Big Lagoon Rancheria v. State of California , 789 F.3d 947 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIG LAGOON RANCHERIA, a Nos. 10-17803
federally recognized Indian tribe, 10-17878
Plaintiff-Appellee/
Cross-Appellant, D.C. No.
4:09-cv-01471-
v. CW
STATE OF CALIFORNIA,
Defendant-Appellant/ OPINION
Cross-Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted En Banc
September 17, 2014—San Francisco, California
Filed June 4, 2015
Before: Harry Pregerson, Stephen Reinhardt, Alex
Kozinski, Diarmuid F. O’Scannlain, Susan P. Graber,
William A. Fletcher, Richard A. Paez, Jay S. Bybee, Milan
D. Smith, Jr., Morgan Christen and Jacqueline H. Nguyen,
Circuit Judges.
Opinion by Judge O’Scannlain
2 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
SUMMARY*
Indian Gaming Regulatory Act
The en banc court affirmed the district court’s summary
judgment in favor of a tribe that alleged that the State of
California had failed to negotiate in good faith for a gaming
compact under the Indian Gaming Regulatory Act for Class
III gaming on a parcel of land taken into trust for the tribe by
the Bureau of Indian Affairs.
Rejecting California’s argument that the tribe lacked
standing to compel it to negotiate in good faith under the
IGRA, the en banc court held that the State’s argument
amounted to an improper collateral attack on the BIA’s
decisions to take the parcel of land into trust and to designate
the tribe as a federally recognized Indian tribe.
The en banc court held that the district court did not abuse
its discretion in failing to grant a continuance for additional
discovery under Fed. R. Civ. P. 56(f).
The en banc court dismissed the tribe’s cross-appeal as
moot.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 3
COUNSEL
Michael A. Pollard, Baker & McKenzie, Chicago, Illinois,
argued the cause for the plaintiff-appellee/cross-appellant.
Bruce H. Jackson, Baker & McKenzie, San Francisco,
California filed the briefs for the plaintiff-appellee/cross-
appellant Big Lagoon Rancheria. With him on the briefs
were Peter J. Engstrom and Irene V. Gutierrez, San
Francisco, California.
Peter H. Kaufman, Deputy Attorney General for the State of
California, San Diego, California, argued the cause for
defendant-appellant/cross-appellee the State of California.
Kamala D. Harris, Attorney General of California, filed the
briefs for the defendant-appellant/cross-appellee. With her on
the briefs were Sara J. Drake, Senior Assistant Attorney
General, and Randall A. Pinal, Deputy Attorney General, San
Diego, California.
Samuel Hirsch, Acting Assistant Attorney General,
Washington, D.C., argued the cause for amicus curiae the
United States of America. Robert G. Dreher, Acting Assistant
Attorney General filed the brief on behalf of amicus curiae
the United States of America in support of the plaintiff-
appellee/cross-appellant. With him on the brief were Jennifer
Turner and Rebecca Ross, Office of the Solicitor, U.S.
Department of the Interior, Washington, D.C., and Amber B.
Blaha, Elizabeth A. Peterson, and Kate R. Bowers, United
States Department of Justice, Environmental & Natural
Resources Division, Washington, D.C.
Kenneth J. Pfaehler, Dentons US LLP, Washington, D.C.,
filed the brief on behalf of amici curiae National Congress of
American Indians, United South and Eastern Tribes, Inc., and
4 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
The Navajo Nation in support of plaintiff-appellee/cross-
appellant. With him on the brief were V. Heather Sibbison
and Samuel F. Daughety, Dentons US LLP, Washington,
D.C., and Riyaz A. Kanji, Kanji & Katzen PLLC, Ann Arbor,
Michigan.
Dorothy Ann Alther, California Indian Legal Services,
Escondido, California, filed the brief on behalf of amici
curiae California Indian Legal Services and California
Association of Tribal Governments in support of plaintiff-
appellee/cross-appellant.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether, in the course of negotiations
under the Indian Gaming Regulatory Act, a state can
challenge a Bureau of Indian Affairs decision to hold a parcel
of land in trust for an Indian tribe and whether it can
challenge the tribe’s federally recognized status.
I
A
This litigation is between a small federally recognized
Indian tribe which wishes to build and to operate a class III
gaming casino and hotel on tribal trust land and the State of
California, which seeks to regulate or to oppose such activity.
