YOCHA DEHE WINTUN NATION v. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.
No. 21-5009
United States Court of Appeals, District of Columbia Circuit
Argued May 11, 2021 Decided July 6, 2021
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2021 Decided July 6, 2021
No. 21-5009
YOCHA DEHE WINTUN NATION,
APPELLANT
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
SCOTTS VALLEY BAND OF POMO INDIANS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01544)
Matthew G. Adams argued the cause for appellant. With him on the briefs was Samantha R. Caravello.
Patrick R. Bergin argued the cause for appellee Scotts Valley Band of Pomo Indians. With him on the brief was Tim Hennessy.
Varu Chilakamarri, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief was William B. Lazarus, Attorney.
Before: HENDERSON and ROGERS, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
I.
The Indian Gaming Regulatory Act “allows a federally-recognized Indian tribe to conduct gaming on lands held in trust by the Secretary of the Interior for the tribe’s benefit.” Butte Cnty. v. Chaudhuri, 887 F.3d 501, 503 (D.C. Cir. 2018) (citing
significant historical connection to the land’ at issue.” Butte Cnty., 887 F.3d at 504 (quoting
Yocha Dehe Wintun Nation (“Yocha Dehe”) is a federally recognized Indian tribe “comprised of the descendants of Patwin people native to the Northeastern San Francisco Bay Area and the lower Sacramento River Valley, an area of California that includes . . . Solano and Yolo Counties.” Decl. of Anthony Roberts, Yocha Dehe Chairman ¶ 4. Scotts Valley Band of Pomo Indians (“Scotts Valley”) is also a federally recognized Indian tribe, having regained its Federal recognition in 1991, and most of its members reside in several counties in northern California.
The underlying litigation concerns an Indian Lands Opinion. In January 2016, Scotts Valley requested an opinion from the Interior Department on whether a 128-acre parcel of land in the Solano County City of Vallejo would be eligible for tribal gaming under the restored-lands exception. Yocha Dehe joined others in objecting to the request and submitted materials to
Scotts Valley then filed a complaint in the district court, challenging the Department’s decision under the Administrative Procedure Act. Thereafter, Yocha Dehe filed a motion to intervene as of right or permissively, seeking to defend the Department’s decision alongside the government.
Yocha Dehe explained that it had an interest in preventing Scotts Valley from ultimately developing a casino in the vicinity of the San Francisco Bay Area because it would compete with Yocha Dehe’s gaming facility — the Cache Creek Casino Resort in Yolo County — whose primary market is the Bay Area. Specifically, Yocha Dehe feared an adverse impact on revenues at its Cache Creek gaming facility, which the Tribe uses “to support its government, which funds a variety of programs, and which provides jobs, education, housing and healthcare for [its] citizens.” Roberts Decl. ¶ 4. Additionally, Yocha Dehe maintained, the proposed casino would interfere with its duty (shared with two sister Patwin tribes) to “protect[] sacred sites and cultural resources buried throughout the county of Solano” — the “ancestral territory of the Patwin people” — because “the very site Scotts Valley seeks to develop holds cultural resources affiliated with [Yocha Dehe’s] Patwin ancestors.” Id. ¶ 2.
The district court denied Yocha Dehe’s motion to intervene. Scotts Valley Band of Pomo Indians v. U.S. Dep’t of the Interior, 337 F.R.D. 19, 21 (D.D.C. 2020). It concluded that injuries from a potential future competitor casino that has yet to be approved or developed are neither “imminent” nor “certainly impending.” Id. at 24–25 (internal quotation marks omitted). Similarly, the court concluded that there was an insufficient causal link between the alleged threatened injuries and the challenged agency action, given various other steps that Scotts Valley would need to successfully complete before it might operate a casino if the Department’s restored lands determination were reversed or remanded as a result of this litigation. See id. at 25. The district court further ruled that even if Yocha Dehe had standing, it had not made the required showing under Rule 24(a) of the Federal Rules of Civil Procedure to intervene as of right because resolution of the case would not “as a practical matter impair or impede” its ability to
protect its interests. Id. at 26–27;
Yocha Dehe filed a notice of appeal and an emergency motion for a stay pending appeal. This court ordered the federal appellees to file a response and a merits brief. On March 4, 2021, this court granted a stay pending appeal.
II.
