Yocha Dehe Wintun Nation v. DOI ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2021 Decided July 6, 2021
No. 21-5009
YOCHA DEHE WINTUN NATION,
APPELLANT
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
SCOTTS VALLEY BAND OF POMO INDIANS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01544)
Matthew G. Adams argued the cause for appellant. With
him on the briefs was Samantha R. Caravello.
Patrick R. Bergin argued the cause for appellee Scotts
Valley Band of Pomo Indians. With him on the brief was Tim
Hennessy.
Varu Chilakamarri, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With her on the brief
was William B. Lazarus, Attorney.
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Before: HENDERSON and ROGERS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Yocha Dehe Wintun Nation
appeals the denial of its motion to intervene as a defendant in
litigation brought by the Scotts Valley Band of Pomo Indians
against the United States Department of the Interior. The
underlying litigation concerns the Department’s Indian Lands
Opinion that a parcel on which Scotts Valley would someday
like to develop a casino does not qualify for the “restored-lands
exception” under the Indian Gaming Regulatory Act, 25 U.S.C.
§ 2701 et seq. Yocha Dehe joined others in objecting to Scotts
Valley’s request for the Indian Lands Opinion. The district
court denied Yocha Dehe’s motions for intervention and
reconsideration, ruling that Yocha Dehe lacked standing under
Article III of the U.S. Constitution to intervene. We affirm.
I.
The Indian Gaming Regulatory Act “allows a
federally-recognized Indian tribe to conduct gaming on lands
held in trust by the Secretary of the Interior for the tribe’s
benefit.” Butte Cnty. v. Chaudhuri, 887 F.3d 501, 503 (D.C.
Cir. 2018) (citing 25 U.S.C. §§ 2710(b)(1), 2703(4)(B)).
Generally, this authorization applies only if the lands had been
taken into trust as of October 17, 1988, the Act’s effective date.
See 25 U.S.C. § 2719(a). But the Act permits gaming on lands
that are thereafter taken into trust “as part of . . . the restoration
of lands for an Indian tribe that is restored to Federal
recognition.” Id. § 2719(b)(1)(B)(iii). To qualify for this
“restored-lands exception,” “a tribe that has regained its federal
recognition must prove (among other things) that it has ‘a
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significant historical connection to the land’ at issue.” Butte
Cnty., 887 F.3d at 504 (quoting 25 C.F.R. § 292.12(b)).
Yocha Dehe Wintun Nation (“Yocha Dehe”) is a federally
recognized Indian tribe “comprised of the descendants of
Patwin people native to the Northeastern San Francisco Bay
Area and the lower Sacramento River Valley, an area of
California that includes . . . Solano and Yolo Counties.” Decl.
of Anthony Roberts, Yocha Dehe Chairman ¶ 4. Scotts Valley
Band of Pomo Indians (“Scotts Valley”) is also a federally
recognized Indian tribe, having regained its Federal recognition
in 1991, and most of its members reside in several counties in
northern California.
The underlying litigation concerns an Indian Lands
Opinion. In January 2016, Scotts Valley requested an opinion
from the Interior Department on whether a 128-acre parcel of
land in the Solano County City of Vallejo would be eligible for
tribal gaming under the restored-lands exception. Yocha Dehe
joined others in objecting to the request and submitted
materials to the Department in support of its objections. In
February 2019, the Department issued an Indian Lands
Opinion in which it concluded that Scotts Valley had been
restored to Federal recognition and that the Tribe had
demonstrated the required “modern” and “temporal”
connections to the parcel, but that it failed to demonstrate the
requisite “significant historical connection to the land” as
required by 25 C.F.R. § 292.12(b). Indian Lands Op. at 2 &
n.8, 3.
Scotts Valley then filed a complaint in the district court,
challenging the Department’s decision under the
Administrative Procedure Act. Thereafter, Yocha Dehe filed a
motion to intervene as of right or permissively, seeking to
defend the Department’s decision alongside the government.
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Yocha Dehe explained that it had an interest in preventing
Scotts Valley from ultimately developing a casino in the
vicinity of the San Francisco Bay Area because it would
compete with Yocha Dehe’s gaming facility — the Cache
Creek Casino Resort in Yolo County — whose primary market
is the Bay Area. Specifically, Yocha Dehe feared an adverse
impact on revenues at its Cache Creek gaming facility, which
the Tribe uses “to support its government, which funds a
variety of programs, and which provides jobs, education,
housing and healthcare for [its] citizens.” Roberts Decl. ¶ 4.
