State of Idaho v. Coeur D'Alene Tribe

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF IDAHO, a sovereign State No. 14-35753
of the United States,
Plaintiff-Appellee, D.C. No.
2:14-cv-00170-
v. BLW

COEUR D’ALENE TRIBE, a federally
recognized Indian tribe, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted
April 6, 2015—Seattle, Washington

Filed July 22, 2015

Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Hawkins
2 STATE OF IDAHO V. COEUR D’ALENE TRIBE

SUMMARY*

Indian Gaming Regulatory Act / Preliminary
Injunction

The panel affirmed (1) the district court’s denial of a
motion to dismiss the State of Idaho’s action alleging that the
Coeur d’Alene Tribe’s offering of Texas Hold’em poker
violated a Tribal-State Gaming Compact entered into under
the Indian Gaming Regulatory Act, and (2) the district court’s
grant of a preliminary injunction.

The panel held that IGRA severed tribal sovereign
immunity because Texas Hold’em was explicitly prohibited
by Idaho law and therefore was “Class III” gaming under
25 U.S.C. § 2710(d)(7)(A)(ii). The panel rejected the
argument that IGRA did not abrogate tribal immunity because
the Compact encompassed only a subset of Class III gaming.

The panel held that venue was proper because the
Compact permitted litigation as well as arbitration of
disputes.

The panel concluded that its immunity analysis
determined that Idaho was likely to succeed on the merits.
The district court did not err in determining that the State
would likely suffer irreparable harm to its economic and
public policy interests if the Tribe were not enjoined from
offering Texas Hold’em in violation of IGRA and the
Compact. The district court did not err in finding that the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 3

balance of hardships tipped decidedly in the State’s favor and
that the public interest supported granting injunctive relief.
Accordingly, the panel affirmed the district court’s order
preliminarily enjoining the Tribe from offering Texas
Hold’em.

COUNSEL

Joseph H. Webster (argued) and F. Michael Willis, Hobbs,
Straus, Dean & Walker, LLP, Washington, D.C.; Howard
Funke and Kinzo Mihara, Howard Funke & Associates, PC,
Coeur d’Alene, Idaho, for Defendant-Appellant.

Hon. Lawrence G. Wasden, Attorney General, Steven L.
Olsen, Chief of Civil Litigation, Clay R. Smith (argued) and
Tim A. Davis, Deputy Attorneys General, Boise, Idaho; Cally
A. Younger, Office of the Governor, Boise, Idaho, for
Plaintiff-Appellee.

Scott D. Crowell and Bruce Didesch, Crowell Law Offices,
Tribal Advocacy Group, Sedona, Arizona; William Bacon,
Office of the Reservation Attorney, Shoshone-Bannock
Tribes, General Counsel, Fort Hall, Idaho, for Amicus Curiae
Shoshone-Bannock Tribes.
4 STATE OF IDAHO V. COEUR D’ALENE TRIBE

OPINION

HAWKINS, Circuit Judge:

The Coeur d’Alene Tribe (“Tribe”) appeals the
preliminary injunction prohibiting the Tribe from offering
Texas Hold’em (“Hold’em”) poker. The Tribe argues that
tribal sovereign immunity was not abrogated and that venue
was improper under the terms of the Tribal-State Gaming
Compact (“Compact”). We affirm because the Indian
Gaming Regulatory Act (“IGRA”) severed tribal immunity
and the Compact did not bar the litigation. Lastly, we affirm
the grant of injunctive relief because the district court’s
findings were not clearly erroneous.

FACTUAL AND PROCEDURAL BACKGROUND

As this appeal hinges on the regulation of Indian gaming,
we begin with a brief introduction to the IGRA. Congress
passed the IGRA in 1988 “in order to provide a statutory
basis for the operation and regulation of gaming by Indian
tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48
(1996). “The Act divides gaming on Indian lands into three
classes—I, II, and III—and provides a different regulatory
scheme for each class.” Id. “Non-banking” card games
(including poker) can be either Class II or Class III gaming,
depending on the laws of the state in which the gaming takes
place.1 See 25 U.S.C. § 2703.

