Case 2:07-cv LKK-GGH Document 43 Filed 11/16/2007 Page 1 of 14

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1 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE JUDITH RABINOWITZ Trial Attorney Indian Resources Section 0 Howard Street, Suite 00 San Francisco, CA 0 Telephone: () - Facsimile: () - judith.rabinowitz@usdoj.gov SARA CULLEY Trial Attorney Natural Resources Section P.O. Box Ben Franklin Station Washington, DC 00-0 Telephone: (0) 0-0 Facsimile: (0) 0-0 sara.culley@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 0 COUNTY OF AMADOR, CALIFORNIA, ) ) Case No. :0-cv-00-LKK-GGH ) Plaintiff, ) REPLY MEMORANDUM IN ) SUPPORT OF MOTION TO vs. ) DISMISS PLAINTIFF S ) COMPLAINT THE UNITED STATES DEPARTMENT OF ) THE INTERIOR; DIRK KEMPTHORNE, ) SECRETARY OF THE UNITED STATES ) Date: December, 00 DEPARTMENT OF THE INTERIOR; CARL ) Time: 0:00 am J. ARTMAN, ASSISTANT SECRETARY- ) Place: Courtroom No. INDIAN AFFAIRS; and JAMES E. CASON, ) Hon. Lawrence K. Karlton ASSOCIATE DEPUTY SECRETARY, ) ) Defendants; ) ) IONE BAND OF MIWOK INDIANS, ) ) Dedendant-Intervenor.) )

2 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 I. INTRODUCTION Federal Defendants herein reply in support of their Motion to Dismiss Plaintiff Amador County s premature Complaint on jurisdictional, standing and ripeness grounds. As set forth in Federal Defendants opening memorandum, Amador County seeks to embroil this Court in an administrative decision-making process that has yet to achieve the finality required by the Administrative Procedure Act, U.S.C. 0 et seq. ( APA ). While the Department of the Interior ( DOI Interior ) has undertaken an intermediate analysis of the potential gaming eligibility of the Ione Band of Miwok Indians ( Ione Band Band ) Plymouth Parcels, no final decision has been made on the Band s application to have the parcels transferred into federal trust, nor is one expected to be made until additional layers of analysis are complete and reviewed within the broader context of Interior s fee-to-trust process. C.F.R. Part. Without a final determination to accept the Band s trust application, the challenged Indian Gaming Regulatory Act, U.S.C. 0- ( IGRA ) Indian lands analysis has no legal consequence or impact upon the County. Notwithstanding, in its quest to have the Court review an administrative proceeding midstream the County misrepresents the intent of IGRA and its interplay with Section of the Indian Reorganization Act, U.S.C. ( IRA ); the function of Indian lands opinions within the fee-to-trust process; the Memorandum of Agreement ( MOA ) between DOI and the National Indian Gaming Commission ( NIGC ) concerning their respective responsibilities for Indian lands opinions; and relevant case law. Perhaps most significantly, however, the County erroneously suggests that unless this Court exercises jurisdiction over the matter now, Plaintiff will have no serious opportunity for judicial review in the future. To the contrary, the Interior s regulations implementing the Secretary s authority to acquire land into trust for federally recognized tribes expressly provide for judicial review at the culmination of the agency process at issue here. That is, once a final decision is made on the Band s fee-to-trust application, and that decision is published in the Federal Register, or in a newspaper of general circulation in the affected area, the County has thirty days within which to file for federal court review. C.F.R..(b). It is at that juncture, and not now, that judicial resources are properly invoked. See, - -

