UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) AMADOR COUNTY, CALIFORNIA ) ) Plaintiff, ) ) v. ) Civil Action No. 05-658 (RWR) ) KENNETH L. SALAZAR, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Amador County, California brought this action

against the Secretary of the Department of the Interior1 (“DOI”),

the Assistant Secretary for Indian Affairs, and the DOI

(collectively “defendants”) alleging that the Secretary’s

approval of a gaming compact amendment entered into between the

Buena Vista Rancheria of the Me-Wuk Indians and the state of

California was an arbitrary and capricious decision in violation

of the Administrative Procedure Act (“APA”) because the amendment

violated the Indian Gaming Regulatory Act (“IGRA”). The

defendants moved to dismiss the complaint, arguing in part that

the plaintiff had failed to state a claim for relief because,

under the IGRA, the Secretary’s approval of the amended compact

is valid only to the extent that it is lawful. The defendants’

motion was granted, and Amador County now moves for

1 Kenneth L. Salazar is substituted as a defendant under Federal Rule of Civil Procedure 25(d). -2-

reconsideration of the dismissal under Federal Rule of Civil

Procedure 59(e). Because Amador County has shown neither that

the decision granting the defendants’ motion to dismiss was clear

error nor that denying its motion for consideration will result

in manifest injustice, the motion will be denied.

BACKGROUND

The background of this case is set forth in detail in Amador

County, Cal. v. Kempthorne,

(D.D.C.

2009) (“January 8th opinion”). In brief, under the IGRA, the

Secretary is authorized to approve or disapprove any Tribal-State

compact entered into between an Indian tribe and a State

governing gaming on tribal land.

(d)(8)(A),

(B). If the Secretary does not approve or disapprove a compact

“before the date that is 45 days after the date on which the

compact is submitted to the Secretary for approval, the compact

shall be considered to have been approved by the Secretary, but

only to the extent the compact is consistent with the provisions

of [IGRA].”

(d)(8)(C).

Here, the Secretary approved by inaction the amended

compact. Amador County brought this action against the

defendants alleging that the Secretary’s approval by inaction was

an arbitrary and capricious decision in violation of the APA

because the amendment authorized gaming in violation of the IGRA.

The defendants moved to dismiss the complaint, alleging that -3-

Amador County lacked standing to challenge the Secretary’s

approval of the compact amendment; that Amador County failed to

state a claim entitling it to relief because the Secretary’s

choice of whether to approve, disapprove, or take no action on a

gaming compact is committed to the Secretary’s discretion; and

that the Secretary’s approval by inaction of a gaming compact is

valid only to the extent that the compact is lawful. The January

8th opinion granting the defendants’ motion found that while

Amador County had standing to bring its claim, it nonetheless

failed to state a claim for relief because the Secretary’s

decision to take no action on the amended compact is unreviewable

under the APA and the Secretary’s approval under § 2710(d)(8)(C)

was lawful by the express terms of the IGRA. Amador County moves

under Rule 59(e) for reconsideration, arguing that the IGRA does

not preclude judicial review of the Secretary’s choice to take no

action on the amended compact, and that unless its motion is

granted manifest injustice will occur because it has no other

recourse to challenge the allegedly unlawful amended compact.

DISCUSSION

“‘While the court has considerable discretion in ruling on a

Rule 59(e) motion, the reconsideration and amendment of a

previous order is an unusual measure.’” City of Moundridge v.

Exxon Mobil Corp.,

(D.D.C. 2007) (quoting

El-Shifa Pharm. Indus. Co. v. United States, Civil Action No. 01- -4-

731 (RWR),

, at *1 (D.D.C. Mar. 28, 2007) (internal

citations omitted)). “A motion to alter the judgment need not be

granted unless there is an intervening change of controlling law,

new evidence becomes available, or there is a need to correct a

clear error or prevent manifest injustice.”

at 12 (citing

Messina v. Krakower,

(D.C. Cir. 2006)).

Amador County first argues that the Secretary’s decision to

approve a gaming compact by inaction is a final agency action

subject to judicial review under the APA. While final agency

action “marks the consummation of the agency’s decisionmaking

process . . . [and] is also an action from which legal

consequences will flow,” Bennett v. Spear,

(1997) (internal citation and quotation marks omitted), agency

action is “committed to agency discretion when there is a lack of

judicially manageable standards to guide meaningful review.”

Menkes v. Dep’t of Homeland Sec.,

(D.C. Cir.

