United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2011 Decided May 6, 2011
No. 10-5240
AMADOR COUNTY, CALIFORNIA,
APPELLANT
v.
KENNETH LEE SALAZAR, SECRETARY, UNITED STATES
DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00658)
Dennis J. Whittlesey argued the cause and filed the briefs
for appellant.
Katherine W. Hazard, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
was Kathryn E. Kovacs, Attorney. Susan L. Pacholski,
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney,
entered appearances.
Mark C. Tilden and Padraic McCoy were on the briefs of
amicus curiae Buena Vista Rancheria of Me-Wuk Indians in
support of appellees.
2
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Pursuant to the Indian Gaming
Regulatory Act, the Buena Vista Rancheria of Me-Wuk
Indians entered into a compact with the state of California to
engage in gaming on its tribal land and then petitioned the
Secretary of the Interior for approval of that compact. Under
the Act, “[i]f the Secretary does not approve or disapprove a
compact . . . [within] 45 days . . . the compact shall be
considered to have been approved by the Secretary, but only
to the extent the compact is consistent with the provisions of”
the Act. 25 U.S.C. § 2710(d)(8)(C). In this case, the Secretary
took no action within forty-five days, thus allowing the
compact to become effective. Amador County, in which the
Buena Vista Tribe’s land is located, challenged the
Secretary’s “no-action” approval, claiming that the land fails
to qualify as “Indian Land”—a statutory requirement for
gaming. Although the district court rejected the Secretary’s
argument that Amador County lacked standing, it dismissed
the suit, finding the Secretary’s inaction unreviewable under
several provisions of the Administrative Procedure Act.
Amador County now appeals. We agree with the district court
that the County has standing, but because we conclude that
the Secretary’s inaction is in fact reviewable, we reverse and
remand for the district court to consider the merits in the first
instance.
I.
Since at least 1817, the Buena Vista Rancheria of Me-
Wuk Indians of California (the “Tribe”) has been located in
the vicinity of what is now Amador County, about forty miles
southeast of Sacramento. In 1927, pursuant to a series of
3
appropriations bills intended to fund the purchase of land for
“Indians in California now residing on reservations which do
not contain land suitable for cultivations, and for Indians who
are not now upon reservations in said State,” the United States
purchased 67.5 acres of land in the County and held it in trust
for the Tribe’s use. Act of June 21, 1906, ch. 3504, 34 Stat.
325, 333; Act of April 30, 1908, ch. 153, 35 Stat. 70, 76; Act
of Aug. 1, 1914, ch. 222, 38 Stat. 582, 589. The current status
of that land (the “Rancheria”) is the central issue in this case.
In 1958, in keeping with the then-popular policy of
assimilating Native Americans into American society,
Congress enacted the California Rancheria Act, which
authorized the Secretary to terminate the federal trust
relationship with several California tribes, including the Me-
Wuk Tribe, and to transfer tribal lands from federal trust
ownership to individual fee ownership. Act of Aug. 18, 1958,
Pub. L. No. 85-671, 72 Stat. 619. Pursuant to that statute, title
to the Rancheria was transferred to two tribe members, Louis
and Annie Oliver, as joint tenants. Some twenty years later,
however, other members of the Tribe joined with members of
sixteen other California Rancherias and filed a class action
lawsuit to undo the effects of the California Rancheria Act.
Specifically, they sought an injunction requiring the Secretary
to “ ‘unterminate’ each of the subject Rancherias” and to
“treat all of the subject Rancherias as Indian reservations in
all respects[.]” Complaint at 27, Hardwick v. United States,
No. C-79-1710 (N.D. Cal. 1979) (quoted in Letter from Penny
J. Coleman, National Indian Gaming Commission Acting
General Counsel, to Judith Kammins Albietz, Tribal Attorney,
at 3 (June 30, 2005) (included at J.A. 17) [hereinafter “Indian
Lands Determination”] (alteration in original)).
