Amador County, Cal. v. Salazar

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2011 Decided May 6, 2011

No. 10-5240

AMADOR COUNTY, CALIFORNIA,

APPELLANT

v.

KENNETH LEE SALAZAR, SECRETARY, UNITED STATES

DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-00658)

Dennis J. Whittlesey argued the cause and filed the briefs

for appellant.

Katherine W. Hazard, Attorney, U.S. Department of

Justice, argued the cause for appellees. With her on the brief

was Kathryn E. Kovacs, Attorney. Susan L. Pacholski,

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney,

entered appearances.

Mark C. Tilden and Padraic McCoy were on the briefs of

amicus curiae Buena Vista Rancheria of Me-Wuk Indians in

support of appellees.

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Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Pursuant to the Indian Gaming

Regulatory Act, the Buena Vista Rancheria of Me-Wuk

Indians entered into a compact with the state of California to

engage in gaming on its tribal land and then petitioned the

Secretary of the Interior for approval of that compact. Under

the Act, “[i]f the Secretary does not approve or disapprove a

compact . . . [within] 45 days . . . the compact shall be

considered to have been approved by the Secretary, but only

to the extent the compact is consistent with the provisions of”

the Act. 25 U.S.C. § 2710(d)(8)(C). In this case, the Secretary

took no action within forty-five days, thus allowing the

compact to become effective. Amador County, in which the

Buena Vista Tribe’s land is located, challenged the

Secretary’s “no-action” approval, claiming that the land fails

to qualify as “Indian Land”—a statutory requirement for

gaming. Although the district court rejected the Secretary’s

argument that Amador County lacked standing, it dismissed

the suit, finding the Secretary’s inaction unreviewable under

several provisions of the Administrative Procedure Act.

Amador County now appeals. We agree with the district court

that the County has standing, but because we conclude that

the Secretary’s inaction is in fact reviewable, we reverse and

remand for the district court to consider the merits in the first

instance.

I.

Since at least 1817, the Buena Vista Rancheria of Me-

Wuk Indians of California (the “Tribe”) has been located in

the vicinity of what is now Amador County, about forty miles

southeast of Sacramento. In 1927, pursuant to a series of

3

appropriations bills intended to fund the purchase of land for

“Indians in California now residing on reservations which do

not contain land suitable for cultivations, and for Indians who

are not now upon reservations in said State,” the United States

purchased 67.5 acres of land in the County and held it in trust

for the Tribe’s use. Act of June 21, 1906, ch. 3504, 34 Stat.

325, 333; Act of April 30, 1908, ch. 153, 35 Stat. 70, 76; Act

of Aug. 1, 1914, ch. 222, 38 Stat. 582, 589. The current status

of that land (the “Rancheria”) is the central issue in this case.

In 1958, in keeping with the then-popular policy of

assimilating Native Americans into American society,

Congress enacted the California Rancheria Act, which

authorized the Secretary to terminate the federal trust

relationship with several California tribes, including the Me-

Wuk Tribe, and to transfer tribal lands from federal trust

ownership to individual fee ownership. Act of Aug. 18, 1958,

Pub. L. No. 85-671, 72 Stat. 619. Pursuant to that statute, title

to the Rancheria was transferred to two tribe members, Louis

and Annie Oliver, as joint tenants. Some twenty years later,

however, other members of the Tribe joined with members of

sixteen other California Rancherias and filed a class action

lawsuit to undo the effects of the California Rancheria Act.

Specifically, they sought an injunction requiring the Secretary

to “ ‘unterminate’ each of the subject Rancherias” and to

“treat all of the subject Rancherias as Indian reservations in

all respects[.]” Complaint at 27, Hardwick v. United States,

No. C-79-1710 (N.D. Cal. 1979) (quoted in Letter from Penny

J. Coleman, National Indian Gaming Commission Acting

General Counsel, to Judith Kammins Albietz, Tribal Attorney,

at 3 (June 30, 2005) (included at J.A. 17) [hereinafter “Indian

Lands Determination”] (alteration in original)).

