Pueblo of Pojoaque v. New Mexico (233 F. Supp. 3d 1021, 2017)

United States District Court for the District of New Mexico 2017-02-09

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

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE '

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion to Stay the Order and Restore the Preliminary Injunction Pending Appeal, filed October 4, 2016 (Doc. 123)(“Motion to Stay MOO”);. (ii) the Plaintiffs’ Motion for Leave to File Supplemental Brief, filed November 2,2016 (Doc. 140)(“Suppl. Brief Motion”); and (iii) Defendants’ Response to Plaintiffs’ Motion for Leave to File Supplemental Brief, filed November 21, 2016 (Doc. 141)(“Suppl. Brief Motion Response”). The Court held hearings on October 27, 2016, and December 9, 2016. The primary issues are: (i) whether the Court, pursuant to rule 62(c) of the Federal Rules of Civil Procedure, should stay the order that it made in its Memorandum Opinion and Order, filed September 30, 2016 (Doc. 118)(“Stay MOO”), staying the preliminary injunction that the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico entered in his Memorandum Opinion and Order, filed October 7, 2015 (Doc. 31)(“PI MOO”), pending Plaintiff Pueblo of Pojoaque’s appeal of that judgment to the United States Court of Appeals for the Tenth Circuit; (ii) whether, in the alternative, the Court should grant a sixty-day temporary stay of its judgment to allow time for the Tenth Circuit -to decide a motion for a stay that Pojoaque Pueblo will assert pursuant to rule 8(a)(1)(A) and (C) of the Federal Rules of Appellate Procedure; (iii) whether - the Court should allow Pojoaque Pueblo to file a supplemental brief to address issues that arose during the Court’s October 27, 2016, hearing; and (iv) whether, if the Court allows Pojoaque Pueblo a supplemental brief, it should allow the Defendants, to file a response to that brief. The Court will grant the Supplemental Brief Motion, allow the Defendants to file a response to the brief attached to the Supplemental Brief Motion, and deny the Motion to Stay MOO.

FACTUAL BACKGROUND

This action arises out of Defendant State of New Mexico and Pojoaque Pueblo’s failure to successfully negotiate a state-tribal gaming compact pursuant to the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (“IGRA”), and a resultant dispute over New Mexico’s authority to take regulatory enforcement actions against non-Indian, state-licensed gaming manufacturer vendors doing business with Pojoaque Pueblo’s gaming enterprises, despite the absence of a compact. On October 7, 2015, the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico, issued a preliminary injunction barring the Defendants from taking such regulatory actions, holding that New Mexico lacked “authority or jurisdiction” absent a gaming compact to “harass[ ] and threaten! ]” Pojoaque Pueblo’s vendors. PI MOO at 20. On September 30, 2016, the Court stayed the effects of Judge Brack’s preliminary injunction, holding that Poj-oaque Pueblo failed to make the requisite “strong showing” that it was likely to succeed on the merits of its claim underlying the injunction. Stay MOO at 141-44 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987))(internal quotation marks omitted). Pojoaque Pueblo promptly moved to stay the Court’s judgment and restore the preliminary injunction on October 4, 2016. See Motion to Stay MOO at 1.

The Court discussed this case’s facts at length in its September 30, 2016, Stay MOO. See Stay MOO at 4-18. Because the Court’s resolution of Pojoaque Pueblo’s Motion to Stay MOO requires a fact-intensive inquiry, however, the Court will again carefully review the events surrounding the present dispute. Additionally, because the Court grants Pojoaque Pueblo’s Supplemental Brief Motion, the Court’s discussion of the facts will incorporate facts which that Motion adds to the recox-d.

1. Overview of the Parties.

Pojoaque Pueblo is a federally-recognized Indian Tribe that operates two gaming facilities on its tribal lands: the Buffalo Thunder Resort & Casino and the Cities of Gold Hotel <⅞ Casino. See Complaint [Failure to Conclude Compact Negotiations in Good Faith, 25 U.S.C. § 2710(d); Declaratory Judgment and Injunctive Relief; Violation of Civil Rights, 42 U.S.C § 1983; Pendant Claim of Tortious Interference with Existing Contractual Relationships] If 14, at 7, filed July 18, 2015 (Doc. l)(“Complaint”); Pueblo of Pojoaque, http://pojoaque.org/visit/gaming/ (last visited December 22, 2016). Plaintiff Joseph M. Talachy is Pojoaque Pueblo’s Governor. See Complaint ¶ 15, at 7.

New Mexico is a sovereign state. See Complaint ¶ 16, at 7. Defendants Jefirey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone (collectively, the “Gaming Board Members”) are Members of .the New Mexico Gaming Control Board. See Complaint ¶¶ 19-23, at 7-8. Landers also serves as Chairman of the Gaming Board. See Complaint ¶ 19, at 7. Defendant Susana Maxtinez, New Mexico’s Governor, appointed each Gaming Board membei’. See Complaint ¶ 17, pt 7; id. ¶¶ 19-23, at 7-8. Defendant Jeremiah Ritchie serves as Martinez’ Deputy Chief of Staff and primary IGRA compact negotiator. See Complaint ¶ 18, at 7.