The lawsuit ended in a settlement between the tribes and
the federal government and, subsequently, in a series of
4
separate stipulated judgments between the individual tribes
and the counties in which the tribes’ land lay. In the first
settlement, the Secretary agreed to restore “any of the benefits
or services provided or performed by the United States for
Indians because of their status as Indians” and to “recognize
the Indian Tribes, Bands, Communities or groups of the
seventeen rancherias . . . as Indian entities with the same
status as they possessed prior to distribution of the assets of
these Rancherias under the California Rancheria Act.”
Stipulation and Order, Hardwick v. United States, No. C-79-
1710 (Dec. 22, 1983) (quoted in Indian Lands Determination,
at 4 (included at J.A 17-18)). In the stipulated judgment
between Amador County and the Tribe (the “Hardwick
Judgment”), the parties settled a number of issues related to
the levy of property taxes, and the County agreed to the
following terms:
[1] The plaintiff Rancheria and the
Plaintiffs were never and are not now lawfully
terminated under the California Rancheria
Act . . .
[2] The original boundaries of the plaintiff
Rancheria . . . are hereby restored, and all land
within these restored boundaries of the plaintiff
Rancheria is declared “Indian Country.”
[3] The plaintiff Rancheria shall be treated
by the County of Amador and the United States
of America, as any other federally recognized
Indian Reservation, and all of the laws of the
United States that pertain to federally
recognized Indian Tribes and Indians shall apply
to the Plaintiff Rancheria and the Plaintiffs.
Stipulation for Entry of Judgment, Hardwick v. United States,
No. C-79-1710, at 4 (Apr. 21, 1987) (included at J.A. 51).
5
In the late 1990s, the Tribe began planning a gaming
operation and initiated the process of acquiring requisite state
and federal approval pursuant to the Indian Gaming
Regulatory Act (IGRA). Enacted in 1988, IGRA created a
regulatory framework for tribal gaming intended to balance
state, federal, and tribal interests. See 25 U.S.C. §§ 2701,
2702. The Act divides gaming into three classes, only one of
which—Class III, which includes most casino games such as
blackjack and roulette as well as slot machines—is at issue in
this case. See id. § 2703(8). Before commencing Class III
gaming, a tribe must satisfy three conditions. First, the
gaming must be authorized by a tribal ordinance or resolution
that has been approved by the National Indian Gaming
Commission, a regulatory body created by IGRA with
rulemaking and enforcement authority. Id. § 2710(d)(1)(A),
(2)(C). Second, the Indian lands where the gaming will take
place must be located within a state that permits gaming “for
any purpose by any person, organization, or entity.” Id. §
2710(d)(1)(B). And third, the gaming must be conducted in
conformance with a tribal-state compact that has been
approved by the Secretary. Id. § 2710(d)(1)(C). In addition,
and critical to this case, IGRA provides for gaming only on
“Indian lands.” Id. § 2710(d)(1) (“Class III gaming activities
shall be lawful on Indian Lands . . . .” (emphasis added)).
Once a tribe has submitted a tribal-state compact for
approval, the Secretary has three choices. He may approve the
compact, id. § 2710(d)(8)(A); he may disapprove the
compact, but only if it violates IGRA or other federal law or
trust obligations, id. § 2710(d)(8)(B); or he may choose to do
nothing, in which case the compact is deemed approved after
forty-five days “but only to the extent the compact is
consistent with the provisions” of IGRA, id. § 2710(d)(8)(C).
The compact takes effect once the Secretary publishes notice
6
of approval in the Federal Register. Id. § 2710(d)(8)(D),
(3)(B).
In 1999, the Me-Wuk Tribe completed an initial round of
negotiations with the State of California, and shortly
thereafter the Secretary approved the resulting compact. In
2004, the Tribe began a second round of negotiations to
amend the compact in order to provide for “expanded gaming
at a prospective casino.” Appellees’ Br. 15. The compact
amendment also expanded revenue sharing between the Tribe
and the State and directed the Tribe to make arrangements
with Amador County to mitigate any potential impacts on the
County. When the Tribe submitted the compact amendment to
the Secretary, he chose to do nothing, meaning that pursuant
to subsection (d)(8)(C) the amendment was deemed approved
after forty-five days. The Secretary published a notice of
approval in the Federal Register on December 20, 2004. 69
Fed. Reg. 76,004.
