Amador County, California v. Kempthorne ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
AMADOR COUNTY, CALIFORNIA )
)
Plaintiff, )
)
v. ) Civil Action No. 05-658 (RWR)
)
KENNETH L. SALAZAR, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Amador County, California brought this action
against the Secretary of the Department of the Interior1 (“DOI”),
the Assistant Secretary for Indian Affairs, and the DOI
(collectively “defendants”) alleging that the Secretary’s
approval of a gaming compact amendment entered into between the
Buena Vista Rancheria of the Me-Wuk Indians and the state of
California was an arbitrary and capricious decision in violation
of the Administrative Procedure Act (“APA”) because the amendment
violated the Indian Gaming Regulatory Act (“IGRA”). The
defendants moved to dismiss the complaint, arguing in part that
the plaintiff had failed to state a claim for relief because,
under the IGRA, the Secretary’s approval of the amended compact
is valid only to the extent that it is lawful. The defendants’
motion was granted, and Amador County now moves for
1
Kenneth L. Salazar is substituted as a defendant under
Federal Rule of Civil Procedure 25(d).
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reconsideration of the dismissal under Federal Rule of Civil
Procedure 59(e). Because Amador County has shown neither that
the decision granting the defendants’ motion to dismiss was clear
error nor that denying its motion for consideration will result
in manifest injustice, the motion will be denied.
BACKGROUND
The background of this case is set forth in detail in Amador
County, Cal. v. Kempthorne, 592 F. Supp. 2d 101, 103-04 (D.D.C.
2009) (“January 8th opinion”). In brief, under the IGRA, the
Secretary is authorized to approve or disapprove any Tribal-State
compact entered into between an Indian tribe and a State
governing gaming on tribal land. 25 U.S.C. §§ 2710(d)(8)(A),
(B). If the Secretary does not approve or disapprove a compact
“before the date that is 45 days after the date on which the
compact is submitted to the Secretary for approval, the compact
shall be considered to have been approved by the Secretary, but
only to the extent the compact is consistent with the provisions
of [IGRA].” 25 U.S.C. § 2710(d)(8)(C).
Here, the Secretary approved by inaction the amended
compact. Amador County brought this action against the
defendants alleging that the Secretary’s approval by inaction was
an arbitrary and capricious decision in violation of the APA
because the amendment authorized gaming in violation of the IGRA.
The defendants moved to dismiss the complaint, alleging that
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Amador County lacked standing to challenge the Secretary’s
approval of the compact amendment; that Amador County failed to
state a claim entitling it to relief because the Secretary’s
choice of whether to approve, disapprove, or take no action on a
gaming compact is committed to the Secretary’s discretion; and
that the Secretary’s approval by inaction of a gaming compact is
valid only to the extent that the compact is lawful. The January
8th opinion granting the defendants’ motion found that while
Amador County had standing to bring its claim, it nonetheless
failed to state a claim for relief because the Secretary’s
decision to take no action on the amended compact is unreviewable
under the APA and the Secretary’s approval under § 2710(d)(8)(C)
was lawful by the express terms of the IGRA. Amador County moves
under Rule 59(e) for reconsideration, arguing that the IGRA does
not preclude judicial review of the Secretary’s choice to take no
action on the amended compact, and that unless its motion is
granted manifest injustice will occur because it has no other
recourse to challenge the allegedly unlawful amended compact.
DISCUSSION
“‘While the court has considerable discretion in ruling on a
Rule 59(e) motion, the reconsideration and amendment of a
previous order is an unusual measure.’” City of Moundridge v.
Exxon Mobil Corp., 244 F.R.D. 10, 11-12 (D.D.C. 2007) (quoting
El-Shifa Pharm. Indus. Co. v. United States, Civil Action No. 01-
-4-
731 (RWR), 2007 WL 950082, at *1 (D.D.C. Mar. 28, 2007) (internal
citations omitted)). “A motion to alter the judgment need not be
granted unless there is an intervening change of controlling law,
new evidence becomes available, or there is a need to correct a
clear error or prevent manifest injustice.” Id. at 12 (citing
Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006)).
Amador County first argues that the Secretary’s decision to
approve a gaming compact by inaction is a final agency action
subject to judicial review under the APA. While final agency
action “marks the consummation of the agency’s decisionmaking
process . . . [and] is also an action from which legal
consequences will flow,” Bennett v. Spear, 520 U.S. 154, 156
(1997) (internal citation and quotation marks omitted), agency
action is “committed to agency discretion when there is a lack of
judicially manageable standards to guide meaningful review.”
