UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. The above-entitled matter came on for oral

Transcription

1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 0 AMADOR COUNTY, CALIFORNIA, v. Appellant, KENNETH LEE SALAZAR, SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., Appellees. No Tuesday, March, 0 Washington, D.C. The above-entitled matter came on for oral argument pursuant to notice. BEFORE: CHIEF JUDGE SENTELLE, CIRCUIT JUDGE TATEL, AND SENIOR CIRCUIT JUDGE EDWARDS APPEARANCES: ON BEHALF OF THE APPELLANT: DENNIS J. WHITTLESEY, ESQ. ON BEHALF OF THE APPELLEES: KATHERINE W. HAZARD, ESQ. Deposition Services, Inc. Middlebrook Road, Suite 0 Germantown, MD 0 Tel: (0) - Fax: (0) - info@depositionservices.com

2 PLU C O N T E N T S ORAL ARGUMENT OF: PAGE Dennis J. Whittlesey, Esq. On Behalf of the Appellant ; Katherine W. Hazard, Esq. On Behalf of the Appellees

3 PLU 0 0 P R O C E E D I N G S THE CLERK: Case number 0-0, Amador County, California, Appellant v. Kenneth Lee Salazar, Secretary, United States Department of the Interior, et al. Mr. Whittlesey for the Appellant; Ms. Hazard for the Appellees. ORAL ARGUMENT OF DENNIS J. WHITTLESEY, ESQ. ON BEHALF OF THE APPELLANT MR. WHITTLESEY: May it please the Court, my name is Dennis Whittlesey representing the Plaintiff, or the Appellant, Amador County. At the table with me is my partner and colleague, Erin Gravelyn, a member of the bar of the State of Michigan. Unless the Court has questions about standing, which we think we fully addressed in our briefs, the issue I want to talk about is the issue that we appealed, which is whether there can be Administrative Procedure Act review of a no action approval of gaming compact under the Indian Gaming Regulatory Act, or as I call it IGRA, others say IGRA. That's a school of thought that is widely divided. We believe that the Court was absolutely wrong in citing the cases that it did for the proposition that there should be no appellate review, and for the proposition that had been adjudicated. In the first place, the Court largely relied on a Florida case in the Northern District of Florida, PPI, in which the Court cited the lower court decision in Lac

4 PLU 0 0 Du Flambeau, but ignored the subsequent but prior to its decision in Florida the Seventh Circuit's determination that the, basically rejecting the (indiscernible) dicta upon which the PPI court was relying. And so, our contention -- well, I know of no court that has stated that the no action compact approval is not subject to APA review. Our position -- JUDGE SENTELLE: Do you know one that says it is? MR. WHITTLESEY: The only two that I know of are the lower court in Lac Du Flambeau and the PPI court relying on that case in Florida, and our court. Well, and actually, the lower court in Lac Du Flambeau sort of said that, but did not, but it was already dicta. But I think the important thing is that in the Seventh Circuit looked at Lac Du Flambeau it expressed the statement that, and actually denied the appeal on other grounds, that there was no Secretary review. Now, the Secretary argued, I mean, no APA review. The Secretary argued that, and the Court observed that well, there might be counter-arguments to the Secretary's opinion, the Secretary's logic in this case, but they were not made in that case, and indeed -- JUDGE SENTELLE: What would there be to review other than what the statute leaves open, that is the consistency of the gambling contract with the statute? Is there anything else to review?