To regulate gaming on Indian lands, Congress enacted the
Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq.
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 5
(the “IGRA”), which created a “cooperative federalis[t]”
framework that “balance[d] the competing sovereign interests
of the federal government, state governments, and Indian
tribes, by giving each a role in the regulatory scheme.” In re
Indian Gaming Related Cases, 331 F.3d 1094, 1096 (9th Cir.
2003) (quoting Artichoke Joe’s v. Norton, 216 F. Supp. 2d
1084, 1092 (E.D. Cal. 2002)). The IGRA assigns authority to
regulate gaming to tribal and state governments depending on
the class of gaming involved.
Class I gaming includes “‘social games solely for prizes
of minimal value or traditional forms of Indian gaming
engaged in by individuals as part of, or in connection with,
tribal ceremonies or celebrations,’ 25 U.S.C. § 2703(6), and
its regulation is left exclusively within the jurisdiction of the
Indian tribes, id. § 2710(a)(1).” Id. at 1096–97. “Class II
gaming includes bingo . . . and certain card games . . . but
excludes any banked card games, electronic games of chance,
and slot machines.” Id. at 1097. Class III gaming includes “all
forms of gaming that are not class I gaming or class II
gaming.” 25 U.S.C. § 2703(8). Class III gaming, which is
contemplated by the tribe here, often involves “the types of
high-stakes games usually associated with Nevada-style
gambling.” In re Indian Gaming Related Cases, 331 F.3d at
1097.
B
The IGRA sets out detailed procedures for Indian tribes
seeking to conduct class III gaming, which is allowed on
Indian lands only if “conducted in conformance with a Tribal-
State compact entered into by the Indian tribe and the State.”
25 U.S.C. § 2710(d)(1)(C). Negotiations for a gaming
compact begin at the request of an “Indian tribe having
6 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
jurisdiction over the Indian lands upon which a class III
gaming activity is being conducted, or is to be conducted.” Id.§ 2710(d)(3)(A). The Indian tribe’s request triggers the state’s
obligation to negotiate in good faith. Id.
If negotiations are successful, the tribe and the state will
enter into a compact to allow class III gaming subject to the
approval of the Secretary of the Interior. Id. § 2710(d)(3)(B).
If negotiations are unsuccessful, the tribe can sue the state in
district court. Id. § 2710(d)(7)(A)(I). If, in turn, the district
court finds that the state has failed to negotiate in good faith,
it must order the parties to reach an agreement. Id.
§ 2710(d)(7)(B)(iii). If no agreement is reached after 60 days,
the court must order each party to submit a proposal to a
court-appointed mediator, who selects the proposal that best
comports with the IGRA and other federal laws. Id.
§ 2710(d)(7)(B)(iv).
Of course, gaming is confined to “Indian lands” and
negotiations are begun by a tribe with jurisdiction over such
lands. The IGRA defines “Indian lands” as “all lands within
the limits of any Indian reservation” and “any lands title to
which is . . . held in trust by the United States for the benefit
of any Indian tribe or individual . . . and over which an Indian
tribe exercises governmental power.” Id. § 2703(4).
The Bureau of Indian Affairs (the “BIA”) obtains
authority to hold land in trust for Indian tribes from the Indian
Reorganization Act, 25 U.S.C. §§ 461 et seq. (the “IRA”),
under which the Secretary of the Interior is authorized “to
acquire . . . any interest in lands . . . for the purpose of
providing land for Indians” and to hold those lands “in trust
for the Indian tribe or individual Indian for which the land is
acquired.” Id. § 465. Indians include “all persons of Indian
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 7
descent who are members of any recognized Indian tribe now
under Federal jurisdiction.” Id. § 479.
C
Big Lagoon Rancheria is a federally recognized Indian
tribe located on the shoreline of Big Lagoon near Trinidad in
Humboldt County, California. It claims jurisdiction over two
parcels of land adjacent to one another. One consists of nine
acres purchased by the United States in 1918. The other
consists of eleven acres taken into trust for Big Lagoon
Rancheria by the BIA in 1994. Big Lagoon Rancheria seeks
to operate a class III gaming casino and hotel on the eleven-
acre parcel held in trust for the tribe.
