FILED
NOT FOR PUBLICATION JAN 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF AMADOR COUNTY; BEA No. 11-17996
CRABTREE; JUNE GEARY,
D.C. No. 2:10-cv-00348-WBS-
Plaintiffs - Appellants, CKD
v.
MEMORANDUM*
KENNETH SALAZAR, Secretary of the
United States Department of the Interior;
NATIONAL INDIAN GAMING
COMMISSION; GEORGE SKIBINE,
Acting Chairman of the National Indian
Gaming Commission,
Defendants - Appellees,
and
BUENA VISTA RANCHERIA OF THE
ME-WUK INDIANS,
Movant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted January 15, 2014
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
Appellants Friends of Amador County, Bea Crabtree, and June Geary appeal
the district court’s dismissal of their action pursuant to Federal Rule of Civil
Procedure (“Rule”) 19 and its denial of their subsequent “Motion to Vacate
Judgment or Order Dismissing Plaintiff’s Complaint.”1 They filed suit against the
State of California, the Governor of California, the U.S. Department of the Interior
(“DOI”), the Secretary of the Interior, the National Indian Gaming Commission
(“NIGC”), and the Acting Chairman of the NIGC. They raise several challenges
relating to the Buena Vista Rancheria of Me-Wuk Indians’ (“Tribe”) gaming
compact with California. Specifically, they allege that (1) the DOI erroneously
deemed the Tribe’s 67.5 acres of fee-simple land as “Indian lands” eligible for
gaming, (2) the federal government erred in granting the Tribe federal recognition
over 20 years ago, and (3) the Tribe’s gaming ordinance and tribal-state compact
were invalid ab initio.
1
While Appellants styled their motion as one to vacate the district court’s
dismissal under Rule 19, they urged the district court to either reconsider, amend,
vacate, or modify the dismissal order pursuant to Rules 59 and 60. For ease of
reference, we refer to Appellants’ motion as a motion to vacate.
2
The Tribe made a special appearance to file a motion to dismiss based on the
Appellants’ failure and inability to join the Tribe as a required and indispensable
party under Rule 19. The district court granted the motion and denied the
Appellants’ motion to vacate the judgment of dismissal. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm both rulings.
Rule 19 sets the framework for determining whether a party is required
and indispensable. We must decide first whether the Tribe is a “required” party
that should normally be joined pursuant to Rule 19(a)(1). If the Tribe is a required
party, we then ask whether its joinder in the underlying litigation is feasible. See
Fed R. Civ. P. 19(b). If joinder is not feasible, we conclude our analysis by
determining “whether, in equity and good conscience, the action should proceed
among the existing parties or should be dismissed.” Id. We review the district
court’s resolution of these questions for an abuse of discretion. See Am.
Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022 (9th Cir. 2002). And we
apply the same standard of review to the district court’s denial of Appellants’
motion to vacate. See McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987).
We find no abuse of discretion in the district court’s determination that the
Tribe was a required party under Rule 19(a)(1). The Tribe claims several legally
protected interests relating to the subject of the action. Appellants seek to
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invalidate the Tribe’s gaming compact with California, overturn the DOI and
NIGC’s determination that the Tribe’s land enjoys “Indian lands” status under the
Indian Gaming Regulatory Act (“IGRA”), and essentially direct the Secretary to
extinguish the Tribe’s federal recognition. The district court concluded correctly
that disposing of the action in the Tribe’s absence would, as a practical matter,
impair or impede the Tribe’s ability to protect these substantial interests. See Fed.
R. Civ. P. 19(a)(1)(B)(i); Am. Greyhound Racing, Inc., 305 F.3d at 1023 (“The
interests of the tribes in their compacts are impaired and, not being parties, the
tribes cannot defend those interests.”); Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th
Cir. 1996) (finding a protectible interest in a tribe’s lease agreements).
Appellants contend that the United States can adequately represent the
Tribe’s interests. See Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.
1990) (“The United States may adequately represent an Indian tribe unless there is
a conflict between the United States and the tribe.”). The district court concluded
otherwise. The government’s response to the district court’s questions on this
issue at a status conference caused the district court to suspect that the government
favored judicial resolution of the lawsuit as opposed to early dismissal, and would
seek to avoid taking positions contrary to its national Indian policy, even if
contrary to the Tribe’s interest. These concerns have been illustrated by the
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government’s inaction to date. The government did not move for its own dismissal
under Rule 19, and it has declined to take a position on the Tribe’s Rule 19 motion
in the district court and on appeal. Nor did the government appear at oral argument
or file any brief in the appeal. These inactions indicate divergent interests between
the Tribe and the government. We find no abuse of discretion in the district
court’s considered judgment. See Pit River Home & Agric. Coop. Ass’n v. United
States, 30 F.3d 1088, 1101 (9th Cir. 1994) (“We have held that the United States
cannot adequately represent an absent tribe, when it may face competing
interests.”).
The district court concluded next that joinder would not be feasible because
the Tribe enjoys sovereign immunity as a federally recognized Indian tribe.
