KG Urban Enterprises, LLC v. Patrick

United States Court of Appeals
For the First Circuit

No. 12-1233

KG URBAN ENTERPRISES, LLC,

Plaintiff, Appellant,

v.

DEVAL L. PATRICK, in his official capacity as Governor of the
Commonwealth of Massachusetts; CHAIRMAN AND COMMISSIONERS OF THE
MASSACHUSETTS GAMING COMMISSION, in their official capacities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Paul D. Clement, with whom Jeffrey M. Harris, Brian J. Field,
Bancroft PLLC, Kevin M. Considine, Alexander Furey, and Considine
& Furey, LLP were on brief, for appellant.
Kenneth W. Salinger, Assistant Attorney General, with whom
Martha Coakley, Attorney General of Massachusetts, was on brief,
for appellee.
Jeffrey Pokorak, Lorie Graham, and Nicole Friederichs on brief
for Suffolk University Law School's Indian Law and Indigenous
Peoples Clinic, amicus curiae.

August 1, 2012
 LYNCH, Chief Judge. This appeal raises a constitutional

challenge to certain provisions of a 2011 Massachusetts law, "An

Act Establishing Expanded Gaming in the Commonwealth" (the

Massachusetts Gaming Act), 2011 Mass. Acts ch. 194 (largely

codified at Mass. Gen. Laws ch. 23K), which sets procedures and

standards for authorizing legalized gaming in the Commonwealth of

Massachusetts.

KG Urban Enterprises, LLC, a potential applicant for a

gaming license, argues that § 91 of the Act provides unauthorized

preferences to Indian tribes and on that basis treats the southeast

section of the state differently, and this constitutes a

classification on the basis of race in violation of the Equal

Protection Clause of the Fourteenth Amendment and is inconsistent

with Congressional intent in the federal Indian gaming statute.

We affirm the denial of KG's request for injunctive and

declaratory relief as to § 91, reject the remainder of KG's claims,

vacate the district court's dismissal of the complaint, and remand

for such further proceedings as may be appropriate.

I.

This case involves two statutory schemes, one state and

one federal. The state scheme is the Massachusetts Gaming Act.

The federal scheme is the Indian Gaming Regulatory Act (IGRA), 25

U.S.C. §§ 2701-2721, which establishes a cooperative federal-state-

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tribal regime for regulating gaming by federally recognized Indian

tribes on Indian lands.

A. The Massachusetts Gaming Act

The Massachusetts Gaming Act was enacted on November 22,

2011. The Act establishes "a Massachusetts gaming commission" (the

Commission), which consists of five commissioners, defendants here.

Mass. Gen. Laws ch. 23K, § 3(a). The Commission is the principal

entity charged with implementing the provisions of the Act,

including the licensing scheme at issue.

The Act authorizes gaming through the Commission's

issuance of "Category 1" and "Category 2" licenses. A category 2

license, not at issue here, allows the licensee "to operate a

gaming establishment with no table games and not more than 1,250

slot machines." Id. § 2. A category 1 license "permits the

licensee to operate a gaming establishment with table games and

slot machines." Id.

As to category 1 licenses, the Act creates three

"regions," regions A, B, and C, corresponding to counties; region

A covers the Boston area, B the western portion of the state, and

C the southeastern portion of the state. See id. § 19(a). The

Commission "may issue not more than 3 category 1 licenses based on

the applications and bids submitted to the commission. Not more

than 1 license shall be awarded per region." Id.

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 While the statute states that "[n]ot more than 1 license

shall be awarded per region," the statute appears to contemplate

that three category 1 licenses will be awarded in total. The

statute specifies the circumstances where a category 1 license is

not to be awarded in a region: "if the commission is not convinced

that there is an applicant that has both met the eligibility

criteria and provided convincing evidence that the applicant will

provide value to the region in which the gaming establishment is

proposed to be located and to the commonwealth, no gaming license

shall be awarded in that region."1 Id.

This case concerns certain special provisions for

category 1 licenses in the southeast region only, which is where

the state's only federally recognized Indian tribes are located.

We describe the statewide procedures before turning to the special

procedures which treat the southeast differently.

1. The Statewide Procedures

The Commission's solicitation of applications for

category 1 licenses is a key initial step in the category 1

licensing process. The Act does not set a deadline by which the

1
The Chairman of the Commission has stated that the
legislation was passed on an underlying economic assumption that
"[t]he market can handle three casinos." Arsenault, Studies Back
4 Gaming Sites, Bos. Globe, June 15, 2012, at B1. The Commission
recently held a forum to evaluate whether the state can in fact
support three category 1 casinos, at which the Chairman stated that
the economic "assumptions that were the underpinnings of the law
still hold." Id.

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Commission must solicit applications for category 1 licenses, nor

does the Act establish any timeframe for such solicitation.

Rather, the Act provides that "[t]he commission shall issue a

request for applications for category 1 and category 2 licenses;

provided, however, that the commission shall first issue a request

for applications for the category 2 licenses." Id. § 8(a). The

Commission is required to set deadlines for the receipt of all such

applications, id. § 8(c), and to "prescribe the form of the

application," which must require certain detailed information about

the entity requesting a license and its proposal, id. § 9(a).

Once the application is reviewed,2 the Commission is to

"identify which communities shall be designated as the surrounding

communities of a proposed gaming establishment." Id. § 17(a). The

applicant must reach an agreement with the surrounding communities

"setting forth the conditions to have a gaming establishment

located in proximity to the surrounding communities," id. § 15(9),

before the application process may continue, id. § 17(a). The

Commission is then to hold a public hearing within the host

community of the gaming site. Id. § 17(c).

2
Upon receiving the application, the Commission is to take
a variety of steps in reviewing the application and make a variety
of assessments as to an applicant's qualifications, according to
requirements enumerated in the statute, which we need not outline
here. See Mass. Gen. Laws ch. 23K, §§ 12(a), 12(c), 13(a), 15-16,
18.

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 Between thirty and ninety days after the hearing, the

Commission is to take action on the application: it must either

grant a license, deny a license, or extend the period for issuing

a decision by up to thirty days. Id. § 17(e). Licenses "shall

only be issued to applicants who are qualified under the criteria

set forth in [the Act], as determined by the commission." Id.

§ 19(a). As said, the Commission may under certain conditions

determine that "no gaming license shall be awarded in that region."

Id. Moreover, the Commission has "full discretion as to whether to

issue a license." Id. § 17(g). The Act provides that the

Commission's decision as to whether to issue a license is not

reviewable: "Applicants shall have no legal right or privilege to

a gaming license and shall not be entitled to any further review if

denied by the commission." Id.

A license is to be valid for an initial fifteen-year

period. Id. § 19(b). Further, if a license is granted "no other

gaming license shall be issued by the commission in any region

during that 15-year period." Id. The Commission is to establish

license renewal procedures. Id. Licenses may not be transferred

without majority approval of the Commission. Id. § 19(c).

2. Section 91 of the Act

Section 91, which is not codified in Chapter 23K, forms

the basis of KG's primary challenge. 2011 Mass. Acts ch. 194,

§ 91. Section 91(a) provides that "[n]otwithstanding any general

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or special law or rule or regulation to the contrary, the governor

may enter into a compact with a federally recognized Indian tribe

in the commonwealth." Id. § 91(a). The Commission is, upon

request of the Governor, to assist in negotiating the compact. Id.

§ 91(b). The Governor may "only enter into negotiations under this

section with a tribe that has purchased, or entered into an

agreement to purchase, a parcel of land for the proposed tribal

gaming development and scheduled a vote in the host communities for

approval of the proposed tribal gaming development." Id. § 91(c).

If a compact is negotiated, it must "be submitted to the general

court for approval." Id. § 91(d).

We divide subsection (e), on which KG's equal protection

challenge focuses, into its two component clauses, which provide:

Notwithstanding any general or special law or
rule or regulation to the contrary, if a
mutually agreed-upon compact has not been
negotiated by the governor and Indian tribe or
if such compact has not been approved by the
general court before July 31, 2012, the
commission shall issue a request for
applications for a category 1 license in
Region C pursuant to chapter 23K of the
General Laws not later than October 31, 2012;

provided, however, that if, at any time on or
after August 1, 2012, the commission
determines that the tribe will not have land
taken into trust by the United States
Secretary of the Interior, the commission
shall consider bids for a category 1 license
in Region C under said chapter 23K.

Id. § 91(e). It appears that all aspects of the state-law

components of the first clause have, as of the date of this

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opinion, been complied with. These statutory procedures have been

supplemented by the terms of the state-law compact entered into by

the Governor and the Mashpee Wampanoag, as described later.

The statute does not, by its literal terms, preclude

issuance of a category 1 license in Region C if a compact has been

approved. However, KG argued before the district court and on

appeal that the statute does bar issuance of a license if a compact

is approved by the legislature by July 31 and the Commission has

not then determined that the tribe will not have land taken into

trust. The defendants do not dispute that interpretation of the

statute.

Moreover, the approved compact provides:

Section 91 of the Act provides that if a
compact negotiated by the Governor is approved
by the General Court by July 31, 2012, the
[Commission] will not issue a request for
Category 1 License applications in Region C
unless and until it determines that the Tribe
will not have land taken into trust for it by
the United States Secretary of the Interior.

