KIMBERLY J. MUELLER, District Judge.
The Jamul Action Committee, several of its individual members, and the Jamul Community Church are the plaintiffs here. For convenience, the court refers to them together as the JAC. The JAC opposes construction of a casino by the Jamul Indian Village near Jamul, California, and has moved for a "writ of mandate" and preliminary injunction. It seeks an order enjoining construction of the casino and requiring completion of certain federal environmental reviews before construction can continue. After reviewing the arguments in support of and in opposition to the motion, the court determined a hearing was not necessary, and now DENIES the motion.
The Jamul Indian Village (the Tribe) is a federally recognized tribal entity entitled to tribal sovereign immunity. Order Aug. 5, 2014, at 7, ECF No. 50. The Tribe has not consented to this court's jurisdiction and is not a defendant here.
The defendants fall into two categories. First are several employees, officials, or appointees of the National Indian Gaming Commission (NIGC), the Department of the Interior (DOI), the Bureau of Indian Affairs (BIA), and those agencies themselves (for convenience, the federal defendants).
Several statutory regimes guide the resolution of this matter, and a brief discussion of each lays the foundation for the court's analysis.
Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988 to provide for the operation and regulation of gaming by Indian tribes. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 48 (1996). The IGRA's purposes are (1) to "promot[e] tribal economic development, self-sufficiency, and strong tribal governments"; (2) "to shield [an Indian tribe] from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players"; (3) to declare the necessity of "the establishment of independent Federal regulatory authority for gaming on Indian lands, . . . Federal standards for gaming on Indian lands, and . . . a National Indian Gaming Commission" for meeting Congress's "concerns regarding gaming"; and (4) to protect gaming "as a means of generating tribal revenue." 25 U.S.C. § 2702.
An Indian tribe has "the exclusive right" to regulate gaming on Indian lands unless prohibited by federal or state law. 25 U.S.C. § 2701(5). IGRA divides gaming into three classes. Michigan v. Bay Mills Indian Cmty., ___ U.S. ____, 134 S.Ct. 2024, 2028 (2014). Class III is the most heavily regulated and includes the types of games one might expect to find in a casino, such as slot machines. Id. (citing 25 U.S.C. § 2703(8)). An Indian tribe may conduct Class III gaming on its land only as provided by a compact negotiated with the surrounding U.S. State. Id. (citing 25 U.S.C. § 2710(d)(1)(C)). Class II gaming includes bingo and card games. 25 U.S.C. § 2703(7)(A). The NIGC regulates Class II gaming on Indian lands, including by approving a tribe's Class II gaming ordinance, monitoring gaming, and inspecting gaming facilities. See id. §§ 2706(b)(1)-(2), 2710(b). Class I gaming includes "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations." Id. § 2703(6). "Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribes. . . ." Id. § 2710(a)(1).
The NIGC is IGRA's regulatory commission. Id. § 2703. It has powers to approve its own budget, collect civil fines, establish fee rates, make permanent the Chairman's order temporarily closing a gaming facility, monitor and inspect Class II gaming, conduct background investigations, inspect records, procure supplies, enter contracts with public and private entities, hold hearings, administer oaths, and promulgate implementing regulations. Id. § 2706. The NIGC Chairman has power to "(1) issue orders of temporary closure of gaming activities . . .; (2) levy and collect civil fines . . .; (3) approve tribal ordinances or resolutions regulating class II gaming and Class III gaming . . .; and (4) approve management contracts for Class II gaming and class III gaming," id. § 2705(a), and as delegated by the NIGC, id.§ 2705(b). The statute does not empower the NIGC to regulate, monitor, or inspect Class III gaming; tribal-state compacts govern Class III gaming activities. See Colorado River Indian Tribes v. Nat'l Indian Gaming Comm'n, 466 F.3d 134, 137-40 (D.C. Cir. 2006) (affirming the district court's determination that no statutory basis empowers the NIGC to regulate Class III gaming operations).