Menkes v. Dep’t of Homeland Sec., 486 F.3d 1307, 1311 (D.C. Cir.
2007) (citing Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C. Cir.
2003)). Amador County argues that “[b]oth IGRA itself and its
legislative history, as well as Interior’s interpretation of the
law, provide sufficient statutory guidelines by which to judge
the Secretary’s action.” (Pl.’s Mem. of P. & A. in Supp. of
Pl.’s Rule 59(e) Mot. to Alter or Amend Judgment at 12 (emphasis
added).) It states that “because Congress has provided standards
by which to determine if the Secretary’s disapproval is
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lawful[,]” there must be a “clear legal standard by which to
guide judicial review to determine which portions of the Amended
Compact are lawful” and whether a Secretary’s approval by
inaction is unlawful. (Id. at 15-16.) This argument is not
persuasive. That the IGRA might provide standards governing
judicial review of the Secretary’s affirmative approval or
disapproval of a gaming compact does not support a conclusion
that the statute provides standards for guiding judicial review
of the Secretary’s approval by inaction of a gaming compact.
Moreover, in contrast to circumstances where the Secretary has
affirmatively approved or disapproved a compact under
§ 2710(d)(8)(A) or (B), there is no administrative record
embodying the Secretary’s decision when the Secretary takes no
action and a compact is approved only by operation of the
statute. Not only is a court left without manageable standards
to guide a meaningful review, it is also left without a record
upon which to conduct a review.
In support of its argument, Amador County relies upon Lac Du
Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422
F.3d 490 (7th Cir. 2005). In Lac Du Flambeau, an Indian tribe
challenged the Secretary’s approval by inaction of a gaming
compact submitted to her by the Ho-Chunk Nation and the state of
Wisconsin, alleging that “the Secretary violated her fiduciary
duty to treat all Indian tribes equally by allowing the compact
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to take effect.” 422 F.3d at 494. The defendants moved to
dismiss the suit, arguing that the tribe lacked standing and that
the Secretary’s inaction was not reviewable under the APA. Id.
at 495. The court analyzed the question of whether the tribe had
standing to bring its claim, and concluded that the Secretary’s
inaction injured the plaintiff because it “was the functional
equivalent of an affirmative approval” and “allowed the parties
to the compact to behave as if it were lawful in all respects.”
Id. at 501. The court, however, never reached the question of
whether the Secretary’s inaction constitutes final agency action
subject to judicial review because the tribe forfeited any such
argument by failing to respond to the Secretary’s APA argument.
Id. at 502. Lac Du Flambeau, then, does not support Amador
County’s argument that the Secretary’s inaction is reviewable
under the APA, and Amador County presents no authority to refute
the finding that the IGRA provides no standards by which to judge
whether the Secretary’s inaction violates the APA.
Amador County also argues that a Secretary’s approval by
inaction of an illegal compact is unlawful and that, save for
judicial review, Amador County has no recourse to challenge an
allegedly unlawful provision of a gaming compact. It therefore
urges that reconsideration is necessary to prevent manifest
injustice. These arguments, likewise, are not persuasive.
First, as was stated in the January 8th opinion, the limited
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approval by inaction under § 2710(d)(8)(C) is inherently lawful
by the express terms of the statute. Because § 2710(d)(8)(C)
deems a compact approved “only to the extent the compact is
consistent with the provisions of [IGRA,]” the Secretary’s deemed
approval cannot be unlawful under IGRA. Further, the National
Indian Gaming Commission has established other remedies for
challenging allegedly unlawful gaming activities. See 25 U.S.C.
§ 2713(a)(1). For example, “the Chairman shall have authority to
levy and collect appropriate civil fines, not to exceed $25,000
per violation, against the tribal operator of an Indian game
. . . engaged in gaming for any violation of any provision of
this chapter[.]” 25 U.S.C. § 2713(a)(1). Moreover, the
Commission may order temporary or permanent closure of an Indian
game for substantial violation of the provisions of the Act. See
25 U.S.C. § 2713(b). Because Amador County has not shown clear
error and manifest injustice in the conclusion that its complaint
should be dismissed for failure to state a claim upon which
relief can be granted, Amador County’s Rule 59(e) motion will be
denied.
CONCLUSION AND ORDER
Amador County has not shown clear error and manifest
injustice in the January 8th opinion granting the defendants’
motion to dismiss. Accordingly, it is hereby
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ORDERED that Amador County’s motion [46] to alter or amend
the judgment be, and hereby is, DENIED.
SIGNED this 12th day of July, 2010.
________/s/_________________
RICHARD W. ROBERTS
United States District Judge