Pauma Band of Luiseno Misson Indians of the Pauma & Yuima Reservation v. California

FILED
NOT FOR PUBLICATION NOV 30 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

PAUMA BAND OF LUISENO MISSION No. 10-55713
INDIANS OF THE PAUMA & YUIMA
RESERVATION, a federally recognized D.C. No. 3:09-cv-01955-LAB-
Indian Tribe, AKA Pauma Luiseno Band AJB
of Mission Indians, AKA Pauma Band of
Mission Indians,
ORDER *
Plaintiff - Appellee.,

v.

STATE OF CALIFORNIA;
CALIFORNIA GAMBLING CONTROL
COMMISSION, an agency of the State of
California; ARNOLD
SCHWARZENEGGER, as Governor of
the State of California,

Defendants - Appellants.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Argued and Submitted November 2, 2010
Pasadena, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District
Judge.**

This case is remanded to the district court for reconsideration of all four of

the Winter factors (see Winter v. Natural Res. Def. Council, – U.S. –, 129 S.Ct.

365, 374 (2008)), and to re-analyze them in light of our recent decisions in

Alliance for Wild Rockies v. Cottrell, 09-35756, 2010 WL 3665149 (9th Cir. July

28, 2010) (amended Sept. 22, 2010) (articulating a post-Winter “sliding-scale”

test), and Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v.

California, No. 09-16942, 2010 WL 3274490 (9th Cir. Aug. 20, 2010) (altering the

Eastern District Court of California’s interpretation of the IGRA Compact formula

for determining the total number of Class III gaming licenses at issue). If upon

reconsideration the district court determines injunctive relief is warranted, it must

justify any alteration of the status quo. See Tanner Motor Livery, Ltd. v. Avis, Inc.,

316 F.2d 804 (9th Cir. 1963).

Should there be another challenge to the district court’s decision on remand

regarding the propriety of continuing injunctive relief, the district court is directed

to expeditiously proceed to address the merits of the underlying Compact litigation

during the pendency of any further interlocutory appeal. See Britton v. Co-op

**
The Honorable John A. Jarvey, United States District Judge for the
Southern District of Iowa, sitting by designation.

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Banking Grp., 916 F.2d 1405, 1412 (9th Cir. 1990) (“[A]n appeal of an

interlocutory order does not ordinarily deprive the district court of jurisdiction

except with regard to the matters that are the subject of the appeal.”) (citing

Manual for Complex Litigation §§ 25.11, 25.16 (2d Ed.)).

Because this case is remanded to the district court, Appellee’s July 15, 2010,

motion to take judicial notice is denied as moot. The injunction is to stay in effect

pending the district court’s reconsideration. Each party shall bear its own costs.

The panel will retain jurisdiction over any subsequent appeals.

REMANDED.

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