An Indian tribe need not manage its own gaming operations. IGRA allows a tribe to enter contracts with third parties to manage Class III gaming, but only if the contract "has been submitted to, and approved by, the [NIGC] Chairman." 25 U.S.C. § 2710(d)(9); 25 C.F.R. § 533.1. Congress has listed specific determinations the Chairman must make. See 25 U.S.C. § 2711(b).
The National Environmental Protection Act (NEPA) "was intended to reduce or eliminate environmental damage and to promote `the understanding of the ecological systems and natural resources important to' the United States." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321). NEPA does not require one result or another; rather, it requires federal agencies follow certain procedures designed to call attention to the environmental impacts of their proposals and actions. Id. at 756-57. The "heart" of these procedures is the requirement that a federal agency include with its proposals and actions a "detailed statement" about
Id. (quoting 42 U.S.C. § 4332(2)(C)). This detailed statement is called an Environmental Impact Statement (EIS). Id. Federal agencies must also update an EIS after the appearance of "`significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.'" Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 372 (1989) (quoting 40 C.F.R § 1502.9(c) (1987)).
In advance of only "major Federal actions" does NEPA require an agency to prepare an EIS. 42 U.S.C. § 4332(C); Hale v. Norton, 476 F.3d 694, 700 (9th Cir. 2007). The regulations implementing NEPA define "major federal action." See 40 C.F.R. § 1508.18. The definition encompasses actions with potentially major effects, which effects "are potentially subject to Federal control and responsibility." Id. "Actions" describes both affirmative acts and omissions of duty reviewable under the Administrative Procedure Act or a similar law. Id. "Actions" may be both "new and continuing," and include "projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies. . . ." Id. § 1508.18(a). The regulations describe several categories of typical federal actions, including adoption of new policies and rules, new plans, programs, and, most relevant here, "[a]pproval of specific projects, such as construction or management activities located in a defined geographic area." Id. § 1508.18(b)(4). A federal agency may take an "action" by approving a project by permit or other regulatory decision, and "project" includes "federally assisted activities." Id.
The IGRA and NEPA overlap here in two possible ways. As the JAC sees this case, the NIGC has undertaken a major federal action by approving or allowing the Tribe's casino construction project, and NEPA requires the NIGC to prepare or update an EIS. See Pls.' Mem. P.&.A. (Mem.) 6, ECF No. 60-1. From the defendants' point of view, the NIGC has not yet undertaken any major federal action, although it will if the Commissioner approves the Tribe's gaming management contract, and only then will it be required to prepare or update an EIS. Tribe Defs.' Opp'n 6-7; Fed. Defs.' Opp'n 13-15.
In April 2002 the BIA published a notice of its intent (NOI) to study the environmental impacts of the Tribe's proposed casino. Notice of Intent to Prepare EIS, 67 Fed. Reg. 15,582 (Apr. 2, 2002).
Several months later, in January 2003, the BIA published a second notice, this time announcing it would soon file a draft EIS on the proposed casino project. Notice, 68 Fed. Reg. 1,475 (Jan. 10, 2003). The draft EIS recommended approval of the fee-to-trust transfer, the casino, support facilities, and a contract for a third party to manage gaming in the casino. Id. The notice described several alternatives to the casino project, including swapping the hotel or casino for retail development, constructing the hotel and casino in a different location, and abandoning the project altogether. Id. Comments on the draft EIS were made available to the public. Id.
Between 2003 and 2006, the Tribe revised its plan. Notice of Intent to Prepare SEIS, 78 Fed. Reg. 21,398 (Apr. 10, 2013). Rather than build the casino's support facilities on new trust land, the Tribe decided to use existing reservation land for both the casino and its support facilities. Id. An access road over the Tribe's land would connect the casino to an adjacent highway. Id. To address the environmental impacts of its revised plan, the Tribe prepared its own environmental statement and solicited and addressed public comments. Id. After completing this evaluation, the Tribe requested the NIGC's approval of a contract between itself and SDGV, a subsidiary of Penn National. Id. This contract would allow SDGV to manage gaming in the casino on the Tribe's behalf. Id. Because the Tribe's plan had changed, although it still included a gaming management contract, and years had passed since the old EIS was circulated, the NIGC determined it would develop and issue a supplemental EIS (SEIS), and it announced this intent in the Federal Register in April 2013. Id. As described in the April 2013 NOI, the SEIS's scope was even broader than the EIS's: it would address "land resources, water resources, air quality, biological resources, cultural and paleontological resources, socioeconomics, transportation, land use, agriculture, public services, noise, hazardous materials and visual resources." Id. "[G]iven the long history of the project and the extensive public input received to-date," the NIGC decided not hold a public hearing on the SEIS's scope, but it invited written comments both in response to the SEIS's scope and in general. Id.
