The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
AMENDED MEMORANDUM & ORDER
This matter is before the court on defendants State of California, California Gambling Control Commission (the "Commission" or "CGCC"), and Governor Arnold Schwarzenegger's (collectively, the "defendants") motion to stay execution of final judgment entered on August 19, 2009. Plaintiff Cachil Dehe Band of Wintun Indians of the Colusa Indian Community ("Colusa") and plaintiff-intervenor Picayune Rancheria of the Chukchansi Indians' ("Picayune") (collectively, "plaintiffs") oppose the motions. For the reasons set forth herein,*fn1 defendants' motion is DENIED.
Through this litigation, plaintiff Colusa, an American Indian Tribe, and plaintiff-intervenor Picayune, also a federally recognized Indian tribe, challenged interpretation of various terms in their Class III Gaming Compacts (the "Compacts" or "Compact") entered into with the State of California (the "State") in 1999. 55 other tribes (the "Compact Tribes") executed virtually identical compacts with the State around the same time. At their core, these compacts authorize Class III gaming pursuant to certain restrictions. However, plaintiffs contended that defendants' interpretation of the Compact impermissibly limited the amount of licenses available to the Compact tribes. Colusa also challenged defendants' interpretation of other provisions of the Compact that it argued impermissibly limited its gaming opportunities.
On April 22, 2009, the court issued its Memorandum and Order (the "April 22 Order"). The court granted Colusa's motion for summary judgment with respect to its claims regarding (1) Colusa's priority in the draw process; and (2) the number of gaming devices authorized by the Compact. The court also granted Picayune's motion for summary judgment in its sole claim regarding the number of gaming devices authorized by the Compact. The court granted defendants' motions regarding (1) defendants' retention of license fees; (2) the Commission's authority to administer the draw process; (3) defendants' refusal to schedule and conduct a round of draws; and (4) defendants' counting of multi-station games as equal to the number of their terminals.
On June 19, 2009, defendants filed a motion for reconsideration of the court's ruling on the size of the statewide gaming device license pool. The court denied the motion on August 11, 2009 (the "August 11 Order").
Plaintiffs filed motions for entry of final judgment. The court also granted San Pasqual Band of Mission Indians, a federally recognized Indian tribe that has brought very similar claims against defendants in the Southern District of California, requested leave to file an amicus brief in support of entry of final judgment. On August 19, 2009, the court entered final judgment on all six of the claims resolved by the April 22 Order. The court ordered defendants to schedule and conduct a draw of all available gaming device licenses, in accordance with the court's April 22 Order, and in which all eligible Compact Tribes may participate, within forty five (45) days of the entry of judgment. On September 1, 2009, defendants filed the instant motion to stay the judgment pending appeal.
A stay of a judgment pending appeal is "'an exercise of judicial discretion,' and 'the propriety of its issue is dependent upon the circumstances of the particular case.'" Nken v. Holder, 129 S.Ct. 1749, 1760-61 (2009) (quoting Virginian R. Co. v. United States, 272 U.S. 658, 672-73 (1926)); see Hilton v. Braunskill, 481 U.S. 770, 777 (1987) ("[T]he traditional stay factors contemplate individualized judgments in each case."). The court considers four factors in determining whether to grant a stay pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Nken, 129 S.Ct. at 1761 (quoting Hilton, 481 U.S. at 776). The Supreme Court has noted that these factors are substantially similar to those governing the issuance of a preliminary injunction and that such overlap exists "because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined." Id. (citing Winter v. Natural Res. Def. Council, 129 S. Ct 365, 376-77 (2008)).
The first two factors are the most critical. Id. The applicant must show that the likelihood of success on the merits is "better than negligible." Id. The applicant must also show that irreparable injury is likely; mere "possibility" is insufficient. Id. (citing Winter, 129 S.Ct. at 375.)*fn3
However, "[a] stay is not a matter of right, even if irreparable injury might otherwise result." Virginian R. Co., 272 U.S. at 672. "The party requesting a stay bears the burden of showing that the circumstances justify an ...