1
Banking card games are those in which the casino participates “in the
game, where the house takes on all players, collects from all losers, and
pays all winners, and the house can win.” 25 C.F.R. § 502.11. For
instance, blackjack is a banked game. See 25 U.S.C. § 2703(7)(B)(i).
Poker, where players face off against each other, is the prototypical
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 5

Non-banking card games are Class II if they “are
explicitly authorized by the laws of the State, or are not
explicitly prohibited by the laws of the State and are played
at any location in the State.” Id. § 2703(7)(A)(ii). Class III
gaming is a residual category that consists of “all forms of
gaming that are not class I gaming or class II gaming,”
§ 2703(8), and is “the most heavily regulated of the three
classes.” Seminole Tribe, 517 U.S. at 48. Such gaming “is
lawful only where it is . . . conducted in conformance with a
Tribal–State compact.” Id. at 48–49 (quoting 25 U.S.C.
§ 2710(d)(1)).

Several years after Congress enacted the IGRA, the State
and Tribe executed a Compact authorizing the Tribe to offer
Class III gaming. The parties failed to reach accord on the
scope of gaming allowed by Idaho law. The State argued that
Idaho law only permitted the state lottery and parimutuel
betting, while the Tribe countered that it allowed “all games
that contain the elements of chance and or skill, prize and
consideration.” The Compact authorized the parties to seek
a declaratory judgment to resolve the dispute.

The Tribe filed suit in federal court in pursuit of such a
declaration. The district court held on summary judgment
that Idaho law only allowed “a lottery and parimutuel
betting” and that “Idaho law and public policy clearly
prohibit all other forms of Class III gaming, including the
casino gambling activities which the Tribes have sought to
include in compact negotiations with the State.” Coeur
d’Alene Tribe v. Idaho, 842 F. Supp. 1268, 1283 (D. Idaho

non-banked game. See National Indian Gaming Commission (“NIGC”)
Bulletin No. 95-1 (Apr. 10, 1995).
6 STATE OF IDAHO V. COEUR D’ALENE TRIBE

1994) (“Coeur d’Alene I”). The Ninth Circuit affirmed.
Coeur d’Alene Tribe v. Idaho, 51 F.3d 876 (9th Cir. 1995).

In March 2014, Idaho officials learned that the Tribe
intended to offer Hold’em at the Coeur d’Alene Casino.
Shortly after providing notice of non-compliance, the State
filed a complaint and moved for a temporary restraining order
and a preliminary injunction. The Tribe moved to dismiss
pursuant to Rules 12(b)(1), (3), & (6), arguing that tribal
sovereign immunity applies and that venue was improper.

The district court denied the motion for injunctive relief
as moot, granted the Tribe’s request to compel arbitration,
stayed the litigation, and directed the parties to file a joint
status report, concluding that the Compact prohibited the
State from litigating at that juncture. The court “refrain[ed]
from rendering an opinion” as to whether the parties could
litigate the dispute if neither party invoked arbitration.

The joint status report informed the court that neither
party had invoked arbitration and asked the court to decide
the pending motion to dismiss. The court denied the motion
to dismiss and granted a preliminary injunction, determining
that the Tribe had elected to pursue litigation. The court
concluded that the statute abrogated tribal immunity, and
determined that an injunction was warranted because the
State otherwise lacked effective remedies and the continued
offering of unlawful gaming would cause irreparable harm.
The Tribe filed timely notice of appeal.

