United States District Court, District of Columbia
A. HOWELL Chief Judge.
HISTORY AND CURRENT STATUS OFTHE NORTH FORK TRIBE
ACTIONS UNDERLYING ADMINISTRATIVE DECISIONS
COMMENCEMENT OFINSTANT LAWSUIT
PARTIAL REMAND AND SUBSEQUENT STATE AND AGENCY ACTIONS
SUPPLEMENTALBRIEFING, CALIFORNIA LITIGATION AND RELATED
CALIFORNIASTATE COURT LITIGATION
PARTIES'POSITIONS ON RECENT DEVELOPMENTS
ADMINISTRATIVE PROCEDURE ACT
STAND UP PLAINTIFFS' FIFTH AND SIXTH CLAIMS FOR RELIEF
STAND UP PLAINTIFFS' CHALLENGES TOTHE GOVERNOR'S
1. Secretary's Two-Part Determination (IGRA ROD)
2. California Governor's Concurrence
3. Secretary's Land Acquisition Decision (IRA
ROD) .................................................... 53
1. Historical Connection To The Madera Site
a. Camp Barbour Treaty Of 1851
b. Occupancy Or Subsistence Use In The Vicinity
2. Impacts On The Surrounding Community
a. Congressional Intent
(i) Section 2719(b)(1)(A)'s “Not Detrimental To The
Surrounding Community” Requirement
(ii) Section 2719(a)'s Preference For On-Reservation
Gaming ................................. 67
b. Community Benefits
c. Mitigation Measures
d. Community Harms
(i) Economic Impact On The Picayune Tribe
(ii) Problem Gamblers, Traffic And The Swainson's Hawk
1. Applicable Legal Framework
2. Secretary's Explanation Of Statutory Authority
3. Stand Up Plaintiffs' Arguments
a. IRA Section 18 Election
(i) “Indians Residing On One Reservation”
Constitute A Tribe ............................. 102
(ii) Alternative Definitions Of “Indian” In
§ 479 Need Not Be Considered ............ 107
(iii) “Unified” Tribal Affiliation Is Not
(iv) North Fork Rancheria's Purchase Is Significant
b. North Fork Tribe's Continuing Tribal Existence
(i) North Fork Rancheria Was Purchased For The North Fork
Tribe ..................... 117
(ii) Speculation That IRA Voters Were Not North Fork Tribe
Members Is Unfounded 122
(iii) North Fork Tribe Is A Federally-Recognized Indian Tribe
1. Alternative Sites
a. Applicable Legal Principles
b. Discussion Of Alternatives In The FEIS
c. Stand Up Plaintiffs' Arguments
(i) Properties “Along The SR-41 Corridor” And
“Avenue 7” ................................ 145
(ii) North Fork Rancheria
(iii) Old Mill Site
2. Impact on Crime
3. Mitigation Measures For Problem Gambling
1. Regulatory Overview
2. Previously-Rejected Procedural Challenge
3. Previously-Rejected Challenge To Emissions Model Used
4. Challenge To Emissions Estimates And Mitigation
Measures ................................... 164
North Fork Rancheria of Mono Indians (the “North Fork
Tribe”), a federally-recognized American Indian tribe,
plans to construct a casino-resort complex with a gaming
floor offering up to 2, 500 gaming devices, six bars, three
restaurants, a five-tenant food court, a 200-room hotel
tower, and 4, 500 parking spaces on a 305.49-acre parcel of
land located in Madera County, California (“Madera
Site”). The casino will undoubtedly have a significant
impact on the people and the land in that county, with the
hope that it will benefit economically the Indian tribe
undertaking its development. The plaintiffs are residents of
Madera County vehemently opposed to the casino's
construction. To stop the casino from coming to fruition,
they have initiated both state and federal litigation as well
as statewide political efforts over the last seven-plus
years, setting, in their own words, “high legal and
political hurdles.” This case is one of those efforts
to halt the North Fork Tribe's casino development. While
the plaintiffs' many concerns about the impending casino
development are understandable, the law is not on their side.
six plaintiffs, Stand Up for California!, Randall Brannon,
Madera Ministerial Association, Susan Stjerne, First Assembly
of God - Madera, and Dennis Sylvester (collectively,
“Stand Up”), and the plaintiff Picayune Rancheria
of the Chukchansi Indians (“Picayune Tribe” or
“Picayune”), bring this consolidated action
against the defendants United States Department of the
Interior (“DOI”), Sally Jewell, in her official
capacity as Secretary of the United States Department of the
Interior (“Secretary”), Bureau of Indian Affairs
(“BIA”), and Lawrence Roberts, in his official
capacity as Assistant Secretary of Indian Affairs,
(collectively, “federal defendants”), and the
intervenor-defendant North Fork Tribe, challenging,
collectively, three separate but related decisions of the
Secretary regarding the Madera Site, under five separate
laws, namely: the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551, et
seq., the Indian Reorganization Act (“IRA”),
25 U.S.C. §§ 461, et seq., the Indian
Gaming Regulatory Act (“IGRA”), 25 U.S.C.
§§ 2701, et seq., the National
Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321, et seq., and the Clean Air Act
(“CAA”), 42 U.S.C. § 7506. See
generally Third Amended Compl. (“TAC”), ECF
No. 103; Picayune's Compl., Case No. 12-cv-2071, ECF No.
first decision, made in September 2011, pursuant to the IGRA,
25 U.S.C. § 2719(b)(1)(A), determined that the North
Fork Tribe would be permitted to conduct gaming on the Madera
Site. See generally Bureau of Indian Affairs, Record
of Decision, Secretarial Determination Pursuant to the IGRA
for the 305.49-Acre Madera Site in Madera County, California,
for the North Fork Rancheria of Mono Indians (Sept. 1, 2011)
(“IGRA ROD”), Jt. App. at 1443-1537, ECF Nos.
128-8 to -9. The second decision, made in November
2012.pursuant to the IRA, 25 U.S.C. § 465, approved a
fee-to-trust application submitted by the North Fork Tribe,
whereby the United States would acquire the Madera Site to
hold it in trust for the benefit of the North Fork Tribe.
See generally Bureau of Indian Affairs, Record of
Decision, Trust Acquisition of the 305.49-acre Madera site in
Madera County, California, for the North Fork Rancheria of
Mono Indians (Nov. 26, 2012) (“IRA ROD”), Jt.
App. at 1611-79, ECF Nos. 128-9 to -10. The Court previously
addressed these two agency decisions in denying a motion for
a preliminary injunction brought by the Stand Up plaintiffs
in January 2013. See Stand Up for California! v. U.S.
Dep't of Interior (Stand Up I), 919 F.Supp.2d 51, 54
(D.D.C. 2013). The third decision, made in October 2013,
after this Court's denial of the preliminary injunction,
is the Secretary's non-action with respect to, and
publication in the Federal Register of, a
“Tribal-State Compact” between the North Fork
Tribe and the State of California, which compact is required
under the IGRA, 25 U.S.C. § 2710(d)(1)(C), to conduct
class III gaming on Indian lands. See TAC
¶¶ 103-05, 115.
before the Court are four cross-motions for summary judgment
filed by all of the parties: (1) the Stand Up plaintiffs'
motion for summary judgment (“Pls.' Mot.”),
ECF No. 106; (2) the plaintiff Picayune Tribe's motion
for summary judgment, ECF No. 108; (3) the
intervenor-defendant North Fork Tribe's cross-motion for
summary judgment, ECF No. 111; and (4) the federal
defendants' cross-motion for summary judgment, ECF Nos.
112, 114. For the reasons detailed below, the plaintiffs'
motions are denied, and the defendants' motions are
granted in part and denied in part, but to the extent summary
judgment is denied to the defendants on certain claims, those
claims are dismissed.
factual and procedural background in this case is laid out in
considerable detail in this Court's previous Memorandum
Opinions denying the Stand Up plaintiffs' request for a
preliminary injunction, Stand Up I, 919 F.Supp.2d at
54-61, and granting in part and denying in part the Stand Up
plaintiffs' motion to compel supplementation of the
administrative record, Stand Up for California! v. U.S.
Dep't of Interior (Stand Up II), 71 F.Supp.3d 109,
112-14 (D.D.C. 2014). Since those rulings, however, several
events have occurred with implications for the pending
motions, including the filing of a third operative amended
complaint, rejection of the Tribal-State Compact by
California voters, court decisions in concurrent federal and
state litigation, and the recent issuance of binding
precedent by the D.C. Circuit. Thus, the Court now draws from
its earlier Memorandum Opinions and provides an updated,
comprehensive background for consideration of the
HISTORY AND CURRENT STATUS OF THE NORTH FORK TRIBE
North Fork Tribe is a federally-recognized American Indian
tribe, see Indian Entities Recognized and Eligible
to Receive Services From the United States Bureau of Indian
Affairs, 81 Fed. Reg. 26, 826, 26, 829 (May 4, 2016) (listing
“Northfork Rancheria of Mono Indians of
California”), “consist[ing] of the modern
descendants of Mono Indians using and occupying lands near
and in the San Joaquin Valley, ” Letter from Larry Echo
Hawk, Asst. Sec'y of Indian Affairs, to Jerry Brown,
Governor of Cal. (Sept. 1, 2011) at 2, Jt. App. at 1391,
1392, ECF No. 128-7, as well as “the adjacent Sierra
Nevada foothills, ” IGRA ROD at 56.
North Fork Tribe citizens trace their ancestry to an American
settler named Joe Kinsman and his Mono Indian wife,
“who settled along the Fresno River in 1849” at a
time when “[a]ll of the settlements were in the
foothills.” IGRA ROD at 55-56 (quotations omitted).
