Attorneys for Federal Defendants...Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed....

Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. Motion to Dismiss Pls.’ Second Am. Compl.

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JAMUL ACTION COMMITTEE, ET AL.

Plaintiffs,

v.

JONODEV CHAUDHURI, ACTING CHAIRMAN OF THE NATIONAL INDIAN GAMING COMMISSION, ET AL.,

Defendants.

CASE NO. 2:13-cv-01920-KJM-KJN MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED SUPPLEMENTAL COMPLAINT Date: March 11, 2015 Time: 10:00 a.m. Judge: Hon. Kimberly J. Mueller

JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division United States Department of Justice BARBARA M.R. MARVIN Natural Resources Section Environment and Natural Resources Division United States Department of Justice 601 D. ST., NW Washington, DC 20530 Telephone: (202) 305-0240 JUDITH RABINOWITZ Indian Resources Section Environment and Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, CA 94105 Telephone: (415) 744-6486 BENJAMIN B. WAGNER United States Attorney GREGORY T. BRODERICK Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 Attorneys for Federal Defendants

Case 2:13-cv-01920-KJM-KJN Document 127-1 Filed 12/21/15 of 39

Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. of Motion to Dismiss Pls.’ Second Am. Compl. i

TABLE OF CONTENTS

I. STATUTORY BACKGROUND........................................................................................ 2

A. The Indian Gaming Regulatory Act (“IGRA”) .......................................................2

B. The National Environmental Policy Act ("NEPA") ................................................3

II. FACTUAL AND PROCEDURAL BACKGROUND.........................................................3

IV. STANDARDS OF REVIEW ...............................................................................................5

A. Rule 12(b)(1) ............................................................................................................5

B. Rule 12(b)(6) ...........................................................................................................6

C. Rule 12(b)(7) ............................................................................................................7

V. ARGUMENT .......................................................................................................................7

A. Plaintiffs Lack Constitutional Standing As to All of Their Claims Against Federal Defendants. ..............................................................................................................8

1. Plaintiffs Have Not Pled Facts Showing a Concrete or Particularized Injury. ...........................................................................................................9

2. Plaintiffs Have Not Pled Facts Sufficient to Show Any Injury that is Traceable to An Action Taken by the Federal Defendants. .......................10

3. Plaintiffs’ Claimed Injuries Are Not Redressable by a Decision of this Court. .........................................................................................................12

4. Plaintiffs Lack Prudential Standing to Assert the Constitutional and Federalism Claims Alleged in Their Third Claim for Relief. ....................14

B. The United States Has Not Waived Its Sovereign Immunity for Any of Plaintiffs’ Claims.. ..................................................................................................................15

1. Plaintiffs Are Not Challenging Final Agency Action. ......................................16

2. The Tribal-State Gaming Compact Does Not Waive Sovereign Immunity for Plaintiffs’ Claims. ......................................................................................17

3. Plaintiffs’ First and Second Claims under IGRA and the IRA Are Barred by the Statute of Limitations. ................................................................................18

C. Plaintiffs’ Federalism and Constitutional Claims Must Be Rejected. ...................20

1. Plaintiffs’ Claims are Impermissible Collateral Attacks on the Status of the Tribe and Its Reservation. ..........................................................................21


Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. of Motion to Dismiss Pls.’ Second Am. Compl. ii

2. Plaintiffs’ Federalism Claims Lack Merit. .................................................21

D. Plaintiffs Fail to State Any Claims Upon Which Relief Can Be Granted.. ...........24

E. Without an APA Claim, the Complaint Should Be Dismissed for Failure to Join the Tribe. ................................................................................................................25

F. Plaintiffs' Claims Do Not Properly Lie Against the Federal Defendants Individually. ...........................................................................................................26

G. The Court Lacks Jurisdiction Over Plaintiffs’ Tort Claims Against the United States. .....................................................................................................................28

VI. CONCLUSION ..................................................................................................................28


Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. of Motion to Dismiss Pls.’ Second Am. Compl. iii

TABLE OF AUTHORITIES

Constitution

U.S. Const. art. II § 8 .....................................................................................................................22

U.S. Const. art. III ............................................................................................................................8

U.S. Const. art. III, § 2 ....................................................................................................................8

Cases

Allen v. Gold Country Casino, No. S-04-322, 2005 WL 6112668 (E.D. Cal. Feb. 8, 2005) ...................................................25

Allen v. Wright, 468 U.S. 737 (1984) .................................................................................................................8

Alvarado v. Table Mt. Rancheria, 509 F.3d 1008 (9th Cir. 2007) ................................................................................................28

Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002) ..............................................................................................6, 7

Arocho v. Nafziger, 367 F. App’x 942 (10th Cir. 2010) .........................................................................................27

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................................6, 9, 24

Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770 (9th Cir. 2000) ....................................................................................................5

Balser v. DOJ, 327 F.3d 903 (9th Cir. 2003) ..................................................................................................28

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .......................................................................................................6, 9, 24

Bennett v. Spear, 520 U.S. 154 (1997) ...............................................................................................................15

Big Lagoon Rancheria v. California, 789 F.3d 947 (9th Cir. 2015) (en banc) ............................................................................20, 21

California v. Cabazon Band of Mission Indians,

480 U.S. 202, (1987) .........................................................................................................23

Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007) ....................................................................................................24


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Carcieri v. Salazar, 555 U.S. 379 (2009) .....................................................................................................1, 18, 24

City of Roseville v. Norton, 219 F. Supp. 2d 130 (D.D.C. 2002) ..................................................................................14. 23

Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994) ......................................................................................................6

Cmty. Mental Health Servs. v. Mental Health & Recovery Bd. Serving Belmont, Harrison & Monroe Counties,

150 F. App’x 389 (6th Cir. 2005) ...........................................................................................27

Coal. for a Sustainable Delta v. FEMA, 711 F. Supp. 2d 1152 (E.D. Cal. 2010) ................................................................................5, 8

Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496 (9th Cir. 1991) ..................................................................................................6

Coward v. JP Morgan Chase Bank, Nat. Ass’n, No. 2:11–cv–03378–GEB–DAD, 2012 WL 1552773 (E.D. Cal. Apr. 30, 2012) ....................9

Coyle v. Smith, 221 U.S. 559 (1911) ...............................................................................................................23

Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency, No. C13–1866JLR, 2015 WL 918686 (W.D. Wash. Mar. 2, 2015) .......................................12

Ex parte Young, 209 U.S. 123 (1908) .......................................................................................................... 2, 26

FDIC v. Meyer, 510 U.S. 471 (1994) ...............................................................................................................15

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) ..................................................................................................27

Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) ............................................................................................10, 12

Frank v. Relin, 1 F.3d 1317 (2d Cir. 1993) .....................................................................................................27

Franklin v. Massachusetts, 505 U.S. 788 (1992) ...............................................................................................................15

Fresno Unified Sch. Dist. v. K.U. ex rel. A.D.U., 980 F. Supp. 2d 1160 (E.D. Cal. 2013) ....................................................................................6

Hale v. Norton, 476 F.3d 694 (9th Cir. 2007) ....................................................................................................3


Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. of Motion to Dismiss Pls.’ Second Am. Compl. v

Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009) ...............................................................................................................21

Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) ..................................................................................................18

Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67 (1983) ...................................................................................................................8

Johnson v. United States, 704 F.2d 1431 (9th Cir. 1983) ................................................................................................28

Keitt v. Workers’ Comp. Appeal Bd., No. E055997, 2012 WL 1511707 (Cal. Ct. App. Apr. 18, 2012) ..........................................25

Kirby v. City of Elizabeth City, 388 F.3d 440 (4th Cir. 2004) ..................................................................................................27

Kowalski v. Tesmer, 543 U.S. 125 (2004) ...............................................................................................................14

Lewis v. Casey, 518 U.S. 343 (1996) .................................................................................................................8

Lexmark Int’l v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ........................................................................................................7, 14

Long v. Salt River Valley Water Users' Ass’n, 820 F.2d 284 (9th Cir. 1987) ..................................................................................................25

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................................8

Marley v. United States, 567 F.3d 1030 (9th Cir. 2009) ................................................................................................18

Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) .................................................................................................................2

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) ......................................................................................................19, 20

McClanahan v. Ariz. State Tax Comm’n,

411 U.S. 164(1973) ..........................................................................................................23 McCollum v. Cal. Dep’t of Corr. & Rehab.,

647 F.3d 870 (9th Cir. 2011) ..................................................................................................14 Mont. v. Blackfeet Tribe of Indians,

471 U.S. 759 (1985) ...............................................................................................................22


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Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884 (3d Cir. 1977) .....................................................................................................5

Oregon v. Legal Servs. Corp., 552 F.3d 965 (9th Cir. 2009) ....................................................................................................8

Papasan v. Allain, 478 U.S. 265 (1986) .................................................................................................................6

Patchak v. Salazar, 632 F.3d 702 (D.C. Cir. 2011) ................................................................................................19

Phillips Petrol. Co. v. Shutts, 472 U.S. 797 (1985) ...............................................................................................................14

Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088 (9th Cir. 1994) ....................................................................................................6

Pritikin v. DOE, 254 F.3d 791 (9th Cir. 2001) ..................................................................................................10

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .................................................................................................................3

Safe Air v. Meyer, 373 F.3d 1035 (9th Cir. 2004) ..................................................................................................5

Schmier v. U.S. Court of Appeals, 279 F.3d 817 (9th Cir. 2002) ..................................................................................................10

Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990) ..................................................................................................27

Segal v. Comm'r, 177 F. App’x 29 (11th Cir. 2006) ...........................................................................................27