The lawsuit ended in a settlement between the tribes and

the federal government and, subsequently, in a series of

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separate stipulated judgments between the individual tribes

and the counties in which the tribes’ land lay. In the first

settlement, the Secretary agreed to restore “any of the benefits

or services provided or performed by the United States for

Indians because of their status as Indians” and to “recognize

the Indian Tribes, Bands, Communities or groups of the

seventeen rancherias . . . as Indian entities with the same

status as they possessed prior to distribution of the assets of

these Rancherias under the California Rancheria Act.”

Stipulation and Order, Hardwick v. United States, No. C-79-

1710 (Dec. 22, 1983) (quoted in Indian Lands Determination,

at 4 (included at J.A 17-18)). In the stipulated judgment

between Amador County and the Tribe (the “Hardwick

Judgment”), the parties settled a number of issues related to

the levy of property taxes, and the County agreed to the

following terms:

[1] The plaintiff Rancheria and the

Plaintiffs were never and are not now lawfully

terminated under the California Rancheria

Act . . .

[2] The original boundaries of the plaintiff

Rancheria . . . are hereby restored, and all land

within these restored boundaries of the plaintiff

Rancheria is declared “Indian Country.”

[3] The plaintiff Rancheria shall be treated

by the County of Amador and the United States

of America, as any other federally recognized

Indian Reservation, and all of the laws of the

United States that pertain to federally

recognized Indian Tribes and Indians shall apply

to the Plaintiff Rancheria and the Plaintiffs.

Stipulation for Entry of Judgment, Hardwick v. United States,

No. C-79-1710, at 4 (Apr. 21, 1987) (included at J.A. 51).

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In the late 1990s, the Tribe began planning a gaming

operation and initiated the process of acquiring requisite state

and federal approval pursuant to the Indian Gaming

Regulatory Act (IGRA). Enacted in 1988, IGRA created a

regulatory framework for tribal gaming intended to balance

state, federal, and tribal interests. See 25 U.S.C. §§ 2701,

2702. The Act divides gaming into three classes, only one of

which—Class III, which includes most casino games such as

blackjack and roulette as well as slot machines—is at issue in

this case. See id. § 2703(8). Before commencing Class III

gaming, a tribe must satisfy three conditions. First, the

gaming must be authorized by a tribal ordinance or resolution

that has been approved by the National Indian Gaming

Commission, a regulatory body created by IGRA with

rulemaking and enforcement authority. Id. § 2710(d)(1)(A),

(2)(C). Second, the Indian lands where the gaming will take

place must be located within a state that permits gaming “for

any purpose by any person, organization, or entity.” Id. §

2710(d)(1)(B). And third, the gaming must be conducted in

conformance with a tribal-state compact that has been

approved by the Secretary. Id. § 2710(d)(1)(C). In addition,

and critical to this case, IGRA provides for gaming only on

“Indian lands.” Id. § 2710(d)(1) (“Class III gaming activities

shall be lawful on Indian Lands . . . .” (emphasis added)).

Once a tribe has submitted a tribal-state compact for

approval, the Secretary has three choices. He may approve the

compact, id. § 2710(d)(8)(A); he may disapprove the

compact, but only if it violates IGRA or other federal law or

trust obligations, id. § 2710(d)(8)(B); or he may choose to do

nothing, in which case the compact is deemed approved after

forty-five days “but only to the extent the compact is

consistent with the provisions” of IGRA, id. § 2710(d)(8)(C).

The compact takes effect once the Secretary publishes notice

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of approval in the Federal Register. Id. § 2710(d)(8)(D),

(3)(B).

In 1999, the Me-Wuk Tribe completed an initial round of

negotiations with the State of California, and shortly

thereafter the Secretary approved the resulting compact. In

2004, the Tribe began a second round of negotiations to

amend the compact in order to provide for “expanded gaming

at a prospective casino.” Appellees’ Br. 15. The compact

amendment also expanded revenue sharing between the Tribe

and the State and directed the Tribe to make arrangements

with Amador County to mitigate any potential impacts on the

County. When the Tribe submitted the compact amendment to

the Secretary, he chose to do nothing, meaning that pursuant

to subsection (d)(8)(C) the amendment was deemed approved

after forty-five days. The Secretary published a notice of

approval in the Federal Register on December 20, 2004. 69

Fed. Reg. 76,004.

