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State v. United States Department of Interior

United States District Court, District of Columbia

September 29, 2018

UNITED STATES DEPARTMENT OF THE INTERIOR and RYAN ZINKE, Secretary of the Interior, Defendant.

          MEMORANDUM OPINION RE DOCUMENT NOS. 11, 18, 28, 30, 31, 34, 44, 49


         Granting MGM's Motion to Intervene; Granting Federal Defendants' Motion to Dismiss


         The approval and regulation of gambling (or “gaming”) on Native American (“tribal”) land requires a careful balancing of tribal, state, and federal law, and this action implicates that balance. Plaintiffs the state of Connecticut (the “state”) and the Mashantucket Pequot Tribe (“Pequot”) seek to amend the federally-imposed procedures authorizing gambling on Pequot land within Connecticut under the federal Indian Gaming Regulatory Act (the “IGRA”). This amendment is necessary for Pequot to operate a commercial casino on Connecticut land. The procedures require that Plaintiffs obtain the Secretary of the Interior's (the “Secretary”) approval to amend them; approval the Secretary has withheld. Plaintiffs assert that the IGRA requires that the Secretary and the United States Department of the Interior (the “Department”) (together, “Federal Defendants”) deem the amendments approved, and they ask this Court to require the Secretary to publish a notice of approval in the Federal Register.

         MGM Resorts Global Development, LLC (“MGM”), a multinational commercial casino operator, claims to have an interest in this action because the Secretary's approval of Plaintiffs' proposed amendments would give Pequot a competitive advantage over MGM in the market for commercial gambling in Connecticut and the surrounding states. First, MGM asserts that both it and Pequot have proposed the development of a casino in Bridgeport, Connecticut, and the state's approval of one proposal over the other largely hinges on the Secretary's decision at issue in this action. Second, MGM asserts that the Secretary's approval of Plaintiffs' proposed amendments would clear the final hurdle preventing the development of a casino in East Windsor, Connecticut that would directly compete with MGM's casino in Springfield, Massachusetts. Accordingly, MGM seeks to intervene as a defendant.

         Now before the Court are Federal Defendants' motion to dismiss the action, MGM's motion to intervene as a defendant, and several related motions. For the reasons stated below, the Court will allow MGM to intervene as a defendant and it will dismiss Plaintiffs' complaint for failure to state a claim upon which relief may be granted.


         A. Statutory and Regulatory Background

          The IGRA governs Class III casino gaming-blackjack, roulette, and other table games-on tribal land. 25 U.S.C. §§ 2701 et seq.; 25 C.F.R. § 502.4; Amador Cty., Cal. v. Salazar, 640 F.3d 373, 376 (D.C. Cir. 2011). It mandates that a tribe must obtain authorization from a state before conducting Class III gaming on land within that state's borders. 25 U.S.C. § 2710(d)(1)(C). Typically, such authorization is secured through a negotiated agreement between the tribe and the state, a “tribal-state compact.” 25 U.S.C. § 2710(d)(3)(A). However, the IGRA authorizes the Secretary to prescribe “procedures” (“secretarial procedures” or “procedures”) authorizing a tribe to conduct Class III gaming if the tribe and the state cannot reach an agreement. See 25 U.S.C. § 2710(d)(7)(B)(vii).[1] The two forms of authorization-tribal-state compacts and secretarial procedures-are governed by separate subsections of the IGRA as follows.

         1. Tribal-State Compact

         Section 2710(d)(8) governs the approval of tribal-state compacts, and 25 C.F.R. § 293.1 et seq. implement that section. Section 2710(d)(8)(A) authorizes the Secretary to approve compacts, and 25 C.F.R. § 293.3 further authorizes the Secretary to approve amendments to those compacts. The Secretary must either approve or disapprove a tribal-state compact and its amendments within 45 days of receipt. 25 U.S.C. § 2710(d)(8)(A)-(C); 25 C.F.R. §§ 293.4(b), 293.12. The Secretary may disapprove a compact or compact amendment for one of three reasons: (1) it violates the IGRA, (2) it violates any other provision of Federal law that does not relate to jurisdiction over gaming on tribal land, or (3) it violates the United States' trust obligations to Native Americans. 25 U.S.C. § 2710(d)(8)(B); 25 C.F.R. § 293.14. Importantly for this action, if the Secretary fails to explicitly approve or disapprove a tribal-state compact or amendment “described in subparagraph [2710(d)(8)(A)]” within 45 days, the compact or amendment “shall be considered to have been approved by the Secretary . . . .” 25 U.S.C. § 2710(d)(8)(C); 25 C.F.R. § 293.12.

