DODGE v. HOOPA VALLEY GAMING COMM.

7 NICS App. 51, DODGE v. HOOPA VALLEY GAMING COMM. (July 2005)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

Kimberlee K. Dodge, Appellee,

Hoopa Valley Gaming Commission, Appellant.

No. C-2-002; A-02-002 (July 19, 2005)

(Motion for Reconsideration denied October 27, 2005)

SYLLABUS^*

Tribal Court, Appellate Division, reversed Gaming Commission’s permanent revocation of employee’s gaming license and remanded for additional proceedings specified by Tribal Court. Court of Appeals holds (1) an appellate court may affirm the judgment of a lower court an any ground supported by the record, even if the lower court did not rely on those grounds; (2) language in a regulation that conflicts with or cannot be harmonized with language in the statute that the regulation implements has no effect; (3) lower court erred in ruling it lacked subject matter jurisdiction; and (4) Commission’s notice to employee citing numerous types of disciplinary proceedings, each of which triggered different and potentially conflicting notice and appeals processes, was so vague as to deprive the employee of her procedural rights and was therefore not in accordance with law. In dictum, Court of Appeals also recommended modification of the Appellate Divisions instructions to the Commission on remand. Order of the Appellate Division affirmed in part and reversed in part and remanded for entry of a new order in accord with the opinion of the Court of Appeals.

Before: Christopher P. Williams, Chief Justice; Arthur Fisher, Justice; Lisa Atkinson, Justice.

7 NICS App. 51, DODGE v. HOOPA VALLEY GAMING COMM. (July 2005) p. 52

OPINION

I. INTRODUCTION

This matter comes before the Hoopa Valley Court of Appeals¹ pursuant to the Amended Notice of Appeal filed by Appellant Hoopa Valley Gaming Commission on November 29, 2004. The Gaming Commission appeals the Order and Decision of the Hoopa Valley Tribal Court entered on February 11, 2004. In that Order, the Tribal Court 1) reversed a decision of the Gaming Commission in which the Gaming Commission permanently revoked Appellee Dodge’s gaming license and 2) remanded the matter to the Gaming Commission for further proceedings in accordance with specific directives contained in the Tribal Court’s Order.

The Court of Appeals received and reviewed Appellant’s Opening Brief. Ms. Dodge did not avail herself of the opportunity to file a responsive brief or file any other pleadings with this Court. The Court granted Ms. Dodge’s attorney permission to withdraw his representation shortly after the Court accepted the Amended Notice of Appeal. Because the law disfavors default judgments,² and because both parties had presented their arguments on appeal to the Tribal Court acting in its appellate capacity, this Court decided to proceed to the merits based on the record and arguments before the Tribal Court in addition to Appellant’s Opening Brief before this Court. This Court did not hear Oral argument directly from the parties.³

An appellate court may affirm the judgment or order of a lower court on any ground supported by the record, even if the lower court did not rely on those grounds. Rupp v. Omaha Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995), Monterey Dev. v. Lawyer's Title Ins., 4 F.3d 605, 608 (8th Cir.1993).⁴ For the reasons set forth below, although the Court of Appeals does not agree with all of the Tribal Court’s holdings or the Tribal Court’s directives regarding the procedures

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to be applied upon remand, this court affirms the result reached by the Tribal Court, which is that the decision of the Gaming Commission should be reversed and remanded for further proceedings.

Appellee Kimberlee K. Dodge was an employee of the Lucky Bear Casino, owned and operated by the Hoopa Valley Tribe. In that capacity she was the holder of a gaming license, entitling her to engage in such employment. A detailed set of rules, regulations and procedures is in place to govern the issuance, suspension and revocation of gaming licenses. Those rules, regulations and procedures are addressed and discussed below.

On May 1, 2002, the Hoopa Valley Gaming Commission issued a letter to Ms. Dodge advising her of the “immediate summary suspension” of her gaming license “with the intent to deny a two-year ‘permanent’ gaming license effective immediately.”⁵ The letter noted that the rules governing summary suspensions require the Commission to provide the licensee a description of the appeal process where it is the Commission’s intent to revoke a license. The letter advised Ms. Dodge that her appeal rights “are identified in the Hoopa Valley Tribal Gaming Commission Regulation Licensing Rules and Procedures,” a copy of which were attached to the letter.

