Pueblo of Pojoaque v. New Mexico (214 F. Supp. 3d 1028, 2016)

United States District Court for the District of New Mexico 2016-09-30

Commerce and Trade Crimes and Criminal Procedure Indians The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone’s Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc. 60)(“Qualified Immunity Motion”); (ii) Defendants Susana Martinez, Jeremiah Ritchie, Jeffry [sic] S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene’s Motion for Stay of Discovery Pending Qualified Immunity Rulings, filed December 4, 2015 (Doc. 61)(“Motion to Stay Discovery”); (iii) the Defendants’ Motion to Stay or Suspend the Court’s October 7, 2015 Preliminary Injunction, filed December 18, 2015 (Doc. 64)(“Motion to Stay Injunction”); (iv) the Defendants’ Motion to Reconsider and Either Vacate or Modify the Court’s October 7, 2015 Preliminary Injunction, and for Relief Pursuant to Fed. R. Civ. P. 62.1, filed December 18, 2015 (Doc. 65)(“Motion to Reconsider Injunction”); (v) Defendant State of New Mexico’s Motion' to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendant State of New Mexico Based on the State’s Eleventh Amendment Sovereign Immunity, filed December 22, 2015 (Doc. 69)(“Sovereign Immunity Motion”); (vi) the Defendants’ Motion to Dismiss Counts III and IV of the Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 71)(“Motion to Dismiss Counts III and IV”); (vii) the Defendants’ Motion to Dismiss Count II of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 72)(“Motion to Dismiss Count II”); (viii) the Defendants’ Motion to Dismiss Count V of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 73)(“Motion to Dismiss Count V”); (ix) the Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed February 17, 2016 (Doc. 93)(“Motion to Stay Proceedings”); and (x) the Pueblo’s Motion for Leave to Submit Supplemental Brief in Support of Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed March 29, 2016 (Doc. lll)(“Supplemental Briefing Motion”). The Court held a hearing on the Qualified Immunity Motion and Motion to Stay Discovery on January 12, 2016. The Court held a hearing on the Sovereign Immunity Motion, the Motion to Stay Discovery, the Motion to Reconsider Injunction, the Motion to Dismiss Counts III and IV, the Motion to Dismiss Count II, and the Motion to Dismiss Count V on March 2, 2016. The Court held a hearing on the Motion to Stay Proceedings and Supplemental Briefing Motion on April 22, 2016.

The primary issues are: (i) whether the Defendants’ interlocutory appeal of the Court’s October 7, 2015, preliminary injunction, divests the Court of its jurisdiction over the present motions; (ii) whether Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone (collectively, the “Individual Defendants”), violated Plaintiff Pueblo of Pojoaque’s federal rights by taking a series of actions under color of state law against non-Indian, state-licensed gaming manufacturer vendors — thereby potentially affecting Poj-oaque Pueblo’s ability to do business with such vendors — based on the Individual Defendants’ determination that the vendors violated New Mexico law in supplying equipment to or receiving proceeds from gaming enterprises that the Pojoaque Pueblo allegedly conducted on its tribal lands in the absence of a compact with Defendant State of New Mexico, as the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (“IGRA”), requires; (iii) whether the Individual Defendants are entitled to qualified immunity with respect to Count IV, and whether discovery should be stayed pending the Court’s ruling on the qualified immunity defense; (iv) whether Defendant State of New Mexico is entitled to dismissal of all Counts on the basis of sovereign immunity; (v) whether the Individual Defendants are entitled to immunity from the Plaintiffs’ claim for tor-tious interference with contractual relations; and (vi) whether the Court should stay, suspend, vacate or modify Judge Brack’s October 7, 2015, preliminary injunction enjoining the Defendants “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based wholly or in part on grounds that such licensee is conducting business with the Pueblo.”

FACTUAL BACKGROUND

This action arises out of New Mexico and Pojoaque Pueblo’s failure to negotiate a state-tribal gaming compact pursuant to IGRA § 2710(d), and an ensuing dispute as to New Mexico’s authority to regulate non-Indian gaming activities in New Mexico— regulations which are motivated by, and have an indirect impact on, the Pojoaque Pueblo’s gaming operations, notwithstanding the absence of a compact. The material facts of this case are undisputed. See, e.g., Qualified Immunity Motion at 5-7 (listing, without disputing, the Plaintiffs’ factual allegations).

Pojoaque Pueblo is a federally recognized Indian Tribe with 482 enrolled members located in northern New Mexico. See Complaint [Failure To Conclude Compact Negotiations in Good Faith, 25 U.S.C. § 2710(d); Declaratory Judgment and In-junctive Relief; Violation of Civil Rights, 42 U.S.C. § 1983; Pendant Claim of Tor-tious Interference with Existing Contractual Relationships] ¶ 1, at 1, filed July 18, 2015 (Doc. 1). The Pojoaque Pueblo operates two gaming facilities on its Indian lands: the Buffalo Thunder Resort & Casino and the Cities of Gold Hotel & Casino. See Complaint ¶ 14, at 7; Pueblo of Poj-oaque, http:llpojoaque.orslvisit/gaming/ (last visited September 20, 2016). Plaintiff Joseph M. Talachy is Governor of the Poj-oaque Pueblo. See Complaint ¶ 15, at 7.

New Mexico is a sovereign state government. See Complaint ¶ 16, at 7. Landers, Maniaci, Becker, Doughty, and Londene (collectively, the “Gaming Board Members”) are Members of the New Mexico Gaming Control Board. Complaint ¶¶ 19-23, at 7-8. Landers also serves as the Chairman of the Gaming Board. See Complaint ¶ 19, at 7. Martinez, the Governor of New Mexico, appointed each Gaming Board member. See Complaint ¶¶ 17, at 7; id. at ¶¶ 19-23, at 7-8. Ritchie serves as Martinez’ Deputy Chief of Staff and primary compact negotiator. See Complaint ¶ 18, at 7.

On July 19, 2005, New Mexico and Poj-oaque Pueblo executed a Class III gaming compact pursuant to IGRA, 25 U.S.C. §§ 2710(d), permitting the operation of casino-style gaming on Pojoaque Pueblo’s tribal lands, see 25 U.S.C. § 2703(8). See Complaint ¶ 46, at 16. Before the compact’s expiration on June 30, 2015, the Pojoaque Pueblo formally requested that New Mexico enter into a new agreement. See Complaint ¶ 2, at 2. Talks were unsuccessful, however, and on December 13, 2013, the Pojoaque Pueblo filed suit against the State for failing to negotiate a compact under IGRA in good faith. See Complaint ¶ 55, at 19. New Mexico promptly asserted sovereign immunity under the Eleventh Amendment to the Constitution of the United States of America as an affirmative defense, and accordingly, the Honorable James A. Parker, Senior United States District Judge for the United States District Court for the District of New Mexico, dismissed the lawsuit on March 3, 2014. See Complaint ¶ 56, at 19; Pueblo of Pojoaque v. New Mexico, 2014 U.S. Dist. LEXIS 188665 (D.N.M. 2014) (Parker, J.).

