Case 2:16-cv AWI-EPG Document 37 Filed 07/19/17 Page 1 of 68 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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1 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 DANIELLE SPINELLI (PRO HAC VICE) CHRISTOPHER E. BABBITT (SBN ) WILMER CUTLER PICKERING HALE AND DORR LLP Pennsylvania Avenue, N.W. Washington, D.C. 000 Telephone: (0) -000 Facsimile: (0) - danielle.spinelli@wilmerhale.com christopher.babbitt@wilmerhale.com JOHN A. MAIER (SBN ) MAIER PFEFFER KIM GEARY & COHEN LLP 0 Broadway, Suite Oakland, CA Telephone: (0) -00 Facsimile: (0) jmaier@jmandmplaw.com Attorneys for THE NORTH FORK RANCHERIA OF MONO INDIANS OF CALIFORNIA STAND UP FOR CALIFORNIA!, et al., v. Plaintiffs, UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. :-cv-0-awi-epg INTERVENOR THE NORTH FORK RANCHERIA OF MONO INDIANS MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Date: Time: Court:, th Floor Judge: Honorable Anthony W. Ishii

2 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii INTRODUCTION... BACKGROUND... A. Tribal Background... B. Legal Background... C. The Secretarial Determination, Governor s Concurrence, And Federal Acquisition Of Land In Trust... D. The 0 Compact, IGRA Remedial Litigation, And Secretarial Procedures... E. Related Actions.... Stand Up s District of Columbia Action.... Stand Up s California State Gubernatorial Concurrence Action...0. United Auburn s California State Gubernatorial Concurrence Action...0 STANDARD OF REVIEW... ARGUMENT... I. THE SECRETARIAL PROCEDURES DO NOT VIOLATE THE JOHNSON ACT (CLAIM I)... II. A. Stand Up s Argument Contradicts IGRA When Read As A Whole... B. Stand Up s Argument Contradicts IGRA s Purpose... C. Stand Up s Argument Contradicts The Ninth Circuit s Interpretation Of IGRA... D. Stand Up s Argument Fails Even If IGRA Were Ambiguous... E. Stand Up s Argument Is Not Supported By IGRA s Legislative History... THE SECRETARY S ISSUANCE OF THE SECRETARIAL PROCEDURES DID NOT VIOLATE NEPA (CLAIM II)...0 A. The Secretary Was Not Required To Prepare A NEPA Analysis.... Secretarial Procedures Are Not A Major Federal Action Under NEPA Because The Secretary Is Not A Legally Relevant Cause Of Any Environmental Effects... - i -

3 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 III. IV.. Even If Issuing Secretarial Procedures Was A Major Federal Action, NEPA s Rule Of Reason Freed The Secretary From The NEPA Requirement.... Subjecting Secretarial Procedures To NEPA Conflicts With IGRA... B. Even If Secretarial Procedures Generally Require A NEPA Analysis, The Existing EIS Satisfied That Requirement Here... THE SECRETARY S ISSUANCE OF SECRETARIAL PROCEDURES DID NOT VIOLATE THE CLEAN AIR ACT (CLAIM III)... THE SECRETARY LAWFULLY PRESCRIBED SECRETARIAL PROCEDURES (CLAIM V)... A. Stand Up Is Collaterally Estopped From Relitigating Whether The State Of California Is An Indispensable Party To Its Fifth Claim.... In Stand Up s District Of Columbia Action, The District Court Held That Stand Up s Claims In Any Way Involving The Governor s Concurrence Must Be Dismissed Due To The Absence Of An Indispensable Party.... Stand Up Is Collaterally Estopped From Relitigating Whether California Is An Indispensable Party To Claims Involving the Governor s Concurrence.... California Is An Indispensable Party To Stand Up s Fifth Claim... B. The Secretary s Issuance Of Secretarial Procedures Was Lawful Regardless Of The California Supreme Court s Decision Because The Governor s Concurrence Is Collateral To Them...0. IGRA Required The Secretary To Issue The Secretarial Procedures...0. Stand Up Cannot Collaterally Attack The Madera Site s Eligibility For Gaming In A Claim Challenging Secretarial Procedures... C. The Secretary s Issuance Of The Secretarial Procedures Was Lawful Even If The Governor s Concurrence Was Not Collateral To That Decision.... Subsequent Developments Cannot Undermine The Secretary s Prescription Of The Secretarial Procedures.... The Secretary Was Entitled To Rely On The Governor s Facially Valid Concurrence... D. If The Court Determines That Stand Up s Fifth Claim Requires Resolution Of The Governor s Concurrence Authority Under State Law, The Court Should Hold That The Governor Acted Within His Authority... CONCLUSION... CERTIFICATE OF SERVICE - ii -

4 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 Federal Cases TABLE OF AUTHORITIES Page(s) Alabama v. PCI Gaming Authority, 0 F.d (th Cir. 0)... Alaska Wilderness League v. Jewell, F.d (th Cir. 0)...,, American Greyhound Racing, Inc. v. Hull, 0 F.d 0 (th Cir. 00)..., 0 Animal Legal Defense Fund v. Vilsack, F. Supp. d (D.D.C. 0)... Artichoke Joe s Cal. Grand Casino v. Norton, F.d (th Cir. 00)...,, Artichoke Joe s v. Norton, F. Supp. d 0 (E.D. Cal. 00), aff d, F.d (th Cir. 00)... Baris v. Sulpicio Lines, Inc., F.d (th Cir. ), vacated on other grounds & aff d by an equally divided en banc court, 0 F.d (th Cir. )... Beauchamp v. Anaheim Union High School District, F.d (th Cir. 0)... Big Lagoon Rancheria v. California, F.d (th Cir. 0) (en banc)...,,, California v. Cabazon Band of Mission Indians 0 U.S. 0 ()...0, Center for Biological Diversity v. Bureau of Land Management, F.d (th Cir. 0)... Citizens to Preserve Overton Park, Inc. v. Volpe, 0 U.S. 0 ()... Clark v. Bear Stearns & Co., Inc., F.d (th Cir. )... Collins v. D.R. Horton, Inc., 0 F.d (th Cir. 00)... Corley v. United States, U.S. 0 (00)... - iii -

