                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
AMADOR COUNTY, CALIFORNIA     )
                              )
          Plaintiff,          )
                              )
          v.                  )    Civil Action No. 05-658 (RWR)
                              )
DIRK A. KEMPTHORNE, et al.,   )
                              )
          Defendants.         )
______________________________)


                       MEMORANDUM OPINION

     Plaintiff Amador County, California brings this action

against the Secretary of the Department of the Interior (“DOI”)

Dirk A. Kempthorne, Assistant Secretary for Indian Affairs Carl

J. Artman, and the DOI alleging that the approval of an amendment

to the gaming compact 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 Procedures

Act (“APA”) because the amendment authorized gaming in violation

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

have filed a motion to dismiss the complaint under Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6).   While Amador County

has standing, it has nonetheless failed to state a claim

entitling it to relief under the APA because the Secretary’s

choice to take no action on the amended compact is unreviewable

and the Secretary’s deemed approval is lawful by the express
                                 -2-

terms of IGRA.   Thus, the defendants’ motion to dismiss will be

granted.

                             BACKGROUND

     The IGRA “provide[s] a statutory basis for the operation

[and regulation] of gaming by Indian tribes” on Indian lands.    25

U.S.C. § 2702(1)-(2).    The statute separates the types of gaming

conducted on Indian lands into three different classes for the

purpose of regulation.   See 25 U.S.C. § 2703(6)-(8).   Among other

requirements, Class III gaming is “lawful on Indian lands only if

such activities are . . . conducted in conformance with a Tribal-

State compact entered into by the Indian tribe and the State [in

which lands are located] that is in effect.”    25 U.S.C.

§ 2710(d)(1)(C).   Under the statute, “[t]he Secretary [of the

Interior] is authorized to approve any Tribal-State compact

entered into between an Indian tribe and a State governing gaming

on Indian lands of such Indian tribe.”    25 U.S.C.

§ 2710(d)(8)(A).   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].”   25 U.S.C. § 2710(d)(8)(C).

     In 2004, the state of California approved an amended gaming

compact between California and the Buena Vista Rancheria, a
                                -3-

federally recognized Indian tribe, which “expanded the scope of

Class III gaming to be conducted by the Tribe.”    (Am. Compl.

¶¶ 11, 18.)   The Buena Vista Rancheria submitted the amended

compact to the Secretary for approval.     (Defs.’ Mem. in Supp. of

its Mot. to Dismiss (“Defs.’ Mem.”) at 2.)    The Secretary did not

take any action on the amended compact for forty-five days, at

which point the compact was deemed approved by operation of law

under 25 U.S.C. § 2710(d)(8)(C).   (Id.)

     Amador County alleges that the Secretary’s deemed approval

of the amended compact under 25 U.S.C. § 2710(d)(8)(C) was an

unlawful agency action in violation of the APA because the

Secretary’s approval “constitutes federal authorization for the

Tribe’s proposed Buena Vista Rancheria Casino project . . . to

conduct Class III gaming on land[s] which . . . are under the

County’s jurisdiction and are not ‘Indian lands’ as required by

the IGRA and the Amended Compact.”    (Am. Compl. ¶¶ 24-25.)

The defendants have filed a motion to dismiss, contending that

Amador County lacks standing to challenge the Secretary’s

approval of the compact amendment; that Amador County has 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 of a gaming compact by inaction is

valid only to the extent it is lawful.     Amador County has filed a
                                -4-

motion for a preliminary injunction to enjoin the defendants

“from authorizing or sanctioning the conduct of Class III gaming

activities and/or any pre-development and development activities

related to any casino project at the site of the former Buena

Vista Rancheria within Amador County” and to compel defendants to

“immediately withdraw approval of the Amended Class III Gaming

Compact between the State of California and the Buena Vista

Rancheria of Me-Wuk Indians.”   (Pl.’s Prelim. Inj. Mot. at 1-2.)1

                            DISCUSSION

I.   STANDING

     The defendants contend that Amador County lacks

constitutional standing to bring its claim.     To satisfy the

constitutional standing inquiry, Amador County “must show: (1)

injury-in-fact; (2) causation, and (3) redressability.”     Fund for

Animals, Inc. v. Norton, 322 F.3d 728, 732-33 (D.C. Cir. 2003)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).   The alleged injury must be “concrete and

particularized” and “actual or imminent,” and must be fairly

traceable to the defendant’s action.     Lujan, 504 U.S. at 560.

