Agency Must Face Tribe’s Delayed Ruling Claim

WASHINGTON D.C. - The federal agency that oversees gaming on Native American lands must defend itself against a claim it unreasonably delayed a decision on whether a tribe could reopen a casino on lands deemed ineligible for gambling, a federal judge ruled.

U.S. District Judge Rosemary Collyer's ruling partially vindicated the Fort Sill Apache Tribe in its long-running dispute with the National Indian Gaming Commission, but it was not a total victory.

Collyer tossed another of the tribe's claims, which was that the delay in ruling on the its appeal was in effect a decision by the agency to prohibit the casino permanently.

The judge held that while the delay was unfortunate, it was by no means a final action under the rule of law, and therefore she has no jurisdiction over that matter.

The dispute dates back to April 2009, when the Fort Sill Apaches opened a tribe opened the Apache Homelands Casino at Akela Flats, New Mexico. The property upon which the casino sat was land that the United States had taken into trust for the benefit of the tribe.

Shortly after the casino opened, the gaming commission issued the tribe a notice of violation on the basis that the casino was on land not approved for gaming. The violation carried a potential civil fine of up to $25,000 per day, but the agency offered the tribe a deal -- it would stay the fine if gaming ceased until the resolution of tribe's appeal or any subsequent judicial review.

Two months later, the tribe closed the casino and launched an expedited appeal.

As recounted by Collyer, the tribe was told many times over the next five years that a decision on its appeal was imminent, but it never came to pass.

Hoping to resolve the matter once and for all, the tribe filed a motion under the Administrative Procedure Act to dismiss the original ruling on the basis that a decision had been unreasonably delayed. The agency in turn moved to dismiss the tribe's complaint for lack of jurisdiction.

In doing so the gaming commission argued that the tribe could not establish a waiver of sovereign immunity needed to sue a federal agency, and that the APA precludes judicial review of the notice of violation because it is not final agency action, and the tribe had failed to exhaust its administrative remedies.

Collyer found the agency is subject to the tribe's suit because APA provides an express waiver of sovereign immunity that is applicable in this case because the tribe was seeking declarative and injunctive, rather than monetary relief.

"Section 702 [of the APA] clearly waives sovereign immunity when a plaintiff alleges wrongful inaction by an agency or its officer in a suit for nonmonetary damages, which is precisely what the Tribe has filed," the judge wrote.

She underscored her position by pointing to the D.C. Circuit's ruling in Cobell V. Norton, in which the court concluded, "If failure to act could never trigger judicial review, 'agencies could effectively prevent judicial review of their policy determinations by simply refusing to take agency action.'"

"The conditions for subject matter jurisdiction over Count 1 are satisfied here: the governing statute, the IGRA, does not preclude judicial review and NIGC has a duty to perform a nondiscretionary act by ascertainable deadlines and has failed to do so," Collyer wrote.

"NIGC regulations required the Commission to designate a presiding official, who, after conducting a hearing within 30 days of the notice of appeal, must make a recommended decision to the Commission after the hearing record closes. ... Thereafter, the Commission must affirm or reverse the presiding official's recommended decision within 30 days after the presiding official issues his recommended decision," she continued.

"At the very latest, the appeal has been ripe for decision since January 9, 2012 when the Tribe notified NIGC that it would not seek any stay. To date, NIGC has not issued a decision on the Tribe's appeal," Collyer said.

As to the tribe's claim that the agency's delay in ruling on its appeal was tantamount to a final agency action, the judge was unconvinced.

"As alleged in the Complaint, the Tribe closed the casino, not NIGC," she wrote. "The Tribe accepted NIGC's proposal to stay the imposition of civil fines if the Tribe ceased gaming at Akela Flats, pending expedited resolution of an appeal of the NOV and subsequent judicial review.

"The Court is sympathetic to the Tribe's predicament: it alleges that its financial situation could not withstand the risk of substantial fines threatened by the NOV. Nonetheless, the Tribe acknowledges that it decided to close the casino due to an overriding interest in avoiding fines."

"In light of the Tribe's description of its decisions after being issued the NOV, the Court cannot say that the closure of the casino was mandated by the NOV itself. Therefore, the Court cannot point to NIGC's failure to issue a decision as the functional equivalent of an agency decision 'by which rights or obligations have been determined, or from which legal consequences will flow,'" the judge concluded.

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