THE CHEROKEE NATION et al., v. UNITED STATES DEPARTMENT OF THE INTERIOR et al.
Civil Action No. 20-2167 (TJK)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MEMORANDUM OPINION AND ORDER
Plaintiffs are four Native American tribes who each operate casinos in Oklahoma
I. Statutory Background
A. Indian Gaming Regulatory Act
In 1987, the Supreme Court held that states “lacked regulatory authority over gaming on Indian lands.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 794 (2014) (citing California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22 (1987)). In response the next year, Congress enacted the Indian Gaming Regulatory Act (“IGRA“),
Generally, IGRA authorizes tribal gaming only on “Indian lands,” defined as lands within the limits of an “Indian reservation” as well as lands held in trust by the United States “for the benefit of any Indian tribe.”
after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary‘s determination.
IGRA also divides gaming into three classes. Amador Cnty., 640 F.3d at 376. “Class I gaming” consists of “social games” played for nominal prizes and “traditional forms of Indian gaming” occurring in connection with tribal ceremonies or celebrations. See
“Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribes,” meaning that it is not regulated by IGRA and cannot be regulated by a state. See
IGRA regulates the tribal-gaming compacting process in several ways pertinent here. For one, IGRA specifies the subjects that may be negotiated between the tribe and the state in the compacting process. See
Once the tribe and the state have negotiated a compact, it then must be “legally entered into by both parties.” See
After a tribe and a state have “entered into” a tribal-gaming compact, they must submit the compact to the Secretary for review. See
B. Relevant Oklahoma Law
Oklahoma regulates the type of casino-style games that can be operated in Oklahoma, permitting some but prohibiting others. See, e.g.,
II. Factual Background
Plaintiffs Cherokee Nation, Chickasaw Nation, Choctaw Nation, and Citizen Potawatomi Nation are federally recognized “Indian Tribes” that conduct class III gaming within Oklahoma under model tribal gaming compacts entered into with Oklahoma under IGRA. See ECF No. 104 ¶¶ 5, 8-11, 52, 56, 60, 67-70; see also Cherokee Nation v. Stitt, 475 F. Supp. 3d 1277, 1279, 1281, 1283 (W.D. Okla. 2020).
Defendant Mark Woommavovah is Chairman of the Business Committee of the Comanche Nation, a federally recognized “Indian Tribe.” ECF No. 104 ¶¶ 1 n.1, 16. Defendant John R. Shotton is Chairman of the Tribal Council of the Otoe-Missouria Tribe of Indians, a federally recognized
Oklahoma‘s model tribal gaming compact contained a term specifying that it expired automatically on January 1, 2020, though that term also specified that any such compact would “automatically renew” for successive fifteen-year terms under certain conditions. See
Meanwhile, shortly after the Comanche Nation‘s and the Otoe-Missouria Tribe‘s new compacts were announced, the President Pro Tempore of the Oklahoma Senate and the Speaker of the Oklahoma House sent the Governor a letter expressing their view that the agreements had not been legally entered into under state law. See ECF No. 104 ¶ 80. Even so, the Comanche Nation and the Otoe-Missouria Tribe submitted these compacts to the Secretary for review under IGRA.
The Secretary did not affirmatively act on the Comanche Nation and Otoe-Missouria compacts within the forty-five-day review period. ECF No. 104 ¶ 92. Thus, the Secretary no-action approved them, and notice of the same was published in the Federal Register soon after that. See
Less than one month later, the Oklahoma Supreme Court issued a decision in the original-jurisdiction action holding that they were “invalid” under state law. Treat v. Stitt, 473 P.3d 43, 44-45 (Okla. 2020). That said, the Comanche Nation and Otoe-Missouri Tribe, as “sovereign nations,” had “not submitted to the jurisdiction” of the court and were not parties to that case. Id. at 44. And following it, they “have refused to recognize” it and are continuing to conduct class III gaming at five locations each under their new compacts. ECF No. 104 ¶¶ 98, 231.m, 231.q. Also, under its new compact, the Comanche Nation has opened a new class III gaming location.
Separately, the United Keetoowah Band and the Kialegee Tribal Town had been negotiating with the Governor of Oklahoma for non-model tribal gaming compacts, and they executed those compacts with the Governor in July 2020. See ECF No. 104 ¶¶ 101, 122. They then submitted their compacts to the Secretary for review.
The Secretary did not affirmatively act on the United Keetoowah Band and Kialegee Tribal Town compacts within the forty-five-day review period. ECF No. 104 ¶ 105. Thus, the Secretary no-action approved these compacts, and notice of the same was published in the Federal Register soon after that. See
Later, the Oklahoma Supreme Court issued a decision in the original-jurisdiction action filed about these compacts holding that they were “invalid” under state law. Treat v. Stitt, 481 P.3d 240, 241, 243-44 (Okla. 2021). Even so, the United Keetoowah Band and Kialegee Tribal Town, as “sovereign nations,” had not “submitted to the jurisdiction” of the court in that case and were not parties to it. Id. at 241. And following it, these two tribes have also “refuse[d] to recognize” it and “continue[] to exercise authority and jurisdiction” under
III. Procedural Background
Plaintiffs sued here in August 2020. ECF No. 1. Without opposition, they sought leave to file an amended complaint soon after that, which the Court granted. See ECF No. 26; Minute Order of September 14, 2020. The defendants each responded to that motion, some by answer and some by motion to dismiss. See ECF No. 40; ECF No. 53; ECF No. 54; ECF No. 55; ECF No. 56. After extensive briefing on those and related motions, Plaintiffs again sought leave to file another amended complaint. See ECF No. 96. Over the defendants’ oppositions, the Court granted that motion. See ECF No. 97; ECF No. 99; ECF No. 100; ECF No. 101; ECF No. 102; Minute Order of September 22, 2021.
