Neighbors of Casino San Pablo v. Salazar

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NEIGHBORS OF CASINO SAN )
PABLO, an unincorporated )
association, )
)
ANDRES SOTO, )
)
ANNE RUFFINO, )
)
ADRIENNE HARRIS, )
)
TANIA PULIDO, and )
)
JULIA AREAS, )
)
Plaintiffs, )
)
v. ) Civil Case No. 09-2384 (RJL)
)
KEN SALAZAR, in his official capacity )
as Secretary of the Interior, )
)
LARRY ECHO HAWK, in his official )
capacity as Assistant Secretary of the )
Interior for Indian Affairs, )
)
TRACIE STEVENS, in her official )
capacity as Chairperson of the National )
Indian Gaming Commission, and )
)
NATIONAL INDIAN GAMING )
COMMISSION, )
)
Defendants. )
)

1
 MEMORAN~OPINION
(March~, 2011) [#l3]

Plaintiff, Neighbors of Casino San Pablo ("neighbors"), are an "unincorporated

association comprised of residents, property owners and others who live, work, and/or

own businesses ... or who frequent the area around" property on which the Lytton Band

ofPomo Indians (the "Lyttons" or "the tribe") operates a casino on land which the United

States government holds in trust for the tribe's benefit. Pis.' First Amended Complaint

("Am. Compl."), Mar. 15, 2010, ~ 9 [Dkt. #10]. Neighbors, along with Andres Soto,

Adrienne Harris, Tania Pulido, and Julia Areas (collectively, "plaintiffs"), bring this

action against various officials in the United States Department of the Interior, as well as

the National Indian Gaming Commission ("NIGC") and its chairperson (collectively,

"defendants"), alleging that the NIGC failed its statutory evaluation and enforcement

duties with respect to the Lyttons, and that the NIGC acted arbitrarily and capriciously in

the determinations it did make about the tribe's gaming, in violation of the Administ-

rative Procedure Act, 5 U.S.C. § 701, et seq. Plaintiffs seek declaratory relief under 5

U.S.C. §§ 701-706 and 28 U.S.C. § 2201. Before this Court is defendants' Motion To

Dismiss. Upon consideration of the parties' pleadings, relevant law, and the entire record

herein, defendants' motion is GRANTED.

BACKGROUND

In 1988, Congress enacted the Indian Gaming Regulatory Act ("IGRA") "to

provide a statutory basis for the operation of gaming by Indian tribes as a means of

promoting tribal economic development, self-sufficiency, and strong tribal governments."

2
25 U.S.C. § 2702(1). Under IGRA, a tribe may conduct gaming only on "Indian lands,"

id. § § 271 O(b)( 1), (d)(3), which include "all lands within the limits of any Indian

reservation" and "any lands title to which is either held in trust by the United States for

the benefit of any Indian tribe." Id. § 2703(4). In 1988, Congress also established the

National Indian Gaming Commission ("NIGC") to regulate Indian gaming under the

IGRA, see id. §§ 2702(3), 2706(b), and to authorize enforcement actions for violations of

the statute. Id. § 2713. 1

In 1991, the federal government ("the Government") reinstated the Lyttons'

recognition as an Indian tribe in California? See Artichoke Joe's v. Norton, 216 F. Supp.

2d 1084, 1097 (E.D. Cal. 2002) (Artichoke Joe's 1); see also Am. Compi. ~ 55. As part

of the reinstatement, the United States Secretary of the Interior ("the Secretary") took

land into trust for the tribe. Artichoke Joe's I, 216 F. Supp. 2d at 1096-97. That land,

The IGRA divides tribal gaming into three "classes." Class I games consist
mostly of "social games with small prizes" and are regulated exclusively by Indian tribes.
Artichoke Joe's Cal. Grand Casino v. Norton, 278 F. Supp. 2d 1174, 1178 n.5 (E.D. Cal.
2003) (Artichoke Joe's 11). Class II games, which include certain types of bingo and card
games "that are explicitly authorized by the laws of the State, or ... are not explicitly
prohibited by the laws of the State and are played at any location in the State," are
regulated by both tribal government and the federal government. Id. (citing 25 U.S.C. §
2703(7)(A) and § 271O(d)). Class III games, defined as "all forms of gaming that are not
class I gaming or class II gaming," § 2703(8), permits games such as electric "game[s] of
chance or slot machines of any kind." Artichoke Joe's II, 278 F. Supp. 2d at 1178, n.5.
To conduct class III gaming, a tribe must first enter a compact with the state, and the
Secretary of the Interior must approve that compact. 25 U.S.C. §§ 2710(d)(3), (8).

