UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CHICKEN RANCH RANCHERIA OF ME- No. 21-15751 WUK INDIANS; CHEMEHUEVI INDIAN TRIBE; BLUE LAKE RANCHERIA; D.C. No. HOPLAND BAND OF POMO INDIANS; 1:19-cv-00024- ROBINSON RANCHERIA, AWI-SKO Plaintiffs-Appellees,

v. OPINION STATE OF CALIFORNIA; GAVIN NEWSOM, Governor of California, Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Argued and Submitted December 9, 2021 San Francisco, California

Filed July 28, 2022

Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bress; Concurrence by Judge Wardlaw; Dissent by Judge Bumatay 2 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA

SUMMARY *

Indian Gaming Regulatory Act

The panel affirmed, on different grounds, the district court’s summary judgment in favor of Chicken Ranch Rancheria of Mewuk Indians and other tribes in their action under the Indian Gaming Regulatory Act against the State of California and Governor Gavin Newsom.

The tribes alleged that California violated IGRA by failing to act in good faith in the parties’ negotiations for compacts for the tribes to conduct high-stakes Las Vegas- style casino gambling, known as Class III gaming. The district court concluded that California’s demand for tribal enforcement of state domestic support orders “pulled negotiations into a field wholly collateral to the operation of gaming facilities” and thus constituted “per se evidence of bad faith.” The district court concluded that other disputed provisions were “somewhat connected” to gaming and thus not a per se violation of the State’s good-faith duty, but California nevertheless was required to provide “meaningful concessions” in exchange for demanding these provisions, and the State’s failure to do so was a failure to negotiate in good faith, triggering IGRA’s remedial provisions.

The panel held that through its insistence on family law, environmental law, and tort provisions, California substantially exceeded IGRA’s limitation that any Class III compact provision be directly related to the operation of gaming activities. The panel further held that when, as here, * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 3 a State seeks to negotiate for compact provisions that fall well outside IGRA's seven permissible topics of negotiation, as set forth in an exhaustive list in 25 U.S.C. § 2710(d)(3)(C), the State has not acted in good faith. Agreeing with the Department of the Interior, the panel held that the final item in the list, a residual provision for “any other subjects that are directly related to the operation of gaming activities,” requires a “direct connection” to the operation of gaming activities. The panel therefore directed the parties to proceed to IGRA’s remedial framework under the district court’s continued supervision.

The panel disagreed with the dissent’s conclusion that, despite negotiating for off-list topics, California still could show it was negotiating in good faith.

The panel explained that, although the district court agreed that California had not negotiated in good faith and that IGRA’s remedial provisions were triggered, it erred in relying on the “meaningful concessions” framework because this framework does not apply to requested topics of negotiation that are well outside the permitted topics in § 2710(c)(3)(C), and applies only to demands for taxes, fees, or other revenue-sharing provisions.

Concurring, Judge War