Ms. Dodge, taking guidance from the differing provisions of the Tribal Code and Gaming Regulations, filed two appeals. The first appeal was filed on May 9, 2002 with the Gaming Commission Compliance Officer. On May 20, 2002, Ms. Dodge filed a “companion” action for redress from the same agency action in Tribal Court. Both Appeals were deemed timely and were received and accepted as valid.

On June 11, 2002, the Gaming Commission held a hearing at which Ms. Dodge appeared but refused to present evidence or argument on her own behalf. ⁶ Ms. Dodge’s refusal to defend herself before the Commission appears to have been based on her belief that the Tribal Court had assumed jurisdiction over her appeal. On June 20, 2002, the Gaming Commission issued a “Final Decision of Summarily Suspended License” in which it “ruled a Permanent Revocation” of Ms. Dodge’s gaming license.

The Tribal Court proceeded to hear Ms. Dodge’s appeal based on her May 20, 2002 Notice of Appeal. In its Decision and Order entered on February 11, 2004, the Tribal Court

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noted that the Commission’s Regulations as well as the governing ordinance were “vague” and “ambiguous” regarding the appropriate procedures for appeals and hearings before the Commission. The Court found the May 1, 2002 notice of Ms. Dodge’s summary suspension to be ambiguous and inadequate in regards to notification of the appropriate process. The Court held that the ambiguity prejudiced Dodge and denied her due process. The Court also ruled that it lacked jurisdiction to hear Dodge’s appeal, but that the Commission also lacked jurisdiction to proceed while the matter had been pending before the Tribal Court. Based on these grounds, the Court reversed the decision and remanded the matter to the Commission with direction to the Commission to schedule and notice a new hearing on Dodge’s summary suspension. The Commission then brought this appeal.

The Hoopa Valley Tribal Code does not specify the standard of review for trial court decisions. Title 2 HVTC § 2.1.01 provides that Federal Rules of Civil Procedure and relevant cases may be cited as persuasive authority where the federal rules are analogous to Hoopa Rules of Court and we look to federal law for guidance where the tribal code is silent. Hoopa Valley Housing Authority v. Doolittle, Case No. C-03-068/A-04-009 (Hoopa Valley Tribal Ct. App. 2005). “For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U. S. 552, 558, 108 S. Ct. 2541, 2546 (1988); accord Bugenig v. Hoopa Valley Tribe, 5 NICS App. 37, 37 – 38 (Hoopa Valley Tribal Ct. App. 1998).

In this case, the Tribal Court, and this Court in turn, are also called upon to review actions of the Gaming Commission, an administrative agency of the Tribe. Before both the trial court and this Court, the Gaming Commission has cited Hoopa Valley Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa Valley Tribal Ct. App. 1993) for the proposition that the decision of the Commission shall be upheld unless the decision is “arbitrary, capricious, or not in accordance with law.” Appellee has raised no objection to utilizing the “arbitrary, capricious, or not in accordance with law” standard of review.

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law” is widely accepted as the proper standard of review for administrative agency action,⁸ we adopt it as the standard of review for orders and decisions of the Hoopa Valley Gaming Commission.

IV. JURISDICTION

This Court has jurisdiction to hear appeals from final judgments and orders of the Hoopa Valley Tribal Court. Title 1 HVTC § 1.4.01; Title 2 HVTC § 2.6. Whether or not the Tribal Court had jurisdiction to hear this dispute is the key issue we must decide on appeal.

We agree with Appellant that jurisdiction is a matter of law which we review de novo.

There is no dispute that the Tribal Court had personal jurisdiction over the parties because Appellee is a member of the Hoopa Valley Indian Tribe and resides within the exterior boundaries of the Hoopa Valley Indian Reservation and Appellant is a Tribal entity. Title 1 HVTC §1.1.04(b). The Tribal Court also had territorial jurisdiction because the events giving rise to the suit occurred on the reservation.