JURISDICTION AND STANDARD OF REVIEW

“The general federal-question statute, 28 U.S.C. § 1331,
gives a district court subject matter jurisdiction to decide any
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 7

claim alleging a violation of IGRA.” Michigan v. Bay Mills
Indian Cmty., 134 S. Ct. 2024, 2029 n.2 (2014). The court
had jurisdiction pursuant to § 1331 because Idaho alleged a
violation of the IGRA. See Oklahoma v. Hobia, 775 F.3d
1204, 1213 (10th Cir. 2014).2

The existence of sovereign immunity is a question of law
reviewed de novo. See Allen v. Gold Country Casino, 464
F.3d 1044, 1046 (9th Cir. 2006). The classification of Texas
Hold’em hinges on statutory interpretation, which is also
reviewed de novo, see Schleining v. Thomas, 642 F.3d 1242,
1246 (9th Cir. 2011), as is the district court’s venue ruling.
Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d
1124, 1127 (9th Cir. 2010).

A preliminary injunction ruling “is subject to limited
appellate review, and we will reverse only if the district court
‘abused its discretion or based its decision on an erroneous
legal standard or on clearly erroneous findings of fact.’”
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d
782, 793 (9th Cir. 2005) (quoting United States v. Peninsula
Commc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002)).

2
The district court merged the jurisdiction and immunity inquiries,
asserting jurisdiction because § 2710(d)(7)(A)(ii) was satisfied. Bay Mills
instructs that analyzing § 2710(d)(7)(A)(ii) in jurisdictional terms is
“wrong” and that “[n]othing in § 2710(d)(7)(A)(ii) or any other provision
of IGRA limits [1331’s] grant of jurisdiction (although those provisions
may indicate that a party has no statutory right of action).” 134 S. Ct. at
2029 n.2. The district court should have asserted jurisdiction based on
Bay Mills’ analysis of § 1331.
8 STATE OF IDAHO V. COEUR D’ALENE TRIBE

ANALYSIS

I. Tribal Sovereign Immunity

An Indian tribe is subject to suit only when Congress has
abrogated the tribe’s sovereign immunity by statute or when
the tribe has waived its immunity. Kiowa Tribe of Okla. v.
Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). To abrogate
immunity by statute, Congress must unequivocally express its
intent to do so. See C & L Enters., Inc. v. Citizen Band
Potawatomi Tribe of Okla., 532 U.S. 411, 418 (2001).

The relevant federal statute provides that “district courts
shall have jurisdiction over . . . any cause of action initiated
by a State or Indian tribe to enjoin a class III gaming activity
located on Indian lands and conducted in violation of any
Tribal-State compact. . . .” 25 U.S.C. § 2710(d)(7)(A)(ii). In
order to abrogate immunity, all of the statute’s “textual
prerequisites must be met.” Michigan v. Bay Mills Indian
Cmty., 695 F.3d 406, 414 (6th Cir. 2012), aff’d and
remanded, 134 S. Ct. 2024 (2014).

In Bay Mills, the statute did not abrogate immunity
because the conduct Michigan sought to enjoin was not
located on Indian land and was not Class III gaming. 134 S.
Ct. at 2032–34. Likewise, the Tribe contends here that the
statute does not abrogate immunity because Hold’em is Class
II gaming and the Compact does not address it. Thus, the
immunity inquiry necessarily requires the determination of
whether Hold’em qualifies as Class III gaming.
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 9

A. Classification of Texas Hold’em

As discussed supra, non-banking card games are Class II
gaming if they are either “explicitly authorized by the laws of
the State” or “are not explicitly prohibited by the laws of the
State and are played at any location in the State.”
§ 2703(7)(A)(ii). The district court properly determined that
Hold’em is not a Class II game because the Idaho
Constitution and gaming statute explicitly prohibit poker.3

