Table of Authorities

Cases

A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993)............................................. 5

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)............................................................................... 16

Airbrake Sys., Inc. v. Mineta, 357 F.3d 632 (6th Cir. 2004)............................................................ 15

American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002)........................................ 29

Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998).......................... 21, 24

Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)......................................................................... 25

Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712........................................................... 29

Associated Dry Goods Corp. v. Towers Financial Corp., 920 F.2d 1121 (2nd Cir. 1990)............... 29

Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)............................. 18

Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194 (2d Cir.), cert. denied, 498 U.S. 854 (1990) 5

Battle v. Seibels Bruce Ins. Co., 288 F.3d 596 (4th Cir. 2002)........................................................ 16

Becker & Assoc. v State of New York, 48 N.Y.2d 867, affg 65 A.D.2d 65.................................... 27

Belmar Contr. Co. v State of New York, 233 NY 189.................................................................... 27

Bennett v. Spear, 520 U.S. 154 (1997)........................................................................................... 15

Califano v. Sanders, 430 U.S. 99 (1977)......................................................................................... 16

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 108, 94 L.Ed.2d 244....... 23

Catone v. Spielmann, 149 F.3d 156 (2d Cir. 1998)........................................................................... 7

Center for Auto Safety v. Dole, 846 F.2d 1532 (D.C. Cir. 1988).................................................... 17

Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002).................................... 22

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)................................................................... 32

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)................................................................................. 9

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)........................................... 17

Clark v. Barnard, 108 U.S. 436...................................................................................................... 10

Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987)................................................................... 24

CONCERN, Inc. v. Pataki, 7 Misc. 3d 1030A appeal dismissed 30 A.D.3d 1117........................... 33

Conservation Council of North Carolina v. Costanzo, 505 F.2d 498 (4th Cir. 1974)........................ 21

Dalton v. Pataki, 5 N.Y.3d 243......................................................................................................... 8

Davis v. United States, 192 F.3d 951 (10th Cir. 1999).................................................................... 26

Dewberry v. Kulongoski, 406 F. Supp. 2d 1136............................................................................. 30

Elephant Butte Irrigation District v. Department of Interior, 160 F.3d 602 (10th Cir. 1998)............... 10

Eskra v. Morton, 380 F. Supp. 205................................................................................................. 10

Ex parte Young, 209 U.S. 123 (1908)......................................................................................... 7, 10

Ezekiel v. Michel, 66 F.3d 894 (7th Cir. 1995).................................................................................. 5

Fleet Bank, Nat'l Ass'n v. Burke, 160 F.3d 883 (2d Cir. 1998)......................................................... 7

Florida Audubon Soc. v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996).................................................... 18

Fluent v. Salamanca Indian Lease Authority, 928 F.2d 542 (2^nd Cir. 1991)................................ 29, 30

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1.................................................... 8

Friends of the Earth, Inc. v. Gaston Copper Recycling, Corp., 204 F.3d 149 (4th Cir. 2000)........... 21

Gardner v. New Jersey, 329 U.S. 565............................................................................................. 10

Geis v. Bd. of Educ. of Parsippany-Troy Hills, 774 F.2d 575 (3d Cir. 1985)...................................... 7

Gillis v. U.S. Dep't of Health and Human Servs., 759 F.2d 565 (6th Cir. 1985.)............................... 15

Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992)............................................................. 5

Gunter v. Atlantic C. L. R. Co., 200 U.S. 273................................................................................. 10

Haines v. Kerner, 404 U.S. 519, 520 (1972)..................................................................................... 5

Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890)............................................... 11

Heckler v. Chaney, 470 U.S. 821 (1985)........................................................................................ 17

Huron Group v. Pataki, 23 A.D.3d 1051 appeal dismissed 6 N.Y.3d 803........................................ 33

In re Indian Gaming Related Cases Chemehuevi Indian Tribe, 331 F.3d 1094 cert. denied 124 S. Ct. 1412 (9th Cir. 2003)...................................................................................................................................... 9, 20

Jeffries v. Georgia Residential Finance Authority, 678 F.2d 919 (11th Cir. 1982), cert. denied, 459 U.S. 971, 74 L. Ed. 2d 283, 103 S. Ct. 302 (1982)......................................................................................................... 35

Johnson v. Allsteel, Inc., 259 F.3d 885 (7th Cir. 2001).................................................................... 22

Kescoli v. Babbitt, 101 F.3d 1304 (9th Cir. 1996).......................................................................... 33

Kickapoo Tribe of Indians v. Babbitt, 310 U.S. App. D.C. 66......................................................... 30

Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998).................................................................. 14

LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991)...................................................................... 5

Lapides v. Bd. of Regents, 535 U.S. 613......................................................................................... 11

Lebeau v. United States, 115 F. Supp. 2d 1172.............................................................................. 30

Louise B. v. Coluatti, 606 F.2d 392 (3d Cir. 1979)........................................................................... 8

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....................................................................... 18

Makah Indian Tribe v. Verity, 910 F.2d 555.................................................................................... 33

Mallalieu-Golder Ins. Agency v Exec. Risk Indem. 254 F Supp 2d 521 (2003, MD Pa)................... 27

McDonald v Mayor of City of N. Y., 68 NY 23.............................................................................. 27

Monahan v. New York City Dept. of Corrections, 214 F.3d 275 (2d Cir.), cert. denied, 531 U.S. 1035 (2000) 13

Mont v. Heintz, 849 F.2d 704 (2d Cir. 1988).................................................................................... 7

Moreau v. Federal Energy Regulatory Comm'n, 982 F.2d 556 (D.C. Cir. 1993).............................. 21

Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996).................................... 22

National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479 (1998)....................... 19

National Licorice Co. v. NLRB, 309 U.S. 350................................................................................ 33

Natural Resources Defense Council, Inc. v. Berklund, 458 F. Supp. 925 (D.D.C. 1978), aff'd per curiam, 197 U.S. App. D.C. 298, 609 F.2d 553 (D.C. Cir. 1979)................................................................................... 35

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)............................................................ 16

Nowak v. Ironworkers Local 6 Pensions Fund, 81 F.3d 1182 (2d Cir. 1996).................................. 15

Pasco Int'l (London) Ltd. v. Stenograph Corp., 637 F.2d 496 (7th Cir. 1980)................................. 29

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)................................................ 7, 12

Pueblo of Sandia v. Babbitt, 47 F. Supp. 2d 49............................................................................... 30

Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996)................................................ 28

Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407 (10th Cir. 1996).......................... 26

Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 240 F.3d 1250 (2001) cert. denied sub nom. Wyandotte Nation v. Sac and Fox Nation of Missouri, 534 U.S. 1078 (2002)................................................ 29

Saratoga County Chamber of Commerce Inc. v. Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047, 766 N.Y.S.2d 654 (N.Y. 06/12/2003).......................................................................................................................... 14, 33

Savoie v. Merchants Bank, 84 F.3d 52 (2d Cir. 1996).................................................................... 15

Seif v City of Long Beach, 286 NY 382.......................................................................................... 27

Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)................... 8, 12

Sendra Corp. v. Magaw, 111 F.3d 162 (D.C. Cir. 1997)................................................................ 14

Seneca Nation of Indians v New York, 383 F.3d 45....................................................................... 30

Seneca Nation of Indians v. New York, 213 F.R.D. 131................................................................. 31

Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992)............................................................. 28

Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129 (2d Cir. 1998).................................................. 15

Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546 (5th Cir. 1996)............................................. 21

Southwest Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998)............................ 28

State ex rel. Coll v. Johnson, 990 P.2d 1277................................................................................... 30

Stephenson v. Dow Chemical Co., 273 F.3d 249 (2nd Cir. 2001)................................................... 13

Students of California School for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984)............................ 8

Swomley v. Watt, 526 F. Supp. 1271 (D.D.C. 1981)...................................................................... 35

Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir. 1990)............................................. 17

Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002).................................................................. 35

Thunder Basin Coal Compa v. Southwestern Public Serv, 104 F.3D 1205 (10th Cir. 1997)............. 29

Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998).............................................................................. 22

Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541............................................................. 31

Statutes

18 U.S.C. § 1166................................................................................................................. 8, 10, 19

25 U.S.C. § 2710..................................................................................................................... 23, 25

25 U.S.C. § 2710(b)................................................................................................................... 8, 10

25 U.S.C. § 2710(d)(1)(B)............................................................................................................... 9

25 U.S.C. § 2710(d)(1)(C)............................................................................................................... 9

25 U.S.C. § 2710(d)(7)(A)(ii)......................................................................................................... 29

25 U.S.C. § 2710(d)(8)(B)............................................................................................................. 25

25 U.S.C. § 2710(e)....................................................................................................................... 25

25 U.S.C. § 2714........................................................................................................................... 18

25 U.S.C. § 2719........................................................................................................................... 25

28 U.S.C. § 1331..................................................................................................................... 16, 18

28 U.S.C. § 1361........................................................................................................................... 18

28 U.S.C. § 2401(a)....................................................................................................................... 14

5 U.S.C § 704.................................................................................................................... 14, 15, 16

5 U.S.C. § 551(13)......................................................................................................................... 16

5 U.S.C. § 701(a)........................................................................................................................... 16

5 U.S.C. § 701(a)(2)...................................................................................................................... 17

5 U.S.C. § 702......................................................................................................................... 16, 19

5 U.S.C. § 704............................................................................................................................... 19

5 U.S.C. § 706(2)(C)..................................................................................................................... 19

5 U.S.C.. § 706(2)(B)..................................................................................................................... 19

Rules

CPLR § 213(1)............................................................................................................................... 14

CPLR § 3211(10)........................................................................................................................... 13

CPLR Article 78............................................................................................................................. 14

Fed. R. Civ. P. 19........................................................................................................................... 27

FRCP 24(a).................................................................................................................................... 29

Treatises

Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61..................... 12

Regulations

25 CFR Part 151............................................................................................................................ 25

25 CFR Part 522............................................................................................................................ 25

Constitutional Provisions

Article III of the United States Constitution...................................................................................... 18

U.S. Const., Amdt. 11.................................................................................................................... 11

Preliminary Statement

Historically New York has prohibited commercialized gambling. This prohibition is in the Bill of Rights of the New York State Constitution in Article I § 9. Gambling was first banned in the Second Constitution of the State of New York ("The 1821 State Constitution") in Article VII § 11 which provided "No lottery shall hereafter be authorized in this state; and the legislature shall pass laws to prevent the sale of all lottery tickets within this state, except in lotteries already provided for by law." The Third Constitution of the State of New York ("The 1846 Constitution") in Article I § 10 provided "nor shall any lottery hereafter be authorized, or any sale of lottery tickets allowed within this state." The Fourth Constitution of the State of New York ("The 1894 Constitution") in Article I § 9 provided "nor shall any lottery or the sale of lottery tickets, pool-selling, book making, or any other kind of gambling hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section." The Constitutional Convention of 1938 did not write a new Constitution. It did succeed in getting voter approval of a number of significant amendments to the Constitution none of which affected the prohibition on gambling. Although since 1938 this State Constitutional provision has been amended to allow bingo, pari-mutuel horse racing and lotteries the revenue generated by these activities is for the support of charitable organizations (heavily regulated bingo and games of chance) or for the support of government (pari-mutuel racing) or education (lotteries) and never for commercial purposes. Our Penal Law prohibits profiting or the advancement of gambling (N.Y. Penal Law Article 225).

Unlawful gambling activity has been defined as any gambling activity that is not explicitly authorized by the State of New York (Penal Law §§ 225.05-225.20 & 225.30; Op.Atty.Gen. 81-68).

General Municipal Law § 195-k criminalizes as a misdemeanor unlawful games of chance.

General Obligations Law § 5-417 provides: "All contracts, agreements and securities given, made or executed, for or on account of any raffle, or distribution of money, goods or things in action, for the payment of any money, or other valuable thing, in consideration of a chance in such raffle or distribution, or for the delivery of any money, goods or things in action, so raffled for, or agreed to be distributed as aforesaid, shall be utterly void". The Court of Appeals has held that "All contracts and dealings in respect to lotteries, and tickets in lotteries, being illegal, no right of action can accrue to a party, by reason of such contracts and dealings" (Thatcher v Morris, 11 N.Y. 437, 438; Holberg v Westchester Racing Assn., 184 Misc 581; Moskowitz v Cohen, 158 Misc 489). The Appellate Division, First Department of the New York State Supreme Court in Intercontinental Hotels Corporation (Puerto Rico) v. Golden, 18 A.D.2d 45, described our public policy against gambling as “The anti-gambling clause of the State Constitution is of the same venerable vintage as the wrongful death action provision and has also been included in all later revisions of the Constitution. Thus the prohibition against gambling represents, not just a temporary fancy, but a deep-rooted policy to which courts should give constructive effect.” This public policy is so strong and deep rooted that our law in recognition that title to property or money does not pass when it is obtained through illegal gambling activities and that in derogation of the common law provides that a person who places a bet or loses money or an object of value in excess of $25.00 may sue to recover it (General Obligations Law §§ 5-419, 5-421).

