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Phase number 21-5009, Scotts Valley Band of FOMO Indians versus United States Department of the Interior et al.

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Yocha Dihi Winton Nation appellant.

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Mr. Adams for the appellant, Mr. Bergin for the appellee, Scotts Valley Band of FOMO Indians, Ms.

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Jill Akimari for the federal appellees.

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All right, Mr. Adams, good morning.

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Please proceed.

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Thank you, your honor, and may it please the court.

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Yochadi He seeks to intervene in defense of the Department of Interior Indian lands opinion that denies the Scotts Valley Band's request for permission to develop a casino.

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As things stand today, the opinion shields us from significant harm to our governmental, cultural, and economic interests, harm that is set out in declarations that have never been disputed at any stage of this case.

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If Scotts Valley were to prevail on the merits though, the opinion would be vacated.

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The matter would be returned to the Department of the Interior and on remand, Interior would be prevented from applying the regulatory requirement on which the opinion is based.

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This is the significant historical connection requirement of 25 CFR 292.12B.

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In other words, if Scotts Valley wins, Interior cannot reach the same result on remand.

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We have a concrete, particularized stake in the rule that's currently in place.

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And the threat and loss of that rule is imminent injury, in fact, under this court's precedent.

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On intervention as of right, the disputed issues are standing, impairment of interest, and inadequacy of representation.

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Unless the panel has other direction for me, I'll start with standing.

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Settled law, crossroads, fund for animals,

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gives us a standing test for a party intervening in defense of agency action.

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Intervener has standing if it benefits from the agency action.

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The action's challenged and an unfavorable outcome would remove the benefit, and that's what we have here.

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The opinion benefits Yochadihi by protecting it from harm.

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Scott's Valley has challenged it, and if Scott's Valley is successful, again, the opinion would be vacated.

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Interior would be foreclosed from reaching the same result on remand.

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Appellee's primary reliance is on the Deutsche Bank case, but that decision does not control here.

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First of all, it was not a case involving intervention in defense of agency action.

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It predates crossroads, doesn't change the rule that the loss of the favorable agency action is itself an imminent concrete injury impact.

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Deutsche Bank is cited in Appellee's briefs

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for the proposition that if a threshold legal determination must come out a certain way, standing is less likely.

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But that statement had to do with whether the Deutsche Bank intervener had a contractual interest in the funds edition in the case, not the question of imminence of injury, which is what's at issue here.

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Here, there's no threshold determination that's needed to establish your interest in keeping the opinion in place.

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That interest exists right now.

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And then finally- Excuse me, just one minute.

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Interest in the matter under litigation is if you want the mandatory intervention.

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What is your, your interest would legally protectable interest that would be involved in this litigation.

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Yeah, so, Your Honor, it is similar to the interest that was at stake in crossroads.

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So we have an interest in the rule that's currently in place.

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That interest is concrete and particularized in the injury.

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What is your legally protectable interest?

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Don't tell me how it's concrete or something.

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Tell me what the interest is that's being legally protected, being legally involved.

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Legally protectable interest that's involved in this litigation.

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Yeah, so peeling back the layers then.

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So what the rule blocks

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is significant harm to our economic cultural and governmental and it's the the worst that happens eventually is that that competitor comes into the field now is that is your desire to not have a competitor in the field is that illegally protectable interest it is in this case your honor

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Yeah, I've litigated a lot of cases from various tables on the questions that are protected by economic law like Sherman Acts in this country.

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And the catchphrase has always been that American competition law protects competition, not competitors.

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And is there a legally protectable interest on the part of a competitor against the entry by a competitor?

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Well, I think this court's

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precedent is fairly clear that there's a legally protectable interest when there is a dispute about the imposition or removal of a regulation.

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Yeah, that's that's that's clear that if there is a change in the level of the playing field that you have an interest in the level playing field.

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But here you're not you're not asking us to protect a level playing field you're asking us to protect the

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incumbent against entry of competitors into the playing field.

