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States v. Ysleta Del Sur Pueblo

United States District Court, W.D. Texas, El Paso Division

March 29, 2018

STATE OF TEXAS, Plaintiff,



         On this day, the Court considered the "Report and Recommendation of the Magistrate Judge on the State of Texas's Motion for a Preliminary Injunction" (ECF No. 64) [hereinafter "R&R"], filed on January 29, 2018, the State of Texas's [hereinafter "Plaintiff or "State" or "State of Texas"] "Objections to Report and Recommendation Pursuant to Federal Rule of Civil Procedure 72(b)" (ECF No. 68) [hereinafter "Objections"], filed on February 12, 2018, Ysleta del Sur Pueblo, the Tribal Council, and the Tribal Governor Carlos Hisa's [hereinafter collectively referred to as "Defendants"] "Response to Plaintiff's Objections to Report and Recommendation" (ECF No. 71) [hereinafter "Response to Objections"], filed on February 26, 2018, and Plaintiff's "Reply in Support of Objections" (ECF No. 73), filed on March 5, 2018, in the above-captioned cause. In conjunction therewith, the Court considered Plaintiff's "Application for Preliminary Injunction" (ECF No. 9) [hereinafter "Application"], filed on August 15, 2017, Defendants' "Response in Opposition to Plaintiffs Application for Preliminary Injunction" (ECF No. 17) [hereinafter "Response to Application"], filed on September 12, 2017, and Plaintiffs "Reply in Support of Application for Preliminary Injunction" (ECF No. 18) [hereinafter "Reply Supporting Application"], filed on September 18, 2017, in the above-captioned cause.

         I. BACKGROUND

         A. Factual Background

         As described in the Court's recent Order Denying Defendants' Motion to Dismiss (ECF No. 76), this case is the latest iteration of a long-running dispute between Plaintiff and Defendants regarding enforcement of Texas gaming law on the Ysleta del Sur Pueblo [hereinafter "Pueblo" or "Tribe"] reservation. While it is unnecessary to delve into a comprehensive history of the litigation and factual background, the Court will recite the facts relevant to analyzing the R&R and reaching a conclusion on the Application for Preliminary Injunction.

         In 1987, the United States enacted the Restoration Act ("the Act"), which "restored federal tribal status to the Ysleta Del Sur Pueblo" from the State of Texas. Am. Compl. 3, Aug. 15, 2017, ECF No. 8. The Act delineates the nature of the federal trust relationship and contains provisions regarding, inter alia, federal recognition of the Tribe, the rights and privileges of the Tribe (including eligibility for federal services and assistance), the relationship between federal, state, and tribal authority, and permanent physical improvements on the reservation. See generally Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat 666 (1987). Most importantly for purposes of this case, the Act governs "Gaming Activities" conducted on the reservation [hereinafter "Pueblo gaming"]. Id. at § 107.

         Section 107 of the Act contains the provisions relevant to deciding whether to grant a preliminary injunction. Section 107(a), in pertinent part, provides that:

All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe. Any violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas.

Section 107(c) provides that "the courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection (a) [i.e., the section prohibiting all gaming activities prohibited by the State of Texas]

         The effect of subsections (a) and (c) of the Act is to federalize Texas gaming law, which currently operates "as surrogate federal law on the Tribe's reservation in Texas." Ysleta del Sur Pueblo v. State of Tex., 36 F.3d 1325, 1334 (5th Cir. 1994). Essentially, any activity prohibited pursuant to Texas law is prohibited pursuant to federal law. While the State of Texas has many laws prohibiting gambling, the State does not consider all gaming activity to be unlawful gambling. Thus, "[n]ot all gaming activities are prohibited to the Tribe, only those gaming activities that are prohibited by Texas law to private citizens and other organizations. As such, the Tribe may participate in legal gaming activities." Texas v. del Sur Pueblo, 220 F.Supp.2d 668, 707 (W.D. Tex. 2001), modified (May 17, 2002), aff'd, 31 Fed.Appx. 835 (5th Cir. 2002), and aff'd sub nom. State of Texas v. Pueblo, 69 Fed.Appx. 659 (5th Cir. 2003), and order clarified sub nom. Texas v. Ysleta Del Sur Pueblo, No. EP-99-CA-320-H, 2009 WL 10679419 (W.D. Tex. Aug. 4, 2009) [hereinafter "Judge Eisele Order"]. Accordingly, the current dispute involves whether Defendants' operation of "electronic bingo" machines violates Texas gaming law and, thus, whether it violates federal law pursuant to the Act. Am. Compl. 6.

