The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it (1) two motions filed by the Tribes seeking amicus status, and (2) plaintiffs' motion to strike. For the reasons explained below, the Court will grant amicus status to the Tribes and deny the plaintiffs' motion to strike.
In this lawsuit, plaintiffs challenge the Secretary's decision to approve gaming compacts between Idaho and several tribes. The Tribes are not parties to this action, having invoked their sovereign immunity from suit. In an earlier decision, the Court refused to dismiss the action, rejecting a claim, among others, that the Tribes were indispensable parties who could not be joined. The Court held that the Tribes were adequately represented by the Secretary.
The Secretary filed a Motion For Reconsideration. The Tribes then filed a motion for leave to file an amicus brief in support of the Secretary's motion, and subsequently filed another motion to file an additional brief and supporting affidavit arguing that plaintiff Dotson's claim was moot because he was excluded from gambling at the Tribes' casino. The plaintiffs responded by moving to strike the Tribes' factual submissions, including (1) the Declaration of Nathan Small, the Chairman of the Fort Hall Business Council, addressing the history of this litigation, and (2) the Declaration of Marvin Osborne, the Executive Director of the Tribes' Gaming Commission, addressing the alleged mootness of plaintiff Dotson's claim.
Tribes' Motion to File as Amicus
This Court has "broad discretion" to appoint amicus curiae. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). In Hoptowit, the Government moved for amicus status in a case involving prison conditions. The district court granted the motion and the Circuit affirmed, finding that the Government "was helpful to [the district court] in investigating the facts and advising it on the federal government's position on issues of federal constitutional law." Id. at 1260. The Circuit also found it important that while the Government had an interest in vindicating federal constitutional rights, there was no evidence that the Government "controlled the litigation" or that the named plaintiffs "were mere strawmen to confer standing so that amicus could litigate its views." Id. at 1260.
The same conditions exist here. The Tribes' input would be helpful to the Court in reviewing the Secretary's motion to reconsider. The Tribes may have insight to add to that of the Secretary because the Tribes' gambling operations are at issue in this case. And there is no evidence that the Secretary is a mere strawman for the Tribes or that the Tribes are controlling this litigation.
While the Tribes have filed two motions to allow amicus briefs, and the Court will grant both motions, the Court will require that the Tribes file only a single amicus brief, no longer than the 20-page limit. The Court will require that this brief be filed within ten days from the date of this decision.
Plaintiffs' Motion To Strike
Plaintiffs seek to strike the two Declarations that the Tribes intend to file with their amicus brief, and to prohibit the Tribes from addressing factual issues in their amicus brief.
The plaintiffs cite no Ninth Circuit cases on point. While other courts typically strike factual assertions by an amicus, those same courts have crafted an exception when the facts relate to jurisdictional issues. See e.g., Gen. Electric Corp. v. Virgin Islands Water & Power Auth., 805 F.2d 88, 92 n. 5 (3rd Cir. 1986) ("Generally, new issues by an amicus are not properly before the court [but] jurisdictional issues may give rise to . . . exceptional circumstances."), Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994) ("[W]e are obliged to consider ...