2. Events Leading to the June 30, 2015, Expiration of New Mexico and Pojoaque Pueblo’s Class III Gaming Compact.

On July 19, 2005, New Mexico and Poj-oaque Pueblo executed a Class III gaming compact pursuant to IGRA § 2710(d), permitting the operation of casino-style gaming operations on Pojoaque Pueblo’s tribal lands. See Complaint ¶46, at 16. Under the terms of the compact, originally drafted in 2001, Pojoaque Pueblo was obligated to pay an “8% tax on net win, or gross gaming revenue,” to New Mexico. Complaint ¶ 44, at 15. Pojoaque Pueblo at first refused to execute the 2001 Compact, but eventually “acquiesced to the State’s demands in 2005.” Complaint ¶ 45, at 16. In 2007, New Mexico agreed to extend the 2001 compact’s term for “tribes that agreed to an increase of the tax on net win to a range of 9.25% to 10.75% of net win, or gross gaming revenue, while acquiescing to an increase in non-Indian gaming activity in the state.” Complaint ¶ 47, at 16. Notably, the 2007 compact limited a tribe’s gaming operations to two gaming facilities within the tribe’s lands. See Complaint ¶47, at 16. The 2007 compact, therefore, increased the gaming tax while simultaneously diminishing the “exclusivity” to tribes operating gaming facilities in the state. Complaint ¶ 47, at 16. Pojoaque Pueblo did not accede to the 2007 compact, in part because it would have forced Poj-oaque Pueblo to “close established gaming facilities” and cease construction on the Buffalo Thunder Resort & Casino. Complaint ¶ 48, at 16-17.

Before the expiration of New Mexico and Pojoaque Pueblo’s outstanding compact on June 30, 2015, Pojoaque Pueblo formally requested that New Mexico enter into a new agreement. See Complaint ¶ 2, at 2. Talks were unsuccessful, however, because, similar to the 2007 compact, New Mexico proposed terms which increased the “tax on net win to a range of 8.75% to 10.75% of net win, or gross gaming revenue, while acquiescing to an increase in non-Indian gaming activity in the State.” Complaint ¶ 51, at 17. As before, Pojoaque Pueblo viewed these terms as increasing the gaming tax while decreasing Pojoaque Pueblo’s “exclusivity” in its gaming operations.- Complaint ¶ 51, at 18. Accordingly, Pojoaque Pueblo did not agree to the terms of what eventually became New Mexico’s 2015 Form Compact. See Complaint ¶ 54, at 18. See generally Tribal-State Class III Gaming Compact (Indian Gaming Compact Between the State of New Mexico and the _ [sic] )(drafted February 2015)(“2015 Form Compact”).

Believing that New Mexico’s “tactics and positions” regarding what later became the 2015 Form Compact violated federal law, on December 13, 2013, Pojoaque Pueblo filed suit against New Mexico for failing to negotiate a compact under IGRA in good faith. 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.).

With compact negotiations stalled, Poj-oaque Pueblo submitted a proposal for Class III gaming to the United States Secretary of the Interior pursuant to IGRA § 2710(d)(7)(B) and 25 C.F.R. Part 291. See Complaint ¶ 57, at 19. The remedial scheme in IGRA § 2710(d)(7)(B) enables the Interior Secretary 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 Interior 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). A state’s ability to assert sovereign immunity as an affirmative defense to bad faith suits under IGRA, however, effectively neutralizes this remedial scheme. See Seminole Tribe I, 517 U.S. at 47, 116 S.Ct. 1114 (holding that Congress has 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, 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, 126 F.Supp.3d 1201, 1204 (D.N.M. 2014)(Parker, J.), on appeal 14-2222.

On August 7, 2014, New Mexico filed suit against the United States challenging the Interior Secretary’s authority to promulgate the regulations in 25 C.F.R. Part 291. See New Mexico v. Dep’t of Interior, 126 F.Supp.3d at 1212. On October 17, 2014, Judge Parker granted summary judgment to New Mexico and enjoined the United States from taking actions to enforce 25 C.F.R. Part 291. See New Mexico v. Dep’t of Interior, 126 F.Supp.3d at 1214. An appeal to the Tenth Circuit is pending. See New Mexico v. Dep’t of Interior, 14-2222.

On November 3, 2014, 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 extant state-tribal agreement. See Complaint ¶ 60, at 19. Pojoaque Pueblo again renewed and reaffirmed this request on January 23, 2015. See Complaint ¶ 61, at 19. New Mexico and Pojoaque Pueblo representatives subsequently met on several occasions to negotiate a new compact; however, talks again were unsuccessful, and New Mexico and 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 Pojoaque Pueblo by letter of the Gaming Board’s intention to conduct an earlier compliance review in advance of the existing compact’s expiration. See Complaint ¶¶ 65-66, at 20. In the letter, Becker requested that Pojoaque Pueblo provide “(a]ny and all contracts] with Class III Gaming Machine Manufacturers, including and [sic] Lease, Purchase and Service Agreements.” Complaint ¶ 66, at 20. Pursuant to its obligations under the outstanding compact, Pojoaque Pueblo produced the requested vendor contracts. See Complaint ¶ 66, at 20.

Beginning in April 2015, New Mexico negotiated state-tribal Class III gaming compacts with fifteen pueblos and tribes throughout the state. See Complaint ¶ 51, at 17-18 (noting that five tribes executed the 2015 Form Compact in April 2015); Plaintiffs’ “Proposed” Supplemental Brief at 3, filed November 2, 2016 (Doc. 140-I)(“Suppl. Brief”)(noting that in total fifteen pueblos and tribes executed the 2015 Form Compact). The 2015 Form Compact pursuant to which these agreements were executed called for an 8.75 percent to 10.75 percent tax on tribes’ and pueblos’ net winnings or gross gaming revenue. See 2015 Form Compact at 25. As noted above, Pojoaque Pueblo refused to agree to the 2015 Form Compact’s revenue sharing terms. See Complaint ¶ 54, at 18.

