IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ) ) ) ) ) ) ) ) ) )

Transcription

1 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 1 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA COMANCHE NATION OF OKLAHOMA, Plaintiff, v. RYAN ZINKE, Secretary, U.S. Department of the Interior, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CIV HE DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION MARK A. YANCY United States Attorney s/ AMANDA R. JOHNSON KAY SEWELL OK Bar No AMANDA R. JOHNSON OK Bar No Assistant U.S. Attorney United States Attorney s Office Western District of Oklahoma 210 Park Avenue, Suite 400 Oklahoma City, OK (405) (fax) Amanda.Johnson3@usdoj.gov

2 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 2 of 34 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv-vii I. INTRODUCTION... 1 II. BACKGROUND... 2 A. STATUTORY BACKGROUND The Indian Gaming Regulatory Act Land Acquisition Policy... 4 B. FACTUAL BACKGROUND... 4 III. STANDARD OF REVIEW... 7 IV. ARGUMENT... 9 A. PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE MERITS Plaintiff Lacks Standing to Challenge the Oklahoma Exception Plaintiff s Claim is Barred by the Statute of Limitations The Claims Against NIGC Are Not Likely to Succeed Because NIGC Has Not Taken Final Agency Action Here Plaintiff is Not Likely to Succeed on the Merits of its APA Claim Because Interior Acted Reasonably in Adopting the Oklahoma Exception B. PLAINTIFF HAS NOT ESTABLISHED A LIKELIHOOD OF IMMINENT IRREPARABLE HARM Plaintiff Has Not Shown a Concrete Harm Plaintiff Has Not Established That the Alleged Economic Harm is Imminent Plaintiff s Alleged Economic Harm Also is Not Irreparable C. THE EQUITIES WEIGH AGAINST AN INJUNCTION V. CONCLUSION ii

3 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 3 of 34 CERTIFICATE OF SERVICE iii

4 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 4 of 34 TABLE OF AUTHORITIES Cases Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006)... 24, 25 Att y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009)... 8 Auer v. Robbins, 519 U.S. 452 (1997) Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir. 2012) Coal. of Concerned Citizens to Make ART Smart v. FTA, 843 F.3d 886 (10th Cir. 2016) Colo. Farm Bureau Fed n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000) Dine Citizens Against Ruining Our Env t v. Jewell, 839 F.3d 1276 (10th Cir. 2016)... 8 Exela Pharma Scis., LLC v. Kappos, No. 1:12-CV-469, 2012 WL (E.D. Va. Dec. 21, 2012) Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) Grand Traverse Band of Ottawa & Chippewa Indians v. Office of U.S. Atty. for W. Div. of Mich., 369 F.3d 960 (6th Cir. 2004)... 3 Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for W. Dist. of Mich., 198 F. Supp. 2d 920 (W.D. Mich. 2002)... 2 Greater Yellowstone Coal v. Flowers, 321 F.3d 1250 (10th Cir. 2003)... 21, 22 Heideman v. S. Salt Lake City, 348 F.3d 1182 (10th Cir. 2003)... 19, 23, 24 iv

5 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 5 of 34 imatter Utah v. Njord, 774 F.3d 1258 (10th Cir. 2014) Kansas v. NIGC, 151 F. Supp. 3d 1199 (D. Kan. 2015)... 11, 13 Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) Lane v. Buckley, 643 Fed. Appx. 686 (10th Cir. 2016) Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) Mazurek v. Armstrong, 520 U.S. 968 (1997)... 7 Murphy v. Royal, 866 F.3d 1164 (10th Cir. Aug. 8, 2017) New Mexico Dep t of Game & Fish v. U.S. Dep t of the Interior, 854 F.3d 1236 (10th Cir. 2017)... 8, 20, 21 NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003) Petrella v. Brownback, 787 F.3d 1242 (10th Cir. 2015)... 7 Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) RoDa Drilling v. Siegal, 552 F.3d 1203 (10th Cir. 2009)... 8 S. Cal. All. of Publicly Owned Treatment Works v. EPA, No. 2:14-CV MCE-DB, 2016 WL (E.D. Cal. Oct. 21, 2016) Schrier v. Univ. of Co., 427 F.3d 1253 (10th Cir. 2005)... 8, 9, 21 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)... 2 Smith v. United States, No. 13-cv RM-KLM, 2015 WL (D. Colo. Feb. 10, 2015) United States v. 162 MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000)... 5 Utah v. Njord, 774 F.3d 1258 (10th. Cir. 2014) v

6 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 6 of 34 Warth v. Seldin, 422 U.S. 490 (1975) Westar Energy, Inc. v. Lake, 552 F.3d 1216 (10th Cir. 2009)... 8 Wind River Min. Corp. v. United States, 946 F.2d 710 (9th Cir. 1991)... 12, 13, 14 Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) Federal Statutes 25 U.S.C U.S.C. 2710(d)(8)(A) U.S.C U.S.C , 6, 16, 17, U.S.C U.S.C. 2401(a) U.S.C State Statutes Okla. Stat. Ann. Tit. 3A, Regulations 25 C.F.R C.F.R , 6 25 C.F.R C.F.R C.F.R , 6 25 C.F.R C.F.R C.F.R C.F.R (b)(1) C.F.R , C.F.R C.F.R vi

7 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 7 of 34 C.F.R Fed. Reg. 32, , 7 Other S. Rep. No , 99th Cong., 2d Sess. 10 (1986) vii

