Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 1 of 27 JOHN C. CRUDEN Assistant Attorney General GINA L. ALLERY J. NATHANAEL WATSON U.S. DEPARTMENT OF JUSTICE United States Department of Justice Environment & Natural Resources Div. Indian Resources Section 999 18th Street South Terrace Suite 370 Denver, CO 80202 (303) 844-1348 Environment and Natural Resources Division 601 D Street NW, 3rd Floor, Room 3507 Washington, DC 20004 E-mail: joseph.watson@usdoj.gov UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STAND UP FOR CALIFORNIA! et al., ) Plaintiffs ) v. ) ) Case No. 1:12-cv-02039-BAH ) Judge Beryl A. Howell UNITED STATES DEPARTMENT OF THE ) INTERIOR, et al., ) Defendants ) ) FEDERAL DEFENDANTS ANSWER TO THIRD AMENDED COMPLAINT OF STAND UP FOR CALIFORNIA!, RANDALL BRANNON, MADERA MINISTERIAL ASSOCIATION, SUSAN STJERNE, FIRST ASSEMBLY OF GOD MADERA, AND DENNIS SYLVESTER Federal Defendants United States Department of the Interior; Kenneth Salazar, Secretary of the United States Department of the Interior; Bureau of Indian Affairs; and Kevin Washburn, Assistant Secretary Indian Affairs (together, Federal Defendants ), by their undersigned counsel, hereby answer the complaint of Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God Madera, and Dennis 1
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 2 of 27 Sylvester (together, Plaintiffs ). Federal Defendants deny any allegations of the Complaint, express or implied, that are not expressly admitted, denied, or qualified herein. 1. Federal Defendants admit that on November 26, 2012, Assistant Secretary Indian Affairs Kevin Washburn issued a Record of Decision ( IRA ROD ) approving the request submitted by the North Fork Rancheria of Mono Indians, also known as the North Fork Rancheria of Mono Indians of California ( North Fork or Tribe ), to acquire approximately 305.49 acres of land situated in Madera County, California ( Madera Site ) in trust for gaming and other purposes pursuant to Section 5 of the Indian Reorganization Act, 25 U.S.C. 465 ( IRA ). Federal Defendants aver that on September 1, 2011, former Assistant Secretary Indian Affairs Larry Echo Hawk issued a Secretarial Determination pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq. ( IGRA ), concluding that gaming on the Madera Site was in the best interest of the Tribe and its members and that such gaming was not detrimental to the surrounding community ( IGRA ROD ). Federal Defendants deny that these decisions were unlawful. The remainder of the allegations in Paragraph 1 is comprised of legal conclusions, to which no response is required. To the extent a response is required; the United States denies the allegations. JURISDICTION 2. The allegations in Paragraph 2 consist of legal conclusions and argument that require no response. 3. Federal Defendants admit that venue is proper in this forum. The remaining allegations in Paragraph 3 consist of legal conclusions and argument that require no response. 4. The allegations in Paragraph 4 consist of legal conclusions and argument that 2
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 3 of 27 require no response. PARTIES 5. The first, second, and third sentences of Paragraph 5 consist of Plaintiffs selfcharacterizations of Plaintiff Stand Up for California!, as well as individuals and entities that support Stand Up for California! who, with the exception of Madera Ministerial Association, are not parties to this lawsuit, all of which require no response. Federal Defendants lack information or knowledge sufficient to form a belief as to the truth of Plaintiffs assertions of where its members live, do business, and own property, and deny the allegation on that basis. Federal Defendants deny the remaining allegations in the fourth and fifth sentences. 6. The first, second, and third sentences of Paragraph 6 consist of characterizations of Plaintiff Randall Brannon that require no response. With respect to the allegations in the fourth sentence of Paragraph 6, Federal Defendants admit that comments were submitted to DOI in connection with the decision to acquire the Madera Site in trust for the Tribe for gaming purposes, but avers that such comments speak for themselves. Federal Defendants lack sufficient knowledge to form a belief as to which community Plaintiff Brannon suggests he speaks for or is familiar with, and on that basis deny the allegations. The remainder of the fourth sentence of Paragraph 6 consists of characterizations of Plaintiff Randall Brannon, which requires no response. The allegations in the fifth and sixth sentences of Paragraph 6 consist of legal conclusions, argument, and conjecture about speculative future events, all of which require no response. Federal Defendants deny that the decision will cause any of the negative impacts listed and that Mr. Brannon will suffer any cognizable injury. 7. The first and second sentences of Paragraph 7 consist of characterizations of 3