Starting in early June 2015, the Interior Secretary posted notices in the Federal Registrar and sent letters to the fifteen pueblos and tribes that executed the 2015 Form Compact explaining that each compact was “deemed approved”—that is, that the agreements were approved by operation of law. Suppl. Brief at 3 (referencing, e.g., Letter from Kevin K. Washburn to Danny H. Breuninger Jr. Regarding Approval of Compact Between the State of New Mexico and the Mescalero Apache Tribe (dated June 9, 2015), filed November 2, 2016 (Doc. 140-3)(“Mescalero Apache Letter”); Letter from Kevin K. Washburn to Luis Romero Regarding Approval of Compact Between the State of New Mexico and the Pueblo of Taos (dated July 23, 2015), filed November 2, 2016 (Doc. 140-II)(“Taos Pueblo Letter”); Letter from Lawrence S. Roberts to Francisco I. Lujan Regarding Approval of Compact Between the State of New Mexico and the Pueblo of Sandia (dated March 29, 2016), filed November 2, 2016 (Doc. 140-15)(“Sandia Pueblo Letter”)). Each letter explained that, pursuant to IGRA § 2710(d)(8)(A) and (B), the Interior Secretary is empowered either to affirmatively approve or to disapprove a state-tribal gaming compact. See Mescalero Apache Letter at 1; Taos Pueblo Letter at 1; Sandia Pueblo Letter at 1. In the event that the Interior Secretary neither approves nor disapproves a compact within-45 days of its submission, the letters continued, the compact is deemed approved - under IGRA § 2710(d)(8)(C), to the extent- that its terms are consistent with IGRA’s provisions. See Mescalero Apache Letter at 1; Taos Pueblo Letter at 1; Sandia Pueblo Letter at 1. Thus, the letters stated that, because “no action was taken on the 2015 Compact within the 45-day review period,” the compacts were “considered approved by operation of law[.]” Taos Pueblo Letter at 1; Sandia Pueblo Letter at 1. See Mes-calero Apache Letter at 1 (stating the same).

Each letter from the Interior Secretary included some discussion of the 2015 Form Compact’s terms. See Mescalero Apache Letter at 1-3; Taos Pueblo Letter at 2-3; Sandia Pueblo Letter at 1-3. The letters stated that IGRA requires that states engage in good-faith compact negotiations, and that it was the Interior Secretary’s understanding that “each of the New Mexico Tribes ... made an independent determination that adopting the 2015 Compact was in its best interest.” Taos Pueblo Letter at 2; Sandia Pueblo Letter at 1. See Mescalero Apache Letter at 2 (same). The letters then proceeded to discuss the 2015 Form Compact’s revenue sharing requirements, explaining that such requirements are “closely scrutinize^]” under a two-prong inquiry: (i) “whether the state has offered meaningful concessions that it was not otherwise required to negotiate”; and (ii) “whether the value of the concessions provides substantial economic benefits to the tribe to justify the revenue sharing negotiated.” Sandia Pueblo Letter at 1-2. See Mescalero Apache Letter at 2 (same); Taos Pueblo Letter at 2 (same). Under the first prong, the letters concluded that the 2015 Form Compact made “meaningful concessions” by allowing the tribes to “continue to receive partial exclusivity over slot machines while maintaining full exclusivity over all other forms of class III gaming under IGRA.” Mescalero Apache Letter at 2; Taos Pueblo Letter at 2; Sandia Pueblo Letter at 2. Under the second prong, however, the letters expressed “skeptic[ism] about the overall value of the 2015 Compact’s additional claimed concessions.” Sandia Pueblo Letter at 2. See Mescalero Apache Letter at 8 (same); Taos Pueblo Letter at 2 (same). Nevertheless, the letters concluded that, “[g]iven the Tribes’ unified stance that they will receive substantial economic benefit from the 2015 Compact ... we take no action on the 2015 Compacts within the 45-day time limit on this issue.” Mescalero Apache Letter at 3. See Taos Pueblo Letter at 3 (same); Sandia Pueblo Letter at 2 (same). The Interior Secretaiy’s letter to the Pueblo of Sandia, for example, noted that the Sandia Pueblo “estimates a cost savings of $400,000 per calendar quarter” under the 2015 Form Compact. Sandia Pueblo Letter at 2 n.5 (citation omitted). The Interior Secretary therefore deemed approved the state-tribal gaming compacts. See Mescalero Apache Letter at 3; Taos Pueblo Letter at 3; Sandia Pueblo Letter at 3.

New Mexico and Pojoaque Pueblo’s Class III gaming compact expired at midnight on June 30, 2015. See Complaint ¶69, at 21. Earlier that day, Damon P. Martinez, United States Attorney for the District of New Mexico, 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 at 1 (dated June 30, 2015), filed October 1, 2015 (Doc. 28-3)(“U.S. Attorney’s Letter”). This pronouncement notwithstanding, the U.S. Attorney’s Letter indicated that Mr. Mai’-tinez would “exercise [ ] discretion to withhold enforcement action against the Pueblo” during the pendency of the appeal in New Mexico v. Dep’t of Interior, 14-2222, challenging Judge Parker’s ruling that the Secretarial Procedures in 25 C.F.R. Part 291 are invalid. See U.S. Attorney’s Letter at 1. Mr. Martinez expressly conditioned his decision on Poj-oaque Pueblo agreeing to maintain the status quo of its gaming operations according to the expiring compact’s terms and on 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 the 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 Poj-oaque 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 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.

Pojoaque Pueblo asserts that the Gaming Board’s actions regarding vendor license applications discouraged vendors from doing business with Pojoaque Pueblo. See Declaration of Michael Allgeier ¶ 14, at 4 (executed September 25, 2015), filed September 25, 2015 (Doc. 23-9)(“Allgeier Decl.”). For example, Pojoaque Pueblo alleges that Scientific Games, Inc., one of its gaming vendors, suspended the installation of a new casino management system for Pojoaque Pueblo’s gaming enterprises pending the Gaming Board’s determination whether “Scientific games can continue to do business with the Pueblo.” Allgeier Decl. ¶ 14, at 4.

