jonodev chaudhuri chairman of the national indian ......indian gaming related cases, 331 f.3d 1094,...

No. 17-16655

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMUL ACTION COMMITTEE, et al. Plaintiffs-Appellants,

v.

JONODEV CHAUDHURI, Chairman of the National Indian Gaming Commission, et al.

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA (HON. KIMBERLY J. MUELLER)

ANSWERING BRIEF FOR THE FEDERAL APPELLEES

Of Counsel:

MATTHEW KELLY

Office of the Solicitor

U.S. Department of the Interior

Washington, D.C. 20240

AUSTIN T. BADGER

Office of the General Counsel

National Indian Gaming Com’n


JEFFREY H. WOOD

Acting Assistant Attorney General

ERIC GRANT

Deputy Asst. Attorney General

WILLIAM B. LAZARUS

JUDITH RABINOWITZ

BARBARA M.R. MARVIN

ELIZABETH ANN PETERSON

Attorneys, Appellate Section

Environment and Natural Resources Div.

U.S. Department of Justice

P.O. Box 7415


(202) 514‐3888

[email protected]

Case: 17-16655, 02/20/2018, ID: 10769823, DktEntry: 18, of 56

TABLE OF CONTENTS

Introduction ............................................................................................................. 1

Jurisdictional statement .......................................................................................... 2

Statement of the Issues ........................................................................................... 3

Statement of Facts ................................................................................................... 4

A. Statutory and Regulatory Background ................................. 4

B. Factual Background ............................................................... 11

C. District court proceedings ..................................................... 13

SUMMARY OF ARGUMENT ............................................................................. 18

ARGUMENT .......................................................................................................... 22

I. Standard of Review .......................................................................... 22

II. JAC’s claims that the land on which the Casino is located is

not eligible for gaming under IGRA, and that the Tribe is

not entitled to the benefits of federal recognition, are

foreclosed by this Court’s decision in the earlier appeal. .......... 23

III. Even if not foreclosed by this Court’s earlier decision, JAC’s

challenge to the Tribe’s federally‐recognized status and the

status of its reservation as Indian land does not present a

justiciable case or controversy. ....................................................... 26

A. The district court lacked jurisdiction over JAC’s claims

because only Congress can terminate a tribe’s

federally‐recognized status. ................................................. 27

B. JAC’s constitutional claim fails on its face, because the

provision of benefits to federally recognized tribes on

the basis of their status as tribes does not offend equal

protection principles. ............................................................. 34

C. The district court did not abuse its discretion in

dismissing JAC’s claims because the Tribe is a

required party that has sovereign immunity and

cannot be involuntarily joined ............................................. 37


ii

IV. The district court correctly concluded that the Tribe’s NEPA

claim did not challenge final agency action ................................. 40

CONCLUSION ...................................................................................................... 43

Statement of Related Cases .................................................................................. 44

Certificate of Compliance with Federal Rule of Appellate Procedure

32(a) ............................................................................................................... 44

Certificate of Service ............................................................................................. 45


iii

TABLE OF AUTHORITIES

CASES:

Arpin v. Santa Clara Valley Transp. Agency,

261 F.3d 912 (9th Cir. 2001) ........................................................................ 43

Artichoke Joe’s v. Norton,

216 F. Supp. 2d 1084, 1092 (E.D. Cal. 2002) affʹd sub nom. Artichoke

Joeʹs California Grand Casino v. Norton, 353 F.3d 712 (9th Cir.

2003) ................................................................................................................ 7

Artichoke Joeʹs California Grand Casino v. Norton,

353 F.3d 712 (9th Cir. 2003) ....................................................................... 36

Big Lagoon Rancheria v. California,

789 F.3d 947 (9th Cir. 2015) (en banc) ......................... 1, 4, 7, 16, 20, 24, 25

Carcieri v. Salazar,

555 U.S. 379 (2009) ................................................................................ 14, 25

Christianson v. Colt Industries Operating Corp.,

486 U.S. 800 (1988) ...................................................................................... 23

City of Anaheim v. Duncan,

658 F.2d 1326 (9th Cir. 1981) ................................................................ 23‐24

Clinton v. Babbitt,

180 F.3d 1081 (9th Cir.1999) ....................................................................... 22

Cnty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation,

502 U.S. 251 (1992) ........................................................................................ 4

Ctr. for Bio‐Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Depʹt,

533 F.3d 780 (9th Cir. 2008) ........................................................................ 22


iv

Dawavendewa v. Salt River Project Agr. Imp. & Power Dist.,

276 F.3d 1150 (9th Cir. 2002) ...................................................................... 22

Gonzales v. U.S. Depʹt of Homeland Sec.,

712 F.3d 1271 (9th Cir. 2013) ................................................................ 23, 24

In re Indian Gaming Related Cases,

331 F.3d 1094 (9th Cir. 2003) .................................................................... 7, 8

Jamul Action Comm. v. Chaudhuri,

837 F.3d 958 (9th Cir. 2016) .............................................................. 2, 16, 29

Jamul Action Committee v. Chaudhuri,

651 Fed. Appx. 689 (9th Cir. 2016) .................................................. 1, 16, 29

Kescoli v. Babbitt,

101 F.3d 1304 (9th Cir.1996) ....................................................................... 22

Lopez v. Smith,

203 F.3d 1122 (9th Cir.2000) (en banc) ....................................................... 22

Mackinac Tribe v. Jewell,

829 F.3d 754 (D.C. Cir. 2016) ..................................................................... 32

Mamigonian v. Biggs,

710 F.3d 936 (9th Cir. 2013) ........................................................................ 42


v

Martin v. City of Oceanside,

360 F.3d 1078 (9th Cir. 2004) ...................................................................... 42

Michigan v. Bay Mills Indian Community,

134 S. Ct. 2024 (2014) .................................................................................. 39

Morton v. Mancari,

417 U.S. 535 (1974) ...................................................................................... 35

Native Village of Tyonek v. Puckett,

957 F.2d 631 (9th Cir.1992) ......................................................................... 31

Navarro v. Block,

72 F.3d 712 (9th Cir. 1995) .......................................................................... 36

Norton v. S. Utah Wilderness Alliance,

542 U.S. 55 (2004) ........................................................................................ 10

Oregon Nat. Desert Assʹn v. U.S. Forest Serv.,

465 F.3d 977 (9th Cir. 2006) ........................................................................ 28

Pit River Home & Agric. Coop. Assoc. v. United States,

30 F.3d 1088 (9th Cir. 1994) ...................................................... 23, 31, 33‐34

Price v. Hawaii,

764 F.2d 623 (9th Cir.1985) ......................................................................... 31

Richardson v. United States,

841 F.2d 993 (9th Cir.1988) ......................................................................... 23


vi

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ........................................................................................ 9

Rosales v. Sacramento Area Dir.,

32 I.B.I.A. 158 (1998) (“Rosales I”) ............................................................. 30

Rosales v. United States,

73 F. Appʹx 913 (9th Cir. 2003) ........................................................... 29‐ 30

Rosales v. United States, (Fed. Cl. 2009)

