Connecticut v. U.S. Dep't of the Interior
Connecticut v. U.S. Dep't of the Interior
Opinion of the Court
GRANTING MGM'S MOTION TO INTERVENE; GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS
I. INTRODUCTION
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, *289MGM's motion to intervene as a defendant, and several related motions. For the reasons stated below, the Court will allow MGM to intervene as a defendant and it will dismiss Plaintiffs' complaint for failure to state a claim upon which relief may be granted.
II. FACTUAL BACKGROUND
A. Statutory and Regulatory Background
The IGRA governs Class III casino gaming-blackjack, roulette, and other table games-on tribal land.
1. Tribal-State Compact
Section 2710(d)(8) governs the approval of tribal-state compacts, and
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.
*290
2. Secretarial Procedures
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
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.
B. Procedural History
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 ;
*291Compl. ¶ 24;
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
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":
(1) the Tribes and the state's governor execute "amendments to" the Pequot Procedures and the Mohegan Compact, and their memoranda of understanding, creating a special exemption for MMCT such that "authorization of MMCT ... to conduct [casino] games in the state does not terminate" the Tribes' obligation to pay the State royalties from their gaming activities;
(2) the amendments "are approved or deemed approved by the Secretary ... pursuant to the [IGRA] ... and its implementing regulations";
(3)-(4) the amendments "are approved by" the Connecticut legislature; and
(5) the Tribes pass resolutions providing that the state may sue the Tribes if MMCT fails to pay any fees or taxes due the state.
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.
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.
We find that there is insufficient information upon which to make a decision as to whether a new casino operated by the Mohegan and Mashantucket Pequot Tribes (Tribes) would or would not violate the exclusivity clauses of the Gaming Compact [and Pequot Procedures]. The Tribes have entered an agreement with the State whereby they have agreed that the exclusivity [clauses] will not be breached by this arrangement. Therefore, our action is unnecessary at this time.
ECF Nos. 9-8, 9-16;
Having failed to secure the Secretary's approval of the amendments, Plaintiffs *293filed suit in this Court. They claim that because more than 90 days have passed since the Tribes submitted the amendments, the IGRA,
In mid-2018, the Secretary approved Plaintiffs' proposed amendments to the Mohegan Compact and published that approval in the Federal Register. See
C. MGM's Involvement
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.
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 *2942018 session. Clinton Decl. ¶ 10. In December 2017, the Tribes announced their own Bridgeport casino project to compete with MGM's proposal. See Clinton Decl. ¶¶ 21-22.
* * *
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.
III. LEGAL STANDARDS
A. Federal Rule 24(a) Intervention as of Right
"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. ,
*295[u]pon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and 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, unless the applicant's interest is adequately represented by existing parties.
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 ,
B. Administrative Procedure Act,
The APA authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed[.]"
C. Federal Rule 12(b)(6)
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 ,
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 ,
If a complaint containing an APA claim under
IV. MGM'S MOTION TO INTERVENE
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 ,
A. Standing
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."
*297Deutsche Bank Nat. Trust Co. v. F.D.I.C.,
1. Injury-in-Fact
First, the Court must determine whether MGM will suffer injury-in-fact if Plaintiffs succeed in this action. In Lujan v. Defs. of Wildlife,
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."
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.
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."
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 ,
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. ,
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 ,
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 *300discussing the "competitive threat" of the Springfield casino to Connecticut's casinos. See Statement of Dr. Clyde W. Barrow, Hearing Before the J. Comm. on Finance, Revenue, and Bonding, Gen. Assembly at 1-3 (Conn. 2017).
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 *301"conjectural or hypothetical" injuries based on future legislative action; the necessary legislative action has already occurred and the Secretary's approval of the proposed amendments to the Pequot Procedures has " 'the clear and immediate potential' to cause competitive harm" to MGM by triggering the construction of the East Windsor casino.
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.
2. Causation and Redressibility
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,
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. ,
Refusing to concede this point, both parties rely on New World Radio, Inc. v. FCC ,
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 ,
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 ,
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 *304MGM's ability to compete with the Tribes on equal footing for the right to build a Bridgeport casino, because it would prevent the Tribes from gaining an advantage; and (2) preserve the current competitive position of MGM's Springfield casino, because it would prevent the introduction of a competitor. The ruling would therefore redress MGM's potential injury-in-fact.
