ANTHONY W. ISHII, SENIOR DISTRICT JUDGE.
Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God — Madera, and Dennis Sylvester (collectively "Stand Up") have brought this action against the Department of the Interior, and its Bureau of Indian Affairs and the heads of both (collectively the "Federal Defendants" or "United States"), seeking to prevent class III gaming activity by the North Fork Rancheria of Mono Indians at a 305.49 acre parcel of land in Madera, California ("the Madera Parcel"). See Doc. 13. The Court permitted North Fork Rancheria of Mono Indians ("North Fork") to intervene in this action. Doc. 23.
The parties have filed cross-motions for summary judgment in accordance with the briefing schedule approved by the Court. Docs. 23, 29, 36, 40. Plaintiff Stand Up has also filed a motion to stay the proceedings until the California Supreme Court can resolve whether the Governor of the State of California had the authority under California law to concur in the Secretary of the
The North Fork Rancheria of Mono Indians is a federally recognized Indian tribe, located in Madera County. North Fork's Separate Statement of Undisputed Facts, Doc. 38 ("Doc. 38") at ¶ 1. Presently, "North Fork has no source of revenue other than federal grants and California Revenue Sharing Trust Fund distributions. . . ." Doc. 38 at ¶ 2. North Fork possesses a 61.5 acre parcel in North Fork, California, held in trust by the United States as a reservation. See Doc. 38 at ¶ 2; Administrative Record ("AR") at 00000248.
In 2005, North Fork submitted a fee-to-trust application to the United States Department of the Interior, seeking to have a roughly 305-acre parcel of land in Madera, California, (the "Madera Site") taken into trust for purposes of developing a hotel and casino. Doc. 38 at ¶ 3; AR00000160. In 2006, North Fork submitted a supplement to its fee-to-trust application, also asking the Secretary of the Interior conduct a two-part determination
A lengthy review process followed. Significant for this action, the Department of the Interior conducted an environmental impact study ("EIS") to address the environmental impact of operation of a hotel and casino on the Madera Site. See Doc. 38 at ¶ 6; North Fork Rancheria of Mono Indians v. State of California ("North Fork v. California"), 2015 WL 11438206, *1 (E.D. Cal. Nov. 13, 2015). The results of the EIS were published on August 6, 2010. AR00000160; Picayune Rancheria of Chukchansi Indians v. United States Dept. of the Interior ("Picayune v. DOI"), 2017 WL 3581735, *1 (E.D. Cal. Aug. 18, 2017); North Fork v. California, 2015 WL 11438206 at *1; see Doc. 38 at ¶ 6.
The Secretary did not conduct any other EIS, environmental assessment, or conformity determination with respect to the Madera Site prior to prescribing of gaming procedures.
On March 17, 2015, North Fork initiated an action against the State of California to compel the state to negotiate a new tribal-state compact in good faith. North Fork Rancheria of Mono Indians of California
On December 10, 2012, Stand Up for California! filed an action against the Secretary of the Interior, bringing APA, IRA, IGRA, National Environmental Policy Act ("NEPA"), and Clean Air Act ("CAA") challenges to the Secretary's two-part, fee-to-trust, and environmental impact determinations regarding proposed gaming at the Madera Site. Stand Up for California! v. Dept. of the Interior, No. 1:12-cv-2039-BAH, Doc. 1 (D.D.C. Dec. 10, 2012); see also Id., Stand Up's Third Amended Complaint, Doc. 103 (Dec. 3, 2014). On December 31, 2012, Picayune filed a similar action against the Secretary regarding the Madera Site. See Picayune Rancheria of the Chukchansi Indians v. United States, No. 1:12-cv-2071-BAH, Doc. 1 (D.D.C. Dec. 31, 2012). In that action, Picayune alleged, among other things, that the "Assistant Secretary [of the Interior] violated the APA, IGRA, and the IRA by relying on a purported concurrence from the Governor of California that is ultra vires and invalid under California law." Id., Doc. 1 at ¶ 57.
On January 9, 2013, the District of Columbia district court consolidated the Stand Up and Picayune actions. Stand Up for California! v. Dept. of the Interior, 1:12-cv-2039-BAH, Minute Entry (Jan. 9, 2013). The parties filed cross-motions for summary judgment in early 2015. Id., Docs. 106, 108, 111-117, 121, 122. The District of Columbia district court ordered additional briefing on the question of whether the State of California was required to be joined under Federal Rule of Civil Procedure 19. Id., Doc. 135 (Sept. 30, 2015).
