Catawba Indian Tribe v. City of North Myrtle

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CATAWBA INDIAN TRIBE OF SOUTH
CAROLINA, a/k/a Catawba Indian
Nation,
Plaintiff-Appellant,

v. No. 99-2177

CITY OF NORTH MYRTLE BEACH;
HORRY COUNTY; STATE OF SOUTH
CAROLINA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-97-3000-4-22)

Argued: May 1, 2000

Decided: June 15, 2000

Before MURNAGHAN, WILKINS, and WILLIAMS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Henrietta Urbani Golding, BELLAMY, RUTENBERG,
COPELAND, EPPS, GRAVELY & BOWERS, P.A., Myrtle Beach,
South Carolina, for Appellant. Andrew Frederick Lindemann,
DAVIDSON, MORRISON & LINDEMANN, P.A., Columbia, South
Carolina; Michael Warner Battle, Sr., BATTLE & VAUGHT, P.A.,
Conway, South Carolina, for Appellees. ON BRIEF: Howell V. Bel-
lamy, Douglas M. Zayicek, Mary Anna Malpass, BELLAMY,
RUTENBERG, COPELAND, EPPS, GRAVELY & BOWERS, P.A.,
Myrtle Beach, South Carolina, for Appellant. Charles M. Condon,
South Carolina Attorney General, Kenneth P. Woodington, Senior
Assistant Attorney General, Columbia, South Carolina, for Appellee
South Carolina.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The Catawba Tribe of South Carolina, a/k/a Catawba Indian Nation
(the Catawba Tribe or the Tribe) filed suit in the United States District
Court for the District of South Carolina against the City of North
Myrtle Beach (the City) and Horry County (the County) (collectively,
Defendants). The Catawba Tribe's complaint sought both damages
arising out of Defendants' alleged deprivation of the Tribe's right to
operate a high-stakes bingo facility in their jurisdiction and declara-
tory relief as to the meaning of the term "approval" in the statute gov-
erning the Tribe's location of such a facility in South Carolina. The
district court dismissed the Tribe's claims for monetary relief as
unripe and granted Defendants' motions for summary judgment on
the Tribe's claim for declaratory relief. The Tribe filed a timely notice
of appeal. Finding no error, we affirm.

I.

In August 1992, the State of South Carolina and the Catawba Tribe
entered into an "Agreement in Principle" to settle the Tribe's claims
to 144,000 acres of land in South Carolina (the Claim Area).1 Follow-
_________________________________________________________________
1 For an extended discussion of the historical background of the Agree-
ment in Principle, see district court order of July 30, 1999 at 2-6.

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ing additional negotiations to refine the terms of the settlement agree-
ment, the parties entered into a revised Agreement in Principle. The
revised Agreement in Principle was subsequently amended by the
South Carolina General Assembly and enacted as the Catawba Indian
Claims Settlement Act (the Settlement Act), S.C. Code Ann. §§ 27-
16-10 to -140 (Law. Co-op. Supp. 1998). On June 14, 1993, then-
South Carolina Governor Carroll Campbell signed the Settlement Act
into law. On October 27, 1993, the United States Congress enacted
a federal implementing statute entitled The Catawba Indian Tribe of
South Carolina Land Claims Settlement Act of 1993, which ratified
and adopted the Agreement in Principle and the state implementing
legislation.

Of relevance to this case, the Settlement Act provides that the
Catawba Tribe may apply to the South Carolina Department of Reve-
nue for a special bingo license that would permit the Tribe to conduct
the game of high-stakes bingo up to six days a week and award cash
prizes of up to $100,000 per game. See S.C. Code Ann. § 27-16-
110(C) (Law. Co-op. Supp. 1998). The statute entitles the Catawba
Tribe to two bingo licenses at two separate locations. See S.C. Code
Ann. § 27-16-110(C)(5). Section 27-16-110(D) provides that if the
Tribe elects to operate one of the high-stakes games off the Tribe's
Reservation and outside the Claim Area, it "first must obtain the
approval of the governing authority of the county and any municipal-
ity in which it seeks to locate the facility." S.C. Code Ann. § 27-16-
110(D) (Law. Co-op. Supp. 1998). In contrast, if the Tribe decides to
operate one or both of the games off the Reservation but inside the
Claim Area, "it shall do so in an area zoned compatibly for commer-
cial activities after consulting with the municipality or county where
a facility is to be located." Id.

After voting to authorize bingo, the Catawba Tribe preliminarily
decided to locate and operate a bingo facility in North Myrtle Beach,
which is outside of the Claim Area, after confirming that the desired
site was located in a zoning district that already considered regular
bingo a permissible use. After the Horry County Council learned of
the Tribe's intentions, it passed a non-binding resolution stating that
the Council "strongly opposes the location of`mega bingo-parlors' in
Horry County." (J.A. at 1163.) On June 4, 1996, the County Council
rescinded the resolution and expressed "its approval of the project as

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outlined by the Catawba Indian Nation at the May 28, 1996, work-
shop of Horry County Council." (J.A. at 1170.) At approximately the
same time that the Horry County Council expressed its approval of
the Tribe's project, the Tribe outlined its plans for opening a bingo
facility in North Myrtle Beach to the North Myrtle Beach City Coun-
cil. After holding several hearings and workshops on the issue, the
City Council voted on March 17, 1997 to reject the Tribe's proposal
to locate and operate a high-stakes bingo facility in North Myrtle
Beach. On August 19, 1997, Gregory Hembree, an attorney for the
City of North Myrtle Beach, wrote a letter to John C. Stewart, Jr., an
attorney representing the Catawba Tribe, to inform him that

the City will not issue a business license for the facility to
operate games permitted under the special bingo license
unless and until the Catawba Indian Nation has been granted
a special bingo license by the South Carolina Tax Commis-
sion and the North Myrtle Beach City Council has granted
the required approval.

