Table of Authorities

Cases

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

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)............................................................................... 20

Alden v. Maine, 527 U.S. 706 (1999)............................................................................................. 14

Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998).............................. 6, 9

Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)......................................................................... 10

Artichoke Joe’s California Grand Casino v. Norton, 216 F.Supp.2d 1084 (E.D.Cal. 2003), aff’d, 353 F.3d 712 (9th Cir. 2003), cert. denied, 543 U.S. 815, 125 S.Ct. 51, 160 L.Ed.2d 20 (2004).................................... 23

Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)............................... 3

Burnette v. Carothers, 192 F.3d 52 (2d Cir. 1999)............................................................................ 1

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 108, 94 L.Ed.2d 244......... 8

Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012 (2d Cir. 1993)............................................ 2

Center for Auto Safety v. Dole, 846 F.2d 1532 (D.C. Cir. 1988).................................................... 21

Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002)...................................... 7

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)............................................................................... 10

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)........................................... 20

Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987)..................................................................... 9

Community Action of Laramie, Inc. v. Bowen, 866 F.2d 347 (10th Cir. 1989)................................. 21

Conservation Council of North Carolina v. Costanzo, 505 F.2d 498 (4th Cir. 1974).......................... 6

Eskra v. Morton, 380 F. Supp. 205................................................................................................. 18

Florida Audubon Soc. v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996)...................................................... 4

Friends of the Earth, Inc. v. Gaston Copper Recycling, Corp., 204 F.3d 149 (4th Cir. 2000)............. 7

Gillespie v. City of Indianapolis, 185 F.3d 693 (10^th Cir. 1999)........................................................ 15

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

Grace Towers Tenants Asso. v Grace Housing Dev. Fund Co., 538 F2d 491 (2nd Cir 1976).......... 23

Haines v. Kerner, 404 U.S. 519 (1972)............................................................................................. 2

Heckler v. Chaney, 470 U.S. 821 (1985)........................................................................................ 20

Hernandez-Avalos v INS, 50 F3d 842 (10th Cir. 1995).................................................................. 19

In re Indian Gaming Related Cases Chemehuevi Indian Tribe, 331 F.3d 1094 cert. denied 124 S. Ct. 1412 (9th Cir. 2003)...................................................................................................................................................... 5

Jaghory v. New York State Dep't of Educ., 131 F.3d 326 (2d Cir. 1997).......................................... 1

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

Jones v Freeman, 400 F2d 383 (8th Cir. 1968)............................................................................... 22

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

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......................................................................... 3

Makarova v. United States, 201 F.3d 110 (2d Cir. 2000).................................................................. 1

McMahon v Califano 476 F Supp 978 (1979, DC Mass)................................................................ 19

Moreau v. Federal Energy Regulatory Comm'n, 982 F.2d 556 (D.C. Cir. 1993)................................ 6

Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996)...................................... 7

NAACP v Levi, 418 F Supp 1109 (1976 Dist. Col.)...................................................................... 19

National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479 (1998)......................... 4

New York v. United States, 505 U.S. 168 (1992)............................................................... 13, 14, 15

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63-65 (2004)................................................. 20

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

Peoples v United States Dep't of Agriculture, 427 F2d 561 (DC Cir. 1970)..................................... 23

Pierce County v. Guillen, 537 U.S. 129........................................................................................... 15

Port of Boston Marine Terminal Assoc. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 91 S. Ct. 203, 27 L. Ed. 2d 203 (1970)......................................................................................................................................... 22

Printz v. United States, 521 U.S. 898 (1998)............................................................................. 13, 16

Reno v. Condon, 528 U.S. 141 (2000)........................................................................................... 13

Sac & Fox Tribe of the Miss. in Iowa Election Bd. v. BIA, 321 F. Supp. 2d 1055............................. 2

Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997)....................................................................... 18

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

Sazerac Co., Inc. v. Falk, 861 F. Supp. 253 (S.D.N.Y. 1994).......................................................... 1

Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)....................... 13

Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546 (5th Cir. 1996)............................................... 6

South Carolina v. Baker, 485 U.S. 505 (1988)................................................................................ 13

Swierkiewicz v. Sorema N.A., 346 U.S. 506, 122 S.Ct. 992, 152 L.Ed. 2d 1 (2002)........................ 1

Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 83 L. Ed. 543, 59 S. Ct. 366 (1939) 12, 15

Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir. 1990)............................................. 21

Thompson v. Carter, 284 F.3d 411 (2d Cir. 2002).......................................................................... 24

TOMAC v. Norton, 193 F. Supp. 2d 182....................................................................................... 18

Velazquez v. Legal Servs. Corp., 349 F. Supp. 2d 566 reversed 2006 U.S. App. LEXIS 23170..... 15

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

Statutes

18 U.S.C. § 1166....................................................................................................................... 5, 18

25 U.S.C. § 2710....................................................................................................................... 9, 10

25 U.S.C. § 2710(b)....................................................................................................................... 18

25 U.S.C. § 2710(d)(1)(B)............................................................................................................. 18

25 U.S.C. § 2710(d)(1)(C)............................................................................................................. 18

25 U.S.C. § 2710(d)(8)(B)............................................................................................................. 10

25 U.S.C. § 2710(d)(8)(C)....................................................................................................... 17, 18

25 U.S.C. § 2710(e)....................................................................................................................... 10

25 U.S.C. § 2714........................................................................................................................... 22

25 U.S.C. § 2719........................................................................................................................... 10

28 U.S.C. § 1331............................................................................................................................. 4

28 U.S.C. § 1361....................................................................................................................... 4, 19

5 U.S.C. § 551(13).................................................................................................................. 19, 21

5 U.S.C. § 701(a)(1)...................................................................................................................... 20

5 U.S.C. § 701(a)(2)................................................................................................................ 20, 22

5 U.S.C. § 702........................................................................................................................... 4, 19

5 U.S.C. § 704........................................................................................................................... 4, 20

5 U.S.C. § 706(1)........................................................................................................................... 19

5 U.S.C. § 706(2)(A)..................................................................................................................... 18

5 U.S.C. § 706(2)(C)........................................................................................................... 4, 11, 18

5 U.S.C. § 706(2)(D ).................................................................................................................... 18

5 U.S.C.. § 706(2)(B)................................................................................................................. 4, 11

Other Authorities

The Federalist No. 32..................................................................................................................... 11

Regulations

25 CFR Part 151............................................................................................................................ 10

25 CFR Part 522............................................................................................................................ 10

Constitutional Provisions

Art. IV, Section 4 of the United States Constitution.......................................................................... 15

Article III of the United States Constitution........................................................................................ 3

N.Y. Const. Art. I § 9..................................................................................................................... 11

Tenth Amendment of the United States Constitution......................................................................... 11

Preliminary Statement

Plaintiff incorporates by reference his preliminary statement made in opposition to the State Defendants’ motion to dismiss.

Applicable Standard

It is well-settled that “[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

When deciding a motion to dismiss under Rule 12(b)(1) that does not challenge the factual allegations of the complaint, but challenges the sufficiency of them a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). A complaint should be dismissed "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 346 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed. 2d 1 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed. 2d 59 (1984)). However, where, as here, a plaintiff references written documents in the complaint, the court may take the documents into consideration even if they are not attached to the complaint and made a part thereof under Rule 10(c) such as the material the Federal Defendants filed in their appendix in support of their motion. Sazerac Co., Inc. v. Falk, 861 F. Supp. 253, 257 (S.D.N.Y. 1994) (citing Cortec Indus., Inc. v. Sum Holding L. P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir. 1991)). The scope of materials that may be considered is even more expansive when the court is asked to resolve a question of subject matter jurisdiction. Then, a court may consider any evidence that has been submitted, including affidavits, to determine whether subject matter jurisdiction exists. Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993) (citations omitted). 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."). Sac & Fox Tribe of the Miss. in Iowa Election Bd. v. BIA, 321 F. Supp. 2d 1055 (resolving issue of standing based solely on allegations of complaint) 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). 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)).

Subsequent to the Federal Defendants making this motion to dismiss the complaint was amended as of right pursuant to FRCP 15(a) (hereinafter “Complaint” or “complaint”). The amended complaint does not assert any claims under NEPA or the Seneca Nation Settlement Act of 1990. The amendment also eliminated any claim under the Equal Protection Clause of the U.S. Constitution and the Enclave Clause of the U.S. Constitution.

