NIELSEN, MERKSAMER, PARRINELLO, MUELLER ......Concerning Taking Land Into Trust , 109th CONG. 3 (2005) (Testimony of George T. Skibine, Acting Deputy Ass’t Secretary–Indian Affairs

_______________________________________________________________________________________________ AMADOR COUNTY’S OPPOSITION TO MOTION TO DISMISS CASE NO. 2:07-CV-00527-LKK-GGH BY FEDERAL DEFENDANTS AND IONE BAND OF MIWOK INDIANS Page 0

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

COUNTY OF AMADOR, CALIFORNIA, Plaintiff, vs. THE UNITED STATES DEPARTMENT OF THE INTERIOR, et. al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2:07-CV-00527-LKK-GGH AMADOR COUNTY’S OPPOSITION TO MOTIONS TO DISMISS BY FEDERAL DEFENDANTS AND IONE BAND OF MIWOK INDIANS DATE: October 22, 2007 TIME: 10:00 a.m. JUDGE: Hon. Lawrence K. Karlton (Courtroom No. 4)

NIELSEN, MERKSAMER, PARRINELLO, MUELLER & NAYLOR, LLP JAMES R. PARRINELLO, ESQ. (S.B. NO. 63415) CHRISTOPHER E. SKINNELL, ESQ. (S.B. NO. 227093) 591 Redwood Highway, Bldg. 4000 Mill Valley, CA 94941 Telephone: (415) 389-6800 Facsimile: (415) 388-6874 NIELSEN, MERKSAMER, PARRINELLO, MUELLER & NAYLOR, LLP CATHY CHRISTIAN, ESQ. (S.B. NO. 83196) 1415 L Street, Suite 1200 Sacramento, CA 95814 Telephone: (916) 446-6752 Facsimile: (916) 446-6106 Attorneys for Plaintiff COUNTY OF AMADOR, CALIFORNIA

Case 2:07-cv-00527-LKK-GGH Document 38 Filed 09/07/2007 Page 1 of 32

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TABLE OF CONTENTS

Page I. INTRODUCTION..............................................................................................................1 II. STANDARD OF REVIEW AND MATERIAL ALLEGATIONS.......................................1 III. ARGUMENT .....................................................................................................................4

A. The Section 20 Indian Lands Determination Is Final Agency Action For Which There Is No Adequate Remedy At Law, And Is Therefore Subject To Judicial Review Under The Administrative Procedure Act ..................................................................................4

1. The determination letters mark the consummation of

the agency’s decisionmaking process with respect to the need for the Ione Band to seek a two-part determination before conducting gaming on the Plymouth Parcels .........................................................................................7

2. The Cason/Artman determination letters are actions

by which rights or obligations have been determined, or from which ‘legal consequences will flow...............................................10

3. Amador County has no other adequate remedy if

judicial review of the Indian Lands determinations is postponed..................................................................................................11

4. Existing case law supports the conclusion that

Indian Lands determinations are final agency actions subject to judicial review............................................................................13

B. Amador County Has Standing To Challenge The

Cason/Artman Indian Lands Determinations ..........................................................15 C. The Dispute In This Lawsuit Is Ripe For Review...................................................21 D. The County Of Amador Has Stated A Claim For Relief

Under NEPA.........................................................................................................22 IV. CONCLUSION ................................................................................................................24


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TABLE OF AUTHORITIES Page

Cases Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .........................................................................................................21 Appalachian Power Co. v. Envtl. Protection Agency, 341 U.S. App. D.C. 46, 208 F.3d 1015 (D.C. Cir. 2000).....................................................7 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) .........................................................................................................20 Baker v. Carr, 369 U.S. 186 (1962) .........................................................................................................16 Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 342 U.S. App. D.C. 45 (D.C. Cir. 2000)...................................................5,7,8 Bennett v. Spear, 520 U.S. 154 (1997) ..................................................................................................passim Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992)...............................................................................................2 Carlson v. Tulalip Tribes of Washington, 510 F.2d 1337 (9th Cir. 1975)...........................................................................................11 Carson Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824 (9th Cir. 2004)...............................................................................................2 Cattle Feeders Tax Comm. v. Shultz,* 74-1 U.S. Tax Cas. (CCH) P9121, 1973 U.S. Dist. LEXIS 10772

(W.D. Okla. Dec. 6, 1973) ..................................................................................................7 Ciba-Geigy Corp. v. United States Envtl. Protection Agency, 255 U.S. App. D.C. 216, 801 F.2d 430 (D.C. Cir. 1986).....................................................7 Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y. 2007) .....................................................................9,14,15 * (copy attached per Local Rule 5-133(i))


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City of Roseville v. Norton, 219 F. Supp. 2d 130 (D.D.C. 2002) ..................................................................................12 City of Shakopee v. United States,* 1997 U.S. Dist. LEXIS 2202 (D. Minn. Feb. 6, 1997) (Magistrate

Judge recommending that motions to dismiss City’s challenge to further proceedings on tribal trust application be denied) ..............................................13,22

Confederated Tribes of Siletz Indians v. United States, 841 F. Supp. 1479 (D. Or. 1994) ...................................................................................8,20 Dan Caputo Co. v. Russian River County Sanitation Dist., 749 F.2d 571 (9th Cir. 1984).............................................................................................20 Dept. of the Interior v. South Dakota, 519 U.S. 919, 117 S. Ct. 286 (1996).......................................................................11,12,13 Flast v. Cohen, 392 U.S. 83 (1968) ...........................................................................................................16 Florida, Dep’t of Business Regulation v. United States Dep’t of Interior, 768 F.2d 1248 (11th Cir. 1985).........................................................................................11 Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374 (9th Cir. 1989)...........................................................................................13 Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001)..................................................................................passim Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisc., 259 F. Supp. 2d 783 (W.D. Wisc. 2003) ...........................................................................20 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................2,15,16,17 McKart v. United States, 395 U.S. 185 (1969) .........................................................................................................10 Miami Tribe of Oklahoma v. United States,* 198 Fed. Appx. 686 (10th Cir. 2006) ...........................................................................14,15 Nat’l Automatic Laundry and Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689 (D.C. Cir. 1971).....................................................7 * (copy attached per Local Rule 5-133(i))


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National Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir. 1995)............................................................................................1,2 Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956 (10th Cir. 2004)...........................................................................................11 Oregon v. Norton, 271 F. Supp. 2d 1270 (D. Or. 2003)....................................................................................8 Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974) .............................................................................................................10 Seminole Tribe v. Florida, 517 U.S. 44 (1996) ...........................................................................................................18 So. Dakota v. United States DOI, 314 F. Supp. 2d 935 (D.S.D. 2004).....................................................................................9 Sutton v. United Air Lines, 527 U.S. 471 (1999) ...........................................................................................................2 Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d 1030 (11th Cir. 1995)...........................................................................................14 Tarbell v. Dep’t of Interior, 307 F. Supp. 2d 409 (N.D.N.Y. 2004) ................................................................................7 Texas v. United States,* __ F.3d __, 2007 U.S. App. LEXIS 19688 (5th Cir. Aug. 17, 2007) .......................18,19,21 United Keetoowah Band of Cherokee Indians in Oklahoma v. State of Oklahoma,* Case No. CIV-04-340-WH (E.D. Okla. Jan. 26, 2006) (order) ...................................passim Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) .........................................................................................................19 Warth v. Seldin, 422 U.S. 490 (1975) ....................................................................................................16,20 West Coast Truck Lines, Inc. v. American Indus., Inc., 893 F.3d 229 (9th Cir. 1990)...............................................................................................6 * (copy attached per Local Rule 5-133(i))


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Westlands Water Dist. v. United States, Dep’t of the Interior, 850 F. Supp. 1388 (E.D. Cal. 1994)..................................................................................24

