IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN … · 2017-11-20 · in the united states...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

COMANCHE NATION OF OKLAHOMA,

Plaintiff,

v.

RYAN ZINKE, Secretary, U.S. Department of the Interior, et al.,

Defendants.

)))))))) ) )

Case No. CIV-17-887-HE

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

MARK A. YANCY United States Attorney

s/ AMANDA R. JOHNSON KAY SEWELL OK Bar No. 10778 AMANDA R. JOHNSON OK Bar No. 32575 Assistant U.S. Attorney United States Attorney’s Office Western District of Oklahoma 210 Park Avenue, Suite 400 Oklahoma City, OK 73102 (405) 553-8700 - (fax) 553-8885 Email: [email protected]

Case 5:17-cv-00887-HE Document 20 Filed 09/25/17 Page 1 of 34

mailto:[email protected]

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................ iv-vii

I. INTRODUCTION .............................................................................................. 1

II. BACKGROUND ................................................................................................ 2

A. STATUTORY BACKGROUND ....................................................................... 2 1. The Indian Gaming Regulatory Act .............................................................. 2 2. Land Acquisition Policy ................................................................................ 4

B. FACTUAL BACKGROUND ............................................................................. 4

III. STANDARD OF REVIEW ................................................................................ 7

IV. ARGUMENT ...................................................................................................... 9

A. PLAINTIFF CANNOT SHOW A LIKELIHOOD

OF SUCCESS ON THE MERITS ...................................................................... 9 1. Plaintiff Lacks Standing to Challenge the Oklahoma Exception .................. 9 2. Plaintiff’s Claim is Barred by the Statute of Limitations ............................ 11 3. The Claims Against NIGC Are Not Likely to Succeed Because

NIGC Has Not Taken Final Agency Action Here....................................... 13 4. Plaintiff is Not Likely to Succeed on the Merits

of its APA Claim Because Interior Acted Reasonably in Adopting the Oklahoma Exception ............................................................................. 14

B. PLAINTIFF HAS NOT ESTABLISHED A LIKELIHOOD

OF IMMINENT IRREPARABLE HARM....................................................... 18 1. Plaintiff Has Not Shown a Concrete Harm ................................................. 19 2. Plaintiff Has Not Established That the Alleged Economic

Harm is Imminent ........................................................................................ 21 3. Plaintiff’s Alleged Economic Harm Also is Not Irreparable ...................... 22

C. THE EQUITIES WEIGH AGAINST AN INJUNCTION ............................... 24

V. CONCLUSION ................................................................................................. 25


iii

CERTIFICATE OF SERVICE .................................................................................... 27


iv

TABLE OF AUTHORITIES

Cases

Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006) ................................................................................ 24, 25

Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009) .......................................................................................... 8

Auer v. Robbins, 519 U.S. 452 (1997) ....................................................................................................... 15

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) ....................................................................................................... 15

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ....................................................................................................... 14

Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir. 2012) ..................................................................................... 21

Coal. of Concerned Citizens to Make ART Smart v. FTA, 843 F.3d 886 (10th Cir. 2016) ........................................................................................ 20

Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000) ...................................................................................... 14

Dine Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276 (10th Cir. 2016) ........................................................................................ 8

Exela Pharma Scis., LLC v. Kappos, No. 1:12-CV-469, 2012 WL 6697068 (E.D. Va. Dec. 21, 2012) .................................. 12

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ....................................................................................................... 10

Grand Traverse Band of Ottawa & Chippewa Indians v. Office of U.S. Atty. for W. Div. of Mich., 369 F.3d 960 (6th Cir. 2004) ............................................................................................ 3

Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for W. Dist. of Mich.,

198 F. Supp. 2d 920 (W.D. Mich. 2002) ......................................................................... 2 Greater Yellowstone Coal v. Flowers,

321 F.3d 1250 (10th Cir. 2003) ................................................................................ 21, 22 Heideman v. S. Salt Lake City,

348 F.3d 1182 (10th Cir. 2003) .......................................................................... 19, 23, 24


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iMatter Utah v. Njord, 774 F.3d 1258 (10th Cir. 2014) ...................................................................................... 11

Kansas v. NIGC, 151 F. Supp. 3d 1199 (D. Kan. 2015) ...................................................................... 11, 13

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ........................................................................................ 24

Lane v. Buckley, 643 Fed. Appx. 686 (10th Cir. 2016) ............................................................................. 20

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ....................................................................................................... 10

Mazurek v. Armstrong, 520 U.S. 968 (1997) ......................................................................................................... 7

Murphy v. Royal, 866 F.3d 1164 (10th Cir. Aug. 8, 2017) ......................................................................... 18

New Mexico Dep’t of Game & Fish v. U.S. Dep’t of the Interior, 854 F.3d 1236 (10th Cir. 2017) ............................................................................ 8, 20, 21

NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003) ......................................................................... 12

Petrella v. Brownback, 787 F.3d 1242 (10th Cir. 2015) ........................................................................................ 7

Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) ...................................................................................... 19

RoDa Drilling v. Siegal, 552 F.3d 1203 (10th Cir. 2009) ........................................................................................ 8

S. Cal. All. of Publicly Owned Treatment Works v. EPA, No. 2:14-CV-01513-MCE-DB, 2016 WL 6135872 (E.D. Cal. Oct. 21, 2016) ............. 12

Schrier v. Univ. of Co., 427 F.3d 1253 (10th Cir. 2005) .............................................................................. 8, 9, 21

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ........................................................................................................... 2

Smith v. United States, No. 13-cv-01156-RM-KLM, 2015 WL 584698 (D. Colo. Feb. 10, 2015) .................... 23

United States v. 162 MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000) .......................................................................................... 5

Utah v. Njord, 774 F.3d 1258 (10th. Cir. 2014) ..................................................................................... 11


vi

Warth v. Seldin, 422 U.S. 490 (1975) ....................................................................................................... 10

Westar Energy, Inc. v. Lake, 552 F.3d 1216 (10th Cir. 2009) ........................................................................................ 8

Wind River Min. Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) .............................................................................. 12, 13, 14

Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ....................................................................................... 19