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 4 of 27 Plaintiff Madera Ministerial Association that require no response. The third and fourth sentences of Paragraph 7 consist of legal conclusions, argument, and conjecture about speculative future events that require no response. To the extent a response is required, Federal Defendants deny the allegations. Federal Defendants deny that the decision will cause any of the negative impacts listed and that the Madera Ministerial Association will suffer any cognizable injury. 8. The first, second, third, fourth, fifth, sixth, and seventh sentences of Paragraph 8 consist of characterizations of Plaintiff Susan Stjerne that require no response. The eighth and ninth sentences of Paragraph 8 consist of legal conclusions, argument, and conjecture about speculative future events that require no response. To the extent a response is required, Federal Defendants deny the allegations. Federal Defendants deny that the decision will cause any of the negative impacts listed and that Ms. Stjerne will suffer any cognizable injury. 9. The first, second, third, fourth, and fifth sentences of Paragraph 9 consist of characterizations of Plaintiff First Assembly of God Madera that require no response. The sixth, seventh, and eighth sentences of Paragraph 9 consist of legal conclusions, argument, and conjecture about speculative future events that require no response. To the extent a response is required, Federal Defendants deny the allegations. Federal Defendants deny that the decision will cause any of the negative impacts listed and that the First Assembly of God Madera, including its congregants or students, will suffer any cognizable injury. 10. The allegations in the first, second, third, fourth, and fifth sentences of Paragraph 10 consist of characterizations of Plaintiff Dennis Sylvester that require no response. The remaining allegations in the sixth and seventh sentences of Paragraph 10 consist of legal conclusions, argument, and conjecture about speculative future events that require no response. Federal 4
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 5 of 27 Defendants deny that the decision will cause any of the negative impacts listed and that Mr. Sylvester will suffer any cognizable injury. 11. Federal Defendants admit the allegations in Paragraph 11. 12. Federal Defendants deny the allegations in the first sentence of Paragraph 12 and clarify that Sally Jewell is the current Secretary of the United States Department of the Interior and is sued in her official capacity. Federal Defendants admit the remaining allegations in Paragraph 12. 13. Federal Defendants admit that the Bureau of Indian Affairs ( BIA ) is a bureau within the United States Department of the Interior ( DOI ) with responsibilities towards American Indians, Indian tribes, and Alaska Natives. 14. Federal Defendants admit that Kevin Washburn is the Assistant Secretary Indian Affairs for the DOI and is sued in his official capacity. 15. The allegations in Paragraph 15 consists of characterizations of the IRA, IGRA, and the National Environmental Policy Act, 42 U.S.C. 4321 et seq. ( NEPA ), which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these authorities, Federal Defendants deny the allegations. The remainder of Paragraph 15 also consists of legal conclusions and argument that require no response. 16. Federal Defendants deny that the decision to accept 305.49 acres of land into trust for the benefit of the Tribe is in any way unlawful and that the decision will cause any harm to Plaintiffs, their community, and surrounding lands. The remainder of Paragraph 16 consists of characterizations of this lawsuit, legal conclusions, argument, and conjecture about speculative future events, all of which require no response. To the extent a response is required, Federal 5
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 6 of 27 Defendants deny the allegations. 17. Paragraph 17 consists of characterizations of the IRA, regulations implementing the IRA codified at 25 C.F.R. Part 151, IGRA, and IGRA regulations codified at 25 C.F.R. Part 292 Regulations, which all speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these authorities, Federal Defendants deny the allegations. The remainder of Paragraph 17 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 18. Paragraph 18 consists of characterizations of the IRA and Carcieri v. Salazar, 555 U.S. 379 (2009), which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these authorities, Federal Defendants deny the allegations. 19. The first, second, and third sentences of Paragraph 19 consist of characterizations of IGRA and related regulations, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these authorities, Federal Defendants deny the allegations. Federal Defendants admit that prior to September 1, 2011, the Secretary issued 11 favorable two-part determinations (6 of which the governor of the relevant state did not concur with), pursuant to 25 U.S.C. 2719(b)(1)(A) and 25 C.F.R. 292.13-25, that gaming on off-reservation lands was in the best interest of the applicant Indian tribe and its members, and that such gaming would not be detrimental to the surrounding community ( Two-Part Determination ). The remainder of the fourth sentence of Paragraph 19 consists of legal conclusions and argument, which require no response. To the extent a response is required, Federal Defendants deny the allegations. 6