Federal Statutes Administrative Procedure Act (“APA”), 5 U.S.C. § 704 (Lexis 2007).............................................1 5 U.S.C. § 551(6) (Lexis 2007)...........................................................................................4 5 U.S.C. § 551(13) (Lexis 2007).........................................................................................4 5 U.S.C. § 705 (Lexis 2007) .............................................................................................12 Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (Lexis 2007) ...........................................1 Section 11, 25 U.S.C. § 2710 (Lexis 2007) .......................................................................18 Section 20, 25 U.S.C. § 2719 (Lexis 2007) ................................................................passim 25 U.S.C. § 2719(a)(1) (Lexis 2007) ...................................................................1,2 25 U.S.C. § 2719(b) (Lexis 2007)............................................................................1 25 U.S.C. § 2719(b)(1)(A) (Lexis 2007).........................................................passim 25 U.S.C. § 2719(b)(1)(B) (Lexis 2007)..................................................................2 25 U.S.C. § 2719(c) (Lexis 2007)............................................................................9 Indian Reorganization Act, 25 U.S.C. §§ 461-479 (Lexis 2007)............................................9,11,23 Nat’l Environmental Protection Act, 42 U.S.C. § 4321 et seq. (Lexis 2007)....................................3 42 U.S.C. § 4332(1)(c) (Lexis 2007).................................................................................25 Quiet Title Act, 28 U.S.C. § 2409a (Lexis 2007) .....................................................................11,22


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Federal Regulations 25 C.F.R. part 151 (Lexis 2007) .....................................................................................................9 25 C.F.R. § 151.12(b) (Lexis 2007) .............................................................................12,13 25 C.F.R. part 291........................................................................................................................18 40 C.F.R. § 1508.18(b) (Lexis 2007) ............................................................................................23 40 C.F.R. § 1508.18(b)(1) (Lexis 2007)........................................................................................23

Other Authorities 71 Fed. Reg. 58769 (Oct. 5, 2006) .................................................................................................9 62 Fed. Reg. 18,082 (May 14, 1997) ............................................................................................12 Final Report of the Indep. Counsel In Re: Bruce Edward Babbitt

(Aug. 22, 2000) ................................................................................................................20 Memorandum of Agreement was executed between the NIGC and

the Department of Interior in February 2000 ................................................................14,15 Memorandum of Agreement was executed between the NIGC and

the Department of Interior in May 2006 .....................................................................passim Office of Indian Gaming Management, Checklist for Gaming

Acquisitions, Gaming-Related Acquisitions and IGRA Section 20 Determinations (Mar. 2005) ..................................................................16,17,23

Oversight Hearing Before the Senate Committee on Indian Affairs

Concerning Taking Land Into Trust, 109th CONG. 3 (2005) (Testimony of George T. Skibine, Acting Deputy Ass’t Secretary–Indian Affairs For Pol’y & Econ. Devel., Dep’t of the Interior, May 18, 2005)........................................................................................8,20

S. Rep. No. 100-446, at 8 (1988), reprinted in 1988 U.S.C.C.A.N. 3071................................................................................13



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I. INTRODUCTION .

In 1988, Congress enacted the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.

(Lexis 2007) (“IGRA”), which authorized casino-style gaming by Indian tribes on Indian lands,

subject to an agreement with the State regulating such gaming. It is no secret, however, that the

construction of a large-scale casino operation can create significant detrimental impacts on a local

community as well, especially a small community like Amador County. In recognition of this fact,

Congress affirmatively sought to protect local communities and prevent forum-shopping by tribal

authorities and their financial investors. It did so by enacting Section 20 of IGRA, which restricts

tribal gaming operations to existing “Indian lands” in most instances. 25 U.S.C. § 2719(a)(1) (Lexis

2007). In Section 20, Congress designed a process for determining whether gaming could be

conducted on any additional lands acquired in trust by the United States on behalf of a tribe after

October 1, 1988, and explicitly conferred on state and local governments the right to participate in

that process, unless certain narrow exceptions applied. 25 U.S.C. § 2719(b) (Lexis 2007).

The Department of the Interior (“Department”) has attempted to deprive Amador County of

these participatory rights in connection with the Ione Band’s proposed casino project, by issuing

Indian Lands determinations that conclude—incorrectly—that the Ione Band may avail itself of one

of the narrow exceptions. Furthermore, the Department has issued these determinations without

conducting necessary environmental review.

By this action, Amador County challenges the Department’s attempt to exclude it from the

IGRA decisionmaking process, and the fact the Department issued the Indian lands determinations

without environmental review. This action is authorized by the Administrative Procedure Act

(“APA”), 5 U.S.C. § 704 (Lexis 2007), and the County’s action complies with constitutional

requirements of standing and ripeness. The motions to dismiss of the Federal Defendants and

Intervenor Ione Band of Miwok Indians of California (“Ione” or “Ione Band”) should be denied.

II. STANDARD OF REVIEW AND MATERIAL ALLEGATIONS .

In ruling on a motion to dismiss, “[a]llegations of fact are taken as true and construed in the

light most favorable to the plaintiff.” National Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir.

1995). This standard applies both to a motion to dismiss for failure to state a claim under Federal



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Rule of Civil Procedure 12(b)(6), and to a motion to dismiss for lack of jurisdiction under Federal

Rule of Civil Procedure 12(b)(1). Id. (citing Buckey v. County of Los Angeles, 968 F.2d 791, 794

(9th Cir. 1992) (failure to state a claim); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

(standing)). See also Sutton v. United Air Lines, 527 U.S. 471, 475 (1999) (Fed. R. Civ. Proc.

12(b)(6)); Carson Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824, 826 (9th Cir. 2004) (Fed. R.

Civ. Proc. 12(b)(1)). Among the material allegations that are to be accepted as true and construed

in the light most favorable to Amador County are the following:

The Ione Band is seeking to establish a gaming facility in Amador County, California, within

the City of Plymouth and the unincorporated area of Amador County, pursuant to IGRA.

(Complaint [Dkt. #1], ¶ 11 & n.1.) To accomplish that purpose, they have applied to the Secretary

of the Interior, through the Bureau of Indian Affairs, to have 228 acres in Amador County (the

“Plymouth Parcels”) taken into trust, and have asked the National Indian Gaming Commission to

determine that the land is eligible for gaming pursuant to Section 20 of IGRA, 25 U.S.C. § 2719.

(Complaint, ¶¶ 11-12 & 27.)

IGRA prohibits gaming on lands acquired by the United States in trust after October 1988

unless either (1) the tribe complies with a two-part process in which the Secretary and Governor of

the State in which gaming is sought both conclude, after broad consultation with affected interests

(including local governments such as Amador County), that gaming would be “in the best interest of

the Indian tribe and its members, and would not be detrimental to the surrounding community,” 25

U.S.C. § 2719(a) & (b)(1)(A) (Lexis 2007), or (2) one of the following exceptions applies:

(B) lands are taken into trust as part of—

(i) a settlement of a land claim,

(ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or

(iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.

25 U.S.C. § 2719(b)(1)(B) (Lexis 2007). (Complaint, ¶¶ 13-14.) The Ione Band contended, in its

request to the NIGC for an Indian lands determination, that the NIGC should conclude that the

Plymouth Parcels constitute the “restored lands of a restored tribe,” and are therefore exempt from



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the need to consult affected local governments and obtain the consent of California’s Governor

before conducting gaming on the Plymouth Parcels. (Complaint, ¶ 15.)

While the Ione Band’s request was pending with the NIGC, Amador County fortuitously

learned of its existence from a response to a FOIA request. (Complaint, ¶ 33.) While the County’s

views were never solicited on the question of whether the Plymouth Parcels constitute “the restored

lands of a restored tribe,” and no formal process exists for the County to provide input on the

question, the County nevertheless submitted extensive legal argument and evidence to the NIGC

concerning the status of the Band and its relationship to the Plymouth Parcels. (Id.) This evidence

was collected, documented and summarized by an expert ethno-historian. (Id.)

Unbeknownst to the County, however, a Memorandum of Agreement was executed

between the NIGC and the Department of Interior on May 31, 2006 (hereafter “Memorandum of

Agreement”),1 pursuant to which the NIGC delegated to the Solicitor’s Office of the Department of

the Interior the authority to make the determination regarding the Plymouth Parcels’ eligibility for

gaming; that determination was made in a September 19, 2006 letter by Associate Solicitor,

Division of Indian Affairs, Carl J. Artman. (Complaint, ¶¶ 16 & 28 & Exhibit A.) Associate

Deputy Secretary James E. Cason concurred in this determination by letter dated September 26,

2006. (Complaint, ¶¶ 16 & 29 & Exhibit B.)