1
In 1918, the BIA purchased the nine-acre parcel for James
Charley and his family. Charley, an Indian whose family
lived on the parcel, died soon thereafter, and his wife moved
the rest of the family away. One of Charley’s sons, Robert
Charley, may have lived at Big Lagoon between 1942 and
1946, but the nine-acre parcel otherwise appears to have
remained vacant. Later, in the late 1940s or early 1950s,
Robert’s nephew by marriage, Thomas Williams, and his
family obtained the BIA’s permission to camp on the land.
Though they did not have a claim of ownership, they
apparently constructed a home there.
The Williamses came to view the land as a “rancheria”
eligible for termination under the California Rancheria
8 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
Termination Act, Pub. L. No. 85-671, 72 Stat. 619 (1958).1
They applied for dissolution of the rancheria—a step that
would have distributed the land to individual tribe
members—in 1967. Although approved, the dissolution never
took place.
Big Lagoon Rancheria first appeared on a list of “Indian
Tribal Entities that Have a Government-to-Government
Relationship with the United States” in 1979, 44 Fed. Reg.
7235 (Feb. 6, 1979), and has appeared on many subsequent
lists. The BIA has held the nine-acre parcel in trust for the
tribe under 25 U.S.C. § 465 since at least 1979.
2
In 1994, the BIA took the eleven-acre parcel that is the
focus of this appeal in trust for Big Lagoon Rancheria. It is
unclear exactly when the State of California became aware of
the entrustment decision. But the State’s interests were
plainly affected, and the State was plainly aware in 1997,
when it petitioned to intervene and subsequently filed two
amicus briefs before the Department of the Interior Board of
Indian Appeals in a challenge to the BIA’s decision. Big
Lagoon Park Co., Inc. v. Acting Sacramento Area Dir.,
Bureau of Indian Affairs, 32 IBIA 309, 312 (1998).
Moreover, California has by its own admission been aware of
1
“Rancherias are numerous small Indian reservations or communities
in California, the lands for which were purchased by the Government
(with Congressional authorization) for Indian use from time to time in the
early years of [the twentieth] century—a program triggered by an inquiry
(in 1905–06) into the landless, homeless or penurious state of many
California Indians.” Williams v. Gover, 490 F.3d 785, 787 (9th Cir. 2007)
(alteration in original) (quoting Duncan v. United States, 667 F.2d 36, 38
(1981)) (internal quotation marks omitted).
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 9
the entrustment and the potential for casino gambling on the
eleven-acre parcel since 1998, when the State began
negotiating with Big Lagoon Rancheria directly with respect
to the eleven-acre parcel.
II
When negotiations to build the hotel and casino broke
down in 1999, Big Lagoon Rancheria sued the state of
California under the IGRA, alleging that California had failed
to negotiate in good faith. In 2000, as part of the litigation,
the state questioned whether “the lands on which Big Lagoon
proposed to build its casino were Indian lands over which Big
Lagoon properly had jurisdiction to conduct gaming
activities.”
The 1999 lawsuit was dismissed without prejudice as part
of a settlement in 2005 when Big Lagoon Rancheria and the
state reached an agreement allowing the tribe to build a hotel
and casino. That agreement, known as the Barstow Compact,
lapsed in 2007 because the California legislature failed to
ratify it. Negotiations then began anew, but again failed,
foundering principally because the state insisted on
environmental mitigation measures related to the casino’s
construction as well as a share of Big Lagoon Rancheria’s
revenue from gaming. Throughout the course of the
negotiations, the state proceeded on the assumption that it
was obligated to negotiate in good faith under the IGRA.
Big Lagoon Rancheria filed the instant suit in district
court in 2009, once again alleging under 25 U.S.C.
§ 2710(d)(7)(A)(i) that California had failed to negotiate in
good faith. The tribe substantially prevailed when the district
court declared that California had failed to negotiate in good
10 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
faith and that the tribe was entitled to conduct gaming subject
only to the Secretary of the Interior’s approval of a gaming
compact. Big Lagoon Rancheria v. California, 759 F. Supp.
