[00:00:00] Speaker 01:
Case number 21-5265, Ed Al.

[00:00:04] Speaker 01:
Wes Fladler Associates Limited, a Florida limited partnership, doing business as Magic City Casino, and Bonita Fort Myers Corporation, a Florida corporation, doing business as Bonita Springs Poker Room, versus Deborah A. Halen, in her official capacity as Secretary of the United States Department of the Interior, seemingly trying to Florida a balance.

[00:00:27] Speaker 01:
Mishearing for Deborah A. Halen, Ed Al.

[00:00:29] Speaker 01:
Mr. Richard, for the Seminole crowd of Florida.

[00:00:33] Speaker 01:
Mr. Whitaker, Amicus Curiae State of Florida.

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Mr. Hume, for West Flagler Associates Limited, et al.

[00:00:40] Speaker 01:
Ms.

[00:00:40] Speaker 01:
Reid, Amicus Curiae, Montero MF, NLC, et al.

[00:00:46] Speaker 08:
Good morning, Ms.

[00:00:48] Speaker 08:
Herron.

[00:00:48] Speaker 08:
We'll hear from you.

[00:00:57] Speaker 03:
May I please support?

[00:00:59] Speaker 03:
My name is Rachel Herron on behalf of the federal government.

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As your honors are aware, the court's allocated 20 minutes of the argument time today to the federal government.

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And as possible, I'll try to reserve about three minutes of that time for rebuttal.

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The question for this court is whether the Secretary of the Interior acted within her authority under the Indian Gaming Regulatory Act, or IGRA, when she took no action on, and thus by operation of statute, allowed to go into effect

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a gaming compact submitted for her approval by the state of Florida and the Seminole tribe of Florida.

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The secretary did act lawfully.

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The district court's contrary conclusion was based on an error of law, although admittedly a relatively narrow one that was specific to the facts of this case and the language of the compact that the secretary was reviewing.

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West Flagler in this appeal offers a much broader categorical reading of Ibra that would defend the result below.

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However, that reading is inconsistent with Ibra's text, intention with Supreme Court precedent, as well as the stated purposes of the statute and past practice.

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With the court's permission, I would start by explaining the district court there before moving on to West Flagler's alternate arguments and then addressing why this court should decide the issue and specifically reverse the decision below based on the arguments presented by the federal government and not those presented by the tribe in its consolidated appeal, which arguments are inconsistent with this court's precedent and would radically shrink the APA cause of action.

[00:02:45] Speaker 03:
But before getting into those points, I would just want to make one thing clear.

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There has been a lot of discussion in the briefs in this case about whether the Florida state statute that authorizes the off Indian lands gaming anticipated by the complex would survive in a judicial challenge brought in Florida's courts.

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There's also been a lot of speculation on whether the tribe and the state

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intended to draft their compact in a way that would provide a workaround in the event that statute fell.

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Now, the state and tribe have disclaimed that that was their intent.

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They have said so to this court.

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And they are here today.

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So to the extent this court has any questions about that, they may ask them.

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However, what the federal government can say is that the compact they actually crafted, whatever the party's intent may have been,

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is properly read to be consistent with IGRA.

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It is properly read not to circumvent state law or to attempt to use IGRA as a ground for independently authorizing off Indian land gaming.

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And if the state statute that is related to this action were to be challenged in Florida state court and were to fall, the compact that they crafted

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would give no independent authority to the tribe to continue to receive vets from outside Indian lands.

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Under those circumstances, the secretary was under no obligation to disapprove the compact that was presented to her.

[00:04:26] Speaker 08:
So you categorically reject the contention of Wes Flagler that the secretary has to make a determination

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that the compact complies with for the state law.

[00:04:41] Speaker 03:
That's correct, Your Honor.

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Under this court's precedent and I think under the best reading of the statute, the secretary does have a duty, again under this court's precedent, to ensure that a compact presented to her does not violate IGRA and has a duty to affirmatively disapprove if it violates IGRA itself.

[00:05:05] Speaker 03:
But the statute does not even list non-compliance with state law as a ground on which the secretary has authority to disapprove a compact.

[00:05:13] Speaker 08:
What about the Wire Act or the Internet Gaming Act?

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Due process or equal protection or any other aspects of federal or constitutional law?

[00:05:26] Speaker 03:
Yes.

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So, Your Honor, DIGRA, specifically Section D8B of Section 2710,

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does give the secretary authority to disapprove a compact that violates federal law, including provisions of the federal constitution.

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But section D.C.

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of the compact, which deals with the secretary's authority to take no action, provides only one caveat on that authority to take no action.

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And that is when the compact disapproves.

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Excuse me, contradicts itself.

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So for that reason,

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We read the statute to mean that the secretary does not have an affirmative duty to disapprove when a compact violates some non-IGRA federal law.

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In that regard, excuse me, this report didn't go into whether there was a national violation of those federal laws.

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So is that something that we should take up here?

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Do we need to do that in making the decision here?

[00:06:26] Speaker 03:
Your honor, I don't think that you need to address that issue.

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I think you can simply reverse the district court's decision, because the district court, as we said, aired as a matter of law when it interpreted the compact to violate it for itself.

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Now, obviously, West Ligar has raised those other legal issues as alternate arguments, and they are pure issues of law.

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So I don't think there's anything stopping the court from reaching them.

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But it need not in order to reverse the decision below.

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What, if any,

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weight or impact is the secretary's letter or this is not the secretary, the letter or commentary that came after the 45 days.

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So your honor, that's a post-decisional letter.

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We have not requested any deference to the views expressed in that letter that was authored by the assistant secretary because it's not, you know, a formal decision document by the agency.

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That being said,

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I do think that the letter is illuminating in that it shows that consistent with what the secretary has explained in its briefs in this case, that it has sort of always understood the deemed language that's at issue here as being language that's about apportioning regulatory jurisdiction, right?

[00:07:48] Speaker 03:
That letter says that state statute

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authorizes the online sports betting wagers that are in contention here.

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And it notes that there is some controversy about whether that state statute was validly enacted under the Florida Constitution.

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But it says that, you know, it is not going to parse Florida law itself and is relying on the representations of Florida's government that the statute on the books is valid.

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When it then goes on to talk about the deemed language, it doesn't sort of squarely say, we don't think that this language is intended to independently authorize gaming in the event that that statute were to fall.

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But I think right in context, that's because the discussion of that deemed language is all about whether that's an acceptable way to allocate regulatory jurisdiction.

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And it was, and it is.

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even look at that letter at all, given that it's a post-decision document?

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Why does it have any relevance at all to this litigation?

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Your Honor, I don't think you need to.

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I think to the extent, you know, it

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It was presented below by the parties.

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And so I think it is consistent with what the court, or excuse me, with what the United States has presented to the court.

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But we're not relying on that letter in any way.

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And I don't think that this court needs to consider it in reaching its decision.

[00:09:20] Speaker 05:
Now you mentioned a reversal, but you still have the issue about the tribe.

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being an indispensable party, having an opportunity to intervene, but then still potentially intervening for a limited purpose of asserting its immunity.

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And I bring that up because you apparently were opposed to the travel immunity, but in other cases, and even recently in other cases, you have raised that issue.

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So, Your Honor, I will say that the vast majority of the

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prior to United States briefs that the tribe has presented to suggest that there's been an inconsistency pre-date 2012.

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And the reason that that 2012 date is important is that in 2012, the United States filed a brief in this court

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in a decision called the ban versus the Department of the Interior.

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I'm happy to provide that brief to this panel if it wishes, in which there had been a dismissal on Rule 19 grounds in the district court because of an absent party, or excuse me, because of an absent tribe that had an interest in the agency action that was being challenged.

[00:10:42] Speaker 03:
It was not an agro-compact case.

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but it was another agency action that impacted the tribe.

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And the district court dismissed on the very ground that the tribe is arguing for here.

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And in its brief to this court, the United States said, notwithstanding that we went on that issue, we have considered this issue, and we don't think that that's correct to how Rule 19 works.

[00:11:05] Speaker 03:
Now, since that 2012 brief, I cannot, I wish I could,

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But I certainly cannot represent to you that every single filing made by every lawyer in the Department of Justice has been consistent with that position.

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I can say that the more recent cases that the court, or excuse me, that the tribe has cited in its brief are factually distinguishable from this case.

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And I'm happy to go through that in detail if the panel would like.

[00:11:35] Speaker 03:
Sure.

[00:11:35] Speaker 03:
Sure.

[00:11:36] Speaker 03:
So the most recent one, I think that the

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that the tribe cites is the district court briefing in the Cerebral Policy Association decision.

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And in that case,

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There was a challenge to government action, but the relief that was being sought was not simply to set aside government action.

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It was also seeking an order directing the government to take action, to take affirmative enforcement action against an absent sovereign there to state that had an interest in the action at issue.

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So I think that the fact that there was that more than just standard APA relief being sought there,

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that makes that different than what's the case here.

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There is no request in this case that, you know, the secretary not only disapprove this compact, but then, you know, start an enforcement action against the tribe or something like that.

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Another of the briefs that were cited was the Alabama Sarte case from the 10th Circuit.

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And in that case, that was another one where the relief being sought was not just APA relief, setting aside an agency action, but was actually seeking a, the parties were seeking a transfer of property that the Pride had asserted that it had the ownership interest in.

[00:12:54] Speaker 03:
Again, that's not an issue here.

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The other one I think that I would point to is the Hummel Action Committee from the Eastern District of California and from the Ninth Circuit.

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And in that case, it was sort of an unusual case in that it was styled as an APA action.

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But the United States position in that case was that there actually was no agency action being challenged.

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And so when there's no agency action being challenged,

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the United States position on Rule 19, which is that it can adequately defend anyone interested in seeing agency action upheld, simply doesn't apply.

[00:13:31] Speaker 03:
Thank you.

[00:13:36] Speaker 03:
On that Rule 19 issue, you know, I would point out, Your Honor, is that in addition to the fact that, as I said, this is the United States position, it's the position that it has taken

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numerous valid briefs since that ban brief that was filed in this court, but also say that I think that that position is important.

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And I think that it's important that this court decide this case based on the merits issues presented by the government rather than the Rule 19 issue.

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Because the Rule 19

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The rule 19 argument that the tribe presents, although the tribe does, you know, its briefs do try to ground that in specific facts of this case.

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The argument is such that if applied to other cases, it would essentially mean that no one would be able to challenge APA, a federal agency action,

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that benefits an absent tribe or an absent state or some other absent sovereign that has immunity unless that sovereign voluntarily waived its immunity, which would be a huge construction of the APA cause of action and would essentially render, I don't want to say everything, but substantially everything that the Secretary of the Interior does in the realm of Indian Affairs immune to judicial challenge.

[00:15:03] Speaker 05:
So would you suggest that the Seminole Tribe is not required or indispensable party here, even though it's affected by the compact?

[00:15:11] Speaker 03:
Yes, Your Honor.

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I think the Seminole Tribe undoubtedly has an interest and a substantial one in this litigation.