89 Fed. Cl. 565 .................................................................................. 25‐26, 30


477 F. Supp. 2d 119 (D.D.C. 2007) ............................................................ 31


No. 07‐0624, 2007 WL 4233060 (S.D. Cal. Nov. 28, 2007) ...................... 30

Singleton v. Wulff,

428 U.S. 106, 120 (1976) ............................................................................. 26

Steel Co. v. Citizens for a Better Envʹt,

523 U.S. 83 (1998) ........................................................................................ 27

Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g,

476 U.S. 877 (1986) ...................................................................................... 39

United States v. Antelope,

430 U.S. 641 (1977) ...................................................................................... 35

United States v. Zepeda,

792 F.3d 1103 (9th Cir. 2015) (en banc) ................................................ 36, 37


vii

Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008) ............................................................................................ 9

STATUTES:

Administrative Procedure Act:

5 U.S.C. § 551 et seq ....................................................................................... 2

5 U.S.C. § 70(2)(a) ........................................................................................ 10

5 U.S.C. § 702 ............................................................................................... 10

5 U.S.C. § 706(1) ........................................................................................... 10

18 U.S.C. § 1153 ...................................................................................................... 37

Indian Reorganization Act (‘IRA”):

25 U.S.C. §§ 5101 et seq ................................................................................. 4

25 U.S.C. § 5108 ....................................................................................... 4, 11

25 U.S.C. § 5110 ............................................................................................. 5

25 U.S.C. § 5119 ........................................................................................... 35

25 U.S.C. § 5123 ................................................................................. 4, 30, 31

25 U.S.C. § 5123(a) ....................................................................................... 31

25 U.S.C. § 5123 (f) ...................................................................................... 41


viii

25 U.S.C. §§ 5123 (f) ‐ (h) .............................................................................. 5

25 U.S.C. § 5123 (g) ..................................................................................... 41

25 U.S.C. § 5129 ....................................................................................... 5, 30

25 U.S.C. § 5130 ............................................................................................. 6

25 U.S.C. § 5131(a) (1982) ........................................................................... 11

Indian Gaming Regulatory Act

25 U.S.C. § 2701 et seq ............................................................................... 1, 6

25 U.S.C. § 2702(1) ......................................................................................... 6

25 U.S.C. § 2702(2) ......................................................................................... 6

25 U.S.C. § 2703 ........................................................................................... 13

25 U.S.C. § 2703(4) ................................................................................... 6, 25

25 U.S.C. § 2703(6) ......................................................................................... 7

25 U.S.C. § 2703(8) ......................................................................................... 8

25 U.S.C. § 2710(a)(1) .................................................................................... 7

25 U.S.C. § 2710(b)(1)(B) ............................................................................... 8

25 U.S.C. § 2710(d)(1)(a)(iii) ......................................................................... 8

25 U.S.C. § 2710(d)(3)(B) .............................................................................. 8


ix

25 U.S.C. § 2710(d)(8) ................................................................................... 8

25 U.S.C. § 2710(d)(9) ................................................................................... 9

28 U.S.C. § 1291 ........................................................................................................ 3

28 U.S.C. § 1331 ........................................................................................................ 2

28 U.S.C. § 2401(a) ................................................................................................. 25

National Environmental Policy Act:

42 U.S.C. § 4321 et seq .................................................................................. 2

42 U.S.C. §§ 4321‐4370h ................................................................................ 9

42 U.S.C. § 4332 ............................................................................................. 9

42 U.S.C. § 4332(2)(C) ................................................................................... 9

Federally Recognized Indian Tribe List Act, Pub. L. No. 103‐454, 108 Stat.

4791 (1994) (codified at List Act)

25 U.S.C. §§ 5130‐5131(a) ................................................................... 5, 6, 29

RULES AND REGULATIONS:

Fed. R. Civ. P. 19 .............................................................................................. 38, 40

25 C.F.R. Part § 83 ................................................................................ 27, 29, 32, 33

25 C.F.R. § 83.3 ....................................................................................................... 29

40 C.F.R. §§ 1500–1508 ............................................................................................ 9

40 C.F.R. § 1502.9(c)(1) .......................................................................................... 10


x

47 Fed. Reg. 53,130 (Nov. 24, 1982) ............................................................... 11, 31

64 Fed. Reg. 4,722 (Jan. 29, 1999) ......................................................................... 11

65 Fed. Reg. 31,189‐01 (May 11, 2000) ................................................................ 11

67 Fed. Reg. 15,582 (Apr. 2, 2002) ....................................................................... 12

68 Fed. Reg. 64,621 (Nov. 14, 2003) ..................................................................... 12

78 Fed. Reg. 21,398 (Apr. 10, 2013) ............................................................... 12, 13

80 Fed. Reg. 4,235 (Jan. 30, 2018) ......................................................................... 11

MISCELLEANOUS:

Felix S. Cohen, Handbook of Federal Indian Law § 3.02[5] (2005 ed.) ........... 6

18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 4478.5 (2002) .............................................................................................. 24


INTRODUCTION

Jamul Indian Village, a federally recognized Indian tribe (“the

Tribe”), operates a casino on its reservation in San Diego County,

California. In 2013, plaintiffs Jamul Action Committee, a citizens’

organization in Jamul, California, along with several of its members and

Jamul Community Church (collectively, “JAC”), initiated this suit, which

seeks to enjoin construction and operation of the Tribe’s casino.

This appeal turns on JAC’s assertion that the Tribe is not entitled to

federal recognition as an Indian tribe, and that its casino is located on lands

that are not properly regarded as “Indian lands” eligible for gaming under

the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. But this

Court considered and rejected the very same challenge in JAC‘s

interlocutory appeal from the denial of preliminary injunctive relief earlier

in this case. Jamul Action Committee v. Chaudhuri, 651 Fed. Appx. 689 (9th

Cir. 2016) (mem.). In that earlier appeal, this Court held that precedent

forecloses the argument that the land on which the Jamul casino is located

is not “Indian land.” See Big Lagoon Rancheria v. California, 789 F.3d 947, 953


2

(9th Cir. 2015) (en banc). By necessary implication, therefore, this Court

also held that the Tribe is federally recognized and eligible to operate a

casino under IGRA. See also Jamul Action Committee v. Chaudhuri, 837 F.3d

958, 960 (9th Cir. 2016) (describing the Tribe as “a federally recognized

tribe”). In the present appeal, JAC nonetheless seeks to strip the Tribe of its

federally‐recognized status, reasserting its collateral attack on the status of

the Tribe’s reservation as “Indian land.” Each of its arguments in this

appeal proceeds from the premise that the Tribe is not a federally

recognized Indian tribe eligible to participate in gaming under IGRA, but

rather is a “race‐based half‐blood Indian group.” Br. 1, 5, 23, 40, 42, 45, 58.

Because these arguments are foreclosed as a matter of law, the judgment of

the district court dismissing JAC’s claims with prejudice should be

affirmed.

JURISDICTIONAL STATEMENT

Plaintiffs allege violations of IGRA; the Indian Reorganization Act, 25

U.S.C. § 5101 et seq.; the National Environmental Policy Act, 42 U.S.C.

§ 4321 et seq.; the Administrative Procedure Act, 5 U.S.C. 551 et seq.; and


3

the United States Constitution. The district court had subject matter

jurisdiction pursuant to 28 U.S.C. § 1331.

The district court’s judgment is final because it resolved all of JAC’s

claims in favor of the United States. This Court has jurisdiction pursuant to

28 U.S.C. § 1291.

The district court’s judgment dismissing JAC’s claims was entered on

July 31, 2017. ER 2. JAC filed its notice of appeal on August 17, 2017. ER 1.

