City of Vancouver, a Washington municipal corporation v. George Skibine

George Skibine is substituted for Philip Hogen, pursuant to Fed. R.*
App. P. 43(c)(2).
This disposition is not appropriate for publication and is not precedent**
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF VANCOUVER, a Washington
municipal corporation,
Plaintiff - Appellant,
v.
GEORGE SKIBINE, in his official*
capacity as Acting Chairman of the
National Indian Gaming Commission;
NATIONAL INDIAN GAMING
COMMISSION,
Defendants - Appellees.
No. 08-35954
D.C. No. 3:08-cv-05192-BHS
MEMORANDUM **
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted August 2, 2010
Seattle, Washington
Before: CANBY, NOONAN and BERZON, Circuit Judges.
FILED
AUG 31 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The City of Vancouver appeals the district court’s dismissal, on standing
grounds, of its action challenging the National Indian Gaming Commission’s
approval of an amendment to a tribal gaming ordinance enacted by the Cowlitz
Indian Tribe. We affirm.
The City does not challenge the substance of the amendment to the gaming
ordinance; it objects only to the timing of the approval, contending that the
Commission violated a procedural rule by acting before the Department of the
Interior had made a final decision on the Tribe’s fee-to-trust application. It is
undisputed that the Tribe cannot conduct the gaming operations contemplated by
the gaming ordinance before the Department approves its fee-to-trust application.
“[T]o show a cognizable injury in fact,” a plaintiff asserting a procedural
injury “must allege . . . that (1) the [agency] violated certain procedural rules; (2)
these rules protect [a plaintiff’s] concrete interests; and (3) it is reasonably
probable that the challenged action will threaten their concrete interests.” City of
Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Citizens for
Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003))
(alterations in original). The City’s argument that the Commission should have
waited for the Department to approve the Tribe’s fee-to-trust application rests
solely on the requirement of the Indian Gaming Regulatory Act (“IGRA”) that

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gaming take place on “Indian lands,” 25 U.S.C. §§ 2710(b)(1), 2710(d)(1), defined
to include, inter alia, “lands title to which is . . . held in trust by the United States
for the benefit of any Indian tribe . . . and over which an Indian tribe exercises
governmental power,” id. § 2703. The Commission’s approval of the Tribe’s
gaming ordinance expressly provided, however, that before the Tribe could
conduct gaming on the site, “the Department of the Interior must first accept the
land into trust, and the Tribe must first exercise government authority over the
site.” Thus, we reject the City’s contention that the Commission violated a
procedural rule by approving an amendment to the gaming ordinance before the
Department had acted on the Tribe’s fee-to-trust application.
Although the City asserts that the Commission’s approval could influence
the Department to adopt the Restored Lands Opinion on which the Commission
relied, it points to no statutory or regulatory authority requiring the Department to
consider the Commission’s Opinion on that matter, or to regard the Opinion as
dispositive. The Department must make a determination regarding the
applicability of Section 20 of IGRA, 25 U.S.C. § 2719, as part of the fee-to-trust
approval process, see 25 C.F.R. § 151.10(c). Moreover, as conceded by the City at
oral argument, regardless of whether the Department relies on the Commission’s
Restored Lands Opinion in making its Section 20 determination, the City will have

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an opportunity to challenge the substance of that determination—including any
restored lands decision, however arrived at—when and if the Department issues a
final decision approving the Tribe’s fee-to-trust application. See 25 C.F.R. §
151.12(b).
As the City has not established a procedural injury resulting from the timing
of the Commission’s approval, it does not have Article III standing to maintain this
suit. See City of Sausalito, 386 F.3d at 1197. We affirm the district court’s
dismissal for lack of subject matter jurisdiction.
AFFIRMED.

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