Furthermore the places where unlawful gambling takes place is considered a criminal nuisance (Penal Law § 240.45)

The Indian Gaming Regulatory Act was enacted in 1988 for the express purpose of making Indian tribes economically self-sufficient through Class III gaming which requires a tribal-state compact (25 U.S.C. § 2702(1)).

Pursuant to IGRA, simple Class II gaming (like bingo) and commercialized Class III casino gaming activities will be lawful on Indian lands if they are “located in a State that permits such gaming for any purpose by any person, organization or entity . . .” 25 U.S.C. § 2710(d)(1)(B & C).

The State legislation which purported to authorize the subject compact between the State of New York and the Seneca Nation of Indians was passed in the late evening hours – an 81 page bill – without notice to the people or debate. Chapter 383 of the New York State Laws of 2001 provides in pertinent part, that the governor is authorized to negotiate and enter into compacts with Indian tribes to provide for commercialized Class III casino gaming on Indian lands.

On August 18, 2002, pursuant to IGRA and Chapter 383 of the New York State Laws of 2001, the Seneca Nation and the State of New York executed a tribal-state compact (U.S. Exhibit A).

By letter dated November 12, 2002 former Secretary of the Interior Gale Norton set forth her reasons for not affirmatively denying nor approving the subject compact, but rather to take no action and to allow it by operation of law to be deemed approved to the extent it is consistent with IGRA pursuant to 25 U.S.C. § 2710(d)(8)(C) (Complaint Exhibit “C”). The Secretary published notice of the approved status of the subject compact in the Federal Register on December 9, 2002.

On November 26, 2002 Defendant Hogen approved the Seneca Nation Gaming Ordinance of 2002.

On May 3, 2005 in the case of Dalton v. Pataki, 5 N.Y.3d 243 the New York Court of Appeals relying on what it believed to be the mandate of IGRA, upheld the authority of the New York State Legislature to authorize the governor to negotiate and compact with Indians to permit commercialized Class III casino gaming on Indian lands.

The New York Court of Appeals held that even if the governor and legislature lacked the power under the State Constitution to expand gaming, IGRA enabled the governor and legislature, as a matter of federal law, to bind the State to the terms of a compact. Assuming that this holding is correct then IGRA violates various provisions of the U.S. Constitution and the Federal Defendants acted contrary to constitutional right, power, privilege, or immunity or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. If this holding is incorrect then the State of New York acted ultra vires in entering into the subject tribal-state compact with the Seneca Nation of Indians and the Federal Defendants determinations are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. If the State Defendants acted ultra vires in entering into the subject tribal-state compact it is not in effect under IGRA and Class III gaming pursuant to this compact is illegal under federal law.

The Federal Defendants have failed to carry out their statutory and regulatory responsibilities and Plaintiff seeks a writ of mandamus and injunctive relief under the APA to compel them to carry out their duties as required by federal law and their own regulations.

Applicable Standard

Dismissal under FRCP 12(b)(6) is appropriate when a defendant raises res judicata as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (claim barred by res judicata) The Second Circuit has held that a plaintiff's burden of proof in a jurisdictional challenge "varies depending on the procedural posture of the litigation." The Court explained: "Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith . . . legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff's prima facie showing may be established solely by allegations. After discovery, the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant . . . At that point, the prima facie showing must be factually supported." Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992); accord Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (allegations of pro se complaint held to "less stringent standards than formal pleadings drafted by lawyers."); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991) ("We are obliged to construe [pro se] pleadings and papers liberally."). A pro se litigant's submissions are to be interpreted "to raise the strongest arguments they suggest." Burgos v. Hopkins, 14 F.3d 787,790 (2d Cir. 1994) and all "doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party." A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993). Ultimately, however, the plaintiff must establish personal jurisdiction by a preponderance of the evidence, either at an evidentiary hearing or at trial. Id. at 79.

The State Defendants’ motion to dismiss the Second and Third Causes of action is a facial attack since they do not challenge the facts set forth in the complaint. When reviewing a motion raising a facial attack to the complaint, the Court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).

Subsequent to the State Defendants making this motion to dismiss the complaint was amended as of right pursuant to FRCP 15(a) (herein “Complaint” or “complaint”). The amended complaint has retained the two causes of action the State Defendants have moved to dismiss, but due to the amendment the Eighth Cause of Action is now the Third Cause of Action.

Point I

This action falls within the Ex Parte Young exception to the Eleventh Amendment

At the outset it should be noted that the two causes of action that the State Defendants challenge as being barred by the Eleventh Amendment because it seeks to hold them in violation of state law (the Second and Third Causes of Action) incorporates by reference the allegations of the previously pled violations of federal law and is also based on federal law as well.

Specifically the Second Cause of Action alleges that “The compact is invalid and in violation of the Indian Gaming Regulatory Act in it provides for games of chance that are prohibited in the State of New York which includes, but is not limited to, slot machines that are illegal in the State of New York and not permitted for any purpose by any person, organization, or entity.” (Complaint ¶ 60) The State Defendants are a proper party to this action because they are a party to this compact.

The Third (formerly the Eighth) Cause of Action sets forth various grounds upon which it is alleged that the State Defendants acted in excess of their authority and concludes “The state officials who authorized and entered into this tribal-state compact acted in excess of their authority and the compact is not in effect as required by 25 U.S.C. § 2710(d)(1)(C).” (Complaint ¶ 83). The State Defendants are a proper party to this action because the validity of the subject compact is being challenged

These two causes of action properly state causes of action for review of a final agency action under the APA.

In Ex parte Young, 209 U.S. 123 (1908) the Supreme Court reviewed the jailing of the Minnesota Attorney General who had been enjoined by federal court from imposing what stockholders of a railroad believed were onerous rates on railroads in that state. The Supreme Court, echoing Chief Justice Marshall in Osborn, said that Young, as a state officer attempting to enforce an unconstitutional state statute, is subject to the consequences personally because he is stripped of his official representation. 209 U.S. at 159-60. Under Ex parte Young, the state officer against whom a suit is brought "must have some connection with the enforcement of the act" that is in continued violation of federal law. 209 U.S. at 154, 157. So long as there is such a connection, it is not necessary that the officer's enforcement duties be noted in the act. See id.

