                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 31 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CITY OF VANCOUVER, a Washington                  No. 08-35954
municipal corporation,
                                                 D.C. No. 3:08-cv-05192-BHS
              Plaintiff - Appellant,

                                                                     **
  v.                                             MEMORANDUM

GEORGE SKIBINE,* in his official
capacity as Acting Chairman of the
National Indian Gaming Commission;
NATIONAL INDIAN GAMING
COMMISSION,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                       Argued and Submitted August 2, 2010
                               Seattle, Washington

Before: CANBY, NOONAN and BERZON, Circuit Judges.




       *
             George Skibine is substituted for Philip Hogen, pursuant to Fed. R.
App. P. 43(c)(2).
      **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The City of Vancouver appeals the district court’s dismissal, on standing

grounds, of its action challenging the National Indian Gaming Commission’s

approval of an amendment to a tribal gaming ordinance enacted by the Cowlitz

Indian Tribe. We affirm.

      The City does not challenge the substance of the amendment to the gaming

ordinance; it objects only to the timing of the approval, contending that the

Commission violated a procedural rule by acting before the Department of the

Interior had made a final decision on the Tribe’s fee-to-trust application. It is

undisputed that the Tribe cannot conduct the gaming operations contemplated by

the gaming ordinance before the Department approves its fee-to-trust application.

      “[T]o show a cognizable injury in fact,” a plaintiff asserting a procedural

injury “must allege . . . that (1) the [agency] violated certain procedural rules; (2)

these rules protect [a plaintiff’s] concrete interests; and (3) it is reasonably

probable that the challenged action will threaten their concrete interests.” City of

Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Citizens for

Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003))

(alterations in original). The City’s argument that the Commission should have

waited for the Department to approve the Tribe’s fee-to-trust application rests

solely on the requirement of the Indian Gaming Regulatory Act (“IGRA”) that


                                            2
gaming take place on “Indian lands,” 25 U.S.C. §§ 2710(b)(1), 2710(d)(1), defined

to include, inter alia, “lands title to which is . . . held in trust by the United States

for the benefit of any Indian tribe . . . and over which an Indian tribe exercises

governmental power,” id. § 2703. The Commission’s approval of the Tribe’s

gaming ordinance expressly provided, however, that before the Tribe could

conduct gaming on the site, “the Department of the Interior must first accept the

land into trust, and the Tribe must first exercise government authority over the

site.” Thus, we reject the City’s contention that the Commission violated a

procedural rule by approving an amendment to the gaming ordinance before the

Department had acted on the Tribe’s fee-to-trust application.

       Although the City asserts that the Commission’s approval could influence

the Department to adopt the Restored Lands Opinion on which the Commission

relied, it points to no statutory or regulatory authority requiring the Department to

consider the Commission’s Opinion on that matter, or to regard the Opinion as

dispositive. The Department must make a determination regarding the

applicability of Section 20 of IGRA, 25 U.S.C. § 2719, as part of the fee-to-trust

approval process, see 25 C.F.R. § 151.10(c). Moreover, as conceded by the City at

oral argument, regardless of whether the Department relies on the Commission’s

Restored Lands Opinion in making its Section 20 determination, the City will have


                                             3
an opportunity to challenge the substance of that determination—including any

restored lands decision, however arrived at—when and if the Department issues a

final decision approving the Tribe’s fee-to-trust application. See 25 C.F.R. §

151.12(b).

      As the City has not established a procedural injury resulting from the timing

of the Commission’s approval, it does not have Article III standing to maintain this

suit. See City of Sausalito, 386 F.3d at 1197. We affirm the district court’s

dismissal for lack of subject matter jurisdiction.

      AFFIRMED.




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