[00:15:19] Speaker 03:
But under this court's precedent, including the Vermont decision, which I think is the one where it's stated most clearly, as well as the very recent de-shuffle decision from over the summer,

[00:15:32] Speaker 03:
It is not enough to have an interest to be declared a required and indispensable party if there are other parties present in the litigation who are able to adequately represent that interest.

[00:15:45] Speaker 05:
But isn't that the challenge that there was not adequate representation?

[00:15:49] Speaker 03:
Well, Your Honor, I think that under this court's case law, there was adequate representation here.

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And that specifically, the times that this court has found that the United States is not an adequate representative

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in an APA challenge have been cases where the court had significant reason to believe that the United States was not going to defend the agency action at issue.

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That is not what happened here.

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The agency had defended the action below.

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It is continuing to defend the action in this affirmative appeal.

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Now, the tribe disagrees with some of the strategy calls that we've made in that litigation.

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They assert that they would have made different litigation judgments, brought different arguments that the United States did not bring.

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But respectfully, I think that is not the standard that this court has used to judge.

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And if that is the standard that was adopted, again, I think that goes right back to essentially rendering a huge swath of agency action unreviewable.

[00:16:50] Speaker 08:
Is it your view that the tribe has to show some form of justice?

[00:16:55] Speaker 03:
Well, Your Honor, under Rule 19,

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The rule 19B analysis, yes, prejudice is essential.

[00:17:01] Speaker 03:
And I don't believe that they have shown prejudice here.

[00:17:05] Speaker 08:
Let's suppose we had some questions about whether the government was adequately representing the tribe's interests.

[00:17:14] Speaker 08:
But if in the end, we believe that the government failed, just as hypothetically prevails in

[00:17:26] Speaker 08:
in reverse, you know, shouldn't set aside this agency action, then would there be any prejudice?

[00:17:36] Speaker 03:
Well, as a matter of fact, there wouldn't be.

[00:17:39] Speaker 03:
Now, it's a little difficult because obviously, you know, at the time that a court is presented with the rule 19 issue in the first instance, you know, they don't know what's going to happen at the end of an appeal.

[00:17:51] Speaker 03:
And so the question is whether the district court abused its discretion

[00:17:56] Speaker 03:
Um, and at the time that it made its decision, it didn't know.

[00:18:00] Speaker 08:
Certainly.

[00:18:01] Speaker 08:
But here here we're reviewing kind of the merits of the district court's action and the denial of the motion intervened by the district court.

[00:18:11] Speaker 08:
I guess the more artful way to ask my question is if for the sake of argument, we agreed with the government on the merits

[00:18:21] Speaker 08:
Would the appropriate resolution on the intervention issue would be to dismiss that appeal as moot?

[00:18:33] Speaker 03:
Yeah, I'm not sure that it would be the procedural move to dismiss it as moot.

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And I'm sure the tribe will make this argument for itself.

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But there is a sovereign interest in not having an issue decided

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in the sovereign's absence, regardless of whether it is decided in the tribe's favor or against the tribe's favor.

[00:19:00] Speaker 03:
But I would say based on the constellation of facts before the court at that point in time, I think it would be prohibitive for the tribe to be able to establish that it had experienced prejudice.

[00:19:12] Speaker 03:
because of it's not being treated as an indispensable.

[00:19:16] Speaker 08:
So you think that regardless of how we decide this case, we have to reach the merits of their appeal?

[00:19:24] Speaker 03:
Excuse me.

[00:19:24] Speaker 03:
I'm sorry.

[00:19:25] Speaker 03:
I didn't catch the last part of that.

[00:19:27] Speaker 08:
Regardless of how we were to decide this case, we have to reach the merits of the intervention issue?

[00:19:37] Speaker 03:
Yes, I think that Your Honor does.

[00:19:39] Speaker 08:
seems odd because even with jurisdictional issues, you know, let's say that there's a subject matter jurisdiction, um, challenge in a personal jurisdiction, which is not Article three.

[00:19:54] Speaker 08:
Um, the Supreme Court has said, well, we could decide the personal jurisdiction non Article three jurisdictional issue in order that a case be dismissed

[00:20:09] Speaker 08:
and not decide standing or mootness or some Article III jurisdictional issue.

[00:20:19] Speaker 08:
So if we can dismiss on alternative grounds in that circumstance, why do we have to decide a Rule 19 issue?

[00:20:31] Speaker 08:
It's not on any greater, doesn't stand on any greater footing than Article III subject matter jurisdiction.

[00:20:39] Speaker 03:
No, that's certainly true, Your Honor.

[00:20:41] Speaker 03:
You make a very good point, and I'll confess I have not put a great deal of thought into that issue.

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So I think for the United States part, I would say that I think that the tribe may be able to address more specifically whether its issue must be reached.

[00:21:03] Speaker 03:
And I think in our view,

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The most important thing is, is that the court reverses the decision below and that it does not adopt the rule 19 analysis presented by the tribe to the state sent this court believes that it can resolve the issue of resolve this appeal without addressing the rule 19 issue at all.

[00:21:24] Speaker 03:
Um, I don't think that United States, um, objects.

[00:21:30] Speaker 07:
Let me ask.

[00:21:33] Speaker 07:
I was just going to try to let you ask.

[00:21:35] Speaker 05:
I was just going to stay on that issue just a little bit more.

[00:21:38] Speaker 05:
Under Dissepo, it says that the adequacy of representation should be aligned in all respects, and you should be able to make all arguments on behalf of the party.

[00:21:48] Speaker 05:
And we just had a discussion a little bit ago about sovereign immunity issue, not necessarily being raised here, but being raised in other aspects.

[00:21:58] Speaker 03:
Yeah, so Your Honor, I think with regard to Dissepo,

[00:22:02] Speaker 03:
It does note that it does say that in that particular case, the absent sovereign and the participating party would have made all of the same arguments.

[00:22:18] Speaker 03:
But the case does not say whether that is required.

[00:22:21] Speaker 03:
It doesn't address the counterfactual of whether the present party was going to zealously defend the action in sort of

[00:22:31] Speaker 03:
advance the position that the absent sovereign presented, but perhaps they disagreed on particular arguments which had the most merit, which way to present the case to the court.

[00:22:43] Speaker 03:
So I don't think De Sepple stands for the proposition that you have to show that every single argument would have been raised by the party that is participating.

[00:22:53] Speaker 03:
And again, I think that requirement essentially would be a pathway to finding

[00:23:01] Speaker 03:
every entity that's affected by a agency decision to be a required party, because there will always be a disagreement among lawyers about sort of what arguments should be brought, what is supported by precedent, what is more persuasive.

[00:23:17] Speaker 05:
Kind of like our effective assistance counsel claims where a defendant perhaps thinks the lawyers should raise every argument, but the lawyer has to do some deference for strategy.

[00:23:27] Speaker 03:
I think that's correct, Your Honor.

[00:23:29] Speaker 03:
And I would point out again that I think, again, this is where this court has affirmatively found that there was not adequate representation.

[00:23:37] Speaker 03:
So, you know, the Wichita decision, the Cherokee Nation decision that are discussed in the briefs, the court was very clear that in both of those circumstances, it wasn't a dispute over strategy and, you know, potential scope of arguments.

[00:23:52] Speaker 03:
It was, is the federal government actually going to defend this action?

[00:23:56] Speaker 03:
And that's not a concern here.

[00:24:00] Speaker 08:
So can I go back to the issue kind of on the merits of the Secretary's, I guess, deemed approval that subsection, I guess it's 2710,

[00:24:22] Speaker 08:
get these numbers all mixed up.

[00:24:24] Speaker 08:
I just think of it as 8C.

[00:24:31] Speaker 08:
You pointed out that it says if the secretary does not approve or disapprove a compact in subparagraph A before 45 days, the compact shall be considered to have been approved by the secretary, but only to the extent

[00:24:50] Speaker 08:
compact is consistent with the provisions of this chapter.

[00:24:56] Speaker 08:
Um, you read of this chapter to mean then consistent with, with Igra, but isn't this, aren't we kind of like a dog chasing its tail because, um, um, Igra,

[00:25:18] Speaker 08:
The above says that the secretary may disapprove a compact if it violates any other provision of federal law.

[00:25:29] Speaker 08:
Or do you, do you think that that's not really circular in that way?

[00:25:36] Speaker 03:
Yeah.

[00:25:36] Speaker 03:
So your honor, I don't view it as circular because I think that

[00:25:40] Speaker 03:
Um, the prior provision, um, eight B gives the secretary, uh, it says the secretary may disapprove on those grounds, but the fact that the secretary would have authority to disapprove on those grounds, I think is not the same as, um, as saying that a compact that, um, could be disapproved necessarily is in violation of EGRA.

[00:26:05] Speaker 03:
And I would point to this court's decision in Elmador County, um, which

[00:26:10] Speaker 08:
You know, it's sort of didn't we say that that name it shall.

[00:26:14] Speaker 03:
It didn't say that the name and shall.

[00:26:17] Speaker 03:
However, it went on to explain in another provision that That the

[00:26:25] Speaker 03:
The caveats listed in 8B are the caveats on the secretary's authority to affirmatively approve, whereas the caveat in 8C is the one that applies to the no action scenario.

[00:26:38] Speaker 03:
So I think the particular language is, the court said, just as the secretary has no authority to affirmatively approve a compact that violates any of subsection D8B's criteria for disapproval,

[00:26:50] Speaker 03:
she may not allow a compact that violates subsection D8C's caveat to go into effect by operation of law.

[00:26:58] Speaker 03:
And then in the discussion there, the court, when it discussed what that caveat was, it was quite clear that that caveat was that there could not be conflict with IGRA.

[00:27:12] Speaker 03:
And it specifically contrasted that with an argument that a compact

[00:27:18] Speaker 03:
conflicted with the other 2.

[00:27:22] Speaker 03:
Conditions that are listed in D in other words this court in Amador County understood that what was being discussed in section 8 C was only one of the criteria that are included in section 8 B it didn't view.

[00:27:41] Speaker 03:
That language is sort of sweeping in and including all of the conditions and it be and in fact

[00:27:48] Speaker 03:
it couldn't have so thought and reach the conclusion or at least reach the analysis that it ultimately employed because the Amador County court left open the possibility that with regard to those other two grounds for disapproval listed in D8B, that

[00:28:09] Speaker 03:
It may be correct that the secretary has no authority, or excuse me, has no duty to disapprove affirmatively on those grounds.

[00:28:19] Speaker 03:
It couldn't have reached that conclusion if it understood the 8C provision to kind of adopt all of the pieces of 8B.

[00:28:30] Speaker 08:
To play devil's advocate, here the secretary approved by inaction, so to speak.

[00:28:39] Speaker 08:
But then we have a post-decisional letter that talks about non-egro ground.

[00:28:47] Speaker 08:
So isn't the secretary kind of trying to have her cake and eat it too?

[00:28:53] Speaker 08:
Although it's a point of cake, if you can't eat it.

[00:28:59] Speaker 08:
But you see my point?

[00:29:01] Speaker 03:
I see your point, Your Honor.

[00:29:02] Speaker 03:
You know, I think that the

[00:29:07] Speaker 03:
Post-Decisional Letter does correctly cite Section D8C and says that the Compact is considered to be approved to the extent it's consistent with IGRA.

