No Casino in Plymouth v. National Indian Gaming Commission

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2023
• Docket: 22-15756
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NO CASINO IN PLYMOUTH; et al., No. 22-15756

Plaintiffs-Appellants, D.C. No. 2:18-cv-01398-TLN-CKD v.

NATIONAL INDIAN GAMING MEMORANDUM* COMMISSION; et al.,

Defendants-Appellees,

and

IONE BAND OF MIWOK INDIANS,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted July 18, 2023** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: WARDLAW and M. SMITH, Circuit Judges, and RAYES,*** District Judge.

No Casino in Plymouth (NCIP) and several of its members appeal from the

district court’s order granting judgment on the pleadings in favor of the

government on each of NCIP’s six claims.1 As the parties are familiar with the

facts, we do not restate them here. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm. In sum, the law of the circuit doctrine forecloses three of NCIP’s

six claims. See In re Zermeno-Gomez, 868 F.3d 1048, 1052 (9th Cir. 2017). One

of NCIP’s claims fails on the merits, and NCIP has waived its remaining two

claims.

1. NCIP purports to challenge the Department of the Interior’s (“DOI’s”)

approval of the Ione Band of Miwok’s (“Ione Band’s”) tribal gaming ordinance in

2018. But in substance, three of NCIP’s claims (Claims One, Three, and Four)

turn on challenges to DOI’s earlier, 2012 Record of Decision (“2012 ROD”) taking

land into trust in Plymouth, California for the benefit of the Ione Band and

approving the use of certain lands for tribal gaming. In a prior appeal, we

considered and rejected the claims and legal theories NCIP now attempts to

*** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. 1 The members and supporters of NCIP party to this action are Deuward W. Cranford II, Dr. Elida A. Malick, Jon Colburn, David Logan, William Braun, and Catherine Coulter.

2 resuscitate in the instant appeal. See County of Amador v. U.S. Dept. of the

Interior, 872 F.3d 1012 (9th Cir. 2017); see also NCIP v. Zinke, 698 Fed. App’x

531 (9th Cir. 2017) (mem.) (dismissing NCIP’s prior appeal on standing grounds).

“Under our law of the circuit doctrine, a published decision of this court

constitutes binding authority which must be followed unless and until overruled by

a body competent to do so.” Zermeno-Gomez, 868 F.3d at 1052 (internal quotation

marks omitted) (quoting Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir.

2012) (en banc)). This doctrine is subject to limited exceptions. See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (recognizing that a three-

judge panel may overrule a prior panel’s decision if “the relevant court of last

resort [has] undercut the theory or reasoning underlying the prior circuit precedent

in such a way that the cases are clearly irreconcilable”).

NCIP does not argue that an exception to the law of the circuit doctrine

applies. Instead, NCIP attempts to collaterally attack Amador, 872 F.3d 1012,

arguing that the dispute was not ripe because the panel “decided a potential future

dispute contingent on the subject property being taken into trust pursuant to the

2012 ROD—which never happened.” Neither an en banc panel of our court nor

the Supreme Court has revisited the panel’s holding in Amador. Zermeno-Gomez,

868 F.3d at 1052.

3 There is no ripeness exception to the law of the circuit doctrine. No

intervening Supreme Court precedent has “undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the cases are clearly

irreconcilable.” Gammie, 335 F.3d at 900. Accordingly, the law of the circuit

doctrine applies.

In Amador, we squarely rejected theories underlying four of NCIP’s six

claims. First, we upheld the validity of the 2012 ROD, observing (1) that Ione

Band “is a recognized Indian Tribe” and that “[DOI] did not err in concluding that

the Band is eligible to have land taken into trust on its behalf,” 872 F.3d at 1028,

and (2) that DOI did not err in allowing tribal gaming on such lands. Id. at 1031.

Second, we held that a tribe did not need to be federally recognized in 1934 in

order to be “under Federal jurisdiction” for purposes of the Indian Reorganization

Act, 25 U.S.C. § 5129, id. at 1028. Third, while the Amador panel did not

explicitly opine on whether Ione Band was required to seek recognition under

“Part 83” regulations, 25 C.F.R. §§ 83.1–12, the panel’s holding directly

contradicts NCIP’s claims that such recognition is a prerequisite for tribes to obtain

statutory benefits.

2. We reject NCIP’s second claim, which contends that the 2012 ROD

violated the Appointments Clause because it was approved by an Acting Assistant

Secretary of Indian Affairs who was not nominated by the president and confirmed

4 by the senate. Assuming without deciding that the Assistant Secretary as a

permanent position is a Principal Officer, the Acting Assistant Secretary remained

an Inferior Officer because he was charged “with the performance of the duty of

the superior for a limited time and under special temporary conditions.” United

States v. Eaton, 169 U.S. 331, 343 (1898); see also Morrison v. Olson, 487 U.S.

654, 672 (1988) (restating Eaton’s holding).

3. NCIP has waived consideration of the two constitutional claims (Claims

Five and Six) it attempts to raise on appeal. In proceedings before the district

court, NCIP alleged that the government’s 2012 ROD and 2018 approval of Ione

Band’s tribal gaming ordinance violated the Equal Protection Clause of the Fifth

Amendment and the Tenth Amendment. On appeal, NCIP raises identical

arguments, but refashion those claims into Bivens claims—oddly suing individual

defendants in their personal capacities, yet seeking injunctive relief to rescind

actions taken in defendants’ official capacities. See Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971). NCIP’s Bivens action is “newly minted”

on appeal and therefore waived. Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th

Cir. 1996) (deeming causes of action waived because party failed to argue them in

the proceedings below). Accordingly, we need not address the merits of NCIP’s

remaining two claims.

AFFIRMED.