After Judge Parker dismissed Pojoaque Pueblo’s suit against New Mexico for failure to negotiate a compact in good faith, the Pojoaque Pueblo submitted a proposal for Class III gaming to the United States Secretary of the Interior pursuant to IGRA, 25 U.S.C. § 2710(d)(7)(B), and 25 C.F.R. Part 291. The remedial scheme in 25 U.S.C. § 2710(d)(7)(B) empowers the Secretary of the Interior to promulgate procedures for Class III gaming if a state refuses to agree to a compact. See 25 U.S.C. § 2710(d)(7)(B)(vii). The Secretary may initiate such procedures once a federal court makes a determination that a state acted in bad faith in failing to negotiate a compact. See 25 U.S.C. § 2710(d)(7)(B)(iv)-(v). However, this remedial scheme is effectively neutralized by the fact that a state may assert sovereign immunity as an affirmative defense to such a suit. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)(holding that Congress had no authority to subject states to suit by Indian tribes for negotiating in bad faith under IGRA). To resolve this issue, the Interior Secretary created the regulations in 25 C.F.R. Part 291 to provide tribes with an alternate path to obtain Class III gaming procedures. These regulations provide that, where “[a] State and an Indian tribe are unable to voluntarily agree to a compact” and “[t]he state has asserted its immunity from suit brought by an Indian tribe,” 25 C.F.R. Part 291.1, then a tribe “may use the Secretarial Procedures to obtain permission to operate Class III gaming without the State’s consent,” New Mexico v. Dep’t of Interior, 2014 WL 10298036, at *7, 2014 U.S. Dist. LEXIS 184655, at *5 (D.N.M. 2014)(Parker, J.), on appeal 14-2222.

On August 7, 2014, New Mexico filed a lawsuit against the United States of America challenging the Secretary of the Interi- or’s authority to promulgate the regulations in 25 C.F.R. Part 291. See New Mexico v. Dep’t of Interior, 2014 WL 10298036, 2014 U.S. Dist. LEXIS 184655. On October 17, 2014, Judge Parker granted summary judgment to the State and enjoined the United States from taking action to enforce 25 C.F.R. Part 291. New Mexico v. Dep’t of Interior, 2014 WL 10298036, at *16, 2014 U.S. Dist. LEXIS 184655, at *43. An appeal to the Tenth Circuit Court of Appeals is pending. See New Mexico v. Dep’t of the Interior, 14-2222.

On November 3, 2014, the Pojoaque Pueblo informed New Mexico of its renewed desire to negotiate a compact to govern its Class III gaming operations past the June 30, 2015, termination of the current state-tribal agreement. See Complaint ¶ 60, at 19. New Mexico and Poj-oaque Pueblo representatives subsequently met on several occasions to negotiate a new compact; however, talks again were unsuccessful, and New Mexico and the Pojoaque Pueblo never reached an agreement. See Complaint ¶¶ 62-64, at 19-20.

On February 26, 2015, Becker, on the Gaming Board’s behalf, requested to perform the Gaming Board’s routine annual compliance review of Pojoaque Pueblo’s gaming operations on November 3-5, 2015. See Complaint ¶ 65, at 20. On May 6, 2015, however, Becker notified the Pojoaque Pueblo by letter of the Gaming Board’s intention to conduct an earlier compliance review in advance of the compact’s expiration. See Complaint ¶ 65-66, at 20. In the letter, Becker requested that the Pojoaque Pueblo provide “[a]ny and all contract[s] with Class III Gaming Machine Manufacturers, including [any] Lease, Purchase and Service Agreements.” Complaint ¶ 66, at 20. Pursuant to its obligations under the outstanding compact, the Pojoaque Pueblo produced the requested vendor contracts on June 24, 2015. See Complaint ¶ 66, at 20.

The Class III gaming compact between New Mexico and Pojoaque Pueblo expired at midnight on June 30, 2015. See Complaint ¶ 69, at 21. Earlier that day, the United States Attorney for the District of New Mexico, Damon P. Martinez, issued a letter to Talachy stating that, once the compact expired, “[cjontinued gaming operations by the Pueblo ... would violate federal law.” Letter From Damon P. Martinez to Joseph M. Talachy Regarding Expiration of Pojoaque Pueblo’s Class III Gaming Compact with New Mexico (dated June 30, 2015), at 1, filed October 1, 2015 (Doc. 28-3)(“U.S. Attorney’s Letter”). Notwithstanding this pronouncement, the U.S. Attorney’s Letter indicated that Mr. Martinez would “exercise [ ] discretion to withhold enforcement action against the Pueblo” during the pendency of the appeal challenging Judge Parker’s ruling that the Secretarial Procedures in 25 C.F.R. Part 291 are invalid, see New Mexico v. Dep’t of the Interior, 14-2222. U.S. Attorney’s Letter at 1. Mr. Martinez expressly conditioned his decision on Pojoaque Pueblo agreeing to maintain the status quo of its gaming operations as the expiring compact outlines and on the Pojoaque Pueblo placing in trust funds that it would otherwise pay to New Mexico under the compact. See U.S. Attorney’s Letter at 1. The U.S. Attorney’s Letter stipulated that it did not “create any rights, substantive or procedural, enforceable at law or in equity by any party in any matter, civil or criminal .... ” U.S. Attorney’s Letter at 1.

That same day, on June 30, 2015, the Gaming Board issued a public statement that Mr. Martinez’ decision to allow the Pojoaque Pueblo’s casinos to remain in operation “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Complaint ¶ 68, at 21. Shortly thereafter, on July 15, 2015, the Gaming Board held a closed meeting to discuss tribal gaming compliance issues. See Complaint ¶ 73, at 22. Following the meeting, the Gaming Board announced that it had determined that the Pojoaque Pueblo’s casinos were operating illegally in the absence of a Class III gaming compact and “placed in abeyance approval of any license application or renewal for the Pueblo’s vendors.” Complaint ¶ 73, at 22. The Gaming Board did not place any other vendors’ applications in abeyance. See Complaint ¶ 73, at 22.