According to a contemporaneous Federal government observer,
the Mono Indians generally inhabited “the higher
mountains” during that time period and would
“visit occasionally the plains and water-courses for
the purposes of hunting and fishing.” Id. at
56 (quotations omitted).
from ancestors of the North Fork Tribe describe the United
States military's efforts in the 1850s to force them and
other Indian groups out of their homes in the Sierra Nevada
foothills, which were rich in resources and could be mined
for gold. See Gaylen D. Lee, Walking Where We Lived:
Memoirs of a Mono Indian Family 45-75 (Univ. of Okla. Press
1998) (“Lee Memoir”), Jt. App. at 75, 81-111, ECF
No. 124-1. North Fork Indians, along with other Indian groups
who lived in the mountains, scattered and hid as soldiers
burned their settlements, id. at 57-62, until
soldiers ultimately retreated to Camp Barbour, where they
signed a treaty with “‘friendly' Indians,
” id. at 62-63. This treaty, the Camp Barbour
Treaty of 1851, purported to establish an Indian reservation
in the San Joaquin Valley for a number of named tribes,
including the “mona or wild portion of the
tribes . . . which are still out in the mountains.”
Id. at 63 (emphasis in original); Treaty with the
Howechees, Etc., 1851 (Apr. 29, 1851), 4 Indian Affairs: Laws
and Treaties 1085, 1087 (Charles J. Kappler ed., Gov't
Printing Office 1929) (“Camp Barbour Treaty”),
Art. 4, Suppl. Jt. App. at 55, 58, ECF No. 134-1. The United
States ultimately refused to ratify the Treaty, however, and
it “never became legally effective.” IGRA ROD at
57. Instead, “Congress passed a separate statute which
effectively extinguished Indian title to land throughout the
State of California by 1853, leaving the ancestors of the
[North Fork] Tribe, and all other California Indians,
landless - without legal rights to their homelands and
without formal reservations.” Id.
1916, pursuant to appropriations acts authorizing the
Secretary to purchase land in California for Indians,
see Act of May 18, 1916, ch. 125, § 3, 39 Stat.
62, AR at NFAR0001034, 1042, the DOI purchased what became
the North Fork Rancheria, comprised of 80 acres of land near
the town of North Fork, for the use and benefit of
approximately 200 landless Indians belonging to the North
Fork band, Letter from John T. Terrell, Special Indian Agent,
to Comm'r Indian Affairs (Apr. 4, 1916) (“Terrell
Letter”) at 1, AR at NFAR0001029; Lipps-Michaels Survey
of Landless Nonreservation Indians of California 1919-1920
(July 15, 1920) (“Lipps-Michaels Survey”) at 50,
Jt. App. at 1607, ECF No. 128-9; see Stand Up I, 919
F.Supp.2d at 68. The land, which was “poorly located[,
] . . . absolutely worthless as a place to build homes
on” and “lack[ed] . . . water for [both] domestic
purposes and . . . irrigation, ” was essentially
uninhabitable. Lipps-Michaels Survey at 50. Nonetheless, as
of June 1935, at least six adult Indians lived on the North
Fork Rancheria and were eligible to participate in a federal,
statutorily-required election held there by the Secretary,
pursuant to Section 18 of the then-recently enacted IRA. IRA
ROD at 55; Theodore H. Haas, Ten Years of Tribal Government
Under I.R.A. (1947) (“Haas Report”) at 15, Jt.
App. at 2140, 2157, ECF No. 129-9. Four of the six Indians
voted to reject the application of the IRA to the North Fork
Rancheria in the election, the repercussions of which are
discussed in detail, infra, in Part III.D.2, 3.a.
1958, Congress passed the California Rancheria Act
(“CRA”), which, “in keeping with the
then-popular policy of assimilating Native Americans into
American society, . . . authorized the Secretary to terminate
the federal trust relationship with several California tribes
. . . and to transfer tribal lands from federal trust
ownership to individual fee ownership.” Amador Cty.
v. Salazar, 640 F.3d 373, 375 (D.C. Cir. 2011) (citing
Act of Aug. 18, 1958, Pub. L. No. 85-671, 72 Stat. 619). On
February 18, 1966, pursuant to the CRA, the Secretary issued
a notice in the Federal Register providing that
“[t]itle to the land on the North Fork . . .
Rancheria has passed from the U.S. Government under the
distribution plan approved April 29, 1960 . . . .” to
one individual Indian, “Mrs. Susan Johnson, ” who
was, at the time, 92 years old (born on March 8, 1874).
Notice of Termination of Federal Supervision Over Property
and Individual Members, 31 Fed. Reg. 2, 911 (Feb. 18, 1966)
(“Fed. Reg. Termination Notice”), AR at
NFAR0001061, 1062, available at Pls.' Mot., Ex.
2, ECF No. 106-3.
seventeen years later, in a stipulated judgment entered in a
federal lawsuit, Hardwick v. United States, No.
C-79-1710-SW (N.D. Cal. Aug. 3, 1983), the United States,
inter alia, agreed to “restore and
confirm” the Indian status of “all those
persons who received any of the assets of [seventeen]
rancherias, ” including the North Fork Rancheria,
“pursuant to the [CRA].” Stip. Entry J.
(“Hardwick Stip. J.”) ¶¶ 1-3,
Jt. App. at 54, 55-56, ECF No. 124-1. The United States
further agreed to recognize the North Fork Tribe as an Indian
entity and to include the Tribe “on the Bureau of
Indian Affairs Federal Register list of recognized tribal
entities pursuant to 25 CFR, Section 83.6(b), ” with
entitlement “to any of the benefits or services
provided or performed by the United States for Indian Tribes,
Bands, Communities or groups because of their status as
Indian Tribes, Bands, Communities or groups.”
Id. ¶ 4, Jt. App. at 56-57. Lastly, in
relevant part, the United States agreed that, within two
years, the recognized Indian “entit[y]” of the
North Fork Rancheria could “arrange to convey to the
United States [certain] community-owned lands . . . to be
held in trust by the United States for the benefit of [the]
Tribe, Band, Communit[y] or group [of the North Fork
Rancheria] . . ., authority for the acceptance of said
conveyances being vested in the Secretary of the Interior
under section 5 of the Act of June 18, 1934, ‘The
Indian Reorganization Act, ' 48 Stat. 985, 25 U.S.C.
§465 as amended by section 203 of the [ILCA] . . .
and/or the equitable powers of this court.”
Id. ¶ 7, Jt. App. at 57-58.
notice was subsequently published in the Federal Register
memorializing the Hardwick judgment, Restoration of
Federal Status to 17 California Rancherias, 49 Fed. Reg. 24,
084 (June 11, 1984), and, in 1985, the DOI listed the
“Northfork Rancheria of Mono Indians of
California” as an “Indian Tribal Entit[y]
Recognized and Eligible to Receive Services” from the
BIA, Indian Tribal Entities Recognized and Eligible to
Receive Services, 50 Fed. Reg. 6, 055, 6, 057 (Feb. 13,
1985), available at Pls.' Mot., Ex. 3, ECF No.
106-4. The “Northfork Rancheria of Mono Indians of
California”-i.e., the North Fork Tribe in this
case-has been listed as a recognized tribe in the Federal
Register ever since.
North Fork Tribe formally established a modern tribal
government and adopted a tribal constitution in 1996 and,
today, consists of over 1, 750 citizens. IGRA ROD at 53;
North Fork Rancheria of Mono Indians Proposed Gaming Project
Status Update (May 29, 2007) at 1, Jt. App. at 149, ECF No.
124-1; TAC ¶ 25; North Fork's Answer TAC ¶ 25,
ECF No. 104. According to the DOI's American Indian
Population and Labor Force Report in 2010, “more than
16 percent of the Tribe's potential labor force is
unemployed.” IGRA ROD at 52. As “[t]he Tribe has
no sustained revenue stream that could be used to fund
programs and provide assistance to Tribal members, ”
the Tribe's membership has a high poverty rate and is
highly reliant on Federal and State governments for social
services. Bureau of Indian Affairs, Final Envtl. Impact
Statement, North Fork Casino, North Fork Rancheria of Mono
Indians Fee-to-Trust & Casino/Hotel Project (Feb. 2009)
(“FEIS”) at 1-10, Jt. App. at 204, 345, ECF Nos.
124-3, -6. Without the potential casino project, the
Tribe's only sources of revenue are government and
California Revenue Sharing Trust Fund grants. IGRA ROD at 53.
North Fork Rancheria, located “approximately three
miles east of the community of North Fork, ” is now
held in trust by the United States for the benefit of
individual members of the North Fork Tribe. IGRA ROD at 9,
53-54. Due to its location “on environmentally
sensitive lands within the Sierra National Forest, . . . near
Yosemite National Park, ” with “difficult”
accessibility by car, the North Fork Rancheria is
“currently used [solely] for residential
purposes.” Id. at 61; see id. at 10
(“[M]ost of the Rancheria is undeveloped, with numerous
and varied biological resources present throughout, ”
except for “scattered . . . rural residences.”).
While some land within the North Fork Rancheria is
“technically eligible for gaming under the IGRA,
” much of it is not. Id. at 9.
United States also holds in trust for the North Fork Tribe a
61.5-acre tract of land “located on a steep hillside .
. . in the small town of North Fork, ” California.
Id. at 4, 54. This tract was placed in trust for the
North Fork Tribe by the U.S. Department of Housing and Urban
Development (“HUD”) and the BIA, specifically for
“low income Indian housing, an endangered species
conservation reserve, and related uses.” Id.
at 4. The tract contains a community center, basic
infrastructure (i.e., roads, water, sewer), pads for
nine single-family homes, and the North Fork Tribe's
“current government headquarters.” Id.
at 4-5, 54.
Madera Site “is located in the eastern plains of the
San Joaquin Valley within 2.5 miles of the Fresno River, . .
. near the Sierra Nevada foothills, ” on unincorporated
land in southwest Madera County, California. IGRA ROD at 1,
55. Historically, the San Joaquin Valley “floor was an
area of intertribal use and occupancy, where neighboring
[aboriginal] bands hunted large game, fished in the waters of
the San Joaquin River, and otherwise shared access to its
resources during certain times of the year.”
