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

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

ORDER

The panel has voted to amend its previous opinion and issues the following opinion to replace it. With this amendment, the panel has voted to deny the petitions for panel rehearing and to deny the petitions for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for panel rehearing and petitions for rehearing en banc are DENIED. No future petitions for rehearing or petitions for rehearing en banc will be entertained.

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…

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 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 provision.…