West Flagler Associates, Ltd. v. Haaland

JFUNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WEST FLAGLER ASSOCIATES et al.,

Plaintiffs,

v.
No. 21-cv-2192 (DLF)
DEB HAALAND,
Secretary, U.S. Department of the Interior,
et al.,

Defendants.

MONTERRA MF, LLC et al.,

Plaintiffs,

v.
No. 21-cv-2513 (DLF)
DEB HAALAND,
Secretary, U.S. Department of the Interior,
et al.,
Defendants.

MEMORANDUM OPINION

In August 2021, the Secretary of the Interior approved a gaming compact between the

State of Florida and the Seminole Tribe of Florida. The Compact authorizes the Tribe to offer

online sports betting throughout the State, including to bettors located off tribal lands. In these

related cases, the plaintiffs argue that the Compact violates the Indian Gaming Regulatory Act,

the Unlawful Internet Gambling Enforcement Act, the Wire Act, and the Equal Protection

Clause. They accordingly ask this Court to “set aside” the Secretary’s approval of the Compact

pursuant to the Administrative Procedure Act. 5 U.S.C. § 706(2)(A).
 Before the Court are the plaintiffs’ Motions for Summary Judgment in both the West

Flagler case and the Monterra case, Dkt. 19 (West Flagler), Dkt. 37 (Monterra); the Tribe’s

respective Motions to Intervene, Dkt. 13 (West Flagler), Dkt. 31 (Monterra); and the Secretary’s

respective Motions to Dismiss, Dkt. 25 (West Flagler), Dkt. 35 (Monterra). 1 For the reasons that

follow, the Court will hold that the Compact violates IGRA and grant the West Flagler plaintiffs’

motion for summary judgment. Additionally, the Court will deny the Monterra plaintiffs’

motion as moot, deny the Tribe’s motions, and deny the Secretary’s motions.

I. BACKGROUND

A. Statutory Background

The Indian Gaming Regulation Act (IGRA) “creates a framework for regulating gaming

activity on Indian lands.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 785 (2014). To

that end, the Act divides gaming activities into three classes. See 25 U.S.C §§ 2710(a),

2710(d)(1). Class III gaming, the kind involved here, includes both casino games and sports

betting. See id. §§ 2703(6)–(8); 25 C.F.R. § 502.4(c). To host class III gaming “on Indian

lands,” a tribe must “enter[] into” a compact with the state in which its lands are located. 25

U.S.C. § 2710(d)(1)(C). These compacts “prescribe[] rules for operating gaming, allocate[] law

enforcement authority between the tribe and State, and provide[] remedies for breach of the

agreement’s terms.” Bay Mills, 572 U.S. at 785 (citation omitted). As relevant here, a compact

may take effect only after the Secretary of the Interior has both approved its terms and noticed its

approval in the Federal Register. See 25 U.S.C § 2710(d)(3)(B).

1
The Court resolves these cases together because they challenge the same gaming compact, raise
overlapping questions of law, and seek overlapping forms of relief. For clarity, the Court will
use parentheticals to identify the case name with which each filing is associated.

2
 IGRA closely regulates the Secretary’s review of gaming compacts. To start, it provides

that the Secretary may disapprove a compact “only if [it] violates” another provision of IGRA,

“any other provision of Federal law that does not relate to jurisdiction over gaming on Indian

lands,” or “the trust obligations of the United States to Indians.” Id. § 2710(d)(8)(B). IGRA also

provides that the Secretary must either approve or disapprove each compact within 45 days of

receiving it. See id. § 2710(d)(8)(C). Otherwise, the compact shall “be considered to have been

approved by the Secretary, but only to the extent the compact is consistent with” IGRA. Id. The

D.C. Circuit has squarely held, first, that these default approvals are “reviewable” in federal

court and, second, that the Secretary “must . . . disapprove” unlawful compacts. Amador Cty. v.

Salazar, 640 F.3d 373, 381–83 (D.C. Cir. 2011).

B. Factual Background

This case concerns a class III gaming compact between the State of Florida and the

Seminole Tribe of Florida. See Compl. Ex. A (Compact), Dkt. 1-1 (West Flagler). Before the

Compact took effect, Florida law prohibited wagering on “any trial or contest of skill, speed[,]

power or endurance.” See Fl. Stat. § 849.14 (2020). Although that prohibition contained a

narrow exception for horse racing, dog racing, and jai alai, see id. § 550.155(1), it barred betting

on all major sports, including football, baseball, and basketball, see id. § 849.14; see also State of

Fl. Amicus Br. at 1, 8, Dkt. 28 (West Flagler). The Florida Constitution also limited the

conditions in which the State could expand sports betting going forward. See Fl. Const. art. X,

§ 30(a). Specifically, it provided that the State could only expand such betting through a

“citizens’ initiative,” id. §§ 30(a)–(b), with the caveat that “nothing herein . . . limit[s] the ability

of the state or Native American tribes to negotiate gaming compacts” under IGRA, id. § 30(c).

3
 The compact in this case expanded the Tribe’s ability to host sports betting throughout

the State. In relevant part, the Compact defines “sports betting” to mean “wagering on any past

or future professional sport or athletic event, competition or contest,” Compact § III(CC);

classifies “sports betting” as a “covered game,” id. § III(F); and authorizes the Tribe “to operate

Covered Games on its Indian lands, as defined in [IGRA],” id. § IV(A). The Compact also

provides that all in-state wagers on sporting events “shall be deemed . . . to be exclusively

conducted by the Tribe at its Facilities where the sports book(s) . . . are located,” even those that

are made “using an electronic device” “by a Patron physically located in the State but not on

Indian lands.” Id. § III(CC)(2); see also id. § IV(A) (providing that “wagers on Sports Betting . .

