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Agamenv, LLC, A/K/A Dakota Gaming, LLC; Ray Brown; and Steven Haynes v. andrew Laverdure

June 11, 2012

AGAMENV, LLC, A/K/A DAKOTA GAMING, LLC; RAY BROWN; AND STEVEN HAYNES, PLAINTIFFS,
v.
ANDREW LAVERDURE, PURPORTING TO ACT IN HIS CAPACITY AS AN ASSOCIATE JUDGE FOR TURTLE MOUNTAIN TRIBAL COURT; MIKE MALATERRE, CINDY MALATERRE, ELMER DAVIS, AND LORNE JAY, PURPORTING TO ACT IN THEIR CAPACITY AS TRIBAL COUNCIL MEMBERS, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

Before the Court is the Plaintiffs' "Emergency Motion for Temporary Restraining Order and Preliminary Injunction," filed on June 8, 2012. See Docket No. 3. For the reasons explained below, the motion is denied.

I. BACKGROUND

On December 21, 2011, the Tribal Council of the Turtle Mountain Band of Chippewa Indians ("Tribe") issued Resolution Number TMBC586-11-11 (Revised) which states, in pertinent part:

WHEREAS, the Tribe is initiating a business venture for providing a casino in the

Trenton area; and

WHEREAS, the Tribe is entering into a development agreement to proceed with the business venture; now THEREFORE BE IN RESOLVED that the Tribe is entering in a development agreement with AGAMENV to proceed with plans for the casino in the Trenton area.

See Docket No. 1-3, p. 14.

On February 22, 2012, the Turtle Mountain Band of Chippewa Indians ("Tribe") entered into a Gaming Equipment Participation Agreement and Loan Agreement with plaintiff AGAMENV for the purpose of constructing and operating a new casino, the Painted Pony Casino. See Docket Nos. 1-3 and 1-5.

On April 30, 2012, Lorraine Laverdure, Gaming Investigator for the Tribe, sent a letter to plaintiff Ray Brown, one of the primary members of AGAMENV, stating, "This notice is to inform you that the Tribal Gaming Office has not received your application to Distribute Gaming Equipment and Supplies. Therefore, you will not be allowed to continue business with the Painted Pony Casino in Trenton, North Dakota." See Docket No. 1-8.

On May 2, 2012, the four Tribal Council members that had voted against the December 21, 2011 resolution filed a "Complaint and Petition For a Preliminary Injunction" in Turtle Mountain Tribal Court in Belcourt, North Dakota. See Docket No. 1-9. The plaintiffs in the Tribal Court action allege, in part:

5. That Plaintiffs have been unable to locate an applicable Resolution as is required by the Turtle Mountain Constitution to verify the approval of the Development Agreement that assigned all responsibilities, duties and covenants from AGAMENV (entered into on or around 11-11-11) to Dakota Gaming LLC.

6. That Plaintiffs have been unable to locate a Declination Letter from NIGC that would identify that the above Agreements Exhibit B were determined not to be considered Management Agreements and/or do not violate the "sole proprietor" requirement in the Indian Gaming Regulatory Act (IGRA).

7. That Defendants have failed to comply with the Turtle Mountain Tribal Gaming Code Exhibit D by failing to complete and submit applicable vendor's license applications as is required by the Gaming Code Section 25-1-16 Commission's Powers and Duties, (b), (c) and have failed to provide access to the Tribal Gaming Commission so as to identify who the primary management officials are, and who is to be employed at the Trenton site so that Gaming licenses can be issued,, in compliance with Section 25-10-16 (c) and (f), and the Turtle Mountain Gaming Commission has not been allowed to view and approve the expenditures of any tribally operated Class II gaming enterprises in compliance with Section 25-1-16 (h) of said Gaming Code.

See Docket No. 1-9 (errors and emphasis in original). The plaintiffs requested the following:

1. Issuance of a Temporary Restraining Order, restraining Defendant from acting as Developer and performing the the actions identified in Exhibit B, the Agreements that Defendant would be responsible for and to be enjoined from continuing to violate the Turtle Mountain Gaming Code, and to be cease an attempt to open the Trenton property;

2. Issuance of a Preliminary Injunction enjoining Defendant from providing any services or operating as developer in regard to the Trenton property during the pendency of this action;

3. And on a final hearing, Defendant be permanently enjoined from being a party to this development so long as any applicable Turtle Mountain Tribal Laws or Regulations are not complied with.

4. Plaintiff requests such other and further relief as the Court deems proper. See Docket No. 1-9 (errors in original).

On May 10, 2012, Tribal Court Associate Judge Andrew Laverdure issued an "Ex Parte Temporary Restraining Order and Preliminary Injunction and Order for Show Cause Hearing." See Docket No. 1-10. Judge Laverdure ordered as follows:

1. That the following Defendants: AGAMENV, LLC, aka Dakota Gaming, LLC, associated Investors, Ray Brown and Steven ...


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