[00:29:21] Speaker 03:
There are other sentences in the letter that refer to federal law and that discuss compliance with federal law.

[00:29:34] Speaker 03:
But again, the Secretary has authority

[00:29:36] Speaker 03:
to disapprove or a compact for violating a non-agro federal law.

[00:29:42] Speaker 03:
So the fact, you know, if the secretary in a post- decisional letter is to discuss those grounds, I think that doesn't show anything other than that the secretary was, you know, taking the scope of authority seriously.

[00:29:55] Speaker 03:
You know, the fact that she's not bound to disapprove on those grounds doesn't mean that she doesn't have authority to consider it and to think about it.

[00:30:10] Speaker 08:
Judge Henderson, do you have any questions?

[00:30:12] Speaker 02:
No, I don't.

[00:30:13] Speaker 02:
Thank you.

[00:30:17] Speaker 08:
I know we might have gotten you off track of your argument.

[00:30:21] Speaker 08:
We'll give you some time on rebuttal.

[00:30:24] Speaker 08:
If there is something that you didn't get to here in the opening that you really feel like you need to say something about, I'll give you a minute or so to do that.

[00:30:33] Speaker 03:
Thank you, your honor.

[00:30:35] Speaker 03:
I think that we will primarily keep that to rebuttal.

[00:30:39] Speaker 03:
I think that the main points are simply, as we said, that the secretary acted lawfully here.

[00:30:44] Speaker 03:
The district court's conclusion was based on an error of federal contract law interpretation.

[00:30:51] Speaker 03:
And Wes Flagler's much broader argument should be rejected.

[00:30:54] Speaker 03:
And for that reason, the court should reverse.

[00:30:57] Speaker 08:
All right.

[00:30:57] Speaker 08:
Thank you.

[00:30:58] Speaker 08:
We'll now hear from

[00:31:02] Speaker 08:
the Seminole tribe of Florida.

[00:31:12] Speaker 09:
May it please the court.

[00:31:13] Speaker 09:
I'd like to begin by responding to the question posed by Judge Wilkins as to whether, in the event that the court reverses on the merits, the tribe's motion to intervene becomes moot.

[00:31:25] Speaker 09:
And I would respectfully suggest to the court that although the tribe would view it pleased if the court reversed all the merits,

[00:31:32] Speaker 09:
that it would be a reversal of the proper order of the analysis.

[00:31:37] Speaker 09:
The lower court never should have reached the merits.

[00:31:41] Speaker 09:
The initial error of the lower court was to fail to even consider the Seminole-Trodd's motion to intervene.

[00:31:48] Speaker 09:
Had the Seminole-Trodd properly been permitted to intervene and the case been dismissed on sovereign immunity, there would be no merits issue.

[00:31:56] Speaker 09:
And sovereign immunity, as this court and the US Supreme Court has told us,

[00:32:00] Speaker 09:
is the overwhelming issue in a rule 19 question.

[00:32:05] Speaker 09:
So again, while we would be pleased with the reversal of merits, we believe that the first question should be the question of the tribe's immunity and the lower court's error with respect to that immunity.

[00:32:16] Speaker 08:
I understand that on one level, but as I mentioned in the argument with your friend, Ms.

[00:32:25] Speaker 08:
Aaron,

[00:32:26] Speaker 08:
And even with Article 3 subject matter jurisdiction, which is foundational issue for us, we can neglect to reach that to dismiss a case on a non-Article 3 personal jurisdiction issue.

[00:32:45] Speaker 08:
The Supreme Court is blessed with that.

[00:32:50] Speaker 08:
So why should this intervention issue be different just because it raises

[00:32:56] Speaker 08:
sovereign immunity.

[00:32:58] Speaker 09:
Well, I understand the question that your honor is struggling with here and respect it.

[00:33:04] Speaker 09:
And the tribe doesn't have a strong position on this.

[00:33:07] Speaker 09:
I just mentioned what we believe is the appropriate analysis here.

[00:33:11] Speaker 08:
How would the tribe be prejudiced if at all?

[00:33:14] Speaker 08:
If assuming for the sake of argument, we ruled as the government would like us to

[00:33:21] Speaker 08:
with respect to the merits of the APA claim, and we, I guess, dismissed your cross-appeal, your appeal was moved on the intervention.

[00:33:36] Speaker 08:
How would you be prejudiced?

[00:33:37] Speaker 09:
Well, it would be prejudiced, because the issue of immunity is a compelling issue in itself, and it's important.

[00:33:48] Speaker 09:
be protected in this case, the district court has ruled that its immunity for reasons that are not sustainable is not to be respected.

[00:33:58] Speaker 09:
So the tribe would be prejudiced because of the undermining of tribal immunity that would result in that instance.

[00:34:08] Speaker 09:
That's how we believe it would be prejudiced.

[00:34:12] Speaker 08:
Approving the compact,

[00:34:17] Speaker 08:
though doesn't undermine the tribe's immunity, right?

[00:34:22] Speaker 09:
Well, I think it would undermine in a sense.

[00:34:24] Speaker 08:
And the IGRA itself is a waiver of tribal immunity to the extent that it provides a cause of action with respect to these gaming compacts, right?

[00:34:40] Speaker 09:
That's an interesting point, because IGRA waives our immunity

[00:34:46] Speaker 09:
presumption is didn't intend for it to be waived in any other instances, and we're not dealing with one of those limited instances in this case.

[00:34:54] Speaker 09:
And again, going back to my original point, the tribe's immunity should have been the first consideration by the lower court, and the lower court carried by failing to do that, and we believe that that issue

[00:35:11] Speaker 09:
that is worthy of first consideration.

[00:35:15] Speaker 09:
Having said that, this is not a major point in this case for the tribe.

[00:35:21] Speaker 09:
And if this court decides to reverse the merits, the tribe will not have heartache from it.

[00:35:27] Speaker 09:
But we believe that the prejudice comes from failure to support the importance of the immunity being respected as the first consideration by the tribe.

[00:35:40] Speaker 09:
As I noted, this court in the Supreme Court had held that tribal immunity is overwhelmingly a significant issue, and it is to be given primary consideration.

[00:35:53] Speaker 09:
The district court gave it little or no consideration.

[00:35:56] Speaker 09:
The court engaged the plaintiff in a lengthy dialogue regarding the merits of the summary judgment motion.

[00:36:03] Speaker 09:
It took considerable time to castigate the Department of the Interior for failing to initially

[00:36:10] Speaker 09:
briefed the question of the merits, and it refused entirely to hear from the tribe before it issued a summary judgment destroying the tribes most important asset.

[00:36:21] Speaker 09:
So the court, contrary to what this court and the Supreme Court has instructed, gave practically no consideration to the issue of immunity.

[00:36:30] Speaker 08:
With respect to the- Can I just ask one question before you move on?

[00:36:33] Speaker 08:
Sure.

[00:36:34] Speaker 08:
Are you aware of any authority

[00:36:39] Speaker 08:
that says that an intervention motion such as one brought by your client has to be reached first before dismissal on some other ground.

[00:36:54] Speaker 09:
I think it has to be addressed.

[00:36:56] Speaker 09:
When you say first, I mean, I think the court could certainly have engaged parties in a discussion of the merits first.

[00:37:05] Speaker 09:
within the discretion of our court.

[00:37:07] Speaker 09:
But the court can't just cast aside the immunity issue because this court and the Supreme Court said that's the predominant issue.

[00:37:15] Speaker 08:
Well, I guess here's what I'm getting at.

[00:37:19] Speaker 08:
Maybe a better way to ask it.

[00:37:20] Speaker 08:
If the district court is just trying to be practical, and let's suppose you had a case where the district court thought that the APA challenge was easily disposed of because it had no merit.

[00:37:35] Speaker 08:
but it thought that the intervention motion and the sovereign immunity issue was difficult because of the public rights issues, et cetera.

[00:37:45] Speaker 08:
And the district court just said, I really just want to put the intervention to one side and focus on the merits and rule that way.

[00:37:57] Speaker 08:
And then deny as moot the intervention motion.

[00:38:02] Speaker 08:
Um,

[00:38:04] Speaker 08:
Um, I understand that you don't, you think that that's the wrong way to proceed, but is there any, you know, why isn't that like a practical way to proceed or what, what case says that you shouldn't do that?

[00:38:17] Speaker 09:
Well, there would be nothing wrong with it other than what I said initially, if the trial court had decided that it all killed the compact.

[00:38:27] Speaker 09:
was moot, but she struck the entire compact, even more than the plaintiffs were asking for, and then refused to address immunity.

[00:38:36] Speaker 09:
And that's error.

[00:38:37] Speaker 09:
And I don't think there's any way that error can be disregarded, given what this court and the Supreme Court has instructed, and numerous other courts have instructed.

[00:38:45] Speaker 09:
You can't just disregard the immunity issue and issue a summary judgment to the prejudice of the absent party.

[00:38:52] Speaker 09:
That's what Pimminich-Tel told us.

[00:38:55] Speaker 09:
you cannot adjudicate a significant interest of the sovereign party in its absence, which is what the court did here.

[00:39:05] Speaker 08:
Now, with regard to the 19B, the questions... What about the arguments by the government that that would make bigger challenges under the APA pretty much?

[00:39:23] Speaker 08:
impossible absent waiver of sovereign immunity by a tribe with respect to review of a compound?

[00:39:32] Speaker 09:
Well, first of all, that's really not true.

[00:39:34] Speaker 09:
There certainly are cases in which an agency can adequately represent the interests of the absent party.

[00:39:42] Speaker 09:
But this certainly is not one of them.

[00:39:44] Speaker 09:
This doesn't even come close to the line.

[00:39:49] Speaker 09:
representation here but in the department's motion to dismiss in this case the department said this the secretary had no role and continues to have no role whatsoever and that was an italics in the motion with respect to the compact or how it might be implemented and in fact in this case

[00:40:10] Speaker 09:
The department took the position that the only thing that it had to defend was the propriety of its administrative conduct, and it didn't extend to whether or not the compact was appropriate.

[00:40:23] Speaker 09:
It continues to take that position.

[00:40:25] Speaker 09:
It only addressed the merits when the trial court ordered it to do so.

[00:40:28] Speaker 09:
That in itself should be enough to determine that the department cannot adequately represent the drug.

[00:40:35] Speaker 08:
But doesn't that depend on us agreeing with you that

[00:40:39] Speaker 08:
approval of the compact under IGRA also means that the secretary is saying that it complies with state law?

[00:40:56] Speaker 09:
Well, I have to agree with the department and the council's response to that.

[00:41:01] Speaker 08:
I think that's that's what I thought.

[00:41:03] Speaker 08:
So so so I guess I'm failing to see how

[00:41:10] Speaker 08:
what the department said in its motion to dismiss was really kind of against the interests of the tribe.

[00:41:16] Speaker 09:
Well, the fact that the tribe and the department agree on one particular aspect of the case doesn't mean that the department is competent to adequately protect the interests of the tribe.