PROCEDURAL BACKGROUND

Pojoaque Pueblo commenced this action on July 18, 2015, seeking redress for two primary claims: (i) that New Mexico failed to conclude compact negotiations in good faith for the regulation of Class III gaming activities on Pojoaque Pueblo’s lands, in violation of IGRA § 2710(d); and (ii) that the Individual Defendants—Martinez, Rit-chie, Landers, Maniaci, Becker, Doughty, and Londene—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. Pojoaque Pueblo’s theory of the case is that New Mexico has “wrongfully asserted] 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 of America and federal civil rights statutes. Complaint ¶ 8, at 4. To redress these violations, Pojoaque Pueblo seeks declaratory relief, an injunction preventing New Mexico from interfering with Pojoaque Pueblo’s gaming vendors, the appointment of a mediator to facilitate negotiations, $50,000,000.00 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 Judge Brack. See Notice of Case Reassignment to District Judge Robert C. Brack as Trial Judge, filed September 10, 2015 (Doc. 19)( [text-only-entry]).

The Court divides its discussion of the case’s Procedural Background into six parts. First, the Court will review the Gaming Board’s actions following Pojoaque Pueblo’s filing of this lawsuit, Judge Brack’s issuance of a preliminary injunction prohibiting those actions, and the Defendants’ interlocutory appeal of that preliminary injunction. Second, the Court will discuss the Gaming Board’s actions in the wake of Judge Brack’s PI and the Court’s opinion holding that those actions do not violate the PI. Third, the Court will discuss its opinion staying the effects of Judge Brack’s PI and dismissing the case, as well as Pojoaque Pueblo’s appeal of that judgment to the Tenth Circuit. Fourth, the Court will review Pojoaque Pueblo’s Motion to Stay the Court’s judgment and restore the preliminary injunction. Fifth, the Court will discuss the Defendants’ motion to dismiss their interlocutory appeal of Judge Brack’s preliminary injunction. Sixth, the Court will discuss Pojoaque Pueblo’s Supplemental Brief Motion.

1. Judge Brack’s Preliminary Injunction.

On September 9, 2015, the Gaming Board sent letters to Pojoaque Pueblo’s gaming vendors. See Letter From Donovan Lieurance to Manufacturer Licensee at 1 (dated September 9, 2015), filed September 25, 2015 (Doc. 23-14)(“Vendor Letter”). The Vendor Letter informed the vendors that, on June 30, 2015, Mr. Martinez determined that Pojoaque Pueblo’s continued gaming operations past the expiration of its gaming compact with New Mexico violated federal law. See Vendor Letter at 1 (referring to and attaching the U.S. rAttorney’s Letter). In light of these unlawful operations, the Vendor Letter indicated 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 with and business records regarding sixteen casinos and tribal gaming operations, including Poj-oaque’ Pueblo’s Class III operations at Buffalo Thunder Resort & Casino and Cities of Gold Hotel & Casino. See Vendor Letter' at 3-4. Pojoaque Pueblo asserts that» as a' result of the Vendor Letter, Scientific- Games refused to. provide software and servicing of Pojoaque Pueblo’s gaming machines. See Supplemental Declaration of Terrence “Mitch” Bailey ¶ 9, at 3 (executed September 26, 2015), filed September 28, 2015 (Doc. 27-1).

Shortly after sending the Vendor Letter, 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 1, 2015 (Doc. 30)(“Bailey Decl.”). Each citation included 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 Pojoaque Pueblo’s casinos. Bailey Decl. ¶ 6.a-c, at 2-4.

Pojoaque Pueblo promptly moved for a temporary restraining order and/or 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 Pojoaque Pueblo’s view, .the Gaming Board’s recent issuance of letters and citations to its gaming vendors was an attempt at asserting “jurisdiction over gaming activities on the Pueblo’s Indian lands,” despite the termination of New Mexico’s jurisdiction over such activities “on June 30, 2015 when the Compact expired.” PI Motion at 13-14. Pojoaque Pueblo accordingly sought to prohibit the Gaming Board “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.

The Defendants responded on October 1, 2015, contending 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 stressed that no direct enforcement action was threatened against Pojoaque Pueblo; rather, the Gaming Board’s actions at most “threatened regulatory consequences to third parties with ‘employment and business relationships with the Pueblo.’” PI Motion Response at 13. The Defendants reasoned that, in any event, vendor's “have not been instructed that they cannot conduct business with the Pueblo.” PI Motion Response at 4. The Defendants noted that, further, according to the U.S. Attorney’s Letter, Pojoaque Pueblo’s continued Class III gaming operations after the expiration of its compact with New Mexico violated federal law. See PI Motion Response at 16 (citation omitted). Accordingly, the Defendants argued, because New Mexico law requires that the Gaming Board regulate third parties doing business with gaming entities 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 matter On October 2, 2015. See Transcript of Preliminary Injunction Order Hearing held on October 2, 2015, filed October 22, 2015 (Doc. 38)(“PI Hearing Tr.”). Throughout the hearing, Pojoaque Pueblo argued extensively about its “right to be free from state jurisdiction over its gaming activities absent a tribal-state compact,” PI Hearing Tr. at 82:9-18 (Crowell), and the four requirements for the issuance of a preliminary injunction, .especially irreparable harm, see, e.g„ PI Hearing Tr. at 36:18-25, 37:1-25, 38:1-4 (Crowell). In response, the'Defendants repeatedly stated that New Mexico had no intention of barring vendors from continuing to do business with Pojoaque Pueblo. See, e.g., PI Hearing Tr. at 57:7-9 (Walz)(“[N]obody’s been ordered that they cannot do business with the Pueblo of Pojoaque.”). Pojoaque Pueblo countered that New Mexico “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 Tr. at 37:16-19 (Crowell). The consequence of this action, Pojoaque Pueblo 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.” PI Motion at 37:21-24 (Crowell). Because the issue whether federal law preempts the Defendants’ actions was not briefed by the parties, it was not argued at the hearing.