         Specifically, Plaintiff alleges that Defendants are operating a "brazen form of illegal lottery" on their reservation, and therefore that the Tribe is in violation of the Act. Appl. 2. Plaintiff presents evidence of a physical inspection of the Speaking Rock Entertainment Center ("Speaking Rock"), which is operated by Defendants. The physical inspection, which was submitted to the Court in the form of a video exhibit, revealed electronic bingo machines that "stood in rows in a dim, casino-like atmosphere, loud with the electronic bells, whistles, and theme songs of the machines and illuminated by their flashing lights." Appl. 4. The inspection further revealed that these machines announced "their maximum respective jackpots in blinking, marquis-style lights, " that they were located near the facility's "large bar, " that customers could "insert cash directly into the machine, " and that the machines were available "to the public 24 hours a day, 7 days a week." Id. at 4-5. Finally, Plaintiff describes (and the video evidence supports) how the gameplay on the machines appears to mimic "slot machines"[1]rather than the game of bingo. Id. at 5. In essence, Plaintiff seeks injunctive relief to prohibit Defendants from offering these machines because the State believes, due to the machines* strong resemblance to illegal slot machines, that the Tribe is violating Texas gaming law.

         B. Procedural Background

         In 2002, Plaintiff obtained a permanent injunction "prohibiting the Tribe from engaging in illegal gambling in violation of Chapter 47 of the Texas Penal Code." Appl. 3. The parties have litigated the scope and applicability of the 2002 injunction before multiple judges throughout the last fifteen years under cause number 3:99-CV-320. In 2016, when Plaintiff learned of the machines at issue here, it filed a motion seeking contempt of the 2002 injunction. Id. However, Judge Cardone ruled that the motion was moot after Plaintiff informed the court that it had agreed with Defendants to conduct a voluntary visual inspection of the premises before moving forward with its suit. See Order 2, Texas v. del Sur Pueblo, 3:99-CV-320-KC (ECF No. 625), Mar. 10, 2017. Judge Cardone also expressed to the parties that she believed the proper "mechanism for addressing violations" of the Restoration Act was for the State of Texas to bring a new action for injunctive relief in federal court. Id. Thus, upon completing the inspection and believing Defendants were in violation of the Restoration Act, Plaintiff filed its Application.

         Acting pursuant to its authority in 28 U.S.C. § 636, the Court referred Plaintiff's Application to a Magistrate Judge on September 11, 2017. The Magistrate Judge then filed an R&R regarding a disposition on the Application on January 29, 2018.

         C. The Magistrate Judge's Recommendation

         The Magistrate Judge [hereinafter "Magistrate"] recommends denying the Application because he suggests the Court lacks authority to issue an injunction in this situation. Specifically, the Magistrate relies on a general prudential principle that federal "courts have no power to enjoin the commission of a crime." R&R 3 (citing United States v. Jalas, 409 F.2d 358 (7th Cir. 1969)). The Magistrate recognizes only three exceptional situations that permit federal courts to enjoin criminal activity: national emergencies, widespread public nuisances, and where a specific federal statutory grant of power to issue an injunction exists. Id. at 4 (citing Jalas, 409 F.2d at 360). Concluding that Pueblo gaming is not a widespread public nuisance or a national emergency, and that no specific statutory grant of power authorizes the Court to issue an injunction here, the Magistrate suggests that the Court lacks the power to issue an injunction. The Magistrate made no factual findings regarding the request for preliminary injunction.

         Finally, the Magistrate expresses "doubt" that subject-matter jurisdiction lies over this dispute. R&R 9.

         After due consideration, the Court rejects the reasoning in the R&R. However, for the reasons explained in Section III, infra, the Court, nevertheless, will deny the Application.


