NORTH COUNTY COMMUNITY ALLIANCE, INC., Plaintiff-Appellant, v. Ken SALAZAR, Secretary of the United States Department of the Interior; Department Of Interior; Philip Hogen, Chairman of the National Indian Gaming Commission; National Indian Gaming Commission, Defendants-Appellees.
No. 07-36048.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 11, 2009. Filed July 15, 2009.
573 F.3d 738
REVERSED and REMANDED.
Rebecca Shapiro Cohen, Brian Kipnis, Office of the United States Attorney, Seattle, WA, Aaron P. Avila, Robert Lundman, Ronald J. Tenpas, U.S. Department of Justice, Washington, D.C., for the appellees.
Before WILLIAM A. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.
Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge GOULD.
W. FLETCHER, Circuit Judge:
The North County Community Alliance, Inc., (“Alliance“) brought suit against the National Indian Gaming Commission (“NIGC“), the Department of Interior, and those agencies’ principal officers (collectively, “Appellees“). The Alliance claims that the NIGC‘s failure to make an “Indian lands” determination either before approving the Nooksack Indian Tribe‘s (“Nooksacks’ “) gaming ordinance (the “Ordinance“) in 1993, or before the Nooksacks licensed and began constructing the Northwood Crossing Casino (“Casino“) in 2006, violated the Indian Gaming Regulatory Act (“IGRA“). The Alliance also claims that Appellees violated the National Environmental Policy Act (“NEPA“) by failing to prepare an environmental impact statement (“EIS“) in connection with construction of the Casino.
We hold that the Alliance‘s challenge to the NIGC‘s 1993 approval of the Ordinance, insofar as it relates to the licensing and construction of the Casino, is not time-barred. We hold on the merits that the NIGC did not have a duty under IGRA to make an Indian lands determination in 1993 before approving the Nooksacks’ non-site-specific proposed gaming Ordinance. We also hold that the NIGC did not have a duty under IGRA to make an Indian lands determination in 2006 when the Nooksacks
I. Background
The Nooksack Indian Tribe is a federally recognized Indian tribe with a reservation in northwestern Washington State near the Canadian border. Beginning in the early 1990s, the Nooksacks sought to engage in tribal gaming.
IGRA requires Indian tribes to receive NIGC‘s approval of a gaming ordinance before engaging in “class II” or “class III” gaming.
Since shortly after the approval of the Ordinance, the Nooksacks have operated a class III gaming facility on reservation land in Deming, Washington. That facility is not at issue.
The Ordinance does not identify any specific site or sites where gaming might take place. With respect to class II gaming, it provides only that the Nooksack Gaming Commission “shall issue a separate license to each place, facility, or location on Indian lands where Class II gaming is conducted under this ordinance.” In 2006, pursuant to the Ordinance, the Nooksacks licensed and began constructing the Casino as a class II gaming facility.
The Casino is located on a twenty-acre parcel owned by the Nooksacks about one-half mile south of the Canadian border and about thirty-three miles by road from the Nooksack reservation. According to the Alliance‘s complaint, this “parcel of largely undeveloped rural land is mostly surrounded by vacant and non-Indian farming lands and woodlands, is situated near Lynden, Washington[,] and is served by ... highways, public services and infrastructure provided by Whatcom County and the State of Washington.”
The Alliance is a non-profit organization whose stated goal is to protect the environment. According to the complaint, its members include residents and property owners near the Casino site, as well as some members of the Nooksack Tribe.
In July 2007, the Alliance filed suit in federal district court against Appellees.
IGRA limits tribal gaming to locations on “Indian lands” as defined in
The district court dismissed the Alliance‘s suit with prejudice under
II. Standard of Review
We review de novo questions of law raised in dismissals under
III. Discussion
We address the following questions. First, does the statute of limitations bar the Alliance‘s challenge to the NIGC‘s 1993 approval of the Ordinance? Second, was the NIGC required to determine the status of the land on which the Casino could or would be built, either when it approved the Ordinance in 1993 or before the licensing and construction of the Casino in 2006? Third, did Appellees violate NEPA by failing to prepare an EIS before the licensing and construction of the Casino?