In their operative complaint, Plaintiffs sue three sets of defendants: (1) the Department of the Interior, along with the Secretary and the Assistant Secretary of the Interior in their official capacities (“Federal Defendants“); (2) the Governor of Oklahoma; and (3) Defendant Tribal Leaders. See ECF No. 104 ¶¶ 12-19. Plaintiffs allege that the new Comanche Nation, Otoe-Missouria Tribe, United Keetoowah Band, and Kialegee Tribal Town compacts are each illegal and invalid for several reasons. See generally ECF No. 104. Based on those reasons, they assert eight counts. The first seven are brought under IGRA through the Administrative Procedure Act (“APA“) against Federal Defendants. See ECF No. 104 ¶¶ 232-65. The eighth count is a claim for declaratory relief under IGRA against Defendant Tribal Leaders. See
More specifically, in count one Plaintiffs allege that the Secretary‘s “consideration” of each compact violated IGRA under
The Governor of Oklahoma as well as Chief Joe Bunch and Mekko Brian Givens answered the operative complaint. See ECF No. 108; ECF No. 110. Chairman Shotton answered and counterclaimed for a declaration that the Otoe-Missouria Tribe‘s new compact is valid under IGRA. See ECF No. 109. Federal Defendants move to dismiss the first seven counts both for lack of subject matter jurisdiction for want of standing under
IV. Legal Standards
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“When confronted with . . . a motion to dismiss under both“Under
A “facial challenge asks whether the complaint alleges facts sufficient to establish the court‘s jurisdiction.” Tanner-Brown v. Haaland, No. 21-cv-565 (RC), 2022 WL 2643556, at *4 (D.D.C. July 8, 2022). In a facial challenge, the Court
A “factual challenge,” as the term suggests, disputes the factual bases on which the plaintiff‘s jurisdictional allegations rely. See Kursar, 581 F. Supp. 2d at 14. Ordinarily, in a factual challenge, “the Court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant.” Hamilton, 502 F. Supp. 3d at 272 (internal quotation marks omitted). Instead, the Court “must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary” to rule on the motion. Id. (internal quotation marks omitted).
But in a standing challenge at the pleading stage in this Circuit, “the plaintiff is protected from an evidentiary attack on his asserted theory [of injury] by the defendant.” Haase, 835 F.2d at 907. A defendant wishing to present such an attack can file “a motion for summary judgment for want of standing.” Id. “Alternatively, the court can initiate this factual inquiry at the motion to dismiss stage” on its own, though if it does so it typically must permit jurisdictional discovery and then conduct evidentiary proceedings as needed. See id. But under Haase, a court commits error at the pleading stage if it relies on unsolicited facts provided by a defendant in resolving a motion to dismiss for lack of standing. See, e.g., Settles v. U.S. Parole Comm‘n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); see also Haase, 835 F.2d at 908 (“In considering standing under
B. Motion to Dismiss for Failure to State a Claim
A
C. Motion to Strike
“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
V. Analysis
A. The Court Will Grant in Part and Deny in Part Federal Defendants’ Motion to Dismiss Under Rule 12(b)(1), and It Will Deny Chairman Woommavovah‘s Motion to Dismiss Under Rule 12(b)(1), Because Plaintiffs Have Standing to Challenge the No-Action Approvals of the Comanche Nation‘s and Otoe-Missouria Tribe‘s Compacts but Lack Standing to Challenge the No-Action Approvals of the United Keetoowah Band‘s and Kialegee Tribal Town‘s Compacts
Both Federal Defendants and Chairman Woommavovah move to dismiss Plaintiffs’ claims against them—for Federal Defendants, counts one through seven; and for Chairman Woommavovah, counts one through eight to the extent they challenge the Comanche Nation‘s compact—for lack of standing. Federal Defendants facially challenge Plaintiffs’ standing. See ECF No. 106-1 at 15 n.5, 17-35. Chairman Woommavovah mainly facially challenges Plaintiffs’ standing, but he also tries to challenge it factually. See ECF No. 107-1 at 17-35. For the reasons explained below, Federal Defendants’ facial challenge partly succeeds—Plaintiffs have failed to plausibly allege that they have standing to challenge the no-action approvals of the United Keetoowah Band‘s and Kialegee Tribal Town‘s compacts. But that challenge comes up short in part because Plaintiffs have plausibly alleged that they have standing to challenge the no-action ap-provals of the Comanche Nation‘s and the Otoe-Missouria Tribe‘s compacts. And for the same reasons that Federal Defendants’ challenge partly does not succeed, Chairman Woommavovah‘s challenge also does not succeed.
