Langley v. Edwards ( 1996 )

  •                              UNITED STATES COURT OF APPEALS
                                         for the Fifth Circuit
                                                 No. 95-30091
                                        BERTNEY LANGLEY, et al.
                                         JAY DARDENNE, Senator,
                                                Intervenor Plaintiff-Appellant,
                                       EDWIN W. EDWARDS, et al.,
                               Appeal from the United States District Court
                                  For the Western District of Louisiana
                                               January 12, 1996
    Before DAVIS AND PARKER, Circuit Judges; BUNTON, * District Judge.
             Six members of the Coushatta Tribe of Louisiana and one Louisiana state senator brought
    suit against the Secretary of the Department of the Interior; Edwin W. Edwards, Governor of the
    State of Louisiana; and Harold Monteau, Chairman of the National Indian Gaming Commission,
    seeking declaratory and injunctive relief which would prevent casino gaming on the Coushatta tribal
           District Judge of the Western District of Texas, sitting by desingation.
         Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published
    and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
             The District Court, Honorable Edwin F. Hunter presiding, dismissed Plaintiffs' complaint
    holding that the Plaintiffs did not have standing to challenge the tribal gambling compact entered
    pursuant to the Indian Gaming Regulatory Act ("IGRA"). We think the District Court was correct.
             We review de novo a District Court's standing determination, employing an approach that,
    in practice, differs little from that used to review mo tions to dismiss under Federal Rule of Civil
    Procedure 12(b)(6). In conducting our review, we are obliged to accept as true all material
    allegations of the complaint, and construe the complaint in favor of the complaining party. Warth v.
    422 U.S. 490
    , 501. The issue here is whether Plaintiffs have standing to pursue their claim
    in federal court under the IGRA. Standing is the determination of whether a specific person is the
    proper party to bring a particular matter to the Court for adjudication. Erwin Chemerinsky, Federal
    Jurisdiction § 2.3 at 48 (1989).
             The IGRA was passed to establish a statutory framework for the regulation of Indian gaming.
    25 U.S.C. §§ 2701-2721. Specifically, the Act provides that:
             Indian tribes have the exclusive right to regulate gaming activity on Indian lands if
             gaming activity is not specifically prohibited by Federal law and is conducted within
             a State which does not, as a matter of criminal law and public policy, prohibit such
             gaming activity.
    25 U.S.C. § 2701(5).
             For a party to sue for declaratory and injunctive relief on the grounds that the Secretary's
    decision to place property into trust for the purpose of gaming was arbitrary and contrary to law and
    alleging that the State of Louisiana was without the statutory or legal authority to enter into the
    gaming compact, the party must first have legal standing. For the Appellants to have standing, they
    must meet three requirements:
             1) the plaintiff must have suffered an 'injury in fact' --an invasion of a legally
             protected interest--and such injury must be concrete and particularized, and actual or
             imminent as opposed to merely hypothetical or conjectural;
             2) there must be a causal connection between the injury and the conduct of which the
             plaintiff complains, that is, the injury must be 'fairly traceable' to the challenged action
             of the defendant and not the result of the actions of some third party; and
            3) it must be likely, rather than merely speculative, that the injury will be redressed
            by a favorable decision.
    Lujan v. Defenders of Wildlife, -- U.S. --, --, 
    112 S. Ct. 2130
    , 2136 (1992).
            The Appellants can be grouped into two categories for determining standing. The six
    members of the Coushatta Tribe are one class of Appellants. Louisiana State Senator Jay Dardenne
    is a separate class. The tribe members will be discussed first.
                                           A. The Tribal Appellants
            In Willis v. Fordice, No. 94-60299, slip op. 3, (5th Cir. 1995), we held that individual tribal
    members who disagree with the tribe's decision to bring gaming to the reservation do not have
    standing to assert his or her claims in federal court. The appellant in Willis alleged that the opening
    of a casino on tribal lands would "cause damage to his tribal homeland by increasing crime and
    altering the community 'in a manner hostile to his traditional and religious beliefs.'" Further, appellant
    claimed that the casino would attract competitors to threaten his Indian novelty shop. Like Willis,
    the Appellant tribal members alleged that the opening of the casino on tribal lands would result in
    a"diminution of the aesthetics of the tribal homeland with a threat to the continued viability of their
    cultural heritage." This alleged injury, like that in Willis, does not meet the Lujan injury requirement.
    The injury Appellants claim is not a direct economic injury as it was in the cases that have allowed
    individual t ribal members to litigate claims under the IGRA. See United States Ex Rel. Mosay v.
    Buffalo Bros. Mgmt. 
    20 F.3d 739
     (7th Cir. 1995), cert denied, 
    115 S. Ct. 185
     (1994); Maxam v.
    Lower Sioux Indian Comm., 
    829 F. Supp. 277
     (D. Mn 1993); Ross v. Flandreau Santee Sioux Tribe,
    809 F. Supp. 738
     (D. S.D. 1992). Furthermore, insomuch as t he Appellants allege a "procedural
    injury" as a result of not having gaming established on the reservation in accord with the procedures
    of the IGRA, the presence of a "procedural injury" will not cure the absence of a direct injury. See
    Lujan 112 S.Ct. at 2142. Because the tribal Appellants have not satisfied Willis' particularized harm
    requirement nor established that they have a legally pro tected right to be free from gambling, and
    Appellants have not met the first prong of the Lujan test, it is this Court's opinion that the tribal
    Appellants lack standing to pursue their action.
                                        B. Louisiana State Senator
            State senator Jay Dardenne intervened in this action pursuant to Rule 24 of the Federal Rules
    of Civil Procedure. It is unclear from the Magistrate Judge's order granting intervention whether
    Dardenne was allowed to intervene as a matter of right, or under the permissive intervention rules.
    In any event, an intervenor may not continue a suit in the absence of the original party without
    showing that he fulfills the standing requirements of Article III. Rohm & Hass Texas, Inc. v. Ortiz
    Bros. Insulation, Inc., 
    32 F.3d 205
    , 208 n.6 (5th Cir. 1994).
            Senator Dardenne argues that he has standing to maintain this suit because it is necessary to
    protect the effectiveness of his right to vote in the state legislature on whether to permit gaming at
    the casino site. State legislators have standing to challenge official actions in certain limited
    circumstances. Korioth v. Briscoe, 
    523 F.2d 1271
    , 1277 (5th Cir. 1975). For example, a legislator
    can sue on the grounds that his effectiveness as an elected representative has been diminished.
    Coleman v. Miller 
    307 U.S. 433
     (1939). However, the refusal of another branch of government to
    follow law that was passed by a legislator does not qualify as the type of "loss of effectiveness"
    required for standing. Chiles v. Thornburgh, 
    865 F.2d 1197
    , 1205 (11th Cir. 1989). Senator
    Dardenne's interest in the enforcement of Louisiana law is not enhanced because he helped pass the
    law. In fact, his interest is "indistinguishable from that of any other citizen." Harrington v.
    528 F.2d 455
    , 459 (4th Cir. 1975). Standing cannot be based on an interest which is
    held in common by all citizens of the state. See Schlesinger v. Reservists Committee To Stop the
    418 U.S. 208
    , 220 (1974). For these reasons, we do not think Senator Dardenne has Article
    III standing.
            The District Court's order dismissing Appellants' complaint is hereby affirmed.