Club One Casino, Inc. v. U.S. Dep't of the Interior

• Decision Date: 29 November 2017
• Docket Number: CASE NO. 1:16-cv-01908-AWI-EPG
• Parties: CLUB ONE CASINO, INC., dba CLUB ONE CASINO; GLCR, INC., dba THE DEUCE LOUNGE AND CASINO, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the Interior; and MIKE BLACK in his official capacity as Acting Assistant Secretary of the Interior - Indian Affairs, Defendants.
• Court: U.S. District Court — Eastern District of California

CLUB ONE CASINO, INC., dba CLUB ONE CASINO; GLCR, INC.,dba THE DEUCE LOUNGE AND CASINO, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, in his official

capacity as Secretary of the Interior; and MIKE BLACK in his official capacity

as Acting Assistant Secretary of the Interior - Indian Affairs, Defendants.

CASE NO. 1:16-cv-01908-AWI-EPG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

November 29, 2017

ORDER DENYING PLAINTIFFS' MOTION TO SUPPLMENT THE ADMINISTRATIVE RECORD

I. Introduction

Plaintiffs Club One Casino and The Deuce Lounge (collectively "Plaintiffs" or "Club One") bring the instant Administrative Procedures Act ("APA") challenge to the issuance of Secretarial Procedures by the United States Department of the Interior, the Secretary of the Interior, and the Assistant Secretary for Indian Affairs (collectively "DOI" or "Federal Defendants") permitting the North Fork Rancheria of Mono Indians ("North Fork") to conduct tribal gaming on a 305.49 acre parcel of land in Madera County, California (the "Madera Site"). Complaint, Doc. 1 ("Compl.") at ¶ 1. The substance of the challenge is directed at whether the Federal Defendants adequately considered whether North Fork exercised jurisdiction over the Madera Site for purposes of the Indian Gaming Regulatory Act ("IGRA"), 29 U.S.C. § 2701, et seq. To be very clear, the scope of this action is limited to reviewing to Secretary's prescription of gaming procedures for North Fork on the Madera Site; the Secretary's 2012 fee-to-trust determination is not challenged.

Plaintiffs moved to supplement the administrative record. On September 25, 2017, the Court authorized additional briefing "regarding what it means for an Indian tribe to exercise jurisdiction over Indian lands for purposes of IGRA." Doc. 30 at 8. Both parties submitted supplemental briefing. For the following reasons, Plaintiffs' motion to supplement the administrative record will be denied.

II. Factual Background

This Court set out the factual background regarding this action in its prior order. Doc. 30 at 2-4.

III. Legal Standard

As the Court set out in its prior order, the scope of judicial review and the process for determining the adequacy of an administrative record in the APA context is as follows:

[T]he scope of judicial review is limited to "the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). The administrative record is "not necessarily those documents that the agency has compiled and submitted as 'the' administrative record." Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal citation omitted). Rather, " '[t]he whole record' includes everything that was before the agency pertaining to the merits of the decision." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (internal citation omitted). "The 'whole' administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson, 885 F.3d at 555 (emphasis added).

[¶¶]

However, the record does not include "every scrap of paper that could or might have been created" on a subject. TOMAC v. Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002).

A broad application of the phrase "before the agency" would undermine the value of judicial review: Interpreting the word "before" so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless. Thus, to ensure fair review of an agency decision, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.

Pac. Shores Subdivision v. U.S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006) (internal citations and quotations omitted). ...

An agency's designation and certification of the administrative record is entitled to a "presumption of administrative regularity." McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007). This presumption requires courts to presume that public officials have properly discharged their official duties. Id. It is the burden of the party seeking to supplement the record to overcome this presumption by producing clear evidence to the contrary. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); McCrary, 495 F. Supp. 2d at 1041.

Natural Resources Defense Council v. Zinke, 2017 WL 3705108, *2-3 (E.D. Cal. Aug. 28, 2017). A plaintiff can overcome the presumption of regularity in four situations: "(1) if admission [of supplemental evidence] is necessary to determine whether the agency has considered all relevant factors and has explained its decision [;] (2) if the agency has relied on documents not in the record[;] (3) when supplementing the record is necessary to explain technical terms or complex subject matter[;] or (4) when plaintiffs make a showing of agency bad faith." Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citing Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)).