2 The reinstatement was effectuated through a stipulation between the Lyttons, the
United States, and the County of Sonoma, California - the county where the tribe's lands
were historically located. See Scotts Valley Band ofPorno Indians of the Sugar Bowl
Rancheria v. United States, No. 86-3660 (N.D. Cal. Mar. 22, 1991) (stipulating entry of
judgment).

3
located in Sonoma County, California, was not eligible for gaming. Artichoke Joe's Cal.

Grand Casino v. Norton, 278 F. Supp. 2d 1174, 1177 (E.D. Cal. 2003) (Artichoke Joe's

II). The Lyttons, however, sought to conduct gaming on their land and identified nine

and one-half acres on a different site in San Pablo, California (the "San Pablo property"),

which was eligible for tribal gaming. Id.; see also Am. Compi. ~ 2.

In 2000, Congress enacted the Omnibus Indian Advancement Act ("Omnibus

Act"), Pub. L. 106-568, 114 Stat. 2868, and through it directed the Secretary to take the

San Pablo property into trust for the Lyttons in a manner which made it eligible for

gaming under the IGRA. 3 Specifically, Section 819 instructed that:

Notwithstanding any other provision of law, the Secretary of
the Interior shall accept for the benefit of the Lytton
Rancheria of California the land described in that certain
grant deed dated and recorded on October 16, 2000, in the
official records of the County of Contra Costa, California ...
. The Secretary shall declare that such land is held in trust by
the United States for the benefit of the Rancheria and that
such land is part of the reservation of such Rancheria
under sections 5 and 7 of the Act of June 18, 1934 (48 Stat.
985; 25 U.S.C. 467). Such land shall be deemed to have been
held in trust and part of the reservation of the Rancheria prior
to October 17,1988. Id. (emphasis added).

Importantly, Section 819 deemed the San Pablo property "to have been held in

trust and part of the reservation ... prior to October 17, 1988" - the date after which the

IGRA prohibited4 gaming on newly acquired lands. Thus, by treating the acquisition as

3
The Secretary took the San Pablo property into trust in 2003 and declared the
property part of the Lytton reservation in 2004 (the "2004 proclamation"). Am. CompI. ~
65; Defs.' Mot. to Dismiss at 6 [Dkt. # 13].
4
The few exceptions to this prohibition are found in 25 U.S.C. § 2719.
4
one occurring before October 17, 1988, Congress - through the language of the Omnibus

Act - exempted the Lyttons' San Pablo property from the IGRA prohibition and rendered

the San Pablo property eligible for gaming.

Even if a tribe is eligible to conduct gaming on Indian lands, however, it must

adopt a tribal gaming ordinance and gain approval from the NIGC for such gaming to be

legal. 25 U.S.C. §§ 2710(b)(2), (d)(1)(A). Years before the Government took into trust

the San Pablo property eligible for gaming, the Lyttons prospectively sought eligibility

for gaming on their lands. 5 To that end, the Lyttons adopted, and the NIGC approved, a

tribal gaming ordinance in July 1999. Am. CompI. ~ 56; Defs.' Mot. to Dismiss at 9.

The 1999 ordinance permitted gaming on reservation lands, including land held in trust

by the United States for the benefit of the Lyttons, and thus was not "site-specific."

Defs.' Mot. to Dismiss at 9; see also Am. CompI. ~ 56.

In 2003, after the San Pablo property was taken into trust, the Lyttons began

conducting "class II" gaming under the ordinance approved by the NI GC in 1999. 6 Am.