         A tribal-state compact or compact amendment that has been approved by the Secretary or deemed approved by operation of law takes effect when notice of its approval is published in the Federal Register. 25 U.S.C. § 2710(d)(3)(B); 25 C.F.R. § 293.15(a). And the Secretary “shall publish . . . notice of” the approval within 90 days from the date the compact or amendment was received by the Office of Indian Gaming.[2] 25 U.S.C. § 2710(d)(8)(D); 25 C.F.R. § 293.15. In other words, the Secretary may only disapprove a tribal-state compact or compact amendment within 45 days of its receipt, only for one of three specific reasons, and if the Secretary fails to disapprove the compact or compact amendment its approval must be promptly published in the Federal Register.

         2. Secretarial Procedures

         Section 2710(d)(7) governs the imposition of secretarial procedures for tribal gaming, when a tribe and a state cannot reach good faith agreement on a tribal-state compact. In the absence of an agreement, the tribe must first sue the state in federal court under 25 U.S.C. § 2710(d)(7)(A)(i). If the court concludes that the state failed to negotiate a compact in good faith, it shall order the parties to return to the negotiating table and produce a compact within 60 days. Id. § 2710(d)(7)(B)(iii). If the tribe and the state cannot reach agreement in 60 days, they “shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact.” Id. § 2710(d)(7)(B)(iv).

         When the tribe and the state are sent to mediation, the mediator must “select from the two proposed compacts the one which best comports with the terms of [the IGRA] and any other applicable Federal law and with the findings and order of the court, ” and submit the selected compact to the state and the tribe. Id. §§ 2710(d)(7)(B)(iv), (v). If the state agrees to the selected proposed compact, the proposal will be treated as a tribal-state compact under §§ 2710(d)(3) and 2710(d)(8). Id. § 2710(d)(7)(B)(vi). But if the state does not agree, the mediator must notify “the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures” for Class III gaming activities “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.” Id. § 2710(d)(7)(B)(vii). In summary, the remedial provisions of § 2710(d)(7) are designed to facilitate a tribal-state compact-at each step of the process the tribe and the state are given a new opportunity to negotiate-while authorizing the Secretary to impose gaming on a reluctant state if all else fails. The Department has not promulgated regulations implementing § 2710(d)(7), apart from regulations governing specific circumstances not present here.[3]

         B. Procedural History

         This case originally involved two tribes, Pequot and the Mohegan Tribe of Indians of Connecticut (“Mohegan”) (together, the “Tribes”), which both operate casinos in Connecticut. Pequot has operated under secretarial procedures since 1991 (the “Pequot Procedures”), having failed to agree on a tribal-state compact with the state. Compl. ¶ 25, ECF No. 1; see also Mashantucket Pequot Tribe, 913 F.2d at 1032-33; 56 Fed. Reg. 24, 996 (May 31, 1991). Mohegan, on the other hand, has operated under a tribal-state compact since 1994 (the “Mohegan Compact”). Compl. ¶ 24; 59 Fed. Reg. 65, 130 (Dec. 16, 1994).[4]

         Importantly, the Memoranda of Understanding implementing the Pequot Procedures and the Mohegan Compact mandate that the state receive up to thirty percent of the Tribes' gross operating revenues from certain gaming activities, and they also mandate that if the state permits “any other person” to operate such games, the state is no longer entitled to its royalty payments (the “exclusivity clauses”). See generally Pequot Procedures MOU; Mohegan Compact MOU. By their terms, both the Pequot Procedures and the Mohegan Compact may be amended only by written agreement of the tribe and the state, and the amendments do not become effective until the Secretary approves them and publishes notice of that approval in the Federal Register in accordance with 25 U.S.C. § 2710(d)(3)(B).[5] Pequot Procedures at 49-50; Mohegan Compact at 47.

