Further, we find no prejudice resulting from a waiver here, notwithstanding that
25 G.F.R. § 539.2 provides that the Chairman’s decision is automatically affirmed if the
Commission does not act. Given that a management contract not approved by the
Chairman is void, 25 C.F.R. § 533.7, the purpose of the deadline in § 539.2 is to ensure
swift action by the Commission. This ensures that an appeal does not languish without
action by the Commission and that interested parties do not suffer for the absence of a
decision, a state of affairs that in the worst cases can continue for years before Federal
agencies. Viewed on that time scale or even on any commercially reasonable time scale,
63 days is no less swift than 60, and an aggrieved party may seek immediate review in
Federal court using either measure. 25 U.S.C. § 2714.

Given the foregoing, our August 17, 2007 final decision and order was timely
made, whether Governor Flyingman filed his appeal on June 15 or June 18, 2007.
II]. | TECHNICAL CORRECTIONS

In reviewing our August 17 final decision and order in preparation for issuing this
supplemental one, we noticed a few technical and typographical errors that we hereby
correct.

A. CORRECTION #1

Add the inadvertently omitted words “Supreme Court” immediately following
“Tribes” on page 7, line 2.4

B. CORRECTION #2

Correct the typographical error in “defers” in heading B, page 155

4 The amended sentence reads: “Governor Flyingman appealed this decision to the Tribes’ Supreme
Court.”

5 The amended heading reads: “The Commission defers to the interpretation of tribal law by the
Cheyenne and Arapaho Supreme Court.”


inconsistent with the underlying purposes of part 539 to permit reconsideration of a final
decision as of right.

As we stated in our August 17 final decision and order, part 539 contemplates a
summary determination by the Commission on a written record.. That format, we wrote,
is better suited to reviewing “the narrow question of whether the Chairman properly
observed IGRA’s requirements for approving or disapproving management contracts. ashe
(Supplemental Record, Tab 10, final decision p. 9.) In addition, part 539 provides for an
accelerated schedule. The appellant must file all appellate pleadings within 30 days of
the Chairman’s decision, and the Commission’s decision must follow 30 days thereafter,
or 60 days if the appellant consents. 25 C.F.R. § 539.2. Following the decision, review in
Federal district court under the Administrative Procedures Act is immediately available.
25 U.S.C. § 2714.

As a general matter, then, absent some kind of exceptional circumstance that
would counsel otherwise, such as a change in controlling law or clear error, we do not
think it serves the purposes of this kind of summary proceeding to consider motions for
reconsideration as a matter of course under part 539. The sheer flurry of correspondence
and submissions generated by the present motion merely strengthens our conviction.
(See Supplemental Record, Tabs 12-17.)

In short, we regard motions for reconsideration under part 539 analogously to the
way Federal courts consider them under Fed. R. Civ. P. 59(¢). The decision to consider
such a motion is committed to the Commission’s sound discretion and is reserved for
exceptional circumstances. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996);
Lightfoot v. District of Columbia, 355 F. Supp.2d 414, 420 (D.D.C. 2005); Judicial Watch,

Inc. v. United States Dept. of Energy, 319 F. Supp.2d 32, 34 (D.D.C. 2004). The motion is


Robert Lyttle
P.O. Box 1189
Carefree, AZ 85377

Klint A. Cowan

Hobbs, Straus, Dean & Walker, LLP
117 Park Avenue, Second Floor
Oklahoma City, OK 73102

And by hand-delivery upon:

Penny J. Coleman, Acting General Counsel

Jo-Ann M. Shyloski, Associate General Counsel, Litigation and Enforcement
National Indian Gaming Commission

1441 L Street, NW

Suite 9100

Washington, D.C . 20005

Denise Desiderio
National Indian Gaming Commission

1441 L Street NW, Suite 9100

Washington, D.C. 20005


not, in fact, complete. (See Supplemental Record, Tab 15, p. 7.) This circumstance appears
before us now for the first time.

