RUDOLPH CONTRERAS, United States District Judge.
The approval and regulation of gambling (or "gaming") on Native American ("tribal") land requires a careful balancing of tribal, state, and federal law, and this action implicates that balance. Plaintiffs the state of Connecticut (the "state") and the Mashantucket Pequot Tribe ("Pequot") seek to amend the federally-imposed procedures authorizing gambling on Pequot land within Connecticut under the federal Indian Gaming Regulatory Act (the "IGRA"). This amendment is necessary for Pequot to operate a commercial casino on Connecticut land. The procedures require that Plaintiffs obtain the Secretary of the Interior's (the "Secretary") approval to amend them; approval the Secretary has withheld. Plaintiffs assert that the IGRA requires that the Secretary and the United States Department of the Interior (the "Department") (together, "Federal Defendants") deem the amendments approved, and they ask this Court to require the Secretary to publish a notice of approval in the Federal Register.
MGM Resorts Global Development, LLC ("MGM"), a multinational commercial casino operator, claims to have an interest in this action because the Secretary's approval of Plaintiffs' proposed amendments would give Pequot a competitive advantage over MGM in the market for commercial gambling in Connecticut and the surrounding states. First, MGM asserts that both it and Pequot have proposed the development of a casino in Bridgeport, Connecticut, and the state's approval of one proposal over the other largely hinges on the Secretary's decision at issue in this action. Second, MGM asserts that the Secretary's approval of Plaintiffs' proposed amendments would clear the final hurdle preventing the development of a casino in East Windsor, Connecticut that would directly compete with MGM's casino in Springfield, Massachusetts. Accordingly, MGM seeks to intervene as a defendant.
Now before the Court are Federal Defendants' motion to dismiss the action,
The IGRA governs Class III casino gaming—blackjack, roulette, and other table games—on tribal land. 25 U.S.C. §§ 2701 et seq.; 25 C.F.R. § 502.4; Amador Cty., Cal. v. Salazar, 640 F.3d 373, 376 (D.C. Cir. 2011). It mandates that a tribe must obtain authorization from a state before conducting Class III gaming on land within that state's borders. 25 U.S.C. § 2710(d)(1)(C). Typically, such authorization is secured through a negotiated agreement between the tribe and the state, a "tribal-state compact." 25 U.S.C. § 2710(d)(3)(A). However, the IGRA authorizes the Secretary to prescribe "procedures" ("secretarial procedures" or "procedures") authorizing a tribe to conduct Class III gaming if the tribe and the state cannot reach an agreement. See 25 U.S.C. § 2710(d)(7)(B)(vii).
Section 2710(d)(8) governs the approval of tribal-state compacts, and 25 C.F.R. § 293.1 et seq. implement that section. Section 2710(d)(8)(A) authorizes the Secretary to approve compacts, and 25 C.F.R. § 293.3 further authorizes the Secretary to approve amendments to those compacts. The Secretary must either approve or disapprove a tribal-state compact and its amendments within 45 days of receipt. 25 U.S.C. § 2710(d)(8)(A)-(C); 25 C.F.R. §§ 293.4(b), 293.12. The Secretary may disapprove a compact or compact amendment for one of three reasons: (1) it violates the IGRA, (2) it violates any other provision of Federal law that does not relate to jurisdiction over gaming on tribal land, or (3) it violates the United States' trust obligations to Native Americans. 25 U.S.C. § 2710(d)(8)(B); 25 C.F.R. § 293.14. Importantly for this action, if the Secretary fails to explicitly approve or disapprove a tribal-state compact or amendment "described in subparagraph [2710(d)(8)(A)]" within 45 days, the compact or amendment "shall be considered to have been approved by the Secretary...." 25 U.S.C. § 2710(d)(8)(C); 25 C.F.R. § 293.12.
A tribal-state compact or compact amendment that has been approved by the Secretary or deemed approved by operation of law takes effect when notice of its approval is published in the Federal Register. 25 U.S.C. § 2710(d)(3)(B); 25 C.F.R. § 293.15(a). And the Secretary "shall publish... notice of" the approval within 90 days from the date the compact or amendment was received by the Office of Indian Gaming.
Section 2710(d)(7) governs the imposition of secretarial procedures for tribal gaming, when a tribe and a state cannot reach good faith agreement on a tribal-state compact. In the absence of an agreement, the tribe must first sue the state in federal court under 25 U.S.C. § 2710(d)(7)(A)(i). If the court concludes that the state failed to negotiate a compact in good faith, it shall order the parties to return to the negotiating table and produce a compact within 60 days. Id. § 2710(d)(7)(B)(iii). If the tribe and the state cannot reach agreement in 60 days, they "shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact." Id. § 2710(d)(7)(B)(iv).
When the tribe and the state are sent to mediation, the mediator must "select from the two proposed compacts the one which best comports with the terms of [the IGRA] and any other applicable Federal law and with the findings and order of the court," and submit the selected compact to the state and the tribe. Id. §§ 2710(d)(7)(B)(iv), (v). If the state agrees to the selected proposed compact, the proposal will be treated as a tribal-state compact under §§ 2710(d)(3) and 2710(d)(8). Id. § 2710(d)(7)(B)(vi). But if the state does not agree, the mediator must notify "the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures" for Class III gaming activities "which are consistent with the proposed compact selected by the mediator... the provisions of [the IGRA], and the relevant provisions of the laws of the State." Id. § 2710(d)(7)(B)(vii). In summary, the remedial provisions of § 2710(d)(7) are designed to facilitate a tribal-state compact—at each step of the process the tribe and the state are given a new opportunity to negotiate—while authorizing the Secretary to impose gaming on a reluctant state if all else fails. The Department has not promulgated regulations implementing § 2710(d)(7), apart from regulations governing specific circumstances not present here.
This case originally involved two tribes, Pequot and the Mohegan Tribe of Indians of Connecticut ("Mohegan") (together, the "Tribes"), which both operate casinos in Connecticut. Pequot has operated under secretarial procedures since 1991 (the "Pequot Procedures"), having failed to agree on a tribal-state compact with the state. Compl. ¶ 25, ECF No. 1; see also Mashantucket Pequot Tribe, 913 F.2d at 1032-33; 56 Fed. Reg. 24,996 (May 31, 1991). Mohegan, on the other hand, has operated under a tribal-state compact since 1994 (the "Mohegan Compact").
Importantly, the Memoranda of Understanding implementing the Pequot Procedures and the Mohegan Compact mandate that the state receive up to thirty percent of the Tribes' gross operating revenues from certain gaming activities, and they also mandate that if the state permits "any other person" to operate such games, the state is no longer entitled to its royalty payments (the "exclusivity clauses"). See generally Pequot Procedures MOU; Mohegan Compact MOU. By their terms, both the Pequot Procedures and the Mohegan Compact may be amended only by written agreement of the tribe and the state, and the amendments do not become effective until the Secretary approves them and publishes notice of that approval in the Federal Register in accordance with 25 U.S.C. § 2710(d)(3)(B).
In 2015, the Tribes agreed to form a joint venture, MMCT Venture LLC ("MMCT"), to build and operate an off-reservation, commercial casino in East Windsor, Connecticut. Decl. of Uri Clinton ("Clinton Decl.") ¶¶ 17-19, ECF No. 11-2; see also MMCT's Articles of Organization, Mem. Supp. MGM's Mot. Leave Intervene Supp. Defs. ("MGM Intervention Mem.") Ex. A, ECF No. 11-3. In 2017, having incorporated MMCT, the Tribes secured the casino project's conditional approval by Connecticut's General Assembly through the passage of Public Act 17-89.