5 PLU 0 0 MR. WHITTLESEY: No. No. In this case not. JUDGE SENTELLE: And nobody says we can't review the consistency with the statute, did it? MR. WHITTLESEY: All right. The Secretary had three decisions, his choice of three decisions, he can approve it affirmatively. JUDGE SENTELLE: Yes. MR. WHITTLESEY: He can disapprove it, but he may do so only if it is illegal, and/or he can allow it to become final by operation of law, and then the bromide is well, to the extent that it's not inconsistent with the law. JUDGE SENTELLE: So, the only thing left for us to review would be the consistency with law, with IGRA with the statute, right? MR. WHITTLESEY: That would be correct, Your Honor. JUDGE SENTELLE: Right. So, do you really need this argument about whether the Secretary's decision is reviewable? "Decision" is reviewable, per se since all we could review anyway is the same thing the statute leaves open, and that is the consistency with the Act, right? MR. WHITTLESEY: That's correct, Your Honor. JUDGE SENTELLE: Okay. MR. WHITTLESEY: But except for the fact that there's the meaning of the law, and the Court said well, there's discretion as to allowing an illegal compact to become

6 PLU 0 0 law, except in this instance going to Overton Park there is a standard, there is law to apply -- JUDGE SENTELLE: Okay. MR. WHITTLESEY: -- which is whether or not Indian -- JUDGE SENTELLE: How is this contract inconsistent with the statute? MR. WHITTLESEY: With the statute? JUDGE SENTELLE: Yes. The only -- MR. WHITTLESEY: Well, the statute -- JUDGE SENTELLE: -- issue we have here is whether this is Indian land, right? MR. WHITTLESEY: The statute says gaming can only be conducted on Indian lands. JUDGE SENTELLE: Right. MR. WHITTLESEY: And so our allegation -- JUDGE SENTELLE: I think I just said isn't that the only issue here is whether -- MR. WHITTLESEY: That -- JUDGE SENTELLE: -- this is Indian land? MR. WHITTLESEY: That's the issue. Well, the issue here is whether there should be APA review at the lower court, because the Court dismissed it with no consideration of the issues. He just simply said citing PPI in the lower case decision in Lac Du Flambeau that there's no administrative

7 PLU 0 0 JUDGE SENTELLE: All right. Since it is an issue -- MR. WHITTLESEY: -- review of a -- JUDGE SENTELLE: -- of law -- MR. WHITTLESEY: I'm sorry? JUDGE SENTELLE: Since it is an issue of law we can take that de novo, right? MR. WHITTLESEY: That's correct, Your Honor. JUDGE SENTELLE: So, isn't the issue then really whether this is Indian land or not? MR. WHITTLESEY: Well, we never got there. The Court -- JUDGE EDWARDS: No, but we're looking at the same thing the District Court did. MR. WHITTLESEY: All right. All right. Well, let me -- JUDGE EDWARDS: We don't defer to them -- MR. WHITTLESEY: Then let's go there. JUDGE EDWARDS: -- in Agency cases where there is Agency review the District Court doesn't find us pursuant to any standard of review, we're looking at it anew. JUDGE TATEL: And -- MR. WHITTLESEY: All right. JUDGE TATEL: -- the Government, just to focus on this, the Government's position is the legal issue here is easy because of the Hardwick judgment.

8 PLU MR. WHITTLESEY: I'm sorry, Judge Tatel, I didn't hear that. 0 0 JUDGE TATEL: That the Government says look, the legal issue, Judge Sentelle, Chief Judge Sentelle asked you whether the only issue is whether or not the compact is in compliance with law, and that turns on whether it's Indian country, right? MR. WHITTLESEY: That's correct. JUDGE TATEL: And the Government says the Hardwick judgment says it's Indian country. So, if we agree with you that this is a reviewable decision then why doesn't the Hardwick judgment resolve the only legal issue that you've conceded is before us? MR. WHITTLESEY: The Hardwick stipulation? JUDGE TATEL: Yes. JUDGE EDWARDS: Yes. MR. WHITTLESEY: Well, I think we've addressed that. JUDGE TATEL: Well -- MR. WHITTLESEY: Hardwick only precludes our raising the reservation issue -- JUDGE TATEL: Well, but suppose we don't agree with that. I mean, I understand your argument, your argument is that this was about taxes, and that we should view all this language in the Hardwick decree as relating only to taxes, right?

