Petition for Writ of Certiorari — Stand Up for California!, et al., Petitioners v. Department of the Interior, et al.

App. 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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Argued October 13, 2017

Decided January 12, 2018

No. 16-5327

STAND UP FOR CALIFORNIA!, ET AL.,

APPELLANTS

PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS,

A FEDERALLY RECOGNIZED INDIAN TRIBE,

APPELLANT

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

NORTH FORK RANCHERIA OF MONO INDIANS,

INTERVENOR-APPELLEE

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Consolidated with 16-5328

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Appeals from the United States District Court

for the District of Columbia

(No. 1:12-cv-02039)

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App. 2

Sean M. Sherlock argued the cause for appellants

Stand Up for California!, et al. With him on the briefs

were Todd E. Lundell and Benjamin Sharp. Jennifer A.

MacLean entered an appearance.

Michael A. Robinson argued the cause for appellant

Picayune Rancheria of the Chukchansi Indians. With

him on the briefs was James Qaqundah. Merrill C.

Godfrey entered an appearance.

Brian C. Toth, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief

were Jeffrey H. Wood, Acting Assistant Attorney General, and Eileen T. McDonough, Attorney. Mary G.

Sprague, Attorney entered an appearance.

Seth P. Waxman argued the cause for intervenorappellee North Fork Rancheria of Mono Indians. With

him on the brief were Danielle Spinelli, Christopher E.

Babbitt, Jonathan A. Bressler, John T. Byrnes, and

John M. Schultz.

Before: GARLAND, Chief Judge, TATEL, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Following a nearly sevenyear administrative process, the Interior Department

took a tract of land into trust for the North Fork

Rancheria of Mono Indians, a federally recognized Indian tribe based in California, and authorized it to operate a casino there. Several entities, including nearby

community groups and an Indian tribe with a competing casino, challenged the Department’s decision in

App. 3

United States district court, raising a host of statutory,

regulatory, and procedural challenges. In a thorough

and persuasive opinion, the district court granted summary judgment to the Department on most claims and

dismissed the remainder. For the reasons set forth in

this opinion, we affirm.

I.

Facing high unemployment, inadequate public

services, and an uncertain revenue stream, the North

Fork Rancheria of Mono Indians (the “North Fork”)

proposed in March 2005 to stimulate economic development by building a large-scale casino complex. Because the North Fork’s existing land was ill-suited to

the purpose, it asked the U.S. Department of the Interior (the “Department”) to exercise its authority under

the Indian Reorganization Act (IRA), 25 U.S.C. § 5101

et seq., to acquire land “for Indians,” id. § 5108, by taking a largely undeveloped, 305-acre tract of land in

Madera County into trust for the tribe. But because a

different statute—the Indian Gaming Regulatory Act

(IGRA), 25 U.S.C. § 2701 et seq.—generally prohibits

gaming on newly acquired Indian trust land, see id.

§ 2719(a), the tribe also asked the Department to determine that it qualified for a statutory exception,

available where the Department “determines [1] that

a gaming establishment on newly acquired lands

would be in the best interest of the Indian tribe and its

members, and [2] would not be detrimental to the surrounding community,” and “[3] the Governor of the

State in which the gaming activity is to be conducted

App. 4

concurs in the [Department’s] determination,” id.

§ 2719(b)(1)(A). The Department made the requested

determination in September 2011, and California’s

governor concurred soon after. See U.S. Department of

the Interior, Secretarial Determination Pursuant to

the Indian Gaming Regulatory Act for the 305.49-Acre

Madera Site in Madera County, California, for the

North Fork Rancheria of Mono Indians 89 (2011)

(“IGRA Decision”), Joint Appendix (J.A.) 3961; Letter

from Edmund G. Brown, Jr., Governor of California, to

Kenneth L. Salazar, U.S. Secretary of the Interior (Aug.

30, 2012), J.A. 4014–15.

Before it could take the land into trust, however,

the Department had to ensure that the project was

consistent with the Clean Air Act, 42 U.S.C. § 7401 et

seq. That Act provides that “[n]o department, agency,

or instrumentality of the Federal Government shall

engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity

which does not conform” to a state’s plan for achieving

federally mandated air quality standards. Id. § 7506(c).

Prior to making a final “conformity determination,”

the agency must provide 30-day advance notice to the

public, 40 C.F.R. § 93.156(b), and to tribal and governmental entities specified in Environmental Protection

Agency (EPA) regulations, see id. § 93.155(a). EPA regulations also require that the conformity determination

be based on “the latest and most accurate emission estimation techniques available.” Id. § 93.159(b). Having

given advance notice to the public and to most—but

not all—entities expressly entitled to receive it, the

App. 5

Department in June 2011 determined that, under California’s latest available emissions model, the casino

would conform to the state’s plan for achieving and

maintaining the Clean Air Act’s federal air quality

standards.

Based, among other things, on its findings that

the proposed casino complied with IGRA and the Clean

Air Act, the Department in November 2012 agreed

to take the tract of land into trust for the North Fork.

See U.S. Department of the Interior, Trust Acquisition

of the 305.49-Acre Madera Site in Madera County,

California, for the North Fork Rancheria of Mono Indians 1 (2012) (“Trust Decision”), J.A. 4041. Stand Up

for California!—a nonprofit organization focusing on

the community effects of gambling—along with five

other casino opponents (collectively, “Stand Up”), all

appellants here, sued the Department and the Bureau

of Indian Affairs. Another appellant, the Picayune

Rancheria of the Chukchansi Indians (the “Picayune”),

which operates a casino expected to compete with the

North Fork’s, filed a similar suit. The district court consolidated the cases and the North Fork intervened as

a defendant. See Stand Up for California! v. U.S. Department of the Interior, 204 F. Supp. 3d 212, 234

(D.D.C. 2016).

Stand Up and the Picayune argued that the Department’s trust decision violated the IRA, IGRA, the

Clean Air Act, and the Administrative Procedure Act,

5 U.S.C. § 551 et seq. Most directly, they argued that

the North Fork is not an Indian tribe for which the Department has IRA authority to acquire land. They also

App. 6

argued that the acquisition rested on faulty predicates,

namely, the Department’s determinations that the proposed casino complied with the Clean Air Act and qualified for the IGRA exception, as well as the California

governor’s concurrence in the latter determination.

After the district court remanded the Clean Air

Act conformity determination without vacatur so that

the Department could correct its initial failure to notify all entities entitled to notice under EPA regulations, see Stand Up for California!, 204 F. Supp. 3d at

236, the parties filed cross-motions for summary judgment. The district court, Chief Judge Howell, denied

summary judgment to Stand Up and the Picayune, dismissed Stand Up’s claims for failure to join an indispensable party—California—insofar as those claims

challenged the California governor’s concurrence in

the Department’s IGRA determination, and granted

the federal defendants and the North Fork summary

judgment on all other relevant claims. Id. at 323.

Stand Up and the Picayune now appeal. We review

the district court’s summary judgment rulings de novo,

evaluating the administrative record directly and invalidating the Department’s actions only if, based on

that record, they are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

District Hospital Partners, L.P. v. Burwell, 786 F.3d 46,

54 (D.C. Cir. 2015) (quoting 5 U.S.C. § 706(2)). In doing

so, we defer to the Department’s reasonable interpretation of ambiguities in statutes it is tasked with implementing and give “substantial deference” to the

Department’s “interpretation of its own regulations

App. 7

unless it is contrary to the regulation[s’] plain language.” Confederated Tribes of Grand Ronde Community of Oregon v. Jewell, 830 F.3d 552, 558–59 (D.C. Cir.

2016). We accept the Department’s factual findings so

long as they are supported by substantial evidence in

the record. See Center for Auto Safety v. Federal Highway Administration, 956 F.2d 309, 313 (D.C. Cir. 1992).

II.

We begin with Stand Up’s threshold argument

that the Department lacked statutory authority to

take land into trust for the North Fork. The IRA provision pursuant to which the Department acted, 25

U.S.C. § 5108, authorizes it to acquire land “for Indians,” id., defined as “all persons of Indian descent who

are members of any recognized Indian tribe” that was

“under Federal jurisdiction” at the time of the IRA’s

1934 enactment, id. § 5129; see Carcieri v. Salazar, 555

U.S. 379, 395 (2009) (interpreting IRA’s “Indian” definition to include only tribes that were under federal

jurisdiction in 1934).

Conceding that the North Fork is now a “recognized Indian tribe,” Stand Up Br. 6, Stand Up argues

that the Department lacked substantial evidence to

find, as the IRA requires, that the North Fork was

a tribe “under Federal jurisdiction” in 1934. The Department rested that finding primarily on its earlier

decision, roughly contemporaneous with the IRA’s enactment, to hold a special election at the North Fork’s

reservation, the North Fork Rancheria, pursuant to an

App. 8

IRA provision authorizing the Department to give reservations the opportunity to vote within a year of the

IRA’s passage on whether to accept the statute’s coverage. See 25 U.S.C. § 5125 (authorizing the Department

to call special elections). Stand Up concedes that such

an election, called a section 18 election, is, for IRA purposes, sufficient to establish federal jurisdiction over

a participating tribe. Oral Arg. at 9:33–10:48; cf. Confederated Tribes of Grand Ronde, 830 F.3d at 563–64

(upholding IRA interpretation that finds “federal jurisdiction” over a tribe if governmental actions in or

before 1934 “reflect federal obligations, duties, responsibility for or authority over the tribe”). In its view,

however, the record here was insufficient to establish,

broadly, that the participants in the North Fork’s section

18 election belonged to any one tribe or, more narrowly,

that they belonged to a tribe with any connection to

today’s North Fork Indians. We consider each of these

arguments in turn.

A.

The IRA authorized “reservation[s]” to hold section

18 elections within a year of its enactment. 25 U.S.C.

§ 5125 (emphasis added). Stand Up argues that although a section 18 election can demonstrate that the

voters in such an election resided on a single reservation falling under federal jurisdiction in 1934, it cannot

demonstrate that they belonged to a single “Indian

tribe [then] under Federal jurisdiction,” id. § 5129 (emphasis added), eligible to receive trust land today. This

argument ignores the IRA’s plain text. The statute

App. 9

provides that “[t]he term ‘tribe’ wherever used in this

Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one

reservation.” Id. (emphasis added). Because the North

Fork Rancheria, eligible to hold a section 18 election,

was a “reservation” at the IRA’s enactment, id. § 5125,

the voters—whose Indian or resident status Stand Up

nowhere disputes—were “Indians residing on one reservation” at that time and so, by the IRA’s own terms,

constituted a “tribe,” id. § 5129.

According to Stand Up, we may not now rely on

the IRA’s definition of “tribe” because the Department

failed to cite it when concluding that the North Fork

was a tribe subject to federal jurisdiction in 1934. But

the Department cited the section 18 election held “at

the [North Fork’s] Reservation” as evidence of the

North Fork’s 1934 tribal status, Trust Decision at 55,

J.A. 4095, and nothing suggests that in doing so the

Department departed from the straightforward textual reading it has given the IRA’s “tribe” definition in

prior cases. See, e.g., United Auburn Indian Community v. Sacramento Area Director, 24 IBIA 33, 41–42

(1993) (agency opinion citing IRA’s “tribe” definition in

finding section 18 election established tribal existence). Although we will “not supply a reasoned basis

for [an] agency’s action that the agency itself has not

given,” we may affirm “if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v.

Arkansas-Best Freight System, Inc., 419 U.S. 281, 285–

86 (1974). Here, that path is clear: a section 18 election

App. 10

on a reservation establishes that the Indian residents

qualify as a tribe subject to federal jurisdiction.

Undaunted, Stand Up points to Department documents supposedly establishing that, notwithstanding

the IRA’s text, residency is distinct from tribal affiliation. Specifically, two 1934 interpretive opinions by the

Department’s Solicitor mention that certain reservation residents typically ineligible to participate in

tribal affairs could nonetheless vote in their reservation’s section 18 election and that a tribe split over

multiple reservations could organize as a single tribe.

Cf. 25 U.S.C. § 5123(a) (allowing a tribe, rather than a

reservation, “to organize for its common welfare”).

Stand Up also cites a 2013 court filing in which the

Department acknowledges that some organized tribes

lack a designated reservation.

Of course, such agency statements cannot overcome the IRA’s clear text: “the Indians residing on one

reservation” comprise a “tribe” under the Act. Id.

§ 5129. Besides, the materials Stand Up cites are fully

consistent with the proposition that the residents of a

single reservation constitute a tribe under the IRA. At

most, they suggest that a reservation resident might

also belong to another tribe that is not territorially defined. Nothing suggests that Congress precluded the

possibility of holding dual tribal identities, one based

on cultural or genealogical ties and another on residency. Cf. Act of Aug. 11, 1964, Pub. L. No. 88-419, 78

Stat. 390, 391 (clarifying that a prior statute stripping

Indian status from certain reservation residents left

those affected wholly bereft of Indian status only if

App. 11

they were “not members of any other tribe or band”).

As the district court aptly noted, “nothing in the text

of [the IRA] requires a tribe” within the meaning of the

statute “to be ‘single,’ ‘unified,’ or comprised of members of the same historically cohesive or ethnographically homogenous tribe.” Stand Up for California!, 204

F. Supp. 3d at 289. Stand Up’s response—that yoking

residency to tribal identity contravenes tribal autonomy by artificially lumping heterogeneous populations

together as tribes—is best addressed to Congress.

Moreover, beyond the section 18 election, other

record evidence confirms the North Fork’s longstanding tribal existence. Specifically, in 1916, the Department used congressionally appropriated funds to buy

the North Fork Rancheria for the tribe’s use. See Ac

of June 30, 1913, Pub. L. No. 63-4, 38 Stat. 77, 86 (appropriating funds “[f ]or support and civilization of

Indians in California”). Stand Up insists that we may

not consider this purchase because the Department

treated the section 18 election alone as “conclusively

establish[ing] that the [North Fork] was under Federal

jurisdiction” in 1934. Trust Decision at 55, J.A. 4095.

Stand Up misreads the Department’s decision. Although the Department treated the election held “at

the Tribe’s Reservation” as dispositive of the government’s jurisdictional relationship with the reservation’s residents, it presupposed that the reservation

was a “Tribe’s.” Id. The source of that presupposition

becomes clear in the decision’s very next section, where

the Department characterized the 1916 Rancheria

App. 12

purchase as establishing the North Fork’s “tribal

land.” Id.

According to Stand Up, the beneficiary of the

Rancheria’s purchase was not a cohesive tribal entity,

but rather a set of diverse Indian groups occupying the

geographic North Fork region. Ample record evidence,

however, including the 1916 purchase authorization itself, supports the Department’s contrary conclusion.

See Bethel-Fink Decl. exh. A, ECF No. 33-1 at 10 (authorizing purchase of land “for the use of the North

Fork band of landless Indians”), quoted in Bureau of

Indian Affairs Decision Package, Administrative Record NF_AR_0000776, J.A. 527; Letter from John J. Terrell, Special Indian Agent, to Commissioner of Indian

Affairs 1 (Apr. 4, 1916), J.A. 532 (referring to a member

“of th[e] band” of “the Indians of Northfork and v[i]cinity”); id. at 3, J.A. 534 (“[T]here is likely more than 200

Indians properly belonging to the Northfork and

v[i]cinity band.”). Nothing more is required. See FPL

Energy Maine Hydro LLC v. FERC, 287 F.3d 1151,

1160 (D.C. Cir. 2002) (substantial evidence standard

“requires more than a scintilla, but can be satisfied by

something less than a preponderance of the evidence”).

B.

Stand Up next argues that even if record evidence

establishes that the North Fork Rancheria’s 1934 residents belonged to an identifiable tribe “under Federal

jurisdiction,” 25 U.S.C. § 5129, the evidence is insufficient to connect the present-day North Fork to that

App. 13

historic group. Our examination of the North Fork’s

history, however, demonstrates that even though the

tribe has had its ups and downs, substantial record evidence supports the Department’s conclusion that today’s North Fork traces its roots to the Indians who

lived on the Rancheria in 1934.

When the Department purchased the North

Fork Rancheria in 1916, some 200 Indians lived in the

vicinity. By 1933, the population had dwindled to

seven, and by 1955 only one adult Indian, Susan Johnson, lived at the Rancheria. Three years later, in 1958,

Congress passed the California Rancheria Act, Pub. L.

No. 85-671, 72 Stat. 619 (1958), which ended the federal government’s trust relationship with forty-one

California reservations and Rancherias, among them

the North Fork Rancheria, see id. §§ 1, 9, and effectively divested certain residents, including Ms. Johnson, of Indian status, see id. § 10(b). But years later, in

1983, as part of a stipulated judgment in a case challenging the government’s termination of its trust relationship with certain Rancherias, Hardwick v. United

States, No. C-79-1710-SW (N.D. Cal.), the government

reversed course, agreeing to “restore[ ] and confirm[ ]”

Indian status for some who had lost it under the California Rancheria Act; to “recognize the Indian Tribes,

Bands, Communities or groups of ” seventeen listed

Rancherias, including the North Fork Rancheria, “as

Indian entities with the same status as they possessed” prior to the 1958 Act; and to list those entities

as federally recognized tribes, Stipulation for Entry of

App. 14

Judgment, Hardwick, No. C-79-1710-SW, ¶¶ 2–4 (Aug.

3, 1983) (“Hardwick Stipulation”), J.A. 549–51.

Although acknowledging that the Hardwick stipulation restored the North Fork to its 1958 status and

that it retains that status today, Stand Up Reply Br.

11, Stand Up insists that nothing in the record establishes that the North Fork had any tribal status in

1958 capable of restoration through the stipulation.

This is incorrect. Substantial record evidence supports

the Department’s conclusion that the North Fork continued to exist in 1958. Most obviously, Congress’s

1958 decision to terminate the federal trust relationship with the North Fork via the California Rancheria

Act demonstrates that there was in fact a relationship

to terminate. Stand Up believes that the Act ended

the government’s relationship with the North Fork

Rancheria, not with any tribe. But as explained above,

under the IRA, the “Indians residing on one reservation” are a tribe. 25 U.S.C. § 5129; see also Amador

County v. Salazar, 640 F.3d 373, 375 (D.C. Cir. 2011)

(describing the California Rancheria Act as “authoriz[ing] the [Department] to terminate the federal

trust relationship with several California tribes”).

Moreover, and again as explained above, substantial

evidence supports the conclusion that the Rancheria

was itself purchased for a discernible band of North

Fork Indians that included, but was not necessarily

limited to, the residents of the land that became the

Rancheria. The fact that only one adult member of this

band—Ms. Johnson—lived at the Rancheria in 1958 is

as easily attributable to the fact that the Rancheria

App. 15

was “poorly located and absolutely worthless as a place

to build homes on” as it is to tribal dissolution. LippsMichaels Survey of Landless Nonreservation Indians

of California 1919–1920, at 50 (July 15, 1920), J.A.