The Act's legislative history suggests, and MGM asserts, that the Act was "precipitated by the development of the MGM property" in Springfield, Massachusetts; twelve miles from East Windsor. Senate Hearing on Public Act 17-89 Before the Gen. Assembly (Conn. 2017) (statement of Sen. Len Suzio);
While the General Assembly agreed to approve the Tribes' East Windsor casino, the state legislators seemingly recognized that without appropriate safeguards the new casino would violate the exclusivity clauses of the Pequot Procedures and Mohegan Compact Memoranda of Understanding, because MMCT would be a non-tribal entity conducting gaming in Connecticut. Accordingly, Public Act 17-89 provides that its "authorization shall not be effective unless":
2017 Conn. Acts 17-89 § 14(c) (Reg. Sess.).
To satisfy the Act's conditions, the state and the Tribes agreed to amend the Pequot Procedures and Mohegan Compact to exempt MMCT from the exclusivity clauses. Compl. ¶ 27. During the amendment process the Tribes allegedly requested technical assistance from the Office of Indian Gaming, and according to Plaintiffs that Office "repeatedly informed representatives of the Tribes that it intended to approve" the amendments. Id. ¶¶ 28-31. The Tribes and the state approved and executed the amendments according to tribal and state law. Id. ¶ 33.
In late July and early August 2017, the Tribes requested that the Office of Indian Gaming formally approve the amendments, as required by the Pequot Procedures, the Mohegan Compact, and Public Act 17-89. Id. ¶ 32. Rather than approving the amendments, however, the Secretary "return[ed]" them to Plaintiffs "to maintain the status quo," stating:
ECF Nos. 9-8, 9-16;
Having failed to secure the Secretary's approval of the amendments, Plaintiffs
In mid-2018, the Secretary approved Plaintiffs' proposed amendments to the Mohegan Compact and published that approval in the Federal Register. See 83 Fed. Reg. 25,484; First Joint Status Report at 1, ECF No. 41. Because Mohegan has received the relief sought in the complaint, the parties stipulated to the dismissal of Mohegan's claims. See generally Stipulation of Dismissal, ECF No. 40. However, the Secretary has not approved Plaintiffs' proposed amendments to the Pequot Procedures, so Pequot and the state continue to assert their claims against Federal Defendants.
MGM's interest in this action stems from its involvement in the commercial casino market in Connecticut and the surrounding states.
In furtherance of their Connecticut proposal, and in opposition to the Tribes' East Windsor proposal, MGM urged the state to adopt a competitive selection process for the right to operate Connecticut's first commercial casino, rather than unilaterally grant the right to the Tribes through MMCT. Id. ¶ 6. Beginning in 2015, MGM lobbied for this process before the Connecticut General Assembly and in meetings with the Governor and other state leaders. Id. MGM spent more than $3.2 million in support of this legislative effort, id., but despite MGM's lobbying the Connecticut General Assembly opted to pass Public Act 17-89 in 2017, conditionally authorizing MMCT to operate the proposed East Windsor casino as the state's first commercial casino. See 2017 Conn. Acts 17-89 § 14(b) (Reg. Sess.). As discussed above, the East Windsor casino site is a mere twelve miles south of MGM's Springfield casino, and it appears to have been approved by the General Assembly, at least in part, because of its potential to compete with the Springfield casino. Clinton Decl. ¶ 17, 19.
Despite its setback before the General Assembly, in September 2017 MGM announced a proposed $675 million casino project in Bridgeport and it secured the contractual rights to a potential development site. See Clinton Decl. ¶¶ 8-9. MGM has also announced that it will seek legislative approval of the Bridgeport casino during the Connecticut General Assembly's
Before the Court are several ripe motions. Of greatest importance are (1) MGM's ripe motion to intervene as a defendant, by right or by permission (ECF No. 11); and (2) Federal Defendants' motion to dismiss (ECF No. 18).
First, the Court grants Federal Defendants' motion to waive compliance with Local Civil Rule 7(n) because the Court need not consider the administrative record in evaluating the motions before it.
Second, the Court denies Plaintiffs' motion to amend the briefing schedule because Plaintiffs' proposed schedule would not further the Court's efficient resolution of this action. See Pls.' Mot. Amend Briefing Schedule, ECF No. 31. Under the current schedule, Plaintiffs' pending motion for summary judgment is stayed until 30 days after a denial of Federal Defendants' motion to dismiss. See Order Granting Joint Motion Modify Briefing Schedule, ECF No. 17. Plaintiffs now urge the Court to consider their motion for summary judgment simultaneously with Federal Defendants' motion to dismiss because, Plaintiffs claim, the motions raise certain common legal issues. Pls. Mot. Amend Briefing Schedule at 6. This may be true, but Plaintiffs' motion raises additional issues not raised by Federal Defendants' motion, and Plaintiffs have not provided sufficient justification for the Court to deviate from the normal course of APA proceedings, under which courts dispose of motions to dismiss before considering the parties' cross-motions for summary judgment supported by the administrative record.
"The right of intervention conferred by Rule 24 implements the basic jurisprudential assumption that the interest of justice is best served when all parties with a real stake in a controversy are afforded an opportunity to be heard." Hodgson v. United Mine Workers of Am., 473 F.2d 118, 130 (D.C. Cir. 1972). Specifically, Rule 24(a) provides that:
Fed. R. Civ. P. 24(a).
The D.C. Circuit has established that the right to intervene under Rule 24(a) depends on the applicant's ability to satisfy four factors: (1) whether the motion to intervene was timely; (2) whether the applicant claims an interest relating to the property or transaction that is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately represented by existing parties. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (citations omitted); see also Jones v. Prince George's Cty., Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003) (listing the four elements of Rule 24(a) as "timeliness, interest, impairment of interest, and adequacy of representation"). In addition, an applicant seeking to intervene as of right under Rule 24(a) must possess Article III standing to participate in the lawsuit. See Jones, 348 F.3d at 1017; Fund for Animals, 322 F.3d at 731-32.
The APA authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1). "Unlike the provision that instructs courts to `set aside' unlawful agency action, id. § 706(2), the § 706(1) provision `provides relief for a failure to act[.]'" Ctr. for Biological Diversity v. Zinke, 260 F.Supp.3d 11, 20 (D.D.C. 2017) (citing Norton v. S. Utah Wilderness All. ("SUWA"), 542 U.S. 55, 62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004)). However, "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." SUWA, 542 U.S. at 64, 124 S.Ct. 2373. "The `law' that generates a mandatory duty need not be a statute—it can also be an `agency regulation[ ] that ha[s] the force of law[.]'" Ctr. for Biological Diversity, 260 F.Supp.3d at 21 (quoting SUWA, 542 U.S. at 64, 124 S.Ct. 2373); accord SAI v. DHS, 149 F.Supp.3d 99, 119 (D.D.C. 2015). In sum, a plaintiff who asks a court to "compel agency action ... unreasonably delayed" under § 706(1) must pinpoint an agency's failure to take an action that is both discrete and mandatory. See SUWA, 542 U.S. at 64, 124 S.Ct. 2373.
The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to plead all elements of a prima facie case in the complaint. See
Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 at 544, 127 S.Ct. 1955 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
If a complaint containing an APA claim under 5 U.S.C. § 706(1) fails to identify a discrete and mandatory agency duty, the court must grant the defendant's Rule 12(b)(6) motion and dismiss the claim. See, e.g., Anglers Conservation Network v. Pritzker, 70 F.Supp.3d 427, 439-41 (D.D.C. 2014), aff'd, 809 F.3d 664 (D.C. Cir. 2016); see also Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C. Cir. 2011) (explaining that whether a plaintiff has adequately pleaded a predicate agency duty is properly analyzed under Rule 12(b)(6), not Rule 12(b)(1)).