[00:41:27] Speaker 09:
The decision, incidentally, which was made at the beginning of the case when the motion to intervene is considered.

[00:41:33] Speaker 09:
In this case, the department not only took the position that

[00:41:38] Speaker 09:
It had no role whatsoever once it made a decision as to whether or not the compact should be approved, disapproved, or allowed to take effect without approval.

[00:41:49] Speaker 09:
And by the way, it's not the first time that's happened in PPI versus CHEMFOR.

[00:41:57] Speaker 09:
2008 in the northern district of Florida, the department in that case, they said the secretary's role in the process precludes it adequately representing the seminal trial of the state of Florida there.

[00:42:15] Speaker 09:
They took the opposite position.

[00:42:16] Speaker 09:
They said that because they had taken no action and were neutral, they could not adequately represent the tribe.

[00:42:22] Speaker 09:
So they reversed its position, which raises, in fact, what this court said in Sharkey versus Babbitt, where they said that the department could not adequately represent the tribe, having reversed its position two times over the previous period of years.

[00:42:40] Speaker 09:
Now, what we're saying, if we permit this,

[00:42:43] Speaker 09:
is that the department has the authority to decide whether or not a tribe has immunity by the position that a particular administration decides to take.

[00:42:54] Speaker 09:
And it doesn't have that authority.

[00:42:55] Speaker 08:
Only Congress has the authority to have a great tribe's immunity, not the department by virtue of whether or not it's- But I mean, that's the way that Rule 19 and Rule 24 kind of work together and to the extent that, I mean, you're not arguing that

[00:43:11] Speaker 08:
Because the tribe has sovereign immunity, there are no circumstances whereby the government could litigate and adequately represent the tribe.

[00:43:21] Speaker 08:
The tribe always has to be party.

[00:43:23] Speaker 08:
It's always a necessary and indispensable party.

[00:43:27] Speaker 08:
You're not arguing that are you?

[00:43:28] Speaker 09:
No, I'm not arguing that.

[00:43:29] Speaker 09:
I think that there are cases in which they can be adequately represented.

[00:43:34] Speaker 09:
I think that they say, Paul, the case is a good example.

[00:43:37] Speaker 09:
That didn't involve an Indian tribe.

[00:43:38] Speaker 09:
It didn't involve another sovereign entity, which

[00:43:41] Speaker 09:
which was the country of Hungary.

[00:43:43] Speaker 09:
In that case, I think the court properly found, this circuit properly found that there was adequate representation.

[00:43:51] Speaker 09:
But in that case, they laid out the facts to show that the agency involved was effectively the alter ego of the government.

[00:43:59] Speaker 09:
For 20 years, they'd made all the decisions regarding the artworks that were at issue.

[00:44:06] Speaker 09:
identical issues, and we're far from that in this case.

[00:44:11] Speaker 09:
In this case, if you say in this case with these facts that the department is an adequate representative of the tribe, then what you're saying is you're providing a roadmap to a plaintiff to do exactly what this plaintiff did, which is to sue only the Department of the Interior, not sue the real parties in interest,

[00:44:34] Speaker 09:
And consequently, they have single-handedly defeated the sovereign's community.

[00:44:43] Speaker 09:
And you're also saying, as I said, that the Department of Interior gets to make that decision by what position they take in the case.

[00:44:51] Speaker 09:
And I think that that's contrary to everything that this court and the Supreme Court and other federal courts have said about unity.

[00:45:00] Speaker 08:
I'm not sure I understand the roadmap argument.

[00:45:02] Speaker 08:
I mean, in an APA case, the secretary or administrator of the agency is always the defendant and usually the only defendant, right?

[00:45:16] Speaker 08:
What roadmap was provided by the secretary here that a good lawyer wouldn't have already figured out?

[00:45:27] Speaker 09:
This extends beyond APA cases.

[00:45:30] Speaker 09:
What you're essentially saying is that a plaintiff, just by naming a federal agency, can lift

[00:45:40] Speaker 09:
or abrogate the sovereign immunity of the absent party, even when that party's substantial interests are at work.

[00:45:47] Speaker 09:
Because that would be the effect of this holding.

[00:45:50] Speaker 09:
It wouldn't be limited to APA.

[00:45:52] Speaker 09:
The only difference with APA is that the secretary is generally, or some agency, is generally the defendant in the case.

[00:46:00] Speaker 09:
But there's a much bigger issue before us here, which is who it is that's going to be abrogated

[00:46:07] Speaker 09:
able to fabricate a sovereign unity.

[00:46:10] Speaker 09:
I see that my time is up, Your Honor.

[00:46:12] Speaker 09:
And of course, we have questions.

[00:46:13] Speaker 09:
I'm happy to answer.

[00:46:14] Speaker 08:
Well, we may have derailed your presentation some.

[00:46:18] Speaker 08:
I'll see if Judge Childs, do you have questions?

[00:46:23] Speaker 08:
Yeah.

[00:46:24] Speaker 08:
Judge Henderson, do you have questions?

[00:46:26] Speaker 09:
No, I don't.

[00:46:28] Speaker 09:
You didn't derail it, Your Honor.

[00:46:29] Speaker 09:
You were oppression.

[00:46:30] Speaker 09:
I think you asked exactly the questions I wanted to answer.

[00:46:33] Speaker 08:
Thank you.

[00:46:33] Speaker 08:
All right.

[00:46:33] Speaker 08:
Thank you.

[00:46:34] Speaker 08:
We'll give you some time on rebut.

[00:46:37] Speaker 08:
All right, we have up next, um, leave Mr Whittaker for emica's dry state of Florida morning.

[00:46:47] Speaker 08:
Miss Whittaker morning.

[00:46:48] Speaker 06:
Thank you.

[00:46:49] Speaker 08:
He's the court.

[00:46:52] Speaker 06:
Judge Wilkins, you asked you asked some questions about whether the court needs to get into issues of state law.

[00:46:56] Speaker 06:
Obviously, say is here ready.

[00:46:58] Speaker 06:
We stand ready to address those questions.

[00:47:00] Speaker 06:
But I do agree with my friend Miss Heron.

[00:47:03] Speaker 06:
You don't need to.

[00:47:04] Speaker 06:
And just to

[00:47:05] Speaker 06:
Add to the response to your honor's question, there was some discussion of that 8C provision of IGRA, and your honor asked about the provisions of this chapter and what you think about the bootstrapping concern.

[00:47:17] Speaker 06:
And I think to add to what Ms.

[00:47:19] Speaker 06:
Herron said, the provisions of this chapter in that section is talking about substantive IGRA provisions.

[00:47:28] Speaker 06:
It wouldn't include, I think,

[00:47:30] Speaker 06:
subparagraph P, which is inapplicable here because this is a deemed approval.

[00:47:37] Speaker 06:
And as Ms.

[00:47:37] Speaker 06:
Herron pointed out, this court in Amador County grounded judicial review of a deemed approval expressly in the language of subparagraph C. And it is indeed true, as Your Honor pointed out, that there also was some discussion of subparagraph P. But I read the court's discussion just to be illustrating

[00:47:58] Speaker 06:
generally, that IGRA does provide, as a general matter, law to apply.

[00:48:03] Speaker 06:
It was not saying that for every deemed approval, you necessarily have to, in the 45-day period, verify compliance with the entire universe of federal law, and certainly not state law, which, of course, is not mentioned not only in subparagraph C, but is also not mentioned in subparagraph P, which I think is quite significant.

[00:48:27] Speaker 05:
Even if you're not going to have to go with the universe of federal law, if there's a specific complaint or issue lodge, would you not at least have to address that?

[00:48:40] Speaker 06:
I don't think you would have to address

[00:48:42] Speaker 06:
that the child's in the context of a deemed approval.

[00:48:45] Speaker 06:
And again, I think that the language in subparagraph C is tied to substantive provisions, which would not themselves turn on the content of state law.

[00:48:57] Speaker 06:
Now, my friends from Monterra, of course, have raised the question about whether exclusivity provisions implicate

[00:49:08] Speaker 06:
You know, 2710D paragraph one, subparagraph D, which does turn on state law.

[00:49:17] Speaker 06:
But that provision only goes to whether the gaming is lawful on Indian land.

[00:49:22] Speaker 06:
That doesn't go to whether a compact is valid for the permissible subjects of a compact.

[00:49:28] Speaker 06:
So that is not an issue here.

[00:49:30] Speaker 06:
And again, if it provides for gaming to be lawful, you need three things.

[00:49:33] Speaker 06:
You need tribal resolution.

[00:49:35] Speaker 06:
You need state law.

[00:49:37] Speaker 06:
in some sense, authorized gaming, you need a valid IGRA compact.

[00:49:41] Speaker 06:
We're only talking about the compact step of the analysis here.

[00:49:46] Speaker 06:
And that question is governed by the list in IGRA, the permissible subjects of an IGRA compact.

[00:49:53] Speaker 06:
There's no question that our compact, quote, governs gaming on Indian lands.

[00:49:57] Speaker 06:
The vast bulk of the compact expressly and indisputably concerns gaming on Indian lands.

[00:50:06] Speaker 08:
just ask a hypothetical.

[00:50:08] Speaker 08:
I should have asked it to, um, Ms.

[00:50:10] Speaker 08:
Aaron, but, um, since we're talking about this, let's suppose there was something in the, in the compact that was, um, kind of blatantly constitutional, but yet unconstitutional, but yet the secretary didn't act and it was deemed approved.

[00:50:28] Speaker 08:
So let's suppose the compact said that, you know, at the,

[00:50:34] Speaker 08:
at the casinos and in the one line bedding, only people of a certain race will be able to partake in the gambling activities and others cannot.

[00:50:49] Speaker 08:
And let's assume for the sake of the hypothetical that that violates equal protection law.

[00:50:56] Speaker 08:
How would that, if the secretary deemed that compact prove

[00:51:03] Speaker 08:
How would somebody challenge that?

[00:51:06] Speaker 08:
Or could they challenge that?

[00:51:08] Speaker 06:
Well, Your Honor, we're not disputing that subparagraph C would preclude review of constitutional claims, I guess.

[00:51:15] Speaker 06:
I guess I was only talking about non-aggress statutory claims.

[00:51:19] Speaker 06:
And obviously, there's a clear statement and requirements about the conclusion of review of constitutional claims.

[00:51:25] Speaker 06:
And certainly this is more of the bailiwick of my friend is Karen, but we are not contending that review would be included of that kind of claim, although we have not taken a position on the equal protection claim that's at issue in this case.

[00:51:38] Speaker 06:
So before I, before I sat down, I did want to address briefly the question of

[00:51:43] Speaker 06:
of remedy and partial vacater in this case, which is an issue that only we're raising.

[00:51:48] Speaker 06:
And just to underscore that, that's a very important issue to the state.

[00:51:51] Speaker 06:
It's worth $2.25 billion to the state of Florida over five years.

[00:51:55] Speaker 06:
Because even if everything Judge Friedrich said on merits is correct, she made a serious mistake in failing to partially vacate the rule.

[00:52:07] Speaker 06:
not just because there is probably the most expressed severance provision you'll ever see in your lives in the compact specifically directed at the sports betting.