A. Statute of Limitations
The applicable statute of limitations provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”
The NIGC approved the Nooksacks’ Ordinance in 1993. The construction of the Casino began in 2006. The Alliance filed suit in 2007. The statute of limitations clearly does not bar the Alliance‘s claim that the NIGC was required to determine in 2006, before licensing and construction, whether the Casino would be located on Indian lands. The question is whether the statute of limitations bars Alliance‘s claim that the NIGC was required to determine in 1993, when it approved the Ordinance, the status of the land on which the Casino is now located. For the reasons that follow, we conclude that the statute of limitations does not bar that claim.
Our decision in Wind River Mining Corp. v. United States (“Wind River“), 946 F.2d 710 (9th Cir. 1991), guides our analysis. In Wind River, the Bureau of Land Management (“BLM“) had classified certain federal lands as Wilderness Study Areas (“WSAs“) in 1979. Mining was forbidden within a WSA. In 1986 and 1987, the Wind River Mining Corporation (“Wind River“) asked the BLM to declare that its decision to create WSA 243 was invalid because that particular WSA was not “roadless” as required by statute. The BLM denied the request. In 1987, the Interior Board of Land Appeals denied Wind River‘s administrative appeal.
Wind River filed suit in 1989 alleging that the BLM‘s 1979 action in creating WSA 243 was ultra vires. We permitted Wind River‘s claim to proceed:
If ... a challenger contests the substance of an agency decision as exceeding constitutional or statutory authority, the challenger may do so later than six years following the decision by filing a complaint for review of the adverse application of the decision to the particular challenger. Such challenges, by their nature, will often require a more “interested” person than generally will be found in the public at large. For example, assuming that Wind River‘s challenge to the designation of WSA 243 is merited, no one was likely to have discovered that the BLM‘s 1979 designation of this particular WSA was beyond the agency‘s authority until someone actually took an interest in that particular piece of property, which only happened when Wind River staked its mining claims. The government should not be permitted to avoid all challenges to its
actions, even if ultra vires, simply because the agency took the action long before anyone discovered the true state of affairs.
In Artichoke Joe‘s California Grand Casino v. Norton (“Artichoke Joe‘s“), 278 F. Supp. 2d 1174 (E.D. Cal. 2003), plaintiffs challenged the Department of Interior‘s decision to grant federal recognition of the Lytton Rancheria of California as an Indian tribe, even though the challenge was brought more than six years after the recognition occurred. Applying Wind River, the district court held that plaintiffs’ challenge was not time-barred. It wrote:
Plaintiffs’ claim concerning recognition of Lytton as a tribe is a substantive challenge to the Secretary‘s recognition decision. Further, when the Secretary made the decision to ... grant Lytton federal recognition in 1991, plaintiffs could have had no idea that Lytton‘s tribal status would affect them [by leading to tribal gaming nearby].
Like the plaintiffs in Wind River and Artichoke Joe‘s, the Alliance argues that the NIGC acted ultra vires in approving the Nooksacks’ proposed Ordinance in 1993 without first making an Indian lands determination for locations where gaming would be permitted under the Ordinance. “[N]o one was likely to have discovered” that the NIGC‘s approval was “beyond the agency‘s authority until someone actually took an interest in” it. Wind River, 946 F.2d at 715. The Alliance “took an interest” in 2006 when construction of the Casino began near some of its members’ properties. The Alliance “could have had no idea” in 1993 that the NIGC‘s approval of the Nooksacks’ Ordinance “would affect them” in 2006 by leading to construction of a casino thirty-three miles from the Nook-sack reservation. See Artichoke Joe‘s, 278 F. Supp. 2d at 1183.
We therefore conclude that the statute of limitations does not bar the Alliance‘s claim that NIGC was required to determine in 1993 the “Indian lands” status of the parcel on which the Casino was built in 2006.
B. NIGC Duty to Determine Indian Lands Status
The Alliance claims that the NIGC was required to determine the status of the land on which the Casino could or would be built, either in 1993, when it approved the Ordinance, or in 2006, before the licensing and construction of the Casino. The Alliance contends that the parcel on which the Casino is built is not “Indian land” within the meaning of
1. Subject Matter Jurisdiction
We first address our jurisdiction to review the 1993 action, and 2006 inaction, of the NIGC. IGRA specifies various circumstances in which federal courts may review the decisions of the NIGC: “Decisions made by the Commission pursuant to section[] 2710 [tribal gaming ordinances], ... of this title shall be final agency decisions for purposes of appeal to the appropriate Federal district court pursuant to chapter 7 of Title 5.”
The Administrative Procedure Act (“APA“) provides that a federal court has jurisdiction to “compel agency action unlawfully withheld or unreasonably delayed.”