5 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 Department of Transportation v. Public Citizen, U.S. (00)... passim Flint Ridge Dev. Co. v. Scenic Rivers Association of Oklahoma, U.S. ()..., ForestKeeper v. Elliott, 0 F. Supp. d (E.D. Cal. 0)..., Frankl v. HTH Corp., 0 F.d (th Cir. 0)... Friends of Amador County v. Salazar, F. App x (th Cir. 0)...0 Griffin v. Oceanic Contractors, Inc., U.S. ()... Gwartz v. Jefferson Memorial Hospital Association, F.d (th Cir. )... Hein v. Capitan Grande Band of Diegueno Mission Indians, 0 F.d (th Cir. 000)... In re Indian Gaming Related Cases, F.d 0 (th Cir. 00)... International Brotherhood Of Teamsters v. Daniel, U.S. ()... Jamul Action Comm. v. Chaudhuri, F.d (th Cir. 0)... Joffe v. Google, Inc., F.d 0 (th Cir. 0)... Kickapoo Tribe v. Babbitt, F.d (D.C. Cir. )...0 Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. United States, F.d 0 (th Cir. 00)... Leser v. Garnett, U.S. 0 ()...0 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, U.S. ()... Mashantucket Pequot Tribe v. State of Connecticut, F.d 0 (d Cir. 0)... - iv -

6 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 Metropolitan Edison Co. v. People Against Nuclear Energy, 0 U.S. ()... Michigan v. Bay Mills Indian Community, S. Ct. 0 (0)... Middlebury Associates v. R. E. Bean Construction Co., F. Supp. (D. Vt. )... Montana v. Blackfeet Tribe of Indians, U.S. ()... National Association of Homebuilders v. Defenders of Wildlife, U.S. (00)... National Wildlife Federation v. U.S. Army Corps of Engineers, F.d (th Cir. 00)... Natural Resources Defense Council, Inc. v. Berklund, F. Supp. (D.D.C. )... New Mexico v. Department of Interior, F.d 0 (0th Cir. 0)..., Northern Cheyenne Tribe v. Norton, 0 F.d (th Cir. 00)..., North Fork of Rancheria of Mono Indians of California v. State of California, 0 WL 0 (E.D. Cal. Nov., 0)... North Fork Rancheria of Mono Indians v. California, 0 WL 0 (E.D. Cal. Aug. 0, 0)... Oliphant v. Schlie, F.d 00 (th Cir. ), rev d on other grounds, U.S. ()..., 0,, Omaha Tribe of Nebraska v. Village of Walthill, F. Supp. (D. Neb. )...0 Pacific Coast Federation of Fishermen s Associations v. Blank, F.d 0 (th Cir. 0)... Pueblo of Santa Ana v. Kelly, 0 F.d (0th Cir. )...,, Pueblo of Santa Ana v. Kelly, F. Supp. (D.N.M. ), aff d, 0 F.d (0th Cir. )... Rapoport v. Republic of Mexico, F. Supp. (D.D.C. )... - v -

7 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 0 F.d 0 (th Cir. 00)... passim Rodriguez v. Sony Computer Entertainment America, LLC, 0 F.d 0 (th Cir. 0)... San Luis & Delta-Mendota Water Authority v. Jewell, F.d (th Cir. 0)... San Luis & Delta-Mendota Water Authority v. U.S. Department of Interior, F. Supp. d (E.D. Cal. 00), aff d, F.d (th Cir. 0)... Seneca-Cayuga Tribe of Oklahoma v. National Indian Gaming Commission, F.d 0 (0th Cir. 00)... Sierra Club v. Mainella, F. Supp. d (D.D.C. 00)... Stand Up for California! v. U.S. Department of Interior, F. Supp. d (D.D.C. 0)..., Stand Up for California! v. U.S. Department of Interior, 0 F. Supp. d (D.D.C. 0), appeal docketed, Nos. -, - (D.C. Cir. Nov., 0)... passim Stotler & Co. v. Able, 0 F.d (th Cir. )... Sturgeon v. Frost, S. Ct. 0 (0)... Sycuan Band of Mission Indians v. Roache, F.d (th Cir. )... Texas v. United States, F.d (th Cir. 00)..., U.S. ex rel. Widenmann v. Colby, F. (D.C. Cir. 0)...0 United Cook Inlet Drift Association v. National Marine Fisheries Service, F.d 0 (th Cir. 0)... United States v. 0 Electronic Gambling Devices, F.d 0 (th Cir. 000)... United States v. Brown, F. Supp. (D. Neb. )..., 0,, United States v. Doe, F.d (th Cir. 0)... - vi -

8 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 United States v. Lawrence, F.d (th Cir. )... United States v. McIntosh, F.d (th Cir. 0)... United States v. Spokane Tribe of Indians, F.d (th Cir. )... passim Unkeowannulack v. Table Mountain Casino, No. 0-cv-, 00 WL 0 (E.D. Cal. Nov., 00)... Westlands Water District v. Department of Interior, F.d (th Cir. 00)... Wild Fish Conservancy v. Jewell, 0 F.d (th Cir. 0)... Wilderness Society v. Dombeck, F.d (th Cir. )... State Cases Sacks v. City of Oakland, 0 Cal. Rptr. d (Ct. App. 00)... Stand Up for California! v. State of California, Cal. Rptr. d 0 (Ct. App. 0), review granted, 0 P.d (Cal. 0)...0 United Auburn Indian Community v. Brown, 0 Cal. Rptr. d (Ct. App. 0), review granted, P.d (Cal. 0)...,, Docketed Cases Picayune Rancheria of Chukchansi Indians v. U.S. Department of Interior, No. -0 (E.D. Cal. compl. filed July, 0)... Stand Up for California! v. Brown, No. MCV00 (Cal. Super. Ct. Madera Cty. compl. filed Mar., 0)...0 Stand Up for California! v. Department of Interior, No. -cv-0 (D.D.C. compl. filed Dec., 0)..., Federal Statutes U.S.C. 0()(A)..., U.S.C. 0()(C)... - vii -