In reviewing the appeal and in rendering the August 17 final decision and order,
we proceeded on the understanding that Governor Flyingman’s notice of appeal, though
dated June 14, 2007, was received and filed on June 18, 2007, as the date stamp on the
notice indicates. (See Supplemental Record, Tab 1.) We note that the parties proceeded on
this understanding as well, as June 18 was the date we indicated to them that the appeal
was filed, from which we calculated 30 additional days for Governor Flyingman to
submit his statement of reasons on appeal, and from which we calculated 60 days for our
final decision and order. (See Supplemental Record, Tab 3.)

The Chairman’s response provides evidence that Governor Flyingman also faxed
his notice of appeal and that that fax was twice logged in as received in the
Commission’s Washington, D.C., offices on June 15, 2007. (See Supplemental Record, Tab
15, Exhibits 3 and-4.) Governor Flyingman’s response contains a declaration from his
executive secretary confirming that she twice faxed the notice of appeal on June 15. (See
Supplemental Record, Tab 14, declaration of Susan Hart.)

Recognizing the importance of this matter to the Tribes and Southwest, and in
keeping with our determination to decide this matter on as complete a record as
possible, we treat the submission of this additional evidence as a motion to supplement
the record, which we grant. We consider whether marking Governor Flyingman’s appeal
as first filed on June 15, 2007, has any effect on our August 17 final decision and order
and conclude that it does not. Under the circumstances here, whether Governor
Flyingman’s appeal was filed on June 15 or June 18, 2007, has no consequence for the

timeliness of his appeal or of our decision.


interpretation of the Tribes’ law. (See Supplemental Record, Vab 10, final decision, pp. 15-
18.) That policy guided not only our decision but also the Chairman’s prior decisions
about the amended management contract between the Tribes and Southwest
(“Amendment 11”).

We waited until August 17 to enter our final decision and order for the express
purpose of giving the Tribes’ Supreme Court time to decide the validity of Amendment
11. When the Supreme Court decided on August 17 that Amendment 11 was not valid
under tribal law, we made our decision accordingly.

Further, on May 16, 2007, the Chairman initially disapproved Amendment 11,
reasoning that it was not adopted in accordance with the requirements of the Tribes’
constitution. He recognized at the time, however, that that very question was pending in
the Tribes’ District Court. Accordingly, the Chairman wrote:

While I am prepared to reconsider this decision should the tribal court

rule to the contrary, I am compelled, under my understanding of the

NIGC regulations and tribal law, to disapprove the amendment to the

contract.

(See Administrative Record, Tab 12, p. 5.) When the District Court found that Amendment
11 was properly adopted, (see Administrative Record, Tab 5, order), the Chairman reversed
himself. (See Administrative Record, Tab 2, May 18, 2007, approval letter.)

The failure, then, to allow a tribal court to exercise its jurisdiction on a question
of tribal law or to defer to a tribal court’s decision once made may very well be an
exceptional circumstance justifying reconsideration. We see no such failure here,
however.

Southwest notes that though the Tribes’ Supreme Court reversed the District

Court and found that Amendment 11 was not properly adopted under the Tribes’


not an opportunity to reargue facts or theories already considered and ruled upon, nor is
it a vehicle to present arguments that could have been, but were not, advanced
previously. Lightfoot, 355 F. Supp.2d at 421; Clay v. District of Columbia, 2005 U.S. Dist.
LEXIS 11504 at *2 - *3 (D.D.C. 2005); Judicial Watch, 319 F. Supp.2d at 34. A motion
for reconsideration must establish more than a party’s continued belief that the decision
in question was simply wrong. State of New York v. United States, 880 F. Supp. 37, 38
(D.D.C. 1995)(three-judge panel).

Here, Southwest’s motion seeks only the proverbial second bite at the apple,
offering no compelling reason to reconsider other than its conviction that we have erred.
It urges, in particular, that we reconsider and reverse the August 17 decision on a variety
of procedural grounds that all concern the timeliness of Governor Flyingman’s appeal,
which we have already considered and decided in our August 17 final opinion and order.
(See Supplemental Record, Tab 11., pp: 2 - 12.)