[00:52:16] Speaker 06:
But also because the this BC language that was the predicate for judicial review in Amador County contains language that screams out for partial

[00:52:26] Speaker 06:
in so far as it provides for a deemed approval to be valid, but to the extent the compact is consistent with the provisions of this chapter.

[00:52:38] Speaker 06:
And contrary to district court's reasoning, nothing in Amador County would suggest otherwise.

[00:52:42] Speaker 06:
Obviously, Amador County didn't reach the merits of that case, of that at all.

[00:52:47] Speaker 06:
And in fact, its reliance on that very provision, I think, screams out that this court's normal partial vacator precedents apply with

[00:52:56] Speaker 06:
before Sherry in this particular context.

[00:53:01] Speaker 06:
I see that my short time has expired.

[00:53:03] Speaker 06:
I'd be happy to answer any further questions that the court might have.

[00:53:08] Speaker 08:
None from Judge Childs.

[00:53:10] Speaker 08:
I see Judge Henderson.

[00:53:11] Speaker 02:
No questions.

[00:53:14] Speaker 08:
All right.

[00:53:14] Speaker 08:
Thank you, counsel.

[00:53:15] Speaker 08:
I appreciate your participation.

[00:53:18] Speaker 08:
We'll now hear from counsel for at least Mr. Hume.

[00:53:27] Speaker 10:
Thank you, Judge Wilkins, Judge Childs, and Judge Henderson.

[00:53:36] Speaker 10:
May please the court, Hamish Hume, for the West Flagler Appellees.

[00:53:42] Speaker 10:
The Compact, in this case, negotiated by Governor DeSantis and the Seminole Tribe, purports to give the Seminole Tribe the statewide monopoly over online

[00:53:56] Speaker 10:
sports gambling in Florida.

[00:53:59] Speaker 10:
It expressly, by its terms, authorizes the tribe to offer such gaming to persons located anywhere in the state, whether the gamblers are located on or off Indian lands, when they place their bets.

[00:54:20] Speaker 10:
Geigra does not authorize the secretary

[00:54:25] Speaker 10:
to approve such a compact.

[00:54:29] Speaker 10:
Instead, it required the secretary to disapprove that compact because it sought to authorize gambling off Indian lands.

[00:54:38] Speaker 10:
And that is a direct consequence of both Igra's limitation to Indian lands and this court's decision in Amador County versus Salazar, the 2011 decision by Judge Tatel.

[00:54:54] Speaker 10:
The government concedes

[00:54:55] Speaker 10:
that Ingrid cannot authorize gambling that takes place off of Indian lands.

[00:55:03] Speaker 08:
Then why isn't that kind of dispositive?

[00:55:09] Speaker 08:
The government says that it's disclaiming that it's authorizing what you think that this compact authorized.

[00:55:19] Speaker 10:
Because, Judge Wilkins, they're trying to have it both ways.

[00:55:24] Speaker 10:
They're asking this court to reverse the district court and hold that IGRA approves the compact that authorized gambling off Indian lands.

[00:55:33] Speaker 10:
Even while they say in their legal briefs that IGRA cannot authorize gambling off Indian lands.

[00:55:40] Speaker 10:
This doesn't make any sense.

[00:55:42] Speaker 10:
What they're saying makes no sense and is going to be a cruel joke if this court accepts the argument.

[00:55:49] Speaker 10:
Because they are saying, we all admit

[00:55:52] Speaker 10:
as they have to under Amherst County, that IGRA does not authorize the gambling off the Indian lands.

[00:55:59] Speaker 10:
But you can still reference it.

[00:56:01] Speaker 10:
You can address it.

[00:56:03] Speaker 10:
You can squeeze it in there.

[00:56:05] Speaker 10:
We're not authorizing it.

[00:56:06] Speaker 10:
No, no, no.

[00:56:09] Speaker 10:
Well, what is it then?

[00:56:11] Speaker 10:
It's going to be part of an improved IGRA compact.

[00:56:14] Speaker 10:
IGRA only has one approval provision, 2710 D8A.

[00:56:19] Speaker 10:
and it says the secretary may approve an acre compact that authorizes and governs, that's the key word, that governs gaining on Indian lands.

[00:56:29] Speaker 10:
That's it.

[00:56:31] Speaker 10:
There's only one approval.

[00:56:32] Speaker 10:
There aren't multiple approvals.

[00:56:34] Speaker 10:
There isn't a big capital A authorization approval for the Indian lands and all this little kind of wink, wink, nudge, nudge approval for off Indian lands.

[00:56:43] Speaker 08:
But it's not going to

[00:56:45] Speaker 08:
provide any sort of race judicata or collateral stop or any other um, preclusion from you making that argument in Florida state court.

[00:56:59] Speaker 08:
Your honor, right?

[00:57:01] Speaker 10:
Your honor, I don't know that we're gonna go to state court.

[00:57:04] Speaker 10:
I don't know what arguments we're gonna automate.

[00:57:06] Speaker 10:
They're gonna raise all kinds of immunity.

[00:57:08] Speaker 10:
The reality is the express terms of this compact

[00:57:13] Speaker 10:
authorized gambling off Indian lands under it.

[00:57:17] Speaker 08:
Well, there was immunity, but I mean, the Supreme Court has made clear in Michigan v Bay Mills that, you know, you can get around that by suing tribal officials by, um, um, you know, seeking injunctive relief against, um, Florida state officials.

[00:57:39] Speaker 08:
Um,

[00:57:40] Speaker 08:
um, all sorts of other, other ways.

[00:57:43] Speaker 08:
I mean, to the extent that if it violates Florida state law, you're not without.

[00:57:49] Speaker 10:
Um, but your honor, whether it violates Florida state law directly and unambiguously depends upon whether it is part of an approved ABRA contract.

[00:58:03] Speaker 10:
So they're trying to get you to send us back to Florida.

[00:58:07] Speaker 10:
with an Ingram compact that has a giant rubber stamp saying approved under Ingram.

[00:58:13] Speaker 10:
And then they're saying, oh, but then just go and say that violates state law.

[00:58:18] Speaker 10:
If you are remotely tempted to accept that argument, I beg you, make it crystal clear that the order says this secretary's approval does not in any way authorize the gambling that takes place off Indian land.

[00:58:35] Speaker 10:
which is equivalent, such an order would be equivalent to what Mr. Whitaker just suggested to you, which is a partial record.

[00:58:45] Speaker 10:
This compact can be approved in every respect, except in so far as it seeks to authorize gambling off Indian lands.

[00:58:55] Speaker 10:
If they think that's legal under state law, then let them take the position it's legal under state law.

[00:59:02] Speaker 10:
than the imprimatur of a Negro approval, because they will use that to say that it satisfies state law.

[00:59:10] Speaker 10:
That's what's going on here.

[00:59:12] Speaker 10:
There is nothing remotely ambiguous in this compact.

[00:59:17] Speaker 10:
It does not seek, it does not reference gambling off Indian lands as something that is legal under state law.

[00:59:26] Speaker 10:
It says in part four, which is entitled Authorization and Location of Covered Games,

[00:59:31] Speaker 10:
This is on page 692 of the joint appendix.

[00:59:35] Speaker 10:
There's actually two versions of the compact in the appendix, so it's also on page 76.

[00:59:40] Speaker 10:
First sentence, first substantive provision, after all the definition.

[00:59:46] Speaker 10:
The tribe and state agree that the tribe is authorized to operate capital CG, covered gain, the defined term, on its Indian lands as defined in agri, in accordance with provisions of this compact.

[01:00:01] Speaker 10:
That's it.

[01:00:02] Speaker 10:
Authorized to do cover games on Indian lands as defined in EGRA.

[01:00:07] Speaker 10:
And then the very next sentence says, wagers on sports betting and fantasy sports made by players physically located within the state using mobile or electronic device shall be deemed to take place exclusively where received at the location of the servers or other devices on Indian lands.

[01:00:26] Speaker 10:
On Indian lands.

[01:00:27] Speaker 10:
It is a construct to satisfy a group.

[01:00:31] Speaker 10:
That's it.

[01:00:32] Speaker 10:
It is you would have to willfully blind yourself from what this compact says to accept the government's arguments.

[01:00:39] Speaker 10:
On page six, eighty seven of the compact, it defines covered games to include sports.

[01:00:47] Speaker 10:
Sports betting is defined on page six, eighty seven of the joint appendix.

[01:00:52] Speaker 10:
It says, all such wavering shall be deemed at all times to be exclusively conducted by the tribe at its facilities, including any such wagering undertaken by a patron physically located in the state, but not on Indian land using an electronic device meant to be the internet.

[01:01:12] Speaker 10:
It's expressly said that the gambling that is off Indian land is going to be treated as if it is on Indian land so that it may preempt

[01:01:22] Speaker 10:
approved under ABRA.

[01:01:25] Speaker 10:
There's nothing, no other way to read it.

[01:01:28] Speaker 08:
And the reason it does that.

[01:01:32] Speaker 08:
That sort of language is not, it's not like unique to this case or the first time that it's come up in one of these compacts.

[01:01:43] Speaker 08:
I believe it is.

[01:01:44] Speaker 08:
I thought that there was some reference to compacts

[01:01:53] Speaker 08:
tribes or returiers in California that had kind of analogous type.

[01:02:00] Speaker 08:
But I'll go back and check the record.

[01:02:03] Speaker 08:
Maybe my recollection is off.

[01:02:05] Speaker 10:
Or maybe that mine is, Judge Wilkins, I'm not.

[01:02:07] Speaker 10:
But what I'm remembering is the tribe references in a footnote, compacts with the state of Nevada.

[01:02:18] Speaker 10:
Three different compacts with the state of Nevada.

[01:02:21] Speaker 10:
which talk about gambling both on and off the reservation.

[01:02:24] Speaker 10:
But there, first of all, all it does, those compacts, is say you can do the gambling on the reservation that's legal off.

[01:02:31] Speaker 10:
The reservation cites the state law.

[01:02:32] Speaker 10:
And of course, in Nevada, gambling is legal everywhere.

[01:02:36] Speaker 10:
It was very, very different.

[01:02:38] Speaker 10:
I'm not aware of a construct like the one here that's been presented for approval by the secretary.

[01:02:47] Speaker 10:
In California,

[01:02:49] Speaker 10:
they tried, one of the tribes tried to offer a bingo over the internet.

[01:02:54] Speaker 10:
And that's the EPEC case in the Ninth Circuit that held that could not be squeezed into air ground because it did involve gambling off the Indian land.

[01:03:03] Speaker 10:
So that case supports us.

[01:03:04] Speaker 10:
And I believe the United States government took the same position there and in the Coeur d'Alene case that when you have gambling over the internet, gambling takes place both where the bet is placed and where it is received.

[01:03:15] Speaker 10:
That's the U.S.

[01:03:17] Speaker 10:
government's position, which is why

[01:03:19] Speaker 10:
they can't accept this construct under IGRA.

[01:03:23] Speaker 10:
Not only is it transparent what it's trying to do, but they agree in other cases that the gambling takes place both where the bet is placed and where it's received.