Amador County then sued the Secretary in the United

States District Court for the District of Columbia, alleging

that the Rancheria fails to satisfy IGRA’s “Indian lands”

requirement. The County sought declaratory and injunctive

relief including an order requiring the Secretary to withdraw

approval and affirmatively reject the compact. Although the

County also alleged that the Secretary’s approval was void ab

initio due to a technicality in California law, First Amended

Complaint ¶¶ 57–60, it does not press this argument on

appeal.

The Secretary moved to dismiss under Federal Rule of

Civil Procedure 12(b)(1), alleging that Amador County lacked

standing, and under Rule 12(b)(6), alleging that the “claims

[were] not subject to review under the Administrative

Procedure Act [APA].” Although the district court found that

7

Amador County had standing, it dismissed the complaint,

agreeing with the Secretary that the approval via inaction was

unreviewable for several reasons. Amador Cty., Cal. v.

Kempthorne, 592 F. Supp. 2d 101 (D.D.C. 2009). First,

believing that the statute imposes no limit on the Secretary’s

authority to approve a compact and thus “lacks a standard to

guide judicial review of the Secretary’s decision,” the court

concluded that the “decision is committed to agency

discretion.” Id. at 106; 5 U.S.C. § 701(a)(1). Second, the court

held that the statute precludes judicial review of approval by

inaction because Congress had “limited the Secretary’s

approval by inaction to apply only to those portions of a

compact that are lawful under the statute . . . . Thus, the

Secretary’s approval by inaction can never violate the

statute.” Amador Cty., 592 F. Supp. 2d at 107; 5 U.S.C. §

701(a)(2).

Arguing that the district court erred in finding no-action

approvals unreviewable, Amador County now appeals. The

Secretary continues to challenge the County’s standing. We

review both the standing determination and the Rule 12(b)(6)

dismissal de novo. Affum v. United States, 566 F.3d 1150,

1158 (D.C. Cir. 2009) (“We review de novo the District

Court’s decision on standing.”); Holy Land Found. for Relief

& Dev. v. Ashcroft, 333 F.3d 156, 161–62 (D.C. Cir. 2003)

(“We review the district court’s dismissal for failure to state a

claim under Rule 12(b)(6) de novo.”).

II.

We begin with the Secretary’s argument that Amador

County lacks constitutional standing to maintain this suit. In

Lujan v. Defenders of Wildlife, the Supreme Court described

the elements of the three-part constitutional standing test—

injury in fact, causation, and redressability—and explained

that to establish injury a plaintiff must demonstrate that he has

8

a “legally protected interest.” 504 U.S. 555, 560 (1992).

According to the Secretary, because Amador County agreed

to the Hardwick Judgment, in which it promised to treat the

Rancheria as Indian land, the County has no legally

cognizable interest in the land being treated as anything other

than that. We disagree. Amador County may well be bound

by the Hardwick Judgment, in which case it will lose on the

merits, but for the purposes of standing, “we assume the

merits” in favor of the plaintiff. Parker v. District of

Columbia, 478 F.3d 370, 377–78 (D.C. Cir. 2007) (holding

that whether the plaintiff actually had a Second Amendment

right to bear arms was irrelevant to whether he had standing

to challenge a law impeding that right). Indeed, interpreting

Lujan, which involved a challenge under the Endangered

Species Act, we explained that the Supreme Court had

considered only whether “plaintiffs had a ‘cognizable interest’

in observing animal species without considering whether the

plaintiffs had a legal right to do so.” Id. (citing Lujan, 502

U.S. at 562–63). Accordingly, in order to establish injury in

fact, Amador County need demonstrate only that it will be

injured by the planned gaming and thus has a cognizable

interest in prohibiting it. To this end, the County has alleged,

among other things, that the planned gaming would increase

the County’s infrastructure costs and impact the character of

the community. First Amended Complaint ¶¶ 26–27. The

district court accepted these allegations as true, as must we,

see Jenkins v. McKeithen, 395 U.S. 411, 421–22 (1969), and

the Secretary nowhere challenges them on appeal. We agree

with the district court that the County’s allegations are more

than sufficient to establish “concrete and particularized”

harm. Lujan, 504 U.S. at 560.

