from the United States District Court for the District of New
Mexico (D.C. No. 1:14-CV-00695-JAP-SCY)
David Gunter II, U.S. Department of Justice, Environment
& Natural Resources Div., Washington, D.C. (John C.
Cruden, Assistant Attorney General, Steven Miskinis and Yosef
M. Negose, U.S. Department of Justice, Environment &
Natural Resources Div., Washington, D.C., with him on the
briefs), for Defendants-Appellants.
Steffani A. Cochran, Pueblo of Pojoaque Legal Department,
Santa Fe, New Mexico, and Scott Crowell, Crowell Law Offices,
Sedona, Arizona, for Intervenor Defendant-Appellant.
D. Miller, Perkins Coie, Seattle, Washington (Jennifer A.
MacLean, Perkins Coie, Washington, D.C., and Jeremiah L.
Ritchie, Office of the Governor, Santa Fe, New Mexico, with
him on the briefs), for Plaintiff-Appellee.
HOLMES, McHUGH, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
State of New Mexico ("the State" or "New
Mexico") brought suit against the Department of the
Interior ("DOI") to challenge its authority to
promulgate the regulations found at 25 C.F.R. § 291
et seq. ("Part 291"). The challenged
regulations concern the process under which Indian tribes and
states negotiate compacts to allow gaming on Indian lands.
Congress established in the Indian Gaming Regulatory Act
("IGRA"), 25 U.S.C. § 2701 et seq.,
that states have a duty to negotiate in good faith with
tribes regarding compacts and that tribes could enforce this
duty by bringing suit in federal court. As the Supreme Court
would later decide, however, Congress lacked the authority to
make states subject to suit by Indian tribes in federal
court. Seminole Tribe of Fla. v. Florida, 517 U.S.
44 (1996). However, the Court left intact the bulk of IGRA,
and Congress has not amended it in the intervening years.
specifically, IGRA provides that when a tribe believes a
state has failed to negotiate in good faith, the tribe may
sue in federal court to, inter alia, obtain an order
enjoining a state to negotiate a gaming compact and
potentially subjecting the state to court-ordered mediation
or the issuance of gaming procedures by the Secretary of the
Interior ("the Secretary") without the state's
consent. However, the Supreme Court, in Seminole
Tribe, made clear that a state can invoke sovereign
immunity in response to such a suit, thus effectively
sidestepping the process that IGRA contemplates. See
id. at 47 ("We hold that notwithstanding
Congress' clear intent to abrogate the States'
sovereign immunity, the Indian Commerce Clause [U.S. Const.
art. I, § 8, cl. 3] does not grant Congress that power,
and therefore [25 U.S.C.] § 2710(d)(7) cannot grant
jurisdiction over a State that does not consent to be
sued."). In response to Seminole Tribe, DOI
promulgated Part 291 to allow the Secretary to prescribe
gaming regulations for a tribe following the dismissal of a
tribe's suit against a state on sovereign-immunity
relevant here, the Part 291 process was implicated after the
Pueblo of Pojoaque tribe ("the Pojoaque" or
"the Tribe") sued New Mexico under IGRA and the
State asserted sovereign immunity. Following the dismissal of
the case on sovereign-immunity grounds, the Pojoaque asked
the Secretary to prescribe gaming procedures pursuant to Part
291. Before the Secretary did so, New Mexico filed the
present suit, seeking a declaration that the Part 291
regulations are not a valid exercise of the Secretary's
authority. The Pojoaque intervened.
district court granted New Mexico's motion for summary
judgment and denied that of DOI, holding that the Part 291
regulations are invalid and barring the Secretary from taking
any further action on the Pojoaque's request for the
issuance of gaming procedures under them. DOI and the
Pojoaque now appeal from this order; they challenge the
State's standing, the ripeness of the dispute, and the
district court's holding that Part 291 is an invalid
exercise of the Secretary's authority. Exercising our
jurisdiction under 28 U.S.C. § 1291, we conclude that
the dispute is justiciable and affirm the district
1987, the Supreme Court held that states lack regulatory
authority over gaming activities on Indian land except where
Congress has expressly provided for such authority.
