Amador County v. Salazar

Decision Date06 May 2011
Docket NumberNo. 10–5240.,10–5240.
Citation395 U.S.App.D.C. 110,640 F.3d 373
PartiesAMADOR COUNTY, CALIFORNIA, Appellantv.Kenneth Lee SALAZAR, Secretary, United States Department of the Interior, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit


Appeal from the United States District Court for the District of Columbia (No. 1:05–cv–00658).Dennis J. Whittlesey argued the cause and filed the briefs for appellant.

Katherine W. Hazard, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Kathryn E. Kovacs, Attorney. Susan L. Pacholski, Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.Mark C. Tilden and Padraic McCoy were on the briefs of amicus curiae Buena Vista Rancheria of Me–Wuk Indians in support of appellees.Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, and EDWARDS, Senior Circuit Judge.Opinion for the Court filed by Circuit Judge TATEL.TATEL, Circuit Judge:

Pursuant to the Indian Gaming Regulatory Act, the Buena Vista Rancheria of Me–Wuk Indians entered into a compact with the state of California to engage in gaming on its tribal land and then petitioned the Secretary of the Interior for approval of that compact. Under the Act, [i]f the Secretary does not approve or disapprove a compact ... [within] 45 days ... the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of” the Act. 25 U.S.C. § 2710(d)(8)(C). In this case, the Secretary took no action within forty-five days, thus allowing the compact to become effective. Amador County, in which the Buena Vista Tribe's land is located, challenged the Secretary's “no-action” approval, claiming that the land fails to qualify as “Indian Land”—a statutory requirement for gaming. Although the district court rejected the Secretary's argument that Amador County lacked standing, it dismissed the suit, finding the Secretary's inaction unreviewable under several provisions of the Administrative Procedure Act. Amador County now appeals. We agree with the district court that the County has standing, but because we conclude that the Secretary's inaction is in fact reviewable, we reverse and remand for the district court to consider the merits in the first instance.


Since at least 1817, the Buena Vista Rancheria of Me–Wuk Indians of California (the “Tribe”) has been located in the vicinity of what is now Amador County, about forty miles southeast of Sacramento. In 1927, pursuant to a series of appropriations bills intended to fund the purchase of land for “Indians in California now residing on reservations which do not contain land suitable for cultivations, and for Indians who are not now upon reservations in said State,” the United States purchased 67.5 acres of land in the County and held it in trust for the Tribe's use. Act of June 21, 1906, ch. 3504, 34 Stat. 325, 333; Act of April 30, 1908, ch. 153, 35 Stat. 70, 76; Act of Aug. 1, 1914, ch. 222, 38 Stat. 582, 589. The current status of that land (the “Rancheria”) is the central issue in this case.

In 1958, in keeping with the then-popular policy of assimilating Native Americans into American society, Congress enacted the California Rancheria Act, which authorized the Secretary to terminate the federal trust relationship with several California tribes, including the Me–Wuk Tribe, and to transfer tribal lands from federal trust ownership to individual fee ownership. Act of Aug. 18, 1958, Pub.L. No. 85–671, 72 Stat. 619. Pursuant to that statute, title to the Rancheria was transferred to two tribe members, Louis and Annie Oliver, as joint tenants. Some twenty years later, however, other members of the Tribe joined with members of sixteen other California Rancherias and filed a class action lawsuit to undo the effects of the California Rancheria Act. Specifically, they sought an injunction requiring the Secretary to ‘unterminate’ each of the subject Rancherias” and to “treat all of the subject Rancherias as Indian reservations in all respects[.] Complaint at 27, Hardwick v. United States, No. C–79–1710 (N.D.Cal.1979) (quoted in Letter from Penny J. Coleman, National Indian Gaming Commission Acting General Counsel, to Judith Kammins Albietz, Tribal Attorney, at 3 (June 30, 2005) (included at J.A. 17) [hereinafter “Indian Lands Determination”] (alteration in original)).

