Lac Du Flambeau Band v. Norton, Gale , 422 F.3d 490 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3571
LAC DU FLAMBEAU BAND OF
LAKE SUPERIOR CHIPPEWA INDIANS,
Plaintiff-Appellant,
v.
GALE NORTON and UNITED STATES
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,
and
HO-CHUNK NATION,
Intervenor-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03 C 588—Barbara B. Crabb, Chief Judge.
____________
ARGUED MARCH 31, 2005—DECIDED SEPTEMBER 1, 2005
____________
Before FLAUM, Chief Judge, and POSNER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. The Indian Gaming Regulatory
Act (“IGRA”), 25 U.S.C. §§ 2701-2721, governs gambling
conducted by Indian tribes. The IGRA allows tribes to
operate casinos on their reservations or on lands held in
trust for their benefit by the Secretary of the Interior (“the
2 No. 04-3571
Secretary”) only if conducted pursuant to an agreement
between the tribe and the state where the proposed casino
will be located. 25 U.S.C. § 2710(d)(1). The Secretary
must independently approve the agreement—known as
a “Tribal-State compact”—for gaming under that compact to
be lawful. § 2710(d)(1)(C), (d)(3)(B). For several years, the
Ho-Chunk Nation has operated a number of casinos
pursuant to a compact with Wisconsin. In 2003, Ho-Chunk
negotiated a new compact with the State authorizing it to
open additional casinos. The amended compact also appears
on its face to disadvantage any other tribe who might seek
to operate casinos in Wisconsin. The Secretary did not
comment on the compact and, because the IGRA equates 45
days of silence with approval, the new agreement took effect
by operation of law. See § 2710(d)(8)(C).
The Lac du Flambeau Band of Lake Superior Chippewa
Indians (“LDF”), another tribe in Wisconsin, filed this
suit under the Administrative Procedures Act (“APA”)
against the Secretary,1 challenging her decision to permit
the amended compact to take effect. After Ho-Chunk
intervened, it and the Secretary moved to dismiss the
suit. The district court granted their motions, holding
that LDF lacked standing and that the Secretary’s action
was not reviewable under the APA. The court also con-
cluded that it was required to dismiss the case because Ho-
Chunk was a necessary and indispensable party which,
because of its sovereign immunity, could not be joined
as a defendant. LDF appeals. For the reasons stated herein,
we affirm.
1
LDF’s amended complaint names the Secretary and the
Department of the Interior as defendants. Because their positions
merge in this appeal, we refer to them collectively as
the Secretary.
No. 04-3571 3
I. Background
A. The IGRA
Before turning to the pleadings, we briefly outline the
IGRA’s statutory scheme. The IGRA regulates gaming
conducted by Indian tribes on their reservations or on lands
held in trust for their benefit by the Secretary. The Act
divides all gaming into three classes, regulating each class
to varying degrees. 25 U.S.C. §§ 2703(6)-(8), 2710. This case
focuses on Class III gaming, the most heavily regulated of
the classes, which includes casinos. Id. The Act provides
that “Class III gaming activities shall be lawful on Indian
lands only if such activities are . . . conducted in confor-
mance with a Tribal-State compact entered into by the
Indian tribe and the State . . . that is in effect.”
§ 2710(d)(1)(C). A Tribal-State compact “shall take effect
only when notice of approval by the Secretary of such
compact has been published by the Secretary.”
§ 2710(d)(3)(B). Thus, Class III gaming is lawful only if
conducted under a compact approved by both the host state
and the Secretary.
The IGRA imposes an additional layer of restrictions
when a tribe seeks to conduct Class III gaming on lands
that are neither within nor contiguous to the boundaries of
its reservation. See § 2719(a)(1). The Act generally prohibits
such “off-reservation” gaming if it would be “conducted on
lands acquired by the Secretary in trust for the benefit of an
Indian tribe after October 17, 1988.” § 2719(a). One excep-
tion to this ban holds if:
the Secretary . . . determines that a gaming estab-
lishment on newly acquired lands would be in the
best interest of the Indian tribe and its members,
and would not be detrimental to the surrounding
community, but only if the Governor of the State in
which the gaming activity is to be conducted concurs
in the Secretary’s determination.