. shall be deemed to take place exclusively where received”). In this manner, the Compact

authorizes online sports betting throughout the State. And because the State has not entered a

similar agreement with any other entity, the Compact grants the Tribe a monopoly over both all

online betting and all wagers on major sporting events. See Tribe’s Mot. to Intervene at 1–3,

Dkt. 13 (West Flagler).

On June 21, 2021, the Secretary of the Interior received a copy of the Compact. See

Compl. Ex. F (Approval Letter) at 1, Dkt. 1-6 (West Flagler). Because the Secretary took no

action on it within forty-five days, see id., she approved the Compact by default on August 5, see

25 U.S.C § 2710(d)(8)(C). The next day, the Secretary explained her no-action decision in a

letter to the Tribe. See generally Approval Letter. The letter reasoned that IGRA allows the

Tribe to offer online sports betting to persons who are not physically located on its tribal lands.

Id. at 6–8. To support that conclusion, the letter noted that IGRA allows states and tribes to

negotiate the “allocation of criminal and civil jurisdiction,” 25 U.S.C. § 2710(d)(3)(c)(i)-(ii),

emphasized that Florida consented to the Compact, and argued that “IGRA should not be an

4
impediment to tribes that seek to modernize their gaming offerings.” Id. at 7. At the same time,

the letter insisted that Florida residents could not place sports bets while “physically located on

another Tribe’s Indian lands.” Id. at 8 & n.14 (emphasis added). To do so, it reasoned, would

violate IGRA’s instruction that gaming is “lawful on Indian lands” only if such gaming is

authorized by the “Indian tribe having jurisdiction over such lands.” Id. (quoting 25 U.S.C.

§ 2710(d)(1)(A)(i)).

On August 11, the Secretary published notice of the Compact in the Federal Register.

See Indian Gaming; Approval by Operation of Law of Tribal-State Class III Gaming Compact,

86 Fed. Reg. 44,037 (Aug. 11, 2021). At that point, the Compact took effect and acquired the

force of law. See 25 U.S.C. § 2710(d)(3)(B). Pursuant to that Compact, as well as a Florida

statute that implements its terms, see Fl. Stat. § 285.710(13)(b), online sports betting is now

available in Florida. Although the Tribe initially represented that it would not offer such betting

until November 15, see Pls.’ Mot. for Summ. J. Ex. C (Savin Decl.) ¶ 23, Dkt. 19-3 (West

Flagler), it in fact launched online betting on November 1, see Pls.’ Notice of Material Factual

Development at 1 & Ex. A, Dkt. 39 (West Flagler).

C. Procedural History

On August 16, plaintiffs West Flagler Associates and Bonita-Fort Myers Corporation

brought a civil action to challenge the Secretary’s approval of the Compact. See West Flagler

Compl. Both entities own brick-and-mortar casinos in Florida. See Savin Decl. ¶¶ 3, 15. To

establish Article III standing, they allege that the Compact’s allowance for online betting will

divert business from their facilities. See id. ¶¶ 25–29. On the merits, they argue that the

Compact’s authorization of online betting violates IGRA, the Unlawful Internet Gambling

Enforcement Act (UIGEA), the Wire Act, and the Equal Protection Clause. See Compl. ¶¶ 124–

5
28; Pls.’ Mot. for Summ. J. at 18–38, Dkt. 19 (West Flagler). Of these, their leading argument is

that the Compact violates IGRA because it authorizes class III gambling outside of “Indian

lands.” Pls.’ Mot. for Summ. J. at 18 (quoting 25 U.S.C. § 2710(d)(8)(A)).

On September 17, the Tribe moved to intervene for the limited purpose of filing a motion

to dismiss. See Tribe’s Mot. to Intervene, Dkt. 13 (West Flagler). The Tribe argues that it may

intervene as of right because it has an economic interest in the Compact and because the

Secretary will not adequately protect that interest. See id. at 9–13; see also Fed. R. Civ. P. 24(a).

The Tribe further argues that it is an indispensable party to this litigation, see Fed. R. Civ. P. 19,

but that its sovereign immunity prevents its joinder. See Tribe’s Proposed Mot. to Dismiss at 4–

11, Dkt. 13-4 (West Flagler). Finally, the Tribe argues that filing its motion to intervene did not

waive its sovereign immunity. See id. at 5–6. To the contrary, it argues that “limited

intervention [is] an appropriate mechanism through which parties may file motions to dismiss

under Rule 19 . . . based on sovereign immunity.” Tribe’s Mot. to Intervene at 5. See also

Tribe’s Mot. to Intervene, Dkt. 31, and Proposed Mot. to Dismiss, Dkt. 31-4 (raising the same

argument in the Monterra litigation).

On September 27, Monterra MF and its co-plaintiffs filed a separate challenge to the

Secretary’s approval. See Compl., Dkt. 1 (Monterra). All but one of these co-plaintiffs live,

work, or own property near Florida casinos. See id. ¶¶ 22–29. The remaining plaintiff, No

Casinos, is a nonprofit organization that opposes the expansion of gambling in Florida. See id.

¶ 30. To establish Article III standing, these plaintiffs allege that the expansion of gambling in

Florida will increase neighborhood traffic, increase criminal activity, and reduce their property

values. See Pls.’ Mem. in Supp. of Mot. for Summ. J. at 12, Dkt. 37-4 (Monterra). On the

merits, they join the West Flagler plaintiffs in arguing that the Compact’s online gambling rules

6
violate IGRA, UIGEA, and the Wire Act. See id. at 15–23. They also argue that the Compact’s

expansion of in-person gambling violates both the Florida Constitution and a separate provision

of IGRA, which conditions the lawfulness of class III gaming on whether the state “permits such

gaming for any purpose by any person, organization, or entity,” 25 U.S.C. § 2710(d)(1)(B). See

id. at 23–28.