The State Defendants also rely on Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984) for authority that this court lacks subject matter jurisdiction to grant declaratory and injunctive relief against state officers based on state law. Pennhurst, supra, does not bar federal relief simply because the determination of federal law also involves some antecedent state-law question, or, a fortiori, merely incorporates state-law principles. Fleet Bank, Nat'l Ass'n v. Burke, 160 F.3d 883, 891 n.6 (2d Cir. 1998); Catone v. Spielmann, 149 F.3d 156, 160 n.1 (2d Cir. 1998); Mont v. Heintz, 849 F.2d 704, 709-10 (2d Cir. 1988); Geis v. Bd. of Educ. of Parsippany-Troy Hills, 774 F.2d 575, 581 (3d Cir. 1985). In the case at hand, the Court will have to reference state law to determine the scope of the State Defendants’ powers and responsibilities merely to aid resolution of the ultimate question of whether the state defendants’ acts were/are in compliance with federal law. "To put the matter more bluntly, where a state violates federal law, it is no better off because it also violates its own law." Louise B. v. Coluatti, 606 F.2d 392, 399 (3d Cir. 1979). To the extent that state law relative to gambling is incorporated by reference into federal law it presents a federal question for this court to resolve (see 18 U.S.C. § 1166, 25 U.S.C. § 2710(b)). Where, as here, federal law incorporates by reference requirements established by state law, the federal supremacy rationale underlying Ex parte Young applies with equal force. See Students of California School for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984), vacated on other grounds, 471 U.S. 148, 105 S. Ct. 1820, 85 L. Ed. 2d 114 (1985).

Further these causes of actions presents questions of federal law because the State Defendants has asserted, and New York’s highest court determined, that these state law arguments were preempted by the Indian Gaming Regulatory Act (See Page 12 of Exhibit “E” to the declaration of Peter B. Sullivan dated May 30, 2006; Dalton v. Pataki, 5 N.Y.3d 243). In Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, the Supreme Court stated “Even though state law creates appellant's causes of action, its case might still "arise under" the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” Because these alleged state law causes of action are allegedly preempted by IGRA [so-called "conflict" or "substantive" preemption] they arise under federal law and are properly within the federal question jurisdiction of this court.

The State Defendants point to the Supreme Court’s decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), for authority that the Ex Parte Young exception to the Eleventh Amendment is barred. This is simply not the case this action seeks review, inter alia, of the determination of the Federal Defendants not to disapprove the subject compact under the Administrative Procedure Act and permit gaming on lands acquired after October 17, 1988 as being in violation of federal statutory and constitutional law. It is well settled that a Plaintiff may challenge agency action under the APA regardless of whether or not a private right of action expressly exists under the relevant statute. Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979) (holding that although no private right action exists under FOIA or under the Trade Secrets Act, a government contractor could sue under the APA to prevent disclosure of its employment information by the Defense Logistics Agency).

The Indian Gaming Regulatory Act authorizes Class III gambling on Indian land when the state permits such gaming for any purpose by any person, organization, or entity (25 U.S.C. § 2710(d)(1)(B)), and pursuant to a valid tribal-state compact that is in effect (25 U.S.C. § 2710(d)(1)(C)). If a state such as New York cannot under state law enter into a valid tribal-state compact then to allow such gaming pursuant to an ultra vires act of the State Defendants is a violation of federal law that will be continuous. Although this court will be called to make determinations based on the New York State Constitution and the Laws of New York those determinations will be to aid in addressing the ultimate question of whether the subject tribal-state compact is valid and in effect under the Indian Gaming Regulatory Act. Just like the 9^th Circuit had to analyze state law to determine if California could enter into a tribal-state compact under the IGRA and it held that not only was California not obligated to enter into compacts with tribes permitting slot machines it had no authority to do so (In re Indian Gaming Related Cases Chemehuevi Indian Tribe, 331 F.3d 1094 cert. denied 124 S. Ct. 1412 (9th Cir. 2003)).

Federal Courts have jurisdiction under the APA to decide the validity of state law incorporated by reference in a federal statute that is essential to final agency action (see Eskra v. Morton, 380 F. Supp. 205). In the case at bar IGRA incorporates by reference state laws relating to gambling and state laws relating to if, how and when state officers can enter into agreements that bind the State to a tribal-state compact (see 18 U.S.C. § 1166, 25 U.S.C. § 2710(b)).

In the instant case the State Defendants acting pursuant to state law incorporated by reference into federal law entered into a compact with the Seneca Nation of Indians which purported to authorize the conduct of Class III gaming under the Indian Gaming Regulatory Act on three sites within a particular part of the State and the compact sets forth revenue sharing, and various other terms. Since this compact is alleged to be in violation of federal law at its inception, the state officials' acts of signing the compact and subsequently accepting benefits under its revenue sharing provision constitutes an ongoing violation of federal law. Accordingly, Plaintiff’s claims are properly brought against the state officials, not the state. The state is not the real party in interest because the state cannot "authorize" the officials to violate federal law. See Ex parte Young, 209 U.S. at 159-60 (holding that when a state official seeks to enforce a state legislative enactment that is void because unconstitutional or in violation of federal law, the state officer comes into conflict with the supremacy of the federal law and enjoys no immunity). (see Elephant Butte Irrigation District v. Department of Interior, 160 F.3d 602 (10th Cir. 1998)).

Therefore this action may proceed against the State Defendants because it falls within the Ex Parte Young exception to the Eleventh Amendment.

The State Defendants have waived their Eleventh Amendment Immunity

The Supreme Court has consistently found a waiver when a State's attorney general, authorized to bring a case in federal court, has voluntarily invoked that court's jurisdiction. See Gardner v. New Jersey, 329 U.S. 565 at 574-575; Gunter v. Atlantic C. L. R. Co., 200 U.S. 273 at 285-289, 292; cf. Clark v. Barnard, 108 U.S. 436 at 447-448 (not inquiring into attorney general's authority). And the Eleventh Amendment waiver rules are different when a State's federal court participation is involuntary. See Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890); cf. U.S. Const., Amdt. 11 (discussing suits "commenced or prosecuted against" a State).

In Lapides v. Bd. of Regents, 535 U.S. 613 the Supreme Court held that “In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create. Gunter, supra, at 284. And that determination reflects a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. As in analogous contexts, in which such matters are questions of federal law, cf., e.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, n. 5, 137 L. Ed. 2d 55, 117 S. Ct. 900 (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State's Eleventh Amendment immunity is a question of federal law. A rule of federal law that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness. A rule of federal law that, as in Ford, denies waiver despite the state attorney general's state-authorized litigating decision does the opposite. For these reasons one Member of this Court has called for Ford's reexamination. Schacht, 524 U.S. at 394, 397 (KENNEDY, J., concurring). And for these same reasons, we conclude that Clark, Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply.”