5 At that time, property in Sonoma County had been taken into trust for the Lyttons,
but was not eligible for gaming.

6 Because the Lyttons were not prepared to manage the gaming facility on the San
Pablo property, they opted to allow a non-tribal entity, SF Casino Management, to
continue operations until the tribe was prepared to manage the facility alone. See 25
U.S.C. § 271O(b)(4) (allowing tribes to license a non-tribal entity to conduct gaming in
accordance with state law); see also id. at § 2711 (requiring NIGC approval for a tribe
that contracts with a non-tribal entity for management of a gaming facility). That
temporary license lasted from October 9,2003 (when the San Pablo land was taken into
trust) until November 24,2003, when the tribe took full ownership and control over the
casino. Defs.' Mot. to Dismiss at 10. It was revoked on December 13,2003. Id.
Notwithstanding revocation of SF Casino Management's temporary gaming license, the
5
Compi. ~ 66; Defs.' Mot. to Dismiss at 10. In January 2008, the Lyttons enacted an

amended gaming ordinance which repealed and replaced the 1999 ordinance and

provided for "class II" and "class III" gaming on the tribe's land. Am. CompI. ~ 75; PIs.'

Ex. Bat 3; Defs.' Mot. to Dismiss at 11. In May 2008, the NIGC approved the

ordinance, which permitted "[a]ll forms of Class II gaming as defined in the IGRA" and

"[a]ll forms of Class III gaming as defined in the [IGRA] ... and authorized by a

Compact between the Tribe and the State of California." PIs.' Ex. B at 4 (emphasis

added). Further, the NIGC approved class II and III gaming on "Indian lands," but did

not render site-specific approval and did not identify specific games which could be

conducted on the San Pablo property. See Am. Compi. ~ 76; PIs.' Ex. B at 2; Defs.' Mot.

to Dismiss at 11.

Plaintiffs filed suit in March 2010, claiming that they had suffered injuries - such

as increased traffic, interstate congestion, property crimes, prostitution, pollution, and

diminution in property value, among other things - as a result of the Lyttons' operation of

a casino on the San Pablo property. Plaintiffs allege eight violations of the

Administrative Procedure Act, most of which boil down to two claims: First, that the

Lyttons do not have proper jurisdiction or sovereignty over the San Pablo property.7

tribe's 1999 gaming ordinance remained in effect on the San Pablo property. Id. at lO-
ll.
7 Plaintiffs' insistence that "the federal government could not, solely by acquiring
title to the land, authorize the L yttons to exercise sovereignty over it" is a red herring.
PIs.' Opp 'n to Defs.' Mot. to Dismiss, July 7, 2010, at 21-23 ("PIs.' Opp'n") at 1 [Dkt.
#27]. The threshold issue is not whether the San Pablo property is sovereign, but rather
6
Second, that before approving a gaming ordinance, the NIGC was required to - but did

not - make specific gaming determinations or an "Indian lands determination" about the

San Pablo property.

ANALYSIS

I. Standard of Review

Defendants move to dismiss this action for failure to state a claim upon which

relief may be granted under Fed. Rule Civ. P. 12(b)(6). Under Rule 12(b)(6), the Court

accepts the allegations in the complaint as true and resolves ambiguities in favor ofthe

pleader. Harbury v. Deutch, 244 F.3d 956, 958 (D.C. Cir. 2001) (internal citation

omitted). Importantly, however, the Court "need not accept as true inferences

unsupported by facts set out in the complaint or legal conclusions cast as factual

allegations." Guam Indus. Servs., Inc. v. Rumsfeld, 405 F. Supp. 2d 16, 19 (D.D.C. 2005)

(citing Warren v. District of Columbia, 353 F.3d 36,39 (D.C. Cir. 2004)).

To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient

factual matter, accepted as true, to state a claim to reHefthat is plausible on its face."

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal citations and quotations

omitted). But "[ w ]here a complaint pleads facts that are merely consistent with a

defendant's liability, it stops short of the line between possibility and plausibility of

entitlement to relief." Id. (internal citations and quotations omitted).

whether it is Indian lands on which gaming is authorized under the lORA. Unfortunately
for plaintiffs: it is!
7
 Defendants also move to dismiss for lack of subject-matter jurisdiction under Fed.