On October 7, 2015, Judge Brack granted the PI Motion. See PI MOO at 23. In issuing the PI, Judge Brack dismissed the “Defendants’ protestations that the regulation of vendors doing business with the Pueblo does not constitute regulation of the Pueblo’s gaming activities” as “disingenuous and inconsistent with the record.” PI MOO at 20. Rather, Judge Brack reasoned, the “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.” PI MOO at 20. Concluding that Pojoaque Pueblo 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 the 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 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.

PI MOO at 20. Accordingly, Judge Brack adopted' the PI Motion’s proposed language, and ordered that the “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 at 1, filed October 7, 2015 (Doc. 32). Judge Brack added that, to serve the public interest, the PI “will remain in effect for 30 days after the Tenth Circuit Court of Appeals issues its mandate in New Mexico v. Department of the Interior, 14-2222.” PI MOO at 23.

The Defendants filed an interlocutory appeal of Judge Brack’s PI to the Tenth Circuit on October 29, 2015. See Pueblo of Pojoaque v. State of New Mexico, 15-2187, Notice of Appeal at 1, filed October 29, 2015 (Doc. 40). On March 24, 2016, the panel assigned to review the matter sua sponte ordered that the appeal be abated pending the issuance of a decision on the appeal of Judge Parker’s opinion invalidating the regulations in 25 C.F.R. Part 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).

2. The Court’s Contempt Opinion.

The Gaming Board held its first formal public meeting following Judge Brack’s issuance of the PI on October 21, 2015. See Stay MOO at 13. At the meeting, the Gaming Board considered a total of twenty-nine applications by vendors for “gaming license” renewals and “certifications of findings of suitability.” Stay MOO at 13-15 (internal footnote, quotation marks, alterations, and citation omitted). Regarding companies not doing business with Poj-oaque Pueblo, the Gaming Board approved eighteen applications, deferred one application for a one-month period, and took no vote on one application. See Stay MOO at 15 (internal footnote and citation omitted). The Gaming Board deferred all nine applications—without a date set for future consideration—by companies doing business with Pojoaque Pueblo. See Stay MOO at 15 (internal footnote and citation omitted).

On October 29, 2015, this case was reassigned to the Court after the Defendants retained new counsel with a law firm that previously employed Judge Brack, thereby creating a conflict. See Notice of Case Reassignment to District Judge James O. Browning, entered October 29, 2015 (Doc. 42)( [text-only-entry]).

As a result of the Gaming Board’s actions at its October 21, 2015, meeting, Poj-oaque Pueblo moved the Court on November 19, 2015, to: (i) “issue an Order to Show Cause” for the Gaming Board Members 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 Members upon a finding of civil contempt; and (iii) award Pojoaque Pueblo attorney’s fees and costs. Motion for Order to Show Cause Re Civil Contempt at 1-2, filed November 19, 2015 (Doc. 53)(“Contempt Motion”). Pojoaque Pueblo argued that the Gaming Board violated Judge Brack’s PI by “deferring license decisions on all applications for persons or companies doing business with the Pueblo.” Contempt Motion at 2. In Pojoaque Pueblo’s 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.

The Gaming Board Members, represented by new counsel, responded to the Contempt Motion on December 7, 2015. See New Mexico Gaming Control Board Defendants’ Response to Plaintiffs’ Motion for Order to Show Cause Re Civil Contempt at 1, filed December 7, 2015 (Doc. 62)(“Contempt Motion Response”). The Gaming Board Members contended that, because New Mexico’s “police power to enforce state law regarding non-Indian gaming manufacturers’ licenses ... outside of tribal lands, based on the manufacturers’ continued involvement with the Pueblo’s now-illegal gaming operations, remains in vigorous litigation,” the Gaming Board had “justifiably and properly [ ] deferred taking action on licenses and certifications of such manufacturers and their personnel, respectively.” Contempt Motion Response at 2-3. The Gaming Board Members advanced five reasons why the Court should deny the Contempt Motion. See Contempt Motion Response at 7-10. First, they argued that Judge Brack’s PI “does not ‘clearly and unambiguously’ ... or even implicitly bar the Board from deferring these decisions.” Contempt Motion Response at 8. Second, they asserted that the Gaming Board did not take or threaten “license enforcement action” as the PI prohibits, but, rather, that it “simply postponed taking any action.” Contempt Motion Response at 8 (emphases in original). Third, they contended that Judge Brack “clearly erred” and that, although they would “fully comply with the Preliminary Injunction while it remains in place,” they “properly may defer taking action on the licenses and certifications in question.” Contempt Motion Response at 8-9. Fourth, the Gaming Board Members argued that “the Pueblo cannot establish that it has suffered any injury,” because neither Pojoaque Pueblo nor its vendors “feels ‘threatened.’ ” Contempt Motion Response at 9. Fifth, and finally, the Gaming Board Members asserted that the Contempt Motion “elevat[es] form over substance,” because the Gaming Board already voiced its disagreement with Judge Brack’s PI MOO, and, accordingly, “the licensee and certificate holders whose applications were deferred would be just as ‘threatened’ even if the Board had issued or renewed their licenses and certifications.” Contempt Motion Response at 9-10.

The Court held a hearing on the Contempt Motion on December 29, 2015. See Transcript of Order to Show Cause Proceedings held on December 29, 2015, filed January 7, 2016 (Doc. 76)(“Contempt Hearing Tr.”). The Court stated that it was “not inclined to grant civil contempt,” because the Gaming Board’s actions did not rise to the level of “threats” under the “carefully crafted” language of Judge Brack’s PI. Contempt Hearing Tr. at 2:19-3:6 (Court). The Court cautioned, however, that the Gaming Board was “playing a little bit with fire” and that, if the Gaming Board continued “down this path, the pueblo may be able to show that your deferrals have become threat[s].” Contempt Hearing Tr. at 3:14-22 (Court). In response, Pojoaque Pueblo contended that it filed the PI Motion because the Gaming Board issued deferrals, and that Judge Brack accordingly understood the word “threaten” to include deferrals. Contempt Hearing Tr. at 6:10-7:1 (Court, Crowell). The Gaming Board Members demurred, asserting that the earlier deferrals, issued before Judge Brack’s PI MOO, did not prompt the PI. See Contempt Hearing Tr. at 24:20-26:7 (Bohnhoff). The later deferrals, they continued, were “not for the purpose of taking some future enforcement action but rather [were] deferred pending the resolution of the litigation.” Contempt Hearing Tr. at 26:18-21 (Bohnhoff). In rejoinder, Pojoaque Pueblo again emphasized that the Gaming Board was attempting to send “a message to the vendors that what we do with your licenses is contingent upon what you do with the pueblo, and that is a threat.” Contempt Hearing Tr. at 62:4-6 (Crowell). Nonetheless, the Court maintained that, although deferrals could amount to a threat in certain circumstances, the Gaming Board’s actions did not rise to that level. See Contempt Hearing Tr, at 65:13-66:8 (Court).