The Court first addresses MGM's motion to intervene. "Courts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections." Wildearth Guardians v. Salazar, 272 F.R.D. 4, 9 (D.D.C. 2010) (quoting Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001)); see also Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981) ("[M]otions to intervene are usually evaluated on the basis of well pleaded matters in the motion, the complaint, and any responses of opponents to intervention."). As discussed above, in determining whether MGM has the right to intervene as a defendant, the Court must first determine whether MGM has Article III standing to participate in the lawsuit. Jones, 348 F.3d at 1017. If MGM has standing, Federal Rule 24(a) dictates that the Court must consider "timeliness, interest, impairment of interest, and adequacy of representation." Id. These factors dictate that MGM may intervene in this action as a matter of right.
Before reaching the Rule 24(a) factors, the Court must consider whether MGM has Article III standing to participate in the lawsuit. "It is axiomatic that Article III requires a showing of injury-in-fact, causation, and redressability."
First, the Court must determine whether MGM will suffer injury-in-fact if Plaintiffs succeed in this action. In Lujan v. Defs. of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court described the injury-in-fact element as requiring a showing of an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. at 560, 112 S.Ct. 2130. "Where, as here, a party seeks to intervene as a defendant to uphold an action taken by the government, the party must establish that it will be `injured in fact by the setting aside of the government's action it seeks to defend, that this injury would have been caused by that invalidation, and the injury would be prevented if the government action is upheld.'" Forest Cty. Potawatomi Cmty. v. United States ("Forest County I"), 317 F.R.D. 6, 11 (D.D.C. 2015); (citing Am. Horse Prot. Ass'n, Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001)). The Court concludes that MGM has met those elements here.
MGM's injury-in-fact argument is two pronged. First, it argues that the amendments to the Pequot Procedures would "allow MMCT to open new commercial casinos without depriving the State of hundreds of millions in annual royalty payments, thus giving the State an incentive to prefer MMCT's proposals (in Bridgeport or elsewhere) over MGM's." MGM Intervention Mem. at 15. Second, it argues that the amendments would "activate MMCT's exclusive right to operate a new commercial casino in East Windsor, thus creating new ... competition just 12 miles from MGM Springfield." Id. Relying heavily on a recent case in this jurisdiction, Forest County I, MGM argues that it has standing "because approval of the amendments would put MGM's casino projects at a disadvantage vis-à-vis the Tribes' competing proposals." Id. at 13. MGM also argues that it has standing under the "competitor standing doctrine" because "an order requiring [the Secretary] to approve the Amendments would expose MGM to added competition." Id. at 15. The Court agrees that MGM would be sufficiently injured by the relief sought by Plaintiffs—the Secretary's approval of Plaintiffs' proposed amendments to the Pequot Procedures—to convey standing to intervene.
MGM persuasively argues that Forest County I should guide this Court's analysis with respect to MGM's ability to compete for casino projects in Connecticut, despite Defendants' vigorous attempts to distinguish the case. Forest County I involved the Forest County Potawatomi Community's ("the "Potawatomi") challenge to the Secretary's decision to disapprove, under the IGRA, an amendment to a tribal-state compact between Potawatomi and the state of Wisconsin. 317 F.R.D. at 8. The amendment included a provision that would have required the state to compensate Potawatomi for lost revenue if any other tribe secured land for gaming purposes within 50 miles of Potawatomi's existing gaming facility in Milwaukee, Wisconsin. Id. at 9. In other words, the provision would have created a "50-mile non-competition zone" around Potawatomi's facility. Id. In disapproving the amendment, the Secretary noted that the amendment would improperly obligate the Menominee Indian Tribe of Wisconsin "to compensate Potawatomi for lost revenue resulting from a proposed Menominee casino in Kenosha, Wisconsin, approximately thirty-three miles from [the] Potawatomi gaming facility." Id. Menominee's proposed
Menominee sought to intervene as a defendant as a matter of right, claiming that if—as Potawatomi sought—the proposed amendment "were to be approved or deemed approved, it would have a direct and harmful impact on the rights and interests of [Menominee] in conducting games in Kenosha." Id. at 10. The Court noted that "the Menominee have attempted for years to develop a gaming facility on land in Kenosha ... [and] Menominee will continue [its] efforts in the future." Id. at 11. However, Potawatomi's proposed non-competition zone would greatly increase the cost of approving Menominee's casino because it would obligate the state to offset Potawatomi's lost revenue. Id. Therefore, Potawatomi's "requested relief, if granted, would, as a practical matter, impede [Menominee's] efforts to obtain a gubernatorial concurrence and would thereby impede their efforts to develop a gaming facility in Kenosha." Id. at 12. The court concluded that this competitive harm was sufficient to convey standing for Menominee to intervene. Id.
For the same reason that Menominee had standing to intervene in Forest County I, MGM has standing to intervene here. Like Potawatomi in Forest County I, which sought to overturn the Secretary's disapproval of a favorable amendment to its tribal-state compact, Plaintiffs seek to overturn the Secretary's failure to approve a compact amendment that would give the Tribes an advantage in the state commercial casino market over private casino developers like MGM. While the Tribes' immediate plan is to build the East Windsor casino, the amendments are worded such that MMCT could build casinos elsewhere in the state without causing the state to forfeit the royalty payments it receives from the tribal casinos' gaming operations; payments the state would forfeit if it approved casinos operated by private developers in Bridgeport or elsewhere in the state. See MGM Intervention Mem. Ex. C, ECF No. 11-5. As MGM notes, it appears that the Tribes plan to put that advantage to use in competing with MGM for approval of a casino in Bridgeport. See Clinton Decl. at ¶¶ 21-22; Brian Hallenbeck, MGM Urges Competitive Bidding for a Bridgeport Casino, The Day (Dec. 7, 2017).
MGM also persuasively argues that the competitor standing doctrine applies here because the reversal of the Secretary's decision would create new competition for MGM's Springfield casino. MGM Intervention Mem. at 15. The competitor-standing doctrine recognizes that an economic actor "suffer[s] [an] injury in fact when agencies lift regulatory restrictions on [its] competitors or otherwise allow increased competition" against it. Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (internal quotation marks omitted) (quoting La. Energy & Power Auth. v. FERC,
While competitor standing cases occasionally involve competition for a government benefit, "competitor standing need not involve a government benefit at all." Air Transp. Ass'n of Am. ("ATA") v. Export-Import Bank of the U.S., 878 F.Supp.2d 42, 57-58 (D.D.C. 2012), rev'd on other grounds, Delta Air Lines, Inc. v. Export-Import Bank of the U.S., 718 F.3d 974 (D.C. Cir. 2013). For instance, the Supreme Court has held that "competitors of financial institutions have standing to challenge agency action relaxing statutory restrictions on the activities of those institutions." Nat'l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998). Similarly, in Mova Pharm. Corp. v. Shalala, this Circuit held that a pioneer drug manufacturer had standing to intervene as a defendant in support of an FDA rule governing how generic drug manufacturers could enter and compete in the pioneer drug's market. Id., 140 F.3d 1060, 1074 (D.C. Cir. 1998). These cases make clear that "[t]he logic of the competitor-standing doctrine ... is that a plaintiff is injured by increased competition." ATA, 878 F.Supp.2d at 62.
Applying these principles here, MGM has competitor standing to defend the Secretary's decision to not approve the proposed amendments to the Pequot Procedures. The parties agree that Public Act 17-89 conditionally authorizes the Tribes to operate the East Windsor casino, and that the only condition remaining to be fulfilled is the Secretary's approval of the proposed amendments to the Pequot Procedures. See Fed. Defs. Opp'n MGM's Mot. Intervene ("Fed. Defs. Intervention Opp'n") at 10-11, ECF No. 22. In other words, if the Secretary is ordered to deem the amendments approved, MGM's Springfield casino will face an "imminent increase in competition" from the Tribes' casino less than twenty miles away; the core injury-in-fact underlying competitor standing. Am. Inst. of Certified Pub. Accountants v. IRS, 804 F.3d 1193, 1197-98 (D.C. Cir. 2015) (holding that an association of certified accountants and accounting firms had competitor standing to challenge an IRS rule allowing "unenrolled preparers" to gain certain credentials and list their practices in the IRS's directory, making it easier for them to compete with the plaintiffs).