PROCEDURAL BACKGROUND

The Plaintiffs commenced this action on July 18, 2015. See Complaint at 1. The Complaint seeks redress for two principal claims: (i) that New Mexico failed to conclude compact negotiations in good faith for the regulation of Class III gaming activities on the Plaintiffs’ lands in violation of 25 U.S.C. § 2710(d); and (ii) that the Individual Defendants conspired under color of state law to “deprive the federal right of the Pueblo and its members to be free of state jurisdiction over activities that occur on the Pueblo lands.” Complaint ¶ 1, at 1-2. The Plaintiffs also bring a pendent state law claim for tortious interference with contractual relations. See Complaint ¶ 1, at 2. The Plaintiffs allege that New Mexico “wrongfully assert[ed] State jurisdiction over gaming activities on the Pueblo’s Indian lands” in the absence of a Class III gaming compact, thereby violating the Supremacy Clause of the Constitution of the United States and federal civil rights statutes. Complaint ¶ 8, at 4. The Plaintiffs seek extensive declaratory relief, an injunction preventing New Mexico from interfering with their vendors, the appointment of a mediator to facilitate negotiations, $50,000,000 per year in money damages, attorney’s fees, and “such other relief as may be just and equitable, including ancillary relief.” Complaint ¶¶ A-W, at 37-40. The case was assigned to the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico. See Notice of Case Reassignment to District Judge Robert C. Brack as Trial Judge, filed September 10, 2015 (Doc. 19 [text-only-entry] )(reassigning the case from the Honorable Steven C. Yarbrough, United States Magistrate Judge).

On September 9, 2015, the Gaming Board sent letters to the Pojoaque Pueblo’s gaming manufacturer vendors. See Letter From Donovan Lieurance to Manufacturer Licensee (dated September 9, 2015), at 1, filed September 25, 2015 (Doc. 23-14)(“Vendor Letter”). The Vendor Letter informed the vendors that Mr. Martinez has determined that the Pojoaque Pueblo’s continued gaming operations past the June 30, 2015, expiration of its gaming compact with New Mexico violates federal law. See Vendor Letter at 1 (referencing and attaching the U.S. Attorney’s Letter). The Vendor Letter indicates that the Gaming Board intended to conduct an audit of the vendors’ records to ensure compliance with New Mexico law and the Gaming Board’s regulations. See Vendor Letter at 1. To that end, the Gaming Board demanded production of the vendors’ communications and business records with respect to sixteen casinos and tribal gaming operations, including the Pojoaque Pueblo’s Class III operations at Buffalo Thunder Resort & Casino and Cities of Gold Casino. See Vendor Letter at 3-4.

On September 25, 2015, the Gaming Board “issued State Citations to all of the vendors doing business with the Pueblo.” Second Supplemental Declaration of Terrence “Mitch” Bailey ¶ 5, at 2 (executed October 1, 2015), filed October 01, 2015 (Doc. 30)(“Bailey Decl.”). Each citation includes similar language charging the vendors with violating “New Mexico Gaming laws, rules and regulations, minimum internal controls or New Mexico Bingo and Raffle act [sic]” as a consequence of doing business with the Pojoaque Pueblo’s casinos. Bailey Decl. ¶ 6.a-c, at 2-4.

The Plaintiffs promptly moved for a temporary restraining order and/or a preliminary injunction on September 25, 2015. See Pueblo of Pojoaque’s Motion for Temporary Restraining Order and/or Preliminary Injunction, filed September 25, 2015 (Doc. 23)(“PI Motion”). In the PI Motion, the Plaintiffs frame the Gaming Board’s recent issuance of letters and citations to the Pojoaque Pueblo’s vendors as an attempt at asserting “jurisdiction over gaming activities on the Pueblo’s Indian lands,” PI Motion at 13, despite that New Mexico’s jurisdiction over such activities “ended on June 30, 2015 when the Compact expired,” PI Motion at 14. In the Plaintiffs’ view, the Gaming Board’s actions are “a throw-back to one of the darkest times in the history of the European conquest, when the pueblos were required to pay a tribute tax, whereby the Spanish confiscated the pueblo’s, maize and other resources ....” PI Motion at 3. The Plaintiffs therefore sought redress from Judge Brack to “force the State to recognize the modern federal policies of tribal self-sufficiency and tribal self-governance.” PI Motion at 3 (citation omitted). To that end, the Plaintiffs sought to prohibit the Defendants “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board [ ] based wholly or in part on grounds that such licensee is conducting business with the Pueblo.” PI Motion at 1.

In their response to the PI Motion, the Defendants stressed that the Gaming Board did “not engage[ ] in any regulatory actions against Plaintiffs .... ” State Defendants’ Response to Plaintiffs’ Request for Temporary Restraining Order at 3, filed October 1, 2015 (Doc. 28)(“PI Motion Response”). The Defendants pointed out that no direct enforcement action was threatened against Pojoaque Pueblo; rather, the Gaming Board’s actions at best “threatened regulatory consequences to third parties with ‘employment and business relationships with the Pueblo.’” PI Motion Response at 13. The Defendants stated that, in any event, vendors “have not been instructed ... that they cannot conduct business with the Pueblo.” PI Motion Response at 4. The Defendants further argued that, as stipulated in the U.S. Attorney’s Letter, Pojoaque Pueblo’s continued Class III gaming operations after the expiration of its compact with New Mexico violates federal law. PI Motion Response at 16 (citation omitted). Thus, according to the Defendants, because New Mexico law requires the Gaming Board to regulate third parties that do business with gaming entities who are operating in violation of federal law, the Gaming Board has a statutory duty to regulate Pojoaque Pueblo’s vendors. See PI Motion Response at 19.

Judge Brack held a hearing on the PI Motion on October 2, 2015. See Transcript of Preliminary Injunction Order Hearing held on October 2, 2015 (Doc. 38)(“PI Hearing”). At the hearing, Plaintiffs’ counsel, Scott Crowell, argued extensively about Pojoaque Pueblo’s “right to be free from state jurisdiction over its gaming activities absent a tribal-state compact,” see PI Hearing at 82:9-18, and the requirements for issuance of a preliminary injunction, especially irreparable harm, see, e.g., PI Hearing at 36:18-25, 37:1-25, 38:1-4. In response, the Defendants’ counsel, Jerry A. Walz, repeatedly reiterated that New Mexico had no intention of barring vendors from continuing to do business with Poj-oaque Pueblo. See, e.g., PI Hearing at 57:7-9 (“[Njobody’s been ordered that they cannot do business with the Pueblo of Poj-oaque”). The Plaintiffs’ counsel countered that New Mexico had “assert[ed] jurisdiction over the tribe’s gaming activities in the form of threatening vendors regarding their licenses to do business with other entities in the state over which they [] have jurisdiction.” PI Hearing at 37:16-19. The consequence of this action, the Plaintiffs argued, would be to deter vendors from dealing with Pojoaque Pueblo, thereby “shutting] off a source of revenue [] upon which all of the tribe’s governmental operations ... very heavily rely.” See PI Motion at 37:21-24.

