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Citizens Against Casino Gambling in Erie County v. Hogen

March 30, 2010

CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY (JOEL ROSE AND ROBERT HEFFERN, AS CO-CHAIRPERSONS), REV. G. STANFORD BRATTON, D. MIN., EXECUTIVE DIRECTOR OF THE NETWORK OF RELIGIOUS COMMUNITIES, NETWORK OF RELIGIOUS COMMUNITIES, NATIONAL COALITION AGAINST GAMBLING EXPANSION, PRESERVATION COALITION OF ERIE COUNTY, INC., COALITION AGAINST GAMBLING IN NEW YORK - ACTION, INC., THE CAMPAIGN FOR BUFFALO, HISTORY ARCHITECTURE AND CULTURE, ASSEMBLYMAN SAM HOYT, ERIE COUNTY LEGISLATOR MARIA WHYTE, JOHN MCKENDRY, SHELLEY MCKENDRY, DOMINIC J. CARBONE, GEOFFREY D. BUTLER, ELIZABETH F. BARRETT, JULIE CLEARY, ERIN C. DAVISON, ALICE E. PATTON, MAUREEN C. SCHAEFFER, DORA RICHARDSON, AND JOSEPHINE RUSH, PLAINTIFFS,
v.
PHILIP N. HOGEN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE NATIONAL INDIAN GAMING COMMISSION, THE NATIONAL INDIAN GAMING COMMISSION, THE UNITED STATES DEPARTMENT OF THE INTERIOR, KEN SALAZAR, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE INTERIOR, AND BARACK OBAMA, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

On March 31, 2009, Plaintiffs commenced this action challenging the legality of a gambling casino operated by the Seneca Nation of Indians ("SNI") in the City of Buffalo on land it acquired in 2005 (the "Buffalo Parcel"). Plaintiffs allege that Defendants, all government officials and agencies, acted illegally, arbitrarily, capriciously, and not in accordance with law when they determined the Buffalo Parcel is gaming-eligible "Indian land," and approved the SNI's second amended ordinance authorizing gambling on the Parcel. Plaintiffs also contend that legislation and regulations Defendants relied on are unconstitutional or were illegally adopted.

There are two motions before the Court: the Seneca Nation of Indians' Motion to Intervene and for Leave to File Proposed Answer (Docket No. 10), and Defendants' Motion to Dismiss the first of Plaintiffs' three claims for relief (Docket No. 11). Both motions are fully briefed, and the Court has determined that oral argument is not necessary. For the reasons discussed below, Defendants' Motion to Dismiss Plaintiffs' first claim for relief is granted in part, and denied in part, and the SNI's Motion to Intervene is denied.

II. BACKGROUND

This is the third lawsuit commenced by largely the same plaintiffs, who seek to bar the SNI from operating a gambling facility in Buffalo, New York. Familiarity with the underlying factual and legal background is presumed, and will be discussed only to the extent necessary to resolve the pending motions. A brief procedural history follows.

The first action, filed in January 2006, challenged various decisions by the Secretary of the Interior (the "Secretary") and the Chairman of the National Indian Gaming Commission (the "NIGC") that permitted gambling on the Buffalo Parcel. Citizens Against Casino Gambling in Erie County v. Kempthorne, 06-CV-00001-WMS (CACGEC I). In January 2007, the Court found there was no indication the NIGC Chairman had considered the threshold jurisdictional question of whether the SNI's proposed gambling facility in Buffalo would be sited on gaming-eligible Indian lands. The Court vacated the NIGC Chairman's decision to approve the SNI's gaming ordinance, and remanded to provide the NICG an opportunity to determine, in the first instance, whether the Buffalo Parcel is gaming-eligible Indian land under the Indian Gaming Regulatory Act (the "IGRA"). 471 F. Supp. 2d 295, 326-27 (W.D.N.Y. 2007), amended in part on reconsideration, 2007 U.S. Dist. LEXIS 29561 (W.D.N.Y. Apr. 20, 2007).

Thereafter, in July 2007, the NIGC Chairman determined that the Buffalo Parcel is gaming-eligible Indian land, and approved an amended ordinance enacted by the SNI on June 9, 2007. The second lawsuit was commenced on July 12, 2007, challenging, inter alia, the NIGC Chairman's conclusions. Citizens Against Casino Gambling in Erie County v. Hogen, 07-CV-00451-WMS (CACGEC II). In that case, the Court concluded the Buffalo Parcel is Indian land, but is not gaming eligible under the IGRA, and again vacated the NIGC Chairman's approval of the SNI's ordinance. 2008 U.S. Dist. LEXIS 52395, at *209 (W.D.N.Y. July 8, 2008).*fn1

On August 25, 2008, new Department of the Interior regulations took effect relative to "Gaming on Trust Lands Acquired After October 17, 1988"-i.e., relating to interpretation of certain IGRA provisions at issue in CACGEC I and CACGEC II. 73 Fed. Reg. 2934 (May 20, 2008); 73 Fed. Reg. 35579 (June 24, 2008). Thereafter, the SNI submitted to the NIGC a second amended gaming ordinance for the Buffalo Parcel. On January 20, 2009, the NIGC Chairman approved the ordinance, concluding that, under the new regulations, the Buffalo Parcel is gaming-eligible Indian land. This lawsuit followed.

In their first claim for relief, Plaintiffs contend the Buffalo Parcel is not "Indian land," but rather, sovereign soil of the State of New York. They advance three discrete arguments in support of their claim:

(A) the Seneca Nation Settlement Act ("SNSA"), which permitted the SNI to purchase the Buffalo Parcel and to have it held in restricted fee status, violates the Tenth Amendment because it enabled the "taking" of land in Western New York absent the consent of New York State;

(B) the Tribal-State Compact between the SNI and the State of New York, deemed approved in November 2002 and authorizing the SNI to conduct gaming on "Indian land," does not apply to the Buffalo Parcel, which was not acquired until 2005; and

(C) "Indian land," within the meaning of the IGRA, requires that the land be within the limits or boundaries of an existing reservation, which the Buffalo Parcel is not. (Docket No. 1, ¶¶ 94-109.)