Id. at 56. Today, the Madera Site is
“immediately adjacent and west of State Route (SR) 99,
which provides regional access to the area” and is
largely “comprised of vacant agricultural lands which
have never been developed” and “situated at a
distance from residential and other sensitive areas between
the only two cities in the County, Madera and Chowchilla,
” approximately 7.6 miles north of the City of Madera.
IGRA ROD at 1, 9, 57, 63. The Site is approximately 36 miles
away from the North Fork Tribe's HUD tract and government
headquarters, and 38 miles away from the unincorporated
community of North Fork and the North Fork Rancheria. IGRA
ROD at 4-5, 54, 83-84. Although citizens of the North Fork
Tribe live on the North Fork Rancheria or near the community
of North Fork, “[s]eventy-three percent of the adult
citizens of the Tribe are located closer to the [Madera] Site
than to the [North Fork] Rancheria, ” “a majority
(62 percent) of tribal citizens live within 50 miles of the
Site, and a substantial number of tribal citizens live within
25 miles of the Site.” IGRA ROD at 9-10, 52, 83-84.
ACTIONS UNDERLYING ADMINISTRATIVE DECISIONS
order “to meet its need for economic development,
self-sufficiency, and self-governance, and to provide its
quickly growing Tribal citizen population with employment,
educational opportunities and critically needed social
services, ” the North Fork Tribe has sought to
construct and operate a gaming establishment on the Madera
Site. IGRA ROD at 1-2. Since the Madera Site is not on the
North Fork Tribe's reservation, the process to achieve
this goal is long and arduous. It requires, inter
alia, in no certain order, (1) acquisition of the Madera
Site in federal trust on behalf of the North Fork Tribe; (2)
a Secretarial two-part determination that a casino on the
Madera Site would be in the best interest of the Tribe and
not detrimental to the surrounding community; (3) the
Governor of California's concurrence in the Secretarial
two-part determination; (4) compliance with statutory and
regulatory requirements of the NEPA and the CAA; and (5)
either a Tribal-State compact between the North Fork Tribe
and the State of California, approved by the Secretary, or,
in certain circumstances, procedures prescribed by the
Secretary that are consistent with a proposed Tribal-State
compact and other laws.
of this process, in March 2005, the North Fork Tribe
submitted a fee-to-trust application to the BIA
“request[ing] that the BIA issue a Secretarial
Determination and transfer the [Madera Site] into Federal
trust for the Tribe to conduct tribal government gaming,
” pursuant to the IRA and the IGRA. Id. at 2,
11. Over four months before this formal request was
submitted, the BIA published a notice in the Federal
Register announcing its intent to prepare an
Environmental Impact Statement (“EIS”) pursuant
to the NEPA, 42 U.S.C. § 4332(2)(C), which requires the
development of such statements as part of certain major
Federal actions, for the North Fork Tribe's proposed
trust acquisition of the Madera Site. See Notice of
Intent to Prepare an Envtl. Impact Statement for the North
Fork Rancheria's Proposed Trust Acquisition, 69 Fed. Reg.
62, 721 (Oct. 27, 2004), AR at NFAR0001336. This notice
provided the opportunity for one month, until November 26,
2004, for public comment “on the scope and
implementation of this proposal.” Id. The
“scoping” comment period was later extended for
an additional six months, until May 6, 2005. See
Notice of Intent to Prepare an Envtl. Impact Study for North
Fork's Project, 70 Fed. Reg. 17, 461 (Apr. 6, 2005), AR
February 2008, the DOI distributed a Draft Environmental
Impact Statement (“DEIS”) regarding the proposed
acquisition of the Madera Site “to Federal, tribal,
state, and local agencies and other interested parties for a
45-day review and comment period.” IGRA ROD at 3;
see also Draft Envtl. Impact Statement for the North
Fork Rancheria's Proposed 305 Acre Trust Acquisition, 73
Fed. Reg. 8, 898, 8, 899 (Feb. 15, 2008), NFAR0001338-39
(providing notice that “[w]ritten comments on the scope
and implementation of this proposal must arrive by March 31,
2008”). During the public comment period, the BIA
received a total of 331 comment letters, and conducted a
public hearing on March 12, 2008, at which 101 individuals
spoke. See IGRA ROD at 3-4; FEIS, apps. vol. IV,
app. Y, Comments at 7-10, AR at NFAR0034984, 34990-93
(listing commenters at public hearing). Following the
public comment period on the DEIS, on August 6, 2010, the BIA
published a notice in the Federal Register
announcing its intent to submit a Final Environmental Impact
Statement (“FEIS”) to the EPA. See Final
Envtl. Impact Statement for the North Fork Rancheria's
Proposed 305-Acre Trust Acquisition, 75 Fed. Reg. 47, 621
(Aug. 6, 2010), AR at NFAR0039003-04. This notice also
provided 30 days within which to comment on the FEIS and
stated that the FEIS was publicly available in a number of
locations, including online. See Id. at 47, 621-22.
September 1, 2011, after the FEIS had been published,
then-Assistant Secretary of Indian Affairs, Larry Echo Hawk,
issued a Record of Decision (“ROD”) under the
IGRA (“IGRA ROD”), making a “two-part
determination” and concluding that “Alternative
A, ” the North Fork Tribe's proposed gaming
facility, which involved the development of “an
approximately 247, 182 square foot casino” and “a
200-room hotel” on the Madera Site, was the
“Preferred Alternative.” IGRA ROD at 1, 24-25,
Alternative A, the proposed casino, was chosen from among
five alternatives because it “will best meet the
purpose and need for the Proposed Action, in promoting the
long-term economic self-sufficiency, self-determination and
self-government of the [North Fork] Tribe.”
Id. at 24-25; see also Id. at 87-89. In
reaching this conclusion, the Secretary further found that,
under 25 C.F.R. Part 292, Alternative A was “in the
best interest of the [North Fork] Tribe and its citizens,
” and “would not result in detrimental impact on
the surrounding community.” Id. at 83, 85. The
Secretary's conclusions in the IGRA ROD were supported by
an analysis of the alternative actions; consideration of the
factors laid out in 25 C.F.R. Part 292, which the Secretary
is required to consider (e.g., economic impacts of
development, impacts on the surrounding community, historical
connection to the land); and the mitigation measures that
would be taken to lessen any potential negative impacts on
the surrounding community and others outside that community.
See Id. at 4-89. Generally, the IGRA ROD stated that
the Secretary's decision was based on, inter
alia, “thorough review and consideration of the
[North Fork] Tribe's fee-to-trust application and
materials submitted there within; . . . the DEIS; the FEIS;
the administrative record; and comments received from the
public, Federal, state, and local governmental agencies; and
potentially affected Indian tribes.” Id. at 1.
after the publication of the IGRA ROD, in August 2012, the
North Fork Tribe and Governor of California Edmund
“Jerry” Brown executed a Tribal-State Compact
(“Compact”), witnessed by California's
then-Secretary of State (“California Secretary”),
Debra Bowen. Tribal-State Compact Between the State of
California and the North Fork Rancheria of Mono Indians of
California (Aug. 31, 2012) (“Tribal-State
Compact”) at 111, Jt. App. at 2224, 2343 ECF No. 130-4,
-5. Governor Brown also concurred in the Secretary's
determination to place the Madera Site in trust for the North
Fork Tribe. See Letter from Jerry Brown to Kenneth
Salazar, Sec'y, U.S. Dep't of the Interior (Aug. 30,
2012) (“Concurrence Letter”) at 1-2, Jt. App. at
1601-02, ECF No. 128-9.
November 26, 2012, then-Assistant Secretary for Indian
Affairs, Kevin Washburn, issued a ROD under the IRA
(“IRA ROD”), approving the North Fork Tribe's
fee-to-trust application for the proposed casino,
“Alternative A, ” on the Madera Site.
See IRA ROD at 63.This ROD announced that “the
Preferred Alternative to be implemented” is
“Alternative A, consisting of the acquisition of trust
title to the 305.49-acre [Madera] site, ” construction
of a “casino-resort complex” including “an
approximately 247, 180 square foot casino, 200-room hotel,
ancillary infrastructure, and mitigation measures presented
in . . . the FEIS.” Id. at 1-2. Similarly to
the decision made under the IGRA, the IRA ROD determined that
this Preferred Alternative would “best meet the
purpose and need of the Tribe and the BIA while preserving
the natural resources of the Madera [S]ite” by
“promot[ing] the long-term economic vitality, self-
sufficiency, self-determination and self-governance of the
[North Fork] Tribe.” Id. at 1, 25-26.
Likewise, the IRA ROD analyzed alternative actions;
environmental impacts and public comments; and mitigation
measures to be taken, see Id. at 4-52; and
summarized the Secretary's consideration of the factors
outlined in 25 C.F.R. Part 151, including an analysis of the
Secretary's authority for the acquisition under the IRA,
25 U.S.C. § 465, see Id. at 53-61.
after the issuance of the IRA ROD, the Secretary announced
the decision to acquire the Madera Site by publishing a
notice in the Federal Register on December 3, 2012.
See Land Acquisitions; North Fork Rancheria of Mono
Indians of California, 77 Fed. Reg. 71, 611 (Dec. 3, 2012).