2. Merits
a. NIGC‘s Approval of the Ordinance in 1993
It is undisputed that IGRA authorizes tribal gaming only on “Indian lands” as defined in
Tribal gaming on non-Indian lands is not authorized by or regulated under IGRA. A notice of final rulemaking published by the NIGC in February 2008 stated that “IGRA requires that all gaming take place on ‘Indian lands‘” and “[g]aming that does not take place on Indian lands is subject to all state and local gambling laws and federal laws apart from IGRA.” Facility License Standards, 73 Fed. Reg. 6019, 6022 (Feb. 1, 2008) (emphasis added).
The Chairman of the NIGC is required to approve any proposed tribal ordinance concerning class II gaming if the proposed ordinance meets certain specified conditions.
There is no explicit requirement in IGRA that, as a precondition to the NIGC‘s approval, a proposed ordinance identify the specific sites on which the
The Alliance points out that IGRA provides that the NIGC “shall approve any tribal ordinance or resolution concerning the conduct, or regulation of class II gaming on the Indian lands within the tribe‘s jurisdiction” if it satisfies the conditions referred to above.
In support of its argument, the Alliance cites Citizens Against Casino Gambling in Erie County v. Kempthorne (“Erie County“), 471 F. Supp. 2d 295 (W.D.N.Y. 2007). Plaintiff in Erie County challenged the NIGC‘s decision to approve a tribal gaming ordinance without first making an “Indian lands” determination. The district court in Erie County wrote:
Whether proposed gaming will be conducted on Indian lands is a critical, threshold jurisdictional determination of the NIGC. Prior to approving an ordinance, the NIGC Chairman must confirm that the situs of proposed gaming is Indian lands. If gaming is proposed to occur on non-Indian lands, the Chairman is without jurisdiction to approve the ordinance.
Id. at 323-24. The court held that “the NIGC Chairman has a duty to determine whether a tribe‘s proposed gaming will occur on Indian lands before affirmatively approving an ordinance.” Id. at 324.
The gaming ordinance at issue in Erie County was different from the Ordinance at issue in this case. The ordinance in that case was a tribal-state compact between the Seneca Nation and the State of New York that was submitted to the NIGC as a proposed class III gaming ordinance. The compact identified three possible sites for class III gaming. It identified the precise location of two of the three sites. It identified the location of the third site more generally as land “in Erie County, at a location in the City of Buffalo to be determined by the [Seneca] Nation.” Id. at 327. As part of the compact, the State agreed to assist the Seneca Nation in acquiring parcels at two sites, including the generally described site in the City of Buffalo, and to assist the Seneca Nation in achieving Indian land status for the parcels. After the ordinance was approved by the NIGC, the Seneca Nation purchased a specific parcel in Buffalo. Plaintiffs, who objected to gaming on the Buffalo parcel, contended that the Chairman of the NIGC erred “when he approved the Ordinance without making an ‘Indian land’ determination with respect to property the [Seneca Nation] intended to acquire for gaming purposes.” Id. at 322. The district court agreed and vacated the NIGC‘s approval of the ordinance with respect to the Buffalo parcel, remanding to the NIGC for a determination of the Indian lands status of the parcel. Id. at 327.
The NIGC states in its brief to us that when a site-specific ordinance is presented for approval it has an obligation to make an Indian lands determination for the specifically identified site or sites. In that circumstance, it makes sense for the NIGC to make an Indian lands determination for the site or sites specifically identified in the proposed ordinance. However, the NIGC contends that it has no obligation to make an Indian lands determination when approving a non-site-specific ordinance.
The NIGC contends that the text of IGRA does not oblige a tribe to specify in a proposed ordinance, as a condition of the NIGC‘s approval, all (or even any) of the sites at which the tribe might conduct class II gaming. Nor can we find such an obligation in the statutory text. Absent such an obligation, it would be absurdly impractical to require the NIGC to make an Indian lands determination as part of its approval of an ordinance. In effect, the NIGC would be required to make an Indian lands determination for all lands that are owned, or could be owned in the future, by the tribe and on which the tribe might wish to conduct gaming.