The Idaho Constitution provides that “[g]ambling is
contrary to public policy and is strictly prohibited. . . .” ID.
CONST. art. III, § 20. The constitution contains three
exceptions for the lottery, parimutuel betting, and bingo and
raffle charity games but reaffirms that the exceptions may not
“employ any form of casino gambling including, but not
limited to . . . poker.” Id. The enabling statute specifically
prohibits poker by defining gambling as “risking any money,
credit, deposit or other thing of value for gain contingent in
whole or in part upon lot, chance, . . . or the happening or
outcome of an event, . . . including, but not limited to,
blackjack, craps, roulette, poker.” IDAHO CODE § 18-
3801(1); see also § 3802 (gambling is a misdemeanor).
Hold’em can only be Class II gaming if an exception in Idaho
law applies.4

3
The parties do not dispute that Texas Hold’em is a type of poker.
4
The canon of statutory interpretation that ambiguities in federal statutes
enacted to benefit Indians should be resolved in their favor, Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985), does not apply here
because Idaho law is at issue and, regardless, the statute is unambiguous.
10 STATE OF IDAHO V. COEUR D’ALENE TRIBE

The Tribe’s interpretations of Idaho law are not
persuasive. Though skill undoubtedly plays a role in
Hold’em,5 the game does not qualify for the statutory
exemption for bona fide contests of skill, speed, strength or
endurance. See IDAHO CODE § 18-3801. A contrary reading
would impermissibly place the statute in conflict with the
constitution’s prohibition on poker. See Bingham Cnty. v.
Idaho Comm’n for Reapportionment, 55 P.3d 863, 867 (Idaho
2002) (“[I]f the State Constitution and a statute conflict, the
State Constitutional provision prevails.”).6

The Tribe’s interpretation would also force the specific
prohibition on poker to yield to a general exception for
“contests of skill.” See Morton v. Mancari, 417 U.S. 535,
550–51 (1974) (weighting the general in favor of the specific
is impermissible, unless the drafters clearly intended the
effect). The Tribe does not show that the legislature intended
this effect.

Nor does the “promotional contests” exception authorize
Hold’em. In a handful of clearly distinguishable cases, courts
have determined that gaming statutes permitting casino nights
for charitable purposes establish that gaming is “explicitly
authorized by the laws of the State” and that a Tribe may thus

5
See, e.g., Steven D. Levitt, Thomas J. Miles & Andrew M. Rosenfield,
Is Texas Hold’Em A Game of Chance? A Legal and Economic Analysis,
101 GEO. L.J. 581, 585 (2013).
6
Reading the statutory exception as permitting skill-intensive poker
would produce the absurd result of giving a statute enabling a strict
constitutional prohibition on gambling the effect of permitting it,
depending on the level of skill involved in the game. “The Court
disfavors constructions that would lead to absurd . . . results.” State v.
Doe, 92 P.3d 521, 525 (Idaho 2004).
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 11

offer those games. See, e.g., N. Arapaho Tribe v. Wyoming,
389 F.3d 1308, 1312–13 (10th Cir. 2004); Mashantucket
Pequot Tribe v. Connecticut, 913 F.2d 1024, 1031–32 (2d
Cir. 1990). Unlike the statutes in Arapaho and Mashantucket,
Idaho law does not permit social or charitable casino gaming.
Rather, it permits “promotional contests and drawings
conducted incidentally to bona fide nongaming business
operations.” IDAHO CODE § 18-3801(4). The exception only
allows contests when “prizes are awarded without [charging]
consideration,” id., a category that does not include Hold’em.

Uneven enforcement of the poker prohibition does not
convert Hold’em into Class II gaming. Whether Hold’em is
“played at any location in the State” is largely irrelevant
because the statute is conjunctive and one of the conditions is
not satisfied. See 25 U.S.C. § 2703(7)(A)(ii) (Class II games
“are not explicitly prohibited by the laws of the State and are
played at any location in the State”) (emphasis added). As
poker is explicitly prohibited, it does not matter whether it is
played in the State. Nor does the exercise of prosecutorial
discretion show that poker is not prohibited by law. See
generally Bland v. Fessler, 88 F.3d 729, 737 (9th Cir. 1996).
Even if desuetude were a valid legal principle, the record
shows that the State enforces the statute and has not
disavowed it.7

