Sipp v. Buff. Thunder, Inc.

546 P.3d 1266

2024-NMSC-005

Jeremiah SIPP a/k/a Sage Rader, and Bella Rader, Plaintiffs-Respondents,

v.BUFFALO THUNDER, INC.; Buffalo Thunder Development Authority; Pueblo of Pojoaque; Pueblo of Pojoaque Gaming Commission; and Pojoaque Gaming, Inc., Defendants-Petitioners.

NO. S-1-SC-39169

Supreme Court of New Mexico.

Filing Date: January 16, 2024

ORIGINAL PROCEEDING ON CERTIORARI, David K. Thomson, District Judge

Rey-Bear McLaughlin, LLP, Daniel I.S.J. Rey-Bear, Timothy H. McLaughlin, Spokane, WA, for Petitioners

Valdez and White Law Firm, LLC, Timothy L. White, Albuquerque, NM, for Respondents

Rothstein Donatelli, LLP, Richard W. Hughes, Donna M. Connolly, Santa Fe, NM, for Amici Curiae Pueblos of Santa Ana and Santa Clara

Chestnut Law Offices, P.A., Ann Berkley Rodgers, Albuquerque, NM, for Amicus Curiae Pueblo of Acoma

VanAmberg, Rogers, Yepa, Abeita, Gomez & Wilkinson, LLP, C. Bryant Rogers, David T. Gomez, Santa Fe, NM, for Amicus Curiae Taos Pueblo

Pueblo of Laguna, James M. Burson, Laguna, NM, for Amicus Curiae Pueblo of Laguna

Pueblo of Sandia, Steffani A. Cochran, Bernalillo, NM, for Amicus Curiae Pueblo of Sandia

Frye & Kelly, P.C., Paul E. Frye, Albuquerque, NM, for Amicus Curiae Ohkay Owingeh

Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, David C. Mielke, Albuquerque, NM, for Amici Curiae Pueblo of Isleta and San Felipe Enterprises

Laguna Development Corporation, Leander Bergen, Alicia Sanasac, Albuquerque, NM, for Amicus Curiae Laguna Development Corporation

Michael B. Browde, David J. Stout, Albuquerque, NM, for Amicus Curiae New Mexico Trial Lawyers Association

OPINION

BACON, Chief Justice.

{1} The instant case requires us to determine whether the jurisdiction shifting from tribal court to state court authorized under Section 8(A) ("Policy Concerning Protection of Visitors") of New Mexico’s Tribal-State Class III Gaming Compact (the Compact)¹ was terminated under the Compact’s own terms by either Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d 1254 (D.N.M. 2013), appeal dismissed, 10th Cir. (13-2182 & 13- 2191) (2014), or Navajo Nation v. Dalley, 896 F.3d 1196 (10th Cir. 2018), cert. denied sub nom. McNeal v. Navajo Nation, — U.S. —, 139 S. Ct. 1600, 203 L.Ed.2d 755 (2019). The relevant terms of Section 8(A) provide that

[f]or purposes of this Section, any such claim [for bodily injury or property damage] may be brought in state district court, including claims arising on tribal land, unless it is finally determined by a state or federal court that IGRA does not permit the shifting of jurisdiction over visitors’ personal injury suits to state court.

(Emphasis added.)

{2} Pueblo of Pojoaque and several Pueblo-owned entities (Petitioners) assert that both Nash and Dalley terminated the jurisdiction shifting in Section 8(A) as each case constitutes a "final[] determin[ation] by a state or federal court" that such jurisdiction shifting is not permitted under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721. Accordingly, Petitioners argue for reversal of the Court of Appeals’ opinion, which reversed the district court’s grant of Petitioners’ motion to dismiss for lack of subject matter jurisdiction. Jeremiah Sipp and Hella Rader (Respondents) argue for affirmance, asserting that the relevant jurisdiction shifting under Section 8(A) was not terminated by Nash or Dalley and thus the Court of Appeals’ remand of their personalinjury tort claims to the district court for further proceedings was proper.

{3} We reverse, holding under contract law that jurisdiction shifting under Section 8(A) of the Compact was terminated by Nash. We therefore do not reach the secondary issue of whether state jurisdiction over such claims is permissible under IGRA in light of Michigan v. Bay Mills Indian Community, 572 U.S. 782, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014).

I. FACTUAL AND PROCEDURAL BACKGROUND

[1] {4} IGRA creates the framework for states and Indian tribes to cooperate in regulating on-reservation tribal gaming. Under IGRA, a tribal-state gaming compact is required for an Indian tribe to have a Class III gaming facility, and the statute "prescribes the matters that are permissible subjects of gaming-compact negotiations between tribes and states." Mendoza v. Isleta Resort & Casino, 2020-NMSC-006, ¶ 14, 460 P.3d 467. In 2005 and again in 2017, the Pueblo of Pojoaque and the State of New Mexico entered into the Compact. Section 8(A) of the Compact provides that visitors to Indian casinos may bring their bodily injury and property damage claims against tribal entities in state court unless a state or federal court finally determines that IGRA does not permit the shifting of jurisdiction over those claims to state court. This language terminating a visitor’s option to choose state court jurisdiction is the subject of the instant dispute.