Southwest urges as well, in its supplemental memorandum, that Governor
Flyingman lacked standing to bring this appeal. (See Supplemental Record, 'Tab 16.)
Without deciding the question, we doubt whether Governor Flyingman lacks standing.
The Tribes’ governor is an officer charged under the Tribes’ constitution with a role to
play in the adoption of any management contract. Be that as it may, this is certainly an
argument that Southwest could have, but did not, raise when it intervened in this
appeal.

Southwest urges, finally, that our final decision does not sufficiently defer to the
August 17 decision of Tribes’ Supreme Court. As the final decision explains at some
length, as a matter of Federal Indian policy, it is inappropriate for the Commission to

substitute its judgment for that of the Tribes’ courts about the meaning and


Gaming Regulatory Act (“IGRA”) and with administrative appellate review of the

Chairman’s executive decisions. See, ¢.g., 25 U.S.C. §§ 2706(10), 2713(a)(2), 2714.

The narrow question before the Commission on Goyernor Flyingman’s appeal
was the propriety of the Chairman’s approval of Amendment 11. As the Tribes’ Supreme
Court determined that Amendment 11 was not validly adopted, we reversed the
Chairman’s approval. When the Commission entered its final decision and order on
August 17, 2007, then, there was, as a matter of Federal law, no management contract
between the Tribes and Southwest. Management contracts that are not approved by the
NIGC Chairman are void. 25 C.F-R. § 533.7.

That being the case, the full Commission is not the proper body to consider a
stay of the effectiveness of the August 17 final decision and order. Management of an
Indian casino without an approved management contract is a violation of IGRA, and the
decision whether to take action against such a violation is committed exclusively to the
Chairman acting in his sound discretion. It is the Chairman, not the full Commission,
whom IGRA charges with taking enforcement action against IGRA violations. 25 U.S.C.
§ 2705(a)(1)-(2). :

IL. IN ORDER THAT IT MAY MAKE ITS DECISION ON AS COMPLETE A RECORD AS
POSSIBLE, THE COMMISSION SUPPLEMENTS THE RECORD BEFORE IT TO INCLUDE
EVIDENCE, PRESENTED BY THE PARTIES FOR THE FIRST TIME, THAT GOVERNOR
FLYINGMAN FILED HIS APPEAL BY FACSIMILE ON JUNE 15, 2007.

In reviewing and deciding this appeal, we have labored to make a decision based
on as complete a record as possible. That was a significant reason behind allowing

Southwest’s motion to intervene. In responding to Southwest’s reconsideration motion,

the Chairman’s counsel informs us that the record on which we based our decision was


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Ve comm’

IN THE MATTER OF
The May 18, 2007, Approval of the Supplemental final decision and order
Gaming Management Contract between
the Cheyenne & Arapaho Tribes of August 28, 2007
Oklahoma and Southwest Casino and
Hotel Corporation

On motion to the National Indian Gaming Commission (NIGC or Commission)
for reconsideration of its August 17, 2007, final decision and order reversing the approval
by the NIGC Chairman of a gaming management contract between the Cheyenne and

Arapaho Tribes of Oklahoma and Southwest Casino and Hotel Corporation.

SUPPLEMENTAL FINAL DECISION AND ORDER
After careful and complete review of the motion for reconsideration filed by
Southwest Casino and Hotel Corporation (Southwest); the responses filed by Darrell
Flyingman, Appellant and Governor of the Cheyenne and Arapaho Tribes of Oklahoma
(Tribes); and a response filed by the NIGC Chairman through counsel, the Commission

finds and orders that:

1 Tn matters where he takes executive action, such as approving or disapproving gaming management
contracts, 25 U.S.C. § 2711, or bringing closure actions and levying fines to correct violations of the
Indian Gaming Regulatory Act, 25 U.S.C. § 2713(a)-(b), the NIGC Chairman is represented by
attorneys from the Commission’s Office of General Counsel (OGC). 25 U.S.C. § 2707(a). On

NATIONAL HEADQUARTERS 1441 L St. NW, Suite 9100, Washington, DC 20005 Tel: 202.632.7003 Fax: 202.632.7066 WWW.NIGC.GOV

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK


business day, Monday, June 18, 2007, the date we regarded Governor Flyingman to have
filed his appeal in our August 17, 2007, final decision and order.