Shiny Rock Mining Corp. v. United States, 906 F.2d 1362 (9th Cir. 1990) ................................................................................................18

Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035 (9th Cir. 2010) ............................................................................................6, 24

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) .................................................................................................................12

Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588 (9th Cir. 1990) ................................................................................................. 19

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .............................................................................................................5, 12


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Stock W., Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) ................................................................................................28

Takhar v. Kessler, 76 F.3d 995 (9th Cir. 1996) ......................................................................................................9

Thornhill Publ’g. Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730 (9th Cir. 1979) ....................................................................................................5

Town of Verona v. Salazar, No. 6:08-CV-647 (LEK/GJD), 2009 WL 3165556 (N.D.N.Y. Sept. 29, 2009) .....................24

United States v. Backlund, 689 F.3d 986 (9th Cir. 2012) ..................................................................................................21

United States v. Lara, 541 U.S. 193 (1994) .................................................................................................................23 United States v. Kagama, 118 U.S. 375 (1886) ................................................................................................................23

United States v. Mazurie, 419 U.S. 544 (1975) ...............................................................................................................21

United States v. Mitchell, 463 U.S. 206 (1983) ..........................................................................................................15,28

United States v. Mottaz, 476 U.S. 834 (1986) ...............................................................................................................18

United States v. Navajo Nation, 556 U.S. 287 (2009) ......................................................................................................... 14-15

United States v. Sandoval, 231 U.S. 28 (1913) .................................................................................................................23

United States v. Sherwood, 312 U.S. 584 (1941) ...............................................................................................................15

United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) ................................................................................................................23

United States v. Testan, 424 U.S. 392 (1976) ...............................................................................................................15

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) ...............................................................................................................10

W. Shoshone Nat’l Council v. United States, 408 F. Supp. 2d 1040 (D. Nev. 2005) .....................................................................................15


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Warth v. Seldin,

422 U.S. 490 (1975) ...............................................................................................................14 Williams v. Lee, 358 U.S. 217 (1959) ................................................................................................................23

Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) ..................................................................................................27

Worcester v. Georgia, 31 U.S. 515, 559 (1832) ..........................................................................................................24

Statutes

5 U.S.C. § 704 .................................................................................................................................15

25 U.S.C. §§2, 9 ..............................................................................................................................24

25 U.S.C. § 461-479 ..........................................................................................................................2

25 U.S.C. § 465 .....................................................................................................................3, 21, 22

25 U.S.C. §467 ..............................................................................................................................21

25 U.S.C. § 476 ...............................................................................................................................14

25 U.S.C. § 479a-1 ..........................................................................................................................13

25 U.S.C. § 2702(1), (2 .....................................................................................................................2

25 U.S.C. § 2703(4)(A)(B) ........................................................................................................13, 19

25 U.S.C. § 2703(5) ...........................................................................................................................2

25 U.S.C. § 2703(7), (8) ....................................................................................................................3

25 U.S.C. § 2705 ...............................................................................................................................2

25 U.S.C. § 2710(b)(1) ..................................................................................................................2, 3

25 U.S.C. § 2710(d)(3), (9) .....................................................................................................2, 3, 19

25 U.S.C. § 2719(a) ........................................................................................................................ 20

28 U.S.C. § 1346 ............................................................................................................................28

28 U.S.C. § 2401 .............................................................................................................................28

28 U.S.C. § 2401(a) .................................................................................................................. 19, 21

28 U.S.C. § 2679 .............................................................................................................................27

42 U.S.C. §§ 4321-4370h ..................................................................................................................1

42 U.S.C. § 4321 ...............................................................................................................................3

42 U.S.C. § 4332(2)(C) .....................................................................................................................3

Regulations


Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. of Motion to Dismiss Pls.’ Second Am. Compl. ix

25 C.F.R. § 1.4 ................................................................................................................................22

25 C.F.R. § 533.1 ..............................................................................................................................3

40 C.F.R. pts. 1500–1508 ..................................................................................................................3

40 C.F.R. § 1501.1 ............................................................................................................................3

40 C.F.R. § 1508.18 ..........................................................................................................................3

47 Fed. Reg. 53,130, 53, 132 (Nov. 24, 1982) ...........................................................................3, 21

64 Fed. Reg. 4722 (Jan. 29, 1999) ....................................................................................................3

65 Fed. Reg. 31-189(May 11, 2000) ................................................................................................3

67 Fed. Reg. 15,582 (Apr. 2, 2002) ..................................................................................................4

68 Fed. Reg. 64,621 (Nov. 14, 2003) ...............................................................................................4

78 Fed. Reg. 21,398, 21, 399 (Apr. 10, 2013) ..................................................................................4

80 Fed. Reg. 1942 (Jan. 14, 2015) ..............................................................................................3, 21

Rules

Fed. R. Civ. P. 12(b)(1)................................................................................................................2, 5

Fed. R. Civ. P. 12(b)(6)..........................................................................................................2, 6, 25

Fed. R. Civ. P. 12(b)(7)..............................................................................................................6, 26

Fed. R. Civ. P. 4(e) ........................................................................................................................27


Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed. Defs.’ Mem. in Supp. Motion to Dismiss Pls.’ Second Am. Compl. 1

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As in previous complaints, Plaintiffs’ Second Amended Complaint challenges what Plaintiffs

characterize as an “Indian lands determination” (“Lands Determination”) by the National Indian

Gaming Commission (“NIGC”) purportedly included in a Notice of Intent (“NOI”) to prepare a

Supplemental Environmental Impact Statement (“SEIS”) under the National Environmental Protection

Act (“NEPA”), 42 U.S.C. §§ 4321-4370h. The SEIS is being prepared in connection with the NIGC’s

ongoing review of a proposed management contract for operation of a casino on the Reservation of the

Jamul Indian Village of California (“the Tribe”) in San Diego County, California. The Second

Amended Complaint challenges the NOI and the alleged Lands Determination as “incorrect’” because

Plaintiffs again claim that the land on which the casino will be located is “not a reservation or Indian

lands eligible for gaming under IGRA.” Second Am. Compl. ¶ 75, ECF No. 51. In addition, however,

Plaintiffs now allege that publication of the NOI, including the purported Lands Determination,

triggered the NIGC’s approval of the Tribe’s gaming ordinance in 2013, and its supposed approval of

development and gaming management contracts for casino operations. and that each of these actions

or purported actions constitute “attempts to approve, facilitate, allow and build” an “illegal casino.” Id.

¶ 1.

More specifically, Plaintiffs allege that, in purportedly approving and implementing the

supposed Lands Determination, the gaming ordinance, and the management and development

contracts, Federal Defendants violated IGRA, Second Am. Compl. ¶¶ 74-85 (First Claim for Relief);

the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479 (“IRA”), as interpreted by the Supreme

Court in Carcieri v. Salazar, 555 U.S. 379 (2009), id. ¶¶ 86-99 (Second Claim for Relief); NEPA, id.

¶¶ 126-142 (Fifth Claim for Relief); and the Gaming Compact between the Tribe and the State of

California, id. ¶¶ 143-151 (Sixth Claim for Relief). Plaintiffs also allege that the Federal Defendants’

purported actions violated the United States Constitution and Plaintiffs’ equal protection rights, id. ¶¶

100-114 (Third Claim for Relief), and that construction of the casino is a public nuisance in violation

of California state law, id. ¶¶ 115-125 (Fourth Claim for Relief).

Plaintiffs have not established constitutional standing to bring their claims. The supposed

actions Plaintiffs challenge are not final agency actions sufficient to meet the terms of the waiver of



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the United States’ sovereign immunity under the Administrative Procedure Act (“APA”). And, as the

Court previously held, the Tribe is a required party to the action, Aug. 5, 2014 Order 25, ECF No. 50

(“Aug. 5, 2014 Order”), and Plaintiffs’ attempt to circumvent joinder of the Tribe by invoking Ex

parte Young and joining additional Tribal officials, is unavailing. For these reasons, all of Plaintiffs’

claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In addition,

Plaintiffs’ claims under IGRA and the IRA are barred by the applicable statute of limitations;

Plaintiffs’ Third Claim alleging Constitutional and federalism claims should be dismissed because

Plaintiffs are seeking to assert rights that are not theirs, but the State of California’s, and they mount

impermissible, collateral attacks on the status of the Tribe and its Reservation; and Plaintiffs’ Fourth

Claim alleging a state law nuisance claim is subject to dismissal because Plaintiffs have failed to

comply with the Federal Tort Claims Act’s exhaustion requirements. Finally, Plaintiffs’ claims should

also be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiffs fail to allege

facts sufficient to state claims upon which relief can be granted, and because the declaratory and

injunctive relief Plaintiffs seek against the federal officials in their individual capacities can only be

granted against them in their official capacities.

I. STATUTORY BACKGROUND

A. The Indian Gaming Regulatory Act

IGRA was enacted in 1988, inter alia, to

. . . provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments; [and]

. . . provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players.

25 U.S.C. § 2702(1), (2). IGRA applies to federally recognized tribes, id. § 2703(5), and governs

gaming on “Indian lands” within their jurisdiction. Id. §§ 2710(b)(1); 2710(d)(3); 2705. Pursuant to

IGRA and the NIGC’s implementing regulations, a federally recognized tribe may enter into a



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contract with an outside contractor to manage Class II or Class III gaming operations1 only if the

contract is first approved by the chair of the NIGC. 25 U.S.C. §§ 2710(d)(9), 2711(a)(1); 25 C.F.R. §

533.1-533.2.