9 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 U.S.C. (a)... U.S.C.... U.S.C.... U.S.C.... U.S.C. (a)... U.S.C U.S.C. 0()..., U.S.C. 0()(B)... U.S.C. 0()... U.S.C. 0()... U.S.C. 0()...0 U.S.C. 0..., U.S.C. 0(a)()... U.S.C. 0(d)()..., U.S.C. 0(d)()(B)... U.S.C. 0(d)()(C)..., U.S.C. 0(d)()...,,, U.S.C. 0(d)()..., U.S.C. 0(d)()(A)... U.S.C. 0(d)()(B)... passim U.S.C. 0(d)()(A)... U.S.C. 0(d)()(C)..., U.S.C. (b)()(a)... passim U.S.C. (C)..., U.S.C. 0(c)... Pub. L. No. -0, Chapter 0, Stat. (Aug., )... - viii -

10 Case :-cv-0-awi-epg Document Filed 0// Page 0 of 0 0 State Statutes Gov. Code 0.(0)... Gov. Code 0.()... Constitutional Provisions CAL. CONST. art. IV, (e)...0, CAL. CONST. art. IV, (f)...,, Rules FED. R. CIV. PROC....,,, Cal. R. Ct..(e)()...0 Regulations C.F.R. pt....,, C.F.R..... C.F.R..(j)... C.F.R..(b)..., 0 C.F.R..0(a)..., 0 C.F.R....., 0 C.F.R..(b)...,, 0 C.F.R..(c)...,, 0 C.F.R C.F.R. 00.(c)... 0 C.F.R , C.F.R..0(c)..., 0 C.F.R..0(d)... Fed. Reg., (May, )... Fed. Reg., (Mar., )... Fed. Reg., (Jan., )..., - ix -

11 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 Fed Reg., (Dec., 000)... Fed. Reg.,0 (Mar., 00)... Fed. Reg., (June, 00)... Fed. Reg., (May 0, 00)... Fed. Reg., (Oct., 00)... Fed. Reg., (Oct., 0)... Exec. Order No.,, Fed. Reg., (Nov., )... Other Authorities Cong. Rec.,0 ()...0 Cong. Rec., () (statement of Rep. Vucanovitch)... S. Rep. 00-, as reprinted in U.S.C.C.A.N. 0 ()... Assembly Bill No.... Letter from Joginder S. Dhillon, Senior Advisor for Tribal Negotiations, Office of the Governor, to Maryann McGovran, Chairwoman, North Fork Rancheria of Mono Indians (Sept., 0), available at Secretarial Procedures for the Rincon Band of Luiseno Indians.,. (Feb., 0), available at documents/text/idc-0.pdf... Wright et al., Federal Practice and Procedure... - x -

12 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 INTRODUCTION Congress enacted the Indian Gaming Regulatory Act ( 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(). To further that purpose, IGRA authorizes tribes to engage in class III gaming, which includes slot machines, where the gaming is permitted in the tribe s home state and the tribe negotiates a compact with the state. Id. 0()(B)(ii), (), 0(d)(). To guard against the possibility that states might choose not to negotiate, or to negotiate in bad faith, Congress included a complex set of procedures designed to protect tribes from recalcitrant states. United States v. Spokane Tribe of Indians, F.d, (th Cir. ). Under that highly reticulated remedial process, [i]f a court finds that a state has failed to negotiate in good faith, IGRA empowers the court to order additional negotiations and, if necessary, to order the parties into mediation in which a compact will be imposed. Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 0 F.d 0, 0 (th Cir. 00). IGRA makes clear that the function of the good faith requirement and judicial remedy is to permit the tribe to process gaming arrangements on an expedited basis. Id. at 0 (emphasis added). Those arrangements including gaming on terms prescribed by the Secretary of the Interior ( Secretary ) and known as Secretarial procedures enable a tribe to engage in the gaming that it seeks. Big Lagoon Rancheria v. California, F.d, (th Cir. 0) (en banc) (emphasis added). Here, this Court found that the State of California did not comply with IGRA s goodfaith requirement to negotiate with North Fork Rancheria of Mono Indians ( North Fork ) for a class III gaming project on North Fork s land in Madera County ( Madera Site ), triggering IGRA s remedial process. Under that process, after the parties failed to reach agreement, the mediator selected a compact that permitted class III gaming, including slot machines, and submitted that compact to the Secretary. IGRA then required the Secretary to prescribe Secretarial procedures consistent with the proposed compact selected by the mediator., the provisions of [IGRA], and the relevant provisions of the laws of the State. U.S.C. - -