California v. Cabazon Band of Mission Indians, 480
U.S. 202, 207 (1987). Following this ruling, Congress enacted
IGRA, 25 U.S.C. § 2701 et seq., which gives
states a role in the regulation of Indian gaming. The act
divides gaming into three classes. See 25 U.S.C.
§ 2703. The present case concerns Class III gaming,
which includes the most lucrative forms of gaming. 25 U.S.C.
§ 2703(8); see Seminole Tribe, 517 U.S. at 48
("Class III gaming . . . includes such things as slot
machines, casino games, banking card games, dog racing, and
lotteries."). Under IGRA, Class III gaming activities
"shall be lawful on Indian lands only if such activities
are conducted in conformance with a Tribal-State compact
entered into by the Indian tribe and the State [where the
gaming is located] . . . that is in effect." 25 U.S.C.
§ 2710(d)(1)(C). An Indian tribe desiring such a compact
"shall request the State . . . to enter into
negotiations for the purpose of entering into a Tribal-State
compact governing the conduct of gaming activities. Upon
receiving such a request, the State shall negotiate with the
Indian tribe in good faith to enter into such a
compact." 25 U.S.C. § 2710(d)(3)(A).
case concerns how the process unfolds in the event that these
negotiations do not commence following a tribe's request
or are unsuccessful. The statute provides that if no
agreement is reached within 180 days of a tribe's request
for negotiation, the tribe may initiate a "cause of
action . . . arising from the failure of [the] State to enter
into negotiations with the Indian tribe for the purpose of
entering into a Tribal-State compact . . . or to conduct such
negotiations in good faith." 25 U.S.C. §
2710(d)(7)(A)(i) and (B)(i). It further provides
that federal district courts shall have jurisdiction over
such a suit. 25 U.S.C. § 2710(d)(7)(A)(i). If the
district court in which a suit is filed finds that the state
has failed to negotiate in good faith, "the court shall
order the State and the Indian Tribe to conclude such a
compact within a 60-day period." 25 U.S.C. §
2710(d)(7)(B)(iii). If the parties fail to reach an agreement
within sixty days, the statute outlines a process under which
the tribe and the state each would submit a proposed compact
to a mediator, and the mediator would select one. 25 U.S.C.
§ 2710(d)(7)(B)(iv). At that point, the state may
consent to the selected compact or it may decline to do so.
If the state does not consent, the mediator is required to
notify the Secretary, who "shall prescribe, in
consultation with the Indian tribe, procedures . . .
consistent with the proposed compact selected by the mediator
. . . under which Class III gaming may be conducted." 25
U.S.C. § 2710(d)(7)(B)(vii)(I) to (II).
Supreme Court's ruling in Seminole Tribe
complicated the process outlined above. In that case, the
Court held, in the context of the Indian Commerce Clause,
that "the Eleventh Amendment prevents congressional
authorization of suits by private parties against
unconsenting States, " and therefore a case against a
state concerning whether it has failed to negotiate with a
tribe in good faith cannot proceed unless the state has
statutorily or otherwise waived its sovereign immunity or
fails to assert its immunity as a defense. 517 U.S. at 72.
However, states still retain the obligation to negotiate in
good faith under 25 U.S.C. § 2710(d)(3)(A).
Seminole Tribe, DOI issued the Part 291 regulations
to provide an alternative administrative remedial scheme that
applies when a state asserts sovereign immunity in a §
2710(d)(7) suit. 25 C.F.R. § 291.1. Under these
regulations, when a district court dismisses a suit following
a state's assertion of sovereign immunity, the tribe
"may ask the Secretary to issue Class III gaming
procedures" by submitting proposed
procedures. 25 C.F.R. §§ 291.3, 291.4. Upon
receipt of such a request, the Secretary must "notify
the Indian tribe in writing whether the Indian tribe meets
the eligibility requirements in § 291.3." 25 C.F.R.