8 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 8 of 34 I. INTRODUCTION Plaintiff Comanche Nation initiated this litigation in an attempt to prevent the operation of a casino by the Chickasaw Nation near Terral, Oklahoma. Compl. 1 (Doc. No. 1). Instead of raising their concerns with the Chickasaws, Plaintiff sued the Department of the Interior ( Interior ) and National Indian Gaming Commission ( NIGC ), making the disjointed argument that 2008 federal regulations render a fee-totrust acquisition occurring in 2017 arbitrary and capricious; may indirectly cause Plaintiff economic harm at some unknown point in the future; and justify invalidating an unrelated gaming ordinance approved by the NIGC in Specifically, Plaintiff seeks an immediate injunction: (i) preventing the NIGC from approving a gaming ordinance or issuing a facilities license to the Chickasaw Nation for a casino on the Terral site; or (ii) rescinding such agency action if it already occurred. P.I. Mot. at 1 (Doc. No. 13). Plaintiff is not entitled to injunctive relief. First, Plaintiff cannot show a likelihood of success on the merits. Plaintiff argues that Interior has wrongly interpreted the Indian Gaming Regulatory Act ( IGRA ) in issuing regulations to implement section 20 of IGRA, putting Oklahoma tribes on a footing superior to tribes outside Oklahoma. Plaintiff also complains about Interior s land acquisition regulations, which define Indian reservation differently for Oklahoma tribes than other tribes. But, as an Oklahoma tribe, Plaintiff fails to show how it is injured by Federal Defendants decision-making and thus lacks standing. Plaintiff s challenge to the 2008 regulations also is barred by the statute of limitations. And, most importantly, the regulations are fully consistent with each other and with IGRA. 1

9 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 9 of 34 Plaintiff also cannot demonstrate irreparable harm or that the equities weigh strongly in its favor. Indeed, the relief requested by the Comanche Nation is not even possible NIGC does not license individual gaming facilities. NIGC has no role nor any jurisdiction that would prevent the construction or opening of a casino on the Terral site, and no further agency action to take. The Federal Defendants also have an interest in having their decisions upheld, particularly here where Plaintiff challenges a long-standing policy and regulation passed nearly ten years ago. Interior also found that taking the Terral site into trust for gaming purposes would facilitate the Chickasaw Nation s tribal selfdetermination and economic development, and an injunction would prevent these benefits from being realized. These significant impacts and interests weigh against injunctive relief, particularly given that a decision on the merits can be issued before the Terral casino opens. II. BACKGROUND A. STATUTORY BACKGROUND 1. The Indian Gaming Regulatory Act Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48 (1996) (citing 25 U.S.C. 2702). IGRA was enacted to provide express statutory authority for the operation of such tribal gaming facilities as a means of promoting tribal economic development, and to provide regulatory protections for tribal interests in the conduct of such gaming. Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for W. Dist. of Mich., 198 F. Supp. 2d 920, 933 (W.D. 2

10 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 10 of 34 Mich. 2002), aff'd sub nom. Grand Traverse Band of Ottawa & Chippewa Indians v. Office of U.S. Atty. for W. Div. of Mich., 369 F.3d 960 (6th Cir. 2004). Section 20 of IGRA generally prevents gaming under IGRA from being conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988, with certain exceptions. 25 U.S.C One exception is for lands located within the former reservation of an Oklahoma tribe who did not have a reservation on October 17, 1988, called the Oklahoma exception. 25 U.S.C. 2719(a)(2)(A)(i). Specifically, gaming may take place on lands acquired in trust after 1988 when: The Indian tribe has no reservation on October 17, 1988, and (A) such lands are located in Oklahoma and (i) are within the boundaries of the Indian tribe s former reservation, as defined by the Secretary; or (ii) are contiguous to other land held in trust or restricted status by the United States for the Indian tribe in Oklahoma; or (B) such lands are located in a State other than Oklahoma and are within the Indian tribe's last recognized reservation within the State or States within which such Indian tribe is presently located. 25 U.S.C Interior s regulations at 25 C.F.R. Part 292 implement Section 20 of IGRA. Pursuant to these regulations, gaming is allowed under the Oklahoma Exception when a tribe had no reservation on October 17, 1988, the land is located in Oklahoma, and is located within the boundaries of the tribe s former reservation or contiguous to other land held in trust or restricted status for the tribe in Oklahoma. 25 C.F.R (b)(1). 3

11 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 11 of Land Acquisition Policy Under the Indian Reorganization Act ( IRA ), [t]he Secretary of the Interior is authorized, in his discretion, to acquire any interest in lands... within or without existing reservations... for the purpose of providing land for Indians. 25 U.S.C C.F.R. Part 151 sets forth the authorities, policy, and procedures governing the acquisition of land by the United States in trust status for individual Indians and tribes. 25 C.F.R C.F.R sets forth the conditions under which land may be acquired in trust by the Secretary for an Indian tribe: (1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing. The regulations define Indian reservation as that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma... Indian reservation means that area of land constituting the former reservation of the tribe as defined by the Secretary. 25 C.F.R Section provides criteria for on-reservation acquisitions. 25 C.F.R B. FACTUAL BACKGROUND On June 17, 2014, the Chickasaw Nation submitted an application to the Bureau of Indian Affairs (BIA) requesting that approximately acres near the town of Terral in Jefferson County, Oklahoma ( Terral site ), be taken into trust for gaming and other 4