On April 21, 2016, the Court denied the Contempt Motion. See Memorandum Opinion and Order at 7, filed April 21, 2016 (Doc. 115)(“Contempt MOO”). Consistent with its pronouncements at the hearing, the Court held that the Gaming Board’s license deferrals did not “threaten” the vendor applicants within the meaning of Judge Brack’s PI. Contempt MOO at 24. The Court first reasoned that the deferrals would not immediately harm the vendors, because they would not “affect the vendors’ continued operation.” Contempt MOO at 24. The Court explained that

the Gaming Board has established a “pattern of practice” of allowing licenses to remain in effect between the time that a licensee files for a renewal and the time that it approves the renewal. Reply at 8. Defendant Jeffrey Landers 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. Landers 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.” [Contempt Motion] Tr, at 37:14— 19 (Bohnhoff). 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).

Contempt MOO at 26-27. The Court added that

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 injunc-tive relief, and at the present time, the vendors are not threatened and do not appear to feel threatened.

Contempt MOO at 27. Having concluded that the deferrals would not have any “immediate legal impact on the vendors’ operations,” the Court held that the deferrals “do not otherwise constitute threats,” for three reasons. Contempt MOO at 27. First, the Court concluded that “Judge Brack’s PI Language is not sufficiently clear to support a finding of civil contempt for deferrals.” Contempt MOO at 28. Second, the Court concluded that the deferrals “were likely intended to preserve the status quo,” and that, “even if that is not the Gaming Board’s intent and it has some more nefarious purpose, the effect is to preserve the status quo.” Contempt MOO at 28. Last, the Court expressed “reluctance] to conclude that the deferrals constituted threats in the absence of conci*ete evidence that the Plaintiffs’ vendors feel threatened or are altering their behavior accordingly.” Contempt MOO at 29.

Although the Court denied the Contempt Motion, it cautioned that “[t]he Gaming Board must proceed with caution.” Contempt MOO at 30. The Court explained that the Gaming Board could properly defer applications under the PI, but that “its actions may become threats if the vendors start pulling their business from Pojoaque Pueblo.” Contempt MOO at 30. The Court elaborated:

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.

Contempt MOO at 30. The Court concluded that

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.

Contempt MOO at 30.

3. The Court’s Stay MOO Staying the Pi’s Effects and Dismissing the Case.

In December 2015 the Defendants filed eight motions raising, for the first time, the question-whether federal law preempts the Gaming Board’s regulatory enforcement actions against non-Indian, state-licensed gaming vendors. In February 2016, Pojoaque Pueblo moved the Court to stay proceedings pending the Tenth Circuit’s resolution of the Defendants’ interlocutory appeal of Judge Brack’s PI MOO. The Court will briefly review these nine motions and then discuss its September 30, 2016, Stay MOO disposing of these motions and dismissing the case. The Court will then turn to discuss Pojoaque Pueblo’s appeal of the Court’s Stay MOO to' the Tenth Circuit. Finally, the Court will dis- • cuss the issue, that the Tenth Circuit raised sua sponte, whether' the Court’s judgment in its Stay MOO constitutes an appealable final judgment.

a. The Qualified Immunity Motion.

On December 4, 2015, the Individual Defendants moved to dismiss the Complaint’s Count IV—which alleges that the Gaming Board’s “actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands” violaté Pojoaque Pueblo’s “federal right to engage in conduct free from the jurisdiction of the state,” Complaint ¶ 145, at 36—on the basis of qualified immunity, see Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty. Ill, and Carl E. Londone’s. Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc..60)(“QI Motion”). The Individual Defendants, contend, first, that the Gaming Board’s, actions do not violate Pojoaque Pueblo’s federal rights under IGRA, because IGRA does not preempt regulation of non-Indian, state-licensed gaming manufacturer vendors pursuant to New Mexico’s police power. See QI Motion at 8. In the Individual Defendants’ view, IGRA does not evince “clear and manifest” Congressional intent to preempt such actions, QI Motion at 12 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)(internal quotation marks omitted)), because IGRA applies only to direct regulation of Indian lands, see QI Motion at 12 (“Everything—literally everything— in IGRA affords tools (for either state or federal officials) to regulate gaining on Indian lands, and nowhere else.”)(quoting Michigan v. Bay Mills Indian Cmty., — U.S. -, 134 S.Ct. 2024, 2034, 188 L.Ed.2d 1071 (2014)(“Bay Mills”)(internal quotation marks omitted)). Here, the Individual Defendants contend, the Gaming Board has not taken any direct regulatory actions toward Pojoaque Pueblo, nor has it asserted its authority on Pojoaque Pueblo’s lands. See QI Motion at 14 (citing Srader v. Verant, 1998-NMSC-025, ¶ 16, 125 N.M. 521, 964 P.2d 82). The Individual Defendants argue, moreover, that it is irrelevant whether the Gaming Board’s actions indirectly impact Pojoaque Pueblo’s gaming operations, see QI Motion at 14, and that even indirect attempts to regulate on-reservation gaming are permissible, see QI Motion at 17 (arguing that 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”)(quoting Bay Mills, 134 S.Ct. at 2035). Regarding qualified immunity analysis’ second inquiry, the Individual Defendants argue that, even if the Gaming Board’s actions violate Pojoaque Pueblo’s federal rights, those rights are not clearly established. See QI Motion at 18.

