Citizens Agaist Cas. Gam., Erie Co. v. Kempthorne

• Citation: 471 F.Supp.2d 295
• Decision Date: 12 January 2007
• Docket Number: No. 06-CV-0001S.,06-CV-0001S.
• Parties: CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY, Rev. G. Stanford Bratton, D. Min., Executive Director of the Network of Religious Communities, National Coalition Against Gambling Expansion, Preservation Coalition of Erie County, Inc., Coalition Against Casino Gambling in New York&#x2014;Action, Inc., the Campaign for Buffalo&#x2014;History Architecture and Culture, Assemblyman Sam Hoyt, Maria Whyte, John McKendry, Shelly McKendry, Dominic J. Carbone, Geoffrey D. Butler, Elizabeth F. Barrett, Julie Clearly, Erin C. Davison, Alice E. Patton, and Maureen C. Schaeffer, Plaintiffs, and County of Erie and Joel A. Giambra, Intervenor-Plaintiffs, v. Dirk KEMPTHORNE,<SMALL><SUP>1</SUP></SMALL> in his Official Capacity as the Secretary of the Interior, James Cason, in his Official Capacity as the Acting Assistant Secretary of the Interior for Indian Affairs, United States Department of the Interior, Philip N. Bogen, in his Capacity as Chairman of the National Indian Gaming Commission, and National Indian Gaming Commission, Defendants.
• Court: U.S. District Court — Western District of New York

471 F.Supp.2d 295

CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY, Rev. G. Stanford Bratton, D. Min., Executive Director of the Network of Religious Communities, National Coalition Against Gambling Expansion, Preservation Coalition of Erie County, Inc., Coalition Against Casino Gambling in New York—Action, Inc., the Campaign for Buffalo—History Architecture and Culture, Assemblyman Sam Hoyt, Maria Whyte, John McKendry, Shelly McKendry, Dominic J. Carbone, Geoffrey D. Butler, Elizabeth F. Barrett, Julie Clearly, Erin C. Davison, Alice E. Patton, and Maureen C. Schaeffer, Plaintiffs, and County of Erie and Joel A. Giambra, Intervenor-Plaintiffs, v. Dirk KEMPTHORNE,¹ in his Official Capacity as the Secretary of the Interior, James Cason, in his Official Capacity as the Acting Assistant Secretary of the Interior for Indian Affairs, United States Department of the Interior, Philip N. Bogen, in his Capacity as Chairman of the National Indian Gaming Commission, and National Indian Gaming Commission, Defendants.

No. 06-CV-0001S.

United States District Court, W.D. New York.

January 12, 2007.

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Brendon R. Mahaffey, Knoer, Crawford & Bender, LLC, Buffalo, NY, Gregg S. Maxwell, Joseph M. Finnerty, Karim A. Abdulla, Stenger & Finnerty, Buffalo, NY, Kendra E. Winkelstein, Richard J. Lippes, Richard Lippes & Associates, Buffalo, NY, Michael L. Jackson, Rachel E. Jackson, Jackson & Jackson, LLP, Buffalo, NY, Richard G. Berger, Buffalo, NY, Robert E. Knoer, for Plaintiffs.

Gina Louise Allery, Alex Kriegsman, U.S. Dept. of Justice, Washington, DC, Mary Pat Fleming, U.S. Attorney's Office, Buffalo, NY, for Defendants.

DECISION AND ORDER

SKRETNY, United States District Judge.

                TABLE OF CONTENTS
                   I. INTRODUCTION ................................................... ____
                  II. BACKGROUND ..................................................... ____
                      A. Legal Background ............................................ ____
                         1. The Relevant Provisions of the IGRA ...................... ____
                            a. Indian Lands .......................................... ____
                            b. Tribal-State Gaming Compacts .......................... ____
                            c. Tribal Gaming Ordinances .............................. ____
                         2. The Seneca Nation Settlement Act of 1990 ................. ____
                      B. Factual Background .......................................... ____
                

                        1. The SNI's Tribal-State Compact ................................ ___
                        2. The SNI's Class III Gaming Ordinance .......................... ___
                        3. The SNI's Land Acquisitions ................................... ___
                     C. The Lawsuit ...................................................... ___
                III. DISCUSSION .......................................................... ___
                     A. SNI's Motion for Leave to File an Amicus Brief ................... ___
                        1. Standard for Consideration of Amicus Curiae Participation ..... ___
                        2. The Propriety of SNI's Proposed Submission .................... ___
                        3. The Analytical Framework ...................................... ___
                        4. The Necessary Party Determination ............................. ___
                     B. Subject Matter Jurisdiction ...................................... ___
                     C. APA Review ....................................................... ___
                        1. Standard of Review ............................................ ___
                        2. Review of Final Agency Action under the IGRA .................. ___
                     D. The NIGC's Approval of the SNI's Tribal Gaming Ordinance ......... ___
                     E. The Remaining Claims and Motions ................................. ___
                IV. CONCLUSION ........................................................... ___
                V. ORDERS ................................................................ ___
                

ABBREVIATIONS AND ACRONYMS

The following abbreviations and acronyms are used in this, decision:

STATUTES

APA Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

IGRA Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq.