         In 2015, the Tribes agreed to form a joint venture, MMCT Venture LLC (“MMCT”), to build and operate an off-reservation, commercial casino in East Windsor, Connecticut. Decl. of Uri Clinton (“Clinton Decl.”) ¶¶ 17-19, ECF No. 11-2; see also MMCT's Articles of Organization, Mem. Supp. MGM's Mot. Leave Intervene Supp. Defs. (“MGM Intervention Mem.”) Ex. A, ECF No. 11-3. In 2017, having incorporated MMCT, the Tribes secured the casino project's conditional approval by Connecticut's General Assembly through the passage of Public Act 17-89.[6] 2017 Conn. Acts 17-89 (Reg. Sess.). Public Act 17-89 states that MMCT “is authorized to conduct authorized games at a casino . . . at 171 Bridge Street, East Windsor.” Id. § 14(b).

         The Act's legislative history suggests, and MGM asserts, that the Act was “precipitated by the development of the MGM property” in Springfield, Massachusetts; twelve miles from East Windsor. Senate Hearing on Public Act 17-89 Before the Gen. Assembly (Conn. 2017) (statement of Sen. Len Suzio);[7] MGM Intervention Mem. at 8-9, ECF No. 11-1. One legislator expressed a desire to protect the “regional monopoly” in “Native American gaming” that was “threatened by competition from . . . the very large MGM casino soon to open in Springfield.” Id. (statement of Sen. Martin Looney). The same legislator stated that the East Windsor casino would be a “step in the process of helping to protect Connecticut jobs to continue to hold [the state's] niche in this important area.” Id. And a second legislator stated that “if there's one driver behind [the Act], it's the potential loss of revenue immediately because MGM is up and open.” Id. (statement of Sen. Steve Cassano).

         While the General Assembly agreed to approve the Tribes' East Windsor casino, the state legislators seemingly recognized that without appropriate safeguards the new casino would violate the exclusivity clauses of the Pequot Procedures and Mohegan Compact Memoranda of Understanding, because MMCT would be a non-tribal entity conducting gaming in Connecticut. Accordingly, Public Act 17-89 provides that its “authorization shall not be effective unless”:

(1) the Tribes and the state's governor execute “amendments to” the Pequot Procedures and the Mohegan Compact, and their memoranda of understanding, creating a special exemption for MMCT such that “authorization of MMCT . . . to conduct [casino] games in the state does not terminate” the Tribes' obligation to pay the State royalties from their gaming activities;
(2) the amendments “are approved or deemed approved by the Secretary . . . pursuant to the [IGRA] . . . and its implementing regulations”;
(3)-(4) the amendments “are approved by” the Connecticut legislature; and
(5) the Tribes pass resolutions providing that the state may sue the Tribes if MMCT fails to pay any fees or taxes due the state.

2017 Conn. Acts 17-89 § 14(c) (Reg. Sess.).

         To satisfy the Act's conditions, the state and the Tribes agreed to amend the Pequot Procedures and Mohegan Compact to exempt MMCT from the exclusivity clauses. Compl. ¶ 27. During the amendment process the Tribes allegedly requested technical assistance from the Office of Indian Gaming, and according to Plaintiffs that Office “repeatedly informed representatives of the Tribes that it intended to approve” the amendments. Id. ¶¶ 28-31. The Tribes and the state approved and executed the amendments according to tribal and state law. Id. ¶ 33.

         In late July and early August 2017, the Tribes requested that the Office of Indian Gaming formally approve the amendments, as required by the Pequot Procedures, the Mohegan Compact, and Public Act 17-89. Id. ¶ 32. Rather than approving the amendments, however, the Secretary “return[ed]” them to Plaintiffs “to maintain the status quo, ” stating:

We find that there is insufficient information upon which to make a decision as to whether a new casino operated by the Mohegan and Mashantucket Pequot Tribes (Tribes) would or would not violate the exclusivity clauses of the Gaming Compact [and Pequot Procedures]. The Tribes have entered an agreement with the State whereby they have agreed that the exclusivity [clauses] will not be breached by this arrangement. Therefore, our action is unnecessary at this time.

ECF Nos. 9-8, 9-16;[8] see also Compl. ¶ 37.