Federal Statutes

25 U.S.C. § 2703 ................................................................................................................. 5 25 U.S.C. § 2710(d)(8)(A)................................................................................................. 16 25 U.S.C. § 2713 ............................................................................................................... 14 25 U.S.C. § 2719 ........................................................................................... 3, 6, 16, 17, 18 25 U.S.C. § 5108 ................................................................................................................. 4 28 U.S.C. § 2401(a) ........................................................................................................... 11 5 U.S.C. § 704 ................................................................................................................... 13

State Statutes

Okla. Stat. Ann. Tit. 3A, § 281 .......................................................................................... 23

Regulations

25 C.F.R. § 151.1 ................................................................................................................. 4 25 C.F.R. § 151.10 ........................................................................................................... 4, 6 25 C.F.R. § 151.12 ............................................................................................................... 7 25 C.F.R. § 151.2 ................................................................................................................. 4 25 C.F.R. § 151.3 ............................................................................................................. 4, 6 25 C.F.R. § 292 .................................................................................................................... 3 25 C.F.R. § 292.2 ................................................................................................................. 9 25 C.F.R. § 292.4 ............................................................................................................... 17 25 C.F.R. § 292.4(b)(1) ....................................................................................................... 3 25 C.F.R. §§ 559 .......................................................................................................... 14, 22 25 C.F.R. §§ 573.3 ............................................................................................................. 14 25 C.F.R. §§ 575.4 ............................................................................................................. 14


vii

C.F.R. § 292.4 .................................................................................................................... 17 82 Fed. Reg. 32, 867-01 .................................................................................................. 5, 7

Other

S. Rep. No. 99-493, 99th Cong., 2d Sess. 10 (1986) ......................................................... 18


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I. INTRODUCTION

Plaintiff Comanche Nation initiated this litigation in an attempt to prevent the

operation of a casino by the Chickasaw Nation near Terral, Oklahoma. Compl. ¶ 1 (Doc.

No. 1). Instead of raising their concerns with the Chickasaws, Plaintiff sued the

Department of the Interior (“Interior”) and National Indian Gaming Commission

(“NIGC”), making the disjointed argument that 2008 federal regulations render a fee-to-

trust acquisition occurring in 2017 arbitrary and capricious; may indirectly cause Plaintiff

economic harm at some unknown point in the future; and justify invalidating an unrelated

gaming ordinance approved by the NIGC in 1994. Specifically, Plaintiff seeks an

immediate injunction: (i) preventing the NIGC from approving a gaming ordinance or

issuing a facilities license to the Chickasaw Nation for a casino on the Terral site; or (ii)

rescinding such agency action if it already occurred. P.I. Mot. at 1 (Doc. No. 13).

Plaintiff is not entitled to injunctive relief. First, Plaintiff cannot show a likelihood

of success on the merits. Plaintiff argues that Interior has wrongly interpreted the Indian

Gaming Regulatory Act (“IGRA”) in issuing regulations to implement section 20 of IGRA,

putting Oklahoma tribes on a footing superior to tribes outside Oklahoma. Plaintiff also

complains about Interior’s land acquisition regulations, which define “Indian reservation”

differently for Oklahoma tribes than other tribes. But, as an Oklahoma tribe, Plaintiff fails

to show how it is injured by Federal Defendants’ decision-making and thus lacks standing.

Plaintiff’s challenge to the 2008 regulations also is barred by the statute of limitations.

And, most importantly, the regulations are fully consistent with each other and with IGRA.


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Plaintiff also cannot demonstrate irreparable harm or that the equities weigh

strongly in its favor. Indeed, the relief requested by the Comanche Nation is not even

possible—NIGC does not license individual gaming facilities. NIGC has no role nor any

jurisdiction that would prevent the construction or opening of a casino on the Terral site,

and no further agency action to take. The Federal Defendants also have an interest in

having their decisions upheld, particularly here where Plaintiff challenges a long-standing

policy and regulation passed nearly ten years ago. Interior also found that taking the Terral

site into trust for gaming purposes would facilitate the Chickasaw Nation’s tribal self-

determination and economic development, and an injunction would prevent these benefits

from being realized. These significant impacts and interests weigh against injunctive relief,

particularly given that a decision on the merits can be issued before the Terral casino opens.

II. BACKGROUND

A. STATUTORY BACKGROUND

1. The Indian Gaming Regulatory Act

“Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a

statutory basis for the operation and regulation of gaming by Indian tribes.” Seminole Tribe

of Fla. v. Florida, 517 U.S. 44, 48 (1996) (citing 25 U.S.C. § 2702). IGRA was enacted

“to provide express statutory authority for the operation of such tribal gaming facilities as

a means of promoting tribal economic development, and to provide regulatory protections

for tribal interests in the conduct of such gaming.” Grand Traverse Band of Ottawa &

Chippewa Indians v. U.S. Attorney for W. Dist. of Mich., 198 F. Supp. 2d 920, 933 (W.D.


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Mich. 2002), aff'd sub nom. Grand Traverse Band of Ottawa & Chippewa Indians v. Office

of U.S. Atty. for W. Div. of Mich., 369 F.3d 960 (6th Cir. 2004).

Section 20 of IGRA generally prevents gaming under IGRA from being “conducted

on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October

17, 1988,” with certain exceptions. 25 U.S.C. § 2719. One exception is for lands located

within the former reservation of an Oklahoma tribe who did not have a reservation on

October 17, 1988, called the “Oklahoma exception.” 25 U.S.C. § 2719(a)(2)(A)(i).

Specifically, gaming may take place on lands acquired in trust after 1988 when:

The Indian tribe has no reservation on October 17, 1988, and —

(A) such lands are located in Oklahoma and — (i) are within the boundaries of the Indian tribe’s former reservation, as defined by the Secretary; or (ii) are contiguous to other land held in trust or restricted status by the United States for the Indian tribe in Oklahoma; or

(B) such 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.

Interior’s regulations at 25 C.F.R. Part 292 implement Section 20 of IGRA.

Pursuant to these regulations, gaming is allowed under the Oklahoma Exception when a

tribe had no reservation on October 17, 1988, the land is located in Oklahoma, and is

located within the boundaries of the tribe’s former reservation or contiguous to other land

held in trust or restricted status for the tribe in Oklahoma. 25 C.F.R. § 292.4(b)(1).