Mashpee Tribal-State Compact § 2.6.3 The compact repeatedly refers

to the tribe's "exclusive" rights to conduct gaming in Region C if

the compact receives legislative approval by July 31, 2012.4 See

3
See H. 4260, 187th Gen. Court (Mass. 2012) (tribal-state
compact as submitted by the Governor to the Massachusetts
legislature).
4
The compact also contains a section governing what would
happen "[i]f the Tribe's exclusive right to operate a casino within
Region C is abrogated by the lawful issuance of a Category 1
License to operate a casino in Region C." Mashpee Tribal-State

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id. § 2.8 (noting that approval of the compact by the Massachusetts

legislature by July 31, 2012 "will provide exclusivity in Region C

for the Tribe"); id. § 9.1.4 (stating that if a compact is approved

by the legislature by July 31, 2012, the Tribe would have "the

opportunity to operate a casino in Region C on an exclusive

basis"); id. § 9.1.5 (stating that "[p]roviding such exclusivity

would also further the Commonwealth's policy of controlling the

expansion of Gaming within Massachusetts, by limiting the total

number of casinos within the Commonwealth to three"); id. § 9.2

(referring to "the creation, on an exclusive basis, of the

opportunity to conduct casino gaming in Region C").

3. Other Tribe-Related Provisions

The Massachusetts Gaming Act also contains several other

provisions relating to Indian gaming. The Act appropriates $5

million for use in negotiating and executing "a compact with a

federally recognized Indian tribe in the commonwealth to establish

a tribal casino in region C." 2011 Mass. Acts ch. 194, § 2A. The

Commission is empowered to "provide assistance to the governor in

negotiating a compact with a federally-recognized Indian tribe in

the commonwealth." Mass. Gen. Laws ch. 23K, § 4(40). The

Commission is required to:

Compact § 9.2.4. This provision allows the tribe to "elect to
either: (a) cease operations of its casino within sixty (60) days,"
or "(b) continue under this Compact but reduce the Allocation [to
the Commonwealth] to fifteen percent (15%) of Gross Gaming
Revenues." Id.

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 continue to evaluate the status of Indian
tribes in the commonwealth including, without
limitation, gaining federal recognition or
taking land into trust for tribal economic
development. The commission shall evaluate
and make a recommendation to the governor and
the chairs of the joint committee on economic
development and emerging technologies as to
whether it would be in the best interest of
the commonwealth to enter into any
negotiations with those tribes for the purpose
of establishing Class III gaming on tribal
land.

Id. § 67.

The Act creates a thirteen member "gaming policy advisory

committee," and requires one of the governor's eight appointees to

the committee to "be a representative of a federally recognized

Indian tribe in the commonwealth." Id. § 68(a). The committee

must meet at least once a year to make advisory recommendations to

the Commission. Id. The Act expressly provides that the

committee's recommendations "shall not be binding on the

commission." Id.

B. The IGRA

"Congress passed the Indian Gaming Regulatory Act in 1988

in order to provide a statutory basis for the operation and

regulation of gaming by Indian tribes." Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 48 (1996). The IGRA was passed in part in

response to the Court's decision in California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987), which held that California

lacked authority to regulate bingo gambling conducted by Indian

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tribes on Indian land within the state. Id. at 221-22. The IGRA

creates a cooperative federal-state-tribal scheme for regulation of

gaming hosted by federally recognized Indian tribes on Indian land.

In doing so the IGRA allows the states a limited and closely

defined role in the process. It also limits the conditions under

which tribes are allowed to enter into gaming. Both of these

limits are implicated in this case.

The IGRA categorizes gaming into three classes: Class I

consists of "social games solely for prizes of minimal value or

traditional forms of Indian gaming," 25 U.S.C. § 2703(6), Class II

consists of bingo and certain card games that are either authorized

by the law of the state or not explicitly prohibited by the state

and played in the state, id. § 2703(7), and Class III consists of

all other forms of gaming, id. § 2703(8). A category 1 license

would fall within Class III gaming.

The IGRA sets out when Class III gaming may be conducted:

Class III gaming activities shall be lawful on
Indian lands only if such activities are--

(A) authorized by an ordinance or resolution
that--

(i) is adopted by the governing body of
the Indian tribe having jurisdiction
over such lands,

(ii) meets the requirements of
subsection (b) of this section, and

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 (iii) is approved by the Chairman,5

(B) located in a State that permits such
gaming for any purpose by any person,
organization, or entity, and

(C) conducted in conformance with a
Tribal-State compact entered into by the
Indian tribe and the State under paragraph (3)
that is in effect.

Id. § 2710(d)(1). Compliance with these conditions is required

from both states and tribes.

At the heart of this case are the provisions of the IGRA

which make clear that tribal gaming may only be conducted by an

"Indian tribe" on "Indian lands," as both terms are defined in the

IGRA. See, e.g., id. ("Class III gaming activities shall be lawful

on Indian lands only if . . . ." (emphasis added)); id.

§ 2710(d)(2)(C) ("[C]lass III gaming activity on the Indian lands

of the Indian tribe shall be fully subject to the terms and

5
The term "Chairman" refers to the chair of the National
Indian Gaming Commission (NIGC), created by the IGRA within the
Department of the Interior to undertake certain functions related
to Indian gaming. 25 U.S.C. § 2704.
The Chairman must approve any tribal ordinance allowing
gaming "unless the Chairman specifically determines that-- (i) the
ordinance or resolution was not adopted in compliance with the
governing documents of the Indian tribe, or (ii) the tribal
governing body was significantly and unduly influenced in the
adoption of such ordinance or resolution by any person identified
in section 2711(e)(1)(D) of this title." Id. § 2710(d)(2)(B).
The NIGC has authority to levy and collect fines and
initiate proceedings to shut down gaming operations against tribal
operators or contractors engaged in gaming, "for any violation of
any provision of this chapter, any regulation prescribed by the
Commission pursuant to this chapter, or tribal regulations,
ordinances, or resolutions approved under section 2710 or 2712 of
this title." Id. § 2713(a)(1).

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conditions of the Tribal-State compact . . . ." (emphasis added));

id. § 2710(d)(8)(A) ("The Secretary [of the Interior] is authorized

to approve any Tribal-State compact entered into between an Indian

tribe and a State governing gaming on Indian lands of such Indian

tribe." (emphasis added)). The Supreme Court has recently remarked

that under the IGRA, "an Indian tribe may conduct gaming operations

on 'Indian lands.'" Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 132 S. Ct. 2199, 2203 n.1 (2012).

We highlight the two key IGRA provisions important to the

equal protection challenge at issue here: the Indian lands

definition and the compact process, both described below.

The IGRA defines the term "Indian tribe" as "any Indian

tribe, band, nation, or other organized group or community of

Indians which-- (A) is recognized as eligible by the Secretary for

the special programs and services provided by the United States to

Indians because of their status as Indians, and (B) is recognized

as possessing powers of self-government." 25 U.S.C. § 2703(5).

Of particular importance is the term "Indian lands,"

which is defined as:

(A) all lands within the limits of any Indian
reservation; and

(B) 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.

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Id. § 2703(4).

The IGRA also makes clear that gaming may only be

conducted if a tribal-state compact is negotiated and approved by

the Secretary of the Interior. Id. § 2710(d)(1)(C), (d)(3)(B). As

to the tribal-state negotiation process, the IGRA provides:

(A) Any Indian tribe having jurisdiction over
the Indian lands upon which a class III gaming
activity is being conducted, or is to be
conducted, shall request the State in which
such lands are located to enter into
negotiations for the purpose of entering into
a Tribal-State compact governing the conduct
of gaming activities. Upon receiving such a
request, the State shall negotiate with the
Indian tribe in good faith to enter into such
a compact.6

(B) Any State and any Indian tribe may enter
into a Tribal-State compact governing gaming
activities on the Indian lands of the Indian
tribe, but such compact shall take effect only
when notice of approval by the Secretary of
such compact has been published by the
Secretary in the Federal Register.

6
The IGRA confers jurisdiction on the United States district
courts over, inter alia, "any cause of action initiated by an
Indian tribe arising from the failure of a State to enter into
negotiations with the Indian tribe for the purpose of entering into
a Tribal-State compact under paragraph (3) or to conduct such
negotiations in good faith." 25 U.S.C. § 2710(d)(7)(A)(i). The
provisions of that subsection "describe an elaborate remedial
scheme designed to ensure the formation of a Tribal-State compact."
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 50 (1996).
The Seminole Tribe Court held that Congress lacked
authority to abrogate the states' sovereign immunity to allow suit
to be brought to enforce the good-faith requirement. Id. at 47.
The Court also held that the Ex parte Young doctrine may not be
used to enforce that requirement against state officials, and
instead only the remedial scheme of § 2710(d)(7) may be used to
enforce that right. Id. at 47, 76.

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Id. § 2710(d)(3). Tribal-state compacts "may" cover a variety of

subjects, including any "subjects that are directly related to the

operation of gaming activities." Id. § 2710(d)(3)(C)(vii).

After such compacts are negotiated, they must be

submitted to the Secretary of the Interior for approval. The IGRA

provides: "(A) The Secretary is authorized to approve any

Tribal-State compact entered into between an Indian tribe and a

State governing gaming on Indian lands of such Indian tribe." Id.

§ 2710(d)(8).

Assuming there is a compact as defined in (A), the IGRA

goes on to provide:

(B) The Secretary may disapprove a compact
described in subparagraph (A) only if such
compact violates--

(i) any provision of this chapter,

(ii) any other provision of Federal law
that does not relate to jurisdiction
over gaming on Indian lands, or

(iii) the trust obligations of the
United States to Indians.

