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(Cite as: 2005 WL 2367782 (W.D.Tex.))

United States District Court,

W.D. Texas, El Paso Division.

STATE OF TEXAS Plaintiff,

v.

YSLETA DEL SUR PUEBLO, Tigua Gaming Agency, The Tribal Council, Tribal Governor

Art Senclair, and Tribal Lieutenant Governor Carlos Hisa, Defendants.

No. EP-99-CA-320-DB.

Sept. 27, 2005.

Deborah A. Verbil, Senior Counsel, San Antonio, TX, Melanie P. Sarwal,  Weil, Gotshal & Manges LLP, Linda Eads, Shane Peter Phelps, Julie C. Parsley, Office of the Attorney General, Toni Hunter, Gray & Becker, P.C., Michael T. McCaul, U.S. Attorney's Office, Joseph Virgil Crawford, Wright & Greenhill, P.C., John Cornyn, III, Attorney General, Karen Burdett Ray, Assistant Attorney General, Austin, TX, Bryan Gantt, McCraw & McCraw, Mc Kinney, TX, Andy Taylor, Andy Taylor & Associates, PC, Houston, TX, for Plaintiff.

Thomas M. Diamond, Ronald L. Jackson, Diamond, Rash Gordon &Jackson, Norman J. Gordon, Mounce Green Myers Safi, El Paso, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

BRIONES, J.

*1 On this day, the Court considered Defendants Ysleta del Sur Pueblo, Tigua Gaming Agency, and the Tribal Council's (collectively, the "Tribe") "Second Motion For Modification Of The September 27, 2001, Injunction," filed in the above-captioned cause on February 11, 2005. On February 24, 2005, Plaintiff, the State of Texas ("State"), filed "Plaintiff's Response In Opposition To Defendants' Second Motion for Modification of the September 27, 2001, Injunction" ("Response"). On March 14, 2005, the Tribe filed "Defendants' Reply To Plaintiff's Response In Opposition to Defendants' Second Motion for Modification of the September 27, 2001, Injunction" ("Reply"). After due consideration, the Court is of the opinion that the instant Motion shall be held in abeyance and the proceedings stayed until such time that the Ysleta del Sur Pueblo Heritage Corporation files an application with the Texas Lottery Commission for a license to conduct charitable bingo, and the Texas Lottery Commission responds to that application.

BACKGROUND

This is an Indian gaming case. The Tigua Indian Tribal Council, which is the Tribe's traditional governing body, owns and operates the Speaking Rock Casino and Entertainment Center ("Casino"). [FN1] The Casino is located in El Paso, Texas, on the Tribe's reservation and has been operating since 1993. Although originally opened as a bingo hall, the Tribe has greatly expanded its operation into what can best be described as a 24-hour, Las Vegas-type casino, with card and dice games of chance.

FN1. The Ysleta del Sur Pueblo Tribe is also known as the Tigua Indian Tribe.

On September 27, 1999, the State filed an action against Defendants seeking to enjoin the operation of the Casino. The State's action sought to shut down the casino as a nuisance in violation of Texas Penal Code § 47.01, et seq., and the Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of Texas Restoration Act, (the "Restoration Act" or the "Act"), 25 U.S.C.A. § 1300g-1, et seq. On cross-motions for summary judgment, Judge G. Thomas Eisele granted the State's motion, holding that the Tribe had agreed to be subjected to Texas gaming laws in exchange for federal trust status, and was in violation of the State's gaming statutes. [FN2] On September 27, 2001, Judge Eisele issued an Injunction which prohibited all gaming at the Casino. Judge Eisele found that the Tribe does not have parallel sovereign status with the State and was engaging in illegal gaming activity. Further, Judge Eisele held that the Injunction prohibited the Tribe from participating in charitable bingo activities without first applying for and receiving a license from the Texas Lottery Commission ("Commission"). [FN3]

FN2. The Hon. G. Thomas Eisele, of the Eastern District of Arkansas, was the visiting judge who presided over this case. On March 7, 2005, the case was reassigned to the Court.