4029.

Furthermore, the Hardwick stipulation reinstated

“the Indian Tribes, Bands, Communities or groups of ”

seventeen named Rancherias, including the North

Fork, “as Indian entities with the same status as they

possessed” in 1958. Hardwick Stipulation ¶ 4, J.A. 550.

Stand Up reads this bargained-for provision as a nullity with respect to the North Fork. The Department,

however, quite reasonably understood the provision to

establish that the North Fork had a 1958 status worth

restoring. Stand Up cites a Ninth Circuit decision, Williams v. Gover, 490 F.3d 785 (9th Cir. 2007)—in which

the descendants of a terminated Rancheria’s pre-1958

members unsuccessfully challenged the Rancheria’s

post-Hardwick decision to exclude them from full

tribal membership, see id. at 787–88—for the proposition that, as Stand Up sees it, “there is no inevitable

connection between a tribe that emerged from the

Hardwick Stipulation and those residing on a Rancheria” prior to the California Rancheria Act, Stand Up Br.

31. This misreads Williams. The Ninth Circuit held

only that a reinstated tribe retains “power to define

membership as it chooses,” even if in doing so the tribe

elects not to privilege individual Indians’ pre-1958

tribal ties. Williams, 490 F.3d at 789–90.

Having failed to undermine the Department’s perfectly reasonable reliance on the Hardwick stipulation

App. 16

as evidence that the North Fork existed in 1958, Stand

Up grasps at isolated bits of the record that, in its view,

nonetheless compel the opposite conclusion. It first

points to a Federal Register notice terminating Ms.

Johnson’s Indian status pursuant to the California

Rancheria Act and purporting to “affect[ ] only Indians

who are not members of any tribe or band of Indians.”

Notice of Termination of Federal Supervision Over

Property and Individual Members, 31 Fed. Reg. 2911,

2911 (Feb. 18, 1966). According to Stand Up, the notice’s disclaimer means that Ms. Johnson—who, as the

North Fork Rancheria’s only 1958 adult Indian inhabitant, belonged to the North Fork tribe if such a tribe

existed—had no 1958 tribal affiliation. True to form,

Stand Up misreads the disclaimer. By its own terms,

the disclaimer was expressly linked to a “provision[ ] in

[a] 1964 Act” amending the California Rancheria Act,

id., and that amendment clarified that the original

1958 Act’s provision voiding certain residents’ Indian

status was meant to apply to only those Indians “who

[were] not members of any other tribe or band of Indians,” Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat.

390, 391 (emphasis added). Put simply, the Federal

Register notice indicates not that Ms. Johnson had

been unaffiliated prior to 1958, but rather that she

would lose Indian status thereafter only if she belonged to no tribe other than the North Fork.

Stand Up next cites a 1960 opinion by the Solicitor

of the Bureau of Indian Affairs quoting a portion of the

California Rancheria Act’s legislative history that

characterizes “the groups” occupying the Rancherias

App. 17

subject to the Act as “not well defined,” Rancheria Act

of August 18, 1958, Department of the Interior, Opinions of the Solicitor 1884 (Aug. 1, 1960) (“Solicitor

Opinion”), J.A. 324, as well as a Senate Report stating

that the North Fork had “no approved membership

roll” in 1958, S. Rep. No. 85-1874, at 33 (1958), J.A. 306.

Stand Up draws the wrong conclusion from the cited

legislative history. That the Solicitor’s opinion associated the Rancherias with groups that were “not well

defined” is far less significant than that it associated

them with “groups,” thereby supporting the Department’s conclusion that the North Fork Rancheria was

connected to an identifiable North Fork tribal entity.

Solicitor Opinion at 1884, J.A. 324. Likewise, that the

North Fork failed to keep membership records in 1958

hardly undermines the Department’s finding that the

tribe existed at that time.

Finally, Stand Up argues that even if substantial

evidence establishes the North Fork’s 1958 existence,

nothing connects the tribe’s 1958 iteration to the

voters in the North Fork Rancheria’s 1934 section 18

election. Enough is enough! Stand Up demands an unnecessary—indeed impossible—genealogical exercise.

Barring affirmative evidence of tribal discontinuity between 1934 and 1958, the Department was entitled to

rely on the unremarkable assumption that a political

entity, even as its membership evolves over time, retains its essential character.

App. 18

III.

Now joined by the Picayune, Stand Up contends

that, even if the Department had IRA authority to acquire trust land for the North Fork, it could not exercise that authority in connection with the North Fork’s

proposed casino project because the Department’s determinations that the proposal complied with IGRA

and the Clean Air Act were fatally flawed. We disagree.

A.

Although IGRA generally bars gaming on newly

acquired Indian trust land, 25 U.S.C. § 2719(a), it creates an exception where the Department “determines

that a gaming establishment on newly acquired lands

[1] would be in the best interest of the Indian tribe and

its members, and [2] would not be detrimental to the

surrounding community,” provided that “[3] the Governor of the State in which the gaming activity is to be

conducted concurs in the [Department’s] determination,” id. § 2719(b)(1)(A). In this case, the Department

made the required determinations, and California’s

governor concurred.

Neither Stand Up nor the Picayune disputes that

the first of the exception’s requirements—that the proposed casino is in the North Fork’s best interests—was

satisfied here. Instead, they challenge the Department’s finding that “[t]he proposed Resort would not

be detrimental to the surrounding community.” IGRA

Decision at 84, J.A. 3956. The Picayune also challenges

App. 19

the gubernatorial concurrence as invalid under California law.

Although the former argument requires some discussion, we can easily dispose of the latter, as it is twice

forfeited. The district court concluded that the Picayune, having “nowhere in its ample briefing on summary judgment even mention[ed]” the gubernatorial

concurrence’s supposed invalidity, abandoned any challenge to the concurrence. Stand Up for California!, 204

F. Supp. 3d at 247 n.16. The district court further ruled

that no such challenge could proceed in any event, as

California was not a party. See id. at 254. Because the

Picyaune challenged neither of these independently

dispositive findings in its opening brief, it has forfeited

its opportunity to do so. See Russell v. Harman International Industries, Inc., 773 F.3d 253, 255 n.1 (D.C.

Cir. 2014) (argument not raised in opening brief on appeal is forfeited).

We turn, then, to the Department’s non-detriment

finding. Stand Up first attacks the Department for considering the casino’s benefits as well as its detriments

to the surrounding community, arguing that “benefits

that are not connected to and will not mitigate [a] casino’s undisputed detrimental impacts cannot simply

cancel out those detrimental impacts.” Stand Up Br.

37. As Stand Up sees it, IGRA’s requirement that a casino “not be detrimental to the surrounding community,” 25 U.S.C. § 2719(b)(1)(A), requires that a casino

have no unmitigated negative impacts whatsoever, not

that it, on balance, have a positive or at least neutral

net effect on the surrounding community.

App. 20

The district court rejected this “cramped reading”

of IGRA, which, it found, “would result in barring any

new gaming establishments,” given that “[a]ll new

commercial developments are bound to entail some

[unmitigated] costs.” Stand Up for California!, 204

F. Supp. 3d at 262 (first alteration in original) (quoting

Stand Up for California! v. U.S. Department of the Interior, 919 F. Supp. 2d 51, 74 (D.D.C. 2013)). We do too.

Stand Up points to nothing in IGRA that forecloses the

Department, when making a non-detriment finding,

from considering a casino’s community benefits, even

if those benefits do not directly mitigate a specific cost

imposed by the casino. Indeed, Stand Up never even

challenges IGRA regulations that expressly allow the

Department to consider “[a]ny . . . information that

may provide a basis for a . . . [d]etermination whether

the proposed gaming establishment would or would

not be detrimental to the surrounding community.”

25 C.F.R. § 292.18(g) (emphasis added); see also id.

§ 292.21(a) (cataloguing the information the Department is to consider). The Department reads this

regulation as authorizing it to consider a casino’s community benefits—even those that do not directly remediate a specific detriment—and we defer to this

perfectly reasonable reading. See Confederated Tribes

of Grand Ronde, 830 F.3d at 559 (“[W]e give substantial deference to an agency’s interpretation of its own

regulations unless it is contrary to the regulation[s’]

plain language.”).

Finding no defect in the Department’s overall

methodology, we move on to Stand Up’s argument that

App. 21

the Department’s non-detriment finding is unsupported by substantial evidence. Stand Up offers two

reasons for this position, neither persuasive.

Stand Up first claims that the finding rests on an

assumption that the North Fork will adopt mitigation

measures set out in an environmental impact statement the Department prepared to comply with the National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. § 4321 et seq. This assumption is untenable,

Stand Up argues, because “NEPA imposes no substantive requirement that mitigation measures actually be

taken.” Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 353 n.16 (1989). But even if NEPA itself

imposes no such requirement, the North Fork signed

memoranda of understanding (MOUs) with local governments, in which it agreed to undertake the contemplated measures. Stand Up insists that the Department

could not rely on the MOUs as evidence that the North

Fork would undertake mitigation because the MOUs,

by their terms, would go into effect only after the North

Fork had entered a compact with California governing

the terms of gaming at the proposed casino, and because the Department had no guarantee that such a

compact would ever materialize. Unchallenged IGRA

regulations, however, obliged the Department to consider the MOUs. See 25 C.F.R. § 292.18(g) (application

to qualify for IGRA exception must contain information

on “memoranda of understanding . . . with affected local governments”); id. § 292.21(a) (Department must

consider this information). And it was reasonable for the

Department to assume that the mitigation measures

App. 22

spelled out in the MOUs would take effect if necessary,

even if the MOUs would not become binding absent a

tribal-state compact. In most instances, such a compact is a statutory precondition to gaming on Indian

land, see 25 U.S.C. § 2710(d)(1)(C), and, accordingly, a

precondition to any casino-related harms the MOUs

sought to mitigate. And although, absent a tribal-state

compact, IGRA allows the Department to conditionally

authorize gaming under prescribed conditions, see

id. § 2710(d)(7)(B)(vii), the Department justifiably declined to allow its predictive judgment as to the casino’s probable effects to be governed by the outside

possibility that the North Fork would secure authorization to operate the casino without also abiding by the

MOUs, see Rural Cellular Association v. FCC, 588 F.3d

1095, 1105 (D.C. Cir. 2009) (“The ‘arbitrary and capricious’ standard is particularly deferential in matters

implicating predictive judgments. . . .”).

Stand Up next argues that even with the mitigation measures in place, the Department lacked a sufficient basis for making a non-detriment finding because

record evidence estimated that the casino would add

531 new problem gamblers to Madera County’s adult

population. Well aware of that consequence, the Department relied on the North Fork’s promise to, among

other things, cover the estimated $63,600 annual

treatment costs attributable to new gamblers through

an annual $50,000 earmarked contribution to Madera

County and an additional catchall sum specifically calculated to cover the remaining $13,600. According to

Stand Up, this mitigation does not address problem

App. 23

gamblers who never seek treatment, and the record

suggests treatment “may,” rather than “will,” attenuate problem gambling in any event. U.S. Department

of the Interior, Bureau of Indian Affairs, Final Environmental Impact Statement: North Fork Casino 4.79 (2009), J.A. 711. Perhaps so, but Stand Up has failed

to show that any residual harms the North Fork’s mitigation efforts leave unaddressed will be so substantial

that the Department, permissibly viewing the casino’s

net effects holistically, was obliged to find that the casino would be detrimental.

The Picayune likewise focuses on a narrow subset

of the casino’s effects—specifically, the competitive

threat to its own gaming operations. The Department

acknowledged that it “must accord weight to [the] Picayune’s concerns,” IGRA Decision at 86, J.A. 3958, but

due to “the relative proximity of [the] Picyaune’s lands,

headquarters, and existing class III gaming facility” to

the site of the North Fork’s proposed casino, id. at 85,

J.A. 3957, it determined, pursuant to IGRA regulations

unchallenged by the Picayune, that the tribe was not

part of the “surrounding community,” 25 C.F.R. § 292.2,

and so assigned its concerns “less weight than comments submitted by communities and tribes that f[e]ll

within the definition of ‘surrounding community’ in

[the] regulations,” IGRA Decision at 85, J.A. 3957.

Appropriately weighed, the Department concluded,

the proposed casino’s competitive effects on the Picayune’s own operations were insufficient to mandate a

finding that the casino would be detrimental to the

App. 24

surrounding community. See id. The Picayune raises

three challenges to the Department’s reasoning.

First, the Picayune argues that the Department

erred in concluding that it was not part of the surrounding community. But under IGRA regulations—

again unchallenged by the Picyaune—“[s]urrounding

community means local governments and nearby Indian tribes located within a 25-mile radius of the site

of the proposed gaming establishment,” 25 C.F.R.

§ 292.2, and the Picayune concedes that it is located

outside the relevant 25-mile radius, Picayune Br. 12

n.1. Insisting that it nonetheless constitutes part of the

surrounding community, the Picayune cites a portion

of the IGRA regulation that allows a “nearby Indian

tribe located beyond the 25-mile radius” to “petition for

consultation if it can establish that its governmental

functions, infrastructure or services will be directly,

immediately and significantly impacted by the proposed gaming establishment.” 25 C.F.R. § 292.2. Specifically, it contends that the Department, in finding

that “the relative proximity of [the] Picayune’s lands,

headquarters, and existing . . . gaming facility to the

[proposed casino’s] Site” counseled in favor of considering the Picayune’s concerns, IGRA Decision at 85, J.A.

3957, necessarily concluded that its “governmental

functions, infrastructure or services will be directly,

immediately and significantly impacted by” the North

Fork’s casino, 25 C.F.R. § 292.2, and so was obliged to

treat it as part of the surrounding community.

The Picayune has given us no basis for upsetting

the Department’s reasonable interpretation of its own

App. 25

regulation as excluding from the “surrounding community” all communities outside the 25-mile radius—even

those that may otherwise petition for consultation. See

Thomas Jefferson University v. Shalala, 512 U.S. 504,

512 (1994) (deferring to agency interpretation of its

own regulation unless the interpretation is “plainly erroneous or inconsistent with the regulation” (quoting

Udall v. Tallman, 380 U.S. 1, 16 (1965))). This interpretation follows readily from the regulation’s text and,

contrary to the Picayune’s argument, comports with

the Department’s characterization—in commentary

contemporaneous with the regulation’s promulgation—of the 25-mile radius as a “rebuttable presumption.” Gaming on Trust Lands Acquired After October

17, 1988, 73 Fed. Reg. 29,354, 29,357 (May 20, 2008). A

community outside the radius may, by showing that it

will be “directly, immediately and significantly impacted by” a casino, rebut the presumption that it is

not entitled to consultation, even while remaining outside the “surrounding community.” 25 C.F.R. § 292.2.

Second, the Picyaune argues that even if the Department properly considered it to be outside the “surrounding community,” nothing in IGRA’s regulations

“hints at the [Department] having any discretion to

discount the weight” afforded to input from any community included in the consultation process. Picayune

Br. 30. Contrary to the tribe’s improbable assumption,

however, nothing in the regulations so much as suggests that the Department must treat differently situated communities identically. To be sure, a casino

might have substantial effects on even far-flung

App. 26

communities, but Congress was concerned only with

the “surrounding community,” 25 U.S.C. § 2719(b)(1)(A),

and given Congress’s choice to speak in geographic

terms, the Department reasonably concluded that

“[t]he weight accorded to the comments of tribes and

local governments outside the definition of ‘surrounding community’ will naturally diminish as the distance

between their jurisdictions and the proposed offreservation gaming site increases,” IGRA Decision at

86, J.A. 3958.

Lastly, the Picayune claims that the Department

ignored evidence that competition from the North

Fork’s proposed casino would reduce its revenues,

causing job loss and reduced public services. Expressly

acknowledging this evidence, the Department nonetheless concluded that because the Picayune’s casino

“has proven to be a successful operation in a highly

competitive gaming market,” any “competition from

the [North Fork] Tribe’s proposed gaming facility in an

overlapping gaming market is not sufficient, in and of

itself, to conclude that it would result in a detrimental

impact to [the] Picayune.” Id. Contrary to the Picayune’s suggestion, the Department did not discount an

anticipated competitive injury merely because “the

source of the injury was competition,” Picayune Br. 34;

instead, the Department concluded that the Picayune’s

casino could successfully absorb the expected competitive effects. Given the reduced weight the Department

permissibly assigned the Picayune’s concerns, it concluded—appropriately in our view—that the casino’s

potential effects on the tribe were insufficient to render

App. 27

the casino detrimental to the surrounding community

overall.

B.

Rounding out the bevy of challenges to the predicate determinations underlying the trust decision,

Stand Up attacks the Department’s finding that the

proposed casino project conformed to California’s plan

for achieving compliance with federal air quality standards under the Clean Air Act. See 42 U.S.C. § 7410

(describing requirements for state implementation

plans for achieving air quality standards); id. § 7506(c)

(placing “affirmative responsibility” on federal agency

heads to ensure certain projects’ conformity to the relevant state implementation plans prior to approval).

The Department concedes that it is unable to prove

that, prior to issuing its conformity determination in

June 2011, it gave prior notice to each and every governmental and tribal entity entitled to such notice as

required by Clean Air Act regulations. See 40 C.F.R.

§ 93.155(a) (listing entities entitled to notice). When

this defect was first brought to the district court’s attention, it responded by allowing a limited remand,

without vacatur, so that the Department could belatedly issue the required notice and consider any responsive comments. See Stand Up for California!, 204

F. Supp. 3d at 236. After taking these steps in 2014, the

Department reissued its original determination unchanged.

App. 28

Stand Up argues that the Department’s notice

violation was incapable of after-the-fact cure and so

required the district court to vacate the conformity

determination. In initially granting remand without

vacatur, however, the district court observed that the

procedural flaw was minimal because the Department

had given prior public notice of its determination in

2011, as well as specific notice targeting the entities

“most likely to have substantive comments,” and because

“the much broader Environmental Impact Statement

required under the [NEPA] was widely publicized and

heavily commented upon.” Stand Up for California! v.

U.S. Department of the Interior, No. 12-2039, 2013 WL

12203229, at *3 & n.2 (D.D.C. Dec. 16, 2013). Given the

notice defect’s relative insignificance, as well as the potentially “disruptive consequences” of rolling back an

essential predicate to the trust decision, the district

court acted well within its discretion in finding vacatur unnecessary to address any harm the defect had

caused. Sugar Cane Growers Cooperative of Florida v.

Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002) (“[T]he decision whether to vacate depends on ‘the seriousness of

the order’s deficiencies . . . and the disruptive consequences of an interim change that may itself be

changed.’ ” (quoting Allied-Signal, Inc. v. United States

Nuclear Regulatory Commission, 988 F.2d 146, 150–51

(D.C. Cir. 1993))); see also State of Nebraska Department of Health & Human Services v. Department of

Health & Human Services, 435 F.3d 326, 330 (D.C. Cir.