§ 291.6. If the tribe meets those requirements, which
are not directly at issue here, then the Secretary is
required to submit the tribe's proposed procedures to the
state, which then has sixty days to comment on the proposal.
25 C.F.R. § 291.7(a), (b). The Secretary "will also
invite the [state] to submit an alternative proposal."
25 C.F.R. § 291.7.
nature of the remainder of the process depends on whether the
state submits its own proposal. In cases in which the state
declines to do so by the end of the sixty-day comment period,
the regulations set forth a process under which the Secretary
ultimately approves the tribe's proposal, and accordingly
issues "Secretarial Procedures" allowing gaming on
the tribe's land, or disapproves the tribe's proposal
for one of seven reasons listed in Section 291.8(a).
See 25 C.F.R. § 291.8. On the other hand, if
the state submits an alternative proposal within the
sixty-day period, the Secretary must appoint a mediator to
"convene a process to resolve differences between the
two proposals." 25 C.F.R. § 291.9(b). The mediator
is charged with "select[ing] from the two proposals the
one that best comports with the terms of IGRA and any other
applicable Federal law. The mediator must submit the proposal
selected to the Indian tribe, the State, and the
Secretary." 25 C.F.R. § 291.10(b). Following the
mediator's decision, the Secretary must either approve
the chosen proposal, and issue Secretarial Procedures, or
disapprove it for one of the seven reasons listed in Section
291.11(b) (which mirror those found in Section 291.8(a)). 25
C.F.R. § 291.11(a) and (b). If the proposal is
not approved at this stage, then the Secretary "must
prescribe appropriate [Secretarial Procedures] within 60 days
under which Class III gaming may take place that comport with
the mediator's selected proposal as much as possible, the
provisions of IGRA, and the relevant provisions of the laws
of the State." 25 C.F.R. § 291.11(c).
genesis of this case is the Pojoaque's attempt to
negotiate a Class III gaming compact with New Mexico. More
than 180 days after the Pojoaque submitted a request to
negotiate with the State, the Tribe brought suit under IGRA
in federal district court, seeking a declaration that New
Mexico had failed to negotiate in good faith. New Mexico
asserted sovereign immunity, and the court dismissed the case
on that basis. The Pojoaque then asked the Secretary to
initiate the Part 291 process and issue Class III gaming
procedures. The Secretary subsequently informed New Mexico
that DOI had determined, pursuant to 25 C.F.R. § 291.6,
that the Pojoaque had met the eligibility requirements of the
Part 291 regulations; the Secretary thus invited the State to
comment on the Pojoaque's proposal or submit an
alternative proposal within sixty days.
the end of the sixty-day period, New Mexico filed this case
against the Secretary, seeking a declaration that the Part
291 regulations are invalid and an order enjoining DOI from
developing Secretarial Procedures for the Pojoaque pursuant
to the regulations. The Tribe filed a motion to intervene;
the district court granted it, but only on a permissive
basis, pursuant to Federal Rule of Civil Procedure 24(b).
More specifically, the court allowed the Tribe "to
intervene as a defendant . . . and join in the other
Defendants' motion for summary judgment on the purely
legal question of [the regulations'] validity."
Aplee.'s Supp. App. at 71-72. New Mexico then filed a
motion for a preliminary injunction, which the district court
denied. Following the denial of its motion, the State
submitted comments and an alternative proposal to the
Secretary. See Aplee.'s Br. at 14.
State, and the Secretary joined by the Pojoaque, subsequently
moved for summary judgment. The district court granted New
Mexico's motion and denied that of the Secretary, which
also effectively denied the Tribe relief. The court ruled
that (1) New Mexico had standing to bring suit, (2) its
challenge was ripe for judicial review, (3) the Part 291
regulations were not a valid exercise of the Secretary's
power under IGRA, and (4) Seminole Tribe did not
require the court to hold any additional IGRA provisions
invalid, an issue that the Pojoaque had raised in its
memorandum in support of the Secretary's motion. The
court thus barred the Secretary and DOI "from taking any
further action to enforce 25 C.F.R. § 291 et
seq." Aplts.' App. at 66. The Secretary and the
Pojoaque now appeal.
appeal, DOI and the Pojoaque contend that (1) New Mexico
lacks standing to challenge the Part 291 regulations, (2) the
State's claim is not ripe, and (3) the regulations are a
valid exercise of the Secretary's authority under IGRA.