1. Legal Principles
Federal courts are not “ombudsmen of the general welfare.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 487 (1982). Thus,
First, the plaintiff must have an “injury in fact,” meaning the “invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560 (cleaned up). The concreteness prong of this element requires that the injury be “real, and not abstract.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016) (internal quotation marks omitted). A “real” injury can be “tangible,” as with monetary harms, or it can be “intangible,” as with reputational
Second, the plaintiff must show a “causal connection between the injury and the conduct complained of,” meaning that the injury is “fairly traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Defs. of Wildlife, 504 U.S. at 560 (cleaned up). Generally, this is a “but for” test—if some part of the alleged injury would not have occurred, or will not occur, but for the challenged action, then the injury is fairly traceable to the challenged action. See Am. Fed‘n of Gov‘t Emps., AFL-CIO v. United States, 104 F. Supp. 2d 58, 63 (D.D.C. 2000). This test is met even if the challenged action is not “the most immediate cause, or even a proximate cause,” of the injury. Attias, 865 F.3d at 629; see also Orangeburg v. FERC, 862 F.3d 1071, 1080 (D.C. Cir. 2017). But if the injury would occur regardless of the challenged action—say, because some separate action would independently cause it in full—then the fair-traceability test is not met. See Delta Constr. Co. v. EPA, 783 F.3d 1291, 1297 (D.C. Cir. 2015).
Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Defs. of Wildlife, 504 U.S. at 561 (cleaned up). This analysis is “virtually always the reciprocal” of the second, fair-traceability element. Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 658 (D.C. Cir. 2010). Thus, if the defendant‘s challenged actions are a but for cause of the plaintiff‘s alleged injury, then that injury generally is likely redressable for standing purposes. Typically, redressability is absent only when the Court‘s decision would have “no real effect” on the plaintiff‘s injury. See Kaspersky Lab, Inc. v. U.S. Dep‘t of Homeland Sec., 909 F.3d 446, 465 (D.C. Cir. 2018) (internal quotation marks omitted). For instance, as with causation, redressability is absent when the independent action of some third party would still cause the entire injury. See LTMC/Dragonfly, Inc. v. Metro. Washington Airports Auth., 699 F. Supp. 2d 281, 292 (D.D.C. 2010); see also Delta Constr. Co., 783 F.3d at 1297. But the likelihood of even partial redress is enough to support standing. See, e.g., Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021).
A plaintiff‘s burden to establish these elements varies with the procedural posture of the case. See Defs. of Wildlife, 504 U.S. at 561. Generally, at the pleading stage, “general factual allegations of injury resulting from the defendant‘s conduct may suffice” because at the pleading stage the Court presumes “that general allegations embrace those specific facts that are necessary to support the claim.” Id. at 561
Also, standing “is not dispensed in gross.” Town of Chester v. Laroe Ests., Inc., 137 S. Ct. 1645, 1650 (2017) (internal quotation marks omitted). Thus, at least “one plaintiff must have standing to seek each form of relief requested in the complaint.” Id. at 1651. In other words, standing “must be demonstrated for each claim against each defendant.” Whitlock v. U.S. Dep‘t of Homeland Sec., No. 21-cv-807 (DLF), 2022 WL 424983, at *4 (D.D.C. Feb. 11, 2022).
When “a plaintiff‘s asserted injury arises from the government‘s allegedly unlawful regulation (or lack of regulation) of someone else,” standing “is not precluded, but it is ordinarily substantially more difficult to establish.” Defs. of Wildlife, 504 U.S. at 562 (internal quotation marks omitted). That said, a plaintiff can establish standing in that case at the pleading stage by plausibly alleging that the third party‘s “choices” to the allegedly unlawful regulation or non-regulation injuring the plaintiff “have been made or will be made in such manner as to produce causation and to permit redressability of injury.” Id.; see also Renal Phys. Ass‘n v. U.S. Dep‘t of Health & Hum. Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007). A plaintiff also can establish standing in that case by plausibly alleging at the pleading stage that the unlawful regulation or non-regulation of the third party causes the plaintiff to have to “compete with allegedly illegal commercial transactions.” See Assoc. Gas Distribs. v. FERC, 899 F.2d 1250, 1258 (D.C. Cir. 1990); see also Air Line Pilots Ass‘n, Int‘l v. Chao, 889 F.3d 785, 788 (D.C. Cir. 2018); Nat‘l Coal Ass‘n v. Hodel, 825 F.2d 523, 526 (D.C. Cir. 1987) (per curiam); Glass Packaging Inst v. Regan, 737 F.2d 1083, 1087-88 (D.C. Cir. 1984); cf. Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464 (2017) (“For standing purposes, a loss of even a small amount of money is ordinarily an ‘injury.‘“).
Finally, at the pleading stage a plaintiff‘s standing to pursue a claim typically turns on “the theory of injury presented in the complaint and the facts alleged in support of the claim.” Haase, 835 F.2d at 907. Further, “the ordinary rules of forfeiture apply to standing.” Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 615 (D.C. Cir. 2019) (internal quotation marks omitted); see also Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 502 n.4 (7th Cir. 2005) (“Although a jurisdictional defect cannot be forfeited, jurisdiction itself may be.“). Under those rules, a complaint “may not be amended by the briefs in opposition to a motion to dismiss,” and “the Court need not consider the merits” of a legal theory that should have been presented in the complaint but is presented for the first time in such filings. See Richardson v. Cap. One, N.A., 839 F. Supp. 2d 197, 202-03 (D.D.C. 2012) (cleaned up); cf. Twin Rivers Paper Co., 934 F.3d at 615 (refusing to consider “an entirely new theory of standing” that was not raised in the party‘s initial petition for review).