COMMENCEMENT OF INSTANT LAWSUIT
discussed in Stand Up I, the plaintiffs in this
consolidated action consist of two distinct groups. The first
group, the Stand Up plaintiffs, consists of various
individual citizens and community organizations located in
and around Madera, California. TAC ¶¶ 5-10. The
other group, the Picayune Tribe, is a federally-recognized
Indian Tribe located in Madera County that operates a class
III gaming facility called the Chukchansi Gold Resort and
Casino on its reservation lands, which are located
approximately 30 miles from the Madera Site. Picayune's
Compl. ¶ 5. The two groups of plaintiffs filed suit
separately in December 2012 challenging the two separate but
related IGRA and IRA RODs regarding the Madera Site,
discussed supra in Part I.C. See Stand Up
I, 919 F.Supp.2d at 54-55; Compl., ECF No. 1;
Picayune's Compl. The cases were consolidated on January
9, 2013. See Minute Order (Jan. 9,
Stand Up plaintiffs, who raised numerous claims under the
APA, the IRA, the IGRA, and the NEPA, soon thereafter filed a
motion for a preliminary injunction to enjoin the defendants
from transferring the Madera Site into trust pending
resolution of the action on the merits. Stand Up I,
919 F.Supp.2d at 54, 66; Pls.' Mot. Prelim. Inj., ECF No.
26. The Court denied the motion on January 29, 2013,
concluding that the plaintiffs had not demonstrated a
likelihood of success on the merits of any of their claims,
or a likelihood of irreparable harm that would occur absent
preliminary injunctive relief, and that the balance of
equities and public interest weighed against granting such
relief. Stand Up I, 919 F.Supp.2d at 66, 81, 83-85.
Consequently, on February 5, 2013, the Madera Site was taken
into trust for the North Fork Tribe. See Mem. &
Order (Dec. 16, 2013) (“Partial Remand Order”) at
4, ECF No. 77. The initial administrative record
(“AR”) in this case was lodged on April 26, 2013.
See Lodging AR, ECF No. 51.
PARTIAL REMAND AND SUBSEQUENT STATE AND AGENCY
the denial of preliminary injunctive relief, the Stand Up
plaintiffs amended their complaint, on June 27, 2013,
inter alia, to add claims challenging the federal
defendants' compliance with certain portions of the CAA
when “approving and supporting” the North Fork
Tribe's fee-to-trust application. See First
Amended Compl. (“FAC”) ¶¶ 80-95 (Fourth
Claim for Relief), ECF No. 56; Partial Remand Order at 1;
see also TAC ¶¶ 83-98 (Fourth Claim for
Relief). The plaintiffs also added allegations that the
Governor of California's August 2012 concurrence in the
Secretary's two-part IGRA determination “is
invalid.” FAC ¶ 65; see Id. ¶ 60
(“[I]n issuing his concurrence in the Secretary's
two-part determination, the Governor of California engaged in
policy-making decisions that bound the state, constituting a
legislative act for which he lacked authority under
California law, thereby rendering the Governor's
concurrence and the Secretary's action null and
void.”); see also TAC ¶¶ 63, 68
(same). The plaintiffs made the same allegations in a state
lawsuit against, inter alia, the State of California
that is currently on appeal in California's Fifth
District Court of Appeal, as discussed infra in Part
same day that the plaintiffs amended their instant complaint,
the California Legislature ratified the Tribal-State Compact
in California Assembly Bill No. 377. See AB-277
Tribal gaming: compact ratification (2013-2014), Bill
History, Cal. Legis. Info.,
(last visited Mar. 13, 2016). The bill was subsequently
approved by Governor Brown and filed with California
Secretary Bowen on July 3, 2013. See Assemb. Bill
No. 877, Ch. 51 (Cal. 2013) (codified at Cal. Gov't Code
§ 12012.25), Jt. App. at 2, 222, ECF No. 130-4.
letter dated July 16, 2013, California Secretary Bowen
“forward[ed]” a copy of the Compact and the state
legislation “ratifying” the Compact to Paula
Hart, the Director of the Office of Indian Gaming at the DOI.
Letter from Debra Bowen to Paula Hart (July 16, 2013)
(“July 16, 2013 Transmittal Letter”) at 1, Jt.
App. at 2, 199, ECF No. 130-1. The transmittal letter noted
that the state legislation would not become
“effective” until January 1, 2014, if at all, but
that California Secretary Bowen was statutorily obligated,
under California law, “to forward a copy of a compact
upon receipt of the compact and the statute ratifying
it.” Id. at 1-2. The transmittal letter
cautioned that, under the California Constitution, the
statute had a “delayed effective date [to] provide
adequate time” for California citizens to “to
exercise [a state constitutional] right to pursue a
referendum process to approve or reject” the statute or
part of the statute. July 16, 2013 Transmittal Letter at 1;
see Cal. Const., art. II, § 9 (referendum);
id., art. IV, § 8(c)(1) (effective date of
statutes). In this regard, the transmittal letter advised
that, pursuant to the State's “constitutional
authority, ” a referendum measure had been filed to
approve or reject the compact and that, if “the
electorate rejects the statute” ratifying the compact,
“it is of no legal effect.” July 16, 2013
Transmittal Letter at 1-2. Without citation to legal
authority, the letter opined that:
It is, of course, a question of federal law whether this act
of forwarding to the Secretary of the Interior a compact with
a ratifying statute that is, as in this case, subject to the
referendum power, constitutes submitting the compact within
the meaning of 25 U.S.C. § 2710(d)(8)(C), and whether,
prior to the exhaustion of the referendum process, such a
compact has been entered into by the State of California
within the meaning of 25 U.S.C. § 2710(d)(8)(A).
Id. at 2.
the IGRA, the type of gaming activities that the North Fork
Tribe seeks to conduct, class III gaming activities, may not
be conducted on Indian lands unless, inter alia,
“conducted in conformance with a Tribal-State compact
entered into by the Indian tribe . . . that is in
effect.” 25 U.S.C. § 2710(d)(1)(C). A Tribal-State
compact “take[s] effect only when notice of approval by
the Secretary of such compact has been published by the
Secretary in the Federal Register.” Id. §
2710(d)(3)(B). When a Tribal-State compact is submitted to
the Secretary for approval, the Secretary “has three
choices[:]” (1) the Secretary “may approve the
compact, ” id. § 2710(d)(8)(A); (2) the
Secretary “may disapprove the compact, but only if it
violates IGRA or other federal law or trust obligations,
id. § 2710(d)(8)(B);” or (3) the
Secretary “may choose to do nothing, in which case the
compact is deemed approved after forty-five days ‘but
only to the extent the compact is consistent with the
provisions' of IGRA, id. §
2710(d)(8)(C).” Amador Cty., 640 F.3d at 377.
Here, in response to California Secretary Bowen's
“forwarding” of the Compact, the Secretary took
in light of the plaintiffs' added CAA claims, the federal
defendants requested that the instant action be stayed and
partially remanded for the limited purpose of allowing them
to comply with certain CAA notice requirements. See
Fed. Defs.' Mot. Stay Litig. & Partial Remand at 1-2, ECF
No. 63; Partial Remand Order at 1, 3. On December 16, 2013,
the Court granted the federal defendants' motion,
remanding the case without vacatur of the administrative
action taken to date, to allow the defendants to undertake
the notice process required by CAA regulations. Partial
Remand Order at 8. This case was stayed until May 5, 2014,
see Minute Order (Mar. 18, 2014), on which date a
supplemental AR was filed with documents that had been
“inadvertently omitted” from the first AR and
“documents, communications, and other materials
relating to the partial remand, ” see supra
consideration of the federal defendants' motion for
partial remand and another then-pending motion by the
plaintiffs, see Pls.' Mot. Compel Production
Privilege Index & Suppl. AR, ECF No. 58 (denied without
prejudice in light of the Court's Partial Remand Order,
see Minute Order (Dec. 16, 2013)), in October 2013,
the Tribal-State Compact was deemed approved by operation of
law, under 25 U.S.C. § 2710(d)(8)(C), because the
Secretary took no action. Notice of Tribal-State Class III
Gaming Compact taking effect, 78 Fed. Reg. 62, 649 (Oct. 22,
2013). The Secretary was then statutorily obligated to
“publish in the Federal Register notice of any
Tribal-State compact that is approved, or considered to have
been approved.” 25 U.S.C. § 2710(d)(8)(D). The
Secretary published a notice in the Federal
Register, upon which notice the Compact “took
effect.” See 78 Fed. Reg. at 62, 649.
thereafter, the Stand Up plaintiffs again amended their
complaint, adding a new claim challenging, as arbitrary and
capricious, the federal defendants' third decision, in
October 2013, to take no action to disapprove, within the
statutorily-allowed period, the Tribal-State Compact between
the North Fork Tribe and the State of California, thereby
allowing the Compact to become effective upon the
agency's publication of the Compact in the Federal
Register. See Second Amended Compl.
¶¶ 98-104 (Fifth Claim for Relief), ECF No. 84.
Specifically, the plaintiffs allege that “[t]he
Secretary failed to disapprove a compact that has not been
validly entered into by the State of California” and
invalidly published notice of the approval in the Federal
Register. Id. ¶ 102; see also TAC
¶¶ 99-105 (Fifth Claim for Relief). The Stand Up
plaintiffs also moved to compel further supplementation of
the AR, which motion the Court partially granted on October
15, 2014. See Stand Up II, 71 F.Supp.3d at 114, 124;
Pls.' Mot. Compel Suppl. AR & Compel Production Privilege
Index, ECF No. 85. Accordingly, on November 4 and 7, 2014,
the federal defendants again, for the third and fourth times,
supplemented the AR. See supra n.2; Corrected Notice
Filing Suppl. AR, ECF No. 98; Certification Suppl. AR, ECF
November 4, 2014, California voters rejected the California
Legislature's approval of the Tribal-State Compact.
See Debra Bowen, Statement of Vote, Nov. 4, 2014,
General Election, at 15,
(last visited Mar. 13, 2016); Official Voter Information
Guide, Cal. General Election, Nov. 4, 2014, at 40-45, 74,
(last visited Mar. 13, 2016).
one month later, on December 3, 2014, the Stand Up plaintiffs
filed their Third Amended Complaint, ECF No. 103, which is
now the operative complaint for these plaintiffs, adding
another claim for relief under the IRA, the IGRA and the APA
based on the referendum, see Id. ¶¶ 106-15
(Sixth Claim for Relief). Specifically, the plaintiffs allege
that, due to the referendum, the State and the North Fork
Tribe have not entered into a Tribal-State compact permitting
class III gaming and, consequently, the basis for the
Secretary's first two decisions in the IGRA ROD and the
IRA ROD has been removed. Id. ¶¶
parties filed cross-motions for summary judgment, the
briefing for which took almost six months from January until
the end of May 2015 to complete. See Pls.' Mem.