(C) If the Secretary does not approve or
disapprove a compact described in subparagraph
(A) before the date that is 45 days after the
date on which the compact is submitted to the
Secretary for approval, 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 this
chapter.

(D) The Secretary shall publish in the Federal
Register notice of any Tribal-State compact

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 that is approved, or considered to have been
approved, under this paragraph.

Id. Once a tribal-state compact is negotiated and approved by the

Secretary, and the other requirements of § 2710(d)(1) are met,

Class III gaming may be conducted.

The IGRA contains additional provisions in another

section governing "[g]aming on lands acquired after October 17,

1988." Id. § 2719. The lands here were acquired by the Mashpee

after October 17, 1988. This section provides that, except as

provided in subsections (a) and (b), "gaming regulated by this

chapter shall not be conducted on lands acquired by the Secretary

in trust for the benefit of an Indian tribe after October 17,

1988." Id. § 2719(a). Subsection (a) contains two exceptions

relating to Indian reservations not relevant here. Subsection (b)

contains several exceptions relevant only to particular tribes

listed in the statute, and two general exceptions:

(1) Subsection (a) of this section will not
apply when–

(A) the Secretary, after consultation
with the Indian tribe and appropriate
State and local officials, including
officials of other nearby Indian
tribes, determines that a gaming
establishment on newly acquired lands
would be in the best interest of the
Indian tribe and its members, and would
not be detrimental to the surrounding
community, but only if the Governor of
the State in which the gaming activity
is to be conducted concurs in the
Secretary's determination; or

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 (B) lands are taken into trust as part
of–

(i) a settlement of a land claim,

(ii) the initial reservation of an
Indian tribe acknowledged by the
Secretary under the Federal
acknowledgment process, or

(iii) the restoration of lands for
an Indian tribe that is restored
to Federal recognition.

Id. § 2719(b). This section also provides that "[n]othing in this

section shall affect or diminish the authority and responsibility

of the Secretary to take the land into trust." Id. § 2719(c).

The statute conferring authority on the Secretary of the

Interior to take land into trust is 25 U.S.C. § 465, which

authorizes the Secretary to take land into trust "for the purpose

of providing land for Indians." Id. Section 479 provides that

"[t]he term 'Indian' as used in this Act shall include all persons

of Indian descent who are members of any recognized Indian tribe

now under Federal jurisdiction." Id. § 479. The Secretary has

promulgated regulations governing the land into trust process. 25

C.F.R. pt. 151.

The Supreme Court has interpreted the language of § 479

in a way which directly impacts the analysis here. In Carcieri v.

Salazar, 129 S. Ct. 1058 (2009), the Court held that "for purposes

of § 479, the phrase 'now under Federal jurisdiction' refers to a

tribe that was under federal jurisdiction at the time of the

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statute's enactment" in June 1934. 129 S. Ct. at 1061. The Court

held that since the tribe at issue there had not argued that it was

under federal jurisdiction in 1934, and the evidence in the record

was undisputed and to the contrary, the Secretary lacked authority

to take land into trust for the tribe. Id. at 1068. Neither the

Mashpee nor the Aquinnah, the two federally recognized tribes in

Massachusetts,7 were federally recognized in 1934,8 raising the

serious issue of whether the Secretary has any authority, absent

Congressional action, to take lands into trust for either tribe.

In a concurring opinion, Justice Breyer stated that the

"interpretation that reads 'now' as meaning 'in 1934' may prove

somewhat less restrictive than it at first appears" because "a

tribe may have been 'under Federal jurisdiction' in 1934 even

though the Federal Government did not believe so at the time." Id.

at 1069 (Breyer, J., concurring). Justice Souter and Justice

Ginsburg, concurring in part and dissenting in part, agreed with

7
The most recent list of federally recognized tribes
published by the Bureau of Indian Affairs lists only these two
tribes as Massachusetts tribes. See Indian Entities Recognized and
Eligible to Receive Services From the United States Bureau of
Indian Affairs, 75 Fed. Reg. 60,810, 60,811, 60,813 (Oct. 1, 2010).
8
See Final Determination for Federal Acknowledgment of the
Mashpee Wampanoag Indian Tribal Council, Inc. of Massachusetts, 72
Fed. Reg. 8,007 (Feb. 22, 2007) (finding that the Mashpee meet the
criteria for federal acknowledgment under 25 C.F.R. § 83.7); Final
Determination for Federal Acknowledgment of the Wampanoag Tribal
Council of Gay Head, Inc., 52 Fed. Reg. 4,193 (Feb. 10, 1987)
(finding that the Aquinnah meet the criteria for federal
acknowledgment under 25 C.F.R. § 83.7).

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this analysis. Id. at 1071 (Souter, J., concurring). We do not

know whether the Mashpee's land in trust application to the

Secretary includes any such allegation or support for such a claim.

No party has provided such information.

The Court recently summarized Carcieri as holding that

"§ 465 authorizes the Secretary to take land into trust only for

tribes that were 'under federal jurisdiction' in 1934." Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians, 132 S. Ct. at 2204.

In a footnote, the Court remarked that it was not addressing the

scope of Carcieri, including whether the tribe at issue there "was

'under federal jurisdiction' in 1934, as Carcieri requires," and

"how that question relates to Patchak's allegation that the Band

was not 'federally recognized' at the time." Id. at 2204 n.2.

II.

A. The Complaint

KG Urban Enterprises, LLC, is an equity development

company that specializes in the redevelopment of urban brownfield

sites. Over the past four years, it has invested $4.6 million

dollars in preparing a plan for converting a site in downtown New

Bedford, Massachusetts, into an over $1 billion multi-use property

that includes a gaming facility. KG plans on applying for a Region

C gaming license for that property "as soon as it is permitted to

do so."

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 KG filed its complaint on November 22, 2011, the same day

the Massachusetts Gaming Act was passed, naming as defendants the

Governor of Massachusetts and the Commission members.

KG's complaint alleged, and the parties agree on appeal,

that there are two federally recognized tribes in Massachusetts --

the Mashpee Wampanoag Tribe, and the Wampanoag Tribe of Gay Head

(Aquinnah), both officially recognized after 1934. The Mashpee

possess no Indian lands in Massachusetts. The Mashpee have passed

a tribal ordinance authorizing gaming, which has been approved by

the National Indian Gaming Commission (NIGC), satisfying one of the

IGRA's requirements to conduct Class III gaming. See Letter from

Tracie L. Stevens, Chairwoman, Nat'l Indian Gaming Comm'n, to

Cedric Cromwell, Chairperson and President, Mashpee Wampanoag Tribe

(June 5, 2012), available at http://www.nigc.gov/

Portals/0/NIGC%20Uploads/readingroom/gamingordinances/

mashpeewampanoagtribe/Mashpee.pdf. The letter from the NIGC

approving the ordinance noted that "any Class III gaming must be

conducted pursuant to a gaming compact entered into with the

Commonwealth of Massachusetts, or pursuant to Class III gaming

procedures approved by the Secretary of the Interior." Id. As to

Indian lands, the letter stated that "[i]t is also my understanding

that the Tribe has not yet acquired Indian lands as defined by

IGRA. It is therefore important to note that approval is granted

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for gaming only on Indian lands, as defined in IGRA, over which the

tribe has jurisdiction." Id.

The Mashpee and the Governor of Massachusetts entered

into a tribal-state compact on July 12, 2012. The compact provides

that gaming may only be conducted on an "Approved Gaming Site"

defined as "a single site on Indian Lands, as defined in IGRA, that

is legally eligible under IGRA for the conduct of" gaming. Mashpee

Tribal-State Compact § 3.3. The compact further provides that "the

Tribe is authorized to operate [gaming] only in accordance with

this Compact, IGRA and the Tribal Gaming Ordinance and the Tribe

shall only conduct such Gaming on Indian Lands as authorized under

IGRA." Id. § 4.1. The compact notes that "[t]he Tribe presently

has no lands held in trust, for Gaming purposes or otherwise." Id.

§ 9.1.1. The compact provides it is to "become effective upon the

publication of notice of approval by the United States Secretary of

the Interior in the Federal Register in accordance with" the IGRA.

Id. § 22. The compact was approved by the House of the

Massachusetts legislature on July 18, 2012, and by the Senate on

July 26, 2012. H. 4261, 187th Gen. Court (Mass. 2012). It is

against this general backdrop that the legal issues are framed.

The most powerful of KG's theories on appeal is that § 91

of the Massachusetts Gaming Act discriminates on the basis of race,

harming KG's ability to seek a commercial gaming license and the

terms that would govern any such license, in violation of the Equal

-21-
Protection Clause of the Fourteenth Amendment.9 The essence of the

argument is that while there are two federally recognized tribes,

the Mashpee and the Aquinnah, neither possesses any Indian lands

and so tribal gaming cannot be authorized under the IGRA.10 KG

argues that since the Secretary has not (and most likely cannot

under present law) authorize a Mashpee-Massachusetts gaming compact

under the IGRA, the state has excluded KG from entering the gaming

market and given the Mashpee a preference unlimited in duration.

Since only the federal government, not the state, has plenary power

to give tribes preferences (and even then limited), the state's

attempt to prefer the Mashpee is a form of race discrimination and

is not authorized by Congress. KG argues that such racial

discrimination requires more than mere rationality to justify it;

the discrimination practiced here is inherently suspect and entails

the highest scrutiny. The weakness of the state's rationale for

this preference is demonstrated by the inherent tension between

§ 91 and the "Indian lands" provision of the IGRA. For the same

reasons, KG argues that § 91 violates the Massachusetts Declaration

of Rights.