4 No. 04-3571
§ 2719(b)(1)(A). Accordingly, the Act contemplates that both
the Secretary and the host state will play significant roles
in regulating Indian gaming.
B. Factual Allegations
Because this is an appeal from a dismissal under Fed-
eral Rule of Civil Procedure 12(b), we summarize the
facts as alleged by LDF’s amended complaint. The Ho-
Chunk Nation is a federally recognized tribe residing in
Wisconsin. For several years, it has operated a number
of casinos in that state pursuant to a Tribal-State com-
pact. In 2003, it negotiated an amendment to the com-
pact with Wisconsin that purports to authorize it to operate
a total of nine Class III gaming facilities within the State.
This case focuses on ¶ 16 of the final version of those
amendments, signed on June 5, 2003. Paragraph 16
provides that if any tribe other than Ho-Chunk submits an
application to the Secretary under 25 U.S.C. § 2719(b)(1)(A)
to conduct gaming “on off-reservation trust lands acquired
by the United States after January 1, 2003,” and the
Secretary determines that the establishment would be in
the best interest of the tribe and not detrimental to the
community:
the State shall send a written notice . . . to [Ho-Chunk]
that it has received a submission from the Secretary
to concur in the Determination. . . . [T]he State shall
not concur in the Determination if [Ho-Chunk] has
notified . . . the State, within sixty (60) days of re-
ceipt of the Notice, that the operation of the Estab-
lishment will cause a substantial reduction . . . of Class
III gaming revenues at any of [Ho-Chunk’s] existing
gaming facilities, unless the State has entered into a
binding indemnification agreement with [Ho-Chunk] to
compensate it for the Reduction or the mandatory
negotiations required herein have concluded and the
No. 04-3571 5
binding arbitration procedures required herein have
commenced.
After executing the amended compact, Ho-Chunk and
Wisconsin presented it to the Secretary for approval.
LDF is a federally recognized Indian tribe residing in
Wisconsin. It currently has an application pending with the
Secretary under § 2719(b)(1)(A) to conduct Class III gaming
at a site outside its reservation. Outraged at what it
perceived to be the anti-competitive nature of ¶ 16, LDF
urged the Secretary to reject that agreement. Several other
tribes in Wisconsin joined in LDF’s protest. Nevertheless,
the Secretary took no position on the validity of the
amended compact between Ho-Chunk and Wisconsin. The
IGRA provides that “[i]f 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 this chapter.”
§ 2710(d)(8)(C). Accordingly, forty-five days after the
amended compact was submitted to the Secretary, it was
deemed approved by operation of law.
LDF then filed this suit against the Secretary, relying
on the APA as the sole basis for subject matter jurisdiction.
Plaintiff alleges that the Secretary violated her fiduciary
duty to treat all Indian tribes equally by allowing the
compact to take effect. Specifically, LDF’s amended com-
plaint states that the Secretary exceeded her authority “by
granting the Ho-Chunk an affirmative right to be free from
economic competition.” It seeks as a remedy, among other
things, “an order declaring Paragraph 16 void.”
Ho-Chunk, which was not named as a defendant, moved
to intervene for the limited purpose of seeking to dismiss
the suit. The district court concluded that Ho-Chunk had an
interest in defending the compact and allowed the interven-
6 No. 04-3571
tion. Ho-Chunk and the Secretary then moved to dismiss,
and the court granted their motions on three grounds. First,
the district court held that LDF had not alleged an actual
or imminent injury, and therefore lacked standing to
challenge the Secretary’s action. It reasoned that one of
several contingencies could occur to prevent LDF from
being harmed by the anti-competitive provisions of the
amended compact. Second, the court held that the APA’s
grant of judicial review did not extend to the Secretary’s
passive approval of the compact. Third, it concluded that
because LDF sought to invalidate a portion of the compact,
Ho-Chunk, as a signatory to that agreement, was a neces-
sary and indispensable party. Because Ho-Chunk enjoys
sovereign immunity, however, the district court concluded
that it could not be joined as a defendant. Accordingly, the
court held that dismissal was required by Federal Rule of
Civil Procedure 19(b). LDF appeals.