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 7 of 27 20. Paragraph 20 consists of characterizations of IGRA regulations and the preamble to the IGRA regulations, 73 Fed. Reg. 29354-01 (May 20, 2008), which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these authorities, Federal Defendants deny the allegations. 21. Paragraph 21 consists of characterizations of IGRA and related regulations, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these authorities, Federal Defendants deny the allegations. 22. Paragraph 22 consists of characterizations of NEPA, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with NEPA, Federal Defendants deny the allegations. The remainder of Paragraph 22 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 23. Federal Defendants admit that the Tribe has historical, archaeological, geographical, and cultural connections to the North Fork Rancheria, and aver that the Tribe has significant historical connections to the area where the Madera Site is located. Federal Defendants further admit that the North Fork Rancheria is located approximately 38 miles from the Madera Site, and that the Tribe s tribal government headquarters are located approximately 36 miles from the Madera Site. The remainder of Paragraph 23 consists of argument that requires no response. 24. The allegations in Paragraph 24 are legal conclusions and argument that require no response. 25. Federal Defendants admit that on May 18, 1996, the Tribe ratified its Constitution 7
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 8 of 27 at a General Council meeting of the Tribe. The remainder of Paragraph 25 consists of characterizations of the Tribe s Constitution, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Tribe s Constitution, Federal Defendants deny the allegations. 26. Federal Defendants deny that the land held in Trust at the North Fork Rancheria is held in trust for the Tribe but admit that the lands comprising the North Fork Rancheria are today held in trust for individual members of the Tribe, and that a 61.5-acre tract of land outside the North Fork Rancheria, located in the town of North Fork, California, was acquired in trust in 2002 for the Tribe for housing purposes. Federal Defendants clarify that the Tribe submitted its request to acquire the Madera Site in trust for gaming purposes to DOI on March 1, 2005, and further admit that the Madera Site is considered an off-reservation land acquisition. The remainder of Paragraph 26 consists of legal argument that requires no response. To the extent a response is required, Federal Defendants deny the allegations. 27. Federal Defendants admit the allegations in Paragraph 27. 28. Federal Defendants admit that the Tribe intends to develop its casino on part of the Madera Site, in accordance with IGRA, and that the entire Madera Site is comprised of 305.49 acres in Madera County, California. Federal Defendants further admit that the acquisition of the Madera Site is considered an off-reservation acquisition. Federal Defendants deny that Station Casinos, Inc. is the owner of the Madera Site and aver that on February 5, 2013, the United States acquired the Madera Site in trust for the North Fork Tribe. Federal Defendants admit the allegations in the third, fourth, and fifth sentences of Paragraph 28. 29. Federal Defendants admit that the Tribe entered into a Development Agreement with SC Madera LLC, a subsidiary of Station Casinos, Inc. The IGRA ROD and IRA ROD 8
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 9 of 27 speak for themselves and are the best evidence of what has been proposed; to the extent that any of Plaintiffs allegations in Paragraph 29 are inconsistent with what is described in those documents, the allegations are denied. 30. Federal Defendants lack sufficient information to affirm or deny the first sentence of Paragraph 30 and on that basis deny the allegation. The second and third sentences of Paragraph 30 consist of characterizations of an agreement between the Tribe and SC Madera Development, Inc., a subsidiary of Station Casinos, Inc., which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the agreement, Federal Defendants deny the allegations. 31. Federal Defendants admit that, on October 27, 2004, DOI published a notice of intent to prepare an environmental impact statement for the proposed trust acquisition in the Federal Register, and published a Notice of Correction in the Federal Register on April 6, 2005. 32. Federal Defendants admit that DOI published in the Federal Register a Notice of Availability of the draft environmental impact statement ( DEIS ), prepared pursuant to NEPA, on February 15, 2008. Federal Defendants further admit that DOI published the notice of availability for the final environmental impact statement ( FEIS ) in the Federal Register on April 6, 2010. The second sentence of Paragraph 32 consists of characterizations of the FEIS, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the FEIS, Federal Defendants deny the allegations. The remaining allegations are denied. 33. The first sentence of Paragraph 33 consists of characterizations of the FEIS, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the FEIS, Federal Defendants deny the allegations. The 9