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. Contrary to the Federal Defendants assertion that I am out to bar the Seneca Nation from operating a “lawful gaming facility”, my goal is to bar this illegal gambling facility and its attendant negative affects to my community and my relationship with my state and federal government.

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 solely 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) as well as one directly under the Tenth Amendment.) 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”, Complaint ¶¶ 5, 6) works full time at a location within one and one half miles and resides within 6 miles from the proposed casino site (Complaint ¶ 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 (Complaint ¶ 54).

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))

Plaintiff may challenge agency action under the APA regardless of whether or not a private right of action 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). Therefore, even if the Federal Defendants’ arguments relating to standing under the various acts and constitutional provisions are correct, Plaintiff may still raise them in the context of an APA action. However, Plaintiff does, in fact have standing to raise these claims directly under the Tenth Amendment as will be demonstrated below.

Standing to raise Tenth Amendment challenge

The Federal Defendants assert that I am asserting the rights of a third-party, namely the State of New York. This is simply not the case. I am asserting my rights to protect the powers reserved to the People of the State of New York under the New York Constitution and protected by the Tenth Amendment of the United States Constitution against federal encroachment. Because under the New York State Constitution the power to determine whether or not gambling is permitted and for what purposes is reserved to the people not the State (N.Y. Const. Art. I § 9)

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 the Federal Defendant’s constitutional authority or jurisdiction (5 U.S.C. § 706(2)(B & C)).

Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "an entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The defendants cite Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 83 L. Ed. 543, 59 S. Ct. 366 (1939), as authority for the proposition that private parties “have no standing...to raise any question under the” Tenth Amendment.

The first question that must be answered is does Tenn. Elec. Power Co., supra, apply to the facts of this case? No.

The facts of this case is vastly different from other cases that dealt with private citizens bringing tenth amendment challenges like those in Tenn. Elec. Power Co., supra, in that this action seeks to vindicate a power reserved to the people rather than the state. As noted above the New York State Constitution prohibits gambling unless specifically authorized by the people of the state through their constitution. The United States Supreme Court has held that the textual exegesis, while not conclusive, suggests that, in contrast to terms "person" and "accused" in 5th and 6th Amendments, regulating procedure in criminal cases, term "the people" as used in 1st, 2nd, 4th, 9th, and 10th Amendments, refers to class of persons who are part of national community or who have otherwise developed sufficient connection with U.S. to be considered part of that community. United States v Verdugo-Urquidez, 494 US 259, 108 L Ed 2d 222, 110 S Ct 1056, reh den (1990) 494 US 1092, 108 L Ed 2d 968, 110 S Ct 1839. Plaintiff is a member of the class of persons that the tenth amendment refers to when it speaks of powers reserved to the people and is, contrary to the Federal Defendants’ assertion to the contrary, is seeking to vindicate his own interests in protecting the interests of this class of which he is a member of.

Secondly, this case is distinguishable in that, contrary to the Federal Defendants’ assertion, the State of New York through its Attorney General joined with other States’ Attorneys General in arguing to the United States Supreme Court that this particular act violated the Tenth Amendment to the U.S. Constitution in Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) (See Exhibit “D” to Plaintiff’s Request for Judicial Notice that is filed contemporaneously with this brief)

Despite the Supreme Court’s holding in Seminole Tribe that the State may assert its immunity under the Eleventh Amendment of the U.S. Constitution, the State and its people still face the coercive effect of this act. It is well settled that the Federal Defendants have a trust relationship with the Indian nations and tribes that it recognizes and that the stated purpose of this act was to further their economic development and self-sufficiency. The Federal Defendants have brought and intervened on the side of these Indian nations and tribes in asserting various claims against New York State and that if the Federal Defendants brought an action under IGRA against New York its Eleventh Amendment immunity would not act as a bar.

There are a number of principles that emerge from the Supreme Court’s Tenth Amendment decisions (Reno v. Condon, 528 U.S. 141 (2000); Printz v. United States, 521 U.S. 898 (1998); New York v. United States, 505 U.S. 168 (1992); and South Carolina v. Baker, 485 U.S. 505 (1988)):

1) Where Congress has plenary power it may legislate directly to establish gambling on tribal lands;

2) Congress can properly displace state law as part of the doctrine of preemption; and,

3) Congress can offer a “choice” or “option” to States and their people by encouraging them to participate in a federal regulatory program as part of a cooperative effort to achieve the goal of a federal act.