9
The complaint also alleged that § 91 is preempted by the
IGRA insofar as it authorizes Class III gaming without requiring
that the IGRA's requirements be complied with. This claim is not
pursued on appeal.
10
While the Aquinnah possess a small parcel of land, the
Commonwealth has taken the position that they have waived their
right to conduct gaming on that land.

-22-
 KG's complaint also raised equal protection claims as to

the $5 million in funding for negotiation of a compact and the seat

reserved for a representative of a federally recognized Indian

tribe on the advisory committee.

The complaint alleged that § 91 of the Act caused and

will cause to KG several injuries: (1) "KG will be locked out of

the application process for a gaming license until July 31, 2012,

and may never have an opportunity to compete for a license," if a

tribal-state compact is entered into, (2) the uncertainty over

whether non-tribal entities would be able to apply for a gaming

license causes harm and is deterring investors and operators from

pursuing opportunities in the southeast region, and (3) even if

non-tribal applications were at some point accepted, licensees in

Region C would be at a competitive disadvantage because the other

two regions were likely to have operational casinos before Region

C. The complaint further alleged that because "the federal process

for awarding land-in-trust is in a state of paralysis in the wake

of Carcieri . . . there is no prospect that the Mashpee Wampanoag

will be in a position to engage in casino-style gaming consistent

with the IGRA in the foreseeable future."

As to relief, KG requested (1) a declaratory judgment

that the Massachusetts Gaming Act is unconstitutional in its

entirety, or at a minimum as to its Indian tribe related

provisions; (2) a declaration that the Act is preempted to the

-23-
extent it authorizes Indian tribes to engage in gaming without

complying with the IGRA; (3) a preliminary and permanent injunction

preventing the defendants from enforcing the unlawful provisions of

the Massachusetts Gaming Act, and (4) an award of reasonable

attorneys' fees.

B. Procedural History

The same day it filed the complaint, KG also filed a

motion for a preliminary injunction blocking the defendants from

enforcing the challenged provisions of the Act. In support of the

motion, KG attached an affidavit of KG's managing director, which

essentially reiterated the facts as to KG's New Bedford project and

the injuries to KG arising out of § 91 as alleged.

The defendants opposed the motion on the merits, and

argued that KG's claims regarding § 91 were not ripe and the court

accordingly lacked jurisdiction. The defendants also submitted, on

January 27, 2012, an affidavit from Stephen P. Crosby, who was

appointed Chairman of the Gaming Commission on December 13, 2011,

stating that the Commission "will almost certainly not be accepting

applications any earlier than October 2012," and possibly not until

sometime in 2013. The Chairman was the only member of the

Commission to be appointed at that point, the remaining members

would need to be appointed,11 and then the Commission would need to

11
The remaining members have since been appointed, with the
final two members appointed on March 20, 2012. See Press Release,
Governor Deval Patrick, Five-Member Massachusetts Gaming Commission

-24-
hire staff, develop criteria for applications, request applications

for category 2 licenses, and only then finally solicit category 1

license applications. The affidavit concluded by stating that

there was "little to no chance that the Commission will be in a

position to award or issue any category 1 license before the second

half of 2013."

On February 16, 2012, the district court denied KG's

request for a preliminary injunction. KG Urban Enters., LLC v.

Patrick, 839 F. Supp. 2d 388, 407 (D. Mass. 2012). The court first

found that the issues of ripeness, standing, sovereign immunity,

and Pullman abstention did not preclude it from addressing the

merits, with the exception of KG's challenge to the advisory

committee seat, which the district court dismissed on standing

grounds. Id. at 396-99.

On the merits, the court rejected both of KG's legal

theories. The court held that the Massachusetts Gaming Act was not

preempted by the IGRA, in part because § 91 "does not create a

separate tribal gaming regime in Massachusetts but rather

establishes the procedures by which IGRA-authorized compacting may

take place under Massachusetts law." Id. at 401.

Now Complete And Moving Forward With Business (Mar. 20, 2012),
available at http://www.mass.gov/governor/pressoffice/
pressreleases/2012/2012320-five-member-gaming-commission-
now-complete.html.

-25-
 The court also rejected the equal protection claim as to

§ 91. The court treated the equal protection claims under federal

law and state law as "coextensive" with one another. Id. at 402.

The court reasoned that because § 91 of the Massachusetts Gaming

Act was enacted in the state's exercise of its authority delegated

to it under the IGRA, the Court's holding in Washington v.

Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S.

463 (1979), mandated that only rational basis review be applied to

the statute, rather than strict scrutiny. KG Urban Enters., 839 F.

Supp. 2d at 404-05. Applying that standard, the court found that

the rational basis test was satisfied. Id. at 405-06.

The district court also dismissed the complaint,

explaining that "because plaintiff brings only a facial equal

protection challenge to the Gaming Act and no further briefing or

proceedings would affect this Court's constitutional analysis,"

dismissal was proper. Id. at 407. KG appeals.

III.

KG's equal protection claim presents a question of law

and so is reviewed de novo. See, e.g., United States v. Rehlander,

666 F.3d 45, 47 (1st Cir. 2012) ("The issues before us are legal

and our review is therefore de novo."). We review the district

court's dismissal of the complaint de novo. See

Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 532 (1st

Cir. 2011), cert. denied, 183 L. Ed. 2d 615 (2012). KG requests

-26-
not only that its complaint be reinstated, but that the case be

remanded with judgment entered in its favor and that § 91(e) be

permanently enjoined. We review denials of both permanent and

preliminary injunctive relief for abuse of discretion (with legal

issues reviewed de novo). Mercado-Salinas v. Bart Enters. Int'l,

Ltd., 671 F.3d 12, 19-20 (1st Cir. 2011); Animal Welfare Inst. v.

Martin, 623 F.3d 19, 26 (1st Cir. 2010).

KG has narrowed the claims it has pursued on appeal. KG

no longer advances its claim that the Massachusetts Gaming Act is

directly in conflict with and so preempted by the IGRA, because the

Commonwealth has conceded that nothing in the Massachusetts Gaming

Act contemplated authorization of tribal gaming outside of the

IGRA. KG has also declined to advance any argument as to the $5

million appropriation for use in negotiating a tribal-state

compact.

Defendants argue (1) that KG's claim as to § 91 is not

ripe and (2) that KG has no standing to challenge the composition

of the advisory committee established by the Massachusetts Gaming

Act.

We address the challenge to the advisory committee and

KG's state-law claim before turning to the challenge to § 91.

A. Standing to Pursue Advisory Committee Claim

We reject KG's challenge as to the advisory committee on

standing grounds. KG's complaint does not plead any facts as to

-27-
why it has standing to challenge the committee's composition. Its

sole argument is that Buckley v. Valeo, 424 U.S. 1 (1976) (per

curiam), holds that an individual subject to the jurisdiction of a

regulatory agency may challenge the legality of appointments to

that body. Buckley was not so broad; rather it held that "[p]arty

litigants with sufficient concrete interests at stake may have

standing to raise constitutional questions of separation of powers

with respect to an agency designated to adjudicate their rights."

Id. at 117 (emphasis added). KG bears the burden and does not

develop any argument that it has sufficently concrete interests at

stake as to the advisory committee, or that Buckley applies to

committees that are solely advisory. The contours of Buckley's

standing analysis are not well-defined, and at least one circuit

has held that Buckley does not confer standing on plaintiffs who

are not "directly subject to the governmental authority they seek

to challenge, but merely assert that they are substantially

affected by the exercise of that authority." Comm. for Monetary

Reform v. Bd. of Governors of the Fed. Reserve Sys., 766 F.2d 538,

543 (D.C. Cir. 1985). The dismissal of this claim for lack of

standing is affirmed. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992).

B. State Declaration of Rights Claim

KG newly argues that it is entitled to greater protection

under the state constitution than the federal. Before the district

-28-
court, KG initially argued that the standard for equal protection

analysis was the same under the federal constitution and under the

Massachusetts Declaration of Rights. KG later submitted a

supplemental filing regarding Finch v. Commonwealth Health

Insurance Connector Authority, 959 N.E.2d 970 (Mass. 2012), arguing

that the decision "further demonstrates that the Act violates the

Equal Protection Clause and Declaration of Rights."

While that opinion was issued after KG's motion for a

preliminary injunction was filed, the legal principle for which KG

cites the case was decided by the Supreme Judicial Court in an

earlier opinion in the same case, before KG's motion was filed.

See Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d

1262, 1276 (Mass. 2011) ("Where the Federal government has made a

binding decision regarding the treatment of aliens, that decision

will be reviewed according to the standards applicable to the

Federal government even though the immediate actor may be a State

government. In comparison, where the State acts on its own

authority, it cannot shelter behind the existence of Congress's

plenary authority, and its actions are subject to strict scrutiny

review." (citation omitted)).

KG's failure to timely raise the argument that a

different standard applies to its state-law claim leads to the

conclusion that the state constitutional claim adds nothing to KG's

claim in this court. See Nat'l Amusements, Inc. v. Town of Dedham,

-29-
43 F.3d 731, 748-49 (1st Cir. 1995) (holding that where a party

treats federal and state constitutional provisions "identically"

before the district court, the party has waived any argument that

the provisions are distinct). We affirm dismissal of the state-law

claim without prejudice, particularly because "the claim raises a

novel or complex issue of State law." 28 U.S.C. § 1367(c)(1).

