Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation v. California

. Opinion by Judge TALLMAN; Dissent by Chief District Judge JARVEY.

OPINION

Sixteen years ago more than sixty Native American tribes entered into Tribal-State Gaming Compacts with the State of California. Sadly, the long and tortured history leading to the culmination of these Compacts did not cease there. Rather, litigation based on ambiguous provisions as to the number of authorized gaming devices has ensued for most of the duration of these Compacts. See In re Indian Gaming Related Cases, 331 F.3d 1094 , 1095-1107 (9th Cir.2003) (detailing the entire history before and after the Compacts were enacted). Before us is yet another installment in this ongoing saga, this time between the Pauma Band of Luiseno Mission Indians (“Pauma” or “the Tribe”) and the State of California, the California Gambling Control Commission, and Governor Edmund G. Brown, Jr. (collectively “the State”).

Pauma sued the State based on our pri- or decision in Cachil Dehe Band of Win-tun Indians of the Colusa Indian Community v. California (“Colusa II ”), 618 F.3d 1066 (9th Cir.2010). We have been asked to determine (1) whether Colusa II’s interpretation of the Compacts’ license pool provision applies…

dissenting.

I agree with the majority’s conclusion that courts determine contracting parties’ intent as of the time the contract is executed. I disagree, however, that California committed the tort of misrepresentation by interpreting the Compact differently than a later-court decision. The provision regarding the number of available licenses in the Compact was hopelessly ambiguous. California, the compacting tribes, the district court and this court all interpreted it differently. That this court’s opinion differed from that offered by California does not establish that California made “an assertion that [was] not in accord with the *1050 facts” as they existed at the time the assertion was made. Restatement (Second) OF CONTRACTS § 159 & cmt. c.

The decision in Colusa II was not the result of any judicial fact finding. In fact, this court rejected the parties’ extrinsic evidence for contract interpretation purposes and determined the number of available licenses as a matter of law. Because extrinsic evidence was rejected and the number determined as a matter of law, all parties to the Compact were on equal footing with respect to their ability to interpret this ambiguous…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUMA BAND OF LUISENO MISSION Nos. 14-56104

INDIANS OF THE PAUMA & YUIMA 14-56105

RESERVATION, AKA Pauma Band of Mission Indians, AKA Pauma D.C. Nos. Luiseno Band of Mission Indians, 3:09-cv-01955- Plaintiff-Appellee/ CAB-MDD Cross-Appellant, 3:09-cv-01955-

CAB-MDD

v.

OPINION

STATE OF CALIFORNIA; CALIFORNIA

GAMBLING CONTROL COMMISSION,

an agency of the State of California; EDMUND G. BROWN, JR., as Governor of the State of California, Defendants-Appellants/ Cross-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted July 10, 2015—San Francisco, California

Filed October 26, 2015 Before: Mary M. Schroeder and Richard C. Tallman, Circuit Judges, and John A. Jarvey,* Chief District Judge.

Opinion by Judge Tallman; Dissent by Chief District Judge Jarvey

SUMMARY**

Indian Law

Affirming the district court’s summary judgment, the panel held that the Pauma Band of Luiseno Mission Indians was entitled to rescission of the…