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 10 of 27 second and third sentences of Paragraph 33 consist of argument and conjecture about speculative future events that require no response. The fourth sentence of Paragraph 33 consists of characterizations of a Memorandum of Understanding ( MOU ) between Madera County, California and the Tribe, which speaks for itself and is the best evidence of its contents. To the extent that the characterizations are incomplete or inconsistent with the MOU, Federal Defendants deny the allegations. The fifth sentence of Paragraph 33 consists of characterizations of the FEIS, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the FEIS, Federal Defendants deny the allegations. The fifth sentence of Paragraph 33 also consists of legal conclusions, argument, and conjecture about speculative future events that require no response. To the extent a response is required, Federal Defendants deny the allegations. 34. The first sentence of Paragraph 34 consists of characterizations of the Council on Environmental Quality s regulations implementing NEPA codified at 40 C.F.R. Part 1500, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with NEPA regulations, Federal Defendants deny the allegations. The allegations in the second and third sentences of Paragraph 34 are too vague to permit a response or consist of legal argument and conclusion, and on that basis, are denied. Federal Defendants admit the allegations in the fourth sentence of Paragraph 34. 35. Federal Defendants admit that comments were submitted to DOI in connection with the Tribe s request that the United States acquire the Madera Site in trust for the Tribe for gaming purposes, and that such comments included statements of opposition. The remainder of Paragraph 35 consists of characterizations of alleged unidentified expressions by alleged unidentified individuals and organizations, although Plaintiffs do not identify who made these 10
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 11 of 27 comments or whether they were ever submitted as comments. Accordingly, Federal Defendants deny these allegations. 36. Paragraph 36 consists of characterizations of surveys and Plaintiffs characterization of survey results. The allegations in Paragraph 36 are not sufficiently specific to permit an informed response; Federal Defendants lack sufficient information to affirm or deny the allegations in this Paragraph and therefore deny the same. 37. Federal Defendants admit that the Picayune Rancheria of the Chukchansi Indians ( Picayune ) owns the Chukchansi Gold Resort and Casino located on the Picayune Rancheria, approximately 39 miles from the Madera Site, and further admit that the Picayune did not request that the Secretary acquire additional land in trust to construct and operate its casino. To the extent the allegations in Paragraph 37 question the Tribe s significant historical connection to the Madera Site, Federal Defendants deny the allegations. The remainder of Paragraph 37 consists of argument and legal conclusions that require no response. To the extent a response is required, Federal Defendants deny the allegations. Federal Defendants aver that Picayune s tribal gaming operation has been closed by administrative orders, issued by of the National Indian Gaming Commission (NIGC) on October 7 and 10, 2014. Additionally, on October 10, 2014, the Eastern District of California issued a Temporary Restraining Order and subsequently issued a Preliminary Injunction ordering the Casino to remain closed until the NIGC lifted its closure order. See State of California v. Picayune Rancheria of Chukchansi Indians of California, 2014 WL 5485940 (E.D. Cal. October 29, 2014). As of the filing of this answer, the Casino remains closed. 38. Federal Defendants admit that Picayune petitioned for consultation pursuant to 25 C.F.R. Part 292 and that the IGRA ROD addressed Picayune s comments, however, Picayune 11
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 12 of 27 did not meet the regulatory criteria for consultation so the Secretary did not consult with Picayune. The remaining allegations in Paragraph 38 consist of legal argument and conjecture, to which no response is required. To the extent a response is required, Federal Defendants deny the allegations. 39. Federal Defendants admit that on September 1, 2011, former Assistant Secretary Indian Affairs Larry Echo Hawk issued the IGRA ROD. The remainder of Paragraph 39 consists of characterizations of the IGRA ROD, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the IGRA ROD, Federal Defendants deny the allegations. Federal Defendants deny that the announcement was unjustifiable and aver that the announcement was lawful; Federal Defendants deny the remaining allegations in Paragraph 39. 40. Federal Defendants admit that by letter dated September 1, 2011, former Assistant Secretary Indian Affairs Larry Echo Hawk sent a letter to the Governor of California seeking concurrence with the Secretarial determination. Paragraph 40 consists of characterizations of Assistant Secretary Echo Hawk s letter to the California Governor and the IGRA ROD, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the letter to the California Governor or the IGRA ROD, Federal Defendants deny the allegations. The remainder of Paragraph 40 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 41. Federal Defendants admit that the Governor of the State of California concurred with the Secretarial Determination but aver that such concurrence was communicated to DOI by letter dated August 30, 2012. Federal Defendants further admit that the Governor negotiated a 12