B. ‘THE COMMISSION WAIVES STRICT COMPLIANCE WITH THE 60-DAY
REQUIREMENT OF 25 G.F-.R. § 539.2 BECAUSE ALL OF THE PARTIES
PROCEEDED AS IF GOVERNOR FLYINGMAN FILED HIS APPEAL ON JUNE 18,
2007, BECAUSE DOING SO WILL CREATE NO PREJUDICE, AND BECAUSE DOING
SO WILL MAKE THE RECORD ON APPEAL NO LESS COMPLETE FOR THE
COMMISSION OR FOR A COURT UPON ANY EVENTUAL JUDICIAL REVIEW.

Part 539 provides the Commission with 30 days after receipt of a notice of appeal

to issue a decision, or 60 days if the appellant consents to the additional time. 25 C.F.R.
§ 539.2. Governor Flyingman consented to the 60-day time period here. (See
Supplemental Record, 'Tab 6.)

If, then, Governor Flyingman filed his notice of appeal on June 18, our August
17, 2007, final decision and order was timely entered 60 days later. If the appeal was filed
on June 15, then our decision was entered 63 days later. We regard the 60-day deadline
as another of the species of procedural regulations for the orderly conduct of business
before the Commission that may be waived in appropriate circumstances, absent
prejudice. We waive strict compliance with the deadline under the circumstances here,
where all concerned treated this appeal as filed on June 18 and the June 15, 2007, faxed
filing came to light only after we entered our final decision and order.

We note again that an administrative agency has the ad hoc power to relax its
procedural rules in order to promote the orderly conduct of business before it and when
the interests of justice so require. American Farm Lines v. Black Ball Freight Svc. 397 U.S.
532, 539 (1970); National Labor Relations Bd. v. Monsanto Chemical Co., 205 F.2d 763, 764

(8" Cir. 1953). This rule applies with “especial force” in cases before agencies that act in

the public interest. Monsanto Chemical, 205 F.2d at 764. The Commission is such an

12


A. GOVERNOR FLYINGMAN TIMELY FILED HIS APPEAL, WHETHER THE
COMMISSION RECEIVED HIS NOTICE OF APPEAL ON JUNE 15 OR JUNE 18, 2007.

The decision at issue in this appeal is the Chairman’s May 18, 2007, approval of
Amendment 11. Our regulations provide a period of 30 days in which to appeal that
decision. 25 C.F.R. § 539.2. Thirty days from May 18, 2007, is June 17, 2007. Obviously,
an appeal filed on June 15 — twenty-eight days later — is timely filed within the
prescribed 30 days. As June 17, 2007, was a Sunday, an appeal filed on June 18 is
likewise timely filed.

Though part 539 of our regulations is silent on the question of how weekends
and holidays are treated for questions of filing and service of process, other sections are
not and speak directly to the question:

In computing any period of time prescribed for filing and serving a

document, the first day of the period so computed shall not be included.

The last day shall be included unless it is a Saturday, Sunday, or federal

legal holiday, in which case the period shall run until the end of the next

business day.

25 C.F.R. § 577.6(e). We regard this as the applicable rule here. To do otherwise would
create a purposeless inconsistency within our own regulations. It would also be
inconsistent with what we understand to be the near-universal practice. Our regulation is
modeled upon the analogous provision of the Federal Rules of Civil Procedure:

In computing any period of time prescribed or allowed by these rules...,

the day... from which the designated period of time begins to run shall

not be included. The last day of the period so computed shall be

included, unless it is a Saturday, a Sunday, or a legal holiday... in which

event the period runs until the end of the next day which is not one of

the aforementioned days.