While the cross-motions for summary judgment were under submission, the Secretary "prescribed the secretarial procedures mandated by IGRA," as a result of the Good Faith Negotiation Action before this Court. Id., Docs. 163, 163-1; Stand Up for California! v. Dept. of the Interior, 204 F.Supp.3d 212, 240 (D.D.C. 2016) ("On
On September 6, 2016, United States District Court for the District of Columbia dismissed Picayune and Stand Up's claims premised on the invalidity of the Governor's concurrence, concluding that the State of California was an indispensable party. Stand Up for California! v. Dept. of the Interior, 204 F.Supp.3d at 253-254. The court further dismissed the claims premised upon the invalidity of the 2012 Compact as moot in light of the issuance of Secretarial procedures. See Id. at 248. As to all other of Picayune and Stand Up's IGRA, IRA, APA, NEPA, and CAA claims, the court granted summary judgment in favor of the Secretary and North Fork. Id. at 323.
Stand Up and Picayune appealed a portion of the district court's judgment to the circuit court level. Stand Up for California! v. Dept. of the Interior, 879 F.3d 1177 (D.C. Cir. 2018).
In March of 2013, Stand Up filed suit in the Madera County Superior Court, contending that the Governor lacked the authority under California law to concur in the Secretary of the Interior's two-part determination. Stand Up for California v. State of California et al., 5th DCA Case No. F069302. The Madera County Superior Court held that the Governor's authority to concur with the Secretary's determination is implicit in the Governor's authority to negotiate and conclude Tribal-State compacts on behalf of the state. Id. Stand Up appealed.
The Fifth District Court of Appeal issued a decision on December 16, 2016, in three separate opinions, reversing the judgment of the trial court and holding that the Governor's concurrence was invalid under state law. Stand Up for California! v. State of California, 6 Cal.App.5th 686, 211 Cal.Rptr.3d 490 (Cal. Ct. App. 2016). Several months earlier, the California Third District Court of Appeal issued a decision on a similar question regarding a different Indian tribe, determining that the Governor's concurrence with a two-part determination by the Secretary is an executive (rather than legislative) power and therefore within the authority of the Governor. United Auburn Indian Community of Auburn Rancheria v. Brown, 4 Cal.App.5th 36, 208 Cal.Rptr.3d 487 (Cal. Ct. App. 2016).
In light of the apparent disagreement, the California Supreme Court has granted review of Stand Up for California! v. State of California and United Auburn. See Stand Up for California! v. State of California, 215 Cal.Rptr.3d 2, 390 P.3d 781 (2017) (granting review and deferring consideration pending resolution of United Auburn); United Auburn Indian Community of the Auburn Rancheria v. Brown, 212 Cal.Rptr.3d 620, 387 P.3d 741 (2017) (granting review). Both actions remain pending.
Summary judgment is an appropriate mechanism for reviewing agency decisions under the APA. Turtle Island Restoration Network v. United States Dept. of Commerce, 878 F.3d 725, 732 (9th Cir. 2017); City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997); Occidental Engineering Co. v. Immigration & Naturalization Service, 753 F.2d 766, 769-70 (9th Cir.1985). However, courts do not utilize the standard analysis for determining whether a genuine issue of material fact exists. See Occidental, 753 F.2d at 769-70; Academy of Our Lady of Peace v. City of San Diego, 835 F.Supp.2d 895, 902 (S.D.Cal.2011); California RSA No. 4 v. Madera Cnty., 332 F.Supp.2d 1291, 1301 (E.D.Cal.2003). In reviewing an agency action, the relevant legal question for a court is "whether the agency could reasonably have found the facts as it did." San Francisco, 130 F.3d at 877; Occidental, 753 F.2d at 769. A court "is not required to resolve any facts in a review of an administrative proceeding." Occidental, 753 F.2d at 769; California RSA, 332 F.Supp.2d at 1301. Instead, in reviewing an agency action, the relevant legal question for a court reviewing a factual determination is "whether the agency could reasonably have found the facts as it did." San Francisco, 130 F.3d at 877; Occidental, 753 F.2d at 769; California RSA, 332 F.Supp.2d at 1301.