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 13 of 27 gaming compact with the Tribe, which was ratified by the California State Legislature. The remainder of Paragraph 41 consists of characterizations of the Governor s concurrence and the gaming compact, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these documents, Federal Defendants deny the allegations. 42. Federal Defendants admit that on November 26, 2012, Assistant Secretary Indian Affairs Kevin Washburn issued the IRA ROD. Federal Defendants aver that the IRA ROD was not posted on a public website until January 4, 2013. Federal Defendants lack sufficient information to affirm or deny the allegations in the third sentence of Paragraph 42 and therefore deny the same. 43. Federal Defendants admit that on December 3, 2012, DOI published a Notice of Final Agency Determination regarding the Assistant Secretary s November 26, 2012 decision to acquire the Madera Site in trust for gaming purposes. The second sentence of Paragraph 43 consists of characterizations of the Federal Register notice, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Federal Register notice, Federal Defendants deny the allegations. The remaining allegations in the second and third sentences of Paragraph 43 consist of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 44. Federal Defendants admit that Assistant Secretary Washburn s decision to acquire the Madera Site in trust for the Tribe was stayed for thirty days following the publication of the December 3, 2012 Federal Register notice as required by a regulation in effect at the time, 25 C.F.R. 151.12(b). Federal Defendant s clarify that on February 5, 2013, the United States 13
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 14 of 27 acquired the Madera Site in trust for the North Fork Tribe. The remainder of Paragraph 44 consists of legal conclusions, argument, and conjecture about speculative future events that require no response. To the extent a response is required or to the extent Plaintiffs present any allegations of fact, Federal Defendants deny the allegations. 45. Paragraph 45 consists of characterizations of IGRA, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with IGRA, Federal Defendants deny the allegations. The remainder of Paragraph 45 consists of characterizations of Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997), which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Pueblo of Santa Ana v. Kelly decision, Federal Defendants deny the allegations. 46. Federal Defendants admit that the class III gaming compact between the Tribe and the State of California was executed on August 31, 2012. Federal Defendants clarify that the California State Senate passed a bill ratifying the compact on June 27, 2013. Federal Defendants further clarify that the California Governor signed the bill on July 3, 2013. The remainder of Paragraph 46 consists of characterizations of the compact, which require no response. To the extent a response is required, Federal Defendants deny the allegations. 47. Federal Defendants admit that by letter dated July 16, 2013, the California Secretary of State sent a letter to DOI, forwarding the compact between the Tribe and the State of California. Paragraph 47 consists of characterizations of the California Secretary of State s letter to DOI and its attachments, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the letter to DOI and its attachments, Federal Defendants deny the allegations. The remainder of Paragraph 47 14
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 15 of 27 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 48. Federal Defendants admit that the Secretary took no action on the compact. Federal Defendants clarify that on October 22, 2013, Assistant Secretary Washburn published a notice of the Tribe s class III gaming compact taking effect in the Federal Register. The second sentence of Paragraph 48 consists of characterizations of the Federal Register notice, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Federal Register notice, Federal Defendants deny the allegations. 49. Federal Defendants admit that by letter dated November 20, 2013 the California Secretary of State sent a letter to DOI regarding a referendum measure on the statute ratifying the Tribe s gaming compact. Paragraph 49 consists of characterizations of the California Secretary of State s letter to DOI, which speaks for itself and is the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the letter to DOI, Federal Defendants deny the allegations. The remainder of Paragraph 49 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 50. Federal Defendants admit that on November 4, 2014, that California voters voted on a referendum measure on the statute ratifying the Tribe s gaming compact, as well as the Wiyot Tribe s compact. The remainder of Paragraph 50 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 51. Paragraph 51 consists of characterizations of the IRA, which speaks for itself and 15