At the Tribal Court, the Gaming Commission argued that the Tribal Court did not have subject matter jurisdiction because, the Commission argued, there is no right to a direct appeal of a summary suspension to the Tribal Court and the Hoopa Valley Tribal Gaming Ordinance § 31.30 “does not apply to the facts of this case.” Respondent’s Opening Brief before the Hoopa Valley Tribal Court, pp. 5 – 7. The Gaming Commission argued that Ms. Dodge had filed her appeal prematurely and failed to exhaust her administrative remedies. Id. In her reply brief before the Tribal Court, Ms. Dodge conceded⁹ that she had filed her appeal prematurely, but argued that the Tribal Court should hold the Gaming Commission equitably estopped from challenging the timeliness of her appeal because the Gaming Commission had failed to mail its Notice to Dismiss based on timeliness to Ms. Dodge’s actual mailing address even though the Gaming Commission knew her correct address. Appellant’s Reply Brief before the Hoopa Valley Tribal Court, pp. 1 – 5.

On appeal to this Court, the Gaming Commission did a complete reversal on the issue of jurisdiction, arguing that “[i]t is clear from the facts of the case, both parties’ pleadings, and the general rules and policy about premature notice of appeals that the [Tribal] Court had subject

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matter jurisdiction to hear the case.” Appellant’s Opening Brief, p. 15. The Gaming Commission argues that “[i]t was error on the Hoopa Valley Tribal Court to remand this matter to the [Hoopa Valley Gaming Commission] based on a lack of jurisdiction or failure to exhaust administrative remedies when the facts of the case clearly show jurisdiction vested and administrative remedies had been exhausted at the time the Hoopa Valley Tribal Court heard this matter.” Id., at 9.

The Tribal Court itself opined that Ms. Dodge filed a “timely notice of appeal” with the Tribal Court (Order and Decision at 2), but then ruled that “it [the Tribal Court] does not have subject matter jurisdiction to hear Ms. Dodge’s appeal of her summary suspension of her gaming license because she did not exhaust her administrative remedies.” (Order and Decision at 3.)

This Court holds that the Tribal Court erred when it concluded that it did not have subject matter jurisdiction to hear Ms. Dodge’s appeal of her summary suspension. However, this Court does not agree with the reasoning or result argued by the Gaming Commission.

This Court has previously held that deadlines in Hoopa Valley Tribal ordinances are jurisdictional in nature. Tribal Education Department v. Nixon, 4 NICS App. 171, 173 (Hoopa Valley Tribal Ct. App. 1997) (“The timeliness of filing of the [the] appeal concerns the jurisdiction of the Court to hear the matter …”). It is a fundamental principal of administrative law that where a regulation appears to conflict with the ordinance the regulation purports to implement, the ordinance must be given full effect and the conflicting regulatory provisions either harmonized or disregarded.

Although Ms. Dodge misstated the basis for Tribal Court jurisdiction in a number of pleadings, her Opening Brief before the Tribal Court correctly identified Title 31 HVTC § 31.30 as the basis for Tribal Court jurisdiction over her appeal of her summary suspension. HVTC § 31.30 reads in its entirety:

Right of Appeal; Appeals Procedure. A Person directly affected by any finding of the Commission pursuant to Section 31.29 of this Code, or any licensing decision of the Commission under this Code, shall have the right to appeal such finding to the Tribal Court. Any such appeal must be filed with the Tribal Court in writing on or before the tenth (10th) day following receipt by such affected Person of the written finding of the Commission.

Title 31 HVTC § 31.30 (emphases added).

We make the following observations concerning HVTC § 31.30. First, it is a basic principal of statutory construction that all words in an ordinance must be given effect, unless the ordinance directs otherwise (such as a statement that titles shall have no effect on the meaning of a section but are only present as a reference, etc.). Thus, while read narrowly, § 31.30 only

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grants the right to appeal a “finding,” we conclude that the inclusion of “or any licensing decision of the Commission under this Code” and the context of the entire section expresses a clear legislative intent that § 31.30 grants a right to appeal “decisions” as well as “findings.” To rule otherwise would not give effect to the “any licensing decision” clause and would achieve the absurd result that findings but not decisions could be appealed.