Supp. Mot. Summ. J. (“Pls.' Mem.”), ECF No.
106-1 (filed January 9, 2015); Picayune's Mem. Supp. Mot.
Summ. J. (“Picayune's Mem.”), ECF No. 108-1;
North Fork's Mem. Supp. Mot. Summ. J. & Opp'n
Pls.' Mots. Summ. J. (“North Fork's
Mem.”), ECF No. 111-1; United States' Mem. Supp.
Mot. Summ. J. (“Defs.' Mem.”), ECF No. 112-1;
Pls.' Reply Supp. Summ. J. & Opp'n Cross-Mots. Summ.
J. (“Pls.' Reply”), ECF No. 115;
Picayune's Reply Supp. Mot. Summ. J.
(“Picayune's Reply”), ECF No. 116; North
Fork's Reply Supp. Mot. Summ. J. & Opp'n Pls.'
Mots. Summ. J. (“North Fork's Reply”), ECF
No. 121; United States' Reply Supp. Cross-Mot. Summ. J.
(“Defs.' Reply”), ECF No. 122; Notice Filing
Suppl. Jt. App., ECF No. 133 (filed May 27, 2015).
SUPPLEMENTAL BRIEFING, CALIFORNIA LITIGATION AND RELATED
the parties' arguments in ample briefing regarding the
validity of the Tribal-State Compact, no party raised or
addressed the issue of whether the State of California is a
party required to be joined under Federal Rule of Civil
Procedure 19 and, if so, the effect of California's
absence on the plaintiffs' claims and the parties'
positions. See Kickapoo Tribe v. Babbitt, 43 F.3d
1491, 1495 (D.C. Cir. 1995) (holding that, where the validity
of a tribal-state compact is at issue, the State is an
indispensable party to the suit, reasoning that “the
State . . . has an interest in the validity of a compact to
which it is a party, and this interest would be directly
affected by the relief” sought). In light of binding
precedent in this Circuit, see Id. at 1495 n.3
(making clear that, given its import, the Court has a duty to
raise the issue sua sponte), the Court subsequently
ordered supplemental briefing to address this issue, Mem. &
Order (Sept. 30, 2015), ECF No. 135, which briefing took an
additional two months, from October to December 2015, to
complete, see Pls.' Suppl. Br. Whether Cal. Must
Joined Under Fed.R.Civ.P. 19 (“Pls.' Suppl.
Brief”), ECF No. 139 (filed Nov. 4, 2015);
Picayune's Resp. Court's Order Regarding Joinder Cal.
(“Picayune's Suppl. Br.”), ECF No. 140; North
Fork's Opening Suppl. Br. Rule 19 (“North
Fork's Suppl. Br.”), ECF No. 137; United
States' Suppl. Br. Regarding Order Sept. 30, 2015
(“Defs.' Suppl. Br.”), ECF No. 138; Pls.'
Reply Supp. Suppl. Br. (“Pls.' Suppl.
Reply”), ECF No. 143; Picayune's Resp. Br.
Regarding Joinder Cal. (“Picayune's Suppl.
Reply”), ECF No. 144; North Fork's Reply Br. Supp.
Suppl. Br. Rule 19 (“North Fork's Suppl.
Reply”), ECF No. 141; United States' Reply Suppl.
Brs. Regarding Order Sept. 30, 2015 (“Defs.' Suppl.
Reply”), ECF No. 142 (filed Dec. 2, 2015).
and relatedly, the North Fork Tribe initiated a federal
lawsuit in the Eastern District of California against the
State of California challenging the State's position,
“[f]ollowing the referendum, . . . that the compact
ha[d] not been ratified in accordance with California law and
that the State therefore ha[d] not entered into a compact
with the Tribe.” North Fork Rancheria v. State of
California, No. 15-cv-419-AWI-SAB (“E.D. Cal.
Case”), Compl. (“E.D. Cal. Compl.”) ¶
6, ECF No. 1, available at Pls.' Suppl. Br., Ex.
1, ECF No. 139-1; see E.D. Cal. Case, Answer ¶
6, ECF No. 9 (“aver[ing] that it has been, and is, the
State's position that that [sic] as a result of the
statewide referendum . . ., the statute ratifying the North
Fork Compact never took effect”); Pls.' Notice
Related Cases, ECF No. 118. The IGRA “imposes upon the
States a duty to negotiate in good faith with an Indian tribe
toward the formation of a compact, § 2710(d)(3)(A), and
authorizes a tribe to bring suit in federal court against a
State in order to compel performance of that duty, §
2710(d)(7), ” when, as here, the State has consented to
suit. Seminole Tribe of Florida v. Florida, 517 U.S.
44, 47 (1996); see Cal. Gov't Code § 98005
(consenting to federal court jurisdiction “in any
action brought against the state by any federally recognized
California Indian tribe asserting any cause of action arising
from the state's refusal to enter into negotiations with
that tribe for the purpose of entering into a different
Tribal-State compact pursuant to IGRA or to conduct those
negotiations in good faith”). Pursuant to these
statutory provisions, the North Fork Tribe alleged (1)
“that the State failed to negotiate in good faith
toward an enforceable compact - within the meaning of 25
U.S.C. § 2170(d)(7) - when it ‘refus[ed] to honor
the 2012 Compact based on the . . . referendum'
vote” and (2) “that the State had a duty to
continue negotiation after the referendum yet refused to
enter into negotiations.” E.D. Cal. Case, Order Cross
Mots. J. Pleadings (Nov. 13, 2015) (“E.D. Cal.
Order”) at 8, ECF No. 25 (citing E.D. Cal. Compl.
¶¶ 72, 75-79), available at Pls.'
Suppl. Reply, Ex. A, ECF No. 143-1. Notably, the parties to
that suit, including the North Fork Tribe, the State of
California, and the Picayune Tribe, all agreed “that
the State and the Tribe ha[d] not entered into an enforceable
compact.” Id. at 12.
the course of the supplemental briefing in the instant case,
the Eastern District of California court ruled in favor of
the North Fork Tribe and, deciding only the second issue,
held “that the State failed to enter into negotiations
with North Fork for the purpose of entering into a
Tribal-State compact within the meaning of § 2710,
” id. at 9, 23, by “flatly refus[ing] to
negotiate with the tribe regarding the Madera parcel”
after the referendum, id. at 19. Consequently, the
court ordered the parties “to conclude a compact within
60 days . . . [, ]” id. at 23, pursuant to an
IGRA provision requiring a court to “order the State
and the Indian Tribe to conclude . . . a compact within a
60-day period, ” when “the court finds that the
State has failed to negotiate in good faith with the Indian
tribe to conclude [such] a . . . compact, ” 25 U.S.C.
§ 2710(d)(7)(B)(iii). The State of California did not
appeal the court's decision and, thus, it is final.
See North Fork's Notice Devs. Arising From
Related Case (“North Fork's Notice”) ¶
7, ECF No. 154; Defs.' Notice Proposed Compact Submission
(“Defs.' Notice”) at 1 n.1, ECF No. 155;
Defs.' Notice Related Devs. (“Defs.' Second
Notice”) at 1, ECF No. 163.
the parties failed to conclude a compact within the
prescribed time, see E.D. Cal. Case, Jt. Resp. Order
Show Cause Why Court Should Not Order Parties Mediation
Pursuant 25 U.S.C. § 2710(d)(7)(B)(iv) (Jan. 13, 2016),
ECF No. 26, the court continued down the path of the
IGRA's “elaborate remedial scheme designed to
ensure the formation of a Tribal-State contract, ”
Seminole Tribe, 517 U.S. at 50, and appointed a
mediator to select a proposed compact and facilitate
additional procedures, as prescribed by §
2710(d)(7)(B)(iv) through (vii) of the IGRA, E.D. Cal. Case,
Order Confirming Selection Mediator Pursuant 25 U.S.C. §
2710(d)(7)(B)(iv) & Requiring Parties Submit Their Last Best
Offers Compact (Jan. 26, 2016), ECF No. 30; see also
North Fork's Notice ¶¶ 6-9. The mediator
selected the North Fork Tribe's proposed compact and,
since California “failed to give final and binding
consent to the compact selected, ” the mediator
“provided notice to the U.S. Department of Interior
that no agreement was reached by the parties, ”
pursuant to 25 U.S.C. § 2710(d)(7)(B)(vii) (providing
that the mediator shall notify the Secretary if the State
does not consent to the proposed compact selected by the
mediator within a 60-day time period). North Fork's
Notice ¶¶ 10-11; Defs.' Notice at 1.