“In reviewing the standing question, [a court] must be ‘careful

not to decide the questions on the merits for or against the

plaintiff, and must therefore assume that on the merits the


     1
       Amador County also has filed a motion for leave to file a
surreply in opposition to the defendants’ motion to dismiss.
This motion will be granted.
                                 -5-

plaintiffs would be successful in their claims.’”      In re Navy

Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (quoting City of

Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)).      Still,

when the “existence of one or more of the essential elements of

standing ‘depends on the unfettered choices made by independent

actors not before the courts and whose exercise of broad and

legitimate discretion the courts cannot presume either to control

or to predict,’” the plaintiff must “adduce facts showing that

those choices have been or will be made in such manner as to

produce causation and permit redressability of injury.”      Lujan,

504 U.S. at 562 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615

(1989) (opinion of Kennedy, J.)).      Further, “any [plaintiff]

alleging only future injuries confronts a significantly more

rigorous burden to establish standing” and “‘must demonstrate a

realistic danger of sustaining a direct injury[.]’”      United

Transp. Union v. I.C.C., 891 F.2d 908, 913 (D.C. 1989) (quoting

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979)).

       In its amended complaint, Amador County alleges that the

defendants, by not affirmatively disapproving the amended

compact, have improperly determined that the Buena Vista

Rancheria land is “Indian land” under IGRA and have unlawfully

authorized Class III gaming on the land.      (See Am. Compl. ¶¶ 18-

27.)    It contends that, as a result of the defendants’ inaction,
                                -6-

it will be forced to shoulder imminent financial and

environmental burdens caused by proposed illegal gaming on the

Rancheria land and that this injury can be redressed by setting

aside the Secretary’s approval of any unlawful portions of the

amended compact.   (Id. ¶¶ 26-28; Pl.’s Opp’n at 9.)    The

defendants argue, however, that Amador County’s alleged injury is

too speculative to constitute an injury-in-fact because the

Rancheria may never actually conduct Class III gaming.     (Def.’s

Mem. at 11.)   Amador County’s alleged injury-in-fact is a future

injury because the Rancheria has not yet begun any Class III

gaming activity, and, as defendants contend, it is possible that

the Tribe may never complete its intended casino project.

However, the time and effort expended by the Tribe to create and

submit the amended compact to the state of California and to the

Secretary for approval reflects a serious intent to conduct Class

III gaming on the Rancheria land.     Thus, Amador County has

established a realistic danger of direct injury and satisfied the

injury-in-fact requirement of constitutional standing.     Further,

this injury is fairly traceable to the defendants’ challenged

action because the defendants’ failure to affirmatively strike

down the amended compact permits the Rancheria to go forward with

its existing plans for Class III gaming and, if appropriate,

could be redressed through declaratory and injunctive relief

compelling the Secretary to act.    Accordingly, Amador County has
                                 -7-

alleged a sufficient injury, caused by the defendants’ action and

redressable through judicial means, to satisfy constitutional

standing.

II.   FAILURE TO STATE A CLAIM

      Defendants contend that Amador County has not alleged a

claim subject to judicial review under the APA.     Rule 12(b)(6)

authorizes dismissal of a complaint when a plaintiff fails to

state a claim upon which relief can be granted.     See Fed. R. Civ.

P. 12(b)(6).    In order to survive a motion to dismiss under Rule

12(b)(6), the allegations stated in the plaintiff’s complaint

“must be enough to raise a right to relief above the speculative

level[.]”    Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.

1955, 1965 (2007).    The complaint must be construed in the light

most favorable to the plaintiff and “the court must assume the

truth of all well-pleaded allegations.”    Warren v. District of

Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).    If a plaintiff fails

to allege sufficient facts to support a claim, the complaint must

be dismissed.    See Twombly, 127 S. Ct. at 1965.

      The APA “provides judicial review to any ‘person suffering

legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant

statute.’”   Webster v. Doe, 486 U.S. 592, 597 (1988) (quoting 5

U.S.C. § 702).    A reviewing court may “hold unlawful and set

aside agency action” that is “arbitrary, capricious, an abuse of
                                 -8-

discretion, or otherwise not in accordance with law[.]”     5 U.S.C.

§ 706.    “Section 701(a), however, limits application of the

entire APA to situations in which judicial review is not

precluded by statute, see § 701(a)(1), and the agency action is

not committed to agency discretion by law, see § 701(a)(2).”

Webster, 486 U.S. at 599.    An agency action is a “final agency

action” if it “mark[s] the consummation of the agency's

decisionmaking process” and it is an action “by which rights or

obligations have been determined, or from which legal

consequences flow[.]”    Bennett v. Spear, 520 U.S. 154, 178

(1997).    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., 486 F.3d

1307, 1311 (D.C. Cir. 2007) (citing Steenholdt v. F.A.A., 314

F.3d 633, 638 (D.C. Cir. 2003)).