3 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 e.g., Sierra Club v. Nuclear Regulatory Comm n, F.d, ( th Cir. ) (noting that judicial review is inappropriate where pending or further agency proceedings might obviate the need for review). Until that time, there is no jurisdiction to review an administrative process that lacks finality and for which the County lacks standing and its claims lack ripeness. The County cannot overcome these fundamental flaws in its Complaint which therefore should be dismissed pursuant to Rule of the Federal Rules of Civil Procedure. / ARGUMENT I. NO FINAL AGENCY ACTION HAS BEEN IDENTIFIED NOR WILL THE CHALLENGED INDIAN LANDS ANALYSIS EVADE REVIEW ONCE A FINAL TRUST DECISION IS MADE The APA provides that: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. U.S.C. 0 (emphasis added). Amador County cannot establish that the Artman advisory opinion memorandum and Cason concurring transmittal letter at issue constitute final agency action reviewable under the APA, the only statute that can supply the necessary waiver of the United States sovereign immunity from suit. It is elementary that [t]he United States, as sovereign, is immune from suit save as it consents to be sued..., and the terms of its consent to be sued in any court define that court s jurisdiction to entertain the suit. United States v. Mitchell, U.S., (0) (quoting United States v. Sherwood, U.S., ()). A straightforward application of the Supreme Court s two-part test for determining / The County should not be accorded the normal liberal treatment of alleged facts on the United States Motion to Dismiss under Fed. R. Civ. P., for those allegations that are legal, rather than factual, in nature. See County s Opp. at. See also Ileto v. Glock Inc., F.d, 00 ( th Cir. 00) (citing Western Mining Council v. Watt, F.d, ( th Cir. )); Oksner v. Blakey, 00 WL * (N.D. Cal. Oct., 00) (citations omitted). As will be discussed below, the County s assertion that the National Indian Gaming Commission somehow delegated authority to the Department of the Interior through entry into a Memorandum of Agreement concerning the division of labor in analyzing the IGRA-eligibility of tribal lands, County Opp. at, is simply an erroneous legal conclusion. So too are the assertions that the Interior opinion memorandum at issue made a finding of present eligibility of the Plymouth Parcels for gaming, County Opp. at, and that the interim opinion qualifies as final reviewable agency action under the APA. County Opp. at. - -

4 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 finality reveals the error in Plaintiff s position. Bennett v. Spear, 0 U.S., - (). In Bennett, the Court instructed that: 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. Id. (internal citations omitted). Far from being the consummation of decision-making, the opinion memorandum and letter of concurrence and transmittal are only one step in a multistep agency process for determining whether the Band s fee-to-trust application for gaming purposes warrants approval. See attached, Federal Defendants Reply Exhibit, Deputy Solicitor Jensen s Response to Congressional Inquiry (explaining, inter alia, the purpose of the opinion memorandum and the County s role within Interior s land acquisition process). Contrary to the County s mischaracterization, the May, 00 MOA between Interior and the NIGC makes this point clear: The NIGC agrees that whether a tribe meets one of the exceptions in U.S.C. (i.e. settlement of a land claim, restored lands for a restored tribe, or an initial reservation of a tribe acknowledged through the Part process) is a decision made by the Secretary when he or she decides to take land into trust for gaming. MOA (emphasis added). Moreover, the opinion memorandum, standing alone, does not fix rights or obligations, or engender legal consequences. Without the further determination to accept the Band s trust application, rights, obligations and the legal regime respecting the Plymouth Parcels remain unchanged. Once a trust determination is issued, the finality contemplated by Bennett will be in place and, assuming the County s NEPA and other concerns are not met through ongoing administrative processes, the Court can properly review an APA challenge by the County. The County s claim that pursuant to the MOA, the Indian lands analysis process was followed to completion with no opportunity for participation by the County and no opportunity for further review, is plainly wrong. County Opp. at. In fact, in accordance with the MOA s agreed-upon division of responsibilities, the analysis was undertaken by the Interior Department because the Secretary is considering a fee-to-trust acquisition, MOA subpart, a process - -