Additionally, Yocha Dehe maintained, the proposed casino
would interfere with its duty (shared with two sister Patwin
tribes) to “protect[] sacred sites and cultural resources buried
throughout the county of Solano” — the “ancestral territory of
the Patwin people” — because “the very site Scotts Valley
seeks to develop holds cultural resources affiliated with [Yocha
Dehe’s] Patwin ancestors.” Id. ¶ 2.
The district court denied Yocha Dehe’s motion to
intervene. Scotts Valley Band of Pomo Indians v. U.S. Dep’t of
the Interior, 337 F.R.D. 19, 21 (D.D.C. 2020). It concluded
that injuries from a potential future competitor casino that has
yet to be approved or developed are neither “imminent” nor
“certainly impending.” Id. at 24–25 (internal quotation marks
omitted). Similarly, the court concluded that there was an
insufficient causal link between the alleged threatened injuries
and the challenged agency action, given various other steps that
Scotts Valley would need to successfully complete before it
might operate a casino if the Department’s restored lands
determination were reversed or remanded as a result of this
litigation. See id. at 25. The district court further ruled that
even if Yocha Dehe had standing, it had not made the required
showing under Rule 24(a) of the Federal Rules of Civil
Procedure to intervene as of right because resolution of the case
would not “as a practical matter impair or impede” its ability to
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protect its interests. Id. at 26–27; FED. R. CIV. P. 24(a)(2). The
court denied permissive intervention under Rule 24(b) but
invited Yocha Dehe to submit an amicus brief in support of the
government’s dispositive motion. Scotts Valley, 337 F.R.D. at
27. The district court also denied Yocha Dehe’s motion for
reconsideration, as there had been no intervening change in
controlling law, or clear error, or manifest injustice in its
decision. It further denied Yocha Dehe’s motion to stay the
proceedings pending appeal.
Yocha Dehe filed a notice of appeal and an emergency
motion for a stay pending appeal. This court ordered the
federal appellees to file a response and a merits brief. On
March 4, 2021, this court granted a stay pending appeal.
II.
On appeal, Yocha Dehe contends that the district court
erred in ruling that it was not entitled to intervene as of right
and in denying permissive intervention in the alternative. As a
threshold matter, Yocha Dehe maintains that the district court
reached the wrong conclusion on standing. Our review of the
denial of a motion to intervene as of right is de novo for issues
of law, clear error as to findings of fact, and abuse of discretion
as to issues that “involve a measure of judicial discretion.”
Fund For Animals, Inc. v. Norton, 322 F.3d 728, 732 (D.C. Cir.
2003). Our review on questions of standing is de novo. Defs.
of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir.
2013).
Rule 24(a) of the Federal Rules of Civil Procedure governs
intervention as of right. It provides, as relevant:
On timely motion, the [district] court must permit
anyone to intervene who . . . claims an interest
relating to the property or transaction that is the
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subject of the action, and is so situated that
disposing of the action may as a practical matter
impair or impede the movant’s ability to protect
its interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a)(2). Additionally, to intervene under Rule
24(a), the movant must demonstrate that it has standing under
Article III of the U.S. Constitution. Fund For Animals, 322
F.3d at 731–32.
In seeking reversal, Yocha Dehe relies principally on
Crossroads Grassroots Policy Strategies v. Federal Election
Commission, 788 F.3d 312 (D.C. Cir. 2015). There, this court
explained that “[o]ur cases have generally found a sufficient
injury in fact where a party benefits from agency action, the
action is then challenged in court, and an unfavorable decision
would remove the party’s benefit.” Id. at 317. Applying that
rationale, the court held that Crossroads, as “the beneficiary of
a favorable decision by the Federal Election Commission
[(FEC)],” had standing to intervene in a lawsuit challenging the
Commission’s denial of an administrative complaint against
Crossroads for alleged violations of the Federal Election
Campaign Act. Id. at 314–19. The court reasoned:
Crossroads currently claims a significant benefit
from the FEC’s dismissal order. As long as it is
in place, Crossroads faces no further exposure to
enforcement proceedings before the FEC related
to the complaint, nor is it exposed to civil liability
via private lawsuit. Losing the favorable order
would be a significant injury in fact.
Id. at 318 (internal citation omitted). In view of the nature of
Crossroads’ injury, the court explained that causation and
redressability “rationally follow[].” Id. at 316.
