State ex rel. Schmidt v. Zinke

861 F.3d 1024

State of KANSAS, EX REL. Derek SCHMIDT, Attorney General; Cherokee County, Kansas, Board of County Commissioners, Plaintiffs-Appellants,

v.Ryan ZINKE, Secretary of the United States Department of Interior, in his official capacity; National Indian Gaming Commission; Jonodev Osceloa Chaudhuri, National Indian Gaming Commissioner, in his official capacity; Daniel J. Little, Associate Commissioner National Indian Gaming Commission, in his official capacity; Department of Interior; Eric N. Shepard, General Counsel National Indian Gaming Commission, in his official capacity; Kevin K. Washburn, Assistant Secretary of Indian Affairs for the United States Department of Interior, in his official capacity; John Berrey, Chairperson of the Quapaw Tribe of Oklahoma Business Committee and Chairperson of the Downstream Development; Thomas Mathews, Vice-Chairperson of Quapaw Tribe of Oklahoma Business Committee; Tamara Smiley-Reeves, Secretary/Treasurer of Quapaw Tribe of Oklahoma Business Committee, Secretary of the Quapaw Tribe of Oklahoma Development Corporation, and member of the Downstream Development Authority; T.C. Bear, Member of Quapaw Tribe of Oklahoma Business Committee and Quapaw Gaming Authority; Betty Gaedtke, Member of Quapaw Tribe of Oklahoma Business Committee; Ranny McWatters, Member of Quapaw Tribe of Oklahoma Business Committee and Treasurer of the Downstream Development Authority; Marilyn Rogers, Member of Quapaw Tribe of Oklahoma Business Committee, Quapaw Gaming Authority, and Downstream Development Authority; Trenton Stand, Member of Quapaw Gaming Authority; Lori Shafer, Member of Quapaw Gaming Authority; Justin Plott; Fran Wood, Member of Quapaw Gaming Authority; Larry Ramsey, Secretary of the Downstream Development Authority; Barbara Kyser-Collier, Executive Director of the Quapaw Gaming Oklahoma Tribal Gaming Agency; Erin Shelton, Deputy Director of the Quapaw Tribe of Oklahoma Tribal Gaming Agency, a/k/a Erin Eckart; Rodney Spriggs, President of the Quapaw Development Corporation ; Art Cousatte, Vice-President of the Quapaw Development Corporation ; Donna Mercer, Treasurer of the Quapaw Development Corporation ; Jerri Montgomery, Member of the Quapaw Development Corporation ; Quapaw Development Corporation ; Downstream Development Authority of the Quapaw Tribe of Oklahoma, (O-GAH-PAH); Quapaw Gaming Authority, Defendants-Appellees,Iowa Tribe of Kansas and Nebraska; Sac and Fox Nation of Missouri in Kansas and Nebraska, Movants.

No. 16-3015

United States Court of Appeals, Tenth Circuit.

FILED June 27, 2017

Bryan C. Clark, Assistant Solicitor General (Jeffrey A. Chanay, Chief Deputy Attorney General, and Stephen Phillips, Assistant Attorney General, and David R. Cooper, Fisher, Patterson, Sayler & Smith, LLP, with him on the briefs), Office of the Attorney General, Topeka, Kansas, for Plaintiffs-Appellants.

Ellen J. Durkee (Thomas E. Beall, Acting United States Attorney, District of Kansas, Jackie A. Rapstine, Assistant United States Attorney, John C. Cruden, Assistant Attorney General, Daron T. Carreiro, and Katherine J. Barton, and Jo-Ann Shyloski, Office of the General Counsel, National Indian Gaming Commission, Washington, D.C., and Jennifer Christopher, Office of the Solicitor, Department of the Interior, Washington, D.C., with him on the brief), Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the Federal Defendants-Appellees.

Stephen R. Ward (Paul M. Croker, Armstrong Teasdale, LLP, Kansas City, Missouri, and Daniel E. Gomez, and R. Daniel Carter, with him on the brief), Conner & Winters, LLP, Tulsa, Oklahoma, for the Quapaw Tribal Defendants-Appellees.

Before KELLY, LUCERO, and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

The question in this case is whether a legal opinion letter issued by the Acting General Counsel of the National Indian Gaming Commission ("NIGC") regarding the eligibility of Indian lands for gaming constitutes "final agency action" subject to judicial review. In response to a request from the Quapaw Tribe, the NIGC Acting General Counsel issued a legal opinion letter stating that the Tribe's Kansas trust land was eligible for gaming under the Indian Gaming Regulatory Act ("IGRA"). The State of Kansas and the Board of County Commissioners of the County of Cherokee, Kansas, filed suit, arguing that the letter was arbitrary, capricious, and erroneous as a matter of law. The district court concluded that the letter did not constitute reviewable final agency action under IGRA or the Administrative Procedure Act ("APA").

