Friends of Amador County, et al., v. Salazar

Filing 62

ORDER signed by Judge William B. Shubb on 9/29/11 ORDERING that this action be dismissed. IT IS FURTHER ORDERED that within 10 days of this order James Marino shall either pay sanctions of $100 to the Clerk or submit a statement of good cause explaining his failure to comply with Local Rule 230 (c). CASE CLOSED.(Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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FRIENDS OF AMADOR COUNTY, BEA
CRABTREE, JUNE GEARY,

NO. CIV. 2:10-348 WBS CKD

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Plaintiffs,

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

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v.
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KENNETH SALAZAR, SECRETARY OF
THE UNITED STATES DEPARTMENT
OF INTERIOR, United States
Department of Interior, THE
NATIONAL INDIAN GAMING
COMMISSION, GEORGE SKIBINE,
Acting Chairman of the
National Indian Gaming
Commission, THE STATE OF
CALIFORNIA, Arnold
Schwarzenegger Governor of the
State of California,
Defendants.
___________________________/

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----oo0oo---Plaintiffs Friends of Amador County, Bea Crabtree, and

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June Geary brought this action against defendants Kenneth Salazar

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in his capacity as the Secretary of the United States Department

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of Interior (“Secretary”), the National Indian Gaming Commission
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(“NIGC”), and George Skibine (collectively the “Federal

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Defendants”), as well as the State of California (“State”) and

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Governor Arnold Schwarzenegger (“Governor,” collectively the

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“State Defendants”) arising out of plaintiffs’ objections to a

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tribal-state compact allowing the construction of a casino by the

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Buena Vista Rancheria of Me-Wuk Indians (“Tribe”) in Amador

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County.

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the suit.

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appearance as a non-party to present a motion to dismiss the

The State Defendants have previously been dismissed from
Presently before the court is the Tribe’s special

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Complaint for failure to join the Tribe and State as necessary

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parties under Federal Rule of Civil Procedure 19.

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I.

Factual and Procedural Background

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In 1999, then-California Governor Gray Davis entered

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into a series of tribal-state compacts with fifty-nine different

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Indian tribes, including the Tribe, allowing class III gaming1 on

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tribal land pursuant to the compacting requirements of the Indian

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Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721.

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¶ 22.)

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California legislature.

(Compl.

These compacts were subsequently ratified by the
(Id.)

In August 2004, the Tribe and the

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Three classes of gaming are subject to regulation under
IGRA. Class I gaming includes “social games solely for prizes of
minimal value or traditional forms of Indian gaming,” 25 U.S.C. §
2703(6), and is subject to solely tribal regulation. Id. §
2710(a)(1). Class II gaming is regulated through joint federaltribal regulation, id. § 2710(a)(2), and includes games such as
bingo and card games that are “explicitly authorized” or “are not
explicitly prohibited by laws of the State . . . but only if such
card games are played in conformity” with the state’s laws and
regulations. Id. § 2703(7). Class III gaming includes “all
forms of gaming that are not class I gaming or class II gaming,”
such as casino games, slot machines, and lotteries, id. §
2703(8), and can only be authorized through a tribal-state
compact, subject to federal approval and oversight. Id. §
2710(d)(1).
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Governor negotiated and completed an amended compact (the

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“Compact”), which was ratified by the California legislature and

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submitted to the Secretary as required by IGRA in September 2004.

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See Cal. Gov’t Code § 12012.45.

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Compact, which became effective as a matter of law.

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Approved Tribal-State Class III Gaming Compact, 69 Fed. Reg.

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76004-01 (Dec. 20, 2004).

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The Secretary then approved the
Notice of

Plaintiffs allege that the Compact between the State
and the Tribe is illegal under IGRA.

The Complaint alleges that

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the Tribe’s land is not eligible for class III gaming because it

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is owned in fee simple, not in trust by the federal government,

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and accordingly is not “Indian land” as required under the

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statute.

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Tribe’s federal recognition is invalid because it was established

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by individuals who were not true descendants of the Buena Vista

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Rancheria of Me-Wuk Indians and that plaintiffs Crabtree and

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Geary are true descendants of the peoples who lived on the Buena

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Vista Rancheria land.

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allege that the Federal Defendants’ approval of class III gaming

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on the Tribe’s land was arbitrary, capricious, and contrary to

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IGRA and that the State Defendants acted unlawfully when they

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determined that the Tribe was eligible for class III gaming and

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entered into the Compact.

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(Compl. ¶¶ 8-9.)

The Complaint further claims that the

(Id. ¶¶ 16-18.)

Plaintiffs accordingly

(Id. ¶¶ 10, 22-27.)