12 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 12 of 34 purposes. Ex. 1, Notice of Decision (Jan. 19, 2017) ( Notice of Decision ) at 1. The proposed gaming facility will consist of 37,197 square feet with a 22,153 square-foot gaming floor comprised of approximately 500 class II and III 1 gaming machines, table games, and off-track betting amenities. Id. An Environmental Assessment ( EA ) for the Terral fee-to-trust project was completed on April 20, Id. at 15. The EA was available for public comment from March 18 to April 18, 2016, but no public comments were received. Id. The EA analyzed the environmental consequences of taking the land into trust for the benefit of the Chickasaw Nation and the subsequent development of an approximately 37,197 square foot gaming facility on the site, as well as the consequences of a no action alternative, where the property would not be taken into trust and no gaming facility would be developed. Ex. 2, Envtl. Assessment, Terral Fee-to-Trust Project ( EA ) at 8 (Feb. 2016). Ultimately, Interior concluded that with the implementation of best management practices and environmental protection measures, the proposed land-into-trust action and new gaming facility would not result in any significant adverse environmental impacts. Interior made a final determination to acquire the Terral Site in trust for the Chickasaw Nation for gaming and other purposes on January 19, Fed. Reg. 32, (July 18, 2017); Ex. 1, Notice of Decision at 1. The Notice of Decision finds 1 Class II gaming includes bingo (including electronic bingo games), pull-tabs, and similar games of chance. Class III gaming includes slot machines, horseracing, and any banking card games, such as baccarat and blackjack. See United States v. 162 MegaMania Gambling Devices, 231 F.3d 713, 720 (10th Cir. 2000); 25 U.S.C

13 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 13 of 34 that the Terral Site is located within the Chickasaw Nation s former historic reservation boundaries. Id. at 1. The Notice of Decision also found that the Terral Site meets the Oklahoma Exception because the Nation had no reservation on October 17, 1988, and the Terral Site is located within the boundaries of the Nation s former reservation in Oklahoma. Id. at 3. Interior determined that acquisition of the Terral Site will facilitate tribal self-determination, economic development, and Indian housing. Id. Development of the proposed gaming facility will generate revenue to facilitate tribal self-determination by funding educational, social, and employment programs for tribal members. Id. Interior noted the Chickasaw Nation added over 2,000 new members in 2015, has demand for services that grows every year, and relies on economic opportunities such as gaming to provide for the needs of its members. Id. at 4. Accordingly, Interior found that acquisition of the Terral Site in trust will facilitate tribal self-determination and economic development. Id. at 7; 25 C.F.R Then, because the Terral Site is within the Chickasaw Nation s former reservation boundaries, Interior analyzed the criteria for on-reservation acquisitions under 25 C.F.R Ex. 1, Notice of Decision at After carefully considering each of the criteria for example, the existence of statutory authority for the acquisition, the tribe s need for additional land, and the purposes for which the land will be used Interior concluded it would acquire the land in trust and that, pursuant to Section 20 of IGRA, 25 U.S.C. 2719(a)(2)(A)(i), the Terral Site will be eligible for gaming upon its acquisition 6

14 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 14 of 34 in trust. Id. at 18. The Notice of Decision directed the BIA Regional Director to immediately accept the land in trust. Id.; see also 25 C.F.R Also on January 19, 2017, the Principal Deputy Assistant Secretary Indian Affairs at the United States Department of the Interior signed a Finding of No Significant Impact ( FONSI ), which determined based on the EA that acquiring the Terral Site in Jefferson County, Oklahoma, in trust and the subsequent development of a gaming facility by the Chickasaw Nation (Nation) will have no significant impact on the quality of the human environment with implementation of the mitigation measures and best management practices specified in the EA. Ex. 3, Finding of No Significant Impact at 1 (Jan. 19, 2017). Interior also prepared a Federal Register notice for the Notice of Decision. Ex. 4, Trust Acquisition Notice Memo. at 2 (Jan. 19, 2017). On January 20, 2017, the first day of the Trump presidential administration, the Interior Office of Executive Secretariat and Regulatory Affairs issued a memorandum requiring that all Federal Register notices be put on hold until reviewed by that office. See Ex. 5, Fed. Reg. Memo. (Jan. 20, 2017). After briefing and review, the notice was published on July 18, Fed. Reg. 32, III. STANDARD OF REVIEW [A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quotation marks and citation omitted). The movant s right to relief must be clear and unequivocal. Petrella v. Brownback, 787 F.3d 1242, (10th Cir. 2015) (quotation marks and citation 7

15 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 15 of 34 omitted). To obtain a preliminary injunction, the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant s favor; and (4) that the injunction is in the public interest. Att y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) (quoting RoDa Drilling v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009)). Plaintiff seeks a mandatory injunction (i.e., commanding an agency to rescind a past decision or action) that is specifically disfavored, meaning Plaintiff s showing must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course. Westar Energy, Inc. v. Lake, 552 F.3d 1216, (10th Cir. 2009); Schrier v. Univ. of Co., 427 F.3d 1253, 1261 (10th Cir. 2005). Moreover, the Tenth Circuit recently rejected the relaxed standard Plaintiff advocates here, whereby a plaintiff who satisfies the last three requirements for a preliminary injunction may establish likelihood of success by showing questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation. New Mexico Dep t of Game & Fish v. U.S. Dep t of the Interior, 854 F.3d 1236, 1246 (10th Cir. 2017); see also Dine Citizens Against Ruining Our Env t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016). Instead, Plaintiff must make a strong showing that it meets every element of the standard preliminary injunction test. Westar, 552 F.3d at ; Schrier, 427 F.3d at