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2. Land Acquisition Policy

Under the Indian Reorganization Act (“IRA”), “[t]he Secretary of the Interior is

authorized, in his discretion, to acquire any interest in lands . . . within or without existing

reservations . . . for the purpose of providing land for Indians.” 25 U.S.C. § 5108. 25

C.F.R. Part 151 “sets forth the authorities, policy, and procedures governing the acquisition

of land by the United States in trust status for individual Indians and tribes.” 25 C.F.R.

§ 151.1. 25 C.F.R. § 151.3 sets forth the conditions under which land may be acquired in

trust by the Secretary for an Indian tribe:

(1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing.

The regulations define “Indian reservation” as “that area of land over which the tribe

is recognized by the United States as having governmental jurisdiction, except that, in the

State of Oklahoma . . . ‘Indian reservation’ means that area of land constituting the former

reservation of the tribe as defined by the Secretary.” 25 C.F.R. § 151.2. Section 151.10

provides criteria for on-reservation acquisitions. 25 C.F.R. § 151.10.

B. FACTUAL BACKGROUND

On June 17, 2014, the Chickasaw Nation submitted an application to the Bureau of

Indian Affairs (BIA) requesting that approximately 30.05 acres near the town of Terral in

Jefferson County, Oklahoma (“Terral site”), be taken into trust for gaming and other


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purposes. Ex. 1, Notice of Decision (Jan. 19, 2017) (“Notice of Decision”) at 1. The

proposed gaming facility will consist of 37,197 square feet with a 22,153 square-foot

gaming floor comprised of approximately 500 class II and III1 gaming machines, table

games, and off-track betting amenities. Id.

An Environmental Assessment (“EA”) for the Terral fee-to-trust project was

completed on April 20, 2016. Id. at 15. The EA was available for public comment from

March 18 to April 18, 2016, but no public comments were received. Id. The EA analyzed

the environmental consequences of taking the land into trust for the benefit of the

Chickasaw Nation and the subsequent development of an approximately 37,197 square foot

gaming facility on the site, as well as the consequences of a “no action” alternative, where

the property would not be taken into trust and no gaming facility would be developed. Ex.

2, Envtl. Assessment, Terral Fee-to-Trust Project (“EA”) at 8 (Feb. 2016). Ultimately,

Interior concluded that with the implementation of best management practices and

environmental protection measures, the proposed land-into-trust action and new gaming

facility would not result in any significant adverse environmental impacts.

Interior made a final determination to acquire the Terral Site in trust for the

Chickasaw Nation for gaming and other purposes on January 19, 2017. 82 Fed. Reg.

32,867-01 (July 18, 2017); Ex. 1, Notice of Decision at 1. The Notice of Decision finds

1 Class II gaming includes bingo (including electronic bingo games), pull-tabs, and

similar games of chance. Class III gaming includes slot machines, horseracing, and any banking card games, such as baccarat and blackjack. See United States v. 162 MegaMania Gambling Devices, 231 F.3d 713, 720 (10th Cir. 2000); 25 U.S.C. § 2703.


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that the Terral Site is located within the Chickasaw Nation’s former historic reservation

boundaries. Id. at 1. The Notice of Decision also found that “the Terral Site meets the

Oklahoma Exception because the Nation had no reservation on October 17, 1988, and the

Terral Site is located within the boundaries of the Nation’s former reservation in

Oklahoma.” Id. at 3. Interior determined that “acquisition of the Terral Site will facilitate

tribal self-determination, economic development, and Indian housing.” Id. “Development

of the proposed gaming facility will generate revenue to facilitate tribal self-determination

by funding educational, social, and employment programs for tribal members.” Id. Interior

noted the Chickasaw Nation added over 2,000 new members in 2015, has demand for

services that grows every year, and relies on economic opportunities such as gaming to

provide for the needs of its members. Id. at 4. Accordingly, Interior found that acquisition

of the Terral Site in trust will facilitate tribal self-determination and economic

development. Id. at 7; 25 C.F.R. § 151.3.

Then, because the Terral Site is within the Chickasaw Nation’s former reservation

boundaries, Interior analyzed the criteria for on-reservation acquisitions under 25 C.F.R.

§ 151.10. Ex. 1, Notice of Decision at 7-17. After carefully considering each of the

criteria—for example, the existence of statutory authority for the acquisition, the tribe’s

need for additional land, and the purposes for which the land will be used—Interior

concluded it would acquire the land in trust and that, “pursuant to Section 20 of IGRA, 25

U.S.C. § 2719(a)(2)(A)(i), the Terral Site will be eligible for gaming upon its acquisition


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in trust.” Id. at 18. The Notice of Decision directed the BIA Regional Director to

immediately accept the land in trust. Id.; see also 25 C.F.R. § 151.12.

Also on January 19, 2017, the Principal Deputy Assistant Secretary – Indian Affairs

at the United States Department of the Interior signed a Finding of No Significant Impact

(“FONSI”), which determined based on the EA that “acquiring the Terral Site in Jefferson

County, Oklahoma, in trust and the subsequent development of a gaming facility by the

Chickasaw Nation (Nation) will have no significant impact on the quality of the human

environment with implementation of the mitigation measures and best management

practices specified in the EA.” Ex. 3, Finding of No Significant Impact at 1 (Jan. 19, 2017).

Interior also prepared a Federal Register notice for the Notice of Decision. Ex. 4,

Trust Acquisition Notice Memo. at 2 (Jan. 19, 2017). On January 20, 2017, the first day

of the Trump presidential administration, the Interior Office of Executive Secretariat and

Regulatory Affairs issued a memorandum requiring that all Federal Register notices be put

on hold until reviewed by that office. See Ex. 5, Fed. Reg. Memo. (Jan. 20, 2017). After

briefing and review, the notice was published on July 18, 2017. 82 Fed. Reg. 32,867-01.

III. STANDARD OF REVIEW

“[A] preliminary injunction is an extraordinary and drastic remedy, one that should

not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quotation marks and

citation omitted). The movant’s right to relief “must be clear and unequivocal.” Petrella

v. Brownback, 787 F.3d 1242, 1256–57 (10th Cir. 2015) (quotation marks and citation


8

omitted). “To obtain a preliminary injunction, the moving party must demonstrate: ‘(1) a

likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable

harm in the absence of preliminary relief; (3) the balance of equities tips in the movant’s

favor; and (4) that the injunction is in the public interest.’” Att’y Gen. of Okla. v. Tyson

Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) (quoting RoDa Drilling v. Siegal, 552 F.3d

1203, 1208 (10th Cir. 2009)).