5 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 that includes participation by state and local governments and that culminates in an opportunity for challenge under Interior s regulations implementing the Secretary s authority under Section of the IRA. See C.F.R..0,.,.(b). Also meritless is the County s contention that the opinion memorandum should be treated as final because IGRA Section 0 analyses cannot be incorporated within the Secretary s fee-totrust determinations, given that the fee-to-trust regulations contain no mention of lands determinations under IGRA. County Opp. at -. What the County ignores is that the Part regulations require Interior to consider the purpose for which land is proposed for trust acquisition. See C.F.R..0(c), incorporated by.(a). If, as here, the proposed purpose is for gaming, Interior must assess the IGRA-based gaming eligibility of the land in question as part of its overall inquiry. The MOA specifically acknowledges the need for integration of Indian lands analyses into the Secretary s consideration of trust applications for gaming. MOA, MOA subpart. / The County s reliance on language in IGRA confirming the Secretary s authority and responsibility to acquire land into trust for federally recognized tribes is similarly unavailing. County Opp. at (citing U.S.C. (c): Nothing in this section shall affect or diminish the authority and responsibility of the Secretary to take land into trust. ). The County argues that that this provision supports its proposition that an inquiry into Indian lands status is not an integral part of assessing a gaming-related trust application. Indeed, the opposite implication is indicated. Congress confirmed the continuing importance of the Secretary s 0's-era trust acquisition authority within the text of the Indian Gaming Regulatory Act passed some fifty years later. The district court s treatment of the same language in South Dakota v. U.S. Dep t of / So too does the testimony of George Skibine, then Acting Deputy Ass t Secretary-Indian Affairs, which the County attempts to use as support for its argument that the opinion memorandum here as a stand-alone administrative undertaking rather than a piece of a broader trust decision. County Opp. at. In the same testimony selectively quoted by the County, George Skibine states that [w]hen the [trust] acquisition is intended for gaming, consideration of the requirements of [IGRA is] simultaneously applied to the decision whether to take the land into trust. Skibine Testimony, Exhibit to Request for Judicial Notice, County Opp. Thus, the testimony, like the MOA, undercuts, rather than supports, the County s position. - -

6 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 Interior, F.Supp.d, - (D.S.D. 00), does nothing to bolster the County s argument. Instead, when understood in context, it is clear that the South Dakota court was not presented with a challenge to a decision to accept a tribal fee-to-trust application for gaming, nor did it opine that IGRA Section 0 determinations cannot be reviewed within the context of a challenge to an IRA Section decision to accept a trust application. County Opp. at. See also, Citizens Exposing Truth About Casinos v. Kempthorne, F.d 0, (D.C. Cir. 00) ( CETAC )(finding it reasonable for the Secretary to view the IRA and IGRA in tandem). The cases relied upon by the County also are in tension with its position on finality. Heavy reliance is placed on Kansas v. United States, F.d (0th Cir. 00) ("Kansas"), and United Keetoowah Band v. Oklahoma, No. Civ-0-0-WH, slip op. (E.D. Okla. Jan., 00) ("UKB"), to argue that the agency action here has the finality necessary to subject it to review under the APA. County Opp. at. The circumstances of Kansas and UKB are, however, readily distinguishable from the present posture of Interior s consideration of the Band s fee-totrust application. Unlike the intermediate opinion memorandum analyzing the potential gamingeligibility of the Plymouth Parcels, the Indian lands opinions in Kansas and UKB had been the subject of agency action thus according finality to the opinions. In Kansas, the NIGC approved a gaming management contract and issued a gaming permit for the land in accordance with an Indian lands opinion. The Indian lands opinion therefore became reviewable in the context of NIGC s final action on the management contract and permit. The land at issue in Kansas, moreover, was not proposed for trust acquisition, but rather was already was subject to a restriction on alienation. / Hence, the NIGC s actions effected immediate changes in rights and responsibilities. Additionally, pursuant to IGRA the Commission s actions qualified as final under the APA. See U.S.C. ; Kansas, F.d at. Section of IGRA, which is entitled Judicial review, directs that [d]ecisions made by the Commission pursuant to sections [0,,, and ] shall be final agency decisions for purposes of appeal to / In addition to reservation lands and lands held in trust by the United States, IGRA defines Indian lands to include any lands title to which is [ ] held by any Indian tribe or individual subject to a restriction by the United States against alienation and over which an Indian tribe exercises governmental power. U.S.C. 0(). - -