2. Analysis
Under the above legal principles, Plaintiffs must have plausibly alleged that at
the second category are the sixteen claims included in counts four, five, six, and seven—four in each—that dispute the legality of certain provisions in the compacts. So categorized, the analysis proceeds in two steps: (a) whether any Plaintiff has standing to challenge each of the four no-action approvals because the compacts were not legally “entered into” (counts one, two, three, and eight); and (b) whether any Plaintiff has standing to challenge each of the four no-action approvals because the compacts contain illegal provisions (counts four, five, six, and seven).
a. At Least One Plaintiff Has Standing to Challenge the Comanche Nation and Otoe-Missouria Tribe Compacts in Counts One, Two, Three, and Eight, but No Plaintiff Has Standing to Challenge the United Keetoowah Band and Kialegee Tribal Town Compacts in These Counts
To repeat, in counts one, two, three, and eight, Plaintiffs allege that the compacts are entirely illegal and invalid because they were not legally “entered into” as required by
Comanche Nation Compact. Plaintiffs have plausibly alleged that at least one Plaintiff has standing to bring these “entered into” challenges against the Comanche Nation compact. As for injury in fact, Plaintiffs allege that the Comanche Nation is currently conducting class III gaming under its new compact in five locations in Oklahoma, creating illegal competition in the “gaming market in which the Plaintiff Nations compete.” See ECF No. 104 ¶¶ 5, 67, 109, 128–29, 152, 231.q, 231.y. This illegal-competition injury is a cognizable injury-in-fact for standing purposes. See, e.g., Assoc. Gas Distribs., 899 F.2d at 1258. As for causation and redressability, Plaintiffs allege that the Comanche Nation asserts that its new compact is valid because it was no-action approved by the Secretary, is continuing to conduct class III gaming under its auspices, and “believe[s that] only a federal court would have the authority to void” its compact. See ECF No. 104 ¶¶ 98, 231.m, 231.q. Thus, both the Secretary‘s failure to disapprove this compact and the Comanche Nation‘s conduct following that failure are but-for causes—the former begetting the
In moving to dismiss these counts asserted against the Comanche Nation compact, Chairman Woommavovah disputes factually that any Plaintiff actually competes for class III gaming with the Comanche Nation so as to suffer an illegal-competition injury flowing from the tribe‘s gaming operations under its current compact. See ECF No. 107-1 at 15, 18, 31. But at this stage Plaintiffs “are protected from an evidentiary attack on [their] asserted theory [of injury]” that is “presented in the complaint and the facts alleged in support of the claim.” See Haase, 835 F.2d at 907.8 At this point, Plaintiffs need only provide “general factual allegations” about their current illegal-competition injury to carry their burden to establish standing, as the Court must assume from such allegations those “specific facts that are necessary to support the claim.” Defs. of Wildlife, 504 U.S. at 561 (internal quotation marks omitted). As discussed above, they have done so.
Of course, if these general factual allegations were not plausible, they would not establish standing at this stage. See Jibril v. Mayorkas, 20 F.4th 804, 814 (D.C. Cir. 2021). But here they are. For one, the factual allegations are “firmly rooted in the basic laws of economics” that at least one Plaintiff would get at least a little more class III gaming business at its Oklahoma casinos if the Comanche Nation‘s Oklahoma casinos did not conduct class III gaming. See United Transp. Union v. ICC, 891 F.2d 908, 912 n.7 (D.C. Cir. 1989); W. Flagler Assocs. v. Haaland, 573 F. Supp. 3d 260, 267–68 (D.D.C. 2021); see also Nat‘l Credit Union Admin. v. First Nat‘l Bank & Trust Co., 522 U.S. 479, 488 n.4 (1998). If that were not enough, Plaintiffs allege that both they and the Comanche Nation compete in the Dallas-area market. See ECF No. 104 ¶¶ 231.o, 231.v, 231.y, 231.z.
Chairman Woommavovah also argues that Plaintiffs’ illegal-competition injury is
Relatedly, Chairman Woommavovah suggests that Plaintiffs are not within
The “zone of interests” test—long viewed as a “jurisdictional concept on par with Article III standing” but now considered “a merits issue,” Crossroads Grassroots Pol‘y Strategies v. FEC, 788 F.3d 312, 319 (D.C. Cir. 2015) (cleaned up)—asks “whether . . . a legislatively conferred cause of action encompasses a particular plaintiff‘s claim.” Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). This test “is not meant to be especially demanding,” and the benefit of the doubt goes to the plaintiff. Clarke v. Sec. Indus. Ass‘n, 479 U.S. 388, 399–400 (1987). Further, there need be no “indication of congressional purposes to benefit the would-be plaintiff.” Id. Instead, this “test forecloses suit only when a plaintiff‘s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (internal quotation marks omitted).