B. Timeliness
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,
C. Interests
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.,
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 ,
D. Adequate Representation of Interests
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 *305"requirement of [ Rule 24(a) ] is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers,
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.
*306Wildearth Guardians ,
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.
V. FEDERAL DEFENDANTS' MOTION TO DISMISS
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.
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.
A. IGRA Interpretation
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
1. Deference Owed to the Department
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,
Plaintiffs argue that if the Court reaches step two of the Chevron framework, Federal Defendants' interpretation should be afforded no deference.
*308See generally Pls. Sur-Reply. They contend that deference is inappropriate because (1) the Department's litigation position is not the type of agency statement afforded Chevron deference, particularly where the Department has not previously explained its interpretation; (2) the "Indian canon of construction" overcomes any deference to the Department; and (3) the Department's interpretation is not a permissible construction of the IGRA. Id. at 2-7. The Court agrees with Plaintiffs' first argument, and it therefore declines to defer to Federal Defendants' interpretation.
"[N]ot every kind of agency interpretation, even of a statute the agency administers, warrants Chevron deference." Miller v. Clinton ,
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 ,
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 ,
2. IGRA's Plain Meaning
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.,
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...."
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."
"[W]here Congress includes particular language in one section of a statute but omits it in another section of *310the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States ,
As the Supreme Court has frequently stated:
[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Conn. Nat'l Bank v. Germain,
3. Plaintiffs' Arguments
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,
a. Congressional Intent
First, Plaintiffs argue that Federal Defendants' position "plainly would frustrate *311congressional intent" because Congress intended for both tribal-state compacts and secretarial procedures to facilitate tribal gaming equally. Pls. Opp'n at 12-13. In support of this argument, Plaintiffs rely on a 1991 Department Solicitor Opinion relating to the Pequot Procedures. See Memorandum from Office of Solicitor to Asst. Secretary, BIA.IA.1102 (the "Opinion") (Apr. 9, 1991), ECF No. 28-5. The Opinion addressed the Nevada Resort Association's claim that gaming activity under the Pequot Procedures must comply with all Connecticut state laws, including restrictions on gaming, because
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:
require a Tribe to pursue negotiations, engage itself and the judiciary in litigation, and pursue each of the first six steps in the dispute resolution process established under Section 2710(d)(7), yet finish with a result equivalent to never having asked for a negotiated compact, never having negotiated, never having brought legal action, and never having a mediator appointed and involved in selection of a compact.
Opinion at 6.
b. Absurdity Principle
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,
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,
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,
Unfortunately, many statutes contain "more than a few examples of inartful drafting,"
*313King v. Burwell , --- U.S. ----,
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
c. Practical Considerations
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 ...
*314shall prescribe ... procedures ... consistent with the proposed compact selected by the mediator ... the provisions of [the IGRA], and the relevant" state laws. § 2710(d)(7)(B)(vii) (emphasis added). In other words, the Secretary is responsible for independently considering the proposed compact, state law, and the IGRA, and drafting procedures consistent with previous submissions.
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 ,
d. Indian Canon of Construction
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 ,
*315e. Existence of a De Facto Compact
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
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."
First, Plaintiffs fail to show that the Pequot Procedures constitute an intergovernmental agreement between Pequot and the state. In fact, procedures are imposed under
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."
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,
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
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 ,
f. Judicial Estoppel
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 ,
[S]everal factors typically inform the decision whether to apply the doctrine ... [including whether] a party's later position [is] clearly inconsistent with its earlier position[,] ... whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled, ... [and] whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Rogler v. Gallin ,
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,
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 ,
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 ,
* * *
In sum,
B. Failure to State a Claim
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,
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
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 *320Procedures approved] in terms of 'agency action unlawfully withheld' under § 706(1), rather than agency action 'not in accordance with law' under § 706(2)." SUWA ,
VI. CONCLUSION
For the forgoing reasons, the Court hereby ORDERS :