Mr. Artman and Mr. Cason concluded that the Plymouth Parcels are eligible for gaming

under IGRA. (Complaint, ¶¶ 16, 28-30 & Exhibits A & B.) They concluded the Plymouth Parcels

would not, and could not, qualify as part of a settlement of a land claim or as part of the initial

reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgement

process. (Complaint, Exhibits A & B.) These conclusions were correct, and Amador County does

not dispute them. Mr. Artman and Mr. Cason erred in concluding, however, that the Plymouth

Parcels would be taken into trust as part of “the restoration of lands for an Indian tribe that is

restored to Federal recognition.” (Complaint, ¶¶ 16, 32, 35-57, & 59-63 & Exhibits. A & B.)

Neither of the two letters mention any of the evidence submitted by Amador County to the

1 See Intervenor’s Request for Judicial Notice (Dkt. #34-3), Exhibit 2.



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NIGC, and Amador County is informed that neither Mr. Artman nor Mr. Cason considered the

historical evidence submitted by the County. (Complaint, ¶ 58.)

By the two letters challenged herein, the Department of Interior has conclusively stated its

position that the two-part determination, crafted by Congress to protect local interests that would

be detrimentally affected by off-reservation gaming, is inapplicable in this case. The Department

thereby deprived the County of Amador of the participatory protections that Congress specifically

prescribed for them under Section 20 of IGRA. (Complaint, ¶¶ 13-16.) The determinations by

Messrs. Artman and Cason constitute a government action that makes the land eligible for gaming

under IGRA as soon as it is taken into trust; conversely, without those determinations the land

would not be eligible for gaming. (Id.) They are final determinations on this question and, as such,

constitute final agency action subject to APA review. (Complaint, ¶¶ 7 & 30, 34, 68 & 74.)

Moreover, the Indian Lands determinations constitute “major federal action significantly

affecting the quality of the human environment,” which require environmental review under the

National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq. (Lexis 2007).

(Complaint, ¶¶ 64 & 78.) Defendants herein failed to perform the environmental review required by

NEPA before issuing the Indian Lands determinations, a failure that is likewise reviewable under the

APA. (Id.)

III. ARGUMENT .

A. The Section 20 Indian Lands Determination Is Final Agency Action For Which There Is No Adequate Remedy At Law, And Is Therefore Subject To Judicial Review Under The Administrative Procedure Act.

The Artman/Cason Indian Lands determinations constitute “final agency action,” reviewable

under the APA. Under the APA, “‘agency action’ includes the whole or a part of an agency rule,

order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. §

551(13) (Lexis 2007) (emphasis added). The Administrative Procedure Act defines an “order” as

“the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in

form, of an agency in a matter other than rule making but including licensing.” 5 U.S.C. § 551(6)

(Lexis 2007) (emphasis added).



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To determine whether, for purposes of the APA, an agency action has achieved the requisite

degree of finality, the Supreme Court has articulated the following two-part test:

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 quotations and citations omitted).

The Cason/Artman determinations plainly meet this test.

By their Memorandum of Agreement, the NIGC and the Department of Interior have

defined an administrative process by which Indian lands determinations are to be made under

Section 20 of IGRA. That process was followed to completion in this case, and finally culminated

in the Artman and Cason determinations challenged herein. The Memorandum of Agreement

prescribes no process for further review of the question before these determinations are deemed

complete, and provides no further means by which the County may participate in the analysis. With

respect to the question of whether the Plymouth Parcels qualify for exemption from IGRA’s two-

part determination under the “restored lands of a restored tribe” exception, the letters challenged

herein “reflect[] a settled agency position,” articulated by public officials to whom the power to

make Indian lands determinations has been delegated by the Memorandum of Agreement. Barrick

Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 48, 342 U.S. App. D.C. 45 (D.C. Cir. 2000). As

such, they are properly subject to judicial review. Kansas v. United States, 249 F.3d 1213 (10th

Cir. 2001) (treating NIGC’s Section 20 Indian Lands determination as final agency action under the

APA); United Keetoowah Band of Cherokee Indians in Oklahoma v. State of Oklahoma, Case No.

CIV-04-340-WH (E.D. Okla. Jan. 26, 2006) (order) pp. 7-10 (rejecting United States’ argument

that Indian Lands determination not final agency action subject to review).

Instructive on this point is Bennett itself. In that case, several California irrigation districts

sued the Fish and Wildlife Service (“FWS”) and the Secretary of the Interior, challenging FWS’s

biological opinion of the impact of an irrigation project on two endangered fish under the

Endangered Species Act (“ESA”) and the APA. 520 U.S. at 157. Under the ESA, “if an agency

determines that action it proposes to take may adversely affect a “threatened” or “endangered”



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species, it must engage in formal consultation with the Fish and Wildlife Service, as delegate of the

Secretary, ibid.; . . ., after which the Service must provide the agency with a written statement (the

Biological Opinion) explaining how the proposed action will affect the species or its habitat.” Id. at

158. “If the Service concludes that the proposed action will ‘jeopardize the continued existence of

any [listed] species or result in the destruction or adverse modification of [critical habitat],” the

Biological Opinion must outline any ‘reasonable and prudent alternatives’ that the Service believes

will avoid that consequence. Additionally, if the Biological Opinion concludes that the agency

action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and

prudent alternatives to avoid that consequence, the Service must provide the agency with a written

statement (known as the ‘Incidental Take Statement’) specifying the ‘impact of such incidental

taking on the species,’ any ‘reasonable and prudent measures that the [Service] considers necessary

or appropriate to minimize such impact,’ and setting forth ‘the terms and conditions . . . that must

be complied with by the Federal agency . . . to implement [those measures].’” Id.

It was this “biological opinion” that the irrigation districts in Bennett challenged. Just like in

this case, the Government argued that judicial review of the opinion was improper under the APA,

on the ground that the Biological Opinion did not constitute “final agency action” because the

Bureau of Reclamation was not legally obligated to accept the FWS’s recommendations, and the

biological opinion there would “not conclusively determine the manner in which Klamath Project

water [would] be allocated.” Id. at 177. The Supreme Court unanimously rejected the

Government’s argument, noting that the biological opinion “alter[ed] the legal regime to which the

action agency is subject” if the Government proposed to move forward with its plans. Id. at 177-

78. Likewise, in this case, the Indian Lands determination letters “alter the legal regime” under

which gaming may be sought for the Plymouth Parcels, freeing the Secretary and the Band of the

otherwise applicable requirement that they conduct a two-part determination under Section 20, with

Amador County’s input and consultation, if gaming is to be authorized.2

2 See also West Coast Truck Lines, Inc. v. Am. Indus., Inc., 893 F.3d 229, 232-35 (9th Cir.

1990) (holding that the concept of “‘agency action’ encompasses an agency’s interpretation of the law,” and concluding that an opinion of Interstate Commerce Commission that one company’s



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1. The determination letters mark the consummation of the agency’s decisionmaking process with respect to the need for the Ione Band to seek a two-part determination before conducting gaming on the Plymouth Parcels.

Nothing in the Artman and Cason letters indicates these are “tentative” determinations.

Rather, the “letter[s] [are] firm and conclusive. . . .” Barrick Goldstrike Mines, Inc., 215 F.3d at

48. Mr. Artman’s September 19, 2006 letter unequivocally states, “The proposed acquisition

constitutes restored lands for a restored tribe within the meaning of IGRA so once the land is in

trust, the Band may conduct gaming on it without obtaining a two-part determination.” See

Complaint (Dkt. #1), Exhibit A, p. 5 (emphasis added). Associate Deputy Secretary Cason was

likewise unequivocal in stating, “I concur in that determination.” See Complaint (Dkt. #1), Exhibit