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And is that a legally protectable interest?

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It is your honor.

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And let me explain why.

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Um, so what's it goes back to the relief that Scotts Valley has requested here.

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So Scotts Valley has requested to vacate the opinion, but they've also requested that on remain to interior interior be enjoined from applying

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the significant historical connection requirement of 25 CFR 292.12B, right?

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And that regulatory provision was enacted to balance the interests of established tribes like Yojidee and restore tribes like Scotts Valley.

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So removing that regulation, which was designed in part to balance our interests,

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we think leads to illegally protected interests.

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You know, Appellee's other argument, of course, is that vacating the opinion would not give Scotts Valley the immediate right to build its casino, but Crossroads makes it clear that's not required.

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What matters under Crossroads is that the Indian lands opinion conclusively denies permission for Scotts Valley's project and prevents it from proceeding.

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And for Yojibihi, that loss of that favorable decision is the imminent harm.

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And we would just point out that on that score, our position is even stronger than the Crossroads intervener.

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Crossroads, the federal defendant had some discretion to reach the same result on remand, but here again, a Scotts Valley victory would prevent Interior from reaching the same result on remand by prohibiting application of the significant historical connection requirement.

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I see my time is ticking down.

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So just very briefly on the impairment problem of the Rule 24 inquiry.

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The issue there is, you know, the district court overlooks circuit law saying availability of future proceedings is not enough to deny intervention, as well as, again, Scotts Valley's request to constrain Interior's decision making on remand.

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On adequacy of representation,

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The bar is low and we clear it because our interests are more specific than the federal government's.

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That's been enough in cases like Diamond.

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And because the federal defendants now deny that we have any interest in the case at all.

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So it's more than doubtful that they could represent our interests as this litigation goes forward.

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Unless the panel has further questions for me, maybe I'll reserve the remainder of my time here.

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Uh, Miss Chilla Camari.

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Good morning, Judge Henderson.

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Um, actually by, um, agreement with, um, the federal defendants.

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Thank you.

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Good morning and may it please the court Patrick Bergen for the Scotts Valley Band of Pomo Indians.

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Under this court's case law, an intervener must have standing and to have standing, they must have an injury.

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And as Nuhon stated, the injury must be concrete and particularized.

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It must be actual or imminent.

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The fundamental question before the panel today is whether vacating the Indian land's opinion and remanding the case back to Interior would cause imminent harm to Yochadehi.

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The answer is- Let me ask you, what about the request that the department be restrained on remand?

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such that it could not make the type of argument that appellant maintains is protecting it here.

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Thank you, Judge Rogers.

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So two points on that.

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First of all, that claim in our complaint is our second claim.

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And that's not one of the claims that Yochi Dehi wishes to participate in.

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Second of all,

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Hold on, you have to speak more clearly for me so I understand.

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Your client is seeking to have the department enabled on remand from requiring the conditions that are, as I understand it, precisely what appellant says protects it

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against action of your client seeking to build a competing casino.

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Does that change the legal analysis that the court has to apply?

[00:10:22] Speaker 01:
It does not, Your Honor.

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Under the regulations, the Scotts Valley has to show three connections to the land in order for it to be

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eligible for gaming if that land is taken into trust.

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One of those connections is called a significant historical connection, and that requires simply that, that the tribe demonstrate that they have a significant historical connection to the land.

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This regulation is not something that's contained in the statute, and so out of the many claims that the tribe has filed in its APA action, it has stated that this requirement is not appropriate under the Indian Gaming Regulatory Act.

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But we've also asked, you know, that the court remand because, for example, the department didn't follow its own regulations in making a decision with regard to Scotts Valley's case and or that it didn't consider the evidence in whole.

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Those are the tribes third and fourth claims.

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And those are the claims that you should day.

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He says it wants to participate in.

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I probably am not entitled to ask this question.

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I'm going to anyway.

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Why do you care whether they intervene or not?