On the other hand:

1) Congress, through IGRA may not enlarge the State legislative or gubernatorial power beyond the limitations contained in the State Constitution and Bill of Rights;

2) Congress may not conscript the State, leaving it no choice or option, but to carry substantial burdens in order to further the purpose of IGRA;

3) Congress may not require State officials to act in disobedience of their State Constitution with respect to gambling, when the people made the ultimate decision to prohibit this activity and placed the ban in their Bill of Rights in order to insure protection against governmental intrusion;

4) Congress may not require the State to enter the compacting process and coerce it, under guise of affording it a supposed “choice,” to agree to a compact or else face the Secretary of the Interior (“Secretary”), after consultation only with the tribe, prescribing procedures permitting commercialized Class III gaming consistent with a compact selected by a mediator which will be binding on the State, through threat of federal court action and contempt orders;

5) Congress may not interfere with and disrupt the enforcement scheme between State government and its citizens, which has made criminal the commercial gambling activity that is the subject of IGRA and all contracts related to that gambling unlawful and unenforceable;

6) Congress may not act in a way that will, of necessity, diminish the confidence of the people of a State that their government will act to protect their fundamental rights; and,

7) Congress may not ignore that State sovereignty is not an end unto itself, but has, as one of its objectives, the protection of fundamental liberties and rights of citizens, affording citizens “double security” (as James Madison wrote in Federalist No. 51). The State is not empowered to consent or waive any of these rights or powers of the people.

To require the State to take action in order to ensure the success of a federal program, in the face of such action being violative of the constitutional duty the State owes its citizens, is to sanction Congress’ use of the State as a mere agent serving the interests of the federal government to the detriment of the interests of State citizens. Alden v. Maine, 527 U.S. 706 (1999). It is particularly egregious when the federal government in effect “walks away” having no role in advancing the goal it seeks.

The means chosen by Congress, i.e. compacting, indelibly blurs the matter of accountability. State citizens will see their government as the one entity acting to advance conduct prohibited by their Constitution and Bill of Rights. New York, 505 U.S. at 168-169.

There are ample other means to accomplish the goal of IGRA without any coercion of the state and its people. That is, provide for gambling through out the country pursuant to Congress’ plenary power. It is no answer to argue that IGRA should be sustained since Congress has bestowed more participation upon the State than the State would ordinarily have were Congress to directly use its plenary power. For now the Court’s task is to enforce constitutional limits on Congressional power presented by this Act.

The Act is not one where the federal government, through the Supremacy Clause, in effect strikes down a State statute or so occupies a field that the State is barred from entry unless the federal government and the State acting voluntarily enters into a cooperative arrangement. However, IGRA gives the State no choice but to accept obligations and burdens to satisfy Congress’ express goal while the resources of the federal government are directed elsewhere.

Another difference is that New York State and the United States are present in this action through their respective officers and agencies.

Other courts have questioned the continued precedential value of Tenn. Elec. Power Co., supra (see Gillespie v. City of Indianapolis, 185 F.3d 693 (10^th Cir. 1999) and Velazquez v. Legal Servs. Corp., 349 F. Supp. 2d 566 reversed 2006 U.S. App. LEXIS 23170) and it appears that the United States Supreme Court is of the opinion that the question of whether or not private citizens have standing to raise Tenth Amendment claims is an open question because in Pierce County v. Guillen, 537 U.S. 129 n. 10 the Court stated “we need not address the second question on which we granted certiorari: whether private plaintiffs have standing to assert ‘states' rights’ under the Tenth Amendment where their States' legislative and executive branches expressly approve and accept the benefits and terms of the federal statute in question.”