16 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 16 of 34 IV. ARGUMENT A. PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE MERITS. First, Plaintiff cannot show a likelihood of success on the merits. 2 The Federal Defendants understand Plaintiff s argument to be that the Oklahoma Exception puts Oklahoma tribes on a footing superior to that of non-oklahoma tribes, in violation of IGRA and the regulations. See Br. in Supp. of Pl. s Mot. for Prelim. Inj. ( P.I. Mem. ) at 7-14 (Doc. No. 13-1). Specifically, Plaintiff takes issue with Interior s 2008 regulation, 25 C.F.R , that defines former reservation as lands in Oklahoma that are within the exterior boundaries of the last reservation, instead of adopting a proposed definition that would have required the lands to both be within the jurisdiction of an Oklahoma Indian tribe and within the boundaries of the last reservation. See P.I. Mem. at Plaintiff argues that by not requiring Oklahoma tribes to demonstrate that the lands upon which gaming will take place are within the jurisdiction of the tribe, Interior is giving Oklahoma tribes preferential treatment. Id. Plaintiff s argument is without merit. 1. Plaintiff Lacks Standing to Challenge the Oklahoma Exception. First, to the extent Plaintiff challenges Interior s regulations, Plaintiff lacks standing. A plaintiff challenging the legality of government action bears the burden of 2 Plaintiff s Complaint makes a claim under the National Environmental Policy Act, but Plaintiff s preliminary injunction motion does not rely on, argue, or develop this claim. Regardless, the claim, as stated in the Complaint, is based on speculation and past, unrelated NEPA documents. See Compl , 39; P.I. Mot. at 4, n.3. Indeed, Plaintiff does not appear even to have seen the EA or FONSI for the Terral acquisition. 9

17 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 17 of 34 establishing that it has standing to challenge the action. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). [T]o satisfy Article III s standing requirements, a plaintiff must show (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, (2000). The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court s judgment may benefit others collaterally. Warth v. Seldin, 422 U.S. 490, 499 (1975). Here, Plaintiff cannot show any of the three elements. First, Plaintiff cannot show that it is injured by the Oklahoma Exception. Assuming for the sake of argument that Interior s regulations favor Oklahoma tribes, Plaintiff is an Oklahoma tribe that on at least one occasion actually benefitted from these regulations. Plaintiff s Complaint and memorandum are replete with references to Oklahoma tribes being placed on a footing superior to Tribes elsewhere, see, e.g., P.I. Mem. at 9, but Plaintiff cannot maintain a case by alleging an injury to non-oklahoma tribes. 3 See Warth, 422 U.S. at 499. Similarly, Plaintiff does not trace the challenged action the application of the Oklahoma Exception to its injury. Plaintiff s only asserted injury is a loss of gaming 3 Plaintiff references other tribes in its Complaint and Motion, but no other tribe is a party to this suit and Plaintiff cannot bring claims on behalf of third-parties. 10

18 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 18 of 34 revenue. Plaintiff claims the Oklahoma Exception favors the Chickasaw Nation and others of Five Civilized Tribes in particular, see, e.g., P.I. Mem. at 6, but does not explain how the Oklahoma Exception favors those groups over other Oklahoma tribes, such as Plaintiff. Plaintiff therefore does not demonstrate causation. Nor could this Court redress Plaintiff s injury by finding that Interior s regulations are arbitrary and capricious. If the regulations are found to be arbitrary and capricious, it does not necessarily follow that this land into trust acquisition is void. 2. Plaintiff s Claim is Barred by the Statute of Limitations. Plaintiff s facial challenge to regulations promulgated in 2008 violates the statute of limitations. Plaintiff challenges the Oklahoma Exception and argues that Interior s decision not to adopt a proposed provision that would have required that the Oklahoma tribe have jurisdiction over a parcel was arbitrary and capricious. That determination occurred in 2008, well outside the six-year statute of limitations for claims against the United States. See 28 U.S.C. 2401(a). Likewise, to the extent that Plaintiff challenges the definition of Indian reservation in the land acquisition regulations, that provision was enacted in 1980, more than thirty-five years ago. A facial challenge considers the regulation s application to all conceivable parties. imatter Utah v. Njord, 774 F.3d 1258, 1264 (10th. Cir. 2014). In contrast, an as-applied challenge tests the application of that [disputed regulation] to the facts of the plaintiff s concrete case. Kansas v. NIGC, 151 F. Supp. 3d 1199, 1218 (D. Kan. 2015), aff d sub nom. Kansas ex rel. Schmidt v. Zinke, 861 F.3d 1024 (10th Cir. 2017) (quoting imatter, 11