On October 7, 2015, Judge Brack granted the preliminary injunction, adopting the proposed language in the Plaintiffs’ PI Motion. See 2015 U.S. Dist. LEXIS 178096, at *33 (“Judge Brack’s MOO”). Judge Brack’s MOO is critical of the Defendants’ collective actions:

Defendants’ protestations that the regulation of vendors doing business with the Pueblo does not constitute regulation of the Pueblo’s gaming activities are disingenuous and inconsistent with the record. Defendants’ actions are based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.

Judge Brack’s MOO at *28. Determining that the Plaintiffs had established a likelihood of irreparable harm in the absence of preliminary relief, Judge Brack observed:

Defendants’ harassment and threatening conduct directed at the vendors is a thinly disguised attempt to accomplish indirectly that which Defendants know they are without authority or jurisdiction to accomplish directly. Defendants’ contention that the enforcement actions against the vendors do not harm the Pueblo is also disingenuous. The undisputed evidence establishes that the Pueblo will lose significant revenue and its Casinos may shut down due to Defendants’ intimidation of the Pueblo’s vendors.

Judge Brack’s MOO at *29. Accordingly, Judge Brack granted the PI Motion, ordering that “Defendants are enjoined from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based wholly or in part on grounds that such licensee is conducting business with the Pueblo.” Preliminary Injunction by District Judge Robert C. Brack at 1, filed October 7, 2015 (Doc. 32). Further,- Judge Brack concluded that the public interest would be served by the preliminary injunction “maintaining the status quo for the duration of the appeal in New Mexico v. Department of the Interior[, 14-2222] and for 30 days thereafter.” Judge Brack’s MOO at *32-33. The Gaming Board held its first formal public meeting following Judge Brack’s issuance of the preliminary injunction on October 21, 2015. See 2016 U.S. Dist. LEXIS 72413, at *10 (“Contempt MOO”), At the meeting, the Gaming Board considered a total of twenty-nine applications by vendors for “gaming license” renewals and “certification[s] of fínding[s] of suitability.” Contempt MOO at *10-12. With respect to companies not doing business with Pojoaque Pueblo, the Gaming Board approved eighteen applications, deferred one application for a one-month period, and took no vote on one application. See Contempt MOO at *12. The Gaming Board deferred all nine applications — without a date set for future consideration — by companies doing business with Pojoaque Pueblo. See Contempt MOO at *12.

As a result of the Gaming Board’s actions at its October 21, 2015, meeting, the Plaintiffs moved the Court on November 19, 2015, to: (i) “issue an Order to Show Cause” for the Gaming Board Defendants to “appear and present evidence as to why [they] should not be held in civil contempt of court for violating the Preliminary Injunction issued by [Judge Brack]”; (ii) impose sanctions on the Gaming Board Defendants upon a finding of civil contempt; and (iii) award the Plaintiffs attorney’s fees and costs. Motion for Order to Show Cause Re Civil Contempt, filed November 19, 2015 (Doc. 53)(“Contempt Motion”). The Plaintiffs argued that the Gaming Board had violated the preliminary injunction by “deferring license decisions on all applications for persons or companies doing business with the Pueblo.” Contempt Motion at 2. In the Plaintiffs’ view, the Gaming Board’s actions were new attempts at “asserting jurisdiction over the Pueblo’s gaming activities by threatening the licenses of those persons or companies doing business with the Pueblo’s gaming operations.” Contempt Motion at 3.

On October 29, 2015, the Defendants appealed Judge Brack’s preliminary injunction to the United States Court of Appeals for the Tenth Circuit. See Notice of Appeal at 1, filed October 29, 2015 (Doc. 40). On March 3, 2016, the Tenth Circuit set oral argument on the appeal for May 4, 2016. See Calendar Notice Setting Arguments for 05/04/2016 at 9:00 A.M., filed March 3, 2016 (10348232 [text-only-entry] ). On March 24, 2016, however, the panel assigned to review the matter sua sponte ordered that the appeal be abated pending issuance of a decision on the appeal of Judge Parker’s opinion invalidating the regulations in 25 C.F.R. Par 291, in New Mexico v. Department of the Interior, 14-2222. See Tenth Circuit Court of Appeals Order Abating Appeal at 1, filed March 24, 2016 (Doc. 112).

The Court denied the motion on April 21, 2016. See Contempt MOO at *31. The Court held that the Gaming Board’s license deferrals did not “threaten” the vendor applicants within the meaning of Judge Brack’s preliminary injunction. See Contempt MOO at *32. The Court reasoned that the deferrals would not affect the vendors’ continued operations for two reasons:

First, as the Gaming Board contends, “[i]f there is a conflict or inconsistency between statutes and regulations promulgated by an agency, the language of the statutes shall prevail.” Response at 7 (citing Jones v. Employment Servs. Divot Human Servs. Dep’t, 1980-NMSC-120, ¶ 3, 95 N.M. 97, 619 P.2d 542, 544). The regulations here are inconsistent with § 60-2E-16(H), so the statute governs the effect on the vendors’ licenses. This principle also negates the Plaintiffs’ argument that bingo and raffle licensees, which are subject to a regulation with almost identical language, require variances to continue operating after their licenses expire. See Reply at 9. Compare N.M. Admin. Code § 15.4.3.16 (“Any licensee that fails to renew its license as required by the act and this rule shall cease the games of chance authorized by the license on the date the license expires.”), with N.M. Admin. Code § 15.1.13.11 (“Any licensee that fails to renew its license as required by the act and this rule shall cease the gaming activity authorized by the license on the date the license expires.”).

Although the regulations governing bingo and raffle licenses are very similar to the regulations applicable here, there is no conflicting statute governing bingo and raffle licenses. The rough equivalent of § 60-2E-16(H) for bingo and raffle licenses does not address whether licenses remain valid upon the submission of a renewal application. See N.M. Stat. Ann. § 60-2F-12.