The Court's review in resolving an APA challenge to an agency action is circumscribed: the court will only set aside agency action if its "`findings[ ] and conclusions [are] found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' `in excess of statutory jurisdiction' or `without observance of procedure required by law." Turtle Island, 878 F.3d at 732 (quoting 5 U.S.C. § 706(2)(A), (C)-(D)). Agency action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law "only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Defs. Of Wildlife v. Zinke, 856 F.3d 1248, 1256-1257 (9th Cir. 2017) (citation omitted); see Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (An "agency must examine the relevant data and articulate a satisfactory explanation for its action.") This standard is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007) (quoting Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). Review under this standard is narrow, and the court may not substitute its judgment for that of the agency. Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 573 (9th Cir. 1988). Nevertheless, the court must "engage in a substantial inquiry . . . a thorough, probing, in-depth review." Native Ecosys. Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005) (citation and internal quotations omitted).
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington
In resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). A plaintiff bears the burden of proof at trial, and to prevail on summary judgment, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the plaintiff. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial or in moving for summary judgment, they need only prove an absence of evidence to support the plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
In the FOIA context, courts review an agency's decision whether or not to disclose de novo. 5 U.S.C. § 552(a)(4)(B); see also Louis v. United States Dep't of Labor, 419 F.3d 970, 977 (9th Cir. 2005) (De novo review "requir[es] no deference to the agency's determination or rationale regarding disclosures.") However, courts "accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility. . . and reproducibility." 5 U.S.C. § 552(a)(4)(B). If the FOIA dispute presents a genuine issue of material fact, courts proceed to a bench trial or adversary hearing. Animal Legal Def. Fund v. United States Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016).
Stand Up seeks APA review of the Secretary's decision to issue Secretarial Procedures regulating gaming on the Madera Site. Stand Up contends that the Secretary's issuance of gaming procedures violated the Johnson Act, 15 U.S.C. § 1171, et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., and the Indian Gaming Regulatory Act ("IGRA").
The Johnson Act, enacted in 1951, prohibits the possession or use of "any gambling device
Defendants contend that gaming under Secretarial Procedures should be considered the functional equivalent of gaming under a Tribal-State compact. Reading IGRA as a whole, they contend, makes clear that Secretarial Procedures are designed to operate as a complete substitute to existence of an effective Tribal-State compact. North Fork and the Secretary both rely on the purpose of IGRA (generally) and the purpose of the remedial process. If Stand Up's reading of the Johnson Act is accepted, they argue, the purpose of the remedial process will be thwarted and the value of Secretarial Procedures diminished.
The Court begins, as it must, by examining the text of the statutes at issue. Friends of Animals v. United States Fish and Wildlife Service, 879 F.3d 1000, 1004-05 (9th Cir. 2018) (quoting Limtiaco v. Camacho, 549 U.S. 483, 488, 127 S.Ct. 1413, 167 L.Ed.2d 212 (2007)); see Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The Johnson Act is clear in its broad prohibition of sale, "transport[ation], possess[ion], or use [of] any [slot machine] . . . within Indian country." 15 U.S.C. § 1175(a). The Johnson Act provides no exceptions relevant here. Congress was not blind to the limitations imposed by the Johnson Act in enacting IGRA. It specifically carved out an exception to the prohibition imposed by the Johnson Act for "any gaming conducted under a Tribal-State compact that (a) is entered into under paragraph (3)
Section 2710(d)(6) exempts gaming conducted pursuant to a Tribal-State compact from the reach of the Johnson Act. Section 2710(d)(6) does not expressly exempt gaming conducted pursuant to Secretarial Procedures from the reach of the Johnson Act. At first blush, Secretarial Procedures issued pursuant to section 2710(d)(7)(b)(vii) do not appear to be "a Tribal-State compact" for purposes of section 2710(d)(3). The statutory language is clear and unambiguous. In such situations "the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce [the statute] according to its terms." Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)). A closer look at Stand Up's proposed reading makes clear that the outcome that it proposes is absurd — it would result in internal inconsistencies within IGRA, it would render the issuance of Secretarial Procedures inoperative in every case, and it would undermine the carefully crafted statutory scheme and goals of IGRA and its remedial process.