The JAC filed this action on September 15, 2013. Compl., ECF No. 1. In February 2014 the JAC amended its complaint and included allegations the Tribe had begun construction. First Am. Compl. ¶¶ 7, 8, 88, ECF No. 15. The court dismissed the First Amended Complaint in August 2014, because the Tribe had not been joined as a required party, among other reasons. Order Aug. 5, 2014, at 27, ECF No. 50. The JAC amended its complaint again, Second Am. Compl., ECF No. 51, and on January 2, 2015, it filed this motion, Pls.' Mot. Prelim. Inj., ECF No. 60, evidently precipitated by the Tribe's announcement it had finished excavating the casino's foundation, Mem. 5.
The court takes judicial notice that as of the date of this order, the NIGC has not published a notice in the Federal Register
The JAC seeks a "writ of mandate." Mem. 10. In support of its motion it cites section 706(1) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(1), and North County Community Alliance, Inc. v. Salazar, 573 F.3d 738, 744 (9th Cir. 2009), a case brought under 5 U.S.C. § 706(1). But the JAC relies on Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003), to define the standard it says the court should apply to its motion. Johnson describes the standard applicable to the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, not § 706 of the APA. 349 F.3d at 1153. The two statutes are similar, but the JAC's motion is best understood as one to compel agency action unlawfully withheld, based on a § 706(1) claim, and the court construes it as such. See Independence Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) ("Although the exact interplay between these two statutory schemes has not been thoroughly examined by the courts, the Supreme Court has construed a claim seeking mandamus under [§ 1361], `in essence,' as one for relief under § 706 of the APA." (quoting Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986))).
The APA grants judicial relief to a person "suffering legal wrong because of agency action." 5 U.S.C. § 702. It empowers a federal district court to "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). "[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original). The agency action sought under section 706(1) must be "legally required." Id. at 63 (emphasis in original). An agency's ministerial duties are "required," but not its discretionary decisions. Id. at 64.
Here, because NEPA's implementing regulations define "major federal action" to include an agency's "[a]pproval of specific projects, such as construction or management activities located in a defined geographic area," 40 C.F.R. § 1508.18(b)(4), the court finds that the NIGC will undertake a major federal action for purposes of NEPA if it approves the Tribe's proposed gaming management contract.
The JAC's position rests on equivocation of the 2013 management contract and the 2003 fee-to-trust proposal. The Tribe abandoned the earlier proposal and seeks now only the NIGC's approval of its management contract. As described above, the federal defendants have not approved construction of the casino, and the IGRA provides no statutory basis for the federal defendants to do so. The court cannot rely on the JAC's unsupported general assertions that "[t]he federal role in this casino project is pervasive and comprehensive," "[t]he NIGC regulates gaming by the [Tribe]" and "the NIGC's approval of the [management contract] is not a minor matter." Reply 10-11. Neither do the JAC's citations support its position. See, e.g., id. at 10 (citing Save Barton Creek Ass'n v. Fed. Highway Admin. (FHWA), 950 F.2d 1129, 1135 (5th Cir. 1992) ("[T]he federal agency must possess actual power to control the nonfederal activity." (internal citations and quotation marks omitted)) and Nat'l Ass'n for Advancement of Colored People v. Med. Ctr., Inc., 584 F.2d 619, 629 (3d Cir. 1978) (an agency may have taken an action by permitting another party to act)).
