Amador County, California v. Kempthorne ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
AMADOR COUNTY, CALIFORNIA )
)
Plaintiff, )
)
v. ) Civil Action No. 05-658 (RWR)
)
DIRK A. KEMPTHORNE, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Amador County, California brings this action
against the Secretary of the Department of the Interior (“DOI”)
Dirk A. Kempthorne, Assistant Secretary for Indian Affairs Carl
J. Artman, and the DOI alleging that the approval of an amendment
to the gaming compact 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 Procedures
Act (“APA”) because the amendment authorized gaming in violation
of the Indian Gaming Regulatory Act (“IGRA”). The defendants
have filed a motion to dismiss the complaint under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). While Amador County
has standing, it has nonetheless failed to state a claim
entitling it to relief under the APA because the Secretary’s
choice to take no action on the amended compact is unreviewable
and the Secretary’s deemed approval is lawful by the express
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terms of IGRA. Thus, the defendants’ motion to dismiss will be
granted.
BACKGROUND
The IGRA “provide[s] a statutory basis for the operation
[and regulation] of gaming by Indian tribes” on Indian lands. 25
U.S.C. § 2702(1)-(2). The statute separates the types of gaming
conducted on Indian lands into three different classes for the
purpose of regulation. See 25 U.S.C. § 2703(6)-(8). Among other
requirements, Class III gaming is “lawful on Indian lands only if
such activities are . . . conducted in conformance with a Tribal-
State compact entered into by the Indian tribe and the State [in
which lands are located] that is in effect.” 25 U.S.C.
§ 2710(d)(1)(C). Under the statute, “[t]he Secretary [of the
Interior] is authorized to approve any Tribal-State compact
entered into between an Indian tribe and a State governing gaming
on Indian lands of such Indian tribe.” 25 U.S.C.
§ 2710(d)(8)(A). 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).
In 2004, the state of California approved an amended gaming
compact between California and the Buena Vista Rancheria, a
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federally recognized Indian tribe, which “expanded the scope of
Class III gaming to be conducted by the Tribe.” (Am. Compl.
¶¶ 11, 18.) The Buena Vista Rancheria submitted the amended
compact to the Secretary for approval. (Defs.’ Mem. in Supp. of
its Mot. to Dismiss (“Defs.’ Mem.”) at 2.) The Secretary did not
take any action on the amended compact for forty-five days, at
which point the compact was deemed approved by operation of law
under 25 U.S.C. § 2710(d)(8)(C). (Id.)
Amador County alleges that the Secretary’s deemed approval
of the amended compact under 25 U.S.C. § 2710(d)(8)(C) was an
unlawful agency action in violation of the APA because the
Secretary’s approval “constitutes federal authorization for the
Tribe’s proposed Buena Vista Rancheria Casino project . . . to
conduct Class III gaming on land[s] which . . . are under the
County’s jurisdiction and are not ‘Indian lands’ as required by
the IGRA and the Amended Compact.” (Am. Compl. ¶¶ 24-25.)
The defendants have filed a motion to dismiss, contending that
Amador County lacks standing to challenge the Secretary’s
approval of the compact amendment; that Amador County has 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 of a gaming compact by inaction is
valid only to the extent it is lawful. Amador County has filed a
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motion for a preliminary injunction to enjoin the defendants
“from authorizing or sanctioning the conduct of Class III gaming
activities and/or any pre-development and development activities
related to any casino project at the site of the former Buena
Vista Rancheria within Amador County” and to compel defendants to
“immediately withdraw approval of the Amended Class III Gaming
Compact between the State of California and the Buena Vista
Rancheria of Me-Wuk Indians.” (Pl.’s Prelim. Inj. Mot. at 1-2.)1
DISCUSSION
I. STANDING
The defendants contend that Amador County lacks
constitutional standing to bring its claim. To satisfy the
constitutional standing inquiry, Amador County “must show: (1)
injury-in-fact; (2) causation, and (3) redressability.” Fund for
Animals, Inc. v. Norton, 322 F.3d 728, 732-33 (D.C. Cir. 2003)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). The alleged injury must be “concrete and
particularized” and “actual or imminent,” and must be fairly
traceable to the defendant’s action. Lujan, 504 U.S. at 560.
“In reviewing the standing question, [a court] must be ‘careful
not to decide the questions on the merits for or against the
plaintiff, and must therefore assume that on the merits the
1
Amador County also has filed a motion for leave to file a
surreply in opposition to the defendants’ motion to dismiss.