         Having failed to secure the Secretary's approval of the amendments, Plaintiffs filed suit in this Court. They claim that because more than 90 days have passed since the Tribes submitted the amendments, the IGRA, 25 U.S.C. § 2710(d)(8), requires that the Secretary deem the amendments approved by law and publish notice of that approval in the Federal Register. Id. ¶¶ 41-60. Failure to do so, according to Plaintiffs, is arbitrary and capricious, not in accordance with law, and agency action unlawfully withheld, in violation of the Administrative Procedure Act, 5 U.S.C. § 706. Id. They seek an order (1) declaring that the Secretary acted in an arbitrary and capricious manner, in violation of the IGRA, by failing to treat the amendments as deemed approved; and (2) compelling the Secretary to publish notice of the amendments' deemed approval in the Federal Register. Id. at 12.

         In mid-2018, the Secretary approved Plaintiffs' proposed amendments to the Mohegan Compact and published that approval in the Federal Register. See 83 Fed. Reg. 25, 484; First Joint Status Report at 1, ECF No. 41. Because Mohegan has received the relief sought in the complaint, the parties stipulated to the dismissal of Mohegan's claims. See generally Stipulation of Dismissal, ECF No. 40. However, the Secretary has not approved Plaintiffs' proposed amendments to the Pequot Procedures, so Pequot and the state continue to assert their claims against Federal Defendants.

         C. MGM's Involvement

         MGM's interest in this action stems from its involvement in the commercial casino market in Connecticut and the surrounding states.[9] In 2014, MGM obtained a license to develop its Springfield, Massachusetts casino. Clinton Decl. ¶ 13. MGM spent four years and hundreds of millions of dollars building the facilities before opening the Springfield casino in 2018. Id. ¶¶ 13-16. In 2015, in the midst of Springfield construction, MGM also began seeking approval to develop and operate a commercial casino in southwestern Connecticut, near Bridgeport. Clinton Decl. ¶ 5.

         In furtherance of their Connecticut proposal, and in opposition to the Tribes' East Windsor proposal, MGM urged the state to adopt a competitive selection process for the right to operate Connecticut's first commercial casino, rather than unilaterally grant the right to the Tribes through MMCT. Id. ¶ 6. Beginning in 2015, MGM lobbied for this process before the Connecticut General Assembly and in meetings with the Governor and other state leaders. Id. MGM spent more than $3.2 million in support of this legislative effort, id., but despite MGM's lobbying the Connecticut General Assembly opted to pass Public Act 17-89 in 2017, conditionally authorizing MMCT to operate the proposed East Windsor casino as the state's first commercial casino. See 2017 Conn. Acts 17-89 § 14(b) (Reg. Sess.). As discussed above, the East Windsor casino site is a mere twelve miles south of MGM's Springfield casino, and it appears to have been approved by the General Assembly, at least in part, because of its potential to compete with the Springfield casino. Clinton Decl. ¶ 17, 19.

         Despite its setback before the General Assembly, in September 2017 MGM announced a proposed $675 million casino project in Bridgeport and it secured the contractual rights to a potential development site. See Clinton Decl. ¶¶ 8-9. MGM has also announced that it will seek legislative approval of the Bridgeport casino during the Connecticut General Assembly's 2018 session. Clinton Decl. ¶ 10. In December 2017, the Tribes announced their own Bridgeport casino project to compete with MGM's proposal. See Clinton Decl. ¶¶ 21-22.

         * * *

         Before the Court are several ripe motions. Of greatest importance are (1) MGM's ripe motion to intervene as a defendant, by right or by permission (ECF No. 11); and (2) Federal Defendants' motion to dismiss (ECF No. 18).[10] The parties have also filed several ancillary motions. The Court will briefly address two of those motions now, and will consider the others while evaluating MGM's motion to intervene and Federal Defendants' motion to dismiss.

         First, the Court grants Federal Defendants' motion to waive compliance with Local Civil Rule 7(n) because the Court need not consider the administrative record in evaluating the motions before it.[11] See Fed. Defs.' Mot. Relief Local Civil Rule 7(n), ECF No. 49. In so doing, the Court follows the practice of other courts in this jurisdiction when “the administrative record is not necessary for [the court's] decision” regarding a motion to dismiss. Mdewakanton Sioux Indians of Minn. v. Zinke, 264 F.Supp.3d 116, 123 n.12 (D.D.C. 2017); see also PETA v. U.S. Fish & Wildlife Serv., 59 F.Supp.3d 91, 94 n.2 (D.D.C. 2014).

