Stop the Casino 101 Coalition v. Kenneth Salazar , 384 F. App'x 546 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STOP THE CASINO 101 COALITION; No. 09-16294
ROBERT AHERNE; AMY BOYD; LISA
CATELANI; MICHAEL ERICKSON; D.C. No. 3:08-cv-02846-SI
MICHAEL T. HEALY; LINDA LONG;
LISA MCELROY; PAM MILLER;
MARILEE MONTGOMERY; JAMIE MEMORANDUM *
WALLACE; CHIP WORTHINGTON;
LINDA WORTHINGTON,
Plaintiffs - Appellants,
v.
KENNETH SALAZAR, Secretary of the
U.S. Department of the Interior; CARL J.
ARTMAN, Assistant Secretary of the U.S.
Department of the Interior for Indian
Affairs; UNITED STATES
DEPARTMENT OF THE INTERIOR;
JERRY GIDNER, Director, Bureau of
Indian Affairs, U.S. Department of the
Interior; DALE MORRIS, Pacific
Regional Director, Bureau of Indian
Affairs, U.S. Department of the Interior;
UNITED STATES BUREAU OF INDIAN
AFFAIRS,
Defendants - Appellees,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and
FEDERATED INDIANS OF GRATON
RANCHERIA,
Intervenor - Appellee.,
STOP THE CASINO 101 COALITION; No. 09-16297
ROBERT AHERNE; AMY BOYD; LISA
CATELANI; MICHAEL ERICKSON; D.C. No. 3:08-cv-02846-SI
MICHAEL T. HEALY; LINDA LONG;
LISA MCELROY; PAM MILLER;
MARILEE MONTGOMERY; JAMIE
WALLACE; CHIP WORTHINGTON;
LINDA WORTHINGTON; FRANK
EGGER; FRED SOARES,
Plaintiffs - Appellants,
v.
KENNETH SALAZAR, Secretary of the
U.S. Department of the Interior; CARL J.
ARTMAN, Assistant Secretary of the U.S.
Department of the Interior for Indian
Affairs; UNITED STATES
DEPARTMENT OF THE INTERIOR;
JERRY GIDNER, Director, Bureau of
Indian Affairs, U.S. Department of the
Interior; DALE MORRIS, Pacific
Regional Director, Bureau of Indian
Affairs, U.S. Department of the Interior;
UNITED STATES BUREAU OF INDIAN
AFFAIRS,
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Defendants - Appellees,
and
FEDERATED INDIANS OF GRATON
RANCHERIA,
Intervenor - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted April 15, 2010
San Francisco, California
Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.
Stop the Casino 101 Coalition (“STOP”), an unincorporated association, and
individual members of the association, filed suit against the Secretary of the
Interior (“Secretary”) and other government officials challenging the Secretary’s
final determination to take certain land (“Property”) into trust on behalf of the
Federate Indians of Graton Rancheria (“Tribe”) pursuant to the Graton Rancheria
Restoration Act. The District Court dismissed the case for lack of standing. We
affirm. We review de novo a district court’s determination that a party lacks
standing, though we review the underlying factual determinations for clear error.
Preminger v. Peake, 552 F.3d 757, 762 n.3 (9th Cir. 2008). Because the parties are
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familiar with the factual and procedural history of the case, we need not recount it
here.
“The party invoking federal jurisdiction bears the burden of establishing” the
three elements of constitutional standing. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61. As the Supreme Court noted:
First, the plaintiff must have suffered an injury in fact—an invasion of
a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the conduct
complained of—the injury has to be fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court. Third, it
must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Id. (internal quotation marks, footnote, and citations omitted) (alterations and
omissions in original). “At the pleading stage,” as in this case, “general factual
allegations of injury resulting from the defendant’s conduct may suffice.” Id. at
561.
STOP’s complaint alleges a variety of potential economic, environmental,
and quality of life injuries, all of which, it claims, will come to pass only if the
Tribe builds a casino on the Property. Injuries related to the possible building of a
casino are hypothetical and not fairly traceable to an agency action that
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affirmatively declined to determine whether or not a casino could be built on the
Property.
STOP’s complaint also alleges that it will be injured by loss of protection of
state law—state law that would prevent the Tribe from building a casino that may
cause STOP economic, environmental, and quality of life injuries. Loss of
protection of state law is not a concrete injury in and of itself. Rather, an injury in
fact must result from the loss of protection of state law. Here, the resultant injuries
are all hypothetical, related to the possible building of a casino in the future.
Even if we assume that a private citizen could have standing to bring an
action based on de facto cancellation of Williamson Act contracts, which may be
rendered unenforceable by the acquisition, STOP would still be required to allege
concrete injury resulting from the cancellation. See California Land Conservation
Act of 1965 (“Williamson Act”), Cal. Gov’t Code §§ 51200–51297.4. Not only
are the possible economic, environmental, and quality of life injuries alleged in the
complaint insufficiently traceable to the acquisition, their connection to the alleged
cancellation of the Williamson Act contracts is even more tangential, since the
portion of the land where the Tribe has proposed building a casino is not subject to
any Williamson Act contracts.
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The remainder of STOP’s appellate arguments are unavailing. STOP did not
plead current depreciation of property value. STOP is not currently asserting a
procedural right in court that should have been afforded it by the Secretary during
the acquisition process, but rather is alleging (at most) that it will lose the
opportunity to assert rights in the future. This lost opportunity injury is not a
procedural injury in the technical sense and does not confer standing. We also
remind STOP that it is the settled law of this circuit that only states have standing
to bring Tenth Amendment claims. See Oregon v. Legal Servs. Corp., 552 F.3d
965, 972 (9th Cir. 2009).1
AFFIRMED.
1
The unopposed motion of the Cities of Petaluma, Sebastopol, and
Cloverdale for leave to file an amicus brief is GRANTED.
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