Neighbors of Casino San Pablo v. Salazar

• Decision Date: 30 March 2011
• Docket Number: Civil Case No. 09–2384 (RJL).
• Citation: 773 F.Supp.2d 141
• Parties: NEIGHBORS OF CASINO SAN PABLO, an unincorporated association, Andres Soto, Anne Ruffino, Adrienne Harris, Tania Pulido, and Julia Areas, Plaintiffs,v.Ken SALAZAR, in his official capacity as Secretary of the Interior, Larry Echo Hawk, in his official capacity as Assistant Secretary of the Interior for Indian Affairs, Tracie Stevens, in her official capacity as Chairperson of the National Indian Gaming Commission, and National Indian Gaming Commission, Defendants.
• Court: U.S. District Court — District of Columbia

773 F.Supp.2d 141

NEIGHBORS OF CASINO SAN PABLO, an unincorporated association, Andres Soto, Anne Ruffino, Adrienne Harris, Tania Pulido, and Julia Areas, Plaintiffs,

v.Ken SALAZAR, in his official capacity as Secretary of the Interior, Larry Echo Hawk, in his official capacity as Assistant Secretary of the Interior for Indian Affairs, Tracie Stevens, in her official capacity as Chairperson of the National Indian Gaming Commission, and National Indian Gaming Commission, Defendants.

Civil Case No. 09–2384 (RJL).

United States District Court, District of Columbia.

March 30, 2011.

Daniel B. Edelman, Katz Marshall & Banks, LLP, Washington, DC, Edward P. Joy, Martin H. Dodd, Michael A. Futterman, Futterman Dupree Dodd Croley Maier LLP, San Francisco, CA, for Plaintiffs.Gina L. Allery, Kristofor R. Swanson, Joseph N. Watson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff, Neighbors of Casino San Pablo (“neighbors”), are an “unincorporated association comprised of residents, property owners and others who live, work, and/or own businesses ... or who frequent the area around” property on which the Lytton Band of Porno Indians (the “Lyttons” or “the tribe”) operates a casino on land which the United States government holds in trust for the tribe's benefit. Pls.' First Amended Complaint (“Am. Compl.”), Mar. 15, 2010, ¶ 9 [Dkt. # 10]. Neighbors, along with Andres Soto, Adrienne Harris, Tania Pulido, and Julia Areas (collectively, “plaintiffs”), bring this action against various officials in the United States Department of the Interior, as well as the National Indian Gaming Commission (“NIGC”) and its chairperson (collectively, “defendants”), alleging that the NIGC failed its statutory evaluation and enforcement duties with respect to the Lyttons, and that the NIGC acted arbitrarily and capriciously in the determinations it did make about the tribe's gaming, in violation of the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Plaintiffs seek declaratory relief under 5 U.S.C. §§ 701–706 and 28 U.S.C. § 2201. Before this Court is defendants' Motion To Dismiss. Upon consideration of the parties' pleadings, relevant law, and the entire record herein, defendants' motion is GRANTED.

BACKGROUND

In 1988, Congress enacted the Indian Gaming Regulatory Act (“IGRA”) “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1). Under IGRA, a tribe may conduct gaming only on “Indian lands,” id. §§ 2710(b)(1), (d)(3), which include “all lands within the limits of any Indian reservation” and “any lands title to which is either held in trust by the United States for the benefit of any Indian tribe.” Id. § 2703(4). In 1988, Congress also established the National Indian Gaming Commission (“NIGC”) to regulate Indian gaming under the IGRA, see id. §§ 2702(3), 2706(b), and to authorize enforcement actions for violations of the statute. Id. § 2713.¹

In 1991, the federal government (“the Government”) reinstated the Lyttons' recognition as an Indian tribe in California.² See Artichoke Joe's v. Norton, 216 F.Supp.2d 1084, 1097 (E.D.Cal.2002) ( Artichoke Joe's I ); see also Am. Compl. ¶ 55. As part of the reinstatement, the United States Secretary of the Interior (“the Secretary”) took land into trust for the tribe. Artichoke Joe's I, 216 F.Supp.2d at 1096–97. That land, located in Sonoma County, California, was not eligible for gaming. Artichoke Joe's Cal. Grand Casino v. Norton, 278 F.Supp.2d 1174, 1177 (E.D.Cal.2003) ( Artichoke Joe's II ). The Lyttons, however, sought to conduct gaming on their land and identified nine and one-half acres on a different site in San Pablo, California (the “San Pablo property”), which was eligible for tribal gaming. Id.; see also Am. Compl. ¶ 2.