IGRA then required “the Secretary [to] prescribe, in
consultation with the Indian Tribe, procedures [(1)] which
are consistent with the proposed compact selected by the
mediator . . ., the provisions of [the IGRA], and the
relevant provisions of the laws of the State, and [(2)] under
which class III gaming may be conducted on the Indian lands
over which the Indian tribe has jurisdiction.” 25
U.S.C. § 2710(d)(7)(B)(vii). On July 29, 2016, Lawrence
S. Roberts, Acting Assistant Secretary of Indian Affairs,
notified the North Fork Tribe and the State of California
that, after reviewing the mediator's compact submission,
“procedures under which the [North Fork Tribe] may
conduct Class III gaming consistent with IGRA” had been
issued and, thus, “Secretarial Procedures for the
conduct of Class III gaming on the Tribe's Indian lands
are prescribed and in effect.” Defs.' Second
Notice, Ex. A, Letter from Lawrence S. Roberts to Maryann
McGovran, Chairwoman, North Fork Rancheria of Mono Indians
(July 29, 2016) at 1, 3, ECF No. 163-1; see also
id., Secretarial Procedures for the North Fork Rancheria
of Mono Indians (Draft, May 13, 2016) (“Secretarial
Procedures”), ECF No. 163-1. The Secretarial Procedures
provide that they constitute “the full and complete
authorization by the Secretary of the Interior for the Tribe
to conduct class III gaming in its Indian lands pursuant to
IGRA, ” and “supersede any prior agreements or
understandings with respect to the subject matter
hereof.” Secretarial Procedures at 92, 99 (§§
14.1, 18.2). The Procedures further provide that, upon their
effective date, “any and all prior tribal-state Class
III gaming compacts entered into between the Tribe and the
State shall be null and void and of no further force and
effect.” Id. at 99 (§ 18.2).
one month before the Secretarial Procedures were issued, the
Picayune Tribe filed, on July 1, 2016, another federal
lawsuit in the Eastern District of California, against the
same federal defendants in this case, asserting seven claims
for relief. See Defs.' Second Notice at 2;
Picayune Rancheria v. U.S. Dep't of the
Interior, No. 16-cv-950-AWI-EPG (E.D. Cal. July 1,
2016), Compl. ¶¶ 49-94, ECF No. 1. In that case,
the Picayune Tribe challenges, inter alia, the
effectiveness of the Governor's concurrence in the August
31, 2012 IGRA ROD on three separate grounds, see Id.
at ¶¶ 53, 64, 69, the continuing validity and
effect of the IGRA ROD, see Id. ¶¶ 74, 81,
and the Secretary's ability, in light of the referendum
vote, to “prescribe any procedures under which class
III gaming can occur on the Madera [Site], ”
id. at ¶ 86.
CALIFORNIA STATE COURT LITIGATION
addition to the instant lawsuit and federal lawsuits in the
Eastern District of California, the plaintiff Stand Up for
California! brought a lawsuit in California Superior Court
for the County of Madera against, inter alia, the
State of California, challenging, as in this case, the
Governor's authority, under California law, to concur in
the Secretary's two-part IGRA determination. Pls.'
Mem. at 28 n.23; see North Fork Rancheria of Mono Indians
v. California, No. 15-cv-419-AWI-SAB, 2016 WL 3519245,
at *4 (E.D. Cal. June 27, 2016). The North Fork Tribe
intervened in that litigation as a defendant, as in this
case, and, on February 27, 2014, asserted a cross-complaint
against, inter alia, the State of California,
“challenging the validity of the referendum” and
“alleg[ing] that ratification of a tribal-state compact
by the Legislature is not subject to the power of referendum
under the California Constitution, and [that] the referendum
impermissibly conflicts with the federal compact approval
process under IGRA.” Pls.' Suppl. Br. at 5; see
id., Ex. 3 (Verified Cross-Compl. Intervenor-Def. North
Fork Rancheria Declaratory Relief) ¶ 35 (seeking
“[a] judicial determination and declaration as to the
validity of the Referendum Petition and its impact on the
current status and future effectiveness of the
Compact”), ECF No. 139-3.
lower California court found against both the plaintiff Stand
Up for California! and the defendant-intervenor North Fork
Tribe, in favor of the State of California. With respect to
Stand Up for California!'s complaint, the court held
“that the Governor was authorized to concur [in the
two-part IGRA determination] under the California
Constitution . . . . because issuing the concurrence was
necessary for him to negotiate and conclude a compact with
the Tribe.” Pls.' Mem. at 28 n.23. The court
also rejected the North Fork Tribe's position, finding,
instead, that the ratified Tribal-State Compact was subject
to the referendum and that the referendum was valid and did
not conflict with the IGRA. Pls.' Suppl. Br. at 5-6;
North Fork Rancheria v. California, 2016 WL 3519245,
at *4; see generally Pls.' Suppl. Br., Ex. 4
(Ruling Dems. Cross-Complainant's Cross-Compl.
(“Cal. Super. Ct. Ruling”)), ECF No.
Stand Up for California! and the North Fork Tribe appealed
the lower court's rulings. Pls.' Mem. at 28 n.23;
Stand Up for California v. California, Case No.
MCV062850 (Cal. Super. Ct. Madera Cty. Mar. 3, 2014),
appeal filed, Case No. F069302 (Cal. 5th Dist. Ct.
App. Apr. 11, 2014) (“Pls.' State Case”);
Stand Up for California v. California, Case No.
MCV062850 (Cal. Super. Ct. Madera Cty. June 26, 2014),
appeal filed, Case No. F070327 (Cal. 5th Dist. Ct.
App. Oct. 27, 2014). The North Fork Tribe dismissed its
appeal on June 2, 2016. North Fork Rancheria v.
California, 2016 WL 3519245, at *4. Stand Up for
California!'s appeal, however, is still currently pending
before California's Fifth District Court of Appeal.
Pls.' Mem. at 28 n.23; see also North Fork Rancheria
v. California, 2016 WL 3519245, at *4 (explaining that,
in the decision “presently pending before
California's Fifth District Court of Appeal, ”
“[t]he Madera County Superior Court held that the
Governor's authority to concur with the Secretary's
determination is implicit in the Governor's authority to
negotiate and conclude Tribal-State compacts on behalf of the
PARTIES' POSITIONS ON RECENT DEVELOPMENTS
the issuance of the Secretarial Procedures, the parties
disputed the effect of the related litigation and
corresponding events on the instant suit. While the North
Fork Tribe predicted that the recent developments “may
affect the resolution of Stand Up's fifth and sixth
claims for relief, as both claims assume that North Fork is
seeking to game on the basis of the 2012 Compact, and neither
contemplates the possibility of Secretarial procedures,
” North Fork's Notice ¶ 13, the federal
defendants bluntly posited that “Stand up's Fifth
and Sixth claims for relief, which concern the deemed
approved compact, . . . will be mooted when the Secretary
issues procedures that supplant the deemed approved compact,
” Defs.' Notice at 2.
Stand Up plaintiffs disagreed. According to them, their
“Fifth Claim . . . is not moot until the compact
terminates under its own terms or the federal defendants
affirmatively terminate the compact in some lawful manner,
” and their Sixth Claim would not be moot because it
“does not challenge the validity of the compact, but
rather the validity of the trust acquisition and two-part
determination.” Pls.' Objs. Notice Devs. Arising
From Related Case & Notice Proposed Compact Submission at
2-3, ECF No. 156. Yet, the Stand Up plaintiffs nonetheless
suggested that “[t]he Court [could not] resolve
plaintiffs' Sixth Cause of Action until such time as the
Secretary prescribes procedures and the parties have the
opportunity to brief the effect of those procedures on the
challenged trust decision.” Id. at 3.
Accordingly, the Stand Up plaintiffs asked the Court to
“disregard” recent events, “adjudicate
plaintiffs' claims on the administrative record[,
]” and “[i]n the event the Secretary prescribes
procedures, the Court should order further supplemental
briefing on the effect of such procedures.”
Id. at 4.
yet another reason for additional supplemental briefing in
this long-standing litigation, the Picayune Tribe, joined by
the Stand Up plaintiffs, requested a “briefing schedule
to address the recent developments[, ] . . . . the parallel
litigation[, ] . . . [and] the legal consequences
here.” Picayune's Mot. Suppl. Briefing at 1, ECF
No. 158; Pls.' Joinder Picayune's Mot. Suppl.
Briefing at 1, ECF No. 161. The Picayune Tribe also suggested
the need for another “remand to the agency, ”
especially because the newly established compact “has
fundamental and voluminous changes from the prior compact,
including the elimination of all mitigation to other tribes
affected by the compact.” Picayune's Mot. Suppl.
Briefing at 1, 3-4.
August 16, 2016, upon consideration of the recent
developments and “to avoid additional delay in
resolution of the pending motions, ” the Court denied
the Picayune Tribe's motion for supplemental briefing,
but directed the parties to submit a “brief summary . .
. of their position on the effect, if any, on the claims
pending in this case of the related developments.”
Minute Order (Aug. 16, 2016). The parties' positions are
substantially the same. See generally Pls.'
Summ. Positions Pending Cls. (“Pls.' Summ.”),
ECF No. 164; Pl. Picayune's Resp. Ct.'s Aug. 16, 2016
Order (“Picayune's Summ.”), ECF No. 165;
Defs.' Notice Regarding Order Aug. 16, 2016
(“Defs.' Summ.”), ECF No. 167; North
Fork's Resp. Order Concerning Effect Related Devs.
(“North Fork's Summ.”), ECF No. 166.
federal defendants assert that the Stand Up plaintiffs'
Fifth and Sixth Claims for Relief “and their associated
issues are now moot” due to “the issuance of
Secretarial Procedures which rendered the prior Compact
challenged by Stand Up ‘null and void.'”
Defs.' Summ. at 1, 4. The North Fork Tribe agrees with
the federal defendants that the Stand Up plaintiffs'
Fifth Claim for Relief is moot and, similarly, argues that
“[t]he issuance of Secretarial procedures . . .
provides an additional reason to reject Stand Up's sixth
claim for relief.” North Fork's Summ. at 1.
contrast, the Stand Up plaintiffs maintain that “the
related developments . . . have no effect on any claims
pending in this case, except to the extent that they
demonstrate Plaintiffs' entitlement to summary judgment
on their challenges to the trust acquisition and the
authorization of gaming at the Madera Site.” Pls.'
Summ. at 1. They continue to argue that “the
Secretarial Procedures do not moot or otherwise
invalidate” their Fifth and Sixth Claims for Relief
because “the Fifth Claim is not moot unless the federal
defendants concede that in publishing approval of the Compact
in the Federal Register the Secretary violated the APA”
and the “Sixth Claim challenges the Secretary's
2011 and 2012 records of decision to acquire the Madera
[S]ite into trust for gaming, not the validity of the
Compact, ” largely reiterating the allegations in their
Third Amended Complaint and corresponding arguments already
made in prior briefing. Id. at 2-3; see
generally Id. at 3-10. The Picayune Tribe, piggybacking
on the Stand Up plaintiffs' Sixth Claim for Relief,
likewise argues that “the issuance of Secretarial
Procedures shows that the IRA and IGRA decisions must be
vacated” because “the decisions relied on a
compact that never took effect.” Picayune's Summ.
at 1, 4-5. The parties' arguments are addressed in more
detail infra in Part III.A and B.
pending motions for summary judgment are ripe for review.