Amador County then sued the Secretary in the United
States District Court for the District of Columbia, alleging
that the Rancheria fails to satisfy IGRA’s “Indian lands”
requirement. The County sought declaratory and injunctive
relief including an order requiring the Secretary to withdraw
approval and affirmatively reject the compact. Although the
County also alleged that the Secretary’s approval was void ab
initio due to a technicality in California law, First Amended
Complaint ¶¶ 57–60, it does not press this argument on
appeal.
The Secretary moved to dismiss under Federal Rule of
Civil Procedure 12(b)(1), alleging that Amador County lacked
standing, and under Rule 12(b)(6), alleging that the “claims
[were] not subject to review under the Administrative
Procedure Act [APA].” Although the district court found that
7
Amador County had standing, it dismissed the complaint,
agreeing with the Secretary that the approval via inaction was
unreviewable for several reasons. Amador Cty., Cal. v.
Kempthorne, 592 F. Supp. 2d 101 (D.D.C. 2009). First,
believing that the statute imposes no limit on the Secretary’s
authority to approve a compact and thus “lacks a standard to
guide judicial review of the Secretary’s decision,” the court
concluded that the “decision is committed to agency
discretion.” Id. at 106; 5 U.S.C. § 701(a)(1). Second, the court
held that the statute precludes judicial review of approval by
inaction because Congress had “limited the Secretary’s
approval by inaction to apply only to those portions of a
compact that are lawful under the statute . . . . Thus, the
Secretary’s approval by inaction can never violate the
statute.” Amador Cty., 592 F. Supp. 2d at 107; 5 U.S.C. §
701(a)(2).
Arguing that the district court erred in finding no-action
approvals unreviewable, Amador County now appeals. The
Secretary continues to challenge the County’s standing. We
review both the standing determination and the Rule 12(b)(6)
dismissal de novo. Affum v. United States, 566 F.3d 1150,
1158 (D.C. Cir. 2009) (“We review de novo the District
Court’s decision on standing.”); Holy Land Found. for Relief
& Dev. v. Ashcroft, 333 F.3d 156, 161–62 (D.C. Cir. 2003)
(“We review the district court’s dismissal for failure to state a
claim under Rule 12(b)(6) de novo.”).
II.
We begin with the Secretary’s argument that Amador
County lacks constitutional standing to maintain this suit. In
Lujan v. Defenders of Wildlife, the Supreme Court described
the elements of the three-part constitutional standing test—
injury in fact, causation, and redressability—and explained
that to establish injury a plaintiff must demonstrate that he has
8
a “legally protected interest.” 504 U.S. 555, 560 (1992).
According to the Secretary, because Amador County agreed
to the Hardwick Judgment, in which it promised to treat the
Rancheria as Indian land, the County has no legally
cognizable interest in the land being treated as anything other
than that. We disagree. Amador County may well be bound
by the Hardwick Judgment, in which case it will lose on the
merits, but for the purposes of standing, “we assume the
merits” in favor of the plaintiff. Parker v. District of
Columbia, 478 F.3d 370, 377–78 (D.C. Cir. 2007) (holding
that whether the plaintiff actually had a Second Amendment
right to bear arms was irrelevant to whether he had standing
to challenge a law impeding that right). Indeed, interpreting
Lujan, which involved a challenge under the Endangered
Species Act, we explained that the Supreme Court had
considered only whether “plaintiffs had a ‘cognizable interest’
in observing animal species without considering whether the
plaintiffs had a legal right to do so.” Id. (citing Lujan, 502
U.S. at 562–63). Accordingly, in order to establish injury in
fact, Amador County need demonstrate only that it will be
injured by the planned gaming and thus has a cognizable
interest in prohibiting it. To this end, the County has alleged,
among other things, that the planned gaming would increase
the County’s infrastructure costs and impact the character of
the community. First Amended Complaint ¶¶ 26–27. The
district court accepted these allegations as true, as must we,
see Jenkins v. McKeithen, 395 U.S. 411, 421–22 (1969), and
the Secretary nowhere challenges them on appeal. We agree
with the district court that the County’s allegations are more
than sufficient to establish “concrete and particularized”
harm. Lujan, 504 U.S. at 560.