7 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 the appropriate Federal district court pursuant to chapter of Title. IGRA contains no such review provision for Indian lands analyses made by the Secretary in the course of considering a tribal land-into-trust application for gaming purposes. Citizens Against Casino Gambling in Erie County v. Kempthorne, F.Supp.d,, - (W.D.N.Y. 00) (finding that Interior Indian lands opinions upon which no final action has occurred are not subject to APA review). Tellingly, the Tenth Circuit recently opined in a case involving the same land at issue in Kansas, that an Interior opinion letter intended to assist the NIGC in taking final action is not the final product of agency deliberation and does not have a direct or immediate impact. Miami Tribe of Oklahoma v. United States, No. 0-0, 00 WL, at *. (0 th Cir. Aug., 00). Like Kansas, the UKB case concerns NIGC action based upon an Indian lands opinion, action which the court found to have legal effects and thus supply the requisite finality for APA review purposes. UKB slip op. at 0. UKB concerned a negative Indian lands opinion authored by the NIGC s General Counsel. The court found that because the Commission had, for five years, acted in accordance with the opinion, the opinion had been treated as final and had effected a disapproval of the Tribe s gaming ordinance. The Tribe, in turn, had suffered legal consequences. UKB slip op. at -0. No such action has been taken on the opinion memorandum here, and, as such, no finality can be found. The County s erroneously seeks to distinguish the case law supporting the intermediate, non-final nature of the agency action here on the ground that, unlike the earlier 000 MOA, the 00 MOA effected a delegation of NIGC authority to Interior thus converting Interior interim Indian lands opinion into final binding actions. County Opp. at. There is no support for this extraordinary proposition in either the 00 MOA or the law. Indeed, the first substantive paragraph of the 00 MOA makes clear that NIGC considers Indian lands opinions in the context of tribal applications to have land taken into trust for gaming to be the Secretary s province and not the Commission s. Moreover, the County s contention is completely at odds with Congress s 00 clarification of the Secretary s authority in this regard. Pub.L. No

8 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0, Stat., - (clarifying the Secretary s authority under U.S.C. 0-). If delegation of authority has occurred, it has been from Congress to the Secretary, and not, as the County contends, from the NIGC to the Secretary. See CETAC, F.d at - (interpreting the 00 MOA, against the backdrop of the 00 Congressional clarification, as an agreement that the Secretary is to determine whether a tribe meets one of IGRA s exceptions when the Secretary decides to take land into trust for gaming ); Michigan Gambling Opposition v. Norton, F.Supp.d, (D.D.C. 00) ( MichGO )(concluding that there has been a congressional delegation of authority to the Secretary to interpret Section 0 of IGRA). Lastly, the County grossly mischaracterizes and understates its opportunity for judicial review once a final agency action is taken in this matter. Interior s Part regulations guarantee the County a right of review. There is no merit to the assertion that the opportunity is parsimonious or that Interior might waive its regulation in this context. County Opp. at -. Plaintiff can point to no such precedent in the many fee-to-trust decision challenges that have been considered by federal courts. Nor is the County s argument based upon the Quiet Title Act, U.S.C. 0a ( QTA ) availing. The County asserts that if and when the Secretary makes a final favorable decision on the trust application, the County will have only 0 days to file a lawsuit challenging that decision and suggests that after 0 days. First of all, Interior s fee-to-trust regulations were specifically amended to afford the right of review that the County claims might now be denied. See C.F.R..(b). Secondly, the general policy of the Interior Department is to self-stay acquisition of tribal land into trust until challenges to acquisition decisions have been reviewed by courts. When the Department of the Interior makes a gaming-related acquisition decision pursuant to the IRA, the United States notifies the public that it intends to move forward with the trust acquisition, unless a lawsuit is filed within 0 days of the notice. If a lawsuit if filed, the United States is either enjoined from moving forward with the acquisition so that the merits of any National Environmental Policy Act ( NEPA ), -, and IGRA claims can be heard, or the United States enters into a self-stay for the pendency of the court proceedings. See - -