The West Flagler plaintiffs moved for summary judgment on September 21. Dkt. 19

(West Flagler). The Monterra plaintiffs followed suit on October 15. Dkt. 35 (Monterra). The

Secretary then moved to dismiss both plaintiffs’ cases for lack of standing. See Gov’t’s Mot. to

Dismiss at 8–17, Dkt. 25 (West Flagler); Gov’t’s Mot. to Dismiss at 8–15, Dkt. 35 (Monterra).

The Secretary also argued that the plaintiffs failed to state a claim under IGRA, that IGRA does

not require her to consider questions of state law, and that West Flagler’s constitutional argument

fails. See Gov’t’s Mot. at 17–31 (West Flagler); Gov’t’s Mot. at 15–19 (Monterra). The

Secretary did not, however, address whether the online gaming contemplated by the Compact

occurs on or off “Indian lands,” 25 U.S.C. § 2710(d)(8)(A).

On November 5, the Court held a hearing on the above motions. 2 The cases are now ripe

for review.

II. LEGAL STANDARD

A court grants summary judgment if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A

2
At the hearing, government counsel was unable to take a position on the location of online
gaming under the Compact. See Rough Hr’g Tr. at 51–53. The Court thus directed counsel to
file a supplemental brief on the merits on or before November 9. See Min. Order of Nov. 5,
2021. Counsel has since done so. See Dkt. 40–41 (West Flagler); Dkt. 52–53 (Monterra).

7
“material” fact is one with potential to change the substantive outcome of the litigation. See

Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A

dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for

the nonmoving party. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895.

In an Administrative Procedure Act case, summary judgment “serves as the mechanism

for deciding, as a matter of law, whether the agency action is supported by the administrative

record and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459

F. Supp. 2d 76, 90 (D.D.C. 2006). The Court will “hold unlawful and set aside” agency action

that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5

U.S.C. § 706(2)(A), “in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right,” id. § 706(2)(C), or “unsupported by substantial evidence,” id. § 706(2)(E).

III. ANALYSIS

A. West Flagler Has Article III Standing

Before reaching the merits of either action, this Court must first determine whether at

least one plaintiff has Article III standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94–95 (1998). To establish standing, a plaintiff must demonstrate that he has suffered an

“injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and

citations omitted). The plaintiff must also establish that there is “a causal connection between

the injury and the conduct complained of” and that it is “likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Id. at 560–61 (internal quotation

marks and citation omitted). Each of these elements “must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof.” Id. at 561. As such, at the

8
summary judgment stage, a plaintiff “can no longer rest on such mere allegations, but must set

forth by affidavit or other evidence specific facts, which for purposes of the summary judgment

motion will be taken to be true.” Id. (internal quotation marks and citation omitted).

Under the “basic law of economics,” New World Radio, Inc. v. FCC, 294 F.3d 164, 172

(D.C. Cir. 2002) (citation omitted), an “actual or imminent increase in competition” establishes

an injury in fact, Am. Inst. of Certified Pub. Accts. v. IRS, 804 F.3d 1193, 1197 (D.C. Cir. 2015).

Litigants accordingly suffer an injury “when agencies lift regulatory restrictions on their

competitors or otherwise allow increased competition against them.” Sherley v. Sebelius, 610

F.3d 69, 72 (D.C. Cir. 2010) (internal quotation marks and citation omitted). Because “a loss of

even a small amount of money is ordinarily an injury,” Czyzewski v. Jevic Holding Corp., 137 S.

Ct. 973, 983 (2017), any increase in competition suffices to establish Article III standing, see

Ipsen Biopharmaceuticals, Inc. v. Becerra, 2021 WL 4399531, at *8 (D.D.C. Sept. 24, 2021)

(citation omitted).

Here, West Flagler alleges that the Compact “will divert business that would have been

spent at [its facilities] and cause it to be spent on online sports gaming offered by the Tribe.”

Savin Decl. ¶ 25. In its view, this diversion will occur because some customers “will prefer the

ease of online gaming” to gaming in-person at West Flagler’s casino. Id. That prediction is

reasonable and hardly “speculative.” Lujan, 504 U.S. at 561. Indeed, West Flagler surveyed its

patrons to prove that very point. See West Flagler Mot. for Summ. J. Ex. D (Chavez Decl.), Dkt.

19-4. The survey found that between ten and fifteen percent of those patrons would “wager

online and shift a non-zero amount of their current gambling spending away from” games West

Flagler currently offers. Id. at 10. The survey further explained that the above percentage rests

on “conservative” assumptions and “likely understates the full universe of individuals whose

9
behavior would change.” Id. at 11. Without discussing those assumptions in detail, the Court

reads the survey to show a substantial probability that authorizing online gambling has caused

West Flagler some competitive injury.

The Secretary’s objections to standing do not persuade.

First, West Flagler’s survey supports its bottom-line conclusion. Although the Secretary

challenges the survey’s methodology, see Gov’t’s Mot. at 10–15 (West Flagler), West Flagler

retained an expert to both design the survey’s approach and defend it in exacting detail, see

Chavez Decl. at 3–7. Many of the Secretary’s objections to that approach lack any merit. 3 And

even if they had merit, each of them concerns only to the “magnitude” of West Flagler’s

competitive injury, “which has no bearing on whether it [] established Article III standing.”

Ipsen Biopharmaceuticals, 2021 WL 4399531, at *8 (citing Czyzewski, 137 S. Ct. at 983). In

other words, even if the survey sampled an unrepresentative segment of the casino’s patrons, see

Gov’t’s Mot. to Dismiss at 11 n.6, it still shows that at least one of those patrons will divert some

of his gambling spend to online sports betting. That “loss of even a small amount of money” is

enough for competitive standing. Czyzewski, 137 S. Ct. at 983.

Second, West Flagler’s injury does not “depend[] on [its] own business decisions.” See

Gov’t’s Mot. to Dismiss at 15. It is true that West Flagler could offer sports betting in its casino

by partnering with the Tribe. See id. But West Flagler has shown a substantial probability that

this partnership would leave it less profitable than it was before. See Savin Decl. ¶¶ 34–38.