The JAC takes a different tack in its reply, contending instead that the court must compel the NIGC and BIA to complete the SEIS quickly. Reply 6-8. While the court typically does not consider new arguments in reply, see State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990), it addresses this argument briefly because there is no prejudice to defendants in doing so. The JAC protests the deliberate pace of the NIGC's review, noting the management contract and an accompanying gaming ordinance were submitted to the NIGC and BIA in mid-2013. Reply 7. Again the JAC cites no statute or regulation and relies instead on the general principal forbidding an agency from justifying completed projects by post hoc environmental review. Id. at 6-7. No project has been completed here, and the federal action at issue is the NIGC's approval of the management contract, not its power to halt casino construction. The NIGC has not completed its review, and the Tribe has not begun operating its casino, so any adverse environmental impacts of its operation remain at most speculative. The JAC has not shown the NIGC will approve the contract without conducting the review required by NEPA, and cannot succeed by seeking speedier or otherwise better management in general. See Wilderness Alliance, 542 U.S. at 64 ("[R]espondent cannot seek wholesale improvement of [an agency] program by court decree. . . ." (citation, internal quotation marks, and emphasis omitted)). Neither does the JAC have the power to enforce IGRA's deadlines for the NIGC's review. See 25 U.S.C. § 2711(d) ("The Indian tribe," not a third party, "may bring an action in a United States district court to compel action by the Chairman if a contract has not been approved or disapproved within the period required by this subsection.").
The JAC's reply brief includes several additional arguments absent from its original motion. See Reply 4 (approval of the Tribe's gaming ordinance is a final agency action subject to this court's review); id. at 4-5 (the land on which the casino will be built was improperly determined to be the Tribe's reservation); id. at 7 (the management contract improperly or incompletely describes certain "adjacent property"); id. at 11 (casino construction must stop because the Tribe has breached its state compact).
The court addresses only the first of these arguments, construing it as a contention that the NIGC undertakes a major federal action when it approves a gaming ordinance.
Id. at 749 (alterations in original). The broad statement "[t]here has been no major federal action in this case" appears to apply to the NIGC's "failure to make an Indian lands determination." But if approval of the gaming ordinance alone was a major federal action, the Ninth Circuit could not have concluded as it did. In other words, if approval of the ordinance without a concurrent lands determination was not a major federal action, then the decision to approve the ordinance by definition could not have been a major federal action either. This reading is bolstered by Judge Gould's dissent to the Salazar majority opinion because he believed the NIGC was required to make the lands determination, even as he concurred in the majority's NEPA analysis. Id. at 749 (Gould, J., dissenting).
The JAC's motion for a writ of mandate is denied.
As an initial matter, the court concludes on its own motion that it lacks subject matter jurisdiction to hear the JAC's request for a preliminary injunction against the federal defendants and against defendants Hunter, Chamberlain, Mesa, Tellow and Lotta. District courts have "both the power and the duty" to raise the adequacy of a plaintiff's standing sua sponte. Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868 (9th Cir. 2002). Article III standing requires that a plaintiff allege injury "likely to be redressed by a favorable judicial decision." Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ____, 134 S.Ct. 1377, 1386 (2014). Because the JAC invokes this court's jurisdiction, it bears the burden to show its standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The elements of standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case." Id. Here, in the early stages of litigation, the JAC's "general factual allegations . . . may suffice," even if unsupported by evidence. See id.
An order enjoining the federal defendants from constructing the casino, if the court could issue it, would not redress the JAC's alleged injuries because the federal defendants would have no power to comply. The court concluded in its prior order that the Jamul Indian Village is a federally recognized tribe. As such it exercises "inherent sovereign authority." Okla. Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991). "[U]nless and `until Congress acts, the tribes retain' their historic sovereign authority." Bay Mills, 134 S. Ct. at 2030 (quoting United States v. Wheeler, 435 U.S. 313, 323 (1978)). The JAC's allegations do not identify any law abrogating the Tribe's authority to construct the casino. As noted above, the IGRA empowers the NIGC to approve its budget, collect civil fines, establish fee rates, make permanent a temporary order closing a gaming facility,
Similarly, an order enjoining defendants Hunter, Chamberlain, Mesa, Tellow and Lotta from constructing the casino could not redress the JAC's alleged injuries. Only Indian tribes have the right to regulate gaming activities on Indian lands. See 25 U.S.C. § 2701(5). If sued in their representative capacity, Hunter, Chamberlain, Mesa, Tellow and Lotta are protected by the Tribe's sovereign immunity. See Miller v. Wright, 705 F.3d 919, 927-28 (9th Cir. 2012); Allen v. Smith, No. 12-1668, 2013 WL 950735, at *13 (S.D. Cal. Mar. 11, 2013), aff'd, 597 F.App'x 442 (9th Cir. 2015). In their individual capacities, they have no right to regulate the Tribe's gaming activities; the court made the same determination as to defendant Hunter in its previous order. See Order Aug. 5, 2015, at 19-20, ECF No. 50.