The County also easily satisfies the requirements of
causation and redressability. Because the Tribe may proceed
with gaming only with secretarial approval of the compact,
9
there is a direct causal connection between the Secretary’s no-
action approval and the alleged harm. The injury is also
redressable because if the County succeeds on the merits and
obtains a declaration that the Rancheria does not qualify as
Indian land, the Secretary would have to reject the compact.
See id. at 560–61 (describing causation and redressability
requirements); see also Patchak v. Salazar, 632 F.3d 702, 704
(D.C. Cir. 2011) (finding all Article III standing requirements
met in a challenge by a neighboring landowner to the
Secretary’s decision to take tribal land into trust, thereby
allowing the tribe to proceed with plans to construct a
gambling facility); Lac Du Flambeau Band of Lake Superior
Chippewa Indians v. Norton, 422 F.3d 490, 495–502 (7th Cir.
2005) (holding that plaintiffs, another tribe also challenging
approval by inaction, had satisfied Article III standing
requirements).
We next address the Secretary’s argument that the
County fails to satisfy the requirements of prudential standing
because it falls outside “the zone of interests to be protected”
by IGRA. See Ass’n of Data Processing Serv. Orgs. v. Camp,
397 U.S. 150, 153 (1970). Considering circumstances similar
to this case, we recently reiterated in Patchak v. Salazar the
oft-repeated rule that the zone-of-interests test is “not
especially demanding.” Patchak, 632 F.3d at 705 (internal
quotation marks omitted). In that case, a neighboring private
landowner argued that the Secretary’s decision to take land
into trust, thus making it eligible for gaming under IGRA, had
violated another statute—the Indian Reorganization Act.
Reasoning that because the latter statute imposes a limit on
the Secretary’s trust authority, we held that “[w]hen that
limitation blocks Indian gaming, as [the litigant] claim[ed] it
should have . . . , the interests of those in the surrounding
community—or at least those who would suffer from living
near a gambling operation—are arguably protected. And
10
because of their interests, they are proper parties to enforce
the [Act’s] restrictions.” Id. at 706. So too here. Those in the
surrounding community who are impacted by gambling fall
within IGRA’s zone of interest. Accordingly, the County,
whose alleged injury flows from its proximity to the gambling
operation, is “arguably protected” and is thus a proper party to
enforce the limitations IGRA imposes on the Secretary.
The Secretary nonetheless insists that the concerns of the
County, a political subdivision of the State, fall outside
IGRA’s zone of interest because the statute directly protects
only states and tribes. According to the Secretary, the
County’s interests have been fully protected by its
participation in the political process through which the
compact was formed, and it would be “inconsistent with the
purpose of IGRA to allow a political subdivision of the State,
through an action in federal court, to invalidate the agreement
negotiated by the State and Tribe.” Appellees’ Br. 34. The
Secretary points out that in prior cases, including Patchak,
where we have allowed community groups and neighbors to
sue under IGRA, those groups were challenging the
Secretary’s decision to take land into trust rather than the
Secretary’s approval of a tribal-state compact. A suit in the
latter situation is, the Secretary argues, essentially a challenge
to an action of the State. Again, we disagree. In both
instances, the Secretary has independent obligations imposed
by federal law, and the County, just like other community
groups and residents, is affected by whether or not the
Secretary fulfills those obligations. For this particular
purpose—enforcing the obligations of the Secretary—we see
no good reason to treat Amador County differently from any
other neighbor of a planned gaming facility.
11
III.
