F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 31 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 01-7108
v.
SEMINOLE NATION OF
OKLAHOMA, a Federally Recognized
Indian Tribe,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 01-CV-35-X)
M. Alice Thurston, Department of Justice, Washington, D.C., (David C. Shilton,
Department of Justice, Washington, D.C.; Thomas L. Sansonetti, Assistant
Attorney General, Washington, D.C.; Sheldon J. Sperling, United States Attorney,
Muskogee, Oklahoma; Linda A. Epperley, Assistant United States Attorney,
Muskogee, Oklahoma; Kevin K. Washburn, William F. Grant, and Sandra J.
Ashton, Washington, D.C., with her on the briefs), for Plaintiff-Appellant.
Gary S. Pitchlynn, (Patrick A. Morse, with him on the brief), Pitchlynn & Morse,
P.A., Norman, Oklahoma, for Defendant-Appellee.
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.
MURPHY, Circuit Judge.
I. INTRODUCTION
Plaintiff, the United States of America, filed this action in federal district
court to enforce temporary closure orders issued to Defendant, Seminole Nation
of Oklahoma (the “Nation”), by the Chairman of the National Indian Gaming
Commission (“NIGC”). Although the government moved for preliminary
injunction, the district court notified the parties by order that the hearing on the
government’s motion would be combined with a trial on the merits of the
government’s suit. The district court dismissed the government’s suit reasoning
that the NIGC Chairman exceeded his authority in ordering the closure of the
Nation’s gaming facilities rather than just the particular games at issue. The
government appeals the district court’s dismissal of the suit. 1 This court has
jurisdiction under 28 U.S.C. § 1291 and vacates the district court order for the
reasons stated below. Further, the Nation’s motion to dismiss this appeal for
mootness is denied.
1
Because the district court reached the merits of the government’s
complaint in dismissing the action, any discussion by the district court of the
standard for reviewing a motion for preliminary injunction was irrelevant to the
disposition of the case.
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II. BACKGROUND
In 1988, Congress enacted the Indian Gaming Regulatory Act (“IGRA”)
which provided a comprehensive system to regulate gambling activities on Indian
lands. See 25 U.S.C. §§ 2701-2721. Under IGRA, Indian gaming is divided into
three classes: Class I games (social games solely for prizes of minimal value or
traditional forms of Indian gaming); Class II games (bingo, including pull-tabs,
lotto, punch boards, tip jars, instant bingo, other games similar to bingo, and
certain card games); and Class III games (all other gaming). 25 U.S.C. § 2703(6)-
(8). Class I games are not subject to regulation under IGRA. Id. at § 2710(a).
Class II games are permitted under IGRA if the game is conducted in a state that
permits Class II gaming for any purpose by any entity and if the NIGC has
approved a gaming ordinance adopted by the tribe. Id. at § 2710(b). Class III
games are permitted under IGRA if, in addition to meeting the requirements
imposed on Class II games, they are “conducted in conformance with a Tribal-
State compact.” Id. at § 2710(d).
The NIGC is charged with the development of regulations and
administrative enforcement of IGRA. Id. §§ 2705, 2706. In accordance with the
discharge of this duty, the NIGC Chairman is authorized to order the temporary
closure of gaming activities and impose civil fines if he determines that any
person or tribe is conducting gaming in substantial violation of IGRA. Id. §§
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2705(a), 2713(b)(1). Under the NIGC’s regulations, a temporary closure order
may extend to “all or part of an Indian gaming operation” and is “effective upon
service.” 25 C.F.R. §§ 573.6(a), 573.6(b).
The Nation operates gaming activities at four gaming facilities in Seminole
County, Oklahoma. In an effort to increase revenues from these facilities, the
Nation added “coin-operated amusement games,” which it characterizes as games
of skill. The Nation offered for play one particular coin-operated amusement
game known as, “Red Hot Re-Spin.”
On May 30, 2000, the NIGC Chairman concluded that the Red Hot Re-Spin
machines were impermissible Class III gaming devices and issued a temporary
closure order (“May Order”) directing the Nation to cease operating these
machines. The Nation filed an appeal of the May Order with the NIGC.
After receiving the May Order, the Nation offered for play several new
coin-operated amusement machines, in addition to Red Hot Re-Spin, under the
following names: “Buffalo Nickels,” “Rainbow Reels,” “Fantasy Fives,” “Pot O
Gold,” and “Lucky Cherries.” On September 12, 2000, the NIGC Chairman
determined that these new games were also Class III games. Accordingly, the
NIGC Chairman issued a second temporary closure order (“September Order”)
ordering the Nation to cease all gaming activities in all of its gaming facilities.