B, p. 1. Moreover, the Memorandum of Agreement does not prescribe any further steps for the

attempt to collect undercharges from another company was an unreasonable practice that was a final agency action subject to judicial review); Appalachian Power Co. v. Envtl. Protection Agency, 341 U.S. App. D.C. 46, 208 F.3d 1015 (D.C. Cir. 2000) (agency guidance document enacted without notice and comment and containing statement that “The policies set forth in this paper are intended solely as guidance, do not represent final Agency action, and cannot be relied upon to create any rights enforceable by any party” nevertheless treated as final agency action, because it represented the settled agency position regarding periodic monitoring for Title V operating permits); Barrick Goldstrike Mines, 215 F.3d at 46 & 48 (noting, “That the issuance of a guideline or guidance may constitute final agency action has been settled in this circuit for many years,” and permitting judicial review of policy decisions made “through statements in ‘rulemaking preambles’ and in detailed directives issued in the form of ‘guidance’ and a letter.”); Ciba-Geigy Corp. v. United States Envtl. Protection Agency, 255 U.S. App. D.C. 216, 801 F.2d 430, 435 (D.C. Cir. 1986) (approving judicial review of letter, issued in response to request by plaintiff, clarifying position of EPA that cancellation of plaintiff’s registration to sell pesticide simazine not required before enforcement action could be commenced under changed labeling rules); Nat’l Automatic Laundry and Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 692 (D.C. Cir. 1971) (holding that opinion letter of federal Wage-Hour Administrator issued to an association of laundry and cleaning businesses stating that coin-operated launderettes and dry-cleaning services were “engaged in laundering or cleaning clothing or fabrics within the meaning of the act” was final agency action subject to judicial review); Tarbell v. Dep’t of Interior, 307 F. Supp. 2d 409, 427 (N.D.N.Y. 2004) (“I find that the two opinion letters [of Philip Hogen, Assoc. Solicitor, Div. of Indian Affairs that St. Regis Mohawk Tribal Courts lack any authority to act on behalf of the Tribe] do constitute final agency actions which are thus properly subject to review under the APA.” (emphasis added)); Cattle Feeders Tax Comm. v. Shultz, 74-1 U.S. Tax Cas. (CCH) P9121, 1973 U.S. Dist. LEXIS 10772, *9 (W.D. Okla. Dec. 6, 1973) (IRS “Revenue Ruling 73-530 constitutes final agency action.”), rev’d on other grounds, 504 F.2d 462 (10th Cir. 1974).



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consideration of whether the Plymouth Parcels qualify for exemption from IGRA’s two-part

determination under the “restored lands of a restored tribe” exception. There can thus be little

doubt that, as to the requirements of Section 20 of IGRA, these letters “mark the ‘consummation’

of the agency’s decisionmaking process” and “reflect[] a settled agency position.” Bennett, 520

U.S. at 177-78; Barrick Goldstrike Mines, 215 F.3d at 48.

The Federal Defendants and Intervenor Tribe attempt to evade this conclusion by claiming

the Indian lands determination is merely a preliminary, or interim part of the decision to take the

Plymouth Parcels into trust and that the two agency decisions are discrete components of a single,

integrated administrative process. That premise is simply incorrect. While the two decisions may in

some cases be made simultaneously, they are nevertheless separate and distinct agency actions.3 As

expressly noted by George Skibine, Director of the Department’s Office of Indian Gaming, in

testimony before Congress two years ago, “Section 20 of IGRA does not provide authority to take

land into trust for Indian tribes. Rather, it is a separate and independent requirement to be

considered before gaming activities can be conducted on land taken into trust after October 17,

1988, the date IGRA was enacted into law.”4

3 Nor are they required to be made simultaneously, as land can be taken into trust for many

purposes—not just gaming. See Confederated Tribes of Siletz Indians v. United States, 841 F. Supp. 1479, 1485 n.9 (D. Or. 1994) (“No party argues that establishment of a gaming operation is the only reason to convert off-reservation land from fee to trust for the benefit of an Indian tribe”). The Secretary can take the land into trust before an Indian lands determination issues. See, e.g., Oregon v. Norton, 271 F. Supp. 2d 1270, 1272-73 (D. Or. 2003) (request for IGRA § 20 determination not made until after land taken into trust); 64 Fed. Reg. 17574, 17577 (Apr. 12, 1999) (noting tribe could seek gaming on lands after the decision is made to take it into trust); Oversight Hearing Before the Senate Committee on Indian Affairs Concerning Taking Land Into Trust, 109th CONG. 3 (2005) (Testimony of George T. Skibine, Acting Deputy Ass’t Secretary–Indian Affairs For Pol’y & Econ. Devel., Dep’t of the Interior, May 18, 2005) (“Skibine Testimony”), available at http://indian.senate.gov/2005hrgs/051805hrg/skibine.pdf (last visited Sept. 5, 2007), Amador County’s Request for Judicial Notice, filed herewith, Exhibit 2 (“Amador County’s RJN”) (“... [T]here have been instances where an Indian tribe submitted an application to take land into trust for a non-gaming purpose, and subsequently attempted to change the use of the property to gaming. While this practice is discouraged, it is possible because the United States does not permit deed restrictions to be attached to land owned by the Government, and trust lands are lands owned in fee by the United States for the benefit of an Indian tribe.”).

4 Skibine Testimony, supra, note 3 (emphasis added).



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The two determinations are governed by entirely different statutory schemes—the trust

decision by the Indian Reorganization Act, 25 U.S.C. §§ 461-479 (Lexis 2007), and Indian lands

determinations by IGRA.5 The trust decision is governed by specific regulations of the Department,

see 25 C.F.R. part 151 (Lexis 2007), but those regulations contain no mention of lands

determinations under IGRA, and no regulations currently exist governing such determinations. See

71 Fed. Reg. 58769 (Oct. 5, 2006) (proposed regulations regarding application of Section 20).

Perhaps most significantly, Section 20 itself explicitly provides, “Nothing in this section

shall affect or diminish the authority and responsibility of the Secretary to take land into trust.”

25 U.S.C. § 2719(c) (Lexis 2007) (emphasis added). Relying on this Section, one federal district

court has already rejected a challenge to a trust decision, despite evidence the Tribe planned to seek

gaming on the parcel taken into trust, concluding, “the possibility the Tribe may conduct gaming on

the Oacoma parcel, is irrelevant to the present discussion concerning the Secretary’s decision to

take the land into trust. Although gaming on the Oacoma parcel may develop into a cognizable

issue between the parties, it is a matter that must be addressed on another day. See 25 U.S.C. §

2719(c).” So. Dakota v. United States DOI, 314 F. Supp. 2d 935, 944-45 (D.S.D. 2004).

Because the trust process and the Section 20 process are two entirely separate and distinct

agency actions, there is no justification for the position of the Federal Defendants and the Ione Band

that judicial review of the latter must await completion of the former. See, e.g., Federal

Defendants’ Memorandum In Support of Motion To Dismiss Plaintiff’s Complaint (Dkt. #29), pp.

16:26-17:2 (citing regulations ostensibly providing for judicial review of trust decisions, for the

mistaken proposition that Amador County will not be deprived of judicial review of the Indian lands

determination if this case dismissed, but see Section III.A.3, infra).6

5 See Federal Defendants’ Memorandum In Support of Motion To Dismiss Plaintiff’s

Complaint (Dkt. #29), pp. 4-7 (summarizing the two different statutes). 6 Even if one were to assume, arguendo, that the Section 20 determination is a prerequisite

to the trust decision, as the Federal Defendants and Ione Band urge, that fact still would not preclude judicial review here. As held in Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y. 2007)—a case strongly relied upon by Federal Defendants and the Ione Band—“Whether proposed gaming will be conducted on Indian lands is a critical, threshold jurisdictional determination . . . .” Id. at 323-24 (emphasis added). The Supreme Court has held



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2. The Cason/Artman determination letters are actions by which rights or obligations have been determined, or from which legal consequences will flow.

The foremost legal consequence that will flow from the Indian Lands determinations

challenged herein is that the Ione Band (and the Secretary) are freed of the obligation to conduct

the two-part determination required by Section 20(b)(1)(A) of IGRA. That provision requires that,

unless an exception applies, gaming may not be conducted on lands acquired in trust by the United

States after October 1, 1988, unless the Secretary makes a determination, after consulting with

“appropriate State and local officials” (like Amador County) “that a gaming establishment on

newly acquired lands would be in the best interest of the Indian tribe and its members, and would

not be detrimental to the surrounding community . . . .” 25 U.S.C. § 2719(b)(1)(A) (Lexis 2007).