Second, § 31.30 applies to “any licensing decision” of the Commission under the Gaming Ordinance. A summary suspension is clearly a “licensing decision” authorized under § 31.28.5(b) of the Gaming Ordinance.

Third, the Gaming Ordinance requires that an appeal of any licensing decision, including a summary suspension, be filed with the Tribal Court and within ten days following receipt of the decision. Because under Hoopa case law the ten-day appeal deadline is jurisdictional, a licensee who failed to file a notice of appeal within the ten-day period would risk forfeiting his/her appeal rights.¹⁰

Fourth, a summary suspension is a significant action that by definition requires no pre-deprivation notice or hearing. Neither the Hoopa Valley Gaming Ordinance nor the Hoopa Valley Gaming Regulations set forth any timetable or deadline for Commission action following the issuance of a summary suspension. Thus, absent the right to appeal to an independent arbiter such as the Tribal Court, a summarily suspended licensee could face the very real prospect of being denied access to his/her employment (and thus, income) for an indefinite period by a hostile or slow-moving Gaming Commission. Thus, the right to appeal a summary suspension under § 31.30 serves the legitimate and important function of providing for an appeal and hearing in a timely manner in the absence of any other timeline or deadline for Commission action.

The Gaming Commission argues before this Court that the Tribal Court had jurisdiction to hear this appeal not because Title 31 HVTC § 31.30 vested subject matter jurisdiction in the Tribal Court to hear an appeal of a summary suspension within ten days of the suspension, but rather because “subsequent events such as the issuing of the [Gaming Commission’s] final decision caused Dodge’s premature notice of appeal to ripen into a timely appeal in which jurisdiction vested.” Appellant’s Opening Brief at 9. In its Opening Brief before the Tribal Court, the Gaming Commission points to the Gaming Commission Regulation Licensing Rules and Procedures § XI.7¹¹ as support for its argument that the initial filing of Ms. Dodge’s Notice of Appeal was premature. Gaming Regulation § XI.7 states “It shall be incumbent upon the

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licensee to make their desire to appeal [a summary suspension] known to the [Gaming Commission] Compliance Officer in writing within fourteen (14) days of receipt of the Commission’s notice.”

We have already stated that a statutory appeal deadline is jurisdictional. Here, the governing ordinance establishes that an appeal must be filed with the Tribal Court within ten days. Gaming Regulation § XI.7 is not clearly jurisdictional - it can just as easily be read as a mere notice provision requiring a licensee who has appealed to the Tribal Court under Title 31 HVTC § 31.30 to notify the Compliance Officer of that appeal. To the degree that Gaming Regulation § XI.7 purports to be jurisdictional in nature, both the deadline and the forum are in conflict with Title 31 HVTC § 31.30 – the Ordinance that the Gaming Ordinance seeks to implement.

In sum, we do not believe it reasonable or logical to expect a litigant to ignore the ten day filing requirement of Title 31 HVTC § 31.30 in deference to the fourteen day notice requirement of Gaming Regulation § XI.7. For these reasons, we hold that jurisdiction vested in the Tribal Court upon Ms. Dodge’s timely filing of her Notice of Appeal of her summary suspension with that Court.¹²

V. DEFECTIVE NOTICE AND PROCEDURE

Procedural rights (commonly referred to as “due process”) can be created in a number of ways, including Constitutional provisions, statutory provisions, agency rules, and even employee manuals. The Court need not address potential Constitutional rights where we find that procedural rights created by statute or regulation have been violated. As the trial court noted, the Tribe's Gaming Ordinance (Title 31) and Gaming Regulations conferred upon Ms. Dodge certain procedural rights that appear to have been violated by the Gaming Commission.