Challenge under Guarantee Clause should be decided on the merits

Not all Guarantee Clause, (Art. IV, Section 4 of the United States Constitution) claims are non-justiciable. In New York v. United States, supra, the United States Supreme Court stated after setting forth the origin of this blanket statement of non-justiciability “This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability, the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were not justiciable. See Kies v. Lowrey, 199 U.S. 233, 239 (1905); Forsyth v. Hammond, 166 U.S. 506, 519 (1897); In re Duncan, 139 U.S. 449, 461-462 (1891); Minor v. Happersett, 21 Wall. 162, 175-176 (1875). See also Plessy v. Ferguson, 163 U.S. 537, 563-564 (1896) (Harlan, J., dissenting) (racial segregation "inconsistent with the guarantee given by the Constitution to each State of a republican form of government").” The Court went on to state that “More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present non-justiciable political questions. See Reynolds v. Sims, 377 U.S. 533, 582 (1964) ("some questions raised under the Guarantee Clause are non-justiciable"). Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances. See, e.g., L. Tribe, American Constitutional Law 398 (2d ed. 1988); J. Ely, Democracy and Distrust: A Theory of Judicial Review 118, n., 122-123 (1980); W. Wiecek, The Guarantee Clause of the U.S. Constitution 287-289, 300 (1972); Merritt, 88 Colum. L. Rev., at 70-78; Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 Minn. L. Rev. 513, 560-565 (1962).”

In Printz v. United States, supra, the court stated in describing the structure of the Constitution stated “the Guarantee Clause, Art. IV, Section(s) 4, which "presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights," Helvering v. Gerhardt, 304 U. S. 405, 414-415 (1938).” The Court went on to state “It suffices to repeat the conclusion: "The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Id., at 166. The great innovation of this design was that "our citizens would have two political capacities, one state and one federal, each protected from incursion by the other"-"a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. See New York, supra, at 168-169; United States v. Lopez, 514 U. S. 549, 576-577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U. S. 624, 644 (1982) ("the State has no legitimate interest in protecting nonresident[s]"). As Madison expressed it: "[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245. This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory, supra, at 458.”

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)) (see TOMAC v. Norton, 193 F. Supp. 2d 182).

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)). (see TOMAC v. Norton, 193 F. Supp. 2d 182). The validity of a state compact is a distinct issue that is not mooted by Secretarial approval (see Santa Ana v. Kelly, 104 F.3d 1546, 1555 (10th Cir. 1997)).

Federal Courts have jurisdiction under the APA to decide validity of state law incorporated by reference in federal statutes that are 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)). Contrary to the Defendants assertion the Second and Third causes of action are based on federal law, not state law as addressed in the Plaintiff’s Opposition to the State Defendants’ Motion to Dismiss Points II & IV. "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).

The Fourth Cause of Action Seeks a writ of mandamus and 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.

Congress has explicitly given District Courts power to consider cases in nature of mandamus against federal officials; when it is claimed that federal officials are acting contrary to law, abusing their discretion in acting outside limits of fair permissible discretion, and when official conduct extends beyond any rational exercise of discretion, even though it is within letter of authority granted, mandamus affords appropriate judicial relief. NAACP v Levi, 418 F Supp 1109 (1976 Dist. Col.). The APA also provides for an action to compel agency action wrongfully withheld (5 U.S.C. § 706(1)).

Applicable statutes, its legislative history, regulations promulgated pursuant to its terms and any other relevant aid must be considered in determining scope of discretion a government officer enjoys, and accordingly, whether that discretion was abused for purposes of determining propriety of mandamus jurisdiction under 28 U.S.C. § 1361. See McMahon v Califano 476 F Supp 978 (1979, DC Mass). Plaintiff who has alleged causes of action under APA or Mandamus Act need not rely upon implied right of action under any other statute, and because mandamus is properly sought where government officials owe a duty to plaintiff, and duty is owed in administrative context if plaintiff's interests fall within zone of interests which underlying statute protects, plaintiff seeking mandamus in administrative context need only show that interest sought to be vindicated falls within statutory zone of interests. Hernandez-Avalos v INS, 50 F3d 842 (10th Cir. 1995) cert den (1995) 516 US 826, 133 L Ed 2d 49, 116 S Ct 92.

Subject Matter Jurisdiction under APA

for judicial review of final agency action

The final agency actions and determinations of Secretary Norton and Chairman Hogen (Complaint Ex. C & U.S. Ex. B) are reviewable under the APA.

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. § 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. § 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. When it enacted the IGRA, Congress created a detailed regulatory structure for the approval of Class III gaming. It is this law that guides and controls the amount of the Federal Defendants’ discretion in when, how, if, between whom and on what land the Federal Defendants can approve a tribal-state compact that is required for Class III gaming.