3
For instance, the Secretary challenges the inference, from a respondent’s answer that he would
“open an online sports wagering account,” Chavez Decl. at 9, that he would “actually place bets
online,” Gov’t’s Mot. at 13 (emphasis in original). But placing bets online is the obvious
purpose of opening an online betting account. And nothing in the requirement of an “imminent”
injury, as described in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), requires
ignoring this common-sense connection.

10
Under the partnership, the Tribe would place sports-betting kiosks in West Flagler’s casino and

receive up to 40% of the revenue that the kiosks generate. See Compact § III(CC)(3)–(4); Savin

Decl. ¶ 36. That arrangement would both require substantial upfront investments and

substantially decrease the average, long-term yield from the games West Flagler offers. See

Savin. Decl. ¶¶ 34, 36–37. For those reasons, forcing West Flagler to choose between entering

the partnership and losing further competitive ground is itself an injury. That injury is amplified

by the Secretary’s earlier suggestion that this kind of partnership may independently violate

IGRA. 4 See Approval Letter at 11–12. And in any event, even if West Flagler could offer in-

person sports betting on the same terms as the Tribe, its inability to host online sports betting

would still create a competitive injury. See supra.

For the reasons above, the Court finds that West Flagler has adequately established a

competitive injury. It also finds that this injury was both caused by the conduct challenged in

this action and redressable by a favorable decision on the merits. See Lujan, 504 U.S. at 560–61.

On that first point, there is a “causal connection” between West Flagler’s injury and the

Secretary’s approval of the gaming Compact, id., without which the Tribe could not offer online

sports betting, 25 U.S.C. § 2710(d)(1)(C). And on the second, setting aside the Secretary’s

approval would prevent the Tribe from offering such betting, at least under the current Compact.

Because that result would fully redress West Flagler’s injury, West Flagler has Article III

standing. See Lujan, 504 U.S. at 560–61.

This Court need not address whether the other plaintiffs in these actions have standing.

4
The Secretary suggested that this kind of partnership may violate 25 U.S.C. § 2710(b)(2)(A) by
giving non-Indian entities a proprietary interest in Indian gaming. See Approval Letter at 11–12.
The Secretary never addresses the tension between encouraging West Flagler to enter such a
partnership in this litigation and advising that such partnerships are unlawful elsewhere.

11
As a general matter, “the presence of one party with standing is sufficient to satisfy Article III’s

case-or-controversy requirement.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S.

47, 52 n.2 (2006). Although the West Flagler and Monterra suits raise different claims, they

seek the same relief—principally, the vacatur of the Secretary’s default approval. See Compl. at

42 (West Flagler); Compl. at 37, Dkt. 1 (Monterra). And because the Court will grant that relief

in the West Flagler action, it has no occasion to consider the separate arguments in the Monterra

filing, let alone whether the Monterra plaintiffs independently have Article III standing. See

Louie v. Dickson, 964 F.3d 50, 55 (D.C. Cir. 2020) (noting that a case is moot when a court

“cannot grant any relief beyond that already afforded”).

B. The Tribe Is Not an Indispensable Party

Next, the Court must resolve the Tribe’s motion to intervene, see Dkt. 13, and motion to

dismiss, see Dkt. 13-4. As both parties acknowledge, federal courts disagree on whether a

sovereign may intervene in an action while preserving its sovereign immunity. Compare, e.g.,

Cnty. Sec. Agency v. Ohio Dep’t of Com., 296 F.3d 477, 483 (6th Cir. 2002) (holding that “a

motion to intervene is fundamentally incompatible with an objection to personal jurisdiction”),

with MGM Glob. Resorts Dev., LLC v. DOI, 2020 WL 5545496, at *5–6 (D.D.C. Sept. 16, 2020)

(declining to adopt an “‘all or nothing’ approach to intervention”). At the same time, controlling

precedent makes clear that courts may address whether a person is required in or indispensable to

an action sua sponte. See Republic of Philippines v. Pimentel, 553 U.S. 851, 861 (2008) (“A

court with proper jurisdiction may also consider sua sponte the absence of a required person and

dismiss for failure to join.”); see also Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788

F.2d 765, 772 n.6 (D.C. Cir. 1986) (finding an “independent duty to raise” an “indispensable

party claim” based on tribal immunity). In this case, the Tribe moves to intervene solely to argue

12
for dismissal on the ground that it is a required and indispensable party. Accordingly, to

conserve judicial resources, the Court will exercise its discretion to decide whether the Tribe is a

required and indispensable party before resolving its motion to intervene.

The Federal Rules of Civil Procedure require joining each person that has “an interest

relating to the subject of the action” if that person is subject to suit and if “disposing of the action

in [his] absence” might “impede the person’s ability to protect the interest.” Fed. R. Civ. P.

19(a)(1)(B)(i). The Tribe is a “required party,” in this respect, because it “has an interest in the

validity of [its] compact . . ., and [its] interest would be directly affected by the relief that [West

Flagler] seeks.” Kickapoo Tribe of Indians of Kickapoo Rsrv. in Kansas v. Babbitt, 43 F.3d

1491, 1495 (D.C. Cir. 1995). The Federal Rules further provide that, if a required party “cannot

be joined,” the court must “determine whether, in equity and good conscience, the action . . .

should be dismissed.” Fed. R. Civ. P. 19(b). In this case, the Tribe cannot be joined because it

“enjoys sovereign immunity.” Kickapoo Tribe, 43 F.3d at 1495; see Bay Mills Indian Cmty., 572

U.S. at 788 (noting that tribes possess “common-law immunity from suit traditionally enjoyed by

sovereign powers” (citation omitted)). Accordingly, to determine whether this action “should be

dismissed,” the Court must determine whether “equity and good conscience” permit the action to

proceed in the Tribe’s absence. Fed. R. Civ. P. 19(b).