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Yocha Dehe maintains that it has standing to intervene
because it is injured in the same way as Crossroads inasmuch
as it benefits from the Department’s Indian Lands Opinion,
which has been judicially challenged, and an unfavorable
decision would eliminate that benefit. Yocha Dehe describes
the benefit it derives from the Indian Lands Opinion as a shield
against harm to its “governmental, cultural, and economic
interests.” Appellant’s Br. 15. But the circumstances of
Crossroads are not present, and neither Crossroads nor the
opinions on which this court relied there and Yocha Dehe relies
here offers sufficient support for an extension of Crossroads to
these circumstances.
In Crossroads, the FEC’s action shielded Crossroads from
“potential direct regulation” through FEC enforcement
proceedings and “further litigation and liability.” 788 F.3d at
318. With the FEC order in place, the court observed,
“Crossroads faces no further exposure to enforcement
proceedings before the FEC related to the complaint, nor is it
exposed to civil liability via private lawsuit.” Id. And “the
‘threatened loss’ of that favorable action constitute[d] a
‘concrete and imminent injury.’” Id. (quoting Fund For
Animals, 322 F.3d at 733).
Admittedly, that Crossroads was a directly regulated party
— and therefore benefitted directly from the FEC’s action —
was not necessary to the court’s conclusion on standing. In
Fund For Animals v. Norton, on which the court in Crossroads
and Yocha Dehe rely, the agency action involved listing the
argali sheep as “threatened” rather than “endangered” in
Mongolia among other countries and issuing “permits for sport
hunters to import killed argali . . . into the United States as
‘trophies.’” Fund For Animals, 322 F.3d at 730. The agency
action thereby indirectly benefitted the potential intervenor, the
Natural Resources Department of the Ministry of Nature and
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Environment of Mongolia. See id. at 733; Crossroads, 788
F.3d at 318. But the court explained that “while the [Natural
Resources Department] is not itself the object of the challenged
agency action, sheep that Mongolia regards as its national
property and natural resource plainly are its subject.” Fund For
Animals, 322 F.3d at 734. The court then held that the
threatened harm — loss of “tourist dollars associated with
sheep hunting and a consequent reduction in funding for
[Mongolia’s] conservation program,” Crossroads, 788 F.3d at
317 — constituted an imminent injury. Fund For Animals, 322
F.3d at 733. Further, in Military Toxics Project v. EPA, 146
F.3d 948 (D.C. Cir. 1998), on which the court in Crossroads
and Yocha Dehe also rely, “all parties agree[d]” that the
potential intervenor association had standing because some of
its members were directly subject to the challenged rule. Id. at
954. Imminence was therefore a non-issue.
Here, by contrast, neither Yocha Dehe nor its property is
the direct subject of the Indian Lands Opinion. Additionally,
that opinion is too many steps removed from Yocha Dehe’s
claimed threat of future harm from Scotts Valley’s casino
project for that harm to be imminent. On the latter point, if a
restored tribe succeeds in securing a favorable Indian Lands
Opinion, there are several requirements that must be met before
that tribe may lawfully operate a gaming facility on the
approved parcel of land. First, the tribe must successfully
apply to the Department for the parcel to be taken into trust.
See generally 25 C.F.R. pt. 151. That, the Department
explains, requires “additional procedures and distinct
determinations, including an environmental review” to comply
with the National Environmental Policy Act, 42 U.S.C. § 4321et seq. Department Br. 12 n.2; see 42 U.S.C. § 4332(C).
Another step requires the tribe to secure federal approval of a
gaming compact with the State (here, California), which must
be negotiated. See 25 U.S.C. § 2710(d)(1)(C), (d)(3)(A)–(B),
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(d)(8). Additionally, the tribe must obtain federal approval of
a tribal gaming ordinance, and, if the tribe decides to outsource
management of the facility, federal approval of a management
contract. See id. § 2710(d)(1)(A), (d)(9). Scotts Valley
represents that it has yet to complete all these steps.
Together, the indirect relationship between Yocha Dehe
and the Indian Lands Opinion and the as-yet remote nature of
any harm to Yocha Dehe from a Scotts Valley casino, take
Yocha Dehe’s asserted injury outside the scope of Crossroads
and the opinions upon which it relied. As the court recognized
in Crossroads, and contrary to Yocha Dehe’s characterization
of Crossroads’s holding, not every “party seeking to uphold a
favorable ruling . . . suffer[s] a concrete injury in fact.” 788
F.3d at 318. Yocha Dehe does not. Because Yocha Dehe does
not currently satisfy the injury requirement of Article III
standing, it lacks standing to intervene.
Accordingly, we affirm the judgment of the district court
and do not reach Rule 24(a)(2)’s requirements or permissive
intervention. See Defs. of Wildlife, 714 F.3d at 1323, 1327.