19 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 19 of F.3d at 1264). [P]olicy-based facial challenges to the government s decision must also be brought within six years of the decision. NRDC v. Evans, 279 F. Supp. 2d 1129, 1147 (N.D. Cal. 2003) (citing Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991)). The grounds for such challenges will usually be apparent to any interested citizen within a six-year period following promulgation of the decision.... Wind River, 946 F.2d at 715. The government s interest in finality outweighs a latecomer s desire to protest the agency s action as a matter of policy or procedure. Id. Plaintiff cannot rely on the as-applied exception because the Oklahoma Exception was not applied to Plaintiff in the federal action at issue here. Instead, Plaintiff contends that the Oklahoma Exception is invalid in all circumstances. Plaintiff references evidence of many years and dozens of trust acquisitions, P.I. Mem. at 9, showing clearly that its challenge goes beyond the facts of this particular case. The Ninth Circuit has held that challenges outside the six-year statute of limitations can be brought by filing a complaint for review of the adverse application of the decision to the particular challenger. Wind River, 946 F.2d at 715. Challenges to regulations when the regulations are not being used in new ways must be brought within the six-year limitations period. See S. Cal. All. of Publicly Owned Treatment Works v. EPA, No. 2:14-CV MCE-DB, 2016 WL , at *6 (E.D. Cal. Oct. 21, 2016); Exela Pharma Scis., LLC v. Kappos, No. 1:12- CV-469, 2012 WL , at *2 (E.D. Va. Dec. 21, 2012), aff'd 781 F.3d 1349 (Fed. Cir. 2015). The logic of allowing as-applied challenges is to avoid immunizing the government because the action did not affect anyone until after six years had passed. Wind River,

20 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 20 of 34 F.2d at That logic does not apply here because the Oklahoma Exception in the 2008 regulations not only continued the agency s prior policy, it also applied to all Oklahoma tribes. The United States District Court for the District of Kansas found that the statute of limitations barred a challenge to the 2008 regulations. Kansas, 151 F. Supp. 3d at Plaintiffs failed to assert a viable as-applied challenge, leaving only their claim that Interior acted arbitrarily and in excess of authority in its promulgation of the regulations. Id. Plaintiffs there, like here, contend that the regulation is invalid as written an alleged defect that would affect all conceivable parties. Id. The grounds for plaintiffs challenge... existed in 2008 when the DOI published the regulation in the Federal Register and were apparent to any interested citizen within six years of publication. Id. (citing Wind River, 946 F.2d at 715). The court thus held that the challenge was time barred. This Court should reach the same conclusion. 3. The Claims Against NIGC Are Not Likely to Succeed Because NIGC Has Not Taken Final Agency Action Here. Under the APA, challenges must be to final agency action. See 5 U.S.C. 704 ( 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. ). In this case, there is no pending NIGC action to challenge. NIGC approved the Chickasaw Nation s tribal gaming ordinance, which is general and does not reference specific locations, in Ex. 6, NIGC Approval of Chickasaw Nation Public Gaming Act of 1994, Tribal Law ( Chickasaw Gaming Ordinance ) 13

21 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 21 of 34 (Mar. 4, 1994); Ex. 7, Decl. of Anthony Wheeler ( Wheeler Decl. ) at 3-4. Thus, there is no pending gaming ordinance request before NIGC. Ex. 7, Wheeler Decl. at 4-5. NIGC also does not issue facility licenses to tribal gaming operations. Id. at 10. Instead, NIGC s regulations, at 25 U.S.C. Part 559, require tribes to provide NIGC with notice of the tribe s intent to license a facility and a copy of the license once the tribe has issued or renewed it. 25 C.F.R , 559.3; Ex. 7, Wheeler Decl. at 8-9 The NIGC does not have the authority to either rescind a gaming ordinance or block the tribal licensing of the property, although it may take appropriate enforcement action if it determines that a tribe is gaming on land that is ineligible for gaming under IGRA. 25 U.S.C. 2713; 25 C.F.R , 573.4(a)(13), 575.4; Ex. 7, Wheeler Decl. 6-7, 13. Because NIGC has not taken any action with regard to the land acquisition or the opening or operation of the casino, the Court lacks jurisdiction over NIGC and Plaintiff is not likely to succeed on its claims against NIGC. See Colo. Farm Bureau Fed n v. U.S. Forest Serv., 220 F.3d 1171, 173 (10th Cir. 2000) (noting that plaintiffs must challenge final agency action under the APA). 4. Plaintiff is Not Likely to Succeed on the Merits of its APA Claim Because Interior Acted Reasonably in Adopting the Oklahoma Exception. Plaintiff cannot show a likelihood of success on the merits of its APA claim because the Oklahoma Exception is a reasonable construction of the statute. Federal Defendants are entitled to Chevron deference here, where the question before the Court is whether the agency s regulations are an acceptable interpretation of the statute. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Congress delegated 14

22 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 22 of 34 authority to Interior to interpret IGRA through regulations. Plaintiff argues that Interior s interpretation is entitled only to at most Seminole Rock/Auer deference. P.I. Mem. at 13. Under this standard, the agency s interpretation of its own regulations is assigned controlling weight unless it is plainly erroneous or inconsistent with the regulation. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Plaintiff is mistaken. Auer involved an agency s interpretation of its own regulations in an amicus brief. Auer v. Robbins, 519 U.S. 452, 456 (1997). There is no question here about whether Interior is properly interpreting its regulations; the question is whether the regulations are an acceptable interpretation of the statute. See P.I. Mem. at 13. As such, Chevron applies. Plaintiff argues that Interior is not entitled to any deference because the agency s interpretation conflicts with a prior interpretation, and asserts that Interior s interpretation is merely a convenient litigating position. Plaintiff s argument is meritless. The trust acquisition regulations and regulations implementing IGRA have included the contested sections since their respective publications in 1980 and The definition of reservation in the trust acquisition regulations has always expressly included former reservations in the State of Oklahoma and the IGRA Section 20 regulations have always included the Oklahoma Exception. Plaintiff cites no case law or authority showing that a proposed provision that ultimately was not adopted constitutes a change in interpretation. Nor does Plaintiff identify how the definition can be a convenient litigating position, when the regulation has never incorporated a jurisdictional provision. In fact, Plaintiff does not identify any court case or other instance where Interior took a different 15