In the situation at bar, the Secretary is compelled by IGRA to "prescribe . . . procedures. . . which are consistent with the proposed compact selected by the mediator, the provisions of IGRA, and the relevant provisions of [California law]" and "under which class III gaming may be conducted. . . ." 25 U.S.C. § 2710(d)(7)(B)(vii). Conspicuously absent from that subsection is any requirement that the Secretary, in considering the gaming procedures to be prescribed, consider whether those procedures would violate the Johnson act or "any other applicable federal law." See 25 U.S.C. § 2710(d)(7)(B)(iv) (directing the mediator to determine which proposed compact "best comports with [IGRA], and any other applicable Federal law and with the findings and order of the court"). If gaming conducted pursuant to Secretarial Procedures is not treated as synonymous to gaming pursuant to a Tribal-State compact, section 2710(d)(7)(B)(vii) would compel the Secretary to both (1) authorize gaming at least partially inconsistent with the Johnson Act (and completely inconsistent with section 23 of IGRA, codified at 18 U.S.C. § 1166),
Next, such a reading would also result in section 2710 also being internally inconsistent in a manner that would render the remedial process inoperative. It is a fundamental cannon of statutory interpretation that "statute[s] should be construed so that effect is given to all [of their] provisions, so that no part will be inoperative or superfluous, void or insignificant. . . ." Hibbs v. Winn, 542 U.S. 88, 101,
Even setting aside the internal inconsistencies, a reading of IGRA that treats Secretarial Procedures as a limited remedy, offering fewer class III gaming options than a Tribal-State compact, would wholly undermine the purpose of the remedial process. See 25 U.S.C. § 2710(d)(7)(b); S. Rep. 100-446, at *14, reprinted in 1988 U.S.C.C.A.N. 3071, 3085 ("[T]he issue before the Committee was how best to encourage States to deal fairly with tribes as sovereign governments. . . . The Committee elected, as the least offensive option, to grant tribes the right to sue a State if a compact is not negotiated" in good faith.")
Finally, no court has ever found that class III gaming cannot be conducted pursuant to Secretarial Procedures for want of a Tribal-State compact. In fact, many courts recognize that Secretarial Procedures issued at the final stage of IGRA's
Stand Up's challenge to issuance of Secretarial Procedures on the ground that such procedures are inconsistent with the Johnson Act is without merit. As to this question, the Secretary's action was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; it was not in excess of statutory jurisdiction or without observance of procedure required by law. Summary judgment on this question will be granted in favor of North Fork and the Federal Defendants.
NEPA, codified at 42 U.S.C. § 4321, et seq., "provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." San Diego Navy Broadway Complex Coalition v. United States Dept. of Def., 817 F.3d 653, 659 (9th Cir. 2016) (citation omitted). It requires federal agencies to prepare a detailed environmental impact statement ("EIS") for all "major Federal actions affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
Stand Up argues that (1) the issuance of Secretarial Procedures is a major Federal action for purposes of NEPA, requiring preparation of an EA; and (2) the EIS prepared in connection with taking the Madera Site into trust for North Fork for the purpose of conducting Tribal gaming does not satisfy NEPA's requirement in connection with issuance of Secretarial Procedures. The Secretary and North Fork respond, inter alia, that (1) issuance of Secretarial Procedures is not a major Federal action for purposes of NEPA, or (2) even insofar as Secretarial Procedures are major Federal action, the Secretary's authority in issuing gaming procedures is cabined such that the "rule of reason" would excuse preparation of a pointless EIS.
As noted, NEPA obligations are triggered when a federal agency engages in a "major Federal action[ ] affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "Major Federal action[s]" that trigger NEPA requirements "include[ ] actions with effects that may be major and which are potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18. Federal actions include approval by a federal agency of projects by non-governmental entities. Id. at § 1508.18(b)(4). The Court declines to determine whether prescribing gaming procedures is a major Federal action. Cf. Jamul Action Committee v. Chaudhuri, 837 F.3d 958, 963 (9th Cir. 2016) (declining to determine whether the NIGC's approval of a gaming ordinance was a major Federal action where the NIGC was not otherwise not required to comply with NEPA due to an irreconcilable conflict between IGRA and NEPA); Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1225 (9th Cir. 2015) (declining to determine whether an agency action constituted a major Federal action where a statutory mandate limited the agency's authority to act, excusing NEPA compliance).