The appeal is timely under Federal Rule of Appellate Procedure

4(a)(1)(B)(iii).

STATEMENT OF THE ISSUES

1. Whether this Court’s prior decision in this case foreclosed

JAC’s claims challenging the Tribe’s status as a federally recognized Indian

tribe and the eligibility of the Tribe’s reservation lands for gaming under

IGRA.

2. Assuming that the challenge is not foreclosed, whether the

district court had jurisdiction over JAC’s claims, where JAC failed to


4

identify a federal agency action giving rise to its claims and where the relief

it seeks is impermissible.

3. Whether JAC’s claim that gaming on the Tribe’s reservation

violates the Constitution’s guarantee of equal protection amounts to an

impermissible attack on the Tribe’s federally‐recognized status.

4. Whether the district court correctly dismissed JAC’s challenge

to the approval by the National Indian Gaming Commission of the Tribe’s

gaming management contract for failure to identify final agency action as

required by the APA.

STATEMENT OF FACTS

A. Statutory and Regulatory Background

1. The Indian Reorganization Act

The Indian Reorganization Act (IRA), 25 U.S.C. § 5101 et seq., was

enacted in 1934 as part of the federal government’s return to a policy

supporting “principles of tribal self‐determination and self‐governance.”

County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502

U.S. 251, 255 (1992) (citations omitted). The IRA provides that “[a]ny


5

Indian tribe shall have the right to organize for its common welfare and to

adopt an appropriate constitution and bylaws.” 25 U.S.C. § 5123(a).

Under the IRA, the Secretary of the Interior is authorized “to acquire

. . . any interest in lands . . . for the purpose of providing land for Indians”

and to hold those lands “in trust for the Indian tribe or individual Indian

for which the land is acquired.” 25 U.S.C. § 5108; see also Big Lagoon, 789

F.3d at 950. The IRA authorizes the Secretary to establish new Indian

reservations on lands acquired under this provision. 25 U.S.C. § 5110.

Section 19 of the IRA defines “tribe” to refer to “any Indian tribe, organized

band, pueblo, or the Indians residing on one reservation.” Id. § 5129.

“Indian” is defined to include “all persons of Indian descent who are

members of any recognized Indian tribe now under Federal jurisdiction”

and “persons of one‐half or more Indian blood.” Id. The IRA prohibits

federal departments and agencies from distinguishing among federally

recognized tribes with respect to their sovereign powers, and it recognizes

all recognized tribes’ inherent sovereign powers of self‐government. Id.

§ 5123(f)‐(h).


6

In 1994, Congress enacted the Federally Recognized Indian Tribe List

Act (List Act), Pub. L. No. 103‐454, 108 Stat. 4791 (codified at 25 U.S.C.

§§ 5130‐5131). The List Act requires the Secretary “to publish a list of all

Indian tribes which the Secretary recognizes to be eligible for the special

programs and services provided by the United States to Indians because of

their status as Indians.” 25 U.S.C. § 5131(a). The Act defines Tribe to mean

“any Indian or Alaska Native tribe, band, nation, pueblo, village or

community that the Secretary of the Interior acknowledges to exist as an

Indian tribe.” Id. § 5130. The List Act expressly reserves to Congress the

exclusive authority to terminate a tribe’s federally‐recognized status. Sec.

103(4), 108 Stat. 4791.

2. The Indian Gaming Regulatory Act

Congress enacted the Indian Gaming Regulatory Act (IGRA), 25

U.S.C. § 2701 et seq., to regulate gaming on Indian lands and to promote

tribal economic development. See 25 U.S.C. § 2702(1)‐(2). The statute

defines “Indian lands” to include “all lands within the limits of any Indian

reservation”; and “any lands title to which is . . . held in trust by the United


7

States for the benefit of any Indian tribe . . . and over which an Indian tribe

exercises governmental power.” 25 U.S.C. § 2703(4).

IGRA created a “ ’cooperative federalist’ framework that ‘balanced

the competing sovereign interests of the federal government, state

governments, and Indian tribes, by giving each a role in the regulatory

scheme.’” Big Lagoon, 789 F.3d at 949 (brackets omitted) (quoting In re

Indian Gaming Related Cases, 331 F.3d 1094, 1096 (9th Cir. 2003)). It

established three “classes” of gaming and delineated the regulatory

responsibilities of tribes, states, and the federal government for each

“class” of gaming. “Class I gaming includes social games solely for prizes

of minimal value or traditional forms of Indian gaming engaged in by

individuals as part of, or in connection with, tribal ceremonies or

celebrations, and its regulation is left exclusively within the jurisdiction of

the Indian tribes.” Big Lagoon, 789 F.3d at 949 (citations and internal

quotation marks omitted).

“Class II gaming includes bingo . . . and certain card games . . . but

excludes any banked card games, electronic games of chance, and slot


8

machines.” Id. (internal quotation marks omitted). Class III gaming

includes “all forms of gaming that are not Class I gaming or Class II

gaming.” 25 U.S.C. § 2703(8). Class III gaming often involves “the types of

high‐stakes games usually associated with Nevada‐style gambling.” In re

Indian Gaming Related Cases, 331 F.3d at 1097.

With respect to both Class II and Class III gaming, IGRA provides

that a tribe “may engage in, or license and regulate [such] gaming on

Indian lands within such tribeʹs jurisdiction, if . . . the governing body of

the Indian tribe adopts an ordinance or resolution which is approved by”

the chairman of the National Indian Gaming Commission (NIGC). 25

U.S.C. § 2710(b)(1)(B), (d)(1)(a)(iii). For Class III gaming on Indian lands,

IGRA additionally requires that a tribal‐state “compact” be in place. Id.

§ 2710(d)(3)(B), (d)(8). Accordingly, Class III gaming is subject to state

regulation to the extent specified in compacts between tribes and states that

allow such gaming to occur.

The Tribe in this case operates a Class III gaming establishment and

has elected not to manage the operation itself. IGRA provides that in these


9

circumstances, tribes “may enter into a management contract for the

operation of Class III gaming activity,” provided that the management

contract is “submitted to, and approved by, the [NIGC’s] chairman.” Id.

§ 2710(d)(9).

3. The National Environmental Policy Act

NEPA, 42 U.S.C. § 4321 et seq., requires federal agencies “to the

fullest extent possible” to prepare an Environmental Impact statement (EIS)

for “every . . . major Federal actio[n] significantly affecting the quality of

the human environment.” Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7, 16 (2008) (citing 42 U.S.C. § 4332(2)(C)). An EIS is a detailed

analysis and study conducted to determine whether, or the extent to which,

a proposed project will affect the environment. 42 U.S.C. § 4332.

Regulations promulgated by the Council on Environmental Quality (CEQ),

40 C.F.R. §§ 1500‐1508, provide guidance in the application of NEPA.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351‐52 (1989).

Under the CEQ regulations, an agency is required to prepare a

supplemental environmental impact statement (“SEIS”) if there are


10

“substantial changes in the proposed action that are relevant to

environmental concerns; or . . . [t]here are significant new circumstances or

information relevant to environmental concerns and bearing on the

proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1).

4. The Administrative Procedure Act

The Administrative Procedure Act allows persons “suffering legal

wrong because of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute” to seek judicial

review of final agency action. 5 U.S.C. § 702. Under the APA, a reviewing

court may set aside an agency action that is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).