There are significant differences between summary suspensions and non-summary suspensions and license revocations. Distinctly different rules govern each of these types of proceedings. A summary suspension, by definition, requires no advance notice to the licensee. The procedures for a summary suspension are set forth in § XI.7 of the Gaming Commission Regulations. Regulation XI.7 requires, at a minimum:

immediate written notification of the reason for the suspension

notification of the Commission’s intent

notification of the right to appeal

7 NICS App. 51, DODGE v. HOOPA VALLEY GAMING COMM. (July 2005) p. 59

notification and a description of the appropriate appeal process; and

an investigation by the Commission prior to license revocation.

We find it significant that, while § XI.7 requires the licensee to notify the Compliance officer of the licensee’s “desire to appeal,” § XI.7 does not specifically provide a right to a hearing before the Commission.

The procedures for non-summary suspensions and revocations are set forth in § XIII.2 of the Gaming Regulations. Regulation § XIII.2 requires, at a minimum:

written notification at least thirty days in advance of the proposed action;

notification of the right to a hearing;

notification of the right to representation and production of witnesses and evidence at the hearing;

notification that failure to appear for a scheduled hearing shall forfeit any further right to appeal; and

notification of the Commission’s decision within ten calendar days of conclusion of the hearing.¹³

Significantly, Regulation § XIII.2(d) specifically provides that any licensing hearing pursuant to § XIII shall be conducted before the Gaming Commission – a provision not included in Regulation § XI.7.¹⁴

service of a witness list no later than five days prior to the hearing (HVTC § 31.29.5(a));

service of a list of documentary evidence to be introduced during the hearing no later than five days prior to the hearing (HVTC § 31.29.5(b));

the hearing shall be held in executive session (HVTC § 31.29.5(g)); and

a transcript of the hearing prepared by a duly certified court reporter (HVTC § 31.29.6(e)(6)).

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Apart from these procedural requirements regarding summary suspension, suspension, revocation and hearings, the Gaming Regulations set forth an entirely separate procedure for initial applications for gaming licenses and applications for renewal of gaming licenses. These procedures, set forth in Regulations IV – VI and VIII – XIII, address such matters as application forms and documentation, fingerprinting, criminal history checks, background investigations, and review by the National Indian Gaming Commission.

We agree with the Tribal Court that the May 1, 2002 written notice the Commission provided to Ms. Dodge was so vague regarding the “appropriate process” as to deprive her of her procedural rights. The Commission’s May 1 notice makes reference to three entirely different types of proceeding: summary suspension of Dodge’s temporary license under Regulation XI.7; denial, suspension or revocation of her license under Regulation XIII; and denial of renewal of her license under Regulation XII, which in turn references the procedures for initial applications. As discussed above, Regulations XI, XII and XIII each set forth separate and distinct procedures that trigger separate and distinct appeal processes. Simply attaching a copy of the Regulations without specifying which of these three different processes the Commission intended to pursue, combined with the Commission’s failure to address the jurisdictional issues addressed in Section IV of this opinion, did not afford Ms. Dodge the notice of the appropriate process required by Regulation XI.7.

We note that the record indicates that the Commission itself does not seem to have been clear on the appropriate process. The Commission does not appear to have conducted an “investigation” as required by Regulation § XI.7. By providing notice of an initial hearing on May 28, 2002 via a letter dated May 16, 2002 following the initial notice dated May 1, 2002, the Commission did not provide the thirty days notice in advance of the proposed revocation/denial as required by Regulation § XIII.2(a).¹⁵ The Commission did not provide Ms. Dodge with a list of witnesses or evidence as required under HVTC 31.29.5.¹⁶ The minutes of the June 11, 2002 hearing do not indicate that the hearing was conducted in executive session or transcribed by a duly certified court reporter, both of which are required by the Gaming Ordinance. We do not recite these apparent procedural errors because we conclude that any of them on their own result in an impermissible deprivation of Ms. Dodge’s procedural rights. Rather, we recite these apparent procedural errors because they constitute evidence in the record that the Commission itself did not understand the proper procedures, which in turn reinforces our conclusion that the Commission’s May 1, 2002 notice did not provide Ms. Dodge adequate notice as to the appropriate process.