     Amador County alleges that the Secretary’s decision to take

no action to disapprove the Rancheria amended compact and to

allow it to be deemed approved under 25 U.S.C. § 2710(d)(8)(C)

was arbitrary and capricious and otherwise not in accordance with

law because the Secretary is obligated to disapprove any unlawful

compact.    (Pl.’s Opp’n at 11-12.)    In the section explaining the

Secretary’s authority to approve or disapprove a gaming compact,

IGRA states that “[t]he Secretary may disapprove a compact . . .

only if such compact violates” IGRA, any other federal law, or
                                -9-

“the trust obligations of the United States to Indians.”    25

U.S.C. § 2710(d)(8)(B) (emphasis added).   With the use of the

permissive “may,” the statute makes clear that, while the

Secretary can choose to disapprove a compact, the Secretary is

not obligated to disapprove any compact.   See Pueblo of Sandia v.

Babbitt, 47 F. Supp. 2d 49, 56-57 (D.D.C. 1999) (noting that the

Secretary had discretion to choose whether to disapprove a

compact).   Rather, the Secretary is given three options -- to

approve, disapprove, or take no action -- and the statute

provides no clear standard by which the Secretary must decide his

course of action.   “[A] court would have no standards by which to

judge whether the Secretary acted arbitrarily and capriciously by

not acting.”   Lac Du Flambeau Band of Lake Superior Chippewa

Indians v. Norton, 327 F. Supp. 2d 995, 999 (W.D. Wis. 2004).

Because the statute lacks a standard to guide judicial review of

the Secretary’s decision regarding a submitted compact, that

decision is committed to agency discretion and is unreviewable

under the APA.   See id.; PPI, Inc. v. Kempthorne, No. 4:08cv248-

SPM, 2008 WL 2705431, at *5 (N.D. Fla. July 8, 2008) (concluding

that IGRA “provides clear and convincing evidence that Congress

intended to preclude judicial review” of the Secretary’s decision

to take no action).

     Amador County alleges nevertheless that the Secretary’s

approval of the amended compact by inaction is a reviewable final
                                 -10-

agency action because the Secretary’s approval of a compact that

violates IGRA was unlawful.   (See Pl.’s Opp’n at 14.)      The

defendants contend that the Secretary’s approval by operation of

law is immune from challenge because the Secretary’s inaction

results in approval of a gaming compact only to the extent it

does not violate IGRA.   (See Defs.’ Mem. at 18, 25; Defs.’ Reply

at 10.)   Assuming that the Secretary’s approval by inaction is a

final agency action, Congress reflected its clear intent to

preclude review of such approval.       In structuring IGRA, it

limited the Secretary’s approval by inaction to apply only to

those portions of a compact that are lawful under the statute.

See 25 U.S.C. § 2710(d)(8)(C) (“[A] compact shall be considered

to have been approved by the Secretary, but only to the extent

the compact is consistent with [IGRA].” (emphasis added)).        Thus,

the Secretary’s approval of a compact by inaction can never

violate the statute.   See PPI, Inc., 2008 WL 2705431, at *5-6

(holding that “[t]he express terms” of IGRA reflect congressional

intent to preclude review of the Secretary’s approval of a

compact by inaction because any compact provisions contrary to

IGRA are not deemed approved).    “Congress provided a remedy apart

from judicial review to address” illegal provisions of compacts

by deeming a compact “approved ‘only to the extent the compact is

consistent with [IGRA].’”   Id. at *5 (quoting 25 U.S.C.

§ 2710(d)(8)).   Accordingly, because Amador County has not
                                -11-

alleged any action by the Secretary that could be unlawful under

IGRA, Amador County has failed to state a claim entitling it to

any relief under the APA.2

                             CONCLUSION

     Although Amador County has established standing, it has

nonetheless failed to state a claim entitling it to relief.     The

Secretary’s choice of whether to approve, disapprove, or take no

action on an Indian gaming compact is a decision committed to the

Secretary’s discretion, and IGRA precludes judicial review of the

Secretary’s approval by inaction.      Accordingly, the defendants’

motion to dismiss under Rule 12(b)(6) for failure to state a

claim will be granted and Amador County’s motion for a

preliminary injunction will be denied as moot.     A final,

appealable Order accompanies this Memorandum Opinion.

     SIGNED this 8th day of January, 2009.


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




     2
       The complaint seeks declaratory and injunctive relief
based solely upon an APA violation theory that is not actionable.
It presents no alternative bases for seeking other redress for
alleged IGRA violations.
