Case 2:16-cv AWI-EPG Document 29 Filed 05/12/17 Page 1 of 41

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1 Case :-cv-0-awi-epg Document Filed 0// Page of Sean M. Sherlock, SBN 00 Anton Blvd, Suite 00 Costa Mesa, California - Telephone:..000 Facsimile:.. Heidi McNeil Staudenmaier (pro hac vice) hstaudenmaier@swlaw.com 00 E. Van Buren Street, Suite 0 Phoenix, Arizona 00 Telephone: Facsimile: Jennifer A. MacLean (pro hac vice) jmaclean@perkinscoie.com PERKINS COIE LLP 00 th Street, N.W., Suite 00 Washington, DC 00-0 Telephone: -- Facsimile: -- Brian Daluiso, SBN bdaluiso@perkinscoie.com PERKINS COIE LLP El Camino Real, Suite 0 San Diego, California 0 Telephone: -- Facsimile: -- COSTA MESA, CALIFORNIA - Attorneys for Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God Madera and Dennis Sylvester STAND UP FOR CALIFORNIA!, Logan Lane, Penryn, California RANDALL BRANNON, Valerie Avenue, Madera, California ; MADERA MINISTERIAL ASSOCIATION, Road, Madera, California ; SUSAN STJERNE, Tropical Drive, Madera, California ; FIRST ASSEMBLY OF GOD MADERA, Avenue ½, Madera, California ; and DENNIS SYLVESTER, Road, Madera, California, v. -- Plaintiffs, UNITED STATES DEPARTMENT OF THE INTERIOR, C Street, N.W., Washington, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. :-CV-0-AWI-EPG [Related Cases: -cv-0-awi and :-cv-00-awi] Hon. Anthony W. Ishii, Ctrm. Mag. Judge Erica P. Grosjean, Ctrm. AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Complaint Filed: November, :-CV-0 AWI-EPG

2 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - D.C. 0; SARAH MARGARET ROFFEY JEWELL, in her official capacity as Secretary, U.S. Department of the Interior, C Street, N.W., Washington, D.C. 0; BUREAU OF INDIAN AFFAIRS, U.S. Department of the Interior, C Street, N.W., Washington, D.C. 0; LAWRENCE ROBERTS, in his official capacity as Principal Deputy Assistant Secretary, Bureau of Indian Affairs, U.S. Department of the Interior, C Street, N.W., Washington, D.C. 0, Defendants. -- :-CV-0 AWI-EPG

3 Case :-cv-0-awi-epg Document Filed 0// Page of TABLE OF CONTENTS COSTA MESA, CALIFORNIA - Page INTRODUCTION... i STATEMENT OF FACTS... I. STANDARD OF REVIEW... LEGAL ARGUMENT... II. THE SECRETARIAL PROCEDURES ARE SUBJECT TO CHALLENGE UNDER THE APA AS A FINAL AGENCY ACTION... III. THE SECRETARIAL PROCEDURES VIOLATE IGRA AND THE JOHNSON ACT... A. Under IGRA s plain meaning, the Johnson Act waiver does not apply to Secretarial Procedures... B. Nothing in IGRA s legislative history contradicts the plain meaning of the Johnson Act waiver... IV. THE SECRETARY VIOLATED NEPA IN ISSUING THE SECRETARIAL PROCEDURES... A. Prescribing Secretarial Procedures is a major federal action significantly affecting the quality of the environment... B. The Secretarial Procedures invoke secretarial discretion sufficient to require NEPA review... V. THE SECRETARY VIOLATED THE CLEAN AIR ACT BY ISSUING THE SECRETARIAL PROCEDURES... VI. THE SECRETARIAL PROCEDURES VIOLATE IGRA BECAUSE THE GOVERNOR S CONCURRENCE IN THE TWO-PART DETERMINATION IS INVALID... A. The Secretarial Procedures must be invalidated if the California Supreme Court holds that the Governor lacked authority to concur in the Secretary s two-part determination... B. There is sufficient reason to conclude that the California Supreme Court will hold Governor Brown lacked the authority to concur under State law.... VII. THE FEDERAL AGENCY DEFENDANTS VIOLATED THE FREEDOM OF INFORMATION ACT... CONCLUSION i - :-CV-0 AWI-EPG

4 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - Federal Cases TABLE OF AUTHORITIES Page Am. Bankers Ass n v. Gould, F.d (th Cir. 0)... Artichoke Joes California Grand Casino v. Norton, F.d (th Cir. 0)...,, Bates v. United States, U.S. ()... Bennett v. Spear, U.S. ()... Brown v. U.S. Customs and Border Protection, F. Supp. d 0 (N.D. Cal. )... California v. Cabazon Band of Mission Indians, 0 U.S. ()... Citizens for Responsibility and Ethics in Washington v. FEC, (CREW), F.d 0 (D.C. Cir. )..., Confederated Tribes of Siletz Indians v. U.S., F. Supp. (D. Or. )... Confederated Tribes of Siletz v. United States, 0 F.d (th Cir. )...,,, County of Amador, California v. United States Department of the Interior, F. Supp. d (E.D. Cal. )...,, Department of Transp. v. Public Citizen, U.S. (0)..., Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, F.d 0 (th Cir. 0)... 0 Long v. IRS, F.d 0 (th Cir. )... Natural Resources Defense Council, Inc. v. Berklund, F. Supp. (D.D.C. )..., North Fork Rancheria of Mono Indians of California v. State of California (North Fork I), WL (E.D. Cal. Nov., )...,, Northwest Motorcycle Ass n v. U.S. Dep t of Agriculture, F.d (th Cir. )... Oklahoma Tax Com n v. Sac and Fox Nation, 0 U.S. ()... Oliphant v. Schlie, F.d 0 (th Cir. )..., Payne Enterprises, Inc. v. United States, F.d (D.C. Circ. ) i - :-CV-0 AWI-EPG

