United States District Court, E.D. California
plaintiffs in this action are a group of individuals, a
non-profit association, and a community church from Jamul,
California. For convenience, in this order the court refers
to them together as the Jamul Action Committee (JAC), the
first plaintiff named in the caption. In this lawsuit the JAC
asks the court to stop construction of a casino on the Jamul
Indian Village’s land, among related requests for
declaratory relief. In short, the JAC alleges the casino is
illegal because it is being constructed on land that federal
law does not make eligible for gambling.
defendants, who include federal officials, members of the
Jamul Indian Village, and private corporations tasked with
the construction and eventual management of the casino, move
to dismiss the case on a number of jurisdictional and other
grounds. The Jamul Indian Village itself is not a party. The
court held a hearing on April 22, 2016. Kenneth Williams
appeared for the JAC; Barbara Marvin, Judith Rabinowitz, and
Vicki Boesch appeared for the federal defendants; and Frank
Lawrence appeared for the defendants associated with the
Jamul Indian Village. The motions to dismiss are granted in
part, as explained below.
ALLEGATIONS AND CLAIMS
preliminary matter, although the JAC alleges the Jamul Indian
Village is not a federally recognized Indian tribe, Second
Am. Compl. (SAC) ¶ 44, ECF No. 51,  the court has in
previous orders decided the opposite is true, Order on
Prelim. Inj. at 2, ECF No. 93; Order on Mot. Dismiss at 7,
ECF No. 50. This court is not the only one to have reached
this conclusion. See Jamul Action Comm. v.
Chaudhuri, ___ F.3d ___, 2016 WL 3910597, at *1 (9th
Cir. June 9, 2016); 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 court therefore refers to
the Jamul Indian Village as “the Tribe” in this
filed this lawsuit after the National Indian Gaming
Commission (NIGC) published a notice in the Federal Register
in April 2013, which stated that the NIGC would prepare a
statement on the environmental impacts of an agreement
between the Tribe and defendant San Diego Gaming Ventures,
LLC (SDGV). 78 Fed. Reg. 21, 398 (Apr. 10,
2013); see also SAC ¶ 2. According
to the NIGC’s notice, SDGV would manage a casino the
Tribe planned for construction outside Jamul, California.
See 78 Fed. Reg. 21, 399. The notice also explained
that the casino would be constructed “on the
Tribe’s Reservation.” Id. In a previous
notice published in the Federal Register more than a decade
earlier, the NIGC and Bureau of Indian Affairs had not
referred to this land as the Tribe’s
“Reservation.” See Notice of Intent, 67
Fed. Reg. 15, 582 (Apr. 2, 2002); see also Notice,
68 Fed. Reg. 1, 475 (Jan. 10, 2003).
understood the NIGC’s April 2013 notice as a formal
declaration that the Tribe “has a Reservation that
qualifies as ‘Indian lands’ eligible for
gaming” under the Indian Gaming Regulatory Act (IGRA).
SAC ¶ 2. In the JAC’s view, this determination
runs counter to federal law, because although the Tribe may
have a beneficial interest in the land in question, that land
“is not a reservation or trust land” as defined
by IGRA. SAC ¶ 72; see also Id . ¶ 35
(citing 25 U.S.C. § 2703(4)). Rather, the JAC alleges
the Tribe is not a federally recognized Indian tribe. See
Id . ¶¶ 31-38, 40-46. It argues the land the
NIGC referred to as a “Reservation” cannot be a
reservation because it is not one of the few areas so
denominated and specifically established by federal law,
id. ¶¶ 26-28, and an Indian tribe may not
unilaterally create a reservation, id. ¶ 73. It
also alleges the federal government never took the land into
trust for the Tribe’s benefit under the procedures
adopted by the United States Department of the Interior.
See Id . ¶¶ 27-38.
2013, Tracie Stevens, the NIGC’s chairperson at the
time, approved a gaming ordinance for the Tribe’s
proposed casino that allowed “Class III” gaming,
i.e., casino gambling. Id. ¶ 67; see
also 25 U.S.C. § 2710 (IGRA provisions on the
approval of an Indian tribe’s gaming ordinances);
Michigan v. Bay Mills Indian Cmty., ___ U.S. ___,
134 S.Ct. 2024, 2028-29 (2014) (describing Class III gaming
under IGRA). NIGC also allegedly approved a contract between
the Tribe and SDGV before January 2014, SAC ¶ 68, and
construction began in January 2014, id. ¶ 69.