13 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 0(d)()(B)(vii). The Secretary complied, issuing procedures for North Fork in July 0. Plaintiffs (collectively, Stand Up ) do not contend that the Secretary issued procedures that are not sufficiently consistent with the mediator-selected compact, the provisions of IGRA, or state laws regulating the conditions of gaming. Rather, Stand Up contends that the Secretary violated other federal laws that have no foothold in IGRA s remedial provision namely, the Johnson Act, by not changing the mediator-selected compact to prohibit slot machines; the National Environmental Policy Act ( NEPA ) by not conducting another year-plus-long environmental analysis; and the Clean Air Act ( CAA ) by not performing another months-long emissions analysis. In other words, Stand Up contends that the Secretary should not have enabled North Fork to engage in the class III gaming that it seeks and should not have processed gaming arrangements on an expedited basis, but instead should have delayed for one or more years. Indeed, Stand Up also contends that the Secretary should never have issued any procedures at all because, Stand Up alleges, a separate act taken by the Governor of California concurring in the Secretary s Secretarial determination under IGRA violated state law. This is not the first time that Stand Up has brought claims under NEPA or the CAA challenging the Secretary s authorization of North Fork s class III gaming project. Stand Up brought similar claims in federal district court in the District of Columbia challenging the Secretary s decision to acquire the Madera Site in trust for North Fork s project, and the district court rejected them all. See Stand Up for California! v. U.S. Dep t of Interior, 0 F. Supp. d, (D.D.C. 0). Nor is this the first time that Stand Up has brought a claim against the Secretary involving the Governor s state-law authority. The District of Columbia court held that Stand Up s claims in any way involving the Governor s concurrence must be dismissed due to the absence of an indispensable party, the State of California. Id. at. It also rejected Stand Up s claim that the Secretary s trust-acquisition decision was invalid because North Fork will conduct class III gaming under Secretarial procedures instead of a compact, noting that the statutory imprimatur of legitimacy given to the Secretarial procedures, which IGRA requires the Secretary to promulgate, consistent with the mediator s selected compact, sets a high bar to attack these procedures in a guise of a challenge to the trust-acquisition decision. Id. at. - -

14 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 Stand Up s four challenges here to the Secretary s issuance of those procedures likewise fail. First, the Secretary s authorization of slot machines did not violate the Johnson Act because IGRA treats Secretarial procedures as a full substitute for tribal-state compacts, exempt from the Johnson Act s prohibitions. Class III gaming that IGRA permits and that IGRA, moreover, requires the Secretary to authorize does not violate the Johnson Act. When read as a whole, IGRA makes clear that the Secretary may authorize slot machines; furthermore, here, the Secretary lacked discretion not to authorize them because the mediator-selected compact with which the procedures were required to be consistent permitted them. Stand Up s contrary argument contradicts IGRA s text and purpose, Ninth Circuit law holding that class II gaming conducted under IGRA is exempt from the Johnson Act, and Ninth Circuit law explaining that slot machines can be operated pursuant to Secretarial procedures. Second, the Secretary did not violate NEPA in issuing the Secretarial Procedures without undertaking an environmental analysis. Issuance of Secretarial procedures is not an agency action subject to NEPA because the Secretary is not the legally relevant cause of any environmental effects that would occur. The Secretary already conducted a comprehensive NEPA analysis for the trust-acquisition decision; he was neither permitted nor required to conduct an additional NEPA analysis when issuing the Procedures. Third, the Secretary did not violate the CAA for similar reasons. The Secretary is not required to complete a CAA emissions conformity analysis when issuing Secretarial procedures because the procedures do not regulate environmental effects like emissions. The Secretary already performed a conformity analysis for the trust-acquisition decision; performing another one for the Procedures would have been inconsistent with governing precedent and IGRA. Fourth, Stand Up s claim involving the Governor s concurrence authority under state law fails for three independent reasons of federal law. Stand Up is collaterally estopped from bringing this claim because of the ruling by the U.S. District Court for the District of Columbia that California is an indispensable party to any federal claim based on the Governor s concurrence authority. Stand Up s claim also fails on the merits because the Secretary was not required to consider the concurrence s validity in issuing the Procedures and because issuance of - -

15 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 the Procedures was reasonable even if he were required to consider the concurrence. In sum, Stand Up has not demonstrated that the Secretary acted unlawfully in issuing the Procedures. BACKGROUND This Court has previously set forth the background to North Fork s proposed gaming project in granting North Fork s motion to intervene in this case and in ruling on the related litigation between North Fork and the State of California. See Doc. (Mar., 0); see also North Fork of Rancheria of Mono Indians of California v. State of California, 0 WL 0 (E.D. Cal. Nov., 0). North Fork provides a summary of that background below. A. Tribal Background North Fork is a federally recognized Indian tribe located in Madera County, California, with more than,000 tribal citizens. North Fork Statement of Undisputed Facts ( NFSUF ). Aside from its proposed gaming project that is the subject of this lawsuit, North Fork has no source of revenue other than federal grants and California Revenue Sharing Trust Fund distributions and no land suitable for commercial development. NFSUF. In 00, North Fork submitted a fee-to-trust application to the Interior Department, seeking to have the Madera Site taken into trust for purposes of developing a hotel and casino, as the Indian Gaming Regulatory Act ( IGRA ) envisions. NFSUF. North Fork intends to use the net income from the project to support tribal government; to provide housing, educational, and other services to its citizens; and to achieve economic self-sufficiency. In 00, North Fork supplemented its trust application with a request for a Secretarial determination authorizing North Fork s gaming project on the Madera Site. NFSUF. B. Legal Background IGRA. IGRA makes gaming on land taken into trust after IGRA s enactment eligible for gaming if the Secretary of the Interior ( Secretary ) finds that gaming on the land () would be in the best interest of the Indian tribe and its members, and () would not be detrimental to the surrounding community, and if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary s determination. U.S.C. (b)()(a). Thus, North Fork takes no position on Claim IV, Stand Up s Freedom of Information Act claim. - -