II. Discussion
We review the district court’s dismissal of LDF’s amended
complaint de novo. Centers v. Centennial Mortgage Co., 398
F.3d 930, 933 (7th Cir. 2005). “A court may dismiss a
complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with
the allegations.” Hishon v. King & Spalding, 467 U.S. 69,
73 (1984).
Appellees argue that dismissal was proper because: (i)
LDF lacks standing; (ii) the APA does not afford judicial
review of the Secretary’s action; and (iii) Ho-Chunk is a
necessary and indispensable party which cannot be joined
due to its sovereign immunity. As we explain below, LDF
has standing to bring this suit. We hold, however, that
plaintiff has forfeited any claim that the APA affords
judicial review of the Secretary’s decision. Accordingly,
we do not address whether the suit must be dismissed
under Civil Rule 19(b).
No. 04-3571 7
A. Standing
The requirement of standing derives from the recogni-
tion that Article III of the United States Constitution
extends the “judicial Power” only to “Cases” and “Controver-
sies.” U.S. Const. art. III, § 2. See Warth v. Seldin, 422 U.S.
490, 498 (1975) (“[S]tanding imports justiciability: whether
the plaintiff has made out a ‘case or controversy’ between
himself and the defendant within the meaning of Art. III.”).
“In essence the question of standing is whether the litigant
is entitled to have the court decide the merits of the dispute
or of particular issues.” Id. “[T]he irreducible constitutional
minimum of standing contains three elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which
is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct complained of—the injury has to be
fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent
action of some third party not before the court. Third, it
must be likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Id. at 560-61 (internal citations and quotations omitted).
“The party invoking federal jurisdiction bears the burden of
establishing these elements.” Id. at 561. “[E]ach element
must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive
stages of the litigation.” Id. “At the pleading stage, general
factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we
‘presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.’ ” Id. (quoting
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
8 No. 04-3571
LDF alleges that the Secretary harmed it by allowing
the anti-competitive provisions of the Tribal-State com-
pact to take effect. Plaintiff, which currently has an applica-
tion pending with the Secretary to open a casino outside of
its reservation, can do so lawfully only if that application is
approved by both the Secretary and Wisconsin. 25 U.S.C. §
2719(b)(1)(A). Plaintiff asserts that by allowing the compact
to take effect, the Secretary has given Wisconsin a strong
incentive to reject its application. For if Wisconsin approves
LDF’s application, the compact obliges the State to pay Ho-
Chunk for the revenues Ho-Chunk loses to the competing
casino. LDF seeks a declaration that ¶ 16 of the compact,
the indemnification provision, is void. Appellees argue that
LDF’s allegations satisfy none of the elements of standing.
We consider the elements in turn.
1. Injury in Fact
The Secretary argues that LDF lacks standing because it
has not adequately pleaded an injury in fact. Defendant
asserts that any injury arising out of ¶ 16 of the amended
compact is not particular to LDF because it will affect
all Indian tribes in Wisconsin other than Ho-Chunk equally.
Defendant’s argument is based on a flawed understanding
of the particularity requirement. To confer standing, an
injury must be “particularized,” meaning that it “must
affect the plaintiff in a personal and individual way.”