In its defense of Plaintiff’s prior action in state court (“Warren I”) the State Defendants’ raised various jurisdictional defenses (Exhibit “B” & Exhibit “E” (page 12) to Declaration of Peter B. Sullivan dated May 30, 2006). Among them were that the state court lacked jurisdiction to review the compact as such jurisdiction is limited to an action under IGRA in federal court (Eleventh Defense). The State Defendants also raised in Warren I that there were necessary and indispensable parties that were absent from that action and that it should be dismissed in their absence (Exhibit “E” (page 16) to Declaration of Peter B. Sullivan dated May 30, 2006). Through this conduct of compelling plaintiff to bring these claims in this forum the State Defendants have voluntarily waived any Eleventh Amendment defense. Although the State Defendants did not remove this action from state court, it took affirmative action to preclude review of its action in the state court pointing to this forum and the need for any such action to include the Federal Defendants and others so as to compel the plaintiff to initiate an action in this forum.

The Eleventh Amendment does not prohibit all federal enforcement of State Law

Even if the Court construes the challenged causes of action as state law claims the Eleventh Amendment does not prohibit federal enforcement of state law. See Shapiro, Comment -- Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61, 83 & n.127 (1984) and Justice Souter’s dissent in Seminole Tribe, 517 U.S. 44, 110 n.8 (1996). The declarations and prohibitive injunction sought here does not rise to the level of interference that triggers sovereign immunity. Since the United States is a party this court has jurisdiction. These claims, moreover, cannot be dealt with on straightforward Eleventh Amendment grounds because, in addition to seeking an injunction, the plaintiff is asking for a declaratory judgment. And while an injunction might well violate the Eleventh Amendment, see Pennhurst, 465 U.S. at 106, a declaratory judgment would not.

Point II

This action is not barred by Res Judicata

The party seeking to establish the preclusive effect of a prior judgment must show that (1) the previous action involved an adjudication on the merits, (2) the previous action involved the plaintiffs or those in privity with them, and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action. Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 285 (2d Cir.), cert. denied, 531 U.S. 1035 (2000).

To determine whether or not the doctrine of res judicata applies to preclude litigation, the court must determine whether or not the judgment in the previous action was: "(1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action." Stephenson v. Dow Chemical Co., 273 F.3d 249 (2nd Cir. 2001)(citing Anaconda-Ericsson Inc. v. Hessen (In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir., 1985)).

The judgment in the State Court action raised by the State Defendants was not decided on the merits. The State Defendants moved for summary judgment and for an order of dismissal under a number of theories. The Oneida Indian Nation of New York made a special appearance to move to dismiss the action for failure to join it as an indispensable party and to assert its sovereign immunity. The Court granted both motions. The only way the court could grant both motions was to dismiss the action based on CPLR § 3211(10) which does not resolve the action on the merits.

Therefore Plaintiff did not have a full and fair opportunity to contest these issues in that action and this action is not barred by the doctrine of res judicata.

Point III

This action is not barred by the statute of limitations.

Unless another statute prescribes otherwise, a suit challenging final agency action pursuant to the APA (5 U.S.C § 704) must be commenced within six years after the right of action first accrues. 28 U.S.C. § 2401(a); Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997). Similarly, assuming without admitting that any state statute of limitations is applicable, the statute of limitations on state law is six years after the right of action accrues and not the four month statute of limitations under CPLR Article 78. (see N.Y CPLR § 213(1); Saratoga County Chamber of Commerce Inc. v. Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047, 766 N.Y.S.2d 654 (N.Y. 06/12/2003)) Since the State Legislation that authorized the State Defendant to enter into a tribal-state compact under the Indian Gaming Regulatory Act and the Federal Defendants’ actions was occurred in October 2001 and later this action commenced on April 6, 2006 is timely for statute of limitations purposes.

The statute of limitations for an action based on federal law such as a § 1983 action accrues at the time of injury. See Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). The date the State and Federal Defendants acts resulted in actual injury was in the Fall of 2005 when the Seneca Nation acquired the land for its casino and had the Federal Defendants take the land into restricted fee status and began construction of its casino pursuant to the subject compact.

Point IV

The Complaint states a cause of action against the State Defendants

To state a claim for relief under the APA, a plaintiff must allege that his or her injury stems from a final agency action for which there is no other adequate remedy in court. 5 U.S.C. § 704; Gillis v. U.S. Dep't of Health and Human Servs., 759 F.2d 565, 575 (6th Cir. 1985.) An action is final where it: (1) marks the "consummation of the agency's decision-making process;" and (2) determines rights and obligations or occasions legal consequences. Bennett v. Spear, 520 U.S. 154, 177-78 (1997); Airbrake Sys., Inc. v. Mineta, 357 F.3d 632, 639 (6th Cir. 2004).

Jurisdiction

To determine jurisdiction in federal question cases, the court need only ask "whether -- on its face -- the complaint is drawn so as to seek recovery under federal law or the Constitution. If so, [the court should] assume or find a sufficient basis for jurisdiction, and reserve further scrutiny for an inquiry on the merits." Nowak v. Ironworkers Local 6 Pensions Fund, 81 F.3d 1182, 1189 (2d Cir. 1996). The standard is a "modest" one, allowing for subject matter jurisdiction so long as "the federal claim is colorable." Savoie v. Merchants Bank, 84 F.3d 52, 57 (2d Cir. 1996) (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)). In assessing a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the complaint," Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), but refrain from "drawing from the pleadings inferences favorable to the party asserting [jurisdiction]." Id. (citing Norton v. Larney, 266 U.S. 511, 515 (1925)).

This Court does have jurisdiction pursuant to 28 U.S.C. § 1331 to hear claims brought under the APA (5 U.S.C. § 702) challenging agency action. The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 when a federal statute creates the cause of action or the plaintiff's right to relief depends on a substantial question of federal law. See Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606-07 (4th Cir. 2002). The APA does not on its own confer on the courts jurisdiction to review agency action. See Califano v. Sanders, 430 U.S. 99, 105 (1977). Instead, Congress conferred such jurisdiction when it amended § 1331 in 1976. See id. Thus, federal courts have jurisdiction to hear claims arising from agency action brought under the APA unless a subsequent statute either conferred jurisdiction upon another court or specifically precluded district courts from having jurisdiction.