Relying on three separate provisions of the APA, the
Secretary contends that where a compact is deemed approved
because he failed to act within the forty-five day limit, the
approval is unreviewable. In particular, the Secretary relies on
(1) section 701(a)(1), prohibiting review where it is otherwise
barred by statute; (2) section 701(a)(2), barring review of
agency actions “committed to agency discretion”; and (3)
section 704, allowing review only of “agency action.” We
consider each argument in light of “the strong presumption
that Congress intends judicial review of administrative
action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S.
667, 670 (1986). Accordingly, each category of non-
reviewability must be construed narrowly. See Abbott Labs. v.
Gardner, 387 U.S. 136, 141 (1967).
We start with the Secretary’s argument that IGRA
precludes judicial review because it, unlike either the “final
agency action” requirement or the “committed to agency
discretion” limitation, is jurisdictional. Compare Block v.
Cmty. Nutrition Inst., 467 U.S. 340, 353 n.4 (1984)
(“[C]ongressional preclusion of judicial review is in effect
jurisdictional.”), and Assoc. of Civilian Technicians, Inc. v.
Fed. Labor Relations Auth., 283 F.3d 339, 341 (D.C. Cir.
2002) (treating a statutory limitation on judicial review as
jurisdictional), with Oryszak v. Sullivan, 576 F.3d 522, 524–
26 (D.C. Cir. 2009) (clarifying that the committed to agency
discretion limitation and the final agency action requirement
are “not . . . jurisdictional bar[s]”). To overcome the strong
presumption that Congress intends agency action to be
reviewable, we must find “clear and convincing evidence of a
contrary legislative intent.” Bowen, 476 U.S. at 671–72
(internal quotation marks omitted). Absent an express
statutory prohibition on judicial review, courts have been
extremely hesitant to find such a bar. See id. at 673 & n.4.
12
The district court concluded that subsection (d)(8)(C)
precludes judicial review because it creates an alternate
mechanism to ensure compliance with the law. In other
words, by that provision’s plain language—that compacts are
deemed approved “only to the extent the compact is
consistent with the provisions of [IGRA]”—only legal
compact terms go into effect, meaning that, according to the
district court, compacts approved by inaction must be legal.
Amador Cty., 592 F. Supp. 2d at 107 (“[T]he Secretary’s
approval of a compact by inaction can never violate the
statute.”). But nothing in subsection (d)(8)(C) actually creates
an alternative mechanism for compliance with the law. To be
sure, it provides that only lawful compacts can become
effective, but someone—i.e., the courts—must decide whether
those provisions are in fact lawful. Cf. Lac Du Flambeau
Band of Lake Superior Chippewa Indians, 422 F.3d at 501
(explaining that 42 U.S.C. § 2710(d)(8)(C) only prevents
“offending provisions from becoming effective in some
academic sense”). Indeed, as we explain below, subsection
(d)(8)(C)’s caveat invites judicial review by setting out a clear
standard for reviewing courts to apply.
Having concluded that no “intent to preclude judicial
review is fairly discernible in the statutory scheme,” Block,
467 U.S. at 351 (internal quotation marks omitted), and thus
that we have jurisdiction, we turn to the Secretary’s argument
that compact approval by inaction is unreviewable because
approval is “committed to agency discretion.” 5 U.S.C.
§ 701(a)(2). In Citizens to Preserve Overton Park v. Volpe,
the Supreme Court explained that this is “a very narrow
exception” to judicial review that should be invoked only
where there is “no law to apply.” 401 U.S. 402, 410 (1971).
For our part, we have observed that “section 701(a)(2)
encodes the principle that an agency cannot abuse its
discretion, and thus violate section 706(2)(A), where its
13
governing statute confers such broad discretion as to
essentially rule out the possibility of abuse.” Drake v. FAA,
291 F.3d 59, 70 (D.C. Cir. 2002). According to the Secretary,
this is just such a case given that IGRA does not require
disapproval. In support, the Secretary points out that under the
statute he “may disapprove a compact . . . only if such
compact violates—(i) any provision of this chapter, (ii) any
other provision of Federal law . . . , or (iii) the trust
obligations of the United States to Indians.” 25 U.S.C.