7 NICS App. 51, DODGE v. HOOPA VALLEY GAMING COMM. (July 2005) p. 61

The confusion in this case can largely be attributed to two glaring defects in the Gaming Ordinance and Regulations. First, the Gaming Regulations suggest that the Gaming Commission can use a single letter to notify a licensee of both a summary suspension and the Commission’s intent to deny a permanent license, but the Regulations do not address which procedures should apply when the Commission pursues multiple actions with different procedural requirements. Second, the Gaming Ordinance vests jurisdiction over appeals of summary suspensions with the Tribal Court, but the Ordinance and the Regulations do not address the proper procedure to apply to the denial/revocation proceedings or whether such proceedings can even continue to be pursued once the Court has assumed jurisdiction over a summary suspension.¹⁷

Title I HVTC § 1.1.07(b) (emphasis added). Here, although we reverse the Tribal Court’s holding regarding jurisdiction and note that the Tribal Court did not formally adopt or give notice of a rule per se, we regard the Tribal Court’s Order remanding the proceedings to the Gaming Commission as a valid order under HVTC § 1.1.07(b) designed to accomplish substantial justice where the Gaming Ordinance and Regulations do not expressly address the issue of parallel proceedings for summary suspension and denial/revocation. In essence, the Tribal Court has opted to stay its own proceedings on the summary suspension and allow the Gaming Commission the opportunity to cure the defects in its notice and procedures as applied to Ms. Dodge. We believe this is a just result.

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arguments that would be presented at a hearing on the summary suspension would therefore be virtually identical to the evidence and argument that would be presented at a hearing on the permanent revocation/denial of a permanent license for Ms. Dodge. It therefore would not appear to be in the best interests of Ms. Dodge or the Commission to require separate, sequential hearings on the summary suspension and the revocation/denial of the permanent license. We believe a better procedure, in light of the failure of the Gaming Ordinance and Regulations to address this situation, would be to direct the Commission to issue a new notice to Ms. Dodge within a fixed timeframe and require that notice to indicate exactly what licensing action(s) is (are) being implemented or proposed and specify within the notice itself the procedures the Commission will employ to meet the requirements of the Gaming Ordinance and Regulations.¹⁸

We hold that the Tribal Court has subject matter jurisdiction over Ms. Dodge’s appeal of her summary suspension. We hold that the Tribal Court was correct in ruling that the notice provided to Ms. Dodge by the Gaming Commission deprived her of her procedural rights under the Gaming Ordinance and Regulations because the notice was ambiguous and failed to provide adequate notification with regard to the appropriate process. Because we hold that the Tribal Court did in fact have jurisdiction over this matter, we construe the Court’s January 21, 2004 Order and Decision as a decision to stay its own proceedings in favor of allowing the Gaming Commission to conduct an evidentiary hearing on the merits. Because we agree with the Tribal Court’s decision to reverse the decision of the Gaming Commission and remand for further proceedings, but disagree with the Tribal Court’s ruling on jurisdiction, we remand this matter to the Tribal Court for entry of a new Order in accord with this Opinion.

Ms. Dodge received notice of her summary suspension on May 1, 2002. She was advised in the notice that her appellate rights were identified in the Hoopa Valley Gaming Commission rules and regulations. Summary suspensions are temporary orders pending permanent revocation. Ms. Dodge received her notice of permanent suspension of her license on May 9, 2002, for the June 11 hearing. At no time did Ms. Dodge request or did the court issue an order

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staying the administrative process when Ms. Dodge appealed the temporary license suspension. The tribal court ruled

“accordingly this court holds that it does not have subject matter to hear Ms. Dodge’s appeal of the summary suspension of her gaming license because she did not exhaust her administrative remedies. The court also holds that during the pendency of appeal, the commission was without jurisdiction to proceed in this matter. It was in error for the commission to proceed on the hearing on June 1, 2002. It was in error for the commission to issue a decision of holding a summary suspension of Ms. Dodge’s gaming license. It was in error to issue a permanent revocation of her gaming license on June 20, 2002.”