B. The National Environmental Policy Act (“NEPA”)

The purpose of NEPA is to focus the attention of federal agencies and the public on a proposed

federal action so that the action’s environmental consequences can be studied before a decision is made.

See 42 U.S.C. § 4321; 40 C.F.R. § 1501.1; Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989).

NEPA is a procedural statute which “does not mandate particular results, but simply prescribes the

necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). NEPA

requires that a federal agency proposing a “major Federal action[] significantly affecting the quality of

the human environment” prepare an environmental impact statement (“EIS”) analyzing the potential

impacts of the proposed action and possible alternatives. 42 U.S.C. § 4332(2)(C). NEPA does not apply

to every action undertaken by a federal agency, but only to “major Federal action.” See Hale v. Norton,

476 F.3d 694, 700 (9th Cir. 2007) (quoting 42 U.S.C. § 4332(C)). Under regulations promulgated by the

Council on Environmental Quality (“CEQ”), 40 C.F.R. §§ 1500–1508, “[m]ajor Federal action includes

actions with effects that may be major and which are potentially subject to Federal control and

responsibility.” 40 C.F.R. §1508.18. The NIGC has, as a matter of practice, included environmental

review under NEPA as part of its review and approval of gaming management contracts. See Declaration

of Yvonne Lee (“Lee Decl.”), ¶ 10, attached hereto as Exhibit 1.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Jamul Indian Village is a federally recognized Indian Tribe. See 47 Fed. Reg. 53,130, 53,132

(Nov. 24, 1982); 80 Fed. Reg. 1942, 1948 (Jan. 14, 2015). The Tribe’s gaming ordinance, which was

enacted in 1993, was first amended in 1999 to allow Class III, casino-style gaming on its Reservation.

NIGC approved the amended gaming ordinance in January 1999. See 64 Fed. Reg. 4722, 4723 (Jan. 29,

1 Class II gaming includes bingo and certain “non-banking card games, while Class III includes more traditional “casino” games, such as slot machines, roulette, and poker. See 25 U.S.C. §§ 2703(7), (8).



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1999). In 2000, the Tribe entered into a compact with the State of California to conduct Class III gaming,

which was ultimately approved by the Secretary of the Interior (“Secretary”). 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. § 465. 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 located on the newly-acquired parcel. See Decl. of John Rydzik in Supp. of Fed.

Defs.’ Opp’n to Pls.’ Mot. for Writ of Mandate & Prelim. Inj., ECF 63-1 ¶ 3. The Bureau of Indian

Affairs (“BIA”) published its Notice of Intent to prepare an EIS for the proposed fee-to-trust transfer in

April 2002. See 67 Fed. Reg. 15,582 (Apr. 2, 2002). 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, and between 2003 and

2006, it redesigned its proposed casino to eliminate the need for the additional land. The proposed

casino was reconfigured so that the facilities previously planned to be located on the 101-acre parcel

would instead be located on the Tribe’s existing Reservation. See 78 Fed. Reg. 21,398, 21,399 (Apr. 10,

2002). In 2008, the Tribe withdrew its application for the fee-to-trust transfer. See ECF No. 63-1 ¶ 6.

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. The Tribe submitted the contract for the NIGC Chairperson’s

approval as required by IGRA. See Lee Decl. ¶ 12. At that time, the Tribe also submitted an amended

gaming ordinance, which had been revised solely to update certain information as necessitated by an

amendment to NIGC’s regulations. The amended ordinance was approved shortly after it was submitted.

On April 10, 2013, the NIGC published the NOI stating its intent to prepare a SEIS for the

management contract with San Diego Gaming in the Federal Register. 78 Fed. Reg. 21,398. The NOI

stated that the agency was updating and re-evaluating environmental effects related to the possible

approval or disapproval of the management contract.

Plaintiffs first challenged the NOI in complaints filed in September 2013 and named as

defendants the NIGC, the Department of the Interior (“Interior’), and seven agency officials in their



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official capacities. See ECF Nos. 1, 7. After Federal Defendants moved to dismiss, Plaintiffs filed a

First Amended Complaint in which they named an additional federal official and the Tribe’s chairman

as defendants in their official capacities. See First Am. Compl. Defendants again moved to dismiss,

and in August, 2014, the Court dismissed the First Amended Complaint on the ground, inter alia, that

the Tribe is a required party but cannot be involuntarily joined because of its sovereign immunity.

Aug. 5, 2014 Order 24, ECF No. 50 (“Aug. 5, 2014 Order”). The Court granted leave to amend,

however, and Plaintiffs filed their Second Amended Complaint, ECF No. 51, on August 26, 2014. In

the Second Amended Complaint, Plaintiffs named as defendants the eight federal officials in their

individual as well as official capacities, as well as additional Tribal officials in their official and

individual capacities and the Tribe’s gaming management company and construction contractor.

III. STANDARDS OF REVIEW

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a complaint, or any claims therein, to be

dismissed for lack of subject matter jurisdiction. Jurisdiction is a threshold issue, which should be

addressed prior to any consideration of the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 93-94 (1998). “A challenge to subject matter jurisdiction may be facial or factual.” Coal. for a

Sustainable Delta v. Fed. Emergency Mgmt. Agency, 711 F. Supp. 2d 1152, 1157 (E.D. Cal. 2010).

As the Ninth Circuit has explained,

In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.

Id. (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004)). In contrast, in a

factual attack, “[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed

material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”

Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electrs. Corp., 594 F.2d 730, 733 (9th Cir.1979) (quoting

Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). See also Ass’n of Am. Med.

Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (quoting St. Clair v. City of Chico, 880 F.2d 199,



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201 (9th Cir.1989)) (in resolving factual challenge to subject matter jurisdiction, “[t]he district court

obviously does not abuse its discretion by looking to . . . extra-pleading material . . . . ). The burden of

establishing jurisdiction rests upon the plaintiff as the party asserting jurisdiction. See id. at 778-79 (citing

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).

B. Rule 12(b)(6)

Dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) is “‘proper . . . where

there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable

legal theory.’” Fresno Unified Sch. Dist. v. K.U. ex rel. A.D.U., 980 F. Supp. 2d 1160, 1179 (E.D. Cal.

2013) (quoting Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.’” Shroyer, 622 F.3d at 1044 (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted)). In assessing a motion under Rule

12(b)(6), however, courts are “not required to accept legal conclusions cast in the form of factual

allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult

Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) (citing Papasan v. Allain, 478 U.S. 265, 286

(1986)). As the Supreme Court has explained, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions [and] [t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

C. Rule 12(b)(7)

Federal Rule of Civil Procedure 12(b)(7) allows a complaint to be dismissed for failure to

join a required party under Rule 19. Aug. 5, 2014 Order 24. Under Rule 19, courts employ a two-

part analysis to determine if an absent party must be joined in order for the suit proceed. See Pit

River Home & Agric. Coop. Ass’n. v. United States, 30 F.3d 1088, 1098 (9th Cir. 1994). The court

must first decide whether the absent party is a “necessary” party who must be joined under the

standards of Rule 19(a). Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022 (9th Cir. 2002).

See also Aug. 5, 2014 Order 24 (citing Confederated Tribes of Chehalis Indian Reservation v. Lujan,



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928 F.2d 1496, 1498 (9th Cir. 1991)). If the party is “necessary,” the court must then determine

whether the absent party is “required” under Rule 19(b), i.e., whether “in equity and good

conscience the action should proceed among the parties before it, or should be dismissed.” Am.

Greyhound Racing, 305 F. 3d at 1022 (citation omitted).

IV. ARGUMENT

Plaintiffs’ claims against the Federal Defendants fail for seven reasons. First, as a threshold

matter, Plaintiffs lack constitutional standing to bring any of their claims because they have not

alleged a “concrete and particularized” injury-in-fact that is “fairly traceable” to any action by the

Federal Defendants or one that is “likely to be redressed” by a judicial decision in their favor. See

May 15, 2015 Order 13, ECF No. 93 (quoting Lexmark Int'l, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377, 1386 (2014)). Second, the United States has not waived its sovereign immunity

with respect to any of Plaintiffs’ claims because Plaintiffs have alleged no final agency action from

which their injuries flow, and their First and Second Claims under IGRA and the IRA are barred by

the applicable statute of limitations. Third, in their Third Claim for Relief alleging Constitutional and

federalism claims against the Federal Defendants, Plaintiffs improperly seek to assert legal rights of

the State of California, and their claims are inadequately pled and amount to impermissible collateral

attacks on the status of the Tribe and its Reservation. Fourth, Plaintiffs allege no new facts that

overcome this Court's prior holding that the Tribe is a required, but absent party, such that the case

must be dismissed. See Aug. 5, 2014 Order at 25. Fifth, the Second Amended Complaint fails to

state any claim against the Federal Defendants, and sixth, to the extent Plaintiffs seek declaratory

and injunctive relief against federal officials in their individual capacities,2 such relief can only be

granted against government officials in their official capacities. Seventh, with respect to their Fourth

Claim alleging nuisance under California state law, Plaintiffs have not complied with the Federal

2 In the Second Amended Complaint, Plaintiffs added eight federal officials in their individual capacities as defendants. Plaintiffs made no attempt to serve six of the officials, however, and therefore, the Court recently dismissed those officials without prejudice. See Nov. 20, 2015 Minute Order, ECF No. 119.



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Tort Claims Act’s exhaustion requirements.

A. Plaintiffs Lack Constitutional Standing as to All of Their Claims Against Federal Defendants.

Article III of the Constitution limits the “judicial power” of the United States to consideration of

actual “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy this requirement and

establish standing to bring an action, “a litigant must have suffered some actual injury that can be

redressed by a favorable judicial decision.” Coal. for a Sustainable Delta, 711 F. Supp. 2d at 1159

(quoting Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70 (1983)).