(J.A. at 1249.)

In response to the City's refusal to approve the proposed bingo
facility and issue the requisite business license, the Catawba Tribe
brought the instant suit in October 1997, seeking both money dam-
ages arising out of Defendants' alleged deprivation of the Tribe's
right to operate a high-stakes bingo facility in their jurisdiction and
declaratory relief as to the meaning of the term"approval" in § 27-16-
110(D). The County filed a motion for summary judgment and the
City filed a motion to dismiss. After conducting a hearing on these
motions, the district court issued an order on December 30, 1998
holding that the Tribe's claim for declaratory judgment was ripe for
adjudication and dismissing the Tribe's claims for monetary relief as
unripe. The County and the City subsequently filed motions for sum-
mary judgment and the Catawba Tribe filed a cross-motion for sum-
mary judgment, limited to the issue of the meaning of the term
"approval" in S.C. Code Ann. § 27-16-110(D).2 The Tribe took the
_________________________________________________________________
2 The State of South Carolina (the State) intervened with respect to the
constitutionality of the statute and filed a memorandum in support of
summary judgment in which it adopted the arguments made by the City
on the constitutional issues. The State, therefore, is a party to this appeal.

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position that the term "approval" merely requires compliance with
local zoning and business licensing ordinances, while the City argued
that "approval" conveys broad discretionary authority to the local
governing body to allow or disallow a high-stakes bingo facility
within its jurisdiction.3

By order of July 30, 1999, the district court granted Defendants'
motions for summary judgment and denied the Tribe's cross-motion
for summary judgment. First, the district court concluded that based
upon the plain meaning of the words used, the context of the words
in the section, and the overall statutory scheme, the term "approval"
in § 27-16-110(D) granted the City and the County governing bodies
discretionary authority to allow or disallow the Catawba Tribe's
request to locate a high-stakes bingo facility within their jurisdiction.
The district court subsequently rejected the Tribe's contention that
this interpretation would render the statute unconstitutional. The dis-
trict court reasoned that this interpretation did not violate the Equal
Protection Clause because no other entity in South Carolina besides
the Tribe possessed the authority to operate a high-stakes bingo facil-
ity and because granting discretionary authority to the governing
bodies of the City and the County was rationally related to the legiti-
mate government purpose of addressing concerns related to "mega-
bingo." The district court also concluded that this interpretation did
not violate the Indian Commerce Clause because the federal imple-
menting legislation expressly delegated regulatory authority over the
Tribe's gambling operations to the State of South Carolina and its
political subdivisions and because Indians going beyond reservation
boundaries are generally subject to nondiscriminatory state law other-
wise applicable to other state citizens. Finally, the district court found
that this interpretation did not violate the Tenth Amendment because
giving local governments discretion to allow or disallow high-stakes
bingo was consistent with state sovereignty.

The Catawba Tribe filed a timely notice of appeal. Before us, the
Tribe sets forth the same arguments it made before the district court.
First, the Tribe asserts that the district court erred in granting sum-
mary judgment to Defendants because the term "approval" merely
_________________________________________________________________
3 Both the County and the State agreed with the City's interpretation of
the term "approval."

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requires compliance with any zoning regulations and other ordinances
regulating bingo establishments enacted by a local county or munici-
pality. Next, the Tribe contends that the definition of the term "ap-
proval" in S.C. Code Ann. § 27-16-110(D) adopted by the district
court renders the statute violative of the Equal Protection Clause, the
Indian Commerce Clause, and the Tenth Amendment. Finally, the
Tribe argues that the district court erred in dismissing the Tribe's
claim for money damages as unripe because the Tribe lost substantial
amounts of income as a result of the City's prohibition of the Tribe's
operation of a bingo establishment authorized by the Settlement Act.

II.

Summary judgment is appropriate if "`the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to a judgment as a matter
of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
Fed. R. Civ. P. 56(c)). Although "[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn in his
favor," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), in
order to survive summary judgment, "[t]he mere existence of a scin-
tilla of evidence in support of the [non-movant's] position will be
insufficient; there must be evidence on which the jury could reason-
ably find for the [non-movant]," id. at 252. We review a grant of sum-
mary judgment de novo. See Higgins v. E.I. DuPont de Nemours &
Co., 863 F.2d 1162, 1167 (4th Cir. 1988). We also exercise de novo
review over a district court's dismissal of a complaint for failure to
meet the constitutional requirement of a "case or controversy," such
as a dismissal for lack of ripeness. See Mobil Oil Corp. v. Attorney
Gen. of Virginia, 940 F.2d 73, 75 (4th Cir. 1991).

We have reviewed the record, briefs, and pertinent case law on this
matter, and we have had the benefit of oral argument. Our careful de
novo review persuades us that the rulings of the district court were
correct. Accordingly, we affirm the judgments of the district court.
See Catawba Indian Tribe of South Carolina v. City of North Myrtle

6
Beach, No. CA-97-3000-4-22 (D.S.C. Dec. 30, 1998 & July 30,
1999).

AFFIRMED

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