Jamul Action Committee v. Chaudhuri

          ORDER

         The 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.

         The 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.

         I. ALLEGATIONS AND CLAIMS

         As a 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, ^[1] 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 order.

         The JAC 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);^[2] 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).

         The JAC 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)^[3]). 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.

         In July 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.

         The JAC 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.

         In its 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 construction.

         Third, 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.

         Fourth, 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.

         In its 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.

         Finally, 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.

         II. PROCEDURAL HISTORY

         The 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.

         In 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.^[4] 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. at 28.

         The JAC 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.

         The JAC 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) (unpublished).

         The 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.

         III. DISCUSSION

         The 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.

         A. Required Joinder: ...