The JAC's motion is denied as to the federal defendants and defendants Hunter, Chamberlain, Mesa, Tellow and Lotta.
Standing does not impede the motion against the three corporate defendants. "A preliminary injunction is an extraordinary remedy never awarded as of right," Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and "should not be granted unless the movant, by a clear showing, carries the burden of persuasion," Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)) (emphasis in original). The purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment can be issued. U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter, 555 U.S. at 20.
The Ninth Circuit has "also articulated an alternate formulation of the Winter test." Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). That formulation is referred to as the "serious questions" or the "sliding scale" approach. "[S]erious questions going to the merits" and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011); see also id. at 1132 ("[T]he `serious questions' approach survives Winter when applied as part of the four-element Winter test."). Under the "serious questions" approach to a preliminary injunction, "[t]he elements of the preliminary injunction test must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez, 680 F.3d at 1072. Irrespective of its approach, a court must balance the competing alleged harms while considering the effects on the parties of the granting or withholding of the injunctive relief. Winter, 555 U.S. at 24. In exercising that discretion, a court must also consider the public consequences of the extraordinary remedy. Id.
The court may rely on declarations, affidavits, and exhibits, among other things. Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009). Such evidence need not conform to the standards for a summary judgment motion. Bracco v. Lackner, 462 F.Supp. 436, 442 n.3 (N.D. Cal. 1978); see also Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) ("The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before trial."); Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985) (in ruling on a motion for preliminary injunction, the "weight to be given each [affiant's] statement is in the discretion of the trial court").
The JAC seeks an order enjoining the construction of the casino until the environmental review required by NEPA is complete. Mem. 10. Its motion for a preliminary injunction appears to be based on its APA claim, and the memorandum in support of its motion omits mention of any alternative cause of action. See Mem. 8 ("[A]s is outlined above, Plaintiffs are likely to succeed on the merits of their NEPA claim that the draft SEIS should be finalized and circulated before the continued construction of the casino has an adverse environmental impact or limits the choice of reasonable alternatives and mitigation measures."). Should the JAC instead rely on its claim that the casino will be built on land that is not the Tribe's land, the court's previous order would control here and prevent its success. See Order Aug. 5, 2014, 26-27, ECF No. 50 (dismissing the complaint for failure to join the Tribe, a required party).
As noted above, the SEIS is meant to study the impacts of the proposed gaming management contract, not construction of the casino. The JAC has submitted no evidence to show the BIA or NIGC have already approved the gaming management contract or that the BIA or NIGC will approve the contract before completion of the SEIS and all other analysis required by NEPA. Even were the court to enjoin approval of the management contract, construction could continue. See 25 U.S.C. § 2710(d)(9); Order Aug. 5, 2014, at 22, ECF No. 50; Thomas Decl. ¶ 23, ECF No. 63-3. Finally, although the SEIS may include an evaluation of environmental factors that would also be relevant to the construction of a casino, as described above, the JAC has not shown any federal agency has any duty to complete NEPA reviews of a private construction project on the Tribe's reservation. The JAC has shown neither its likely success on the merits nor serious questions going to the merits of its claims.