         Second, the Court denies Plaintiffs' motion to amend the briefing schedule because Plaintiffs' proposed schedule would not further the Court's efficient resolution of this action. See Pls.' Mot. Amend Briefing Schedule, ECF No. 31. Under the current schedule, Plaintiffs' pending motion for summary judgment is stayed until 30 days after a denial of Federal Defendants' motion to dismiss. See Order Granting Joint Motion Modify Briefing Schedule, ECF No. 17. Plaintiffs now urge the Court to consider their motion for summary judgment simultaneously with Federal Defendants' motion to dismiss because, Plaintiffs claim, the motions raise certain common legal issues. Pls. Mot. Amend Briefing Schedule at 6. This may be true, but Plaintiffs' motion raises additional issues not raised by Federal Defendants' motion, and Plaintiffs have not provided sufficient justification for the Court to deviate from the normal course of APA proceedings, under which courts dispose of motions to dismiss before considering the parties' cross-motions for summary judgment supported by the administrative record.


         A. Federal Rule 24(a) Intervention as of Right

          “The right of intervention conferred by Rule 24 implements the basic jurisprudential assumption that the interest of justice is best served when all parties with a real stake in a controversy are afforded an opportunity to be heard.” Hodgson v. United Mine Workers of Am., 473 F.2d 118, 130 (D.C. Cir. 1972). Specifically, Rule 24(a) provides that:

[u]pon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed. R. Civ. P. 24(a).

         The D.C. Circuit has established that the right to intervene under Rule 24(a) depends on the applicant's ability to satisfy four factors: (1) whether the motion to intervene was timely; (2) whether the applicant claims an interest relating to the property or transaction that is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately represented by existing parties. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (citations omitted); see also Jones v. Prince George's Cty., Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003) (listing the four elements of Rule 24(a) as “timeliness, interest, impairment of interest, and adequacy of representation”). In addition, an applicant seeking to intervene as of right under Rule 24(a) must possess Article III standing to participate in the lawsuit. See Jones, 348 F.3d at 1017; Fund for Animals, 322 F.3d at 731-32.

         B. Administrative Procedure Act, 5 U.S.C. § 706(1)

         The APA authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1). “Unlike the provision that instructs courts to ‘set aside' unlawful agency action, id. § 706(2), the § 706(1) provision ‘provides relief for a failure to act[.]'” Ctr. for Biological Diversity v. Zinke, 260 F.Supp.3d 11, 20 (D.D.C. 2017) (citing Norton v. S. Utah Wilderness All. (“SUWA”), 542 U.S. 62 (2004)). However, “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64. “The ‘law' that generates a mandatory duty need not be a statute-it can also be an ‘agency regulation[ ] that ha[s] the force of law[.]'” Ctr. for Biological Diversity, 260 F.Supp.3d at 21 (quoting SUWA, 542 U.S. at 64); accord SAI v. DHS, 149 F.Supp.3d 99, 119 (D.D.C. 2015). In sum, a plaintiff who asks a court to “compel agency action . . . unreasonably delayed” under § 706(1) must pinpoint an agency's failure to take an action that is both discrete and mandatory. See SUWA, 542 U.S. at 64.

         C. Federal Rule 12(b)(6)

         The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” to give the defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to plead all elements of a prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v. Pepco, 730 F.Supp.2d 25, 28-29 (D.D.C. 2010).

         Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 at 544 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555.

         If a complaint containing an APA claim under 5 U.S.C. § 706(1) fails to identify a discrete and mandatory agency duty, the court must grant the defendant's Rule 12(b)(6) motion and dismiss the claim. See, e.g., Anglers Conservation Network v. Pritzker, 70 F.Supp.3d 427, 439-41 (D.D.C. 2014), aff'd, 809 F.3d 664 (D.C. Cir. 2016); see also Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C. Cir. 2011) (explaining that whether a plaintiff has adequately pleaded a predicate agency duty is properly analyzed under Rule 12(b)(6), not Rule 12(b)(1)).