2006) (reviewing district court’s choice of equitable

remedy for abuse of discretion).

App. 29

Stand Up contends that “[e]ven if the district court

could properly remand without vacating the [Department’s] initial [conformity determination], the [Department’s] actions on remand—which treated the

notice as perfunctory and simply rubber-stamped [its]

earlier decision—were inadequate to meet the Clean

Air Act’s requirements.” Stand Up Reply Br. 23. But in

ordering remand without vacatur, the district court

considered it “substantially likely” that the Department would “reach the same conclusion and reinstitute

the same action” on remand, given that the Department had initially made the conformity determination

only after considerable participation from multiple stakeholders. Stand Up for California!, 2013 WL 12203229,

at *3. Stand Up identifies no new facts or considerations raised on remand that required the Department

to part ways with its earlier conclusion.

Finally, Stand Up argues that the conformity determination, contrary to EPA regulations, was not

“based on the latest and most accurate emission estimation techniques,” 40 C.F.R. § 93.159(b), and in particular on “the most current” available motor vehicle

emissions model specified by the agency, id. § 93.159(b)(1).

When first issued in 2011, the determination here undisputedly complied with this requirement. But because EPA updated the relevant emissions model for

California in 2013, see Official Release of EMFAC2011

Motor Vehicle Emission Factor Model for Use in the

State of California, 78 Fed. Reg. 14,533 (Mar. 6, 2013),

Stand Up argues that the Department, when reissuing

the 2011 conformity determination on remand in 2014,

App. 30

should have done its calculations in accordance with

the 2013 emissions model.

The parties dispute whether the reissued conformity determination falls into a regulatory safe harbor

that allows “[c]onformity analyses for which the analysis was begun [three months after] or no more than

3 months before” announcement of a new emissions

model to rely on the prior model. 40 C.F.R. § 93.159(b)(1)(ii).

We need not address this issue, however, because the

relevant date for compliance with the regulatory emissions modeling requirement was 2011, when the Department initially made its conformity determination.

Although the determination was subject to a limited

remand on an unrelated notice issue, it was never

vacated. In withholding vacatur, the district court

expressly rejected Stand Up’s “argument that the remand should require the [Department] to perform the

entire Clean Air Act conformity determination again,”

Stand Up for California!, 2013 WL 12203229, at *4, instead viewing the remand as giving the Department

an opportunity to “remedy a minor procedural defect,”

id. at *1. As we have already concluded, the district

court acted well within its discretion in determining

that the appropriate remedy for the Department’s notice violation was a narrow remand for a single purpose. Under such circumstances, the Department had

no obligation to rebuild the conformity determination

from the ground up. Cf. Allied-Signal, 988 F.2d at 151

(agency need not refund fees collected under an inadequately supported rule where district court remands

App. 31

without vacatur to allow agency to “develop a reasoned

explanation based on an alternative justification”).

To be clear, we agree with Stand Up that an agency

“is bound to enforce administrative guidelines in effect

when it takes final action.” Sierra Club v. EPA, 762

F.3d 971, 980 (9th Cir. 2014). Here, the Department’s

“final action” took place in 2011 and complied fully

with the relevant regulatory requirement. Since then,

the Department has done nothing more than ratify

that final action in response to a narrow remand order

that not only declined to vacate the 2011 conformity

determination, but also affirmatively found it unnecessary for the agency to redo its prior analysis.

IV.

After reviewing thousands of pages of evidence

over the span of seven years, the Interior Department

took the tract of land at issue into trust for the North

Fork and approved the tribe’s proposed casino. Viewing

the same extensive record and affording the appropriate measure of deference to the Department’s supportable judgments, we, like the district court, conclude

that this decision was reasonable and consistent with

applicable law. We affirm.

So ordered.

App. 32

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STAND UP FOR

CALIFORNIA!, et al.,

Plaintiffs,

Civil Action No.

12-2039 (BAH)

v.

U.S. DEPARTMENT OF

THE INTERIOR, et al.,

Defendants,

v.

NORTH FORK RANCHERIA

OF MONO INDIANS,

Consolidated with:

Civil Action No.

12-2071 (BAH)

Chief Judge

Beryl A. Howell

Intervenor-Defendant.

Table of Contents

I.

BACKGROUND .......................................

7

A. HISTORY AND CURRENT STATUS

OF THE NORTH FORK TRIBE ..........

8

B. MADERA SITE .................................... 13

C. ACTIONS UNDERLYING ADMINISTRATIVE DECISIONS ................................ 14

D. COMMENCEMENT OF INSTANT LAWSUIT..................................................... 18

E. PARTIAL REMAND AND SUBSEQUENT

STATE AND AGENCY ACTIONS ........ 19

App. 33

F. SUPPLEMENTAL BRIEFING, CALIFORNIA LITIGATION AND RELATED

FILINGS .............................................. 25

G. CALIFORNIA STATE COURT LITIGATION ............................................... 29

H. PARTIES’ POSITIONS ON RECENT

DEVELOPMENTS ............................... 31

[2] II. LEGAL STANDARDS ............................. 34

A. MOTION FOR SUMMARY JUDGMENT .................................................. 34

B. ADMINISTRATIVE PROCEDURE

ACT ........................................................

III.

35

DISCUSSION ........................................... 39

A. STAND UP PLAINTIFFS’ FIFTH AND

SIXTH CLAIMS FOR RELIEF ............. 41

B. STAND UP PLAINTIFFS’ CHALLENGES TO THE GOVERNOR’S CONCURRENCE ........................................ 42

1. Secretary’s Two-Part Determination

(IGRA ROD)...................................... 44

2. California Governor’s Concurrence....

45

3. Secretary’s Land Acquisition Decision (IRA ROD)................................. 53

C. IGRA RECORD OF DECISION............ 57

1. Historical Connection To The Madera

Site .................................................... 59

a. Camp Barbour Treaty Of 1851 . 60

b. Occupancy Or Subsistence Use

In The Vicinity ........................... 63

App. 34

2. Impacts On The Surrounding Community ............................................... 64

a. Congressional Intent .................. 65

(i)

Section 2719(b)(1)(A)’s “Not

Detrimental To The Surrounding Community” Requirement ................................... 65

(ii) Section 2719(a)’s Preference

For On-Reservation Gaming ... 67

b. Community Benefits .................. 69

c. Mitigation Measures .................. 70

d. Community Harms .................... 73

(i)

Economic Impact On The

Picayune Tribe ................... 73

[3] (ii) Problem Gamblers, Traffic And The Swainson’s

Hawk ............................. 87

D. IRA RECORD OF DECISION .............. 90

1. Applicable Legal Framework ...........

92

2. Secretary’s Explanation Of Statutory

Authority ........................................... 95

3. Stand Up Plaintiffs’ Arguments ......

98

a. IRA Section 18 Election ............. 102

(i)

“Indians Residing On One

Reservation” Constitute A

Tribe ................................... 102

(ii) Alternative Definitions Of

“Indian” In § 479 Need Not

Be Considered .................... 107

App. 35

(iii) “Unified” Tribal Affiliation

Is Not Necessary ................ 108

(iv) North Fork Rancheria’s Purchase Is Significant ............ 112

b. North Fork Tribe’s Continuing

Tribal Existence ......................... 116

(i)

North Fork Rancheria Was

Purchased For The North

Fork Tribe ........................... 117

(ii) Speculation That IRA Voters

Were Not North Fork Tribe

Members Is Unfounded ...... 122

(iii) North Fork Tribe Is A

Federally-Recognized Indian

Tribe ................................... 125

E. NEPA COMPLIANCE .......................... 134

1. Alternative Sites ............................... 139

a. Applicable Legal Principles ........ 140

b. Discussion Of Alternatives In The

FEIS .......................................... 142

c. Stand Up Plaintiffs’ Arguments.... 144

(i)

Properties “Along The SR-41

Corridor” And “Avenue 7” ...... 145

(ii) North Fork Rancheria ........ 148

(iii) Old Mill Site ....................... 149

[4] 2. Impact on Crime......................... 153

App. 36

3. Mitigation Measures For Problem

Gambling .......................................... 156

F. CAA CONFORMITY DETERMINATION .................................................... 159

1. Regulatory Overview ........................ 160

2. Previously-Rejected Procedural Challenge .................................................. 161

3. Previously-Rejected Challenge To Emissions Model Used .............................. 163

4. Challenge To Emissions Estimates

And Mitigation Measures ................. 164

IV.

CONCLUSION ......................................... 169

MEMORANDUM OPINION

(Filed Sept. 6, 2016)

The North Fork Rancheria of Mono Indians (the

“North Fork Tribe”), a federally-recognized American

Indian tribe, plans to construct a casino-resort complex with a gaming floor offering up to 2,500 gaming devices, six bars, three restaurants, a five-tenant

food court, a 200-room hotel tower, and 4,500 parking

spaces on a 305.49-acre parcel of land located in

Madera County, California (“Madera Site”). The casino

will undoubtedly have a significant impact on the people and the land in that county, with the hope that it

will benefit economically the Indian tribe undertaking

its development. The plaintiffs are residents of Madera

County vehemently opposed to the casino’s construction. To stop the casino from coming to fruition, they

have initiated both state and federal litigation as well

App. 37

as statewide political efforts over the last seven-plus

years, setting, in their own words, “high legal and political hurdles.” This case is one of those efforts to halt

the North Fork Tribe’s casino development. While the

plaintiffs’ many concerns about the impending casino

development are understandable, the law is not on

their side.

[5] Here, six plaintiffs, Stand Up for California!,

Randall Brannon, Madera Ministerial Association,

Susan Stjerne, First Assembly of God – Madera, and

Dennis Sylvester (collectively, “Stand Up”), and the

plaintiff Picayune Rancheria of the Chukchansi Indians (“Picayune Tribe” or “Picayune”), bring this consolidated action against the defendants United States

Department of the Interior (“DOI”), Sally Jewell, in

her official capacity as Secretary of the United States

Department of the Interior (“Secretary”), Bureau of Indian Affairs (“BIA”), and Lawrence Roberts, in his official capacity as Assistant Secretary of Indian Affairs,1

(collectively, “federal defendants”), and the intervenordefendant North Fork Tribe, challenging, collectively,

three separate but related decisions of the Secretary

regarding the Madera Site, under five separate laws,

namely: the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 551, et seq., the Indian Reorganization Act

1

During the pendency of this lawsuit, Sally Jewell succeeded

Kenneth Salazar as DOI’s Secretary and Lawrence Roberts succeeded Kevin Washburn as Assistant Secretary of Indian Affairs.

Consequently, Ms. Jewell is automatically substituted in place of

Mr. Salazar and Mr. Roberts is automatically substituted in place

of Mr. Washburn as named parties to this action. See FED. R. CIV.

P. 25(d).

App. 38

(“IRA”), 25 U.S.C. §§ 461, et seq., the Indian Gaming

Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701, et seq., the

National Environmental Policy Act (“NEPA”), 42

U.S.C. §§ 4321, et seq., and the Clean Air Act (“CAA”),

42 U.S.C. § 7506. See generally Third Amended Compl.

(“TAC”), ECF No. 103; Picayune’s Compl., Case No. 12cv-2071, ECF No. 1.

The first decision, made in September 2011, pursuant to the IGRA, 25 U.S.C. § 2719(b)(1)(A), determined that the North Fork Tribe would be permitted

to conduct gaming on the Madera Site. See generally

BUREAU OF INDIAN AFFAIRS, Record of Decision, Secretarial Determination Pursuant to the IGRA for the

305.49-Acre Madera Site in Madera County, California, for the North Fork Rancheria of Mono Indians

(Sept. 1, 2011) (“IGRA ROD”), Jt. App. at 1443–1537,

ECF Nos. 128-8 to -9.2 The second decision, made in

2

The over 42,000-page administrative record (“AR”) in this

case was filed in four parts. First, the original AR was filed on

April 26, 2013 with the Clerk of the Court on two DVDs. See Lodging AR, ECF No. 51; AR Index, ECF No. 150. Second, on May 5,

2014, the AR was supplemented, and another DVD was filed with

the Clerk of the Court. See Notice Filing Suppl. AR, ECF No. 83;

Suppl. AR Index, ECF No. 151. On or about November 3, 2014,

the AR was supplemented a third time with documents pertaining to the “deemed approval of the North Fork Compact,” and

these supplemental documents were docketed on the Case Management/Electronic Case Files system (“CM/ECF”). See Corrected

Notice Filing Suppl. AR, ECF No. 98; AR Deemed Approval North

Fork Compact Index, ECF No. 98-2; Third AR, ECF Nos. 98-3 to

98-5. Lastly, on November 7, 2014, the Court granted leave to the

defendants to add two additional, missing documents to the AR

and these documents were docketed on CM/ECF. See Minute Order (Nov. 7, 2014) (granting Consent Mot. Leave File Suppl. AR,

App. 39

November 2012 [6] pursuant to the IRA, 25 U.S.C.

§ 465, approved a fee-to-trust application submitted by

the North Fork Tribe, whereby the United States

would acquire the Madera Site to hold it in trust for

the benefit of the North Fork Tribe. See generally BUREAU OF INDIAN AFFAIRS, Record of Decision, Trust Acquisition of the 305.49-acre Madera site in Madera

County, California, for the North Fork Rancheria of

Mono Indians (Nov. 26, 2012) (“IRA ROD”), Jt. App. at

1611-79, ECF Nos. 128-9 to -10. The Court previously

addressed these two agency decisions in denying a motion for a preliminary injunction brought by the Stand

ECF No. 99); Fourth AR, ECF No. 100. In accordance with local

rules, since the record is so voluminous, the parties filed a Joint

Appendix (“Jt. App.”) containing copies of those portions of the AR

cited or otherwise relied upon for the pending motions. See LCvR

7(n); Notice Filing Jt. App., ECF No. 123. The 2,457-page Joint

Appendix is docketed in 72 separate docket entries, see ECF Nos.

124-130 (with attachments), and supplemented with 62 additional pages (“Suppl. Jt. App.”) docketed separately, see ECF Nos.

134, 134-1. Compounding the difficulty for the Court to locate and

refer to relevant documents in the voluminous record, the parties’

papers fail to cite to the Joint Appendix and/or Supplemental

Joint Appendix, but rather refer only to Bates-stamped document

numbers in the four-part, over 42,000-page AR. For ease of reference, throughout this Memorandum Opinion, citations to documents in the AR include the name of the document, the page

numbers of the Joint Appendix or Supplemental Joint Appendix

on which the document appears, and the corresponding docket

numbers. Where a document is part of the AR but not included in

the Joint Appendix, the Bates-stamped number is cited. Accordingly, to facilitate public access to portions of the AR relied upon

for the Court’s reasoning, the parties are hereby ordered, within

30 days of entry of the order, jointly to supplement the appendices

with the documents and/or pages of documents cited in this Memorandum Opinion that were not included in the joint appendices.

App. 40

Up plaintiffs in January 2013. See Stand Up for California! v. U.S. Dep’t of Interior (Stand Up I), 919

F. Supp. 2d 51, 54 (D.D.C. 2013). The third decision,

made in October 2013, after this Court’s denial of the

preliminary injunction, is the Secretary’s non-action

with respect to, and publication in the Federal Register

of, a “Tribal-State Compact” between the North Fork

Tribe and the State of California, which compact is required under the IGRA, 25 U.S.C. § 2710(d)(1)(C), to

conduct class III gaming on Indian lands. See TAC

¶¶ 103–05, 115.

[7] Pending before the Court are four cross-motions for summary judgment filed by all of the parties:

(1) the Stand Up plaintiffs’ motion for summary judgment (“Pls.’ Mot.”), ECF No. 106; (2) the plaintiff Picayune Tribe’s motion for summary judgment, ECF No.

108; (3) the intervenor-defendant North Fork Tribe’s

cross-motion for summary judgment, ECF No. 111; and

(4) the federal defendants’ cross-motion for summary

judgment, ECF Nos. 112, 114. For the reasons detailed

below, the plaintiffs’ motions are denied, and the defendants’ motions are granted in part and denied in

part, but to the extent summary judgment is denied to

the defendants on certain claims, those claims are dismissed.3

3

The parties have requested oral argument on the pending

motions, but given the sufficiency of the parties’ extensive written

submissions, this request is denied. See LCvR 7(f ) (stating allowance of oral hearing is “within the discretion of the court”).

App. 41

I.

BACKGROUND

The factual and procedural background in this

case is laid out in considerable detail in this Court’s

previous Memorandum Opinions denying the Stand

Up plaintiffs’ request for a preliminary injunction,

Stand Up I, 919 F. Supp. 2d at 54–61, and granting in

part and denying in part the Stand Up plaintiffs’ motion to compel supplementation of the administrative

record, Stand Up for California! v. U.S. Dep’t of Interior

(Stand Up II), 71 F. Supp. 3d 109, 112–14 (D.D.C.

2014). Since those rulings, however, several events

have occurred with implications for the pending motions, including the filing of a third operative amended

complaint, rejection of the Tribal-State Compact by

California voters, court decisions in concurrent federal

and state litigation, and the recent issuance of binding

precedent by the D.C. Circuit. Thus, the Court now

draws from its earlier Memorandum Opinions and provides an updated, comprehensive background for consideration of the parties’ arguments.

[8] A. HISTORY AND CURRENT STATUS

OF THE NORTH FORK TRIBE

The North Fork Tribe is a federally-recognized

American Indian tribe, see Indian Entities Recognized

and Eligible to Receive Services From the United

States Bureau of Indian Affairs, 81 Fed. Reg. 26,826,

26,829 (May 4, 2016) (listing “Northfork Rancheria of

Mono Indians of California”), “consist[ing] of the modern descendants of Mono Indians using and occupying

App. 42

lands near and in the San Joaquin Valley,” Letter from

Larry Echo Hawk, Asst. Sec’y of Indian Affairs, to Jerry

Brown, Governor of Cal. (Sept. 1, 2011) at 2, Jt. App. at

1391, 1392, ECF No. 128-7, as well as “the adjacent Sierra Nevada foothills,” IGRA ROD at 56.

Many North Fork Tribe citizens trace their ancestry to an American settler named Joe Kinsman and his

Mono Indian wife, “who settled along the Fresno River

in 1849” at a time when “[a]ll of the settlements were

in the foothills.” IGRA ROD at 55–56 (quotations omitted). According to a contemporaneous Federal government observer, the Mono Indians generally inhabited

“the higher mountains” during that time period and

would “visit occasionally the plains and water-courses

for the purposes of hunting and fishing.” Id. at 56 (quotations omitted).

Accounts from ancestors of the North Fork Tribe

describe the United States military’s efforts in the

1850s to force them and other Indian groups out of

their homes in the Sierra Nevada foothills, which were

rich in resources and could be mined for gold. See

GAYLEN D. LEE, WALKING WHERE WE LIVED: MEMOIRS

OF A MONO INDIAN FAMILY 45–75 (Univ. of Okla. Press

1998) (“Lee Memoir”), Jt. App. at 75, 81–111, ECF No.