The APA also authorizes district courts to order agencies to take action

“unlawfully withheld or unreasonably delayed.” Id. § 706(1). That

provision “empowers a court only to compel an agency to perform a

ministerial or non‐discretionary act, or to take action upon a matter,

without directing how it shall act.” Norton v. Southern Utah Wilderness

Alliance, 542 U.S. 55, 64 (2004) (internal quotation marks omitted).


11

B. Factual Background

Jamul Indian Village is a federally recognized Indian tribe that has

appeared on each list of ‘‘Indian Tribal Entities that Have a Government‐

to‐Government Relationship with the United States,’’ maintained by the

Secretary under the List Act, 25 U.S.C. § 5131(a), since 1982. See 47 Fed.

Reg. 53,130; 53,132 (Nov. 24, 1982); 83 Fed. Reg. 4235, 4237 (Jan. 30, 2018).

The Tribe enacted a gaming ordinance in 1993 and amended it in 1999 to

allow Class III, casino‐style gaming on its Reservation. NIGC thereafter

approved the amended gaming ordinance. See 64 Fed. Reg. 4722, 4723

(Jan. 29, 1999).

In 2000, the Tribe entered into a compact with the State of California to

conduct Class III gaming, which was approved by the Secretary of the

Interior. See 65 Fed. Reg. 31,189 (May 16, 2000). The Tribe then requested

that the Secretary acquire a 101‐acre parcel of land in trust for the Tribe

under Section 5 of the IRA, 25 U.S.C. § 5108. It also sought approval of a

gaming management contract with a private operator for a casino to be

located on its existing Reservation, with planned support facilities to be


12

located on the newly‐acquired parcel. See 67 Fed. Reg. 15,582 (Apr. 2,

2002). The Bureau of Indian Affairs published its Notice of Intent to

prepare an EIS for the proposed fee‐to‐trust transfer in April 2002. Id.

Following public comment, the Final EIS was made available to the public

in November 2003. See 68 Fed. Reg. 64,621 (Nov. 14, 2003). The Tribe

decided not to pursue its application for the proposed fee‐to‐trust

acquisition, however. Between 2003 and 2006, it redesigned its proposed

casino to eliminate the need for the additional land. See 78 Fed. Reg.

21,398, 21,399 (Apr. 10, 2013). In 2008, the Tribe withdrew its application

for the fee‐to‐trust transfer.

The Tribe subsequently revised its proposal for a gaming management

contract. In April 2013, the Tribe entered into a contract with San Diego

Gaming Ventures LLC (San Diego Gaming) to manage the planned casino

operations on the Reservation. The Tribe submitted the contract to NIGC for

approval, as required by IGRA, and amended its gaming ordinance to update

certain information as necessitated by an amendment to NIGC’s regulations.

The amended ordinance was approved shortly after it was submitted. On


13

April 10, 2013, the NIGC published notice of its intent to prepare a SEIS for

its proposal to approve the management contract with San Diego Gaming in

the Federal Register. 78 Fed. Reg. at 21,398. The Notice of Intent stated that

the agency was updating and re‐evaluating the potential environmental

impacts related to the possible approval or disapproval of the contract. The

Notice also stated that the proposed gaming facility was located “on the

Tribeʹs Reservation, which qualifies as ‘Indian Lands’ pursuant to 25 U.S.C.

2703.” Id.

Construction of the casino began in 2014. The management contract

was approved on September 30, 2016. Gaming operations at the casino

commenced in October 2016.

C. District court proceedings

JAC initiated this lawsuit on September 15, 2013, and filed its second

amended complaint (Complaint) on August 26, 2014. ER 183. The

Complaint challenges NIGC’s publication of a notice of intent to prepare a

supplemental EIS in connection with the Tribe’s request for approval the

proposed management contract for its casino project. JAC alleges that the


14

notice was a final agency action by NIGC, by which the agency made a

final determination pursuant to IGRA that the Tribe’s trust lands qualified

as “Indian lands.” JAC challenged the purported determination under the

APA on the grounds (among others) that NIGC’s notice of intent to publish

a supplemental EIS violates the IRA as interpreted by the Supreme Court in

Carcieri v. Salazar, 555 U.S. 379 (2009); that the Tribe’s trust lands are not

eligible for Indian gaming under IGRA; and that NIGC and the Secretary

failed to comply with NEPA in making the purported Indian lands

determination. ER 365‐378.

JAC named as defendants representatives of the NIGC and the

Department of the Interior (federal defendants), as well as various tribal

officials and representatives of the gaming management company. The

Complaint seeks a declaration that the Tribe is not a federally recognized

Indian tribe and an order setting aside NIGC’s decisions — allegedly

embodied in the Notice of Intent — to take land into trust and that the land

underlying the proposed casino is “Indian lands.” The Complaint also

seeks to enjoin approval and implementation of the Tribe’s gaming


15

compact with the State and its gaming management contract. ER 370‐80.

The Complaint seeks additional declarations that the Tribe’s reservation is

not subject to the Tribe’s jurisdiction or eligible for gaming; that the federal

defendants lack authority hold the Tribe’s land in trust land or treat it as a

reservation; and that providing benefits to the Tribe violates the plaintiffs’

constitutional right to equal protection. ER 379. The Tribe made a special

appearance as amicus curiae to advise the court of its status as a federally

recognized tribe entitled to sovereign immunity from suit.

On January 2, 2015, JAC filed a Motion for a Writ of Mandate and for

a Preliminary Injunction (Dkt. 60), seeking to compel publication of the

SEIS and to enjoin all activities related to the Tribe’s casino project until the

NIGC completed its SEIS regarding the request for approval of the

management contract. The district court denied the request for preliminary

injunctive relief and mandamus on May 15, 2015. JAC appealed the denial,

and on June 30, 2016, this Court affirmed in a published opinion and

accompanying unpublished memorandum order. Jamul Action Committee v.

Chaudhuri, 837 F.3d 958 (9th Cir. 2016); Jamul Action Committee v. Chaudhuri,


16

651 Fed. Appx. 689. This Court denied JAC’s NEPA challenge to NIGC’s

approval of the tribal gaming ordinance, holding that IGRA’s unyielding

statutory time limitations are irreconcilable with the requirement to

publish an EIS. Id. at 964. This Court concluded that JAC was not likely to

prevail on the merits of its claims based on NEPA, the state‐tribal compact,

or the Indian Gaming Regulatory Act, and that “[t]o the extent plaintiffs

contend that the land on which the Jamul casino is being built is not Indian

land, circuit precedent forecloses that argument. Id. (citing Big Lagoon, 789

F.3d at 953).

Following this Court’s resolution of JAC’s interlocutory appeal, the

district court dismissed five of JAC’s six claims — in which JAC sought

orders to enjoin the Tribe’s construction of a casino on its lands, prevent the

tribe from operating a casino, prevent the United States from holding the

Tribe’s reservation in trust, and declare that the reservation is ineligible for

gaming — on the ground that the Tribe is a required party that cannot be


17

joined because it has not waived its sovereign immunity. ER 21.1 On JAC’s

only remaining claim — whether the NIGC’s Notice of Intent amounted to

approval of the gaming management contract without complying with

NEPA — the district court notified the parties of its intent to convert the

motion to dismiss into a motion for summary judgment and invited further

briefing. On December 13, 2016, the district court granted summary

judgment for the federal defendants on that claim, concluding that the

Notice of Intent did not approve the contract, and that the final approval

decision (which was issued on September 30, 2016) was not challenged in

the complaint. On July 31, 2017, the district court issued final judgment

dismissing all claims. This appeal followed.