5 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - Printz v. U.S., U.S. ()..., Pueblo of Santa Ana v. Kelly, F.d (th Cir. )...,,, Ramsey v. Kantor, F.d (th Cir. )..., Rumsey Indian Rancheria of Wintun Indians v. Wilson, F.d (th Cir. )...,,, Schroeder v. United States, F.d 0 (th Cir. )... Seattle Audubon Soc. v. Lyons, F. Supp. (W.D. Wash. )... Seminole Tribe of Florida v. Florida, U.S. ()..., Sierra Club v. Babbitt, F.d 0 (th Cir. )... Sierra Club v. Mainella, F. Supp. d (D.D.C. 0)... South Yuba River Citizens League v. National Marine Fisheries Serv., 0 WL (E.D. Cal. June, 0)... Stand Up for California! v. U.S. Dep t of the Interior (Stand Up v. DOI), F. Supp. d. (D.D.C. )..., State of New Mexico v. Dep t of the Interior, --- F.d ----, WL (th Cir. Apr., )... Thompson v. U.S. Dept. of Labor, F.d (th Cir. )..., United States v. Brown, F. Supp. (D. Neb. )... United States v. Lawrence, F.d (th Cir. )... United States v. Ron Pair Enters, U.S. ()... State Cases Ginns v. Savage, Cal.d ()... 0 Hotel Employees and Restaurant Employees Int l Union v. Davis, Cal.th ()... Stand Up for California v. State of California, Cal. App. th ()...,, 0 United Auburn Indian Community v. Brown, Cal. App. th ()...,,, ii - :-CV-0 AWI-EPG

6 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - Federal Statutes U.S.C.... U.S.C. (a)... U.S.C.... U.S.C. (a)... U.S.C...., U.S.C. (a)..., U.S.C. (c)()... U.S.C. (d)... U.S.C. (a)... U.S.C. 0..., U.S.C. 0()(B)... U.S.C. (d)()... U.S.C. (d)()(b)... U.S.C. (d)()(c)...,, U.S.C. (d)()..., U.S.C. (d)()..., U.S.C. (d)()(a)... U.S.C. (d)()..., U.S.C. (d)()(b)(ii)(i)... U.S.C. (d)()(b)(vi)...,,, U.S.C. (d)()(b)(vii)...,,,, U.S.C. (d)()(b)(vii)(i)... U.S.C. (d)()(vi)... U.S.C. (d)()(vii)..., U.S.C. (a)..., U.S.C. (b)()(a)...,,,,,,, U.S.C.... U.S.C. ()(C)... U.S.C U.S.C U.S.C. 0(c)()(A)... U.S.C. 0(c)... U.S.C.... U.S.C. ()... U.S.C. (a)()(a)(i)... - iii - :-CV-0 AWI-EPG --

7 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - U.S.C U.S.C. 0()...,, U.S.C. 0()(A)..., State Statutes Article IV, of the California Constitution... 0, Article IV, (e) of the California Constitution...,, 0 Article IV, (f) of the California Constitution...,, 0 Cal. Pub. Res. Code, 0... Federal Rules Federal Rule of Civil Procedure (d)... Federal Rule of Civil Procedure... Federal Regulations C.F.R. Part... 0 C.F.R C.F.R. 0.(a)... 0 C.F.R. 0.(a)... 0 C.F.R. 0.(b)... 0 C.F.R C.F.R. 0(a)()... 0 C.F.R C.F.R..(b)... 0 C.F.R C.F.R..(b)... Official Release of EMFAC0 Motor Vehicle Emission Factor Model for Use in the State of California, Fed. Reg. (January, 0)... Official Release of EMFAC Motor Vehicle Emission Factor Model for Use in the State of California, Fed. Reg. (March, )... Other Authorities Robert N. Clinton, Enactment of the Indian Gaming Regulatory Act of : The Return of the Buffalo to Indian Country or Another Federal Usurpation of Tribal Sovereignty, Ariz. St. L J. ()... S. REP. NO. 0- () iv - :-CV-0 AWI-EPG

8 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - Under Federal Rule of Civil Procedure (d), the current Secretary, Ryan Zinke, is automatically substituted as a defendant in this action in place of the former Secretary, Sarah Margaret Roffey Jewell. - - :-CV-0 AWI-EPG -- INTRODUCTION Plaintiffs bring this action to invalidate the Secretarial Procedures issued by the United States Secretary of the Interior (the Secretary ), which permit class III tribal gaming to be conducted on off-reservation land that was taken into trust for the North Fork Rancheria of Mono Indians (the North Fork Tribe or the Tribe ). Plaintiffs move this Court for summary judgment holding unlawful and setting aside the Secretarial Procedures on the following grounds:. The Secretarial Procedures violate the Johnson Act, U.S.C. et seq., by purporting to authorize the North Fork Tribe to operate slot machines, which are illegal under the Johnson Act. Although the Indian Gaming Regulatory Act ( IGRA ), U.S.C. 0 et seq., provides a waiver from the Johnson Act for gaming conducted under a tribal-state compact, there is no tribal-state compact here. Moreover, the absence of a Johnson Act waiver for Secretarial Procedures was no oversight. Rather, the statutory scheme and legislative history of IGRA demonstrate that Congress intended to waive the Johnson Act prohibition of slot machines only when the state consents to slot machines in a compact.. The Secretary violated the National Environmental Policy Act ( NEPA ), U.S.C. et seq., by issuing the Secretarial Procedures without performing any environmental review required under NEPA.. The Secretary violated the Clean Air Act, U.S.C. 0 et seq., by issuing the Secretarial Procedures without performing a conformity analysis required under section of the Clean Air Act. U.S.C. 0.. The Secretarial Procedures are invalid because the off-reservation land is not eligible for tribal gaming under IGRA. The off-reservation land is not eligible for gaming because the Governor of California lacked authority to concur in the Secretary s two-part determination under U.S.C. (b)()(a). Additionally, plaintiffs seek a judgment against the Department of the Interior (the