The two-part determination also requires that the Secretary obtain the concurrence of the State’s

governor before permitting gaming on after-acquired lands. Id. By imposing these requirements,

IGRA protects local interests like those of Amador County, which will be significantly affected by

large-scale authorized gaming operations. The Cason/Artman letters deprive Amador County of

the protections Congress conferred upon them in Section 20.7

The letters, if allowed to stand, would also purport to determine the relative sovereign rights

and obligations of the Ione Band, the Federal Government, and the State of California (and its

subdivisions, like Amador County) over the Plymouth Parcels. As the Tenth Circuit explained in

holding the State of Kansas had standing to challenge a Section 20 “Indian lands” determination,

If the tract qualifies as “Indian lands,” the Tribe exercises a degree of sovereignty over the tract which may allow it the right to establish gaming facilities thereon consistent with IGRA. The State in turn may not extend application of its laws to the tract absent Congressional consent. See S. Rep. 100-446, at 5-6, reprinted in 1988 U.S.C.C.A.N. at 3075. But if the tract does not qualify as “Indian lands,” then IGRA does not apply. In that event, the State exercises a degree of sovereignty over the tract which allows it the right to prohibit gaming thereon regardless of its nature.

that “The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction.” McKart v. United States, 395 U.S. 185, 194 (1969) (emphasis added). See also Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 30 (1974).

7 It does so without soliciting the views of Amador County on the exception’s applicability.



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Kansas v. United States, 249 F.3d at 1223.

The Tenth Circuit consequently concluded, “because the State of Kansas claims the [Indian

Lands determination] places its sovereign interests and public policies at stake, we deem the harm

the State stands to suffer as irreparable if deprived of those interests without first having a full and

fair opportunity to be heard on the merits.” Id. at 1227.8

3. Amador County has no other adequate remedy if judicial review of the Indian Lands determinations is postponed.

If judicial review is denied now, the County of Amador will be without an adequate remedy

that would enable it to protect the rights that Congress has insisted it should have under the two-

part determination. See 25 U.S.C. § 2719(b)(1)(A) (Lexis 2007) (requiring the Secretary to consult

with “appropriate State and local officials” and obtain the approval of the State’s governor before

permitting gaming on after-acquired lands).

Waiting to challenge the trust determination, as urged by the Federal Defendants and Ione

Band, does not provide an adequate remedy. Numerous courts have held that the Quiet Title Act,

28 U.S.C. § 2409a (Lexis 2007), entirely precludes a plaintiff’s suit to the extent it seeks to nullify

an Indian trust acquisition. Carlson v. Tulalip Tribes of Washington, 510 F.2d 1337, 1339 (9th

Cir. 1975); Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956 (10th Cir. 2004); Florida,

Dep’t of Business Regulation v. United States Dep’t of Interior, 768 F.2d 1248, 1254 (11th Cir.

1985). Consequently, any challenge to the trust application must be filed—and an injunction

obtained—before the lands are taken into trust.

The County of Amador will have the narrowest of windows to bring any such challenge. In

response to litigation contesting the Secretary of Interior’s power to take land into trust under the

Indian Reorganization Act,9 the Department has enacted regulations that provide a mere 30 days to

8 This suit is the only forum for Amador County to have a full and fair opportunity to be

heard. As noted above, the County’s views on the applicability of the “restored lands of a restored tribe” exception were never solicited, and the County is informed that the evidence it nevertheless did submit was never considered by Messrs. Cason & Artman.

9 See Dept. of the Interior v. South Dakota, 519 U.S. 919, 117 S. Ct. 286, 286-288 (1996) (Scalia, J., dissenting) (summarizing circumstances of Department’s adoption of regulations



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bring a challenge to a trust decision by the Secretary. 25 C.F.R. § 151.12(b) (Lexis 2007).

While this provision was ostensibly adopted to allow judicial review that might otherwise be

barred by the United States’ sovereign immunity, see 62 Fed. Reg. 18,082 (May 14, 1997), it did so

in the most parsimonious manner possible. Besides the extraordinarily short time frame prescribed,

the regulations provide solely for constructive—rather than actual—notice to interested parties,

either by publication “in the Federal Register, or in a newspaper of general circulation serving the

affected area.” 25 C.F.R. § 151.12(b) (Lexis 2007) (emphasis added).

The regulations also contain no provision for an automatic stay of efforts to take land into

trust once a challenge is filed, so that a party seeking to challenge a trust decision is required to

seek a temporary restraining order unless the Secretary—solely by his good graces—decides to

postpone the final transfer of title to the United States. See 5 U.S.C. § 705 (Lexis 2007) (“When an

agency finds that justice so requires, it may postpone the effective date of action taken by it,

pending judicial review.”); City of Roseville v. Norton, 219 F. Supp. 2d 130, 137-38 (D.D.C. 2002)

(“The United States intended to accept title to the land on July 9, unless [preliminarily] enjoined

from doing so.”); Dept. of the Interior v. South Dakota, 117 S. Ct. at 287 (“it is the position of the

Department of the Interior, as well as that of the Department of Justice, that judicial review of an

IRA land trust acquisition may be obtained by filing suit within the 30-day waiting period, although

action will continue to be barred by the QTA after the United States formally acquires title.”)

(Scalia, J., dissenting) (emphasis added).

And finally, because this 30-day window for judicial review is created entirely by

Department regulations, rather than by statute, there is no reason it could not easily be shortened to

10 days, or 5 days, or 1 day, or no days, at the Secretary’s discretion:

One of the Department of Interior’s own regulations, 25 C.F.R. § 1.2, gives the Secretary “the power to waive or make exceptions to his regulations … in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians.” See 25 C.F.R. § 1.2 (1995); State of Florida v. United States Dep't of Interior, 768 F.2d 1248 at 1250 (11th Cir. 1985), cert. denied, 475 U.S. 1011, 89 L. Ed. 2d 302, 106 S. Ct. 1186 (1986) (“The Secretary

permitting limited judicial review of trust decisions).



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decided to waive consideration of the regulations that purport to guide the exercise of his discretion.”). Since the Secretary has the regulatory power to waive the very administrative regulations of which Plaintiff seeks the benefit, the Plaintiff may be forced to seek relief from the Court on short notice should the Secretary attempt to waive the application of his own regulations. Application of the Quiet Title Act, 28 U.S.C. § 2409a, could potentially leave the Plaintiff without a remedy at all if the Plaintiff’s action were dismissed, and the Secretary later waived the application of 25 C.F.R. § 151.12(b) and acquired title to the land in dispute before the Plaintiff could file a new complaint.

City of Shakopee v. United States, 1997 U.S. Dist. LEXIS 2202, *17-*18 (D. Minn. Feb. 6, 1997)

(Magistrate Judge recommending that motions to dismiss City’s challenge to further proceedings on

tribal trust application be denied) (emphasis added). See also Dep’t of the Interior v. South Dakota,

117 S. Ct. at 287-88 (“The Government concedes only that, if the Secretary chooses to announce

his acquisition decision before the acquisition becomes effective (as the new regulation graciously

requires), judicial review is available.”) (Scalia, J., dissenting) (emphasis in original).

It is perhaps not surprising that the Federal Defendants and the Ione Band would wish to

force the County into the extremely restrictive and precarious process provided by 25 C.F.R. §

151.12(b), but no court has ever yet concluded that this process constitutes an “adequate remedy”

for purposes of precluding review under the Administrative Procedure Act. This Court should not

sanction such an attempt to prejudice the County’s ability to protect its important interests.

4. Existing case law supports the conclusion that Indian Lands determinations are final agency actions subject to judicial review.

Curiously, the Federal Defendants and Ione Band fail to even cite—much less distinguish—

Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001), a published opinion of the Tenth Circuit

Court of Appeals holding that an “‘Indian lands’ determination constitutes a ‘decision’ made by the

NIGC pursuant to § 2710, and therefore, constitutes ‘final agency action’ reviewable under 5

U.S.C. § 702.” Id. at 122210 (citing S. Rep. No. 100-446, at 8 (1988), reprinted in 1988

U.S.C.C.A.N. 3071, 3078 (“All decisions of the [NIGC] are final agency decisions for purposes of

10 While the Kansas Court noted that this point was not contested by the parties, if the

Court disagreed it should have dismissed the case sua sponte for lack of jurisdiction. See, e.g., Int’l Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374, 1377 (9th Cir. 1989).



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appeal to Federal district court.”); Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d

1030, 1049 (11th Cir. 1995) (noting the “expansive” language of § 2714)).

Similarly, early last year the Eastern District of Oklahoma, relying on the Kansas opinion,

rejected the United States’ argument that the Indian Lands determination was not final agency

action but an “advisory opinion, a ‘precursor’ to a decision . . . .’” United Keetoowah Band of

Cherokee Indians in Oklahoma, Case No. CIV-04-340-WH (E.D. Okla. Jan. 26, 2006) (order), pp.