1 On August 8, 2016, JAC prematurely filed a notice of appeal from the

dismissal of these five claims. It then incorrectly asserted that the district

court lost jurisdiction over the complaint when JAC filed its premature

appeal. On December 13, 2016, the district court dismissed the remaining

claim but withheld final judgment. It ordered briefing on the question of

its jurisdiction to enter final judgment while the premature appeal was

pending. This Court dismissed the premature appeal on June 15, 2017, and

the district court entered final judgment on July 31, 2017.


18

SUMMARY OF ARGUMENT

Under the law of the case doctrine, this Court’s ruling on JAC’s

appeal from the denial of preliminary injunctive relief controls this case. In

that appeal, JAC argued that the Tribe does not have a reservation and is

not a federally recognized tribe for which trust land is available. This

Court rejected JAC’s contention that the Tribe’s reservation, on which the

Tribe’s casino is located, is not Indian land on which gaming is permitted

under IGRA, holding that Circuit precedent forecloses that argument.

JAC’s current appeal is premised on assertions that the Tribe is not

federally recognized and that its lands are not eligible for gaming. This

Court’s prior decision precludes arguments that the Tribe’s land is

ineligible for gaming. By necessary implication, it also precludes the

argument that the Tribe is not a federally recognized Indian tribe.

Even if JAC’s arguments are not foreclosed by this Court’s earlier

decision, the dismissal JAC’s claims must be affirmed. JAC’s APA claim is

based on a Notice of Intent to conduct supplemental NEPA review that

plainly did not amount to final agency action, and setting the notice aside


19

would have no effect on the eligibility of the Tribe’s reservation for gaming

under IGRA. JAC failed to identify any other action giving rise to a cause

of action here.

As a matter of law, moreover, no cause of action exists to declare that

a tribe on the list of federally recognized tribes is not a sovereign entity

entitled to the programs and services provided by law to such tribes. The

Tribe organized under the IRA in 1981, and the Secretary has included the

Tribe on the official list of federally recognized tribes since 1982. As a

matter of law, therefore, the Tribe is entitled to the benefits provided by the

United States to federally recognized tribes. Because Congress has

reserved to itself the power to terminate federal recognition of tribes, the

district court had no power to redress JAC’s purported injury from the

Tribe’s legal status.

IGRA applies to all federally recognized tribes, and the Secretary is

authorized to hold land in trust for Indians and tribes. The List Act

precludes agency termination of the federally‐recognized status of a tribe

that appears on the Secretary’s list. Because it is beyond dispute that the


20

Tribe is a federally recognized Indian tribe, JAC’s arguments that the Tribe

is not entitled to have its lands held in trust by the United States and to

conduct gaming under IGRA are incorrect.

JAC also errs in asserting that gaming on the Tribe’s Reservation

violates constitutional equal protection principles. It is well established

that special federal programs supporting tribal self‐government do not

amount to race‐based preferences. This Court has held that IGRA in

particular is such a program.

JAC’s argument that the Tribe’s reservation is not “Indian land” as

defined by IGRA is a time‐barred. In Big Lagoon, this Court held that any

challenge to the Secretary’s acquisition of trust land for an Indian tribe

must be filed within the APA’s six‐year statute of limitations. Under that

binding precedent, JAC’s challenge is a time‐barred collateral attack on the

Tribe’s reservation.

Nor could the district court grant relief on JAC’s claim that the

Tribe’s right to operate a casino is contrary to the Constitution’s equal

protection guarantee. The Supreme Court has long held that special


21

programs to further the interests of tribal self‐government do not constitute

race‐based preferences. IGRA’s purposes include fostering tribal self‐

determination and economic self‐sufficiency. The Tribe’s right to operate a

casino under IGRA therefore does not offend equal protection principles.

Even if the district court could have adjudicated JAC’s claims, it

reasonably concluded that the Tribe is a required party to any challenge to

its federally‐recognized status and to the eligibility of its reservation for

gaming under IGRA, and the court correctly held that the Tribe enjoys

sovereign immunity from suit. The district court’s conclusion that the

claims addressing the Tribe’s interests in its lands, sovereignty, and

contracts must be dismissed under Rule 19 therefore should be affirmed.

Finally, JAC has forfeited review of its NEPA claim. Because JAC

failed to challenge the district court’s dismissal of this claim “specifically

and distinctly” in its opening brief, it has forfeited any such challenge.

The judgment of the district court should be affirmed in all respects.


22

ARGUMENT

I. Standard of Review

A district courtʹs decision to grant summary judgment is reviewed

de novo. Ctr. for Bio‐Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Depʹt, 533

F.3d 780, 786 (9th Cir. 2008). This Court must determine, viewing the

evidence in the light most favorable to the nonmoving party, whether there

are any genuine issues of material fact and whether the district court

correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d

1122, 1131 (9th Cir. 2000) (en banc).

This Court reviews a district courtʹs decision to dismiss for failure to

join a required party for abuse of discretion. Dawavendewa v. Salt River

Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1154 (9th Cir. 2002); Clinton v.

Babbitt, 180 F.3d 1081, 1086 (9th Cir. 1999); Kescoli v. Babbitt, 101 F.3d 1304,

1309 (9th Cir. 1996). “To the extent that the district courtʹs determination

whether a party’s interest is impaired involves a question of law, [the

Court’s] review [is] de novo.” Dawavendewa at 1154, (citing Pit River Home

& Agric. Coop. Assoc. v. United States, 30 F.3d 1088, 1098 (9th Cir. 1994)).


23

II. JAC’s claims that the land on which the Casino is located is not

eligible for gaming under IGRA, and that the Tribe is not entitled

to the benefits of federal recognition, are foreclosed by this Court’s

decision in the earlier appeal.

“Under the ‘law of the case’ doctrine, a court is ordinarily precluded

from reexamining an issue previously decided by the same court, or a

higher court, in the same case.” Richardson v. United States, 841 F.2d 993,

996 (9th Cir. 1988). “As most commonly defined, the doctrine [of the law of

the case] posits that when a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages in the same

case.” Gonzales v. U.S. Depʹt of Homeland Sec., 712 F.3d 1271, 1279 (9th Cir.

2013) (quoting Christianson v. Colt Industries Operating Corp., 486 U.S. 800,

815‐16 (1988)). This rule of practice promotes the finality and efficiency of

the judicial process by “protecting against the agitation of settled issues.”

Id. The doctrine applies to issues that were “decided explicitly or by

necessary implication in [the] previous disposition.” Liberty Mutual Ins. v.

EEOC, 691 F.2d 438, 441 (9th Cir. 1982).

Although “the general rule” is that decisions at the preliminary

injunction phase do not constitute the law of the case, see City of Anaheim v.


24

Duncan, 658 F.2d 1326, 1328 n. 2 (9th Cir. 1981), this Court’s conclusions on

pure issues of law are binding. Gonzales, 712 F.3d at 1279; 18 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 4478.5 (2002) (“A

fully considered appellate ruling on an issue of law made on a preliminary

injunction appeal . . . become[s] the law of the case for further proceedings

in the trial court on remand and in any subsequent appeal.”).