9 PLU 0 0 MR. WHITTLESEY: That was Hardwick. JUDGE TATEL: But that's not what this says. I mean, it says the Hardwick decree is, the Hardwick agreement is very broad, it says the ranch area is declared to be Indian country, it doesn't say it's declared to be Indian country for purposes of county tax assessments. And the county goes on in the judgment to agree that it will be treated like any other reservation under all federal laws applicable to them. MR. WHITTLESEY: Well, Hardwick also, though, if you read it, Judge Tatel, in its entirety -- JUDGE TATEL: I did, I read it in its entirety -- MR. WHITTLESEY: -- particularly when -- JUDGE TATEL: -- completely. MR. WHITTLESEY: I'm sorry? JUDGE TATEL: I did, I read it the whole thing. MR. WHITTLESEY: And so, if you'll notice, though -- JUDGE TATEL: Yes. MR. WHITTLESEY: -- the parties to Hardwick are Amador County through its Board of Supervisors and its tax assessor, and what is described as the class plaintiffs, the members -- JUDGE TATEL: Yes. MR. WHITTLESEY: -- living on the land at the time of termination -- JUDGE TATEL: Yes.

10 PLU MR. WHITTLESEY: -- so that it's an individual Indian presumably, although never named, and the county -- JUDGE TATEL: Yes. MR. WHITTLESEY: -- and it was a tax settlement. Indeed -- JUDGE TATEL: But I'm talking about the language of the agreement itself. The language of the agreement is far broader than just a tax settlement. You've got these stipulations in here that are pretty broad, and I'm just saying, I'm asking you the question, suppose at this stage of the litigation we don't buy your argument that we should view this broad language in terms of just being a tax case? MR. WHITTLESEY: Well -- JUDGE TATEL: What do we do then? Should we just -- what do we do at that point? MR. WHITTLESEY: I guess all I can say to that is the only reason why we should be bound by that stipulation is a product either of collateral estoppel or res judicata, and the principles are not present in this case for the application of either principle. JUDGE TATEL: Why is that? MR. WHITTLESEY: Well, because -- JUDGE TATEL: In your brief you point out that this issue preclusion applies even when you have a consent judgment, and it turns on the question of the intent of the

11 PLU 0 0 parties, right? MR. WHITTLESEY: Well -- JUDGE TATEL: So -- MR. WHITTLESEY: -- I think we laid out why those thresholds don't apply. We did stipulate it should be treated as Indian country -- JUDGE SENTELLE: Yes. MR. WHITTLESEY: -- however, Indian country has three definitions under Section, and it could be one of any three that we were stipulating to. That was not spelled out, this was a very inarticulate document drafted and presented to us for execution. JUDGE TATEL: Yes, but this is the only document we have before us. We can't take evidence on it, we can't hear testimony, we just have this document in front of us. MR. WHITTLESEY: That's correct. JUDGE TATEL: And the document contains these very broad stipulations. MR. WHITTLESEY: I'm sorry, I didn't hear that. JUDGE TATEL: The document -- MR. WHITTLESEY: You have a low voice, Judge, and I am -- JUDGE TATEL: I'm sorry. MR. WHITTLESEY: -- hard of hearing. I apologize. JUDGE TATEL: Here, let me see what I can do. Those

12 PLU 0 0 automated telephone machines can't understand my voice either, so -- MR. WHITTLESEY: You've always been very articulate in my experience. JUDGE TATEL: And you argue in your brief it's a question of what the parties intended, right? MR. WHITTLESEY: Correct. JUDGE TATEL: Okay. Well, how can we decide that? Don't we have to remand it? MR. WHITTLESEY: Well, I would respectfully submit it does need to be remanded for consideration -- JUDGE TATEL: Yes. MR. WHITTLESEY: -- because there was no consideration of the merits, and I -- JUDGE TATEL: Okay. What would you show if we were to do that? MR. WHITTLESEY: If we go back below? JUDGE TATEL: Yes. What would you show, what sort of evidence would you introduce to show that, that we don't now have before us that this document is something narrower than it looks like? How would you make your case? In other words, do we need a remand? What do you have other than your interpretation of this language? MR. WHITTLESEY: Well -- JUDGE TATEL: Because we could do that, right?