[01:03:31] Speaker 10:
So this compact does, in fact, authorize gambling off Indian lands, which IGRA doesn't permit.

[01:03:39] Speaker 10:
The Supreme Court says everything, literally everything in IGRA, is about gambling on Indian lands.

[01:03:45] Speaker 10:
And this court's Amador County

[01:03:48] Speaker 10:
decision, Billy says, you can't have a compact authorizing gambling that's not on Indian lands.

[01:03:54] Speaker 10:
Imagine a case where Amador County just beat the facts slightly to say they're a few percent off, one on Indian land, one on indisputed Indian land, one on the land on the Ranchera in that case where it was a dispute whether it met the definition of Indian land.

[01:04:11] Speaker 10:
And then imagine they just said, yeah, but they're related because we're going to have the same back office operations for both.

[01:04:17] Speaker 10:
You get to squeeze and crowbar in the one that's off the reservation into the contact.

[01:04:22] Speaker 10:
You cannot read Amador County is allowing for that.

[01:04:28] Speaker 10:
So your honor, we do not think you need to resolve a state law question to affirm the district court.

[01:04:35] Speaker 10:
And the district court quite clearly did not, went out of her way to say she's not making a ruling on state law.

[01:04:42] Speaker 10:
And the reason you don't, I just want to do my best to try to explain this is,

[01:04:46] Speaker 10:
On the face of it, the only thing that can be approved is a compact governing gaming on Indian land.

[01:04:54] Speaker 10:
This compact reports to govern gaming both on and off Indian land by its express terms.

[01:05:00] Speaker 10:
It governs it, it authorizes it, and it seeks IGRA approval for it.

[01:05:05] Speaker 10:
And as a matter of federal law, you can't do that.

[01:05:08] Speaker 10:
Now, I want to be clear that that's why it begins and ends with that.

[01:05:13] Speaker 10:
You don't need to go to state law.

[01:05:16] Speaker 10:
By the same token,

[01:05:17] Speaker 10:
This whole camera of having to blind yourself to the law is, I think, a bit misleading.

[01:05:22] Speaker 10:
If the federal law that the secretary has to determine whether it complies with, and this court in Amador County on page 381 says all three provisions in 2710 D8B allow for disapproval, the secretary must disapprove if she concludes

[01:05:44] Speaker 10:
that anyone is violated.

[01:05:45] Speaker 10:
And that includes federal laws like the Wire Act and the Unlawful Internet Gaming Enforcement Act, UBGO.

[01:05:54] Speaker 10:
Both of those acts, their violation depends upon what's going on in state law.

[01:06:00] Speaker 10:
So to determine if UBGO is violated, the secretary does have to look at state law.

[01:06:06] Speaker 10:
And there's no case that says when the federal law approval turns on the question of state law,

[01:06:14] Speaker 10:
throw out their hands and pretend that they have no competencies over state law.

[01:06:17] Speaker 10:
That's just not correct.

[01:06:21] Speaker 10:
You are able to look at state law.

[01:06:23] Speaker 10:
And we don't think IGRA requires you to look at state law for the IGRA on Indian lands point.

[01:06:31] Speaker 10:
Because that's crystal clear under IGRA, you can only have a compact that authorizes gaming on the Inlands, something other than the compact has to deal with gambling off Indian land.

[01:06:42] Speaker 10:
But if this court disagrees,

[01:06:44] Speaker 10:
which I, you know, and some of the arguments seem to suggest that the IGRA approval may depend upon whether it's legal under Indian lands or not.

[01:06:53] Speaker 10:
Whether the gambling off Indian lands is lawful or not is a question of state law.

[01:06:59] Speaker 10:
If the court thinks it has to address state law, then the court can look at state law.

[01:07:02] Speaker 10:
And it is unambiguous here from Article 30 of the Florida Constitution that the gambling off Indian lands is not lawful unless it is part of an IGRA compact

[01:07:14] Speaker 10:
governing gaining on tribal lands, says on tribal lands in the Constitution.

[01:07:19] Speaker 10:
So it bounces you right back to IGRA.

[01:07:23] Speaker 10:
The only way it can be legal under state law is if the IGRA authorizes it and never does it.

[01:07:31] Speaker 08:
What of the Florida Supreme Court advisory opinion?

[01:07:36] Speaker 10:
The advisory opinion on the constitutional amendment that the question about, yes.

[01:07:47] Speaker 10:
I don't think, I think that we think the way that was presented in one of the briefs was quite misleading.

[01:07:52] Speaker 10:
I think we would ask the court to look at the actual decision in the advisory opinion, which makes clear that it is not saying anything different from the constitution.

[01:08:02] Speaker 10:
It is saying the only, everything requires a reference.

[01:08:06] Speaker 10:
including sports betting, which is clearly class three betting, number one.

[01:08:11] Speaker 10:
And the only thing that it's saying is carved out is something that is proved as part of a valid, a grip compact, forgiving on tribal land, which is the language in the Constitutional Amendment.

[01:08:24] Speaker 10:
And it wanted to make the advisory opinion in Florida processes essentially to make sure proposed referendum is not misleading.

[01:08:32] Speaker 10:
That's the job of the Supreme Court and those advisory opinions.

[01:08:35] Speaker 10:
And I think it is simply saying,

[01:08:36] Speaker 10:
It's not misleading because it's clear the only car out here is a neighbor compact for gaming on tribal land.

[01:08:43] Speaker 10:
So I can't remember the precise turn of phrase they quoted that we thought was slightly misleading, but I think we felt sorry if you go back and look at the actual context of that.

[01:08:53] Speaker 10:
It's helpful to us, not to them.

[01:08:57] Speaker 08:
So just to make sure that I have your argument correct, you believe that to the extent that the compact says that

[01:09:07] Speaker 08:
activity, gambling activity that is not taking place on tribal land like a bet from an app on a phone sitting at someone's home in Miami or Calahasset or someplace that's not on a reservation.

[01:09:28] Speaker 08:
To the extent that the compact tries to say that that can be deemed to have

[01:09:36] Speaker 08:
occurred entirely on tribal land, if the servers are on tribal land, that that violates IGRA because, not because it violates state law, but because it violates what?

[01:10:00] Speaker 10:
It violates 2710A,

[01:10:06] Speaker 10:
in the sense that it goes beyond what the secretary can authorize.

[01:10:13] Speaker 10:
The word it violates a grant we would agree with, perhaps it would be clearer if I were to say it this way, that it goes beyond what the secretary can authorize under a grant.

[01:10:24] Speaker 10:
It goes beyond what an inward compact can authorize under 2810 D1A.

[01:10:30] Speaker 10:
Both of those provisions, D1A, D8A, make clear that what the compact can authorize and what the secretary can approve

[01:10:37] Speaker 10:
is only the combat on the Indian lands, not all.

[01:10:44] Speaker 08:
And why is it that the secretary can't say, well, we have lots of laws for situations where it's unclear how we're going to construe who has jurisdiction over a transact

[01:11:07] Speaker 08:
You know, when you buy something over the internet, whose state sales tax do you pay?

[01:11:12] Speaker 08:
That sort of thing.

[01:11:15] Speaker 08:
And statutes drawn to deem a transaction to have occurred in a certain way.

[01:11:23] Speaker 08:
And as long as they don't violate the commerce clause or something, full face of credit clause, that can be done.

[01:11:37] Speaker 08:
So I'm just trying to understand what is the source of the organic law that you're saying that this violates, this deemed to have occurred.

[01:11:49] Speaker 08:
What exactly does it violate?

[01:11:51] Speaker 08:
Saying that that IGRA itself says that you can't deem something to occur on Indian land in this fashion?

[01:12:01] Speaker 08:
Is it Florida law?

[01:12:03] Speaker 08:
Some other federal law?

[01:12:04] Speaker 08:
What is it?

[01:12:07] Speaker 10:
If I understand the question correctly, Judge Wilkins, I think it is the same answer that paper doesn't authorize, but I want to get, it's more penetrating questions, I want to make sure I get to it.

[01:12:19] Speaker 10:
Paper doesn't authorize the gambling that takes place awfully.

[01:12:22] Speaker 10:
And I think the question then is, well, what enablers says you can't accept this contract on this deaning?

[01:12:30] Speaker 10:
What enablers says you can't accept deaning as

[01:12:34] Speaker 10:
so then just treat it as if it's gambling on Negro lands.

[01:12:36] Speaker 10:
And I would say the same provisions say that, because there's nothing in Negro that could allow for such a brazen recharacterization of the actual facts.

[01:12:48] Speaker 10:
There's no dispute what the actual facts are.

[01:12:50] Speaker 10:
The person with the device in Miami or Tallahassee or anywhere in the state can now place bets.

[01:12:55] Speaker 10:
So there is gambling, but there's no factual dispute.

[01:12:59] Speaker 10:
As a matter of law, as I said, and I think this is in reference to the footnote 13 of our brief,

[01:13:03] Speaker 10:
The United States government is taking the position that gambling takes place both where the bet is placed and received.

[01:13:10] Speaker 10:
The Ninth Circuit had that same conclusion in the EPA case.

[01:13:14] Speaker 10:
So as both factual matter and legal matter, you can't re-characterize all the gambling as if it's on Indian lands for either authorization.

[01:13:24] Speaker 10:
Now, I also heard the question of whether or can't they do it for other purposes?

[01:13:31] Speaker 10:
just allocate jurisdiction and make sure they know who's regulating what.

[01:13:36] Speaker 10:
But that is a legal argument they've made to try to defend this.

[01:13:41] Speaker 10:
That should be rejected as a matter of law for a number of reasons, including that there's nothing that that deeming actually does.

[01:13:52] Speaker 10:
that helps clarify anything about the regulation and jurisdictional issues.

[01:14:00] Speaker 10:
If you look, I would ask the court to look at the one appendix 694 to 717.

[01:14:04] Speaker 10:
23 pages of this contract discuss things like allocation of jurisdiction and who regulates what.

[01:14:14] Speaker 10:
And not a single provision there turns upon the deeming language.

[01:14:19] Speaker 10:
The deeming language is not cross-referenced.

[01:14:21] Speaker 10:
It would all make sense without the deeming language, and the deeming language doesn't change any of it.

[01:14:26] Speaker 10:
And those are the sections that deal with rules and regulations, patron disputes, workers comp, court claims, limited consent to stoop, state monitoring, jurisdiction, licensing.

[01:14:38] Speaker 10:
None of those provisions turn upon this deeming language.

[01:14:41] Speaker 10:
So if you look at it, there's no way to understand it other than that the deeming language is an effort

[01:14:50] Speaker 10:
to get around the April limitations that only authorize gaming on demand.

[01:14:56] Speaker 10:
And the reason they want to get around those limitations is because of the fact that otherwise they would need a citizen's referendum, which they don't have.

[01:15:06] Speaker 10:
And so the court simply needs to look at what's actually happening.

[01:15:11] Speaker 10:
And even the implementing legislation that makes no pretense

[01:15:16] Speaker 10:
Authorizing this in the off Indian lands as a matter of state law independent of a. Implementing legislation itself says that this compact is only law of the whole thing.