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On January 19, 2001, the government filed a complaint in federal district
court for enforcement of the May and September closure orders. 2 The government
moved for a preliminary injunction. The district court notified the parties by
order that the hearing on the government’s motion would be combined with a trial
on the merits of the government’s suit. On February 27, 2001, the district court
denied the motion and dismissed the suit reasoning that the NIGC Chairman
exceeded his authority in ordering the closure of all the Nation’s gaming
facilities. The government appeals the district court’s dismissal of the suit.
On February 4-6, 2002, a hearing was held before a Presiding Official
(“PO”) appointed by the United States Department of the Interior’s Office of
Hearings and Appeals on the Nation’s appeals from the May and September
Orders. On April 8, 2002, the PO issued a Recommended Decision in which he
concluded that the NIGC met its burden of proof with regard to the May Order but
failed to meet its burden of proof with regard to the September Order. The PO
recommended that the May Order be sustained and the September Order be
vacated.
The NIGC reviewed the PO’s recommendations. In a written Notice of
Decision and Order entered on May 7, 2002, the NIGC adopted the PO’s
2
While the parties stated at oral argument that both the May and
September Orders are at issue in this appeal, the parties confine their arguments
on appeal exclusively to the September Order.
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recommendation as to the May Order but rejected the PO’s recommendation as to
the September Order. The NIGC directed that both the May and September
Orders become permanent.
On August 16, 2002, the Nation filed suit in federal district court seeking
review of the NIGC’s permanent closure order. This case is still pending before
the district court.
III. DISCUSSION
A. Mootness
The Nation has moved for dismissal under Rule 27 of the Federal Rules of
Appellate Procedure, arguing that the government’s appeal is moot because the
NIGC Chairman’s temporary closure orders were superseded by the NIGC’s
permanent closure order.
Pursuant to Article III of the Constitution, federal courts may adjudicate
only actual controversies. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78
(1990); Fischbach v. N.M. Activities Ass’n., 38 F.3d 1159, 1160 (10th Cir. 1994).
The controversy must exist during all stages of the appellate review. Fischbach,
38 F.3d at 1160. Once such controversy ceases to exist, the action is moot and
this court lacks jurisdiction to adjudicate the matter. Id. An exception to the
mootness doctrine, however, arises when the case is “capable of repetition, yet
evading review.” Gannett Co. v. DePasquale, 443 U.S. 368, 377 (1979)
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(quotation omitted); Fischbach, 38 F.3d at 1161. This exception applies when:
(1) the duration of the challenged action is “too short to be fully litigated prior to
its cessation or expiration,” and (2) there is “a reasonable expectation that the
same complaining party . . . [will] be subjected to the same action again.”
Gannett, 443 U.S. at 377.
The NIGC Chairman’s temporary closure orders have been superseded by
the issuance of a permanent closure order by the NIGC. Thus, the temporary
closure orders are no longer in effect. This case, however, fits the narrow
exception to the mootness doctrine for conduct capable of repetition, yet evading
review. The NIGC Chairman’s temporary closure orders are too short in duration
to be fully litigated in court prior to their administrative expiration or replacement
by permanent orders. Temporary closure orders, by their very nature, are short in
duration. IGRA requires the NIGC to quickly review temporary closure orders
and either dissolve them or issue permanent closure orders. 25 U.S.C. §
2713(b)(2) (providing an Indian tribe with the right to a hearing before the
Commission to review a temporary closure order within thirty days of its issuance
and requiring the Commission to decide whether to dissolve the order or issue a
permanent closure order within sixty days of the hearing). The Nation argues,
however, the NIGC Chairman’s temporary orders are not so short in duration as to
require this court to exercise jurisdiction over this appeal. Rather, the Nation
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argues, the government’s failure to seek an expedited appeal and its multiple
requests for additional time to file appellate briefs delayed appellate review until
after the issuance of the permanent order. The course of proceedings in this
appeal, however, are irrelevant. The NIGC’s statutory obligation to quickly
conduct a hearing within thirty days of the issuance of a temporary order and
decide whether to dissolve or make permanent the order within sixty days of the
hearing, creates a paradigm in which a temporary order will not remain in effect
throughout the appellate process. Accordingly, the NIGC Chairman’s temporary
closure orders are of a sufficiently limited duration to ordinarily escape appellate
review.