13 PLU 0 0 MR. WHITTLESEY: You can -- JUDGE TATEL: We only need to remand it -- MR. WHITTLESEY: -- do that. JUDGE TATEL: -- if we have to, if we need evidence -- MR. WHITTLESEY: Right. JUDGE TATEL: -- right? MR. WHITTLESEY: You can do that, Your Honor. And if you'll look at paragraph f -- JUDGE TATEL: Yes. MR. WHITTLESEY: -- of the stipulation it specifically said that if the agreed upon deadline for trust status of this land is not met then the individual Indian can be assessed tax on his property unless, by the County, unless and until he files a tax exemption form. Well, this property is not even owned by an individual Indian to which the stipulation pertains. JUDGE SENTELLE: Where is the title now? MR. WHITTLESEY: The title is held in fee by the Buena Vista band of Me-Wuk Indians. And that's affirmatively and clearly alleged in our complaint, I believe at paragraph. So that the very -- and the reservation status would be inconsistent with paragraph, section, with section g. JUDGE SENTELLE: How about the term Indian land as definition in Section 0()(b), any lands titled of which is

14 PLU 0 0 either held in trust...or held by any individual tribe. MR. WHITTLESEY: Correct. JUDGE SENTELLE: Why isn't that within the definition, which is the applicable definition here -- MR. WHITTLESEY: Well -- JUDGE SENTELLE: -- under 0()(b)? MR. WHITTLESEY: It would be if this is reservation land. JUDGE SENTELLE: That doesn't say reservation land. It defines Indian lands two ways, the first of which is all lands within the limits of any Indian reservation. The second definition says Indian lands titled of which is either held in trust by the United States for the benefit of an Indian tribe, or individual, or held by any Indian tribe or individual subject to restriction by the United States against alienation, and over which a tribe exercises governmental power. MR. WHITTLESEY: I'm sorry. I misunderstood your question. Okay. JUDGE SENTELLE: Yes. So, why isn't this under ()(b)? MR. WHITTLESEY: The land is not in trust, it is owned in fee by -- JUDGE SENTELLE: It's not in trust, but it's -- the title is held by an Indian tribe.

15 PLU 0 0 MR. WHITTLESEY: It's -- JUDGE SENTELLE: No, it is possible that there is not an alienation restriction, which can take you down to ()(b), but I don't know that from the record. MR. WHITTLESEY: All right. That is a -- and that's not been an issue in this case. Restricted fee is a very, is a narrow ownership status, which I think Government Counsel would agree, and it's, frankly other than in states such as Oklahoma, fairly rare. In this case, though, if you look at the land determination opinion written by the NIGC's general counsel, and concurred in by the Office of Solicitor of Interior, but not the Secretary, it's stated that the genesis, or the foundation for the claim for gaming is reservation status. And indeed, that's precisely the way the tribe pursued it. So -- JUDGE SENTELLE: So, that would go -- MR. WHITTLESEY: -- reservation status is -- JUDGE SENTELLE: -- that would go back to the stipulation. MR. WHITTLESEY: And that -- JUDGE TATEL: Right. MR. WHITTLESEY: -- goes back to the stipulation, but if you look at the stipulation, the very notion of reservation status is inconsistent where paragraphs F and G, ()(f) and (g) which says hey, if this individual Indian does