The parties' attempts to undercut MGM's injury-in-fact theories are unpersuasive. First, Federal Defendants argue that "MGM has not shown that a casino to be developed by the Tribes in another state would necessarily draw customers away from MGM Springfield." Fed. Defs. Intervention Opp'n at 7. However, as noted above, Public Act 17-89's legislative history suggests that the Act was passed because the Tribes' casino would compete with MGM Springfield. Moreover, as MGM notes, MGM Intervention Mem. at 12 n.12, the Tribes have presented expert testimony to the state's General Assembly
Second, the parties argue that Public Act 17-89—rather than the proposed amendments to the Pequot Procedures— authorizes the East Windsor casino, and therefore that MGM's alleged competitive harm would arise from the passage of Public Act 17-89, not the Secretary's approval of the Pequot Procedures. Mohegan & Pequot Opp'n MGM's Mot. Intervene ("Tribes Intervention Opp'n") at 17-18, ECF No. 23;
Here, however, unlike the inoperative EIPs challenged in Delta Air Lines, Public Act 17-89 has been passed by Connecticut's legislature. MGM does not assert
Third, the parties unsuccessfully attempt to distinguish Forest County I. Federal Defendants assert that MGM's alleged injury from increased competition for legislative approval of its Bridgeport casino is "far less direct" than Menominee's injury in Forest County I because if the Secretary's decision is overturned here, MGM must still seek approval from "a local government and the Connecticut legislature" to enter the commercial casino market. Fed. Defs. Intervention Opp'n at 13-14; Tribes Intervention Opp'n at 14.
The parties also argue that the issue raised by Forest County I and this case—the proper administration of the IGRA—concerned Menominee as a tribe subject to IGRA oversight but does not concern MGM as a private casino operator not regulated by the IGRA. See Tribes Intervention Opp'n at 11-12; Fed. Defs. Intervention Opp'n at 14-15. However, the Forest County I court did not consider that fact when evaluating Menominee's standing, and this Court fails to see its significance to MGM's standing, given that the amendments will impact the regional commercial casino market in which MGM is an active participant.
Second, the Court must determine whether MGM's "injury would have been caused by th[e] invalidation [of the Secretary's decision], and the injury would be prevented if the government action is upheld." Am. Horse Prot. Ass'n, 200 F.R.D. at 156. The Court concludes that MGM meets this standard.
A decision upholding the Secretary's non-approval of proposed amendments to the Pequot Procedures would, as stated in the Secretary's letters to the Tribes, maintain the status quo in the state's commercial casino market. Under the status quo, a commercial casino proposal submitted by either MGM or MMCT and approved by the General Assembly would run afoul of the Tribes' exclusivity clauses. MGM and the Tribes would therefore be on equal competitive footing lobbying the state legislature for its approval. A decision upholding the Secretary's action would also stall the authorization of the Tribes' East Windsor casino, and thus prevent MGM's Springfield casino from facing new competition.
On the other hand, a decision ordering the Secretary to approve the amendments would exempt MMCT from the exclusivity clauses in both the Mohegan Compact and the Pequot Procedures, and therefore allow the state to approve MMCT's Bridgeport casino without losing its royalties from the Tribes' casinos. The decision would also satisfy the final unfulfilled condition of Public Act 17-89, and therefore immediately authorize the Tribes' development of the East Windsor casino to compete with MGM's Springfield casino. The decision would thus cause MGM's competitive injury described above. See La. Energy & Power Auth., 141 F.3d at 404 (holding that the plaintiff's competitive injury from increased price competition due to a FERC order "would be redressed by a favorable decision of this court vacating FERC's order"); Int'l Bhd. of Teamsters v. U.S. Dep't of Transp., 724 F.3d 206, 212 (D.C. Cir. 2013) ("The causation and redressability requirements of Article III standing are easily satisfied because, absent the [challenged regulation], [the plaintiffs] would not be subject to increased competition from Mexico-domiciled trucks operating throughout the United States.").
Refusing to concede this point, both parties rely on New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002), to argue that MGM lacks standing because even if the Court reverses the Secretary's decision, MGM will have another opportunity to avoid injury when it lobbies the Connecticut legislature on behalf of its casino projects and against the Tribes' projects. See Tribes Intervention Opp'n at 18; Fed. Defs. Intervention Opp'n at 6. In New World Radio, the D.C. Circuit held
The parties' reliance on New World Radio misses the mark here. If the Secretary is required to approve the proposed amendments to the Pequot Procedures— as sought by Plaintiffs—MGM will immediately lose its ability to lobby the Connecticut legislature for casino approval on equal footing with the Tribes. See Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996) ("[T]he injury claimed is exposure to competition as a result of the FDA's [rule] ... it is no answer to say that the FDA is merely permitting a competitive product to enter the market and leaving the purchasing decision to the consumer."). And the Connecticut legislature has already approved the Tribes' East Windsor casino, conditioned on the Secretary's decision at issue here. The Secretary's decision, therefore, is not the first step towards increased competition for the state's next commercial casino and MGM's Springfield casino, but rather the only step.
The other cases cited by the parties are no more helpful than New World Radio because they involved far more speculative harm than that faced by MGM here. See Arpaio v. Obama, 797 F.3d 11, 20 (D.C.Cir. 2015) (rejecting the plaintiff sheriff's standing theory that individuals, in incorrect reliance on two challenged statutes, would illegally enter the United States and commit crimes in a particular county, requiring the plaintiff to expend resources); NW Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986) (holding that an airline did not have standing to challenge an agency's certification of an individual pilot, because the plaintiff did not show "that [the pilot was] hired by any other airline" and "[e]ven if he [was] employed elsewhere, the possibility that he w[ould] fly in areas in which [the plaintiff] maintain[ed] routes and actually cause injury to [the plaintiff's] passengers and crew [was] too remote and speculative to constitute injury"). Here, the Court need not make a hypothetical leap; the amendments will immediately harm MGM's bargaining position with the state vis-à-vis the Tribes and will immediately authorize additional competition for MGM's Springfield casino. A court order upholding the non-approval of those amendments will preserve the current parity in the market for commercial casino approval in Connecticut and will preserve the current competitive position of MGM's Springfield casino. See Wash. All. of Tech. Workers v. DHS, 892 F.3d 332, 339-42 (D.C. Cir. 2018) (holding that a union representing domestic Science, Technology, Engineering and Mathematics ("STEM") workers had standing to challenge a DHS immigration-related regulation that would increase competition for domestic STEM jobs).
With respect to redressability, the parties repeat many of the arguments addressed by the Court above. Plaintiffs also contend that "a ruling in this case cannot redress MGM's alleged injuries it thinks will be caused by a State regulatory scheme." Tribes Intervention Opp'n at 21. However, MGM does not claim that the injury will be "caused" by the state's scheme, but rather that the injury will arise from MGM's ability to compete within that scheme. A ruling upholding the Secretary's decision would (1) preserve
Having determined that MGM has standing to intervene, the Court now considers the first Federal Rule 24(a) factor; whether MGM's motion was timely. The timeliness of a motion to intervene must "`be judged in consideration of all the circumstances.'" Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (quoting United States v. AT & T, 642 F.2d 1285, 1295 (D.C. Cir. 1980)). "[T]he requirement of timeliness is aimed primarily at preventing potential intervenors from unduly disrupting litigation, to the unfair detriment of the existing parties." Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014) (internal citations, quotation marks, and alterations omitted). The parties do not argue that MGM's motion to intervene was untimely. Nor could they, because the motion was filed within a month of when Plaintiffs filed the complaint, and before Federal Defendants entered an appearance. Under the circumstances the Court concludes that MGM's intervention would not unduly disrupt the litigation, particularly since MGM has filed provisional briefs as the action has proceeded.