C. The Equal Protection Challenge to § 91

We turn now to the heart of KG's suit, the equal

protection challenge to § 91.

We review de novo, Doe v. Bush, 323 F.3d 133, 138 (1st

Cir. 2003), and reject the defendants' argument that the challenge

is not ripe.12 The equal protection challenge to § 91 is a legal

question that is fit for judicial review. The fact that the case

could be rendered moot -- for example, if the state Commission

determines that land will not be taken into trust -- does not

render the case unripe. Moreover, we have previously rejected a

claim that the contingent nature of the tribal-state compacting

process renders a suit unripe. Rhode Island v. Narrangansett

Indian Tribe, 19 F.3d 685, 693-94 (1st Cir. 1994).13

12
After the Mashpee Tribal-State Compact was approved by the
Massachusetts legislature, the defendants withdrew their ripeness
objection.
13
KG satisfies the minimum requirements of Article III
standing necessary to raise its equal protection challenge to § 91.
See Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v.
City of Jacksonville, Fla., 508 U.S. 656, 666 (1993) ("When the
government erects a barrier that makes it more difficult for

-30-
 Turning to the merits, the parties essentially agree that

the level of scrutiny that applies to § 91 is dispositive of the

equal protection claim.14 KG argues that § 91 constitutes a race-

based preference, insofar as § 91 allows for Indian tribes who do

not possess Indian lands, and so do not meet the IGRA's

requirements, to negotiate a tribal-state compact and, if

successful, preclude a competitive license from being awarded to

members of one group to obtain a benefit than it is for members of
another group, a member of the former group seeking to challenge
the barrier need not allege that he would have obtained the benefit
but for the barrier in order to establish standing. The 'injury in
fact' in an equal protection case of this variety is the denial of
equal treatment resulting from the imposition of the barrier, not
the ultimate inability to obtain the benefit.").
14
KG does suggest that even if § 91 is subject to rational
basis review, there is nothing that warrants Region C being treated
differently from the other regions, and so § 91 fails even under
rational basis review. One aspect of this argument fails, as the
legislature could have rationally concluded that the southeast
portion of the state is the part of the state in which a federally
recognized tribe would be most likely to acquire Indian lands,
particularly given that the Aquinnah presently possess certain land
in that region and the Mashpee have previously applied to have land
in that region taken into trust. See 73 Fed. Reg. 12,204 (Mar. 6,
2008).
This does not address or foreclose KG's remaining arguments
that the differentiation of Region C from the other two regions
rests expressly on the tribal preference and if that preference
fails, then the differentiation must fail. Since the state
legislature has tied the differentiation solely to the tribal
preference, this is not an instance in which a state has merely
decided to treat its regions separately. See Montalvo-Huertas v.
Rivera-Cruz, 885 F.2d 971, 981 (1st Cir. 1989) (explaining that
"territorial uniformity is not a constitutional prerequisite" under
the Equal Protection Clause (quoting McGowan v. Maryland, 366 U.S.
420, 427 (1961)) (internal quotation marks omitted)).

-31-
non-tribal applicants in Region C, at least until the Secretary of

the Interior decides against the tribe's application.

The defendants respond with two arguments, which

basically state all-or-nothing propositions. First, defendants

broadly claim that, under Morton v. Mancari, 417 U.S. 535 (1974),

the state's classification based on tribal status is political, not

racial, in nature, and so subject only to rational basis review.

Second, defendants argue, more narrowly, that, under Washington v.

Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S.

463 (1979), even if the classification were racial in nature, it is

authorized by the IGRA and thus subject only to rational basis

review.

The defendants have not offered a middle ground nor have

they formally argued that a state may choose to allow at least a

limited grace period to tribes to attempt to obtain needed

approvals under the IGRA from the Secretary (and Congress, if

needed), though that is self-evidently one purpose of § 91.15

There are difficulties with each party's arguments. In

the end, though, it is clear to us that KG's suit should not have

been dismissed, and that KG is not entitled at this point to the

equitable relief it seeks. For reasons discussed below, we affirm

15
The Commissioner of the Massachusetts Gaming Commission has
stated that "[w]e'll give the tribe whatever the appropriate amount
of time is to get that decision made," and would "let the tribe
have their fair shot to get the land in trust." Brenann, Patrick
Expects Casino Deal Next Week, Cape Cod Times, June 13, 2012.

-32-
the denial of a grant of relief as an appropriate exercise of the

discretion as to whether to issue both a preliminary injunction and

a declaratory judgment under 28 U.S.C. § 2201(a). We first outline

the legal issues raised as to the equal protection claim.

1. The Equal Protection Clause and State-Law
Classifications Based on Tribal Status

a. Morton v. Mancari

The defendants' first argument is that a state-granted

preference to a tribe is not a racial preference and so entails

only rational basis review. This argument relies on language used

by the Court in Mancari, 417 U.S. 535. There, the Court addressed

whether a federal law granting an employment preference for

qualified Indians in a federal agency, the Bureau of Indian Affairs

(BIA), violated the equal protection component of the Due Process

Clause of the Fifth Amendment. 417 U.S. at 537. A statute

directed the Secretary of the Interior to adopt standards "for

Indians who may be appointed, without regard to civil-service laws,

to the various positions maintained, now or hereafter, by the

Indian office, in the administration of functions or services

affecting any Indian tribe. Such qualified Indians shall hereafter

have the preference to appointment to vacancies in any such

positions." Id. at 537-38 (quoting 25 U.S.C. § 472) (internal

quotation mark omitted). The BIA adopted a policy that "[w]here

two or more candidates who meet the established qualification

requirements are available for filling a vacancy. If one of them

-33-
is an Indian, he shall be given preference in filling the vacancy."

Id. at 538 n.3.

The Court rejected the equal protection challenge to the

federal statute. The Court first noted that "[t]he plenary power

of Congress to deal with the special problems of Indians is drawn

both explicitly and implicitly from the Constitution itself,"

citing the portion of the Commerce Clause allowing regulation of

commerce "with the Indian tribes," as well as the treaty power.

Id. at 551-52 (citing U.S. Const. art. I, § 8, cl. 3). The Court

then noted that there was a "special relationship" between the

federal government and Indian tribes, and that "[l]iterally every

piece of legislation dealing with Indian tribes and reservations

. . . single[s] out for special treatment a constituency of tribal

Indians living on or near reservations." Id. at 552. It was "in

this historical and legal context" that the Court addressed the

equal protection claim. Id. at 553.

The Court held that "this preference does not constitute

'racial discrimination.' Indeed, it is not even a 'racial'

preference. Rather, it is an employment criterion reasonably

designed to further the cause of Indian self-government and to make

the BIA more responsive to the needs of its constituent groups."

Id. at 553-54 (footnote omitted). The Court further explained:

The preference, as applied, is granted to
Indians not as a discrete racial group, but,
rather, as members of quasi-sovereign tribal
entities whose lives and activities are

-34-
 governed by the BIA in a unique fashion. In
the sense that there is no other group of
people favored in this manner, the legal
status of the BIA is truly sui generis.

Id. at 554 (citation and footnote omitted). This passage was

followed by rather pointed language that if the preference were

applied to employment in federal agencies not related to Indians,

a different question would be presented:

Furthermore, the preference applies only to
employment in the Indian service. The
preference does not cover any other Government
agency or activity, and we need not consider
the obviously more difficult question that
would be presented by a blanket exemption for
Indians from all civil service examinations.
Here, the preference is reasonably and
directly related to a legitimate, nonracially
based goal. This is the principal
characteristic that generally is absent from
proscribed forms of racial discrimination.

Id. at 554.

In a footnote, the Court remarked: "The preference is not

directed towards a 'racial' group consisting of 'Indians'; instead,

it applies only to members of 'federally recognized' tribes. This

operates to exclude many individuals who are racially to be

classified as 'Indians.' In this sense, the preference is

political rather than racial in nature." Id. at 553 n.24. The

Commonwealth relies on but overreads the footnote.

The Court concluded by explaining that "[a]s long as the

special treatment can be tied rationally to the fulfillment of

Congress' unique obligation toward the Indians, such legislative

-35-
judgments will not be disturbed," and that this standard was

satisfied. Id. at 555.

Mancari's analysis as to federal laws giving preference

based on "Congress' unique obligation toward the Indians" has been

reaffirmed. See, e.g., Washington v. Wash. State Commercial

Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20 (1979)

(noting that "this Court . . . has repeatedly held that the

peculiar semisovereign and constitutionally recognized status of

Indians justifies special treatment on their behalf when rationally

related to the Government's 'unique obligation toward the Indians'"

(quoting Mancari, 417 U.S. at 555)); United States v. Antelope, 430

U.S. 641, 645 (1977) ("Legislation with respect to these 'unique

aggregations' has repeatedly been sustained by this Court against

claims of unlawful racial discrimination." (citing Mancari, 417

U.S. at 552)); see also Duro v. Reina, 495 U.S. 676, 692 (1990)

("That Indians are citizens does not alter the Federal Government's

broad authority to legislate with respect to enrolled Indians as a

class, whether to impose burdens or benefits." (citing Antelope and

Mancari)), superseded by statute as recognized in United States v.

Lara, 541 U.S. 193, 197-98, 207 (2004).