16 PLU 0 0 not get this land into trust by December, the land can be taxable once again, unless the individual Indian, by the way not the tribe, can, will file tax exemption forms in a form agreed upon by their parties. So, the notion of a permanent reservation status is absolutely belied by the Hardwick stipulation itself, and by subsequent facts. So, I think we'll get back to whether this is a reservation as a matter of law, because that's the foundation for the Land Determinations opinion, and indeed that's the premise under which this case, I believe -- JUDGE SENTELLE: Okay. JUDGE TATEL: So, then -- MR. WHITTLESEY: -- Ms. Hazard will agree -- JUDGE TATEL: I'm sorry. JUDGE SENTELLE: Wait, wait. Go ahead. MR. WHITTLESEY: -- has been, I've been brief. JUDGE TATEL: So, then are you asking us to rule that, or to remand, since the District Court didn't look at this issue, to remand it to the District Court? In other words, to rule that this is reviewable, that A you have standing; B it's reviewable, that is the Secretary's nonaction; and C to therefore remand it to the District Court to address this question, is that what you're seeking? MR. WHITTLESEY: That's correct. JUDGE SENTELLE: Which is correct?

17 PLU 0 0 JUDGE TATEL: You're not asking us to actually make the judgment about what Hardwick MR. WHITTLESEY: No, I wrote the Section -- JUDGE TATEL: Yes. MR. WHITTLESEY: -- Judge Tatel, almost as a, to explain the case a little bit. JUDGE TATEL: Right. MR. WHITTLESEY: The underlying -- JUDGE TATEL: Okay. MR. WHITTLESEY: -- case, but we're not asking for that relief. JUDGE TATEL: Okay. You're asking for remand? MR. WHITTLESEY: We're asking for remand so -- JUDGE TATEL: Okay. MR. WHITTLESEY: -- we can have a hearing -- JUDGE TATEL: Got you. MR. WHITTLESEY: -- in front of the judge. JUDGE TATEL: Okay. That's very helpful. JUDGE SENTELLE: Okay. JUDGE TATEL: Thank you. Good. MR. WHITTLESEY: Okay. JUDGE SENTELLE: Okay. MR. WHITTLESEY: Thank you. JUDGE SENTELLE: Your time is -- MR. WHITTLESEY: I think I used all --

18 PLU JUDGE SENTELLE: -- up, Counsel, and -- MR. WHITTLESEY: -- my time, so I guess if I could JUDGE SENTELLE: -- we'll give you back a couple of minutes for rebuttal -- MR. WHITTLESEY: Okay. Thank you, Your Honor. JUDGE SENTELLE: -- if it's necessary. We'll hear from the Government. ORAL ARGUMENT OF KATHERINE W. HAZARD, ESQ. ON BEHALF OF THE APPELLEES MS. HAZARD: Good morning, may it please the Court, I'm Katherine Hazard here on behalf of the Secretary of the Interior. Regarding standing, I just wanted to make a couple of points regarding prudential standing. JUDGE SENTELLE: All right. Now, constitutional standing is pretty well taken out of the case by that intervening decision in Patcheck (phonetic sp.), right? MS. HAZARD: No, I don't think so, Your Honor. JUDGE SENTELLE: You don't think so? MS. HAZARD: No, I don't. JUDGE SENTELLE: Well -- MS. HAZARD: Because in -- JUDGE SENTELLE: Now, I will agree that you had a good constitutional standing argument prior to Patcheck, but

19 PLU 0 0 Patcheck came down after your brief, and you did not have a chance to deal with it, but why doesn't that answer the question? MS. HAZARD: Well, Patcheck, first of all, it involved the Indian Reorganization Act, not IGRA. But -- JUDGE SENTELLE: I understand that, but weren't the -- MS. HAZARD: Right. But -- JUDGE SENTELLE: -- asserted injuries -- MS. HAZARD: Similar -- JUDGE SENTELLE: -- and causation, and redressability very parallel to what we have here? MS. HAZARD: The allegations of injury are very parallel, Your Honor. JUDGE SENTELLE: Yes. MS. HAZARD: But in Patcheck there was no agreement by the plaintiff to treat the tribe in a particular way, so it's -- JUDGE SENTELLE: Counsel, if the Secretary went back and decided this and decided it the opposite way to what had occurred in the matter of law, then the alleged harms here would be affected just in the same fashion as the harms in Patcheck if the decision had been reversed there. I understand that was convoluted, but is that not correct? MS. HAZARD: Yes, it is.