In their brief in support of this motion the Federal Defendants state that because the Secretary took no affirmative action in approving the tribal-state compact there is no law to apply (Federal Defendants Brief ¶ 25 n. 17). The APA defines agency action as “‘agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Such approval by the Secretary’s inaction is only to the extent that the tribal-state compact is consistent with IGRA. Therefore there is law to apply in determining whether the determination to let the subject tribal-state compact be deemed approved by operation of law and to determine what extent, if any, is it consistent or inconsistent with the Indian Gaming Regulatory Act and other federal laws.

In Port of Boston Marine Terminal Assoc. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 27 L. Ed. 2d 203 (1970), the Supreme Court summarized the relevant considerations for determining the finality of an agency action for purposes of judicial review as “. . .whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.”

Secretary Norton in her November 12, 2002 (Complaint Ex. “C”) letter to Governor Pataki and President Schindler articulated the basis of her decision to not affirmatively approve or disapprove the subject tribal-state compact and to allow it to be deemed approved by operation of law. This letter was therefore final agency action because it was at this point that rights and obligations were determined and the legal consequences began to flow.

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.

Furthermore this action seeks to determine whether any such discretion conferred upon the Federal Defendants by IGRA is constitutional and valid. Judicial review of statute authorizing agency discretion is not precluded because some of that action may be committed to agency discretion by law; judicial review is precluded only to extent that such discretion exists. Jones v Freeman, 400 F2d 383 (8th Cir. 1968) Additionally, even if the subject determinations falls within the discretion of the Federal Defendants, merely because agency action is nonreviewable as it falls within § 701(a)(2) it does not preclude review of questions pertaining to the agency's jurisdiction or compliance with constitutional or statutory demands. Grace Towers Tenants Asso. v Grace Housing Dev. Fund Co., 538 F2d 491 (2nd Cir 1976)

Even when action is committed to agency discretion the general rule, subject only to rare exceptions, is that action of government agency in domestic sphere, as contrasted with actions in spheres of foreign affairs or national security, is subject to judicial review for arbitrariness and abuse of discretion, even though grant of discretion may be broad. Peoples v United States Dep't of Agriculture, 427 F2d 561 (DC Cir. 1970)

In Artichoke Joe’s California Grand Casino v. Norton, 216 F.Supp.2d 1084 (E.D.Cal. 2003), aff’d, 353 F.3d 712 (9th Cir. 2003), cert. denied, 543 U.S. 815, 125 S.Ct. 51, 160 L.Ed.2d 20 (2004), a case squarely on point with regard to the issue of reviewability under the APA, the plaintiffs – a group of California card clubs and charities that were prohibited under state law from offering casino-style gambling – brought suit challenging the validity of compacts entered into under IGRA. The federal Defendants, just as they have in this case, argued that review under the APA was precluded. On this issue, the Court squarely held not only that reviewability of the Secretary’s determinations was indeed proper under the APA, but also that such review was NOT prohibited under the § 701(a)(2) exception:

As to count I, which is brought against the federal defendants, the court concludes that plaintiffs may bring a claim to enforce IGRA and the Johnson Act under §701(a)(1) of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. Further, because matters related to the approval of tribal gaming compacts are not committed by law to agency discretion, plaintiffs’ claims are not precluded by § 701(a)(2) of the APA.

216 F.Supp.2d at 1090.

Therefore since there is final agency actions and law to apply to determine whether those final agency actions are consistent with law or for arbitrariness and abuse of discretion this court has subject matter jurisdiction and the waiver of sovereign immunity contained in the Administrative Procedure Act is applicable.

Leave to Amend

If the Court does find that the complaint is deficient in its allegations Plaintiff respectfully requests leave to amend the complaint to cure them Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) ("[W]hen addressing a pro se complaint, a district 'court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.'") (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).

Conclusion

The complaint in this action sets forth allegations which establish standing, reviewability and justiciability sufficient to survive a facial attack under FRCP 12(b)(1) and a decision denying the Federal Defendants’ motion to dismiss is warranted.

DATED: October 12, 2006
Buffalo, New York

______________________
Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224