NIGC Publishes Proposed Rule Amending Regulations on Appeals to the Commission

To
Indian Gaming Association Members
From

Ernie Stevens, Jr., Chairman
Jason Giles, Executive Director

re
NIGC Publishes Proposed Rule Amending Regulations on Appeals to the Commission
Date
August 11th, 2022

On August 10, 2022, the National Indian Gaming Commission (“NIGC”) published a proposed rule in the Federal Register that would amend the NIGC’s regulations governing appeals made to the NIGC. When a party is appealing a final decision of the NIGC or the Chair that adversely effects their interests, it may either appeal such decision to a presiding officer under Part 584, or it may appeal the decision solely on the basis of written submissions to the NIGC under Part 585. This proposed rule seeks to provide processes for motion practice and seeking a settlement agreement in these types of appeals submitted to the NIGC. This proposed rule was a subject of the NIGC’s Tribal Consultation Series B held between September 13 to November 1, 2021.

First, this proposed rule, if promulgated, would amend 25 C.F.R. § 585.5 (a) to only allow certain motions in the context of appeals to the NIGC. Specifically, only motions for extension of time, motions to supplement the record, motions to intervene, and motions for reconsideration would be permitted; and the NIGC would no longer have the discretion to consider any other motions proffered by an appealing party.

The proposed rule would also create a new section at 25 C.F.R. § 585.8 setting forth the process for pursuing a settlement in an appeal on written submissions to the NIGC. Said process would allow parties to jointly move to stay an appellate proceeding for a reasonable time to permit negotiation of a settlement or an agreement disposing of the whole or any part of the proceeding. Any such settlement would have to include mandatory provisions waiving any further proceedings before the NIGC regarding the specific matters settled under the agreement, and that the settlement agreement would constitute dismissal of the appeal and a final agency action.

Comments to this proposed rule must be submitted no later than September 9, 2022. This proposed rule, as published in the Federal Register, may be found here: https://www.federalregister.gov/documents/2022/08/10/2022-16976/appeals-to-the-commission.

Please contact Danielle Her Many Horses at dhermanyhorses@indiangaming.org with any questions or concerns regarding this alert.