20 PLU JUDGE SENTELLE: Yes. So, you really don't, after Patcheck you really don't have a constitutional standing argument, do you? MS. HAZARD: Well, our constitutional standing, we might not have one that you agree with, but our constitutional standing argument -- JUDGE SENTELLE: If I don't agree with it you don't have one. You studied the standing law of this circuit. I may be wrong the other direction sometimes. MS. HAZARD: Yes, I have. JUDGE SENTELLE: But if I say there's standing there's probably standing. MS. HAZARD: Our best case, Your Honor, and the one on which we rely is the Brotherhood of Locomotive Engineers, and that is our basis for saying there's no constitutional standing. JUDGE TATEL: Don't you have a more fundamental problem, which is the District Court found that the County would be injured, and you don't challenge those findings? MS. HAZARD: No, we don't. That's right. JUDGE TATEL: So, doesn't that end that right there? We don't even have to look at any cases. I mean, that's the end of it. The District Court found there was injury, you don't challenge it, end of case, I mean, end of standing argument.

21 PLU 0 0 MS. HAZARD: Well -- JUDGE SENTELLE: End of standing argument. JUDGE TATEL: I mean, what's left to say about it? MS. HAZARD: What's left to say is that the Court did not in the standing context consider the effect of the stipulated judgment. JUDGE TATEL: That's the merits of the case. That has nothing to do with standing. MS. HAZARD: I'll move on to prudential standing. JUDGE TATEL: All right. JUDGE SENTELLE: If you do so, do it briefly, because -- JUDGE TATEL: Yes. JUDGE SENTELLE: -- you may want to get to the merits. MS. HAZARD: All right. In our view IGRA bars review by the County, and their efforts here are to undo an agreement that was negotiated by the state with the tribe, by the governor, and approved by the state legislature. The structure of IGRA contemplates that the County participate through political means, but that it does not contemplate that after an agreement has been negotiated between a state and a tribe that a subsidiary of one of the parties can come undo the agreement. JUDGE TATEL: But the Secretary approved the

22 PLU 0 0 agreement, that's the argument, that's the Agency action they're challenging. JUDGE SENTELLE: Yes. And the idea that -- JUDGE TATEL: They're challenging the Secretary's approval of it, and we have a very strong assumption that Agency actions like that are reviewable unless you can find, you know, unless the statute says it isn't reviewable, or unless it's somehow committed to Agency discretion. That's what they're challenging. MS. HAZARD: Right. I understand that -- JUDGE TATEL: So -- MS. HAZARD: -- Your Honor. JUDGE TATEL: Yes. MS. HAZARD: So, on the merits -- JUDGE TATEL: Well, let me just ask you one question. You rely very heavily on Sprint -- MS. HAZARD: Yes. JUDGE TATEL: -- right? For your argument that -- MS. HAZARD: Yes. JUDGE TATEL: -- this is not reviewable? Let me ask you this about it seems to me that the statutes in Sprint and in AT&T, which Sprint relied on are different because here we have Section 0(d)()(C), right? MS. HAZARD: Right. JUDGE TATEL: Which says that when the Secretary