Plaintiff seeks a mandatory injunction (i.e., commanding an agency to rescind a past

decision or action) that is “specifically disfavored,” meaning Plaintiff’s showing “must be

more closely scrutinized to assure that the exigencies of the case support the granting of a

remedy that is extraordinary even in the normal course.” Westar Energy, Inc. v. Lake, 552

F.3d 1216, 1224-25 (10th Cir. 2009); Schrier v. Univ. of Co., 427 F.3d 1253, 1261 (10th

Cir. 2005). Moreover, the Tenth Circuit recently rejected the relaxed standard Plaintiff

advocates here, whereby a plaintiff who satisfies the last three requirements for a

preliminary injunction “may establish likelihood of success by showing questions going to

the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for

litigation and deserving of more deliberate investigation.” New Mexico Dep’t of Game &

Fish v. U.S. Dep’t of the Interior, 854 F.3d 1236, 1246 (10th Cir. 2017); see also Dine

Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016).

Instead, Plaintiff must make a “strong showing” that it meets every element of the standard

preliminary injunction test. Westar, 552 F.3d at 1224-25; Schrier, 427 F.3d at 1261.


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IV. ARGUMENT A. PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE

MERITS.

First, Plaintiff cannot show a likelihood of success on the merits.2 The Federal

Defendants understand Plaintiff’s argument to be that the Oklahoma Exception puts

Oklahoma tribes on a footing superior to that of non-Oklahoma tribes, in violation of IGRA

and the regulations. See Br. in Supp. of Pl.’s Mot. for Prelim. Inj. (“P.I. Mem.”) at 7-14

(Doc. No. 13-1). Specifically, Plaintiff takes issue with Interior’s 2008 regulation, 25

C.F.R. § 292.2, that defines “former reservation” as “lands in Oklahoma that are within the

exterior boundaries of the last reservation,” instead of adopting a proposed definition that

would have required the lands to both be “within the jurisdiction of an Oklahoma Indian

tribe” and within the boundaries of the last reservation. See P.I. Mem. at 9-10. Plaintiff

argues that by not requiring Oklahoma tribes to demonstrate that the lands upon which

gaming will take place are within the jurisdiction of the tribe, Interior is giving Oklahoma

tribes preferential treatment. Id. Plaintiff’s argument is without merit.

1. Plaintiff Lacks Standing to Challenge the Oklahoma Exception.

First, to the extent Plaintiff challenges Interior’s regulations, Plaintiff lacks

standing. A plaintiff challenging the legality of government action bears the burden of

2 Plaintiff’s Complaint makes a claim under the National Environmental Policy Act,

but Plaintiff’s preliminary injunction motion does not rely on, argue, or develop this claim. Regardless, the claim, as stated in the Complaint, is based on speculation and past, unrelated NEPA documents. See Compl. ¶¶36-37, 39; P.I. Mot. at 4, n.3. Indeed, Plaintiff does not appear even to have seen the EA or FONSI for the Terral acquisition.


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establishing that it has standing to challenge the action. Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). “[T]o satisfy Article III’s standing requirements, a plaintiff must show

(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged

action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). “The Art. III judicial power exists only

to redress or otherwise to protect against injury to the complaining party, even though the

court’s judgment may benefit others collaterally.” Warth v. Seldin, 422 U.S. 490, 499

(1975).

Here, Plaintiff cannot show any of the three elements. First, Plaintiff cannot show

that it is injured by the Oklahoma Exception. Assuming for the sake of argument that

Interior’s regulations favor Oklahoma tribes, Plaintiff is an Oklahoma tribe that on at least

one occasion actually benefitted from these regulations. Plaintiff’s Complaint and

memorandum are replete with references to Oklahoma tribes being placed “on a footing

superior to Tribes elsewhere,” see, e.g., P.I. Mem. at 9, but Plaintiff cannot maintain a case

by alleging an injury to non-Oklahoma tribes.3 See Warth, 422 U.S. at 499.

Similarly, Plaintiff does not trace the challenged action—the application of the

Oklahoma Exception—to its injury. Plaintiff’s only asserted injury is a loss of gaming

3 Plaintiff references other tribes in its Complaint and Motion, but no other tribe is

a party to this suit and Plaintiff cannot bring claims on behalf of third-parties.


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revenue. Plaintiff claims the Oklahoma Exception favors “the Chickasaw Nation and

others of Five Civilized Tribes” in particular, see, e.g., P.I. Mem. at 6, but does not explain

how the Oklahoma Exception favors those groups over other Oklahoma tribes, such as

Plaintiff. Plaintiff therefore does not demonstrate causation.

Nor could this Court redress Plaintiff’s injury by finding that Interior’s regulations

are arbitrary and capricious. If the regulations are found to be arbitrary and capricious, it

does not necessarily follow that this land into trust acquisition is void.

2. Plaintiff’s Claim is Barred by the Statute of Limitations.

Plaintiff’s facial challenge to regulations promulgated in 2008 violates the statute

of limitations. Plaintiff challenges the Oklahoma Exception and argues that Interior’s

decision not to adopt a proposed provision that would have required that the Oklahoma

tribe have jurisdiction over a parcel was arbitrary and capricious. That determination

occurred in 2008, well outside the six-year statute of limitations for claims against the

United States. See 28 U.S.C. § 2401(a). Likewise, to the extent that Plaintiff challenges

the definition of “Indian reservation” in the land acquisition regulations, that provision was

enacted in 1980, more than thirty-five years ago.

A facial challenge considers the regulation’s “application to all conceivable parties.”

iMatter Utah v. Njord, 774 F.3d 1258, 1264 (10th. Cir. 2014). “In contrast, an as-applied

challenge ‘tests the application of that [disputed regulation] to the facts of the plaintiff’s

concrete case.’” Kansas v. NIGC, 151 F. Supp. 3d 1199, 1218 (D. Kan. 2015), aff’d sub

nom. Kansas ex rel. Schmidt v. Zinke, 861 F.3d 1024 (10th Cir. 2017) (quoting iMatter,


12

774 F.3d at 1264). “[P]olicy-based facial challenges to the government’s decision must

also be brought within six years of the decision.” NRDC v. Evans, 279 F. Supp. 2d 1129,

1147 (N.D. Cal. 2003) (citing Wind River Min. Corp. v. United States, 946 F.2d 710, 715

(9th Cir. 1991)). “The grounds for such challenges will usually be apparent to any

interested citizen within a six-year period following promulgation of the decision . . . .”

