Before Maricopa County Superior Court Judge James Smith ruled that the Yavapai-Prescott Indian Tribe (YPIT) had failed to establish sufficient grounds for the judge to issue a temporary restraining order against the launch of legalized sports betting in Arizona, there was a new entry on the docket report.
Heading into Labor Day weekend, attorneys for the Tonto Apache Tribe of Arizona and the Quechan Tribe of the Ft. Yuma Indian Reservation (“the Intervenors”) filed a notice of intent to “intervene and opposition to the plaintiff’s motion for a temporary restraining order and preliminary injunction.”
The plaintiffs objected to the intervention but failed in their efforts to secure injunctive relief. Now, Arizona’s appellate court system seems like the likely next step.
Background on the motion to intervene
While the process to obtain a temporary restraining order — which failed in the superior court Monday — now enters its next phase, the motion to intervene contained some fascinating insights into how some of the other tribes in Arizona viewed the lawsuit filed by the YPIT.
The Intervenors argued that they, along with 18 of Arizona’s 22 federally recognized tribes, negotiated for over five years to secure the recently amended gaming compact. That agreement paved the way for legal sports betting in the Grand Canyon State, set to go live Sept. 9.
The Intervenors are among the 10 tribes that secured sports betting licenses. The Tonto Apache Tribe of Arizona partnered with TwinSpires, and the Quechan Tribe of the Ft. Yuma Indian Reservation teamed with Kindred Group.
As parties who received licenses, the Intervenors argued that they had substantial interests in the litigation.
A different story?
The Intervenors argue that the YPIT attempts to undo five years of work by 20 of the 22 tribes in Arizona. The Intervenors state that YPIT received the opportunity — and even “encouraged” — to participate in the negotiations. However, the Yavapai-Prescott “chose not to do so.”
The Intervenors argue that there are remedies available to the YPIT. But not via this lawsuit.
Instead, the YPIT has the opportunity to go to the table with Gov. Doug Ducey and negotiate. The Intervenors argue, as previousy noted, that the YPIT remedy lies in federal court under the Indian Gaming Regulatory Act (IGRA) and that the state court efforts are not the proper place for the plaintiff’s complaints to be heard.
Argument presented by intervening Arizona tribes
The Intervenors state:
“YPIT comes to this Court with unclean hands seeking extraordinary relief despite the fact that it avoided meaningful and good faith compact negotiations in order to either reap the benefit or sue the State based on the outcome.”
The Intervenors argue that the YPIT’s efforts to obtain a temporary restraining order are so deficient that the court should not even address the claims and instead settle this matter on jurisdictional grounds.
Plaintiffs need to establish four things in Arizona
In Arizona, a plaintiff must establish four things to obtain a temporary restraining order or preliminary injunctive relief.
- A strong likelihood of success on the merits;
- The possibility of irreparable injury to the plaintiff is not remediable by damages if the requested relief is not granted;
- A balance of hardships favors plaintiff; and
- Public policy favors the injunction.
The Intervenors argue that the plaintiff fails every step along the way.
A federal way or the highway
The motion argues that if YPIT wants gaming rights, the tribe’s remedy is to do so under federal law via the process outlined in IGRA.
The Intervenors suggest that the Superior Court (or more likely an Arizona appellate court or Arizona Supreme Court, by the time this is done) cannot provide what the YPIT is seeking. Even if HB 2772 was invalidated, it would put everyone back at square one where negotiation starts over.
May the odds ever be in your favor?
The Intervenors conclude their argument by evaluating the public policy considerations of the YPIT being successful. In their analysis, the Intervenors note that:
“YPIT’s argues vaguely that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” This legal generalism has no bearing on the case at hand, as there has not been a violation of any party’s constitutional rights. Therefore, public policy weighs against YPIT’s requested relief (internal citations omitted).”
Exhibit B
The motion to intervene contained a declaration of Calvin Johnson, chairman of the Tonto Apache Tribe. Johnson’s declaration states that he began negotiating amendments to amend the 2003 tribal-state gaming compact in late 2016.
Johnson declared that he emailed Ernest Jones Sr., the then-president of the YPIT, inviting him to a retreat. There, they would discuss compact amendment strategies and proposals for some of Arizona’s smaller gaming tribes. While Jones did not attend, he offered a reciprocal invitation to Johnson and Chairwoman Jeri DeCola to meet YPIT leadership in March 2017.
According to the declaration at the meeting, YPIT’s attorney stated:
“that in the event other tribes successfully reached a compact amendment with the State and if YPIT did not like what was negotiated by the other tribes pai1icipating in those compact amendment negotiations YPIT would then simply sue the State.”
What’s to come for Arizona gaming lawsuit?
As predicted by Judge Smith earlier last week, the appellate court appears as the inevitable next step for the Yavapai-Prescott.
As of the time of writing, the Division One Court of Appeals system did not reflect that tribe filed such an appeal.
But with the sports betting launch scheduled for two days, expect it soon.
