KANSAS EX REL. SCHMIDT v. ZINKE

No. 16-3015.

861 F.3d 1024 (2017)

State of KANSAS, EX REL. Derek SCHMIDT, Attorney General; Cherokee County, Kansas, Board of County Commissioners, Plaintiffs-Appellants, v. Ryan ZINKE, Secretary of the United States Department of Interior, in his official capacity; National Indian Gaming Commission; Jonodev Osceloa Chaudhuri, National Indian Gaming Commissioner, in his official capacity; Daniel J. Little, Associate Commissioner National Indian Gaming Commission, in his official capacity; Department of Interior; Eric N. Shepard, General Counsel National Indian Gaming Commission, in his official capacity; Kevin K. Washburn, Assistant Secretary of Indian Affairs for the United States Department of Interior, in his official capacity; John Berrey, Chairperson of the Quapaw Tribe of Oklahoma Business Committee and Chairperson of the Downstream Development; Thomas Mathews, Vice-Chairperson of Quapaw Tribe of Oklahoma Business Committee; Tamara Smiley-Reeves, Secretary/Treasurer of Quapaw Tribe of Oklahoma Business Committee, Secretary of the Quapaw Tribe of Oklahoma Development Corporation, and member of the Downstream Development Authority; T.C. Bear, Member of Quapaw Tribe of Oklahoma Business Committee and Quapaw Gaming Authority; Betty Gaedtke, Member of Quapaw Tribe of Oklahoma Business Committee; Ranny McWatters, Member of Quapaw Tribe of Oklahoma Business Committee and Treasurer of the Downstream Development Authority; Marilyn Rogers, Member of Quapaw Tribe of Oklahoma Business Committee, Quapaw Gaming Authority, and Downstream Development Authority; Trenton Stand, Member of Quapaw Gaming Authority; Lori Shafer, Member of Quapaw Gaming Authority; Justin Plott; Fran Wood, Member of Quapaw Gaming Authority; Larry Ramsey, Secretary of the Downstream Development Authority; Barbara Kyser-Collier, Executive Director of the Quapaw Gaming Oklahoma Tribal Gaming Agency; Erin Shelton, Deputy Director of the Quapaw Tribe of Oklahoma Tribal Gaming Agency, a/k/a Erin Eckart; Rodney Spriggs, President of the Quapaw Development Corporation; Art Cousatte, Vice-President of the Quapaw Development Corporation; Donna Mercer, Treasurer of the Quapaw Development Corporation; Jerri Montgomery, Member of the Quapaw Development Corporation; Quapaw Development Corporation; Downstream Development Authority of the Quapaw Tribe of Oklahoma, (O-GAH-PAH); Quapaw Gaming Authority, Defendants-Appellees, Iowa Tribe of Kansas and Nebraska; Sac and Fox Nation of Missouri in Kansas and Nebraska, Movants.

United States Court of Appeals, Tenth Circuit.

Filed June 27, 2017.


Attorney(s) appearing for the Case

Bryan C. Clark , Assistant Solicitor General ( Jeffrey A. Chanay , Chief Deputy Attorney General, and Stephen Phillips , Assistant Attorney General, and David R. Cooper , Fisher, Patterson, Sayler & Smith, LLP, with him on the briefs), Office of the Attorney General, Topeka, Kansas, for Plaintiffs-Appellants.

Ellen J. Durkee ( Thomas E. Beall , Acting United States Attorney, District of Kansas, Jackie A. Rapstine , Assistant United States Attorney, John C. Cruden , Assistant Attorney General, Daron T. Carreiro , and Katherine J. Barton , and JoAnn Shyloski , Office of the General Counsel, National Indian Gaming Commission, Washington, D.C., and Jennifer Christopher , Office of the Solicitor, Department of the Interior, Washington, D.C., with him on the brief), Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the Federal Defendants-Appellees.

Stephen R. Ward ( Paul M. Croker , Armstrong Teasdale, LLP, Kansas City, Missouri, and Daniel E. Gomez , and R. Daniel Carter , with him on the brief), Conner & Winters, LLP, Tulsa, Oklahoma, for the Quapaw Tribal Defendants-Appellees.

Before KELLY, LUCERO, and MURPHY, Circuit Judges.


The question in this case is whether a legal opinion letter issued by the Acting General Counsel of the National Indian Gaming Commission ("NIGC") regarding the eligibility of Indian lands for gaming constitutes "final agency action" subject to judicial review. In response to a request from the Quapaw Tribe, the NIGC Acting...

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