1. MGM's Motion to Intervene (ECF No. 11) is GRANTED .
2. MGM's Motion for Leave to File Reply Brief (ECF No. 30) is GRANTED .
3. Federal Defendants' Motion to Dismiss (ECF No. 18) is GRANTED .
4. Federal Defendants' Motion for Relief from Local Civil Rule 7(n) (ECF No. 49) is GRANTED .
5. Plaintiffs' Motion to Take Judicial Notice (ECF No. 28) is GRANTED .
6. Plaintiffs' Motion for Leave to File Sur-Reply Brief (ECF No. 34) is GRANTED .
7. Plaintiffs' Motion for Briefing Schedule Amendment (ECF No. 31) is DENIED .
8. Plaintiffs' Motion to Exclude MGM's Provisional Status Report (ECF No. 44) is DENIED .
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
MGM cites a 2015 Government Accountability Office report identifying more than 200 tribes that conduct casino gaming, only three of which rely on procedures authorizing that gaming. MGM Mem. Supp. Fed. Defs. Mem. ("MGM Mem.") at 2 n.4 (citing U.S. General Accountability Office, Indian Gaming - Regulation and Oversight by the Federal Government, States, and Tribes ("GAO Report"), at 4, 11 n.24 (June 2015), https://www.gao.gov/assets/680/670603.pdf), ECF No. 21-1.
The Office of Indian Gaming is housed within the Department, and its "duties and responsibilities include the administrative review and analysis of the statutory and regulatory requirements of IGRA and related statutes, policy development, and technical assistance to tribal and state stakeholders." Office of Indian Gaming, Overview, https://www.bia.gov/as-ia/oig.
The Department has promulgated regulations allowing the Secretary to prescribe secretarial procedures when a state raises an Eleventh Amendment sovereign immunity defense to a tribe's lawsuit alleging that the state did not negotiate in good faith. See
The Pequot Procedures and Mohegan Compact, along with their Memoranda of Understanding ("MOU"), are available at http://www.portal.ct.gov/DCP/Gaming-Division/Gaming/Tribal-State-Compacts-and-Agreements (the "Pequot Procedures," "Pequot MOU," "Mohegan Compact," and "Mohegan MOU"). The Court may take judicial notice of these documents, as public records incorporated by reference in the complaint, without converting Federal Defendants' motion to dismiss to one for summary judgment. See Compl. ¶¶ 24-25, 27; Fed R. Civ. P. 12(b)(6) ; Ruffin v. Gray ,
This provision states that "[a]ny State and any Indian tribe may enter into a Tribal-State compact governing gaming activities on the Indian lands of the Indian tribe, but such compact shall take effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register."
Public Act 17-89 is available at https://www.cga.ct.gov/2017/ACT/pa/pdf/2017PA-00089-R00SB-00957-PA.pdf. The Court takes judicial notice of this Act as a public record. See Cannon v. District of Columbia ,
The transcript of this hearing is available at https://www.cga.ct.gov/2017/trn/S/2017STR00523-R00-TRN.htm. Again, the Court takes judicial notice of the transcript as a public record available on a government website. Johnson ,
The Court takes judicial notice of these letters because they were incorporated by reference in the complaint. See Compl. ¶¶ 37; Fed R. Civ. P. 12(b)(6) ; Ruffin ,
The Court will refer to casinos on tribal land as "tribal casinos," and casinos on state land as "commercial casinos."
Federal Defendants styled this motion as a "Motion for Partial Dismissal" because it seeks to dismiss only Pequot's claims, and when it was filed Mohegan's claims were still live. However, because Mohegan subsequently filed a stipulation of voluntary dismissal, Pequot's claims are now the only claims remaining and Federal Defendants' motion will dispose of the action entirely.
Local Rule 7(n) states that "[i]n cases involving the judicial review of administrative agency actions, unless otherwise ordered by the Court, the agency must file a certified list of the contents of the administrative record with the Court within 30 days following service of the answer to the complaint or simultaneously with the filing of a dispositive motion, whichever occurs first."
Because the Court concludes that MGM is entitled to intervene as a matter of right, the Court finds it unnecessary to determine whether MGM is also entitled to intervene by permission pursuant to Federal Rule 24(b). See Forest Cty. Potawatomi Cmty. v. United States ("Forest County I") ,
Available at http://www.theday.com/business/20171207/mgm-urges-competitive-bidding-for-bridgeport-casino. The Court may take judicial notice of this news article for the purpose of evaluating MGM's standing to intervene. Magritz v. Ozaukee Cty. ,
Available at https://www.cga.ct.gov/2017/findata/tmy/2017HB-07319-R000417-Barrow,% 20PH.D.,% 20Clyde,% 20Chair-Department% 20of% 20Political% 20Science-University% 20of% 20Texas% 20Rio% 20Grande% 20Valley-TMY.PDF.