In fact, however, it appears a gaming management contract
still has not been approved. See Order on Prelim.
Inj. at 7-8; Status Order Nov. 4, 2015, at 7, ECF No. 115.
asserts six claims for relief. First, it challenges the
casino’s construction because the Tribe is not a
federally recognized Tribe and the real property on which the
casino will sit is not “Indian lands.” SAC ¶
75. The JAC’s briefing and argument at hearing
clarified this first claim is asserted against NIGC under the
Administrative Procedure Act (APA). Opp’n Tribe
Defs.’ Mot. 7, ECF No. 143; Opp’n Fed.
Defs.’ Mot. 4, ECF No. 144. It claims the NIGC
arbitrarily and capriciously (1) defined the Tribe’s
land as a “Reservation” or land otherwise
designated “Indian lands, ” (2) approved the
gaming ordinance, and (3) approved the gaming management and
other contracts. It seeks an order enjoining construction of
a casino on the Tribe’s land. SAC ¶¶ 83-84.
It asks the court to reverse the NIGC’s approvals.
Id. ¶ 85.
second claim, the JAC asserts construction of a casino will
violate the Indian Reorganization Act of 1934 (IRA) because
the Tribe did not exist in 1934 when that legislation was
passed. See Id . ¶ 91. In its opposition
briefing and at hearing, the JAC clarified that it brings
this claim against the U.S. Department of the Interior and
Bureau of Indian Affairs under the APA. See
Opp’n Tribe Defs.’ Mot. at 8-9; Opp’n Fed.
Defs.’ Mot. at 5. It claims these agencies’
“efforts and actions” to take the land into trust
were arbitrary, capricious, and illegal, Opp’n Tribe
Defs.’ Mot. at 8-9; Opp’n Fed. Defs.’ Mot.
at 5, and requests an order enjoining the casino’s
the JAC asserts a constitutional claim, alleging the various
defendants’ collective decision to approve construction
of a casino and begin construction “is an
unconstitutional infringement on private land titles and on
[California’s] plenary power to regulate its
citizenry.” SAC ¶ 106. It also alleges the
defendants give unconstitutional preference to the Tribe and
its members without justification. See Id .
¶112. In its opposition briefing, the JAC clarified this
claim is founded on principles of federalism and the Equal
Protection Clause. Opp’n Tribe Defs.’ Mot. at
9-10; Opp’n Fed. Defs.’ Mot. at 6.
the JAC alleges the casino’s construction violates the
California constitution and public nuisance law, which
permits gambling operations only by federally recognized
Indian tribes on Indian lands. SAC ¶¶ 117-23. The
JAC asserts this claim against the individual defendants and
the three corporate defendants affiliated with the Tribe.
Id. ¶ 116.
fifth claim, the JAC alleges that by deciding the
Tribe’s land was a “Reservation” and
approving the gaming ordinance and the management and
development contracts without first preparing an
environmental assessment, the defendants violated the
National Environmental Policy Act (NEPA), 42 U.S.C. §
4321 et seq. SAC ¶ 127.
in its sixth claim, the JAC alleges the defendants’
actions violated the compact between the Tribe and the State
of California. Id. ¶¶ 144-51. Under IGRA,
a tribe may conduct gaming on Indian lands only under a
compact it has negotiated with the surrounding State. Bay
Mills, 134 S.Ct. at 2028-29 (citing 25 U.S.C. §
2710(d)(1)(C), among other provisions). The JAC alleges that
under the compact, the Tribe may not construct a gaming
facility on its lands after January 1, 2005. SAC ¶ 148.
It alleges that despite California’s request, the
compact was not amended, the 2005 date was unchanged, and
therefore the casino’s construction violates the
compact. Id. ¶ 149. In addition, the compact
authorizes gaming on only “Indian lands” as
defined by IGRA, so the JAC alleges that because the land in
question does not qualify as “Indian lands, ” the
casino’s construction would violate the compact
regardless of any amendment. Id. ¶ 150.