MOTION FOR SUMMARY JUDGMENT
to Federal Rule of Civil Procedure 56, summary judgment may
be granted when the court finds, based upon the pleadings,
depositions, and affidavits and other factual materials in
the record, “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c); see Tolan
v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). “A genuine issue of material fact exists if the
evidence, ‘viewed in a light most favorable to the
nonmoving party, ' could support a reasonable jury's
verdict for the non-moving party.” Muwekma Ohlone
Tribe v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013)
(quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.
cases such as this one, involving cross-motions for summary
judgment, “the district judge sits as an appellate
tribunal. The ‘entire case' on review is a question
of law.” Am. Bioscience, Inc. v. Thompson, 269
F.3d 1077, 1083 (D.C. Cir. 2001) (collecting cases).
Accordingly, this Court need not and ought not engage in
lengthy fact finding, since “[g]enerally speaking,
district courts reviewing agency action under the APA's
arbitrary and capricious standard do not resolve factual
issues, but operate instead as appellate courts resolving
legal questions.” James Madison Ltd. ex rel. Hecht
v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see
also Lacson v. U.S. Dep't of Homeland Sec., 726 F.3d
170, 171 (D.C. Cir. 2013) (noting, in APA case, that
“determining the facts is generally the agency's
responsibility, not ours”); Sierra Club v.
Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006)
(“Under the APA . . . the function of the district
court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to
make the decision it did.” (quotations and citation
omitted)). Judicial review is limited to the administrative
record, since “[i]t is black-letter administrative law
that in an [Administrative Procedure Act] case, a reviewing
court should have before it neither more nor less information
than did the agency when it made its decision.” CTS
Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014)
(quotations and citations omitted; alteration in original);
see 5 U.S.C. § 706 (“[T]he Court shall
review the whole record or those parts of it cited by a party
. . . .”); Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 743 (1985) (noting, when applying arbitrary and
capricious standard under the APA, “‘[t]he focal
point for judicial review should be the administrative record
already in existence . . . .'” (quoting Camp v.
Pitts, 411 U.S. 138, 142 (1973))).
ADMINISTRATIVE PROCEDURE ACT
the APA, a reviewing court must set aside a challenged agency
action that is found to be, inter alia,
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, ” 5 U.S.C. §
706(2)(A); “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right,
” id. § 706(2)(C); or “without
observance of procedure required by law, ” id.
§ 706(2)(D); Otis Elevator Co. v. Sec'y of
Labor, 762 F.3d 116, 120-21 (D.C. Cir. 2014) (citing
Fabi Constr. Co. v. Sec'y of Labor, 370 F.3d 29,
33 (D.C. Cir. 2004)). The arbitrary or capricious provision,
under subsection 706(2)(A), “is a catchall, picking up
administrative misconduct not covered by the other more
specific paragraphs” of the APA. Ass'n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed.
Reserve Sys. (ADPSO), 745 F.2d 677, 683 (D.C.
Cir. 1984) (Scalia, J.).
scope of review under the “arbitrary and capricious
standard is ‘highly deferential, '” Am.
Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety
Admin., 724 F.3d 243, 245 (D.C. Cir. 2013) (quoting
Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C.
Cir. 2008)), and “narrow, ” such that “a
court is not to substitute its judgment for that of the
agency, ” Judulang v. Holder, 132 S.Ct. 476,
483 (2011) (quotations omitted); Ark Initiative v.
Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016); Fogo De
Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec.,
769 F.3d 1127, 1135 (D.C. Cir. 2014); Agape Church, Inc.
v. FCC, 738 F.3d 397, 408 (D.C. Cir. 2013). This
“highly deferential” standard, which
“presumes agency action to be valid, ” Defs.
of Wildlife v. Jewell, 815 F.3d 1, 9 (D.C. Cir. 2016)
(quotations and citation omitted), “is especially
applicable [to] . . . ‘technical determinations on
matters to which the agency lays claim to special expertise,
'” Rosebud Mining Co. v. Mine Safety & Health
Admin., Nos. 14-1285, 14-1286, 2016 WL 3606369, at *8
(D.C. Cir. July 5, 2016) (quoting Bldg. & Constr. Trades
Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C.
Cir. 1988)). Yet, “courts retain a role, and an
important one, in ensuring that agencies have engaged in
reasoned decisionmaking.” Judulang, 132 S.Ct.
at 483-84. Simply put, “the agency must explain why it
decided to act as it did, ” Butte Cty. v.
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010), and the
reason for the agency's decision must be “both
rational and consistent with the authority delegated to it by
Congress, ” Xcel Energy Servs. Inc. v. Fed. Energy
Regulatory Comm'n, 815 F.3d 947, 952 (D.C. Cir.
evaluating agency actions under the “arbitrary and
capricious” standard, courts “must consider
whether the [agency's] decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.” Marsh v. Ore. Nat.
Res. Council, 490 U.S. 360, 378 (1989) (quotations
omitted) (citing Citizens to Preserve Overton Park, Inc.
v. Volpe (Overton Park), 401 U.S. 402, 416
(1971), overruled on other grounds by Califano v.
Sanders, 430 U.S. 99, 105 (1977)); Blue Ridge Envtl.
Def. League v. Nuclear Regulatory Comm'n, 716 F.3d
183, 195 (D.C. Cir. 2013). “An agency acts arbitrarily
or capriciously if it has relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an explanation
either contrary to the evidence before the agency or so
implausible as to not reflect either a difference in view or
agency expertise.” Defs. of Wildlife v.
Jewell, 815 F.3d at 9. When an agency
“‘fail[s] to provide a reasoned explanation, or
where the record belies the agency's conclusion, [the
court] must undo its action.'” Cty. of L.A. v.
Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting
BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C.
Cir. 1999)); see Select Specialty Hosp.-Bloomington, Inc.
v. Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (noting
that when “‘an agency's failure to state its
reasoning or to adopt an intelligible decisional standard is
. . . glaring . . . we can declare with confidence that the
agency action was arbitrary and capricious'”
(quoting Checkosky v. SEC, 23 F.3d 452, 463 (D.C.
Cir. 1994))). At the very least, the agency must have
reviewed relevant data and articulated a satisfactory
explanation establishing a “‘rational connection
between the facts found and the choice made.'”
Ark Initiative, 816 F.3d at 127 (quoting Motor
Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)); Am.
Trucking Ass'ns, Inc., 724 F.3d at 249 (same);
see also EPA v. EME Homer City Generation, L.P., 134
S.Ct. 1584, 1602 (2014) (holding that agency “retained
discretion to alter its course [under a regulation] provided
it gave a reasonable explanation for doing so”);
Amerijet Int'l, Inc. v. Pistole, 753 F.3d 1343,
1350 (D.C. Cir. 2014) (“[A] fundamental requirement of
administrative law is that an agency set forth its reasons
for decision; an agency's failure to do so constitutes
arbitrary and capricious agency action.” (quotations
and citation omitted)). “[C]onclusory statements will
not do; an agency's statement must be one of
reasoning.” Amerijet Int'l Inc.,
753 F.3d at 1350 (quotations omitted; emphasis in original).
when review of an agency's action is “bound up with
a record-based factual conclusion, ” the reviewing
court must determine whether that conclusion “is
supported by substantial evidence.” Dickinson v.
Zurko, 527 U.S. 150, 164 (1999) (quotations omitted);
see also Kappos v. Hyatt, 132 S.Ct. 1690, 1695
(2012) (affirming review of “factual findings under the
APA's deferential ‘substantial evidence'
standard”). “Substantial evidence” is
“enough evidence to justify, if the trial were to a
jury, a refusal to direct a verdict when the conclusion
sought to be drawn is one of fact for the jury.”
Defs. of Wildlife v. Jewell, 815 F.3d at 9
(quotations and citation omitted). “An agency's
factual findings must be upheld when supported by substantial
evidence in the record considered as a whole.”
Id.; see also Kaufman v. Perez, 745 F.3d
521, 527 (D.C. Cir. 2014) (noting that agency factual
findings may be “set aside . . . ‘only if
unsupported by substantial evidence on the record as a
whole.'” (quoting Chippewa Dialysis Servs. v.
Leavitt, 511 F.3d 172, 176 (D.C. Cir. 2007)));
Dillmon v. Nat'l Transp. Safety Bd., 588 F.3d
1085, 1089 (D.C. Cir. 2009) (noting that agency's factual
findings may be adopted “as conclusive if supported by
substantial evidence . . . even though a plausible
alternative interpretation of the evidence would support a
contrary view” (quotations omitted)).
their Third Amended Complaint, the Stand Up plaintiffs
challenge the three administrative decisions at issue in this
case on eight grounds divided into six separate claims.
