                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRIENDS OF AMADOR COUNTY; BEA                    No. 11-17996
CRABTREE; JUNE GEARY,
                                                 D.C. No. 2:10-cv-00348-WBS-
              Plaintiffs - Appellants,           CKD

  v.
                                                 MEMORANDUM*
KENNETH SALAZAR, Secretary of the
United States Department of the Interior;
NATIONAL INDIAN GAMING
COMMISSION; GEORGE SKIBINE,
Acting Chairman of the National Indian
Gaming Commission,

              Defendants - Appellees,

  and

BUENA VISTA RANCHERIA OF THE
ME-WUK INDIANS,

              Movant - Appellee.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted January 15, 2014
                            San Francisco, California

Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

      Appellants Friends of Amador County, Bea Crabtree, and June Geary appeal

the district court’s dismissal of their action pursuant to Federal Rule of Civil

Procedure (“Rule”) 19 and its denial of their subsequent “Motion to Vacate

Judgment or Order Dismissing Plaintiff’s Complaint.”1 They filed suit against the

State of California, the Governor of California, the U.S. Department of the Interior

(“DOI”), the Secretary of the Interior, the National Indian Gaming Commission

(“NIGC”), and the Acting Chairman of the NIGC. They raise several challenges

relating to the Buena Vista Rancheria of Me-Wuk Indians’ (“Tribe”) gaming

compact with California. Specifically, they allege that (1) the DOI erroneously

deemed the Tribe’s 67.5 acres of fee-simple land as “Indian lands” eligible for

gaming, (2) the federal government erred in granting the Tribe federal recognition

over 20 years ago, and (3) the Tribe’s gaming ordinance and tribal-state compact

were invalid ab initio.




      1
        While Appellants styled their motion as one to vacate the district court’s
dismissal under Rule 19, they urged the district court to either reconsider, amend,
vacate, or modify the dismissal order pursuant to Rules 59 and 60. For ease of
reference, we refer to Appellants’ motion as a motion to vacate.

                                           2
      The Tribe made a special appearance to file a motion to dismiss based on the

Appellants’ failure and inability to join the Tribe as a required and indispensable

party under Rule 19. The district court granted the motion and denied the

Appellants’ motion to vacate the judgment of dismissal. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm both rulings.

        Rule 19 sets the framework for determining whether a party is required

and indispensable. We must decide first whether the Tribe is a “required” party

that should normally be joined pursuant to Rule 19(a)(1). If the Tribe is a required

party, we then ask whether its joinder in the underlying litigation is feasible. See

Fed R. Civ. P. 19(b). If joinder is not feasible, we conclude our analysis by

determining “whether, in equity and good conscience, the action should proceed

among the existing parties or should be dismissed.” Id. We review the district

court’s resolution of these questions for an abuse of discretion. See Am.

Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022 (9th Cir. 2002). And we

apply the same standard of review to the district court’s denial of Appellants’

motion to vacate. See McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987).

      We find no abuse of discretion in the district court’s determination that the

Tribe was a required party under Rule 19(a)(1). The Tribe claims several legally

protected interests relating to the subject of the action. Appellants seek to


                                          3
invalidate the Tribe’s gaming compact with California, overturn the DOI and

NIGC’s determination that the Tribe’s land enjoys “Indian lands” status under the

Indian Gaming Regulatory Act (“IGRA”), and essentially direct the Secretary to

extinguish the Tribe’s federal recognition. The district court concluded correctly

that disposing of the action in the Tribe’s absence would, as a practical matter,

impair or impede the Tribe’s ability to protect these substantial interests. See Fed.

R. Civ. P. 19(a)(1)(B)(i); Am. Greyhound Racing, Inc., 305 F.3d at 1023 (“The

interests of the tribes in their compacts are impaired and, not being parties, the

tribes cannot defend those interests.”); Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th

Cir. 1996) (finding a protectible interest in a tribe’s lease agreements).

      Appellants contend that the United States can adequately represent the

Tribe’s interests. See Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.

1990) (“The United States may adequately represent an Indian tribe unless there is

a conflict between the United States and the tribe.”). The district court concluded

otherwise. The government’s response to the district court’s questions on this

issue at a status conference caused the district court to suspect that the government

favored judicial resolution of the lawsuit as opposed to early dismissal, and would

seek to avoid taking positions contrary to its national Indian policy, even if

contrary to the Tribe’s interest. These concerns have been illustrated by the


                                           4
government’s inaction to date. The government did not move for its own dismissal

under Rule 19, and it has declined to take a position on the Tribe’s Rule 19 motion

in the district court and on appeal. Nor did the government appear at oral argument

or file any brief in the appeal. These inactions indicate divergent interests between

the Tribe and the government. We find no abuse of discretion in the district

court’s considered judgment. See Pit River Home & Agric. Coop. Ass’n v. United

States, 30 F.3d 1088, 1101 (9th Cir. 1994) (“We have held that the United States

cannot adequately represent an absent tribe, when it may face competing

interests.”).

       The district court concluded next that joinder would not be feasible because

the Tribe enjoys sovereign immunity as a federally recognized Indian tribe.