         A. Standard of Review

         A district court may, on its own motion, refer a pending matter to a United States Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B). Once the Magistrate Judge enters a report and recommendation, any party may contest the report by filing written objections. Id. at § 636(b)(1)(C). If a party chooses to lodge objections, the district judge must then make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.; see also W.D. Tex. Civ. R. App. C, Rule 4(b).

         B. The Court Rejects the Reasoning in the R&R

         Because Plaintiff objects to the fundamental premise of the R&R-that the Court lacks authority to issue an injunction here-the Court must review the entirety of the R&R's suggestions de novo. Like Plaintiff, the Court disagrees that it lacks the power to grant an injunction in this case. Instead, the Court holds that the rule prohibiting courts from enjoining criminal activity is inapplicable here.

         Further, even if it were applicable, the specific-grant-of-authority exception is satisfied, and the Court therefore has authority to issue an injunction. Finally, the Court holds that Plaintiff properly invoked subject-matter jurisdiction in this case. The Court will discuss these issues in turn.

         i. The Prohibition on Enjoining Criminal Activity is Inapplicable

         The R&R relies on United States v. Jalas for the rule that the Court has no power to issue an injunction here.[2] 409 F.2d 358 (7th Cir. 1969). In Jalas, the Government sought to enjoin Clarence Jalas from running for and serving in a leadership position of a labor union because that official had previously pled guilty to accepting a bribe. Id. The Government asserted that if Jalas took office, he would be criminally liable pursuant to 29 U.S.C. § 504 (the Labor-Management Disclosure Reporting Act), which institutes criminal penalties for serving as an officer in a labor union with a previous bribery conviction. Id. at 359. In declining the government's application for an injunction, the Court held that it had no power to enjoin the commission of a crime except in cases of "[n]ational emergencies, widespread public nuisances, and where a specific statutory grant of power exists" [hereinafter "Jalas Rule"]. Id. at 360. Concluding that none of those exceptions was satisfied, the Court noted that the "sole remedy for the complained-of-wrong is criminal prosecution, " and remanded the case to the district court with instructions to dismiss. Id.

         The Jalas rule is inapposite where, as here, the relevant federal statute under which the plaintiff brings suit provides for both civil and criminal remedies. The general prohibition against enjoining criminal activity has been consistently limited to situations where the statute under which the plaintiff seeks relief is "patently a criminal statute contemplating proceeding by indictment or information." Id. For example, in the context of Indian law, the Eighth Circuit rejected the R&R's approach in analogous circumstances involving the United States Government and the Santee Sioux Tribe. See United States v. Santee Sioux Tribe of Nebraska, 135 F.3d 558, 565 (8th Cir. 1998). There, the court overturned a district court order holding that the federal Government had no power to sue based on the Jalas rule. The Santee Tribe was governed by the Indian Gaming Regulatory Act ("IGRA"), which, similar to the Restoration Act, made any violation of a Nebraska state gaming law a violation of the IGRA. Id. In rejecting the applicability of Jalas, the court relied on the fact that the IGRA was both criminal and civil in nature because it incorporated "Nebraska civil case law authorizing injunctive relief[.]" Id. Thus, the court concluded that "although potentially subject to criminal prosecution by the United States under the provisions of the IGRA, this activity is likewise subject to injunctive relief pursuant to applicable Nebraska law" and therefore that "the District Court should have enjoined [the activity] pursuant to Nebraska law."[3] Id.

         Outside of the Indian law context, courts have reached the same conclusion: the Jalas rule does not apply to an activity subject to both criminal and civil remedies. See United States v. Cappetto,502 F.2d 1351, 1357 (7th Cir. 1974) ("[A]cts which may be prohibited by Congress may be made the subject of both criminal and civil proceedings .... A civil proceeding to enjoin those acts is not rendered criminal in character by the fact that the acts also are punishable as crimes."); Airlines Reporting Corp. v. Barry,825 F.2d 1220, 1224 (8th Cir. 1987) ("No court, state or federal, is barred from enjoining activity that causes or threatens injury to property merely because the activity, in addition to being tortious, is a violation of the criminal law."); United States v. Prof I Air Traffic Controllers Org. (PATCO),653 F.2d 1134, 1142 (7th Cir. 1981) (holding that ...

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