7. See also id. at 8-10 (following Kansas opinion and applying test of Bennett v. Spear to conclude

that “the September 2000 Letter was a ‘final agency action’ reviewable under the APA.”).11

Having ignored the published Court of Appeals opinion in Kansas, Federal Defendants and

the Ione Band urge this Court to follow, instead, an unpublished opinion of the Tenth Circuit,

Miami Tribe of Oklahoma v. United States, 198 Fed. Appx. 686 (10th Cir. 2006), and a district

court opinion, Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y.

2007), that are readily distinguishable from this case. The Court should not permit itself to be

baited into such a mistake.

The Indian Lands determinations challenged in Miami Tribe and Citizens Against Casino

Gambling were issued pursuant to a 2000 Memorandum of Understanding between the Department

of Interior and NIGC (“2000 MOU”). See Amador County’s RJN, filed herewith, Exhibit 3. In

critical ways, the 2000 MOU is considerably different from the May 2006 Memorandum of

Agreement governing the Indian Lands determination in this case.

Unlike the 2006 Memorandum of Agreement, the 2000 MOU did not expressly delegate the

power to make Indian Lands determinations to the Department of Interior in specified

circumstances. Rather, the 2000 MOU provided that “[t]he Department of the Interior shall then

11 Though Kansas and United Keetoowah considered Indian Lands determinations by the

NIGC, the Government should not be permitted to evade review by the simple expedient of having the NICG delegate these determinations to the Department instead. See United Keetoowah, Case No. CIV-04-340-WII (W.D. Okla. Jan. 26, 2006) (order), pp. 4 (noting that NIGC’s argument that the lands determination was not final because not approved by the Chairman, though the agency had acted consistently with that determination for five years, “seems a clever yet unpraiseworthy tactic for making a consequential decision yet avoiding judicial review.”).



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provide such advice and assistance as may be required to allow the NIGC to issue, [sic] a fully

informed decision on any Indian lands questions.” Id. at p. 2 (emphasis added). In other words, the

2000 MOU provided for advice from the Department to the NIGC, but still provided that it was the

NIGC that would have the power to make final determinations regarding Indian Lands. Under the

provisions of that agreement, letters from the Solicitor really were tentative and preliminary.

Under the 2006 Memorandum of Agreement, applicable to this case, however, the NIGC

has expressly delegated its authority to make such determinations to the Department of Interior

under specified circumstances, including those at issue here (i.e., when a trust application is

pending). Consequently, pursuant to the 2006 Agreement the letters of Messrs. Artman and Cason

are the final, binding word on the question, and not tentative, preliminary advice to another agency.

In this respect the challenged letters are the equivalent of the NIGC determinations that the Kansas

and United Keetoowah courts permitted review of as final agency action, rather than the equivalent

of the advisory determinations deemed an “intermediate step” toward final action in Miami Tribe

and Citizens Against Casino Gambling. Citizens Against Casino Gambling, 471 F. Supp. 2d at

322. Unlike the provisions of the 2000 MOU, the 2006 Memorandum of Agreement provides that

the letters challenged herein do “represent the final product of agency deliberation as to whether the

[Plymouth] Parcel[s] [are] gaming-eligible Indian lands.” Id.

B. Amador County Has Standing To Challenge The Cason/Artman Indian Lands Determinations.

The Supreme Court, in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), laid down the

following constitutional test for standing:

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 . . . trace[able] 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.”

Id. at 560-61 (emphasis added).



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“The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a

personal stake in the outcome of the controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court so largely depends for illumination of

difficult . . . questions.’” Flast v. Cohen, 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S.

186 (1962)). “For purposes of ruling on a motion to dismiss for want of standing, both the trial and

reviewing courts must accept as true all material allegations of the complaint, and must construe the

complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975).

Amador County meets each of the Lujan standing requirements.

First of all, the County is imminently threatened with an “invasion of its legally protected

interest” in participating in the two-part determination before gaming may be permitted on the

Plymouth Parcels under IGRA. This is an interest that Congress specifically recognized in requiring

Secretarial “consultation with . . . appropriate State and local officials” under Section 20.

25 U.S.C. § 2719(b)(1)(A) (Lexis 2007). The County is also subject to the actual harm of having

been deprived of adequate environmental review under NEPA before the Indian Lands

determinations were made.

Second, these deprivations are “fairly . . . trace[able] to the challenged” Indian Lands

determinations. With respect to IGRA, the determinations by Mr. Artman and Mr. Cason make the

land eligible for gaming under IGRA as soon as it is taken into trust. Conversely, absent these

determinations the land would not be eligible for gaming without undergoing the two-part process,

specifically designed to allow participation by local entities like Amador County. With respect to

NEPA, the deprivation alleged has already occurred, as the determinations issued without full

NEPA compliance.

And finally, it is extremely “likely,” see Lujan, 504 U.S. at 561, that the harms with which

Amador County is threatened will be redressed by a favorable decision in this case. If the Indian

Lands determinations are nullified by this Court, the only avenue for the Ione Band to seek gaming

on the land is to pursue a two-part determination, again with Amador County’s participation.

Furthermore, such a determination requires NEPA review under Department guidelines, regardless

of the pendency of any trust application. See Office of Indian Gaming Management, Checklist for



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Gaming Acquisitions, Gaming-Related Acquisitions and IGRA Section 20 Determinations (Mar.

2005), Intervenor’s Request for Judicial Notice, Exh. 1, p. 14 (“OIGM Checklist”).

The contentions of Federal Defendants and the Ione Band that the County fails to meet any

of the three Lujan requirements in essence consist of nothing more than this: a claim that any harm

to Amador County is, at this stage of the proceedings, too “speculative” to merit judicial review.12,13

There are several responses to this contention.

First, the Federal Defendants and the Ione Band seek to shift the terms of the debate by

redefining the harms that give rise to this suit. Both parties urge that it is the taking of land into

trust and the actual operation of a gaming facility on the Plymouth Parcels that are alleged to harm

the County.14 While the County certainly believes it will be harmed if a casino ultimately is built in

that location, the harms alleged in this suit are (1) the deprivation of rights to “consultation” under

Section 20’s two-part determination, and (2) the inadequacy of environmental review in connection

with the Indian Lands determinations.15 That these harms may themselves lead to further harms, by

12 See, e.g., Federal Defendants’ Memorandum In Support of Motion To Dismiss Plaintiff’s

Complaint (Dkt. #29), pp. 13:19-20 (with respect to first prong arguing “Plaintiff . . . has failed to allege any injury that is more than speculative”) & 15:12-18 (with respect to second and third prongs arguing, “Plaintiff cannot reasonably articulate how its highly conjectural and contingent injury might be traced to” the Indian Lands determinations, and “Because it is not yet certain if the land at issue will be taken into trust and a gaming facility constructed and operated thereon, it is not possible to determine if this lawsuit will address plaintiffs alleged injury.”); Intervenor’s Memorandum of Points & Authorities (Dkt. #33-3), pp. 12:27 (“the only harms the County discusses in its Complaint are speculative and contingent.”).

13 The purportedly speculative nature of the County’s harms is also essentially the basis of the Federal Defendants’ contention the County fails to meet the prudential standing requirement that there be final agency action. See Federal Defendants’ Memorandum In Support of Motion To Dismiss Plaintiff’s Complaint (Dkt. #29), pp. 16:12-23. The Federal Defendants apparently do not dispute that the County of Amador comes within the “zone of interests” to be protected by IGRA Section 20 and NEPA.

14 See, e.g., Federal Defendants’ Memo. In Support of Motion To Dismiss (Dkt. #29), pp. 13:23-25; Intervenor’s Memo. of Points & Authorities (Dkt. #33-3), pp. 12:25–13:7 & 13:3-5.

15 See, e.g., Complaint (Dkt. #1), ¶¶ 16 (“If allowed to stand, these determinations, which are abuses of discretion, arbitrary, capricious and contrary to law, would mean the Ione Band need not comply with the two-part test in seeking to establish gaming on the Plymouth Parcels, thereby depriving Amador County of the protections Congress mandated it should have in Section 20 of IGRA.”) & 64 (“The Indian Lands determination challenged herein is a major Federal action



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facilitating the process of obtaining an actual casino, does not change the fact that these

deprivations are imminent injuries to the County’s legally protected interests in and of themselves.