Moving on from Plaintiffs’ injury in fact, Chairman Woommavovah also argues that Plaintiffs’ illegal-competition injury is not likely redressable by a favorable decision, thus defeating standing. See ECF No. 107-1 at 31–33. Here, he advances two arguments, but neither are availing. For one, he argues that the Comanche Nation‘s compact is severable and that severing any allegedly invalid provisions from the compact would leave undisturbed the tribe‘s ongoing class III gaming. But for counts one, two, three, and eight, this is beside the point. Plaintiffs allege that the compacts are wholly invalid for not being legally “entered into” as required by
He also argues that, even assuming the compact is entirely void, the Comanche Nation‘s old compact would be revived because a term in the new compact specified that it superseded the old compact. Thus, this argument goes, if the new compact is wholly invalid, then the old compact will no longer be considered superseded and would still be in effect. And under its old
In sum, Plaintiffs have plausibly alleged that they suffer an illegal-competition injury fairly traceable to the Secretary‘s failure to disapprove the Comanche Nation‘s compact and from the Comanche Nation‘s ongoing class III gaming under the compact and that is likely redressable by a favorable decision holding the compacts invalid for not being validly “entered into” under
Otoe-Missouria Tribe Compact. Similarly, Plaintiffs have plausibly alleged that at least one of them has standing to bring these “entered into” challenges against the Otoe-Missouria Tribe compact. As for injury in fact, Plaintiffs allege that the Otoe-Missouria Tribe is currently conducting class III gaming under its new compact in five locations in Oklahoma, creating illegal competition in the “gaming market in which the Plaintiff Nations compete.” See ECF No. 104 ¶¶ 5, 67, 109, 128–29, 152, 231.q, 231.y. This illegal-competition injury is a cognizable injury-in-fact for standing purposes. See, e.g., Assoc. Gas Distribs., 899 F.2d at 1258. As for causation and redressability, Plaintiffs allege that the Otoe-Missouria Tribe asserts that its new compact is valid because it was no-action approved by the Secretary, is continuing to conduct class III gaming under its auspices, and “believe[s that] only a federal court would have the authority to void” its compact. See ECF No. 104 ¶¶ 98, 231.m, 231.q. Thus, both the Secretary‘s failure to disapprove this compact and the Otoe-Missouria Tribe‘s conduct following that failure are but-for causes of Plaintiffs’ illegal-competition injuries. And given that, those injuries are likely redressable by a favorable decision on counts one, two, three, and eight, declaring the Otoe-Missouria Tribe compact invalid because it was not legally “entered into” under
United Keetoowah Band Compact. In contrast, Plaintiffs have not plausibly alleged that at least one of them has standing to bring these “entered into” challenges against the United Keetoowah Band‘s compact because they have failed to plausibly allege a sufficient injury in fact.
To begin, unlike with respect to the Comanche Nation and the Otoe-Missouria Tribe, Plaintiffs do not allege that the United Keetoowah Band is currently engaged in class III gaming. See also ECF
Instead, Plaintiffs’ allegations suggest at most that they face an “imminent” injury from the no-action approval of this compact and Chief Joe Bunch‘s actions taken under it because they face a “substantial risk” of future illegal-competitive injury from class III gaming conducted by the United Keetoowah Band under this compact. See, e.g., ECF No. 104 ¶¶ 105, 129, 172, 204, 231.f–g, 231.w, 231.z; ECF No. 114 at 46–49; see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). As support, they point to their allegations that the United Keetoowah Band has “start[ed] to plan for the implementation” of that compact; that the tribe stated in September 2020 that it was “work[ing] with its developers to select a casino site” in a county just north of Oklahoma City; and that in October 2020 the tribe said that it has “one more major step to place . . . land into trust with the federal government” to conduct class III gaming pursuant to its new compact, implying that it had selected a site in the interim. See ECF No. 104 ¶¶ 231.k–l; ECF No. 114 at 46–47. This is not enough to establish a “substantial risk” for standing purposes.
The Article III “requirement of imminence . . . necessarily compels a very strict understanding of what . . . count[s] as ‘substantial‘” in this context. Public Citizen, 489 F.3d at 1296. Thus, this “theory of standing is not easily satisfied.” Public Citizen, Inc. v. Trump, 435 F. Supp. 3d 144, 149 (D.D.C. 2019); see also United Transp. Union, 891 F.2d at 913. As the Court noted above, a “substantial risk” is more than a “possible” one, and even an “objectively reasonable likelihood” of the injury occurring is not enough. See Clapper, 568 U.S. at 409–10, 414 n.5. Further, particularly relevant here, where “future competition remains indeterminable and amorphous pending future clarifying events that postdate the filing of the complaint,” the imminence requirement is unmet. See Delta Air Lines, Inc. v. Export-Import Bank of United States, 85 F. Supp. 3d 250, 267 (D.D.C. 2015).
According to Plaintiffs’ own allegations, the United Keetoowah Band faces at least “one more major step” before it can engage in class III gaming. And this “major step” is a complicated one, the results of which are uncertain—getting the Secretary to take land into trust for the tribe. See, e.g., Yocha Dehe v. U.S. Dep‘t of the Interior, 3 F.4th 427, 431 (D.C. Cir. 2021). Thus, Plaintiffs have not plausibly alleged a substantial risk of a future illegal-competition injury here. See Delta Air Lines, 85 F. Supp. 3d at 267.
In their opposition to the motions to dismiss, Plaintiffs also assert that they have an “actual” injury in fact here because of the breach of “substantial exclusivity” gaming rights, with accompanying monetary loss, that they have under their own compacts. See ECF No. 114 at 14, 33–38. But this “theory of injury” was not presented in Plaintiffs’ operative complaint—its third in this case—and it is not supported by the “facts alleged” in it. See Haase, 835 F.2d at 907.11 Thus, the Court
Kialegee Tribal Town Compact. Finally, with respect to counts one, two, three, and eight, Plaintiffs have also not plausibly alleged that at least one of them has standing to bring these “entered into” challenges against the Kialegee Tribal Town‘s compact because they have failed to plausibly allege a sufficient injury in fact for standing purposes.