R. Civ. P. 12(b)( 1). A plaintiff has the burden of establishing jurisdiction under Rule

12(b)(1). Theodore ex reI. A.G. v. Gov't ofD.C., 655 F. Supp. 2d 136,141 (D.D.C.

2009) (internal citations omitted). In addition, for purposes of a Rule 12(b)( 1) motion, a

plaintiff's lack of standing to bring a claim is considered a defect in the court's subject-

matter jurisdiction and is thus fatal to the claim. Haase v. Sessions, 835 F.2d 902,906

(D.C. Cir. 1987) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541

(1986)). Unfortunately for plaintiffs, even taking as true all of the allegations in the

complaint, each of the eight counts must be dismissed. How so?

II. Plaintiffs Fail To State A Claim On Which Relief May Be Granted.

A. The NIGC Was Not Required to Issue an Indian Lands Determination Before
Approving the Lytton Gaming Ordinance.

The majority of plaintiffs' claims hinge on their assertion that the "NIGC had a

mandatory duty under IGRA to conduct an analysis and make a determination as to

whether [proposed gaming lands] w[ ere] Indian land under the jurisdiction of the

Lyttons."g Am CompI. ~~ 83, 91. But see 25 U.S.C. § 2710(b). Specifically, plaintiffs

allege in Counts I and II that the NIGC was required, but failed, to make such "Indian

lands determinations" before approving the Lyttons' 2003 and 2008 gaming ordinances.

Plaintiffs seek declarations that the NIGC was required to make "Indian lands
determinations" with respect to the 2003 and 2008 ordinances and ask for the ordinances
to be set aside and remanded to the NIGC for a proper determination. Am. Compo ~~ 86,
92.

8
Am CompI. ,-r,-r 83, 91. Yet plaintiffs cannot, and do not, point to statutory language or

case law from our Circuit requiring such a determination.

Indeed, to the extent statutory language supports either party's position, it supports

defendants'. The plain language of the IGRA requires Indian gaming to take place on

"Indian lands," 25 U.S.C. § 271O(b), and defines "Indian lands" as "any lands title to

which is ... held in trust by the United States for the benefit of any India tribe." ld. §

2703(4). The action Congress directed in the 2000 Omnibus Act easily meets these

requirements: Section 819 not only directed the Secretary to take land into trust for the

Lyttons' benefit (thus immediately qualifying that property as "Indian lands"); it also

explicitly exempted the Lyttons' property from a statutory prohibition on Indian gaming

on lands acquired after October 17, 1988. The lORA requires no further NIGC

determination regarding the Lyttons' lands. 9 Specifically, the plain language of the

IGRA did not require the NIGC to perform an independent "Indian lands" determination

in conjunction with the Lyttons' submission ofnon-site-specific 1o gaming ordinances.

See N Cty. Cmty. Alliance, Inc. v. Salazar, 573 F.3d 738, 747 (9th Cir. 2009) (persuasive

authority holding that the "NIGC was under no judicially enforceable obligation to make

an Indian lands determination" because "nothing in the text of the IGRA, or in any

Under the APA, only discrete agency action that is legally required can be
compelled. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,64 (2004). Because
the NIGC has no statutory duty to make an Indian lands determination prior to approving
a gaming ordinance, plaintiffs' "failure to act" argument fails to state a claim.

10 Defendants acknowledge that the NIGC should make an Indian lands
determination "if a tribe submits a site-specific gaming ordinance or management
contract that indicates the proposed location of the gaming." Mot. to Dismiss at 16.
9
implementing regulation ... 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").