The Pojoaque further asserts that if we were to conclude that
Part 291 is invalid, we should undertake a severability
analysis and, in light of the Supreme Court's decision in
Seminole Tribe, strike down additional portions of
IGRA because IGRA's jurisdiction-granting clause is not
severable. Below, we first determine that New Mexico has
standing and its claim is ripe; thus, we may properly
exercise jurisdiction. Next, we conclude that the Part 291
regulations are not a valid exercise of the Secretary's
authority; specifically, they are invalid because they are
foreclosed by IGRA's unambiguous text. Lastly, we
determine that the severability issue raised by the Pojoaque
is properly before us but that the jurisdiction-granting
clause is severable. We thus affirm the district court's
grant of New Mexico's motion for summary judgment and its
denial of the Secretary's motion for summary judgment.
first contends that New Mexico lacks standing. "The
constitutional requirements for standing are (1) an injury in
fact, (2) a causal connection between the injury and the
challenged act, and (3) a likelihood that the injury will be
redressed by a favorable decision." Roe No. 2 v.
Ogden, 253 F.3d 1225, 1228-29 (10th Cir. 2001) (citing
Vt. Agency of Nat. Res. v. United States ex. rel.
Stevens, 529 U.S. 765, 771 (2000)). Before us, DOI
challenges New Mexico's standing only on the basis of the
first requirement, arguing that the State has suffered no
injury in fact. The district court rejected this argument,
finding that the State had demonstrated an injury sufficient
for standing purposes. We review this finding de novo,
see Roe No. 2, 253 F.3d at 1228, and conclude that
New Mexico has demonstrated an injury in fact on two
independent bases: first, it has suffered a procedural injury
in that the Part 291 regulations have stripped New Mexico of
certain procedural protections or benefits conferred by IGRA;
and, second, it has been subjected by DOI to a harmful forced
choice regarding whether to participate in the allegedly
unlawful Part 291 process. Our confidence in our holding on
both fronts, moreover, is bolstered by our recognition that,
as a state, New Mexico is entitled to special solicitude on
the issue of standing.
Mexico has standing because it has suffered a procedural
injury. The Supreme Court has recognized that, for standing
purposes, a party's injury may be a procedural one
"so long as the procedures in question are designed to
protect some threatened concrete interest of [the party] that
is the ultimate basis of [its] standing." Lujan v.
Defs. of Wildlife, 504 U.S. 555, 573 n.8 (1992); see
also Summers v. Earth Island Inst., 555 U.S. 488, 496
(2009) (recognizing that standing may be grounded in "a
procedural right [that a person has been accorded] to protect
his concrete interests" (quoting
Lujan, 504 U.S. at 572 n.7)); WildEarth
Guardians v. EPA, 759 F.3d 1196, 1205 (10th Cir. 2014)
(noting that, to demonstrate an injury in fact, a plaintiff
need only show that the procedures at issue "are
designed to protect some threatened concrete interest of [the
person] that is the ultimate basis of standing"
(alteration in original) (quoting S. Utah Wilderness All.
v. Office of Surface Mining Reclamation & Enf't,
620 F.3d 1227, 1234 (10th Cir. 2010))). To establish standing
in such circumstances, a plaintiff "need show only that
compliance with the procedural requirements could
have better protected its concrete interests, "
WildEarth Guardians, 759 F.3d at 1205, and thus that
the procedural violation created a "risk of real harm,
" Spokeo, Inc. v. Robins, ___ U.S.
