1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 YOCHA DEHE WINTUN NATION, No. 2:19-cv-00025-JAM-AC

VIEJAS BAND OF KUMEYAAY

12 INDIANS, and SYCUAN BAND OF

THE KUMEYAAY NATION,

13 ORDER DENYING THE CALIFORNIA Plaintiffs, GAMING ASSOCIATION’S MOTION FOR 14 RECONSIDERATION v. 15 GAVIN NEWSOM, Governor of 16 California, and the STATE OF

CALIFORNIA,

17 Defendants. 18 19 On January 3, 2019, the Yocha Dehe Wintun Nation, Sycuan 20 Band of the Kumeyaay Nation, and Viejas Band of Kumeyaay Indians 21 (collectively “Plaintiffs” or “Tribes”) filed a complaint against 22 the State of California and Governor Gavin Newsom (collectively 23 “Defendants”). Compl., ECF No. 1. Plaintiffs alleged Defendants 24 breached their Tribal-State Compacts and the covenants of good 25 faith and fair dealing implied therein. See Compl. ¶¶ 124-135. 26 Shortly thereafter, Defendants filed a motion to dismiss, and the 27 California Gaming Association (“CGA”) filed a motion to 28 intervene. Defs.’ Mot. to Dismiss, ECF No. 17; CGA’s Mot. to 1 Intervene, ECF No. 11. The Court granted Defendants’ motion to 2 dismiss, finding Plaintiffs failed to state a claim upon which 3 relief could be granted. Order, ECF No. 29. Absent a pending 4 case or controversy, the Court sua sponte denied CGA’s motion to 5 intervene as moot. 6 CGA now contends the Court must reconsider its prior order.1 7 Mot. for Reconsideration (“Mot.”), ECF No. 31. Plaintiffs oppose 8 the motion. Opp’n, ECF No. 41. Defendants do not. Statement of 9 Non-opp’n, ECF No. 42. For the reasons set forth below, the 10 Court DENIES CGA’s motion for reconsideration. 11 12 I. OPINION 13 A. Legal Standard 14 Federal Rule of Civil Procedure 59(e) allows parties to 15 file a motion “to alter or amend a judgement” within 28 days of 16 entry of judgment. Fed. R. Civ. Proc. 59(e). Rule 59(e) 17 “offers an extraordinary remedy, to be used sparingly in the 18 interests of finality and conservation of judicial resources.” 19 Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). 20 “[A]bsent highly unusual circumstances,” a district court will 21 not grant a motion for reconsideration unless (1) it is 22 presented with newly discovered evidence; (2) the Court 23 committed clear error; or (3) there was an intervening change in 24 the controlling law. 389 Orange Street Partners v. Arnold, 179 25 F.3d 656, 665 (9th Cir. 1999). Parties may not use Rule 59(e) 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for August 13, 2019. 1 motions “to raise arguments . . . for the first time when they 2 could reasonably have been raised earlier in the litigation.” 3 Kona Enters v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 4 2000). 5 B. Analysis 6 CGA argues the Court committed clear error in light of 7 Allied Concrete & Supply Co. v. Baker, 904 F.3d 1053, 1066 (9th 8 Cir. 2018); W. Coast Seafood Processors Ass’n v. NRDC, 643 F.3d 9 701, 704 (9th Cir. 2011); Canatella v. California, 404 F.3d 1106, 10 1109 n.1 (9th Cir. 2005); and United States v. Ford, 650 F.2d 11 1141, 1143 (9th Cir. 1981). CGA interprets these cases to stand 12 for the proposition that dismissal of a case does not moot a non- 13 party’s motion to intervene so long as a party “kept the 14 underlying action alive by filing a notice of appeal.” Mot. at 1 15 (quoting Canatella, 404 F.3d at 1109 n.1). The Court does not 16 agree with CGA’s reading of these cases. 17 The procedural posture of this case materially distinguishes 18 it from Allied Concrete & Supply Co., W. Coast Seafood Processors 19 Ass’n, Canatella, and Ford. The district courts in those cases 20 denied proposed-intervenors’ motions to intervene on non-mootness 21 grounds. The proposed intervenors appealed. Subsequently, the 22 underlying actions were dismissed—either voluntarily or by court 23 order. The proposed intervenors’ pending appeals raised the 24 question of whether dismissal of the underlying suits mooted the 25 appeals. In W. Coast Seafood Processors, 643 F.3d at 704 and 26 Ford, 650 F.2d at 1142-43, the Ninth Circuit held the proposed 27 intervenors’ appeals became moot when the underlying suits were 28 dismissed and neither party appealed the dismissal. In 1 Canatella, however, a party to the underlying action appealed the 2 lower court’s dismissal. 404 F.3d at 1109 n.1. The Ninth 3 Circuit found, in that context, that the proposed intervenor’s 4 appeal likewise remained a live controversy. 404 F.3d at 1109 5 n.1. Allied Concrete & Supply Co., 904 F.3d at 1066 extended 6 Canatella, holding that “a potential petition for rehearing or 7 certiorari keeps a case alive for the purpose of appealing a 8 motion to intervene.” 9 Following Allied Concrete & Supply, the appeal of a motion 10 to intervene satisfies Article III’s “case or controversy” 11 requirement so long as parties to the underlying action have an 12 avenue for challenging the district court’s dismissal. 904 F.3d 13 at 1066-67. A reviewing court may ultimately reverse the lower 14 court’s dismissal; in which case, the propriety of a non-party’s 15 ability to intervene is also at issue. See id.; see also 16 Canatella, 404 F.3d at 1109 n.1. But neither Allied Concrete & 17 Supply nor Canatella spoke to the question of whether a district 18 court—having dismissed a case in its entirety—should adjudicate a 19 motion to intervene simply because one of the parties appealed 20 that dismissal. Indeed, this Court found no basis for doing so 21 when it denied CGA’s motion as moot in its June 18, 2019 order. 22 Unlike in Allied Concrete & Supply, Plaintiffs do not contend the 23 Court’s dismissal bars CGA from appealing its motion to 24 intervene. In fact, Plaintiff’s concede CGA could renew its 25 motion to intervene if the Ninth Circuit reversed this Court’s 26 dismissal. See Opp’n at 2. The Court’s June 18 order only 27 prevents CGA from participating in Plaintiffs’ pending appeal. 28 But nothing in CGA’s motion suggests it is entitled to that type 1 of participation. 2 CGA has not demonstrated that the Court committed clear 3 | error when it denied CGA’s motion to intervene as moot. 4 | Moreover, CGA did not contend that newly-discovered evidence or 5 an intervening change in the controlling law warranted 6 | reconsideration. Accordingly, CGA’s motion is DENIED. 7 8 Il. ORDER 9 For the reasons set forth above, the Court DENIES CGA’s 10 | motion for reconsideration. 11 IT IS SO ORDERED. 12 Dated: September 9, 2019 13 kA 14 teiren staves odermacr 7008 15 16 17 18 19 20 21 22 23 24 25 26 27 28