124-1. North Fork Indians, along with other Indian

groups who lived in the mountains, scattered and hid

as soldiers burned their settlements, id. at 57–62, until

soldiers ultimately retreated to Camp Barbour, where

they signed a treaty with “ ‘friendly’ Indians,” id. at 62–

63. This treaty, the Camp Barbour Treaty of 1851, purported to establish an Indian reservation in the San

App. 43

Joaquin Valley for a number of named tribes, including

the “mona or wild portion of the tribes . . . which are

still out in the mountains.” [9] Id. at 63 (emphasis in

original); Treaty with the Howechees, Etc., 1851 (Apr.

29, 1851), 4 INDIAN AFFAIRS: LAWS AND TREATIES 1085,

1087 (Charles J. Kappler ed., Gov’t Printing Office

1929) (“Camp Barbour Treaty”), Art. 4, Suppl. Jt. App.

at 55, 58, ECF No. 134-1. The United States ultimately

refused to ratify the Treaty, however, and it “never became legally effective.” IGRA ROD at 57. Instead,

“Congress passed a separate statute which effectively

extinguished Indian title to land throughout the State

of California by 1853, leaving the ancestors of the

[North Fork] Tribe, and all other California Indians,

landless – without legal rights to their homelands and

without formal reservations.” Id.

In 1916, pursuant to appropriations acts authorizing the Secretary to purchase land in California for

Indians, see Act of May 18, 1916, ch. 125, § 3, 39 Stat.

62, AR at NF_AR_0001034, 1042, the DOI purchased

what became the North Fork Rancheria, comprised of

80 acres of land near the town of North Fork, for the

use and benefit of approximately 200 landless Indians

belonging to the North Fork band, Letter from John

T. Terrell, Special Indian Agent, to Comm’r Indian

Affairs (Apr. 4, 1916) (“Terrell Letter”) at 1, AR at

NF_AR_0001029; Lipps-Michaels Survey of Landless

Nonreservation Indians of California 1919–1920 (July

15, 1920) (“Lipps-Michaels Survey”) at 50, Jt. App. at 1607,

ECF No. 128-9; see Stand Up I, 919 F. Supp. 2d at 68.

The land, which was “poorly located[,] . . . absolutely

App. 44

worthless as a place to build homes on” and “lack[ed]

. . . water for [both] domestic purposes and . . . irrigation,” was essentially uninhabitable. Lipps-Michaels

Survey at 50. Nonetheless, as of June 1935, at least six

adult Indians lived on the North Fork Rancheria and

were eligible to participate in a federal, statutorilyrequired election held there by the Secretary, pursuant

to Section 18 of the then-recently enacted IRA. IRA

ROD at 55; Theodore H. Haas, Ten Years of Tribal Government Under I.R.A. (1947) (“Haas Report”) at 15, Jt.

App. at 2140, 2157, ECF No. 129-9. Four of the [10] six

Indians voted to reject the application of the IRA to the

North Fork Rancheria in the election, the repercussions of which are discussed in detail, infra, in Part

III.D.2, 3.a.

In 1958, Congress passed the California Rancheria

Act (“CRA”), which, “in keeping with the then-popular

policy of assimilating Native Americans into American

society, . . . authorized the Secretary to terminate

the federal trust relationship with several California

tribes . . . and to transfer tribal lands from federal

trust ownership to individual fee ownership.” Amador

Cty. v. Salazar, 640 F.3d 373, 375 (D.C.Cir.2011) (citing

Act of Aug. 18, 1958, Pub. L. No. 85-671, 72 Stat. 619).

On February 18, 1966, pursuant to the CRA, the Secretary issued a notice in the Federal Register providing

that “[t]itle to the land on the North Fork . . . Rancheria[ ] has passed from the U.S. Government under the

distribution plan[ ] approved April 29, 1960. . . .” to one

individual Indian, “Mrs. Susan Johnson,” who was, at

the time, 92 years old (born on March 8, 1874). Notice

App. 45

of Termination of Federal Supervision Over Property and Individual Members, 31 Fed. Reg. 2,911 (Feb.

18, 1966) (“Fed. Reg. Termination Notice”), AR at

NF_AR_0001061, 1062, available at Pls.’ Mot., Ex. 2,

ECF No. 106-3.

Approximately seventeen years later, in a stipulated judgment entered in a federal lawsuit, Hardwick

v. United States, No. C-79-1710-SW (N.D.Cal. Aug. 3,

1983), the United States, inter alia, agreed to “restore

[ ] and confirm[ ]” the Indian status of “all those persons who received any of the assets of [seventeen]

rancherias,” including the North Fork Rancheria, “pursuant to the [CRA].” Stip. Entry J. (“Hardwick Stip. J.”)

¶¶ 1–3, Jt. App. at 54, 55–56, ECF No. 124-1. The

United States further agreed to recognize the North

Fork Tribe as an Indian entity and to include the Tribe

“on the Bureau of Indian Affairs Federal Register list

of recognized tribal entities pursuant to 25 CFR, Section 83.6(b),” with entitlement “to any of the benefits

or services provided or performed by the United States

for Indian Tribes, Bands, [11] Communities or groups

because of their status as Indian Tribes, Bands, Communities or groups.” Id. ¶ 4, Jt. App. at 56–57.4 Lastly,

4

Paragraph 4 of the Hardwick Stipulated Judgment provided, in full:

The Secretary of the Interior shall recognize the Indian

Tribes, Bands, Communities or groups of the seventeen

rancherias listed in paragraph 1 [including the North

Fork Rancheria] as Indian entities with the same status as they possessed prior to distribution of the assets

of these Rancherias under the California Rancheria

Act, and said Tribes, Bands, Communities and groups

App. 46

in relevant part, the United States agreed that, within

two years, the recognized Indian “entit[y]” of the North

Fork Rancheria could “arrange to convey to the United

States [certain] community-owned lands . . . to be held

in trust by the United States for the benefit of [the]

Tribe[ ], Band[ ], Communit[y] or group [ ] [of the North

Fork Rancheria] . . . , authority for the acceptance of

said conveyances being vested in the Secretary of the

Interior under section 5 of the Act of June 18, 1934,

‘The Indian Reorganization Act,’ 48 Stat. 985, 25 U.S.C.

§ 465 as amended by section 203 of the [ILCA] . . .

and/or the equitable powers of this court.” Id. ¶ 7, Jt.

App. at 57–58.

A notice was subsequently published in the Federal Register memorializing the Hardwick judgment,

Restoration of Federal Status to 17 California Rancherias, 49 Fed. Reg. 24,084 (June 11, 1984), and, in 1985,

the DOI listed the “Northfork Rancheria of Mono Indians of California” as an “Indian Tribal Entit[y] Recognized and Eligible to Receive Services” from the BIA,

Indian Tribal Entities Recognized and Eligible to Receive Services, 50 Fed. Reg. 6,055, 6,057 (Feb. 13, 1985),

shall be included on the Bureau of Indian Affairs Federal Register list of recognized tribal entities pursuant

to 25 CFR, Section 83.6(b). Said Tribes, Bands, Communities, or groups of Indians shall be relieved from

the application of section 11 of the California Rancheria Act and shall be deemed entitled to any of the

benefits or services provided or performed by the

United States for Indian Tribes, Bands, Communities

or groups because of their status as Indian Tribes,

Bands, Communities or groups.

App. 47

available at Pls.’ Mot., Ex. 3, ECF No. 106-4. The

“Northfork Rancheria of Mono Indians of California” –

i.e., the North Fork Tribe in this case – has been listed

as a recognized tribe in the Federal Register ever since.

[12] The North Fork Tribe formally established a

modern tribal government and adopted a tribal constitution in 1996 and, today, consists of over 1,750 citizens. IGRA ROD at 53; North Fork Rancheria of Mono

Indians Proposed Gaming Project Status Update (May

29, 2007) at 1, Jt. App. at 149, ECF No. 124-1; TAC

¶ 25; North Fork’s Answer TAC ¶ 25, ECF No. 104. According to the DOI’s American Indian Population and

Labor Force Report in 2010, “more than 16 percent of

the Tribe’s potential labor force is unemployed.” IGRA

ROD at 52. As “[t]he Tribe has no sustained revenue

stream that could be used to fund programs and provide assistance to Tribal members,” the Tribe’s membership has a high poverty rate and is highly reliant

on Federal and State governments for social services.

BUREAU OF INDIAN AFFAIRS, Final Envtl. Impact Statement, North Fork Casino, North Fork Rancheria of

Mono Indians Fee-to-Trust & Casino/Hotel Project

(Feb. 2009) (“FEIS”) at 1–10, Jt. App. at 204, 345, ECF

Nos. 124-3, -6. Without the potential casino project, the

Tribe’s only sources of revenue are government and

California Revenue Sharing Trust Fund grants. IGRA

ROD at 53.

The North Fork Rancheria, located “approximately

three miles east of the community of North Fork,” is

now held in trust by the United States for the benefit

of individual members of the North Fork Tribe. IGRA

App. 48

ROD at 9, 53–54. Due to its location “on environmentally sensitive lands within the Sierra National Forest,

. . . near Yosemite National Park,” with “difficult” accessibility by car, the North Fork Rancheria is “currently used [solely] for residential purposes.” Id. at 61;

see id. at 10 (“[M]ost of the Rancheria is undeveloped,

with numerous and varied biological resources present

throughout,” except for “scattered . . . rural residences.”).

While some land within the North Fork Rancheria is

“technically eligible for gaming under the IGRA,” much

of it is not. Id. at 9.

[13] The United States also holds in trust for the

North Fork Tribe a 61.5-acre tract of land “located on

a steep hillside . . . in the small town of North Fork,”

California. Id. at 4, 54. This tract was placed in trust

for the North Fork Tribe by the U.S. Department of

Housing and Urban Development (“HUD”) and the

BIA, specifically for “low income Indian housing, an endangered species conservation reserve, and related

uses.” Id. at 4. The tract contains a community center,

basic infrastructure (i.e., roads, water, sewer), pads for

nine single-family homes, and the North Fork Tribe’s

“current government headquarters.” Id. at 4–5, 54.

B. MADERA SITE

The Madera Site “is located in the eastern plains

of the San Joaquin Valley within 2.5 miles of the

Fresno River, . . . near the Sierra Nevada foothills,”

on unincorporated land in southwest Madera County,

California. IGRA ROD at 1, 55. Historically, the San

App. 49

Joaquin Valley “floor was an area of intertribal use

and occupancy, where neighboring [aboriginal] bands

hunted large game, fished in the waters of the San

Joaquin River, and otherwise shared access to its resources during certain times of the year.” Id. at 56. Today, the Madera Site is “immediately adjacent and

west of State Route (SR) 99, which provides regional

access to the area” and is largely “comprised of vacant

agricultural lands which have never been developed”

and “situated at a distance from residential and other

sensitive areas between the only two cities in the

County, Madera and Chowchilla,” approximately 7.6

miles north of the City of Madera. IGRA ROD at 1, 9,

57, 63. The Site is approximately 36 miles away from

the North Fork Tribe’s HUD tract and government

headquarters, and 38 miles away from the unincorporated community of North Fork and the North Fork

Rancheria. IGRA ROD at 4–5, 54, 83–84. Although citizens of the North Fork Tribe live on the North Fork

Rancheria or near the community of North Fork,

“[s]eventy-three percent of the adult citizens of the

Tribe are located closer to the [Madera] Site than to

the [North Fork] Rancheria,” “a majority (62 percent)

of tribal citizens live within 50 [14] miles of the Site,

and a substantial number of tribal citizens live within

25 miles of the Site.” IGRA ROD at 9–10, 52, 83–84.

C. ACTIONS UNDERLYING ADMINISTRATIVE DECISIONS

In order “to meet its need for economic development, self-sufficiency, and self-governance, and to

App. 50

provide its quickly growing Tribal citizen population

with employment, educational opportunities and critically needed social services,” the North Fork Tribe has

sought to construct and operate a gaming establishment on the Madera Site. IGRA ROD at 1–2. Since

the Madera Site is not on the North Fork Tribe’s reservation, the process to achieve this goal is long and

arduous. It requires, inter alia, in no certain order,

(1) acquisition of the Madera Site in federal trust on

behalf of the North Fork Tribe; (2) a Secretarial twopart determination that a casino on the Madera Site

would be in the best interest of the Tribe and not detrimental to the surrounding community; (3) the Governor of California’s concurrence in the Secretarial twopart determination; (4) compliance with statutory and

regulatory requirements of the NEPA and the CAA;

and (5) either a Tribal-State compact between the

North Fork Tribe and the State of California, approved

by the Secretary, or, in certain circumstances, procedures prescribed by the Secretary that are consistent

with a proposed Tribal-State compact and other laws.

As part of this process, in March 2005, the North

Fork Tribe submitted a fee-to-trust application to the

BIA “request[ing] that the BIA issue a Secretarial Determination and transfer the [Madera Site] into Federal trust for the Tribe to conduct tribal government

gaming,” pursuant to the IRA and the IGRA. Id. at 2,

11. Over four months before this formal request was

submitted, the BIA published a notice in the Federal

Register announcing its intent to prepare an Environmental Impact Statement (“EIS”) pursuant to the

App. 51

NEPA, 42 U.S.C. § 4332(2)(C), which requires the development of such statements as part of certain major

Federal actions, for the North Fork Tribe’s proposed

trust acquisition of the Madera Site. See Notice of

Intent to Prepare [15] an Envtl. Impact Statement for

the North Fork Rancheria’s Proposed Trust Acquisition, 69 Fed. Reg. 62,721 (Oct. 27, 2004), AR at

NF_AR_0001336. This notice provided the opportunity

for one month, until November 26, 2004, for public

comment “on the scope and implementation of this

proposal.” Id. The “scoping” comment period was later

extended for an additional six months, until May 6,

2005. See Notice of Intent to Prepare an Envtl. Impact

Study for North Fork’s Project, 70 Fed. Reg. 17,461

(Apr. 6, 2005), AR at NF_AR_0001337.

In February 2008, the DOI distributed a Draft Environmental Impact Statement (“DEIS”) regarding the

proposed acquisition of the Madera Site “to Federal,

tribal, state, and local agencies and other interested

parties for a 45-day review and comment period.”

IGRA ROD at 3; see also Draft Envtl. Impact Statement for the North Fork Rancheria’s Proposed 305

Acre Trust Acquisition, 73 Fed. Reg. 8,898, 8,899 (Feb.

15, 2008), NF_AR_0001338-39 (providing notice that

“[w]ritten comments on the scope and implementation

of this proposal must arrive by March 31, 2008”). During the public comment period, the BIA received a total

of 331 comment letters, and conducted a public hearing

on March 12, 2008, at which 101 individuals spoke. See

IGRA ROD at 3–4; FEIS, apps. vol. IV, app. Y, Comments at 7–10, AR at NF_AR_0034984, 34990-93

App. 52

(listing commenters at public hearing).5 Following the

public comment period on the DEIS, on August 6, 2010,

the BIA published a notice in the Federal Register announcing its intent to submit a Final Environmental

Impact Statement (“FEIS”) to the EPA. See Final Envtl. Impact Statement for the North Fork Rancheria’s

Proposed 305-Acre Trust Acquisition, 75 Fed. Reg.

47,621 (Aug. 6, 2010), AR at NF_AR_0039003-04. This

notice also provided 30 days [16] within which to comment on the FEIS and stated that the FEIS was publicly available in a number of locations, including

online. See id. at 47,621–22.

On September 1, 2011, after the FEIS had been

published, then-Assistant Secretary of Indian Affairs,

Larry Echo Hawk, issued a Record of Decision (“ROD”)

under the IGRA (“IGRA ROD”), making a “two-part determination” and concluding that “Alternative A,” the

North Fork Tribe’s proposed gaming facility, which involved the development of “an approximately 247,182

square foot casino” and “a 200-room hotel” on the Madera

Site, was the “Preferred Alternative.” IGRA ROD at 1,

24–25, 89.6 Alternative A, the proposed casino, was

5

The plaintiffs and their representatives were responsible

for 40 comments, either written during the comment period or spoken

at the public hearing, including three comments from representatives of the Chukchansi Gold Resort and Casino, which is owned

and operated by the plaintiff Picayune Tribe. See id. at 1–11.

6

Although the IGRA ROD was authored by the Assistant

Secretary for Indian Affairs, the Court will refer to the decision

as that of the “Secretary,” as that term is defined in IGRA regulations: “the Secretary of the Interior or authorized representative.” 25 C.F.R. § 292.2.

App. 53

chosen from among five alternatives because it “will

best meet the purpose and need for the Proposed Action, in promoting the long-term economic self-sufficiency, self-determination and self-government of the

[North Fork] Tribe.” Id. at 24–25; see also id. at 87–89.

In reaching this conclusion, the Secretary further

found that, under 25 C.F.R. Part 292, Alternative A was

“in the best interest of the [North Fork] Tribe and its

citizens,” and “would not result in detrimental impact

on the surrounding community.” Id. at 83, 85. The Secretary’s conclusions in the IGRA ROD were supported

by an analysis of the alternative actions; consideration

of the factors laid out in 25 C.F.R. Part 292, which the

Secretary is required to consider (e.g., economic impacts of development, impacts on the surrounding community, historical connection to the land); and the

mitigation measures that would be taken to lessen any

potential negative impacts on the surrounding community and others outside that community. See id. at 4–

89. Generally, the IGRA ROD stated that the Secretary’s decision was based on, inter alia, “thorough review and consideration of the [North Fork] Tribe’s feeto-trust application and materials submitted there [17]

within; . . . the DEIS; the FEIS; the administrative record; and comments received from the public, Federal,

state, and local governmental agencies; and potentially

affected Indian tribes.” Id. at 1.

A year after the publication of the IGRA ROD, in

August 2012, the North Fork Tribe and Governor of

California Edmund “Jerry” Brown executed a TribalState Compact (“Compact”), witnessed by California’s

App. 54

then-Secretary of State (“California Secretary”), Debra

Bowen. Tribal-State Compact Between the State of

California and the North Fork Rancheria of Mono Indians of California (Aug. 31, 2012) (“Tribal-State Compact”) at 111, Jt. App. at 2224, 2343 ECF No. 130-4, -5.

Governor Brown also concurred in the Secretary’s determination to place the Madera Site in trust for the

North Fork Tribe. See Letter from Jerry Brown to Kenneth Salazar, Sec’y, U.S. Dep’t of the Interior (Aug. 30,

2012) (“Concurrence Letter”) at 1–2, Jt. App. at 1601–

02, ECF No. 128-9.