9 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - Department ) and the Bureau of Indian Affairs (the Bureau ), ordering them to comply with plaintiffs requests under the Freedom of Information Act ( FOIA ), U.S.C. et seq. The Department and Bureau failed to respond and produce any documents in response to plaintiffs FOIA request. Citations to AR are to the administrative record filed in this case on April,. [Dkt..] - - :-CV-0 AWI-EPG -- Accordingly, plaintiffs request a judgment holding unlawful and setting aside the Secretarial Procedures under the Administrative Procedure Act, U.S.C. 0(). Alternatively, plaintiffs seek an order from this Court directing the Department and the Bureau to comply with plaintiffs FOIA requests, and staying consideration of the merits of plaintiffs other claims pending such compliance and further briefing if necessary. STATEMENT OF FACTS In 0, the North Fork Tribe submitted an application to the Department of the Interior ( Department ) to transfer into trust for the Tribe a 0-acre parcel of real property (the Madera Site ) for the purpose of developing a casino resort. [AR ] The Madera Site is located adjacent to the City of Madera, California, on State Route, in the heart of the Central Valley. [AR0000.] Under the federal Indian Gaming Regulatory Act ( IGRA ), U.S.C. 0 et seq., tribal gaming may not, subject to certain limited exceptions, be conducted on lands acquired by the Secretary of the Interior (the Secretary ) in trust for the benefit of an Indian tribe after October,. U.S.C. (a). One of the exceptions to this prohibition is the so-called two-part determination. Under the two-part determination exception, if the Secretary determines that gaming would be in the best interest of the tribe and would not be detrimental to the surrounding community and the Governor of that State concurs in that determination, the Secretary may authorize gaming on land acquired for an Indian tribe after. U.S.C. (b)()(a). Accordingly, the Tribe also submitted a request for a two-part determination to legally conduct gaming on the newly acquired trust land. [AR ] In a record of decision, the Secretary determined that gaming at the Madera Site would be in the Tribe s best

10 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - interest and would not be detrimental to the surrounding community. [AR ] Without a valid concurrence from the Governor, however, gaming may not occur on the newly acquired Indian land. Confederated Tribes of Siletz v. United States, 0 F.d, (th Cir. ). Accordingly, upon making his two-part determination for the North Fork Tribe the Secretary requested the concurrence of Governor Brown, who issued his concurrence nearly one year later. [AR AR00000,,.] After accepting the Governor s concurrence, the Secretary issued a record of decision to acquire the Madera Site into trust. [AR ] The land was accepted in trust in February. [AR ] At the same time Governor Brown issued his concurrence, he announced that he had negotiated and a concluded a tribal-state gaming compact with the North Fork Tribe to govern gaming at the Madera Site and would be forwarding the compact to the California Legislature for ratification. [AR00000.] In May, the California Legislature passed AB, a bill to ratify the compact. [AR0000.] The California Secretary of State subsequently forwarded the ratified compact to the Secretary who published the compact s approval in the Federal Register on October,. Id. But before AB went into effect under California law, a citizen referendum on AB qualified for the November ballot to allow California voters to decide whether to approve or reject the Legislature s ratification of the compact. [AR00000.] On November,, the voters rejected the Legislature s ratification of the compact [AR0000.] In the wake of the referendum, the North Fork Tribe filed suit in this Court against the State of California pursuant to IGRA s remedial scheme. North Fork Rancheria of Mono Indians of California v. State of California (North Fork I), WL (E.D. Cal. Nov., ). This Court found that the Tribe and the State had not entered into a valid compact, id. at *, and held that the State failed to enter negotiations with North Fork for the purpose of entering a Tribal State compact within the meaning of. Id. at *. The Court ordered the State and the Tribe to conclude a compact within 0 days. Id. When the parties failed to do so, the court appointed a mediator. The mediator selected the Tribe s proposed compact and gave the State :-CV-0 AWI-EPG

11 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - days to consent to the Tribe s compact. [AR ] The State did not consent. The mediator then forwarded the selected compact to the Secretary to prescribe Secretarial Procedures. [AR ] As stated above, the mediator selected the North Fork Tribe s proposed compact. - - :-CV-0 AWI-EPG -- On July,, the Secretary issued procedures accompanied by a letter to the North Fork Tribe, signed by the Acting Assistant Secretary - Indian Affairs, informing the Tribe that Secretarial Procedures were in effect and the Tribe was therefore authorized to conduct class III gaming at the Madera Site. [AR0000-.] In the letter, the Acting Assistant Secretary noted that in prescribing the Secretarial Procedures, we have purposefully refrained from changing regulatory provisions in deference to the Mediator s submission to the Department and the Tribe s specific request that we change that submission as little as possible. [AR0000.] The letter further stated, this action to issue procedures is separate from the Departmental decision made years ago requesting the Governor s concurrence to allow gaming on the subject parcel as well as the subsequent decision made in to accept that parcel into trust. Id. Notably, the Secretarial Procedures allow the Tribe to develop and operate a larger casino than contemplated in the prior fee-to-trust, two-part determination, and EIS decisions. Alternative A in the final EIS, also referred to as the Preferred Alternative, analyzed the development of single casino with a single,0 square foot gaming and entertainment facility.... [AR00000; see also AR00000 (describing the Tribe s proposed project to include a single casino with a,0 square foot casino floor).] The original compact upon which the Department s earlier decisions were based authorized the Tribe to engage in Class III gaming only on eligible Indian lands held in trust for the Tribe at a single Gaming Facility located within the boundaries of the 0-Acre Parcel, and to operate 00 slot machines. [AR (emphasis added).] In contrast, the Secretarial Procedures authorize the Tribe to establish and operate not more than two Gaming Facilities... located within the boundaries of the Madera Parcel [AR0000 (emphasis added)] and to operate up to 00 slot machines after the first two years. [AR0000.]