9 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 City of Roseville v. Norton, F. Supp. d 0, - (D.D.C. 00)( Roseville ); TOMAC v. Norton, F. Supp. d, (D.D.C. 00). The purpose of the injunction or stay is to prevent actual acquisition of the land because once the land is acquired and set aside, the QTA prevents the plaintiff s action. Thus, the County's concerns about a "narrow window" of opportunity to file a subsequent challenge to the Artman memorandum opinion are not substantiated. County Opp. at -. II. IGRA IS INTENDED TO ADVANCE THE ECONOMIC WELL BEING OF TRIBES AND DOES NOT DICTATE THE AVENUE BY WHICH TRIBES MAY SEEK GAMING OPPORTUNITIES FOR AFTER-ACQUIRED LAND OR GUARANTEE LOCAL GOVERNMENTS A PARTICULAR PROCESS Congress enacted IGRA to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments. U.S.C. 0(). IGRA was not, as the County would have it, principally designed as a guarantor to local governments that gaming on so-called after-acquired trust lands / would be pursuant to IGRA s two-part process which requires the concurrence of state governors. See Id. (b)()(a). / The two-part exception is, instead, the last option for tribal land that does not qualify under any of the other IGRA Section 0 exceptions. See, e.g., CETAC, F.d at (explaining that the two-part determination comes into play only if the other exceptions do not pertain). Tribes, such as the Ione Band here, are entitled to seek trust status for lands which they believe fall within a (b)()(b) exception. Congress included / This term refers to lands taken into federal trust after the October, enactment date of IGRA. IGRA generally prohibits gaming on such lands, U.S.C. (a), subject to several exceptions contained within the balance of Section. / This provision provides that: () Subsection (a) of this section will not apply when (A) the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines 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, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary s determination; - -

10 Case :0-cv-00-LKK-GGH Document Filed //00 Page 0 of 0 0 the (b)()(b) exceptions in IGRA in recognition of the varied histories of tribes, many of which, due to the vagaries of failed Indian policies, and/or neglect on the part of the federal government, lost their federal recognition and/or their land base. While many tribes held IGRAeligible lands in when IGRA was enacted, others did not, or had not yet achieved the restoration to federal recognition or acknowledgment under Interior s Part regulations that would allow for land restoration. Section 0 of IGRA takes account of the reality that, as in California, many tribes are in the process of restoring and rebuilding both their governments and a land base necessary to the realization of Congress s self-determination and self-sufficiency goals for tribes. As put by the CETAC Court, Congress s primary purpose in enacting IGRA is evident as well from the inclusion of several exceptions to the gaming prohibition on afteracquired lands in order to allow newly acknowledged or restored tribes to engage in gaming on par with other tribes. CETAC F.d at (citing Roseville, F.d at 00)(noting that the IGRA 0(b)(B) exceptions serve purposes of their own, ensuring that tribes lacking reservations when IGRA was enacted are not disadvantaged relative to more established ones ). Contrary to the County s suggestion, it is it not entitled to a two-part determination, hence it has not been deprive[d] of Congressionally conferred protections as it claims. / County Opp. at 0. See CETAC F.d at (underscoring that IGRA s primary intent was to foster[ ] tribal economic self-sufficiency, not to respond to community concerns about casinos ) (emphasis added). No citation to such an IGRA requirement is provided, as indeed none exists. By the County s reasoning, the tribal option of last resort (gaming qualification for after-acquired trust land through a Secretarial two-part determination) would be converted into a first right inhering in the County. Plainly, this is not the intent of IGRA. IGRA does not require consultation with State or local governments prior to the issuance of intermediate assessments about whether one of the IGRA Section 0 exceptions applies. Indeed, IGRA only requires consultation when a tribe wishes to qualify its proposed gaming under (b)()(a), which is not the case here. When a tribe proposes land for gaming eligibility under any other exception, / The County levels the further remarkable complaint that this so-called deprivation has occurred without solicitation of the County s views on the matter. Id. n.. - -

