Nation v. United States Dep't of the Interior

1

COMANCHE NATION, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR et al., Defendants.

No. CIV-22-425-G

United States District Court, W.D. Oklahoma

September 30, 2024

ORDER

CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE

Now before the Court are the Motion to Dismiss (Doc. No. 63) and Supplemental Motion to Dismiss (Doc. No. 124) filed by the Federal Defendants.^[1] Plaintiff Comanche Nation has responded (Doc. Nos. 81, 130) and the Federal Defendants have replied (Doc. Nos. 108, 131).

I. Background

Plaintiffs Comanche Nation and Kiowa Tribe filed this action on May 24 2022, raising three claims “to prevent an illegal casino from conducting unlawful gaming within Plaintiffs' reservation” and seeking entry of a temporary restraining order. Compl. (Doc. No. 1) ¶ 1. On June 3, 2022, the Court denied Plaintiffs' request for a temporary restraining order. See Order of June 3, 2022 (Doc. No. 31).

Plaintiffs filed an Amended Complaint (Doc. No. 51) and a motion for preliminary injunctive relief against the FSA Defendants (Doc. No. 52).^[2] Plaintiff Kiowa Tribe then voluntarily dismissed its claims as to all defendants. See Doc. Nos. 117, 118. Following a telephonic status conference with the parties, the Court ordered the defendants to file any supplemental motions regarding the standing of remaining plaintiff Comanche Nation to continue to pursue this action. See Order of Mar. 7, 2023 (Doc. No. 120). The Federal Defendants and the FSA Defendants then each timely filed a supplemental motion to dismiss. See Doc. Nos. 123, 124.

II. The Amended Complaint

Plaintiff Comanche Nation is a federally recognized Indian tribe that operates six or more casinos in southwestern Oklahoma. Am. Compl. ¶ 4. In 1867, through the First Treaty of Medicine Lodge and the Second Treaty of Medicine Lodge, the Kiowa-Comanche-Apache (“KCA”) Reservation was established in southwestern Oklahoma. Id. ¶¶ 22-24.

In 1892, the United States, through “the Jerome Agreement,” “acquired a substantial portion of the KCA Reservation and allotted individual tracts of land to the individual members of the three tribes.” Comanche Nation v. United States, 393 F.Supp.2d 1196, 1200-01 (W.D. Okla. 2005); see Am. Compl. ¶¶ 25-26. In 1901, the 160 acre-parcel of land within the KCA Reservation boundaries that is disputed in this matter was allotted to George Tsalote, a Kiowa Tribe member. Am. Compl. ¶ 28. This tract (the “Tsalote Allotment”) “w[as] held in trust by the United States for the beneficial use of the Indian owner.” Comanche Nation, 393 F.Supp.2d at 1201; see Am. Compl. ¶ 38.

On June 26, 2001, the Tsalote Allotment was deeded to the United States of America in trust for the Fort Sill Apache Tribe of Oklahoma (the “FSA Tribe”). Am. Compl. ¶ 46. “For years, the FSA Tribe held the Tsalote Allotment without attempting to exercise any form of jurisdiction on the land.” Id. ¶ 47.

In April of 2005, the DOI approved the FSA Tribe's Class III Tribal Gaming Compact with the State of Oklahoma. See id. ¶¶ 41-42; id. Ex. 7 (Doc. No. 51-7). In February of 2022, the FSA Tribe announced that it was constructing a casino, called the Warm Springs Casino, on the Tsalote Allotment. Am. Compl. ¶ 47. Comanche Nation, the Kiowa Tribe, and the Kiowa Comanche Apache Intertribal Land Use Committee began investigating how the FSA Tribe could be constructing a casino on the Tsalote Allotment. Id. ¶ 48. Comanche Nation learned that on September 18, 2020, the FSA Tribe had submitted a letter to the National Indian Gaming Commission (“NIGC”) informing the NIGC of its intent to construct and open a new tribal gaming facility on the Tsalote Allotment and requesting a 60-day expedited review pursuant to 25 C.F.R. § 559.2(a)(1). Id. ¶ 49. Upon Comanche Nation's information and belief, the Chair of the NIGC has not responded to that request. Id. ¶ 50.