The Administrative Procedure Act authorizes suits brought by a person adversely affected by an "agency action." 5 U.S.C. § 702. Agency action includes an "agency rule, order, license, sanction (or) relief," or failure to act on the same. Id. § 551(13). An agency action must be a final, legally required, and discrete act. Id. § 704; see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63-65 (2004). In the case at bar the Federal defendants have either acted in excess of their constitutional or statutory authority or reached a determination that gaming is permitted or has otherwise sanctioned this gaming or has failed to act in preventing unsanctioned gaming or gaming that is not permitted. As the Supreme Court has recognized, the APA establishes a strong presumption in favor of reviewability of agency action. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). The APA, however, provides two exceptions to this presumption. Section Section(s) 701(a) provides that judicial review shall not apply to the extent that "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. Section(s) 701(a)(1)-(2). An agency action is unreviewable only when the statute precludes judicial review, 5 U.S.C. § 701(a)(1), or if the "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Section 701(a)(2) is a "very narrow exception," and the agency must show that its action is committed to agency discretion by law through "clear and convincing evidence." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (citing Abbott, 387 U.S. at 141). In interpreting the distinction between these two exceptions, the Court has explained that the "former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion" Heckler v. Chaney, 470 U.S. 821, 830 (1985). While the determination of whether there is "law to apply" often focuses on the controlling statute, courts have previously recognized that the "law to apply" can also be derived from the agency's regulations where the agency is acting pursuant to those regulations. See Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 642 (10th Cir. 1990) ("The failure of an agency to follow its own regulations is challengeable under the APA.") (citing Service v. Dulles, 354 U.S. 363 (1957)); Community Action of Laramie, Inc. v. Bowen, 866 F.2d 347, 352 (10th Cir. 1989) ("Because a valid legislative rule or substantive federal regulation is binding to the same extent as a statute [citation omitted], [the agency's] failure to follow its own regulations likewise may be challenged under the APA."); see also, Center for Auto Safety v. Dole, 846 F.2d 1532, 1534 (D.C. Cir. 1988) ("We have previously recognized that regulations promulgated by an administrative agency in carrying out its statutory mandate can provide standards for judicial review of agency action."). In the present case, the statutory language does not expressly preclude judicial review and the constitution, statutes and regulations provide meaningful standards against which to judge the Defendant’s exercise of discretion.

Congress did provide that decisions by Defendants Hogen and the National Indian Gaming Commission made under various provisions of IGRA are subject to federal court review under the Administrative Procedures Act, see 25 U.S.C. § 2714.

Standing

Plaintiff has Article III and prudential standing. An individual has constitutional standing if (1) he has suffered the invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) the injury is “fairly traceable” to the challenged action of the defendant and not the result of independent action by a third party not before the court; and (3) a favorable decision would “likely” redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations omitted). Prudential standing is established by showing that the interest the Plaintiff seeks to protect arguably falls within the zone of interests to be protected or regulated by the statute at issue. Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).

In a case like this one alleging procedural violations, the requisite showing of injury requires a demonstration that the challenged act performed with improper procedures will cause a distinct risk to Plaintiff's particularized interests. Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).

Article III Standing

This action, inter alia, seeks review of various final agency decisions of the Federal Defendants under the Administrative Procedure Act. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1361. (the Federal Defendants mischaracterize the First Cause of Action as one directly under the Tenth Amendment of the U.S. Constitution however it is one under the APA asserting that the agency has acted contrary to constitutional right, power, privilege, or immunity or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right (5 U.S.C. §§ 702, 706(2)(B), (C)) To establish statutory standing under § 702 of the APA, a plaintiff must first identify "final agency action." Id. § 704. Second, a plaintiff must show that such action subjects plaintiff to a "legal wrong," or "adversely affect[s] or aggrieve[s]" plaintiff "within the meaning of the relevant statute." Id. § 702. The Supreme Court has interpreted § 702 to impose a prudential standing requirement: "For a plaintiff to have prudential standing under the APA, the interest sought to be protected by the complainant must be arguably within the zone of interests to be protected or regulated by the statute in question." National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488 (1998) (emphasis added); see also Western Shosone Bus. Council v. Babbitt, 1 F.3d 1052, 1055 (10th Cir. 1993).

This action challenges the determination of the Secretary of the Interior to allow the tribal-state compact permitting Class III gaming between the Seneca Nation of Indians and the State of New York to become approved as set forth in her letter dated November 12, 2002 (Complaint Exhibit “C”). This action also challenges the determination of Defendants Hogen and the National Indian Gaming Commission approving the tribal gaming ordinance of the Seneca Nation of Indians (U.S. Exhibit B). The making of these determinations are guided by the Indian Gaming Regulatory Act and the regulations of the Federal Defendants and New York State Law as it is incorporated by reference in the Indian Gaming Regulatory Act (18 U.S.C. § 1166; In re Indian Gaming Related Cases Chemehuevi Indian Tribe, 331 F.3d 1094 cert. denied 124 S. Ct. 1412 (9th Cir. 2003)) and the Constitution of the United States. The Federal Defendants do not have complete discretion in this area.

Here, Plaintiff is a duly registered voter, citizen and taxpayer of the State of New York (¶¶ 1, 2, & 3 of the Verified Complaint attached to the Declaration of Peter B. Sullivan dated May 30, 2006 as Exhibit “A”) works full time at a location within one and one half miles and resides within 6 miles from the proposed casino site (Complaint ¶¶ 5 & 7) and resides in the same county as the Buffalo Site for the Seneca Nation’s casino (Complaint ¶¶ 5, 6, 20, 48) that will conduct Class III gaming and asserts interest in not being exposed to the blight that such a facility may cause, the increased risk of being a victim of crime or exposure to crime, that will emanate from such a facility (incorporated by reference into the complaint are two studies that demonstrate that crime increases in areas surrounding casinos of this type (see Exhibits “A” & “B” to the Complaint)), the lack of parking and the increase in traffic it will create which will increase the risk of being a victim of a motor vehicle accident, air pollution and noise as the result of having a 24-hour-a-day casino attracting millions of customers per year (Complaint ¶¶ 7, 8, 9,). The study by Earl Grinols and David Mustard entitled ”Measuring Industry Externalities: The Curious Case of Casinos and Crime” (March 2001) (Complaint Exhibit “A”) concludes that the data indicates an 8% increase in crime in counties that have a casino versus those that do not and that the data from counties that surround a county with a casino indicate that the casinos create crime, not merely move it from one area to another. Further the study concludes that this increased crime spills over into neighboring counties. The study entitled “Gambling and Crime Among Arrestees: Exploring the Link” published by the United States Department of Justice, National Institute of Justice, July 2004 concluded that the percentage of problem or pathological gamblers among arrestees were three to five times higher than the general population and that nearly one-third of arrestees identified as pathological gamblers admitted having committed robbery in the previous year and approximately 13 percent had assaulted someone for money. Plaintiff is further injured through the commandeering of his state officers to carry out the federal policy set forth in IGRA in violation of the New York State Constitution and depriving him of his power to make the determination of what type of gambling and for what purpose it may be permitted within the state as well as his right to the “dual protection” envisioned by the U.S. Constitution and his power to hold his elected officials responsible for their own actions.