12 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - On August,, Stand Up for California! ( Stand Up ) submitted separate requests to the Department of the Interior and Bureau of Indian Affairs under the Freedom of Information Act ( FOIA ) requesting documents related to the Secretarial Procedures [Statement of Undisputed Fact ( SUF ) Nos. -.] In these requests, Stand Up sought [c]opies of all communications to or from the North Fork Rancheria of Mono Indians or its representatives relating to the development of the Secretarial Procedures and [c]opies of all communications to or from the State of California or its agencies or representatives relating to the development of the Secretarial Procedures. [SUF Nos. -.] On August,, BIA responded by verifying receipt of the FOIA request. [SUF No..] On August,, the Department responded by letter, stating that it believed the requested information would be found within the BIA, which would respond directly to Stand Up. [SUF No..] On October,, Stand Up sent a follow up letter to the BIA, requesting an update as to the status of its August th FOIA request. [SUF No..] On October,, the BIA responded by , stating that the BIA FOIA office had assigned Stand Up s request to its FOIA Coordinator. [SUF No..] To date, the BIA has not provided any records requested by Stand Up and has not stated whether it has or will produce any of the records requested. [SUF Nos. -.] I. STANDARD OF REVIEW Stand Up brings its claims under IGRA, the Johnson Act, NEPA, and the Clean Air Act pursuant to the Administrative Procedure Act ( APA ). Under the APA, the district court must set aside and hold unlawful agency actions, findings, and conclusions found to be arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, or which have been taken without observance of procedure required by law. U.S.C. 0(); County of Amador, California v. United States Department of the Interior, F. Supp. d, (E.D. Cal. ). Under Federal Rule of Civil Procedure, the court may grant summary judgment where it determines that there is no genuine dispute as to any material fact and the movant is entitled judgment as a matter of law. In cases under the APA, however, there are generally no disputes as :-CV-0 AWI-EPG

13 Case :-cv-0-awi-epg Document Filed 0// Page of to any material fact because the court s review is limited to the administrative record.... Northwest Motorcycle Ass n v. U.S. Dep t of Agriculture, F.d, (th Cir. ). Accordingly, Stand Up in this memorandum cites to the administrative record for all claims challenging the validity of the Secretarial Procedures and government action undertaken in prescribing the procedures. For Stand Up s claim under the Freedom of Information Act, however, Stand up cites to its statement of undisputed material facts filed herewith. LEGAL ARGUMENT II. THE SECRETARIAL PROCEDURES ARE SUBJECT TO CHALLENGE UNDER THE APA AS A FINAL AGENCY ACTION The APA provides for judicial review under U.S.C. 0 of final agency actions, where COSTA MESA, CALIFORNIA - an agency action includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. U.S.C. (). As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency s decision-making process it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. Bennett v. Spear, U.S., () (quotations and citations omitted). Without the Secretarial Procedures, the North Fork Tribe cannot conduct class III gaming at the Madera Site. IGRA contemplates class III tribal gaming under only three circumstances: () pursuant to tribal-state compact entered into by the Indian tribe and the State under paragraph () that is in effect, U.S.C. (d)()(c); () pursuant to a proposed compact selected by the court-appointed mediator, which if consented to by the state shall be treated as a Tribal-State compact entered into under paragraph (), id. (d)()(b)(vi); or () pursuant to Secretarial Procedures, id (d)()(b)(vii). The Secretarial Procedures mark the final federal authorization under which the North Fork Rancheria of Mono Indians (Tribe) may conduct Class III gaming consistent with IGRA. [AR0000.] The Secretary and the Tribe will likely argue that the Secretarial Procedures do not :-CV-0 AWI-EPG

14 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - constitute final agency action because the procedures are non-discretionary. IGRA provides that if a state refuses to accept the mediator-selected compact, the Secretary shall prescribe procedures in consultation with the with the Indian tribe... which are consistent with the proposed compact selected by the mediator..., the provisions of this Act, and the relevant provisions of the laws of the State. U.S.C. (d)()(b)(vii). Thus, although the Secretary cannot refuse to prescribe procedures, IGRA gives the Secretary discretion, indeed a duty, to ensure that the Secretarial Procedures prescribe gaming that conforms to state and federal law. In this case the Secretary s adoption of procedures was made through the exercise of considerable discretion: we have purposefully refrained from changing regulatory provisions in deference to the Mediator s submission to the Department and the Tribe s specific request that we change that submission as little as possible. [AR0000.] Yet, the Secretary could not and did not defer entirely to the mediator-selected compact. In the letter transmitting the Secretarial Procedures to the Tribe, the Acting Assistant Secretary noted that the mediator-selected compact contained regulatory responsibilities for the State, but [s]ince the State did not consent to the selected compact within the 0 day period set forth in IGRA, the State may not be willing to fulfill such regulatory responsibilities. [AR0000-; AR0000 (Secretarial Procedures Sec..(a), stating the Secretary... cannot unilaterally obligate the State to carry out those regulatory responsibilities under these Secretarial Procedures ).] To address this problem the Secretary added to the Secretarial Procedures Section., which provides a 0 day opt-in period for the State to provide written notice that it agrees to perform the State Gaming Agency s regulatory responsibilities set forth in the procedures. [AR0000; AR0000.] If the State did not consent within the 0-day period, the In Picayune Rancheria v. United States Department of the Interior, No. -cv-0-awi-epg (E.D. Cal., filed July, ), the North Fork Tribe concedes that in prescribing procedures the Secretary does have some discretion in setting the content of the procedures.... [Request for Judicial Notice, Attachment at (emphasis in original).] But distinguishing between the Secretary s discretion in setting content and his lack of discretion in prescribing the procedures is irrelevant to the issue before this Court, because the content of the procedures marks the final Departmental determination for what gaming will be authorized at the site and how that gaming will be regulated. Obligating the state to regulate gaming without consent would violate the anti-commandeering doctrine. See Printz v. U.S., U.S., () (holding that the federal government cannot compel states to enact or administer a federal regulatory program) :-CV-0 AWI-EPG