Defenders of Wildlife, 504 U.S. at 560 n.1. In other words,
“a plaintiff raising only a generally available grievance
about government—claiming only harm to his and every
citizen’s interest in proper application of the Constitu-
tion and laws, and seeking relief that no more directly
and tangibly benefits him than it does the public at
large—does not state an Article III case or controversy.” Id.
at 573-74. But the particularity requirement does not mean,
contrary to the Secretary’s interpretation, that a plaintiff
No. 04-3571 9
lacks standing merely because it asserts an injury that is
shared by many people. Fed. Election Comm’n v. Akins, 524
U.S. 11, 23-25 (1998). “Often the fact that an interest is
abstract and the fact that it is widely shared go hand in
hand. But their association is not invariable, and where a
harm is concrete, though widely shared, the [Supreme]
Court has found ‘injury in fact.’ ” Id. at 24. See also United
States v. Students Challenging Regulatory Agency Proce-
dures (SCRAP), 412 U.S. 669, 687-88 (1973) (“[S]tanding is
not to be denied simply because many people suffer the
same injury. . . . To deny standing to persons who are in
fact injured simply because many others are also injured,
would mean that the most injurious and widespread
Government actions could be questioned by nobody.”); cf.
Defenders of Wildlife, 504 U.S. at 572 (finding no standing
but distinguishing a hypothetical case “where concrete
injury has been suffered by many persons”). LDF alleges
that the Secretary’s passive approval of the compact places
it at a competitive disadvantage when seeking state
approval for off-reservation gaming. This clearly amounts
to a concrete injury. See Clinton v. City of New York, 524
U.S. 417, 433 (1998) (quoting Kenneth Davis & Richard
Pierce, Administrative Law Treatise 13-14 (3d ed. 1994))
(“The [Supreme] Court routinely recognizes probable
economic injury resulting from [government actions] that
alter competitive conditions as sufficient to satisfy the
[Article III ‘injury-in-fact’ requirement].”). That this injury
may be shared by other tribes in Wisconsin does not
undermine LDF’s standing. We therefore reject the Secre-
tary’s particularity argument.2
2
Plotkin v. Ryan, 239 F.3d 882 (7th Cir. 2001), relied upon by the
Secretary, does not compel the opposite conclusion. While some
language in that opinion might be read as supporting
the Secretary’s view of the particularity requirement, Plotkin
(continued...)
10 No. 04-3571
Next, appellees argue that LDF has pleaded an injury
that is at most conjectural, not actual or imminent. The
Secretary and Ho-Chunk point to a number of contingencies
that, as they see it, could prevent LDF from being harmed
by the Tribal-State compact. For example, they argue that
the compact could harm LDF only if Wisconsin decides to
reject plaintiff’s application for off-reservation gaming
because of the State’s duty to indemnify Ho-Chunk under
that agreement. Appellees posit that Wisconsin might reject
LDF’s application for reasons unrelated to the compact,
thereby averting the harm to plaintiff.
This argument misperceives the nature of the injury for
standing purposes.
When the government erects a barrier that makes it
more difficult for members of one group to obtain a
benefit than it is for members of another group, a
member of the former group seeking to challenge the
barrier need not allege that he would have obtained the
benefit but for the barrier in order to establish stand-
ing. The “injury in fact” in an equal protection case of
this variety is the denial of equal treatment resulting
from the imposition of the barrier, not the ultimate
inability to obtain the benefit.
Northeastern Fla. Chapter of Associated Gen. Contractors of
Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). In
2
(...continued)
did not deviate from the Supreme Court’s repeated holdings that a
plaintiff does not lack standing merely because he shares an
injury with others. A fair reading of Plotkin reveals that we
rejected standing there not solely because the injury was
shared widely, but also because of its speculative nature. See
id. at 886 (“There are necessarily many outside unknown in-
fluences affecting all aspects of these standing concepts ad-
vanced by plaintiffs.”).
No. 04-3571 11
other words, “the ‘injury in fact’ is the inability to compete
on an equal footing.” Id.; see also Regents of the Univ. of
Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (“[E]ven if
Bakke had been unable to prove that he would have been
admitted in the absence of the special program, it would not
follow that he lacked standing. . . . The trial court found [a
sufficient injury in fact], apart from the failure to be
admitted, in the University’s decision not to permit Bakke
to compete for all 100 places in the class, simply because of
his race.”). This analysis, moreover, is not limited to cases
alleging a violation of the Equal Protection Clause. The
Supreme Court has applied this approach in a case raising
a Presentment Clause challenge, see City of New York, 524
U.S. at 433 n.22, and we have done the same in a case
alleging a First Amendment violation, see Tarpley v. Jeffers,
96 F.3d 921, 923 (7th Cir. 1996). Whether to apply this
analysis depends on the nature of the alleged injury, not the
source of the asserted right. Cf. Defenders of Wildlife, 504
U.S. at 576 (“[T]here is absolutely no basis for making the
Article III inquiry turn on the source of the asserted
right.”). Because LDF alleges an injury akin to that raised
by the plaintiffs in Associated General Contractors—the
inability to compete on equal footing—that analysis controls
here.