The second and third Rule 24(a) factors require the Court to consider whether MGM has demonstrated "a legally protected interest in the action," which has been impaired. SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998). This "test operates in large part as a `practical guide,' with the aim of disposing of disputes with as many concerned parties as may be compatible with efficiency and due process." 100Reporters LLC v. DOJ, 307 F.R.D. 269, 275 (D.D.C. 2014) (quoting Wildearth Guardians, 272 F.R.D. at 12-13). In determining whether an applicant's interests will be impaired, courts in this jurisdiction look to the practical consequences that the applicant may suffer if intervention is denied. See Nat. Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977); Am. Horse Prot. Ass'n, 200 F.R.D. at 158.
Federal Defendants and MGM acknowledge that where, as here, a prospective intervenor "has constitutional standing, it a fortiori has `an interest relating to the property or transaction which is the subject of the action.'" Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 320 (D.C. Cir. 2015) (quoting Fed. R. Civ. P. 24(a)); see also Safari Club Int'l v. Salazar, 281 F.R.D. 32, 38 (D.D.C. 2012) ("The injury-in-fact and causation connection with the challenged action requirements for standing are closely related to the second and third factors under Rule 24(a)"). For the same reasons MGM has standing to intervene—reversal of the Secretary's decision would immediately diminish MGM's chances of securing state approval for its Bridgeport casino proposal over the Tribes' competing proposal, and would create imminent competition for MGM's Springfield casino—MGM has demonstrated a legally protected interest in the action that may be impaired if intervention is denied.
Finally, Rule 24(a) requires that the Court consider whether MGM's interests would be adequately represented by Federal Defendants. The Supreme Court has explained that the adequate representation
Here, the Court agrees with MGM that "[the Secretary's] duty to serve the public and its trust obligations to the Tribes are distinct from MGM's commercial considerations, which could lead to different positions in litigating this case." MGM Intervention Mem. at 18. Federal Defendants' trust obligation to the Tribes is particularly relevant, because the tribes are MGM's competitors. See Tribes Intervention Opp'n at 5 (discussing the Secretary's "fiduciary responsibility to the Tribes"). "The fact that [MGM] and [Federal Defendants] presently agree on a litigation posture does not mean that [Federal Defendants] necessarily will adequately represent [MGM's] interests throughout this action, as [Federal Defendants] remain[ ] free to change [their] strategy during the course of litigation."
As explained above, because MGM has shown that it has Article III standing and that it meets the requirements of Rule 24(a), it may intervene by right as a defendant.
Having concluded that MGM may intervene as a defendant, the Court will consider MGM's provisional briefs timely filed, including its provisional reply brief in support of Federal Defendants' motion to dismiss (ECF No. 30). The Court will also deny Plaintiffs' motion to exclude MGM's provisionally filed status report (ECF No. 44), because as an intervenor-defendant MGM is entitled to take a position on the litigation's direction.
The Court next addresses Federal Defendants' motion to dismiss. As noted, Plaintiffs assert that the Secretary violated the APA by failing to take nondiscretionary action; approving the proposed amendments to the Pequot Procedures in accordance with the IGRA's tribal-compact approval provisions. See generally Compl. Federal Defendants argue, however, that under the IGRA and its implementing regulations, the Secretary's approval of secretarial procedures and procedure amendments is not governed by the same timing requirements governing the Secretary's approval of tribal-state compacts and compact amendments. Under this interpretation of the IGRA, the "mandatory timeframes" that Plaintiffs claim dictated the Secretary's actions with respect to amendments to the Mohegan Compact do not apply to amendments to the Pequot Procedures. Fed. Defs. Mot. Partial Dismissal ("Fed. Defs. Mem.") at 6, ECF No. 18. According to Federal Defendants, "Plaintiffs have therefore failed to establish this Court's subject matter jurisdiction over the case and failed to state a claim for which relief can be granted with regard to [Pequot's] proposed procedures amendment," because Plaintiffs have not identified a nondiscretionary action that the Secretary unlawfully failed to take. Id.
Plaintiffs, unsurprisingly, read the IGRA very differently. They claim Defendants' "hyper-formalistic reading of IGRA and the Part 293 Regulations ... flies in the face of explicit and implicit congressional intent, relevant canons of statutory construction, the past conduct of all parties, including the Defendants themselves, prior legal opinions from the Defendants' own Solicitor, the terms of the Pequot Compact itself, and common sense." Pls. Opp'n Fed. Defs. Mem. ("Pls. Opp'n") at 10, ECF No. 27.
The Court will first consider the parties' interpretations of the IGRA—and the deference to which the Department's interpretation is entitled—and then determine the proper interpretation's impact on the Court's subject matter jurisdiction and the sufficiency of Plaintiffs' complaint. The Court concludes that Federal Defendants' interpretation of the IGRA is supported by the relevant provisions' plain meaning, and therefore that the Secretary was not required to act in the manner asserted by Plaintiffs. This conclusion dictates that the Court must dismiss this action for failure to state a claim upon which relief may be granted.
Plaintiffs, Federal Defendants, and MGM all contend that the IGRA dictates a particular result here, but they dispute what that result should be. Federal Defendants and MGM claim that by its plain terms, the IGRA imposes strict deadlines on the Secretary's consideration of tribal-state compacts but not on the Secretary's imposition of procedures and approval of amendments to those procedures. See generally Fed. Defs. Mem; MGM Mem. Plaintiffs claim that the IGRA's purpose, statutory canons, and Federal Defendants' own positions dictate that the same deadlines— those imposed under 25 U.S.C. § 2710(d)(8)—should apply to both tribal-state compacts and secretarial procedures, and amendments thereto. See generally Pls. Opp'n. The Court concludes that while it need not defer to the Department's IGRA interpretation, it agrees with Federal Defendants and MGM that the IGRA unambiguously does not apply the same approval timing requirements to secretarial procedures as it does to tribal-state compacts.
When analyzing an agency's interpretation of a statute—here, the Department's interpretation of the IGRA—courts must apply the two-step framework announced in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under this framework, the Court begins by asking "whether Congress has directly spoken to the precise question at issue," for if it has, the Court must give effect to its unambiguously expressed intent. Id. at 842-43, 104 S.Ct. 2778. If the Court determines that the statute is ambiguous, it must evaluate whether the agency's interpretation is reasonable. Id. at 842-43, 104 S.Ct. 2778. This approach "is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citing Chevron, 467 U.S. at 844, 104 S.Ct. 2778).
Plaintiffs argue that if the Court reaches step two of the Chevron framework, Federal Defendants' interpretation should be afforded no deference.
"[N]ot every kind of agency interpretation, even of a statute the agency administers, warrants Chevron deference." Miller v. Clinton, 687 F.3d 1332, 1340 (D.C. Cir. 2012). In United States v. Mead Corp., the Supreme Court held that Chevron deference applies only when: (1) "it appears that Congress delegated authority to the agency generally to make rules carrying the force of law" and (2) "the agency interpretation claiming deference was promulgated in the exercise of that authority." Id., 533 U.S. 218, 226-27, 121 S.Ct. 2164 (2001). Whether an agency's reasonable statutory interpretation satisfies Mead's second requirement depends on the form and context of that interpretation. See Miller, 687 F.3d at 1341. The D.C. Circuit does not, for example, defer to litigation positions contained in agency briefs. Id. at 1340; Village of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011). Nor does it defer to unexplained interpretations. Miller, 687 F.3d at 1341-42.