The Tribes' East Windsor casino is particularly likely to pose a competitive threat to MGM's Springfield casino because citizens of Hartford, one of Connecticut's largest cities, must drive past East Windsor to visit Springfield. The Court takes judicial notice of these facts as accurately and readily determinable from sources whose accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b)(2) ; Onondaga Nation v. New York ,
The Tribes and the state filed separate briefs opposing MGM's motion to intervene, and the state's brief adopts the arguments set forth in the Tribes' brief. See Pl. Conn.'s Opp'n MGM's Mot. Intervene, ECF No. 26. The Court will accordingly refer to the Tribes' arguments regarding MGM's intervention as "Plaintiffs' " arguments.
Plaintiffs similarly argue that MGM's competitive injury from the East Windsor casino cannot be redressed by the Court's decision here, because that injury arises from the passage of Public Act 17-89 rather than the approval of the amendments to the Pequot Procedures. Tribes Intervention Opp'n at 19-20. That argument is not persuasive, for the reasons described in the previous paragraphs.
Plaintiffs also claim that "MGM's Bridgeport plans appear to be neither concrete nor imminent," citing a late-2017 news article quoting MGM's CEO as stating that MGM's Springfield casino will be MGM's "last major development project" in the United States. Tribes Intervention Opp'n at 6-7. While the Court agrees that MGM's Bridgeport casino project is potentially speculative, a single news article is not sufficient to suggest that MGM's declaration is frivolous or a sham regarding MGM's plans. Forest County I ,
As MGM notes, the amendments themselves state that they seek to help the Tribes "own and operate a commercial casino" without impacting "any benefits derived" by the state and the Tribes from the current tribal gaming arrangements. MGM Intervention Mem. Ex. C at 4, ECF No. 11-5. Again, the Court takes judicial notice of the amendments because they are incorporated by reference in the complaint. See Compl. ¶¶ 32-34; Fed R. Civ. P. 12(b)(6) ; Ruffin ,
This conflict is apparent from the Secretary's recent approval of Plaintiffs' amendments to the Mohegan Compact-which MGM opposed-bringing MGM closer to the competitive harm discussed above.
The Tribes also claim that MGM may not intervene because it has failed to comply with Federal Rule 24(c), which requires that a motion to intervene "be accompanied by a pleading that sets out the claim or defense for which intervention is sought." Tribes Intervention Opp'n at 26. They acknowledge that MGM submitted a proposed answer with its motion, but they claim that its defense on behalf of Federal Defendants "does not comport with the actual facts or law of the case."
MGM's provisional briefs comply with this requirement.
In support of their opposition to Federal Defendants' motion to dismiss, Plaintiffs have requested that the Court take judicial notice of certain Federal Register Notices, correspondence from the Department, a news article, and a Connecticut General Assembly Resolution. See generally Pls.' Request Judicial Notice, ECF No. 28. The Court grants Plaintiffs' request and takes judicial notice of these documents. See
Claiming that Federal Defendants raised Chevron deference for the first time in their reply brief, Plaintiffs filed a motion for permission to submit a sur-reply addressing this issue. See generally Pls. Sur-Reply Fed. Defs. Mem. ("Pls. Sur-Reply"), ECF No. 34-1. "The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the Court," Ying Qing Lu v. Lezell ,
Federal Defendants seem to have recognized this; as Plaintiffs note, their opening brief makes no reference to Chevron deference.
As Federal Defendants note, the IGRA itself does not expressly discuss amendments to tribal-state compacts or secretarial procedures, only their establishment and initial approval. See Fed. Defs. Mem. at 6-7. This does not introduce ambiguity sufficient to alter the Court's conclusion that the IGRA's deadlines governing the Secretary's approval of tribal-state compacts plainly do not govern the Secretary's approval of amendments to secretarial procedures.