15 Case :-cv-0-awi-epg Document Filed 0// Page of Secretarial Procedures provided for the National Indian Gaming Commission to undertake the State s regulatory responsibilities. Id. Effecting this change to the mediator-selected compact required the exercise of considerable discretion. IGRA s requirement that the Secretary shall prescribe procedures cannot therefore be read to eliminate Secretarial discretion where, as here, the Secretary must decide how and by whom gaming will be regulated. For these reasons, the Secretarial Procedures are final agency action subject to APA review. III. THE SECRETARIAL PROCEDURES VIOLATE IGRA AND THE JOHNSON ACT The Secretarial Procedures are invalid because they purport to authorize gaming at the COSTA MESA, CALIFORNIA - Madera Site to include the use of slot machines. Under the Johnson Act, It shall be unlawful... to sell, transport, possess, or use any gambling device... within Indian country as defined in section of title.... U.S.C. (a). The Johnson Act considers slot machines to be gambling devices. Id. at (a)(). -- IGRA, however, provides that the Johnson Act shall not apply to any gaming conducted under a Tribal-State compact that-- (A) is entered into under paragraph () by a State in which gambling devices are legal, and (B) is in effect. U.S.C. (d)(). No such compact exists here. The Johnson Act waiver does not mention Secretarial Procedures, nor does the provision authorizing the Secretary to prescribe procedures refer to the Johnson Act. U.S.C. (d)()(b)(vii). Despite the plain language of the Johnson Act, section. of the Secretarial Procedures purports to authorize the North Fork Tribe to operate,000 gaming devices for the first two years and,00 gaming devices for the remainder of its term. [AR0000.] The Secretarial Procedures defines gaming device to be any slot machine within the meaning of article IV, IGRA provides for state regulation through compacts only. The State of California, however, authorizes State regulation of class III Indian gaming only pursuant to a compact ratified by the Legislature. Cal. Const., art IV, (f). And the people of California expressly rejected the compact by referendum. Nonetheless, regardless of the legality under federal or state law, in prescribing procedures, the Secretary had to determine precisely how and by whom gaming would be regulated. - - :-CV-0 AWI-EPG

16 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - section, subdivision (f) of the California Constitution. [AR0000.] -- The Madera Site is Indian country as defined in U.S.C.. Despite that section (a) does not refer to trust land, the Supreme Court has held that Indian trust land is considered Indian country under that section. Oklahoma Tax Com n v. Sac and Fox Nation, 0 U.S., (). Moreover, under IGRA, Indian land upon which gaming can be authorized is defined to include lands held in trust for a tribe. U.S.C. 0()(B). But the State of California and the Tribe have no compact. North Fork, WL at *. Therefore, the operation of slot machines at the Madera Site is prohibited by the Johnson Act, and the Secretary s issuance of the procedures, which allow slot machine gaming in violation of the Johnson Act, is not in accordance with law. U.S.C. 0()(A). In interpreting IGRA, courts in this Circuit rely on traditional tools of statutory construction Rumsey Indian Rancheria of Wintun Indians v. Wilson, F.d, (th Cir. ). The plain meaning of legislation should be conclusive, except in rare cases which the literal interpretation will produce a result demonstrably at odds with the intention of its drafters. Id. (internal quotation marks omitted) (citing United States v. Ron Pair Enters, U.S. ()). The court will not resort to the legislative history unless the statute is ambiguous. Id. Finally, although statutes benefiting Native Americans are construed liberally in their favor, [the court] will not rely on this factor to contradict the plain language of a statute. Id. A. Under IGRA s plain meaning, the Johnson Act waiver does not apply to Secretarial Procedures The language of IGRA s Johnson Act waiver could not be plainer. A tribe may operate slot machines on Indian land only under a tribal-state compact that () is entered into under paragraph (), and () is in effect. U.S.C. (d)() (emphasis added). Because the North Fork Tribe has not entered into a compact with the State that is in effect under IGRA, the Stand Up does not intend this statement to be in anyway contrary to its claims on appeal in the D.C. Circuit that the Secretary lacked the authority to acquire the land in trust. Stand Up for California! v. U.S. Dep t of the Interior, Case No. - (D.C. Cir., appeal filed Oct., ). Pending a decision in that case, and as long as the land remains in trust, however, Stand Up does not dispute that the Madera Site is Indian country. - - :-CV-0 AWI-EPG