The Supreme Court and NEPA's enabling regulations both make clear that an agency action, regardless of whether it is a major Federal action, is only subject to NEPA environmental assessment obligations if the agency has the authority to prevent the potential environmental effect at issue. Department of Transp. v. Public Citizen, 541 U.S. 752, 770, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see 15 C.F.R. § 1508.8. "[W]here an agency has no ability to prevent a certain effect
NEPA was designed with two purposes: First, "`it ensures that the agency, in reaching its decision will have available, and will carefully consider, detailed information regarding significant environmental impacts.'" Public Citizen, 541 U.S. at 768, 124 S.Ct. 2204 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)); Jamul Action Committee v. Chaudhuri, 837 F.3d 958, 961 (9th Cir. 2016). "Second, it `guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Public Citizen, 541 U.S. at 768, 124 S.Ct. 2204 (quoting Robertson, 490 U.S. at 349, 109 S.Ct. 1835.) If preparation of an EIS could serve neither purpose, then an EIS need not be prepared. Public Citizen, 541 U.S. at 768, 124 S.Ct. 2204. That said, "to the fullest extent possible . . . public laws of the United States [must] be interpreted and administered in accordance with [NEPA]." Jamul Action Committee, 837 F.3d 958, 961 (quoting, inter alia, 42 U.S.C. § 4332). If preparation of an EIS might have some impact on the Secretary's prescribing of Secretarial Procedures, the rule of reason would not excuse compliance with NEPA.
The Defendants argue that, even assuming that a full, detailed EIS was prepared, it would not (and indeed it could not) have impacted his prescribing of Secretarial Procedures. The remedial process of IGRA does not write the Secretary a blank check to issue any conditions for gaming that he sees fit. Instead, the Secretary and North Fork argue, his view is restricted to consultation with the Indian tribe and review of the compact selected by the mediator, the provisions of IGRA, and the relevant portions of California law. 25 U.S.C. § 2710(d)(7)(B)(vii). The Secretary contends that he is not authorized to modify the procedures from those set in the selected compact except for inconsistency with IGRA or relevant state law. In other words, the Secretary contends that he cannot modify the procedures for environmental reasons.
In response, Stand Up focuses upon the mediator's obligation to select from the two proposed last best offer compacts from the tribe and state, the compact "which best comports with the terms of [IGRA] and any other applicable Federal law and with the findings of the court." 25 U.S.C. § 2710(d)(7)(B)(iv). Although the mediator selects the compact, Stand Up argues, it is the Secretary who gives effect to it by issuing gaming procedures. Stand Up contends that the Secretary is required to correct any error by the mediator in resolving "any other applicable Federal law," see 25 U.S.C. § 2710(d)(7)(B)(iv), rather than "perpetuat[ing] the violation by adopting the mediator-selected compact," Doc. 46 at 25. Stand Up highlights that the Secretary in fact did make changes to the mediatory-selected compact, permitting the State to opt-in to the regulatory role that it takes in relation to tribes with whom it has entered a Tribal-State compact. Doc. 46 at 25; AR00002187-88. "If the State does not opt-in, the National Indian Gaming Commission [("NIGC"]) [will]
Stand Up's proposed reading is again inconsistent with IGRA. First, the Secretary's modification of the mediator-selected compact in a manner designed to avoid offending the Tenth Amendment
The Court reads section 2710(d)(7)(B)(vii) to contain an exhaustive list of authorities to be considered by the Secretary in prescribing Secretarial Procedures. See also, Texas v. United States, 497 F.3d at 524 (The Secretarial Provisions issued pursuant to Part 291
Accordingly, in prescribing gaming procedures, the Secretary may only consult with the Tribe, and ensure compliance with the mediator-selected compact, IGRA, and relevant state law. The Secretary could not depart from the mediator-selected compact unless it was necessary to comply with IGRA or relevant state law.