§ 2710(d)(8)(B) (emphasis added). Because Congress used
“may” instead of “shall,” the Secretary argues, he is never
obligated to disapprove a compact and thus approval—either
affirmative approval pursuant to subsection (d)(8)(A) or, by
extension, no-action approval pursuant to subsection
(d)(8)(C)—falls solely within his discretion.
We rejected a similar argument in Dickson v. Secretary of
Defense, 68 F.3d 1396 (D.C. Cir. 1995). There, we considered
whether a statute directing that the Army Board for
Correction of Military Records “may excuse a failure to file
[if it is in] the interest of justice” committed the decision to
agency discretion. Id. at 1399. We found it implausible that
Congress intended “may” to confer such complete discretion
because taking that argument to its extreme would mean that
“even if the Board expressly found in a particular case that it
was in ‘the interest of justice’ to grant a waiver, it could still
decline to do so.” Id. at 1402 & n.7 (citing two other cases in
which courts, relying on statutory context, have read “may” to
mean “shall”). Following this reasoning, we believe that
subsection (d)(8)(B)’s use of “may” is best read to limit the
circumstances in which disapproval is allowed. The Secretary
must, however, disapprove a compact if it would violate any
of the three limitations in that subsection, and those
limitations provide the “law to apply.” In any event, as the
County points out, even if disapproval were otherwise
14
discretionary, subsection (d)(8)(A) authorizes approval only
of compacts “governing gaming on Indian lands,” suggesting
that disapproval is obligatory where that particular
requirement is unsatisfied.
Moreover, subsection (d)(8)(C), which governs approval
by inaction, includes no exemption from this obligation to
disapprove illegal compacts. Like subsection (d)(8)(B)’s list
of conditions that require disapproval, subsection (d)(8)(C)’s
caveat—that the compact is deemed approved “but only to the
extent the compact is consistent with the provisions of
[IGRA]”—provides “law to apply.” And just as the Secretary
has no authority to affirmatively approve a compact that
violates any of subsection (d)(8)(B)’s criteria for disapproval,
he may not allow a compact that violates subsection
(d)(8)(C)’s caveat to go into effect by operation of law.
The Secretary nonetheless presses this argument,
claiming to find support for it in subsection (d)(8)(C)’s forty-
five-day time frame. That short time period, the Secretary
insists, suggests that Congress was concerned that the
Secretary would act too slowly, and thus “Congress’s intent
was not to embroil the Secretary in lengthy investigations into
whether the compact violated federal law, IGRA, or trust
obligations.” Appellees’ Br. 45. While this may be correct as
to compliance with other federal law and trust obligations, the
caveat demonstrates that Congress had no intention of trading
compliance with IGRA’s requirements for efficiency in
agency proceedings.
Lastly, the Secretary claims to draw support from
sections 2710(d)(7)(A) and 2714, which provide for judicial
review of National Indian Gaming Commission decisions.
According to the Secretary, these provisions protect his
discretion by insulating his decisions from review. It is well
15
established, however, that the existence of a judicial review
provision covering certain actions under a statute does not
preclude judicial review of other actions under the same
statute. See Bennett v. Spear, 520 U.S. 154, 175 (1997).
Moving on to the Secretary’s contention that the APA’s
agency action requirement, 5 U.S.C. § 704, is unsatisfied here
because approval came via inaction, we begin by pointing out
that the APA defines “agency action” as including “failure to
act.” 5 U.S.C. § 551(13). Of course, as the Secretary reminds
us, the Supreme Court held in Norton v. Southern Utah
Wilderness Alliance (“SUWA”) that inaction qualifies as
“failure to act” only where it is “discrete.” 542 U.S. 55, 62–64
(2004). For example, although plaintiffs may challenge an
agency’s failure to promulgate a rule, they may not raise a
“broad programmatic attack,” such as the challenge to
Interior’s failure to manage off-road vehicle use in federal
wilderness study areas brought in SUWA itself. Id. at 63–64.