Second, the Gaming Board has established a “pattern of practice” of allowing licenses to remain in effect between the time that a licensee flies for a renewal and the time that it approves the renewal. Reply at 8. Defendant Jeffrey Lan-ders has submitted a declaration describing his review of the Gaming Board’s licensing records. See Declaration of Jeffrey S. Landers ¶ 3, at 2 (taken December 7, 2015), filed December 7, 2015 (Doc. 62-2)(“Landers Declaration”). Landers states that the Gaming Board has “approved a renewal application after the nominal expiration date of an existing license” on approximately thirty occasions between 2003 and 2015. Lan-ders Declaration ¶ 3, at 2. Landers adds that “all” of the licensees “were permitted to continue operating during the period between the expiration date of the existing license and the approval of the renewal application.” Landers Declaration ¶ 3, at 2. The Gaming Board also represented during the hearing that this practice “isn’t something that the board has done just recently and only in the case of the manufacturers who are doing business with the pueblo. This is something that the board has done as Mr. Landers stated in his declaration over 30 times since 2003.” Tr. at 37:14-19 (Bohn-hoff). The Plaintiffs’ argument that they cannot rely on the Gaming Board’s past practice as a defense to an enforcement action is unconvincing. See Reply at 11 (“The Certain Defendants want this Court to believe that ... a [Gaming Board] track record of defying the applicable statute and its own regulations will be a successful defense[.]”). As discussed above, § 60-2E-16(H) is inconsistent with the regulations that the Gaming Board would use to support an enforcement action. Given this conflict, the statute would govern the dispute, and its language — that “a license, certification or permit shall continue in effect upon proper payment of the initial and renewal fees” — would not support an enforcement action here. N.M. Stat. Ann. § 60-2E-16(H).

Moreover, it is likely that any enforcement action — whether grounded in statutes or regulations, or not — would be seen as a threat and a violation of Judge Brack’s PI. The important thing is that the Gaming Board’s practice and representations send a signal to the vendors that it is not going to do anything while Judge Brack’s PI is in place. After all, preserving the status quo is the aim of injunctive relief, and at the present time, the vendors are not threatened and do not appear to feel threatened.

2016 U.S. Dist. LEXIS 72413, at *38-41. The Court concluded that:

The Gaming Board must proceed with caution. Although it can defer applications under Judge Brack’s PI, its actions may become threats if the vendors start pulling their business from Pojoaque Pueblo. It is true that the situation does not have to get to that point before there is a violation, but right at the moment, the vendors — who are smart, savvy business people — understand what is going on in New Mexico. These gaming vendors are a salty bunch, and not easily scared off from doing business. Moreover, the State of New Mexico has little economic self-interest in ruining the business of all vendors by eventually penalizing them down the road, so the threat, if any, appears not to exist now or in the future. Judge Brack’s PI has, for the time being, achieved what he wanted — maintaining the status quo until the case is over. Until a vendor appears and states that the situation is no longer working, the Court does not think it prudent to take the prophylactic action of contempt that the Plaintiffs suggest.

2016 U.S. Dist. LEXIS 72413, at *45-46.

The Parties have since filed a litany of motions. Since all of the pleadings present overlapping arguments, the Court will discuss only a few of the pleadings that highlight the parties’ primary arguments. The Court will discuss the remaining pleadings where relevant in the analysis.

1. The Motion to Dismiss Count IV on the Basis of Qualified Immunity.

On December 4, 2015, the Individual Defendants moved to dismiss Count IV of the Complaint on the basis of qualified immunity. See Qualified Immunity Motion at 1. Count IV seeks money damages for actions that the Individual Defendants allegedly took in their personal capacities under color of state law in violation of 42 U.S.C. §§ 183 and 1985. See Complaint ¶¶ 143-151, at 35-37. The Complaint alleges that the “Individual Defendants knew or should have known that actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands wrongfully deprives Plaintiff Talachy and the individual members of their federal right to engage in conduct free from the jurisdiction of the State.” Complaint ¶ 145, at 36. The Plaintiffs submitted a response on December 18, 2015. See Plaintiffs Pueblo of Pojoaque and Joseph M. Talachy’s Opposition to Defendants’ Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 18, 2015 (Doc. 66)(“Qualified Immunity Motion Response”). The Individual Defendants replied on January 8, 2016. See Individual Defendants’ Reply in Support of Their Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed January 8, 2016 (Doc. 79)(“Qualified Immunity Motion Reply”). The Court will discuss these pleadings in turn.

a. The Qualified Immunity Motion.

The Individual Defendants make two principal arguments in support of their Qualified Immunity Motion. First, they contend that they did not violate any federal constitutional or statutory right by regulating non-Indian, state-licensed gaming manufacturer vendors pursuant to New Mexico’s police power. See Qualified Immunity Motion at 8. Second, they argue that, at a minimum, the Plaintiffs have failed to prove that there is a clearly established right under federal law that the Individual Defendants’ actions violated. See Qualified Immunity Motion at 18. The Individual Defendants also advance an ancillary argument that Martinez and Ritchie are entitled to dismissal of Count IV on the basis that the Gaming Board, not Martinez or Ritchie, took the actions of which the Pojoaque Pueblo complain. See Qualified Immunity Motion at 21.

i. The Individual Defendants’ Alleged Violation of Plaintiffs’ Federal Rights.

The Individual Defendants open by contending that the Supremacy Clause, upon which the Plaintiffs ground their claims of violation of a federal right, see Complaint ¶ 8, at 4, is “not a source of any federal rights.” Qualified Immunity Motion at 8 (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989)(internal quotation marks and citation omitted)). Rather, the Supremacy Clause “secures federal rights by according them priority whenever they come into conflict with state law.” Qualified Immunity Motion at 8 (citations and internal quotation marks omitted). Thus, according to the Individual Defendants, they have not violated a federal right on that basis, as one does not exist. See Qualified Immunity Motion at 8.

In any event, the Individual Defendants assert that their actions were “properly taken in connection with the State’s legitimate regulation of non-tribal New Mexico gaming activities in the exercise of its police power.” Qualified Immunity Motion at 9 (citation omitted). See also id. (“[T]he police power of a state ‘extends to all matters affecting the public health or the public morals.’ ’’)(quoting Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079 (1879)). The Individual Defendants explain that New Mexico law permits gaming in New Mexico only “if conducted in compliance with and pursuant to [New Mexico’s Gaming Control Act,.N.M.S.A. §§ 60-2E-1 to 60-2E-62] or another State or federal law that expressly permits the activity .... ” Qualified Immunity Motion at 9 (citing N.M.S.A. § 60-2E-4)(internal quotation marks omitted). The Individual Defendants assert that, under the Gaming Control Act, the Gaming Board must license New Mexico gaming vendors. Qualified Immunity Motion at 10 (citing N.M.S.A. § 60-2E-13). The Individual Defendants note that the Act subjects licensees to “broad disclosure requirements and to a detailed investigation by the [Gaming Board] .... ” Qualified Immunity Motion at 10 (citing N.M.S.A. §§ 60-2E, - 14(E),-16(C),-18 to-25). The Individual Defendants further contend that a license is a revocable privilege that may be forfeited. See Qualified Immunity Motion at 10 (citing N.M.S.A. § 60-2E-2(B)).