___, 136 S.Ct. 1540, 1549 (2016). Further, the Court observed
in Lujan that "'procedural rights' are
special: The person who has been accorded a procedural right
to protect his concrete interests can assert that right
without meeting all the normal standards for redressability
and immediacy." Lujan, 504 U.S. at 572 n.7
("Thus, under our case law, one living adjacent to the
site for proposed construction of a federally licensed dam
has standing to challenge the licensing agency's failure
to prepare an environmental impact statement, even though he
cannot establish with any certainty that the statement will
cause the license to be withheld or altered, and even though
the dam will not be completed for many years.").
frequently found standing based on a procedural injury in
cases in which environmental groups have alleged that an
agency failed to follow the required procedures in taking an
action that negatively impacted members' concrete
interest in protecting and enjoying the affected land.
See, e.g., WildEarth Guardians, 759 F.3d at
1205 (concluding that the failure of the Environmental
Protection Agency ("EPA") to consult with another
federal regulatory agency before issuing a federal
implementation plan was a procedural injury that supported
standing because adherence to procedural requirements could
have better protected plaintiff members' concrete
interest in enjoyment of land); S. Utah Wilderness
All., 620 F.3d at 1235 (concluding that plaintiff had
standing to challenge Office of Surface Mining Reclamation
and Enforcement's failure to prepare a recommendation to
DOI regarding a private party's mining plan because this
procedural injury affected plaintiff's concrete interest
in protecting the area where mining was to take place);
see also Summers, 555 U.S. at 497 (suggesting that
plaintiffs would have had standing based on procedural injury
had they been denied the opportunity to file comments on a
Forest Service plan that would have impinged on their
concrete interest in observing nature in the specific area
addition to environmental cases, courts have also relied on
the procedural-injury doctrine in other contexts in which
statutorily mandated procedures were designed to protect
plaintiffs' interests. See, e.g., Parsons v.
U.S. Dep't of Justice, 801 F.3d 701, 712-13 (6th
Cir. 2015) (concluding that "Juggalos, " fans of
the Insane Clown Posse musical group, had standing where they
alleged that the National Gang Intelligence Center had
violated the Administrative Procedure Act ("APA")
in issuing a report on gang activity without adhering to
required procedures, thus causing them to be discussed in a
report, which in turn caused concrete harm to their
reputational interests); Beeman v. TDI Managed Care
Servs., Inc., 449 F.3d 1035, 1039-40 (9th Cir. 2006)
(holding that plaintiff pharmacies "ma[d]e out a
procedural injury: the failure on the part of the [Pharmacy
Benefit Managers] to follow the statutory procedures
requiring [that] they conduct studies and provide them to
third parties, " a failure that threatened the
pharmacies' interest in the outcome of future third-party
vein, New Mexico has demonstrated a procedural injury
sufficient for Article III standing in the present case.
Specifically, New Mexico asserts that the Part 291
regulations deprive it of a procedural right that IGRA
accords states-specifically, the right to a judicial finding
that it has failed to negotiate in good faith,
before a mediator or the Secretary are authorized to
become involved in defining the terms under which Class III
gaming can be conducted within its borders. See 25
U.S.C. § 2710(d)(7)(B)(iii)-(vii) (outlining the process
under which a tribe may ask the Secretary to prescribe gaming
procedures following a judicial finding that a state has
failed to negotiate in good faith). Indeed, absent a judicial
finding that a state has not negotiated in good faith, a
tribe cannot secure Class III gaming under the regime of IGRA
without directly engaging with a state and hammering out the
terms of a compact. See Texas v. United States, 497
F.3d 491, 494 (5th Cir. 2007) ("If the court finds the
state negotiated in good faith, the tribe's proposal [for
Class III gaming] fails"); id. at 508
("IGRA allows Class III gaming to be imposed by the
Secretary following exhaustion of the judicial
good-faith/mediation process . . . ."). This procedural
right is designed to protect the State's interest in
helping to shape without federal interference the terms under
which the Pojoaque may conduct Class III gaming within its
territory. Even DOI recognizes that the State's interest
in such gaming terms is not insubstantial or speculative.