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Well, Your Honor, the restored lands analysis really does not contemplate the involvement of third parties.

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The issue is whether or not Scott's Valley itself has enough connections to the land that Scott's Valley's project could go through.

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How would their intervention hurt your ability to raise that matter in the court?

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I'm probably not entitled to ask you that.

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You may have some strategy that you don't want to tell me.

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Tell me you don't want to answer and I won't be mad at you if you don't want to answer that.

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I am curious as to why it matters to you, whether they get in or not.

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Well, I'll be frank, Your Honor.

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The reason it matters is because there is an Indian canon of construction that says that

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If there is an ambiguity in a statute that the courts are supposed to interpret that statute favorably toward Indian tribes.

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If there was more than one Indian tribe in a case, especially when they're on opposite sides, the court cannot possibly do that.

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So it's to our advantage to have only one Indian tribe in this case.

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Second of all, it's Scotts Valley's project.

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It's not Yochadaji's project.

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They were not the subject of the Indian lands opinion.

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They're not really referenced in the Indian lands opinion.

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Their connections to the land do not matter to Scotts Valley's Indian lands opinion.

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Thank you.

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Thank you.

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I do want to point out that, you know, there actually may not be a benefit in this case at all to Yoshidehi.

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And this kind of goes toward the eminence issue and also whether or not their injury is even concrete.

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As our brief points out, there are many hurdles for Scotts Valley to clear before it can open a gaming facility.

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And among these is an environmental review under NEPA and obtaining a class three gaming contract with the state of California.

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If the environmental review shows that the proposed casino footprint is too large and not suitable for the area, Scotts Valley may have to open a smaller casino, which would of course be less competitive, if even competitive at all.

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And if Class Valley is unable to obtain a gaming compact with California, it could still operate gaming, but it would essentially be only able to operate bingo.

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And a bingo hall would be no match to Yocha Dehi's Las Vegas-style resort.

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If there are no further questions, I think I'm at the end of my time.

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Thank you.

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Have I lost audio?

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Have I lost audio or?

[00:14:13] Speaker 03:
I hear you.

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I hear you.

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All right.

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Please go ahead.

[00:14:20] Speaker 04:
Good morning, Your Honors.

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May it please the court.

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My name is Virucha Lukumari for the United States.

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Not all interests give rise to the right to be a party.

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And while Yochadehi may have a genuine concern about a potential future competitor, that concern is not a sufficient basis to make it a co-defendant in this APA challenge to a federal determination.

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Yochadehi has been given the right to participate below as an amicus.

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And we think that is a sufficient vehicle for Yochadehi to make its views known and considered

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in this court.

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I think there are a number of reasons.

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There are differences between being an amicus and being an intervener.

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An intervener has rights in the litigation that an amicus does not have.

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So giving them amicus status doesn't satisfy their potential needs, does it?

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Well, it's true, Your Honor.

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There are differences.

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I think that in this particular case,

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though that ability to participate in a meeting.

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I'm like Judge Rogers, I'm going to ask you to slow down speak a little more clearly, please.

[00:15:29] Speaker 04:
So we think in this particular case, the ability to be an amicus actually does get them pretty far.

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For one thing, this is an APA case that will be decided on a record that's already been provided to the court.

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The agency's decision will have to rise or fall based on the arguments of the agency made already, not based on new evidence or post hoc rationalizations.

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The other thing to point out, though, is that one of the reasons why people want to become parties is the right to appeal.

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But under the DC Circuit's rule under Occidental Petroleum, a remand to the agency would not be considered a final judgment that could be immediately appealable.

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So we think it matters less in a case like this, whether they have amicus standing, I think, gives them

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all of the same ways to provide their views to the court.

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So the concern, as I understand it, principally is that the court not limit the department on remand to the conditions it can require.

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Why isn't that a live controversy here in the sense that Pelland is not a stranger to the matter?

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How will we characterize it?

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The Apo East, Scotts Valley,

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has made its intention clear.