A litigant who seeks a preliminary injunction must show not only that it will suffer irreparable harm, but that this harm will accrue "in the absence of preliminary relief." Winter, 555 U.S. at 20. See also Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir. 1999) ("[T]he harm must be so imminent as to be irreparable if a court waits until the end of trial. . . ."). If the harm identified will be redressed in the ordinary course of litigation, then a preliminary injunction affords more relief than required and should not be granted. For this reason the immediacy of the harm identified is relevant to any request for a preliminary injunction, and the JAC does itself no favors by bringing this motion almost a year after learning construction of the casino had begun. Arc of California v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014) ("[A] plaintiff's failure to seek judicial protection can imply the lack of need for speedy action." (citations and internal quotation marks omitted)). Nevertheless, courts are generally "loath to withhold relief" on the basis of delay alone. Id. (quoting Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1214 (9th Cir. 1984)).
The JAC has identified two sources of irreparable harm: no public comment period has occurred, and environmental impacts have not been mitigated. It has not provided evidence that the BIA and NIGC have not and will not solicit and address public comments or mitigate the environmental impacts of the management contract. The evidence before the court supports the opposite conclusion. The 2013 NOI invited written comments on both the scope of the SEIS and the implementation of the proposed gaming management contract. Notice of Intent to Prepare SEIS, 78 Fed. Reg. 21,398 (Apr. 10, 2013). Once the draft SEIS is complete, the BIA will publish a notice of availability in the Federal Register inviting comments. Rydzik Decl. ¶ 12, ECF No. 63-1. The public may then submit comments during a forty-five-day period and participate in a public meeting. Id. When the comment period ends, the BIA will review the comments it has received and make appropriate revisions to the SEIS. Id.
A district court must balance each party's position against the other's and weigh the "effect on each party of the granting or withholding of the requested relief." Winter, 555 U.S. at 24 (quoting Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987)). Were the court to deny the JAC's motion, the JAC would be required to wait for release of the SEIS, submit comments at a later date, and the construction of the casino would continue. The Tribe could not operate the casino through a third party gaming management contract until that contract's environmental impacts were fully studied and mitigated. Were the court to grant the motion, the defendants would be enjoined from constructing the casino while the BIA and NIGC complete an environmental review of the contract under which it will be operated, even though the Tribe could not operate the incomplete casino. Such an order would force the tribally affiliated defendants to incur substantial costs. See Carroll Decl. ¶ 4, ECF No. 62-1. On balance, an order denying the motion will not prevent the JAC from enjoying any rights afforded by the IGRA and NEPA and would avoid significant expense to the tribally affiliated defendants.
The JAC argues only that "it is in the public interest to complete the SEIS process before the casino is constructed." This argument elides the distinction between the casino construction and management contract and ignores the public interest, as defined by IGRA, to promote tribal economic development and protect gaming as a "means go generating tribal revenue." 25 U.S.C. § 2702.
Soon after the JAC filed its original complaint, the court issued a copy of its standing order. Standing Order, ECF No. 6-1. The standing order requires represented parties to meet and confer before filing motions. Id. at 3. It also limits replies to ten pages and allows exceptions only in "rare instances . . . for good cause shown" upon timely application. Id. at 4. The defendants informed the court that the JAC had not met or conferred with them before filing its motion. Tribe Defs.' Opp'n 15. The JAC did not dispute this assertion. The JAC's reply brief also numbers thirteen pages, including nearly five devoted to an introduction and "statement of the case," which largely repeat arguments made in its original motion. Reply 1-5. The JAC applied for no exception and made no showing of good cause.
This court's responsibility includes a duty to ensure its limited resources are allocated effectively. Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 3 (1992) (per curiam). The standing order has the effect its name indicates: it is the court's order and does not diminish in effect over time. Its requirements are derived from experience and are imposed in an effort to secure the just, efficient, and economical resolution of every case. When parties and their counsel overlook the standing order, they also overlook opportunities to narrow disputes, avoid unnecessary costs, and save time. The JAC is cautioned that future failures to follow this court's standing order may result in sanctions, including the striking of excess pages and motions filed without the benefit of prior consultation with the opposing party.
The motion is DENIED.
The court denies the JAC's request in all other respects. The court is unable to verify the accuracy of the letter from San Diego County, RJN Ex. D, or the news article, RJN Ex. E, and the JAC makes no effort to assist the court on this front. The court also notes that even were it to take notice of these documents, the JAC's citations to them are for purposes not relevant to the court's decision.