As with the United Keetoowah Band‘s compact, Plaintiffs do not allege that the Kialegee Tribal Town is currently engaged in class III gaming. See also ECF No. 114 at 26, 27, 29, 32 (acknowledging this tacitly). Thus, they cannot rely on an “actual” illegal-competition injury to support standing. Instead, Plaintiffs’ allegations suggest at most that they face an “imminent” injury from the no-action approval of this compact and Mekko Brian Givens‘s actions taken under it because they face a “substantial risk” of future illegal-competitive injury from class III gaming conducted by the Kialegee Tribal Town under this compact. See, e.g., ECF No. 104 ¶¶ 105, 129, 173, 204, 224, 228, 230, 231.f–g, 231.w, 231.z; ECF No. 114 at 46–49; see also Susan B. Anthony List, 573 U.S. at 158. As to this “substantial risk,” Plaintiffs allege that Mekko Givens has represented that the Kialegee Tribal Town had “start[ed] to plan for the implementation” of its compact and that Mekko Givens “continues to exercise authority and jurisdiction” under it. ECF No. 104 ¶¶ 231.j–k; see also id. ¶¶ 105, 126, 130, 267. These vague allegations do not quite make plausible a “substantial risk” of future illegal-competitive injury. See Public Citizen, 489 F.3d at 1296; Delta Air Lines, 85 F. Supp. 3d at 267.
Plaintiffs’ allegations also suggest that at least one of them has suffered or will imminently suffer a concrete violation of their “zone of exclusivity” compact rights. On this score, Plaintiffs allege that a portion of Oklahoma in which the Kialegee Tribal Town might be able to obtain land under its compact for class III gaming through the trust-acquisition process is in the Citizen Potawatomi Nation‘s territory. See ECF No. 104 ¶ 4; see also id. ¶¶ 102, 168, 220, 225; ECF No. 114 at 42–44. And they allege that this possibility “threatens” the Citizen Potawatomi Nation‘s “jurisdictional integrity and sovereignty.” See ECF No. 104 ¶ 4.
Granted, an “actual infringement[]” of a tribe‘s “sovereignty” can constitute a “concrete injury sufficient to
The Citizen Potawatomi Nation‘s alleged injury here falls on the abstract side of the line. The provision at issue—one that preemptively provides the Governor‘s “concurrence” to land acquisition by the Secretary via a two-part determination—does not require the Citizen Potawatomi Nation “to do or to yield anything.” See Mellon, 262 U.S. at 482. It simply clears one hurdle in the complicated land-acquisition process that the Kialegee Tribal Town would have to pursue successfully to obtain land for class III gaming within the Citizen Potawatomi Nation‘s territory. See, e.g., Yocha Dehe, 3 F.4th at 431. And regardless of the outcome of other aspects of that process, the Citizen Potawatomi Nation has a trump card—it can refuse to “consent[] in writing to the acquisition” of land within its territory and thus prevent the Kialegee Tribal Town from obtaining it. See
b. At Least One Plaintiff Has Standing to Challenge the Comanche Nation and Otoe-Missouria Tribe Compacts in Counts Four, Five, Six, and Seven, but No Plaintiff Has Standing to Challenge the United Keetoowah Band and Kialegee Tribal Town Compacts in These Counts
In counts four, five, six, and seven, Plaintiffs allege that the compacts each contain certain illegal provisions that required the Secretary to disapprove them. For these counts as well, Plaintiffs must have plausibly alleged that at least one of them has standing to challenge the no-action approval of each compact with respect to each count. As discussed below, once again they have for the Comanche Nation and Otoe-Missouria compacts, but they have not for the United Keetoowah Band and the Kialegee Tribal Town compacts.
Comanche Nation Compact. Plaintiffs once again allege an illegal-competition injury because the alleged illegalities identified in counts four, five, six, and seven required the Secretary to disapprove the entire compact, thus rendering current class III gaming competition posed by the
Plaintiffs assert that this premise is correct given how Amador County interpreted
That is, the scope of “the remedial powers of the court” granted by a statute under which a plaintiff brings a claim generally does not present a “jurisdictional” issue but rather a merits-related issue. See id. at 89–93. This is true for
Otoe-Missouria Tribe Compact. At this point, the Court need not say much more about Plaintiffs’ standing to pursue counts four, five, six, and seven against the Otoe-Missouria Tribe‘s compact. Again, Plaintiffs have plausibly alleged standing based on illegal-competition injuries flowing from the no-action approval of the Otoe-Missouria Tribe‘s compact. And for the reasons just discussed, they have likely redressability for those injuries under counts four, five, six, and seven.
United Keetoowah Band Compact. The Court found above that Plaintiffs had failed to plausibly allege standing to challenge the United Keetoowah Band‘s compact under counts one, two, three, and eight. Those counts assert that the compact is wholly and inherently invalid. So too, counts four, five, six, and seven assert that the compact is wholly invalid—the only difference is the way those counts get there. For standing purposes, that difference is immaterial. Thus, the Court‘s prior conclusion applies here as well.