Under that approach, it is clear that a decision by Wiscon-
sin to reject LDF’s application for reasons unrelated to the
compact would not avert the harm alleged by plaintiff. The
harm is not LDF’s “inability to obtain the benefit,” here,
approval of its off-reservation gaming application. Rather,
the harm lies in “the denial of equal treatment,” in this
case, being forced to seek approval under the cloud created
by the amended compact. The possibility that Wisconsin
might reject LDF’s application for legitimate reasons is
therefore irrelevant to the standing analysis.
Appellees also argue that the compact is unlikely to harm
LDF because there is no guarantee that the Secretary will
12 No. 04-3571
approve LDF’s application at all, much less anytime soon.
Until the Secretary approves that application, defendant
and Ho-Chunk assert that a possible rejection by Wisconsin
is moot. See 25 U.S.C. § 2719(b)(1)(A) (requiring approval of
both the Secretary and the host state).
LDF does not argue that the compact between Ho-Chunk
and Wisconsin has tainted the Secretary’s consideration of
plaintiff’s pending application. Thus, a denial of LDF’s
application by the Secretary, unlike a denial by Wisconsin,
would prevent LDF from having to compete on an unlevel
playing field. Nevertheless, we conclude that on a motion to
dismiss, the chance that the Secretary might deny LDF’s
application does not render plaintiff’s injury speculative.
First, we reiterate that “[e]ach element [of standing] must
be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of
litigation.” Defenders of Wildlife, 504 U.S. at 561. A motion
to dismiss for lack of standing should not be granted unless
there are no set of facts consistent with the complaint’s
allegations that could establish standing. See Hishon, 467
U.S. at 73. Nothing in the amended complaint is inconsis-
tent with the Secretary’s prompt approval of LDF’s applica-
tion. While its pleading is silent on the point, LDF’s appel-
late brief asserts that it filed its application with the
Secretary in 2001. See Highsmith v. Chrysler Credit Corp.,
18 F.3d 434, 439 (7th Cir. 1994) (when reviewing the grant
of a motion to dismiss, “we will consider new factual
allegations raised for the first time on appeal provided they
are consistent with the complaint.”). It is fully consistent
with the complaint’s allegations to conclude that the
Secretary has had ample time to review the application and
will approve it shortly.
Second, the present impact of a future though uncertain
harm may establish injury in fact for standing purposes.
No. 04-3571 13
For example, in Clinton v. City of New York, 524 U.S. 417(1998), the President had exercised a line item veto to
cancel a section of the Balanced Budget Act of 1997. If valid,
the veto would have subjected the State of New York to
potential liability to repay subsidies it had received from
the federal government. The legal regime left in place
following the veto imposed liability on the State, but vested
in the Department of Health and Human Services (“HHS”)
the discretion to waive that liability. If HHS refused to
waive the liability, the State would have required the City
of New York, the ultimate recipient of the subsidies, to
repay them. The City sued the President, claiming that the
exercise of the line item veto violated the Presentment
Clause.
The President argued among other things that the City
lacked standing to challenge the line item veto because
HHS had yet to act on the State’s pending waiver request.
The Court disagreed: “[t]he State now has a multibillion
dollar contingent liability that had been eliminated
by . . . the Balanced Budget Act of 1997. . . . [T]he State,
and [the City] ‘suffered an immediate, concrete injury
the moment that the President used the Line Item Veto
to cancel’ ” the relevant section of the Balanced Budget
Act. Id. at 430 (quoting district court). “The revival of a
substantial contingent liability immediately and directly
affects the borrowing power, financial strength, and fiscal
planning of the potential obligor.” Id. at 431.