On November 26, 2012, then-Assistant Secretary

for Indian Affairs, Kevin Washburn, issued a ROD under the IRA (“IRA ROD”), approving the North Fork

Tribe’s fee-to-trust application for the proposed casino,

“Alternative A,” on the Madera Site. See IRA ROD at

63.7 This ROD announced that “the Preferred Alternative to be implemented” is “Alternative A, consisting of

the acquisition of trust title to the 305.49-acre

[Madera] site,” construction of a “casino-resort complex” including “an approximately 247,180 square foot

casino, 200-room hotel, ancillary infrastructure, and

mitigation measures presented in . . . the FEIS.” Id. at

1–2. Similarly to the decision made under the IGRA,

the IRA ROD determined that this Preferred Alternative would “best meet[ ] the purpose and need of the

Tribe and the BIA while preserving the natural

7

The Court will similarly refer to the IRA ROD as that of the

“Secretary,” as that term is defined in IRA regulations: “the Secretary of the Interior or authorized representative.” 25 C.F.R.

§ 151.2(a).

App. 55

resources of the Madera [S]ite” by “promot[ing] the

long-term economic vitality, self-[18]sufficiency, selfdetermination and self-governance of the [North Fork]

Tribe.” Id. at 1, 25–26. Likewise, the IRA ROD analyzed alternative actions; environmental impacts and

public comments; and mitigation measures to be

taken, see id. at 4–52; and summarized the Secretary’s

consideration of the factors outlined in 25 C.F.R. Part

151, including an analysis of the Secretary’s authority

for the acquisition under the IRA, 25 U.S.C. § 465, see

id. at 53–61.

Shortly after the issuance of the IRA ROD, the

Secretary announced the decision to acquire the

Madera Site by publishing a notice in the Federal Register on December 3, 2012. See Land Acquisitions;

North Fork Rancheria of Mono Indians of California,

77 Fed. Reg. 71,611 (Dec. 3, 2012).

D. COMMENCEMENT OF INSTANT LAWSUIT

As discussed in Stand Up I, the plaintiffs in this

consolidated action consist of two distinct groups. The

first group, the Stand Up plaintiffs, consists of various

individual citizens and community organizations located

in and around Madera, California. TAC ¶¶ 5–10.

The other group, the Picayune Tribe, is a federallyrecognized Indian Tribe located in Madera County that

operates a class III gaming facility called the Chukchansi Gold Resort and Casino on its reservation

lands, which are located approximately 30 miles from

App. 56

the Madera Site. Picayune’s Compl. ¶ 5.8 The two

groups of plaintiffs filed suit separately in December

2012 challenging the [19] two separate but related

IGRA and IRA RODs regarding the Madera Site,

discussed supra in Part I.C. See Stand Up I, 919

F. Supp. 2d at 54–55; Compl., ECF No. 1; Picayune’s

Compl. The cases were consolidated on January 9,

2013. See Minute Order (Jan. 9, 2013).9

8

There are differing accounts of exactly how far the Picayune Tribe’s gaming facility is from the Madera Site. See, e.g.,

TAC ¶ 37 (“The Picayune [Tribe] . . . conducts a legal tribal gaming operation on its historical and traditional lands which are approximately 39 miles from the Casino Parcel.”). Here, the Court

cites to the allegations of the Picayune Tribe, as set forth in its

Complaint. In its briefing papers, the Picayune Tribe asserts that

“the Madera Site sits 26.4 miles from the Picayune Rancheria.”

Picayune’s Mem. Supp. Mot. Summ. J. (“Picayune’s Mem.”) at 5,

18, ECF No. 108-1. Notably, in the course of this litigation, the

Picayune Tribe’s gaming facility was apparently ordered closed

by the National Indian Gaming Commission (“NIGC”), on October

14, 2014, for various regulatory violations. See Intervenor North

Fork’s Mem. Supp. Mot. Summ. J. & Opp’n Pls.’ Mots. Summ. J.

(“North Fork’s Mem.”) at 5–6 & n.2, ECF No. 111-1 (citing California v. Picayune Rancheria of Chukchansi Indians, No. 14-CV1593 (E.D. Cal. Oct. 29, 2014)). It appears to have reopened, at

least temporarily, however, as a result of a settlement agreement

under certain conditions prescribed in a permanent injunction order issued by the United States District Court for the Eastern

District of California. See California v. Picayune Rancheria of

Chukchansi Indians, No. 14-CV-1593, 2015 WL 9304835 (E.D.

Cal. Dec. 22, 2015), appealed, No. 16-15096 (9th Cir. Jan. 22,

2016).

9

The defendants do not challenge the standing of the plaintiffs in this action, but the Court nonetheless assured itself of jurisdiction in Stand Up I. See 919 F. Supp. 2d at 56 n. 7.

App. 57

The Stand Up plaintiffs, who raised numerous

claims under the APA, the IRA, the IGRA, and the

NEPA, soon thereafter filed a motion for a preliminary

injunction to enjoin the defendants from transferring

the Madera Site into trust pending resolution of the

action on the merits. Stand Up I, 919 F. Supp. 2d at 54,

66; Pls.’ Mot. Prelim. Inj., ECF No. 26. The Court denied the motion on January 29, 2013, concluding that

the plaintiffs had not demonstrated a likelihood of success on the merits of any of their claims, or a likelihood

of irreparable harm that would occur absent preliminary injunctive relief, and that the balance of equities

and public interest weighed against granting such relief. Stand Up I, 919 F. Supp. 2d at 66, 81, 83–85. Consequently, on February 5, 2013, the Madera Site was

taken into trust for the North Fork Tribe. See Mem. &

Order (Dec. 16, 2013) (“Partial Remand Order”) at 4,

ECF No. 77. The initial administrative record (“AR”) in

this case was lodged on April 26, 2013. See Lodging AR,

ECF No. 51.

E. PARTIAL REMAND AND SUBSEQUENT

STATE AND AGENCY ACTIONS

After the denial of preliminary injunctive relief,

the Stand Up plaintiffs amended their complaint, on

June 27, 2013, inter alia, to add claims challenging the

federal defendants’ compliance with certain portions

of the CAA when “approving and supporting” the

North Fork Tribe’s fee-to-trust application. See First

Amended Compl. (“FAC”) ¶¶ 80–95 (Fourth Claim for

Relief ), ECF No. 56; Partial Remand Order at 1; see

App. 58

also TAC ¶¶ 83–98 (Fourth Claim for [20] Relief ). The

plaintiffs also added allegations that the Governor of

California’s August 2012 concurrence in the Secretary’s two-part IGRA determination “is invalid.” FAC

¶ 65; see id. ¶ 60 (“[I]n issuing his concurrence in the

Secretary’s two-part determination, the Governor of

California engaged in policy-making decisions that

bound the state, constituting a legislative act for which

he lacked authority under California law, thereby rendering the Governor’s concurrence and the Secretary’s

action null and void.”); see also TAC ¶¶ 63, 68 (same).

The plaintiffs made the same allegations in a state

lawsuit against, inter alia, the State of California that

is currently on appeal in California’s Fifth District

Court of Appeal, as discussed infra in Part I.G.

The same day that the plaintiffs amended their

instant complaint, the California Legislature ratified

the Tribal-State Compact in California Assembly Bill

No. 377. See AB-277 Tribal gaming: compact ratification (2013–2014), Bill History, CAL. LEGIS. INFO., http://

leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?

bill_id=201320140AB277 (last visited Mar. 13, 2016).

The bill was subsequently approved by Governor

Brown and filed with California Secretary Bowen on

July 3, 2013. See Assemb. Bill No. 877, Ch. 51 (Cal.

2013) (codified at CAL. GOV’T CODE § 12012.25), Jt. App.

at 2,222, ECF No. 130-4.

By letter dated July 16, 2013, California Secretary

Bowen “forward[ed]” a copy of the Compact and the

state legislation “ratifying” the Compact to Paula Hart,

the Director of the Office of Indian Gaming at the DOI.

App. 59

Letter from Debra Bowen to Paula Hart (July 16, 2013)

(“July 16, 2013 Transmittal Letter”) at 1, Jt. App. at

2,199, ECF No. 130-1. The transmittal letter noted that

the state legislation would not become “effective” until

January 1, 2014, if at all, but that California Secretary

Bowen was statutorily obligated, under California law,

“to forward [21] a copy of a compact upon receipt of the

compact and the statute ratifying it.” Id. at 1–2.10 The

transmittal letter cautioned that, under the California

Constitution, the statute had a “delayed effective date

[to] provide[ ] adequate time” for California citizens to

“to exercise [a state constitutional] right to pursue a

referendum process to approve or reject” the statute or

part of the statute. July 16, 2013 Transmittal Letter at

1; see CAL. CONST., art. II, § 9 (referendum); id., art. IV,

§ 8(c)(1) (effective date of statutes). In this regard, the

transmittal letter advised that, pursuant to the State’s

“constitutional authority,” a referendum measure had

been filed to approve or reject the compact and that,

if “the electorate rejects the statute” ratifying the

10

Indeed, California law provides that “[u]pon receipt of a

statute ratifying a tribal-state compact negotiated and executed

pursuant to subdivision (c), . . . the Secretary of State shall forward a copy of the executed compact and the ratifying statute, if

applicable, to the Secretary of the Interior for his or her review

and approval, in accordance with [25 U.S.C. § 2710(d)(8)].” CAL.

GOV’T CODE § 12012.25(f ). California law further instructs that

compacts, such as the one in this case, are “ratified by a statute

approved by each house of the Legislature, a majority of the members thereof concurring, and signed by the Governor, unless the

statute contains implementing or other provisions requiring a

supermajority vote, in which case the statute shall be approved

in the manner required by the [California] Constitution.” Id.

§ 12012.25(c).

App. 60

compact, “it is of no legal effect.” July 16, 2013 Transmittal Letter at 1–2. Without citation to legal authority, the letter opined that:

It is, of course, a question of federal law

whether this act of forwarding to the Secretary of the Interior a compact with a ratifying

statute that is, as in this case, subject to the

referendum power, constitutes submitting the

compact within the meaning of 25 U.S.C.

§ 2710(d)(8)(C), and whether, prior to the exhaustion of the referendum process, such a

compact has been entered into by the State of

California within the meaning of 25 U.S.C.

§ 2710(d)(8)(A).

Id. at 2.

Under the IGRA, the type of gaming activities that

the North Fork Tribe seeks to conduct, class III gaming

activities, may not be conducted on Indian lands unless, inter alia, “conducted in conformance with a

Tribal-State compact entered into by the Indian tribe

. . . that is in effect.” 25 U.S.C. § 2710(d)(1)(C). A TribalState compact “take[s] effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the [22] Federal Register.”

Id. § 2710(d)(3)(B). When a Tribal-State compact is

submitted to the Secretary for approval, the Secretary

“has three choices[:]” (1) the Secretary “may approve

the compact,” id. § 2710(d)(8)(A); (2) the Secretary

“may disapprove the compact, but only if it violates

IGRA or other federal law or trust obligations, id.

§ 2710(d)(8)(B);” or (3) the Secretary “may choose to

App. 61

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).” Amador Cty., 640 F.3d at 377. Here, in

response to California Secretary Bowen’s “forwarding”

of the Compact, the Secretary took no action.

Meanwhile, in light of the plaintiffs’ added CAA

claims, the federal defendants requested that the

instant action be stayed and partially remanded for

the limited purpose of allowing them to comply with

certain CAA notice requirements. See Fed. Defs.’ Mot.

Stay Litig. & Partial Remand at 1–2, ECF No. 63;

Partial Remand Order at 1, 3. On December 16, 2013,

the Court granted the federal defendants’ motion, remanding the case without vacatur of the administrative action taken to date, to allow the defendants to

undertake the notice process required by CAA regulations. Partial Remand Order at 8. This case was stayed

until May 5, 2014, see Minute Order (Mar. 18, 2014), on

which date a supplemental AR was filed with documents that had been “inadvertently omitted” from the

first AR and “documents, communications, and other

materials relating to the partial remand,” see supra

n.2.

During consideration of the federal defendants’

motion for partial remand and another then-pending

motion by the plaintiffs, see Pls.’ Mot. Compel Production Privilege Index & Suppl. AR, ECF No. 58 (denied

without prejudice in light of the Court’s Partial Remand Order, see Minute Order (Dec. 16, 2013)), in October 2013, the Tribal-State Compact was deemed

App. 62

approved by operation of law, under 25 U.S.C.

§ 2710(d)(8)(C), because the Secretary took no [23] action. Notice of Tribal-State Class III Gaming Compact

taking effect, 78 Fed. Reg. 62,649 (Oct. 22, 2013). The

Secretary was then statutorily obligated to “publish in

the Federal Register notice of any Tribal-State compact that is approved, or considered to have been approved.” 25 U.S.C. § 2710(d)(8)(D). The Secretary

published a notice in the Federal Register, upon which

notice the Compact “took effect.” See 78 Fed. Reg. at

62,649.

Shortly thereafter, the Stand Up plaintiffs again

amended their complaint, adding a new claim challenging, as arbitrary and capricious, the federal defendants’ third decision, in October 2013, to take no

action to disapprove, within the statutorily-allowed period, the Tribal-State Compact between the North Fork

Tribe and the State of California, thereby allowing the

Compact to become effective upon the agency’s publication of the Compact in the Federal Register. See

Second Amended Compl. ¶¶ 98–104 (Fifth Claim for

Relief ), ECF No. 84. Specifically, the plaintiffs allege

that “[t]he Secretary failed to disapprove a compact

that has not been validly entered into by the State of

California” and invalidly published notice of the approval in the Federal Register. Id. ¶ 102; see also TAC

¶¶ 99–105 (Fifth Claim for Relief ). The Stand Up

plaintiffs also moved to compel further supplementation of the AR, which motion the Court partially

granted on October 15, 2014. See Stand Up II, 71

F. Supp. 3d at 114, 124; Pls.’ Mot. Compel Suppl. AR &

App. 63

Compel Production Privilege Index, ECF No. 85. Accordingly, on November 4 and 7, 2014, the federal defendants again, for the third and fourth times,

supplemented the AR. See supra n.2; Corrected Notice

Filing Suppl. AR, ECF No. 98; Certification Suppl. AR,

ECF No. 100.

On November 4, 2014, California voters rejected

the California Legislature’s approval of the Tribal-State

Compact. See Debra Bowen, Statement of Vote, Nov. 4,

2014, General Election, at 15, http://elections.cdn.sos.

ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf (last

[24] visited Mar. 13, 2016); Official Voter Information

Guide, Cal. General Election, Nov. 4, 2014, at 40–45, 74,

http://vigarchive.sos.ca.gov/2014/general/en/pdf/ (last visited Mar. 13, 2016).

Approximately one month later, on December 3,

2014, the Stand Up plaintiffs filed their Third

Amended Complaint, ECF No. 103, which is now the

operative complaint for these plaintiffs, adding another claim for relief under the IRA, the IGRA and the

APA based on the referendum, see id. ¶¶ 106–15 (Sixth

Claim for Relief ). Specifically, the plaintiffs allege that,

due to the referendum, the State and the North Fork

Tribe have not entered into a Tribal-State compact permitting class III gaming and, consequently, the basis

for the Secretary’s first two decisions in the IGRA ROD

and the IRA ROD has been removed. Id. ¶¶ 106–15.11

11

The Picayune Tribe never amended its complaint and,

thus, its original complaint remains operative as to its claims.

App. 64

The parties filed cross-motions for summary judgment, the briefing for which took almost six months

from January until the end of May 2015 to complete.

See Pls.’ Mem. Supp. Mot. Summ. J. (“Pls.’ Mem.”), ECF

No. 106-1 (filed January 9, 2015); Picayune’s Mem. Supp.

Mot. Summ. J. (“Picayune’s Mem.”), ECF No. 108-1;

North Fork’s Mem. Supp. Mot. Summ. J. & Opp’n Pls.’

Mots. Summ. J. (“North Fork’s Mem.”), ECF No. 111-1;

United States’ Mem. Supp. Mot. Summ. J. (“Defs.’

Mem.”), ECF No. 112-1; Pls.’ Reply Supp. Summ. J. &

Opp’n Cross-Mots. Summ. J. (“Pls.’ Reply”), ECF No.

115; Picayune’s Reply Supp. Mot. Summ. J. (“Picayune’s Reply”), ECF No. 116; North Fork’s Reply Supp.

Mot. Summ. J. & Opp’n Pls.’ Mots. Summ. J. (“North

Fork’s Reply”), ECF No. 121; United States’ Reply

Supp. Cross-Mot. Summ. J. (“Defs.’ Reply”), ECF No.

122; Notice Filing Suppl. Jt. App., ECF No. 133 (filed

May 27, 2015).

[25] F. SUPPLEMENTAL BRIEFING, CALIFORNIA LITIGATION AND RELATED FILINGS

Notwithstanding the parties’ arguments in ample

briefing regarding the validity of the Tribal-State Compact, no party raised or addressed the issue of whether

the State of California is a party required to be joined

under Federal Rule of Civil Procedure 19 and, if so, the

effect of California’s absence on the plaintiffs’ claims

and the parties’ positions. See Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1495 (D.C.Cir.1995) (holding that,

where the validity of a tribal-state compact is at issue,

App. 65

the State is an indispensable party to the suit, reasoning that “the State . . . has an interest in the validity of

a compact to which it is a party, and this interest would

be directly affected by the relief ” sought). In light of

binding precedent in this Circuit, see id. at 1495 n. 3

(making clear that, given its import, the Court has a

duty to raise the issue sua sponte), the Court subsequently ordered supplemental briefing to address this

issue, Mem. & Order (Sept. 30, 2015), ECF No. 135,

which briefing took an additional two months, from October to December 2015, to complete, see Pls.’ Suppl. Br.

Whether Cal. Must Joined Under Fed. R. Civ. P. 19

(“Pls.’ Suppl. Brief ”), ECF No. 139 (filed Nov. 4, 2015);

Picayune’s Resp. Court’s Order Regarding Joinder Cal.

(“Picayune’s Suppl. Br.”), ECF No. 140; North Fork’s

Opening Suppl. Br. Rule 19 (“North Fork’s Suppl. Br.”),

ECF No. 137; United States’ Suppl. Br. Regarding Order Sept. 30, 2015 (“Defs.’ Suppl. Br.”), ECF No. 138;

Pls.’ Reply Supp. Suppl. Br. (“Pls.’ Suppl. Reply”), ECF

No. 143; Picayune’s Resp. Br. Regarding Joinder Cal.

(“Picayune’s Suppl. Reply”), ECF No. 144; North Fork’s

Reply Br. Supp. Suppl. Br. Rule 19 (“North Fork’s

Suppl. Reply”), ECF No. 141; United States’ Reply

Suppl. Brs. Regarding Order Sept. 30, 2015 (“Defs.’

Suppl. Reply”), ECF No. 142 (filed Dec. 2, 2015).