The Alliance appears to recognize the impracticality of requiring the NIGC to make an Indian lands determination as part of its approval of a non-site-specific ordinance. It argues, in effect, that any proposed ordinance submitted to the NIGC must be site-specific. In support of this argument, the Alliance points to one of the enumerated criteria that a proposed class II gaming ordinance must satisfy. Section 2710(b)(2)(E) states that a proposed ordinance must provide that “the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety.”
b. NIGC‘s Failure to Act in 2006
In the alternative, the Alliance claims that the NIGC was required to make an Indian lands determination when the Nooksacks licensed and began construction of the Casino in 2006. However, the Alliance points to nothing in the text of IGRA, or in any implementing regulation in effect in 2006, that required the NIGC to make an Indian lands determination when a tribe licensed or began construction of a class II gaming facility already authorized by a non-site-specific ordinance. Nor have we been able to find anything in the text of IGRA, or in the regulations in effect in 2006, so requiring. We therefore conclude that NIGC was under no judicially enforceable obligation to make an Indian lands determination in 2006. See Confederated Tribes, 342 F.3d at 930.
3. 2008 Regulations
We recognize that IGRA, and its implementing regulations in effect at the times relevant to this suit, operated somewhat awkwardly. A tribe could obtain NIGC approval of a non-site-specific ordinance authorizing class II gaming, and license and build a class II gaming facility pursuant to that ordinance on land that does not constitute Indian land under
In 2008, the NIGC promulgated regulations that ameliorated the awkwardness we have just described. The validity and proper interpretation of these new regulations is not before us, and we mention them only to point out that the NIGC seems to be aware of the practical difficulties presented under the law and regulations as they existed at the times relevant to this suit. Under newly promulgated
4. Dissent
The dissent states that we “disregard[] the most salient fact of this case“—that the Casino “may or may not be on Indian lands.” Diss. Op. at 749. It goes on to state that under our approach, “we may never know whether the casino is on Indian lands, and the North County Community Alliance cannot get judicial review to determine whether the casino is properly on Indian lands or not.” Id. It is true that we may never get an authoritative determination of the Indian lands status of the Casino. But it is not true that we disregard the possibility that an Indian casino might be built on non-Indian land. We openly acknowledge that this is a possibility. Nor is it true that under our approach there can never be an authoritative administrative or judicial determination of the Indian lands status of a proposed or newly constructed casino.
Both the NIGC and the States have authority to bring proceedings against Indian gaming facilities located on non-Indian land. Under
We recognize that enforcement or injunctive proceedings by the NIGC or the State are not the same thing as private causes of action brought by an objecting party such as the Alliance. An objecting party may encourage the NIGC or the State to bring such proceedings, but the decision actually to bring a proceeding will be that of the NIGC or the State. For reasons that do not appear in the record, neither the NIGC nor the State has seen fit to bring such a proceeding in this case.
We also recognize that post-construction enforcement or injunctive proceedings against Indian casinos by the NIGC or a State are a less desirable alternative than pre-construction determinations of Indian land status for such casinos. In apparent recognition of this fact, the NIGC has recently promulgated the regulations described above. With the new regulations on the books, it may well turn out that pre-construction determinations by the NIGC of Indian lands status will become the norm for Indian gaming facilities.
The question before us is not whether IGRA and the regulations that existed at the times relevant to this suit were ideally suited to resolving, in a timely fashion, the Indian lands status for proposed tribal casinos. The question, rather, is whether IGRA and the then-governing regulations required the NIGC to make an Indian lands determination in 1993 when it approved the Nooksacks’ proposed non-site-specific Ordinance, or in 2006 before the Nooksacks began construction of the Casino. For the reasons given above, we conclude that the NIGC had no such obligation.
The Alliance claims that NIGC‘s failure to make an Indian lands determination constituted a “major Federal action[ ]” under
Conclusion
We hold that the Alliance‘s claim that the NIGC was required under IGRA to make an Indian lands determination for the parcel on which the Casino is located is not time-barred. We further hold that the NIGC was not required in 1993 to make an Indian lands determination as part of its approval of the Nooksacks’ Ordinance, or in 2006 when the Nooksacks licensed and began construction of the Casino. Finally, we hold that Appellees did not violate NEPA. We therefore affirm the district court‘s dismissal of the Alliance‘s complaint under
AFFIRMED.