See Kansas v. United States, 249 F.3d at 1223-24 (recognizing harms to State’s sovereignty over

parcel subject to lands determination, in spite of “Defendants’ argument that any dispute between

the Tribe and the State as to Class III gaming is not yet ripe for review because compact

negotiations have yet to begin.”).

Instructive on this point is a recent case out of the Fifth Circuit Court of Appeals, Texas v.

United States, __ F.3d __, 2007 U.S. App. LEXIS 19688 (5th Cir. Aug. 17, 2007). In that case,

the State of Texas challenged procedures adopted by the Secretary of Interior, see 25 C.F.R. part

291, which govern circumstances under IGRA where a State refuses to negotiate a Class III gaming

compact with an Indian tribe and also refuses to waive its sovereign immunity against suit under the

Eleventh Amendment. Section 11 of IGRA, 25 U.S.C. § 2710 (Lexis 2007), provides that if a State

refuses to negotiate a tribal-state compact for Class III gaming within 180 days of being requested

to do so by a tribe, the tribe may “file suit against the state in federal court and seek a determination

whether the state negotiated in good faith. § 2710(d)(7). If the court finds the state negotiated in

good faith, the tribe’s proposal fails. On a finding of lack of good faith, however, the court may

order negotiation, then mediation. If the state ultimately rejects a court-appointed mediator’s

proposal, the Secretary ‘shall prescribe, in consultation with the Indian tribe, procedures . . . under

which class III gaming may be conducted.’ § 2710(d)(7)(B).” Id. at *4.

The Supreme Court has held, however, that States retain their immunity from suit under the

Eleventh Amendment, and may defend against a tribe’s suit for a judicial bad-faith determination on

that ground. Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996). In such circumstances, the

Secretary’s regulations (challenged by the State of Texas) provided that “an eligible tribe may

submit a Class III gaming proposal to the Secretary, who then affords the state sixty days to

comment and submit an alternative proposal.” Id. at *6. In certain key respects, the challenged

significantly affecting the quality of the human environment. Defendants herein have failed to perform the environmental review required by NEPA.”).



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regulations depart from the procedures prescribed by IGRA. Id. Specifically, “[t]he difference

between IGRA and the Secretarial Procedures is that IGRA compels appointment of a mediator by

the court only after a judicial finding that the state failed to negotiate in good faith, but under the

Secretarial Procedures, the gaming proposal goes forward without any judicial bad-faith

determination if the state refuses to waive sovereign immunity. The Secretarial Procedures, in sum,

offer two alternatives for a state that insists upon its sovereign immunity: refuse to negotiate,

participate (or not) in an informal conference, and take a chance that the Secretary will not accept

the tribe’s Class III gaming proposal, 25 C.F.R. § 291.8; or submit its ‘last best proposal’ to a

mediator, with the certainty that Class III gaming must be approved on the mediator’s or the

Secretary’s terms.” Id. at *6-*7. After the Kickapoo Tribe submitted a proposal for gaming in

Texas, the Secretary invited Texas to comment on the proposal. “Texas responded with [a] lawsuit

asking the court to declare the Secretarial Procedures unauthorized and unconstitutional.” Texas v.

United States, __ F.3d __, 2007 U.S. App. LEXIS 19688 at *7.

The Department of Interior and the Kickapoo Tribe urged that the State of Texas lacked

standing to challenge the regulations, because “Texas faces nothing more than the possibility that

the Secretary might someday approve of gaming procedures for Kickapoo land . . . .” Id. at *12.

The Court rejected this contention, however, and accepted Texas’ argument that it had standing

because “the Secretarial Procedures subject[ed] Texas to a process for approval of Class III

gaming that omits IGRA’s procedural safeguards and thus exceeds the Secretary’s regulatory

authority.” Id. at *11 (emphasis added). Likewise here, the Cason/Artman Indian Lands

determinations authorize a “process for approval of Class III gaming that omits IGRA’s procedural

safeguards” provided by the two-part process for local entities like Amador County.

Second, the Federal Defendants seek to redefine the degree of likelihood of injury that

Amador County must allege to establish standing, urging that the County must show a “certainty”

of harm. See, e.g., Federal Defendants’ Memorandum In Support of Motion To Dismiss Plaintiff’s

Complaint (Dkt. #29), pp. 13:23-24. In fact, however, the Supreme Court has often held that

“threatened” injuries can give rise to standing. See Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). The Court too has spoken of the



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need for a “substantial probability” of harm, Warth, 422 U.S. at 504, and of the requirement that the

plaintiff “demonstrate a realistic danger of sustaining a direct injury as a result” of the governmental

action at issue. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). See also

Dan Caputo Co. v. Russian River County Sanitation Dist., 749 F.2d 571, 1984 U.S. App. LEXIS

26793, *7-*8 (9th Cir. 1984) (“Caputo/Wagner does meet the injury-in-fact half of the standing test

applicable to challenges to agency action. . . . From the allegations, ‘it reasonably could be inferred

that . . . there is a substantial probability’ that Caputo/Wagner suffers harm from the reallocation.”

(quoting Warth, 422 U.S. at 504)).

And finally, the notion that it is “highly conjectural” the Department will take the Plymouth

Parcels into trust now that the Indian Lands determinations have issued is laughable. According to

a September 2005 Report by the Department’s Inspector General, the Bureau of Indian Affairs

decided 44 trust applications for the stated purpose of gaming on the lands in question from

October 1, 1988 (when IGRA took effect) to June 16, 2005.16 Of those 44 trust applications, 36

were approved (81.82%) and only 8 were denied. Moreover, of the eight applications that were

denied, at least 5 were denied because the Governor of the State in question blocked the casino

under the two-part determination after the Secretary had given his approval—one of the very

protections Amador County is deprived of as a result of the Indian Lands determinations challenged

herein.17 That means that the Secretary of the Interior approved taking land into trust for gaming

purposes in at least 41 of the 44 applications decided by June 2005, or 93.2% of the time. To

suggest, therefore, that there is no “substantial probability” the County will suffer harm, even as

defined by the Federal Defendants and the Band, begs belief.

///

16 See Amador County’s RJN, filed herewith, Exhibit 4. 17 See Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisc., 259 F. Supp.

2d 783, 787 (W.D. Wisc. 2003) (Nos. 38 & 39 [Lac Courte Oreilles/Red Cliff/Sokaogan Chippewa]); Final Report of the Indep. Counsel In Re: Bruce Edward Babbitt (Aug. 22, 2000), pp. 39-40, Amador County’s RJN, Exh. 5 (No. 41 [Sault Ste. Marie Tribe of Mich.]); Confederated Tribes of Siletz Indians, 841 F. Supp. at 1482-83 (No. 42 [Siletz Tribe of Wash.]); Skibine Testimony, supra, note 3 (No. 44 [Jena Band of Choctaw of La.]).



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C. The Dispute In This Lawsuit Is Ripe For Review.

Not surprisingly, the defects in Defendants’ and Intervenor’s ripeness arguments closely

track the defects in their standing argument. See Texas v. United States, __ F.3d __, 2007 U.S.

App. LEXIS 19688 at *9 (“the doctrines [of standing and ripeness] often overlap in practice”).

Because both parties mischaracterize (1) the nature of the harms that Amador County now faces as

a result of the Indian Lands determinations, (2) the legally requisite degree of likelihood that the

harm will occur, (3) the actual degree of likelihood that the land will be taken into trust, and (4) the

relationship of the Section 20 Indian Lands determination to the trust determination under the

Indian Reorganization Act, they also wrongly conclude that this case is not yet ripe.

“To determine if a case is ripe for adjudication, a court must evaluate (1) the fitness of the

issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.”

Texas, __ F.3d __, 2007 U.S. App. LEXIS 19688 at *16 (citing Abbott Labs. v. Gardner, 387 U.S.

136, 148-49 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977)).