The Nation also argues that the issues in this appeal are not of a limited
duration because they will be litigated in the case involving the permanent closure
order. The issue in this appeal is whether the NIGC Chairman’s statutory
authority to issue temporary closure orders extends to the closure of a tribe’s
entire gaming operation. The NIGC Chairman’s statutory authority, however, is
not at issue in an appeal from permanent closure orders because the NIGC, and
not the NIGC Chairman, issues permanent closure orders under IGRA. 25 U.S.C.
§ 2713(b)(2). Accordingly, a district court hearing an appeal from a permanent
closure order will consider the NIGC’s authority to issue the order and the
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NIGC’s conclusion that the gaming operation was in substantial violation of
IGRA. See generally id. at § 2713(c).
To constitute an exception to the mootness doctrine, it is not enough that an
issue will escape review because of limited duration. It is also necessary that
there be “a reasonable expectation that the same complaining party . . . [will] be
subjected to the same action again.” Gannett, 443 U.S. at 377. Because the
district court’s denial of injunctive relief was based on the specific facts of this
case, the Nation argues, the government has no reasonable expectation that it will
bring a substantially similar action for enforcement of a temporary closure order
in the future. The Nation also argues that the court should not presume that it
will not comply with future temporary closure orders. At oral argument, however,
the Nation conceded it would again challenge the scope of the Chairman’s
authority under IGRA. Accordingly, there is a reasonable expectation that the
Nation will again challenge the NIGC Chairman’s authority to issue temporary
closure orders that apply to all the Nation’s gaming facilities.
Therefore, while the NIGC Chairman’s temporary orders were superseded
by the NIGC’s permanent closure order, this court’s “jurisdiction is not defeated”
because this appeal fits the exception to mootness for conduct capable of
repetition, yet evading review. See id.
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B. IGRA
The district court determined the NIGC Chairman’s authority to issue
temporary closure orders is limited under 25 U.S.C. § 2713(b)(1) to the closure of
individual games. Accordingly, the district court concluded the NIGC Chairman
exceeded his statutory authority by issuing the September Order which required
closure of all the Nation’s gaming facilities. The government argues that the
NIGC Chairman is authorized under IGRA to issue a temporary closure order
applicable to an entire gaming facility and that the district court, therefore, erred
in refusing to enforce the September Order. This court reviews the interpretation
of a federal statute de novo. See Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir.
1995).
In interpreting a statute, this court gives effect to the statute’s unambiguous
terms. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984); Aulston v. United States, 915 F.2d 584, 589 (10th Cir. 1990). “In
ascertaining the plain meaning of the statute, the court must look to the particular
statutory language at issue, as well as the language and design of the statute as a
whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). “[I]f the statute
is silent or ambiguous with respect to the specific issue,” however, this court
defers to the agency’s reasonable interpretation of the statute. Chevron, 467 U.S.
at 843.
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The Nation argues that the NIGC Chairman’s authority to issue temporary
closure orders is limited to the closure of an individual game. To support its
argument, the Nation relies on 25 U.S.C. § 2713(b)(1) which states:
The Chairman shall have power to order temporary closure of an Indian
game for substantial violation of the provisions of [IGRA, NIGC
regulations, and tribal regulations approved under IGRA].
While the narrow term “an Indian game” is used in § 2713(b)(1), when read as a
whole IGRA unambiguously authorizes the NIGC Chairman to order the
temporary closure of entire gaming operations. In § 2705(a)(1), the NIGC
Chairman is authorized to “issue orders of temporary closure of gaming activities
as provided in section 2713(b).” 25 U.S.C. § 2705(a)(1) (emphasis added).
Accordingly, the phrases “gaming activities” and “an Indian game” are used
interchangeably in reference to the NIGC Chairman’s authority to issue temporary
closure orders.
Moreover, the NIGC is required by § 2713(b)(2) to review the NIGC
Chairman’s temporary closure order and either dissolve it or order “a permanent
closure of the gaming operation.” Id. § 2713(b)(2). Because the NIGC can act to
either dissolve or make permanent the Chairman’s temporary order, the NIGC’s
permanent closure order is of the same scope as the NIGC Chairman’s temporary
closure order. The reference in § 2713(b)(2) to a “gaming operation,” therefore,
is substantially equivalent to the phrase “an Indian game” in § 2713(b)(1).