Following the court’s dismissal of the State

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Defendants, the Complaint retains two causes of action.

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first claim alleges that the Federal Defendants violated IGRA by

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The

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approving class III gaming on ineligible lands.2

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Plaintiffs’ second claim alleges that the approval of the Tribe’s

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gaming ordinance and the Compact violated the Administrative

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Procedure Act (“APA”), 5 U.S.C. §§ 500-596, because such approval

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was arbitrary and capricious and in violation of IGRA.

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42.)

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Tribe’s land is not eligible for gaming under IGRA, that the

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Compact is invalid under IGRA and APA, and that the environmental

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assessment of the land was inadequate.

(Id. ¶ 34.)

(Compl. ¶

The Complaint requests the court to declare that the

The Complaint also asks

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the court to enjoin the Tribe from further pursuit of class III

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gaming on its land and to create a constructive trust over funds

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currently being paid to the Tribe.

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dismiss the Complaint pursuant to Rule 19.

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II.

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The Tribe now moves to

Discussion
A.

Motion to Dismiss
On a motion to dismiss, the court must accept the

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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“only enough facts to state a claim to relief that is plausible

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on its face.”

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(2007).

Scheuer v. Rhodes, 416

To survive a motion to dismiss, a plaintiff must plead

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

This “plausibility standard,” however, “asks for more

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The court previously dismissed this cause of action
against the State Defendants because it found that IGRA does not
provide a cause of action for third parties. (Docket No. 13)
The Federal Defendants did not join in the prior motion and
therefore the claim remains against them.
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than a sheer possibility that a defendant has acted unlawfully,”

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Ashcroft v. Iqbal, ––– U.S. ––––, ––––, 129 S. Ct. 1937, 1949

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(2009), and “[w]here a complaint pleads facts that are ‘merely

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consistent with’ a defendant’s liability, it ‘stops short of the

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line between possibility and plausibility of entitlement to

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relief.’”

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Id. (quoting Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 19 governs the joinder

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of persons necessary for a suit’s just adjudication.

Under Rule

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19, a court must dismiss an action if: (1) an absent party is

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required, (2) it is not feasible to join the absent party and (3)

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it is determined “in equity and good conscience” that the action

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should not proceed among the existing parties.1

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Philippines v. Pimentel, 553 U.S. 851, ---, 128 S. Ct. 2180, 2188

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(2008); Confederated Tribes of Chehalis Indian Reservation v.

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Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991).

Republic of

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1.

Rule 19(a) – Required Party

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A person is a required party under Rule 19(a)(1) if (A)

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in that person’s absence, the court cannot accord complete relief

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among existing parties; or (B), the person claims an interest

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relating to the subject of the action and is so situated that

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disposing of the action in the person’s absence may: (i) as a

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practical matter impair or impede the person’s ability to protect

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the interest, or (ii) leave an existing party subject to a

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When Rule 19 was amended in 2007, the word “necessary”
was replaced by “required” and the word “indispensable” was
removed. The changes were intended to be “stylistic only” and
“the substance and operation of the Rule both pre- and post-2007
are unchanged.” Republic of Philippines v. Pimentel, 553 U.S.
851, ---, 128 S. Ct. 2180, 2184 (2008) (quoting the Rules
Committee).

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substantial risk of incurring double, multiple, or otherwise

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inconsistent obligations because of the interest.

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P. 19(a)(1).

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required party under Rule 19.

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Fed. R. Civ.

If the Tribe satisfies either test, it is a

First, the court cannot provide the litigation parties

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complete relief where the requested remedy, if granted, would

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fail to bind all absent parties who are in a position to act in

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direct contravention of that remedy.

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River Project Agricultural Improvement & Power District, 276 F.3d

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1150 (9th Cir. 2002), the Ninth Circuit upheld the dismissal of a

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suit because the absent Navajo Nation was a necessary and

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indispensable party where an applicant for employment at a non-

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Indian-operated power facility located on the Navajo Nation

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reservation challenged an employment preference contained in the

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operator’s lease with the Nation.

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injunctive relief as to the lease provision at issue, and the

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Ninth Circuit held that complete relief could not be afforded

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because the absent Navajo Nation would not be bound by such

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relief and could still attempt to enforce the lease provision.

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Id. at 1155.

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In Dawavendewa v. Salt

The plaintiff requested

Similarly, in Pit River Home & Agricultural Cooperative

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Ass’n v. United States, 30 F.3d 1088 (9th Cir. 1994), a group of

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Indians sued the United States to challenge Pit River Council’s

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beneficial ownership of Indian lands.