23 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 23 of 34 position. Plaintiff s argument is based entirely on the fact that Interior adopted new regulations while the Apache Tribe of Oklahoma v. United States case was on remand to the agency and in so doing, rejected a proposal that would have incorporated a jurisdictional element. Plaintiff s argument that Interior has not had a consistent position on the Oklahoma Exception is thus unsupported and should be dismissed. Plaintiff s reliance on Apache as precedent here also is misguided. See P.I. Mem. at & Ex. 13. In Apache, the Court found that the record did not support a finding that the lands at issue were former reservation lands. Here, Plaintiff does not contend that the lands are not part of the Chickasaw Nation s former reservation, but argues only that Interior must consider whether the Chickasaw Nation has jurisdiction over the tract when determining whether the lands are part of the former reservation. The 2017 Notice of Decision specifically finds that the Terral Site is within the Chickasaw Nation s former historic reservation boundaries and that the Chickasaw Nation owns the property at issue. See Ex. 1, Notice of Decision at 1-3. Apache also dealt with the approval of a tribal-state compact pursuant to 25 U.S.C. 2710(d)(8)(A). In that case, the land was already held in trust by the United States. The Apache court also did not agree with Plaintiff that a former reservation determination under 25 U.S.C includes a jurisdictional element. Apache at 7. Instead, the court considered the jurisdictional element of the term Indian lands, something Plaintiff has not argued here. Apache simply is not relevant. Interior s definition of former reservation is based on a permissible construction of the statute. IGRA provides that gaming can occur on lands taken into trust after October 16

24 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 24 of 34 17, 1988, if the Indian tribe did not have a reservation on that date, the lands are located in Oklahoma, and are within the boundaries of the tribe s former reservation. 25 U.S.C Nowhere does this provision require a finding that the Oklahoma tribe exercise jurisdiction over the parcel taken into trust. The regulations track this language almost exactly: to meet the exceptions in 25 U.S.C. 2719(a), for a tribe without a reservation on October 17, 1988, seeking to game on newly acquired land in Oklahoma, the land must be within the boundaries of the tribe s former reservation or contiguous to other land held in trust or restricted status for the tribe in Oklahoma. 25 C.F.R Notably, Plaintiff makes no argument that this language is not a permissible construction of the statute. It points to no language in the statute that would compel such a finding. Its argument is solely that Interior considered but did not adopt a jurisdictional provision when it passed regulations in 2008 and that tribes outside Oklahoma are at a disadvantage. This argument is insufficient to prevail on its APA claim. The Oklahoma Exception also does not discriminate against non-oklahoma tribes, as Plaintiff asserts. Instead, the regulations provide that for gaming to be allowed on newly acquired lands under the exceptions in 25 U.S.C. 2719(a), if a tribe located in a state other than Oklahoma did not have a reservation on October 17, 1988, the land must be within the tribe s last recognized reservation within the State or States within which the tribe is presently located, as evidenced by the tribe s governmental presence and tribal population. 25 C.F.R There is good reason to include the Oklahoma Exception, given the history of Oklahoma tribes. The Senate Committee on Indian Affairs noted in 17

25 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 25 of 34 discussing 25 U.S.C. 2719(a) that in Oklahoma, many tribes occupy and hold title to trust lands that are not technically considered reservations. This section is necessary, however, because of the unique and historical and legal differences between Oklahoma and tribes in other areas. S. Rep. No , 99th Cong., 2d Sess. 10 (1986). Finally, this Court should reject Plaintiff s suggestion that Murphy v. Royal, 866 F.3d 1164 (10th Cir. Aug. 8, 2017), indicates that lands acquired in trust for the Chickasaw after enactment of IGRA were not subject to IGRA s Oklahoma Exception, without regard to the existence of governmental jurisdiction. P.I. Mem. at 5 n.5. In Murphy, the Tenth Circuit found that Congress never disestablished the Creek Reservation and that the Oklahoma state court thus did not have criminal jurisdiction over events occurring on the reservation. Id. at Murphy did not analyze the status of the Chickasaw Reservation and strictly involved state criminal jurisdiction on Indian reservations. It should not be extended beyond its facts, particularly here where Plaintiff has not demonstrated that doing so is appropriate. 4 B. PLAINTIFF HAS NOT ESTABLISHED A LIKELIHOOD OF IMMINENT IRREPARABLE HARM. Plaintiff s Motion also fails because Plaintiff has not shown that irreparable harm 4 A petition for rehearing was filed by Respondent on September 21, 2017, raising questions as to the finality of the decision. See Ex. 8, Murphy Docket Sheet. The petition for rehearing is significant because Plaintiff admits its present argument hinges on the extension of the groundbreaking Murphy holding to the Chickasaws. Compl. 31. Not only is there no factual or legal basis to make such a leap, the pendency of Murphy, at a minimum, precludes Plaintiff from touting it as the basis for injunctive relief. 18