The County also easily satisfies the requirements of

causation and redressability. Because the Tribe may proceed

with gaming only with secretarial approval of the compact,

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there is a direct causal connection between the Secretary’s no-

action approval and the alleged harm. The injury is also

redressable because if the County succeeds on the merits and

obtains a declaration that the Rancheria does not qualify as

Indian land, the Secretary would have to reject the compact.

See id. at 560–61 (describing causation and redressability

requirements); see also Patchak v. Salazar, 632 F.3d 702, 704

(D.C. Cir. 2011) (finding all Article III standing requirements

met in a challenge by a neighboring landowner to the

Secretary’s decision to take tribal land into trust, thereby

allowing the tribe to proceed with plans to construct a

gambling facility); Lac Du Flambeau Band of Lake Superior

Chippewa Indians v. Norton, 422 F.3d 490, 495–502 (7th Cir.

2005) (holding that plaintiffs, another tribe also challenging

approval by inaction, had satisfied Article III standing

requirements).

We next address the Secretary’s argument that the

County fails to satisfy the requirements of prudential standing

because it falls outside “the zone of interests to be protected”

by IGRA. See Ass’n of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150, 153 (1970). Considering circumstances similar

to this case, we recently reiterated in Patchak v. Salazar the

oft-repeated rule that the zone-of-interests test is “not

especially demanding.” Patchak, 632 F.3d at 705 (internal

quotation marks omitted). In that case, a neighboring private

landowner argued that the Secretary’s decision to take land

into trust, thus making it eligible for gaming under IGRA, had

violated another statute—the Indian Reorganization Act.

Reasoning that because the latter statute imposes a limit on

the Secretary’s trust authority, we held that “[w]hen that

limitation blocks Indian gaming, as [the litigant] claim[ed] it

should have . . . , the interests of those in the surrounding

community—or at least those who would suffer from living

near a gambling operation—are arguably protected. And

10

because of their interests, they are proper parties to enforce

the [Act’s] restrictions.” Id. at 706. So too here. Those in the

surrounding community who are impacted by gambling fall

within IGRA’s zone of interest. Accordingly, the County,

whose alleged injury flows from its proximity to the gambling

operation, is “arguably protected” and is thus a proper party to

enforce the limitations IGRA imposes on the Secretary.

The Secretary nonetheless insists that the concerns of the

County, a political subdivision of the State, fall outside

IGRA’s zone of interest because the statute directly protects

only states and tribes. According to the Secretary, the

County’s interests have been fully protected by its

participation in the political process through which the

compact was formed, and it would be “inconsistent with the

purpose of IGRA to allow a political subdivision of the State,

through an action in federal court, to invalidate the agreement

negotiated by the State and Tribe.” Appellees’ Br. 34. The

Secretary points out that in prior cases, including Patchak,

where we have allowed community groups and neighbors to

sue under IGRA, those groups were challenging the

Secretary’s decision to take land into trust rather than the

Secretary’s approval of a tribal-state compact. A suit in the

latter situation is, the Secretary argues, essentially a challenge

to an action of the State. Again, we disagree. In both

instances, the Secretary has independent obligations imposed

by federal law, and the County, just like other community

groups and residents, is affected by whether or not the

Secretary fulfills those obligations. For this particular

purpose—enforcing the obligations of the Secretary—we see

no good reason to treat Amador County differently from any

other neighbor of a planned gaming facility.

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III.