We applied similar reasoning in rejecting a challenge
to the plaintiffs’ standing in Alliant Energy Corp. v. Bie, 277
F.3d 916 (7th Cir. 2002). There, an electric utility and its
parent company raised Commerce and Equal Protection
Clause challenges to statutes regulating the corporate
structure of electric utilities in Wisconsin. Id. at 917. One
of the contested regulations prohibited electric utility
holding companies from selling 10% or more of their stock
in a Wisconsin utility to a single person without prior
14 No. 04-3571
administrative approval. The parent company’s pleadings
alleged that it would have sold more than 10% of the
subsidiary’s stock but for the challenged regulation, but did
not identify a potential buyer or the price at which it
intended to sell the stock. The district court dismissed the
complaint for lack of standing, concluding that these vague
allegations pleaded only a conjectural injury.
We reversed, finding it “easy to imagine facts consistent
with this complaint . . . that will show plaintiffs’ standing,
and no more is required.” Id. at 920. We reasoned that the
plaintiff could establish a concrete injury even if it were
unable to identify any potential buyers of its stock. “The
10% . . . limit[ ] interfere[s] with the competition for capital.
An economist would say that [it] deprive[s] the firm of an
option value—that is, of the power to sell a 10% bloc . . . in
the event that step should prove to be profitable.” Id. at
921. Moreover, the option to “sell 10% of one’s stock . . . has
a positive value even if no one wants to buy today.” Id. “A
firm with the ability to sell such blocs in the future, when
conditions change, is worth more in the market today than
a firm hamstrung by laws cutting off its opportunities. This
difference in value supplies standing.” Id.Likewise, it is easy to conceive of facts consistent with the
complaint showing that LDF is harmed by the compact now,
even if the Secretary’s approval is uncertain. Plaintiff
contends that it must court potential investors years in
advance to make its planned casino a reality. Recognizing
that the compact gives Wisconsin an incentive to reject
LDF’s application, potential lenders will see LDF’s venture
as a more risky, and therefore less attractive, investment.
LDF will be forced to compensate for this risk by offering a
higher rate of return. The increased cost of capital harms
LDF now, whether or not the Secretary approves plaintiff’s
application.
Appellees also postulate that even if the Secretary
approves LDF’s application, the casino operated pursuant
No. 04-3571 15
to that approval might be located far enough from Ho-
Chunk’s existing casinos that it would not compete with any
of them. If so, Wisconsin would have no duty to indemnify
Ho-Chunk and therefore no incentive to reject LDF’s
application unfairly. Or even if LDF’s casino might compete
with Ho-Chunk’s facilities, the Secretary asserts that Ho-
Chunk might choose not to exercise its rights under the
compact. Alternatively, defendant posits that Wisconsin
might elect to indemnify Ho-Chunk against any losses
caused by the operation of LDF’s competing casino.
None of these possibilities show that LDF has failed to
plead an actual or imminent injury. Ho-Chunk admits that
it operates six casinos within Wisconsin’s borders. The
amended compact authorizes Ho-Chunk to open three more,
meaning that intervenor may be operating as many as nine
facilities in the State by the time LDF presents its applica-
tion to Wisconsin. Although the amended complaint and its
attachments do not plead the precise location of Ho-Chunk’s
current or planned casinos, the compact requires Ho-Chunk
to spread its facilities across six counties. Economic self-
interest, moreover, might push Ho-Chunk to avoid cluster-
ing its casinos too tightly in any one location to prevent
them from competing among themselves. It is therefore
possible that Ho-Chunk’s network of casinos extends
throughout a substantial portion of the State, and that a
new LDF casino would compete with one of them. Indeed,
Ho-Chunk almost certainly understands this reality, and we
therefore find it highly implausible that it would forego its
right to be indemnified against lost revenues in the face of a
pending application by another tribe.3 And while Wisconsin
might choose to indemnify Ho-Chunk for revenues lost to a
competing LDF casino, we find it unlikely that the State
3
We find it telling, moreover, that Ho-Chunk never suggests that
it would waive its right to indemnification; only the Secretary
presses this argument.