26 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 26 of 34 will occur absent immediate injunctive relief. To constitute irreparable harm, an injury must be certain, great, actual, and not theoretical. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). Plaintiff must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm. Id.; see also Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001) (emphasis in original). An injury that is merely serious or substantial is not enough, and simple economic loss usually does not, in and of itself, constitute irreparable harm. Heideman, 348 F.3d at Plaintiff Has Not Shown a Concrete Harm. Plaintiff s irreparable harm claim is, because the Terral facility lies less than 45 miles upriver from the Comanche Red River Hotel Casino, it is likely to have a significant impact on the revenues currently generated by the Comanche facility. P.I. Mem. at 2 3. In support, Plaintiff relies on two affidavits. The first, by Jimmy W. Arterberry, Tribal Administrator for the Comanche Nation, states that 58.38% of the Nation s annual budget derives from revenues generated by the Comanche s casino. P.I. Mem. at Ex. 7 at 1 2. Mr. Arterberry also makes the conclusory statement that the Chickasaw s Terral facility is certain to diminish patronage at the Nation s Red River Hotel Casino, and that [s]uch a tremendous loss of revenues would take a devastating and irreparable toll. Id. at 2. Missing from Mr. Arterberry s affidavit, however, is any evidence that he is qualified to opine on market shares, market saturation, revenue drivers, 19

27 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 27 of 34 or the gaming market in Oklahoma. He also fails to quantify the magnitude of the certain loss or factually support his conclusion that revenues will be diminished. Plaintiff s second affidavit is similarly lacking in details. Michael Starr, Chief Executive Officer of the Comanche Nation Entertainment, states the Terral facility will, indeed, cause a detrimental decrease in revenue to the Comanche Nation and Comanche Nation programs will certainly suffer with the loss of revenue. P.I. Mem. at Ex. 8 at 2 3. Even if Mr. Starr is qualified to render those opinions, he still fails to establish imminent irreparable harm. Mr. Starr does not address the size of the gaming market in Devol or Terral, provide a factual basis to conclude that the Terral facility will saturate the market, or quantify the magnitude of the financial loss to Plaintiff. Plaintiff did not hire an economic expert to conduct an independent analysis, nor did they provide any evidence beyond these two self-serving and conclusory affidavits. As the Tenth Circuit held, unsupported witness testimony about business decline, [even if] sincere, does not meet the legal test. Coal. of Concerned Citizens to Make ART Smart v. FTA, 843 F.3d 886 (10th Cir. 2016); see also New Mexico Dep t of Game & Fish, 854 F.3d at 1253 (The general rule is a preliminary injunction should not issue on the basis of affidavits alone. (quoting Lane v. Buckley, 643 Fed. Appx. 686, 689 (10th Cir. 2016))). Where Plaintiff fails to provide any specific number or hard projections, for example, to show how much business will be lost, injunctive relief is not appropriate. Id. 20

28 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 28 of Plaintiff Is Not Facing Imminent Harm. Even if the Court gives some weight to Plaintiff s affidavits, there is no evidence establishing that the alleged economic injuries are imminent. Indeed, the legal arguments advanced by Plaintiff challenge past agency action (namely, Interior s regulations which were passed in 2001 and 2008). But remedying past harm is not a proper basis for injunctive relief. See Schrier, 427 F.3d at 1267; Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1280 (D.C. Cir. 2012). Plaintiff s ultimate goal appears to be enjoining the opening of the Terral facility. That relief is not available here, however, because NIGC has no role in nor any jurisdiction to prevent the construction or operation of the Terral facility. Ex. 7, Wheeler Decl. at 5-7, 10, 13. There is no further action for NIGC to take with respect to the Terral site or facility and, therefore, no looming, yet-to-occur harm to enjoin. Id. To the extent Plaintiff seeks a disfavored rescission of past agency action as an indirect way of preventing the Terral facility from opening (inappropriate as that may be), Plaintiff nonetheless has not demonstrated that it is facing imminent harm. To warrant injunctive relief, the injury must be likely to occur before the district court rules on the merits. New Mexico Dept. of Game & Fish, 854 F.3d at 1250 (quoting Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1260 (10th Cir. 2003)). In support of its Motion, Plaintiff presented two photographs of the Terral facility. P.I. Mem., Exs. 2 & Plaintiff cannot compare the photographs to establish the speed of construction. The first does not show the entire structure and the photographs are not taken from the 21

29 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 29 of 34 The most recent photograph was taken less than one month ago and shows an incomplete structure that is far from ready for public gaming. Id. at Ex. 3. That is the only evidence before the Court as to the imminence of the harm Plaintiff claims will occur. Although the Chickasaw Nation has submitted a facility license notification to the NIGC as required by 25 C.F.R. Part 559, there is no evidence that a license issued. And even if the Chickasaw Nation license the Terral facility, the NIGC does not approve the license and cannot prevent or prohibit its issuance. There also is no evidence that the Chickasaw Nation is soliciting resumes for potential employees or promoting and advertising the facility. There are no coming soon advertisements or billboards, nor is there evidence that the Terral facility has passed any of the building inspections required before it could open to the public. Plaintiff presents no credible and concrete evidence that the facility will open before the Court can resolve this case on the merits. Indeed, inquiries made by the Federal Defendants to the Chickasaw suggest that a spring 2018 opening is projected, which leaves ample time for a resolution of this dispute on the merits without the need for injunctive relief Plaintiff s Alleged Economic Harm Also is Not Irreparable. Despite the confusion elsewhere in Plaintiff s motion, one point is clear Plaintiff s only claimed irreparable harm is purely economic. Plaintiff fears a loss of revenue, same vantage point, which precludes a meaningful and accurate comparison. 6 This is particularly true given that Plaintiff s claims will be decided based on the existing administrative record and without the need for a lengthy discovery period. Interior already compiled the administrative record and is formatting it for review and then service on Plaintiff and this Court. 22