However, it is quite doubtful that Mancari's language can

be extended to apply to preferential state classifications based on

tribal status. Mancari itself relied on several sources of federal

authority to reach its holding, including the portion of the

-36-
Commerce Clause relating to Indian tribes, the treaty power, and

the special trust relationship between Indian tribes and the

federal government. 417 U.S. at 552-53.

The states have no such equivalent authority,16 which is

ceded by the Constitution to the federal government. Further, the

state preference here has to do with establishment of gaming

facilities and not employment of Indians within agencies whose

mission is to assist Indians. Moreover, Mancari itself said that

a different question would be presented by a preference in all

civil services positions, and suggested that might be viewed as

race based discrimination.

KG argues that the state's argument that no racial

classification is involved is undercut by Rice v. Cayetano, 528

U.S. 495 (2000). In Rice, a case under the Fifteenth Amendment,

the Court declined to "extend the limited exception of Mancari to

a new and larger dimension," id. at 520, and rejected the state of

Hawaii's claim that Mancari applied to allow a voting scheme the

state established regarding the Office of Hawaiian affairs, id. at

522. The voting scheme permitted only "Hawaiians," defined as "any

16
Indeed, the state's broad reading of Mancari is
inconsistent with the Court's later decision in Washington v.
Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S.
463 (1979). We discuss Yakima below, and cite it now for its
holding that "[s]tates do not enjoy this same unique relationship
with Indians" which "permits the Federal Government to enact
legislation singling out tribal Indians, legislation that might
otherwise be constitutionally offensive." Id. at 501.

-37-
descendant of the aboriginal peoples inhabiting the Hawaiian

Islands which exercised sovereignty and subsisted in the Hawaiian

Islands in 1778," to vote for the trustees of the Office. Id. at

509 (quoting Haw. Rev. Stat. § 10-2). The Court held this special

favorable treatment of Hawaiians was an impermissible racial

classification. Id. at 517-22. The Court also held that

"[a]ncestry can be a proxy for race," and was so in the context of

the statute at issue there. Id. at 514. The effect of Rice on a

Fourteenth Amendment claim involving federally recognized tribes is

unclear.

The defendants cite no authority holding that state

preferential classifications based on tribal status which are not

authorized by federal law are nonetheless not racial

classifications under Mancari. Instead, they cite a number of

cases upholding state laws, which are not like this case, said to

be authorized by federal law under the rationale of Yakima. See

Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 736 (9th

Cir. 2003) (upholding state law regarding Indian gaming enacted

pursuant to the IGRA); United States v. Garrett, 122 F. App'x 628,

631-33 (4th Cir. 2005) (same, following Artichoke Joe's); Squaxin

Island Tribe v. Washington, 781 F.2d 715, 722 n.10 (9th Cir. 1986)

(upholding state law where "the state is acting under a federal

statute explicitly adjusting the state's jurisdiction over

Indians"); Greene v. Comm'r of Minn. Dep't of Human Servs., 755

-38-
N.W.2d 713, 727 (Minn. 2008) (upholding state law where the law was

"a direct response" to a federal law, citing Yakima); N.Y. Ass'n of

Convenience Stores v. Urbach, 699 N.E.2d 904, 908 (N.Y. 1998)

(upholding state law on the rationale of Yakima).

We turn next to the defendants' argument that

nevertheless the state may still make the classification, because

§ 91 is authorized by the IGRA under Yakima. In the present

posture of this case, that too is quite doubtful.

b. Yakima

The premise of defendants' argument is their assertion

that § 91 was "enacted under explicit authority granted by Congress

in IGRA," and so is subject to rational basis review under Yakima.

While stronger than the Mancari rationale, and the "authorization"

rationale states a sound argument where it applies, it is

questionable whether the IGRA "authorizes" the state's actions on

the present facts. Indeed, KG in effect argues that as the Supreme

Court has interpreted the land in trust statute in Carcieri, the

intent of Congress was that the Secretary could not take land into

trust for tribes such as the Mashpee, and so the intent of Congress

is on the other side of the issue.

In Yakima, the Court addressed the equal protection

analysis of state laws as to Indian tribes where the state acted

pursuant to Congressional authorization. The State of Washington,

-39-
pursuant to authorization granted by federal Public Law 280,17

enacted Chapter 36, extending the state's exercise of jurisdiction

onto the Yakima Reservation in certain instances. 439 U.S. at

465-66. The Yakima Nation brought suit raising, among other

claims, one of an equal protection violation. Id. at 466-67. The

Court rejected the claim. The Court first found that the state law

"violates neither the procedural nor the substantive terms of"

Public Law 280, and so the state was authorized by Congress under

that law to extend jurisdiction over the reservation. Id. at 499.

The Court then addressed the equal protection claim. The Court

rejected the argument that this was a racial classification giving

rise to heightened scrutiny, explaining, in the opinion's key

passage:

It is settled that "the unique legal status of
Indian tribes under federal law" permits the
Federal Government to enact legislation
singling out tribal Indians, legislation that
might otherwise be constitutionally offensive.
Morton v. Mancari, 417 U.S. 535, 551-552.
States do not enjoy this same unique
relationship with Indians, but Chapter 36 is
not simply another state law. It was enacted
in response to a federal measure explicitly
designed to readjust the allocation of
jurisdiction over Indians. The jurisdiction
permitted under Chapter 36 is, as we have
found, within the scope of the authorization
of Pub. L. 280. And many of the
classifications made by Chapter 36 are also
made by Pub. L. 280. Indeed, classifications
based on tribal status and land tenure inhere
in many of the decisions of this Court

17
Act of Aug. 15, 1953, ch. 505, 67 Stat. 588.

-40-
 involving jurisdictional controversies between
tribal Indians and the States, see, e. g.,
United States v. McBratney, 104 U.S. 621. For
these reasons, we find the argument that such
classifications are "suspect" an untenable
one. The contention that Chapter 36 abridges
a "fundamental right" is also untenable. It
is well established that Congress, in the
exercise of its plenary power over Indian
affairs, may restrict the retained sovereign
powers of the Indian tribes. See, e. g.,
United States v. Wheeler, 435 U.S. 313. In
enacting Chapter 36, Washington was
legislating under explicit authority granted
by Congress in the exercise of that federal
power.

Id. at 500-01. This portion of Yakima has not been addressed by

the Court since Yakima was decided.

It would be difficult to conclude that the IGRA

"authorizes" the Massachusetts statute under these circumstances --

where there are no Indian lands in Region C at present within the

meaning of the IGRA. Further, Carcieri may in the end prohibit the

Secretary from taking the Mashpee lands into trust and so making

them Indian lands, a question not yet resolved.

KG does not dispute that if a federally recognized tribe

in Massachusetts currently possessed "Indian lands" within the

meaning of the IGRA,18 § 91 would fall sufficiently within the scope

18
As said, the IGRA defines "Indian lands" as (1) "lands
within any Indian reservation" and (2) "lands title to which is
either held in trust by the United States for the benefit of any
Indian tribe or held by any Indian tribe or individual subject to
jurisdiction by the United States against alienation and over which
an Indian tribe exercises governmental power." 25 U.S.C.
§ 2703(4). Neither party addresses the meaning of the "or held by
any Indian tribe" portion of the statute or its relevance to this

-41-
of the IGRA's authorization and thus be subject to only rational

basis review. Two circuits have reached this conclusion as to

other states' Indian gaming laws. See Garrett, 122 F. App'x at

631-32; Artichoke Joe's, 353 F.3d at 736.19

KG argues with some force that the fact that a tribe may,

in the future, acquire Indian lands is insufficient for § 91 to be

considered "authorized" in the Yakima sense by the IGRA. Instead,

KG argues, a tribe20 must currently possess Indian lands in order

for § 91 in any relevant sense to be authorized by Congress.

We outline the present state of affairs as we understand

it. The Mashpee have submitted a land in trust application to the

Bureau of Indian Affairs, requesting that the Bureau take land into

trust for purposes of operating a casino in Massachusetts. See 77

Fed. Reg. 32,132, 32,133 (May 31, 2012) (BIA notice requesting

comments for purposes of preparing an environmental impact

statement for the proposed transfer into trust of 146.39 acres in

the City of Taunton, to be taken into trust "for the development of

a casino, hotel, parking, and other facilities supporting the

casino," as well as a proposed transfer into trust of 170.1 acres

case, and we do not pass on it here.
19
The Ninth Circuit expressly reserved the question of
"whether lands that are purchased specifically for the purpose of
conducting class III gaming activities are 'Indian lands' within
the meaning of IGRA." Artichoke Joe's Cal. Grand Casino v. Norton,
353 F.3d 712, 735 n.16 (9th Cir. 2003).
20
Again, we distinguish the Aquinnah for the reasons stated.

-42-
in the Town of Mashpee, Massachusetts, for other purposes). The

agreed-on tribal-state compact has yet to be approved by the

Secretary of the Interior, and the compact acknowledges that the

Mashpee currently possess no land in trust. The Governor agreed in

the compact to "support the Tribe's" land in trust application.

Mashpee Tribal-State Compact §§ 2.11, 9.1.6.