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Finally, the NIGC Chairman is obligated to approve tribal ordinances
which, inter alia, provide for the protection of public health and safety at gaming
facilities. Id. § 2710(b)(2)(E) (authorizing the Chairman to approve tribal
ordinances which provide that “construction and maintenance of the gaming
facility, and the operation of that gaming is conducted in a manner which
adequately protects the environment and the public health and safety”). The
NIGC Chairman is authorized to enforce such tribal ordinances through the
issuance of temporary closure orders. Id. § 2713(b)(1). The Nation conceded at
oral argument that the NIGC Chairman’s authority to enforce such tribal
ordinances is derived from § 2713(b)(1). If the NIGC Chairman’s authority to
issue temporary closure orders was limited to the closure of individual games, he
would be unable to carry out this obligation. Accordingly, when § 2710(b)(2)(E)
and § 2713(b)(1) are read together, the NIGC Chairman’s authority to issue
temporary closure orders clearly includes the power to close entire gaming
facilities. 3
3
The Nation argues that the NIGC Chairman is not empowered to close
games which are lawful under IGRA. This argument lacks merit. The closure of
an entire facility for violation of a safety regulation would necessitate the closure
of individual games which are otherwise permissible under IGRA. Such a result
is clearly authorized under the language of 25 U.S.C. § 2710(b)(2)(E) and §
2713(b)(1).
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Even assuming, arguendo, that the statute authorizing the NIGC Chairman
to issue temporary closure orders under IGRA is ambiguous, 4 the NIGC’s
interpretation of the statute as embodied in their regulations is entitled to
deference. Chevron, 467 U.S. at 843. Under 25 C.F.R. § 573.6, the NIGC
Chairman is authorized to issue “an order of temporary closure of all or part of an
Indian gaming operation” if the tribe violates certain provisions of IGRA. 25
C.F.R. § 573.6(a). “The operator of an Indian gaming operation [must] close the
operation upon service” of the order. Id. § 573.6(b). This regulation is a
reasonable interpretation of § 2713(b)(1) and, therefore, is entitled to deference
under Chevron. See 467 U.S. at 843.
Accordingly, because the NIGC Chairman is authorized under IGRA to
issue a temporary closure order of an entire gaming facility, the district court
erred in dismissing the government’s action seeking enforcement of the
September Order.
4
The Nation conceded at oral argument that § 2713(b)(1) may, in fact, be
ambiguous and that the NIGC’s reasonable regulations are entitled to Chevron
deference.
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IV. CONCLUSION
For the reasons stated above, 5 the district court’s order is VACATED. 6
Further, the Nation’s motion to dismiss this appeal for mootness is DENIED.
5
In addition to concluding that the NIGC Chairman exceeded his statutory
authority by issuing a temporary closure order relating to all the Nation’s gaming
facilities, the district court raised, sua sponte, the issue of whether the Nation’s
due process rights were violated. As an additional reason for dismissing the
government’s suit, the district court determined that the Nation’s due process
rights were violated. Because resolution of this constitutional issue was
unnecessary to the adjudication of the case, the district court abused its discretion
in deciding the issue. See Dept. of Commerce v. United States House of
Representatives, 525 U.S. 316, 343 (1999) (reasoning it was proper to abstain
from ruling on the constitutional issue presented in the appeal because a decision
could be reached on other grounds). Moreover, the Nation has abandoned this
issue on appeal. Accordingly, this court does not have the benefit of appellate
briefing on this issue. In light of these circumstances and the conclusion that the
district court’s opinion be vacated, this court will abstain from adjudicating the
merits of this issue.
Because this action was an enforcement action, the only issue properly
addressed by the district court was whether the NIGC Chairman had the authority
to order the temporary closure of all the Nation’s gaming facilities. Accordingly,
the district court lacked jurisdiction over other issues raised by the parties,
including the classification of the games at issue and the validity of IGRA
provisions requiring that tribal-state compacts be obtained prior to engaging in
Class III gaming activities. These issues must be raised in an appeal of the
NIGC’s permanent order. See 25 U.S.C. § 2713(c) (conferring jurisdiction over
final, permanent orders of the NIGC on the federal district court). Therefore, this
court, like the district court, lacks jurisdiction to resolve these issues.
6
The NIGC Chairman’s temporary closure orders have been superseded by
the NIGC’s permanent closure order and they, therefore, cannot be enforced.
Because, as discussed above, the district court erred in dismissing the
government’s suit and in refusing to enforce the NIGC Chairman’s temporary
closure orders, this court vacates the district court’s order.
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