FN3. For Judge Eisele's full ruling and reasoning, see Texas v. Ysleta Del Sur Pueblo, 220 F.Supp.2d 668 (W.D. Tex.2001 & Order Modifying Opinion 2002).

On September 1, 2004, the Tribe submitted an application to the Commission for a license to conduct charitable bingo. [FN4] Over the 12 months which followed, a back-and-forth volley of correspondence between the parties ensued, including thirteen letters of dispute and rebuke. The Commission repeatedly requested additional information from the Tribe. One dispute, for instance, centered around whether the Tribe was applying as a religious or a fraternal organization. On December 31, 2004, the Tribe sent a detailed response letter to the Commission in which it requested the charitable bingo license be issued to the Ysleta del Sur Pueblo Heritage Corporation ("Heritage Corporation"), a non-profit corporation. On January 24, 2005, the Commission notified the Tribe that it must submit an original application for the Heritage Corporation. As of yet, an application from the Heritage Corporation has not been filed. Further, the Commission has yet to make a final determination on the Tribe's September 1, 2004 application. The instant Motion followed.

FN4. The Texas Occupations Code permits the performance of charitable bingo activities by qualified organizations and entities. In order to participate in charitable bingo activities in Texas, an entity must apply for and receive a license from the Commission. See Tex. Occ.Code Ann. § 2001.101, et seq. (Vernon 2004).

   AUTHORITIES

*2 District courts possess the discretion to stay proceedings so that unresolved matters may be remedied by administrative agencies. Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir.1988). Primary jurisdiction is a judicially created doctrine whereby a court of competent jurisdiction may dismiss or stay an action pending a resolution of some portion of the action by an administrative agency. Id. at 206. Under the doctrine, a court may refer issues to an administrative agency while reserving to itself the power to take final action on the litigant's claims. Id. The discretion to stay a proceeding is not only possessed, but encouraged, by the Fifth Circuit. Id.

DISCUSSION

Before the Court is the Tribe's Motion to modify the September 27, 2001 Injunction, to permit the Tribe to conduct charitable bingo. However, since the Commission has yet to make a final determination on this matter, the Court elects to stay these proceedings until the Commission rules on an application from the Heritage Corporation. See Wagner & Brown, 837 F.2d at 206.

In Wagner & Brown, the Fifth Circuit remanded that case back to the district court with directions to stay proceedings for 180 days to allow the Federal Energy Regulatory Commission to resolve a litigant's complaint. Id. at 206. Likewise, the Court may exercise its discretion to refer issues to an administrative agency while reserving to itself the power to take final action on the litigant's claims. Id. Here, the September 27, 2001 Injunction required the Tribe to procure a license from the Commission to conduct charitable bingo. The Tribe has attempted to do so. However, more than one year after the Tribe filed its application for a license, the Commission has yet to make a final determination. Further, while the Tribe sent a letter requesting a license for the Heritage Corporation, the Tribe has not filed an actual application with the Commission. The Commission's delay and the Tribe's reluctance to respond with additional information has stalled the application process and requires resolution. The Court concludes that, as in Wagner & Brown, an outside agency's determination is needed before the instant Motion may be decided. Once the Heritage Corporation files an original application, and the Commission responds to the application, the Court will rule on the instant Motion.

Accordingly, IT IS HEREBY ORDERED that proceedings are STAYED until such time that the Ysleta del Sur Pueblo Heritage Corporation files an application for a Texas Lottery Commission license to conduct charitable bingo, and the Commission is given an opportunity to respond to that application.

IT IS FURTHER ORDERED that the Tribe NOTIFY the Court when the Heritage Corporation has submitted an application to the Texas Lottery Commission.

IT IS FINALLY ORDERED that Plaintiff State of Texas NOTIFY the Court when the Commission has made a final determination regarding the Heritage Corporation's application.

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