[01:15:28] Speaker 10:
If it's approved under it, it doesn't say, by the way, try you can put a server off the Indian land.

[01:15:34] Speaker 10:
And office works gaming.

[01:15:35] Speaker 10:
Your heart's content, you now have a monopoly on sports gaming.

[01:15:39] Speaker 10:
We know that for gambling on Indian lands, you have to go get a neighbor approval and a contact with their approval.

[01:15:44] Speaker 10:
But for the gambling off Indian lands, you can just do that.

[01:15:47] Speaker 10:
Green light.

[01:15:47] Speaker 10:
It doesn't do that.

[01:15:49] Speaker 10:
Because it knows the only road to success here has to be to have the whole thing approved under Indian land.

[01:15:56] Speaker 10:
And so if you look at page 754 of the appendix, it says, if the gaming compact is not approved by the secretary, we go back to the old compact.

[01:16:06] Speaker 10:
If you look at page 756 to 57, it says, here's the gaming we're authorizing.

[01:16:12] Speaker 10:
Here's the specific categories of gaming.

[01:16:15] Speaker 10:
And this is authorizing.

[01:16:17] Speaker 10:
It says, the purposes of satisfying EDURA, the gaming activities authorized under the gaming compact.

[01:16:24] Speaker 10:
are as follows, pursuant to the Compact.

[01:16:28] Speaker 10:
It says it three times that the only way it's authorized is because it's in the Compact.

[01:16:32] Speaker 10:
And then when it lists the gaming, on page 757 of the appendix, it lists fantasy sports and online sports with the Demian language.

[01:16:42] Speaker 10:
Again, because the only way it can be authorized is if it's deemed to occur on Indian lands.

[01:16:47] Speaker 10:
Your Honor, my time is up.

[01:16:49] Speaker 10:
I'd be happy to address other questions.

[01:16:51] Speaker 05:
If you can just touch on the motion to dismiss with respect to the merits and then the arguments that we've heard here today about the intervention and the possibility of the arguments.

[01:17:03] Speaker 10:
Yes.

[01:17:03] Speaker 10:
Thank you for the opportunity to do that, Judge Childs.

[01:17:06] Speaker 10:
Obviously, we agree with the United States that the court correctly rejected the Rule 19 motion.

[01:17:14] Speaker 10:
I would maybe add just a couple of points the government did not make.

[01:17:19] Speaker 10:
The Disappell case is the key case from this March.

[01:17:24] Speaker 10:
I don't know if I'm pronouncing it correctly, but the Hungarian case, Disappell, a judge-scaled decision, on page 748 of that decision, that page alone refutes everything the tribe has argued.

[01:17:35] Speaker 10:
They say, once you have a sovereign, an absent sovereign, some interest, that trumps everything.

[01:17:41] Speaker 10:
But this appell says, no, it doesn't.

[01:17:43] Speaker 10:
It just means you look at the other four factors and maybe don't go beyond those four factors in Rule 19B.

[01:17:49] Speaker 10:
And then it very quickly moves on and says, if you're adequately represented, that deals with prejudice.

[01:17:56] Speaker 10:
And what they rely on are two cases that I really want to emphasize implicate a foreign sergeant absent sergeant's immunity far more severely and directly than is the case here.

[01:18:08] Speaker 10:
In the Pimentel case,

[01:18:10] Speaker 10:
You have an interpleader by Merrill Lynch as a plot of money saying, we don't know who owns this.

[01:18:15] Speaker 10:
The human rights victims represented in the US, the human rights victims represented in the Philippines, I think, for the Philippine government.

[01:18:25] Speaker 10:
Maybe the fourth was the Marcos family.

[01:18:27] Speaker 10:
The Philippine government was a potential claimant in this plot of money.

[01:18:31] Speaker 10:
And so they had direct interest.

[01:18:33] Speaker 10:
Do they get the money or not?

[01:18:35] Speaker 10:
And in that scenario, you can see why the absence of the known is going to represent their interest because everyone else in the interpetal wants the money for themselves.

[01:18:43] Speaker 10:
This is a very, very, very different case.

[01:18:46] Speaker 10:
In Kickapoo, in this court's decision in Kickapoo, the tribe sued the secretary of interior to try to declare a compact valid after the Kansas Supreme Court

[01:19:00] Speaker 10:
to enter into that, to buy the state.

[01:19:03] Speaker 10:
The legislature had to approve it, the legislature had not approved it.

[01:19:06] Speaker 10:
So they're trying to bind the state to a contract that the Supreme Court said it couldn't legally be bound to.

[01:19:15] Speaker 10:
I think the point is, and even in this appell, there's a far more direct interest where Hungary is saying, we own the property, we own it, not this asset manager, we do.

[01:19:25] Speaker 10:
And so here, the question is, we're not trying to oppose any obligations on the tribe.

[01:19:30] Speaker 10:
We're not trying to take property of the tribe.

[01:19:33] Speaker 10:
We're simply challenging the federal approval that everybody agrees is a prerequisite to make this contract valid.

[01:19:40] Speaker 10:
I understand why the interests are implicated, but it is not the same as a direct hack on their sovereignty and their sovereign immunity.

[01:19:49] Speaker 10:
There has to be an APA cause of action to challenge the agency action.

[01:19:52] Speaker 10:
And I do think the argument would

[01:19:55] Speaker 10:
and all other cases, I think implicit in Amador County is that given that this court has a duty, according to footnote three, a trip approved to raise to respond to rule 19 problems, then it should have been raised in Amador County.

[01:20:11] Speaker 10:
And it wasn't.

[01:20:11] Speaker 10:
And in fact, when the tribe showed up later to say it was a necessary party, it was deemed to be untimely.

[01:20:19] Speaker 02:
Mr. Hume, I don't have a question so much as I guess it's a comment.

[01:20:23] Speaker 02:
I don't know if your resistance is intentional, but it seems to me that your argument is simply that DOI has either taken an ultra virus action or its reading is, I know we don't usually say it's ultra virus, but it's unauthorized.

[01:20:48] Speaker 02:
That's it, right?

[01:20:52] Speaker 10:
Judge Anderson, I appreciate that.

[01:20:53] Speaker 10:
I think it is.

[01:20:54] Speaker 10:
I'm not sure what I was resisting on that, right?

[01:20:57] Speaker 02:
Well, there's a lot of talk about ultraviruses and it has a very narrow application.

[01:21:03] Speaker 02:
I don't think I agree with that.

[01:21:06] Speaker 02:
I have the traditional interpretation of it, which is if an agency doesn't have the authority to do something or read something a certain way, that's ultra virus.

[01:21:20] Speaker 02:
And that's how I see your argument.

[01:21:23] Speaker 10:
And I agree with that, Your Honor.

[01:21:24] Speaker 10:
That is what we're saying.

[01:21:25] Speaker 10:
It's not the secretary's approval, whether it was deemed or whether it had been actual, does not, is not authorized by agency.

[01:21:37] Speaker 10:
approval 2710 DAA does not authorize the approval of a compact that government expressly permits gambling off Indian lands.

[01:21:47] Speaker 02:
Thank you.

[01:21:48] Speaker 02:
Thank you.

[01:21:51] Speaker 08:
Your owners.

[01:21:52] Speaker 08:
All right.

[01:21:53] Speaker 08:
If there's no other questions, then judge Henderson.

[01:21:55] Speaker 02:
Yes.

[01:21:58] Speaker 02:
No, I don't have another question.

[01:22:00] Speaker 08:
No.

[01:22:01] Speaker 08:
All right.

[01:22:01] Speaker 08:
Thank you.

[01:22:02] Speaker 08:
All right.

[01:22:02] Speaker 08:
Thank you, Mr. Hugh.

[01:22:05] Speaker 08:
And, um,

[01:22:06] Speaker 08:
Now I believe we will hear from Ms.

[01:22:08] Speaker 08:
Reed on behalf of Amicus Curiae, Monterra, and other parties.

[01:22:24] Speaker 00:
May I please support Janaya Reed on behalf of the gambling opponent, Amiki.

[01:22:29] Speaker 00:
The compact between the Seminole tribe and the state of Florida was a blatant end run around the Florida Constitution, and for that independent reason, the district court properly vacated the compact in its entirety.

[01:22:41] Speaker 00:
Amendment 3 to Florida's Constitution was a seminal shift in Florida law.

[01:22:45] Speaker 00:
Florida gaming law provides generally a prohibition against gambling, and the legislature has, on occasion over the years, allowed some very limited exceptions to that general prohibition.

[01:22:57] Speaker 00:
But in 2018, the people of Florida overwhelmingly decided to take that authority away from the legislature.

[01:23:05] Speaker 00:
In fact, more than 71% of Florida voters who voted on the issue decided that a citizen's initiative would be the only mechanism in which you would be able to authorize expanded casino gambling in Florida.

[01:23:19] Speaker 00:
There's no dispute here sports betting that's an issue here was not allowed and was not approved through a citizen's initiative.

[01:23:26] Speaker 00:
It was illegal in Florida.

[01:23:29] Speaker 00:
And for that reason, the secretary was required to disapprove the compact.

[01:23:33] Speaker 00:
You've heard today some arguments in connection with IGRA and off reservation, allowing gambling off reservation.

[01:23:42] Speaker 00:
That violates Florida law as well, but it also violates IGRA.

[01:23:46] Speaker 00:
And IGRA does not allow compact to be used to allow gambling that is otherwise unlawful in the state.

[01:23:53] Speaker 00:
It itself provides that the gambling must be lawful in the state, and here it was not.

[01:23:59] Speaker 00:
Sports betting was not lawful.

[01:24:01] Speaker 00:
And there's other provisions with respect to the compact that it reported to authorize that expanded gambling and gave it to the tribe that no one else in Florida lawfully had.

[01:24:11] Speaker 00:
That was error.

[01:24:12] Speaker 00:
And to allow the Department of the Interior to get away with not disapproving a compact that violates the law would set precedent that is inconsistent with Amador.

[01:24:26] Speaker 08:
What is your position as to what we or the district court should have done, certified the issue to the floor of the Supreme Court?

[01:24:36] Speaker 00:
Your Honor, no, our position is not that you would need to certify the issue to the Supreme Court.

[01:24:40] Speaker 00:
The district court properly found that the compact violated IGRA, and independently here, it also violated state law.

[01:24:50] Speaker 00:
And state IGRA requires and specifically references state law.

[01:24:54] Speaker 00:
And so it was required to look at that.

[01:24:57] Speaker 00:
Now, you know, the Department of the Interior has suggested that this is speculation in connection with Florida law.

[01:25:04] Speaker 00:
It is not.

[01:25:05] Speaker 00:
It was clear on the record.

[01:25:07] Speaker 00:
Specifically, there were letters submitted to the Department of the Interior at JA645, JA663, that put this issue about Amendment 3 specifically before the Department of the Interior.

[01:25:20] Speaker 00:
And so it was not allowed to ignore the fact that it requires the gambling to be lawful in Florida.

[01:25:28] Speaker 00:
And it was not, it plainly was not.

[01:25:30] Speaker 00:
Um, and the department of the interior was required to look at that.

[01:25:35] Speaker 00:
Now, um, in terms of, you know, certifying to the Supreme court, that is not necessary.

[01:25:40] Speaker 00:
Um, but we think it's clear from the face of the amendment, the amendment itself states that it's voter control of gambling in Florida.

[01:25:48] Speaker 00:
That's the title of the amendment.

[01:25:51] Speaker 00:
It's clear on its face.

[01:25:52] Speaker 00:
It does not get, and it's not disputed that that's the amendment.

[01:25:56] Speaker 00:
And that is what it provides.

[01:26:00] Speaker 00:
And for that reason, the district court should have the district court properly vacated the compact in its entirety.

[01:26:09] Speaker 08:
Thank you.

[01:26:12] Speaker 08:
All right.

[01:26:16] Speaker 08:
Ms.

[01:26:16] Speaker 08:
Heron.

[01:26:16] Speaker 08:
know that you were out of time, but why don't you take four minutes for recall?

[01:26:25] Speaker 01:
Thank you, Your Honor.

[01:26:29] Speaker 03:
So Your Honor, in the brief time that you've allowed me, there are three main points that I want to make in addition to addressing any questions that have come up for Your Honor throughout the course of the argument.

[01:26:40] Speaker 03:
And the first is with regard to West Flagler's

[01:26:45] Speaker 03:
The null of their argument about why there is a, why the secretary violated INGRA here is this idea that there's an attempt here to have it both ways.

[01:27:00] Speaker 03:
There is not any ability as a matter of law to have it both ways.

[01:27:05] Speaker 03:
The language that's an issue in the compact, the deemed approved, or excuse me, the deemed language in terms of deeming to occur on Indian lands.

[01:27:15] Speaker 03:
The secretary has explained, can be lawfully read to mean that it is being deemed to occur on Indian lands for the purpose of deciding regulatory jurisdiction, which no one has suggested would be improper.

[01:27:30] Speaker 03:
That is a lawful reading.

[01:27:32] Speaker 03:
The alternative reading.

[01:27:33] Speaker 08:
But that reading is in something that you said that we shouldn't even or isn't even really properly before us because that's not in the

[01:27:46] Speaker 08:
The decision was just simply the passage of time.

[01:27:54] Speaker 03:
Yes, Your Honor.

[01:27:55] Speaker 03:
And I want to be clear.

[01:27:55] Speaker 03:
We're not relying on that letter.

[01:27:57] Speaker 03:
And the reason is this.

[01:27:59] Speaker 03:
The secretary in a no action context doesn't approve a decision.

[01:28:03] Speaker 03:
So this isn't a chainery kind of situation where we're looking for what the secretary's reasoning was.

[01:28:09] Speaker 03:
That's not an applicable framework.

[01:28:11] Speaker 03:
What we're doing is looking, as a matter of law, at whether this compact violates law.

[01:28:17] Speaker 03:
Here, this deemed language, we have said on the brief, there is a reading that is permissible, and there is a reading that would be unlawful.

[01:28:25] Speaker 03:
That is, to understand this deemed language as saying that it is occurring on Indian lands for purposes of IGRA, such that state law is no longer relevant.

[01:28:35] Speaker 03:
That second reading would be very clear.

[01:28:38] Speaker 03:
is unlawful, that would not be an appropriate reading.

[01:28:44] Speaker 03:
Under that reading, that language would violate IGRA in that the secretary would be exceeding authority.

[01:28:52] Speaker 03:
When you have a situation where you have one possible reading of a compact term that is permissible and one that is unlawful, federal contract law, which everyone agrees applies here, says that the lawful one governs.

[01:29:06] Speaker 03:
For that reason, the proper reading of this compact under those principles is that this lawful reading is the one that it controls.

[01:29:17] Speaker 03:
And to be very clear,

[01:29:18] Speaker 03:
you know, if there is some concern that, you know, the state or the tribe may try to turn around in some other proceeding in Florida and say, well, no, that's not actually what it means.

[01:29:29] Speaker 03:
I do just want to point out that, first of all, the federal government has been clear in this litigation that this is what it understands that it means and that an alternative reading would be unlawful.

[01:29:38] Speaker 03:
And that's something that the tribe and state would have to contend with.

[01:29:41] Speaker 03:
Second, the tribe and the state have told this court in its filings as amicus

[01:29:46] Speaker 03:
that that is not what they understand the compact to do.

[01:29:48] Speaker 03:
So I don't think it is fair to lightly assume, and the United States would not want to lightly assume that those two sovereigns would then turn around and say something contradictory to another court.

[01:30:00] Speaker 03:
And the other thing is that simply as a matter of law, it doesn't really matter what the hope or intent may have been, because the correct legal reading is the one that is permissible, and that reading is

[01:30:13] Speaker 03:
one that is a valid reading of the compact for the reasons that we've laid out in the brief.

[01:30:20] Speaker 03:
Under that reading, I want to be very clear, the deemed language does not serve no purpose.

[01:30:25] Speaker 03:
The deemed language makes clear that all of those general provisions of who will have regulatory jurisdiction that Council for West Lytle referenced

[01:30:34] Speaker 03:
apply to gaming off Indian lands.

[01:30:37] Speaker 03:
And it's important, I think, that the compact would be clear about that because normally a tribe would, of course, have no authority to regulate things that are going on outside of its Indian lands.

[01:30:50] Speaker 03:
So your honor, I see I'm out of time.

[01:30:52] Speaker 03:
One of the other points I wanted to make went directly to a question that you raised, Judge Wilkins, to the extent you would permit me a moment to answer that.

[01:31:01] Speaker 03:
So you had asked,

[01:31:04] Speaker 03:
Imagine a hypothetical compact that was blatantly unconstitutional on its face that said, you know, only people of certain races would be permitted to engage in gambling.

[01:31:15] Speaker 03:
And you said, what's the recourse if the secretary took no action there?

[01:31:22] Speaker 03:
And I would say in the first instance,

[01:31:24] Speaker 03:
The main recourse is that I think the government is entitled to a presumption of regularity, and that I don't think there's any reason to assume that the secretary would take no action in the face of something that was blatantly unconstitutional on its face.

[01:31:41] Speaker 03:
Here, the constitutionality argument that Wes Flagler has referenced is far from something that's blatant on its face.

[01:31:48] Speaker 03:
As we've said, it's simply a non-starter under the relevant constitutional precedent.

[01:31:53] Speaker 03:
And the other point I would point out is that even in a situation where the secretary did take no action, there would still potentially be claims that people could bring that the state had taken an action that violated their constitutional rights.

[01:32:08] Speaker 03:
And the fact that a compact is approved through an action does not do anything to insulate such claims or to render conduct that may actually violate the Constitution.

[01:32:23] Speaker 03:
turn them lawful by dint of approval.

[01:32:25] Speaker 03:
So for all these reasons, Your Honor, I would again say that the compacted issue here can be read lawfully.

[01:32:34] Speaker 03:
No one has presented a problem with the lawful interpretation of that compact, because it can be read lawfully.

[01:32:42] Speaker 03:
And as a matter of federal contract interpretation, that is the lawful reading that governs.

[01:32:47] Speaker 03:
And in that situation, the secretary was not compelled

[01:32:52] Speaker 03:
to adopt an inferior reading.

[01:32:56] Speaker 03:
And so she had no duty to disapprove the contact on these facts.

[01:33:00] Speaker 08:
Thank you, Council.

[01:33:04] Speaker 08:
Mr. Richard, I believe your time was up.

[01:33:09] Speaker 08:
I'll give you some time as well.

[01:33:12] Speaker 08:
If you want it, give you three minutes.

[01:33:15] Speaker 08:
Thank you, Your Honor.

[01:33:17] Speaker 09:
In response to the argument by the plaintiffs attempting to distinguish

[01:33:22] Speaker 09:
number of the cases that have upheld the importance of immunity for the tribe.

[01:33:27] Speaker 09:
That were given misses the core issue.

[01:33:31] Speaker 09:
What those cases consistently held was that immunity is the overwhelmingly predominant question in a Rule 19B analysis.

[01:33:43] Speaker 09:
And that in turn goes to the first question that I responded to from the Your Honor, Dr. Wilkins, which is this.

[01:33:52] Speaker 09:
But for over 100 years, the United States refused to recognize the sovereignty of Indian tribes.

[01:33:59] Speaker 09:
It took the United States Supreme Court to correct that.

[01:34:02] Speaker 09:
And even after it corrected it, the United States failed to abide by that ruling for decades until the federal courts finally gave the tribes the respect they deserved with respect to immunity that goes with sovereignty.

[01:34:20] Speaker 09:
So when your honor says, why is it important to the Seminole tribe that this issue be particularly addressed?

[01:34:28] Speaker 09:
It's because the lower court failed to respect that immunity, which in turn failed to respect the tribal sovereignty.

[01:34:36] Speaker 09:
And that goes to the core of the Seminole tribe self-identity.

[01:34:40] Speaker 09:
So that's the reason.

[01:34:42] Speaker 09:
Thank you.

[01:34:43] Speaker 08:
Can I just ask you, thank you for that, Mr. Richard.

[01:34:48] Speaker 08:
Do you disagree with anything that your friend Miss Aaron said in her rebuttal with respect to how the compact, the deemed to have occurred language should be construed by the secretary or in this court?

[01:35:08] Speaker 09:
Well, I'm not sure when you say everything, because I don't remember everything.

[01:35:13] Speaker 09:
But I will say that the trance position is that it complies with state law.

[01:35:18] Speaker 09:
But that question ultimately is for the Florida Supreme Court.

[01:35:21] Speaker 09:
And it's not an issue for IGRA.

[01:35:25] Speaker 09:
IGRA clearly authorizes states and the tribes to adopt compacts that touch on this subject.

[01:35:36] Speaker 09:
And the other thing I would mention, Your Honor, is that there's only one reason that IGRA talks about on Indian lands.

[01:35:45] Speaker 09:
And it wasn't intended to restrict the tribes in Indian lands.

[01:35:49] Speaker 09:
IGRA was a direct response by Congress to Cabezon.

[01:35:53] Speaker 09:
And Cabezon said that states could not regulate gaming on Indian land.

[01:35:59] Speaker 09:
So that's the only issue that IGRA was intended to address.

[01:36:03] Speaker 09:
Nothing in IGRA suggests

[01:36:06] Speaker 09:
that it was the intent of Congress when it was passed to restrict the Indians in a way that any other gaming enterprises when the state were not restricted.

[01:36:17] Speaker 09:
So there's nothing in AGRRA.

[01:36:20] Speaker 09:
AGRRA is just the opposite.

[01:36:21] Speaker 09:
AGRRA was intended to encourage the states and the tribes to enter in agreements precisely like this one.

[01:36:31] Speaker 08:
All right, thank you.

[01:36:32] Speaker 08:
Judge Henderson, anything?

[01:36:33] Speaker 02:
No, thank you.

[01:36:35] Speaker 08:
All right, I think we have the arguments.

[01:36:38] Speaker 08:
We thank you for your presentations.

[01:36:40] Speaker 08:
We will take the case under by.