Federal Rule 19(b) lists four factors that bear on whether a party is indispensable. See

Fed. R. Civ. P. 19(b). They are, first, “the extent to which a judgment rendered in the person’s

absence might prejudice that person or the existing parties;” second, “the extent to which any

prejudice could be lessened or avoided;” third, “whether a judgment rendered in the person’s

absence would be adequate;” and fourth, “whether the plaintiff would have an adequate remedy

if the action were dismissed for nonjoinder.” Id. Although the Federal Rules present these

13
factors as non-exclusive, the D.C. Circuit has held that “there is very little room for balancing of

other factors” where a necessary party is immune from suit. Kickapoo Tribe, 43 F.3d at 1496.

Beginning with the first factor, resolving this case in the present posture would not

prejudice the Tribe. See Fed. R. Civ. P. 19(b)(1)–(2). Although the Tribe argues that this case

implicates its sovereign immunity, see Proposed Mot. to Dismiss at 8–9, the Tribe is not a party

to this case, and the plaintiffs make no attempt to bind either the Tribe or its agents. See

Wuterich v. Murtha, 562 F.3d 375, 386 (D.C. Cir. 2009) (“[S]overeign immunity is an immunity

from suit.”); see also Mowrer v. DOT, 14 F.4th 723, 741–43 (D.C. Cir. 2021) (Katsas, J.,

concurring) (explaining that sovereign immunity is “effectively a rule of personal jurisdiction”).

Further, unlike in Republic of Philippines v. Pimentel, this case does not resolve the ownership of

any asset to which the Tribe has a “nonfrivolous, substantive claim,” which would indirectly

violate the Tribe’s immunity. 553 U.S. at 868–69. Instead, the plaintiffs challenge a decision

that IGRA commits to the Secretary and for which that statute provides “law to apply” in federal

court, Amador Cty., 640 F.3d at 381 (citing 25 U.S.C. § 2710(d)(8)(C)). In these circumstances,

holding that the federal government erred in applying federal law would fully respect the Tribe’s

sovereign immunity.

Moreover, although the Tribe has a financial interest in the Compact, it is unclear how

proceeding in its absence would harm that interest. The first factor in Rule 19(b) asks whether a

party suffers prejudice from the fact that an adverse decision is “rendered in [its] absence,” not

simply from the fact that a decision is adverse. Fed. R. Civ. P. 19(b)(1); see also Fed. R. Civ. P.

19(a)(1)(B)(i) (similarly asking whether “a person’s absence may . . . impair or impede [his]

ability to protect [an] interest”). Here, the Tribe’s absence is not prejudicial because both the

Secretary and the State of Florida have defended the Compact on its merits. See Gov’t’s Mot. to

14
Dismiss at 17–31; Fl. Amicus Br., Dkt. 28; Gov’t’s Suppl. Memo, Dkt. 41 (all West Flagler).

The Secretary and the State share the Tribe’s position on the key issue in this case—i.e., that the

Compact is consistent with IGRA. The Tribe never identifies how its litigation interests differ

from those of the other sovereigns. See Tribe’s Reply in Supp. of Mot. to Intervene at 11–13,

Dkt. 24 (West Flagler). And although the Tribe asks this Court to simply assume that their

interests conflict, see id. at 11, its request is inconsistent with applying Rule 19(b) based on

“practical considerations in the context of particular litigation,” as controlling precedent requires,

Kickapoo Tribe, 43 F.3d at 1495 (citation omitted). In these circumstances, where there is “no

conflict . . . between the Secretary’s interest and the interest of the nonparty Tribe[],” the D.C.

Circuit has held that the Secretary may “adequately represent” the Tribe’s interests. 5 Ramah

Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1351 (D.C. Cir. 1996); see also Sac & Fox Nation

of Missouri v. Norton, 240 F.3d 1250, 1259 (10th Cir. 2001) (finding that the potential prejudice

to a tribe’s interest was reduced by “the presence of the Secretary as a party defendant” with

“virtually identical” interests). The Court thus finds that the first Rule 19(b) factor favors

permitting this litigation to proceed.

The second Rule 19(b) factor does not alter this analysis. Having found that the extent of

any prejudice to the Tribe does not warrant dismissal, it makes little sense to ask whether

“protective provisions in [this Court’s] judgment” or “shaping [its] relief” would lessen that

5
The Tribe cites Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir.
2015), to argue that courts “look skeptically on government entities serving as adequate
advocates for private parties.” Id. at 321; see Tribe’s Proposed Mot. to Dismiss at 3–4. But
Crossroads noted that skepticism in explaining why an absent party could intervene under
Federal Rule of Civil Procedure 24(a), which is allowed more liberally than dismissal under Rule
19(b). See id. (noting that the adequacy requirement in Rule 24(a) is “not onerous” and that
movants “ordinarily should be allowed to intervene unless it is clear that the party will provide
adequate representation”).

15
prejudice. Fed. R. Civ. P. 19(b)(2). The ability to minimize prejudice, in other words, bears on

indispensability only when there is prejudice to be minimized.

Moreover, because the Court can issue an “adequate” judgment in the Tribe’s absence,

the third Rule 19(b) factor also favors allowing this action to proceed. Fed. R. Civ. P. 19(b)(3).

As used in this context, “adequacy refers to the public stake in settling disputes by wholes,

whenever possible.” Pimentel, 553 U.S. at 870 (quoting Provident Tradesmens Bank & Tr. Co.

v. Patterson, 390 U.S. 102, 111 (1968)). The adequacy requirement thus furthers the “social

interest in the efficient administration of justice and the avoidance of multiple litigation.” Id.

(quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 738 (1977)). Here, the West Flagler

plaintiffs challenge an action by the Secretary and obtaining relief against the Secretary would

fully redress their injury. Those plaintiffs have indicated no interest in suing the Tribe, and the

Tribe’s sovereign immunity would block most efforts to that effect, see Bay Mills, 572 U.S. at

788–89. Accordingly, there is no possibility that the failure to join the Tribe would produce

“multiple litigation.” Pimentel, 553 U.S. at 870 (citation omitted).

Finally, because the plaintiffs would have no “adequate remedy if the action were

dismissed for nonjoinder,” the fourth Rule 19(b) factor also favors proceeding. Fed. R. Civ. P.

19(b)(4). Dismissing this suit would not allow the plaintiffs to proceed in an alternate forum, for

example, after curing a defect in personal jurisdiction. To the contrary, holding that the Tribe is

indispensable in this case, where the Tribe has made no particularized showing of prejudice,

would require treating tribes as indispensable in every case that challenges the Secretary’s

approval of a gaming compact. And under that rule, those approvals will never be subject to

judicial review because the nonjoinder of a tribe will always require dismissal. The D.C. Circuit,

16
which reached the merits in another compact-approval case, has not adopted that extreme and

unworkable conclusion. See Amador Cty., 640 F.3d at 378–84.

The Tribe’s remaining arguments, both of which rely on unpublished and out-of-circuit

decisions, do not persuade. To start, the Tribe invokes Friends of Amador County v. Salazar,

554 F. App’x 562 (9th Cir. 2014), which held that the Secretary could not adequately represent a

tribe’s interest in a challenge to an IGRA gaming compact, see id. at 564–66. But there, the

government’s responses at a status conference “caused the district court to suspect” that the

government would litigate the case in line with “its national Indian policy, even if contrary to the

Tribe’s interests.” Id. at 564. Consistent with that suspicion, the government later failed to

“appear at oral argument or file any brief in the appeal.” Id. There is no similar evidence of

“divergent interests” in this case. Id. The Tribe also cites a decision from the Northern District

of Florida, which found that a tribe was indispensable to an IGRA compact-approval case while

taking no position on whether the tribe’s interests diverged from the Secretary’s. See PPI, Inc. v.

Kempthorne, No. 4:08-cv-248, 2008 WL 2705431 (N.D. Fl. 2008). But that decision erred in

holding that the judicial review of a no-action approval would violate the tribe’s “sovereign right

not to have its legal duties judicially determined without consent,” id. at *4, and also failed to

address most of the considerations discussed above. Accordingly, the Court will not follow the

decision here.

For the reasons above, the Court finds that “equity and good conscience” permit this

action to continue in the Tribe’s absence. Fed. R. Civ. P. 19(b). This conclusion resolves the

Tribe’s motion to intervene. Because the Tribe moved to intervene solely to move for dismissal,

because the Tribe seeks dismissal on the sole ground that it is indispensable, and because the

Tribe is not indispensable, the Tribe’s motion for limited intervention is denied as moot.

17
 C. The Compact violates IGRA by authorizing gaming off Indian lands

On the merits, it is well-settled that IGRA authorizes sports betting only on Indian lands.

This requirement stems from IGRA § 2710(d)(8)(A), which authorizes the Secretary to approve

compacts “governing gaming on Indian lands.” 25 U.S.C. § 2710(d)(8)(A). It is repeated in

IGRA § 2710(d)(1), which lists the conditions under which “[c]lass III gaming activities shall be

lawful on Indian lands.” Id. § 2710(d)(1). Altogether, over a dozen provisions in IGRA regulate

gaming on “Indian lands,” 6 and none regulate gaming in another location. Indeed, if there were

any doubt on the issue, the Supreme Court has emphasized that “[e]verything—literally

everything—in IGRA affords tools . . . to regulate gaming on Indian lands, and nowhere else.”

Bay Mills, 572 U.S. at 795.

It is equally clear that the Secretary must reject compacts that violate IGRA’s terms. The

D.C. Circuit addressed this very issue in Amador County v. Salazar, which held that IGRA

imposes “an obligation on the Secretary to affirmatively disapprove any compact” that is

inconsistent with its terms, 640 F.3d at 382. The Circuit drew this obligation from IGRA

§ 2710(d)(8)(C), which provides that secretarial inaction may approve a compact “only to the

extent the compact is consistent with” the Act, 25 U.S.C. § 2710(d)(8)(C). See Amador County,

640 F.3d at 381–82. And in explaining the obligation, the court held that the above provision

creates “law to apply” for the review of secretarial inaction and emphasized that the Secretary

“may not allow a compact that violates [the provision’s] caveat to go into effect.” Id. at 381.

Because Amador County controls here, and because IRGA authorizes gaming only on Indian

lands, it follows that the Secretary must reject any gaming compact that authorizes gaming at any

6
These provisions include 25 U.S.C. § 2710(a)(1), (a)(2), (b)(1), (b)(2), (b)(4), (d)(1), (d)(2)(A),
(d)(2)(C), (d)(3)(A), (d)(5), (d)(7)(A)(ii), (d)(8)(A).

18
other location.

The instant Compact attempts to authorize sports betting both on and off Indian lands. In

its own words, the Compact authorizes such betting by patrons who are “physically located in the

State [of Florida] but not on [the Tribe’s] Indian Lands.” Compact § III(CC)(2) (emphasis

added). That italicized phrase is no slip of the tongue, but instead describes the basic

consequence of authorizing online betting throughout the State. Most locations in Florida are not

Indian lands, which IGRA defines to mean lands “within the limits of any Indian reservation,”

“held in trust by the United States for the benefit of any Indian tribe,” or “over which an Indian

tribe exercises governmental power,” 25 U.S.C. § 2703(4). And although the Compact

“deem[s]” all sports betting to occur at the location of the Tribe’s “sports book(s)” and

supporting servers, see Compact § III(CC)(2), this Court cannot accept that fiction. When a

federal statute authorizes an activity only at specific locations, parties may not evade that

limitation by “deeming” their activity to occur where it, as a factual matter, does not. See CSX

Transp., Inc. v. Ala. Dep't of Revenue, 562 U.S. 277, 291 (2011) (“[A] statute should be

interpreted so as not to render one part inoperative.”). Accordingly, because the Compact allows

patrons to wager throughout Florida, including at locations that are not Indian lands, the

Compact violates IGRA’s “Indian lands” requirement.