The doctrine of standing ‘“requires careful judicial examination of a complaint’s allegations

to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims

asserted.”’ Coal. for a Sustainable Delta, 711 F. Supp. 2d at 1159 (quoting Allen v. Wright, 468 U.S.

737, 752 (1984)). To establish Article III standing, a plaintiff must plead three essential elements:

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and quotations

omitted). These elements “are not mere pleading requirements but rather an indispensable part of the

plaintiff’s case, [and] each element must be supported in the same way as any other matter on which

the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the

successive stages of the litigation.” Id. at 561. Moreover “[s]tanding is not dispensed in gross[,]” but

rather “is evaluated on a claim-by-claim basis.” Coal. for a Sustainable Delta, 711 F. Supp. 2d at

1160 (quoting Lewis v. Casey, 518 U.S. 343, 358, n.6 (1996)). Therefore a plaintiff must

“demonstrate standing for each claim he seeks to press’ and for each form of relief sought.” Id.

(quoting Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009)).



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In assessing a motion to dismiss for want of standing, “the trial . . . court[] must accept as

true all material allegations of the complaint, and must construe the complaint in the favor of the

complaining party.” Coward v. JP Morgan Chase Bank, Nat. Ass'n, No. 2:11–cv–03378–GEB–

DAD, 2012 WL 1552773, at *1 (E.D. Cal. Apr. 30, 2012) (quoting Takhar v. Kessler, 76 F.3d 995,

1000 (9th Cir. 1996) (internal quotation omitted)). This tenet “is inapplicable to legal conclusions[,]’

however, Iqbal, 556 U.S. at 678, and a complaint tendering only “‘naked assertion[s]’ devoid of

‘further factual enhancement’” will not suffice. Id. (quoting Twombly, 550 U.S. at 555, 557).

1. Plaintiffs Have Not Pled Facts Showing a Concrete or Particularized Injury.

Plaintiffs assert that the agencies’ purported actions harm them by allowing or facilitating the

construction, opening, and operation of a major casino on land they claim is not eligible for Indian

gaming. See, Second Am. Compl., e.g., ¶¶ 122, 141. In support, however, Plaintiffs set forth only a

series of legal conclusions couched as fact. In particular, they repeatedly characterize the NOI as

including an “Indian lands determination” or “decision” pursuant to IGRA. See id., e.g., ¶¶ 2, 39, 64,

75, 78, 79- 82, 96, 106, 107, 127. This characterization is not a fact but a legal conclusion. As

Federal Defendants previously explained, see Mem. of P. & A. in Supp. Mot to Dismiss Pls.’ First

Am. Compl., ECF No. 21, the NOI reflects no decision on “Indian lands”; rather the five-word-

phrase referenced in the NOI on which Plaintiffs rely addresses the pre-existing status of the land

that has long been on record. The NOI was issued prior to beginning the review procedures

necessary in order to comply with NEPA and its implementing regulations, before the NIGC takes

any final agency action on the Indian gaming management contract. Plaintiffs’ false premise that the

NOI reflects a Lands Determination fatally infects its standing to bring this action. The only final

agency action related to the NOI has not been taken. The environmental effects of the gaming

facility are being analyzed in connection only with the management contract approval or

disapproval, for a decision that has not been made.

Plaintiffs allege that building and operating the casino on the Tribe’s land will harm them

and their community because it will result in, inter alia, “an irreversible change in the rural character

of the area; . . . increased traffic . . .; increased light, noise, air, and storm water pollution; . . .



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diversion of community resources . . . ; and . . . aesthetic, socioeconomic, and environmental

problems associated with gambling.” See Second. Am. Compl. ¶¶ 123, 129. These allegations fall

short of alleging any “concrete” injury to Plaintiffs personally, and Plaintiffs therefore fail to satisfy

the first prong of Article III standing. See Valley Forge Christian Coll. v. Am. United for Separation

of Church & State, Inc., 454 U.S. 464, 472 (1982) (“[A]t an irreducible minimum, Art[icle] III

requires the party who invokes the court's authority to ‘show that he personally has suffered some

actual or threatened injury as a result of the putatively illegal conduct of the defendant.’”) (internal

citation omitted). First, construction of the casino is not a federal action and is not subject to federal

approval. See May 15 Order 14. Second, to the extent the injuries Plaintiffs allege could result from

the casino’s operation, such injuries would occur only if the gaming management contract is approved

and the casino actually commences operation. Contrary to Plaintiffs’ erroneous conclusions, however,

neither have occurred. Therefore, as the Court previously found, “any adverse environmental impacts

of [the casino’s] operation remain at most speculative[,]” May 15, 2015 Order, 11, in that they depend

upon the occurrence of a future event and are conjectural, at best, and certainly not impending. This

Court’s jurisdiction cannot be sustained on the basis of such allegations, which plainly fall short of the

“‘actual or imminent, not conjectural or hypothetical’” harm required for standing. Defenders of

Wildlife, 504 U.S. at 560 (citation and internal quotations omitted). See also Schmier v. U.S. Court of

Appeals for the 9th Circuit, 279 F.3d 817, 821 (9th Cir. 2002) (“[H]ypothetical, speculative or other

‘possible future’ injuries do not count in the standings calculus.”) (citations omitted).

2. Plaintiffs Have Not Pled Facts Sufficient to Show Any Injury that is Traceable to An Action Taken by the Federal Defendants.

Plaintiffs also fail to meet the second requisite of constitutional standing. To satisfy this

prong, Plaintiffs must show that their alleged injuries are traceable to a federal action. “Causation or

‘traceability,’ . . . examines whether it is substantially probable . . . that the challenged acts of the

defendant, not of some absent third party, will cause the particularized injury of the plaintiff.” Fla.

Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (internal citations omitted). Moreover,



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there cannot be a missing “step in the causation chain[,]” or “speculation” as to what may or may

not occur in the future. Pritikin v. Dep’t of Energy, 254 F.3d 791, 797-98 (9th Cir. 2001).

Plaintiffs claim they are being harmed by the location of the casino. The casino location,

however, is not subject to any federal action. Plaintiffs first claim that the NIGC made an “incorrect”

lands determination in the NOI. See Second Am. Compl. ¶ 75. They then further contend that NIGC’s

approval of the Tribe’s amended gaming ordinance was based on the purported Lands Determination

see id. ¶ 79, and that the NIGC has approved development and gaming management contracts for the

casino on the basis of the supposed Lands Determination. See id. ¶ 82. These allegations need not and

cannot be accepted as true, and Plaintiffs’ attempts to concoct a causal link between the purported

Lands Determination, approval of the gaming ordinance, and alleged approval of the gaming

management contract thus are not merely erroneous legal conclusions, but pure speculation unmoored

from the facts. Indeed, as Federal Defendants have explained, the final conclusion upon which

Plaintiffs’ claims depend, i.e., that the NIGC has approved the gaming management contract, is not only

purely speculative—it is plainly wrong. See Lee Decl. ¶ 11.

In addition, although the Second Amended Complaint is couched as a challenge to alleged

actions by the NIGC and/or Interior, the repeated references to an “illegal” or “unlawful” casino as

the basis for Plaintiffs’ claimed harms show that, at bottom, their challenge is to Congress's

determination in IGRA that certain lands, including the Tribe’s Reservation, are presumptively

eligible for gaming. Plaintiffs have not, and cannot, allege facts sufficient to establish that any of the

alleged actions they challenge caused their claimed injury. Plaintiffs allege that the NIGC has made

a final “Indian lands determination” concerning the location of the casino, but no such determination

occurred through publication of the NOI, and, in any event, the NIGC has little or no discretion to

exercise on the question of whether the casino site on the Tribe’s Reservation qualifies as Indian

lands under IGRA. Plaintiffs’ claimed, location-based injuries thus are not traceable to action by the



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Federal Defendants. Rather, the proper forum for Plaintiffs’ grievance concerning what categories of

land are presumptively IGRA-qualified Indian lands is Congress.

Plaintiffs’ claim that construction of the casino will cause environmental, socioeconomic, and

aesthetic harm to them and their community also fails to satisfy the traceability requirement for

standing. This Court previously held that, contrary to Plaintiffs’ allegations, construction of the casino

on the Tribe’s land does not involve any ‘major federal action,’ or any federal action at all. See May 15

Order 10. Plaintiffs’ conjectures notwithstanding, injury, if any, that Plaintiffs may suffer as the result of

the construction could only result from the actions of other parties and is not fairly traceable to any

action by the Federal Defendants.

3. Plaintiffs’ Claimed Injuries Are Not Redressable by a Decision of this Court.

Plaintiffs also do not satisfy the third requisite of constitutional standing. That requisite,

“[r]edressability[,] examines whether the relief sought, assuming that the court chooses to grant it, will

likely alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon Soc’y, 94 F.3d at 663-

64 (citing Simon v. Ky. Welfare Rights Org., 426 U.S. 26, 38-39 (1976)). “A plaintiff meets the

redressability requirement if it is likely, even if not necessarily certain, that his injury can be redressed

by a favorable decision.” Ctr. for Biological Diversity v. EPA, 90 F. Supp. 3d 1177, 1189-90 (W.D.

Wash. 2015). “However, relief ‘that does not remedy the injury suffered cannot bootstrap a plaintiff

into federal court.’” Id. (quoting Steel Co., 523 U.S. at 107).

First, this Court cannot order the declaratory relief Plaintiffs request, see Second Am. Compl.