Plaintiffs concede this point and acknowledge that the Lyttons' 1999 gaming

ordinance was not site-specific. Am. Compi. ~ 56; Pis.' Opp'n to Defs.' Mot. to Dismiss

("PIs.' Opp'n"), July 7, 2010, at 12 [Dkt. #27]. They contend, however, that the

temporary gaming license granted in 2003 was site-specific, and that the NIGC was thus

required to make a specific Indian lands determination with respect to that proposed

ordinance. Am. Compi. ~~ 66-69. Contrary to plaintiffs' characterizations, 11 the 2003

"ordinance" was actually a resolution by the Lytton tribe to revoke SF Casino

Management's temporary, class II gaming and management license, which had been

granted pursuant to 25 U.S.C. § 271O(b)(4)(A). See Am. CompI., Ex. A, at 2. And

although the tribal resolution referred to the San Pablo property on which SF Casino

11 Although this Court must accept as true all factual allegations plaintiffs plead in
the complaint, the Court is not bound by legal conclusions masquerading as factual
narratives. Here, plaintiffs assert as fact what is actually a legal conclusion: that is, the
legal effect of the 2003 "ordinance." To properly discern the legal effect of the tribe's
2003 gaming resolution and the NIGC's approval of it, the Court turns to plaintiffs'
Exhibits A and B [Dkt. ##10-1 & 10-2], which contain copies of the 2003 and 2008
ordinances. Because these exhibits are public records and attached to, and incorporated
by reference in, the complaint, Am. Compi. ~~ 57,67, reviewing them does not convert
this motion to dismiss into a motion for summary judgment. See Randolph v. ING Life
Ins. & Annuity Co., 486 F. Supp. 2d 1, 5 (D.D.C. 2007) ("The court is limited to
considering facts alleged in the complaint, any documents attached to or incorporated in
the complaint, matters of which the court may take judicial notice, and matters of public
record.") (internal citation omitted). Upon review, it is clear that because the NIGC is not
required, as a matter of law, to make an Indian lands determination before approving a
non-site-specific gaming ordinance, and because the tribe submitted only non-site
specific ordinances for approval, plaintiffs' Counts I and II fail to state a claim.

10
Management operated its temporary license, the resolution did not seek or approve new

gaming authority for the San Pablo property. 12 See id. at 2-3. Nor did the NIGC

approve a site-specific ordinance by approving the Lyttons' 2003 resolution. Id. at 4

("This letter constitutes approval under the [IGRA] .... the ordinance is approved for

gaming only on Indian lands, as defined in the IGRA."). Accordingly, the NIGC had no

obligation to make additional determinations about the Lyttons' Indian land.

In the same vein, plaintiffs allege that the Lyttons' 2008 ordinance was site-

specific because the NIGC "knew" that the tribe was operating a casino on the San Pablo

property.I3 Am. Compl. ~~ 87-92. Even assuming the truth of plaintiffs' allegation,

however, knowledge of gaming activities and the Indian lands on which they occur does

not create an additional legal duty (such as an Indian lands determination) not imposed by

statute. Because plaintiffs seek relief for alleged failures of statutory duties that do not

exist, plaintiffs fail to state a claim as to Counts I and II. For the same reason, Count III -

which is premised on plaintiffs' incorrect belief that the NIGC "made or is deemed to

have made a determination that the [San Pablo] [p ]roperty is Indian land," Am. Compl. ~

94, must also be dismissed under Rule 12(b )(6) for failure to state a claim. 14

12 This is precisely because the 1999 non-site-specific gaming ordinance was still in
effect for the Lyttons' "Indian lands," which included the San Pablo property.

13 Inexplicably, plaintiffs simultaneously admit that "the 2008 Ordinance may not
have specifically identified the Casino site." PIs.' Opp'n at l3.

14 Because Count III may be dismissed for failure to state a claim (and for lack of
standing, see infra III.B), this Court need not, and will not, address defendants' Quiet
Title Act arguments. See Mot. to Dismiss at 17-19.

11
 B. The NIGC Was Not Required To Rule On The Classification ofSpecific Games
Before Approving the Lytton Gaming Ordinance; And Because NIGC's
Enforcement Decisions Are Discretionary, They Are Not Subject To Judicial
Review.