Fed. R. Giv. P. 6(a).
Accordingly, as the 30" day following May 18, 2007, was Sunday, June 17, 2007,

the period for appeal from the Chairman’s May 18 approval ran until the end of the next


constitution, the Supreme Court stayed its decision until October 16, 2007. Southwest
thus contends that the District Court’s finding that Amendment 11 was valid was still in
effect on August 17, 2007, the date of our decision, and that we should therefore
properly have deferred to the District Court’s order and affirmed the Chairman’s
approval of Amendment 11. (See Supplemental Record, Tab 11, motion pp. 12-13.) We
disagree.

The Tribes’ Supreme Court unequivocally held that Amendment 11 was invalid
as of the entry of its order on August 17, 2007: “[I]n consequence, no valid gaming-
management contract exists between Southwest and the Tribes as of' the date of the filing
of this Opinion and Order.” (See Supplemental Record, Tab 9, Supreme Court decision, p.
15.) (Emphasis added.) Contrary to Southwest’s assertion, the Supreme Court did not
stay that determination until October 16, 2007. Rather, it stayed any “enforcement of
this Opinion and Order.” Jd. Thus, at the time we issued our final decision and order on
August 17, Amendment 11 was not valid under tribal law. We properly deferred to the
decision of the Supreme Court and reversed the Chairman’s approval of Amendment Ti.

Absent, then, any exceptional circumstance justifying reconsideration of our
August 17 order, we decline to consider Southwest’s motion for reconsideration.

We make only one other observation about the interplay, or absence thereof,
between our August 17 final decision and order and the Supreme Court’s August 17 stay.
As the Supreme Court is the final constitutional arbiter of the Tribes’ law, it would be
inappropriate for the Commission to question the propriety or wisdom of the Court’s
stay, and we do not attempt to do so. At the same time, it is, of course, the Commission

that is statutorily charged with the implementation and interpretation of the Indian


Gaming Management Contract between the Tribes and Southwest...” (See Supplemental
Record, Tab 11, motion for reconsideration, p. 14.)

That same day, Governor Flyingman sought leave to file a response (see
Supplemental Record, Tab 12, August 21, 2007, letter), which we granted as a simple
matter of fairness, asking that we receive the response by August 24, 2007. (See
Supplemental Record, Tab 13, August 22, 2007, letter.)

Governor Flyingman timely submitted his response on August 24. (See
Supplemental Record, Tab 14). On that day, the NIGC Chairman, through his separate
counsel, submitted a response (see Supplemental Record, Tab 15, response), and
Southwest submitted P supplemental memorandum of points and authorities. (See
Supplemental Record, Tab 16, supplemental memo.) Governor Flyingman submitted a
reply to Southwest’s supplemental memorandum on Saturday, August 25. (See

Supplemental Record, Tab 17, response.) This decision followed.

DISCUSSION
I "THE COMMISSION DECLINES TO HEAR SOUTHWEST'S MOTION FOR
RECONSIDERATION BECAUSE DOING SO IS INCONSISTENT WITH THE UNDERLYING
PURPOSES OF 25 C.F.R. PART 539.
As it was in deciding Governor Flyingman’s appeal, our action on Southwest’s
motion for reconsideration is governed by 25 C.F.R. part 539: “This part applies to
appeals from the Chairman’s decision to approve or disapprove a management contract

under this subchapter...” 25 C.F.R. § 539.1. Part 539, however, is silent about a party’s

ability to seek reconsideration of a final decision by the Commission. We think it is

3 The submissions referenced in this section were all made by facsimile on the dates indicated.

Original copies of most were subsequently received by First Class mail. (See Supplemental Record, Tabs
11-12, 14-17.)