On June 11, 2002, Ms. Dodge, while being represented by counsel, deliberately chose not to participate in the hearing regarding permanent revocation of her gaming license. As a result, Ms. Dodge decided not to preserve a record for her appeal. What her attorney advised her or did not advise her is irrelevant. She was represented by presumably competent counsel. For whatever reason, Ms. Dodge made a formed decision not to pursue her right to preserve her records.

When Ms. Dodge first appealed, after the temporary suspension of her license, the Hoopa Valley Tribal Court had jurisdiction over issues for the gaming commission at that time, to wit: whether the temporary suspension was warranted.

However, Ms Dodge then appealed the final decision of the gaming commission prior to the gaming commission’s final decision. This act was a nullity with no legal force and effect whatsoever. Thereafter when the gaming commission ruled on a permanent suspension of Ms. Dodge’s license (June 11), and she chose not to participate, she did so at her peril. The appeal of the final order of the gaming commission became final when Ms. Dodge failed to perfect an appeal after the final gaming commissions order. Failing to perfect her appeal resulted in the loss of jurisdiction with the trial court. Thus the tribal court had no jurisdiction to hear or even remand the matter. The appeal of the temporary ruling is now moot as a final ruling had been issued by the gaming commission.

Appellant relied on Cato v. Fresno City, 220 F.d 1073 (Cir 2000) on the premise that a premature filing of appeal can invoke jurisdiction even though filed prematurely when subsequent events may validate the prematurely filed appeal. But in this case, there was no subsequent event. Ms. Dodge effectively withdrew from litigation and did not participate or put on any evidence to preserve her appeal. I encourage the learned majority to disregard what vague inconsequential ambiguities exist in the code or tribal ordinances and to rely on the sound of well-established principle that administrative remedies must be exhausted prior to appealing to any court. It is the uniformly adopted principle of law and Ms. Dodge chose to ignore this well-established and historical principal.

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Our court should not ignore the public policy provisions to preserve licensing with the Tribal Gaming Council. The public policy is in fact stated in 31.4.1(A).

In short the Tribal Council relocated to the gaming commission the important task of regulating gaming. It is under this direction that Ms. Dodge should have addressed her concerns and appealed thereafter after exhausting her administrative remedies with this important administrative body to the tribal court. Premature appeal of this matter undermines the integrity and competence of this important administrative body. Disregard of the body jeopardized the very important function assigned to the agency that developed expertise in gaming matters; to old otherwise may open the floodgate of unrecorded, multi-level hearings.

The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

Various pleadings of the parties have been directed to the “Hoopa Valley Tribal Supreme Court.” A complete reading of the version of Title 1, §1.4.01(b) of the Hoopa Valley Judiciary Code that was in effect at the time this appeal was filed indicates that this Court was to be designated as the “Hoopa Tribal Supreme Court” only when reviewing appeals of the TERO Commission. When reviewing any other appeal, including appeals where the Tribal Court has acted in an appellate capacity and designated itself as the “Hoopa Valley Tribal Court, Appellate Division,” this Court is still properly designated as the Hoopa Valley Court of Appeals.

See, e.g., Griggs v. Averbeck Realty, 92 Wn.2d 576, 581, 599 P.2d 1289 (1979) and cases cited therein.

Title 3 HVTC Rule 63 requires the appellate court to convene “to hear the case on appeal.”

The opportunity to be heard may include, but does not require, the right to present oral argument. …. It is well within the discretion of the court to determine whether it will hear oral argument in a pending matter.

In the Matter of Robertson, 4 NICS App. 111, 114 (Hoopa Tribal Ct. App. 1996) (emphasis in original). Here, both parties were afforded the opportunity to submit appellate briefs directly to the Court of Appeals, and the Court also reviewed the appellate briefs and transcript of oral argument before the Tribal Court. Thus, both parties have been afforded the right to be heard in full compliance with the Hoopa Valley Code and court precedent.