16 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 following a favorable Secretarial determination, the governor must concur in that determination for the land to be eligible for gaming. IGRA s regulations require the governor to concur within one year, with the possibility of one 0-day extension. C.F.R..(b). IGRA divides gaming on Indian lands into three classes. Class I gaming, which includes social games for minimal prizes, is permitted on all Indian lands. U.S.C. 0(), 0(a)(). Class II gaming, which includes bingo and unbanked card games, is permitted on Indian lands in States that, like California, do not prohibit such gaming as a matter of criminal law and public policy, so long as the gaming is not otherwise prohibited by federal law. Id. 0(), 0(b)()(A). Class III gaming, which is sometimes called casino-style gaming, is authorized on Indian lands if it is located in a State that permits such gaming for any purpose by any person, organization, or entity, as California does, and if it is conducted either in conformance with a Tribal-State compact between the tribe and its home state, id. 0(d)(), or pursuant to procedures imposed by the Secretary, id. 0(d)(). A tribal-state compact is not a prerequisite to class III gaming under IGRA, but IGRA contemplates that a tribe seeking to conduct class III gaming will first attempt to obtain a compact. Id. 0(d)()(C). Where, as in California, state law permits class III gaming, IGRA mandates that the State shall negotiate with the Indian tribe in good faith to enter into a compact. Id. 0(d)()(A). If a federal court finds that the State has not negotiated in good faith, IGRA provides a remedial process through which a tribe ultimately may conduct class III gaming under procedures imposed by the Secretary. Id. 0(d)(). IGRA requires the Secretary to prescribe procedures for class III gaming that are consistent with a compact selected by a court-appointed mediator, IGRA, and relevant state laws if a federal court finds that the state failed to negotiate in good faith for a compact and the state and tribe subsequently fail to enter into the mediator-selected compact. Id. 0(d)()(B)(vii). Johnson Act. The Johnson Act, which was enacted prior to IGRA, prohibits sell[ing], transport[ing], possess[ing], or us[ing] any gambling device within Indian country as defined in section of title [.] U.S.C. (a). The term gambling device includes slot machines and any other machine or mechanical device designed and manufactured - -

17 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 primarily for use in connection with gambling. Id. (a). Under IGRA, the Johnson Act does not apply to any gaming conducted under a Tribal-State compact that (A) is entered into by a State in which gambling devices are legal, and (B) is in effect. U.S.C. 0(d)(). IGRA includes an exemption for the Johnson Act for class III gaming under a tribal-state compact, id. 0(d)(), and requires the Secretary to authorize class III gaming pursuant to Secretarial procedures, id. 0(d)()(B)(vii). NEPA. NEPA directs all federal agencies to include, in major Federal actions significantly affecting the quality of the human environment, a detailed statement relating to the environmental impact of the proposed action. U.S.C. (C). No environmental review need be conducted, however, if an agency s action is not a major federal action, which is an action[] with effects that may be major and which [is] potentially subject to Federal control and responsibility, 0 C.F.R. 0. (emphasis added). The definition of effects requires that there be a causal relationship between the agency s action and the alleged effects. Id. 0.. Additionally, NEPA does not apply where existing law applicable to the agency s operations expressly prohibits or makes compliance impossible. Id CAA. The CAA provides that where its implementing regulations apply, an agency shall not engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan regulating environmental emissions. U.S.C. 0(c); see 0 C.F.R..0(a). The CAA s implementing regulations exempt an agency from this requirement to conduct a conformity determination if the agency s action would not cause new emissions to exceed certain specified emissions rates. 0 C.F.R..(b), (c)(). C. The Secretarial Determination, Governor s Concurrence, And Federal Acquisition Of Land In Trust North Fork s trust application and request for a Secretarial determination were subject to a lengthy and comprehensive review process. NFSUF. For example, the Interior Department conducted an environmental analysis pursuant to NEPA, publishing, in 00, a -page Environmental Impact Statement ( EIS ) with over,00 pages of appendices. NFSUF. The - -

18 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 EIS contained an exhaustive analysis of the project s potential impacts and the mitigation measures that North Fork agreed to undertake. NFSUF. On September, 0, the Secretary issued a favorable Secretarial determination, concluding that a gaming establishment on the Madera Site would be in the best interest of North Fork and would not be detrimental to the surrounding community. NFSUF. Pursuant to IGRA, the Assistant Secretary for Indian Affairs wrote to Governor Jerry Brown on September, 0 to inform the Governor that the Secretary had made a favorable Secretarial determination and to request the Governor s concurrence. NFSUF. On August 0, 0, the Governor concurred in the Secretarial determination. NFSUF 0. On February, 0, the Secretary took the land into trust for North Fork. NFSUF. The decision to acquire the Madera Site in trust was based on thorough review and consideration of the administrative record, including North Fork s application materials; the EIS; and comments received from the public, from federal, state, and local governmental agencies, and from potentially affected Indian tribes. NFSUF. D. The 0 Compact, IGRA Remedial Litigation, And Secretarial Procedures On August, 0, the Governor signed a compact with North Fork to allow class III gaming on the Madera Site ( 0 Compact ). NFSUF. On June, 0, the Legislature passed Assembly Bill No. ( AB ), ratifying the 0 Compact, which California forwarded to the Secretary of the Interior. NFSUF. On October, 0, the Secretary published notice that the 0 Compact was taking effect. NFSUF ; Fed. Reg.,,, (Oct., 0). In November 0, however, a referendum petition against AB qualified for the November, 0 general election ballot. NFSUF. In the November, 0 election, the California electorate voted to reject AB. NFSUF. California thereafter took the position that the 0 Compact had no force or effect. NFSUF. After the referendum, North Fork requested that California negotiate and enter into a new compact with North Fork for gaming on the Madera Site that California would recognize as valid. NFSUF. The Governor s office informed North Fork that it would not negotiate a new compact because, in its view, such negotiations would be futile in light of the referendum. - -