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the dismissal of suit and held that the absent Pit River Council

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was a necessary and indispensable party because “even if the

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Association obtained its requested relief in this action, it

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would not have complete relief, since judgment against the
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The Ninth Circuit upheld

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government would not bind the Council, which could assert its

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right to possess the Ranch.”

Id. at 1099.

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In this case, the Tribe is not a party to the lawsuit,

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so it would not be bound by any judgment in favor of plaintiffs.

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See E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 780 (9th Cir.

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2005) (“The [proposed] judgment will not bind the Navajo Nation

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in the sense that it will directly order the Nation to perform,

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or refrain from performing, certain acts.”).

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therefore act contrary to the judgment, preventing the court from

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The Tribe could

according complete relief to plaintiffs.

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Second, a person is a required party if the suit

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impairs or impedes its legally protected interests.

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P. 19(a)(1)(B)(I).

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“claim” an interest, not establish it with certainty.

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may only exclude claims of interest that are patently frivolous.

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See Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir.

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1992).

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protected interests that will be impaired or impeded if the suit

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continues.

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Fed. R. Civ.

Under Rule 19(a)(1)(B), a party need only
The court

This suit implicates several of the Tribe’s legally

Plaintiffs seek to invalidate the Compact and enjoin

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the Tribe from engaging in class III gaming.

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Tribe’s substantial gaming-related interests, including its right

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under federal law to engage in class III gaming.

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Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1023 (9th Cir.

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2002) (holding that “[t]he interests of the tribes in their

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compacts are impaired and, not being parties, the tribes cannot

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defend those interests”); Dawavendewa, 276 F.3d at 1156 (“[N]o

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procedural principal is more deeply-imbedded in the common law
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This impairs the

See Am.

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than that, in an action to set aside a lease or a contract, all

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parties who may be affected by the determination of the action

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are indispensable.” (quoting Lomayaktewa v. Hathaway, 520 F.2d

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1324, 1325 (9th Cir. 1975))).

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does not have a legally protected interest because it only has an

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economic interest stemming from the approval of the Compact.

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Unlike cases in which non-parties have indirect economic

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interests that do not qualify as “legally protected interests,”

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the Tribe is a party to the Compact and has a direct, and legally

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Plaintiffs argue that the Tribe

protected, interest in its approval.
The Tribe also has a substantial interest in the

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already-determined “Indian lands” status of its Rancheria, its

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ability to govern that land, its ability to enforce its laws, its

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status as a federally-recognized Indian tribe, the two stipulated

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judgments that restored the Tribe and Rancheria, and its

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sovereign immunity not to have its interests adjudicated without

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its consent.

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have an interest in preserving their own sovereign immunity, with

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its concomitant ‘right not to have [their] legal duties

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judicially determined without consent.’” (quoting Enter. Mgmt.

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Consultants v. U.S. ex rel. Hodel, 883 F.2d 890, 894 (10th Cir.

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1989))).

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would be impeded and impaired if this action continues.

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See Shermoen, 982 F.2d at 1317 (“[A]bsent tribes

The Tribe’s ability to protect these legal interests

“Impairment may be minimized if the absent party is

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adequately represented in the suit.

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adequately represent an Indian tribe unless there is a conflict

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of interest between the United States and the tribe.”

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Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990)
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The United States may

Makah

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(citations omitted).

Plaintiffs argue that there is no conflict

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of interest between the United States and the Tribe, and

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therefore the suit for declaratory relief should proceed.

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her response to the court’s questions at the hearing on this

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motion, the attorney for the United States clearly does not

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agree.

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appears to favor judicial review and to avoid taking positions

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that may conflict with its national Indian policy.

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to move this court to dismiss this case and their refusal to take

From

The Federal Defendants’ litigation policy in this case

Their failure

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a position on this motion2 appears to conflict with the Tribe’s

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interest in protecting their tribal status and not having their

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interests litigated in their absence.

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Nation v. Norton, 248 F.3d 993, 1000, modified on reh’g, 257 F.3d

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1158 (10th Cir. 2001) (“In this case, [United States] Defendants

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have a duty to implement national Native American policy.

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Shawnee, on the other hand, have an interest in receiving the

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funds at issue in this case.

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necessarily the same.”).

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See Citizen Potawatomi

The

The two interests are not

When asked if the United States represents the

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interests of the Tribe, counsel responded that “[i]t depends on

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what claims are being asserted” and that “the United States is in

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the position of having to balance” the interests.

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Hr’g, Def.’s Mot. to Dismiss, Oct. 12, 2010, at 10:13-20.)

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balancing presents a conflict of interest with the Tribe and

(Rep.’s Tr. of
This

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The Federal Defendants’ counsel was questioned at
length during oral arguments regarding the United States’
position on the Tribe’s Rule 19 motion. Her only position was
that the United States has no position on the outcome of this
motion.
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suggests that its legal interests may not adequately be protected

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if it remains an absent party.