30 ¶¶ A,B, C, D, F, G, because such relief would be inconsistent with: i) Congress’s dictate that

Tribes listed on the Federal Register List of Federally Recognized Tribes are tribes for all purposes

and cannot be de-listed, except by Congress itself;3 ii) the 1994 “Privileges and Immunities”

3 See Federally Recognized Indian Tribe List Act, Pub. L. No. 103-454, 108 Stat. 4791 (1994) (codified



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amendments to the IRA; 25 U.S.C. § 476 (f), (g); and iii) Congress’s determination in IGRA that “all

lands within the limits of any Indian reservation[,]” and lands already held in trust for tribes and over

which they exercise jurisdiction as of the date of IGRA’s passage, qualify as “Indian lands.” 25

U.S.C. § 2703 (4)(A)(B). Plaintiffs’ alleged injuries stemming from their challenges to the Tribe’s

federally recognized status, the status of the Tribe’s trust land, and the Tribe’s ability to exercise

jurisdiction over that land thus are non-redressable.

Moreover, even if the Court could grant any part of the relief Plaintiffs request, such relief

would not remedy Plaintiffs’ claimed injuries. Plaintiffs request an order enjoining “the continued

construction of the casino” by the Defendants, but as the Court held in denying Plaintiffs’ motion for

preliminary injunction, such an order “would not redress [Plaintiffs’] alleged injuries because the

federal defendants would have no power to comply[,]” See May 15, 2015 Order 13, and Plaintiffs still

“ha[ve] not alleged or shown th[at] IGRA empowers the NIGC Chairman to stop” the construction. Id

at 14. And with respect to Plaintiffs’ request that the Court require the Federal Defendants to comply

with NEPA before approving or implementing the purported Lands Determination, the gaming

ordinance, and management contract, and purportedly allowing construction of the casino, See

Second Am. Compl. 31, ¶ F, the Court found that Plaintiffs had not pled or shown that the NIGC

“will approve the contract without conducting the review required by NEPA, and [they] cannot

succeed by seeking speedier or otherwise better management in general.” May 15, 2015 Order 11

(citing Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)).4 Plaintiffs’ alleged injuries

stemming from approval of the gaming management contract, which has not yet occurred, and from

Federal Defendants’ ongoing NEPA review for the pending approval thus are not redressable.

at 25 U.S.C. § 479a-1).

4 The Court also held that the NIGC’s decision to approve the tribal gaming ordinance was not a “major federal action” triggering NEPA. See May 15, 2015 Order 12 (citing N. Cty. Cmty. All.,



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4. Plaintiffs Lack Prudential Standing to Assert the Constitutional and Federalism Claims Alleged in Their Third Claim for Relief.

Standing involves not only ‘“constitutional limitations on federal-court jurisdiction [but also]

prudential limitations on its exercise.”’ Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004) (quoting

Warth v. Seldin, 422 U.S. 490, 498 (1975)). Thus even if a plaintiff can establish Article III standing,

the claims must also fall within the zone of interests protected by the statutes under which the claims

are brought. “[W]hether a plaintiff comes within the zone of interests requires the Court to

determine, using traditional statutory-interpretation tools, whether a legislatively conferred cause of

action encompasses a particular plaintiff’s claim.” Lexmark International, Inc., 134 S. Ct. at 1385.

Prudential limitations on standing restrict the grounds a plaintiff may put forward in seeking to

vindicate his personal stake. Warth, 422 U.S. at 499. As relevant here, this means that “a litigant

must normally assert his own legal interests rather than those of third parties.” Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 804 (1985) (citations omitted).

Plaintiffs’ Third Claim for Relief, Second Am. Compl. ¶¶ 100-114, asserts various “principles of

federalism” in challenging the alleged “decision that the Parcel is a reservation or Indian lands eligible for

gambling free from State regulation.” See id. ¶ 106. Even assuming, however, that the various federalism

doctrines Plaintiffs invoke, such as the Equal Footing Doctrine, see id. ¶ 104, create a protectable legal

right in any party, such right belongs not to Plaintiffs, but to the State of California. See, e.g., McCollum v.

Cal. Dep’t of Corrs. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011).

In limited circumstances, a party may have standing to assert a third party’s rights, but no such

circumstances are present here. First, Plaintiffs have no special relationship with the State. See

McCollum, 647 F.3d at 879 (collecting cases describing relationships deemed “sufficiently close to

justify third party standing”). Second, the State is fully capable of asserting its own interests. See City

of Roseville v. Norton, 219 F. Supp. 2d 130, 146 (D.D.C. 2002), aff’d, 348 F.3d 1020 (D.C. Cir. 2003)

(rejecting, for lack of standing, similar federalism-based challenges to decision to take land into trust

for a tribe, noting that interests protected by asserted doctrines and constitutional clauses “are those of

Inc. v. Salazar, 573 F.3d 738, 749 (9th Cir. 2009)).



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states qua states”). B. The United States Has Not Waived Its Sovereign Immunity for Any of Plaintiffs’

Claims.

“The Federal Government cannot be sued without its consent[,]” United States v. Navajo

Nation, 556 U.S. 287, 289 (2009), and it is axiomatic that, absent a waiver of sovereign immunity, the

United States, its agencies and employees cannot be sued in any court. See United States v. Mitchell, 463

U.S. 206, 212 (1983); F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). Because only

Congress can waive sovereign immunity, a suit against the United States or its agencies or employees

acting in their official capacities may proceed only under such conditions as Congress may impose.

United States v. Testan, 424 U.S. 392, 399 (1976)); United States v. Sherwood, 312 U.S. 584, 586-88

(1941). The substantive federal statutes Plaintiffs cite, i.e., IGRA, the IRA, NEPA, and the Declaratory

Judgment Act, do not provide a waiver of sovereign immunity, and therefore Plaintiffs must instead rely

on the APA’s waiver of sovereign immunity for their claims.

1. Plaintiffs Are Not Challenging Final Agency Action.

Where claims are based on agency action or inaction, the United States’ waiver of sovereign

immunity is limited by the APA’s final agency action requirement. See W. Shoshone Nat’l Council v.

United States, 408 F. Supp. 2d 1040, 1048 (D. Nev. 2005)) (citing 5 U.S.C. § 704). To satisfy this

requirement, two conditions must be met:

First, the action must mark the “consummation” of the agency's decisionmaking process, . . . it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted). ‘“The core question is whether

the agency has completed its decisionmaking process, and whether the result of that process is one that

will directly affect the parties.’” W. Shoshone Nat’l Council, 408 F. Supp. 2d at 1050 (quoting Franklin v.

Massachusetts, 505 U.S. 788, 797 (1992)).

Plaintiffs premise their claims on five purported agency actions, which they allege are final,

i.e., the supposed Lands Determination, the NOI, approval of the tribal gaming ordinance, and the



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purported approval of the gaming management and development contracts. One of these five

“actions”—the NOI—is clearly non-final, however, and three—the supposed Lands Determination

and the alleged approvals of the gaming management and development contracts —are merely

purported “actions,” which are based only on Plaintiffs’ characterization and conjecture. The NIGC

has not made an Indian lands determination concerning the land where the casino is located, and the

alleged approvals have not yet occurred. “Rights or obligations” cannot be determined by

hypothetical actions or non-final actions, and accordingly, such “actions” are not sufficient to invoke

the APA’s waiver of sovereign immunity.

The only actual, final agency action that Plaintiffs attempt to challenge is the NIGC’s approval of

an amendment to Tribe’s gaming ordinance. Even if approval of an amendment to a tribal gaming

ordinance is a challengeable final agency action, however, NIGC’s approval of the Tribe’s amended

ordinance here does not provide a basis for Plaintiffs’ claims because the approval will have no effect on

Plaintiffs, and it has no relation whatsoever to the injuries for which Plaintiffs seek redress.

The Tribe has had an approved ordinance permitting Class III gaming in place since 1999. See 64

Fed. Reg. 4722, 4723 (Jan. 29, 1999). That ordinance was amended in 2013 to update certain information

in the earlier ordinance, specifically, provisions concerning background and licensing provisions for key

employees and primary management officials, and the Privacy Act and False Statements Act notices

included in the license applications as necessitated by an amendment to the NIGC’s regulations. The

amendment was submitted for the NIGC’s approval, together with the proposed gaming management

contract, and the NIGC approved the amendment soon thereafter. The only rights and obligations that are

even arguably determined by approval of the amendment are rights and obligations of the Tribe or the

gaming management company. Again, contrary to Plaintiffs’ allegations, no federal NEPA obligations are

triggered. Thus, even assuming that the amendment were deemed invalid, construction of the casino

would not be affected. In sum, none of the actions or supposed “actions” on which Plaintiffs base their



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claims are final agency actions that are sufficient to meet the requisites of the APA’s waiver of the United

States’ sovereign immunity, or provide the Court with subject matter jurisdiction.

2. The Tribal-State Gaming Compact Does Not Waive Sovereign Immunity for Plaintiffs’ Claims.

In their Sixth Claim for Relief, Plaintiffs allege that Defendants are allowing construction of

the casino to proceed in violation of the Tribal-State Gaming Compact. Second Am. Compl. ¶ 151.

The Compact does not provide Plaintiffs with a private right of action, however.5 Moreover, it

contains only a limited waiver of sovereign immunity, which is applicable only to suits between the

Tribe and the State of California. In this regard, Section 9.4(a) of the Compact provides that “[i]n the

event that a dispute is to be resolved in federal court . . . , the State and the Tribe expressly consent

to be sued therein and waive any immunity therefrom that they may have provided that” certain

conditions exist, including, inter alia, a requirement that

[n]o person or entity other than the Tribe and the State is a party to the action, unless failure to join a third party would deprive the court of jurisdiction; provided that nothing herein shall be construed to constitute a waiver of the sovereign immunity of either the Tribe or the State in respect to any such third party.