In response to the QI Motion, Pojoaque Pueblo contends that its rights under IGRA to be free from New Mexico’s exercise of 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 Plaintiffs Pueblo of Poj-oaque 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 at 4, filed December 18, 2015 (Doc. 66)(“QI Motion Response”). Pojoaque Pueblo contends that Judge Brack already concluded in his PI MOO that the Individual Defendants violated Pojoaque Pueblo’s clearly established federal rights, and that his reasoning “compels denial of [the] Motion to Dismiss.” QI Motion Response at 6. Pojoaque Pueblo points to Judge Brack’s admonition that the Gaming Board’s 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.” QI Motion Response at 6 (quoting PI MOO at 20)(internal quotation marks omitted). Pojoaque Pueblo also argues that Judge Brack concluded that the Individual Defendants “‘know’ that they have stepped over the line in their attempt to assert state jurisdiction over the Pueblo’s gaming.” QI Motion Response at 6 (quoting PI MOO at 20). Thus, Pojoaque Pueblo argues that Judge Brack’s reasoning defeats both prongs of qualified immunity analysis—that the Individual Defendants violated a federal right and that they knowingly violated that right. See QI Motion Response at 6.

b. The Motion to Stay Discovery.

Contemporaneously with their QI Motion, the Individual Defendants moved the Court on December 4, 2015, for a “stay of discovery pending a ruling on their motion to dismiss.” 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 at 1, filed December 4, 2015 (Doc. 61)(“Motion to Stay Discovery”). The Individual Defendants contend that a stay of discovery is warranted in light of the polices underlying the qualified immunity defense, namely, that “government officials [have] a right, not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery.” Motion to Stay Discovery at 2 (quoting Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996))(internal quotation marks omitted). Thus, they argue, once a qualified immunity defense has been raised, “discovery should not be allowed.” Motion to Stay Discovery at 2 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)(internal quotation marks omitted)).

In response, Pojoaque Pueblo contends that the policy rationale underlying the qualified immunity defense does not apply, because “the Defendant Officials will remain in, and be burden by this litigation regardless of whether Count IV is dismissed.” 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 Stay Discovery Pending Qualified Immunity Rulings at 3, filed December 18, 2015 (Doc. 67)(“Motion to Stay Discovery Response”). Accordingly, Pojoaque Pueblo asserts, the issue of qualified immunity should not be resolved this early in the litigation. See Motion to Stay Discovery Response at 4.

c. The Motion to Stay Judge Brack’s PI.

On December 18, 2015, the Defendants moved, pursuant to rule 62(c) of the Federal Rules of Civil Procedure and rule 8(a)(1) of the Federal Rules of Appellate Procedure, to stay or suspend Judge Brack’s PI pending the resolution of their interlocutory appeal of the PI at the'Tenth Circuit. See Defendants’ Motion to Stay or Suspend the Court’s October 7, 2015 Preliminary Injunction at 1, filed December 18, 2015 (Doc. 64)(“Motion to Stay PI”). The Defendants assert that motions to stay injunctions pending appeal are analyzed under the following factors: “(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay of injunction is granted; and (d) any risk of harm to the public interest.” Motion to Stay PI at 2 (citing General Protecht Group, Inc. v. Leviton Mfg. Co., No. CIV 10-1020 JB/LFG, slip op. at 5, 2010 WL 5477266 (D.N.M. Dec. 7, 2010)(Browning, J.))(internal quotation marks and citation omitted). The Defendants argue that likelihood of success is the controlling factor, and that, when a claim fails on the merits, a court should “‘short-circuit the factor-weighing process’ and must reverse the grant of an injunction regardless of how the other factors might be weighed.” Motion to Stay PI at 3 (quoting Soskin v. Reinertson, 353 F.3d 1242, 1257 (10th Cir. 2004)).

Here, the Defendants contend, Pojoaque Pueblo cannot succeed on the merits of its claim underlying Judge Brack’s PI, because New Mexico’s regulation of non-Indian gaming activity “is a valid exercise of the State’s police power,” Motion to Stay PI at 5 (citing Srader v. Verant, 1998-NMSC-025, ¶¶ 11, 16, 125 N.M. 521, 964 P.2d 82), and because IGRA does not preempt New Mexico’s “authority to regulate gaming within its jurisdiction,” Motion to Stay PI at 6. The Defendants assert that Judge Brack “did not consider this legal analysis” nor did he “address the State’s regulatory authority outside of Indian country, which is exceedingly broad.” Motion to Stay PI at 7. Rather, the Defendants contend, Judge Brack “misapprehended the Defendants’ position and concluded that the Board had exerted direct authority over the Pueblo’s illegal gaming and on the Pueblo’s lands, which the Board clearly has not.” Motion to Stay PI at 7. Accordingly, Judge Brack “erred in granting a preliminary injunction,” the Defendants conclude, “based on the belief that Plaintiffs likely will prevail on the merits of their tribal sovereignty-based claims.” Motion to Stay PI at 10.