Wind River, 946 F.2d at 715. “The government’s interest in finality outweighs a late-

comer’s desire to protest the agency’s action as a matter of policy or procedure.” Id.

Plaintiff cannot rely on the “as-applied” exception because the Oklahoma Exception

was not applied to Plaintiff in the federal action at issue here. Instead, Plaintiff contends

that the Oklahoma Exception is invalid in all circumstances. Plaintiff references “evidence

of many years” and “dozens of trust acquisitions,” P.I. Mem. at 9, showing clearly that its

challenge goes beyond the facts of this particular case. The Ninth Circuit has held that

challenges outside the six-year statute of limitations can be brought “by filing a complaint

for review of the adverse application of the decision to the particular challenger.” Wind

River, 946 F.2d at 715. Challenges to regulations when the regulations are not being used

in new ways must be brought within the six-year limitations period. See S. Cal. All. of

Publicly Owned Treatment Works v. EPA, No. 2:14-CV-01513-MCE-DB, 2016 WL

6135872, at *6 (E.D. Cal. Oct. 21, 2016); Exela Pharma Scis., LLC v. Kappos, No. 1:12-

CV-469, 2012 WL 6697068, at *2 (E.D. Va. Dec. 21, 2012), aff'd 781 F.3d 1349 (Fed. Cir.

2015). The logic of allowing as-applied challenges is to avoid immunizing the government

because the action did not affect anyone until after six years had passed. Wind River, 946


13

F.2d at 715–16. That logic does not apply here because the Oklahoma Exception in the

2008 regulations not only continued the agency’s prior policy, it also applied to all

Oklahoma tribes.

The United States District Court for the District of Kansas found that the statute of

limitations barred a challenge to the 2008 regulations. Kansas, 151 F. Supp. 3d at 1219.

Plaintiffs failed to assert a viable as-applied challenge, leaving only their claim that Interior

acted arbitrarily and in excess of authority in its promulgation of the regulations. Id.

Plaintiffs there, like here, “contend that the regulation is invalid as written—an alleged

defect that would affect all conceivable parties.” Id. “The grounds for plaintiffs’ challenge

. . . existed in 2008 when the DOI published the regulation in the Federal Register and

‘were apparent to any interested citizen’ within six years of publication.” Id. (citing Wind

River, 946 F.2d at 715). The court thus held that the challenge was time barred. This Court

should reach the same conclusion.

3. The Claims Against NIGC Are Not Likely to Succeed Because NIGC Has Not Taken Final Agency Action Here.

Under the APA, challenges must be to final agency action. See 5 U.S.C. § 704

(“Agency action made reviewable by statute and final agency action for which there is no

other adequate remedy in a court are subject to judicial review.”). In this case, there is no

pending NIGC action to challenge.

NIGC approved the Chickasaw Nation’s tribal gaming ordinance, which is general

and does not reference specific locations, in 1994. Ex. 6, NIGC Approval of Chickasaw

Nation Public Gaming Act of 1994, Tribal Law 11-004 (“Chickasaw Gaming Ordinance”)


14

(Mar. 4, 1994); Ex. 7, Decl. of Anthony Wheeler (“Wheeler Decl.”) at ¶¶3-4. Thus, there

is no pending gaming ordinance request before NIGC. Ex. 7, Wheeler Decl. at ¶¶4-5.

NIGC also does not issue facility licenses to tribal gaming operations. Id. at ¶10. Instead,

NIGC’s regulations, at 25 U.S.C. Part 559, require tribes to provide NIGC with notice of

the tribe’s intent to license a facility and a copy of the license once the tribe has issued or

renewed it. 25 C.F.R. §§ 559.2, 559.3; Ex. 7, Wheeler Decl. at ¶¶8-9 The NIGC does not

have the authority to either rescind a gaming ordinance or block the tribal licensing of the

property, although it may take appropriate enforcement action if it determines that a tribe

is gaming on land that is ineligible for gaming under IGRA. 25 U.S.C. § 2713; 25 C.F.R.

§§ 573.3, 573.4(a)(13), 575.4; Ex. 7, Wheeler Decl. ¶¶6-7, 13.

Because NIGC has not taken any action with regard to the land acquisition or the

opening or operation of the casino, the Court lacks jurisdiction over NIGC and Plaintiff is

not likely to succeed on its claims against NIGC. See Colo. Farm Bureau Fed’n v. U.S.

Forest Serv., 220 F.3d 1171, 173 (10th Cir. 2000) (noting that plaintiffs must challenge

final agency action under the APA).

4. Plaintiff is Not Likely to Succeed on the Merits of its APA Claim Because Interior Acted Reasonably in Adopting the Oklahoma Exception.

Plaintiff cannot show a likelihood of success on the merits of its APA claim because

the Oklahoma Exception is a reasonable construction of the statute.

Federal Defendants are entitled to Chevron deference here, where the question

before the Court is whether the agency’s regulations are an acceptable interpretation of the

statute. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Congress delegated


15

authority to Interior to interpret IGRA through regulations. Plaintiff argues that Interior’s

interpretation is entitled only to at most Seminole Rock/Auer deference. P.I. Mem. at 13.

Under this standard, the agency’s interpretation of its own regulations is assigned

controlling weight unless it is plainly erroneous or inconsistent with the regulation. Bowles

v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Plaintiff is mistaken. Auer

involved an agency’s interpretation of its own regulations in an amicus brief. Auer v.

Robbins, 519 U.S. 452, 456 (1997). There is no question here about whether Interior is

properly interpreting its regulations; the question is whether the regulations are an

acceptable interpretation of the statute. See P.I. Mem. at 13. As such, Chevron applies.