Id. § 9.4(a)(3). The Compact also provides that

[i]n the event of intervention by any additional party into any such action [seeking to enforce Compact provisions] without the consent of the Tribe and the State, the waivers of either the Tribe or the State provided herein may be revoked, unless joinder is required to preserve the court's jurisdiction . . . .

Id, § 9.4(b). Neither Plaintiffs nor the United States are parties to the Compact, and although the

Secretary approved the Compact, Plaintiffs do not challenge the approval, but rather the construction

of the casino, which they contend is occurring in violation of the Compact. Accordingly, as the

Compact clearly states, there is no applicable waiver of sovereign immunity that would allow this

case to proceed against Federal Defendants in this Court.

5 See Compact § 15.1 (“Except to the extent expressly provided under this . . . Compact], this

Compact is not intended to and shall not be construed to, create any right on the part of a third party to bring an action to enforce any of its terms.”).



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3. Plaintiffs’ First and Second Claims for Relief under IGRA and the IRA Are Barred by the Statute of Limitations.

The statute of limitations applicable to claims under the APA provides that “every civil

action commenced against the United States shall be barred unless the complaint is filed within six

years after the right of action first accrues.” 28 U.S.C. § 2401(a). See also Hells Canyon Pres.

Council v. U.S. Forest Serv., 593 F.3d. 923, 930 (9th Cir 2010). 28 U.S.C. § 2401(a) “constitutes a

condition on the waiver of sovereign immunity[,]” United States v. Mottaz, 476 U.S. 834, 841

(1986), and thus it is a jurisdictional requirement, which courts construe strictly.6 See, e.g., Sisseton-

Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990); Marley v. United States,

567 F.3d 1030, 1032-37 (9th Cir. 2009). Acri v. International Ass'n of Machinists, 781 F.2d 1393,

1396 (9th Cir.) “Under federal law a cause of action accrues when the plaintiff is aware of the wrong

and can successfully bring a cause of action.” Shiny Rock Mining Corp. v. United States, 906 F.2d

1362, 1364-65 (9th Cir. 1990), although a plaintiff does not have to possess actual knowledge in

order for the cause of action to accrue. Id. at 1364-65 (citing Acri v. International Ass'n of

Machinists, 781 F.2d 1393, 1396 (9th Cir. 1986); Sisseton-Wahpeton, 895 F.2d at 594.

Plaintiffs challenge the “Indian lands” status of the Tribe’s Reservation, as described in the

NOI, as having facilitated approval of the gaming ordinance, the purported approval of the gaming

management contract, and the construction of the casino. Second Am. Compl. ¶¶ 75, 81, 96. These

claims under IGRA and the IRA are time-barred. Plaintiffs have had constructive, if not actual,

knowledge necessary to bring such claims well more than six years before they brought this action.

Federal Defendants’ treatment of the Tribe as a federally recognized Tribe with jurisdiction over its

Reservation has long been a matter of public record, including a voluminous record of judicial

decisions, of which Plaintiffs are presumed to have at least constructive notice.7

6 The Ninth Circuit has treated Section 2401(a) as non-jurisdictional, but the Supreme Court’s

decision in John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008), casts considerable doubt as to this approach.

7 See Rosales v. United States, (“Rosales X”), 89 Fed. Cl. 565, 571 n.2 ( 2009) (cataloguing “no fewer than fourteen legal actions” already “brought before tribal tribunals, administrative boards, and federal courts in California and the District of Columbia, all without success”). Specifically, Plaintiffs’ argument that the United States holds the land in trust for individuals rather than the



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In order to challenge construction of the allegedly “illegal” casino” in which there is no

federal role, Plaintiffs attempt to mount an APA challenge first, by casting the NOI as a final agency

action (the purported Lands Determination), which it is not; second, as having provided the basis for

approval of the gaming ordinance, which it did not; and third, as having facilitated the purported

approval of the gaming management contract, which has not occurred. Moreover, the foundation for

this construct is unsound because it rests on events that occurred well outside the applicable statute

of limitations. In sum, Plaintiffs take issue with the United States’ trust acquisition of land for a

reservation more than thirty years ago in 1978 as the first step in the 1981 organization and federal

recognition of the Tribe on that Reservation, which allowed for the Tribe’s exercise of jurisdiction

over the Reservation. Plaintiffs then attempt to bolster their attack on the United States’ recognition

of the Tribe and the status of its Reservation by asserting infringement of state jurisdiction claims,

which are not theirs to make. See Second Am. Compl. ¶¶ 100-114.

Plaintiffs further challenge the status of the Tribe’s pre-IGRA trust land as “Indian lands,” but

Congress, not the Federal Defendants, made that definitional determination when it enacted IGRA

twenty-seven years ago in 1988. As multiple courts have held, the Tribe is the beneficial title holder

to its reservation trust land over which it exercises jurisdiction. The land was acquired in trust well

before the enactment of IGRA, and hence, it is not subject to IGRA’s general prohibition against

Indian gaming on lands newly acquired by the Secretary in trust, 25 U.S.C. § 2719(a), “that is, lands

the Secretary took into trust for a tribe after October 17, 1988 when [IGRA] went into effect.”

Patchak v. Salazar, 632 F.3d 702, 705 n.2 (D.C. Cir. 2011), aff’d & remanded sub. nom. Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012). Thus, to the

extent any Indian lands determination has occurred, it was made by Congress in defining Indian lands

Tribe has several times been rejected by the Southern District of California. See, e.g., Rosales v. United States, No. 07cv0624, 2007 U.S. Dist. LEXIS 87368 (S.D. Cal., Nov. 28, 2007), and the Federal Circuit has rejected their claim that the Supreme Court’s decision in Carcieri, has any relevance to the status of the Jamul Reservation. Rosales v. United States, 2010 U.S. App. LEXIS 19443 (Fed. Cir., Sept. 17, 2010).



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as including “all lands within the limits of any Indian reservation” and “any lands title to which is

either held in trust by the United States for the benefit of any Indian tribe . . . and over which the

Indian tribe exercises governmental power.” See 25 U.S.C. § 2703 (4)(A),(B).

Plaintiffs do not allege they lacked knowledge of the purported violations more than six years

before they filed, and they point to only one action, (approval of the amendment to the gaming

ordinance), taken within the six-year limitations period that could constitute final agency action. That

action did not address the eligibility for gaming of the land at issue, however, and contrary to

Plaintiffs’ speculation, it did not “facilitate” construction of the casino. Plaintiffs’ claims are thus time-

barred because they were not “filed within six years after [their] right of action first accrue[d]” 28

U.S.C. § 2401(a), and Plaintiffs therefore lack a waiver of sovereign immunity and a grant of

jurisdiction. C. Plaintiffs’ Federalism and Constitutional Claims in their Third Claim for Relief Must

Be Rejected.

In their Third Claim for Relief, Second Am. Compl. ¶¶ 100-114, Plaintiffs assert various

“principles of federalism” in challenging the NIGC’s purported Lands Determination, and a thinly

alleged violation of their “equal protection rights” based on the United States’ treatment of the Tribe as

a tribe. Id. ¶¶ 106, 112. They contend that the federal government “cannot, after statehood, reserve,

convey, or regulate lands that are no longer public domain lands.” Id. ¶ 113. For the reasons set forth in

section A. 4. supra, Plaintiffs lack standing to assert this claim. Moreover, they fail to actually plead an

equal protection claim, only vaguely asserting unspecified injury based on their characterization of the

Tribe as a racial group. See id. ¶¶ 112, 113. Their collateral status attack is impermissible, time-barred,

and mistaken. 1. Plaintiffs’ Claims are Impermissible Collateral Attacks on the Status of the

Tribe and Its Reservation.

As the Ninth Circuit explained in its recent decision in Big Lagoon Rancheria v. California,

789 F.3d 947 (9th Cir. 2015) (en banc), the Supreme Court in Patchak held that a timely challenge to

the Secretary’s decision to acquire land in trust for an Indian tribe is a “garden-variety APA claim”

subject to the APA’s six-year statute of limitations. Big Lagoon, 789 F.3d at 953 (citing Match-E-Be-



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Nash-She-Wish Band of Pottawatomi Indians, 132 S. Ct. at 2208. Plaintiffs’ Third Claim for Relief

alleges that the Secretary lacked authority to acquire the Tribe’s Reservation into trust. Second Am.

Compl. ¶¶ 106-108, 113. The trust acquisitions of the parcels comprising the Tribe’s 6.03 acre

Reservation occurred in 1978 and 1982. Plaintiffs’ claims must be rejected as a belated collateral

attack “outside an action brought under the APA [and] outside the statute of limitations for APA

actions.” Big Lagoon Rancheria, 789 F.3d at 953.

Plaintiffs’ challenges to the Tribe’s status are likewise improper collateral attacks. Second

Am. Compl. ¶¶ 110-113. They brashly proclaim that the Tribe is “not a federally recognized tribe,”

id. ¶ 110, and yet the Tribe has been on the Secretary’s official list of federally recognized tribes

since 1982 and remains on that list today. 47 Fed. Reg. 53,130, 53,132 (Nov. 24, 1982); 80 Fed. Reg.