As noted above, the Department has promulgated regulations allowing the Secretary to prescribe secretarial procedures following a state's assertion of sovereign immunity. These regulations state that "[a]n Indian tribe may ask the Secretary to amend [secretarial procedures] by submitting an amendment proposal to the Secretary," and the Secretary "must review the proposal by following the approval process for initial tribal proposals."
Plaintiffs claim that the Solicitor Opinion is entitled to Chevron deference because it "provided the basis for a secretarial decision" and it was incorporated into a published Federal Register notice. Pls. Opp'n at 14-15. Because the Court does not read the Opinion as speaking to the interpretation at issue here, it need not determine whether Chevron deference is warranted.
MGM notes that the IGRA subsection specific to the imposition of secretarial procedures, § 2710(d)(7)(B)(vii)(II), states that the Secretary shall prescribe procedures "under which class III gaming may be conducted on the Indian lands ...." MGM's Reply Supp. Fed. Defs. Mem. ("MGM Reply") at 12, ECF No. 30-2. Arguably, therefore, § 2710(d)(1) is not necessary to legalize procedures-based gaming under the IGRA, because § 2710(d)(7) explicitly authorizes it under federal law.
Again, at the motion to dismiss stage, the Court may consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao ,
Available at www.bia.gov/sites/bia.gov/files/assets/as-ia/pdf/idc008176.pdf.
While the proposed amendment did not pass, the Court finds its proposal by members of the Committee on Indian Affairs-who were presumably well-versed in the IGRA-relevant.
Accordingly, despite Plaintiffs' suggestions to the contrary, Pls. Opp'n at 23 n.10, there is no ambiguity regarding whether a tribal-state compact can be executed by performance. It is therefore inappropriate for the Court to look to the Indian canons of construction for guidance on this question. See El Paso Nat. Gas ,
Again, § 2710(d)(3)(B) states that "[a]ny State and any Indian tribe may enter into a Tribal-State compact governing gaming activities on the Indian lands of the Indian tribe, but such compact shall take effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register."
Furthermore, the Pequot Procedures do contain "deemed approved" provisions, but those provisions do not apply to proposed amendments to the Procedures. See Pequot Procedures § 9(a) (stating that Pequot "shall notify the State gaming agency of any revision of the standards of operation [of lottery gaming]" and that the state's approval of the revision "shall be deemed granted unless disapproved within sixty days of submission of the revised standards"). Again, this indicates that had the Secretary wished to impose deadlines on the approval of amendments to the Pequot Procedures, the Secretary could have expressly done so.
In their sur-reply, Plaintiffs argue that even if the Pequot Procedures were initially not subject to the approval timing requirements governing tribal-state compacts, the proposed amendments to those procedures should be considered the equivalent of a tribal-state compact because they were developed through tribal-state cooperation. Plaintiffs' Sur-Reply at 5-7 ("While Plaintiffs would disagree that the Defendants can take as much time as they would like in prescribing amendments to procedures than [sic] in reviewing and approving compact amendments, that is not the issue before the Court."). However, Plaintiffs have not identified any statutory provision or case law suggesting that secretarial procedures may be converted into a tribal-state compact through mere tribal-state cooperation. Regardless, the Court declines to entertain an argument raised for the first time in a sur-reply. See Benton v. Laborers' Joint Training Fund ,
Plaintiffs have not raised the question of whether the Secretary can indefinitely delay approving or denying the proposed amendments to the Pequot Procedures, and the Court does not rule on that question here.
For these same reasons, Plaintiffs' request for mandamus relief fails. Mandamus relief is available only if "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff." In re Medicare Reimbursement Litig.,
Federal Defendants' also make the conclusory argument that the state lacks standing to assert claims regarding the Pequot Procedures because it is not a "party" to those procedures. Fed. Defs. Mem. at 10. However, the state has economic and sovereign interests in the Pequot Procedures and their proposed amendments, which require the state's legislative approval and which impose certain rights and conditions upon the state. The Court's determination here will impact those interests. The state accordingly has standing to challenge the Secretary's decision.
Reference
- Full Case Name
- State of CONNECTICUT and Mashantucket Pequot Tribe v. UNITED STATES DEPARTMENT OF THE INTERIOR and Ryan Zinke, Secretary of the Interior
- Cited By
- 27 cases
- Status
- Published