17 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - waiver does not apply to gaming at the Madera Site. -- As the United States Supreme Court has stated, Congress passed (d)() in conjunction with the carefully crafted and intricate remedial scheme set forth in (d)(). Seminole Tribe of Florida v. Florida, U.S., - (). The Court further stated that [w]here Congress has created a remedial scheme for the enforcement of a federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. Id. at. Under these principles, in construing section (d)() together with the carefully crafted and intricate section (d)(), it is clear that Congress intended for the Johnson Act waiver to apply only to compacts entered into under section (d)() or compacts selected by a mediator and consented to by the state under section (d)()(vi). See Am. Bankers Ass n v. Gould, F.d, (th Cir. 0) (holding that the plain meaning of the words in a statute must be determined in context and with a view to their place in the overall statutory scheme ). Section (d)() ( paragraph ) does the following: () provides that a tribe having jurisdiction over Indian lands can request of the state to negotiate to enter into a compact and requires the state to negotiate in good faith; () provides that any compact entered into by the state and tribe takes effect only when the Secretary publishes the approval in the Federal Register; and () limits the topics that can be the subject of negotiation. For a tribe to qualify for Secretarial Procedures, the tribe must initiate the remedial process by first introducing evidence in district court that a Tribal-State compact has not been entered into under paragraph (). U.S.C. (d)()(b)(ii)(i) (emphasis added). If the Tribe is successful and the state still refuses to negotiate after a finding of bad faith and the parties submit separate proposed compacts to the mediator, the state can still consent to the mediator-selected compact. If the state consents to the proposed compact selected by the mediator, the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (). Id. (d)()(b)(vi) (emphasis In holding that C.F.R. Part violated the clear language of IGRA s remedial scheme, the th Circuit recently stated, Indeed, [IGRA s] remedial process is so specific and detailed as to merge on the mechanical. State of New Mexico v. Dep t of the Interior, --- F.d ----, WL at * (th Cir. Apr., ). - - :-CV-0 AWI-EPG

18 Case :-cv-0-awi-epg Document Filed 0// Page of added). COSTA MESA, CALIFORNIA - In the remedial scheme, the proposed compact selected by the mediator is not a compact entered into under paragraph () because it was not negotiated and agreed to by the parties, and its existence is the result of the tribe s successful showing in district court that the state did not enter into such a compact. Congress, however, added specific language to clarify that a mediatorselected compact, if consented to by the state, shall be treated as a compact that was entered into under paragraph (). This language acknowledges Congress s express intent that the Johnson Act waiver apply to a mediator-selected compact consented to by the State, notwithstanding that it is not a compact entered into under paragraph (). Thus in IGRA s remedial scheme, Congress knew how to ensure the Johnson Act waiver applied where intended. As to that intent, it is further clear that the waiver applies in situations where the state agreed to a compact or consented to a mediator-selected compact, either of which provides for at least some measure of state approval of slot machine operation. In contrast, Secretarial Procedures evidence a complete lack of state agreement to a compact or consent to a mediator-selected compact. But Congress did not provide that Secretarial Procedures shall be treated as a compact entered into under paragraph (), as it did where a state consents to a mediator-selected compact. See Bates v. United States, U.S., 0 () ( Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. ). Not only is the shall be treated as a compact language absent from the Secretarial Procedures provision, but the regulatory context is also different. A tribe games under Secretarial Procedures only where the state has refused to agree to regulate gaming under a compact or to consent to regulate gaming under a mediator-selected compact. Additional evidence that Congress distinguished between compacts entered into under paragraph () and Secretarial Procedures can be found in section of IGRA, codified at U.S.C., which provides that all state laws pertaining to the licensing, regulation, or :-CV-0 AWI-EPG

19 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - prohibition of gambling... shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State. U.S.C. (a). As IGRA does with the Johnson Act, IGRA also waives Section for class III gaming conducted pursuant to a tribalstate compact, but not Secretarial Procedures. Id. (c)()). Finally, reading IGRA s plain language to require the Secretary to adhere to the Johnson Act does not lead to a situation where the plain language interpretation is demonstrably at odds with the intention of its drafters. Rumsey, F.d at. The drafters wanted state approval of slot machines, which can occur only pursuant to a compact. The language Congress used in U.S.C. (d)(), (d)(), and (d)(), in conjunction with the language in U.S.C., demonstrates that Congress privileged compacts over Secretarial Procedures and did not consider Secretarial Procedures a straight and equal substitute for a compact. Congress provided that Tribes may conduct class III gaming only if... conducted in conformance with a Tribal State Compact. U.S.C. (d)()(c) (emphasis added). To encourage states to enter into compacts, Congress gave states three separate opportunities to do so. Id. (d)() (negotiating and entering a compact to be approved by the Secretary); id. (d)()(b)(iii) (0 days for state to negotiate and enter into compact after district court finds failure to negotiate in good faith); id. (d)()(b)(vi) (0 days for state to consent to mediator-selected compact). Secretarial Procedures are a second best alternative. As discussed above, where a state has declined all three of these opportunities, Congress did not provide that this second best alternative shall be treated as a tribal-state compact entered into under paragraph (). Compare U.S.C. (d)()(b)(vi), (d)()(b)(vii). The plain language of IGRA not only provides for a more limited authorization of gaming under Secretarial Procedures, but the more limited authorization is consistent with, and does not conflict with, Congress s preference for state approval of slot machines. Accordingly, the Secretary abused his discretion by issuing procedures that authorize the Tribe to operate slot machines and violate the Johnson Act. The resulting Secretarial Procedures must be held unlawful and set aside. U.S.C. 0()(A) :-CV-0 AWI-EPG