1942, 1944 (Jan. 14, 2015). Moreover, this Court has already held that the Tribe is a federally

recognized tribe with tribal sovereign immunity. Aug. 5, 2014 Order 7, 13. Plaintiffs’ equal

protection-based allegations are likewise threadbare and belated legal conclusions, and an attempt to

“end-run the procedural requirements governing appeals of administrative decisions[,]” which must

be rejected. United States v. Backlund, 689 F.3d 986, 1000 (9th Cir. 2012); Big Lagoon Rancheria,

789 F.3d at 953.

2. Plaintiffs’ Federalism Claims Lack Merit.

a. Plaintiffs Rely on an Inapposite Case and Regulatory Provision.

Even if Plaintiffs could establish standing for their federalism claims, the claims lack merit. Their

bald assertion that “the United States no longer has authority to create an Indian reservation over non-public

domain lands[,]” after public domain land has been conveyed to the State of California or into private

ownership, see Second Am. Compl. ¶ 103, is directly controverted by the IRA, which is the authority under

which the Tribe’s Reservation land was acquired. See 25 U.S.C. §§ 465, 467 (authorizing Secretary of the

Interior to acquire lands in trust for Indian tribes and to proclaim such lands new Indian reservations).

Plaintiffs’ reliance on Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009), see Second

Am. Compl. ¶ 103, is misplaced and unavailing because that case had nothing to do with the IRA. The

narrow issue before the Court in Hawaii was whether a congressional resolution passed on the 100th



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anniversary of the overthrow of the Hawaiian monarchy affected the State of Hawaii’s sovereign

authority to convey Hawaiian public lands acquired from the United States upon Hawaii’s admission to

the Union to private owners free from the encumbrance of potential claims brought by native Hawaiians.

Hawaii, 556 U.S. at 164. Holding that the resolution did not prevent the State from conveying public

lands, the Court sought to avoid reaching a conclusion that could adversely affect the State’s sovereignty

or place a cloud on the title to State lands without a clearer expression of Congressional intent to do so.

Id. at 170.

Whether the State of Hawaii may convey state public lands to private landowners in light of a

congressional resolution is irrelevant to the Secretary’s exercise of IRA authority to acquire in trust lands

that comprise the Tribe’s Reservation. The Hawaii decision does not mention, let alone evaluate, the

IRA or the Secretary’s authority to acquire land in trust for Indian tribes pursuant to it.

Finally, Plaintiffs’ claim that Federal Defendants have attempted to exclude “the Parcel” on

which the casino will be located from California’s regulatory jurisdiction in violation of 25 C.F.R. §

1.4 is likewise meritless and time-barred. See Second Am. Compl. ¶ 108. It is also irrelevant because

it is the IRA that removes land acquired in trust for tribes from state and local taxation, and by

extension, other regulatory jurisdiction. See 25 U.S.C. § 465.

b. Plaintiffs’ Constitutional Claims Have Been Rejected

Plaintiffs’ time-barred assertion that transfer of the Tribe’s lands into trust violated the

Equal Footing Doctrine, see Second Am. Compl. ¶¶ 104, 106, has been made and rejected. The

doctrine does not address issues of Indian affairs over which Congress has separate constitutional

authority.8 The breadth of federal authority over Indian affairs is well-established and has

8 The United States’ authority over Indian affairs derives from the Commerce Clause of the

Constitution, U.S. Const. art. I, § 8, cl. 3, Dick v. United States, 208 U.S. 340-356-57 (1908), the clauses reserving treaty powers to the President and the Senate, U.S. Const. art. II, § 2, cl. 2, McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973), the Property Clause, United States v. Kagama, 118 U.S. 375, 379-80 (1886), the Debt Clause, United States v. Sioux Nation of Indians, 448 U.S. 371, 397 (1980), “preconstitutional powers necessarily inherent in a Federal Government, namely, powers that [are] ‘necessary concomitants of nationality[,] United States v. Lara, 541 U.S. 193, 201 (1994) (internal citation omitted), and the clauses reserving treaty powers to the President and the Senate, U.S. Const. art. II, § 2, cl. 2, and also from “the necessity of giving uniform protection to a dependent people.” Williams v. Lee, 358 U.S. 217, 219



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consistently been described by the Supreme Court as “plenary”, “broad”, and “exclusive.” See

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764 (1985) (“The Constitution vests the

Federal Government with exclusive authority over relations with Indian tribes.”) (citation omitted);

United States v. Mazurie, 419 U.S. 544, 554 n.11 (1975); United States v. Sandoval, 231 U.S. 28, 49

(1913) (concluding that legislation making it punishable offense to introduce intoxicating liquor into

Indian country did not violate New Mexico’s state sovereignty or its equality among the states);

Coyle v. Smith, 221 U.S. 559, 570-73 (1911) (regulation of Indian affairs is valid exercise of

congressional power and does not infringe on states’ equality).

In an analogous challenge to Interior’s decision to take land into trust for another Indian

tribe, another federal district court found that

[p]laintiffs have not alleged that the taking of the parcel in trust for the Tribe will in any way impair the sovereignty of the State of California such that California will no longer be equal to other states in the Union . . . [or] that California has been denied any constitutionally guaranteed right by the fact that some state laws may be preempted by federal Indian legislation.

City of Roseville, 219 F. Supp. 2d at 153 (internal citation omitted). The court thus held that “[t]he

federal government possesses plenary power with respect to Indian affairs[,] [and] [t]he exercise of

[such] power . . . does not constitute a violation of the equal footing doctrine.” Id. As Roseville

makes plain, Plaintiffs’ claim that the trust acquisition of the Tribe’s Reservation violates the Equal

Footing Doctrine finds no support, and their other vague federalism-based claims get them no

further.

The framers of the Constitution specifically rejected inclusion of a provision from the

Articles of Confederation, art. IX, para. 4, that would have qualified the federal power over Indian

affairs so “that the legislative right of any state within its own limits not be infringed or violated.”

See Worcester v. Georgia, 31 U.S. 515, 559 (1832) (“The shackles imposed on this power, in the

confederation, [were] discarded.”); California v. Cabazon Band of Mission Indians, 480 U.S. 202,

207 (1987) (accordingly, “tribal sovereignty is dependent on, and subordinate to, only the Federal

n.4 (1959) (internal citation omitted).



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Government, not the States.”). Contrary to Plaintiffs’ assertions, the federal government

unquestionably may acquire non-federal land for federal purposes, and the Constitution expressly

assigns authority over Indian matters to the federal government, not the states.9 Accordingly, federal

acquisition of non-federal land in furtherance of federal Indian policy does not offend state

sovereignty or violate federal law, and Plaintiffs’ claims to the contrary must be rejected. See Town

of Verona v. Salazar, No. 6:08-CV-647 (LEK/GJD), 2009 WL 3165556 (N.D.N.Y. Sept. 29, 2009)

(rejecting Tenth Amendment challenge); Carcieri v. Kempthorne, 497 F.3d 15, 40-41 (1st Cir. 2007)

(rejecting Tenth Amendment, Enclave Clause, and Admissions Clause challenges to section 5 of the

IRA), rev’d on other grounds, Carcieri v. Salazar, 555 U.S. 379 (2009).

D. Plaintiffs Fail to State Any Claim Upon Which Relief Can Be Granted.

As explained in Section A.1 above, throughout the Second Amended Complaint, Plaintiffs

set forth a series of legal conclusions couched as fact as the underlying premises for their claims

against the Federal Defendants. First, as the premise for each of the substantive counts in their

complaint, Plaintiffs characterize the NOI as including a “determination” under IGRA, or a

“decision” under the IRA that the land where the casino is located is the Tribe’s Reservation and is

“Indian lands eligible for gaming.” See, e.g, Second Am. Compl. ¶¶ 64, 75, 78, 79, 80, 81, 82, 96,

106, 107, 127. Plaintiffs then hypothecate a causal link between the purported determination,

approval of the gaming ordinance, alleged approval of the gaming management contract, and

construction of the casino. See id., e.g., ¶¶ 2-4, 79-82. Such allegations are, however, erroneous legal

conclusions based only on speculation, which are “devoid of . . . factual enhancement” or basis, see

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557), and which the Court should not

accept as true. The Second Amendment Complaint thus does not “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face[,]’” Shroyer, 622 F.3d at 1044

(quoting Iqbal, 556 U.S. at 678 (internal quotation marks omitted)).

9 Congress has delegated broad Indian affairs authority to the Interior Department. See 25 U.S.C. §§ 2, 9; Cohen’s § 5.04[2][b] (“[T]he field of federal Indian law has been marked by broad delegations of authority to the Secretary of the Interior.”).



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Moreover, in their Sixth Claim for Relief concerning the Tribal-State Gaming Compact,

Plaintiffs fail to state a claim due to the lack of a private right of action. Plaintiffs are neither parties

to, nor named third-party beneficiaries of, the Compact and therefore, they lack the right and ability

to seek to enforce the Compact. The Compact expressly addresses the process by which an alleged

breach is to be resolved. See Compact § 9.0. “In recognition of the government-to-government

relationship of the Tribe and the State,” the Compact requires the parties to “make their best efforts

to resolve disputes that occur under this Gaming Compact by good faith negotiations whenever

possible.” Id. § 9.1. The Compact establishes a "threshold requirement that disputes between the

Tribe and the State first be subjected to a process of meeting and conferring in good faith . . . .” Id.

Following the meet-and-confer process, unresolved disputes may proceed to voluntary arbitration if

both parties agree. See id. at § 9.1(c). If a Compact dispute still remains unresolved, then either the

State or Tribe may sue in court for “claims of breach or violation of this Compact . . . .” Id. § 9.1(d).