NEPA National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.

NHPA National Historic Preservation Act, 16 U.S.C. §§ 470 et seq.

SNSA Seneca Nation Settlement Act of 1990, 25 U.S.C. §§ 1774 et seq.

QTA Quiet Title Act, 28 U.S.C. § 2409a

AGENCIES AND ENTITIES

Chairman Chairman of the National Indian Gaming Commission

NIGC. National Indian Gaming Commission

Secretary Secretary of the United States Department of the Interior

SEGC Seneca Erie Gaming Corporation SNI Seneca Nation of Indians

DOCUMENTS

Compact "Nation-State Gaming Compact between the Seneca Nation of Indians and the State of New York," deemed approved by the Secretary as of October 25, 2002

Ordinance "Seneca Nation of Indians Class III Gaming Ordinance of 2002 as Amended," approved by the Chairman on November 26, 2002

I. INTRODUCTION

On January 3, 2006, Plaintiffs Citizens against Casino Gambling in Erie County, et al., commenced this action for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706; the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq.; the National Environmental Policy Act ("NEPA"), as amended, 42 U.S.C. §§ 4321 et seq.; and the National Historic Preservation Act ("NHPA"), as amended, 16 U.S.C. §§ 470 et seq. Plaintiffs allege that former Secretary of the Interior Gale A. Norton; Acting Assistant Secretary of the Interior for Indian Affairs James Cason the United States Department of the Interior; Chairman of the National Indian Gaming Commission Philip N. Hogen; and the National Indian Gaming Commission ("NIGC") (collectively, "Defendants" or "the Government") violated the laws of the United States when, by their decisions and actions, they permitted the Seneca Nation of Indians ("SNI") to construct a gambling casino on land it purchased in the City of Buffalo with funds appropriated pursuant to the Seneca Nation' Settlement Act of 1990 ("SNSA").

There are four motions presently before this Court. First is the Government's Motion to Dismiss the Complaint in its entirety for lack of subject matter jurisdiction and failure to state a claim, filed on April 26, 2006.² (Docket No. 22.) On July 25, 2006, Plaintiffs filed a joint Motion for Summary Judgment as to all claims. (Docket No. 39.) On August 8, 2006, the SNI moved for leave to file an amicus brief seeking dismissal of the Complaint in its entirety pursuant to Rule 19 of the Federal Rules of Civil Procedure. (Docket No. 44.) Each of these motions has been fully briefed, was the subject of extensive oral argument on November 1, 2006, and is now pending for disposition. In addition, the Government moved to strike Plaintiffs' exhibits and portions of their Memorandum of Law in Support of Summary Judgment. (Docket No. 54.) The Motion to Strike was taken under advisement without oral argument.

As discussed more fully below, this Court will grant the SNI's motion for leave to file an amicus brief. However, after fully considering the SNI's position and the arguments set forth in its brief, this Court finds that neither the SNI nor the State of New York is a necessary and indispensable party to this action such that dismissal of the case is required under Rule 19 of the Federal Rules of Civil Procedure. Specifically, this Court finds that the SNI's interest in operating a gambling casino in the City of Buffalo is adequately represented by the Defendants in this action, who are vigorously defending their decisions to permit that very activity. Furthermore, the State does not have an interest in the subject matter of this litigation that will be impaired by a judgment in Plaintiffs' favor.

Defendants have moved to dismiss this action in its entirety on the grounds that: 1) the Quiet Title Act applies to this case and the Defendants are therefore immune from suit, 2) the Secretary of the Interior's ("the Secretary") "Indian lands" opinion is not a reviewable final agency action under the APA and therefore the Court lacks jurisdiction to consider Plaintiffs' claims, 3) the NIGC Chairman is not required to make an Indian lands determination and he fully carried out his statutory duties, and 4) Plaintiffs otherwise fail to state any claim against any Defendant.

This Court finds that Plaintiffs are not challenging the SNI's title to real property it purchased in the City of Buffalo and therefore rejects Defendants' argument that the Quiet Title Act renders Defendants immune from suit. However, this Court does agree with Defendants that the Secretary's "Indian lands" opinion was not a final agency action and, further, that no final agency action has occurred with respect to that determination. As such, the Secretary's opinion and related statutory interpretations are not yet reviewable under the APA, and this Court is without jurisdiction to review the IGRA claims against the Secretary. Accordingly, this Court will grant Defendants' motion to dismiss claims One and Two against the Secretary for lack of subject matter jurisdiction.

Having fully considered the purpose and structure of the IGRA, and the authority delegated to the NIGC by Congress, this Court rejects Defendants' contention that the NIGC Chairman is not required to make "Indian lands" determinations when he acts on a tribal gaming ordinance. To the contrary, whether Indian gaming will occur on Indian lands is a threshold jurisdictional question that the NIGC must address on ordinance review to establish that: 1) gaming is permitted on the land in question under the IGRA, and 2) the NIGC will have regulatory and enforcement power over the gaming activities occurring on that land. In this case, both the general location in which the SNI intended to purchase land and the manner in which it intended to acquire and hold that land were made known to the NIGC Chairman in 2002. However, there is no...