The strongest argument made by KG is based on Carcieri:

that even if being in the application process to have a Secretary

(with authority) take the purchased land into trust might suffice

for purposes of being found authorized under the IGRA as a general

matter, if no land can be taken into trust given Carcieri, § 91

cannot be viewed as authorized by the IGRA. KG's argument starts

from the premise that the Mashpee were federally recognized only

after 1934.21 That being so, KG argues, unless the tribe can

demonstrate that it was "under federal jurisdiction" in 1934 (in

the view of three Justices),22 or Congress positively grants the

21
See Final Determination for Federal Acknowledgment of the
Mashpee Wampanoag Indian Tribal Council, Inc. of Massachusetts, 72
Fed. Reg. 8,007 (Feb. 22, 2007) (finding that the Mashpee meet the
criteria for federal acknowledgment under 25 C.F.R. § 83.7).
22
The Department of the Interior has, post-Carcieri, approved
a land in trust application for a tribe recognized after 1934,
largely relying on the Carcieri concurring opinion. See U.S. Dep't
of Interior, Bureau of Indian Affairs, Trust Acquisition of, and
Reservation Proclamation for the 151.87-acre Cowlitz Parcel in
Clark County, Washington, for the Cowlitz Indian Tribe (Dec. 17,
2010), available at http://www.bia.gov/cs/groups/mywcsp/
documents/text/idc012719.pdf. It was also based on facts which may
be unique to the Cowlitz tribe, or at least not shared by the
Mashpee. There is no evidence one way or the other as to any such

-43-
Secretary new authority to take land into trust for post-1934

tribes, no land could be taken into trust given Carcieri.

Moreover, it would be inconsistent with Congressional intent to

view the IGRA, which permits gaming only on Indian lands, to

authorize negotiation of a tribal-state compact where a tribe

neither possessed such lands nor could acquire such lands in the

absence of Congressional legislation. We have not been given the

benefit of any view by the Secretary on any of these issues.

Further, the Mashpee's land in trust application has not been

placed in the record, so we do not know the predicate for the

tribe's application.

KG's argument that the IGRA cannot "authorize" § 91 in

these circumstances rests not only on Carcieri but also on the

language of the IGRA, which repeatedly uses the term "Indian lands"

in explaining when Class III gaming is permitted. In particular,

the term is used in the context of explaining when tribes and

states may negotiate a tribal-state compact:

(A) Any Indian tribe having jurisdiction over
the Indian lands upon which a class III gaming
activity is being conducted, or is to be
conducted, shall request the State in which
such lands are located to enter into
negotiations for the purpose of entering into
a Tribal-State compact governing the conduct
of gaming activities. Upon receiving such a

facts as to the Mashpee. This determination has been challenged,
including as to whether the Secretary had authority to take land
into trust given Carcieri. See Clark County, Wash. v. U.S. Dep't
of Interior, No. 11-00284 (D.D.C. filed Jan. 31, 2011).

-44-
 request, the State shall negotiate with the
Indian tribe in good faith to enter into such
a compact.

(B) Any State and any Indian tribe may enter
into a Tribal-State compact governing gaming
activities on the Indian lands of the Indian
tribe, but such compact shall take effect only
when notice of approval by the Secretary of
such compact has been published by the
Secretary in the Federal Register.

25 U.S.C. § 2710(d)(3) (emphasis added). KG argues, as a matter of

federal statutory interpretation, that the IGRA precludes a finding

of authorization here.

The Sixth Circuit has interpreted subsection (A) in

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Engler, 304

F.3d 616 (6th Cir. 2002). There, the court addressed whether an

Indian tribe which did not possess Indian lands could compel a

state to negotiate a tribal-state compact. The court held that the

tribe could not do so, as "[h]aving jurisdiction over land for the

casino is a condition precedent to negotiations and federal

jurisdiction," based on the "plain language of § 2710(d)(3)(A)."

Id. at 618. The court explained that "[s]ection (3)(A) describes

not just an Indian tribe, but one that is in possession of land."

Id. Of course, there is a distinction: there the tribe was trying

to force the state to negotiate; here the state wishes to

negotiate.23

23
The Mashpee Tribal-State Compact states that "[t]he parties
agree that IGRA negotiations need not be commenced or concluded
until the Tribe has land in trust that is qualified for Gaming."

-45-
 KG's argument based on Carcieri goes beyond the language

of the IGRA describing when a compact may be negotiated to a more

basic premise of the IGRA: that Class III gaming may occur only on

Indian lands. Because the Secretary presently most likely lacks

authority under the IGRA to take land into trust for the Mashpee,

KG argues, there is no real prospect, absent an act of Congress,

for land to be taken into trust, and so § 91 cannot be viewed as

authorized.

The defendants' response to this reading of the statute

relies not upon the terms of the statute, but on certain actions

taken by the Secretary, albeit in factual situations not identical

to this. The Secretary's present position appears to be that

tribal-state compacts may be negotiated and approved by the

Secretary even if a tribe does not currently possess Indian lands,

conditional upon the tribe's acquiring Indian lands. The most

recent position of the Secretary, cited by the parties, was

articulated in a March 2011 approval of a tribal-state compact.

There, the Secretary approved a tribal-state compact, with the

authorization of any gaming facility under the compact contingent

on the relevant land being "acquired in trust by the Secretary for

the tribe."24 76 Fed. Reg. 11,258, 11,258 (Mar. 1, 2011). Whether

Mashpee Tribal-State Compact § 9.1.2.
24
Neither party addresses whether the tribe whose compact was
approved, the Confederated Tribes of the Warm Springs Reservation,
was under federal jurisdiction in 1934 and so Carcieri would not

-46-
or not the Secretary's interpretation of the statute is correct or

would apply to the Mashpee has not been briefed and is not before

us.

The Secretary's views on whether tribal-state compacts

may be approved before the tribe possesses land that is taken into

trust have varied over the years.25 In 2005, the Secretary

disapproved a tribal-state compact between the State of Oregon and

the Confederated Tribes of the Warm Springs Reservation of Oregon,

on the basis that it could only approve a tribal-state compact

"governing gaming on Indian lands of such Indian tribe." 25 U.S.C.

§ 2710(d)(8)(A) (emphasis added). The Department's reading was

that "[t]his section does not authorize the Secretary to approve a

compact for the conduct of Class III gaming activities on lands

that are not now, and may never be, Indian lands of such Indian

tribe." Because the land was not in trust, approval of the compact

would run afoul of § 2710(d)(8)(A). The Secretary did note that

the Department had "previously approved compacts for the regulation

pose a barrier to the taking of land into trust, in contrast to
this situation.
25
In 2010, the director of the Office of Indian Gaming in the
Department of the Interior sent a letter to a member of the
Michigan House of Representatives, which explained that the IGRA
"does not authorize the Secretary to approve a compact for the
conduct of Class III gaming on lands that are not now, and may
never be, Indian lands of such Indian tribe. Thus if a compact is
'site specific' and identifies land that is not now or may never be
Indian lands in accordance with IGRA and the tribe has not
identified land that is eligible for gaming in the compact the
compact may be disapproved."

-47-
of class III gaming activities before the specified lands qualified

as Indian lands under IGRA," but upon further review of the

statute, the Secretary changed his position. See also Second

Discussion Draft of Legislation Regarding Off-Reservation Indian

Gaming: Hearing Before the H. Comm. on Res., 109th Cong. 16 (2005)

(statement of Ron Suppah, Chairman, Confederated Tribes of Warm

Springs, Or.) (discussing this 2005 compact and explaining that

"Interior has previously approved several compacts before the land

was in trust, but four days before our 45-day review ended Interior

announced to us with no forewarning that they were changing their

policy and would require the Cascade Locks' lands to be in trust

before they would consider our compact").

The Secretary has promulgated regulations governing the

procedures for submitting a tribal-state compact, see 25 C.F.R. pt.

293, but these regulations do not address the matter before us.26

The Secretary has also promulgated regulations regarding the

procedures for acquiring the Secretary's approval to conduct gaming

26
One of the comments received when the regulations were
proposed was that the Department should clarify its position on
"Indian lands," and another suggested removal of the phrase "on the
tribe's Indian lands located within the State" from the definition
of a tribal-state compact. 73 Fed. Reg. 74,004, 70,004-05 (Dec. 5,
2008). In response to the former comment, the Department stated
that "[t]his regulation addresses the process for submission by
tribes and States and consideration by the Secretary of Class III
Tribal-State Gaming Compacts, and is not intended to address
substantive issues." Id. In response to the latter comment, the
Department removed the phrase "on the Tribe's Indian lands" from
the definition of a Tribal-State compact under these procedural
regulations. Id. at 70,005.

-48-
on lands acquired in trust after October 1988 under 25 U.S.C.

§ 2719(b)(1)(A). These regulations permit tribes to apply for the

Secretary's determination "for lands not yet held in trust at the

same time that [the tribe] applies . . . to have the land taken

into trust." 25 C.F.R. § 292.15.

In sum, whether § 91 is "authorized" by the IGRA such

that it falls within Yakima and is subject to only rational basis

review is far from clear, presents a difficult question of

statutory interpretation, and implicates a practice of the

Secretary of the Interior not challenged in this suit. There is

apparently no judicial authority addressing the question of whether

a state may negotiate a tribal-state compact with a federally

recognized tribe that does not presently possess Indian lands.27

The Secretary's present position does, though, provide

some assistance to the Commonwealth. If the Secretary is willing

27
The Ninth Circuit has addressed the separate question of
whether the NIGC chairman must affirmatively determine that any
Class III gaming is to take place on Indian lands before approving
a tribal ordinance authorizing gaming. The Ninth Circuit did not
decide whether, if a tribal ordinance specifies a particular site
on which gaming is to be conducted (i.e. is a site-specific
ordinance), such a determination must take place. N. Cnty. Cmty.
Alliance, Inc. v. Salazar, 573 F.3d 738, 746 (9th Cir. 2009), cert.
denied, 130 S. Ct. 2095 (2010). It held that where an ordinance
does not specify where gaming will take place (and there need be no
such specification; i.e. the ordinance may be non-site-specific),
no such determination need be made. Id. at 746-47. Regulations
promulgated by the NIGC in 2008 now appear to require that, while
non-site-specific ordinances may still be approved, in an
application for a facility license from the NIGC, the tribe must
submit information to enable the NIGC to make an Indian lands
determination. See id. at 747-48 (citing 25 C.F.R. § 559.2(a)).