19 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 NFSUF 0. In March 0, North Fork filed an action in this Court against the State of California pursuant to IGRA s remedial provision, U.S.C. 0(d)(), seeking a declaration that the State failed to comply with IGRA s requirement that the State negotiate in good faith with North Fork to enter into an enforceable compact, id. 0(d)()(A), and an order directing the State to conclude an enforceable compact with North Fork within 0 days or submit to mediation, see id. 0(d)()(B)(iii)-(iv). NFSUF. On November, 0, this Court entered judgment in North Fork s favor, finding that the State failed to enter into negotiations with North Fork for the purpose of entering into a Tribal-State compact within the meaning of 0 and ordering the parties to conclude a compact within 0 days of the date of this order. NFSUF. The State failed to consent to a compact within 0 days, and this Court therefore ordered the parties to mediation pursuant to U.S.C. 0(d)()(B)(v)-(vi). NFSUF. The courtappointed mediator selected a compact, but the State failed to consent to the compact within 0 days, as required by IGRA. See U.S.C. 0(d)()(B)(v)-(vi); NFSUF. Accordingly, on April, 0, the mediator notified the Secretary of the State s failure to consent. NFSUF. IGRA mandates that, under such circumstances, the Secretary shall prescribe, in consultation with the [North Fork] Indian tribe, procedures (I) which are consistent with the proposed compact selected by the mediator, the provisions of [IGRA], and the relevant provisions of the laws of the State, and (II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction. Id. 0(d)()(B)(vii). On July, 0, the Interior Department issued the Secretarial Procedures for the conduct of class III gaming on North Fork s lands at the Madera Site. NFSUF. E. Related Actions This is the third lawsuit Stand Up has brought challenging North Fork s proposed gaming project. Stand Up filed one lawsuit in the U.S. District Court for the District of Columbia in 0, and the other in California state court in 0. There is also an additional California state court case challenging the Governor s authority to concur that is relevant to this action. - -

20 Case :-cv-0-awi-epg Document Filed 0// Page 0 of 0 0. Stand Up s District of Columbia Action In December 0, Stand Up brought a federal challenge to the Interior Department s Secretarial determination and trust decision in the U.S. District Court for the District of Columbia, raising claims under the IRA, IGRA, and NEPA. See Stand Up for California! v. U.S. Dep t of Interior, F. Supp. d (D.D.C. 0) (the District of Columbia action ). Another plaintiff, the Picayune Rancheria of Chukchansi Indians ( Picayune ), brought a similar challenge in the same court. The district court consolidated Stand Up s and Picayune s cases. Id. at n.. On February, 0, after the court denied Stand Up s motion for a preliminary injunction against the trust acquisition of the Madera Site, the Interior Department acquired the Madera Site for North Fork. Since then, the Madera Site has been Indian lands within the meaning of IGRA, U.S.C. 0()(B). Stand Up amended its complaint to challenge the Secretarial determination and trust decision based on arguments that the Governor s concurrence was invalid and that the 0 referendum rendered the 0 Compact (and trust decision) invalid and to raise a new claim under the CAA. st Am. Compl., Stand Up for California! v. U.S. Dep t of Interior, No. -cv-0, Doc. (D.D.C. June, 0); d Am. Compl., id., Doc. 0 (D.D.C. Dec., 0). The parties cross-moved for summary judgment. After the administrative record was filed, the federal defendants moved for a partial remand without vacatur to cure a potential procedural deficiency regarding compliance with a notice requirement for the CAA conformity determination. See Stand Up, No. -cv-0, Doc. (D.D.C. Aug., 0). The court granted the motion in December 0. Id., Doc. (D.D.C. Dec., 0). The federal defendants re-issued the conformity determination in April 0. On September, 0, the court issued a 0-page decision that rejected all of Stand Up s claims. Specifically, the court denied Stand Up s and Picayune s motions for summary judgment; granted North Fork s and the federal defendants motions for summary judgment on all of Picayune s claims; granted North Fork s and the federal defendants motions for summary judgment on most of Stand Up s claims; and dismissed Stand Up s other claims as moot and/or for failure to join an indispensable party. Stand Up for California! v. U.S. Dep t of Interior, 0 - -

21 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 F. Supp. d (D.D.C. 0), appeal docketed, Nos. -, - (D.C. Cir. Nov., 0). The court dismissed Stand Up s claims based on the alleged invalidity of the Governor s concurrence due to the absence of an indispensable party the State of California. Id. at ( claims in any way involving the Governor s concurrence must be dismissed due to the absence of an indispensable party ). Stand Up has appealed the summary judgment decision but did not appeal the court s ruling that California was an indispensable party.. Stand Up s California State Gubernatorial Concurrence Action In March 0, Stand Up brought a lawsuit in California state court challenging the Governor s concurrence in the Secretarial determination, arguing that the Governor lacked authority under state law to concur. See Stand Up for California! v. Brown, No. MCV00 (Cal. Super. Ct. Madera Cty. compl. filed Mar., 0). The state defendants and North Fork, which had intervened in the suit, demurred. The Superior Court sustained the demurrers, finding that the concurrence was valid under state law. On December, 0, however, the California Court of Appeal for the Fifth Appellate District reversed, concluding that the Governor lacked authority under state law to concur. Stand Up for California! v. State of California, Cal. Rptr. d 0 (Ct. App. 0), review granted (Mar., 0). The Fifth District s ruling was divided. Each of the three justices offered a different legal theory as to why the Governor lacked authority to concur under state law, and none of the justices theories garnered the support of a majority. In January 0, the state defendants and North Fork each petitioned the California Supreme Court to review the Fifth District s decision. On March, 0, the California Supreme Court granted review of both petitions and ordered further action deferred pending disposition of the United Auburn case or further order of the court. See Stand Up, 0 P.d (Cal. 0). Under California law, the Fifth District s decision has no binding or precedential effect, and may be cited for potentially persuasive value only, because the California Supreme Court has granted review. Cal. R. Ct..(e)().. United Auburn s California State Gubernatorial Concurrence Action When Governor Brown concurred in the Secretarial determination for gaming by North Fork on the Madera Site on August 0, 0, he also concurred in a Secretarial determination for - 0 -