         The Court first addresses MGM's motion to intervene. “Courts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections.” WildEarth Guardians v. Salazar, 272 F.R.D. 4, 9 (D.D.C. 2010) (quoting Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001)); see also Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981) (“[M]otions to intervene are usually evaluated on the basis of well pleaded matters in the motion, the complaint, and any responses of opponents to intervention.”). As discussed above, in determining whether MGM has the right to intervene as a defendant, the Court must first determine whether MGM has Article III standing to participate in the lawsuit. Jones, 348 F.3d at 1017. If MGM has standing, Federal Rule 24(a) dictates that the Court must consider “timeliness, interest, impairment of interest, and adequacy of representation.” Id. These factors dictate that MGM may intervene in this action as a matter of right.[12]

         A. Standing

         Before reaching the Rule 24(a) factors, the Court must consider whether MGM has Article III standing to participate in the lawsuit. “It is axiomatic that Article III requires a showing of injury-in-fact, causation, and redressability.” Deutsche Bank Nat. Trust, 717 F.3d at 193. The Court concludes that MGM meets all three requirements here.

         1. Injury-in-Fact

         First, the Court must determine whether MGM will suffer injury-in-fact if Plaintiffs succeed in this action. In Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992), the Supreme Court described the injury-in-fact element as requiring a showing of an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. at 560. “Where, as here, a party seeks to intervene as a defendant to uphold an action taken by the government, the party must establish that it will be ‘injured in fact by the setting aside of the government's action it seeks to defend, that this injury would have been caused by that invalidation, and the injury would be prevented if the government action is upheld.'” Forest Cty. Potawatomi Cmty. v. United States (“Forest County I”), 317 F.R.D. 6, 11 (D.D.C. 2015); (citing Am. Horse Prot. Ass'n, Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001)). The Court concludes that MGM has met those elements here.

         MGM's injury-in-fact argument is two pronged. First, it argues that the amendments to the Pequot Procedures would “allow MMCT to open new commercial casinos without depriving the State of hundreds of millions in annual royalty payments, thus giving the State an incentive to prefer MMCT's proposals (in Bridgeport or elsewhere) over MGM's.” MGM Intervention Mem. at 15. Second, it argues that the amendments would “activate MMCT's exclusive right to operate a new commercial casino in East Windsor, thus creating new . . . competition just 12 miles from MGM Springfield.” Id. Relying heavily on a recent case in this jurisdiction, Forest County I, MGM argues that it has standing “because approval of the amendments would put MGM's casino projects at a disadvantage vis-à-vis the Tribes' competing proposals.” Id. at 13. MGM also argues that it has standing under the “competitor standing doctrine” because “an order requiring [the Secretary] to approve the Amendments would expose MGM to added competition.” Id. at 15. The Court agrees that MGM would be sufficiently injured by the relief sought by Plaintiffs-the Secretary's approval of Plaintiffs' proposed amendments to the Pequot Procedures-to convey standing to intervene.

         MGM persuasively argues that Forest County I should guide this Court's analysis with respect to MGM's ability to compete for casino projects in Connecticut, despite Defendants' vigorous attempts to distinguish the case. Forest County I involved the Forest County Potawatomi Community's (“the “Potawatomi”) challenge to the Secretary's decision to disapprove, under the IGRA, an amendment to a tribal-state compact between Potawatomi and the state of Wisconsin. 317 F.R.D. at 8. The amendment included a provision that would have required the state to compensate Potawatomi for lost revenue if any other tribe secured land for gaming purposes within 50 miles of Potawatomi's existing gaming facility in Milwaukee, Wisconsin. Id. at 9. In other words, the provision would have created a “50-mile non- competition zone” around Potawatomi's facility. Id. In disapproving the amendment, the Secretary noted that the amendment would improperly obligate the Menominee Indian Tribe of Wisconsin “to compensate Potawatomi for lost revenue resulting from a proposed Menominee casino in Kenosha, Wisconsin, approximately thirty-three miles from [the] Potawatomi gaming facility.” Id. Menominee's proposed casino required gubernatorial approval to become operational. Id.

         Menominee sought to intervene as a defendant as a matter of right, claiming that if-as Potawatomi sought-the proposed amendment “were to be approved or deemed approved, it would have a direct and harmful impact on the rights and interests of [Menominee] in conducting games in Kenosha.” Id. at 10. The Court noted that “the Menominee have attempted for years to develop a gaming facility on land in Kenosha . . . [and] Menominee will continue [its] efforts in the future.” Id. at 11. However, Potawatomi's proposed non-competition zone would greatly increase the cost of approving Menominee's casino because it would obligate the state to offset Potawatomi's lost revenue. Id. Therefore, Potawatomi's “requested relief, if granted, would, as a practical matter, impede [Menominee's] efforts to obtain a ...

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