Kialegee Tribal Town Compact. Finally, the Court found above that Plaintiffs had failed to plausibly alleged standing to challenge the Kialegee Tribal Town‘s compact under counts one, two, three, and eight. For the reasons just discussed regarding the United Keetoowah Band‘s compact, that conclusion applies with equal force here.
3. Summary
Plaintiffs have plausibly alleged standing to bring counts one through eight of their operative complaint insofar as those counts
B. The Court Will Deny Federal Defendants’ Motion to Dismiss Under Rule 12(b)(6) Because Plaintiffs Have Adequately Stated Claims Under Counts One Through Seven with Respect to the Comanche Nation Compact and the Otoe-Missouria Tribe Compact
Because Plaintiffs have plausibly alleged standing for counts one through eight insofar as those counts assert claims challenging the Comanche Nation‘s compact and the Otoe-Missouria Tribe‘s compact, the Court has subject-matter jurisdiction over them at this stage. Thus, the Court may consider Federal Defendants’ Rule 12(b)(6) challenge to counts one through seven insofar as Plaintiffs assert those claims against Federal Defendants relating to the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts. See Attias, 865 F.3d at 624. That said, Federal Defendants’ Rule 12(b)(6) challenge is a limited one, and their arguments fail. Thus, the Court will deny Federal Defendants’ motion to dismiss these claims under Rule 12(b)(6).
1. Count One
In count one, Plaintiffs assert that the Secretary‘s “consideration” of the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts was arbitrary, capricious, and contrary to
First, under Amador County, the Secretary must determine whether a compact submitted for review complies with
Second, even if Federal Defendants were right on the law, Plaintiffs allege in their complaint that any state-law dispute that existed at the start of the review period for these compacts was resolved for the Secretary before the period ended. During that review period, the Oklahoma Attorney General submitted a letter and official legal opinion to the Secretary explaining that the Governor lacked authority to enter into these compacts under Oklahoma law. See ECF No. 104 ¶¶ 88–90 (citing In re Treat, 2020 OK AG 8, 2020 WL 2304499 (Okla. A.G. May 5, 2020)). In Oklahoma, an official legal opinion from the state Attorney General such as this is legally binding on all state officials whom it affects until it is overruled judicially. See State ex rel. York v. Turpen, 681 P.2d 763, 765 (Okla. 1984);
2. Count Two
In count two, Plaintiffs assert that the Secretary acted arbitrarily, capriciously, and contrary to
3. Count Three
In count three, Plaintiffs assert that the Secretary‘s no-action approvals of the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts were arbitrary, capricious, and contrary to
4. Count Four
In count four, Plaintiffs assert that the Secretary‘s no-action approvals of the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts were arbitrary, capricious, and contrary to
Again, in Amador County, the Circuit held that the Secretary “must . . . disapprove a compact if it would violate any of the three limitations” in
Federal Defendants suggest that the Court should not follow Amador County here because its holding is “dictum” in this context given that in Amador County the alleged illegality was with the entire compact rather than just a discrete provision of it. See ECF No. 106-1 at 39–40. The Court declines this invitation. For one, the Court considers it “a good rule of thumb” to conclude that, in decisions from the Circuit, “what they say and what they mean are one and the same.” See Mathis v. United States, 579 U.S. 500, 514 (2016). Further, later decisions applying or referencing Amador County confirm the propriety of following this rule here, as those cases have taken this holding at its word by applying it outside the confines of the specific facts of that case. See, e.g., W. Flagler Assocs., 573 F. Supp. 3d at 273, 276, 276 n.8; see also DTCC Data Repository (U.S.) LLC v. U.S. CFTC, 25 F. Supp. 3d 9, 17 (D.D.C. 2014); Menominee Indian Tribe of Wisc. v. EPA, 947 F.3d 1065, 1073 (7th Cir. 2020).
5. Count Five
In count five, Plaintiffs assert that the Secretary‘s no-action approvals of the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts were arbitrary, capricious, and contrary to
6. Count Six
In count six, Plaintiffs assert that the Secretary‘s no-action approvals of the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts were arbitrary, capricious, and contrary to
7. Count Seven
In count seven, Plaintiffs assert that the Secretary‘s no-action approvals of the Comanche Nation‘s and Otoe-Missouria Tribe‘s compacts were arbitrary, capricious, and contrary to
They so allege because the provisions in these compacts that preemptively provide the Governor‘s concurrence to future land acquisitions by the Secretary under a two-part determination violate the “federal trust obligation” contrary to
Federal Defendants make two arguments for dismissal. First, they raise the same argument that they asserted with respect to counts four, five, and six. See ECF No. 106-1 at 38–41. For the reasons explained in the analysis of count four, that argument fails. Second, they also argue that Plaintiffs have failed to “identify a statute or regulation that imposes an enforceable trust obligation” and so failed to state this claim for this reason as well. See ECF No. 106-1 at 40–41. Plaintiffs argue otherwise. See ECF No. 114 at 67. Regardless, Federal Defendants have not contested Plaintiffs’ allegation that these provisions are an invalid subject of
C. The Court Will Grant Plaintiffs’ Motion to Dismiss Chairman Shotton‘s Counterclaim Because It Is Barred by Plaintiffs’ Tribal Immunity
In response to Plaintiffs’ operative complaint, Chairman Shotton of the Otoe-Missouria Tribe counterclaimed, seeking a declaration that the Tribe‘s compact was validly entered into and complies with
“The doctrine of tribal immunity . . . protects tribes from suits in federal . . . courts.” Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 771 (D.C. Cir. 1986) (citing United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512–13 (1940)). The only exceptions to it are “where Congress has authorized the suit” or where “the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Here, Plaintiffs seek declaratory relief against Chairman Shotton to the effect that the Otoe-Missouria Tribe‘s compact is illegal and invalid. See ECF No. 104 ¶¶ 266–68.17 Chairman Shotton seeks mirror-image relief in his counterclaim—he wants a declaration that the Tribe‘s compact is legal and valid. But he asserts
To do so, he argues that a “waiver-by-litigation exception” applies so as to permit his declaratory counterclaim. See ECF No. 123 at 2, 10. Not so.