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So the ship is moving forward and the terms of what the future proceedings involve are at stake and yet

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a felon can speak as a friend of the court, but not actually be a party.

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I think I might have missed part of the question, but to start with, I think what the first part was about the ability to restrict the department's authority on remand.

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I do want to echo, I think, what Mr. Bergen noted, which was that Yocha Dehi has disclaimed any interest

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In arguing about that particular claim at J a 96 is where he said that he wants to limit its partner focus its participation on claims three and four.

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Claims two of Scott's Valley's complaint is the claim that argues that the regulation is invalid.

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That would, if that were, if the district court found the regulation invalid and if the government didn't appeal, that would limit the department's consideration on remand.

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But Yochidehi has actually said that it focuses its participation on claims three and claims four.

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We know, counsel, but you know,

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Parties want to focus on and what courts do and not always one and the same.

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So I guess this is not some stranger being concerned, that's all.

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And I understand why Judge Sentel limited his question to at Pelley Scott's band.

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But it's a little different, I thought.

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Yes, I would say that, Your Honor, the question for the burden on the movement is to show that it's going to be injured if the case, if Scotts Valley is successful in the case below.

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And while Yochidehi certainly provided information at the administrative level, and that administration was considered, and Yochidehi may have concerns about the ultimate

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course of events in terms of the gaming casino, it is not going to be, there will be no real-world impact.

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There will be no injury, even if the case is remanded.

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And even if- Well, I guess what I'm getting at is Judge Santel's point.

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There may be an injury, all right, but the sort of protection that appellate is seeking is not one that the law provides.

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In other words, they'd like to operate competitor free.

[00:20:38] Speaker 04:
I understand your honor that I think the district court assumed without deciding that competitive injury could serve as a potential concrete and particularized it can but the question that I had was.

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Does the competitive injury that the law protects against include the injury simply of the presence of a competitor, as opposed to some regulatory change that affected the levelness of the playing field?

[00:21:07] Speaker 03:
I don't think that's what you're addressing, and I think that's what Judge Rogers was asking you about.

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I understand, Your Honor.

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I believe that the cases do, you know, the D.C.

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Circuit does recognize competitive injury, and I think the test is about whether or not you're allowing a new entrant into the market.

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We didn't opine on this below, obviously, and the district court, I think, didn't as well.

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I think because the first and foremost threshold question is, even if you assume that this would be, would satisfy competitive injury, it's not imminent.

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It's a speculative whether or not

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the casino will even be built, will even get the relevant approvals that are necessary because the Indian lands opinion that's at issue in this case is simply the threshold determination.

[00:21:53] Speaker 05:
Oh, I understand.

[00:21:56] Speaker 05:
I just wonder about the implications of this type of holding in other situations.

[00:22:01] Speaker 05:
That's all.

[00:22:02] Speaker 05:
At what point does someone who sees the ship approaching and the ship is not turning around

[00:22:10] Speaker 05:
Yeah.

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Has to stand by until the ship is literally upon it.

[00:22:16] Speaker 04:
I understand.

[00:22:17] Speaker 04:
I think I would point the court to the Sakokan Chippewa versus Babbitt case, which is cited in, I believe it's cited in Scottsdale.

[00:22:25] Speaker 03:
Once again, counsel, if you'll listen to how slow I'm speaking, that's how slow I listen, too.

[00:22:29] Speaker 03:
So if you could keep that in mind as you're talking, please.

[00:22:33] Speaker 04:
Yes, your honor.

[00:22:34] Speaker 04:
I would, on this question of kind of the, when can the parties

[00:22:38] Speaker 04:
stop a ship.

[00:22:40] Speaker 04:
I would point the court to the Sikogin Chippewa versus Babbitt case that's cited in the Scots Valley's brief.

[00:22:47] Speaker 04:
The citation is 214, F3, 941.