2d 1149, 1160 (N.D. Cal. 2010). The State of California
appeals from the district court’s adverse grant of summary
judgment, and also appeals the district court’s order refusing
to grant a continuance to conduct additional discovery under
Fed. R. Civ. P. 56(f),2 now Fed. R. Civ. P. 56(d).3 Big Lagoon
Rancheria cross-appeals, challenging the district court’s
ruling that negotiation over environmental measures did not
necessarily constitute bad faith by California.4
2
The 2010 amendments to the Federal Rules of Civil Procedure moved
the language contained at Fed. R. Civ. P. 56(f) to Fed. R. Civ. P. 56(d). As
the notes of the Advisory Committee explain, new “subdivision (d) carries
forward without substantial change the provisions of former subdivision
(f).”
3
We review the district court’s grant of summary judgment de novo.
Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th
Cir. 2010) (citing Bering Strait Citizens for Responsible Res. Dev. v. U.S.
Army Corps of Eng’rs, 524 F.3d 938, 946 (9th Cir. 2008)). “[W]e
determine whether there are any genuine issues of material fact for trial,
viewing the evidence in the light most favorable to the nonmovant.”
Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767, 772
(9th Cir. 2008) (citation omitted). We review the district court’s decision
to deny a continuance under Fed. R. Civ. P. 56(f) for abuse of discretion.
Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of Fort
Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003).
4
A divided three-judge panel of this court reversed the judgment of the
district court, Big Lagoon Rancheria v. California, 741 F.3d 1032, 1045
(9th Cir. 2014), holding that California was not obligated to negotiate in
good faith under the IGRA because the eleven-acre parcel was not
properly taken into trust by the BIA. We subsequently granted rehearing
en banc, vacating the three-judge panel decision. Big Lagoon Rancheria
v. California, 758 F.3d 1073 (9th Cir. 2014).
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 11
III
A
California first argues that Big Lagoon Rancheria lacks
standing to compel it to negotiate in good faith under the
IGRA because the BIA’s 1994 entrustment decision was
improper and because it is not properly recognized as an
Indian tribe. Although the State frames these issues in terms
of challenges to standing and asserts them as affirmative
defenses, the State’s arguments amount to collateral attacks
on the BIA’s 1994 decision to take the eleven-acre parcel into
trust and its pre-1979 designation of Big Lagoon Rancheria
as an Indian tribe.
1
The State’s principal argument is that Big Lagoon
Rancheria is not entitled to enter into good faith negotiations
under the IGRA because the BIA lacked the authority to take
the eleven-acre parcel into trust, relying on Carcieri v.
Salazar, 555 U.S. 379, 395 (2009).
Carcieri involved a challenge by the State of Rhode
Island, the State’s governor, and the town of Charleston,
Rhode Island to the Secretary of the Interior’s decision to take
thirty-one acres of land into trust on behalf of the
Narragansett Tribe. As in Big Lagoon Rancheria’s case, the
Secretary had taken the land into trust “for the purpose of
providing land for Indians” based on his authority under
Section 465 of the IRA. See id. at 381–82; 25 U.S.C. § 465.
The tribe had wished “to free itself from compliance with
local regulations” governing construction of housing.
Carcieri, 555 U.S. at 385. In response, the state, the governor,
12 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
and the town of Charleston timely “sought review of the . . .
decision [to take the land into trust] pursuant to the
Administrative Procedure Act [“APA”].” Id. The district
court granted summary judgment in favor of the Narragansett
tribe, and the First Circuit affirmed, first in a panel decision
and then sitting en banc. Id. at 385–86.
The Supreme Court reversed. It held that the term “‘now
under Federal jurisdiction’ in § 479 unambiguously refers to
those tribes that were under the federal jurisdiction of the
United States when the IRA was enacted in 1934.” Id. at 395.
The Narragansett tribe was not recognized by the United
States until 1983, meaning that the Secretary of the Interior’s
decision to take land into trust for the Narraganset was
invalid. Id. at 385. Therefore, under Carcieri, if a tribe was
not under federal jurisdiction in 1934, the BIA lacks the
authority to take land into trust on its behalf.
The present case is distinguishable from Carcieri, which
involved a timely administrative challenge brought against
the Secretary of the Interior. The instant case is a belated
collateral attack. Carcieri does not address whether the BIA’s
entrustment decisions can be challenged outside an action
brought under the APA or outside the statute of limitations
for APA actions.