The lawsuit ended in a settlement between the tribes and the federal government and, subsequently, in a series of separate stipulated judgments between the individual tribes and the counties in which the tribes' land lay. In the first settlement, the Secretary agreed to restore “any of the benefits or services provided or performed by the United States for Indians because of their status as Indians” and to “recognize the Indian Tribes, Bands, Communities or groups of the seventeen Rancherias ... as Indian entities with the same status as they possessed prior to distribution of the assets of these Rancherias under the California Rancheria Act.” Stipulation and Order, Hardwick v. United States, No. C–79–1710 (Dec. 22, 1983) (quoted in Indian Lands Determination, at 4 (included at J.A. 17–18)). In the stipulated judgment between Amador County and the Tribe (the Hardwick Judgment”), the parties settled a number of issues related to the levy of property taxes, and the County agreed to the following terms:

[1] The plaintiff Rancheria and the Plaintiffs were never and are not now lawfully terminated under the California Rancheria Act ...

[2] The original boundaries of the plaintiff Rancheria ... are hereby restored, and all land within these restored boundaries of the plaintiff Rancheria is declared “Indian Country.”

[3] The plaintiff Rancheria shall be treated by the County of Amador and the United States of America, as any other federally recognized Indian Reservation, and all of the laws of the United States that pertain to federally recognized Indian Tribes and Indians shall apply to the Plaintiff Rancheria and the Plaintiffs.

Stipulation for Entry of Judgment, Hardwick v. United States, No. C–79–1710, at 4 (Apr. 21, 1987) (included at J.A. 51).

In the late 1990s, the Tribe began planning a gaming operation and initiated the process of acquiring requisite state and federal approval pursuant to the Indian Gaming Regulatory Act (IGRA). Enacted in 1988, IGRA created a regulatory framework for tribal gaming intended to balance state, federal, and tribal interests. See 25 U.S.C. §§ 2701, 2702. The Act divides gaming into three classes, only one of which—Class III, which includes most casino games such as blackjack and roulette as well as slot machines—is at issue in this case. See id. § 2703(8). Before commencing Class III gaming, a tribe must satisfy three conditions. First, the gaming must be authorized by a tribal ordinance or resolution that has been approved by the National Indian Gaming Commission, a regulatory body created by IGRA with rulemaking and enforcement authority. Id. § 2710(d)(1)(A), (2)(C). Second, the Indian lands where the gaming will take place must be located within a state that permits gaming “for any purpose by any person, organization, or entity.” Id. § 2710(d)(1)(B). And third, the gaming must be conducted in conformance with a tribal-state compact that has been approved by the Secretary. Id. § 2710(d)(1)(C). In addition, and critical to this case, IGRA provides for gaming only on “Indian lands.” Id. § 2710(d)(1) (“Class III gaming activities shall be lawful on Indian Lands....” (emphasis added)).

Once a tribe has submitted a tribal-state compact for approval, the Secretary has three choices. He may approve the compact, id. § 2710(d)(8)(A); he may disapprove the compact, but only if it violates IGRA or other federal law or trust obligations, id. § 2710(d)(8)(B); or he 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). The compact takes effect once the Secretary publishes notice of approval in the Federal Register. Id. § 2710(d)(8)(D), (3)(B).

In 1999, the Me–Wuk Tribe completed an initial round of negotiations with the State of California, and shortly thereafter the Secretary approved the resulting compact. In 2004, the Tribe began a second round of negotiations to amend the compact in order to provide for “expanded gaming at a prospective casino.” Appellees' Br. 15. The compact amendment also expanded revenue sharing between the Tribe and the State and directed the Tribe to make arrangements with Amador County to mitigate any potential impacts on the County. When the Tribe submitted the compact amendment to the Secretary, he chose to do nothing, meaning that pursuant to subsection (d)(8)(C) the amendment was deemed approved after forty-five days. The Secretary published a notice of approval in the Federal Register on December 20, 2004. 69 Fed.Reg. 76,004.

Amador County then sued the Secretary in the United States District Court for the District of Columbia, alleging that the Rancheria fails to satisfy IGRA's “Indian lands” requirement. The County sought declaratory and injunctive relief including an order requiring the Secretary to withdraw approval and affirmatively reject the compact. Although the County also alleged that the Secretary's approval was void ab initio due to a technicality in California law, First Amended Complaint ¶¶ 57–60, it does not press this argument on appeal.

The Secretary moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), alleging that Amador County lacked standing, and under Rule 12(b)(6), alleging that the “claims [were] not subject to review under the Administrative Procedure Act [APA].” Although the district court found that Amador County had standing, it dismissed the complaint, agreeing with the Secretary that the approval...

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