Stand Up's attempt to distinguish this action from Public Citizen is unavailing. In Public Citizen, the Supreme Court held that the Federal Motor Carrier Safety Administration ("FMCSA") did not need to consider the environmental effects of increased cross-border operations of Mexican motor carriers in the EA because the FMCSA had no ability to prevent those operations. Public Citizen, 541 U.S. at 770, 124 S.Ct. 2204. A "critical feature" of that case was that the "FMCSA [had] no ability to countermand the President's lifting of the moratorium or otherwise categorically exclude Mexican motor carriers from operating within the United States." The agency had "only limited discretion regarding motor vehicle carrier registration: It must grant registration to all domestic or foreign motor carriers that are willing and able to comply with the applicable safety, fitness, and financial-responsibility requirements. . . . FMCSA [had] no statutory authority to impose or enforce emissions controls or to establish environmental requirements unrelated to motor carrier safety." Id. at 758-59, 124 S.Ct. 2204 (internal quotation marks and citation omitted). Because the agency could not prevent the environmental effects, it could not be considered a legally relevant cause of them. Id. at 770, 124 S.Ct. 2204. In the same way, this Court ordered the Secretary to prescribe gaming procedures — the Secretary could not decline to do so. The Secretary was permitted only limited discretion regarding the content of those procedures. That discretion did not extend to consideration of environmental consequences — certainly not if that consideration meant prescribing procedures inconsistent with the mediator-selected compact. The Secretary could not have considered the results of an EIS in prescribing gaming conditions and cannot be considered a legally relevant cause of any environmental effects. Public Citizen, 541 U.S. at 770, 124 S.Ct. 2204. The Secretary
The Secretary's action in not conducting an EA or EIS was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; it was not in excess of statutory jurisdiction or without observance of procedure required by law. The Court will not compel the Secretary to conduct any review pursuant to NEPA because such review is not required here. Summary judgment on this question will be granted in favor of North Fork and the Federal Defendants.
Distinct from NEPA, the Clean Air Act is concerned with more than process; it creates substantive requirements and directs the EPA to establish emission limits on air pollutants. 42 U.S.C. § 7409(a); see 42 U.S.C. § 7401-7671q. The CAA requires each State to develop a State Implementation Plan ("SIP"), designed to implement, maintain, and enforce the EPA's national ambient air quality standards ("NAAQS"). 42 U.S.C. § 7410(a)(1). Each State is divided into air quality control regions, each of which is designated as a nonattainment area, an attainment area, or an unclassifiable area depending on the ambient air quality of the area. 42 U.S.C. § 7407(b), (d). The CAA is concerned primarily with State regulation of "stationary sources" — buildings or structures which emit or may emit any air pollutant. 42 U.S.C. § 7411(a)(3); see In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, 264 F.Supp.3d 1040, 1045 (N.D. Cal. 2017) (citations omitted). Section 176(c)(1) of the CAA, which applies in nonattainment areas, prohibits federal agencies from "licens[ing] . . ., permit[ting], or approv[ing] any activity which does not conform to" a SIP. 42 U.S.C. § 7506(c)(1); accord 40 C.F.R. § 93.150(a)-(b). "The assurance of conformity to [a SIP] [is] an affirmative responsibility of the head of. . . [an] agency. . . ." Id. It is undisputed that the Madera Site is located within the San Joaquin Valley Air Basin, which is a nonattainment area, triggering the conformity determination requirement of section 176 of the CAA. Doc. 29-4 at 104. Prior to taking the Madera Site into trust, the Secretary conducted a conformity determination. Doc. 29-4 at 104-114; see Stand Up for California! v. Dept. of Interior, 879 F.3d at 1179-81, 1190-92. However, it is undisputed that the Secretary did not conduct a conformity determination with respect to the impact of prescribing gaming procedures. Nor did the Secretary indicate reliance on the previously conducted conformity determination in prescribing gaming procedures.
Stand Up contends the Secretary was required to conduct a conformity determination prior to prescribing gaming procedures and, by failing to do so, the Secretary violated the CAA.
The Secretary and North Fork both contend that, in the same way that the
The Court agrees that the Secretary lacks sufficient control over the prescribing of gaming procedures to be able to make modifications based on the requirements of the CAA. As a result, the prescribing of Secretarial Procedures does not require a CAA conformity determination. The Supreme Court explained in Public Citizen that "agenc[ies] [are] exempt from general conformity determination[s] under the CAA if [their] action would not cause new emissions to exceed certain threshold emission rates set forth in [section] 93.153(b)." Public Citizen, 541 U.S. at 771, 124 S.Ct. 2204. Section 93.153 requires agencies to conduct a conformity determination "for each . . . pollutant . . . where the total of direct and indirect emissions. . . in a nonattainment . . . area caused by a Federal action" would equal or exceed a certain level. 40 C.F.R. 93.153(b). Indirect emissions are those emissions that are "caused or initiated . . . and originate" in the same nonattainment area as the Federal action but occur at a different time or place as the action, are reasonably foreseeable, that the agency can practically control, and for which the agency has a continuing program responsibility. 40 C.F.R. § 93.152.
The prescribing of gaming procedures will result in vehicle emissions of ROG and NOx greater than de minimus thresholds and exceeding applicable conformity thresholds during both construction and operation of the gaming facility. See Doc. 29-4 at 111 (finding in the fee-to-trust CAA conformity determination that vehicle emissions caused by the construction and operation of the single gaming facility initially envisioned will exceed applicable conformity thresholds). If the Secretary had not prescribed gaming procedures — as he was required to do — North Fork could not conduct gaming. The Secretary's prescribing of gaming procedures is certainly a "but for" cause of class III gaming at the Madera Site. The Supreme Court came to a similar conclusion in Public Citizen. 541 U.S. at 772, 124 S.Ct. 2204. It explained that the FMCSA motor carrier safety and registration regulation regulations — without which no Mexican trucks could enter the United States (hence they could not
However, despite being a "but for" cause of pollution, the FMCSA "could not refuse to register Mexican motor carriers simply on the ground that their trucks would pollute excessively . . ., cannot determine whether registered carriers actually will bring trucks into the United States, cannot control the routes the carriers take, and cannot determine what the trucks will emit." Public Citizen, 541 U.S. at 772-773, 124 S.Ct. 2204. The High Court reasoned that the FMCSA did not "practicably control[ ]" and would not "maintain control" over vehicle emissions from the Mexican trucks as would be required to consider the emissions "indirect emissions" which must be considered in conformity determinations made pursuant to the CAA. As a result, the FMCSA correctly did not consider any of the "emissions attributable to the increased presence of Mexican trucks within the United States." Public Citizen, 541 U.S. at 771, 773, 124 S.Ct. 2204. Here, as discussed above, the Secretary's authority to modify the gaming procedures from those selected by the mediator was limited. The Secretary's role was only to ensure that the gaming procedures prescribed were consistent with the mediator-selected compact, IGRA, and relevant California law. 25 U.S.C. § 2710(d)(7)(B)(vii). The Secretary no more practicably controlled or maintained control over emissions at the Madera Site than did the FMCSA in Public Citizen.
The Court cannot conclude that the Secretary's decision to not conduct a conformity determination into whether emissions at the proposed gaming site exceed threshold amounts was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; it was not in excess of statutory jurisdiction or without observance of procedure required by law. Summary adjudication will be denied to Stand Up and granted to North Fork and the Secretary.
Stand Up's IGRA challenge is straight-forward: "the Secretarial Procedures are invalid because the Governor of California lacked authority to concur in the Secretary's two-part determination under 25 U.S.C. § 2719(b)(1)(A), and therefore the Madera Site is not eligible for tribal gaming under IGRA." Doc. 29 at 30. The premise that the Governor lacked the authority to concur is not established. That question is now pending before the California Supreme Court.
With respect to the same question, this Court and the District of Columbia District Court both found that the State of California is an indispensable party for any claims that "in any way involv[e] the Governor's concurrence." Stand Up for California, 204 F.Supp.3d at 254; Picayune Rancheria of Chukchansi Indians v. United States Department of the Interior, 2017 WL 3581735, *9-10 (E.D. Cal. Aug. 18, 2017). The same holds true here. Stand Up's cause of action relies upon the invalidity of the Governor's concurrence. At least until the California Supreme Court resolves the question before it, the State of California is an indispensable party.