On appeal, Yocha Dehe contends that the district court erred in ruling that
Rule 24(a) of the Federal Rules of Civil Procedure governs intervention as of right. It provides, as relevant:
On timely motion, the [district] court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
In seeking reversal, Yocha Dehe relies principally on Crossroads Grassroots Policy Strategies v. Federal Election Commission, 788 F.3d 312 (D.C. Cir. 2015). There, this court explained that “[o]ur cases have generally found a sufficient injury in fact where a party benefits from agency action, the action is then challenged in court, and an unfavorable decision would remove the party’s benefit.” Id. at 317. Applying that rationale, the court held that Crossroads, as “the beneficiary of a favorable decision by the Federal Election Commission [(FEC)],” had standing to intervene in a lawsuit challenging the Commission’s denial of an administrative complaint against Crossroads for alleged violations of the Federal Election Campaign Act. Id. at 314–19. The court reasoned:
Crossroads currently claims a significant benefit from the FEC’s dismissal order. As long as it is in place, Crossroads faces no further exposure to enforcement proceedings before the FEC related to the complaint, nor is it exposed to civil liability via private lawsuit. Losing the favorable order would be a significant injury in fact.
Id. at 318 (internal citation omitted). In view of the nature of Crossroads’ injury, the court explained that causation and redressability “rationally follow[].” Id. at 316.
Yocha Dehe maintains that it has standing to intervene because it is injured in the same way as Crossroads inasmuch as it benefits from the Department’s Indian Lands Opinion, which has been judicially challenged, and an unfavorable decision would eliminate that benefit. Yocha Dehe describes the benefit it derives from the Indian Lands Opinion as a shield against harm to its “governmental, cultural, and economic interests.” Appellant’s Br. 15. But the circumstances of Crossroads are not present, and neither Crossroads nor the opinions on which this court relied there and Yocha Dehe relies here offers sufficient support for an extension of Crossroads to these circumstances.
In Crossroads, the FEC’s action shielded Crossroads from “potential direct regulation” through FEC enforcement proceedings and “further litigation and liability.” 788 F.3d at 318. With the FEC order in place, the court observed, “Crossroads faces no further exposure to enforcement proceedings before the FEC related to the complaint, nor is it exposed to civil liability via private lawsuit.” Id. And “the ‘threatened
Admittedly, that Crossroads was a directly regulated party — and therefore benefitted directly from the FEC’s action — was not necessary to the court’s conclusion on standing. In Fund For Animals v. Norton, on which the court in Crossroads and Yocha Dehe rely, the agency action involved listing the argali sheep as “threatened” rather than “endangered” in Mongolia among other countries and issuing “permits for sport hunters to import killed argali . . . into the United States as ‘trophies.’” Fund For Animals, 322 F.3d at 730. The agency action thereby indirectly benefitted the potential intervenor, the Natural Resources Department of the Ministry of Nature and
Environment of Mongolia. See id. at 733; Crossroads, 788 F.3d at 318. But the court explained that “while the [Natural Resources Department] is not itself the object of the challenged agency action, sheep that Mongolia regards as its national property and natural resource plainly are its subject.” Fund For Animals, 322 F.3d at 734. The court then held that the threatened harm — loss of “tourist dollars associated with sheep hunting and a consequent reduction in funding for [Mongolia’s] conservation program,” Crossroads, 788 F.3d at 317 — constituted an imminent injury. Fund For Animals, 322 F.3d at 733. Further, in Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), on which the court in Crossroads and Yocha Dehe also rely, “all parties agree[d]” that the potential intervenor association had standing because some of its members were directly subject to the challenged rule. Id. at 954. Imminence was therefore a non-issue.
Here, by contrast, neither Yocha Dehe nor its property is the direct subject of the Indian Lands Opinion. Additionally, that opinion is too many steps removed from Yocha Dehe’s claimed threat of future harm from Scotts Valley’s casino project for that harm to be imminent. On the latter point, if a restored tribe succeeds in securing a favorable Indian Lands Opinion, there are several requirements that must be met before that tribe may lawfully operate a gaming facility on the approved parcel of land. First, the tribe must successfully apply to the Department for the parcel to be taken into trust. See generally
(d)(8). Additionally, the tribe must obtain federal approval of a tribal gaming ordinance, and, if the tribe decides to outsource management of the facility, federal approval of a management contract. See
Together, the indirect relationship between Yocha Dehe and the Indian Lands Opinion and the as-yet remote nature of any harm to Yocha Dehe from a Scotts Valley casino, take Yocha Dehe’s asserted injury outside the scope of Crossroads and the opinions upon which it relied. As the court recognized in Crossroads, and contrary to Yocha Dehe’s characterization of Crossroads’s holding, not every “party seeking to uphold a favorable ruling . . . suffer[s] a concrete injury in fact.” 788 F.3d at 318. Yocha Dehe does not. Because Yocha Dehe does not currently satisfy the
Accordingly, we affirm the judgment of the district court and do not reach Rule 24(a)(2)’s requirements or permissive intervention. See Defs. of Wildlife, 714 F.3d at 1323, 1327.