Relying on three separate provisions of the APA, the

Secretary contends that where a compact is deemed approved

because he failed to act within the forty-five day limit, the

approval is unreviewable. In particular, the Secretary relies on

(1) section 701(a)(1), prohibiting review where it is otherwise

barred by statute; (2) section 701(a)(2), barring review of

agency actions “committed to agency discretion”; and (3)

section 704, allowing review only of “agency action.” We

consider each argument in light of “the strong presumption

that Congress intends judicial review of administrative

action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S.

667, 670 (1986). Accordingly, each category of non-

reviewability must be construed narrowly. See Abbott Labs. v.

Gardner, 387 U.S. 136, 141 (1967).

We start with the Secretary’s argument that IGRA

precludes judicial review because it, unlike either the “final

agency action” requirement or the “committed to agency

discretion” limitation, is jurisdictional. Compare Block v.

Cmty. Nutrition Inst., 467 U.S. 340, 353 n.4 (1984)

(“[C]ongressional preclusion of judicial review is in effect

jurisdictional.”), and Assoc. of Civilian Technicians, Inc. v.

Fed. Labor Relations Auth., 283 F.3d 339, 341 (D.C. Cir.

2002) (treating a statutory limitation on judicial review as

jurisdictional), with Oryszak v. Sullivan, 576 F.3d 522, 524–

26 (D.C. Cir. 2009) (clarifying that the committed to agency

discretion limitation and the final agency action requirement

are “not . . . jurisdictional bar[s]”). To overcome the strong

presumption that Congress intends agency action to be

reviewable, we must find “clear and convincing evidence of a

contrary legislative intent.” Bowen, 476 U.S. at 671–72

(internal quotation marks omitted). Absent an express

statutory prohibition on judicial review, courts have been

extremely hesitant to find such a bar. See id. at 673 & n.4.

12

The district court concluded that subsection (d)(8)(C)

precludes judicial review because it creates an alternate

mechanism to ensure compliance with the law. In other

words, by that provision’s plain language—that compacts are

deemed approved “only to the extent the compact is

consistent with the provisions of [IGRA]”—only legal

compact terms go into effect, meaning that, according to the

district court, compacts approved by inaction must be legal.

Amador Cty., 592 F. Supp. 2d at 107 (“[T]he Secretary’s

approval of a compact by inaction can never violate the

statute.”). But nothing in subsection (d)(8)(C) actually creates

an alternative mechanism for compliance with the law. To be

sure, it provides that only lawful compacts can become

effective, but someone—i.e., the courts—must decide whether

those provisions are in fact lawful. Cf. Lac Du Flambeau

Band of Lake Superior Chippewa Indians, 422 F.3d at 501

(explaining that 42 U.S.C. § 2710(d)(8)(C) only prevents

“offending provisions from becoming effective in some

academic sense”). Indeed, as we explain below, subsection

(d)(8)(C)’s caveat invites judicial review by setting out a clear

standard for reviewing courts to apply.

Having concluded that no “intent to preclude judicial

review is fairly discernible in the statutory scheme,” Block,

467 U.S. at 351 (internal quotation marks omitted), and thus

that we have jurisdiction, we turn to the Secretary’s argument

that compact approval by inaction is unreviewable because

approval is “committed to agency discretion.” 5 U.S.C.

§ 701(a)(2). In Citizens to Preserve Overton Park v. Volpe,

the Supreme Court explained that this is “a very narrow

exception” to judicial review that should be invoked only

where there is “no law to apply.” 401 U.S. 402, 410 (1971).

For our part, we have observed that “section 701(a)(2)

encodes the principle that an agency cannot abuse its

discretion, and thus violate section 706(2)(A), where its

13

governing statute confers such broad discretion as to

essentially rule out the possibility of abuse.” Drake v. FAA,

291 F.3d 59, 70 (D.C. Cir. 2002). According to the Secretary,

this is just such a case given that IGRA does not require

disapproval. In support, the Secretary points out that under the

statute he “may disapprove a compact . . . only if such

compact violates—(i) any provision of this chapter, (ii) any

other provision of Federal law . . . , or (iii) the trust

obligations of the United States to Indians.” 25 U.S.C.