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 16 of 27 is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the IRA, Federal Defendants deny the allegations. 52. Paragraph 52 consists of characterizations of Carcieri v. Salazar, 555 U.S. 379 (2009), which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Carcieri v. Salazar decision, Federal Defendants deny the allegations. 53. Paragraph 53 consists of characterizations of the IGRA ROD and the letter to the California Governor sent by former Assistant Secretary Echo Hawk seeking concurrence in the Two-Part Determination, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these regulations or documents, Federal Defendants deny the allegations. 54. Paragraph 54 consists of characterizations of the IRA ROD, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the IRA ROD, Federal Defendants deny the allegations. The remaining allegations in Paragraph 54 consist of legal conclusions and argument that require no response. 55. Federal Defendants deny the allegations in Paragraph 55. FIRST CLAIM FOR RELIEF 56. Federal Defendants incorporate by reference their responses to Paragraphs 1 through 55 as if fully set forth herein. 57. Paragraph 57 consists of legal conclusions and argument that require no response. 58. Paragraph 58 consists of legal conclusions and argument that require no response. 16
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 17 of 27 59. Paragraph 59 consists of characterizations of the IRA ROD, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the IRA ROD, Federal Defendants deny the allegations. The remainder of Paragraph 59 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 60. Paragraph 60 consists of legal conclusions and argument that require no response. SECOND CLAIM FOR RELIEF 61. Federal Defendants incorporate by reference their responses to Paragraphs 1 through 60 as if fully set forth herein. 62. Paragraph 62 consists of characterizations of IGRA, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with IGRA, Federal Defendants deny the allegations. Federal Defendants admit that the Department applied the Secretarial Determination Exception under IGRA. Paragraph 62 also consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 63. Federal Defendants deny the allegations in Paragraph 63. 64. Federal Defendants deny the allegations in Paragraph 64. 65. Federal Defendants deny the allegations in Paragraph 65. 66. Federal Defendants deny the allegations in Paragraph 66. 67. Federal Defendants deny the allegations in Paragraph 67. 68. Federal Defendants deny the allegations in Paragraph 68. The remainder of 17
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 18 of 27 Paragraph 68 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. THIRD CLAIM FOR RELIEF 69. Federal Defendants incorporate by reference their responses to Paragraphs 1 through 68 as if fully set forth herein. 70. Paragraph 70 consists of legal conclusions and argument that require no response. 71. Federal Defendants deny the allegations in the first sentence of Paragraph 71. The remainder of Paragraph 71 consists of characterizations of Federal case law, which speak for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the authorities cited, Federal Defendants deny the allegations. 72. Federal Defendants deny the allegations in Paragraph 72. 73. Federal Defendants deny the allegations in Paragraph 73. 74. Federal Defendants deny the allegations in Paragraph 74. 75. Federal Defendants deny the allegations in Paragraph 75. 76. Federal Defendants deny the allegations in Paragraph 76. 77. Federal Defendants deny the allegations in Paragraph 77\ 78. Paragraph 78 consists of characterizations and quotes of the IRA ROD and the IGRA ROD, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the IRA ROD or IGRA ROD, Federal Defendants deny the allegations. Federal Defendants deny the remaining allegations in Paragraph 78. 18
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 19 of 27 79. Paragraph 79 consists of legal conclusions and argument that require no response. 80. Paragraph 80 consists of legal conclusions and argument that require no response. 81. Paragraph 81 consists of legal conclusions and argument that require no response. 82. Federal Defendants admit that AES was an environmental consultant for the DEIS and FEIS but deny the remaining allegations in Paragraph 82. FOURTH CLAIM FOR RELIEF 83. Federal Defendants incorporate by reference their responses to Paragraphs 1 through 82 as if fully set forth herein. 84. Paragraph 84 consists of characterizations of the Clean Air Act, 42 U.S.C. 7401 et seq. ( CAA ), which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the CAA, Federal Defendants deny the allegations. 85. Paragraph 85 consists of legal conclusions and argument that require no response. 86. Paragraph 86 consists of legal conclusions and argument that require no response. 87. Paragraph 87 consists of characterizations of the CAA and its implementing regulations set forth at 40 C.F.R. Part 93, Subpart B, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the CAA or its implementing regulations, Federal Defendants deny the allegations. 19