11 Case :0-cv-00-LKK-GGH Document Filed //00 Page of IGRA says nothing about consultation. Followed to its logical conclusion, the County s scheme would eviscerate the other Section 0 exceptions. This Court should reject such a subversion of Congress s statutory scheme. Assuming arguendo that there were any statutory ambiguity on this point (which we do not concede), the Indian-favoring canon of construction would require that the Act be interpreted to benefit of the Band and against the County s crabbed interpretation. See, e.g., Roseville, F.d at 0. III. BECAUSE THE COUNTY S CLAIMED INJURIES ARE NOT GROUNDED IN IGRA OR NEPA REQUIREMENTS THEY FAIL TO SUPPLY THE REQUISITE STANDING 0 0 The County lacks standing under the three-part test articulated in Lujan v. Defenders of Wildlife, 0 U.S. (). First, the County does not demonstrate the invasion of a legally protected interest that is concrete and particularized and not conjectural or hypothetical. Id. at 0. Second, the County does not establish any causal connection between the injury and the complained-of conduct, id., because neither the Complaint nor the Opposition points to any injury that emanates directly from the issuance of the memorandum opinion. And third, because it does not establish the first two Lujan criteria, the County cannot show that it is likely, as opposed to merely speculative, that any cognizable injury will be redressed by a favorable decision. Id., 0 U.S. at 0. The elements of standing are not mere pleading requirements but rather an indispensable part of [the County s] case. Id. at 0-. Accordingly, the County s Complaint must be dismissed. As set forth above, the County s claim to IGRA-based injury finds no support in the text of the Act. The County, has not been depriv[ed] of rights to consultation under Section 0's two-part test determination, County Opp. at, because it has no such automatic right in the first place. See U.S.C. (b)()(b). The claim to imminent injuries to the County s legally protected interests, County Opp. at, is not only not supported by IGRA, it is undercut by the administrative process underway in which the County has direct role, through which it - 0 -

12 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 may eliminate or blunt presently perceived injuries. See C.F.R Part ; Federal Defendants Exhibit at page. Moreover, the County s attempt to evade the lack of final agency action by casting the opinion at issue as a harm that may lead to the further harm of facilitating the process of obtaining an actual casino does not establish Lujan causality. County Opp. at. Instead, it underscores interim nature of the opinion within the Secretary s consideration of the Band s trust application. The assertion of immediate injury to protected interests also is not aided by the County s citation to Kansas, which, in contrast to this matter, concerned agency action taken in accordance with an Indian lands opinion (NIGC issuance of a gaming permit as well as approval of a tribal gaming management contract). Kansas, F.d at. Likewise, the County lacks standing to pursue its NEPA claim. The County s Opposition makes little attempt to address the speculative harms included in its Complaint. Rather, the County cursorily suggests that it has been harmed by the inadequacy of environmental review in connection with the Indian Lands determinations. County Opp. at ; see also id. at. This suggestion fails to salvage the County s claims. The Supreme Court has maintained that a plaintiff alleging a procedural violation still must show some threatened concrete interest... that is the ultimate basis of his standing. Lujan, 0 U.S. at, n.; see also Douglas County v. Babbitt, F.d, 00 ( th Cir. ); Florida Audubon Society v. Bentsen, F.d, (D.C. Cir. ) ( the court has never freed a plaintiff alleging a procedural violation from showing a causal connection between the government action that supposedly required the disregarded procedure and some reasonably increased risk of injury to its particularized injury ). Indeed, the County is required to show that the alleged violation will cause actual or imminent harm to the underlying interest. Center for Law and Educ. v. Department of Educ., F.d, (D.C. Cir. 00). The County simply cannot make that requisite showing, because it can point to no concrete environmental harm that emanates directly from the non-final opinion memorandum. It would defeat the purpose of the standing doctrine to permit the County to challenge alleged procedural violations that do not and cannot cause them any injury. The - -