This is cognizable harm caused by the Federal Defendants decisions to permit this casino to be built and operated. (Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 432-33 (D.C. Cir. 1998) (en banc) (personal, individual injury to aesthetic and recreational interests satisfies standing requirements); Moreau v. Federal Energy Regulatory Comm'n, 982 F.2d 556, 565-66 (D.C. Cir. 1993) (adjacent property owners’ assertions of aesthetic injury and safety hazards satisfies standing requirements)). The injury -in-fact necessary for standing "need not be large, an identifiable trifle will suffice." Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546, 557 (5th Cir. 1996) (internal quotation omitted); see also Conservation Council of North Carolina v. Costanzo, 505 F.2d 498, 501 (4th Cir. 1974) ("The claimed injury need not be great or substantial; an identifiable trifle, if actual and genuine, gives rise to standing.") (internal quotation omitted). The courts of appeals have generally recognized that threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes. See Friends of the Earth, Inc. v. Gaston Copper Recycling, Corp., 204 F.3d 149, 160 (4th Cir. 2000) (en banc) (concluding that "[t]hreats or increased risk constitutes cognizable harm" sufficient to meet the injury-in-fact requirement); Central Delta Water Agency v. United States, 306 F.3d 938, 947-48 (9th Cir. 2002) (holding that "the possibility of future injury may be sufficient to confer standing on plaintiffs" and concluding that plaintiffs could proceed with their suit where they "raised a material question of fact . . . [as to] whether they will suffer a substantial risk of harm as a result of [the government's] policies"); Johnson v. Allsteel, Inc., 259 F.3d 885, 888 (7th Cir. 2001) (holding that the "increased risk that a plan participant faces" as a result of an ERISA plan administrator's increase in discretionary authority satisfies Article III injury-in-fact requirements); Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998) (reasoning that "[a] probabilistic harm, if nontrivial, can support standing"), cert. denied, 526 U.S. 1146 (1999); Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996) (recognizing that an incremental increase in the risk of forest fires caused by the Forest Service's action satisfied Article III standing requirements). The Supreme Court's analysis in both Helling v. Mckinney, 509 U.S. 25, 35, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993) and Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 434-36, 138 L. Ed. 2d 560, 117 S. Ct. 2113 (1997) displays a willingness, at least under some circumstances, to conceptualize exposure to enhanced risk as a type of cognizable injury. See Helling, 509 U.S. at 33 (reasoning that a prisoner can seek injunctive relief from exposure to an unreasonable risk of future harm, such as exposure to an infectious disease, without alleging "that the likely harm [will] occur immediately and . . . although the possible infection might not affect all of those exposed").

Moreover, there are two critical factors that weigh in favor of concluding that standing exists in this case: (1) the fact that government studies and statements confirm several of Plaintiff's key allegations, see Central Delta Water Agency, 306 F.3d at 950 (concluding that plaintiffs successfully alleged a credible threat of future injury based, in part, on the defendant agency's own estimate that salinity standards would be violated under its proposed operational plan), and (2) that Plaintiff's alleged risk of harm arises from an established government policy. Cf. 31 Foster Children v. Bush, 329 F.3d 1255, 1265-66 (11th Cir.) (recognizing that "when the threatened acts that will cause injury are authorized or part of an [established government] policy, it is significantly more likely that the injury will occur"), cert. denied sub nom. Reggie B. v. Bush, 540 U.S. 984; DeShawn E. v. Safir, 156 F.3d 340, 344-45 (2d Cir. 1998) (concluding that there was an increased likelihood of injury where the challenged interrogation methods were authorized by "officially endorsed policies").

These are exactly the types of risks that Congress intended the IGRA to restructure after the Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 108, 94 L.Ed.2d 244.

Standing is not to be denied simply because many people suffer the same injury. As the Supreme Court explained in FEC v. Akins, 524 U.S. 11, 24, 141 L. Ed. 2d 10, 118 S. Ct. 1777 (1998), injury-in-fact may be found although the asserted harm is "widely shared" if the harm is sufficiently concrete and particularized. Here, there is no question that Plaintiff alleges a discrete, individual risk of personal harm from exposure to increased crime and other risks created by the proposed casino and bases his claim of standing on more than a generalized concern that the government obey the law. And while Plaintiff could certainly seek redress through the political process, "the fact that a political forum may be more readily available where an injury is widely shared . . . does not, by itself, automatically disqualify an interest for Article III purposes." Akins, 524 U.S. at 24.

The injuries asserted are traceable to the Defendants actions because in order to conduct Class III gaming on the Buffalo Site from which would generate the increased risks it must meet the requirements of 25 U.S.C. § 2710 which in turn depends on the validity of the Indian Gaming Regulatory Act, and if it is applicable whether the legal requirement of a valid tribal-state compact and approved gaming ordinance is in effect and the proper predicate determinations were made. See Animal Legal Defense Fund, 154 F.3d at 440. Causation may be established if the plaintiff shows a good probability that, absent the challenged action, the alleged harm would not have occurred, Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262-64, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).

Plaintiff seeks a judgment setting aside the determination of the Secretary of the Interior allowing the tribal-state compact to become approved and the determination of Defendants Hogen and the National Indian Gaming Commission approving a gaming ordinance of the Seneca Nation of Indians pursuant to the IGRA. If either determination is set aside gaming may not be conducted at the Buffalo Site and Plaintiff will not suffer the injury as alleged. Therefore the relief requested will likely redress the injury.