The Individual Defendants note that, under regulations the Gaming Board promulgated pursuant to the Act, vendor licensees must comply with all “laws and regulations governing the operations of a gaming establishment,” and must not “further[ ], or profit[ ] from any illegal activity or practice.” Qualified Immunity Motion at 10 (quoting N.M.A.C. § 15.1.10.9(f)). The Individual Defendants contend that Gaming Board regulations specifically prohibit licensees from “selling] or transferfing] a gaming device to any person that could not lawfully own or operate the gaming device.” Qualified Immunity Motion at 10 (quoting N.M.A.C. § 15.1.16.8(B)). The Individual Defendants also note that it is “unlawful for a manufacturer or distributor to ship a gaming device ‘to any destination where possession of gaming devices is illegal.’ ” Qualified Immunity Motion at 10 (citing N.M.A.C. § 15.1.16.12(B)). If the Gaming Board’s executive director determines that a licensee has violated one of these regulations or a Gaming Control Act provision, the Gaming Board is empowered to issue an administrative citation. See Qualified Immunity Motion at 10 (citing N.M.S.A. § 60-2E-10(D)(3)).

Against this regulatory backdrop, the Individual Defendants assert that the Gaming Board’s actions with respect to vendor licensees doing business with Poj-oaque Pueblo were a valid exercise of New Mexico’s police power. See Qualified Immunity Motion at 11. The Gaming Board, they argue, merely acted to “ensure that gaming activities in New Mexico are conducted in accordance with the law .... ” Qualified Immunity Motion at 11 (citation omitted). The Individual Defendants contend that, indeed, the Gaming Board was statutorily obligated to act as it did. See Qualified Immunity Motion at 9 (noting that the Gaming Control Act commands the Gaming Board to “strictly regulate[ gaming activities] to ensure honest and competitive gaming that is free from criminal and corruptive elements and influences”)(quoting N.M.S.A. § 60-2E-2(A)).

Turning to federal law, the Individual Defendants argue that IGRA “neither preempts the State’s proper exercise of its police powers nor applies to the actions taken by the Individual Defendants.” Qualified Immunity Motion at 11. The Individual Defendants frame the issue by noting the “strong presumption against federal preemption of state law .... ” Qualified Immunity Motion at 11 (citing Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). See id. at 11-12 (noting that the presumption is especially strong where, as here, “the state law ... is aimed at promoting the public welfare, safety, and morals”)(citation omitted). With that presumption in mind, the Individual Defendants proceed to discuss preemption law at length, moving from a discussion of general preemption principals to specific applications in the Indian law context. See Qualified Immunity Motion at 12-18.

The Individual Defendants first note that preemption occurs only where Congressional intent is “clear and manifest.” Qualified Immunity Motion at 12 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, at 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). In the present case, they argue, Congress has not clearly manifested its intent to preempt the Individual Defendants’ actions. See Qualified Immunity Motion at 12. First, the Individual Defendants contend that “[n]o federal law explicitly preempts the State’s authority to regulate gaming within its jurisdiction.” Qualified Immunity Motion at 12. Second, they argue that “[f]ederal law does not conflict with the State’s regulatory authority over non-Indian licensees conducting gaming within the State and outside tribal lands.” Qualified Immunity Motion at 12. And third, they argue that “IGRA cannot be read to occupy the field because IGRA does not apply outside of Indian Country.” Qualified Immunity Motion at 12.

Indeed, the Individual Defendants stress, “Everything — literally everything — in IGRA affords tools (for either state or federal officials) to regulate gaming on Indian lands, and nowhere else.” Qualified Immunity Motion at 12 (quoting Michigan v. Bay Mills Indian Cmty., — U.S. —, 134 S.Ct. 2024, 2034, 188 L.Ed.2d 1071 (2014)). The Individual Defendants argue that it follows that IGRA does not preempt actions taken to enforce New Mexico’s gaming laws outside of Indian lands. See Qualified Immunity Motion at 13 (citation omitted). The Individual Defendants rely heavily on the Supreme Court of New Mexico’s opinion in Srader v. Verant, 1998-NMSC-025, 125 N.M. 521, 964 P.2d 82, for this important distinction. See Qualified Immunity Motion at 13-14. There, the Supreme Court of New Mexico considered whether New Mexico officials could “enforce New Mexico’s anti-gambling laws by [] preventing] the flow of gambling money between financial institutions, gamblers, and tribal casinos operating without a compact.” Qualified Immunity Motion at 13 (citing Srader v. Verant, 1998-NMSC-025, ¶ 86, 125 N.M. 521, 964 P.2d at 86). The Individual Defendants argue that the Court held that IGRA preempted New Mexico from enforcing its anti-gambling laws on tribal lands. See Qualified Immunity Motion at 13 (citing Srader v. Verant, 1998-NMSC-025, ¶ 88, 125 N.M. 521, 964 P.2d at 88). The Individual Defendants contend, however, that the Supreme Court of New Mexico held that, absent a compact, “it was the responsibility of the government [] to determine if New Mexico’s existing gaming or other laws were being violated outside of the reservation.” Qualified Immunity Motion at 13 (quoting Srader v. Verant, 1998-NMSC-025, ¶ 16, 125 N.M. 521, 964 P.2d at 88).

The Individual Defendants’ position— both in this motion and throughout their pleadings — hinges on the distinction that the Supreme Court of New Mexico made in Srader v. Verant. The Individual Defendants stress that they have not taken any direct regulatory action towards Pojoaque Pueblo “nor have they asserted their authority on Pueblo lands.” Qualified Immunity Motion at 14. They argue that the Gaming Board has not regulated Pojoaque Pueblo at all — it has regulated only non-Indian, state-licensed vendors. Qualified Immunity Motion at 14. As to Pojoaque Pueblo, the Gaming Board has, consistent with Srader v. Verant, merely acted on its obligation to “enforce State law against licensees conducting business with illegal gaming enterprises, including illegal enterprises operating on tribal land.” Qualified Immunity Motion at 14.

The Individual Defendants further contend that it is immaterial whether the Gaming Board’s regulatory actions have indirect impacts on Pojoaque Pueblo’s gaming operations. See Qualified Immunity Motion at 14. The Individual Defendants discuss a number of cases where the Supreme Court of the United States of America and the Tenth Circuit upheld “off-Indian country seizure of cigarettes pursuant to state law despite the effect of these seizures on the tribe.” Qualified Immunity Motion at 14-16 (citation omitted). In fact, they note, the Supreme Court has held that, when “state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land.” Qualified Immunity Motion at 15-16 (quoting Nevada v. Hicks, 533 U.S. 353, 362, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001)). In the Individual Defendants’ view, significant state interests are implicated here; however, according to the Individual Defendants “the State has limited its regulatory reach to non-tribal members acting outside of tribal lands.” Qualified Immunity Motion at 16.