22 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 gaming in Yuba County, California, by the Enterprise Rancheria of Maidu Indians ( Enterprise ). A competing tribe, the United Auburn Indian Community of the Auburn Rancheria ( United Auburn ), brought an action in state court challenging the Governor s Enterprise concurrence, arguing that the Governor lacked authority under state law to concur in a Secretarial determination, at least absent legislative ratification. The Superior Court sustained the demurrer to United Auburn s complaint, and the Court of Appeal for the Third District affirmed that decision on October, 0. United Auburn Indian Cmty. v. Brown, 0 Cal. Rptr. d (Ct. App. 0), review granted (Jan., 0). The Third District determined that the Governor s concurrence was valid under California law because the State Constitution vests the Governor with inherent executive authority to concur. Id. at -00. On November, 0, United Auburn filed a petition for review in the California Supreme Court, and later filed notice of the conflicting Fifth District decision discussed above. On January, 0, the California Supreme Court granted review. See United Auburn, P.d (Cal. 0). The case is currently undergoing merits briefing. STANDARD OF REVIEW This Court reviews the parties cross-motions for summary judgment following the legal standard provided by the Administrative Procedures Act ( APA ), under which this Court must reject each of Stand Up s challenges to the issuance of the Secretarial Procedures unless it finds that action to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. ForestKeeper v. Elliott, 0 F. Supp. d, (E.D. Cal. 0) (Ishii, J.) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 0 U.S. 0, ()). This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision. Center for Biological Diversity v. Bureau of Land Mgmt., F.d, (th Cir. 0) (internal quotation marks omitted). In applying this standard of review, the district court bases its decision on the Administrative Record ( AR ) the agency presents to the court. ForestKeeper, 0 F. Supp. d at. Because the court s review of an agency s decision is limited to the AR, resolution of the question presented requires no fact finding and summary judgment is the appropriate means - -

23 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 by which the merits of the case can be decided. Id. at. ARGUMENT I. THE SECRETARIAL PROCEDURES DO NOT VIOLATE THE JOHNSON ACT (CLAIM I) IGRA authorizes class III gaming that is: () authorized by tribal ordinance, () located in a State that permits such gaming for any purpose by any person, organization, or entity, and () conducted in conformance with a Tribal-State compact. U.S.C. 0(d)()(A)-(C). IGRA also provides that if a court finds that a State failed to negotiate in good faith for such a compact and failed to consent to a mediator-selected compact, the Secretary shall prescribe procedures (I) which are consistent with the proposed compact selected by the mediator, the provisions of this chapter, and the relevant provisions of the laws of the State, and (II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction. Id. 0(d)()(B)(vii) (emphasis added). Pursuant to that provision, the Secretary authorized class III gaming activities that are authorized under California state law, including slot machines. AR0-0, (Secretarial Procedures.,.0); see Cal. Const. art. IV, (f) (permitting slot machines on tribal lands). Stand Up does not dispute that California permits slot machines for purposes of IGRA. Stand Up s argument (Mem. -) that IGRA and the Johnson Act nonetheless prohibited the Secretary from authorizing slot machines is wrong. As the Secretary recognized, Secretarial Procedures are properly viewed as a full substitute for a Class III gaming compact and therefore the criminal prohibitions in IGRA and the Johnson Act do not apply to class III gaming under them. AR (Secretarial Procedures.). A. Stand Up s Argument Contradicts IGRA When Read As A Whole Stand Up s argument must be rejected because it is inconsistent with IGRA when read as a whole. IGRA makes clear that Secretarial procedures are a full substitute for tribal-state compacts and therefore are covered, like compacts are, by IGRA s exemptions from the criminal prohibitions in IGRA and the Johnson Act, U.S.C. (c)(); U.S.C. 0(d)(). Statutory language cannot be construed in a vacuum. It is a fundamental canon of - -

24 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. Sturgeon v. Frost, S. Ct. 0, 00 (0) (internal quotation marks omitted); accord United States v. McIntosh, F.d, (th Cir. 0). Indeed, one of the most basic interpretive canons is that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, U.S. 0, (00); accord United States v. Doe, F.d, (th Cir. 0). Stand Up s argument that IGRA does not treat Secretarial procedures as a substitute for a tribal-state compact must fail because it would nullify IGRA s provision authorizing class III gaming pursuant to Secretarial procedures. IGRA authorizes class III gaming only if such activities are conducted in conformance with a Tribal-State compact, without referencing Secretarial procedures. U.S.C. 0(d)()(C). Similarly, IGRA s exemption from the statute s criminal prohibitions exempts class III gaming conducted under a Tribal-State compact, also without referencing Secretarial procedures. U.S.C. (c)(). Under Stand Up s proposed construction of IGRA, class III gaming would remain unlawful under IGRA after the Secretary issued any Secretarial procedures because the class III gaming would not be conducted under a tribal-state compact, but instead under the Secretarial procedures. Stand Up s interpretation would negate IGRA s provision requiring the Secretary to prescribe procedures under which class III gaming may be conducted, U.S.C. 0(d)()(B)(vii)(II), because the Secretarial procedures could not authorize any class III gaming at all (whether conducted on slot machines or otherwise). To avoid that absurd result and to give effect to U.S.C. 0(d)()(B)(vii)(II) IGRA must be read to treat class III gaming under Secretarial procedures as equivalent to class III gaming under a compact. See Griffin v. Oceanic Contractors, Inc., U.S., () ( [I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available. ); accord Joffe v. Google, Inc., F.d 0, 0 (th Cir. 0). Thus, Secretarial procedures also qualify for IGRA s Johnson Act exemption for class III gaming, U.S.C. 0(d)(). The text of IGRA s remedial provision also makes clear that the Johnson Act does not - -