Meanwhile, and relatedly, the North Fork Tribe initiated a federal lawsuit in the Eastern District of California against the State of California challenging the

State’s position, “[f ]ollowing [26] the referendum, . . .

that the compact ha[d] not been ratified in accordance

with California law and that the State therefore ha[d]

App. 66

not entered into a compact with the Tribe.” North Fork

Rancheria v. State of California, No. 15-cv-419-AWISAB (“E.D. Cal. Case”), Compl. (“E.D. Cal. Compl.”) ¶ 6,

ECF No. 1, available at Pls.’ Suppl. Br., Ex. 1, ECF No.

139-1; see E.D. Cal. Case, Answer ¶ 6, ECF No. 9

(“aver[ing] that it has been, and is, the State’s position

that that [sic] as a result of the statewide referendum

. . . , the statute ratifying the North Fork Compact

never took effect”); Pls.’ Notice Related Cases, ECF No.

118. The IGRA “imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the

formation of a compact, § 2710(d)(3)(A), and authorizes

a tribe to bring suit in federal court against a State in

order to compel performance of that duty, § 2710(d)(7),”

when, as here, the State has consented to suit. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 47, 116

S.Ct. 1114, 134 L.Ed.2d 252 (1996); see CAL. GOV’T

CODE § 98005 (consenting to federal court jurisdiction

“in any action brought against the state by any federally recognized California Indian tribe asserting any

cause of action arising from the state’s refusal to enter

into negotiations with that tribe for the purpose of entering into a different Tribal-State compact pursuant

to IGRA or to conduct those negotiations in good

faith”). Pursuant to these statutory provisions, the

North Fork Tribe alleged (1) “that the State failed to

negotiate in good faith toward an[ ] enforceable compact – within the meaning of 25 U.S.C. § 2170(d)(7) –

when it ‘refus[ed] to honor the 2012 Compact based on

the . . . referendum’ vote” and (2) “that the State had a

duty to continue negotiation after the referendum yet

refused to enter into negotiations.” E.D. Cal. Case,

App. 67

Order Cross Mots. J. Pleadings (Nov. 13, 2015) (“E.D.

Cal. Order”) at 8, ECF No. 25 (citing E.D. Cal. Compl.

¶¶ 72, 75–79), available at Pls.’ Suppl. Reply, Ex. A,

ECF No. 143-1. Notably, the parties to that suit, including the North Fork Tribe, the State of California, [27]

and the Picayune Tribe, all agreed “that the State and

the Tribe ha[d] not entered into an enforceable compact.” Id. at 12.12

Over the course of the supplemental briefing in

the instant case, the Eastern District of California

court ruled in favor of the North Fork Tribe and, deciding only the second issue, held “that the State failed to

enter into negotiations with North Fork for the purpose of entering into a Tribal-State compact within the

meaning of § 2710,” id. at 9, 23, by “flatly refus[ing] to

negotiate with the tribe regarding the Madera parcel”

after the referendum, id. at 19. Consequently, the court

ordered the parties “to conclude a compact within 60

days . . . [,]” id. at 23, pursuant to an IGRA provision

requiring a court to “order the State and the Indian

Tribe to conclude . . . a compact within a 60-day

12

Notwithstanding this consensus position in the California

litigation, the North Fork Tribe represented to this Court that the

Tribe’s complaint in the Eastern District of California litigation

“makes clear that it is challenging the State’s refusal either to

honor the 2012 Compact or negotiate a new one in the wake of the

referendum, and has not questioned the validity and effectiveness

of the compact.” North Fork’s Reply at 27 n.16 (emphasis added).

Indeed, the Picayune Tribe argues in this case that the North

Fork Tribe, as a result of its litigation stance in the Eastern District of California litigation, “is now judicially estopped from arguing here that the [Tribal-State] [C]ompact was entered into or

is in effect.” Picayune’s Mot. Suppl. Briefing at 2, ECF No. 158.

App. 68

period,” when “the court finds that the State hasfailed

to negotiate in good faith with the Indian tribe to conclude [such] a . . . compact,” 25 U.S.C. § 2710(d)(7)(B)(iii).

The State of California did not appeal the court’s decision and, thus, it is final. See North Fork’s Notice Devs.

Arising From Related Case (“North Fork’s Notice”) ¶ 7,

ECF No. 154; Defs.’ Notice Proposed Compact Submission (“Defs.’ Notice”) at 1 n.1, ECF No. 155; Defs.’ Notice Related Devs. (“Defs.’ Second Notice”) at 1, ECF

No. 163.

When the parties failed to conclude a compact

within the prescribed time, see E.D. Cal. Case, Jt. Resp.

Order Show Cause Why Court Should Not Order Parties Mediation Pursuant 25 U.S.C. § 2710(d)(7)(B)(iv)

(Jan. 13, 2016), ECF No. 26, the court continued down

the path of the IGRA’s “elaborate remedial scheme designed to ensure the formation of a Tribal-State contract,” Seminole Tribe, 517 U.S. at 50, 116 S.Ct. 1114,

and appointed a mediator to select a proposed compact

[28] and facilitate additional procedures, as prescribed

by § 2710(d)(7)(B)(iv) through (vii) of the IGRA, E.D.

Cal. Case, Order Confirming Selection Mediator Pursuant 25 U.S.C. § 2710(d)(7)(B)(iv) & Requiring Parties

Submit Their Last Best Offers Compact (Jan. 26,

2016), ECF No. 30; see also North Fork’s Notice ¶¶ 6–

9. The mediator selected the North Fork Tribe’s proposed compact and, since California “failed to give final

and binding consent to the compact selected,” the mediator “provided notice to the U.S. Department of Interior that no agreement was reached by the parties,”

pursuant to 25 U.S.C. § 2710(d)(7)(B)(vii) (providing

App. 69

that the mediator shall notify the Secretary if the State

does not consent to the proposed compact selected by

the mediator within a 60-day time period). North

Fork’s Notice ¶¶ 10–11; Defs.’ Notice at 1.

The IGRA then required “the Secretary [to] prescribe, in consultation with the Indian Tribe, procedures [(1)] which are consistent with the proposed

compact selected by the mediator . . . , the provisions

of [the IGRA], and the relevant provisions of the

laws of the State, and [(2)] under which class III

gaming may be conducted on the Indian lands over

which the Indian tribe has jurisdiction.” 25 U.S.C.

§ 2710(d)(7)(B)(vii). On July 29, 2016, Lawrence S.

Roberts, Acting Assistant Secretary of Indian Affairs,

notified the North Fork Tribe and the State of California that, after reviewing the mediator’s compact submission, “procedures under which the [North Fork

Tribe] may conduct Class III gaming consistent with

IGRA” had been issued and, thus, “Secretarial Procedures for the conduct of Class III gaming on the Tribe’s

Indian lands are prescribed and in effect.” Defs.’

Second Notice, Ex. A, Letter from Lawrence S. Roberts

to Maryann McGovran, Chairwoman, North Fork

Rancheria of Mono Indians (July 29, 2016) at 1, 3, ECF

No. 163-1; see also id. Secretarial Procedures for the

North Fork Rancheria of Mono Indians (Draft, May 13,

2016) (“Secretarial Procedures”), ECF No. 163-1. The

Secretarial Procedures provide that they constitute

“the full and complete authorization by the Secretary

of [29] the Interior for the Tribe to conduct class III

gaming in its Indian lands pursuant to IGRA,” and

App. 70

“supersede any prior agreements or understandings

with respect to the subject matter hereof.” Secretarial

Procedures at 92, 99 (§§ 14.1, 18.2). The Procedures

further provide that, upon their effective date, “any

and all prior tribal-state Class III gaming compacts entered into between the Tribe and the State shall be null

and void and of no further force and effect.” Id. at 99

(§ 18.2).

Approximately one month before the Secretarial

Procedures were issued, the Picayune Tribe filed, on

July 1, 2016, another federal lawsuit in the Eastern

District of California, against the same federal defendants in this case, asserting seven claims for relief. See

Defs.’ Second Notice at 2; Picayune Rancheria v. U.S.

Dep’t of the Interior, No. 16-cv-950-AWI-EPG (E.D. Cal.

July 1, 2016), Compl. ¶¶ 49–94, ECF No. 1. In that

case, the Picayune Tribe challenges, inter alia, the effectiveness of the Governor’s concurrence in the August 31, 2012 IGRA ROD on three separate grounds,

see id. at ¶¶ 53, 64, 69, the continuing validity and effect of the IGRA ROD, see id. ¶¶ 74, 81, and the Secretary’s ability, in light of the referendum vote, to

“prescribe any procedures under which class III gaming can occur on the Madera [Site],” id. at ¶ 86.

G. CALIFORNIA STATE COURT LITIGATION

In addition to the instant lawsuit and federal lawsuits in the Eastern District of California, the plaintiff Stand Up for California! brought a lawsuit in

App. 71

California Superior Court for the County of Madera

against, inter alia, the State of California, challenging,

as in this case, the Governor’s authority, under California law, to concur in the Secretary’s two-part IGRA determination. Pls.’ Mem. at 28 n.23; see North Fork

Rancheria of Mono Indians v. California, No. 15-cv419-AWI-SAB, 2016 WL 3519245, at *4 (E.D. Cal. June

27, 2016). The North Fork Tribe intervened in that litigation as a defendant, as in this case, and, on February 27, 2014, asserted a cross-complaint against, inter

alia, the State of California, “challenging the validity

of the referendum” and “alleg[ing] that ratification of a

tribal-state compact by the Legislature is [30] not subject to the power of referendum under the California

Constitution, and [that] the referendum impermissibly

conflicts with the federal compact approval process under IGRA.” Pls.’ Suppl. Br. at 5; see id., Ex. 3 (Verified

Cross-Compl. Intervenor-Def. North Fork Rancheria

Declaratory Relief ) ¶ 35 (seeking “[a] judicial determination and declaration as to the validity of the Referendum Petition and its impact on the current status

and future effectiveness of the Compact”), ECF No.

139-3.

The lower California court found against both the

plaintiff Stand Up for California! and the defendantintervenor North Fork Tribe, in favor of the State of

California. With respect to Stand Up for California!’s

complaint, the court held “that the Governor was authorized to concur [in the two-part IGRA determination] under the California Constitution. . . . because

issuing the concurrence was necessary for him to

App. 72

negotiate and conclude a compact with the Tribe.” Pls.’

Mem. at 28 n.23.13 The court also rejected the North

Fork Tribe’s position, finding, instead, that the ratified

Tribal-State Compact was subject to the referendum

and that the referendum was valid and did not conflict

with the IGRA. Pls.’ Suppl. Br. at 5–6; North Fork

Rancheria v. California, 2016 WL 3519245, at *4; see

generally Pls.’ Suppl. Br., Ex. 4 (Ruling Dems. CrossComplainant’s Cross-Compl. (“Cal. Super. Ct. Ruling”)), ECF No. 139-4.14

Both Stand Up for California! and the North Fork

Tribe appealed the lower court’s rulings. Pls.’ Mem. at

28 n.23; Stand Up for California v. California, Case No.

MCV062850 [31] (Cal. Super. Ct. Madera Cty. Mar. 3,

2014), appeal filed, Case No. F069302 (Cal. 5th Dist.

13

In another, unrelated state case challenging the Governor’s concurrence authority under California law, the lower court

similarly upheld the Governor’s authority to concur. That case is

currently on appeal before California’s Third District Court of Appeal. United Auburn Indian Cmty. v. Brown, Case No. 34-2013800001412 (Cal.Super.Ct. Sacramento Cty. Aug. 19, 2013), appeal

filed, C075126 (Cal. 3d Dist. Ct. App. Oct. 17, 2013).

14

In holding “that California’s referendum process does not

conflict either with Cal. Gov. Code § 12012.25(f ) or with IGRA’s

timing requirements,” the court explained that California’s “Secretary of State is not in receipt of a statute ratifying a compact

. . . until that statute takes effect,” indicating that, in this case,

the Secretary of State’s obligation to forward the statute ratifying

the Tribal-State Compact to the Secretary of the Interior did not

apply until at least the day after the referendum vote. Cal. Super.

Ct. Ruling at 12. The court further explained, “[t]he fact that in

this case the Secretary of State forwarded the statute to the Secretary of Interior before it was in effect does not change that result.” Id.

App. 73

Ct. App. Apr. 11, 2014) (“Pls.’ State Case”); Stand Up

for California v. California, Case No. MCV062850 (Cal.

Super. Ct. Madera Cty. June 26, 2014), appeal filed,

Case No. F070327 (Cal. 5th Dist. Ct. App. Oct. 27,

2014). The North Fork Tribe dismissed its appeal on

June 2, 2016. North Fork Rancheria v. California, 2016

WL 3519245, at *4. Stand Up for California!’s appeal,

however, is still currently pending before California’s

Fifth District Court of Appeal. Pls.’ Mem. at 28 n.23;

see also North Fork Rancheria v. California, 2016 WL

3519245, at *4 (explaining that, in the decision “presently pending before California’s Fifth District Court

of Appeal,” “[t]he Madera County Superior Court held

that the Governor’s authority to concur with the Secretary’s determination is implicit in the Governor’s authority to negotiate and conclude Tribal-State

compacts on behalf of the state.”).

H. PARTIES’ POSITIONS ON RECENT

DEVELOPMENTS

Before the issuance of the Secretarial Procedures,

the parties disputed the effect of the related litigation

and corresponding events on the instant suit. While

the North Fork Tribe predicted that the recent developments “may affect the resolution of Stand Up’s fifth

and sixth claims for relief, as both claims assume that

North Fork is seeking to game on the basis of the 2012

Compact, and neither contemplates the possibility of

Secretarial procedures,” North Fork’s Notice ¶ 13, the

federal defendants bluntly posited that “Stand up’s

Fifth and Sixth claims for relief, which concern the

App. 74

deemed approved compact, . . . will be mooted when the

Secretary issues procedures that supplant the deemed

approved compact,” Defs.’ Notice at 2.

The Stand Up plaintiffs disagreed. According to

them, their “Fifth Claim . . . is not moot until the compact terminates under its own terms or the federal defendants affirmatively terminate the compact in some

lawful manner,” and their Sixth Claim would not be

moot because it “does not challenge the validity of the

compact, but rather the validity of the trust [32] acquisition and two-part determination.” Pls.’ Objs. Notice

Devs. Arising From Related Case & Notice Proposed

Compact Submission at 2–3, ECF No. 156. Yet, the

Stand Up plaintiffs nonetheless suggested that “[t]he

Court [could not] resolve plaintiffs’ Sixth Cause of

Action until such time as the Secretary prescribes

procedures and the parties have the opportunity to

brief the effect of those procedures on the challenged

trust decision.” Id. at 3. Accordingly, the Stand Up

plaintiffs asked the Court to “disregard” recent events,

“adjudicate plaintiffs’ claims on the administrative

record[,]” and “[i]n the event the Secretary prescribes

procedures, the Court should order further supplemental briefing on the effect of such procedures.” Id.

at 4.

Seeking yet another reason for additional supplemental briefing in this long-standing litigation, the

Picayune Tribe, joined by the Stand Up plaintiffs, requested a “briefing schedule to address the recent developments[,]. . . . the parallel litigation[,] . . . [and]

the legal consequences here.” Picayune’s Mot. Suppl.

App. 75

Briefing at 1, ECF No. 158; Pls.’ Joinder Picayune’s

Mot. Suppl. Briefing at 1, ECF No. 161. The Picayune

Tribe also suggested the need for another “remand to

the agency,” especially because the newly established

compact “has fundamental and voluminous changes

from the prior compact, including the elimination of all

mitigation to other tribes affected by the compact.” Picayune’s Mot. Suppl. Briefing at 1, 3–4.

On August 16, 2016, upon consideration of the recent developments and “to avoid additional delay in

resolution of the pending motions,” the Court denied

the Picayune Tribe’s motion for supplemental briefing,

but directed the parties to submit a “brief summary . . .

of their position on the effect, if any, on the claims

pending in this case of the related developments.” Minute Order (Aug. 16, 2016). The parties’ positions are

substantially the same. See generally Pls.’ Summ. Positions Pending Cls. (“Pls.’ Summ.”), ECF No. 164; Pl.

Picayune’s Resp. Ct.’s Aug. [33] 16, 2016 Order (“Picayune’s Summ.”), ECF No. 165; Defs.’ Notice Regarding

Order Aug. 16, 2016 (“Defs.’ Summ.”), ECF No. 167;

North Fork’s Resp. Order Concerning Effect Related

Devs. (“North Fork’s Summ.”), ECF No. 166.

The federal defendants assert that the Stand Up

plaintiffs’ Fifth and Sixth Claims for Relief “and their

associated issues are now moot” due to “the issuance of

Secretarial Procedures which rendered the prior Compact challenged by Stand Up ‘null and void.’ ” Defs.’

Summ. at 1, 4. The North Fork Tribe agrees with the

federal defendants that the Stand Up plaintiffs’ Fifth

App. 76

Claim for Relief is moot and, similarly, argues that

“[t]he issuance of Secretarial procedures . . . provides

an additional reason to reject Stand Up’s sixth claim

for relief.” North Fork’s Summ. at 1.

By contrast, the Stand Up plaintiffs maintain that

“the related developments . . . have no effect on any

claims pending in this case, except to the extent that

they demonstrate Plaintiffs’ entitlement to summary

judgment on their challenges to the trust acquisition

and the authorization of gaming at the Madera Site.”

Pls.’ Summ. at 1. They continue to argue that “the Secretarial Procedures do not moot or otherwise invalidate” their Fifth and Sixth Claims for Relief because

“the Fifth Claim is not moot unless the federal defendants concede that in publishing approval of the Compact in the Federal Register the Secretary violated the

APA” and the “Sixth Claim challenges the Secretary’s

2011 and 2012 records of decision to acquire the

Madera [S]ite into trust for gaming, not the validity of

the Compact,” largely reiterating the allegations in

their Third Amended Complaint and corresponding arguments already made in prior briefing. Id. at 2–3; see

generally id. at 3–10. The Picayune Tribe, piggybacking on the Stand Up plaintiffs’ Sixth Claim for Relief,

likewise argues that “the issuance of Secretarial Procedures shows that the IRA and IGRA decisions must

be vacated” because “the decisions [34] relied on a

compact that never took effect.” Picayune’s Summ. at

App. 77

1, 4–5. The parties’ arguments are addressed in more

detail infra in Part III.A and B.15

*

*

*

The pending motions for summary judgment are

ripe for review.

II.

LEGAL STANDARDS

A. MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56,

summary judgment may be granted when the court

finds, based upon the pleadings, depositions, and affidavits and other factual materials in the record, “that

there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a), (c); see Tolan v. Cotton, 134 S. Ct.