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 20 of 27 88. Paragraph 88 consists of legal conclusions and argument that require no response. 89. Federal Defendants admit that on June 18, 2011, DOI issued a final general conformity determination. Federal Defendants aver that on January 23, 2014, DOI reissued a draft conformity determination to certain parties specified in 40 C.F.R. 93.155. Federal Defendants also aver that on April 9, 2014, DOI reissued a final conformity determination to certain parties specified in 40 C.F.R. 93.155. The remainder of Paragraph 89 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 90. Paragraph 90 consists of characterizations of regulations promulgated by the United States Environmental Protection Agency ( EPA ), which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with IGRA, Federal Defendants deny the allegations. Paragraph 90 also consists of characterizations of the draft conformity determination, comments on the draft conformity determination received by DOI, and DOI s responses to these comments, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these documents, Federal Defendants deny the allegations. The remainder of Paragraph 90 consists of legal conclusions and argument that require no response. 91. Paragraph 91 consists of characterizations of regulations promulgated by the United States Environmental Protection Agency ( EPA ), which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with IGRA, Federal Defendants deny the allegations. Paragraph 91 also consists of 20
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 21 of 27 characterizations of the draft conformity determination, final conformity determination, comments on the draft conformity determination received by DOI, and DOI s responses to these comments, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with these documents, Federal Defendants deny the allegations. The remainder of Paragraph 91 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 92. Federal Defendants admit the allegations in the first sentence of Paragraph 92. Federal Defendants deny the remaining allegations. 93. Federal Defendants admit the allegations in the first sentence of Paragraph 93 that EPA reclassified the region as an extreme ozone nonattainment area and that reclassification occurred after Federal Defendants had determined that that a conformity determination was not required. The allegations in this sentence regarding the consequences of reclassification are legal conclusions and require no response. Federal Defendants admit the allegation in the second sentence of Paragraph 93 that DOI prepared a draft conformity determination but deny the remaining allegations in this sentence. 94. Paragraph 94 consists of characterizations of the final conformity determination, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the final conformity determination, Federal Defendants deny the allegations. 95. Paragraph 95 consists of characterizations of the final conformity determination, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the final conformity determination, Federal Defendants deny 21
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 22 of 27 the allegations. The remainder of Paragraph 95 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 96. Paragraph 96 consists of legal conclusions and argument that require no response. 97. Paragraph 96 consists of legal conclusions and argument that require no response. 98. Paragraph 96 consists of legal conclusions and argument that require no response. FIFTH CLAIM FOR RELIEF 99. Federal Defendants incorporate by reference their responses to Paragraphs 1 through 99 as if fully set forth herein. 100. Paragraph 100 consists of characterizations of IGRA, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with IGRA, Federal Defendants deny the allegations. The remainder of Paragraph 100 consists of characterizations of Amador County v. Salazar, 640 F.3d 373 (D.C. Cir. 2011), which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Amador County v. Salazar decision, Federal Defendants deny the allegations. 101. Paragraph 101 consists of characterizations of IGRA, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with IGRA, Federal Defendants deny the allegations. Paragraph 101 also consists of characterizations of Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997), which speaks 22