In light of the above arguments, the Individual Defendants contend that the Plaintiffs’ allegation that the Gaming Board acted beyond the scope of its authority in determining that Pojoaque Pueblo is operating its gaming operations illegally in the absence of a Class III compact, see Complaint ¶ 7, at 1, is “obviously incorrect.” Qualified Immunity Motion at 16. In short,

[i]f the State properly may take action against the licenses of non-Indian manufacturers in connection with their dealings with off-reservation non-Indian gaming operators, it follows that it may make determinations about the illegality of the Pueblo’s and thus the Vendors’ conduct in accordance with [N.M. Stat. Ann. § 60-2E-4] and [N.M. Admin. Code § 15.1.10.9(f)].

Qualified Immunity Motion at 16. The Individual Defendants concede that the United States has “exclusive jurisdiction over criminal prosecutions of violations of State gambling laws .... ” Qualified Immunity Motion at 16 (quoting 18 U.S.C. § 1166(d)). The Individual Defendants argue, however, that New Mexico has not “criminally prosecut[ed] anyone, let alone the Pueblo.” Qualified Immunity Motion at 16. Certainly, they assert, New Mexico is empowered to “decide whether the Pueblo’s gaming operations are lawful — something the State must do in order to enforce its own law .... ” Qualified Immunity Motion at 16-17.

The Individual Defendants conclude this line of argumentation by positing that, even if the Gaming Board’s issuance of citations to the vendors was just an indirect attempt to regulate Pojoaque Pueblo’s gaming operations, as Judge Brack argued in his preliminary injunction opinion, the “Supreme Court [has] recognized ... that a state is within its rights to assert ‘leverage’ to enforce its laws against an Indian tribe that is conducting illegal gaming.” Qualified Immunity Motion at 17 (quoting Michigan v. Bay Mills Indian Cmty., 134 S.Ct. at 2035). In Michigan v. Bay Mills Indian Cmty. — upon which the Individual Defendants rely heavily in all of their pleadings — the Supreme Court explained that, although federal law may preempt a state from acting directly against a tribe that is gaming illegally, “the state’s ability to assert its authority indirectly by enforcing its law on its own lands remains ‘capacious.’ ” Qualified Immunity Motion at 17 (quoting Michigan v. Bay Mills Indian Cmty., 134 S.Ct. at 2034).

ii. Whether the Allegedly Violated Federal Right was Clearly Established.

Turning to the other inquiry of qualified immunity analysis, the Individual Defendants argue that the “Plaintiffs cannot show that there is a clearly established right under federal law that they allege the Individual Defendants violated.” Qualified Immunity Motion at 18. For this inquiry, they reason, the Plaintiffs “ ‘must show legal authority which makes it apparent that in the light of pre-existing law a reasonable official ... would have known that’ the specific conduct at issue violated Plaintiffs’ constitutional rights.” Qualified Immunity Motion at 19 (quoting Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)). The Individual Defendants contend that the Plaintiffs, however, “have no authority to support the proposition that the alleged illegality of [the Individual Defendants’] actions is clearly established.” Qualified Immunity Motion at 20.

In the Complaint, the Plaintiffs assert that the “Individual Defendants knew or should have known that actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands wrongfully deprives Plaintiff Talachy and the individual members of the Pueblo of their federal right to engage in conduct free from the Jurisdiction of the State.” Complaint ¶ 145, at 36. The Individual Defendants note that the Plaintiffs do not support this allegation by “citfing any] case holding, or even suggesting, that a tribe or its officials have a right enforceable in an action under Section 1983 or 1985 to be free from state jurisdiction in these circumstances.” Qualified Immunity Motion at 20. Moreover, they argue that no authority supports the proposition that, “even if the state laws being enforced by the Defendants were preempted — which they are not — application of state law to third-party vendors (not to Plaintiffs) would violate any right held by Plaintiffs.” Qualified Immunity Motion at 20.

In short, the Individual Defendants argue that it is not clearly established that the Gaming Board’s “actions taken against non-Pueblo entities with regard to their ability to contract with non-Pueblo gaming operations are barred by any federal law, much less that they rise to the level of a right protectable under Section 1983.” Qualified Immunity Motion at 20. Thus, they contend that, even assuming “the Individual Defendants wrongfully interfered with the Pueblo’s tribal sovereignty, [they] are nevertheless entitled to qualified immunity because the right allegedly being violated by the Individual Defendants is not supported by clearly established law.” Qualified Immunity Motion at 21.

iii. Count IV as to Martinez and Ritchie.

The Individual Defendants conclude by arguing that Martinez and Ritchie are entitled to dismissal of Count TV for the additional reason that “the actions of which Plaintiffs complain are not actions taken by either Governor Martinez or Rit-chie.” Qualified Immunity Motion at 21. The Individual Defendants note that the Tenth Circuit “requires a plaintiff to demonstrate that the defendant before the court is responsible for the constitutional deprivation at issue.” Qualified Immunity Motion at 21 (citations omitted). However, all but one of the “allegations that the Plaintiffs complain of in their Complaint and subsequent pleadings are allegations of wrongdoing by [the Gaming Board] .... ” Qualified Immunity Motion at 22. According to the individual Defendants, the only wrongdoing attributed to Martinez is her June 30, 2015, statement that the U.S. Attorney’s Letter “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Qualified Immunity Motion at 22 (quoting Complaint ¶ 68, at 21). The only allegation against Ritchie is a derivative claim that he “made or caused to be made” similar “official pronouncements.” Qualified Immunity Motion at 22 (quoting Complaint ¶ 72, at 22).

These allegations, the Individual Defendants contend, do not establish that Martinez or Ritchie “personally participated in the alleged constitutional violations, or acquiesced in the alleged wrongdoing.” Qualified Immunity Motion at 22 (citation omitted). The Individual Defendants cite a recent case decided by the United States District Court for the District of Arizona involving letters written by the Arizona Governor and. Attorney General to the Arizona Department of Gaming “reciting their views regarding the illegality of the [Tohono O’odham Nation’s gaming] actions.” Qualified Immunity Motion at 22 (citing Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at *15-18 (D. Ariz. 2015)) (Campbell, J.). There, the court held that the letters “influenced the [Arizona Department of Gaming’s] decision to deny the tribe’s gaming certification .... ” Qualified Immunity Motion at 22. Yet the officials’ “indirect involvement was insufficient to subject [them] to individual liability under Ex parte Young[, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908),] because neither the governor nor the attorney general took ‘actual enforcement action’ against the tribe.” Qualified Immunity Motion at 22-23 (quoting Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at *16-18).