Appellants challenge the validity of the Tribe’s federally recognized status but

concede its existence. Indeed, the Tribe has been federally recognized since at

least 1985, see Indian Tribal Entities Recognized and Eligible to Receive Services,

50 Fed. Reg. 6055-02 (Feb. 13, 1985), and it thus has “the immunities and

privileges available to other federally acknowledged Indian tribes by virtue of their

government-to-government relationship with the United States,” Indian Entities

Recognized and Eligible to Receive Services from the Board of Indian Affairs, 77

Fed. Reg. 47,868-01 (Aug. 10, 2012).


                                          5
      Appellants claim that the district court erred by disregarding their allegations

that the Tribe should not be federally recognized. But the court cannot simply turn

a blind eye to the Tribe’s status as a federally recognized tribe in the Federal

Register. See 44 U.S.C. § 1507 (“The contents of the Federal Register shall be

judicially noticed[.]”); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th

Cir. 2001) (“The court need not . . . accept as true allegations that contradict

matters properly subject to judicial notice[.]”). As we have explained, “[f]ederally

recognized Indian tribes enjoy sovereign immunity from suit.” Pit River Home &

Agric. Coop. Ass’n, 30 F.3d at 1100.

      Appellants argue in the alternative that either the Administrative Procedure

Act (“APA”) or the IGRA abrogates, or at least precludes a tribe’s reliance on,

tribal sovereign immunity. Abrogation of sovereign immunity “cannot be implied

but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez, 436 U.S.

49, 58 (1978) (internal quotation marks omitted); see also Krystal Energy Co. v.

Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2004) (“Abrogation of tribal

sovereign immunity may not be implied.”).

      The APA provides no such express abrogation. While it unequivocally

waives the United States’ sovereign immunity in certain suits, it does not do the

same for Indian tribes. See 5 U.S.C. § 702. Appellants’ argument also runs


                                           6
counter to our precedent analyzing whether a tribe is necessary and indispensable

even in APA actions. See Makah Indian Tribe, 910 F.2d at 558-60 (finding no

abuse of discretion in the district court’s Rule 19 dismissal because the involved

tribes enjoyed sovereign immunity).

      The IGRA likewise contains no express abrogation of tribal immunity for

suits brought by private individuals challenging Indian-related administrative

determinations. It provides that certain agency decisions may be appealed to the

appropriate federal district court, but those actions must be brought pursuant to the

APA, which, as described supra, does not expressly abrogate tribal immunity. 25

U.S.C. § 2714. Appellants point to no provision in the IGRA that unequivocally

divests the Tribe of its sovereign immunity in suits like this, nor have we found

one. We thus find no error in the district court’s conclusion that the Tribe’s

sovereign immunity precludes joinder.

      The district court did not abuse its discretion by concluding that the Tribe is

indispensable under Rule 19(b)’s four-factor analysis. First, judgment in this

lawsuit would prejudice the Tribe for the same reasons the Tribe is a required

party. See Am. Greyhound Racing, Inc., 305 F.3d at 1024-25 (“[T]he first factor of

prejudice . . . largely duplicates the consideration that made a party necessary

under Rule 19(a): a protectible interest that will be impaired or impeded by the


                                          7
party’s absence.”). Second, we are not persuaded that the ameliorative measures

proposed for the first time in Appellants’ motion to vacate would shape

Appellants’ requested relief to lessen or avoid prejudice to the Tribe. The

Appellants seek termination of the Tribe’s gaming compact, “Indian lands” status,

and status as a federally recognized tribe—the same interests whose protection

requires the Tribe’s presence. See id. at 1025 (no ability to shape relief where

“[t]ermination of existing compacts is central to this litigation”). Third, while

Appellants might be able to obtain an adequate judgment in the Tribe’s absence,

“the only ‘adequate’ remedy would be at the cost of [the Tribe]” because the

Appellants request, at a minimum, a determination that the Tribe’s land is not

eligible Indian lands and that the Tribe’s compact with the state is invalid ab initio.

See Makah Indian Tribe, 910 F.2d at 560. Fourth, we acknowledge that Appellants

may be left with no adequate remedy upon dismissal for non-joinder, “[b]ut this

result is a common consequence of sovereign immunity, and [the Tribe’s] interest

in maintaining [its] sovereign immunity outweighs the [Appellants’] interest in

litigating their claims.” Am. Greyhound Racing, Inc., 305 F.3d at 1025.

      Finally, we agree that Appellants waived their reliance on the “public rights”

exception by raising it below for the first time in their motion to vacate the

judgment. Nonetheless, we find no abuse of discretion in the district court’s


                                           8
alternative holding rejecting this argument on its merits. For the public rights

exception to preempt a party’s Rule 19 protection, (1) “the litigation must

transcend the private interests of the litigants and seek to vindicate a public right”

and (2) “although the litigation may adversely affect the absent parties’ interests,

the litigation must not destroy the legal entitlements of the absent parties.”

Kescoli, 101 F.3d at 1311 (internal quotation marks omitted). As we have

described, Appellants’ lawsuit seeks to extinguish the Tribe’s substantial legal

entitlements. This precludes application of the public rights exception. See

Shermoen v. United States, 982 F.2d 1312, 1319 (9th Cir. 1992) (“Because of the

threat to the absent tribes’ legal entitlements, and indeed to their sovereignty, posed

by the present litigation, application of the public rights exception to the joinder

rules would be inappropriate.”).

      For the reasons explained above, the district court did not abuse its

discretion in dismissing this action under Rule 19 or in denying Appellants’

subsequent motion to vacate.

      AFFIRMED.




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