[00:22:53] Speaker 04:
That's a Seventh Circuit case, but it talks about this question of when you have a challenge to a, after the Indian land's opinion, I think at that point you were in a land and to trust decision, and there was a challenge

[00:23:08] Speaker 04:
by an intervener to the potential land and to trust, which is the next step in this process.

[00:23:14] Speaker 04:
And the court, you know, talks about how even then it's still speculative.

[00:23:19] Speaker 04:
And because we don't even know if there will be a casino in, and even if there is a casino, we don't know how competitive and whether it will actually be a successful casino.

[00:23:28] Speaker 04:
I think that's the best case I could point you to on that issue.

[00:23:33] Speaker 05:
All right.

[00:23:34] Speaker 05:
So you're saying the law is that you have to wait till the casino is built.

[00:23:39] Speaker 04:
I don't, I think in terms of standing it's an elastic concept and the courts haven't been that clear about it.

[00:23:46] Speaker 04:
I do think it is clear that this is definitely too soon because we're at the threshold, legal determination and, you know, unfortunately, because it is an elastic concept I think as you get closer to it, the controversy sharpens.

[00:24:01] Speaker 04:
there is question about the subsequent steps.

[00:24:04] Speaker 04:
For example, if the department granted the land into trust and actually took this parcel into, you know, took title of the parcel for the tribe, at that point, you might have a more concrete injury.

[00:24:16] Speaker 04:
But certainly, I think the law is clear that this, at this point, when you only have an illegal opinion, an interior department opinion, that is too soon in the process.

[00:24:30] Speaker 06:
If there are no more questions, Mr. Adams, why don't you take two minutes?

[00:24:38] Speaker 02:
Thank you, Your Honor.

[00:24:39] Speaker 02:
I appreciate it.

[00:24:40] Speaker 02:
So a few clarifications.

[00:24:42] Speaker 02:
First, we have not disclaimed anything as the federal defendants subsequently read to you.

[00:24:51] Speaker 02:
We have said we would focus our participation on certain issues, but those two words are not the same, and they don't mean the same thing.

[00:24:58] Speaker 02:
Mr. Bergen mentioned that Scotts Valley has to show three connections, just to sharpen the point that you and Judge Santel were making.

[00:25:06] Speaker 02:
The opinion already says they meet two of them, and they're seeking to enjoin Interior from applying the third.

[00:25:14] Speaker 02:
So the dispute is pretty sharp at this point.

[00:25:18] Speaker 02:
Both appellees mentioned that there were additional hurdles.

[00:25:22] Speaker 02:
I think there was a mention of an environmental review process.

[00:25:27] Speaker 02:
Those hurdles are about how Scotts Valley operates its project, not whether it can conduct gaming in the first place.

[00:25:34] Speaker 02:
And more generally, of course, Crossroads makes it clear that the existence of additional agency decision-making does not preclude standing.

[00:25:42] Speaker 02:
That was a case where there were several rounds of agency decision-making between the loss of the favorable agency action and the underlying concern that the intervener had.

[00:25:52] Speaker 02:
On competitive standing, the cases are clear.

[00:25:59] Speaker 02:
If the competitors are in the same market,

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competitive standing exists.

[00:26:03] Speaker 02:
And here, it's undisputed that Scotts Valley is seeking to enter Yojideke's core gaming market.

[00:26:11] Speaker 02:
And then finally, on this Seventh Circuit case that the federal appellees mentioned, this is an issue where the distinction between the Seventh Circuit and this court really matters.

[00:26:23] Speaker 02:
Crossroads in fun for animals matter.

[00:26:26] Speaker 02:
Those two cases stand for the proposition that the loss of the favorable agency action itself constitutes imminent injury.

[00:26:34] Speaker 02:
In fact, there's no equivalent rule articulated in the seventh circuit case and the nature of the harm and the evidence at issue there were very different.

[00:26:46] Speaker 02:
Unless the court has further questions for me, I will rest there.

[00:26:51] Speaker 06:
All right, thank you, counsel.

[00:26:53] Speaker 06:
Madam Clerk, if you would call the next case.