Pojoaque Pueblo responded on January 25, 2016; incorporating by reference the preemption arguments that it makes elsewhere in its briefings. See Response in Opposition to State Defendants’ Motion to Stay or Suspend- the Court’s October 7, 2015 Preliminary Injunction at 2, filed January 25, 2016 (Doc. 90)(“Motion to Stay PI Response”). Pojoaque Pueblo also advances a new argument: that the Defendants improperly determined that Poj-oaque Pueblo’s Class III gaming operations in the absence of a compact is illegal. See Motion to Stay PI Response at 2. Pojoaque Pueblo asserts that it “has done everything- IGRA requires it to do” and that “[i]t is the State that is acting illegally in violation of its obligations under IGRA.” Motion to Stay PI Response at 3. Pojoaque' Pueblo argues that, in light of the Supreme Court’s holding in Seminole Tribe I that Congress lacked Constitutional authority to subject non-consenting states to suit by Indian tribes under IGRA, the Court should “re-evaluate[ ]” IGRA’s requirement that Class III gaming activities on Indian lands are legal only if a state-tribal compact is in effect. Motion to Stay PI Response at 3. Pojoaque Pueblo contends that “Seminole Tribe I revealed that IGRA was broken” and that the Court should invoke severance doctrine < to make the statute comport with Congressional intent. Motion to Stay PI Response at 3-4. In Pojoaque Pueblo’s view, Congress would not have intended to criminalize Class III gaming conducted without a compact if a tribe did not have the ability to sue a state for failing to negotiate a- compact in good faith. See Motion to Stay PI Response at 3-16.

Accordingly, Pojoaque Pueblo proposes that the Court (i) sever IGRA’s requirement that a court must first find that a state acted in bad faith before IGRA’s remedial provisions apply; and (ii) modify IGRA’s provision for a court-appointed mediator to select one of two compacts that the tribe and the state propose, to allow the mediator to consider only the compact that the tribe proposes. See Motion to Stay PI Response at 13-14. In Pojoaque Pueblo’s version of the statute, a state would be required either to consent to the tribe’s proposed compact or to be subject to secretarial procedures based on the tribe’s compact. See Motion to Stay Injunction Response at 13-14. Pojoaque Pueblo proposes, moreover, that the Court sever IGRA’s requirement that a Class III gaming compact must be in effect for such gaming to be lawful. See Motion to Stay PI Response at 15. Pojoaque Pueblo’s version of the statute, rather, would allow tribes to conduct gaming “in a State in which gambling devices are legal.” Motion to Stay PI Response at 15. In short, Pojoaque Pueblo proposes that “the Class III provisions of IGRA in their entirety should' be struck' down, and the Pueblo should be able to govern gaming activities on its Indian lands without regard to IGRA Motion to Stay PI Response at 16.

d. The Motion to Reconsider Judge Brack’s PI.

On December 18, 2015, the Defendants moved, pursuant to rules 54(b), 62(c), and 62.1 of the Federal Rules of Civil Procedure, to reconsider, and either to vacate or to modify Judge Brack’s PI, or, in the alternative, to grant “related relief available under Rule 62.1.” 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 at 1, filed December 18, 2015 (Doc. 65)(“Motion to Reconsider PI”). The Defendants contend that the Court has “inherent” authority under rule 54(b) to “reconsider and revise any interlocutory order ‘at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.’” Motion to Reconsider PI at 11 (quoting Balla v. Idaho State Bd. of Corrs., 869 F.2d 461, 465 (9th Cir. 1989)). With respect to modification of a PI, the Defendants note, “a district court is not bound by a strict standard of changed circumstances but is authorized to make any changes in the injunction that are equitable in light of subsequent changes in the facts or the law, or for any other good reason.” Motion to Reconsider PI at 13 (quoting Basic Research, LLC v. Cytodyne Techs., Inc., 2000 WL 33363261, at *11, 2000 U.S. Dist. LEXIS 23454, at *34 (D. Utah 2000)(Kimball, J.). The Defendants concede, however, that, although rule 62(c) “authorizes a district court, during the pendency of an appeal from a preliminary injunction, to suspend, modify, restore or grant an injunction,” the court “generally loses jurisdiction over a proceeding upon the filing of a notice of appeal, at least as to those aspects of the case that are involved in the appeal.” Motion to Reconsider PI at 13 (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)). The district court, the Defendants assert, “may not grant relief regarding the preliminary injunction that divests the appellate court of its jurisdiction by eliminating or materially altering the controversy.” Motion to Reconsider PI at 13-14 (citations omitted). Accordingly, the Defendants reason, “the pendency of the appeal deprives the district court of the jurisdiction it otherwise would possess to vacate or dissolve the preliminary injunction.” Motion to Reconsider PI at 14 (citing Coastal Corp. v. Tex. E. Corp., 869 F.2d 817, 819 (5th Cir. 1989)). Nevertheless, the Defendants assert that, during an appeal’s pendency, the district court may, pursuant to rule 62.1, issue an “indicative ruling” stating “either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” Motion to Reconsider PI at 14. The Defendants contend that such a ruling is appropriate here. See Motion to Reconsider PI at 26.

Turning to their analysis, the Defendants advance the same arguments that they articulate elsewhere in their briefings regarding the legality of the Gaming Board’s actions. First, the Defendants assert that New Mexico has a “sovereign interest” in enforcing its police powers within its jurisdiction. Motion to Reconsider PI at 16 (citing Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457, 476-77 (2d Cir. 2013); Kansas v. United States, 249 F.3d 1213, 1227-28 (10th Cir. 2001). Second, the Defendants argue that IGRA does not preempt New Mexico’s police power, because (i) IGRA does not manifest clear Congressional intent to preempt a state’s regulation of non-Indian licensees outside of Indian country, see Motion to Reconsider PI at 17 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. at 230, 67 S.Ct. 1146); (ii) IGRA applies only to regulation of gaming on Indian lands, and, thus, it is intended only to “expressly preempt the field in the governance of gaming on Indian lands,” Motion to Reconsider PI at 18 (quoting United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170, 1179 (10th Cir. 1991)(emphasis omitted); and (iii) New Mexico’s authority to regulate state licensees is not limited by any indirect or ancillary effects of such action on Pojoaque Pueblo, see Motion to Reconsider PI at 22-26. For these reasons, the Defendants assert, Judge Brack “misapprehended the facts and Defendant