2007) (citing Steenholdt v. F.A.A.,

(D.C. Cir.

2003)). Amador County argues that “[b]oth IGRA itself and its

legislative history, as well as Interior’s interpretation of the

law, provide sufficient statutory guidelines by which to judge

the Secretary’s action.” (Pl.’s Mem. of P. & A. in Supp. of

Pl.’s Rule 59(e) Mot. to Alter or Amend Judgment at 12 (emphasis

added).) It states that “because Congress has provided standards

by which to determine if the Secretary’s disapproval is -5-

lawful[,]” there must be a “clear legal standard by which to

guide judicial review to determine which portions of the Amended

Compact are lawful” and whether a Secretary’s approval by

inaction is unlawful. (Id. at 15-16.) This argument is not

persuasive. That the IGRA might provide standards governing

judicial review of the Secretary’s affirmative approval or

disapproval of a gaming compact does not support a conclusion

that the statute provides standards for guiding judicial review

of the Secretary’s approval by inaction of a gaming compact.

Moreover, in contrast to circumstances where the Secretary has

affirmatively approved or disapproved a compact under

§ 2710(d)(8)(A) or (B), there is no administrative record

embodying the Secretary’s decision when the Secretary takes no

action and a compact is approved only by operation of the

statute. Not only is a court left without manageable standards

to guide a meaningful review, it is also left without a record

upon which to conduct a review.

In support of its argument, Amador County relies upon Lac Du

Flambeau Band of Lake Superior Chippewa Indians v. Norton,

(7th Cir. 2005). In Lac Du Flambeau, an Indian tribe

challenged the Secretary’s approval by inaction of a gaming

compact submitted to her by the Ho-Chunk Nation and the state of

Wisconsin, alleging that “the Secretary violated her fiduciary

duty to treat all Indian tribes equally by allowing the compact -6-

to take effect.”

. The defendants moved to

dismiss the suit, arguing that the tribe lacked standing and that

the Secretary’s inaction was not reviewable under the APA.

. The court analyzed the question of whether the tribe had

standing to bring its claim, and concluded that the Secretary’s

inaction injured the plaintiff because it “was the functional

equivalent of an affirmative approval” and “allowed the parties

to the compact to behave as if it were lawful in all respects.”

. The court, however, never reached the question of

whether the Secretary’s inaction constitutes final agency action

subject to judicial review because the tribe forfeited any such

argument by failing to respond to the Secretary’s APA argument.

. Lac Du Flambeau, then, does not support Amador

County’s argument that the Secretary’s inaction is reviewable

under the APA, and Amador County presents no authority to refute

the finding that the IGRA provides no standards by which to judge

whether the Secretary’s inaction violates the APA.

Amador County also argues that a Secretary’s approval by

inaction of an illegal compact is unlawful and that, save for

judicial review, Amador County has no recourse to challenge an

allegedly unlawful provision of a gaming compact. It therefore

urges that reconsideration is necessary to prevent manifest

injustice. These arguments, likewise, are not persuasive.

First, as was stated in the January 8th opinion, the limited -7-

approval by inaction under § 2710(d)(8)(C) is inherently lawful

by the express terms of the statute. Because § 2710(d)(8)(C)

deems a compact approved “only to the extent the compact is

consistent with the provisions of [IGRA,]” the Secretary’s deemed

approval cannot be unlawful under IGRA. Further, the National

Indian Gaming Commission has established other remedies for

challenging allegedly unlawful gaming activities. See

(a)(1). For example, “the Chairman shall have authority to

levy and collect appropriate civil fines, not to exceed $25,000

per violation, against the tribal operator of an Indian game

. . . engaged in gaming for any violation of any provision of

this chapter[.]”

(a)(1). Moreover, the

Commission may order temporary or permanent closure of an Indian

game for substantial violation of the provisions of the Act. See

(b). Because Amador County has not shown clear

error and manifest injustice in the conclusion that its complaint

should be dismissed for failure to state a claim upon which

relief can be granted, Amador County’s Rule 59(e) motion will be

denied.

CONCLUSION AND ORDER

Amador County has not shown clear error and manifest

injustice in the January 8th opinion granting the defendants’

motion to dismiss. Accordingly, it is hereby -8-

ORDERED that Amador County’s motion [46] to alter or amend

the judgment be, and hereby is, DENIED.

SIGNED this 12th day of July, 2010.

________/s/_________________ RICHARD W. ROBERTS United States District Judge