23 PLU 0 0 doesn't act it's approved, but only to the extent that the compact is consistent with the provisions of this chapter. MS. HAZARD: Right. JUDGE TATEL: Now, we didn't have a statute like that in Sprint or AT&T. MS. HAZARD: No. JUDGE TATEL: So, doesn't that make this case very different because, you know, Congress itself is saying yes, this can be approved through an action, but only to the extent that it's lawful, and those sound like the kind of judgments that we just routinely review. MS. HAZARD: There's nothing to review here, though. JUDGE TATEL: Well, can we agree that it's reviewable, and -- MS. HAZARD: I don't -- JUDGE TATEL: -- then we'll go on to -- why do you say nothing, what's not to review? The statute includes standards, it has to be Indian country, right? Or Indian land, we know that. I mean, under your theory the Secretary could knowing that a compact is not on Indian, does not involve Indian land could simply not act and allow a normal lawful compact to be approved by Congress? MS. HAZARD: That's right. There's no requirement in IGRA that the Secretary make an Indian lands determination. JUDGE SENTELLE: That's pretty breathtaking. The

24 PLU 0 0 statute requires -- JUDGE TATEL: Yes. JUDGE SENTELLE: -- that it be consistent with -- JUDGE TATEL: Right. JUDGE SENTELLE: -- the chapter. The chapter applies on Indian land. So, are you saying the Secretary, have I understood you to just say the Secretary could approve a compact that had nothing to do with Indian land, and it couldn't be reviewed? MS. HAZARD: That's right. That's our position. JUDGE EDWARDS: Well, how do you get around to the extent the compact is consistent with the provisions of this chapter? JUDGE TATEL: Right. MS. HAZARD: Well -- JUDGE SENTELLE: What do you do with that language? JUDGE EDWARDS: AT&T and Sprint really are not vicarious. MS. HAZARD: Well, Sprint was a challenge to an Agency action, so we disagree with -- JUDGE TATEL: Well, but I just -- MS. HAZARD: -- the reply on brief on that point. JUDGE TATEL: Yes. Okay. But -- MS. HAZARD: But -- JUDGE TATEL: -- I asked you a different kind of

25 PLU 0 0 question than the reply brief. I asked you a distinction between this case and Sprint that's different from the one in the reply brief, namely this, the different statute here. MS. HAZARD: Well -- JUDGE TATEL: And I guess I haven't heard from you why that doesn't make this reviewable, other than it's your position that it is. MS. HAZARD: Well, that approval can't be unlawful because it's an approval only to the extent that an agreement is lawful. JUDGE TATEL: Yes, but that's an argument -- JUDGE SENTELLE: Yes. But how do we find out if the agreement is lawful without reviewing it? MS. HAZARD: Well -- JUDGE SENTELLE: You're standing there telling us it's to the extent that it's lawful. MS. HAZARD: That's right. JUDGE SENTELLE: And you're saying we can't look to see if it's lawful? MS. HAZARD: That's our position. JUDGE SENTELLE: That's not just reasoning in a circle, that's a spiral. You're spinning completely off of the statute there. MS. HAZARD: Well -- JUDGE SENTELLE: What do you do with that language

26 PLU 0 0 about to the extent that it's consistent with the provision of this chapter? What does that mean, and what does it mean -- MS. HAZARD: Well, in another context a party might be able to get review, or the National Indian Gaming Commission may make a determination that some aspect is unlawful and prosecute. Not every -- JUDGE TATEL: Yes, but we have -- MS. HAZARD: -- unlawful -- JUDGE TATEL: Counsel, we have lots of cases which say that simply because there's another possible avenue for raising the issue doesn't mean that the decision before us isn't reviewable. In fact, we have cases which say that you don't have to wait, a party doesn't have to wait and subject itself to possible civil or criminal liability -- JUDGE SENTELLE: Yes. JUDGE TATEL: -- in order to test the legality of an Agency action. We have lots of cases that say that. MS. HAZARD: Yes. In this -- JUDGE TATEL: So -- MS. HAZARD: -- instance, though, the Agency didn't do anything, and Congress established default whereby -- JUDGE TATEL: Okay. MS. HAZARD: -- when the Agency doesn't -- JUDGE TATEL: All right. Suppose -- JUDGE SENTELLE: Congress put --