§ 2710(d)(8)(B) (emphasis added). Because Congress used

“may” instead of “shall,” the Secretary argues, he is never

obligated to disapprove a compact and thus approval—either

affirmative approval pursuant to subsection (d)(8)(A) or, by

extension, no-action approval pursuant to subsection

(d)(8)(C)—falls solely within his discretion.

We rejected a similar argument in Dickson v. Secretary of

Defense, 68 F.3d 1396 (D.C. Cir. 1995). There, we considered

whether a statute directing that the Army Board for

Correction of Military Records “may excuse a failure to file

[if it is in] the interest of justice” committed the decision to

agency discretion. Id. at 1399. We found it implausible that

Congress intended “may” to confer such complete discretion

because taking that argument to its extreme would mean that

“even if the Board expressly found in a particular case that it

was in ‘the interest of justice’ to grant a waiver, it could still

decline to do so.” Id. at 1402 & n.7 (citing two other cases in

which courts, relying on statutory context, have read “may” to

mean “shall”). Following this reasoning, we believe that

subsection (d)(8)(B)’s use of “may” is best read to limit the

circumstances in which disapproval is allowed. The Secretary

must, however, disapprove a compact if it would violate any

of the three limitations in that subsection, and those

limitations provide the “law to apply.” In any event, as the

County points out, even if disapproval were otherwise

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discretionary, subsection (d)(8)(A) authorizes approval only

of compacts “governing gaming on Indian lands,” suggesting

that disapproval is obligatory where that particular

requirement is unsatisfied.

Moreover, subsection (d)(8)(C), which governs approval

by inaction, includes no exemption from this obligation to

disapprove illegal compacts. Like subsection (d)(8)(B)’s list

of conditions that require disapproval, subsection (d)(8)(C)’s

caveat—that the compact is deemed approved “but only to the

extent the compact is consistent with the provisions of

[IGRA]”—provides “law to apply.” And just as the Secretary

has no authority to affirmatively approve a compact that

violates any of subsection (d)(8)(B)’s criteria for disapproval,

he may not allow a compact that violates subsection

(d)(8)(C)’s caveat to go into effect by operation of law.

The Secretary nonetheless presses this argument,

claiming to find support for it in subsection (d)(8)(C)’s forty-

five-day time frame. That short time period, the Secretary

insists, suggests that Congress was concerned that the

Secretary would act too slowly, and thus “Congress’s intent

was not to embroil the Secretary in lengthy investigations into

whether the compact violated federal law, IGRA, or trust

obligations.” Appellees’ Br. 45. While this may be correct as

to compliance with other federal law and trust obligations, the

caveat demonstrates that Congress had no intention of trading

compliance with IGRA’s requirements for efficiency in

agency proceedings.

Lastly, the Secretary claims to draw support from

sections 2710(d)(7)(A) and 2714, which provide for judicial

review of National Indian Gaming Commission decisions.

According to the Secretary, these provisions protect his

discretion by insulating his decisions from review. It is well

15

established, however, that the existence of a judicial review

provision covering certain actions under a statute does not

preclude judicial review of other actions under the same

statute. See Bennett v. Spear, 520 U.S. 154, 175 (1997).

Moving on to the Secretary’s contention that the APA’s

agency action requirement, 5 U.S.C. § 704, is unsatisfied here

because approval came via inaction, we begin by pointing out

that the APA defines “agency action” as including “failure to

act.” 5 U.S.C. § 551(13). Of course, as the Secretary reminds

us, the Supreme Court held in Norton v. Southern Utah

Wilderness Alliance (“SUWA”) that inaction qualifies as

“failure to act” only where it is “discrete.” 542 U.S. 55, 62–64

(2004). For example, although plaintiffs may challenge an

agency’s failure to promulgate a rule, they may not raise a

“broad programmatic attack,” such as the challenge to

Interior’s failure to manage off-road vehicle use in federal

wilderness study areas brought in SUWA itself. Id. at 63–64.

