary closure orders was limited to the c losure of individual games, he would be unable to carry out this obligation. Acco rdingly, when § 2710(b)(2)(E) and § 2713(b)(1) are read together, the NIGC Chairm an’s authority to issue temporary closure orders clearly includes the powerto close entire gaming facilities. 34 The Nation conceded at oral argument that § 2713( b)(1) may, in fact, be

ambiguous and that the NIGC’s reasonable regulation s are entitled to Chevron deference. 13 -13- Even assuming, arguendo , that the statute authorizing the NIGC Chairman to issue temporary closure orders under IGRA is amb iguous, 4 the NIGC’s interpretation of the statute as embodied in their regulations is entitled to deference. Chevron , 467 U.S. at 843. Under 25 C.F.R. § 573.6, the NI GC Chairman is authorized to issue “an order of tempor ary closure of all or part of an Indian gaming operation” if the tribe violates cert ain provisions of IGRA. 25 C.F.R. § 573.6(a). “The operator of an Indian gami ng operation [must] close the operation upon service” of the order. Id. § 573.6(b). This regulation is a reasonable interpretation of § 2713(b)(1) and, ther efore, is entitled to deference under Chevron

. See 467 U.S. at 843. Accordingly, because the NIGC Chairman is authorize d under IGRA to issue a temporary closure order of an entire gaming facility, the district court erred in dismissing the government’s action seeking enforcement of the September Order.5 In addition to concluding that the NIGC Chairman exceeded his statutory

authority by issuing a temporary closure order relating to all the Nation’s gaming facilities, the district court raised, sua sponte , the issue of whether the Nation’s due process rights were violated. As an additional reason for dismissing the government’s suit, the district court determined th at the Nation’s due process rights were violated. Because resolution of this c onstitutional issue was unnecessary to the adjudication of the case, the di strict court abused its discretion in deciding the issue. See Dept. of Commerce v. United States House of Representatives , 525 U.S. 316, 343 (1999) (reasoning it was properto abstain from ruling on the constitutional issue presented i n the appeal because a decision could be reached on other grounds). Moreover, the Nation has abandoned this issue on appeal. Accordingly, this court does not have the benefit of appellate briefing on this issue. In light of these circumst ances and the conclusion that the district court’s opinion be vacated, this court wil l abstain from adjudicating the merits of this issue. Because this action was an enforcement action, the only issue properly addressed by the district court was whether the NIG C Chairman had the authority to order the temporary closure of all the Nation’s gaming facilities. Accordingly, the district court lacked jurisdiction over other i ssues raised by the parties, including the classification of the games at issue and the validity of IGRA provisions requiring that tribal-state compacts be obtained prior to engaging in Class III gaming activities. These issues must be raised in an appeal of the NIGC’s permanent order. See 25 U.S.C. § 2713(c) (conferring jurisdiction over final, permanent orders of the NIGC on the federal district court). Therefore, this court, like the district court, lacks jurisdiction to resolve these issues.

6 The NIGC Chairman’s temporary closure orders have been superseded by the NIGC’s permanent closure order and they, theref ore, cannot be enforced. Because, as discussed above, the district court err ed in dismissing the government’s suit and in refusing to enforce the NI GC Chairman’s temporary closure orders, this court vacates the district cou rt’s order. 14 -14- IV. CONCLUSION For the reasons stated above, 5 the district court’s order is VACATED. 6 Further, the Nation’s motion to dismiss this appeal for mootness is DENIED

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