Defendants have moved to dismiss this first claim in its entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.*fn2 The SNI has moved to intervene in this action, under Fed. R. Civ. P. 24(b), and for leave to file its proposed answer in intervention, in order to defend its sovereignty over the Buffalo Parcel.*fn3

III. DISCUSSION

A. The Government's Motion to Dismiss

Defendants urge that this Court can rule on each argument advanced in support of Plaintiffs' first claim as a matter of law, without referring to the not-yet-filed administrative record. They seek dismissal with respect to each of Plaintiffs' arguments on the grounds that:

(A) Plaintiffs' challenge to the constitutionality of the SNSA is time-barred, they lack standing to challenge the constitutionality of the SNSA, and they fail to state a claim for relief;

(B) Plaintiffs' challenge to the Tribal-State Compact does not fall within the Administrative Procedure Act's ("APA") waiver of sovereign immunity and the associated statute of limitations; and

(C) Plaintiffs are barred by collateral estoppel and res judicata from relitigating the issue of whether the Buffalo Parcel is "Indian land."

In addition, Defendants urge, as they did in CACGEC I and CACGEC II, that the Quiet Title Act ("QTA"), 28 U.S.C. § 2409a, preserves the Government's immunity from suit with regard to Plaintiffs' first claim for relief.

1. Standards of Review

a. Rule 12(b)(1)

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed. 2d 351 (1992).

Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008).

It is "presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed. 2d 695 (1990) (alterations added). The court also may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968, 125 S.Ct. 1727, 161 L.Ed. 2d 616 (2005). Indeed, courts "must" consult factual submissions "if resolution of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001).

"In assessing whether a plaintiff has sufficiently alleged or proffered evidence to support jurisdiction . . . , a district court must review the allegations in the complaint, the undisputed facts, if any, placed before it by the parties, and-if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue-resolve disputed issues of fact . . . ." Id. at 140.

b. Rule 12(b)(6)

Rule 12(b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12 (b)(6). Federal pleading standards are generally not stringent. Rule 8 requires only a short and plain statement of a claim. FED. R. CIV. P. 8(a)(2). But the plain statement must "possess enough heft to show that the pleader is entitled to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955, 1966, 167 L.Ed. 2d 929 (2007) (internal quotation marks and alteration omitted).

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007); Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). However, to withstand a motion to dismiss, a plaintiff's "allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal quotation marks, citations, and alterations omitted). Legal conclusions are not afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2008) ("the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").

When determining the sufficiency of a plaintiff's claim for Rule 12(b)(6) purposes, courts may consider the factual allegations in the plaintiff's complaint, documents attached to the complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be taken, or documents that were either in plaintiff's possession or of which plaintiff had knowledge and relied on in bringing suit. Brass v. American Firm Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also, Cortec Ind., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed. 2d 208 (1992) (documents must be integral to the complaint).

2. The Constitutionality of the Seneca Nation Settlement Act

Plaintiffs first allege that Congress exceeded its powers in enacting the SNSA "by essentially delegating to another sovereign entity, namely the SNI, the power to designate a parcel of land anywhere in a vast area of Western New York that was not then under the governmental control or jurisdiction of the SNI for the creation of a separate sovereign nation." (Docket No. 1 ¶ 5, also ¶ 97.) According to Plaintiffs, Congress has no power to create new Indian land by taking it from existing states (or allowing the SNI to do so) and thereby depriving the State and local governments of sovereignty. (Id. ¶¶ 6-7, 96.) Thus, they conclude, the SNSA is unconstitutional "to the extent that it might be interpreted to create new sovereign Indian land via the restricted fee process . . . ." (Id. ¶ 98, also ¶¶ 68, 108.)

a. Timeliness

Section 1774g of the SNSA provides, in pertinent part, that: Notwithstanding any other provision of law, any action to contest the constitutionality or validity under law of this subchapter shall be barred unless the action is filed on or before the date which is 180 days after November 3, 1990.

Based on this provision, Defendants urge that any challenge to the constitutionality or validity of the SNSA filed after May 2, 1991 is untimely, and Plaintiffs' 2009 lawsuit clearly is time-barred. As Defendants correctly note, the Supreme Court has held that "[a] constitutional claim can become time-barred just as any other claim can." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 292, 103 S.Ct. 1811, 75 L.Ed. 2d 840 (1983); see also, Seneca Nation of Indians v. New York, 206 F. Supp. 2d 448, 534 (W.D.N.Y. 2002) (citing Block and acknowledging that the United States can establish a statute of limitations for a constitutional claim)). This Court agrees that a challenge to the SNSA's constitutionality is time-barred.

But in their opposing memorandum of law, Plaintiffs deny they are questioning the constitutionality of the SNSA. Rather, they say, their challenge is to the NIGC Chairman's January 20, 2009 decision to approve the SNI's second amended gaming ordinance. Plaintiffs urge that the NIGC Chairman "dispensed with the second prong of [the IGRA 'Indian land'] test, i.e., whether the Tribe also exercised governmental power over the land," when he determined that the Buffalo Parcel's restricted fee status renders it "Indian country" within the meaning of 18 U.S.C. 1151, a statute that pertains to criminal jurisdiction. According to Plaintiffs, the NIGC Chairman's 2009 analysis involved an interpretation of the SNSA that, for the first time, raised a ...


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