25 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 apply to class III gaming under Secretarial procedures. It provides that the Secretary shall prescribe procedures which are consistent with the proposed compact selected by the mediator, the provisions of this chapter, and the relevant provisions of the laws of the State. Id. 0(d)()(B)(vii)(I) (emphasis added). As Stand Up recognizes (Mem. ), the compact selected by the mediator may authorize the use of gambling devices that the Johnson Act would otherwise prohibit, including slot machines as the mediator-selected compact here did, see AR, (mediator-selected compact.,.(a)()). IGRA requires the Secretary to prescribe procedures consistent with the proposed compact selected by the mediator, except that the Secretary may modify them to be consistent with relevant state laws and the provisions of this chapter in other words, with IGRA. IGRA does not require or even authorize the Secretary to modify the procedures to be consistent with other federal laws, including with the Johnson Act. It would again be absurd, however, if IGRA required the Secretary to prescribe procedures for class III gaming that would violate the Johnson Act. The only interpretation of IGRA that is consistent with the statute as a whole, giving effect to IGRA s remedial provision and avoiding absurd results, is that IGRA treats class III gaming under compacts and Secretarial procedures equivalently and exempts both from IGRA s and the Johnson Act s criminal prohibitions. B. Stand Up s Argument Contradicts IGRA s Purpose Stand Up s contention (Mem. ) that Secretarial procedures are only a second best alternative to compacts also must be rejected because it is inconsistent with the purposes of IGRA and IGRA s remedial scheme. A statute must be construed in light of the overall purpose and structure of the whole statutory scheme. Rodriguez v. Sony Comp. Entm t Am., LLC, 0 F.d 0, 0 (th Cir. 0) (internal quotation marks omitted). IGRA s remedial provision is intended to protect tribes by providing them with a full substitute for a compact when states do not comply with IGRA s requirement to negotiate in good faith for the compact. As the Ninth Circuit has explained: Without a compact in place, a tribe may not engage in class III gaming. To guard against the possibility that states might choose not to negotiate, or to negotiate in bad faith, Congress included a complex set of procedures designed to protect - -

26 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 tribes from recalcitrant states. United States v. Spokane Tribe of Indians, F.d, (th Cir. ). Because the compact requirement skews the balance of power over gaming rights in favor of states by making tribes dependent on state cooperation, IGRA imposes on states the concomitant obligation to participate in the negotiations in good faith. If a court finds that a state has failed to negotiate in good faith, IGRA empowers the court to order additional negotiations and, if necessary, to order the parties into mediation in which a compact will be imposed. Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 0 F.d 0, 0 (th Cir. 00) (citation omitted). Secretarial procedures the ultimate remedy under IGRA s remedial provision are intended to enable a tribe to engage in the gaming that it seeks. Big Lagoon Rancheria v. California, F.d, (th Cir. 0) (en banc). If the procedures were not a full substitute for a compact, IGRA s remedial provision would not protect tribes from states that refuse to negotiate and instead would keep tribes dependent on state cooperation before engaging in significant kinds of class III gaming activities. Secretarial procedures carry out IGRA s express goal of providing 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 does not limit them only to a second best kind of gaming. The only reading of IGRA consistent with its purpose treats the procedures as a complete remedy for a state s failure to comply with IGRA s requirement to negotiate a compact in good faith, equivalent to the compact that IGRA required the state to negotiate. C. Stand Up s Argument Contradicts The Ninth Circuit s Interpretation Of IGRA The Ninth Circuit has rejected Stand Up s argument in the class II gaming context with reasoning that applies equally here, and it has also suggested that it would reject the same argument in the class III context. The Ninth Circuit s construction of IGRA forecloses Stand Up s argument. IGRA expressly exempts only gaming conducted under a Tribal-State compact from the Johnson Act. U.S.C. 0(d)(). Class II gaming, however, may be conducted without - -

27 Case :-cv-0-awi-epg Document Filed 0// Page of 0 0 a compact, see id. 0(b), and often involves the use of gambling devices such as bingo blowers, electronic terminals, or pull-tab machines that have been understood to fall within a broad construction of the Johnson Act s terms, see U.S.C. (defining gambling device ); Fed. Reg.,,, (June, 00) ( The traditional broad construction of the Johnson Act encompasses numerous devices manufactured to assist in the play of class II games. ). The Ninth Circuit has noted that IGRA did not explicitly address the relationship between IGRA and the Johnson Act as applied to class II gaming. United States v. 0 Electronic Gambling Devices, F.d 0, 0 (th Cir. 000). It nonetheless has held that the text of IGRA quite explicitly indicates that Congress did not intend to allow the Johnson Act to reach gambling devices that IGRA would otherwise permit under the class II gaming provisions. Id. The Ninth Circuit reasoned that Congress would not have defined certain kinds of gaming as class II activities authorized by IGRA only to prohibit them under the Johnson Act. By deeming aids to bingo class II gaming in the text of IGRA, Congress specifically authorized the use of such aids as long as the class II provisions of IGRA are complied with. Id. at 0 (citation omitted). The Ninth Circuit added that it must give effect to Congress s most recent relevant word on gaming, which was that gaming activities that satisfy IGRA s class II provisions are legal in Indian country. Id. In a similar case, the Tenth Circuit endorsed and elaborated on the Ninth Circuit s reasoning. See Seneca-Cayuga Tribe of Oklahoma v. National Indian Gaming Comm n, F.d 0, 0 n. (0th Cir. 00). It explained: Absent clear evidence to the contrary, we will not ascribe to Congress the intent both to carefully craft through IGRA this protection afforded to users of Class II technologic aids and to simultaneously eviscerate those protections by exposing users of Class II technologic aids to Johnson Act liability for the very conduct authorized by IGRA. A better reading of the statutory scheme is that through IGRA, Congress specifically and affirmatively authorized the use of Class II technologic aids, subject to compliance with the other IGRA provisions that govern Class II gaming. Id. at 0 (footnote omitted). The Tenth Circuit concluded: This understanding of the two statutes recognizes that the Johnson Act may remain a tool for criminal prosecution of conduct outside Indian country or - -