Moreover, Counts VI, VII, and VIII also fail to state a claim under Rule 12(b)(6)

and must be dismissed. All three Counts relate to the 2008 Lytton gaming ordinance

through which the NIGC broadly approved "all forms of [c]lass II gaming as defined in

the [IGRA]," Am. CompI., Ex. B, at 4, and all three suffer fatal defects. In Count VI,

plaintiffs allege that the NIGC's 2008 approval was unlawful because it authorized

certain electronic games which are permissible under IGRA class II but illegal under

California law. Am. CompI. ~ 113. In Count VII,15 plaintiffs allege that the 2008

ordinance was unlawful because the NIGC "knew or should have known that the Lyttons

were operating ... slot machines," which are class III games requiring a tribal compact.

Am. CompI. ~~ 116-18. In Count VIII, plaintiffs assert that the Lyttons operate

unauthorized class III slot machines - and seek a declaration stating as much. Am.

CompI. ~~ 121-23.

Counts VI and VII fail to state a claim because plaintiffs erroneously assert that

the NIGC had a duty to announce decisions about specific types of games when it

approved the 2008 ordinance. To the contrary, the IGRA states that the NIGC Chairman

"shall approve any tribal ordinance or resolution concerning the conduct [] or regulation

of [c]lass II gaming." 25 U.S.C. § 271O(b)(2). Neither the IGRA nor applicable

15 Through Counts VI and VII, plaintiffs seek a declaration that the NIGC's approval
was arbitrary, capricious, and an abuse of discretion, and ask this Court to set aside the
2008 ordinance. Am. CompI. ~~ 114, 119.
12
regulations require the tribal ordinance to describe specific games, or require the NIGC to

delineate approval for anything other than a broad class of games (such as class II). See

25 U.S.C. § 2710; see also 25 C.F.R. § 522. As a result, the NIGC has no duty to make

specific game determinations and Counts VI and VII fail to state a claim.

Counts VI, VII, and VIII suffer an additional defect: each Count asserts the legal

conclusion that the Lyttons operate class III games on the San Pablo property, see Am.

CompI. ,,71, 73, and that the NIGC's 2008 approval of gaming on the San Pablo

property is improper since the Lyttons did not enact a tribal compact for class III gaming.

But even assuming that the Lyttons were improperly operating class III games, plaintiffs

fail to state a claim because this Court cannot compel the NIGC to undertake an

enforcement action. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("[a]n agency's

decision not to prosecute or enforce, whether through civil or criminal process, is a

decision generally committed to an agency's absolute discretion."). Moreover,

persuasive authority suggests that "the IGRA provides no private right of action against

[a] Tribe, [a] State, the federal government or any official or agency thereof' to enforce

conduct that is allegedly unlawful under the IGRA. Hartman v. Kickapoo Tribe Gaming

Comm 'n, 176 F. Supp. 2d 1168, 1175 (D. Kan. 2001) (collecting cases). Because an

agency's enforcement discretion is not subject to judicial review under Heckler, and

because Congress has evinced no intent to "circumscribe agency enforcement discretion"

here, 470 U.S. at 834-35, plaintiffs fail to state a claim for Counts VI, VII, and VIII.

13
III. Plaintiffs' Remaining Claims Must Be Dismissed Because This Court Has No
Subject-Matter Jurisdiction Over Them.

A. This Court Has No Subject-Matter Jurisdiction Over Count IV.

Plaintiffs' remaining claims must be dismissed because this Court has no subject-

matter jurisdiction over them. To start, the Court has no subject-matter jurisdiction over

Count IV,16 which seeks relief based only on the Declaratory Judgment Act, 28 U.S.C. §

2201 ("DJA"). The DJA "creates a remedy in cases otherwise within the Court's

jurisdiction," but "does not constitute an independent basis for jurisdiction." Lac Vieux

Desert Band ofLake Superior Chippewa Indians of Mich. v. Ashcroft, 360 F. Supp. 2d

64,66 n.3 (D.D.C. 2004); see also Skelley Oil Co. v. Phillips Petrol. Co., 339 U.S. 667,

671-72 (1950). Because plaintiffs allege no independent cause of action for Count IV, 17

this Court does not have jurisdiction to hear it.

