FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MAY 23, 2011

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-15336

________________________

D. C. Docket No. 08-61048-CV-WPD

HOLLYWOOD MOBILE ESTATES LIMITED,

a Michigan limited partnership,

Plaintiff-Appellant,

LASALLE BANK MIDWEST NATIONAL

ASSOCIATION,

Intervenor-Plaintiff

Appellant,

versus

SEMINOLE TRIBE OF FLORIDA,

Defendant,

UNITED STATES DEPARTMENT OF THE INTERIOR,

HON. KEN SALAZAR,

in his official capacity as Secretary of the

Interior,

Defendants-Appellees.
________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 23, 2011)

Before EDMONDSON and PRYOR, Circuit Judges, and EVANS, District Judge.

*

PRYOR, Circuit Judge:

This appeal presents issues of constitutional and prudential standing. The

issue of constitutional standing is whether Hollywood Mobile Estates Limited

alleged an injury fairly traceable to the Secretary of the Interior or redressable by

the district court in a complaint that alleged that the Seminole Tribe of Florida had

threatened to repossess tribal property in violation of a lease between Hollywood

and the Tribe. After the Tribe repossessed the leased property, the district court

denied, as futile, the motion of Hollywood for leave to amend the complaint to

request injunctive relief against the Secretary under the Administrative Procedure

Act, 5 U.S.C. § 551 et seq. That decision raises an issue of prudential standing:

whether the interests of Hollywood are within the zone of interests protected by the

Indian Long-Term Leasing Act, 25 U.S.C. § 415, and its accompanying

regulations. Because we conclude that Hollywood lacked constitutional standing

Honorable Orinda D. Evans, United States District Judge for the Northern District of *

Georgia, sitting by designation.

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to maintain its complaint, we vacate in part the judgment entered by the district

court and remand with instructions to dismiss for lack of subject matter

jurisdiction. Because we also conclude that Hollywood lacked prudential standing

to sue the Secretary, we affirm the denial of the motion for leave to amend the

complaint as futile.

I. BACKGROUND

On March 11, 1969, the Seminole Tribe of Florida agreed to lease lands

located within the Seminole Indian Reservation in Broward County, Florida, to

Joseph L. Antonucci. The Secretary of the Interior approved the lease. The lease

allowed use of the reservation property as a mobile home park with appurtenant

commercial facilities, community services, and amenities for the residents. The

lease provided that rent would be based either on the lessee’s income from the

leased property or a minimum annual amount. The lease required the lessee to

provide certified statements of gross receipts each year to assist in rent

calculations.

Antonucci and the Tribe first agreed to a term of 50 years for the lease and

later extended that term to 55 years. The lease will expire in 2024. The lease has

been modified on several occasions, each time with the Secretary’s approval. In

1970, Antonucci assigned the lease to ESCOM Enterprises, and in 1975, ESCOM

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assigned the lease to De Anza Properties.

In 1986, De Anza Properties assigned the lease to Hollywood Mobile Estates

Limited, a Michigan limited partnership. The Tribe and the Secretary approved the

assignment and agreed to a related estoppel agreement at the request of

Hollywood. The estoppel agreement provided that a certified public accountant in

Michigan would prepare the financial statements of Hollywood, allowed

encumbrance of the leased property, and provided that the lease had no uncured

default at the time of the assignment. In reliance on the estoppel agreement,

Hollywood paid the Tribe $400,000. Hollywood also agreed to pay 15 percent of

its gross income from the leased property to the Tribe as rent.

Michigan National Bank-Oakland loaned Hollywood funds to acquire the

lease. To secure the loan, Hollywood executed and delivered to Michigan National

Bank various loan documents, including a promissory note, a mortgage that

secured the note, a collateral assignment of rents and profits, and related financing

statements. After a series of acquisitions, LaSalle Bank Midwest National

Association acquired the interest in the mortgage. In 2008, Bank of America

acquired LaSalle Bank and became the successor in interest to the mortgage.