Tribal immunity can be waived if the tribe “consent[s] to be sued.” Wichita & Affiliated Tribes, 788 F.2d at 773. That said, “such consent ‘cannot be implied but must be unequivocally expressed.‘” Id. (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978)). For this reason, a “tribe does not automatically open itself up to counterclaims simply by virtue of filing a suit.” Id. To the contrary, an “Indian tribe” does not lose that immunity “by instituting an action, even when the defendant files a compulsory counterclaim” in that case. Id. at 773–74; accord Ute Indian Tribe of the Uintah & Ouray Rsrv. v. Utah, 790 F.3d 1000, 1009 (10th Cir. 2015) (Gorsuch, J.) (citing Okla. Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509–10 (1991)). Chairman Shotton argues that Plaintiffs waived their tribal immunity to his counterclaim by instituting this action. But as just discussed, binding precedent forecloses this argument.
Chairman Shotton contends otherwise, asserting that these cases do not foreclose the approach taken by a 2016 district court decision out of the Ninth Circuit that held that counterclaims against a plaintiff tribe mirroring the plaintiff tribe‘s own claims in the case were not barred by tribal immunity. See Tohono O‘odham Nation v. Ducey, 174 F. Supp. 3d 1194, 1204–05 (D. Ariz. 2016).18 Even if Wichita & Affiliated Tribes did not foreclose this approach, the Court still would not follow it. Importantly, the Ninth Circuit has since repudiated the waiver principle identified in Tohono and expressly held that a plaintiff tribe does not waive tribal immunity even for a counterclaim that “mirrors the merits” of the tribe‘s claims. See Quinault Indian Nation v. Pearson for Estate of Comenout, 868 F.3d 1093, 1098–99 (9th Cir. 2017); see also Ak-Chin Indian Cmty. v. Maricopa-Stanfield Irr. & Drainage Dist., No. CV-20-00489-PHX-JJT, 2021 WL 2805609, at *4 & n.3 (D. Ariz. July 6, 2021).
The Court sees no reason to disagree with Quinault Indian Nation, particularly considering that it is consistent with the clear implications—at the very least—of the D.C. Circuit‘s decision in Wichita & Affiliated Tribes. Thus, Plaintiffs’ tribal immunity bars Chairman Shotton‘s counterclaim, and the Court will grant Plaintiffs’ motion to dismiss it for this reason.
D. The Court Will Deny Plaintiffs’ Motion to Strike
Plaintiffs also move to strike certain assertions in Chairman Woommavovah‘s motion to dismiss along with certain materials that Chairman Woommavovah submitted and relied on in that motion. See ECF No. 115. The Court will deny this motion.
“The decision to grant or deny a motion to strike is vested in the Court‘s discretion.” U.S. Telesis, Inc. v. Ende, 297 F.R.D. 159, 161 (D.D.C. 2013). One of the main purposes of a motion to strike is to
E. The Court Will Deny as Moot Plaintiffs’ Motion to Compel Production of the Administrative Record
Finally, Plaintiffs move to compel the production of the administrative record to assist them in opposing Federal Defendants’ motion to dismiss counts one through three under Rule 12(b)(6). See ECF No. 128 at 1–2; ECF No. 128-1 at 5–6. As discussed above, the Court will deny Federal Defendants’ motion to dismiss these counts under Rule 12(b)(6). Thus, the Court will deny Plaintiffs’ motion to compel as moot.
VI. Conclusion and Order
For all these reasons, it is hereby ORDERED that:
- Federal Defendants’ Motion to Dismiss, ECF No. 106, is GRANTED IN PART and DENIED IN PART, and the claims based on the United Keetoowah Band‘s compact and the Kialegee Tribal Town‘s compact in counts one through eight of Plaintiffs’ First Amended and Supplemented Complaint, ECF No. 104, are DISMISSED;
- Chairman Woommavovah‘s Motion to Dismiss, ECF No. 107, is DENIED;
- Plaintiffs’ Motion to Dismiss Defendant Chairman Shotton‘s Counterclaim, ECF No. 113, is GRANTED, and Chairman Shotton‘s counterclaim is DISMISSED;
- Plaintiffs’ Motion to Strike Declarations in Support of and Assertions in Defendant Chairman Woommavovah‘s Motion to Dismiss, ECF No. 115, is DENIED; and
- Plaintiffs’ Motion to Compel Production of Administrative Record, ECF No. 128, is DENIED AS MOOT.
Date: November 23, 2022
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge