By Chet Barfield
UNION-TRIBUNE STAFF WRITER
June 7, 2006

Attorneys for tribes challenging the state in disputes over California’s Indian gaming compacts say they’re being trumped by a legal defense all but guaranteed to get any such lawsuit dismissed.

The state has invoked this defense to quash four gaming-compact suits tribes have brought since 2004, including one dismissed last month by a federal judge in Sacramento.

“The state gets to dictate the meaning of every provision of this compact,” said George Forman, attorney for the Central Valley tribe whose suit over slot machine licenses was dismissed May 16. “There’s no way anyone can challenge the state’s calculations.”
At issue is a federal civil regulation called Rule 19. It requires any party deemed “necessary and indispensable” to be included as a plaintiff or defendant. If that can’t be done, case dismissed.

Most of California’s 61 tribal compacts are boilerplate agreements signed by former Gov. Gray Davis in 1999. In all four court challenges, the state has successfully argued that claims raised by the plaintiff tribe would affect others in California, making them indispensable parties.

The rule could apply to any or all of California’s 107 tribes, even those without casinos. The compacts include provisions for gaming tribes to provide revenue-sharing funds for all those that have no casinos or very small ones.

The pacts outline three steps to resolve disputes. First, either the governor or a tribe can demand “meet and confer” sessions to address a disagreement.

If that doesn’t do it, either side can request binding arbitration, but both must agree. The state has yet to arbitrate a compact dispute.

Litigation was supposed to be a last resort.

“What good is an agreement . . . if we’re not able to get a judicial determination of what it means?” asked Rincon attorney Scott Crowell, whose client tribe is appealing a compact challenge dismissed last year.

Another North County tribe, San Pasqual, filed suit in federal court May 3, contending the state is wrongly depriving Valley View Casino of more than 400 slot licenses.

Attorney Stephen Solomon said if the state invokes Rule 19, San Pasqual will argue that its suit would not deprive any other tribe of slots, licenses or revenue-sharing funds.

“This only adds to (the license pool); it doesn’t take away from anybody,” he said. “If you take the state’s position to its logical sequence, no tribe could ever sue the state for anything.”

Solomon, Crowell and Forman contend the Schwarzenegger administration is blocking the suits to force tribes to renegotiate their compacts and pay more money to the state, as nine tribes have done.

Schwarzenegger’s press office referred inquiries to Attorney General Bill Lockyer. A Lockyer spokesman provided a statement prepared by state attorneys.

“The rule does not apply to every dispute that arises under the 1999 compact,” it said. “Dismissal based on indispensability of parties comes into play only when the dispute involves application of compact provisions that affect some or all of the compact tribes, or some or all of the non-compact tribes.”

One tribal attorney whose view differs from most is Howard Dickstein, who represents Pala and two Northern California tribes that signed revised compacts with Schwarzenegger in 2004.

Dickstein said tribes, which have governmental immunity from most suits, have been using Rule 19 for decades to get cases dismissed in their favor. He called it ironic for tribal attorneys to complain about the state invoking it.

“What you can’t litigate are issues that are common to multiple tribes unless those tribes agree to the lawsuit,” he said. “Once you entered into compacts with many common provisions, that was very clear from Day One that that could be an outcome. I don’t know why anyone’s surprised about this.”

Chet Barfield: (619) 542-4572; [email protected]

Solomon, Saltsman & Jamieson are attorneys practicing in the areas of ABC law, ABC Appeals Board cases, and all related Land Use Matters such as City and County Conditional Use Permits, Variances, Police and Fire permits, Entertainment law, and Gambling Law; as well as Business and Personal Injury litigation. Solomon, Saltsman & Jamieson can be reached at 800 405 4222.”