While the Department may have authority to make rules under the IGRA, its interpretation here was not promulgated in the exercise of that authority. Federal Defendants have not identified a single piece of written agency guidance explaining why the Department believes the approval procedures governing tribal-state compacts are inapplicable to secretarial procedures, much less guidance subject to notice and comment. As Plaintiffs note, Pls. Sur-Reply at 2, even the Department's letters "return[ing]" the amendments at issue did not explain the Department's reasoning. See ECF Nos. 9-8 & 9-16. Rather, Federal Defendants ask the Court to rely upon their briefs in this case and the Department's practice of imposing secretarial procedures after the deadlines established for approving tribal-state compacts. Fed. Defs. Reply Br. ("Fed. Defs. Reply") at 12-13, ECF No. 32. The D.C. Circuit has consistently declined to apply Chevron deference to these types of agency interpretations, and the Court declines to do so here. See Miller, 687 F.3d at 1340-41.
Because Chevron is inapplicable, the Court must "proceed to determine the meaning of the [IGRA] the old-fashioned way: `[it] must decide for [itself] the best reading.'" Miller, 687 F.3d at 1342 (quoting Landmark Legal Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001)). The Court will address the plain meaning of the IGRA provisions at issue here, when read together, and then discuss Plaintiffs' arguments for why the plain meaning should not control. Federal Defendants are in luck, for even without deference, the
The Court begins, as it must, with the text of the IGRA governing the approval of tribal-state compacts and secretarial procedures, and amendments thereto. If the text is plain, the Court must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010). Here, the text dictates Federal Defendants' interpretation.
Federal Defendants and MGM correctly assert that by the IGRA's text, the timing provisions underlying Plaintiffs' complaint fall under the IGRA subsection governing the approval of tribal-state compacts, but not the IGRA subsection governing the imposition of secretarial procedures. The key provision states that "[i]f the Secretary does not approve or disapprove a compact described in subparagraph (A) before the date that is 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary...." 25 U.S.C. § 2710(d)(8)(C) (emphasis added). The "compact described in subparagraph (A)" is a "Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe." Id. § 2710(d)(8)(A). The provision mandating the 45-day approval period makes no mention of secretarial procedures —such as the Pequot Procedures— imposed under § 2710(d)(7).
The Department's regulations follow the same structure. They state that "[t]he Secretary must approve or disapprove a compact or amendment within 45 calendar days after receiving the compact or amendment." 25 C.F.R. § 293.10(a). The "compact [and] amendment" under this provision are defined as an "intergovernmental agreement executed between Tribal and State governments under the [the IGRA]," and any amendment to that agreement. 25 C.F.R. §§ 293.2; 293.3; 293.10. As discussed in greater detail below, secretarial procedures fall outside this definition because they are "prescribed" unilaterally by the Secretary as a last resort when a state and a tribe fail to reach an agreement. 25 U.S.C. § 2710(d)(7). And again, the Department's regulations are silent with respect to approval of, and amendments to, secretarial procedures.
"[W]here Congress includes particular language in one section of a statute but omits it in another section of
As the Supreme Court has frequently stated:
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (internal quotation marks omitted) (citing, inter alia, United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)). According to the language of the IGRA and its implementing regulations, secretarial procedures—governed by 25 U.S.C. § 2710(d)(7) and unilaterally imposed by the Secretary—are not subject to the procedural requirements applicable to tribal-state compacts governed by § 2710(d)(8) and executed by states and tribes collaboratively. Accordingly, the Secretary was under no obligation to approve or disapprove the proposed amendments to the Pequot Procedures within 45 days of their submission, nor was the Secretary required to consider the amendments approved by law after 45 days and publish that approval in the Federal Register.
Plaintiffs do not dispute Federal Defendants' textual reading of the IGRA. Rather, they contend that "[a] look at the statutory scheme of [the] IGRA as a whole, as well as both the explicit and implicit congressional intent underlying the act, shows that Congress never intended to deprive compacts arrived at through the mediation process of the benefit of the circumscribed review and approval process under § 2710(d)(8)." Pls. Opp'n at 12. Plaintiffs accordingly offer several arguments for why the plain meaning set forth above is incorrect. Plaintiffs are correct that oftentimes the "meaning—or ambiguity —of certain words or phrases may only become evident when placed in context," and that when deciding whether the language is plain, the Court must read the words "with a view to their place in the overall statutory scheme." Brown & Williamson, 529 U.S. at 132-133, 120 S.Ct. 1291 (internal quotation marks omitted); see also Pls. Opp'n at 12. However, Plaintiffs' arguments do not overcome the IGRA's plain meaning here.
First, Plaintiffs argue that Federal Defendants' position "plainly would frustrate
However, the Opinion did not concern the IGRA's approval provisions at issue here. Nor did it conclude that secretarial procedures and tribal-state compacts should be treated consistently in every manner under the IGRA. Rather, it concluded that, for purposes of a specific federal statutory provision exempting tribal gaming from state law, adhering to the provision's plain meaning would:
Opinion at 6.
Second, Plaintiffs argue that the Court should not adopt the plain meaning of §§ 2710(d)(7) and 2710(d)(8) because doing so would render other IGRA provisions absurd and meaningless. Pls. Opp'n at 16. Courts have a well-established obligation to avoid adopting statutory constructions with absurd results. See Pub. Citizen v. DOJ, 491 U.S. 440, 454-55, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). This principle dictates that the Court cannot give effect to a statute's literal meaning when doing so would "render[ the] statute
In appealing to the absurdity principle, Plaintiffs appear to have expanded Federal Defendants' narrow distinction between tribal-state compacts and secretarial procedures—restricted solely to the Secretary's requirements for approving their amendments—to a broad assertion that tribal-state compacts and procedures should never be treated the same. For instance, as discussed above, Plaintiffs note that "if compacts selected by a mediator and approved by the Secretary under § 2710(d)(7)(B)(vii) are not treated as compacts under [the] IGRA, then [18 U.S.C.] § 1166 would require tribal gaming conducted under such compacts to be fully compliant with all state law applicable to non-Indian gaming." Pls. Opp'n at 16. Along the same lines, Plaintiffs state that if procedures were "legally distinct from and lesser than" tribal-state compacts, gaming conducted pursuant to procedures would be illegal under the Johnson Act, 15 U.S.C. § 1175, which forbids the possession or use of "any gambling device" on tribal land except gaming conducted under "a Tribal-State compact ...." 25 U.S.C. § 2710(d)(6) (emphasis added); see Pls. Opp'n at 17. Finally, Plaintiffs posit that if secretarial procedures are not considered to be tribal-state compacts, gaming pursuant to procedures would not be legal under the IGRA itself, which states that gaming on tribal lands is lawful if "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ...." § 2710(d)(1) (emphasis added); see also Pls. Opp'n at 18.
The Court agrees that a general rule dictating that secretarial procedures are inferior to tribal-state compacts would render much of the IGRA and its relationships to other statutes absurd. However, Federal Defendants do not proffer such an interpretation here. Rather, Federal Defendants simply contend that the provisions addressing the approval or disapproval of tribal-state compacts contained in § 2710(d)(8) do not apply to secretarial procedures imposed under § 2710(d)(7). A conclusion that procedures and tribal-state compacts are subject to different approval processes does not "render[ ] [the IGRA] nonsensical or superfluous," Cook, 594 F.3d at 891, because it does not dictate that approved procedures and tribal-state compacts be treated differently under other provisions of the IGRA.
