United States District Court, D. Columbia
Amador County, California, Plaintiff: Dennis Jeffrey
Whittlesey, LEAD ATTORNEY, DICKINSON WRIGHT PLLC, Washington,
DC USA; Scott Raymond Knapp, PRO HAC VICE, DICKINSON WRIGHT
P.L.L.C., Lansing, MI USA.
United States Department of The Interior, Defendant: Judith
Rabinowitz, LEAD ATTORNEY, San Francisco, CA USA.
OPINION AND ORDER
J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
Amador County, California (" the County" ) brings
claims against the United States Department of the Interior
(" DOI" ), DOI Secretary Sally Jewell, and
Assistant Secretary for Indian Affairs Kevin
Washburn (collectively, " the
Secretary" ), challenging under the Indian Gaming
Regulatory Act (" IGRA" ), 25 U.S.C. § 2701
et seq., the Secretary's approval of an
amendment to a gaming compact between the Buena Vista
Rancheria of Me-Wuk Indians (the " Tribe"
) and the State of California. The Tribe now seeks to
intervene for the limited purpose of moving to dismiss the
amended complaint under Federal Rule of Civil Procedure 19.
Amador County opposes intervention, arguing that the motion
to intervene is untimely and that the United States
adequately represents the Tribe's interests. Because the
Tribe was aware of its asserted impairment-of-interests as
early as 2005, the motion will be denied.
D.C. Circuit opinion reversing and remanding this matter for
further proceedings describes the facts relevant here.
See Amador Cnty., Cal. v. Salazar, 640 F.3d
373, 375-77, 395 U.S.App.D.C. 110 (D.C. Cir. 2011). The IGRA,
which " created a [tripartite] regulatory framework for
tribal gaming" conducted on " Indian lands,"
classifies most casino games and slot machines as "
Class III" gaming. Id. at 376-77; see
also 25 U.S.C. § § 2702, 2703. Relevant here,
the IGRA provides that Class III gaming " must be
conducted in conformance with a tribal-state compact that has
been approved by the Secretary." Amador Cnty.,
640 F.3d at 376 (citing 25 U.S.C. § 2710(d)(1)(C)). The
Secretary may disapprove a tribal-state compact " only
if it violates IGRA or other federal law or trust
obligations," id. at 377 (citing 25 U.S.C.
§ 2710(d)(8)(B)), and a compact is " deemed
automatically approved" to the extent it complies with
IGRA if the Secretary fails to act on it within forty-five
days, id. (citing 25 U.S.C. § 2710(d)(8)(C)).
Secretary approved a Class III gaming compact between the
Tribe and the State
of California on May 15, 2000. See First Am. Compl.
(Dkt. #30) ¶ 17. A few years later, the Tribe and the
State negotiated a new compact, which " expanded the
scope of [the Tribe's] Class III gaming" but "
geographically limited [it] to the Buena Vista
Rancheria" --the tract of land the Tribe occupies in
Amador County. Id. ¶ 18. " When the Tribe
submitted the compact amendment to the Secretary, he chose to
do nothing, meaning that [under IGRA] subsection (d)(8)(C)
the amendment was deemed approved after forty-five
days." Amador Cnty., 640 F.3d at 377. The
Secretary subsequently published a notice of approval.
County filed this action in 2005, challenging the
Secretary's approval of the amended compact on the ground
that the Rancheria does not qualify as " Indian
land" under the IGRA. See generally Compl. (Dkt
#1). In August of that year, after Defendants moved for
dismissal under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), the Tribe sought leave to file an amicus
brief addressing the failure to join indispensable parties
under Federal Rule of Civil Procedure 19. See
Tribe's Mot. for Leave to File an Amicus Br.
(Dkt. #18) at 2; Tribe's Proposed Amicus Br.
(Dkt. #18-2) at 16-17. The Tribe argued that the parties'
failure to join it " and the State of California, as the
parties to the gaming Compact and Amendment thereto . . .,
serv[ed] as a separate and additional ground for
dismiss[al]." Tribe's Mot. for Leave to File an
Amicus Br. at 2. The Tribe added that " [t]he
presence of the United States in this case does not fully
protect the Tribe's interests . . . [because] the United
States does not face the same . . . harm as does the Tribe if
[the County] is granted the relief it requests."
Tribe's Proposed Amicus Br. at 13. The County
opposed the Tribe's motion, arguing in relevant part that
the United States could adequately represent the Tribe's
interests because " no conflict [of interest] exists
between the United States and the [Tribe]." Pls.'
Opp. to Tribe's Mot. for Leave to File an Amicus
Br. (Dkt. #19) at 4 (quoting Ramah Navajo School Board,
Inc. v. Babbitt, 87 F.3d 1338, 1351, 318 U.S.App.D.C.
329 (D.C. Cir. 1996)). Judge Richard W. Roberts ultimately
denied the Tribe's motion for leave to file the brief.
case then proceeded without the Tribe. The County filed an
amended complaint in 2008, and Judge Roberts granted
Defendants' motion to dismiss for failure to state a
claim in 2009. See Amador Cnty. v.
Kempthorne, 592 F.Supp.2d 101 (D.D.C. 2009). In May
2011, the D.C. Circuit reversed and remanded for
consideration of the merits. See Amador
Cnty., 640 F.3d 373. In November 2011, the Tribe brought
this motion seeking leave to intervene for the limited
purpose of filing a motion to dismiss for failure to join the
Tribe and State of California as required parties under Rule
19. See Tribe's Mot. to Interv. (Dkt. #59) at 1.
Echoing several of the arguments set forth in its proposed
amicus brief, the Tribe states that it " has an
obvious interest in . . . defending the validity of its
Compact Amendment," in protecting its gaming rights and
revenues under the IGRA, and in the status of the Rancheria
as " Indian lands." Id. at 8. The Tribe
also seeks to protect and assert " its sovereign
immunity from suit and its sovereign right to govern and
develop the Rancheria." Id. at 7.
County opposes intervention as untimely, emphasizing that
" the Tribe had knowledge of the instant litigation from
the outset" but did not seek to intervene during the
" six and a half years" since the original
complaint was filed on April 1, 2005. Pl.'s Opp. (Dkt.
#61) at 2, 7. The County adds that " [n]o change has
occurred . . . with respect to the Tribe's interests in
this case or the United States' representation of the
Tribe's position such that the Tribe's lengthy delay
would be now warranted." Id. at 7. Accordingly,
the County counsels against further delaying a case which
" is ...