In this case, JAC challenged what it characterized as a decision that

the Tribe’s reservation constitutes “Indian land” on which gaming is

permitted under IGRA. In its interlocutory appeal to this Court, JAC

asserted that the Tribe does not have a reservation (Dkt. 34 at 17) and that it

is not entitled to have land held in trust because it is not a federally

recognized tribe (Dkt. 34 at 19). This Court rejected those assertions,

holding that any contention that land on which the Jamul casino is being

built is not Indian land is foreclosed by this Court’s precedent in Big

Lagoon, 789 F.3d at 953.

In Big Lagoon, the State of California (like JAC) contended that the

Secretary lacked authority to take land into trust for Big Lagoon Rancheria


25

because it was not under federal jurisdiction in 1934. In response to the

tribe’s action to enforce IGRA, the State relied on Carcieri v. Salazar, 555 U.S.

379 (2009), to argue that it was not required to negotiate an IGRA compact

with Big Lagoon Rancheria, because the tribe’s land was not held in trust as

“Indian land” as required by IGRA. See 25 U.S.C. § 2703(4). This Court

disagreed. Sitting en banc, this Court held that the State’s challenge to the

trust status of the land was a “belated collateral attack,” and that the

proper vehicle for challenging the acquisition of land in trust for Indians is

a “garden‐variety APA claim” subject to the APA’s six‐year statute of

limitations. Big Lagoon, 789 F.3d at 953‐54 (“28 U.S.C. § 2401(a) creates a

general six‐year statute of limitations for actions brought against the

United States.”). In the present case, this Court held in its 2016 Order that

Big Lagoon forecloses JAC’s challenge to the “Indian land” status of the land

at issue in this case, which the Secretary acquired by donation in 1978 and

1982 and has held in trust as a reservation for the Tribe since 1982. See


26

Rosales, 89 Fed. Cl. at 574.2 And by concluding that the attack on the Tribe’s

trust land is foreclosed, this Court necessarily also foreclosed any argument

that the Tribe is not a federally recognized Indian tribe eligible to operate a

gaming facility under IGRA. The district court’s dismissal of JAC’s claims

challenging the Tribe’s eligibility to operate its casino therefore should be

affirmed under the law of the case doctrine.

III. Even if not foreclosed by this Court’s earlier decision, JAC’s

challenge to the Tribe’s federally‐recognized status and the status

of its reservation as Indian land does not present a justiciable case

or controversy.

JAC’s claims challenging the Tribe’s status and the status of its

reservation do not present a justiciable controversy. The party invoking

federal jurisdiction bears the burden of establishing the “triad of injury in

2 Appellants argue that some casino facilities are located on land outside

the boundaries of the Tribe’s trust lands. See Br. 49‐51. These claims were

not raised in the complaint and are not addressed in the decision under

review. Therefore, these arguments are not properly before this Court.

Singleton v. Wulff, 428 U.S. 106, 120 (1976) federal appellate court does not

consider an issue not passed upon below).


27

fact, causation, and redressability” that “constitutes the core of Article IIIʹs

case‐or‐controversy requirement.” Steel Co. v. Citizens for a Better Envʹt, 523

U.S. 83, 103‐04 (1998). Even assuming JAC’s assertion that it is injured by

the presence of a casino in its community, JAC’s claims regarding the legal

status of the Tribe and its lands are not redressable in this lawsuit.

A. The district court lacked jurisdiction over JAC’s claims

because only Congress can terminate a tribe’s federally‐

recognized status.

In this case, JAC is making a purported APA challenge to a notice in

the Federal Register regarding supplemental environmental review of the

Tribe’s gaming management contract. It contends that the Tribe is not

entitled to the benefits of federal recognition and that the Tribe’s

reservation is not “Indian land,” because the Tribe is not “a Part 83

federally recognized Tribe.” Br. 37. As elaborated below, the district court

could not have granted relief on this claim for at least two reasons. First,

no cause of action exists to deprive a tribe of its federally recognized status,

and even if there were such a cause of action, a notice in the Federal

Register is not final agency action subject to judicial review under the APA.


28

Second, Congress alone has authority terminate the status of a tribe listed

on the Secretary of the Interior’s list of federally‐recognized tribes.

JAC’s APA claim is premised on its inaccurate characterization of the

NIGC’s notice of intent as a final action determining that certain land is

“Indian land” eligible for gaming under IGRA. But finality of an agency

action turns on whether “the initial agency decision maker arrived at a

definitive position and put the decision into effect.” Oregon Natural Desert

Assʹn v. U.S. Forest Serv., 465 F.3d 977, 984–85 (9th Cir. 2006). NIGC’s

notice of intent to conduct supplemental NEPA review was not final action

of any kind, and had nothing to do with whether the Tribe’s reservation is

eligible for gaming, and the notice certainly did not amount to a final

decision that the reservation is eligible for gaming. Indeed, NIGC had no

role in determining that the Tribe’s reservation, which has been held in

trust for the Tribe for decades, is eligible for gaming. JAC’s reliance on the

notice was merely a pretext for its impermissible, long‐barred collateral

attack on the Secretary’s decades‐old decision to assist the Tribe in

organizing and to hold the land in trust for the Tribe.


29

Even construed as a viable APA claim, all of JAC’S arguments in this

appeal proceed from the incorrect premise that the Tribe is not eligible for

gaming under IGRA because it did not obtain recognition through the

“Part 83” process. But as a matter of law, the benefits of the IRA and IGRA

are not limited to tribes acknowledged through the regulatory process set

forth in 25 C.F.R. Part 83. See, e.g. 25 U.S.C. §§ 5130, 5131(a) (tribes on the

Secretary’s list are entitled to special programs and services). The majority

of tribes on the Secretary’s list were recognized before the Part 83 process

was adopted, and the process is not available to those tribes. 25 C.F.R. §

83.3 (Part 83 “applies only to indigenous entities that are not federally

recognized Indian tribes.”).

The district court therefore correctly rejected JAC’s central premise

that the Tribe is not federally recognized, concluding that “the opposite is

true.” ER 9. The district court noted that other courts, including this

Court, have also found that the Tribe is federally recognized and entitled to

the benefits accorded to such tribes. ER 9 (citing Jamul Action Committee v.

Chaudhuri, 837 F.3d 958; Rosales v. United States, 73 Fed. Appx. 913 (9th Cir.


30

2003); Rosales v. United States, 89 Fed. Cl. 565, 571‐72 & nn.2‐3 (2009); Rosales

v. United States, No. 07‐0624, 2007 WL 4233060, at *5 & n.4 (S.D. Cal. Nov.

28, 2007)).

The Secretary acquired land on behalf of the Jamul Indians in 1978

pursuant to his authority under Section 5 of the IRA, which authorizes

acquisition of land for Indians. “Indian” as used in the IRA includes three

categories of persons:

all persons of Indian descent who are members of any

recognized Indian tribe now under Federal jurisdiction, . . . all

persons who are descendants of such members who were, on

June 1, 1934, residing within the present boundaries of any

Indian reservation, and . . . all other persons of one‐half or more

Indian blood.