IV. Discussion

It is Plaintiffs' position that supplementation of the administrative record is necessary to demonstrate that the Federal Defendants failed to consider whether North Fork exercised territorial jurisdiction over the Madera Site on the date when Secretarial Procedures were prescribed. Plaintiffs argue that the supplementation material falls within the first Lands Council category—evidence necessary to show that the Federal Defendants failed to consider all relevant factors in coming to its decision. See Lands Council, 395 F.3d at 1029. Specifically, Plaintiffs seek supplementation of the record to include the following documents:

1) The Declaration of James N. Cordova attesting to the chain of title through the certifieddeeds that trace the title to the [Madera Site] from statehood in 1850 to the transfer to the federal government in 2013; these deeds are part of the official records of Fresno and Madera Counties [(the "Chain of Title")];

2) Two Records of Decision ("RODs") both issued by [D]efendants, with respect to the [Madera Site];

a) The ROD issued in 2011 as to the so-called "2719 Determination" that the [Madera Site] can be taken into trust for possible future use as a casino gaming site under [IGRA] [(the "2011 IGRA ROD")]; and

b) The ROD issued in 2012 as to the decision to take the land into trust [under the Indian Reorganization Act ("IRA")] [(the "2012 IRA ROD")].

3) Excerpts from public filings posted on the SEC website documenting ownership of the [Madera Site] by Station Casinos, a Nevada gaming corporation, immediately prior to the transfer to the United States.[fn]

Doc. 22 at 3.

As the Court made clear in its last order,

Whether the Court should allow supplementation of the record with each of those documents turns on the success of Plaintiffs' substantive argument—that "any suggestion that [North Fork] has territorial jurisdiction over the subject parcel is completely unsupported by the ... record." Doc. 22 at 6. It is undisputed that the Secretary can proscribe procedures for gaming only if the contemplated gaming activities would "be conducted on the Indian lands over which the Indian tribe has jurisdiction." 25 U.S.C. § 2710(d)(7)(B)(vii)(II); see also 25 C.F.R. § 291.11 (governing Secretarial Procedures when the state has invoked sovereign immunity from good faith negotiation suit). The dispute between the parties regards the requisite finding that must be made for the Secretary to conclude that the Madera Site was Indian land over which North Fork exercised jurisdiction.

Doc. 30 at 6. Based on the substantive issue identified, the Court invited the parties to submit briefing regarding "what it means for an Indian tribe to exercise jurisdiction over Indian lands for purposes of IGRA." Doc 30 at 8.

A. Summary of the Parties' Positions

Factually, there is no disputed that the Madera Site was taken into trust for North Fork on February 5, 2013. The parties further agree that the Madera Site was not reserved by the United States for North Fork when the State of California was admitted to the Union, that the Madera Site was not acquired pursuant to the Enclaves Clause of the Constitution, and that the State ofCalifornia did not expressly cede jurisdiction over the land to the United States.

Legally, the parties are in agreement that, at least in the ordinary case, acquisition of an ownership interest in land by the United States only impacts title to that land; it does not divest the State of jurisdiction over that land. See Silas Mason Co v. Tax Com'n of State of Washington, 302 U.S. 186, 197 (1937). The parties are equally agreed that "Congress can acquire exclusive or partial jurisdiction over lands within a State by the State's consent or cession...." Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976). The parties disagree regarding the jurisdictional impact of the Secretary taking the Madera Site into trust for North Fork through the authority delegated to the Secretary by the IRA.

Plaintiffs' position is that North Fork must have "acquired territorial jurisdiction of the Madera" Site in order to exercise jurisdiction over the land within the meaning of 25 U.S.C. §§ 2710(d)(3)(A) and 2710(d)(7)(B)(vii)(II). Doc. 32 at 2. Plaintiffs contend that territorial jurisdiction over land within a state's territorial jurisdiction can only be acquired in three situations: (1) when the land "is reserved by the United States at the time the state is admitted into the Union; (2) when "[t]he land is acquired pursuant to the Enclaves Clause;" or (3) when the state expressly cedes jurisdiction to the United States. Doc. 32 at 6. In order to make a showing in first situation, Plaintiffs argue, a historical review of the property is required. Doc. 32...