This motion will be granted.
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plaintiffs would be successful in their claims.’” In re Navy
Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (quoting City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)). Still,
when the “existence of one or more of the essential elements of
standing ‘depends on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control
or to predict,’” the plaintiff must “adduce facts showing that
those choices have been or will be made in such manner as to
produce causation and permit redressability of injury.” Lujan,
504 U.S. at 562 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615
(1989) (opinion of Kennedy, J.)). Further, “any [plaintiff]
alleging only future injuries confronts a significantly more
rigorous burden to establish standing” and “‘must demonstrate a
realistic danger of sustaining a direct injury[.]’” United
Transp. Union v. I.C.C., 891 F.2d 908, 913 (D.C. 1989) (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979)).
In its amended complaint, Amador County alleges that the
defendants, by not affirmatively disapproving the amended
compact, have improperly determined that the Buena Vista
Rancheria land is “Indian land” under IGRA and have unlawfully
authorized Class III gaming on the land. (See Am. Compl. ¶¶ 18-
27.) It contends that, as a result of the defendants’ inaction,
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it will be forced to shoulder imminent financial and
environmental burdens caused by proposed illegal gaming on the
Rancheria land and that this injury can be redressed by setting
aside the Secretary’s approval of any unlawful portions of the
amended compact. (Id. ¶¶ 26-28; Pl.’s Opp’n at 9.) The
defendants argue, however, that Amador County’s alleged injury is
too speculative to constitute an injury-in-fact because the
Rancheria may never actually conduct Class III gaming. (Def.’s
Mem. at 11.) Amador County’s alleged injury-in-fact is a future
injury because the Rancheria has not yet begun any Class III
gaming activity, and, as defendants contend, it is possible that
the Tribe may never complete its intended casino project.
However, the time and effort expended by the Tribe to create and
submit the amended compact to the state of California and to the
Secretary for approval reflects a serious intent to conduct Class
III gaming on the Rancheria land. Thus, Amador County has
established a realistic danger of direct injury and satisfied the
injury-in-fact requirement of constitutional standing. Further,
this injury is fairly traceable to the defendants’ challenged
action because the defendants’ failure to affirmatively strike
down the amended compact permits the Rancheria to go forward with
its existing plans for Class III gaming and, if appropriate,
could be redressed through declaratory and injunctive relief
compelling the Secretary to act. Accordingly, Amador County has
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alleged a sufficient injury, caused by the defendants’ action and
redressable through judicial means, to satisfy constitutional
standing.
II. FAILURE TO STATE A CLAIM
Defendants contend that Amador County has not alleged a
claim subject to judicial review under the APA. Rule 12(b)(6)
authorizes dismissal of a complaint when a plaintiff fails to
state a claim upon which relief can be granted. See Fed. R. Civ.
P. 12(b)(6). In order to survive a motion to dismiss under Rule
12(b)(6), the allegations stated in the plaintiff’s complaint
“must be enough to raise a right to relief above the speculative
level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 1965 (2007). The complaint must be construed in the light
most favorable to the plaintiff and “the court must assume the
truth of all well-pleaded allegations.” Warren v. District of
Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). If a plaintiff fails
to allege sufficient facts to support a claim, the complaint must
be dismissed. See Twombly, 127 S. Ct. at 1965.
The APA “provides judicial review to any ‘person suffering
legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute.’” Webster v. Doe, 486 U.S. 592, 597 (1988) (quoting 5
U.S.C. § 702). A reviewing court may “hold unlawful and set
aside agency action” that is “arbitrary, capricious, an abuse of
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discretion, or otherwise not in accordance with law[.]” 5 U.S.C.
§ 706. “Section 701(a), however, limits application of the
entire APA to situations in which judicial review is not
precluded by statute, see § 701(a)(1), and the agency action is
not committed to agency discretion by law, see § 701(a)(2).”