Plaintiff argues that Interior is not entitled to any deference because the agency’s

interpretation conflicts with a prior interpretation, and asserts that Interior’s interpretation

is merely a convenient litigating position. Plaintiff’s argument is meritless. The trust

acquisition regulations and regulations implementing IGRA have included the contested

sections since their respective publications in 1980 and 2008. The definition of

“reservation” in the trust acquisition regulations has always expressly included former

reservations in the State of Oklahoma and the IGRA Section 20 regulations have always

included the Oklahoma Exception. Plaintiff cites no case law or authority showing that a

proposed provision that ultimately was not adopted constitutes a change in interpretation.

Nor does Plaintiff identify how the definition can be a “convenient litigating

position,” when the regulation has never incorporated a jurisdictional provision. In fact,

Plaintiff does not identify any court case or other instance where Interior took a different


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position. Plaintiff’s argument is based entirely on the fact that Interior adopted new

regulations while the Apache Tribe of Oklahoma v. United States case was on remand to

the agency and in so doing, rejected a proposal that would have incorporated a

jurisdictional element. Plaintiff’s argument that Interior has not had a consistent position

on the Oklahoma Exception is thus unsupported and should be dismissed.

Plaintiff’s reliance on Apache as precedent here also is misguided. See P.I. Mem.

at 11-12 & Ex. 13. In Apache, the Court found that the record did not support a finding

that the lands at issue were “former reservation lands.” Here, Plaintiff does not contend

that the lands are not part of the Chickasaw Nation’s former reservation, but argues only

that Interior must consider whether the Chickasaw Nation has jurisdiction over the tract

when determining whether the lands are part of the “former reservation.” The 2017 Notice

of Decision specifically finds that the Terral Site is within the Chickasaw Nation’s former

historic reservation boundaries and that the Chickasaw Nation owns the property at issue.

See Ex. 1, Notice of Decision at 1-3. Apache also dealt with the approval of a tribal-state

compact pursuant to 25 U.S.C. § 2710(d)(8)(A). In that case, the land was already held in

trust by the United States. The Apache court also did not agree with Plaintiff that a former

reservation determination under 25 U.S.C. § 2719 includes a jurisdictional element.

Apache at 7. Instead, the court considered the jurisdictional element of the term “Indian

lands,” something Plaintiff has not argued here. Apache simply is not relevant.

Interior’s definition of “former reservation” is based on a permissible construction

of the statute. IGRA provides that gaming can occur on lands taken into trust after October


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17, 1988, if the Indian tribe did not have a reservation on that date, the lands are located in

Oklahoma, and are within the boundaries of the tribe’s former reservation. 25 U.S.C.

§ 2719. Nowhere does this provision require a finding that the Oklahoma tribe exercise

jurisdiction over the parcel taken into trust. The regulations track this language almost

exactly: to meet the exceptions in 25 U.S.C. § 2719(a), for a tribe without a reservation on

October 17, 1988, seeking to game on newly acquired land in Oklahoma, the land must be

“within the boundaries of the tribe’s former reservation or contiguous to other land held in

trust or restricted status for the tribe in Oklahoma.” 25 C.F.R. § 292.4.

Notably, Plaintiff makes no argument that this language is not a permissible

construction of the statute. It points to no language in the statute that would compel such

a finding. Its argument is solely that Interior considered but did not adopt a jurisdictional

provision when it passed regulations in 2008 and that tribes outside Oklahoma are at a

disadvantage. This argument is insufficient to prevail on its APA claim.

The Oklahoma Exception also does not discriminate against non-Oklahoma tribes,

as Plaintiff asserts. Instead, the regulations provide that for gaming to be allowed on newly

acquired lands under the exceptions in 25 U.S.C. § 2719(a), if a tribe located in a state other

than Oklahoma did not have a reservation on October 17, 1988, the land must be “within

the tribe’s last recognized reservation within the State or States within which the tribe is

presently located, as evidenced by the tribe’s governmental presence and tribal

population.” 25 C.F.R. § 292.4. There is good reason to include the Oklahoma Exception,

given the history of Oklahoma tribes. The Senate Committee on Indian Affairs noted in


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discussing 25 U.S.C. § 2719(a) that in Oklahoma, many tribes occupy and hold title to trust

lands that are not technically considered reservations. “This section is necessary, however,

because of the unique and historical and legal differences between Oklahoma and tribes in

other areas.” S. Rep. No. 99-493, 99th Cong., 2d Sess. 10 (1986).

Finally, this Court should reject Plaintiff’s suggestion that Murphy v. Royal, 866

F.3d 1164 (10th Cir. Aug. 8, 2017), indicates “that lands acquired in trust for the Chickasaw

after enactment of IGRA were not subject to IGRA’s ‘Oklahoma Exception,’ without

regard to the existence of governmental jurisdiction.” P.I. Mem. at 5 n.5. In Murphy, the

Tenth Circuit found that Congress never disestablished the Creek Reservation and that the

Oklahoma state court thus did not have criminal jurisdiction over events occurring on the

reservation. Id. at 1205. Murphy did not analyze the status of the Chickasaw Reservation

and strictly involved state criminal jurisdiction on Indian reservations. It should not be

extended beyond its facts, particularly here where Plaintiff has not demonstrated that doing

so is appropriate.4

B. PLAINTIFF HAS NOT ESTABLISHED A LIKELIHOOD OF IMMINENT IRREPARABLE HARM.

Plaintiff’s Motion also fails because Plaintiff has not shown that irreparable harm

4 A petition for rehearing was filed by Respondent on September 21, 2017, raising

questions as to the finality of the decision. See Ex. 8, Murphy Docket Sheet. The petition for rehearing is significant because Plaintiff admits its present argument hinges on the extension of the “groundbreaking” Murphy holding to the Chickasaws. Compl. ¶ 31. Not only is there no factual or legal basis to make such a leap, the pendency of Murphy, at a minimum, precludes Plaintiff from touting it as the basis for injunctive relief.


19

will occur absent immediate injunctive relief.

“To constitute irreparable harm, an injury must be certain, great, actual, ‘and not

theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (quoting

Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). Plaintiff must “show that the

injury complained of is of such imminence that there is a clear and present need for

equitable relief to prevent irreparable harm.” Id.; see also Prairie Band of Potawatomi

Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001) (emphasis in original). An injury

that is “merely serious or substantial” is not enough, and “simple economic loss usually

does not, in and of itself, constitute irreparable harm.” Heideman, 348 F.3d at 1289.