25 U.S.C. § 5129 (emphasis added). The Act further provides that “the term

‘tribe’ ” “shall be construed to refer to any Indian tribe, organized band,

pueblo, or the Indians residing on one reservation.” Id. (emphasis added). In

1981, the Secretary assisted the Jamul Indians in organizing as a tribe

pursuant to Section 16 of the IRA, 25 U.S.C. § 5123. Rosales v. Sacramento

Area Dir., 32 I.B.I.A. 158, 159‐60 (1998) (“Rosales I”). In July of that year, the

Acting Deputy Assistant Secretary—Indian Affairs (Operations) approved


31

the Tribe’s constitution. Id.; see also Rosales v. United States, 477 F. Supp. 2d

119 (D.D.C. 2007). The Secretary placed the Tribe on the list of federally

recognized tribes in 1982, see 47 Fed. Reg. 53,130, 53,132 (Nov. 24, 1982),

and has included the Tribe on all lists published since that date.

The Tribe’s status as a federally recognized tribe thus is beyond

dispute, belying JAC’s contention that absent acknowledgement under the

Part 83 procedures the Tribe is not entitled to the benefits of federal

recognition. This Court has “identified a number of grounds on which it

has concluded that the Secretary has recognized a tribe or band: 1) federal

statutes or treaties recognizing the tribe; 2) organization under the IRA or

recognition under the BIAʹs regulations; and 3) historical recognition.” Pit

River, 30 F.3d at 1098 (citing Price v. Hawaii, 764 F.2d 623, 626‐27 (9th Cir.

1985); Native Village of Tyonek v. Puckett, 957 F.2d 631, 634‐35 (9th Cir. 1992)).

The Tribe in this case was organized under the IRA and has appeared on

the official list of recognized Indian tribes for decades. It plainly is entitled

to avail itself of the provisions of all statutes addressed to the unique

circumstances of federally recognized tribes, including IGRA.


32

JAC has offered no authority to the contrary. JAC inaccurately

contends (Br. 38, 40) that Mackinac Tribe v. Jewell, 829 F.3d 754 (D.C. Cir.

2016), stands for the proposition that only tribes that obtain recognition

through the Part 83 process are entitled to benefits under the IRA and

IGRA. As noted above, the Part 83 process was adopted in 1978 and does

not apply to federally recognized tribes. In Mackinac Tribe, a group of

Indians that neither had been included on the Federal Register list nor had

petitioned the Secretary for federal recognition under Part 83 sought to

compel the Secretary to hold a tribal election under the IRA. Id. at 757‐58.

The D.C. Circuit reasoned that “Congress has delegated to the Secretary the

authority to decide in the first instance whether groups have been federally

recognized in the past or whether other circumstances support current

recognition,” and that “the administrative exhaustion requirement honors

that delegation.” Id. at 757. It therefore held that exhaustion of the Part 83

process was a prerequisite to the mandamus relief the group sought. Id. at

759. In the present case, the Secretary long ago determined that the Tribe is


33

federally recognized, as evidenced by the Tribe’s inclusion since 1982 on

the official Federal Register list of recognized tribes.

JAC is also incorrect that this Court’s decision in Pit River

undermines the Tribe’s federally‐recognized status. JAC incorrectly

characterizes Pit River as holding that “although individual Indians with

‘one‐half or more Indian blood’ are not precluded from forming an

association, such a group is not a recognized tribe and is not entitled to

federal recognition.“ Br. 40. But Pit River concerned whether a group that

had neither organized under the IRA nor applied for recognition under the

Part 83 regulations nonetheless was a federally recognized Indian tribe

entitled to certain trust lands. This Court found that its task in that case

was to determine whether the United States had recognized an association

of Indian families as a tribe. This Court concluded that the association had

not shown that it was recognized where it was “not registered in the

Federal Register as a recognized Indian tribe,” “did not fit the criteria set

forth in the [Part 83] regulations,” and had not organized under Section 16

of the IRA. Pit River, 30 F.3d at 1095, 1096. Thus, contrary to JAC’s


34

contention, Pit River concluded only that the facts presented by the plaintiff

association in that case failed to demonstrate that the group was a federally

recognized tribe.

Unlike the plaintiff association in Pit River, the Tribe in this case

organized under the IRA and has appeared on the official list of recognized

tribes since 1982. Thus, there can be no dispute that the Tribe is a federally

recognized Indian tribe entitled to benefits under the IRA and IGRA.

Accordingly, the premise of JAC’s challenge is false.

B. JAC’s constitutional claim fails on its face, because the

provision of benefits to federally recognized tribes on the

basis of their status as tribes does not offend equal protection

principles.

JAC asserts that affording special benefits to the Tribe violates the

Constitution’s equal protection guarantee. Br. 52‐53. The district court

dismissed JAC’s claim that allowing the Tribe to operate a casino affords

the Tribe unequal preferential treatment contrary to the equal protection

clause on the ground that the Tribe is a required party. It reasoned that

JAC’s claim implicates the Tribe’s status, sovereignty, real property

interests, and contractual obligations, such that the claim cannot be


35

litigated in the Tribe’s absence. ER 9. But regardless of the joinder

question, JAC’s constitutional claim does not present a claim on which

relief may be granted because it turns on the assumption that the Tribe is

not a federally‐recognized Indian tribe to which IGRA applies.

As discussed above, although the Tribe originally organized as a

group of Indians of half or more Indian blood, see 25 U.S.C. § 5129, IGRA

applies to the Tribe because of its governmental status as a federally

recognized tribe, not because of its members’ Indian heritage. It is well

established that the United States my provide benefits to recognized Indian

tribes to further their interest in self‐government and self‐determination.

United States v. Antelope, 430 U.S. 641, 645 (1977) (“Legislation with respect

to these ‘unique aggregations’ has repeatedly been sustained by this Court

against claims of unlawful racial discrimination.”); Morton v. Mancari, 417

U.S. 535, 552 (1974) (“Literally every piece of legislation dealing with

Indian tribes and reservations . . . single(s) out for special treatment a

constituency of tribal Indians living on or near reservations.”). Relying on

these precedents, this Court has held that tribal gaming under IGRA does


36

not discriminate on the basis of race. Artichoke Joeʹs California Grand

Casino v. Norton, 353 F.3d 712, 742 (9th Cir. 2003). In United States v.

Zepeda, 792 F.3d 1103 (9th Cir. 2015) (en banc), this Court rejected

arguments that the definition of “Indian” in 18 U.S.C. § 1153 amounts to a

racial classification, concluding that the definition’s requirement of

membership in, or affiliation with, a federally recognized tribe cures any

constitutional defect its blood‐quantum requirement – standing alone –

might create. Id. at 1111‐13. Under IGRA, the Tribe’s right to operate a

casino on its reservation is based on its status as a recognized tribe and not

on the blood quantum of its members. Therefore, even if JAC had properly

alleged a violation of the equal protection guarantee,3 its claim would fail

on its face.

3 Like its APA claim, JAC’s constitutional claim is fundamentally deficient.

JAC merely asserts that “no other citizen in the Jamul community . . . can

operate a casino exempt from State public nuisance law.” Br. 53. Nor did

JAC demonstrate discriminatory intent or motive as required to state an

equal protection claim. Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995) (A

“long line of Supreme Court cases make clear that the Equal Protection

Clause requires proof of discriminatory intent or motive.”)