In 2000, Congress enacted the Omnibus Indian Advancement Act (“Omnibus Act”), Pub. L. 106–568, 114 Stat. 2868, and through it directed the Secretary to take the San Pablo property into trust for the Lyttons in a manner which made it eligible for gaming under the IGRA.³ Specifically, Section 819 instructed that:

Notwithstanding any other provision of law, the Secretary of the Interior shall accept for the benefit of the Lytton Rancheria of California the land described in that certain grant deed dated and recorded on October 16, 2000, in the official records of the County of Contra Costa, California.... The Secretary shall declare that such land is held in trust by the United States for the benefit of the Rancheria and that such land is part of the reservation of such Rancheria under sections 5 and 7 of the Act of June 18, 1934 (48 Stat. 985; 25 U.S.C. 467). Such land shall be deemed to have been held in trust and part of the reservation of the Rancheria prior to October 17, 1988. Id. (emphasis added).

Importantly, Section 819 deemed the San Pablo property “to have been held in trust and part of the reservation ... prior to October 17, 1988”—the date after which the IGRA prohibited ⁴ gaming on newly acquired lands. Thus, by treating the acquisition as one occurring before October 17, 1988, Congress—through the language of the Omnibus Act—exempted the Lyttons' San Pablo property from the IGRA prohibition and rendered the San Pablo property eligible for gaming.

Even if a tribe is eligible to conduct gaming on Indian lands, however, it must adopt a tribal gaming ordinance and gain approval from the NIGC for such gaming to be legal. 25 U.S.C. §§ 2710(b)(2), (d)(1)(A). Years before the Government took into trust the San Pablo property eligible for gaming, the Lyttons prospectively sought eligibility for gaming on their lands.⁵ To that end, the Lyttons adopted, and the NIGC approved, a tribal gaming ordinance in July 1999. Am. Compl. ¶ 56; Defs.' Mot. to Dismiss at 9. The 1999 ordinance permitted gaming on reservation lands, including land held in trust by the United States for the benefit of the Lyttons, and thus was not “site-specific.” Defs.' Mot. to Dismiss at 9; see also Am. Compl. ¶ 56.

In 2003, after the San Pablo property was taken into trust, the Lyttons began conducting “class II” gaming under the ordinance approved by the NIGC in 1999. ⁶ Am. Compl. ¶ 66; Defs.' Mot. to Dismiss at 10. In January 2008, the Lyttons enacted an amended gaming ordinance which repealed and replaced the 1999 ordinance and provided for “class II” and “class III” gaming on the tribe's land. Am. Compl. ¶ 75; Pls.' Ex. B at 3; Defs.' Mot. to Dismiss at 11. In May 2008, the NIGC approved the ordinance, which permitted “[a]ll forms of Class II gaming as defined in the IGRA” and “[a]ll forms of Class III gaming as defined in the [IGRA] ... and authorized by a Compact between the Tribe and the State of California.” Pls.' Ex. B at 4 (emphasis added). Further, the NIGC approved class II and III gaming on “Indian lands,” but did not render site-specific approval and did not identify specific games which could be conducted on the San Pablo property. See Am. Compl. ¶ 76; Pls.' Ex. B at 2; Defs.' Mot. to Dismiss at 11.

Plaintiffs filed suit in March 2010, claiming that they had suffered injuries—such as increased traffic, interstate congestion, property crimes, prostitution, pollution, and diminution in property value, among other things—as a result of the Lyttons' operation of a casino on the San Pablo property. Plaintiffs allege eight violations of the Administrative Procedure Act, most of which boil down to two claims: First, that the Lyttons do not have proper jurisdiction or sovereignty over the San Pablo property.⁷ Second, that before approving a gaming ordinance, the NIGC was required to—but did not make—specific gaming determinations or an “Indian lands determination” about the San Pablo property.

ANALYSIS

I. Standard of Review

Defendants move to dismiss this action for failure to state a claim upon which relief may be granted under Fed. Rule Civ. P. 12(b)(6). Under Rule 12(b)(6), the Court accepts the allegations in the complaint as true and resolves ambiguities in favor of the pleader. Harbury v. Deutch, 244 F.3d 956, 958 (D.C.Cir.2001) (internal citation omitted). Importantly, however, the Court “need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations.” Guam Indus. Servs., Inc. v. Rumsfeld, 405 F.Supp.2d 16, 19 (D.D.C.2005) (citing Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004)).

To survive a Rule 12(b)(6) 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, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal citations and quotations omitted). But “[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal citations and quotations omitted).

Defendants also move to dismiss for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). A plaintiff has the burden of establishing jurisdiction under Rule 12(b)(1). Theodore ex rel. A.G. v. Gov't of D.C., 655 F.Supp.2d 136, 141 (D.D.C.2009) (internal citations omitted). In addition, for purposes of a Rule 12(b)(1) motion, a plaintiff's lack of standing to bring a claim is considered a defect in the court's subject-matter jurisdiction and is thus fatal to the claim. Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Unfortunately for plaintiffs, even taking as true all of the allegations in the complaint, each of the eight counts must be dismissed. How so?

II. Plaintiffs Fail To State A Claim On Which Relief May Be Granted.A. The NIGC Was Not Required...