Arguing that his approval of the Me-Wuk compact

through inaction fails this discreteness requirement, the

Secretary relies on Sprint Nextel Corp. v. FCC, 508 F.3d 1129

(D.C. Cir. 2007), in which we considered the reviewability of

an approval by operation of law under the

Telecommunications Act of 1996. Pursuant to that Act,

regulated parties may petition the FCC “to refrain—to

forbear—from applying several regulatory requirements.” Id.

at 1131. The FCC may grant the petition if certain

requirements are met; it may deny the petition; or, if it fails to

act within a certain time period, the petition is “deemed

granted.” 47 U.S.C. § 160(c). In Sprint Nextel, the FCC failed

to act in response to a forbearance petition, and we found no

agency action to review because the FCC had “not engage[d]

in any ‘circumscribed, discrete’ act.” Sprint Nextel Corp., 508

F.3d at 1131 (quoting SUWA, 542 U.S. at 62).

16

Although IGRA, like the Telecommunications Act,

allows requests to be granted by operation of law, we see an

essential difference, namely, subsection (d)(8)(C)’s caveat

that compacts deemed approved through secretarial inaction

become effective “only to the extent the compact is consistent

with the provisions of [IGRA.]” The Telecommunications Act

contains no parallel provision. In other words, in enacting the

Telecommunications Act, Congress provided that if the FCC

failed to act, a forbearance request would be granted by

operation of law without limitation. By contrast, in enacting

subsection (d)(8)(C), Congress limited the extent to which a

compact could be approved by operation of law, thus

imposing an obligation on the Secretary to affirmatively

disapprove any compact exceeding that limit. Accordingly,

where, as here, the plaintiff challenges a compact on the

grounds that it conflicts with another provision of IGRA, we

have a discrete agency inaction to review—the Secretary’s

failure to disapprove the compact despite its inconsistency

with the Act.

Sprint Nextel is distinguishable for another reason. In that

case, we emphasized that “in administrative law, we do not

sustain a right-result, wrong-reason decision of an agency,”

and, therefore, we need “more than a result; we need the

agency’s reasoning for that result.” 508 F.3d at 1132–33

(internal quotation marks and alterations omitted). Because

the FCC commissioners had dead-locked, none of their

statements constituted the agency’s reasoning for taking no

action on the forbearance request. Accordingly, unable to

determine if the outcome was justified, we declined to review

it. Id. In this case, however, Amador County alleges not that

the Secretary’s decision was unreasoned but that his decision

was “contrary to law.” Appellant’s Reply Br. 18. Because of

the nature of this particular challenge, we need no agency

reasoning. Either the compact meets the requirements of

17

IGRA, in which case we must reject the challenge, or it does

not, in which case we must direct the Secretary to disapprove

the compact.

Finally, relying again on SUWA, in which, in addition to

imposing a discreteness requirement, the Supreme Court held

that courts may compel agency action only where that action

was “legally required,” the Secretary argues that his inaction

is unreviewable because action (either by approving or by

disapproving the compact) “is not demanded by law.” SUWA,

542 U.S. at 63–65. According to the County, whether or not

the Secretary had an obligation to act is irrelevant because the

Supreme Court drew this requirement from 5 U.S.C. § 706(1)

(allowing courts to “compel agency action unlawfully

withheld or unreasonably delayed”), not from the provision at

issue in this case, 5 U.S.C. § 706(2)(A) (allowing courts to

“hold unlawful . . . agency action . . . found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law”). Because we have already found this

second SUWA requirement satisfied in this case, see supra

12–14 (holding that IGRA imposes duty to disapprove where

subsection (d)(8)(C)’s caveat is violated), we need not

consider whether the obligatory action requirement relates

only to section 706(1).

To sum up, then, we hold that where, as here, a plaintiff

alleges that a compact violates IGRA, thus requiring the

Secretary to disapprove the compact, nothing in the APA

precludes judicial review of a subsection (d)(8)(C) no-action

approval.

IV.