Webster, 486 U.S. at 599. An agency action is a “final agency
action” if it “mark[s] the consummation of the agency's
decisionmaking process” and it is an action “by which rights or
obligations have been determined, or from which legal
consequences flow[.]” Bennett v. Spear, 520 U.S. 154, 178
(1997). 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 alleges that the Secretary’s decision to take
no action to disapprove the Rancheria amended compact and to
allow it to be deemed approved under 25 U.S.C. § 2710(d)(8)(C)
was arbitrary and capricious and otherwise not in accordance with
law because the Secretary is obligated to disapprove any unlawful
compact. (Pl.’s Opp’n at 11-12.) In the section explaining the
Secretary’s authority to approve or disapprove a gaming compact,
IGRA states that “[t]he Secretary may disapprove a compact . . .
only if such compact violates” IGRA, any other federal law, or
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“the trust obligations of the United States to Indians.” 25
U.S.C. § 2710(d)(8)(B) (emphasis added). With the use of the
permissive “may,” the statute makes clear that, while the
Secretary can choose to disapprove a compact, the Secretary is
not obligated to disapprove any compact. See Pueblo of Sandia v.
Babbitt, 47 F. Supp. 2d 49, 56-57 (D.D.C. 1999) (noting that the
Secretary had discretion to choose whether to disapprove a
compact). Rather, the Secretary is given three options -- to
approve, disapprove, or take no action -- and the statute
provides no clear standard by which the Secretary must decide his
course of action. “[A] court would have no standards by which to
judge whether the Secretary acted arbitrarily and capriciously by
not acting.” Lac Du Flambeau Band of Lake Superior Chippewa
Indians v. Norton, 327 F. Supp. 2d 995, 999 (W.D. Wis. 2004).
Because the statute lacks a standard to guide judicial review of
the Secretary’s decision regarding a submitted compact, that
decision is committed to agency discretion and is unreviewable
under the APA. See id.; PPI, Inc. v. Kempthorne, No. 4:08cv248-
SPM, 2008 WL 2705431, at *5 (N.D. Fla. July 8, 2008) (concluding
that IGRA “provides clear and convincing evidence that Congress
intended to preclude judicial review” of the Secretary’s decision
to take no action).
Amador County alleges nevertheless that the Secretary’s
approval of the amended compact by inaction is a reviewable final
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agency action because the Secretary’s approval of a compact that
violates IGRA was unlawful. (See Pl.’s Opp’n at 14.) The
defendants contend that the Secretary’s approval by operation of
law is immune from challenge because the Secretary’s inaction
results in approval of a gaming compact only to the extent it
does not violate IGRA. (See Defs.’ Mem. at 18, 25; Defs.’ Reply
at 10.) Assuming that the Secretary’s approval by inaction is a
final agency action, Congress reflected its clear intent to
preclude review of such approval. In structuring IGRA, it
limited the Secretary’s approval by inaction to apply only to
those portions of a compact that are lawful under the statute.
See 25 U.S.C. § 2710(d)(8)(C) (“[A] compact shall be considered
to have been approved by the Secretary, but only to the extent
the compact is consistent with [IGRA].” (emphasis added)). Thus,
the Secretary’s approval of a compact by inaction can never
violate the statute. See PPI, Inc., 2008 WL 2705431, at *5-6
(holding that “[t]he express terms” of IGRA reflect congressional
intent to preclude review of the Secretary’s approval of a
compact by inaction because any compact provisions contrary to
IGRA are not deemed approved). “Congress provided a remedy apart
from judicial review to address” illegal provisions of compacts
by deeming a compact “approved ‘only to the extent the compact is
consistent with [IGRA].’” Id. at *5 (quoting 25 U.S.C.
§ 2710(d)(8)). Accordingly, because Amador County has not
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alleged any action by the Secretary that could be unlawful under
IGRA, Amador County has failed to state a claim entitling it to
any relief under the APA.2
CONCLUSION
Although Amador County has established standing, it has
nonetheless failed to state a claim entitling it to relief. The
Secretary’s choice of whether to approve, disapprove, or take no
action on an Indian gaming compact is a decision committed to the
Secretary’s discretion, and IGRA precludes judicial review of the
Secretary’s approval by inaction. Accordingly, the defendants’
motion to dismiss under Rule 12(b)(6) for failure to state a
claim will be granted and Amador County’s motion for a
preliminary injunction will be denied as moot. A final,
appealable Order accompanies this Memorandum Opinion.
SIGNED this 8th day of January, 2009.
________/s/_________________
RICHARD W. ROBERTS
United States District Judge
2
The complaint seeks declaratory and injunctive relief
based solely upon an APA violation theory that is not actionable.
It presents no alternative bases for seeking other redress for
alleged IGRA violations.