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 23 of 27 for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Pueblo of Santa Ana v. Kelly decision, Federal Defendants deny the allegations. The remainder of Paragraph 101 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 102. Paragraph 102 consists of legal conclusions and argument that require no response. 103. Federal Defendants deny the allegations in Paragraph 103. 104. Paragraph 104 consists of characterizations of the Federal Register notice issued on October 22, 2013, 78 Fed. Reg. 62,649, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the notice, Federal Defendants deny the allegations. The remainder of Paragraph 104 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 105. Federal Defendants deny the allegations in Paragraph 105. SIXTH CLAIM FOR RELIEF 106. Federal Defendants incorporate by reference their responses to Paragraphs 1 through 105 as if fully set forth herein. 107. The first sentence of Paragraph 107 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. As to the second sentence of Paragraph 107, Federal Defendants admit that on November 4, 2014, that California voters voted on a referendum measure on the statute ratifying the Tribe s gaming compact. Federal Defendants deny the remaining allegations in Paragraph 23
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 24 of 27 107. 108. Paragraph 108 consists of characterizations of 25 C.F.R. 151.10(c) and Match- E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2211 (2012), which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with 25 C.F.R. 151.10(c) and Match-E-Be- Nash-She-Wish Band of Pottawatomi Indians v. Patchak, Federal Defendants deny the allegations. 109. Paragraph 109 consists of characterizations of the IRA ROD and the IGRA ROD, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the IRA ROD or IGRA ROD, Federal Defendants deny the allegations. Federal Defendants deny the remaining allegations in Paragraph 109. 110. Paragraph 110 consists of characterizations of the IRA ROD and the IGRA ROD, which speak for themselves and are the best evidence of their contents. To the extent the characterizations are incomplete or inconsistent with the IRA ROD or IGRA ROD, Federal Defendants deny the allegations. Federal Defendants deny the remaining allegations in Paragraph 110. 111. The first two sentences of Paragraph 111 consist of characterizations and quotes from the Governor s concurrence which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Governor s concurrence, Federal Defendants deny the allegations. The remainder of Paragraph 111 consists of legal conclusions and argument that require no response. To the extent a response is required, Federal Defendants deny the allegations. 24
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 25 of 27 112. Paragraph 112 consists of characterizations of the Final Environmental Impact Statement, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the Final Environmental Impact Statement, Federal Defendants deny the allegations. Federal Defendants deny the remaining allegations in Paragraph 112. 113. Paragraph 113 consists of characterizations of the determination under the Clean Air Act, which speaks for itself and is the best evidence of its contents. To the extent the characterizations are incomplete or inconsistent with the referenced determination, Federal Defendants deny the allegations. Federal Defendants deny the remaining allegations in Paragraph 113. 114. The first sentence of Paragraph 114 characterizes the Secretary s IGRA ROD, IRA ROD, and the Final Environmental Impact Statement, which speak for themselves and are the best evidence of their contents To the extent the characterizations are incomplete or inconsistent with the IRA ROD, IGRA ROD, or Final Environmental Impact Statement, Federal Defendants deny the allegations. The allegations in the second sentence of Paragraph 114 characterize the Memoranda of Understanding (MOUs) between the Tribe and the County of Madera, the City of Madera, and the Irrigation District, which speak for themselves and are the best evidence of their contents To the extent the characterizations are incomplete or inconsistent with the Memoranda of Understanding (MOUs) between the Tribe and the County of Madera, the City of Madera, and the Irrigation District, Federal Defendants deny the allegation. The remainder of Paragraph 114 consists of legal conclusions and argument that require no response. 115. Federal Defendants deny the allegations in Paragraph 115. 25
Case 1:12-cv-02039-BAH Document 105 Filed 12/22/14 Page 26 of 27 RESPONSE TO PRAYER Paragraphs A-J constitute Plaintiffs prayer for relief. Federal Defendants deny that Plaintiffs are entitled to any relief, fees, or costs requested. AFFIRMATIVE DEFENSES 1. Plaintiffs, for some or all of their claims, have failed to state a claim for which relief may be granted. 2. Plaintiffs, or some of them, lack standing to pursue some or all of their claims or assert harm on behalf of Picayune. 3. Federal Defendants reserve the right to assert all affirmative defenses that may be revealed subsequent to this filing. WHEREFORE, Federal Defendants request that the Court dismiss Plaintiffs Complaint or enter judgment in favor of the United States and grant such other relief as may be appropriate. Dated: December 22, 2014 Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General United States Department of Justice Environment and Natural Resources Division /s/ Joseph Nathanael Watson J. Nathanael Watson (Ga. Bar. No. 212038) Gina L. Allery (D.C. Bar No. 485903) U.S. DEPARTMENT OF JUSTICE United States Department of Justice Environment & Natural Resources Div. Indian Resources Section 999 18th Street South Terrace Suite 370 26