16 No. 04-3571
would do so without exacting some concession from LDF.
More importantly, none of these contingencies shows that
actual or imminent harm to LDF is inconsistent with the
pleadings. Nor does our independent review of the amended
complaint reveal that LDF has pleaded itself out of court on
this element. Accordingly, LDF has sufficiently alleged an
injury in fact.
2. Causation
Defendant and intervenor also contend that LDF lacks
standing because it alleges a harm that was not caused
by the Secretary. The causation element of standing
demands that the injury be “fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e] result
[of] the independent action of some third party not before
the court.” Defenders of Wildlife, 504 U.S. at 560-61 (quot-
ing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42
(1976)). Appellees assert that plaintiff has not met this
standard because Wisconsin and Ho-Chunk, not the
Secretary, caused any injury suffered by LDF by negotiating
the compact. Because neither Wisconsin nor Ho-Chunk are
named or could be joined as defendants, appellees assert
that plaintiff cannot establish causation.
While the Secretary may not be the only party responsible
for the injury alleged here, a plaintiff does not lack standing
merely because the defendant is one of several persons who
caused the harm. See Warth, 422 U.S. at 504-05; Defenders
of Wildlife, 504 U.S. at 562. That circumstance may make
it more difficult, but not impossible, to establish causation.
“When . . . a plaintiff’s asserted injury arises from the
government’s” failure to regulate someone other than the
plaintiff, causation “ordinarily hinge[s] on the response of
the . . . regulable[ ] third party to the government . . .
inaction.” Id. In such a case, causation depends on “choices
made by independent actors not before the courts . . . and it
No. 04-3571 17
becomes the burden of the plaintiff[ ] to adduce facts
showing that those choices have been or will be made in
such a manner as to produce causation.” Id. (internal
citations and quotation omitted). LDF easily clears that
threshold. In this case, the regulable third parties—Ho-
Chunk and Wisconsin— have already made the choices that
give rise to the potential harm by negotiating the compact.
The Secretary’s silent approval caused that potential to
become a reality because, but for her approval, the compact
would have no effect. See 25 U.S.C. § 2710(d)(3)(B).
Next, defendant and intervenor point out that the
Secretary never affirmatively ruled on the validity of the
compact, meaning that it was approved “only to the ex-
tent [it was] consistent with the provisions of” the IGRA. §
2710(d)(8)(C). They argue that nonaction can approve only
a lawful compact, and that the Secretary’s silence, by
definition, could not have harmed LDF.
We disagree. In this instance, the Secretary’s silence
was the functional equivalent of an affirmative approval. By
saying nothing, the Secretary has allowed the parties to the
compact to behave as if it were lawful in all respects. Had
the Secretary rejected the compact, it would be clear to Ho-
Chunk, Wisconsin, and potential investors in LDF’s pro-
posed casino that the anti-competitive provisions of the
agreement have no legal effect. That § 2710(d)(8)(C) may
have prevented the offending provisions from becoming
effective in some academic sense is a far cry from an explicit
rejection by the Secretary. Because the Secretary’s silence
enabled the injury, it is fairly traceable to her.
3. Redressability
The final challenge to LDF’s standing turns on the
element of redressability. Redressability “examines the
causal connection between the alleged injury and the
judicial relief requested.” Allen v. Wright, 468 U.S. 737, 753
18 No. 04-3571
n.19 (1984). On a motion to dismiss, a plaintiff need only
plead “that there is a ‘substantial likelihood’ that the relief
requested will redress the injury claimed.” Duke Power Co.
v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n.20
(1978).
The relief requested by LDF includes “[a]n order declaring
Paragraph 16 void . . . thereby severing it from the Ho-
Chunk compact.” Ho-Chunk argues that this relief is
not a remedy that the IGRA affords and, because it
cannot be granted, will not redress the alleged injury.
Instead, intervenor contends, the IGRA authorizes the
district court at most to remand the case to the Secretary
with the instruction that she reconsider whether to approve
the compact under the standards set forth in the statute.