Arguing that his approval of the Me-Wuk compact
through inaction fails this discreteness requirement, the
Secretary relies on Sprint Nextel Corp. v. FCC, 508 F.3d 1129
(D.C. Cir. 2007), in which we considered the reviewability of
an approval by operation of law under the
Telecommunications Act of 1996. Pursuant to that Act,
regulated parties may petition the FCC “to refrain—to
forbear—from applying several regulatory requirements.” Id.
at 1131. The FCC may grant the petition if certain
requirements are met; it may deny the petition; or, if it fails to
act within a certain time period, the petition is “deemed
granted.” 47 U.S.C. § 160(c). In Sprint Nextel, the FCC failed
to act in response to a forbearance petition, and we found no
agency action to review because the FCC had “not engage[d]
in any ‘circumscribed, discrete’ act.” Sprint Nextel Corp., 508
F.3d at 1131 (quoting SUWA, 542 U.S. at 62).
16
Although IGRA, like the Telecommunications Act,
allows requests to be granted by operation of law, we see an
essential difference, namely, subsection (d)(8)(C)’s caveat
that compacts deemed approved through secretarial inaction
become effective “only to the extent the compact is consistent
with the provisions of [IGRA.]” The Telecommunications Act
contains no parallel provision. In other words, in enacting the
Telecommunications Act, Congress provided that if the FCC
failed to act, a forbearance request would be granted by
operation of law without limitation. By contrast, in enacting
subsection (d)(8)(C), Congress limited the extent to which a
compact could be approved by operation of law, thus
imposing an obligation on the Secretary to affirmatively
disapprove any compact exceeding that limit. Accordingly,
where, as here, the plaintiff challenges a compact on the
grounds that it conflicts with another provision of IGRA, we
have a discrete agency inaction to review—the Secretary’s
failure to disapprove the compact despite its inconsistency
with the Act.
Sprint Nextel is distinguishable for another reason. In that
case, we emphasized that “in administrative law, we do not
sustain a right-result, wrong-reason decision of an agency,”
and, therefore, we need “more than a result; we need the
agency’s reasoning for that result.” 508 F.3d at 1132–33
(internal quotation marks and alterations omitted). Because
the FCC commissioners had dead-locked, none of their
statements constituted the agency’s reasoning for taking no
action on the forbearance request. Accordingly, unable to
determine if the outcome was justified, we declined to review
it. Id. In this case, however, Amador County alleges not that
the Secretary’s decision was unreasoned but that his decision
was “contrary to law.” Appellant’s Reply Br. 18. Because of
the nature of this particular challenge, we need no agency
reasoning. Either the compact meets the requirements of
17
IGRA, in which case we must reject the challenge, or it does
not, in which case we must direct the Secretary to disapprove
the compact.
Finally, relying again on SUWA, in which, in addition to
imposing a discreteness requirement, the Supreme Court held
that courts may compel agency action only where that action
was “legally required,” the Secretary argues that his inaction
is unreviewable because action (either by approving or by
disapproving the compact) “is not demanded by law.” SUWA,
542 U.S. at 63–65. According to the County, whether or not
the Secretary had an obligation to act is irrelevant because the
Supreme Court drew this requirement from 5 U.S.C. § 706(1)
(allowing courts to “compel agency action unlawfully
withheld or unreasonably delayed”), not from the provision at
issue in this case, 5 U.S.C. § 706(2)(A) (allowing courts to
“hold unlawful . . . agency action . . . found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law”). Because we have already found this
second SUWA requirement satisfied in this case, see supra
12–14 (holding that IGRA imposes duty to disapprove where
subsection (d)(8)(C)’s caveat is violated), we need not
consider whether the obligatory action requirement relates
only to section 706(1).
To sum up, then, we hold that where, as here, a plaintiff
alleges that a compact violates IGRA, thus requiring the
Secretary to disapprove the compact, nothing in the APA
precludes judicial review of a subsection (d)(8)(C) no-action
approval.