30 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 30 of 34 nothing more. Under Tenth Circuit precedent, economic harm, alone, is not enough to warrant the extreme remedy of a TRO or preliminary injunction. Notably, neither of Plaintiff s affiants assert that gaming at the Terral facility will force the Red River Casino out of business. There also is no evidence that, if Plaintiff succeeds here, consumers who choose to game at the Terral facility would not patronize the Comanche facility. See Heideman, 348 F.3d at 1189 (considering the absence of any evidence that the affected activities could not resume or that the subject establishments would be forced out of business). There is no evidence that it would be difficult or impossible to stop any revenue losses if Plaintiff ultimately prevails here, which is the hallmark of irreparable harm. Plaintiff claims that the alleged harm is irreparable because the Administrative Procedures Act provides no potential monetary relief to a prevailing plaintiff. P.I. Mem. at 3. Following Plaintiff s reasoning, there would be a blanket rule that economic loss suffices when the defendant is a governmental body. That is not the case. See, e.g., Smith v. United States, No. 13-cv RM-KLM, 2015 WL , at *2 (D. Colo. Feb. 10, 2015) (alleging that litigant will suffer abject poverty was insufficient to show irreparable loss because it was purely an economic harm). Plaintiff must do more to establish irreparable harm. Regardless, economic injuries stemming from competitor gaming facilities are addressed in the Oklahoma Model Tribal Gaming Compact. OKLA. STAT. ANN. TIT. 3A, 281 at Part 11(E)-(F) (West 2017). As Plaintiff states in the Complaint, [t]he [Comanche] Nation is therefore a nearby Tribe within the meaning of the [Oklahoma State-Tribal] 23

31 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 31 of 34 Compact and eligible for prospective revenue from the Terral facility. Compl. 8. The Federal Defendants take no position on the validity of Plaintiff s position at this time; however, by Plaintiff s own admission, it has a mechanism for recovering revenues lost to the new facility. This admission undercuts any claim of irreparable harm C. THE EQUITIES WEIGH AGAINST AN INJUNCTION. A movant seeking a TRO or preliminary injunction bears the burden of establishing that the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). The movant also is required to demonstrate that the injunction is not adverse to the public interest. Heideman, 348 F.3d at 1191 (citing Kikumura, 242 F.3d at 955). First, Plaintiff failed to rebut the presumption that all governmental action pursuant to a statutory scheme is taken in the public interest. Aid for Women v. Foulston, 441 F.3d 1101, 1115 n.15 (10th Cir. 2006). Though it is unclear precisely what Plaintiff is challenging, all three Agency actions discussed in the Motion were taken pursuant to a statutory scheme IGRA or IRA. Therefore, there is a presumption that the requested injunction would be against the public interest. Given that two of the subject actions occurred more than ten years ago, this factor should be given even more weight because the public has relied on and acted in accordance with those Agency decision for a significant period of time. The Government has a strong interest in upholding statutory and regulatory deadlines for public comments and legal challenges to its actions. 24

32 Case 5:17-cv HE Document 20 Filed 09/25/17 Page 32 of 34 The Chickasaw Nation also would be impacted by Plaintiff s requested injunction. Plaintiff seeks preliminary injunctive relief requir[ing] NIGC to act immediately to rescind either or both of the gaming ordinance and/or the facility license for the Terral facility. P.I. Mem. at 18. But, as discussed above, NIGC does not issue facility licenses. Ex. 7, Wheeler Decl. 3-7, 10, 13. Instead, the gaming ordinance approved by NIGC on March 4, 1994, set the parameters by which the Chickasaw Nation may conduct gaming on any eligible lands within the State of Oklahoma. Id. The relief Plaintiff seeks is not possible, is not tied to the Federal Defendants allegedly arbitrary acts, and is not narrowly tailored to address only the claimed irreparable harm. 7 These significant impacts and interests weigh heavily against the issuance of a TRO or preliminary injunction, particularly given that this case can be decided on the merits before gaming begins at the Terral facility. Plaintiff s Motion should be denied. V. CONCLUSION For the reasons set forth above, the Federal Defendants request that the Court deny the Comanche Nation s motion for preliminary injunction. 7 Alternatively, if the Court construes Plaintiff s motion as seeking the rescission of the trust acquisition of the Terral site, that also would be harmful to the Chickasaw Nation and contrary to the public interest. In the Notice of Decision, Interior found that acquisition of the Terral site will facilitate tribal self-determination, economic development, and Indian housing under Section 151.3(a)(3). Ex. 1, Notice of Decision at 3. The Notice of Decision details the financial challenges resulting from recent tribal population growth, provides statistics on the demand for tribal programs, and enumerates projected budget shortfalls for eight tribal programs. Id. at