27 PLU 0 0 MS. HAZARD: -- take -- JUDGE SENTELLE: -- in there the language to the extent that it's consistent with the provisions of this chapter. JUDGE EDWARDS: I think you're wasting time on this one, so you ought to -- JUDGE TATEL: So -- JUDGE EDWARDS: -- help us with the merits. JUDGE TATEL: Yes. JUDGE EDWARDS: Hardwick looks -- MS. HAZARD: Okay. JUDGE EDWARDS: Counsel explains his position why he thinks remand is possible. Hardwick looks strong in suggesting it might be dispositive, is it or is it not in your view? MS. HAZARD: Hardwick is dispositive, and in addition on the merits, the lands are reservation lands, as defined by the statute, 0, which -- JUDGE EDWARDS: In other words, how can we look at -- MS. HAZARD: -- and under the regs. JUDGE EDWARDS: -- the -- this is a motion to dismiss, how can we look at the paper record and make that determination with no doubt? MS. HAZARD: I think it --

28 PLU 0 0 JUDGE EDWARDS: That as a matter of law there's nothing inconsistent with the provisions of this chapter? MS. HAZARD: I think it's difficult on this record, Your Honor, because the record really wasn't developed here, as you know. It's on -- JUDGE TATEL: Well, in fact, that's the position -- MS. HAZARD: -- Rule (b)() context -- JUDGE TATEL: Yes. MS. HAZARD: -- and our recommendation if the Court didn't affirm the dismissal would be to remand. But regarding the scope of the stipulated judgment, it was not in the narrow tax context described by the County. It was in the, the case was brought in the context of a challenge to the termination of the Indian status, and the reservation's statute -- JUDGE TATEL: Right. But your -- MS. HAZARD: -- of the -- JUDGE TATEL: -- brief argues all of that as part of your argument about standing. It doesn't tell us why, assuming if we think you're wrong that it's relevant to standing why it's nevertheless preclusive on the merits. So, I read your brief as saying that if we think A) there's standing; and B) this is reviewable, that the Government agrees with Counsel for the County that we should remand it. MS. HAZARD: That's correct.

29 PLU JUDGE TATEL: Is that the way I read your brief? MS. HAZARD: That's correct. JUDGE TATEL: Okay. Thank you. MS. HAZARD: Yes. JUDGE SENTELLE: All right. MS. HAZARD: Thank you. JUDGE TATEL: Okay. MS. HAZARD: Unless the Court has any further questions? 0 0 JUDGE SENTELLE: No further questions. I see none. I thank you, Counsel. MS. HAZARD: Thank you. JUDGE SENTELLE: Wait a minute, I do have another question. I'm sorry to prolong things, but you did refer to 0(), all lands within the limits of any Indian reservation, and you're not going under 0(b), only under (a), is that correct? MS. HAZARD: That's correct. JUDGE SENTELLE: Okay. Thank you. That's all. ORAL ARGUMENT OF DENNIS J. WHITTLESEY, ESQ. ON BEHALF OF THE APPELLANT MR. WHITTLESEY: I'll be uncharacteristically brief, Your Honor. JUDGE SENTELLE: We appreciate that. MR. WHITTLESEY: I would note that the County's

30 PLU 0 0 stipulation was a stipulation in which the United States and the Secretary of the Interior were not even parties. It was a stipulation between counsel for the class plaintiff individual, and the Tax Assessor, and the Board of Supervisors. So, again, we would, you know, just emphasize that we think there's -- the issues that would bind us to that stipulation, just the elements that would bind us simply are not here. And again, that's for me uncharacteristically brief. Thank you. JUDGE SENTELLE: Okay. Thank you, Counsel. The case is submitted. (Recess.) 0

31 PLU DIGITALLY SIGNED CERTIFICATE I certify that the foregoing is a correct transcription of the electronic sound recording of the proceedings in the above-entitled matter. Paula Underwood March, 0 DEPOSITION SERVICES, INC.