In the United States District Court for thr Western District of Oklahoma
Gaughan Gaming, et al v. the Tonkawa Tribe of Indians and the Tonkawa Gaming Commission, Case No. CIV-11-330-NE.
Here, plaintiffs' argument is essentially that the TGC is going to, at the March 3 hearing, reject plaintiffs' objections to a summary procedure and grant the summary judgment motion of the Tribe. That argument is based on the history of this dispute, which has previously resulted in the TGC's suspension of plaintiffs' licenses, the fact that the TGC's Executive Director has filed a motion for summary judgment, and the fact that the Executive Director has refused plaintiffs' requests for issuance of subpoenas to allow it to prepare for the hearing or otherwise defend against the Tribe's motion.
While there is, of course, no way to determine now with certainty what the TGC will do tomorrow, the court concludes plaintiffs' submissions do not show, beyond the level of speculation, that the TGC will take some action contrary to plaintiffs' rights. The TGC has entered a scheduling order setting the March 31 hearing. (Scheduling Order entered March 15, 2011, plaintiffs' hearing exhibit 12). That order notes that motions filed by both parties are pending, directs the parties to appear on March 31 "for consideration of the above listed
To be sure, the refusal of the Executive Director to issue subpoenas is troubling and TGC counsel's somewhat lame explanation at the hearing for that refusal was unpersuasive.[1] However, as noted above, there is nothing in the formal acts of the Commission to suggest that it has adopted, or will adopt, a summary procedure in derogation of plaintiffs' rights or that, if it did, it would grant the summary judgment motion now pending before it.[2] Further, given the persons to whom the subpoenas were directed,[3]there may well be preliminary issues of privilege or otherwise which should be addressed before issuance of subpoenas.
In sum, the court concludes that, while plaintiffs' concerns are understandable in light of the past history of this dispute,[4] they have not submitted evidence sufficient to establish a likelihood of the TGC taking steps that will cause injury to them.[5] There is no reason, on the present showing, to conclude that the TGC will do other than make a good faith effort to apply the applicable law and its own rules to any determination it must make. The Commission will presumably be aware that it is in the best interest of the tribal gaming operation, and the Tribe generally, for others who deal with tribal governmental structures — whether NIGC regulators or entities entering into commercial arrangements — to have confidence in the fairness and propriety of tribal regulatory actions.
The motion for temporary restraining order [Doc. #1, exhibit 3] is DENIED.
[1] Counsel suggested the Executive Director was not the proper person from whom to request the subpoenas and that plaintiffs should have tried to locate the chairman of the Commission somewhere or perhaps locate and make the request to some staff member other than the Executive Director.
[2] Based on the submissions to this court, it appears highly unlikely that the summary judgment motion could or should be granted based on any standard with which this court is familiar.
[3] Some of the requested subpoenas were directed to tribal officers.
[4] The Tribe’s forced eviction of plaintiffs from control and operation of the casinos, arguably contrary to the plain terms of the management agreements, and the relationship between the Tribe and the TGC raise potential questions.
[5] Plaintiffs urge that any injury to them would be irreparable and not subject to being remedied by a damages recovery due to the potential impact on their licensing status in other jurisdictions. The court need not resolve any question in that regard as the issue here turns on whether there is a non-speculative basis for the injury occurring at all (i.e. the likelihood of injury rather than the irreparable nature of any claimed injury.