B. Plaintiffs Lack Standing To Bring Their Constitutional Claims.

In addition, the Court has no subject-matter jurisdiction over the constitutional

claims in Counts III, IV, and V because plaintiffs lack standing to bring them. Counts

16 Count IV seeks a declaration that the San Pablo property "remains subject to the
plenary jurisdiction" of California, notwithstanding the Secretary taking the land into
trust for the benefit of the Lyttons. Am. Compo ~~ 101, 103.

17 Although plaintiffs incorporate the first 98 paragraphs of their complaint into
Count IV, see PIs.' Opp'n at 25-26, none of the causes of action cited in the first three
counts provides a cause of action through which this Court could award the declaratory
relief plaintiffs seek. Moreover, plaintiffs point to no statutory authority, in the IGRA or
otherwise, under which plaintiffs would be entitled to a declaration that the San Pablo
property is subject to the jurisdiction of California. Defs.' Reply Memo., Aug. 13, 2010,
at 11-12 [Dkt. #31] ("Defs.' Reply").

14
III, IV, and V are largely based on the claim that California retains plenary jurisdiction 18

over the Lyttons' San Pablo property, notwithstanding the Secretary taking into trust that

property pursuant to Section 819. See Am. Compl. ~~ 93-108. By bringing these claims,

plaintiffs seek to invoke California's alleged jurisdiction over the San Pablo property-

not plaintiffs' own rights. To the extent that these allegations are construed properly as

constitutional violations of the Enclaves Clause 19 or the Tenth Amendment,20 plaintiffs

lack standing under this Court's case law and their claims must be dismissed.21 See City

o/Roseville v. Norton, 219 F. Supp. 2d 130, 144 (D.D.C. 2002), aff'd, 348 FJd 1020

(D.C. Cir. 2003) ("Plaintiffs' claims present a clear example of when third party

prudential concerns weigh against permitting plaintiffs to argue claims on behalf of a

third party."). See also Artichoke Joe's II, 278 F. Supp. 2d at 1181 ("Because the

plaintiffs do not act with the authority of the State of California or its officers, they do not

18 Plaintiffs allege that because the federal government did not retain jurisdiction
over the San Pablo property upon California's admission to the Union, and because
California failed to consent to jurisdiction over its lands, California retains plenary
jurisdiction over the San Pablo property. Am Compl. ~~ 40-41,65, 77.

19 Plaintiffs do not invoke explicitly the Enclaves Clause, but they do imply it by
contending that the state of California did not consent properly to ceding jurisdiction to
the Lyttons; that the San Pablo property is under plenary jurisdiction of the state; and that
Congress (by passing Section 819) "exceeded the [government's] statutory and
Constitutional authority." See Am. Compl. ~~ 96, 102, 106.

20 See, e.g., Am. Compl. ~ 96 (alleging that Congressional actions related to
California's plenary powers were beyond Congress' authority).

21 Ifplaintiffs' contention is true, see PIs.' Opp'n at 32, and they do not bring an
Enclaves Clause claim, Counts III, IV, and V still fail because they allege no cause of
action. See Hartman v. Kickapoo Tribe Gaming Comm 'n, 176 F. Supp. 2d 1168, 1175
(D. Kan. 2001) ("[The] lORA provides no private right of action against the ... federal
government or any official or agency thereof.").

15
have standing to assert a Tenth Amendment claim" or an Enclaves Clause claim).

Because plaintiffs lack standing to bring the constitutional aspects of Counts III, IV, and

V, this Court must dismiss them.

C. Plaintiffs Lack Standing For Their Claim Against The Secretary Regarding
Congressionally Mandated Acquisition 0/Land Into Trust.
Plaintiffs also lack standing to bring Count V because they cannot show

redressabilty.22 See, e.g., County o/Delaware, Pa. v. Dep't o/Transp., 554 F.3d 143,

149 (D.C. Cir. 2009) (a plaintifflacks standing to bring a claim if the reliefhe seeks does

not alleviate the alleged injury). Here, the relief plaintiffs seek - a declaration that

California "has and retains its sovereignty over the [p]roperty and an order setting aside

the [2004] Proclamation," Am. Compi. ~ 108 - does not provide redress for the gaming-

related injuries plaintiffs allege. The Secretary's 2004 proclamation of the San Pablo

property as part of the Lytton reservation did not authorize gaming on, or render eligible

for gaming, the San Pablo property; that occurred in 2003, when the Secretary took the