1. Plaintiff Has Not Shown a Concrete Harm.

Plaintiff’s irreparable harm claim is, because the Terral facility “lies less than 45

miles upriver” from the Comanche Red River Hotel Casino, it “is likely to have a

significant impact” on the revenues currently generated by the Comanche facility. P.I.

Mem. at 2–3. In support, Plaintiff relies on two affidavits. The first, by Jimmy W.

Arterberry, Tribal Administrator for the Comanche Nation, states that “58.38% of the

Nation’s annual budget derives from” revenues generated by the Comanche’s casino. P.I.

Mem. at Ex. 7 at 1–2. Mr. Arterberry also makes the conclusory statement that the

Chickasaw’s Terral facility “is certain to diminish patronage at the Nation’s Red River

Hotel Casino,” and that “[s]uch a tremendous loss of revenues would take a devastating

and irreparable toll.” Id. at 2. Missing from Mr. Arterberry’s affidavit, however, is any

evidence that he is qualified to opine on market shares, market saturation, revenue drivers,


20

or the gaming market in Oklahoma. He also fails to quantify the magnitude of the “certain

loss” or factually support his conclusion that revenues will be diminished.

Plaintiff’s second affidavit is similarly lacking in details. Michael Starr, Chief

Executive Officer of the Comanche Nation Entertainment, states the Terral facility “will,

indeed, cause a detrimental decrease in revenue” to the Comanche Nation and Comanche

Nation programs will “certainly suffer with the loss of revenue.” P.I. Mem. at Ex. 8 at 2–

3. Even if Mr. Starr is qualified to render those opinions, he still fails to establish imminent

irreparable harm. Mr. Starr does not address the size of the gaming market in Devol or

Terral, provide a factual basis to conclude that the Terral facility will saturate the market,

or quantify the magnitude of the financial loss to Plaintiff.

Plaintiff did not hire an economic expert to conduct an independent analysis, nor

did they provide any evidence beyond these two self-serving and conclusory affidavits. As

the Tenth Circuit held, unsupported “witness testimony about business decline, [even if]

sincere, does not meet the legal test.” Coal. of Concerned Citizens to Make ART Smart v.

FTA, 843 F.3d 886 (10th Cir. 2016); see also New Mexico Dep’t of Game & Fish, 854 F.3d

at 1253 (The general rule is “‘a preliminary injunction should not issue on the basis of

affidavits alone.’” (quoting Lane v. Buckley, 643 Fed. Appx. 686, 689 (10th Cir. 2016))).

Where Plaintiff fails to provide “any specific number or hard projections, for example, to

show how much business will be lost,” injunctive relief is not appropriate. Id.


21

2. Plaintiff Is Not Facing Imminent Harm.

Even if the Court gives some weight to Plaintiff’s affidavits, there is no evidence

establishing that the alleged economic injuries are “imminent.” Indeed, the legal

arguments advanced by Plaintiff challenge past agency action (namely, Interior’s

regulations which were passed in 2001 and 2008). But remedying past harm is not a proper

basis for injunctive relief. See Schrier, 427 F.3d at 1267; Coal. for Mercury-Free Drugs

v. Sebelius, 671 F.3d 1275, 1280 (D.C. Cir. 2012).

Plaintiff’s ultimate goal appears to be enjoining the opening of the Terral facility.

That relief is not available here, however, because NIGC has no role in nor any jurisdiction

to prevent the construction or operation of the Terral facility. Ex. 7, Wheeler Decl. at ¶¶5-

7, 10, 13. There is no further action for NIGC to take with respect to the Terral site or

facility and, therefore, no looming, yet-to-occur harm to enjoin. Id.

To the extent Plaintiff seeks a disfavored rescission of past agency action as an

indirect way of preventing the Terral facility from opening (inappropriate as that may be),

Plaintiff nonetheless has not demonstrated that it is facing “imminent” harm. To warrant

injunctive relief, “the injury must be ‘likely to occur before the district court rules on the

merits.’” New Mexico Dept. of Game & Fish, 854 F.3d at 1250 (quoting Greater

Yellowstone Coal v. Flowers, 321 F.3d 1250, 1260 (10th Cir. 2003)). In support of its

Motion, Plaintiff presented two photographs of the Terral facility. P.I. Mem., Exs. 2 & 3.5

5 Plaintiff cannot compare the photographs to establish the speed of construction.

The first does not show the entire structure and the photographs are not taken from the


22

The most recent photograph was taken less than one month ago and shows an incomplete

structure that is far from ready for public gaming. Id. at Ex. 3. That is the only evidence

before the Court as to the “imminence” of the harm Plaintiff claims will occur. Although

the Chickasaw Nation has submitted a facility license notification to the NIGC as required

by 25 C.F.R. Part 559, there is no evidence that a license issued. And even if the Chickasaw

Nation license the Terral facility, the NIGC does not approve the license and cannot prevent

or prohibit its issuance. There also is no evidence that the Chickasaw Nation is soliciting

resumes for potential employees or promoting and advertising the facility. There are no

“coming soon” advertisements or billboards, nor is there evidence that the Terral facility

has passed any of the building inspections required before it could open to the public.

Plaintiff presents no credible and concrete evidence that the facility will open before the

Court can resolve this case on the merits. Indeed, inquiries made by the Federal Defendants

to the Chickasaw suggest that a spring 2018 opening is projected, which leaves ample time

for a resolution of this dispute on the merits without the need for injunctive relief.6

3. Plaintiff’s Alleged Economic Harm Also is Not Irreparable.

Despite the confusion elsewhere in Plaintiff’s motion, one point is clear—Plaintiff’s

only claimed “irreparable harm” is purely economic. Plaintiff fears a loss of revenue,

same vantage point, which precludes a meaningful and accurate comparison.

6 This is particularly true given that Plaintiff’s claims will be decided based on the existing administrative record and without the need for a lengthy discovery period. Interior already compiled the administrative record and is formatting it for review and then service on Plaintiff and this Court.