20 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - B. Nothing in IGRA s legislative history contradicts the plain meaning of the Johnson Act waiver The plain meaning of IGRA s Johnson Act waiver is unambiguous; the waiver does not apply to Secretarial Procedures. The Court should not therefore look into the legislative history. Rumsey, F.d at. Nonetheless, the legislative history of IGRA confirms the plain meaning interpretation discussed above. See Schroeder v. United States, F.d 0, (th Cir. ) ( [T]he plainer the language, the more convincing contrary legislative history must be. ) Congress s rationale for the tribal-state compact as the mechanism for approving slot machines is consistent with interpreting IGRA to limit class III gaming where the state declines to enter into a compact. In California v. Cabazon Band of Mission Indians, 0 U.S. (), the Supreme Court held that states had the authority to enforce their gaming laws on Indian land only if the laws prohibited gaming outright as a matter of criminal law and did not merely regulate gaming. Id. at. In response to Cabazon, Congress enacted IGRA to provide a comprehensive regulatory framework for gaming activities on Indian lands which seeks to balance the interests of tribal governments, the states, and the federal government. Pueblo of Santa Ana v. Kelly, F.d, (th Cir. ). In determining how IGRA would regulate Indian gaming, Congress recognized that, despite the Cabazon decision, there is no adequate Federal regulatory system in place for class III gaming, nor do tribes have such systems for the regulation of class III gaming currently in place. S. REP. NO. 0-, at (). Faced with that problem, Congress s logical choice [was] to make use of existing State regulatory systems. Id. at -. The mechanism Congress chose to make use of state regulatory systems was the tribal-state gaming compact. Id. at. Consistent with Congress s intent to use existing state regulatory systems to govern tribal gaming, IGRA waives application of the Johnson Act only in states that approve slot machines in a compact. U.S.C. (d)()(a). At the time of IGRA s enactment slot machines were illegal in most states, including California as discussed below. In, it was not likely that slot :-CV-0 AWI-EPG

21 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - machines would be a significant part of the compacting process at all. In California, at the time of IGRA s enactment, banked and percentage card games and slot machines were illegal under state law. Rumsey, F.d at. Based on this prohibition, the Ninth Circuit held that the State of California was not required to negotiate with Tribes for these types of games. Id. at. Indeed, prior to the enactment of Proposition A in 00, the Legislature was expressly prohibited by Article IV, section (e), of the California Constitution from ratifying compacts authorizing banked and percentage card games and slot machines. Cal. Const., art. IV, (e) ( The Legislature has no power, and shall prohibit, casino of the type currently operating in Nevada and New Jersey. ); see also Hotel Employees and Restaurant Employees Int l Union v. Davis, Cal.th, (). Thus, prior to the enactment of Proposition A, a tribe could not operate slot machines or banked and percentage card games regardless of whether it conducted gaming under a compact or Secretarial Procedures. After the enactment of Proposition A, and over a decade after IGRA s enactment, the legal landscape of Indian gaming in California changed and tribes could operate banked and percentage card games and slot machines pursuant to a tribal state compact. Cal. Const., art IV, (f). The Ninth Circuit has held that even though section (f) depends upon the state and tribe entering into a compact, the section provides law independent from the compact itself that permits such gaming in certain circumstances. Artichoke Joes California Grand Casino v. Norton, F.d, (th Cir. 0) (quoting U.S.C. (d)()(b)). In, the Johnson Act waiver would have been relevant only to the few states that allowed slot machines. One of those states was Nevada, and the legislative history specific to the Johnson Act waiver arises from concerns specific to Nevada. In debating S., the bill that would become IGRA, Senator Harry Reid of Nevada raised questions regarding the Johnson Act waiver to the bill s sponsor Senator Daniel Inouye, Chairman of the Select Committee on Indian Affairs: Would the chairman please confirm this Senator s understanding that the limited waiver is the only respect in which S. would modify the scope and effect of the Johnson Act? [Request for Judicial Notice, Attachment ( Cong. Rec., at 0 () (emphasis :-CV-0 AWI-EPG

22 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - added)).] Senator Inouye responded that Senator Reid s interpretation was correct, and the waiver applies only to compacts: The bill is not intended to amend or otherwise alter the Johnson Act in any way. Id. At least one scholar has interpreted Senator Reid s inquiry, and his opposition during the hearings on S. to any expansion of Indian gaming, as motivated to protect existing Nevada gaming interests by confirming that tribes could not offer slot machines in competition with those interests without state approval. Robert N. Clinton, Enactment of the Indian Gaming Regulatory Act of : The Return of the Buffalo to Indian Country or Another Federal Usurpation of Tribal Sovereignty, Ariz. St. L J., (). Taken together, Congress s intent to employ state regulatory systems, the general illegality of slot machines under state laws when IGRA was enacted, and the exchange between Senators Inouye and Reid demonstrate that Congress did not envision the operation of slot machines as particularly relevant to Indian gaming outside of Nevada. Nor did Congress envision the operation of slot machines without the state agreeing or consenting to a compact. But to the extent Congress lacked the prescience to understand that slot machines would become central features of Indian gaming in states such as California, it is Congress s place to change IGRA, not the Court s. See Seminole Tribe, U.S. at. This is especially so where, as discussed above, the plain language clearly limits the application of the Johnson Act waiver to compacts. IV. THE SECRETARY VIOLATED NEPA IN ISSUING THE SECRETARIAL PROCEDURES NEPA requires federal agencies to prepare an environmental impact statement ( EIS ) for major actions significantly affecting the quality of the environment. U.S.C. ()(C). Federal regulations provide that an agency planning a major federal action can first conduct an Environmental Assessment ( EA ) to determine if an EIS is necessary. 0 C.F.R. 0., 0(a)(). If after conducting the EA, the agency finds the action will not significantly impact the environment, the agency may issue a finding of no significant impact... and then execute the action. Sierra Club v. Babbitt, F.d 0, 0 (th Cir. ). Whether an EIS is :-CV-0 AWI-EPG