-49-
under the IGRA to approve a tribal-state compact contingent on the

relevant land being later acquired in trust, then the Commonwealth

can argue that § 91 establishes a parallel mechanism, meant to

facilitate the purposes of the IGRA, even if not precisely

authorized by the IGRA, for a limited period of time.

The argument, of course, would become weaker with the

passage of time and the continuation of the status that there are

no "Indian lands" in the region. The tribal-state compact entered

into weakens the state's position by extending the period of time,

as we explain below. And the argument is qualitatively different,

and even weaker, to the extent that Congressional action is

required to provide the Secretary authority to take this land into

trust. It is in this context that we turn to the relief requested

by KG and the disposition of this suit.

2. KG's Requested Relief

In this suit, KG requests only equitable relief: a

declaration that § 91 of the Massachusetts Gaming Act violates the

Equal Protection Clause, preliminary and permanent injunctive

relief, and associated attorneys' fees. We view the appropriate

resolution of this appeal through the lens of KG's request for

equitable relief.

We start with KG's request for a preliminary injunction.

Four factors govern the issuance of preliminary injunctive relief:

(1) the likelihood that the party requesting
the injunction will succeed on the merits of

-50-
 its claim or claims; (2) the potential for
irreparable harm to this party if the
injunction is denied; (3) the balance of the
relative hardships that will ensue following
either a grant or denial; and (4) the effect
(if any) that the grant or denial will have on
the public interest.

González-Fuentes v. Molina, 607 F.3d 864, 875 (1st Cir. 2010),

cert. denied, 131 S. Ct. 1568 (2011). In this case, several

circumstances weigh strongly against granting injunctive relief at

this point in time.

As to likelihood of success on the merits, the law is far

from clear, and both sides have weaknesses in their positions, as

we have just outlined. That factor is only one of four we

consider. First, it is clear from the affidavit of the Chairman of

the Gaming Commission that the Commission is not now soliciting

applications for the other two regions, will not do so until

October 2012 at the earliest, and may not do so until some point in

2013. As a result, the nature of KG's present injury is relatively

limited. For reasons other than § 91, the category 1 licensing

process may not move forward in Region C for months to come.

Second, the shape of the issues raised in this suit, and

the attendant claims of injury, could well change depending on

future events. It has already changed since oral argument, with

the approval of the compact.

What is more difficult is the indefiniteness of when the

Gaming Commission may, after August 1, 2012, determine that the

-51-
tribe will not have land taken into trust, which would then trigger

the competitive license application process. The statute does not

set a date for this determination, instead providing only that "if,

at any time on or after August 1, 2012, the commission determines

that the tribe will not have land taken into trust by the United

States Secretary of the Interior, the commission shall consider

bids for a category 1 license in Region C under said chapter 23K."

2011 Mass. Acts ch. 194, § 91(e). At oral argument, the defendants

provided two "examples" of when this determination would

"presumably" take place: (1) if the Secretary of the Interior

disapproves the tribal-state compact or (2) if the Secretary denies

the Mashpee's pending land in trust application.28 The defendants

stated that beyond those circumstances, the Commission would have

to exercise its own authority in deciding whether to consider bids,

but gave no suggestion as to when the Commission may do so.

There are two provisions in the Mashpee Tribal-State

Compact that raise the prospect of further delays and cast doubt on

28
Neither of these events appears to be associated with a
fixed time limit under the IGRA and the land in trust statute. The
approval or disapproval of a tribal-state compact must take place
within "45 days after the date on which the compact is submitted to
the Secretary for approval," 25 U.S.C. § 2710(d)(8)(C), but there
is no explicit requirement as to when a compact must be submitted
after it has been agreed on by the state and the tribe, see 25
C.F.R. § 293.7 (providing that "[t]he Indian tribe or State should
submit the compact or amendment after it has been legally entered
into by both parties"). As to the land in trust process, the
relevant regulations provide only that "[t]he Secretary shall
review all requests and shall promptly notify the applicant in
writing of his decision." Id. § 151.12(a).

-52-
the two "examples" provided at oral argument. First, the compact

provides that "if the United States Secretary of the Interior fails

to accept such land in trust" as to the current land in trust

application, "the Tribe may identify alternative land in Region C

to be acquired in trust for Gaming under this Compact," and so

presumably begin the land in trust process anew. Mashpee Tribal-

State Compact § 5.2.2. This raises the prospect of multiple land

in trust applications and further delay as to when the Commission

might determine that the Mashpee will not have land taken into

trust under § 91(e).

Second, the compact provides that if it "is not approved

by the United States Secretary of the Interior as required by IGRA,

the Governor agrees that, if requested by the Tribe, the Governor

will immediately resume negotiations in good faith with the Tribe

for an amended compact." Mashpee Tribal-State Compact § 18.8.

This raises the prospect that even the Secretary's disapproval of

the compact will not trigger a Commission decision to commence the

competitive licensing process.

There also remains the potential that the Commission

might wait years until the Secretary makes a determination as to

the compact or land in trust application before itself acting under

§ 91.29 And the Mashpee Tribal-State Compact provides that it shall

29
The Commissioner of the Massachusetts Gaming Commission has
recently stated that "[w]e'll give the tribe whatever the
appropriate amount of time is to get that decision made," and would
"let the tribe have their fair shot to get the land in trust."

-53-
not "prevent the Tribe from challenging in a court of competent

jurisdiction any such determination by the" Commission. Mashpee

Tribal-State Compact § 21.10. This compact clause raises the

prospect of a lengthy delay before a conclusive decision is made as

to whether the commercial licensing process will go forward in

Region C.

The Supreme Court recently took notice of the length of

time involved in reaching a decision on a land in trust

application. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians,

132 S. Ct. at 2203 (noting the "lengthy administrative review" of

a request to have land taken into trust for purposes of operating

a casino). Even if the lands were taken into trust by the

Secretary, there could be further delays from litigation over the

Secretary's decision. The Court held that sovereign immunity does

not bar suits under the Administrative Procedure Act challenging

the Secretary's taking of land into trust, and that a nearby

property owner satisfied the requirements of prudential standing to

bring such a challenge. Id. at 2209-12. Moreover, the Court's

opinion appears to suggest that a nearby property owner had

standing to raise a challenge based on Carcieri to a land in trust

determination. Id. at 2203-04.

Beyond any such more typical delays in the land in trust

application and compact approval processes, there is also the issue

Brenann, Patrick Expects Casino Deal Next Week, Cape Cod Times,
June 13, 2012.

-54-
of whether the Secretary of the Interior has the authority take

land into trust for the Mashpee in the wake of Carcieri. If the

Secretary lacks such authority, that would require Congressional

action before land could be taken into trust. This adds yet

another layer of uncertainty and potential delay. If such lengthy

delays occurred, this would undercut the argument that § 91 is

meant as a temporary accommodation to the IGRA process to allow

lands to be taken into trust and so is "authorized" in that minimal

sense.

Given this situation, the lack of clear answers on

questions of both state and federal law, the shifting of the nature

of the injury to KG, and the apparent attempt to allow some time

for the IGRA process to work (including any Carcieri fix), we

cannot say there was an abuse of discretion in the denial of

preliminary injunctive relief. "An injunction is an exercise of a

court's equitable authority, to be ordered only after taking into

account all of the circumstances that bear on the need for

prospective relief." Salazar v. Buono, 130 S. Ct. 1803, 1816

(2010). "Equitable relief is not granted as a matter of course,

and a court should be particularly cautious when contemplating

relief that implicates public interests." Id. (citations omitted).

These considerations also lead us to affirm the denial of

KG's request for injunctive and declaratory relief at this point in

time. The Supreme Court has made clear that "the Declaratory

Judgment Act has been understood to confer on federal courts unique

-55-
and substantial discretion in deciding whether to declare the

rights of litigants. On its face, the statute provides that a

court 'may declare the rights and other legal relations of any

interested party seeking such declaration.'" Wilton v. Seven Falls

Co., 515 U.S. 277, 286 (1995) (quoting 28 U.S.C. § 2201(a)). The

Court has explained that "the propriety of declaratory relief in a

particular case will depend upon a circumspect sense of its fitness

informed by the teachings and experience concerning the functions

and extent of federal judicial power." Id. at 287 (quoting Pub.

Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 243 (1952))

(internal quotation marks omitted).

The district court's dismissal of the complaint is

another matter. We simply cannot say that KG's equal protection

claim as to § 91 fails to state a claim on which relief may be

granted, or that the issuance of equitable relief may not be

appropriate at some future date.

We also affirm the dismissal with prejudice of KG's

claims as to the $5 million appropriation, the advisory committee

seat, and the preemption challenge to § 91. We dismiss KG's state-

law claims without prejudice. We remand the case for further

proceedings consistent with this opinion.

No costs are awarded.

-56-