23

nothing more. Under Tenth Circuit precedent, economic harm, alone, is not enough to

warrant the extreme remedy of a TRO or preliminary injunction. Notably, neither of

Plaintiff’s affiants assert that gaming at the Terral facility will force the Red River Casino

out of business. There also is no evidence that, if Plaintiff succeeds here, consumers who

choose to game at the Terral facility would not patronize the Comanche facility. See

Heideman, 348 F.3d at 1189 (considering the absence of any evidence that the affected

activities could not resume or that the subject establishments would be forced out of

business). There is no evidence that it would be difficult or impossible to stop any revenue

losses if Plaintiff ultimately prevails here, which is the hallmark of irreparable harm.

Plaintiff claims that the alleged harm is “irreparable” because the “Administrative

Procedures Act provides no potential monetary relief to a prevailing plaintiff.” P.I. Mem.

at 3. Following Plaintiff’s reasoning, there would be a blanket rule that economic loss

suffices when the defendant is a governmental body. That is not the case. See, e.g., Smith

v. United States, No. 13-cv-01156-RM-KLM, 2015 WL 584698, at *2 (D. Colo. Feb. 10,

2015) (alleging that litigant will suffer “abject poverty” was insufficient to show

irreparable loss because it was purely an economic harm). Plaintiff must do more to

establish irreparable harm.

Regardless, economic injuries stemming from competitor gaming facilities are

addressed in the Oklahoma Model Tribal Gaming Compact. OKLA. STAT. ANN. TIT. 3A, §

281 at Part 11(E)-(F) (West 2017). As Plaintiff states in the Complaint, “[t]he [Comanche]

Nation is therefore a ‘nearby Tribe’ within the meaning of the [Oklahoma State-Tribal]


24

Compact and eligible for prospective revenue from” the Terral facility. Compl. ¶ 8. The

Federal Defendants take no position on the validity of Plaintiff’s position at this time;

however, by Plaintiff’s own admission, it has a mechanism for recovering revenues lost to

the new facility. This admission undercuts any claim of irreparable harm

C. THE EQUITIES WEIGH AGAINST AN INJUNCTION.

A movant seeking a TRO or preliminary injunction bears the burden of establishing

that “the threatened injury to the movant outweighs the injury to the other party under the

preliminary injunction.” Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). The

movant also is required to demonstrate that the injunction “is not adverse to the public

interest.” Heideman, 348 F.3d at 1191 (citing Kikumura, 242 F.3d at 955).

First, Plaintiff failed to rebut the presumption that “all governmental action pursuant

to a statutory scheme is ‘taken in the public interest.’” Aid for Women v. Foulston, 441

F.3d 1101, 1115 n.15 (10th Cir. 2006). Though it is unclear precisely what Plaintiff is

challenging, all three Agency actions discussed in the Motion were taken pursuant to a

statutory scheme—IGRA or IRA. Therefore, there is a presumption that the requested

injunction would be against the public interest. Given that two of the subject actions

occurred more than ten years ago, this factor should be given even more weight because

the public has relied on and acted in accordance with those Agency decision for a

significant period of time. The Government has a strong interest in upholding statutory

and regulatory deadlines for public comments and legal challenges to its actions.


25

The Chickasaw Nation also would be impacted by Plaintiff’s requested injunction.

Plaintiff seeks “preliminary injunctive relief requir[ing] NIGC to act immediately to

rescind either or both” of the gaming ordinance and/or the facility license for the Terral

facility. P.I. Mem. at 18. But, as discussed above, NIGC does not issue facility licenses.

Ex. 7, Wheeler Decl. ¶¶3-7, 10, 13. Instead, the gaming ordinance approved by NIGC on

March 4, 1994, set the parameters by which the Chickasaw Nation may conduct gaming

on any eligible lands within the State of Oklahoma. Id. The relief Plaintiff seeks is not

possible, is not tied to the Federal Defendants’ allegedly arbitrary acts, and is not narrowly

tailored to address only the claimed irreparable harm.7

These significant impacts and interests weigh heavily against the issuance of a TRO

or preliminary injunction, particularly given that this case can be decided on the merits

before gaming begins at the Terral facility. Plaintiff’s Motion should be denied.

V. CONCLUSION For the reasons set forth above, the Federal Defendants request that the Court deny

the Comanche Nation’s motion for preliminary injunction.

7 Alternatively, if the Court construes Plaintiff’s motion as seeking the rescission of

the trust acquisition of the Terral site, that also would be harmful to the Chickasaw Nation and contrary to the public interest. In the Notice of Decision, Interior found that “acquisition of the Terral site will facilitate tribal self-determination, economic development, and Indian housing under Section 151.3(a)(3).” Ex. 1, Notice of Decision at 3. The Notice of Decision details the financial challenges resulting from recent tribal population growth, provides statistics on the demand for tribal programs, and enumerates projected budget shortfalls for eight tribal programs. Id. at 3-7.


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Respectfully submitted,

MARK A. YANCY United States Attorney

s/ AMANDA R. JOHNSON KAY SEWELL OK Bar No. 10778 AMANDA R. JOHNSON OK Bar No. 32575 Assistant U.S. Attorney United States Attorney’s Office Western District of Oklahoma 210 Park Avenue, Suite 400 Oklahoma City, OK 73102 (405) 553-8700 - (fax) 553-8885 Email: [email protected]

JEFFREY H. WOOD Acting Assistant Attorney General

Environment & Natural Resources Division

DEVON LEHMAN McCUNE Colorado Bar No. 33223 United States Department of Justice Environment and Natural Resources Division Natural Resources Section 999 18th Street, South Terrace, Suite 370 Denver, CO 80202 (303) 844-1487 (303) 844-1350-Fax Email: [email protected]




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CERTIFICATE OF SERVICE X I hereby certify that on September 25, 2017, I electronically transmitted the attached

document to the Clerk of Court using the ECF System for filing. Based on the electronic records currently on file, the Clerk of Court will transmit a notice of Electronic Filing to the following ECF registrants:

Richard J. Grellner RJG Law PLLC 434 NW 18th St Oklahoma City, OK 73103 Tel: 405-834-8484 Fax:405-602-0990 E-Mail: [email protected] Counsel for Plaintiff John P. Racin Law Office of John P. Racin 1721 Lamont St, NW Washington, DC 20010 Tel: 202-277-7691 Fax: 202-296-5601 E-Mail: [email protected] Counsel for Plaintiff

s/ Amanda R. Johnson AMANDA R. JOHNSON

Assistant U.S. Attorney




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