C., CORRECTION #3

Delete the comma immediately following “conclude” on page 18, line 15.°

D. CORRECTION #4

Add the inadvertently omitted word “not” immediately following “having” and
“was” in lines 1 and 2, respectively, of heading D, page 20.”

E. CORRECTION #5

Correct the inadvertently mistaken cross-reference “(See Administrative Record,
Tab 51)” to “(See Supplemental Record, Tab 9)” on page 21, lines 4 and 9-10.

CONCLUSION.

Given all of the foregoing, the Commission chooses not to consider Southwest

Casino and Hotel Corporation’s motion for reconsideration. As supplemented and

modified herein, the August 17, 2007, final decision and order remains in full force and

effect.

© The amended sentence reads: “Given all of this, we defer to the decision of the Tribes’ Supreme
Court and conclude that Amendment 11 was not properly authorized under the Tribes’ constitution.
7 The amended heading reads: “Amendment 11, having not been properly authorized under the

Cheyenne and Arapaho constitution, was not properly submitted to the Chairman for his review and
approval.”


CERTIFICATE OF SERVICE

Thereby certify that on the 2g" day of August, 2007, I served a copy of the
foregoing SUPPLEMENTAL DECISION AND ORDER by facsimile and by certified

mail, return receipt requested, upon the following:

Darrell Flyingman, Governor

Cheyenne and Arapaho Tribes of Oklahoma
100 Red Moon Circle, P.O. Box 38
Concho, OK 73022

Ida E. Hoffman, Speaker of the Legislature
Cheyenne and Arapaho Tribes of Oklahoma
100 Red Moon Circle, P.O. Box 38

Concho, OK 73022

David Bearshield, Tribal Council Coordinator
Cheyenne and Arapaho Tribes of Oklahoma
100 Red Moon Circle, P.O. Box 38

Concho, OK'73022

James:B. Druck, Chief Executive Officer
Southwest Casino Corporation

2001 Killebrew Drive, Suite 350
Minneapolis, MN 55425

Nelson W. Westrin

Honigman, Miller, Schwartz and Cohn, LLP
222 North Washington Square

Suite 400

Lansing, MI 48933-1800

Richard Grellner
439 N.W. 18" Street
Oklahoma City, OK 73103


13. August 17, 2007, is 63 days after the June 15, 2007, notice of appeal.

14, The Commission waives strict compliance with the 60-day requirement of 25
GE.R. § 539.2 because all of the parties proceeded as if Governor Flyingman
filed his appeal on June 18, 2007, because doing so will create no prejudice, and
because doing so will make the record on appeal no less complete for the
Commission or for a court upon any eventual judicial review.

15. The August 17, 2007, final decision and order, was timely entered after the June
15, 2007, notice of appeal.-

16. ‘The Commission makes changes to technical and typographical errors in the
August 17, 2007, final decision and order as specified in Part IL, below.

17. As supplemented and modified herein, the August 17, 2007, final decision and
order remains in full force and effect.

STATUTORY, FACTUAL AND PROCEDURAL BACKGROUND

The statutory, factual, and procedural background of this matter leading up to
the Commission’s August 17, 2007, final decision and order is set out in detail in that
decision, and there is no need to repeat it here. (See Supplemental Record, Tab 10, August
17, 2007, NIGC final decision and order.’

On August 21, 2007, Southwest submitted a motion for reconsideration asking
the Commission, on various and predominantly procedural grounds, to reverse the
August 17, 2007, order and “issue a revised decision and order affirming the Chairman’s

May 18, 2007, determination approving Amendment No. 11 to the Third and Restated

2 As in the August 17, 2007, final decision and order, “Administrative Record” refers to the record of
documents considered by the NIGC Chairman and supporting his May 18, 2007, approval of the
amended casino management contract between the Tribes and Southwest. “Supplemental Record”
refers to those additional documents submitted to, and considered by, the full National Indian
Gaming Commission in this appeal and in Southwest’s subsequent motion for reconsideration.