See Aplt. DOI's Opening Br. at 22 ("[T]he
State's concrete interest lies in the terms on which a
tribe may (or may not) conduct gaming-for example, the types
of gaming allowed or whether the tribe will rely on the State
for particular services."). It is clear to us that the
loss of this procedural right-which the Part 291 regulations
would allegedly effect-at least threatens this concrete
interest by fundamentally changing the process under which a
state and a tribe negotiate a compact and, more specifically,
altering the circumstances under which the tribe may bypass
the state and seek relief from DOI. See Texas, 497
F.3d at 508 ("Under the Secretarial procedures, however,
it matters not that a state undertook good-faith negotiations
with the tribe: The Secretary may prescribe Class III gaming
irrespective of a state's good faith."). This
substantial risk to this interest establishes the requisite
injury in fact for standing purposes. See Spokeo,
136 S.Ct. at 1549 (noting that a procedural violation may
amount to an injury in fact where it creates a "risk of
real harm"). We therefore conclude that New Mexico has
demonstrated that it has suffered a procedural injury as a
result of the Part 291 regulations.
validity of this conclusion is underscored by the D.C.
Circuit's analysis in Delaware Dep't of Nat. Res.
& Envtl. Control v. Fed. Energy Regulatory
Comm'n, 558 F.3d 575 (D.C. Cir. 2009), which
discusses the Fifth Circuit's reasoning in Texas v.
United States, a case in which Texas challenged the Part
291 regulations on the same basis that New Mexico has here
and the court held that Texas had standing to do
Although the Fifth Circuit's opinion did not explicitly
characterize the injury that Texas had suffered as a
procedural one, in later interpreting its injury-in-fact
ruling, the D.C. Circuit commented that
the key to the court's conclusion that Texas had suffered
an injury-in-fact was that Texas had been deprived of an
alleged statutory procedural protection-a court finding on
whether Texas had negotiated in bad faith-that bore on the
likelihood of an ultimate concrete injury, i.e., the
Secretary's approval of an Indian gaming proposal.
Delaware Dep't of Nat. Res. & Envtl.
Control, 558 F.3d at 579. Thus, the D.C. Circuit
reasoned, the injury that prompted the Texas court
to find standing was the procedural injury to Texas of being
deprived of a bad-faith finding. This characterization of
Texas aligns perfectly with our conclusion that New
Mexico has suffered a procedural injury sufficient to support
standing in the present case by being deprived of a judicial
determination regarding its alleged failure to negotiate in
New Mexico has a procedural right to a judicial determination
of bad faith followed by the statutory mediation process.
That process is designed to protect a state's economic
and other interests in the regulation of Class III gaming on
tribal land, and the circumvention of the statutory process
threatens to harm those interests by allowing the issuance of
gaming procedures without the state's consent. This
deprivation of a procedural right designed to protect a
concrete interest is sufficient to establish standing.
addition to the procedural injury discussed above, we
alternatively conclude that New Mexico has suffered an injury
because the Part 291 regulations have imposed a forced choice
on it: At the end of the process that the regulations
contemplate, the Secretary will necessarily issue
procedures that will govern the Tribe's Class III gaming
activities in New Mexico; if New Mexico wants to have any
input into the content of those procedures, it is
forced (i.e., compelled) to participate in the Part
291 process, even though it deems that process unlawful,
thereby suffering a cognizable injury for standing purposes.
Put another way, the Part 291 regulations injure New Mexico
by forcing it to choose between participating in a process it
considers unlawful and forgoing any benefit from that
allegedly unlawful process-viz., the benefit of
being able to offer input, presumably beneficial to its
interests, relating to the content of those procedures.
See Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 582 (1985) ("[A]ppellees clearly have standing
to contest EPA's issuance of follow-on registrations
pursuant to what they contend is an unconstitutional
statutory provision. They allege an injury from EPA's
unlawful conduct-the injury of being forced to choose between
relinquishing any right to compensation from a ...