IV.
Having found that Amador County has standing and that
the Secretary’s approval by inaction is reviewable, we turn to
the merits. The parties agree both that the sole question at
18
issue is whether the Rancheria qualifies as “Indian land” and
that, if it does, the Secretary had authority to approve the
compact. IGRA defines “Indian land” as
[1] all lands within the limits of any Indian
reservation; and
[2] any lands title to which is either held in
trust by the United States for the benefit of any
Indian tribe or individual or held by any Indian
tribe or individual subject to restriction by the
United States against alienation and over which
an Indian tribe exercises governmental power.
25 U.S.C. § 2703(4). As to subparagraph 2, nothing in either
the record or the briefs forecloses the possibility that the land
is held subject to restrictions on alienation, nor do we do so
here. But because the parties agree that the Rancheria is
owned in fee by the Tribe rather than held in trust by the
United States, it appears that the land can qualify as “Indian
land” only if it is an “Indian Reservation”—a question that
turns, and again the parties agree about this, on the effect the
Hardwick Judgment had on the California Rancheria Act.
As noted above, although the California Rancheria Act
stripped the land of its reservation status, the County agreed
in the Hardwick Judgment that the “plaintiff Rancheria and
the Plaintiffs were never and are not now lawfully terminated
under the California Rancheria Act,” that the “original
boundaries of the plaintiff Rancheria . . . are hereby restored,”
that all the land within these restored boundaries of the
plaintiff Rancheria is declared “Indian Country,” that the
“plaintiff Rancheria shall be treated by the County of Amador
and the United States of America, as any other federally
recognized Indian Reservation, and [that] all of the laws of
the United States that pertain to federally recognized Indian
19
Tribes and Indians shall apply to the Plaintiff Rancheria and
the Plaintiffs.” Stipulation for Entry of Judgment, Hardwick v.
United States, No. C-79-1710, at 4 (Apr. 21, 1987) (included
at J.A. 51). These provisions, the Secretary argues,
preclusively establish that the Rancheria qualifies as “Indian
land.” Disagreeing, the County contends that these sweeping
provisions must “be construed and interpreted in light of the
issue[] being litigated”—“the County’s ability to assess
property taxes on the former Rancheria lands.” Appellant’s
Reply Br. 8, 16. The Hardwick Judgment, the County insists,
is therefore “of no consequence in the context of this litigation
challenging the Secretary’s approval of the [compact].” Id. at
8–9.
Generally, “when an issue of fact or law is actually
litigated and determined by a valid and final judgment, and
the determination is essential to the judgment, the
determination is conclusive in a subsequent action . . .
whether on the same or a different claim.” Restatement
(Second) of Judgments § 27; see also Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992). Here, of
course, we have a stipulated judgment, and issues dealt with
in such judgments are not “actually litigated” for the purpose
of issue preclusion. Otherson v. Dep’t of Justice, INS, 711
F.2d 267, 274 (D.C. Cir. 1983). Nonetheless, “[p]reclusion is
appropriate when the stipulation clearly manifests the parties’
intent to be bound in future actions.” Id. at 274 n.6; see also
Restatement (Second) of Judgments § 27, cmt. e; Charles
Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 4443, n.36 (citing numerous cases supporting
this proposition). Accordingly, “the scope of preclusion by
settlement arises from contract,” and we “measur[e] intent by
ordinary contract principles.” Wright & Miller, Federal
Practice & Procedure § 4443, n.21; see also Otherson, 711
F.2d at 274 n.6.
20
Having dispensed with this case on APA grounds, the
district court never considered the scope of the County’s
intent to be bound by the Hardwick Judgment. Because intent
is a question of fact that may turn not only on the language of
the agreement, but also on extrinsic evidence not yet in the
record, we shall, as the parties request, remand to give the
district court an opportunity to assess the merits in the first
instance.
V.
For the foregoing reasons, we reverse and remand for
further proceedings consistent with this opinion.
So ordered.