1. The Commission declines to hear Southwest’s motion for reconsideration

because doing so is inconsistent with the underlying purposes of 25 G.F.R. part
539.

2. The parties have submitted evidence that Governor Flyingman submitted his
notice of appeal by facsimile on June 15, 2007 — evidence that was not contained
in the record before the Commission and presented here for the first time.

3. The Commission therefore treats the newly submitted evidence as a motion to
supplement the record, which it grants in order to decide this appeal on as
complete a record as possible.

4. Governor Flyingman timely filed his appeal, whether the Commission received
his notice of appeal on June 15 or June 18, 2007.

5. 25 U.S.C. § 539.2 provides 30 days for filing an appeal of the Chairman’s approval
or disapproval of a gaming management contract.

6. Governor Flyingman’s June 15, 2007, notice of appeal was timely filed 28 days
after the Chairman’s May 18, 2007, management contract approval.

7. June 18, 2007, is 31 days after the May 18, 2007, management contract approval
on appeal.

8. Incomputing any period of time prescribed for filing and serving a document,
the first day of the period so computed shall not be included. The last day shall
be included unless it is a Saturday, Sunday or Federal legal holiday, in which
case the period shall run until the end of the next business day.

9. . The 30" day after May 18, 2007, was Sunday, June 17, 2007. The period for
appeal therefore ran until the end of Monday, June 18, 2007. Governor
Flyingman’s June 18, 2007, notice of appeal was timely filed.

10. The Commission timely filed its August 17, 2007, final decision and order,

whether Governor Flyingman filed his notice of appeal on June 15 or June 18,
2007.

11. 25 C.F.R. § 539.2 provides 30 days for the Commission decide an appeal, or 60

days if the appellant consents. Governor Flyingman consented to the 60-day
period.

12. The August 17, 2007, final decision and order, was timely entered 60 days after
the June 18, 2007, notice of appeal.

administrative appeals of those actions, the full Commission is represented by other OGC attorneys
who, as a matter of practice, are recused from any involvement or participation in the Chairman’s
executive actions. Likewise, the Chairman’s counsel is recused from any involvement or participation
in appeals before the Commission.


agency. We are charged by Congress with the Federal regulatory role under IGRA, “the
statutory basis for the operation of gaming by Indian tribes as a means of promoting
tribal economic development, self-sufficiency, and strong tribal governments,” and
Congress determined that the creation of the Commission was necessary for protecting
Indian gaming as a means of generating tribal revenue. 25 U.S.C. § 2702(1)-(2).

There are, of course, limitations to an agency’s ability to waive a procedural rule.
‘The waiver must not prejudice the public, prevent the agency from making a complete
and informed determination, or prevent judicial review of the same. American Farm
Lines, 397 U.S. at 538. We do not see how entering our decision, which we have based on
as complete a record as possible, 63 days after the filing of the notice of appeal rather
than 60 days prevents in any way our informed determination or judicial review.

Likewise, we do not see any prejudice resulting from a waiver here. As we have
said, we have permitted all interested parties to participate in the appeal, even when our
regulations do not provide for such participation. These are not circumstances such as
those that occurred in Alamo Express, Inc. v. United States, 613 F.2d 96 (5" Cir. 1980).
There, the Fifth Circuit invalidated an Interstate Commerce Commission (ICC) grant of
temporary authority to a carrier to transport auto parts, which it made without
notification to existing carriers as its procedural regulations required. Jd. at 97.

The Fifth Circuit rejected the ICC’s argument that this procedural requirement
was waivable. The court found that the waiver prejudiced the existing carriers not just
financially but also by excluding them from the ICC’s decision-making process. Further,
because of the carriers’ exclusion, the ICC’s decision-making process itself suffered:

“the likelihood of an informed finding of need is substantially diminished.” Jd.

13


4h
It is so ordered by the National Indian Gaming Commission, this ae day of August,

2007.

wget old.

Philip N. Hogen Cloyce V.|Choney Norman H. DesRosiers
Chairman Commissioner Commissioner -