Appellants challenge the validity of the Tribe’s federally recognized status but
concede its existence. Indeed, the Tribe has been federally recognized since at
least 1985, see Indian Tribal Entities Recognized and Eligible to Receive Services,
50 Fed. Reg. 6055-02 (Feb. 13, 1985), and it thus has “the immunities and
privileges available to other federally acknowledged Indian tribes by virtue of their
government-to-government relationship with the United States,” Indian Entities
Recognized and Eligible to Receive Services from the Board of Indian Affairs, 77
Fed. Reg. 47,868-01 (Aug. 10, 2012).
5
Appellants claim that the district court erred by disregarding their allegations
that the Tribe should not be federally recognized. But the court cannot simply turn
a blind eye to the Tribe’s status as a federally recognized tribe in the Federal
Register. See 44 U.S.C. § 1507 (“The contents of the Federal Register shall be
judicially noticed[.]”); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001) (“The court need not . . . accept as true allegations that contradict
matters properly subject to judicial notice[.]”). As we have explained, “[f]ederally
recognized Indian tribes enjoy sovereign immunity from suit.” Pit River Home &
Agric. Coop. Ass’n, 30 F.3d at 1100.
Appellants argue in the alternative that either the Administrative Procedure
Act (“APA”) or the IGRA abrogates, or at least precludes a tribe’s reliance on,
tribal sovereign immunity. Abrogation of sovereign immunity “cannot be implied
but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez, 436 U.S.
49, 58 (1978) (internal quotation marks omitted); see also Krystal Energy Co. v.
Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2004) (“Abrogation of tribal
sovereign immunity may not be implied.”).
The APA provides no such express abrogation. While it unequivocally
waives the United States’ sovereign immunity in certain suits, it does not do the
same for Indian tribes. See 5 U.S.C. § 702. Appellants’ argument also runs
6
counter to our precedent analyzing whether a tribe is necessary and indispensable
even in APA actions. See Makah Indian Tribe, 910 F.2d at 558-60 (finding no
abuse of discretion in the district court’s Rule 19 dismissal because the involved
tribes enjoyed sovereign immunity).
The IGRA likewise contains no express abrogation of tribal immunity for
suits brought by private individuals challenging Indian-related administrative
determinations. It provides that certain agency decisions may be appealed to the
appropriate federal district court, but those actions must be brought pursuant to the
APA, which, as described supra, does not expressly abrogate tribal immunity. 25
U.S.C. § 2714. Appellants point to no provision in the IGRA that unequivocally
divests the Tribe of its sovereign immunity in suits like this, nor have we found
one. We thus find no error in the district court’s conclusion that the Tribe’s
sovereign immunity precludes joinder.
The district court did not abuse its discretion by concluding that the Tribe is
indispensable under Rule 19(b)’s four-factor analysis. First, judgment in this
lawsuit would prejudice the Tribe for the same reasons the Tribe is a required
party. See Am. Greyhound Racing, Inc., 305 F.3d at 1024-25 (“[T]he first factor of
prejudice . . . largely duplicates the consideration that made a party necessary
under Rule 19(a): a protectible interest that will be impaired or impeded by the
7
party’s absence.”). Second, we are not persuaded that the ameliorative measures
proposed for the first time in Appellants’ motion to vacate would shape
Appellants’ requested relief to lessen or avoid prejudice to the Tribe. The
Appellants seek termination of the Tribe’s gaming compact, “Indian lands” status,
and status as a federally recognized tribe—the same interests whose protection
requires the Tribe’s presence. See id. at 1025 (no ability to shape relief where
“[t]ermination of existing compacts is central to this litigation”). Third, while
Appellants might be able to obtain an adequate judgment in the Tribe’s absence,
“the only ‘adequate’ remedy would be at the cost of [the Tribe]” because the
Appellants request, at a minimum, a determination that the Tribe’s land is not
eligible Indian lands and that the Tribe’s compact with the state is invalid ab initio.
See Makah Indian Tribe, 910 F.2d at 560. Fourth, we acknowledge that Appellants
may be left with no adequate remedy upon dismissal for non-joinder, “[b]ut this
result is a common consequence of sovereign immunity, and [the Tribe’s] interest
in maintaining [its] sovereign immunity outweighs the [Appellants’] interest in
litigating their claims.” Am. Greyhound Racing, Inc., 305 F.3d at 1025.
Finally, we agree that Appellants waived their reliance on the “public rights”
exception by raising it below for the first time in their motion to vacate the
judgment. Nonetheless, we find no abuse of discretion in the district court’s
8
alternative holding rejecting this argument on its merits. For the public rights
exception to preempt a party’s Rule 19 protection, (1) “the litigation must
transcend the private interests of the litigants and seek to vindicate a public right”
and (2) “although the litigation may adversely affect the absent parties’ interests,
the litigation must not destroy the legal entitlements of the absent parties.”
Kescoli, 101 F.3d at 1311 (internal quotation marks omitted). As we have
described, Appellants’ lawsuit seeks to extinguish the Tribe’s substantial legal
entitlements. This precludes application of the public rights exception. See
Shermoen v. United States, 982 F.2d 1312, 1319 (9th Cir. 1992) (“Because of the
threat to the absent tribes’ legal entitlements, and indeed to their sovereignty, posed
by the present litigation, application of the public rights exception to the joinder
rules would be inappropriate.”).
For the reasons explained above, the district court did not abuse its
discretion in dismissing this action under Rule 19 or in denying Appellants’
subsequent motion to vacate.
AFFIRMED.
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