The Individual Defendants ask the Court to apply the same standard here. See Qualified Immunity Motion at 23. In their view, Martinez and Ritchie took no “actual enforcement action” against Poj-oaque Pueblo. See Qualified Immunity Motion at 23 (citation omitted). The Individual Defendants contend that there is certainly “no clearly established authority that would have alerted Governor Martinez and Ritchie that any warning to the Vendors of potential enforcement action against them would violate the Pueblo’s federal rights.” Qualified Immunity Motion at 23. Thus, the Individual Defendants argue that Martinez and Ritchie are entitled to qualified immunity for this additional reason. See Qualified Immunity Motion at 23.

b. The Plaintiffs’ Response.

Plaintiffs Pojoaque Pueblo and Talachy raise three primary arguments in opposition to the Individual Defendants’ motion to dismiss Count IV on the basis of qualified immunity. First, they contend that Pojoaque Pueblo’s federal right to be free from New Mexico’s jurisdiction over its gaming operations is clearly established, and that the Individual Defendants knew or should have known that their actions violated those rights. See Qualified Immunity Motion Response at 4. Second, they argue that the Complaint’s allegations against Martinez and Ritchie are sufficient to keep both Defendants in the case and subject to further discovery. See Qualified Immunity Motion at 7. Finally, they argue that because this litigation will proceed on the merits regardless of the Court’s disposition as to the qualified immunity defense, the policies underlying that defense are immaterial to this action. See Qualified Immunity Motion at 11.

i. Clarity of the Law Regarding State Jurisdiction Over Tribal Gaming.

The Plaintiffs begin by characterizing the Qualified Immunity Motion as “a poorly veiled attempt to re-litigate ... the preliminary injunction motion, which was granted in Plaintiffs’ favor after full briefing and a hearing.” Qualified Immunity Motion Response at 5. Further, the Plaintiffs contend they are “not required to defeat the qualified immunity defense on the merits at this juncture in the litigation.” Qualified Immunity Motion Response at 6. Rather, according to the Plaintiffs “[t]he Pueblo merely needs to demonstrate that it has presented a plausible claim that a clearly-established federal right has been violated by the [Individual Defendants], and that it would be ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Qualified Immunity Motion Response at 6. See id. at 4-5 (noting that the Court previously denied a motion to dismiss on qualified immunity grounds because the complaint alleged a “plausible” cause of action even though “there was not a precise appellate court case on point”)(citing Hunt v. Central Cosol. School District, 951 F.Supp.2d 1136, 1233-34 (2013))(Browning, J.). The Plaintiffs argue that the very fact that Judge Brack granted the Plaintiffs a preliminary injunction, based on a finding of a substantial likelihood that the Plaintiffs would prevail on the merits, illustrates a plausible claim that defeats this motion. See Qualified Immunity Motion Response at 5.

The Plaintiffs rely heavily on Judge Brack’s MOO, arguing that Judge Brack found that a clearly-established federal right was violated by the Individual Defendants and that his reasoning “compels denial of [the] Motion to Dismiss.” Qualified Immunity Motion Response at 6. Specifically, the Plaintiffs cite to Judge Brack’s admonition that the Individual Defendants’ actions are “ ‘based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.’ ” Qualified Immunity Motion Response at 6 (quoting Judge Brack’s MOO at *28)(citations omitted). The Plaintiffs also portray Judge Brack’s MOO as concluding that the Individual Defendants “ ‘know that they have stepped over the line in their attempt to assert state jurisdiction over the Pueblo’s gaming.” Qualified Immunity Motion Response at 6. They note that Judge Brack found that the “Defendants’ harassment and threatening conduct directed at the vendors is a thinly disguised attempt to accomplish indirectly that which the defendants know they are without authority or jurisdiction to accomplish directly.” Qualified Immunity Motion Response at 6 (quoting Judge Brack’s MOO at *29)(emphasis added).

Thus, the Plaintiffs argue that the reasoning in Judge Brack’s MOO defeats both prongs of qualified immunity analysis'— that the Individual Defendants violated a federal right and that they knowingly violated that right. See Qualified Immunity Motion Response at 6. As a result, according to the Plaintiffs, the Qualified Immunity Motion “falls far short of establishing ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Qualified Immunity Motion Response at 7 (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004))(reciting the standard of review for a motion to dismiss).

ii. The Allegations Against Defendants Martinez and Ritchie.

The Plaintiffs next argue that the Complaint’s allegations against Martinez and Ritchie “are sufficient, on their own, to survive the Motion to Dismiss.” Qualified Immunity Motion Response at 7. The Plaintiffs argue that Martinez’ and Rit-chie’s statements to the public — statements which the Individual Defendants do not dispute they made — constitute “threats to licensees doing business with the Pueblo, and are part of the State’s unlawful attempt to assert jurisdiction over the Pueblo’s gaming activities.” Qualified Immunity Motion Response at 7-8. The Plaintiffs again refer to Judge Brack’s MOO, which “expressly identified the press statements ... as part of the actions that caused him to conclude that ‘Plaintiffs have established that the Individual Defendants are attempting to enforce state gaming regulations on the Pueblo’s Indian lands in the absence of a tribal-state compact.’ ” Qualified Immunity Motion Response at 8 (quoting Judge Brack’s MOO at *22). It is immaterial, the Plaintiffs argue, whether the Gaming Board members “engaged in more frequent and concrete examples of threatening behavior ....” Qualified Immunity Motion Response at 8.

In fact, the Plaintiffs contend that the Individual Defendants have refused to provide key information that is likely to further substantiate the Complaint’s allegations against Martinez and Ritchie. See Qualified Immunity Motion Response at 8. Specifically, the Plaintiffs argue that certain correspondence between the Governor’s Office and the Gaming Board “will likely reveal additional manifestations of misconduct” by Martinez and/or Ritchie, or “provide evidence of a conspiracy between officials in the Governor’s Office and the [Gaming Board].” Qualified Immunity Motion Response at 8. The Plaintiffs note that their requests for this correspondence have been pending since September, 2015, yet the Individual Defendants have made only excuses and delayed production. See Qualified Immunity Motion Response at 9-10. In light of these circumstances, the Plaintiffs appeal to the Court to delay consideration of the Qualified Immunity Motion to allow an opportunity for the Plaintiffs to discover facts material to the qualified immunity issue. See Qualified Immunity Motion Response at 9-10 (citation omitted).

Finally, the Plaintiffs argue that the facts in Tohono O’odham Nation v. Ducey — which the Individual Defendants cite as analogous to this case’s facts — are “critically distinguishable.” Qualified Immunity Motion Response at 10. There, the Arizona Governor and Attorney General wrote letters to the Arizona Department of Gaming regarding enforcement action against vendors dealing with the Tohono O’odham Nation. See Qualified Immunity Motion Response at 10 (citing Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at