Unfortunately, many statutes contain "more than a few examples of inartful drafting," King v. Burwell, ___ U.S. ___, 135 S.Ct. 2480, 2492, 192 L.Ed.2d 483
Federal Defendants' interpretation is further borne out by the IGRA's legislative history. See Fed. Defs. Mem. at 7. In 2004, Senators Ben Campbell and Daniel Inouye of the Committee on Indian Affairs proposed an amendment to 25 U.S.C. § 2710(d)(7)(B)(vii) that would have required the Secretary to impose procedures within 180 days of a mediator's submission. See S. Rep. No. 108-380, at 14 (2004).
Third, Plaintiffs argue that "[g]iven the strict statutory and regulatory limitations on the Defendants' discretion with respect to the review and approval of compacts and amendments, there is no reason to assume that Congress wanted to vest them with unfettered discretion to delay, reject, or simply ignore [procedures]." Pls. Opp'n at 20. However, Federal Defendants and MGM persuasively offer practical considerations for why Congress would want to do just that. The Secretary's divergent responsibilities with respect to tribal-state compacts and secretarial procedures may justify divergent approval processes.
As explained above, § 2710(d)(7)'s remedial provisions mandate several steps designed to facilitate agreement between a state and a tribe on the terms of a tribal-state compact. However, if the state ultimately refuses to or fails to reach an agreement with the tribe, the Secretary "in consultation with the Indian tribe ...
Therefore, when establishing secretarial procedures, the Secretary's responsibilities go beyond merely approving terms hashed out by a state and a tribe. Plaintiffs correctly note that the timing provisions in § 2710(d)(8) "ensure that tribes and states are not stymied by bureaucratic delays ... after long and arduous compact negotiations" resulting in an agreement, Pls. Opp'n at 20, but the Secretary imposes procedures when there has been no such agreement. It would have been reasonable for Congress to impose strict deadlines on the Secretary's review of a completed tribal-state compact, while providing the Secretary with more time and discretion to draft procedures consistent with state law, the IGRA, existing proposals, and the Secretary's obligations to the tribes. Cf. Pub. Citizen, 533 F.3d at 817 (adopting a reasonable explanation of a provision's purpose despite not being able to "know for certain what purpose Congress had in mind"). Plaintiffs have identified no legislative history or other evidence to the contrary, and to the "extent that [Plaintiffs'] argument [is] about public policy, it is addressed to the wrong audience." Id. at 820.
In a final attempt to overcome the IGRA's plain meaning, Plaintiffs appeal to the Indian canon of construction. This canon requires that statutes must be "construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444-45 (D.C. Cir. 1988) (citation omitted). According to Plaintiffs, this canon dictates that the IGRA and its implementing regulations "must be interpreted to the benefit of the Pequot Tribe, with any ambiguities resolved in its favor." Pls. Opp'n at 25. "This canon, however, has force only where a statute is ambiguous," and as discussed above the IGRA's plain meaning is not ambiguous with respect to the approval requirements for tribal-state compacts, secretarial procedures, and their amendments. El Paso Nat. Gas Co. v. United States, 632 F.3d 1272, 1278 (D.C. Cir. 2011) (citation omitted). Additionally, the canon "does not apply for the benefit of one tribe if its application would adversely affect the interests of another tribe," and it is not clear that applying § 2710(d)(8)'s tribal-state compact approval deadlines to secretarial procedures would benefit tribes generally. Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 75 F.Supp.3d 387, 396 (D.D.C. 2014) (citing Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir. 1996)), aff'd, 830 F.3d 552 (D.C. Cir. 2016). Applying those tribal-state compact provisions to procedures may dictate a favorable result for Pequot here, but providing the Secretary with more than 45 days to consider state law and tribes' wishes when imposing and amending secretarial procedures may facilitate more collaboration between the Secretary and tribes and is likely to result in more well-considered procedures, while rushing the process may work to tribes' detriment. See Forest Cty. Potawatomi Cmty. v. United States ("Forest County II"), No. 15-0105, 330 F.Supp.3d 269, 280, 2018 WL 4308570, at *6 (D.D.C. Sept. 10, 2018) ("The Court declines to apply the Indian law canon where the interests of all tribes are not aligned.") (citation omitted).
Failing to convince the Court that the Pequot Procedures are subject to the same procedural requirements as the Mohegan Compact, Plaintiffs argue that Pequot and the state have a de-facto tribal-state compact, governed by 25 U.S.C. § 2710(d)(8)(A)'s approval requirements, based on their compliance with the Pequot Procedures. The IGRA's text and the Department's regulations belie this argument, as does the state's own previous positions.
Plaintiffs' argument relies on the Department's regulations and the operation of the Pequot Procedures. Plaintiffs note that the Department's regulations define a compact as "an intergovernmental agreement executed between Tribal and State governments under [the IGRA] that establishes between the parties the terms and conditions for the operation and regulation of the tribe's Class III gaming activities." 25 C.F.R. § 293.2. They argue that the Pequot Procedures fall within that definition because they establish terms and conditions for the operation of Pequot's gaming in Connecticut. Pls. Opp'n at 22-23. They further argue that the state and Pequot "executed" the implied compact by fulfilling their responsibilities established in the procedures over "an extended period of time." Id. at 23 (citing Black's Law Dictionary (10th ed. 2014) (providing that the primary definition of the verb "execute" is "[t]o perform or complete a contract or duty" (internal punctuation omitted)). However, while the Pequot Procedures satisfy one compact criterium identified in § 293.2—they establish terms and conditions for gaming— Plaintiffs fail to show that the procedures satisfy the other compact criteria—they represent an "intergovernmental agreement executed between" Pequot and the state under the IGRA.
First, Plaintiffs fail to show that the Pequot Procedures constitute an intergovernmental agreement between Pequot and the state. In fact, procedures are imposed under 25 U.S.C. § 2710(d)(7) specifically when a state and a tribe cannot agree on terms and conditions. Id. § 2710(d)(7)(B)(vii) (directing the Secretary to impose procedures "[i]f the State does not consent" to a proposed compact); see also Pls. Opp'n at 12-13 (stating that § 2710(d)(7) allows tribes to enjoy the benefits of a compact "without ... state cooperation"). The fact that the state and Pequot have now agreed to amend the procedures does not remedy their previous lack of agreement, which rendered the Pequot Procedures necessary in the first place.
Second, Plaintiffs fail to show that the Pequot Procedures were "executed" as a tribal-state compact under the IGRA. Plaintiffs' argument that a tribal-state compact may be executed through performance is contradicted by the IGRA and the Department's regulations. A state and a tribe cannot perform under a tribal-state compact until that compact takes effect. A compact takes effect "only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register." 25 U.S.C. § 2710(d)(3)(B) (emphasis added); 25 C.F.R. § 293.15(a). And as MGM notes, MGM Reply at 16-17, the Secretary will not consider a proposed tribal-state compact for approval until it has been "executed." Id. § 293.8(a). It is therefore nonsensical to suggest that a tribal-state compact may be executed through performance, when that compact must be executed before performance is possible. The IGRA's legislative history referenced by MGM supports this point.
Moreover, the state—in Attorney General opinions and federal litigation positions —has previously explicitly argued that the Pequot Procedures are not a tribal-state compact. See Defs.' Reply Pls. Mot. Dismiss, Tassone v. Foxwoods Resort Casino, No. 11-1718, 2012 WL 12548954 (D. Conn. filed Mar. 23, 2012); 2008 Att'y Gen. Op. No. 2008-005, 2008 WL 714081, at *3 n.5 (Conn. A.G. Mar. 13, 2008) (noting that "[t]he document that governs the Mashantucket Pequot Tribe's gaming operations is not technically a `compact' because it was imposed on the State by the Secretary of the Interior under the IGRA") (citations omitted). The Court agrees with this position.