2
The Supreme Court has explained that a challenge to the
BIA’s “decision to take land into trust” is “a garden-variety
APA claim.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2208
(2012) (citing 5 U.S.C. § 706(2)(A), (C)). Such claims
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 13
“assert[] merely that the Secretary [] [of the Interior’s]
decision to take land into trust violates a federal statute.” Id.We have recently observed that parties cannot “use a
collateral proceeding to end-run the procedural requirements
governing appeals of administrative decisions.” United States
v. Backlund, 689 F.3d 986, 1000 (9th Cir. 2012). For
example, in United States v. Lowry, 512 F.3d 1194 (9th Cir.
2008), we held that a criminal defendant who “declined to
exercise her right to seek direct judicial review of the agency
decision [in question] within the time allowed” could not
“collaterally attack it in a subsequent criminal proceeding.”
Backlund, 689 F.3d at 1000 (citing Lowry, 512 F.3d at 1203).
“[A]llowing [the defendant] to collaterally attack the
administrative proceedings would effectively circumvent the
six-year statute of limitations we have held governs review of
such actions.” Lowry, 512 F.3d at 1203.
While California asserts that Big Lagoon Rancheria lacks
standing to invoke the IGRA, it necessarily argues that the
BIA exceeded its authority when it took the eleven-acre
parcel into trust. The proper vehicle to make such a challenge
is a petition for review pursuant to the APA, and that is the
typical method employed in prior litigation challenging
entrustment decisions. See, e.g., Patchak, 132 S. Ct. at2210–11 (allowing an APA challenge to the government’s
decision to take land into trust for the benefit of an Indian
tribe under 25 U.S.C. § 465); Carcieri, 555 U.S. at 385(“Petitioners sought review of the IBIA decision [upholding
the government’s decision to take land into trust] pursuant to
the Administrative Procedure Act . . . .”).
Allowing California to attack collaterally the BIA’s
decision to take the eleven-acre parcel into trust outside the
14 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
APA would constitute just the sort of end-run that we have
previously refused to allow, and would cast a cloud of doubt
over countless acres of land that have been taken into trust for
tribes recognized by the federal government.
3
And, of course, California has not brought an APA action
in this case, nor has it joined the United States, the Secretary
of the Interior, or any other federal government official. See,
e.g., Carcieri, 555 U.S. 385–86 (“Petitioners sought review
of the IBIA decision pursuant to the” APA and named “the
Secretary [of the Interior] and other Department of Interior
officials” as defendants.); 5 U.S.C. §§ 702, 703 (waiving the
United States’s sovereign immunity where persons have
“suffer[ed] legal wrong because of agency action” or have
been “adversely affected or aggrieved by agency action” and
allowing an “action for judicial review” against “the United
States, the agency by its official title, or the appropriate
officer” where “no special statutory review proceeding is
applicable”).
Moreover, even if California had brought an APA claim,
such an action would be time barred. 28 U.S.C. § 2401(a)
creates a general six-year statute of limitations for actions
brought against the United States. 28 U.S.C. § 2401(a)
(“Except as provided by chapter 71 of title 41, every civil
action commenced against the United States shall be barred
unless the complaint is filed within six years after the right of
action first accrues.”). We have held that this rule “applies to
actions brought under the APA.” Wind River Mining Corp. v.
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 15
United States, 946 F.2d 710, 713 (9th Cir. 1991).5 Therefore,
California’s arguments that the BIA does not properly hold
the eleven-acre parcel in trust for Big Lagoon Rancheria fail,
both because the state has failed to file the appropriate APA
action and because such an APA challenge would be time-
barred.
B
The State also challenges the BIA’s recognition of Big
Lagoon Rancheria as an Indian tribe. The thrust of the State’s
argument is that it is unclear how the tribe came to appear on
the list of “Indian Tribal Entities” in 1979 and that such
uncertainty gives rise to an issue of material fact precluding
summary judgment.
California has not brought an APA challenge to the BIA’s
determination, and, like the challenge to the BIA’s
entrustment decision with respect to the eleven-acre parcel,
such a challenge would be time-barred for the reasons stated
in Part III(A)(3), supra.