The Supreme Court’s decision in Michigan v. Bay Mills Indian Community confirms that

conclusion. In that case, the State of Michigan sought to enjoin class III gaming at a casino that

was operated by an Indian tribe but located outside Indian lands. Bay Mills, 572 U.S. at 791–93.

To do so, it invoked a provision of IGRA that abrogates sovereign immunity for “gaming activity

located on Indian lands,” 25 U.S.C. § 2710(d)(7)(A)(ii), under the theory that the casino was

“authorized, licensed, and operated” from the tribe’s reservation, Bay Mills, 572 U.S. at 792.

19
The Court held that the provision did not apply. The Court explained that the phrase “gaming

activity” in IGRA describes “the stuff involved in playing class III games,” not the

administrative actions that support them. Id. And because the casino’s gaming activity occurred

off Indian lands, the Court held that IGRA’s abrogation of immunity for gaming on Indian lands

did not apply. Id. at 791–792. This same reasoning dooms the instant Compact, which rests on

the theory that online betting occurs not where patrons actually play class III games, but instead

at the location of the Tribe’s sportsbook and servers. Because the Compact authorizes patrons to

wager off Indian lands, and because those bets clearly qualify as “gaming,” 25 U.S.C.

§ 2710(d)(8)(A), Bay Mills makes clear that the instant Compact authorizes gaming off Indian

lands.

The Secretary’s Approval Letter, as submitted to the Tribe on August 6, 2021, lacks a

plausible defense of the Compact’s scope. First, the letter notes that IGRA allows gaming

compacts to govern the “application” of state and tribal laws that are relevant to class III gaming

and the “allocation of criminal and civil jurisdiction” between states and tribes with respect to

enforcing those laws, 25 U.S.C. § 2710(d)(3)(c)(i)-(ii). See Approval Letter at 7. But those

provisions, which concern states and tribes’ regulatory responsibilities, say nothing about

whether gaming activity occurs on “Indian lands,” 25 U.S.C. § 2710(d)(8)(A). Second, the

Approval Letter notes that “[m]ultiple states have enacted laws that deem a bet to have occurred

at the location of the [hosting] servers” and argues that the “Compact reflects this modern

understanding of how to regulate online gaming.” Approval Letter at 8. But regardless of what

states have done in their own jurisdictions, changes in state law do not affect the federal-law

issues in this case. Finally, the Approval Letter argues that online sports betting has practical

benefits. See id. at 8–9. But “[s]uch policy arguments, though proper for legislative

20
consideration, are irrelevant” here. Coopers & Lybrand v. Livesay, 437 U.S. 463, 470 (1978). 7

The Secretary’s lead argument in this litigation fares no better. That argument insists that

the Compact authorizes only the online gaming activities that occur on Indian lands, including

the receipt of online sports bets that are placed elsewhere. See Gov’t’s Supplementary Mem. at

9, Dkt. 41 (West Flagler). The Secretary further argues that a Florida statute permits the

remaining gaming activities, which include placing those bets in the first instance. See id. at 9–

10 (citing Fl. Stat. § 285.710(13)(b)). Finally, the Secretary argues that the sole purpose of the

Compact’s “deeming” language is to divide regulatory responsibilities between the State and the

Tribe. See id. at 12. For these reasons, the Secretary argues that all sports betting in Florida,

including both placing bets and processing them, is lawful where it occurs.

The principal problem with the above argument is that it is incompatible with the

Compact’s text. The interpretation of tribal-state gaming compacts is a question of federal law.

See Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 618 F.3d 1066,

1075–82 (9th Cir. 2010) (reviewing the interpretation of a compact de novo). And contrary to

the Secretary’s position, the plain text of the Compact affirmatively authorizes sports betting

both on and off Indian lands. This authorization appears in Section IV(A) of the Compact, which

provides the Tribe “is authorized to operate Covered Games on its Indian lands,” Compact

§ IV(A)—a category that includes sports betting, see id. § III(F)(5). Section IV(A) then

provides, in its very next sentence, that sports wagers “made by players physically located within

the State . . . shall be deemed to take place . . . on Indian Lands” at the “location of the servers or

7
The Approval Letter also argues that patrons may not wager online while “physically located
on another Tribe’s Indian lands,” Approval Letter at 8 & n.14, on the theory that IGRA allows
gaming “on Indian lands” only if that gaming is authorized by the “Indian tribe having
jurisdiction over such lands,” id. (quoting 25 U.S.C. § 2710(d)(1)(A)(i)). That argument
concedes that online betting occurs at the bettor’s location.

21
other devices used to conduct such wagering activity.” Id. § IV(A). By simultaneously

authorizing sports betting on Indian lands and deeming gaming across Florida to occur on those

same lands, Section IV(A) purports to authorize sports betting throughout the State.

Other provisions in the Compact make clear that the “deemed” clause in Section IV(A)

plays an authorizing, rather than regulatory role. See Gov’t’s Suppl. Mem. at 4. The title of

Section IV, “Authorization and Location of Covered Games,” suggests that the location of

gaming is relevant to its authorization. See Almendarez-Torres v. United States, 523 U.S. 224,

234 (1998). Other provisions of the Compact carefully divide regulatory responsibilities

between the Tribe and the State. These responsibilities include promulgating rules on who can

participate in sports betting, see id. § V(A)(2)(e)–(f), the determination of odds “at which wagers

may be placed,” id. § V(A)(2)(d), the reporting of abnormal betting activity, see id. § V(A)(2)(j),

and the prevention of compulsive gambling, see id. § V(D). They also include the resolution of

patron disputes, see id. § VI, the enforcement of the Compact’s provisions, see id. § VII, and the

regular auditing of gaming activities, see id. § VIII. Because the Compact allocates these

responsibilities in such fine detail, the Court will not ascribe that same function to the Compact’s

“deemed” clause, which would render that clause superfluous, see Corley v. United States, 556

U.S. 303, 314 (2009).