The Hoopa Valley Tribal Rules of Court allow Federal Rules of Civil Procedure and Federal case law to be cited as persuasive authority regarding the interpretation of Hoopa Court procedures. See, e.g., Title 2 HVTC §2.1.01; Title 3 HVTC Rule 9; Title 3 HVTC generally.

It is not clear from the record whether Ms. Dodge held a temporary gaming license or if regular gaming licenses needed to be renewed on a periodic basis. In any event, the record indicates that Ms. Dodge had an application for a permanent gaming license pending before the Commission at the time the Commission issued its summary suspension of the license she had been working under.

It is not clear from the record if the June 11, 2002 was intended to be the evidentiary hearing on the Commission’s intent to deny Dodge a permanent license or an appeal hearing on Dodge’s appeal of her summary suspension.

Reference to the “arbitrary, capricious or not in accordance with law” standard of review appears to have been deleted from the TERO ordinance in 1995 and no alternative standard of review was adopted. On April 11, 2005, the TERO ordinance was again amended so as to remove jurisdiction over future employee grievances from the TERO Commission.

See, e.g., Friends of the Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir.1986) (Under the Federal Administrative Procedures Act, 5 U.S.C. § 706(2)(A), an agency action must be upheld unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"); California Assn. of Psychology Providers v. Rank, 51 Cal.3d 1, 11, 270 Cal.Rptr. 796, 793, (1990) (judicial review of administrative agency action is generally limited to whether the action was “arbitrary, capricious, or entirely lacking in evidentiary support”); Revised Code of Washington 34.05.570 (A court shall grant relief from an agency order if the order is “arbitrary or capricious” or the agency has engaged in “unlawful procedure.”)

Mistakenly, according to our holding herein.

The record and the Tribal Court’s Order and Decision indicate that Ms. Dodge received notice of the Commission’s decision on May 9, 2002 and filed her Notice of Appeal with the Tribal Court on May 20, 2002. Because May 19, 2002, the tenth day following receipt, was a Sunday, the Tribal Court correctly held that Ms. Dodge’s Notice of Appeal was timely filed.

For the sake of brevity, hereinafter each Gaming Commission Regulation Licensing Rules and Procedures Section referenced will simply be referred to as “Gaming Regulation § #.”

Although Title 31 HVTC § 31.30 suggests the right to appeal “any licensing decision” to the Tribal Court, we specifically limit our holding today to the conclusion that a summary suspension may be appealed directly to the Tribal Court. We do not reach the question of whether other types of licensing decisions may be appealed directly to the Tribal Court.

We note that the ten day notification requirement of Regulation XIII.2(f) is at odds with the requirement of Regulation XI.5(d) that a ruling be made within three days of the conclusion of the hearing and the licensee notified within three days of the ruling.

Because Regulation § XIII.2(d) specifically states that § XIII hearings shall be conducted before the Gaming Commission, we acknowledge that the arguments espoused by the Gaming Commission and the dissenting Justice regarding exhaustion of administrative remedies may well apply to § XIII proceedings, but that question is not before us today.

The Gaming Commission argued in its Opening Brief before the Tribal Court the May 16 letter was not an initial notice, but “a response to [Ms. Dodge] initiating an appeal hearing.” Respondent’s Opening Brief at 10. If the May 28 hearing, which was continued to June 11, 2002, was an appeal hearing on the summary suspension, then it would appear that Ms. Dodge has yet to be afforded an evidentiary hearing on the denial/revocation of her license.

The Gaming Commission argues that Ms. Dodge should have asked for these lists. However, the Regulations do not require the licensee to request the witnesses and evidence against them – the Regulations clearly mandate that the Commission is to provide them prior to the hearing regardless of whether or not the licensee requests them.

We can easily foresee additional expensive and time-consuming future litigation involving other licensees if these gaps in the Gaming Ordinance and Regulations are not addressed by the Commission and Tribal Council.

For example, if the Commission continues to intend to permanently revoke Ms. Dodge’s license, the notice should explain how the Commission intends to satisfy the requirements discussed above concerning a formal investigation, discovery, timing, etc.