23 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - ultimately necessary or not, where a major action may impact the quality of the environment, the agency is required to at least initiate the NEPA process before taking the action. Ramsey v. Kantor, F.d, (th Cir. ). Additionally, NEPA requires public involvement in the process. 0 C.F.R. 0.. And where an EIS is required, no action concerning the proposal shall be taken which would have an adverse environmental impact or limit the choice of reasonable alternatives until the agency issues a public record of decision. 0 C.F.R. 0.(a). Here, the Secretary failed to prepare an EA or an EIS; nor was the public involved in any part of the process. Rather than a record of decision, the Secretary merely informed the Tribe by letter that the procedures had been issued and were in effect. [AR0000-.] A. Prescribing Secretarial Procedures is a major federal action significantly affecting the quality of the environment The NEPA regulations define a major federal action to include: actions with effects that may be major and which are potentially subject to Federal control and responsibility... [Actions include] [a]pproval of specific projects, such as construction of management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities. 0 C.F.R. 0.. In this Circuit, if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute a major federal action and the federal agency involved must conduct and EA and possibly an EIS before granting it. Ramsey, F.d at (emphasis added). Here, the Secretarial Procedures are analogous to a permit because the Tribe cannot conduct class III gaming at the Madera Site without authorization under the Secretarial Procedures. U.S.C. (d)()(b)(vii). Moreover, the development and operation of the casino will have adverse impacts on the environment, as recognized by the Secretary in connection with his two-part determination and fee-to-trust transfer. [AR ] In his :-CV-0 AWI-EPG

24 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - prior decisions granting the North Fork Tribe s two-part determination and fee-to-trust transfer, the Secretary prepared an EIS that found the casino project would have significant impacts on the environment. [AR00000 (traffic, problem gambling); AR00000 (cumulative impacts).] This previous EIS fails to satisfy the Secretary s NEPA obligations in connection with the Secretarial Procedures for two independent reasons. First, the Secretary expressly disclaimed any reliance on the prior EIS. In the letter transmitting the Secretarial Procedures to the Tribe, the Secretary stated that the procedures constitute an agency action separate from the Departmental decision made years ago requesting the Governor s concurrence to allow gaming on the subject parcel as well as the subsequent decision made in to accept that parcel into trust. [AR0000] As the administrative record does not contain the final EIS issued in conjunction with the previous decisions, it is also clear that the Secretary did not consider the Secretarial Procedures covered by any previous environmental review under NEPA. See Thompson v. U.S. Dept. of Labor, F.d, (th Cir. ) ( The whole administrative record... consists of all documents and materials directly or indirectly considered by the agency decision-makers and includes evidence contrary to the agency s position. ). Second, the Secretarial Procedures approved a larger casino project than that analyzed in connection with the earlier two-part determination and fee-to-trust transfer. In the - decisions, Alternative A, the Preferred Alternative, was the development of single casino with a single,0 square foot gaming and entertainment facility.... [AR00000.] The Secretarial Procedures, by contrast provide federal authorization for the Tribe to establish and operate not more than two() Gaming Facilities and engage in class III gaming only on eligible Indian lands held in trust for the Tribe located within the boundaries of the Madera Parcel, as those boundaries exist as of the execution date of these Secretarial Procedures.... [AR0000.] This is a major expansion of the Tribe s proposed casino development because contrary to the project analyzed as Alternative A in the final EIS, the new authorization contains no limitations or even suggestions as to the size of each authorized facility. Id :-CV-0 AWI-EPG

25 Case :-cv-0-awi-epg Document Filed 0// Page of COSTA MESA, CALIFORNIA - Moreover, the design of the newly authorized project would change the environmental analysis in relation to issues such as traffic, law enforcement, and problem gambling. The Secretary recognized that the project approved by the Secretarial Procedures may have environmental impacts beyond those analyzed in the earlier EIS. Indeed, in Section. of the Secretarial Procedures, the Secretary required that before the commencement of any Project at the Madera Site, other than the Preferred Alternative described in the 0 final EIS, the Tribe shall cause to be prepared a comprehensive and adequate tribal environmental impact report (TEIR) analyzing the potentially significant off-reservation environmental impacts of the Project.... [AR0000.] The TEIR requirement appears in the Secretarial Procedures in much the same form as it did in the compact [AR ], but relevant to NEPA s requirements, the context is quite different. In the compact, the TEIR was the result of an agreement between the Tribe and the State, should the Tribe decide to make alterations to the previously approved facility at the Madera Site. Such a provision was no doubt important to the State because once the land became Indian land it would be removed from State jurisdiction and thus exempt from the California Environmental Quality Act ( CEQA ), Cal. Pub. Res. Code, 0 et seq. The Secretarial Procedures, by contrast, provide federal authorization for two gaming facilities at the site, the environmental consequences of which have not been considered. NEPA requires that such consequences be considered before the approval. Ramsey, F.d at. Moreover, NEPA does not permit federal agencies to delegate NEPA decisions and compliance to the project applicants. 0 C.F.R. 0.(a); see also Seattle Audubon Soc. v. Lyons, F. Supp., (W.D. Wash. ) ( Agencies may not delegate the responsibility of preparing an EIS to private parties. (citing 0 C.F.R. 0.(a))); see also 0 C.F.R. 0.(b) (providing for independent agency determination and oversight of EA prepared by applicant). Therefore the delegation of the Secretary s obligation under NEPA to the Tribe to complete after authorization is insufficient, and the Secretarial Procedures must be set aside :-CV-0 AWI-EPG