Plaintiffs also claim that "Defendants' own conduct" demonstrates the existence of a tribal-state compact. Pls. Opp'n at 23. First, Plaintiffs note that the Department published the Pequot Procedures in the Federal Register in the same fashion that the Department publishes tribal-state compacts. Id. at 23. Second, Plaintiffs note that the Department cited the 25 U.S.C. § 2710(d)(8) procedures "in the course of providing technical assistance to the Tribes as they negotiated the subject amendments with the State." Pls. Opp'n at 24. Third, Plaintiffs note that the Pequot Procedures can be amended only with the Secretary's approval and publication in accordance with § 2710(d)(3)(B).
As the D.C. Circuit has noted, an agency may adopt "additional procedures" not required by statute, but the Court is "without authority to impose such procedural requirements." Nat. Res. Def. Council, Inc. v. Nuclear Regulatory Comm'n, 216 F.3d 1180, 1190 (D.C. Cir. 2000). That the Secretary imposed requirements in the Pequot Procedures not required by the IGRA does not mean that the Court may hold the Department to other additional requirements. Moreover, it is unclear why § 2710(d)(3)(B) is, as Plaintiffs claim, "inextricably related" to the approval provisions contained in § 2710(d)(8), when § 2710(d)(3)(B) does not reference the approval provisions.
Finally, Plaintiffs argue that the doctrine of judicial estoppel should bar Federal Defendants' arguments, regardless of their merits. Judicial estoppel provides that a party that successfully asserts a position in litigation "may not thereafter, simply because his interests have changed, assume a contrary position." New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotation marks and citation omitted); 18 Moore's Federal Practice § 134.30, at 134-62 (3d ed. 2000) ("The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.").
Rogler v. Gallin, 402 Fed.Appx. 530, 530 (D.C. Cir. 2010) (quoting New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808) (internal quotation marks omitted). Because the "purpose [of judicial estoppel] is to protect the integrity of the judicial process ... [and] to prevent improper use of judicial machinery ... [it may be] invoked by a court at its discretion." New Hampshire, 532 U.S. at 749-50, 121 S.Ct. 1808 (quotation marks and citations omitted).
Plaintiffs' judicial estoppel claim relies on Federal Defendants' briefing in Stand Up for Cal.! v. U.S. Dep't of the Interior, No. 16-2681, 328 F.Supp.3d 1051, 2018 WL 3473975 (E.D. Cal. July 18, 2018). In that case, the plaintiffs claimed that certain secretarial procedures governing a tribe's gaming in California violated the Johnson Act because the IGRA only exempts from that Act "a Tribal-State compact." 25 U.S.C. § 2710(d)(6) (emphasis added). The plaintiffs argued that secretarial
Plaintiffs argue that Federal Defendants' "position here is wholly irreconcilable with the one that they just took and the Court adopted in the Stand Up case," and that Federal Defendants should be estopped from taking both positions. Pls. Suppl. Br. Supp. Mot. Summ. J. ("Pls. Suppl. Br.") at 8, ECF No. 54. Federal Defendants respond, among other arguments, that they have not taken "clearly inconsistent" positions, and that Plaintiffs have mischaracterized their position in this case. Fed. Defs. Resp. Pls. Suppl. Br. at 5-8, ECF No. 55. Having reviewed the Stand Up briefing, the Court agrees with Federal Defendants and declines to apply judicial estoppel.
While Federal Defendants have chosen different sides in this action and Stand Up—here, opposed to the state (Connecticut) and the Tribes (Pequot and Mohegan), and there, in support of the state (California) and the tribe (the North Fork Rancheria of Mono Indians)—Federal Defendants' positions are not clearly inconsistent. As noted above, Plaintiffs attempt to frame Federal Defendants' argument broadly, as asserting that secretarial procedures are "legally distinct from and lesser than" a tribal-state compact, Pls. Opp'n at 17, or that "Secretarial Procedures are not a full and complete substitute for a tribal-state compact" with respect to the IGRA generally, Pls. Suppl. Br. at 7-8. Such an argument would seem to be inconsistent with the position taken in Stand Up, in which Federal Defendants argued that secretarial procedures are "designed to operate as a complete substitute to" a tribal-state compact. Stand Up, 328 F.Supp.3d at 1061, 2018 WL 3473975, at *6.
Federal Defendants' argument before this Court, however, is narrower. They simply assert that by their plain meaning, the IGRA's timing provisions governing the Secretary's approval of a tribal-state compact and its amendments do not apply to the Secretary's imposition of secretarial procedures and their amendments. Fed. Defs. Mem. at 6-7. Federal Defendants' argument that tribal-state compacts and secretarial procedures are approved differently does not clearly contradict their argument that the two forms are functionally equivalent, once approved, in authorizing gaming on tribal land.
The D.C. Circuit has held in the context of judicial estoppel that "[d]oubts about inconsistency often should be resolved by assuming there is no disabling inconsistency, so that the second matter may be resolved on the merits." Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir. 2010) (quoting 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4477, at 594 (2d ed. 2002)). Plaintiffs have demonstrated at most that Federal Defendants have taken strategic positions that are in tension, but not that their arguments made in Stand Up are clearly inconsistent with their arguments made here. Accordingly, the Court elects to resolve Federal Defendants' motion on its merits.
In sum, 25 U.S.C. §§ 2710(d)(7) and 2710(d)(8), read together, dictate that the
Because the Court concludes that the IGRA does not require the Secretary to take the steps asserted by Plaintiffs, the Court must consider Defendants' argument that Plaintiffs have failed to state claims upon which relief may be granted. As noted above, "a claim under [5 U.S.C.] § 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." SUWA, 542 U.S. at 64, 124 S.Ct. 2373. Thus, a plaintiff must allege that the defendant had a duty to perform a nondiscretionary act. See id. If no such duty exists, the Plaintiff has "not state[d] a claim upon which relief can be granted." Ctr. for Biological Diversity, 260 F.Supp.3d at 24 (citing SUWA, 542 U.S. at 63-64, 124 S.Ct. 2373 (noting that courts cannot order actions pursuant to § 706(1) that are not otherwise compelled by law)).
Applying these principles, Plaintiffs' allegations regarding their proposed amendments to the Pequot Procedures fail to state a claim because they do not identify a nondiscretionary duty imposed by the IGRA or its implementing regulations. In Count I, Plaintiffs claim that because the Secretary failed to either approve or disapprove the proposed amendments to the Pequot Procedures within 45 days of their submission, "pursuant to 25 U.S.C. § 2710(d)(8)(C) and 25 C.F.R. § 293.13, the ... amendments are deemed approved" and the Secretary's failure to deem them approved is arbitrary and capricious in violation of the APA, 5 U.S.C. § 706(2). See Compl. ¶¶ 45-47. In Count II, Plaintiffs claim that because the "amendments were deemed approved by operation of law ... Defendants had a clear mandatory duty to Plaintiffs to publish notices of approval ... within 90 days after receipt of the requests for approval" pursuant to 25 U.S.C. § 2710(d)(8)(D) and 25 C.F.R. § 293.15(b), and the Secretary's failure to publish the notices is agency action unlawfully withheld in violation of the APA, 5 U.S.C. § 706(1). Compl. ¶¶ 55-57. However, as discussed above, the IGRA statutory provisions and regulations cited by Plaintiffs do not require the Secretary to act on the proposed amendments to the Pequot Procedures within 45 days of their submission.
While Count I contends that the Secretary acted "not in accordance with law" in violation of APA § 706(2), the Count's core allegation is that the Secretary unlawfully withheld action—deeming the proposed amendments to the Pequot Procedures approved—thus the claim is more properly framed as a violation of § 706(1). Regardless, Plaintiffs "would have fared no better if they had characterized the agency's alleged [failure to deem the proposed amendments to the Pequot
For the forgoing reasons, the Court hereby
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