Prudential Standing

The requirement that the interests of Plaintiff fall within the zone of interests protected or regulated by the statutes at issue is “not meant to be especially demanding” and does not require that a particular plaintiff be the intended beneficiary of the act. Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399-400 (1987). Zone of interest adequate to sustain judicial review is particularly broad in lawsuits to compel federal agency compliance with law; broad zone is in keeping with expansive scope of 5 U.S.C. § 702, which grants review to person adversely affected or aggrieved by agency action within meaning of relevant statute. American Federation of Government Employees v Office of Personnel Management (1985, DC Dist Col) 618 F Supp 1254, affd without op (1986, App DC) 251 US App DC 196, 782 F2d 278. With regard to the APA claims Plaintiff raises all I must show is that my interests arguably fall within the zone of interests to be regulated by the underlying substantive law, i.e., the Indian Gaming Regulatory Act. Armstrong v. Bush, 924 F.2d 282, 287 (D.C. Cir. 1991). Although neither the IGRA nor the regulations promulgated pursuant thereto expressly create a cause of action for private parties, IGRA and the regulations for taking land into restricted fee or trust provides for the consideration of effects on surrounding communities. See i.e. 25 U.S.C. §§ 2710, 2719 and 25 CFR Parts 151, 522. Plaintiff is precisely the type of person who could be expected to police these interests.

The Secretary of the Interior may disapprove a compact only if the compact violates an IGRA provision, any other federal law or the United States' trust obligations to a tribe. 25 U.S.C. § 2710(d)(8)(B).

The Chairman of the National Indian Gaming Commission “shall approve such ordinance or resolution if it meets the requirements of this section. Any such ordinance or resolution not acted upon at the end of that 90-day period shall be considered to have been approved by the Chairman, but only to the extent such ordinance or resolution is consistent with the provisions of this chapter.” (25 U.S.C. § 2710(e))

The First Cause of Action alleges that the determination to allow the compact to become approved by operation of law as being in excess of constitutional authority or jurisdiction (5 U.S.C. § 706(2)(B & C)).

The Second Cause of Action also challenges the determinations of the defendants to neither approve or disapprove the compact and allow it to be deemed approve (25 U.S.C. § 2710(d)(8)(C)) and Defendants Hogen and National Indian Gaming Commission’s determination approving a gaming ordinance that would permit games that are not permitted for any purpose by any person, organization, or entity as required by 25 U.S.C. § 2710(d)(1)(B). (5 U.S.C. § 706(2)(A, C & D))

The Third Cause of Action also challenges the determinations of the defendants to neither approve or disapprove the compact and allow it to be deemed approve (25 U.S.C. § 2710(d)(8)(C)) and Defendants Hogen and National Indian Gaming Commission’s determination approving a gaming ordinance permitting gaming under a tribal-state compact that is not lawfully in effect as required by 25 U.S.C. § 2710(d)(1)(C) because the State Defendants did not have the authority under state law to enter into it. (5 U.S.C. § 706(2)(A, C & D)).

The Fourth Cause of Action Seeks a writ of mandamus and/or injunction to compel the Federal Defendants to perform their statutory and regulatory duty in making its determinations and enforcing federal law they are charged with.

Necessary or Indispensable Parties

The State Defendants request that if the causes of action against the State Defendants are not dismissed pursuant to one or more of the arguments addressed in Points I through III, supra, that they “should be dismissed on the merits, on the grounds argued to, and accepted by, the state court in Warren I.” As set forth previously the court in Warren I the only ground argued to and accepted the court was the argument that I had failed to join an indispensable party.

The Seneca Nation is not a Necessary or Indispensable Party

"The question of whether an absent party is necessary and/or indispensable is resolved by applying Rule 19 of the Federal Rules of Civil Procedure." Davis v. United States, 192 F.3d 951, 957 (10th Cir. 1999); see also Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407, 1411 (10th Cir. 1996) (indicating that a court must determine whether the party in question is necessary under Rule 19(a) before proceeding to decide whether the party is indispensable under Rule 19(b)). When plaintiff, as in this case, makes no claims against defendant, it is clear that complete relief can be granted in its absence; therefore, that defendant is not necessary party under Fed. R. Civ. P. 19(a)(1). Mallalieu-Golder Ins. Agency v Exec. Risk Indem. 254 F Supp 2d 521 (2003, MD Pa).

The Seneca Nation is not a Necessary Party

The Seneca Nation argues at length that it has an interest in the validity of its compact and that it will be economically harmed if this court determines that the tribal-state compact it is operating it’s casinos under is invalid for any of the reasons asserted in the complaint. However, one cannot have a “legally protected interest” in profiting from an illegal or unconstitutional act.

If the compact was entered into unconstitutionally it is void ab initio and the Nation would be able to keep whatever revenues this operation generated to date that but for the unconstitutional/illegal act it would not have had. Furthermore, it is charged with the knowledge of the limits of the ability of state officers to bind the State. A party contracting with the State is chargeable with knowledge of the statutes which regulate its contracting powers and is bound by them (Belmar Contr. Co. v State of New York, 233 NY 189, 194). Moreover, the State's acceptance of benefits furnished under a contract made without authority does not estop it from challenging the validity of the contract or from denying liability pursuant to it (Becker & Assoc. v State of New York, 48 N.Y.2d 867, affg 65 A.D.2d 65; see, also, Seif v City of Long Beach, 286 NY 382; McDonald v Mayor of City of N. Y., 68 NY 23).

Despite having a legally protected interest, an absent party is not a necessary party if (1) the interests of the existing parties are such that they would undoubtedly make all of the nonparty's arguments; (2) the existing parties are willing and able to make such arguments'"; and (3) the nonparty cannot provide any necessary element to the proceedings that the existing parties would omit (Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992); see also Southwest Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1154 (9th Cir. 1998); Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1351 (D.C. Cir. 1996).) "If the nonparties' interests are adequately represented by a party, the suit will not impede or impair the nonparties' interests, and therefore the nonparties will not be considered 'necessary.'" (Ramah, 87 F.3d at 1351)

To the extent that it does have an interest in this litigation the Nation would be a proper party defendant and would no doubt be permitted to intervene in this action should it request such relief. However, nowhere in its papers does it articulate how complete relief cannot be accorded among those already parties to this action or as a practical matter impair or impede its ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Nor does it point to any issue that a party will not raise that it would or any conflicts between its interests and that of each of the named defendants. In fact the Nation itself can eliminate any potential for any such risk by waiving its sovereign immunity and intervening in this action, it may also participate as amicus curiae to present its legal arguments. Also if it elects not to participate as a party the Nation will not be bound to any decision or judgment in this action for purposes of law of the case, collateral estoppel or res judicata.

Also of note is that the Nation has filed a motion to withdraw its request for leave to serve and file an amicus brief. In this motion the Nation cites the amendment of the complaint in this action. Therefore it appears that the Nation no longer asserts that it has a legally protected interest in the subject of this action.

The Seneca Nation is not an Indispensable Party

Factor I

There will be no prejudice to the parties or the Nation if judgment is rendered in its absence because its interests, if any, will be adequately protected by the United States<