13 Case :0-cv-00-LKK-GGH Document Filed //00 Page of County lacks standing to pursue its claims; consequently, the County s claims should be dismissed. IV. THE COUNTY CANNOT ESTABLISH RIPENESS 0 0 The absence of final agency action also compels the conclusion that the County s claims are not ripe for review. The determination of ripeness entails the evaluation of the fitness of the issue for judicial decision, and the hardship to the parties of withholding court consideration. Abbott Labs v. Gardner, U.S., (); Ecology Center, Inc. v. U.S. Forest Service, F.d, ( th Cir. ) ( Courts are generally precluded, under the ripeness doctrine, from prematurely adjudicating administrative matters until the proper agency has formalized its decision making process. ) (citation omitted). It is inappropriate to entertain a petition where pending administrative proceedings or further agency action might render the case moot and judicial review completely unnecessary. Sierra Club, F.d at ( th Cir. ). The County argues that this matter is ripe because the Artman opinion memorandum and the Cason concurrence letter have been completed. County Opp. at. This alone, however, does not establish fitness for adjudication. Rather, it is the finality of the Interior action within the meaning of APA and interpretive case law that controls. As set forth above, the challenged action is intermediate to, and inextricably bound up with, the Secretary s ultimate decision whether to accept the Band s application to have the Plymouth Parcels taken into trust for gaming purposes. See Ohio Forestry Ass n, Inc. v. Sierra Club, U.S., (a claim is never ripe where the possibility that further consideration [by the agency] will actually occur... is not theoretical, but real. ) Contrary to the County s suggestion, this matter is not analogous to Texas v. United States F.d, 00 WL 0, No. 0-0 (th Cir. Aug., 00). Opp. at -. In that case, the challenged action was the promulgation of final, binding regulations. While the United States disagrees with that Court s reasoning, the County is not seeking review (pre-enforcement or otherwise) of a regulation promulgated through notice and comment rulemaking; accordingly, the analysis in Texas is irrelevant here. Absent a final determination on the Band s trust application, the opinion memorandum can have no impacts and certainly lacks the immediate force of law. Thus, it is clear that the County s claims are - -

14 Case :0-cv-00-LKK-GGH Document Filed //00 Page of 0 0 based upon contingent future events that may not occur as anticipated, or indeed may not occur at all. Thomas v. Union Carbide Agricultural Products Co., U.S., 0- (). Moreover, as set forth above, there is no merit to the County s claim that it will lack future opportunity for judicial review. Ohio Forestry Ass n, U.S. at (finding plaintiffs claims were not ripe, because plaintiffs could not show delayed review would create adverse effects of a strictly legal kind or significant practical harm ); Natural Resources Defense Council v. Abraham, F.d 0, 0 ( th Cir. 00) (Hardship does not mean just anything that makes life harder; it means hardship of a legal kind, or something that imposes a significant practical harm upon the plaintiff. ). Likewise, the County will have additional opportunities to offer its input regarding the environmental analysis that will be undertaken before a final decision is reached regarding the Band s trust application. Finally, there is little dispute that further factual development would significantly advance [the Court s] ability to deal with the legal issues presented and would aid [the Court] in their resolution. Ohio Forestry Ass n, U.S. at (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., U.S., ()). Consequently, the County s claims should be dismissed on ripeness grounds, as well. V. CONCLUSION For the foregoing reasons Federal Defendants Motion to Dismiss the County s Complaint should be granted. Respectfully submitted this th day of November, 00. Ronald J. Tenpas Assistant Attorney General /s/ Judith Rabinowitz JUDITH RABINOWITZ SARA CULLEY Attorneys for Federal Defendants - -