This case presents a concrete dispute, based upon specific facts, regarding the propriety of

already-completed agency actions, the Indian Lands determinations. In the language of the Ione

Band itself, with respect to the Section 20 issue “the relevant issues are sufficiently focused to

permit judicial resolution without further factual development.” Intervenor’s Memorandum of

Points & Authorities (Dkt. #33-3), pp. 14:10-11. No future, contingent facts will alter the question

presented and (wrongly) resolved in the Indian Lands determinations, and—as discussed above—

the determinations themselves are final. No further review of the question presented (whether the

Plymouth Parcels are “restored lands of a restored tribe”) is required, or even anticipated by the

process the Department and the NIGC articulated in the Memorandum of Agreement.

Again, the recent Fifth Circuit case from Texas provides illumination. In that case, the

United States and the Tribe argued “that Texas’s alleged injury is the speculative harm that could

result if the Secretary were ultimately to approve gaming procedures for Kickapoo land.” Texas v.

United States, __ F.3d __, 2007 U.S. App. LEXIS 19688 at *18. The Fifth Circuit—in language

equally applicable here—rejected this argument, noting, “this is incorrect, as Texas claims present

injury from submission to an invalid agency process, regardless whether the Secretary ultimately



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allows gaming on Kickapoo land.” Id. Likewise in this case, as discussed above, it is not gaming

on the Plymouth Parcels per se that gives rise to the injuries alleged in the Complaint, but the

invalid agency process the Department has, through the Indian Lands determinations, authorized—a

process that excludes the two-part determination, and does so without adequate NEPA review.

Nor, for the reasons discussed above, is there any merit to the contention of the Federal

Defendants and Ione Band that the County will suffer no cognizable hardship if judicial review is

delayed until the trust decision is made. The only basis for a legal challenge to the trust

determination is found in extremely restrictive regulations, and even the little bit of protection

purportedly afforded by these regulations may be disregarded by the Secretary in his discretion.

“Application of the Quiet Title Act, 28 U.S.C. § 2409a, could potentially leave the Plaintiff without

a remedy at all if the Plaintiff’s action were dismissed, and the Secretary later waived the application

of 25 C.F.R. § 151.12(b) and acquired title to the land in dispute before the Plaintiff could file a

new complaint.” See City of Shakopee, 1997 U.S. Dist. LEXIS 2202 at *17-*18.

D. The County Of Amador Has Stated A Claim For Relief Under NEPA.

Finally, there is no merit to the Ione Band’s position that the County has failed to state a

claim under NEPA.18

The regulations adopted by the Council on Environmental Quality to implement NEPA

provide that “[f]ederal actions tend to fall into one of the following categories:

(1) Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency’s policies which will result in or substantially alter agency programs.

(2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based.

(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

(4) Approval of specific projects, such as construction or management activities

18 Tellingly, the Federal Defendants have not even tried to advance this argument.



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located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.

40 C.F.R. § 1508.18(b) (Lexis 2007) (emphasis added).19

The first two categories are relevant, because they both describe the basic effect of the

Indian lands determinations. First, those determinations constitute “adoption of official policy” in

the form of an “interpretation,” and a “formal document establishing [the Department]’s policies”

and “substantially alter[ing]” the Department’s position with respect to whether a two-part

determination is required before gaming may be authorized on the Plymouth Parcels. 40 C.F.R. §

1508.18(b)(1) (Lexis 2007). Alternatively, the determinations constitute “[a]doption of formal

plans, such as official documents prepared or approved by federal agencies which guide or prescribe

alternative uses of Federal resources, upon which future agency actions will be based.” Rather than

devoting the appropriate Federal resources to conducting the extensive evaluation required by the

two-part process, the Department has concluded that it may bypass that process entirely.

The fourth category is relevant because it demonstrates that planning a specific project, like

a casino, is only one type of decision that may constitute “federal action,” not the only type as the

Ione Band suggests.

The Department has expressly recognized that it “must comply with the requirements of

NEPA when making recommendations pursuant to the two-part determination in Section

20(b)(1)(A) of the IGRA,” even when that determination is not made in connection with a pending

trust application. OIGM Checklist, p. 14. This again is consistent with the fact that IGRA Section

20 determinations and trust determinations under the Indian Reorganization Act are two separate

and distinct agency actions. Having recognized this obligation, there is no excuse for concluding

that the Department is somehow exempt from the NEPA requirements when it avoids a two-part

determination by finding another provision of Section 20 applicable instead. The two-part

determination and the “restored lands for a restored tribe” determination are different, but

19 “‘Major Federal action’ includes actions with effects that may be major and which are

potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (§ 1508.27).” 40 C.F.R. § 1508.18 (Lexis 2007).



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functionally equivalent determinations under IGRA. They are two different means of authorizing

the same activity. It is therefore only appropriate that they be subject to equivalent environmental

review, and the Department’s failure to conduct such review before issuing the Indian Lands

determinations was contrary to law.

Westlands Water Dist. v. United States, Dep’t of the Interior, 850 F. Supp. 1388 (E.D. Cal.

1994), is relevant here. In that case, the Government sought “to dismiss the claim that [] biological

opinions require the preparation of an EIS, because biological opinions are merely advisory

documents, not binding ‘major federal actions.’” Id. at 1420. This Court rejected that argument,

holding that the biological opinions, though not binding, did require preparation of an EIS, and

noting, “Formal plans and official documents that guide or prescribe alternative uses, on which

future agency action will be based, are “federal actions” for NEPA purposes.” Id. at 1420.

IV. CONCLUSION .

The Federal Defendants and Intervenor plainly want to postpone judicial review of the

Indian Lands determinations challenged herein, and would have the County attempt to protect its

important interests by submitting itself to the uncertain protections of the Department’s regulations

providing for very narrow judicial review of trust decisions.

This they may not do. The Indian Lands determinations constitute final agency action,

subject to judicial review under the Administrative Procedure Act. They represent the

“consummation” of the agency’s decisionmaking process with respect to the question of whether

the Plymouth Parcels qualify for the “restored lands of a restored tribe” exception and these are

actions “by which ‘rights or obligations have been determined’, or from which ‘legal consequences

will flow’.” Bennett, 520 U.S. at 177-78. They are the final product of the administrative process

defined by the 2006 Memorandum of Agreement, and will have the significant legal consequences

of (1) depriving Amador County of participatory rights that Congress has specifically conferred

upon local governments in Section 20 of IGRA, and (2) purporting to resolve the respective

sovereign authority of federal, state and local, and tribal officials over the Plymouth Parcels.

Relevant case law supports the conclusion that the Indian Lands determinations constitute

final agency action. See Kansas v. United States, 249 F.3d 1213; United Keetoowah, Case No.



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CIV-04-340-WH (E.D. Okla. Jan. 26, 2006) (order). The cases relied upon by the Federal

Defendants and the Ione Band for the contrary position are distinguishable in fundamental ways.

Moreover, the Artman and Cason letters constitute final agency action notwithstanding the

disingenuous attempts of the Federal Defendants and the Ione Band to convince this Court that the

determinations are part of the trust process under the Indian Reorganization Act.

Amador County also has standing to challenge these actions, as its participatory rights under

IGRA and environmental interests under NEPA are imminently threatened. The County’s claims

are ripe. The contrary claims by Defendants and Intervenor mischaracterize (1) the nature of the

harms that Amador County now faces as a result of the Indian Lands determinations, (2) the legally

requisite degree of likelihood that the harm will occur, (3) the actual degree of likelihood that the

land will be taken into trust, and (4) the relationship of the Section 20 Indian Lands determination

to the IRA trust determination.

Finally, Amador County has stated a cause of action under NEPA, because the Indian Lands

determinations are “major federal actions significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(1)(c) (Lexis 2007). Environmental review under NEPA was

required before issuance of the determinations, but Defendants have ignored this requirement.

For all the foregoing reasons, the motions to dismiss by the Federal Defendants and the Ione

Band should be DENIED.

Respectfully submitted,

DATED: September 7, 2007 NIELSEN, MERKSAMER, PARRINELLO MUELLER & NAYLOR, LLP

By: /s/ James R. Parrinello . James R. Parrinello By: /s/ Cathy A. Christian . Cathy A. Christian By: /s/ Christopher E. Skinnell .

Christopher E. Skinnell Attorneys for Plaintiff COUNTY OF AMADOR, CALIFORNIA


Documents

NIELSEN, MERKSAMER, PARRINELLO, MUELLER ......Concerning Taking Land Into Trust , 109th CONG. 3 (2005) (Testimony of George T. Skibine, Acting Deputy Ass’t Secretary–Indian Affairs