San Pablo property into trust pursuant to Section 819. As a result, issuing a declaration

that California still retains plenary jurisdiction over the San Pablo property would not

nullify the Lyttons' gaming eligibility. Nor would such a declaration nUllify the

22 Even if plaintiffs did have standing, Count V fails to state a claim under Rule
12(b)(6) because Section 819 mandated that the Secretary take into trust the San Pablo
property and required that the Secretary issue a reservation proclamation. Pub. L. 106-
568 § 819, 114 Stat. 2868. See also, e.g., Churchill Cnty. v. United States, 199 F. Supp.
2d 1031, 1033-34 (D. Nev. 2001) ("Shall is a mandatory term, indicating the lack of
discretion on the part of the Secretary.").

16
Secretary's duty to take lands into trust under Section 819. Plaintiffs therefore lack

standing and this Court has no subject-matter jurisdiction to hear Count V.

D. This Court Lacks Subject-Matter Jurisdiction Over Plaintiffs' Challenge To
Non-Final Agency Actions.

Finally, plaintiffs lack standing to bring Counts VI, VII, and VIII because those

counts do not challenge final agency action and are therefore unreviewable. Judicial

review of the NIGC's decisions is restricted to final decisions under 25 U.S.C. §§ 2710-

13. See 25 U.S.C. § 2714 ("Decisions by the Commission pursuant to sections 2710,

2711,2712, and 2713 of this title shall be final agency decisions for the purpose of appeal

to the appropriate Federal district court."); see also Lac Vieux Desert Band ofLake

Superior Chippewa Indians of Mich. v. Ashcroft, 360 F. Supp. 2d 64, 67-68 (D.D.C.

2004). Although Counts VI and VII nominally challenge the NIGC's approval of the

2008 ordinance under Section 2710, Am. CompI. ~~ 110, 116, each of Counts VI, VII,

and VIIe3 ultimately seeks relief in the form of compelled NIGC enforcement. But even

if plaintiffs are correct that impermissible class III gaming is being conducted on the San

Pablo property, the NIGC's decision not to initiate enforcement action is not final agency

action reviewable under the APA. 24 Moreover, plaintiffs do not have standing to invoke

23 In Count VI, Plaintiffs allege that defendants' class II games are illegal under
California law and seek an order setting aside the 2008 ordinance. PIs.' Opp'n at 43. For
Count VII, plaintiffs admit that "the issue to be determined is whether the machines are
class III slot machines," id. at 39; and Count VIII seeks a declaration that defendants'
gaming machines are illegal class III slot machines, not permissible class II machines.
Am. CompI. ~ 123.

24 Moreover, the IGRA does not require the NIGC to make determinations about
specific class II games, see 25 U.S.c. § 271O(b), and the 2008 ordinance restricts its
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25 U.S.C. § 2714 judicial review to enforce a duty - the NIGC making specific gaming

determinations - not contained within Section 2710. Plaintiffs do not have standing to

challenge non-final agency actions and as a result, Counts VI, VII, and VIII must be

dismissed.

CONCLUSION

For all of the foregoing reasons, the Court GRANTS the United States' Motion to

Dismiss [Dkt. #13], dismissing with prejudice all counts which fail to state a claim

(Counts I, II, III; Counts VI and VII (to the extent they seek rulings on classifications of

specific games before approving the Lytton gaming ordinance); and Counts VI, VII, and

VIII (to the extent they seek enforcement of discretionary NIGC decisions which are not

subject to judicial review)), and dismissing without prejudice all remaining counts over

which this Court has no subject-matter jurisdiction (all or parts of Counts III, IV, V, VI,

VII, and VIII).

An Order consistent with this decision accompanies this Memorandum Opinion.

~
RICHARD~
United States District Judge

authorization of "[a]ll forms of Class II gaming" to those "defined in the [IGRA]." PIs.'
Ex. B at 4. See also PIs.' Opp'n at 37; Defs.' Reply at 14.
18