Stand Up moves to stay this action pending the California Supreme Court's resolution of the gubernatorial concurrence authority question. The parties disagree on the rule to be applied in resolving the question of whether to issue
In "exceedingly rare" circumstances, Colorado River recognizes a "narrow exception" to the federal courts' "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) ("Colorado River"); Smith v. Central Ariz. Water Conservation Dist., 418 F.3d 1028, 1033 (9th Cir. 2005). If "considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation," Colorado River, 424 U.S. at 817, 96 S.Ct. 1236, show that the federal case should defer to the state case, then the federal court may dismiss or stay the federal action. See R.R. St. & Co. v. Transp. Ins. Co., 656 F.3d 966, 978 (9th Cir. 2011). In deciding whether to dismiss or stay a federal case in favor of a state case concerning the same subject matter, courts in the Ninth Circuit are to examine eight factors: (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court. Id. at 978-79. With respect to the last factor, although "exact parallelism" is not required between the state and federal cases, "the existence of a substantial doubt as to whether the state proceedings will resolve the federal action precludes Colorado River stay or dismissal." Id. at 982; Smith, 418 F.3d at 1033.
"These factors are to be applied in a pragmatic and flexible way, as part of a balancing process rather than as a mechanical checklist." Am. Int'l Underwriters (Philippines), Inc. v. Cont'l Ins. Co., 843 F.2d 1253, 1257 (9th Cir. 1988). Yet, "[a]ny doubt as to whether a factor exists should
The Court addresses only the fifth and eighth factors. As to the fifth factor, the "presence of federal-law issues must always be a major consideration weighing against surrender" of jurisdiction, but "the presence of state-law issues may weigh in favor of that surrender" only "in some rare circumstances." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). This Court resolves Stand Up's IGRA claim on federal procedural grounds; the underlying state law questions do not impact this Court's decision. More importantly, the APA and FOIA claims before this Court will not be completely resolved by the California Supreme Court's decision. Seneca Ins. Co. v. Strange Land, Inc., 862 F.3d 835, 845 (9th Cir. 2017) (The parallelism factor is "more relevant when it counsels against arbitration, because . . . insufficient parallelism may preclude abstention.") The Court's "virtually unflagging obligation" to resolve those claims compels the Court to move forward with this action.
Because a stay is inappropriate pursuant to Colorado River, and because the State of California is an indispensable party to this action, Stand Up's IGRA claim will be dismissed for failure to join an indispensable party.
The Freedom of Information Act seeks `to ensure an informed citizenry, vital to the functioning of a democratic society.'" Tuffly v. U.S. Dep't of Homeland Sec., 870 F.3d 1086, 1092 (9th Cir. 2017) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)). Accordingly, "the Act requires that federal agencies make records within their possession promptly available to citizens upon request." Id. However, not all records are subject to disclosure; nine exemptions exist. 5 U.S.C. § 552(b).
On August 12, 2016, Stand Up sent a FOIA requests to the Department of the Interior ("DOI") and the Bureau of Indian Affairs ("BIA") requesting "[c]opies of all communications to or from North Fork Rancheria of Mono Indians" and "to or from the State of California" "relating to the development of the Secretarial Procedures." Doc. 29-3 at 5, 8. On August 15, 2016, the BIA informed Stand Up that the FOIA request had been received and "assigned for processing and direct response." Doc. 29-3 at 12. The following day, the DOI responded to Stand Up, indicating that BIA had the information sought and that the BIA would respond directly to Stand Up. Doc. 29-3 at 18. On October 10, 2016, Stand Up sought a status update regarding its FOIA request. Doc. 29-3 at 20. The BIA responded that the FOIA request had been assigned to the Office of the Assistant Secretary — Indian Affairs (ASIA). Doc. 29-3 at 30. On October 6, 2017, the FOIA Coordinator for the Office of the ASIA indicated that the response to Stand Up's FOIA request would be finalized by December 5, 2017. Doc. 52-3 at 1-2.
On December 5, 2017, this Court received notice from the Federal Defendants that on December 4, 2017, the DOI "responded to Stand Up's request, providing all documents answering to the request that are not otherwise subject to withholding under FOIA." Doc. 53 at 2.
Accordingly, IT IS HEREBY ORDERED that:
1. Stand Up for California!'s motion for summary judgment (Doc. 29) is DENIED and Defendants' motions for summary judgment (Docs. 36, 40) are GRANTED, as set out herein;
2. Stand Up for California's motion to stay (Doc. 28) is DENIED; and
3. The Clerk of the Court shall enter judgment and close this case.
IT IS SO ORDERED.