The final problem with the Secretary’s argument is that, although it attempts to read the

Compact in pari materia with Florida law, its account of that law is inconsistent with the Florida

Constitution. Article X, Section 30 of that Constitution provides that the State may expand

sports betting only through a citizen’s initiative or an IGRA gaming compact. See Fl. Const. art.

X, §§ 30(a)–(c). And because no citizens’ initiative has approved online sports betting, such

betting can be lawful in Florida only if it is authorized by a gaming compact. See id. Against this

22
backdrop, it makes little sense to argue that the Florida Legislature authorized sports betting

independently of the instant Compact. See Gov’t’s Suppl. Mem. at 4. To the contrary, the better

explanation of the Legislature’s conduct is that it intended to remove any state-law barriers to the

gaming it understood the Compact to authorize. See Fl. Stat. § 285.710(13)(b) (providing that

games “conducted pursuant to” the Compact “do not violate the laws of this state”). It is

important to be clear: this Court is not issuing a final decision on any question of Florida

constitutional law. Nonetheless, to the degree that the Secretary invokes Florida law to explain

the Compact’s terms, her argument misses the mark.

For the reasons above, the Court concludes that the Compact authorizes gaming both on

and off Indian lands. The Compact accordingly violates IGRA’s “Indian lands” requirement,

which means that the Secretary had an affirmative duty to reject it. This disposition warrants

granting the West Flagler plaintiffs’ motion for summary judgment and eliminates any need to

address their other arguments on the merits.

D. The Appropriate Remedy Is to Vacate the Compact

The last issue in this case is the plaintiffs’ remedy. The issue is governed by § 706 of the

APA, which directs courts to “hold unlawful and set aside agency action” that is “not in

accordance with law.” 5 U.S.C. § 706(2)(A). The “agency action” under review is the

Secretary’s default approval of the Compact. See Compl. ¶ 1 (West Flagler). Amador County

confirms that vacating the Secretary’s approval is appropriate. See 640 F.3d at 378 (explaining

that, if a plaintiff successfully challenges a default approval, “the Secretary would have to reject

the compact”). And because the Tribe may offer online gaming “only with secretarial approval

of the compact,” id.; see also 25 U.S.C. § 2710(d)(1)(C), vacating the Secretary’s approval will

fully redress the West Flagler plaintiffs’ injury. For those reasons, the Court concludes that the

23
appropriate remedy is to set aside the Secretary’s default approval of the Compact. 8

The remedy also resolves the Monterra action. It is true that the Monterra plaintiffs have

challenged the Compact under a broader legal theory than is addressed in this opinion. See

Mem. in Supp. at 23–28 (Monterra). But those plaintiffs seek the same relief that this opinion

provides. See Compl. ¶ 139 (Monterra) (requesting an “order setting aside defendants’ unlawful

approval of the 2021 Compact”). And because vacating the Compact fully redresses the injuries

that those plaintiffs allege, their request for summary judgment on other grounds is dismissed as

moot. See Dickson, 964 F.3d at 55.

* * *

In the Court’s understanding, the practical effect of this remedy is to reinstate the Tribe’s

prior gaming compact, which took effect in 2010, see Indian Gaming, 75 Fed. Reg. 38,833 (July

6, 2010), and which may remain in effect until 2030, see Compl. Ex. D. (Prior Compact)

§ XVI(B), Dkt. 1-4 (West Flagler). See Fl. Stat. § 285.710(3)(b). In that respect, this decision

restores the legal status of class III gaming in Florida to where it was on August 4, 2021—one

day before the Secretary approved the new compact by inaction. Because the more recent

Compact is no longer in effect, continuing to offer online sports betting would violate federal

law. See 25 U.S.C. § 2710(d)(1)(C) (providing that “[c]lass III gaming activities shall be lawful

on Indian lands only if . . . [they are] conducted in conformance with a Tribal-State compact . . .

that is in effect”).

8
At oral argument, the West Flagler plaintiffs suggested that the Court could set aside the
compact only to the extent that it conflicts with IGRA. But the Secretary forfeited any request
for severance by omitting it from its motions to dismiss, its corresponding replies, and its
supplemental briefs. In any event, the Court reads Amador County, which identifies the
appropriate relief in this case as ordering the Secretary “to reject the compact,” as foreclosing
line-by-line review of the Compact’s terms. See 640 F.3d at 378.

24
 This decision does not foreclose other avenues for authorizing online sports betting in

Florida. The State and the Tribe may agree to a new compact, with the Secretary’s approval, that

allows online gaming solely on Indian lands. Alternatively, Florida citizens may authorize such

betting across their State through a citizens’ initiative. See Fl. Const. art. X, §§ 30(c). What the

Secretary may not do, however, is approve future compacts that authorize conduct outside

IGRA’s scope. And IGRA, as the Supreme Court explained in Bay Mills, authorizes gaming “on

Indian lands, and nowhere else.” 572 U.S. at 795.

CONCLUSION

For the foregoing reasons, the West Flagler plaintiffs’ Motion for Summary Judgment is

granted, the Monterra plaintiffs’ Motion for Summary Judgment is denied as moot, the Tribes’

Motions to Intervene are denied, and the Secretary’s Motions to Dismiss are denied. A separate

order consistent with this decision accompanies this memorandum opinion.

__
DABNEY L. FRIEDRICH
United States District Judge
November 22, 2021

25