7
The passage from Artichoke Joe’s California Grand Casino v. Norton,
353 F.3d 712, 722 (9th Cir. 2003), that “mere tolerance of class III gaming
might be enough to satisfy § 2710(d)(1)(B)’s requirement,” does not
compel a contrary result. Artichoke Joe’s addressed a separate provision
of the IGRA, and is thus not on point. The case, even if it were on point,
does not decide the question. Lastly, the passage is dicta that has never
been adopted as a holding.
12 STATE OF IDAHO V. COEUR D’ALENE TRIBE

B. Violation of the Compact

The Tribe next argues that the statute does not abrogate
tribal sovereign immunity because the Compact only
encompasses a subset of Class III gaming. We affirm
because the Compact comprehensively addresses the full
range of Class III gaming.

As discussed supra, Article 6.2 of the Compact only
permits the lottery, parimutuel betting, and additional games
that “may hereafter be authorized to be conducted in the
State.” The parties disagreed as to the scope of gaming
permitted and agreed to pursue a declaratory judgment, which
Coeur d’Alene I resolved by stating that no other gaming was
permitted in Idaho.

Article 6.5 of the Compact squarely addresses this
contingency in providing that, upon conclusion of the
litigation, “[i]n the event the court(s) determines that no
additional types of games are permitted in Idaho under the
Act, the Tribe’s gaming shall be limited to the gaming
authorized in Article 6.2.” Articles 6.2 and 6.5
comprehensively address which Class III games are permitted
and prohibited.

The Tribe argues that our decision in Cabazon Band of
Mission Indians v. Wilson, 124 F.3d 1050 (9th Cir. 1997),
shows that the Tribe did not violate the Compact. But the
Compact in Cabazon only addressed parimutuel betting. Id.
at 1059. Thus, we determined that slot machines were “not
the subject of a Tribal-State compact.” Id. Here, in contrast,
the Compact covers all Class III gaming. The finding that the
Band did not breach the Compact “[b]ecause the slot
machines . . . are not mentioned,” id. at 1060, does not apply
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 13

where, as here, the Compact establishes that “gaming shall be
limited to the gaming authorized in Article 6.2.”

II. Venue

The Tribe argues that venue was improper because the
Compact provides an exclusive dispute resolution
mechanism. The court did not analyze the arbitration clause,
instead concluding that the Tribe “decided it would prefer to
litigate.” We affirm based on the Compact.8

The Compact permits litigation, provided neither party
has given notice of its intent to pursue arbitration. It provides
“[i]f the dispute is not resolved . . . within sixty days after
service of the notice . . . either party may pursue binding
arbitration to enforce or resolve disputes.” Tribal-State
Gaming Compact at 27 (emphasis added). In contrast, the
Compact contains an exclusive complaint mechanism. Id.
Interpreting the contract “as a whole and every part . . . with
reference to the whole,” Shakey’s Inc. v. Covalt, 704 F.2d
426, 434 (9th Cir. 1983), the Compact contains a mandatory
complaint mechanism and a permissive arbitration
mechanism.

“To be mandatory, a clause must contain language that
clearly designates a forum as the exclusive one.” N.
California Dist. Council of Laborers v. Pittsburg-Des Moines
Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995). The arbitration
clause does not clearly designate an exclusive forum. Rather,
it provides that “both parties consent to binding arbitration as
provided herein.” A clause in which parties consent to

8
The panel may affirm on any basis finding support in the record. See
United States v. Campbell, 291 F.3d 1169, 1172 (9th Cir. 2002).
14 STATE OF IDAHO V. COEUR D’ALENE TRIBE

arbitrate does not constitute a clear designation of an
exclusive forum.