37

C. The district court did not abuse its discretion in dismissing

JAC’s claims because the Tribe is a required party that has

sovereign immunity and cannot be involuntarily joined

The district court held that the Tribe is a required party pursuant to

Rule 19 of the Federal Rules of Civil Procedure that cannot be joined

because it has sovereign immunity from suit. It held that the Tribe’s

interests in its status, its sovereignty, its beneficial interests in real

property, and its contractual interests cannot be adjudicated without its

formal presence. The district court therefore dismissed all claims alleging

that the Tribe was not a federally recognized Indian tribe, that the lands on

which its casino is located are not “Indian lands,” or that the casino’s

construction and operation would violate the Tribe’s compact with the

State of California.

JAC challenges the district court’s conclusion that the Tribe is

required on the ground that the federal agencies are the only necessary

defendants to its APA and constitutional claims, because any relief on

those claims would be against the United States. JAC is mistaken. While

the United States is the only necessary party to APA suits challenging final


38

agency action, the claims here are not proper APA claims. JAC used a

distorted characterization of NIGC’s notice as a pretext to challenge the

Tribe’s status as a federally recognized Tribe and the status of the lands on

which it operates its gaming facility as Indian lands. Therefore, although

JAC styled its action as an APA challenge to NIGC’s notice of intent to

conduct supplemental NEPA review of a proposal to approve the Tribe’s

gaming management contract, its complaint seeks a judgment far beyond

setting the notice aside.

As explained above, JAC identified no final agency action subject to

APA review in the mere publishing of a notice of intent to conduct

supplemental environmental review. JAC assumes wrongly that it may

challenge the federally recognized status of the Tribe and the eligibility of

its land for gaming independent of any final agency action subject to

review under the APA. The judgment sought by JAC would have

profound effects on the Tribe. JAC’s complaint seeks not only an

injunction against the Tribe’s construction and operation of its casino

because of purported NEPA violations by the federal agencies, but also a


39

declaration that the Tribe’s land is not a reservation because the Tribe is a

“race‐based half‐blood Indian group” that is not entitled to receive the

benefits accorded to federally recognized tribes. Tellingly, JAC’s brief on

appeal does not address the district court’s dismissal of its NEPA claim, the

only claim for which the remedy would be directed exclusively at the

federal agency defendants. In these circumstances, the district court did

not err in holding that the Tribe is a required party under Rule 19, because

no federal agency decision is at issue in JAC’s complaint as to either the

Tribe’s status or the eligibility of its lands for gaming.

JAC’s reliance (Br. 57) on Michigan v. Bay Mills Indian Community, 134

S. Ct. 2024, 2030 (2014), for the proposition that the Tribe lacks sovereign

immunity is misplaced. In Bay Mills, the Supreme Court described the

historical and theoretical underpinnings of tribal sovereign immunity as “a

necessary corollary to Indian sovereignty and self‐governance.” Id.

(quoting Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, 476

U.S. 877, 890 (1986)). The Court further described tribal sovereignty as

subject only to constriction by Congress and its plenary authority over


40

Indian affairs. Id. Notably, Congress has prohibited federal agencies from

interpreting or implementing federal law in a manner that “classifies,

enhances, or diminishes the privileges and immunities available to a

federally recognized tribe relative to the privileges and immunities

available to other federally recognized tribes.” 25 U.S.C. § 5123(f), (g). As

explained above, this case is an improper and time‐barred collateral attack

on a decades‐old decision to take land into trust for the Tribe, based on the

inaccurate supposition that the Tribe is not federally recognized. The

district court acted within its discretion in determining that the Tribe is a

required party to this lawsuit that cannot be involuntarily joined because of

its sovereign immunity. In these circumstances the district court’s

dismissal of JAC’s claims for failure to join a required party should be

affirmed.

IV. The district court correctly concluded that the Tribe’s NEPA

claim did not challenge final agency action

The district court granted summary judgment for the federal

defendants on JAC’s claim that NIGC violated NEPA by approving the

Tribe’s gaming management agreement for, and the construction of, the


41

Tribe’s casino without first taking “a proper ‘hard look’” at the effects the

casino would have on the environment and preparing an environmental

impact statement. ER 7. The district court found that JAC failed to

establish that at the time of filing its operative complaint, the NIGC

chairman had issued a final approval of the gaming agreement. Id. It

found that the operative complaint (ER 183) was filed on August 26, 2014,

and that final approval of the gaming management agreement did not

occur until September 30, 2016. Therefore APA review was not available

because the claim did not challenge final agency action. The district court

correctly held that it lacked subject matter jurisdiction over the claim and

accordingly granted summary judgment for the federal defendants. ER 7.

JAC’s brief on appeal does not address the district court’s reasons for

dismissing the NEPA claim. JAC instead purports to preserve the

possibility of later challenge to this portion of the district court’s decision,

stating that “[a]lthough the NEPA issues will not be re‐briefed here, JAC is

not waiving their arguments in this regard, and, if necessary, reserves the

right to seek further review.” Br. 29 n.1. But JAC cannot preserve a “right


42

to seek further review.” Rather, JAC has forfeited review of the NEPA

claim by failing to argue the issue “specifically and distinctly” in its

opening brief as appellant. Martin v. City of Oceanside, 360 F.3d 1078, 1081

(9th Cir. 2004) (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d

912, 919 (9th Cir. 2001)). In any event, the district court correctly concluded

that it lacked jurisdiction over the NEPA claim because “[s]ubject matter

jurisdiction must exist at the time the action is commenced.” Mamigonian v.

Biggs, 710 F.3d 936, 941‐42 (9th Cir. 2013) (affirming dismissal for lack of

subject matter jurisdiction where there was no final agency action when

original complaint was filed). This Court therefore may not consider any

argument challenging the dismissal of JAC’s NEPA claim.


43

CONCLUSION

For the foregoing reasons, this Court should affirm the dismissal of

JAC’s complaint in its entirety.

Respectfully submitted,

Of Counsel:

MATTHEW KELLEY

Office of the Solicitor

U.S. Department of the Interior

AUSTIN T. BADGER

Office of the General Counsel National Indian Gaming Com’n

JEFFREY H. WOOD

Acting Assistant Attorney General

ERIC GRANT

Deputy Assistant Attorney General

WILLIAM B. LAZARUS

JUDITH RABINOWITZ

BARBARA M.R. MARVIN


Attorneys, Appellate Section

Environment and Natural Res. Div.

U.S. Department of Justice

P.O. Box 7415


(202) 514‐3888

[email protected]

FEBRUARY 2018

90‐6‐16‐01072


44

STATEMENT OF RELATED CASES

Counsel is unaware of any related cases pending in this court.

CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(A)

I hereby certify that this brief complies with the requirements of Fed.

R. App. P. 32(a)(5) and (6) because it has been prepared in 14‐point Palatino

Linotype, a proportionally spaced font.

I further certify that this brief complies with the type‐volume

limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 7971 words,

excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),

according to the count of Microsoft Word.

s/ Elizabeth Ann Peterson



45

CERTIFICATE OF SERVICE

I hereby certify that on February 20, 2018, I electronically filed the

foregoing brief with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system.

The participants in the case are registered CM/ECF users and service

will be accomplished by the appellate CM/ECF system.

s/Elizabeth Ann Peterson



jonodev chaudhuri chairman of the national indian ......indian gaming related cases, 331 f.3d 1094,...

Documents