Native American Press/Ojibwe News

Federal judge denies Shakopee, Grand Portage motion for summary judgment in casino audit lawsuit

State joins Press/ON in appealing state district court ruling on casino audits

By Clara NiiSka and Bill Lawrence - June 28, 2002
U.S. Federal District Court Judge Ann D. Montgomery denied tribal arguments and granted the state’s motion for summary judgment in the case Shakopee and Grand Portage v. Mike Hatch, David F. Fisher, and Charles R. Weaver, Jr. on June 20th.

The law firm BlueDog, Olson & Small filed the federal lawsuit on behalf of their clients, the Shakopee Indian community and the Grand Portage Band, after the Minnesota Attorney General’s Office issued an opinion that casino audits filed with the Minnesota Department of Public Safety pursuant to the Tribal-State Gaming Compacts were public records.

Press/ON publisher Bill Lawrence had requested the audits pursuant to the Minnesota Government Data Practices Act. The audits were subsequently also requested by the Minneapolis Star Tribune and two state legislators. After six months of legal wrangling between state agencies, on September 14, 2001 the Attorney General’s office opined that the audits are public records which the Data Practices Act, Minnesota Statutes § 13, requires the state to release to the public upon request. Prairie Island and Mille Lacs filed suit in state court to bar release of the audits, and Shakopee and Grand Portage filed in federal court.

In her June 20th judgment, Judge Montgomery ruled on cross-motions for summary judgment filed by the plaintiffs, Shakopee and Grand Portage, and by the Minnesota government defendants. She rejected all of the motions filed by the tribal attorneys, and granted the State’s motion for summary judgment. Judge Montgomery also denied Shakopee and Grand Portage’s appeal of Federal Magistrate Judge Arthur J. Boylan’s Order of February 21, 2002, requesting that independent legal counsel be appointed for State Department of Public Safety Commissioner Charles Weaver, ruling that the Attorney General’s office was properly representing the State and state officials.

The Data Practices Act
The attorneys for Shakopee and Grand Portage argued that the Tribal-State Compacts prohibit the State from applying the Data Practices Act to the casino audits, claiming “breach of contract.” The Data Practices Act “is to balance the rights of individuals to protect personal information from indiscriminate disclosure with the right of the public to know what the government is doing,” wrote Judge Montgomery. The Act “establishes a presumption that all government data are public and accessible to the public, unless otherwise classified by statute, by temporary classification under the MGDPA, or by federal law,” she explains.

“Two appellate courts have held that application of a state’s public record law to information obtained from a tribe pursuant to a tribal-state gaming compact does not violate the compact where the compact either permits such application or is silent on the issue,” ruled Judge Montgomery, the “breach of contract claim fails as a matter of law.”

Due Process
The tribal attorneys also argued that Minnesota Statute § 13.06 “violates procedural due process.” Judge Montgomery rejected that argument, noting that the Data Practices Act “affords the Tribes a sufficient opportunity to be heard in state court. No due process violation has occurred.”

Preemption by IGRA
Attorneys Steven Olson and Greg Paulson also argued on behalf of Shakopee and Grand Portage that the presumption that governmental data is public information in the Data Practices Act is outweighed – preempted – by the Indian Gaming Regulatory Act (IGRA), which treats tribal gaming audits as nonpublic for the purposes of the Freedom of Information Act (FOIA).

“The FOIA applies only to records held by a federal government agency,” wrote Judge Montgomery, and “indeed, ‘the plain language of the FOIA precludes its application to state or local agencies’.” In rejecting the ‘preemption’ argument, Judge Montgomery noted that federal law does not preempt state public records statutes, and quoted from Confederated Tribes of Siletz Indians v. Oregon (143 f.3d 481, 1998), “if the Report contained damaging information on the operation [of the casino] and the release of that Report [could] cause a decline in business, [such a possibility] is fully consistent with IGRA’s goal of fair and honest gaming.”

“Federal law does not preempt application” of the Data Practices Act, ruled Judge Montgomery.

Estoppel
“The public interest in the rule of law is undermined when government is unable to enforce the law because of the conduct of its agents,” explained Judge Montgomery, those “who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.” Therefore, “in seeking to estop the State, the Tribes must establish … that the government conduct in question amounts to ‘affirmative misconduct’.”

Since the “Tribes have presented no evidence of affirmative misconduct by the State,” ruled Judge Montgomery, “the Tribes’ estoppel claim fails.”

Trade Secrets
The tribal attorneys for Shakopee and Grand Portage argued in federal court that the casino audits are “trade secrets,” as the attorneys for Mille Lacs and Prairie Island have argued in state court. “The Eleventh Amendment’s guarantee of sovereign immunity to the states bars federal court adjudication of pendant state law claims against a non-consenting state defendant,” wrote Judge Montgomery, so “this Court may not decide the question of whether or to what extent the Tribes’ gaming audits received by the State are nonpublic trade secret information under §13.37” of the Minnesota Data Practices Act.

If Shakopee and Grand Portage want to pursue the question of whether or not gaming audits are “trade secrets” under the Minnesota Data Practices Act, ruled Judge Montgomery, that Act “affords the Tribes a sufficient opportunity to pursue their rights in state district court.”

No case for Shakopee and Grand Portage to appeal
“Because the State’s summary judgment motion is granted, no case remains in federal court. Therefore, the Tribe’s Appeal of Judge Boylan’s Order [barring Shakopee and Grand Portage’s motion to appoint independent counsel for DPS Commissioner Charlie Weaver] of February 21, 2002, is not reached.”

Judge Montgomery stayed her entry of judgment until July 1, 2002, “to allow the Tribes an opportunity to file an action in state court prior to public disclosure of the audit reports.”

Press/ON telephoned tribal attorneys Steven F. Olson and Greg S. Paulson, of the law firm Bluedog, Olson & Small, for comment and to ask these tribal attorneys for Shakopee and Grand Portage (BlueDog’s law firm also serves as tribal court judges for some of Minnesota’s Dakota communities) if they intended to file in state court. They had not responded by press time.

State Court
Ramsey County District Court Judge Louise Bjorkman found that the audits are “trade secrets” not subject to public disclosure under the Data Practices Act in April. As reported in last week’s issue, Press/ON filed an appeal with the Minnesota Court of Appeals on June 21st. The State of Minnesota joined this newspaper in that appeal on Monday, June 24th.

The state lawsuits and the federal lawsuit proceeded separately, and Press/ON did not join in the federal lawsuit.