See generally TAC. Specifically, the Stand Up
plaintiffs challenge: (1) the federal
“[d]efendants' determination that the Secretary is
authorized to acquire land in trust for the [North Fork]
Tribe under [the IRA, ] 25 U.S.C. § 465[, ]” in
violation of the IRA and the APA, TAC ¶ 60; see
Id. ¶¶ 56-60 (First Claim for Relief); (2) the
federal defendants' determinations, under the IGRA, 25
U.S.C. § 2719(b)(1)(A), “that the casino's
detrimental impacts will be mitigated” and “that
the proposed project will not be detrimental to the
surrounding community, ” in violation of the IGRA and
the APA, TAC ¶ 68; see Id. ¶¶ 61-68
(Second Claim for Relief); (3) “the Secretary's
decision to take the [Madera Site] into trust for the purpose
of conducting class III gaming based on the [Governor of
California's] invalid concurrence, ” in violation
of the IGRA and the APA, id. ¶¶ 63, 68
(part of Second Claim for Relief); (4) the DOI's issuance
of the IGRA ROD, IRA ROD and FEIS allegedly “without
obtaining, considering and evaluating sufficient data”
and in spite of “serious procedural defects during the
review process, ” in violation of the NEPA and the APA,
id. ¶ 70; see Id. ¶¶ 69-82
(Third Claim for Relief); (5) the federal defendants'
conformity determination, under the CAA, allegedly
“utiliz[ing] . . . emissions estimates that were based
upon manipulated and unsupported assumptions” and
“fail[ing] to identify, describe, and adopt a process
for implementation and enforcement of . . . mitigation
measures, ” in violation of the CAA and the APA,
id. ¶¶ 93-95; see Id.
¶¶ 83-98 (Fourth Claim for Relief); (6) the
Secretary's “fail[ure] to disapprove a
[tribal-state] compact that has not been validly entered into
by the State of California” and subsequent publication
of notice of the approval of the compact in the Federal
Register, in violation of the IGRA and the APA, id.
¶¶ 103-05; see id. ¶¶ 99-105
(Fifth Claim for Relief); (7) the federal defendants'
“decision to keep the [Madera Site] in trust, ”
despite the November 4, 2014 referendum vote in which
California voters rejected the Tribal-State Compact, which
referendum vote allegedly rendered “the purpose for
which the land was acquired into trust . . . no longer
viable” and invalidated “the grounds on which the
[IGRA ROD], the FEIS, and the [CAA] determinations”
were based, in violation of the IRA, the IGRA, and the APA,
id. ¶¶ 107, 115; see Id.
¶¶ 106-15 (Sixth Claim for Relief); and (8) the
federal defendants' “decision to keep the [Madera
Site] in trust, ” despite the fact that, since a
Tribal-State compact “no longer exists, ” the
Governor of California's concurrence in the two-part IGRA
determination no longer applies, in violation of the IRA, the
IGRA, and the APA, id. ¶¶ 111, 115 (part
of Sixth Claim for Relief).
Picayune Tribe asserts two causes of action, challenging (1)
the federal defendants' alleged “fail[ure] to
properly consider detrimental impacts on the Picayune
Tribe” and “the North Fork Tribe's lack of
historical connection to the Madera Site, ” in
violation of the IGRA and the APA, Picayune's Compl.
¶¶ 50-51, see Id. ¶¶ 49-53
(First Cause of Action); and (2) the federal defendants'
decision to acquire land under the IRA on behalf of the North
Fork Tribe based on the allegedly “invalid IGRA
Decision, ” in violation of the IRA and the APA,
id. ¶ 56; see Id. ¶¶ 54-59
(Second Cause of Action).
light of the Secretarial Procedures prescribed by the
Secretary under which the North Fork Tribe may conduct class
III gaming on the Madera Site, the Stand Up plaintiffs'
sixth and seventh challenges, as enumerated above, are
effectively moot. The Stand Up plaintiffs' third and
eighth challenges implicate state action under state law, and
thus, raise the issue of whether the State of California is
required, yet unable, to be joined as a party in this suit,
pursuant to Rule 19 of the Federal Rules of Civil Procedure.
The Court first addresses these claims, before turning to
both groups of plaintiffs' challenges to the IGRA and IRA
RODs, followed by the Stand Up plaintiffs' NEPA and CAA
STAND UP PLAINTIFFS' FIFTH AND SIXTH CLAIMS FOR
Stand Up plaintiffs challenge the Secretary's actions
with respect the 2012 Tribal-State Compact, executed by the
North Fork Tribe and Governor Brown, see supra Part
I.C, based on the Compact's alleged invalidity.
Specifically, in their Fifth Claim for Relief, the plaintiffs
claim that the Secretary violated the APA and the IGRA by
“fail[ing] to disapprove” the Compact upon
receiving it from California Secretary Bowen, and thereafter
publishing notice of approval in the Federal
Register, TAC ¶¶ 103-05, because “[t]he
compact between the North Fork Tribe and the State of
California ha[d] not been validly entered into and [was] not
binding on the State of California” pending the
referendum vote in the November 2014 general election,
id. ¶ 102. Similarly, in their Sixth Claim for
Relief, the plaintiffs claim that the Secretary violated the
APA, the IGRA, and the IRA by deciding to keep the Madera
Site in trust for the North Fork Tribe, id. ¶ 115, even
though the “California voters, pursuant to their right
of referendum, rejected the compact, ” in the November
2014 general election, and, consequently, “the State
has not entered into a compact with the North Fork Tribe and
the Tribe has no compact under which it can develop its
proposed class III gaming facility for which the [Madera
Site] was taken into trust, ” id. ¶ 107.
parties agree that the 2012 Tribal-State Compact is not in
effect and will not govern the North Fork Tribe's gaming
operations at the Madera Site. See Pls.' Summ.
at 4 (“[The] Compact . . . was never legally
effective.”); Picayune's Summ. at 4 (“[A]
compact . . . was never in effect.”); Defs.' Summ.
at 5 (“The challenged Compact is now ‘null and
void' . . . .”); North Fork's Summ. at 6
(“Now that Secretarial procedures have been issues, . .
. the 2012 Compact has been superseded . . . .”). As a
result, the validity of the Compact is simply no longer at
issue, and the plaintiffs' claims that are premised upon
the Compact's alleged invalidity fail to provide a basis
upon which relief can be granted. See Boose v. District
of Columbia, 786 F.3d 1054, 1058 (D.C. Cir. 2015)
(explaining “the relationship between mootness and the
STAND UP PLAINTIFFS' CHALLENGES TO THE GOVERNOR'S
of their Second Claim for Relief, for violations of the IGRA
and the APA, the Stand Up plaintiffs allege that Governor
Brown's concurrence in the IGRA ROD “is
invalid” because it was a “policy-making
decision that bound the state, constituting a legislative
act for which he lacked authority under California
law.” TAC ¶¶ 63, 68; see also
Pls.' Mem. at 29 (“California law nowhere expressly
authorizes the Governor to issue concurrences.”).
Similarly, as part of their Sixth Claim for Relief, for
violations of the IRA, the IGRA, and the APA, the Stand Up
plaintiffs allege that “a crucial ground” for the
Governor's “concurrence no longer exists[, ]”
since the concurrence “was based on the development of
a class III gaming facility at the [Madera Site] pursuant to
a compact between the State and the Tribe.” TAC ¶
111. As a result, the plaintiffs allege that “the
Secretary's decision to take the [Madera Site] into trust
for the purpose of conducting class III gaming, ”
id. ¶ 68, and “the decision to keep the
[Madera Site] in trust, ” are “arbitrary,
capricious, an abuse of discretion, unsupported by
substantial evidence, ” id. ¶ 115,
“not in accordance with law, and, . . . must be set
aside, ” id. ¶ 68; see also
Pls.' Mem. at 28 (“The Secretary's approval of
off-reservation gaming at the Madera [S]ite is invalid under
IGRA because the Governor of California lacked the authority
under California state law to concur in the Secretary's
two-part determination. . . . [and], even if the Governor had
authority to concur, the grounds upon which he concurred are
no longer valid because of the referendum rejecting the
compact.”); id. at 19 (“[T]he Governor
granted his concurrence specifically and only for a class III
facility under the compact, which contained an agreement with
the Wiyot Tribe to forego gaming on its land.”);
Pls.' Reply at 37 (“Plaintiffs argue that the
Secretary's two-part determination is invalid because the
concurrence was void ab initio.”); Pls.'
Summ. at 7 (asserting that certain Compact provisions
“were the express grounds of the Governor's
plaintiffs conflate and, in effect, challenge, three separate
actions: (1) the Secretary's two-part determination
approving off-reservation gaming at the Madera Site,
i.e., the IGRA ROD; (2) the Governor's
concurrence in the IGRA ROD; and (3) the Secretary's
decision to acquire the Madera Site in trust on behalf of the
North Fork Tribe, i.e., the IRA ROD. The Court first
addresses the plaintiffs' challenge to the
Secretary's two-part determination, before addressing the
plaintiffs' challenges to the Governor's concurrence
and the Secretary's land acquisit ion decisio n.
Two-Part Determination (IGRA ROD)
initial matter, the North Fork Tribe appropriately points out
that, with respect to the IGRA ROD, the plaintiffs'
“argument makes no sense” because “the
Secretary's [two-part] determination is not dependent on
the Governor's concurrence, and necessarily comes
before the Governor even has a chance to
concur.” North Fork's Mem. at 59-60 (emphasis in
original); see 25 U.S.C. § 2719(b)(1)(A)
(permitting gaming on lands acquired in trust by the
Secretary if the Secretary makes a two-part determination and
the Governor concurs in that determination); 25 C.F.R. §
292.13(c)-(d) (same); id. § 292.22 (providing
that “[i]f the Secretary makes a favorable Secretarial
Determination, the Secretary will send to the Governor of the
State, ” inter alia, [a] request for the
Governor's concurrence in the Secretarial
Determination”). As such, the IGRA ROD in this case was
issued in September 2011, and the Governor did not concur in
that decision until almost a year later, in August 2012.
See Concurrence Letter at 1-2.
plaintiffs respond that “even though the Secretary
makes the two-part determination prior to requesting the
concurrence, the Secretary has no authority to issue a final
decision or give legal effect to the two-part determination
unless and until the governor concurs.” Pls.' Reply
at 39; see also Id. at 38-39 (arguing that the
“IGRA requires that the state approvals be in place
before the Secretary can take any action under federal
law” because “Congress conditioned . . . the
[Secretary's] two-part determination on state
approval”); id. at 39 (“Contrary to the
[North Fork] Tribe's assertion, the two-part
determination is totally dependent upon the
concurrence.”); Pls.' ...