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. IGRA's text, statutory scheme, legislative history, and attendant regulations demonstrate congressional intent to preclude judicial review of legal opinion letters. Further, the Acting General Counsel's letter does not constitute final agency action under the APA because it has not determined any rights or obligations or produced legal consequences. In short, the letter merely expresses an advisory, non-binding opinion, without any legal effect on the status quo ante.

I

The Quapaw Tribe of Indians is a federally recognized tribe. Indian Entities Recognized & Eligible to Receive Services from the U.S. Bureau of Indian Affairs, 81 Fed. Reg. 26,826, 26,830 (May 4, 2016). Pursuant to an 1833 treaty with the United States, the Tribe was relocated from its homeland in Arkansas to a reservation near what is now the border between Oklahoma and Kansas. See Treaty with the Quapaw art. 2, May 13, 1833, 7 Stat. 424. Although most of the Quapaw Reservation was located in present-day Oklahoma, it extended about one-half mile north of the state border into Kansas, in what is known as the "Quapaw Strip." In 1867, the Tribe ceded the Quapaw Strip to the United States but retained a small set-aside for a tribal member. Treaty with the Seneca, Mixed Seneca and Shawnee, Quapaw, Etc. art. IV, Feb. 23, 1867, 15 Stat. 513. The United States allotted the remainder of the Quapaw Reservation to individual tribal members in 1895. Act of March 2, 1985, ch. 188, 28 Stat. 876, 907.

At issue in this case is a 124-acre parcel in Kansas (the "Kansas land") that is directly adjacent to the Kansas-Oklahoma border and within the historic boundaries of the Quapaw Strip. The Quapaw reacquired this property in 2006 and 2007 and uses it as a parking lot and support area for its Downstream Casino Resort, which is located on Indian trust lands across the border in Oklahoma.

In 2012, the Department of the Interior ("DOI") took the Kansas land into trust for the Tribe. Approximately one year later, the Tribe requested a legal opinion from the NIGC Office of General Counsel addressing whether the property satisfies the "last recognized reservation" exception to IGRA's prohibition against gaming on trust lands acquired after October 17, 1988. This exception applies when "the Indian tribe has no reservation on October 17, 1998," and the "[trust] lands are located in a State other than Oklahoma and are within the Indian tribe's last recognized reservation within the State or States within which such Indian tribe is presently located." 25 U.S.C. § 2719(a)(2)(B). See also 25 C.F.R. § 292.4(b)(2). On November 21, 2014, the NIGC Acting General Counsel sent a letter to the Tribe's attorney concluding that the Kansas land is eligible for gaming under IGRA's "last recognized reservation" exception. The letter further states that "[t]his legal opinion does not constitute final agency action for purposes of review in federal court."

Plaintiffs filed this action against the NIGC in 2015. They claim that the letter's application of the last recognized reservation exception to the Kansas land was arbitrary, capricious, and erroneous as a matter of law.¹ The NIGC moved to dismiss on the ground that the letter did not constitute final agency action. The district court granted the motion, holding that neither IGRA nor the APA authorized judicial review of the letter and thus the court lacked subject matter jurisdiction. Plaintiffs timely appealed.

II

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Dep't of Army v. Blue Fox, Inc. , 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (quotation omitted). The APA contains a limited waiver of sovereign immunity, allowing for judicial review of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. However, this waiver does not apply if a "statute[ ] preclude[s] judicial review." 5 U.S.C. § 701(a)(1). The district court determined that IGRA precluded review of the letter and that the letter did not meet the two-part test for final agency action under the APA. See generally Bennett v. Spear , 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). We review these conclusions de novo. Colo. Farm Bureau Fed'n v. U.S. Forest Serv. , 220 F.3d 1171, 1173 (10th Cir. 2000).

A

Although there is a "strong presumption that Congress intends judicial review of administrative action," Bowen v. Mich. Acad. of Family Physicians , 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), superseded on other grounds by 42 U.S.C. § 405, that presumption "may be overcome by ... a specific congressional intent to preclude judicial review that is fairly discernible in the detail of the legislative scheme,"id. at 673, 106 S.Ct. 2133 (quotations omitted). In discerning congressional intent, we look to the express language of a statute and to "the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administration action involved." Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). After examining these features of IGRA, we conclude it is "fairly discernible" that Congress did not intend for the Acting General Counsel's letter to be reviewable final agency action.

I...