1861, 1866 (2014) (per curiam); Anderson v. Liberty

15

With respect to the Picayune Tribe’s recently-filed lawsuit

in the Eastern District of California, the Stand Up plaintiffs “take

the position that [the Picayune Tribe’s] recent suit . . . raises different issues” and, therefore, “does not directly impact any of the

claims before this Court.” Pls.’ Summ. at 3. The Picayune Tribe

agrees that its parallel lawsuit “has no effect on the pending cases

here.” Picayune’s Summ. at 2; see id. at 11 (“Picayune’s additional

lawsuit in the Eastern District of California does not overlap with

any issues presented in this Court and need not be taken into account in any respect here.”). The federal defendants are “still determining” how to respond to that lawsuit and state no position

regarding the effect of that lawsuit in this Court, Defs.’ Summ. at

7, and the North Fork Tribe, similarly, takes no position relating

to that lawsuit, see generally North Fork’s Summ. at 1–13 (nowhere mentioning the parallel lawsuit). Given these positions,

the Court will not address the effect, if any, of that parallel federal

litigation on this lawsuit.

App. 78

Lobby, Inc., 477 U.S. 242, 247 (1986). “A genuine issue

of material fact exists if the evidence, ‘viewed in a light

most favorable to the nonmoving party,’ could support

a reasonable jury’s verdict for the non-moving party.”

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215

(D.C. Cir. 2013) (quoting McCready v. Nicholson, 465

F.3d 1, 7 (D.C. Cir. 2006)).

In APA cases such as this one, involving crossmotions for summary judgment, “the district judge sits

as an appellate tribunal. The ‘entire case’ on review is

a question of law.” Am. Bioscience, Inc. v. Thompson,

269 F.3d 1077, 1083 (D.C. Cir. 2001) (collecting cases).

[35] Accordingly, this Court need not and ought not engage in lengthy fact finding, since “[g]enerally speaking, district courts reviewing agency action under the

APA’s arbitrary and capricious standard do not resolve

factual issues, but operate instead as appellate courts

resolving legal questions.” James Madison Ltd. ex rel.

Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996);

see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d

170, 171 (D.C. Cir. 2013) (noting, in APA case, that”

“determining the facts is generally the agency’s responsibility, not ours”); Sierra Club v. Mainella, 459

F. Supp. 2d 76, 90 (D.D.C. 2006) (“Under the APA . . .

the function of the district court is to determine

whether or not as a matter of law the evidence in the

administrative record permitted the agency to make

the decision it did.” (quotations and citation omitted)).

Judicial review is limited to the administrative record,

since “[i]t is black-letter administrative law that in an

[Administrative Procedure Act] case, a reviewing court

App. 79

should have before it neither more nor less information

than did the agency when it made its decision.” CTS

Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (quotations and citations omitted; alteration in original); see

5 U.S.C. § 706 (“[T]he Court shall review the whole record or those parts of it cited by a party. . . .”); Fla. Power

& Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (noting,

when applying arbitrary and capricious standard under the APA, “ ‘[t]he focal point for judicial review

should be the administrative record already in existence. . . .’ ” (quoting Camp v. Pitts, 411 U.S. 138, 142

(1973))).

B. ADMINISTRATIVE PROCEDURE ACT

Under the APA, a reviewing court must set aside

a challenged agency action that is found to be, inter

alia, “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” 5 U.S.C.

§ 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” id.

§ 706(2)(C); or “without observance of procedure required by law,” id. § 706(2)(D); Otis Elevator Co. v. Sec’y

of Labor, 762 F.3d 116, 120–21 (D.C. Cir. 2014) [36] (citing Fabi Constr. Co. v. Sec’y of Labor, 370 F.3d 29, 33

(D.C. Cir. 2004)). The arbitrary or capricious provision,

under subsection 706(2)(A), “is a catchall, picking up

administrative misconduct not covered by the other

more specific paragraphs” of the APA. Ass’n of Data

Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed.

Reserve Sys. (ADPSO), 745 F.2d 677, 683 (D.C. Cir.

1984) (Scalia, J.).

App. 80

The scope of review under the “arbitrary and capricious standard is ‘highly deferential,’ ” Am. Trucking

Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724

F.3d 243, 245 (D.C. Cir. 2013) (quoting Am. Wildlands

v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008)), and

“narrow,” such that “a court is not to substitute its

judgment for that of the agency,” Judulang v. Holder,

132 S. Ct. 476, 483 (2011) (quotations omitted); Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016);

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland

Sec., 769 F.3d 1127, 1135 (D.C. Cir. 2014); Agape

Church, Inc. v. FCC, 738 F.3d 397, 408 (D.C. Cir. 2013).

This “highly deferential” standard, which “presumes

agency action to be valid,” Defs. of Wildlife v. Jewell,

815 F.3d 1, 9 (D.C. Cir. 2016) (quotations and citation

omitted), “is especially applicable [to] . . . ‘technical determinations on matters to which the agency lays

claim to special expertise,’ ” Rosebud Mining Co. v.

Mine Safety & Health Admin., Nos. 14-1285, 14-1286,

2016 WL 3606369, at *8 (D.C. Cir. July 5, 2016) (quoting Bldg. & Constr. Trades Dep’t, AFL–CIO v. Brock,

838 F.2d 1258, 1266 (D.C. Cir. 1988)). Yet, “courts retain

a role, and an important one, in ensuring that agencies

have engaged in reasoned decisionmaking.” Judulang,

132 S. Ct. at 483–84. Simply put, “the agency must explain why it decided to act as it did,” Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010), and the reason

for the agency’s decision must be “both rational and

consistent with the authority delegated to it by Congress,” Xcel Energy Servs. Inc. v. Fed. Energy Regulatory Comm’n, 815 F.3d 947, 952 (D.C. Cir. 2016).

App. 81

[37] In evaluating agency actions under the “arbitrary and capricious” standard, courts “must consider

whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has

been a clear error of judgment.” Marsh v. Ore. Nat. Res.

Council, 490 U.S. 360, 378 (1989) (quotations omitted)

(citing Citizens to Preserve Overton Park, Inc. v. Volpe

(Overton Park), 401 U.S. 402, 416 (1971), overruled on

other grounds by Califano v. Sanders, 430 U.S. 99, 105

(1977)); Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm’n, 716 F.3d 183, 195 (D.C. Cir. 2013). “An

agency acts arbitrarily or capriciously if it has relied

on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the

problem, or offered an explanation either contrary to

the evidence before the agency or so implausible as to

not reflect either a difference in view or agency expertise.” Defs. of Wildlife v. Jewell, 815 F.3d at 9. When an

agency “ ‘fail[s] to provide a reasoned explanation, or

where the record belies the agency’s conclusion, [the

court] must undo its action.’ ” Cty. of L.A. v. Shalala,

192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting BellSouth

Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999)); see

Select Specialty Hosp.-Bloomington, Inc. v. Burwell,

757 F.3d 308, 312 (D.C. Cir. 2014) (noting that when

“ ‘an agency’s failure to state its reasoning or to adopt

an intelligible decisional standard is . . . glaring . . . we

can declare with confidence that the agency action was

arbitrary and capricious’ ” (quoting Checkosky v. SEC,

23 F.3d 452, 463 (D.C. Cir. 1994))). At the very least,

the agency must have reviewed relevant data and

articulated a satisfactory explanation establishing a

App. 82

“ ‘rational connection between the facts found and the

choice made.’ ” Ark Initiative, 816 F.3d at 127 (quoting

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); Am. Trucking Ass’ns, Inc., 724 F.3d at 249 (same); see also EPA v.

EME Homer City Generation, L.P., 134 S. Ct. 1584,

1602 (2014) (holding that agency “retained discretion

to alter its course [under a regulation] provided [38] it

gave a reasonable explanation for doing so”); Amerijet

Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014)

(“[A] fundamental requirement of administrative law

is that an agency set forth its reasons for decision; an

agency’s failure to do so constitutes arbitrary and capricious agency action.” (quotations and citation omitted)). “[C]onclusory statements will not do; an agency’s

statement must be one of reasoning.” Amerijet Int’l

Inc., 753 F.3d at 1350 (quotations omitted; emphasis in

original).

Moreover, when review of an agency’s action is

“bound up with a record-based factual conclusion,” the

reviewing court must determine whether that conclusion “is supported by substantial evidence.” Dickinson

v. Zurko, 527 U.S. 150, 164 (1999) (quotations omitted);

see also Kappos v. Hyatt, 132 S. Ct. 1690, 1695 (2012)

(affirming review of “factual findings under the APA’s

deferential ‘substantial evidence’ standard”). “Substantial evidence” is “enough evidence to justify, if the

trial were to a jury, a refusal to direct a verdict when

the conclusion sought to be drawn is one of fact for

the jury.” Defs. of Wildlife v. Jewell, 815 F.3d at 9 (quotations and citation omitted). “An agency’s factual

App. 83

findings must be upheld when supported by substantial evidence in the record considered as a whole.” Id.;

see also Kaufman v. Perez, 745 F.3d 521, 527 (D.C. Cir.

2014) (noting that agency factual findings may be “set

aside . . . ‘only if unsupported by substantial evidence

on the record as a whole.’ ” (quoting Chippewa Dialysis

Servs. v. Leavitt, 511 F.3d 172, 176 (D.C. Cir. 2007)));

Dillmon v. Nat’l Transp. Safety Bd., 588 F.3d 1085,

1089 (D.C. Cir. 2009) (noting that agency’s factual findings may be adopted “as conclusive if supported by

substantial evidence . . . even though a plausible alternative interpretation of the evidence would support a

contrary view” (quotations omitted)).

[39] III.

DISCUSSION

In their Third Amended Complaint, the Stand Up

plaintiffs challenge the three administrative decisions

at issue in this case on eight grounds divided into six

separate claims. See generally TAC. Specifically, the

Stand Up plaintiffs challenge: (1) the federal “[d]efendants’ determination that the Secretary is authorized to

acquire land in trust for the [North Fork] Tribe under

[the IRA,] 25 U.S.C. § 465[,]” in violation of the IRA and

the APA, TAC ¶ 60; see id. ¶¶ 56–60 (First Claim for

Relief ); (2) the federal defendants’ determinations, under the IGRA, 25 U.S.C. § 2719(b)(1)(A), “that the casino’s detrimental impacts will be mitigated” and “that

the proposed project will not be detrimental to the surrounding community,” in violation of the IGRA and the

APA, TAC ¶ 68; see id. ¶¶ 61–68 (Second Claim for Relief ); (3) “the Secretary’s decision to take the [Madera

App. 84

Site] into trust for the purpose of conducting class III

gaming based on the [Governor of California’s] invalid

concurrence,” in violation of the IGRA and the APA, id.

¶¶ 63, 68 (part of Second Claim for Relief ); (4) the

DOI’s issuance of the IGRA ROD, IRA ROD and FEIS

allegedly “without obtaining, considering and evaluating sufficient data” and in spite of “serious procedural

defects during the review process,” in violation of the

NEPA and the APA, id. ¶ 70; see id. ¶¶ 69–82 (Third

Claim for Relief ); (5) the federal defendants’ conformity determination, under the CAA, allegedly “utiliz[ing] . . . emissions estimates that were based upon

manipulated and unsupported assumptions” and

“fail[ing] to identify, describe, and adopt a process for

implementation and enforcement of . . . mitigation

measures,” in violation of the CAA and the APA, id.

¶¶ 93–95; see id. ¶¶ 83–98 (Fourth Claim for Relief );

(6) the Secretary’s “fail[ure] to disapprove a [tribalstate] compact that has not been validly entered into

by the State of California” and subsequent publication

of notice of the approval of the compact in the Federal

Register, in violation of the IGRA and the APA, id. [40]

¶¶ 103–05; see id. ¶¶ 99–105 (Fifth Claim for Relief );

(7) the federal defendants’ “decision to keep the

[Madera Site] in trust,” despite the November 4, 2014

referendum vote in which California voters rejected

the Tribal-State Compact, which referendum vote allegedly rendered “the purpose for which the land was

acquired into trust . . . no longer viable” and invalidated “the grounds on which the [IGRA ROD], the

FEIS, and the [CAA] determinations” were based,

in violation of the IRA, the IGRA, and the APA, id.

App. 85

¶¶ 107, 115; see id. ¶¶ 106–15 (Sixth Claim for Relief );

and (8) the federal defendants’ “decision to keep the

[Madera Site] in trust,” despite the fact that, since a

Tribal-State compact “no longer exists,” the Governor

of California’s concurrence in the two-part IGRA determination no longer applies, in violation of the IRA, the

IGRA, and the APA, id. ¶¶ 111, 115 (part of Sixth

Claim for Relief ).

The Picayune Tribe asserts two causes of action,

challenging (1) the federal defendants’ alleged “fail[ure]

to properly consider detrimental impacts on the Picayune Tribe” and “the North Fork Tribe’s lack of historical connection to the Madera Site,” in violation of the

IGRA and the APA, Picayune’s Compl. ¶¶ 50–51, see

id. ¶¶ 49–53 (First Cause of Action); and (2) the federal

defendants’ decision to acquire land under the IRA on

behalf of the North Fork Tribe based on the allegedly

“invalid IGRA Decision,” in violation of the IRA and

the APA, id. ¶ 56; see id. ¶¶ 54–59 (Second Cause of

Action).16

16

The Picayune Tribe also asserted, as part of its Second

Cause of Action, that “[t]he Assistant Secretary violated the APA,

IGRA, and the IRA by relying on a purported concurrence from

the Governor of California that is ultra vires and invalid under

California law.” Id. ¶ 57. During the course of the instant litigation, however, the Picayune Tribe initiated and lost a lawsuit in

California state court against the Governor, and others, regarding

the propriety of the Governor’s concurrence, and the Picayune

Tribe recently filed another federal lawsuit in the Eastern District of California challenging, inter alia, “the effectiveness of the

Governor’s concurrence in the two-part determination because it

lacks legislative ratification.” Picayune’s Summ. at 11; see supra

n.16; Picayune Rancheria of Chuckchansi Indians v. Brown, 229

App. 86

[41] In light of the Secretarial Procedures prescribed by the Secretary under which the North Fork

Tribe may conduct class III gaming on the Madera

Site, the Stand Up plaintiffs’ sixth and seventh challenges, as enumerated above, are effectively moot. The

Stand Up plaintiffs’ third and eighth challenges implicate state action under state law, and thus, raise the

issue of whether the State of California is required, yet

unable, to be joined as a party in this suit, pursuant to

Rule 19 of the Federal Rules of Civil Procedure. The

Court first addresses these claims, before turning to

Cal. App. 4th 1416, 1420–21 (2014) (holding that the Governor of

California is not a “ ‘public agency’ subject to the requirements of

the California Environmental Quality Act”). Since the Picayune

Tribe nowhere in its ample briefing on summary judgment even

mentions its allegation regarding the Governor’s concurrence, the

claim is deemed abandoned in this case. See Hayes v. District of

Columbia, 923 F. Supp. 2d 44, 51 (D.D.C. 2013) (granting summary judgment to defendants where plaintiff, in opposition to

summary judgment, “only affirmatively state[d] that she ha[d]

not abandoned her negligence claim” and, thus, “apparently concede[d] the negligence claim”); Brodie v. Burwell, No. 15-cv-322

(JEB), 2016 WL 3248197, at *14 (D.D.C. June 13, 2016) (granting

summary judgment to defendants where plaintiff “in the 40 pages

of his Opposition, . . . never discusse[d] his due process claims”);

see also Aliotta v. Blair, 614 F.3d 556, 562 (D.C. Cir. 2010)

(“[P]laintiffs cannot raise on appeal claims they allege in their

complaint but abandon at the summary judgment stage.”); Shankar v. ACS–GSI, 258 F. App’x 344, 345 (D.C. Cir. 2007) (per curiam)

(affirming the district court’s grant of summary judgment to defendant where appellant conceded his claims by failing to address

them (citing LCvR 7(b)). Regardless, however, the claim would be

dismissed for the reasons discussed, infra, in Part III.B.2, because

California is an indispensable party. Accordingly, summary judgment is granted to the defendants as to the Picayune Tribe’s allegation regarding the Governor’s concurrence.

App. 87

both groups of plaintiffs’ challenges to the IGRA and

IRA RODs, followed by the Stand Up plaintiffs’ NEPA

and CAA claims.

A. STAND UP PLAINTIFFS’ FIFTH AND

SIXTH CLAIMS FOR RELIEF

The Stand Up plaintiffs challenge the Secretary’s

actions with respect the 2012 Tribal-State Compact,

executed by the North Fork Tribe and Governor

Brown, see supra Part I.C, based on the Compact’s alleged invalidity. Specifically, in their Fifth Claim for

Relief, the plaintiffs claim that the Secretary violated

the APA and the IGRA by “fail[ing] to disapprove” the

Compact upon receiving it from California Secretary

Bowen, and thereafter publishing notice of approval in

the Federal Register, TAC ¶¶ 103–05, because “[t]he

compact between the North Fork Tribe and the State

of California ha[d] not been validly entered into and

[was] not binding on the State of California” pending

the referendum vote in the November 2014 general

election, id. ¶ 102. Similarly, in their Sixth Claim for

Relief, the plaintiffs claim that the Secretary violated

the APA, the IGRA, and the IRA by deciding to keep

the Madera Site in trust for the [42] North Fork Tribe,

id. ¶ 115, even though the “California voters, pursuant

to their right of referendum, rejected the compact,” in

the November 2014 general election, and, consequently, “the State has not entered into a compact with

the North Fork Tribe and the Tribe has no compact under which it can develop its proposed class III gaming

App. 88

facility for which the [Madera Site] was taken into

trust,” id. ¶ 107.

All parties agree that the 2012 Tribal-State Compact is not in effect and will not govern the North Fork

Tribe’s gaming operations at the Madera Site. See Pls.’

Summ. at 4 (“[The] Compact . . . was never legally effective.”); Picayune’s Summ. at 4 (“[A] compact . . . was

never in effect.”); Defs.’ Summ. at 5 (“The challenged

Compact is now ‘null and void’. . . .”); North Fork’s

Summ. at 6 (“Now that Secretarial procedures have

been issues, . . . the 2012 Compact has been superseded. . . .”). As a result, the validity of the Compact is

simply no longer at issue, and the plaintiffs’ claims

that are premised upon the Compact’s alleged invalidity fail to provide a basis upon which relief can be

granted. See Boose v. District of Columbia, 786 F.3d

1054, 1058 (D.C. Cir. 2015) (explaining “the relationship between mootness and the merits”).