Having found that Amador County has standing and that

the Secretary’s approval by inaction is reviewable, we turn to

the merits. The parties agree both that the sole question at

18

issue is whether the Rancheria qualifies as “Indian land” and

that, if it does, the Secretary had authority to approve the

compact. IGRA defines “Indian land” as

[1] all lands within the limits of any Indian

reservation; and

[2] any lands title to which is either held in

trust by the United States for the benefit of any

Indian tribe or individual or held by any Indian

tribe or individual subject to restriction by the

United States against alienation and over which

an Indian tribe exercises governmental power.

25 U.S.C. § 2703(4). As to subparagraph 2, nothing in either

the record or the briefs forecloses the possibility that the land

is held subject to restrictions on alienation, nor do we do so

here. But because the parties agree that the Rancheria is

owned in fee by the Tribe rather than held in trust by the

United States, it appears that the land can qualify as “Indian

land” only if it is an “Indian Reservation”—a question that

turns, and again the parties agree about this, on the effect the

Hardwick Judgment had on the California Rancheria Act.

As noted above, although the California Rancheria Act

stripped the land of its reservation status, the County agreed

in the Hardwick Judgment that the “plaintiff Rancheria and

the Plaintiffs were never and are not now lawfully terminated

under the California Rancheria Act,” that the “original

boundaries of the plaintiff Rancheria . . . are hereby restored,”

that all the land within these restored boundaries of the

plaintiff Rancheria is declared “Indian Country,” that the

“plaintiff Rancheria shall be treated by the County of Amador

and the United States of America, as any other federally

recognized Indian Reservation, and [that] all of the laws of

the United States that pertain to federally recognized Indian

19

Tribes and Indians shall apply to the Plaintiff Rancheria and

the Plaintiffs.” Stipulation for Entry of Judgment, Hardwick v.

United States, No. C-79-1710, at 4 (Apr. 21, 1987) (included

at J.A. 51). These provisions, the Secretary argues,

preclusively establish that the Rancheria qualifies as “Indian

land.” Disagreeing, the County contends that these sweeping

provisions must “be construed and interpreted in light of the

issue[] being litigated”—“the County’s ability to assess

property taxes on the former Rancheria lands.” Appellant’s

Reply Br. 8, 16. The Hardwick Judgment, the County insists,

is therefore “of no consequence in the context of this litigation

challenging the Secretary’s approval of the [compact].” Id. at

8–9.

Generally, “when an issue of fact or law is actually

litigated and determined by a valid and final judgment, and

the determination is essential to the judgment, the

determination is conclusive in a subsequent action . . .

whether on the same or a different claim.” Restatement

(Second) of Judgments § 27; see also Yamaha Corp. of Am. v.

United States, 961 F.2d 245, 254 (D.C. Cir. 1992). Here, of

course, we have a stipulated judgment, and issues dealt with

in such judgments are not “actually litigated” for the purpose

of issue preclusion. Otherson v. Dep’t of Justice, INS, 711

F.2d 267, 274 (D.C. Cir. 1983). Nonetheless, “[p]reclusion is

appropriate when the stipulation clearly manifests the parties’

intent to be bound in future actions.” Id. at 274 n.6; see also

Restatement (Second) of Judgments § 27, cmt. e; Charles

Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 4443, n.36 (citing numerous cases supporting

this proposition). Accordingly, “the scope of preclusion by

settlement arises from contract,” and we “measur[e] intent by

ordinary contract principles.” Wright & Miller, Federal

Practice & Procedure § 4443, n.21; see also Otherson, 711

F.2d at 274 n.6.

20

Having dispensed with this case on APA grounds, the

district court never considered the scope of the County’s

intent to be bound by the Hardwick Judgment. Because intent

is a question of fact that may turn not only on the language of

the agreement, but also on extrinsic evidence not yet in the

record, we shall, as the parties request, remand to give the

district court an opportunity to assess the merits in the first

instance.

V.

For the foregoing reasons, we reverse and remand for

further proceedings consistent with this opinion.

So ordered.