Finally, section 15.1 of the Compact specifically provides that

[e]xcept to the extent expressly provided under this . . . [Compact], this . . . . Compact is not intended to, and shall not be construed to, create any right on the part of a third party to bring an action to enforce any of its terms.

Id. § 15.1.

Reading the Compact’s dispute resolution provisions as a whole, it is clear that allegations of

breach may be resolved as between the State and the Tribe under section 9 of the Compact, but not

by private third-parties such as Plaintiffs. See, e.g., Allen v. Gold Country Casino, No. CIV S-04-322

LKK CMK PS, 2005 WL 6112668, at * 1 (E.D. Cal. Feb. 8, 2005), aff'd in relevant part, 464 F.3d

1044 (9th Cir. 2006); Keitt v. Workers’ Comp. Appeals Bd., No. E055997, 2012 WL 1511707 (Cal.

Ct. App. Apr. 18, 2012). Accordingly, because the Compact affords them no private right of action,

Plaintiffs’ Sixth Claim fails to state a claim upon which relief can be granted. See Long v. Salt River

Valley Water Users’ Ass’n, 820 F.2d 284, 289 (9th Cir. 1987) (holding that statute under which

plaintiffs brought claim afforded no private right of action, and affirming dismissal of complaint

under Rule 12(b)(6)).



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E. Absent an APA Claim, the Second Amended Complaint Should Be Dismissed for Failure to Join the Tribe.

Federal Defendants moved to dismiss Plaintiffs’ initial complaint pursuant to Federal Rule of

Civil Procedure 12(b)(7), based on Plaintiffs’ failure to join the Tribe as a party. In the First Amended

Complaint, Plaintiffs attempted to circumvent joinder by naming the Tribe’s then-Chairman, Raymond

Hunter, as a party under the doctrine of Ex parte Young, 209 U.S. 123 (1908). First Am. Compl. ¶ 21.

In dismissing that complaint, the Court held that: (i) “[t]he Tribe is a necessary party to this action

because it has an interest in how the NOI is interpreted with regard to the land at issue[,] [and] . . . a

legal interest in the reservation[,]”; (ii) the Tribe had not waived its sovereign immunity, and therefore

its joinder in this case was not feasible; and (iii) the Tribe is a required party in whose absence the case

could not “in equity and good conscience proceed.” Aug. 5, 2014 Order, 25-26. The Court also

rejected Plaintiffs’ attempt to circumvent joining the Tribe and found that the attempted joinder of the

Chairman under Ex parte Young failed because Plaintiffs had not alleged that the Chairman had

violated any federal law, and because, as the Tribe’s chairman, “he is entitled to tribal sovereign

immunity[,]” and could not be named solely to represent the Tribe. Id.

In the Second Amended Complaint, Plaintiffs again attempt to circumvent joining the Tribe,

this time by joining additional tribal officials, members of the Tribal Council. Joining these

additional defendants does nothing, however, to remedy the fatal deficiency upon which the Court

dismissed the First Amended Complaint. Nothing in the Second Amended Complaint establishes, or

even alleges, that the Tribe now has any diminished interest in this lawsuit. Indeed the Tribe still has

— and will always have — interests in its Reservation and how the NOI is interpreted in relation to

the Reservation. Moreover, and most importantly, however, Plaintiffs still have not specifically

alleged any facts indicating that the named Tribal officials violated any federal law. Plaintiffs’

attempt to circumvent joinder of the Tribe by joining Tribal officials thus is wholly unavailing.

F. Plaintiffs’ Claims Do Not Properly Lie Against the Federal Officials Individually.

Plaintiffs’ Second Amended Complaint added eight current and former NIGC and BIA officials

in their individual capacities as additional defendants. Plaintiffs made no attempt to serve six of these



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officials, however, and the Court dismissed them without prejudice. See Nov. 20, 2015 Minute Order,

ECF No. 119. As to the remaining two officials, Amy Dutschke and John Rydzik, the Court found that

Plaintiffs had made a preliminary showing of service; however, it allowed Federal Defendants to

challenge the sufficiency of service in conjunction with this motion to dismiss. Id. Pursuant to the

Court’s Order, Federal Defendants contend that Plaintiffs’ claims in this case are properly alleged only

against the agencies and federal officials in their official capacities, and they do not properly lie against

Ms. Dutschke or Mr. Rydzik individually.10

Plaintiffs expressly named the federal officials, including Ms. Dutschke and Mr. Rydzik, in

their individual capacities, only in their Fourth Claim for Relief, alleging nuisance claims in violation

of California state law. Second Am. Compl. ¶¶ 115-125. Pursuant to the Westfall Act, 28 U.S.C. §

2679, the United States has been substituted for the federal officials, including Ms. Dutschke and Mr.

Rydzik, as the defendant to any and all tort claims. ECF No. 122. To the extent that Plaintiffs seek

injunctive and declaratory relief against the federal officials individually under their other claims, the

Ninth Circuit has expressly held that “declaratory and injunctive relief . . . is only available in an

official capacity suit.” Wolfe v. Strankman, 392 F.3d 358, 360 n.2 (9th Cir. 2004). Every other court of

appeals to consider the issue has agreed. See Kirby v. City of Elizabeth, 388 F.3d 440, 452 n.10 (4th

Cir. 2004); Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993); Scott v. Flowers, 910 F.2d 201, 213 (5th

Cir. 1990); Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989); Arocho v. Nafziger, 367 F. App’x 942,

948 n.5 (10th Cir. 2010). Segal v. Comm’r of I.R.S., 177 F. App’x 29 (11th Cir. 2006); Cmty. Mental

10 Federal Defendants also contend that service on Ms. Dutschke and Mr. Rydzik in their individual capacities has not been perfected pursuant to Federal Rule of Civil Procedure 4(e). As reflected in the return of summons filed with the Court, ECF No. 70, copies of the summons and the Second Amended Complaint were served at Ms. Dutschke’s and Mr. Rydzik’s place of employment and received by an agent for the BIA, not by someone authorized to accept service for Mr. Dutschke and Mr. Rydzik individually or by someone in charge of that BIA office. Nor did Plaintiffs thereafter mail a copy of the summons and complaint to that same BIA office. As such, Plaintiffs have not properly served Ms. Dutschke or Mr. Rydzik in their personal capacity under either Rule 4(e)(2) or California state law. See CCP § 415.20. In any event, Plaintiffs have asserted no claims that properly lie against the individual federal officials, and thus they are not properly defendants to this action



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Health Servs. of Belmont v. Mental Health & Recovery Bd. Serving Belmont, 150 F. App’x 389, 401

(6th Cir. 2005). This is particularly sensible here, where Plaintiffs ask the Court to order the NIGC, the

BIA, and the federal officials to cease construction of the casino, an activity in which the agencies and,

a fortiori, their officials individually, have no role. Plaintiffs’ claims thus lie only against the agencies

and their officials in an official capacity and there are no claims against Ms. Dutschke or Mr. Rydzik

individually. G. The Court Lacks Jurisdiction Over Plaintiffs’ Fourth Claim for Relief Against the

United States.

Finally, the Court lacks jurisdiction over Plaintiffs’ Fourth Claim against the United States

because Plaintiffs have not complied with the Federal Tort Claims Act’s exhaustion requirements

with respect to their fourth claim. The doctrine of sovereign immunity provides that the United States

may not be sued without its express consent. United States v. Mitchell, 463 U.S. 206, 212 (1983);

accord Balser v. Dep't of Justice, 327 F.3d 903, 907 (9th Cir. 2003). Plaintiffs bear the burden of both

pleading and proving subject matter jurisdiction. Stock W., Inc. v. Confederated Tribes, 873 F.2d

1221, 1225 (9th Cir. 1989). This includes a waiver of sovereign immunity, without which the district

courts lack jurisdiction over any claims against the United States or its agencies. See Alvarado v.

Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007).

Plaintiffs failed to plead compliance with the Federal Tort Claims Act (“FTCA”), which includes a

limited waiver of sovereign immunity subject to certain administrative requirements. See generally 28

U.S.C. § 1346. Any plaintiff seeking to sue the United States for tort claims must first present an

administrative claim, in writing, “to the appropriate Federal agency within two years after such claim

accrues . . . .” 28 U.S.C. § 2401. Plaintiffs have failed to plead that they submitted a tort claim to the

United States. The Ninth Circuit has long-held that “[e]xhaustion of the claims procedures established

under the [FTCA] is a prerequisite to district court jurisdiction.” Johnson v. United States, 704 F.2d 1431,

1442 (9th Cir. 1983). Because Plaintiffs failed to exhaust, their claims are barred.

For the foregoing reasons, Federal Defendants request that Plaintiffs’ Second Amended

Complaint be dismissed.



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Respectfully submitted this 21st day of December, 2015,

JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division United States Department of Justice /s Barbara M.R. Marvin BARBARA M.R. MARVIN Natural Resources Section Environment & Natural Resources Division United States Department of Justice 601 D. Street, NW Washington, DC 20004 JUDITH RABINOWITZ Indian Resources Section Environment and Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, CA 94105 BENJAMIN B. WAGNER United States Attorney GREGORY T. BRODERICK Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900

OF COUNSEL: JOHN R. HAY National Indian Gaming Commission Office of General Counsel Washington, DC 20005

REBECCA ROSS U.S. Department of the Interior Office of the Solicitor Division of Indian Affairs Branch of Environment and Lands Washington, DC 20240


Attorneys for Federal Defendants...Jamul Action Committee v. Chaudhuri, Case No. 2:13-cv-01920, Fed....

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