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required party in this suit.

Accordingly, the Tribe is a

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2.

Rule 19(b) – Proceeding with Existing Parties

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Indian tribes possess the common-law immunity from suit

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traditionally enjoyed by sovereign powers.

Bassett v.

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Mashantucket Pequot Tribe, 204 F.3d 343, 356 (2d Cir. 2000).

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order to qualify for sovereign immunity, a tribe must be

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federally recognized.

In

See Pit River Home & Agric. Coop. Ass’n,

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30 F.3d at 1100.

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the tribe itself, but only if done in an unequivocal manner.

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Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S.

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411, 417 (2001).

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the Tribe nor Congress has consented to its being in this action,

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therefore the Tribe cannot be joined because it is immune from

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civil suit.

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Immunity may be waived by either Congress or
C&L

The Tribe is federally recognized, and neither

When a required person cannot be joined in the suit,

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the court must determine whether, “in equity and good conscience,

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the action should proceed among the existing parties or should be

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dismissed.”

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factors for courts to consider in making this determination: (1)

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the extent to which judgment rendered in the person’s absence

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might prejudice that person; (2) the extent to which the

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prejudice could be lessened or avoided by protective provisions,

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shaping the relief, or other measures; (3) whether judgment in

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the person’s absence would be adequate; and (4) whether the

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plaintiff would have an adequate remedy if the action were

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dismissed for nonjoinder.

Fed. R. Civ. P. 19(b).

Id.

Rule 19(b) outlines four

Because the Tribe has sovereign
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immunity, little balancing of these factors is required.

See

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Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996) (“If the

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necessary party is immune from suit, there may be ‘very little

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need for balancing Rule 19(b) factors because immunity itself may

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be viewed as the compelling factor.’” (quoting Confederated

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Tribes of the Chehalis Indian Reservation, 928 F.2d at 1499)).

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Moreover, the factors, taken together, weigh in favor of finding

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that the Tribe is an indispensable party.

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The first factor in the Rule 19(b) analysis is

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essentially the same as the legal interest test in the “necessary

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party” analysis.

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F.3d 1456, 1460 (9th Cir. 1994).

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prong is met here as the Tribe’s absence might prejudice several

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of its legally protected interests.

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the Tribe cannot be effectively minimized under the second factor

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of Rule 19(b) because no adequate relief for plaintiffs can be

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shaped such that the Tribe would not be prejudiced.

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adjudication of the Federal Defendants’ review of the Compact or

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the Tribe’s federal status would prejudice the Tribe’s interests.

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The consideration of the final two prongs is not necessary where

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the Tribe will be prejudiced by a judgment rendered in its

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absence and there is no way the court can avoid the prejudice.

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See Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 1491, 1498

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(D.C. Cir. 1995).

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equity and good conscience with the existing parties.3

See, e.g., Quileute Indian Tribe v. Babbitt, 18
Accordingly, the prejudice

The potential prejudice to

Any

Accordingly, the court cannot proceed in

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Because the Complaint is dismissed for failure to join
the Tribe as a required party under Rule 19, the court will not
address the Tribe’s argument that the State was also an
indispensable party.
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B.

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Sanctions
Plaintiffs filed their papers in opposition to the

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Tribe’s motion to dismiss on September 16, 2011.

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Local Rule 230(c), opposition to the granting of a motion must be

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filed and served not less than fourteen days preceding the

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noticed hearing date.

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September 26, 2011, plaintiffs filed their papers four days late.

As the hearing for this matter was set for

Local Rule 230(c) provides that, “No party will be

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According to

entitled to be heard in opposition to a motion at oral arguments

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if opposition to the motion has not been timely filed by that

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party.”

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correct decision on a dispositive motion than to enforce

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technical sanctions, the court chose to hear counsel at oral

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argument, and instead to impose financial sanctions under Local

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Rule 110, for failure to comply with the Local Rules.

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the court will sanction plaintiffs’ counsel, James E. Marino,

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$100.00 payable to the Clerk of the Court within ten days from

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the date of this Order, unless he shows good cause for his

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failure to comply with the Local Rules.

Therefore,

IT IS THEREFORE ORDERED that this action be, and the

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Because it is more important that the court reach the

same hereby is, DISMISSED.

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IT IS FURTHER ORDERED that within ten days of this

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Order James E. Marino shall either (1) pay sanctions of $100.00

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///

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///

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///

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///

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///
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to the Clerk of the Court, or (2) submit a statement of good

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cause explaining his failure to comply with Local Rule 230(c).

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DATED:

September 29, 2011

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