B. STAND UP PLAINTIFFS’ CHALLENGES

TO THE GOVERNOR’S CONCURRENCE

As part of their Second Claim for Relief, for violations of the IGRA and the APA, the Stand Up plaintiffs

allege that Governor Brown’s concurrence in the IGRA

ROD “is invalid” because it was a “policy-making decision[ ] that bound the state, constituting a legislative

act for which he lacked authority under California

law.” TAC ¶¶ 63, 68; see also Pls.’ Mem. at 29 (“California law nowhere expressly authorizes the Governor to

issue concurrences.”). Similarly, as part of their Sixth

App. 89

Claim for Relief, for violations of the IRA, the IGRA,

and the APA, the Stand Up plaintiffs allege that “a crucial ground” for the Governor’s “concurrence no longer

exists[,]” since the concurrence “was based on the development of a class III gaming facility at [43] the

[Madera Site] pursuant to a compact between the

State and the Tribe.” TAC ¶ 111. As a result, the plaintiffs allege that “the Secretary’s decision to take the

[Madera Site] into trust for the purpose of conducting

class III gaming,” id. ¶ 68, and “the decision to keep the

[Madera Site] in trust,” are “arbitrary, capricious, an

abuse of discretion, unsupported by substantial evidence,” id. ¶ 115, “not in accordance with law, and, . . .

must be set aside,” id. ¶ 68; see also Pls.’ Mem. at 28

(“The Secretary’s approval of off-reservation gaming at

the Madera [S]ite is invalid under IGRA because the

Governor of California lacked the authority under California state law to concur in the Secretary’s two-part

determination. . . . [and], even if the Governor had authority to concur, the grounds upon which he concurred

are no longer valid because of the referendum rejecting

the compact.”); id. at 19 (“[T]he Governor granted his

concurrence specifically and only for a class III facility

under the compact, which contained an agreement

with the Wiyot Tribe to forego gaming on its land.”);

Pls.’ Reply at 37 (“Plaintiffs argue that the Secretary’s

two-part determination is invalid because the concurrence was void ab initio.”); Pls.’ Summ. at 7 (asserting

that certain Compact provisions “were the express

grounds of the Governor’s concurrence”).

App. 90

The plaintiffs conflate and, in effect, challenge,

three separate actions: (1) the Secretary’s two-part determination approving off-reservation gaming at the

Madera Site, i.e., the IGRA ROD; (2) the Governor’s

concurrence in the IGRA ROD; and (3) the Secretary’s

decision to acquire the Madera Site in trust on behalf

of the North Fork Tribe, i.e., the IRA ROD. The Court

first addresses the plaintiffs’ challenge to the Secretary’s two-part determination, before addressing the

plaintiffs’ challenges to the Governor’s concurrence

and the Secretary’s land acquisition decision.

[44] 1. Secretary’s Two-Part Determination (IGRA ROD)

As an initial matter, the North Fork Tribe appropriately points out that, with respect to the IGRA ROD,

the plaintiffs’ “argument makes no sense” because “the

Secretary’s [two-part] determination is not dependent

on the Governor’s concurrence, and necessarily comes

before the Governor even has a chance to concur.”

North Fork’s Mem. at 59–60 (emphasis in original); see

25 U.S.C. § 2719(b)(1)(A) (permitting gaming on lands

acquired in trust by the Secretary if the Secretary

makes a two-part determination and the Governor

concurs in that determination); 25 C.F.R. § 292.13(c)–

(d) (same); id. § 292.22 (providing that “[i]f the Secretary makes a favorable Secretarial Determination, the

Secretary will send to the Governor of the State,” inter

alia, [a] request for the Governor’s concurrence in the

Secretarial Determination”). As such, the IGRA ROD

in this case was issued in September 2011, and the

App. 91

Governor did not concur in that decision until almost

a year later, in August 2012. See Concurrence Letter at

1–2.

The plaintiffs respond that “even though th

Secretary makes the two-part determination prior to

requesting the concurrence, the Secretary has no authority to issue a final decision or give legal effect to

the two-part determination unless and until the governor concurs.” Pls.’ Reply at 39; see also id. at 38–39 (arguing that the “IGRA requires that the state approvals

be in place before the Secretary can take any action

under federal law” because “Congress conditioned . . .

the [Secretary’s] two-part determination on state approval”); id. at 39 (“Contrary to the [North Fork]

Tribe’s assertion, the two-part determination is totally

dependent upon the concurrence.”); Pls.’ Summ. at 7

(maintaining that “the Secretary has no authority to

issue a two-part determination” without the Governor’s concurrence). The plaintiffs’ reading of the law is

incorrect.

The Secretary’s two-part determination is not contingent upon the Governor’s concurrence, but gaming

on land acquired in trust by the Secretary after October 17, 1988, is [45] contingent upon the Governor’s

concurrence. 25 U.S.C. § 2719(a), (b)(1)(A); see Confederated Tribes of Siletz Indians v. United States, 110

F.3d 688, 696 (9th Cir. 1997) (“[T]he effect of the provision is that the Governor must agree that gaming

should occur on the newly acquired trust land before

gaming can in fact take place.”). Even the plaintiffs concede that, when making the two-part determination,

App. 92

“the Secretary was not bound at the time to inquire

[in]to the legality of the [Governor’s] concurrence in

authorizing gaming at the Madera [S]ite.” Pls.’ Mem.

at 28.

Thus, to the extent that the “[p]laintiffs argue that

the Secretary’s two-part determination is invalid because the [Governor’s] concurrence was void ab initio,”

and challenge the Secretary’s approval of off-reservation

gaming at the Madera Site, i.e., the IGRA ROD, on

those grounds, the defendants are entitled to summary

judgment on the plaintiffs’ claim. Pls.’ Reply at 37. The

validity of a Governor’s concurrence simply does not

affect the validity of a Secretarial two-part determination: each is a separate requirement for gaming to take

place on newly-acquired, non-reservation lands.17 As a

17

The plaintiffs rely on the Seventh Circuit’s interpretation

of IGRA § 2719(b)(1)(A) in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650, 656 (7th

Cir. 2004), in which the court found that “[u]nless and until the

appropriate governor issues a concurrence, the Secretary of the

Interior has no authority under § 2719(b)(1)(A) to take land into

trust for the benefit of an Indian tribe for the purpose of the operation of a gaming establishment.” Id.; see Pls.’ Reply at 39–40.

That statutory interpretation, not binding on this Court, appears

to conflate the Secretary’s authority, under the IRA, 25 U.S.C.

§ 465, to acquire land in trust on behalf of an Indian tribe, with

the Secretary’s authority, under the IGRA, 25 U.S.C. § 2719(c), to

sanction gaming on lands acquired after October 17, 1988. See 25

U.S.C. § 2719(c) (“Nothing in this section shall affect or diminish

the authority and responsibility of the Secretary to take land into

trust.”). The Governor’s concurrence does not affect the Secretary’s two-part determination under IGRA § 2719(b)(1)(A) but, rather, the Secretary’s determination regarding whether to acquire

land on behalf of a tribe under IRA § 465 and the applicable DOI

regulations governing land acquisitions, 25 C.F.R. §§ 151.1–15.

App. 93

result, contrary to the plaintiffs’ assertion, even “if the

concurrence . . . is determined to have been invalid, the

[two-part] determination” need not “be rescinded.” Id.

at 41.

2. California Governor’s Concurrence

With respect to their challenge to the validity of

the Governor’s concurrence in the IGRA ROD, the

Stand Up plaintiffs acknowledge that (1) “the Governor’s authority to concur is an [46] issue of California

state law,” Pls.’ Mem. at 28 n.24; Pls.’ Reply at 38; (2)

“[t]he issue of whether the Governor’s concurrence was

authorized under California law is currently before

two different California courts of appeal,” Pls.’ Mem. at

28 n.23 (citing Pls.’ State Case, and United Auburn Indian Cmty., supra, n.13); see supra Part I.G, and (3)

“the California Court of Appeal is the proper court to

address plaintiffs’ challenge to the validity of the concurrence under state law,” Pls.’ Reply at 37–38. The

plaintiffs also concede that in both cases pending in the

California state court system, “the lower courts found

that the Governor was authorized to concur[,] under

the California Constitution,” with the Secretary’s twopart determination under the IGRA. Pls.’ Mem. at 28

n.23.

Set against these concessions, the plaintiffs nonetheless contend that “this [C]ourt’s resolution of this

state law issue is necessary for the relief plaintiffs seek

under the APA,” Pls.’ Mem. at 28 n.24, and that “this

[C]ourt may address issues of state law necessary” for

App. 94

the plaintiffs’ “claim for relief under federal law,” Pls.’

Reply at 38. Thus, despite the plaintiffs’ pending challenges to the Governor’s concurrence in California

state court, which they admit is the proper forum and

which they lost at the lower-court level, the plaintiffs

“ask[ ] this Court to disregard that result and delve

into the complexities of state law.” Defs.’ Reply at 18.

According to the plaintiffs, they “must seek ultimate

relief in federal court because the Secretary has already taken the land into trust based upon the Governor’s invalid concurrence, and only a federal court may

order the Secretary to take the land out of trust.” Pls.’

Reply at 38.

For their part, the federal defendants contend that

“[t]he Governor of California’s concurrence with the

Secretary’s two-part determination is valid as a matter

of federal law” and that there is no need to “delve into

state law” because California permits class II and III

gaming. Defs.’ Mem. at 24.

[47] Contrary to the federal defendants’ position,

the Court agrees with the plaintiffs that a Governor’s

authority to concur in an IGRA two-part determination is an issue of state law, but disagrees with the

plaintiffs that this Court may address the validity of

the California Governor’s concurrence under California law. As another court explained,

When the Governor exercises authority under

IGRA, the Governor is exercising state authority. . . . The concurrence (or lack thereof )

is given effect under federal law, but the

authority to act is provided by state law. . . .

App. 95

[W]hen the Governor responds to the Secretary’s request for a concurrence, the Governor

acts under state law, as a state executive, pursuant to state interests.

Confederated Tribes of Siletz Indians, 110 F.3d at 697–

98. Thus, the plaintiffs are correct that, “if the Governor lacks authority under state law to concur, the

concurrence is invalid.” Pls.’ Reply at 40. Still, the federal defendants aptly point out that “[t]o the extent

that Stand Up seeks to have this Court declare the

Governor’s concurrence invalid, they have neglected to

join the party that is purported to have acted unlawfully—the Governor of California.” Defs.’ Mem. at 26.

Moreover, the State of California is missing from this

lawsuit, and any challenge to the validity of the Governor’s concurrence may not proceed in the State’s absence.

Federal Rule of Civil Procedure 19 prescribes a

three-part test for determining whether litigation may

proceed in the absence of a particular party “who is

subject to service of process and whose joinder will not

deprive the court of subject-matter jurisdiction.” FED.

R. CIV. P. (a)(1); see Kickapoo Tribe, 43 F.3d at 1494.

First, the Court must determine if the absent party is

required (or, necessary) for a just adjudication, pursuant to Rule 19(a)(1), which “states the principles that

determine when persons or entities must be joined in

a suit,” Republic of the Philippines v. Pimentel, 553 U.S.

851, 862 (2008), including whether “in that person’s absence, the court cannot accord complete relief among

existing parties,” or whether proceeding would either

App. 96

(i) impair the absent person’s ability to protect an interest relating to the subject of the [48] litigation, or

(ii) leave an existing party subject to a substantial risk

of incurring double, multiple or otherwise inconsistent

obligations because of the absent person’s interest in

the action, FED. R. CIV. P. 19(a)(1). Second, the Court

must determine whether the person’s joinder is feasible. FED. R. CIV. P. 19(b); Kickapoo Tribe, 43 F.3d at

1494. Finally, if the absent person required as a party

cannot be joined, “the court must determine whether,

in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” FED. R. CIV. P. 19(b); see Pimentel, 553 U.S. at

862.

Rule 19(b) outlines a nonexclusive set of factors to

be considered in making this last determination, including (1) the extent to which judgment rendered in

the person’s absence might be prejudicial to that person or existing parties; (2) the extent to which any prejudice could be lessened or avoided by protective

provisions in the judgment, shaping of relief, or other

measures; (3) “whether a judgment rendered in the

person’s absence would be adequate;” and (4) “whether

the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.” FED. R. CIV. P.

19(b)(1)–(4); Pimentel, 553 U.S. at 862. If an analysis of

these factors counsels that the action, or certain

claims, should not proceed without the absent party,

the absent party is considered to be “indispensable”

and the case, or claims, must be dismissed. See Bassett

v. Mashantucket Pequot Tribe, 204 F.3d 343, 360 (2d

App. 97

Cir. 2000) (applying a claim-specific Rule 19 analysis).18

In sum, “whether a party is indispensable for a

just adjudication requires a determination regarding

whether the absent party is necessary to the litigation;

if so, whether the absent party can be joined in the litigation; and if joinder is infeasible, whether the lawsuit

can nevertheless [49] proceed ‘in equity and good conscience.’ ” Kickapoo Tribe, 43 F.3d at 1494 (quoting FED.

R. CIV. P. 19(b)). The rule is “based on equitable considerations” and “the determination whether to proceed

will turn upon factors that are case specific,. . . . consistent with the fact that the determination of who

may, or must, be parties to a suit has consequences for

the persons and entities affected by the judgment; for

the judicial system and its interest in the integrity of

its processes and the respect accorded to its decrees;

and for society and its concern for the fair and prompt

resolution of disputes.” Pimentel, 553 U.S. at 863. Actions may “proceed even when some persons who otherwise should be parties to the action cannot be

joined,” but “the decision whether to proceed without a

required person. . . . ‘must be based on factors varying

with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing

18

Rule 19 used to contain the term “indispensable,” but was

amended, for stylistic purposes, to remove the term “as redundant” because it “express[ed] a conclusion reached by applying the

tests” of the Rule. FED. R. CIV. P. 19 advisory committee’s note to

2007 amendment.

App. 98

interests.’ ” Id. (quoting Provident Tradesmens Bank &

Trust Co. v. Patterson, 390 U.S. 102, 119 (1968)). Indeed,

“review otherwise available under the Administrative

Procedure Act may be unavailable due to the impossibility of joining an indispensable party,” particularly

where a party enjoys sovereign immunity. Wichita &

Affiliated Tribes v. Hodel, 788 F.2d 765, 777, 778 n.14

(D.C. Cir. 1986).

“[T]he issue of joinder can be complex[,]” Pimentel,

553 U.S. at 863, and though no party in the instant case

raised the issue of whether the State of California is

an indispensable party under Rule 19, courts have an

“independent duty to raise a Rule 19(a) issue sua

sponte,” Cook v. FDA, 733 F.3d 1, 6, 11 (D.C. Cir. 2013)

(quotations and citation omitted); Kickapoo Tribe, 43

F.3d at 1495 n.3; see Pimentel, 553 U.S. at 861 (“A court

with proper jurisdiction may . . . consider sua sponte

the absence of a required person and dismiss for failure to join.”); see [50] also FED. R. CIV. P. 19(a)(2) (“If a

person has not been joined as required, the court must

order that the person be made a party.”).19

19

As discussed, supra, Part I.F, the Court ordered the parties

to brief the issue of “[w]hether the State of California is a party

required to be joined under Federal Rule of Civil Procedure 19

and, if so, the effect on the parties’ claims.” Mem. & Order (Sept.

30, 2015). No party’s supplemental briefing addressed the effect

of Rule 19 on the Stand Up plaintiffs’ claims regarding the Governor’s concurrence and, instead, focused only on the claims regarding the validity of the Tribal-State Compact. Rule 19 applies

equally to the claims regarding the Governor’s concurrence, however.

App. 99

Here, first, California unquestionably has an interest in its Governor’s authority, under its own law, to

comply with federal law, as well as in the continuing

validity, in light of the withdrawal of the 2012 TribalState Compact and the newly-prescribed Secretarial

Procedures, of its Governor’s concurrence, pursuant to

which gaming will be permitted on the Madera Site.

California’s interests would be directly affected by the

relief sought by the plaintiffs, who ask this Court to

make determinations about the propriety and continuing viability of Governor action significantly affecting

the State’s statutory obligations, relationship with its

citizens and federally-recognized Indian tribes, and fiscal interests with respect to regulating Indian gaming

within its borders under the IGRA. Accord Pls.’ Mem.

at 33 (arguing that the Governor’s concurrence “effectively locked the Legislature out from weighing in on

the decision” and “authorized the creation [of ] new

Indian land for gaming purposes without any legislative input”); Pls.’ Summ. at 7–8 (asserting that the

recently-prescribed Secretarial Procedures “eliminate

all rights of the State to control the impacts and spread

of off-reservation [gaming] under the Governor’s concurrence provision” and “belittle the California electorate’s unequivocal rejection of off-reservation gaming

in California”). Thus, California is undoubtedly a necessary party to this lawsuit, to the extent that the

plaintiffs challenge the Governor’s concurrence. See

Kickapoo Tribe, 43 F.3d at 1495.

[51] Second, California cannot be joined in the lawsuit. As a state sovereign, it is immune from suit under

App. 100

the Eleventh Amendment of the U.S. Constitution, absent consent or waiver, see Seminole Tribe, 517 U.S. at

54–55; Kickapoo Tribe, 43 F.3d at 1495–96; Pls.’ Suppl.

Br. at 16 (conceding that “joinder is likely infeasible because of the State’s sovereign immunity”), and “California has not waived its sovereign immunity with

respect to the present litigation,” North Fork’s Suppl.

Br. at 8.20

Lastly, the plaintiffs’ claims challenging the Governor’s concurrence cannot “in equity and good conscience” proceed. Pimentel, 553 U.S. at 862. Indeed,

immunity is such a compelling interest that the Rule

19 inquiry is “more circumscribed” with respect to assessing whether a lawsuit can proceed in the absence

of a necessary party that is also immune from suit,

such that, where the party would be unavoidably prejudiced by a judgment rendered in its absence, grounds

exist to dismiss the case “without consideration of any

additional factors.” Kickapoo Tribe, 43 F.3d at 1496–98;

see id. at 1497 n.9 (“The inquiry as to prejudice under

Rule 19(b) is the same as the inquiry under Rule

19(a)(2)(i) regarding whether continuing the action

will impair the absent party’s ability to protect its interest.”). Such are the circumstances here. Since California would be unavoidably prejudiced by a judgment

rendered in its absence relating to the Governor’s

concurrence, these claims are appropriately dismissed

20

As the North Fork Tribe notes, California has waived its

sovereign immunity to only certain suits brought under the IGRA

“by any federally recognized California Indian tribe.” CAL. GOV.

CODE § 98005; North Fork’s Suppl. Br. at 8.

App. 101

“without consideration of any additional factors.” Id. at

1498; see also Wichita & Affiliated Tribes, 788 F.2d at

777 (“The dismissal of this suit is mandated by the policy of . . . immunity.”).

Despite the allegations in their Third Amended

Complaint, inter alia, that “the Governor of California

engaged in policy-making decisions that bound the

state, constituting a legislative [52] act for which he

lacked authority under California law,” TAC ¶ 63, the

plaintiffs deny that they are “directly challeng[ing] the

Governor’s action as unlawful.” Pls.’ Reply at 38 n.27.

Thus, in their view, “[t]here is no cognizable reason

why plaintiffs were required to join the Governor under Rule 19.” Id. As support, they reason that the Governor “has no legal interest in the challenge to the

Secretary’s approval of the compact,” id. (citing Pyramid Lake Paiute Tribe v. Burwell, 70 F. Supp. 3d 534

(D.D.C. 2014)), and “even if he did have such an interest, he is not necessary and indispensable because the

Secretary can adequately represent that interest

here,” id. (citing Rama

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