{5} Respondents filed a complaint for damages in state district court against Petitioners Buffalo Thunder, Inc., Buffalo Thunder Development Authority, the Pueblo of Pojoaque, the Pueblo of Pojoaque Gaming Commission, and Pojoaque Gaming, Inc. The complaint alleged that in the course of his employment for Dial Electric, Respondent Sipp was in the receiving area of the Buffalo Thunder casino when his head struck a large electric garage-type door which was unexpectedly and suddenly lowered by a casino employee. The complaint further alleged that Petitioners’ negligence directly resulted in Respondent Sipp being "rendered unconscious, causing him severe injuries, including but not limited to severe head and spinal injuries." Respondent’s claims for damages included related medical costs and Respondent Hella Rader’s loss of consortium.

{6} Following a hearing, the district court granted Petitioners’ motion to dismiss for lack of subject matter jurisdiction. The district court concluded that Respondents’ claims did not fall within Section 8(A), and that "[t]herefore, [Respondents] ha[d] not established an express abrogation or waiver of [Petitioners’] sovereign immunity as required to establish subject matter jurisdiction" in state court. Respondents timely appealed.

{7} In the Court of Appeals, Respondents argued that the district court erred in granting Petitioners’ motion to dismiss, asserting that Section 8(A) of the Compact "expressly waives sovereign immunity and provides for state court jurisdiction over Plaintiffs’ claims." Sipp v. Buffalo Thunder, Inc., 2022- NMCA-015, ¶ 6, 505 P.3d 897. Petitioners’ counterarguments included that jurisdiction shifting under Section 8(A) had been terminated by both Nash and Dalley. Id. ¶ 7.

{8} The Court of Appeals held that Respondents sufficiently pleaded claims that fall under Section 8(A)’s waiver of sovereign immunity. Id. The Court further concluded that, "[b]ecause both Nash and Dalley explicitly restricted their holdings to their casespecific facts, and both cases left open the possibility that IGRA permits jurisdiction shifting for tort claims under different circumstances," neither federal case triggered the "termination clause" at the end of Section 8(A). Id. ¶ 14; see id. ¶ 9 (quoting Section 8(A)’s termination clause as "unless it is finally determined by a state or federal court that IGRA does not permit the shifting of jurisdiction over visitors’ personal injury suits to state court"). Accordingly, the Court of Appeals concluded that "the district court in this case was not stripped of subject matter jurisdiction on these grounds." Id. ¶ 14. In addition, the Court of Appeals rejected Petitioners’ argument that Bay Mills, 572 U.S. 782, 134 S.Ct. 2024, directs a different result, concluding that "the [Bay Mills] Court did not pass upon the question addressed by Dalley and Nash … [, and c]onsequently, Bay Mills is not dispositive of the question before us." 2022-NMCA-015, ¶ 15, 605 P.3d 897. Under these considerations, the Court of Appeals remanded to the district court for further proceedings. Id. ¶¶ 14, 27. Petitioners timely petitioned this Court for a writ of certiorari.

{9} This appeal presents two questions: first, "Was the termination clause in the tortclaims provision of the [Compact] triggered once [Nash] and then [Dalley] each finally determined that IGRA does not permit shifting jurisdiction to state court over casino visitors’ tort claims?"; second, "Does the holding in [Bay Mills] that ‘class III gaming activity throughout [IGRA] unambiguously means only activity ‘involved in playing class III games’ ‘in the poker hall’ and not also ‘off-site’ operations, substantially limit the decision in Doe v. Santa Clara Pueblo, 2007-NMSC-008, 141 N.M. 269, 154 P.3d 644, that IGRA authorizes state jurisdiction over casino visitor tort claims, to only claims directly related to such activity?"

{10} Following oral argument, we ordered the parties to brief what effect, if any, the following cases have on the questions before the Court: C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070, 112 N.M. 504, 817 P.2d 238; Mark V, Inc. v. Mellekas, 1993-NMSC-001, 114 N.M. 778, 845 P.2d 1232; and ConocoPhillips Co. v. Lyons, 2013-NMSC-009, 299 P.3d 844. In our order, we directed the parties to Mendoza for the proposition "Gaming compacts are contracts between two parties," in this case "the Pueblo and the State, and we treat them as such." 2020-NMSC-006, ¶ 28, 460 P.3d 467 (text only)² (citation omitted). See order, Sipp v. Buffalo Thunder, Inc., S-1-SC-39169 (N.M. Apr. 28, 2023).

II. DISCUSSION

A. Standard of Review

[2] {11} "In reviewing an appeal from an order granting or denying a motion to dismiss for lack of jurisdiction, the determination of whether jurisdiction exists is a question of law which an appellate court reviews de novo." Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 6, 132 N.M. 207, 46 P.3d 668.

B. Both Nash and Dalley Qualify Under Section 8(A) of the Compact to Terminate Jurisdiction Shifting to State Court of Relevant Claims for Bodily Injury or Property Damage

{12} We first address whether either Nas...