On April 27, 2022, the Kiowa Comanche Apache Intertribal Land Use Committee

sent a letter to the NIGC, complaining of the Warm Springs Casino and requesting agency action, and supplemented that letter on April 28, 2022. Id. ¶ 51. The NIGC acknowledged receipt of the letter but has done nothing to stop or prevent the opening of the Warm Springs Casino. Id. ¶ 52. The Warm Springs Casino opened June 15, 2022, and offers both Class II and Class III gaming, as defined by the Indian Gaming Regulatory Act. Id. ¶ 53.

III. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

The Federal Defendants assert that Comanche Nation's allegations reflect that the Court lacks subject-matter jurisdiction to hear the claims of the Amended Complaint and, therefore, such claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). Such a facial attack on the pleading's allegations regarding subject-matter jurisdiction “questions the [pleading's] sufficiency and requires the court to accept the allegations as true.” Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009); see also E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001). As the party asserting federal jurisdiction, Comanche Nation bears “the burden of alleging the facts essential to show jurisdiction.” U.S. ex rel. Stone v. Rockwell Int'l Corp., 282 F.3d 787, 797 (10th Cir. 2002) (internal quotation marks omitted).

Citing Federal Rule of Civil Procedure 12(b)(6), the Federal Defendants also seek dismissal of the pleading for failure to state a claim upon which relief can be granted. In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10^th Cir. 2013).

“[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in the pleading, the court discusses the essential elements of each alleged cause of action to better “determine whether [the plaintiff] has set forth a plausible claim.” Id. at 1192.

A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “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 (footnote and citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth; “they must be supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

IV. Count One: Violation of 25 C.F.R. § 151.7

In Count One, raised in the Amended Complaint against Defendants DOI, Newland, and LaCounte (collectively, the “BIA Defendants”), Comanche Nation seeks “a declaration that the Tsalote Allotment is not owned by the FSA Tribe.” Am. Compl. ¶ 66. In support, Comanche Nation alleges that the 2001 transfer of the Tsalote Allotment to the FSA Tribe was invalid due to being undertaken in violation of 25 C.F.R. § 151.7. See id. ¶¶ 60-65 (citing prior version of 25 C.F.R. § 151.8 (now codified with minor amendments at 25 C.F.R. § 151.7)).

That regulation provides in relevant part:

An individual Indian or Tribe may acquire land in trust status on an Indian reservation other than its own only when the governing body of the Tribe having jurisdiction over such reservation consents in writing to the acquisition[.]

25 C.F.R. § 151.7.^[3]

Comanche Nation contends that it is a “Tribe having jurisdiction” over the KCA Reservation and, as such, Comanche Nation's written consent was required prior to the BIA acquiring the Tsalote Allotment in trust for the FSA Tribe. See Am. Compl. ¶ 61. According to Comanche Nation, because it did not provide such consent, the relevant defendants lacked authority to approve the acquisition, and their action should be set aside under the Administrative Procedure Act (“APA”) as arbitrary, capricious, an abuse of discretion, and contrary to law. See id. ¶¶ 63-64; 5 U.S.C. § 706(2). The Federal Defendants seek dismissal of this claim on multiple grounds.

A. Rule 12(b)(1): Standing Under the Administrative Procedure Act

Comanche Nation seeks relief on Count One under the APA, which provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.

As relevant here, the APA prescribes two requirements for the Court's review:

First, the person claiming a right to sue must identify some “agency action” that affects him in the specified fashion; it is judicial review “thereof” to which he is entitled..... When . . . review is sought . . . only under the general review provisions of the APA, the “agency action” in question must be “final agency action.”

Second, the party seeking review under § 702 must show that he has “suffered legal wrong” because of the challenged agency action, or is “adversely affected or aggrieved” by that action “within the meaning of a relevant statute.”

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990) (alteration omitted) (citing 5 U.S.C. §§ 551(13), 702, 704); see also Colo. Farm Bureau Fed'n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000) (“Plaintiffs have the burden of identifying specific federal conduct and explaining how it is ‘final agency action' within the meaning of section 551(13).”).

An agency...