Ho-Chunk predicts that the Secretary, applying those
standards, inevitably would reapprove the com-
pact, affording LDF no relief.
This argument confuses standing with the merits. See
ASARCO Inc. v. Kadish, 490 U.S. 605, 624 (1989) (quoting
Warth, 422 U.S. at 500) (standing is a threshold inquiry
that “in no way depends upon the merits of the [claim]”).
Ho-Chunk’s position relies upon one particular interpreta-
tion of the IGRA. But “the Article III requirement of
remediable injury in fact . . . (except with regard to entirely
frivolous claims) has nothing to do with the text of the
statute relied upon.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 97 n.2 (1998). Ho-Chunk does not assert, and
we do not conclude, that LDF’s position regarding the
available remedies is frivolous. Redressability thus depends
upon the relief requested, not the relief LDF could prove it
was entitled to on the merits. Here, there is a substantial
likelihood that the requested relief would alleviate the
harm. A judicial declaration voiding ¶ 16 of the amended
compact would terminate Wisconsin’s duties under that
provision. With no duty to indemnify Ho-Chunk, Wisconsin
would have no incentive to reject LDF’s application un-
No. 04-3571 19
fairly. Accordingly, LDF has pleaded a redressable injury,
and it has standing to bring this suit.
B. Reviewability Under the APA
Generally, the APA confers upon persons “aggrieved by
agency action” the right to seek judicial review of that
action. 5 U.S.C. § 702. The right of judicial review does not
extend, however, to an action that is “committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). The Secretary
argues that the IGRA commits to its discretion the decision
whether to disapprove a compact, and LDF therefore cannot
challenge that decision via the APA. See 25 U.S.C. §
2710(d)(8)(B) (providing that the Secretary “may disapprove
a compact” under certain circumstances) (emphasis added).
Because LDF relies on the APA as the sole basis for subject
matter jurisdiction in bringing this suit, the Secretary
asserts that the case was properly dismissed.
There may be convincing counterarguments to the Secre-
tary’s position, but LDF fails to make them. Plain-
tiff’s opening brief does not mention § 701(a)(2); its
reply brief states only that the Secretary’s argument on this
point “is flawed and ignores supporting authority.” Neither
of LDF’s briefs meaningfully address whether
the Secretary’s action was “committed to agency discre-
tion by law.” Moreover, as the party invoking the federal
courts’ subject matter jurisdiction, LDF bears the burden of
establishing that the APA authorizes the district court to
entertain this suit. NLFC, Inc. v. Devcom Mid-America,
Inc., 45 F.3d 231, 237 (7th Cir. 1995). By not responding to
the argument that § 701(a)(2) bars judicial review, LDF has
forfeited the point.4 Because plaintiff has not carried its
4
Although a jurisdictional defect cannot be forfeited, jurisdiction
itself may be. See Crestview Vill. Apartments v. U.S. Dep’t of Hous.
(continued...)
20 No. 04-3571
burden of establishing subject matter jurisdiction under the
APA, we must affirm the district court’s dismissal of the
case.
III. Conclusion
Although LDF has standing to bring this suit, it has
forfeited any argument that the Secretary’s actions are
reviewable under the APA. Accordingly, we AFFIRM the
judgment of the district court dismissing LDF’s amended
complaint.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
4
(...continued)
& Urban Dev., 383 F.3d 552, 555 (7th Cir. 2004) (finding that
plaintiff forfeited claim of subject matter jurisdiction by failing to
argue the point on appeal). The reason for this one-way forfeiture
rule is that subject matter jurisdiction defines “the courts’
statutory or constitutional power to adjudicate the case.” United
States v. Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co., 523
U.S. at 89). We cannot exceed this power merely because the
parties fail to bring to our attention a jurisdictional defect. By
contrast, holding that subject matter jurisdiction itself may be
forfeited does not entail exceeding the limits of our power; it
means only that a party may fail to convince us to exercise it.
USCA-02-C-0072—9-1-05