JAC’s original complaint was filed in September 2013.
ECF No. 1. The federal defendants moved to dismiss in
February 2014, ECF No. 12, and the JAC filed an amended
complaint in response, ECF No. 15. The defendants, including
Raymond Hunter, the Tribe’s chairman, moved to dismiss
again, ECF Nos. 20, 23, and the Tribe requested leave to file
an amicus curiae brief in support of those motions,
ECF No. 22.
August 2015, the court granted the defendants’ motions
to dismiss and granted the Tribe’s motion to file an
amicus brief. ECF No. 50. As noted above, the court found
“[t]he Jamul Indian Village is a federally recognized
tribal entity entitled to tribal sovereign immunity.”
Id. at 7. The court granted defendant Hunter’s
motion to dismiss because the JAC had not alleged any facts
to show he acted in an individual capacity rather than in his
capacity as the Tribe’s chairman, and in his capacity
as chairman, he was entitled to sovereign immunity.
Id. at 20. In addition, the court found the doctrine
described by the Supreme Court in Ex Parte Young,
209 U.S. 123 (1908), did not apply because the plaintiffs had
not alleged adequately that Hunter violated any federal law.
Id. Similarly, the court found the plaintiffs had
stated no cognizable APA claim against him. Id. at
20-23. As for the federal defendants, the court concluded the
case could not proceed without the Tribe, whose property and
contract interests the JAC directly attacked. Id. at
23-27. Because the Tribe’s sovereign
immunity prevented its joinder, and because the complaint
stated no claim against Hunter, the complaint was dismissed.
Id. The JAC was allowed leave to amend. Id.
filed the Second Amended Complaint, which remains operative.
ECF No. 51. In January 2015 it moved for a preliminary
injunction and a writ of mandate on its NEPA claim. ECF No.
60. It sought an order enjoining construction of the casino
until the defendants completed a review under NEPA.
Id. The court denied the motion in May 2015. ECF No.
93. It found (1) the JAC had not identified a “major
agency action” to set any NEPA process into motion,
id. at 9-12; (2) the JAC did not have standing
because it was unclear whether the defendants would have
authority to comply with the order the JAC sought, which
would have directed the defendants to halt construction of
the casino, id. at 13-14; and (3) none of the four
factors identified by the Supreme Court in Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7
(2008), supported the JAC’s motion for a preliminary
injunction, id. at 14-18.
filed an interlocutory appeal. ECF No. 94. The Ninth Circuit
affirmed, on grounds different in part than those this court
had relied on, holding (1) the defendants did not violate
NEPA when they approved the Tribe’s gaming ordinance
without preparing an environmental impact statement because
NEPA’s provisions are fundamentally irreconcilable with
IGRA, Jamul Action Committee, supra, 2016
WL 3910597; and (2) the plaintiffs had not otherwise shown
they were likely to succeed on the merits of their claims,
Jamul Action Committee v. Chaudhuri, ___ F.
App’x ___, 2016 WL 3219593 (9th Cir. June 9, 2016)
defendants moved to dismiss in December 2015. See
Tribe Defs.’ Mot. Dismiss, ECF Nos. 123 & 125; Fed.
Defs.’ Mot. Dismiss, ECF No. 127. They challenge the
court’s jurisdiction, argue the Tribe is a necessary
and indispensable party that cannot be joined, and argue the
JAC lacks standing. Because the JAC’s interlocutory
appeal was pending at the time the motions were filed, it
argued this court lacked jurisdiction to address them. The
resolution of their appeal makes this argument moot. The JAC
has otherwise opposed both defense motions, ECF Nos. 143,
144, and the defendants have replied, Tribe Defs.’
Reply, ECF No. 145; Fed. Defs.’ Reply, ECF No. 146.
JAC’s first, second, third, fourth, and sixth claims
must be dismissed because the Tribe is a necessary party and
has not been joined. The JAC’s fifth claim must be
restricted to its allegation that the federal defendants
approved the Tribe’s gaming ordinance without
conducting the review procedure required by NEPA.
Required Joinder: ...