GOULD, Circuit Judge, concurring in part, dissenting in part:
I concur in the majority‘s opinion Parts I, II, III A, III B 1, III B 2 A, and III C. But I dissent from the majority‘s conclusions in Part III B 2 B, III B 3, and III B 4 that the NIGC was not required to make an “Indian lands” determination before the casino construction began. I would reverse the district court on this issue. I regret that the majority disregards the most salient fact of this case: The Nooksack Tribe built a casino that may or may not be on Indian lands. The majority acknowledges that we do not know whether it is or not. Maj. op. at 747. Under the majority‘s approach, we may never know whether the casino is on Indian lands, and the North County Community Alliance cannot get judicial review to determine whether the casino is properly on Indian lands or not. Because there has never been an Indian lands determination, it remains unclear if the IGRA applies or if local, state and federal regulations apart from the IGRA regime apply.1
The majority leaves the casino in legal limbo, stating that whether this casino is on Indian lands is a question that will be litigated only if the NIGC or state authorities choose to exercise their prosecutorial discretion. The majority concludes that the IGRA has authorized this limbo, and that there is nothing for our court to do. But in my view Congress could not have intended the majority‘s approach when it enacted the IGRA. Consider this hypothetical set of facts that I hope may be illuminating: If an Indian Tribe, after having received approval on a non-site-specific ordinance, bought land in downtown Seattle, under the majority‘s approach the NIGC would have no duty to stop the tribe from erecting a casino, even if the land clearly did not fall within the statutory definition of Indian lands. See
The majority‘s reliance on the text of a single provision of the statute, without consideration of the surrounding provisions, leads it astray. After considering the IGRA as a whole, I conclude that the majority‘s interpretation of the statute is inconsistent with the statute‘s explicitly stated intent, its stated purpose, and the necessary assumptions underlying other provisions of the statute. See John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95 (1993) (answering a statutory construction question “not by a single sentence or member of a sentence, but looking to the provisions of the whole law, and to its object and policy“) (internal quotation omitted); United Savs. Ass‘n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988) (“Statutory construction ... is a holistic endeavor.“).
The majority‘s holding that the NIGC has no duty to make an Indian lands determination, which would permit Indian tribe gaming to occur anywhere, is contrary to legislative intent and stated purposes. See Reves v. Ernst & Young, 494 U.S. 56, 60-61 (1990) (interpreting the Securities Act in accordance with its purpose). In enacting the IGRA, Congress found there was an absence of “clear standards or regulations for the conduct of gaming on Indian lands” and sought to remedy that absence. See Indian Gaming Regulatory Act, Pub. L. No. 100-497 (codified at
Congress also found that gaming is an important means of generating tribal revenue, promoting tribal self-sufficiency and economic development, and these are “principal goal[s] of Federal Indian policy.”
The court in Erie County held that the NIGC must satisfy its jurisdiction before it approves a general non-site-specific gaming ordinance. Id. I do not think that is necessary for a non-site-specific gaming ordinance. The NIGC must have satisfied its own jurisdiction before it regulates class II or class III gaming under the statute, but the NIGC could choose to do this after it approves a general ordinance and before the Indian tribe issues a site-specific license. The NIGC is best left to determine the appropriate procedural method to carry out its duties. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 524 (1978) (emphasizing that the formulation of procedures is left to the sound discretion of the administrative agency). What is important is that the NIGC make its Indian lands determination before an Indian tribe commences construction on a particular location.2
Finally, the majority‘s interpretation of the statute is inconsistent with the policy and necessary assumptions of several other provisions of the statute. See Timbers of Inwood Forest Assocs., 484 U.S. at 371 (interpreting one section of the Bankruptcy Code to be consistent with the policy of other provisions of the Code); Gade v. Nat‘l Solid Wastes Mgmt. Ass‘n, 505 U.S. 88, 99-102, 112 (1992) (interpreting the Occupational Safety and Health Act to be consistent with the assumptions of other provisions). There can be no question that several provisions of the statute apply exclusively to Indian lands and that these sections presuppose that the NIGC will make an Indian lands determination. The statute defines “Indian lands,”
Looking at the IGRA as a whole, I conclude that Congress conferred upon the NIGC a duty to make an Indian lands determination before construction of a gaming facility can commence. The NIGC, as the agency tasked with implementing the IGRA, has the appropriate powers to decide the manner in which it implements this duty, but it was a duty nonetheless that had to be implemented before construction began at the challenged site, an obligation that the NIGC has shirked in this case. I respectfully dissent and would hold that the NIGC has acted in an arbitrary and capricious manner by not fulfilling that duty.
RONALD M. GOULD
UNITED STATES CIRCUIT JUDGE