5
In Wind River, we recognized an exception to the six-year statute of
limitations when “a challenger contests the substance of an agency
decision . . . by filing a complaint for review of the adverse application of
the decision to a particular challenger.” Wind River, 946 F.2d at 715. We
reasoned that a cause of action should be understood to “accrue” six years
following the application of the decision to a particular challenger under
those circumstances because “[t]he government should not be permitted
to avoid all challenges to its actions, even if ultra vires, simply because
the agency took the action long before anyone discovered the true state of
affairs.” Id. That exception is inapplicable here because California
understood the “true state of affairs” concerning the BIA’s decision to take
the eleven-acre parcel into trust by, at the very latest, 1997, when it filed
amicus briefs in a proceeding challenging the BIA’s authority to take the
eleven-acre parcel into trust.
16 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
IV
California also appeals the district court’s decision not to
grant a continuance under Fed. R. Civ. P. 56(f). When a
district court refuses to grant a motion for a continuance, we
have found abuse of discretion only “‘if the movant diligently
pursued its previous discovery opportunities, and if the
movant can show how allowing additional discovery would
have precluded summary judgment.’” U.S. Cellular Inv. Co.
v. GTE Mobilnet, Inc., 281 F.3d 929, 934 (9th Cir. 2002)
(quoting Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844
(9th Cir. 1994)).
The district court ruled that the State was not entitled to
a continuance because “the status of the Tribe and its eleven-
acre parcel has no bearing on whether the State negotiated in
good faith.” Big Lagoon, 759 F. Supp. 2d at 1160.
Effectively, the district court concluded that whether Big
Lagoon Rancheria is properly recognized as a tribe and
whether the eleven-acre parcel is properly held in trust are
irrelevant to whether the State was obligated to negotiate in
good faith. While the State’s claims fail in this case, such
considerations might not be irrelevant in a case involving a
timely APA claim.
Nonetheless, the district court also observed that the State
“was [not] reasonably diligent in seeking discovery” on an
earlier motion to stay all proceedings except discovery in the
district court. The record provides ample support for that
conclusion. The parties agreed to one extension of the
discovery deadline, and the court granted another. The
deadline for filing dispositive motions was likewise extended
twice in the district court, once by agreement of the parties
and once by the court. In addition, the State waited until mid-
BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 17
December 2009—very near the end of the discovery period—
to serve the BIA with a document subpoena. Because the
State failed to demonstrate that it “diligently pursued its
previous discovery opportunities,” the district court did not
abuse its discretion when it denied the State’s motion for a
continuance. U.S. Cellular, 281 F.3d at 934.
V
On cross-appeal, Big Lagoon Rancheria challenges the
district court’s ruling that the State’s negotiation over
environmental measures did not necessarily constitute bad
faith. The district court concluded that “environmental
mitigation measures are a permissible subject for negotiation
under [the] IGRA” under certain circumstances so long as the
State offered “as a meaningful concession gaming rights that
are more expansive than allowed to otherwise similarly
situated tribes.” Big Lagoon, 759 F. Supp. 2d at 1162. It
found that the State had not offered meaningful concessions,
but stopped short of holding that a request for environmental
mitigation necessarily constitutes bad faith. Id.
“A case is moot on appeal if no live controversy remains
at the time the court of appeals hears the case.” NASD
Dispute Resolution, Inc. v. Judicial Council of Cal., 488 F.3d
1065, 1068 (9th Cir. 2007). We have held that “[t]he test for
whether such a controversy exists is ‘whether the appellate
court can give the appellant any effective relief in the event
that it decides the matter on the merits in his favor.’” Id.(quoting In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005)).
The district court ordered the State to reach a gaming
compact with Big Lagoon Rancheria to govern class III
gaming. Big Lagoon, 759 F. Supp. 2d at 1163. Subsequently,
18 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA
a mediator selected by the district court chose Big Lagoon
Rancheria’s proposal as the one that would govern gaming at
Big Lagoon. All that remains is for the mediator to notify the
Secretary of the Interior of his selection, and, if the Secretary
of the Interior approves the compact, Big Lagoon Rancheria
will be authorized to build the casino and engage in the
gaming that it seeks. Big Lagoon Rancheria can receive no
further relief on its cross-appeal which is therefore moot.
VI
For the reasons explained above, the judgment of the
district court is AFFIRMED. Big Lagoon Rancheria’s cross-
appeal is DISMISSED as moot.6
6
Big Lagoon Rancheria’s Request to Take Judicial Notice in Support of
Petition for Panel Rehearing and Rehearing En Banc filed March 6, 2014
is DENIED as moot.