Applying the principle of expressio unius est exclusio
alterius, see Lares v. West One Bank (In re Lares), 188 F.3d
1166, 1169 (9th Cir. 1999) (citing Ace Realty, Inc. v.
Anderson, 682 P.2d 1289, 1296 (Idaho Ct. App. 1984)), the
clause providing arbitral exclusivity in a narrow circumstance
supports the interpretation that litigation is not barred in other
circumstances or in general. The Compact states that “[o]nce
a party has given notice of intent to pursue binding arbitration
. . . the matter in controversy may not be litigated in court.”
The parties could have only logically intended that, absent
such notice, litigation would be permitted. Otherwise, this
clause would be meaningless surplusage, informing the
parties that in addition to always barring litigation, the
Compact also bars it when arbitration is invoked. See Wright
v. Vill. of Wilder, 117 P.2d 1002, 1003 (Idaho 1941) (“[T]he
various provisions of a contract or statute must be so
construed (if possible) as to give force and effect to every part
thereof.”).9

III. Preliminary Injunction

To obtain a preliminary injunction, the moving party
“must establish that: (1) it is likely to succeed on the merits;

9
Although ambiguous arbitration clauses are to be resolved in favor of
coverage, see AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 650 (1986), the rule does not apply here because the arbitration
clause is unambiguous. Furthermore, the rule pertains to disputes about
the scope of arbitration clauses. Here, in contrast, the State and Tribe
concur that the arbitration clause would have applied if either party
invoked it. The parties do not dispute the scope of the clause, but its effect
(whether it provides an exclusive forum).
 STATE OF IDAHO V. COEUR D’ALENE TRIBE 15

(2) it is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in its favor;
and (4) an injunction is in the public interest.” Pom
Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir.
2014) (citing Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008)). The parties do not dispute that our
immunity analysis determines the “success on the merits”
prong.

On the irreparable harm prong, the district court did not
err in determining that the State would likely suffer
irreparable harm to its economic and public policy interests
if the Tribe were not enjoined from offering Hold’em in
violation of IGRA and the Compact. See Kansas v. United
States, 249 F.3d 1213, 1228 (10th Cir. 2001). Purely
economic harms are generally not irreparable, as money lost
may be recovered later, in the ordinary course of litigation.
Sampson v. Murray, 415 U.S. 61, 61–62, 89–92 (1974)
(reversing injunction against firing of probationary
government employee because loss of earnings is not
irreparable harm). But, as the Tribe conceded at argument,
the Tribe’s sovereign immunity likely would bar the State
from recovering monetary damages incurred during the
course of this litigation due to the Tribe’s violation of IGRA
and the Compact. See 25 U.S.C. § 2710(d)(7)(A)(ii)); see
also Wisconsin v. Stockbridge-Munsee Cmty., 67 F. Supp. 2d
990, 1019–20 (E.D. Wis. 1999) (Tribe’s sovereign immunity
limits availability of alternative remedies). The inferences
made by the district court based on the record did not
constitute an abuse of discretion. See Small v. Avanti Health
Sys., LLC, 661 F.3d 1180, 1195–96 (9th Cir. 2011); see also
Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d
989, 1000 (9th Cir. 2011) (suggesting that reviewing court
may evaluate arguments presented on appeal).
16 STATE OF IDAHO V. COEUR D’ALENE TRIBE

Similarly, the district court did not err in finding that the
balance of hardships tipped decidedly in the State’s favor and
that the public interest supported granting injunctive relief.
Allowing the Tribe to continue to offer Hold’em would
permit ongoing violations of the Compact and federal law. In
contrast, the primary public interest that would be served by
denying the motion for injunctive relief—the economic
benefits to be gained by offering Hold’em—would only
accrue by permitting unlawful gaming.

CONCLUSION

We affirm the district court’s denial of the Tribe’s motion
to dismiss. The district court correctly determined that the
elements of the statute were satisfied, such that the Tribe’s
sovereign immunity was abrogated. We affirm the court’s
venue ruling, although we do so on the basis of the terms of
the Compact. Lastly, we affirm the grant of injunctive relief
because the district court’s findings are supported by the
record.

AFFIRMED.