Hollywood managed a mobile home park on the leased property and had no

dispute with the Tribe about the lease until 2008. In a letter dated June 17, 2008,

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the Tribe notified Hollywood of several alleged defaults on the lease. The Tribe

contended that Hollywood had breached the lease when Hollywood used an

accountant in Michigan to prepare financial statements instead of an accountant in

Florida or California, encumbranced the leased property, and failed to put the

leased property to its best use. The letter also stated that the Tribe might repossess

the leased property. On July 3, 2008, Hollywood responded with a letter to the

Tribe that denied any default or breach and demanded arbitration of the dispute.

Hollywood filed a complaint in the district court on July 8, 2008.

Hollywood alleged that it was “threatened with irreparable injury if the Tribe

resort[ed] to self-help and reenter[ed] . . . the property” and requested the district

court to “enter a temporary restraining order or a preliminary injunction to restrain

and enjoin any reentry and/or retaking of the leased premises.” The complaint

named as defendants the Tribe and Dirk Kempthorne in his official capacity as

Secretary of the Interior. The complaint described the Secretary as “the approving

and indispensable party pursuant to the Lease” who had “the overall responsibility

for administering the actions taken by the Department of the Interior.” The

complaint alleged that the Secretary had approved and ratified the lease and that

the lease required arbitration if Hollywood, the Tribe, and the Secretary could not

resolve a dispute about the lease. The complaint also alleged that Hollywood

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“ha[d] a good faith belief and concern that the Tribe [would] resort to self help and

reenter and retake the leased premises” because the Tribe had previously utilized

self-help to repossess a water and sewer treatment facility in violation of a separate

lease with Hollywood.

Hollywood also filed an emergency motion for a preliminary injunction that

sought to prohibit the Tribe from using self-help to evict Hollywood from the

leased property. The Tribe nonetheless forcibly evicted Hollywood before the

district court decided the emergency motion. The Tribe has since remained in

possession of the leased property, collected rental income from the mobile home

park residents each month, and refused to remit this rental income to Hollywood or

LaSalle Bank. The district court denied the emergency motion of Hollywood on

the ground that tribal sovereign immunity would likely prevent Hollywood from

prevailing on the merits.

After Hollywood filed its complaint, the Tribe initiated an administrative

proceeding and requested that Franklin Keel, Eastern Regional Director of the

Bureau of Indian Affairs, cancel the lease. After Keel received submissions from

both Hollywood and the Tribe, he denied the request to cancel the lease. Keel

stated that he had determined that Hollywood had not breached the lease. The

Tribe appealed Keel’s decision to the Interior Board of Indian Appeals. That

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administrative appeal is still pending.

Hollywood moved to dismiss the Tribe after it asserted sovereign immunity,

and the district court granted that motion. The district court also granted the

request of LaSalle Bank to intervene as a plaintiff.

The Secretary moved to dismiss the complaint based on sovereign immunity,

failure to exhaust administrative remedies, and failure to join the Tribe as an

indispensable party. Hollywood then moved for leave to file an amended and

supplemental complaint. Hollywood later filed a revised version of its amended

complaint in which it alleged that the “refusal and failure of the [Secretary and

Keel] to enforce the lease, preserve the property interests of [Hollywood] and place

[Hollywood] back in possession of the property constitute[d] ultra vires actions and

constitute[d] final agency action causing irreparable harm.” Hollywood cited both

the Mandamus and Venue Act, 28 U.S.C. § 1361, and the Administrative

Procedure Act, 5 U.S.C. § 551 et seq., as authorities for granting relief. In a related

motion, Hollywood alleged that “[m]oney damages are not sought in this

case—only an injunction to compel the Secretary to enforce the lease by placing

Hollywood . . . back into possession of the leasehold premises.” Hollywood

argued that “by refusing to enforce the lease and immediately return the possessory

interest, [the Secretary and Keel] have arrived at an immediately effective

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definitive position that inflicts an actual, concrete injury; an injury that directly

affects Hollywood . . . in ways that are irreparable.” LaSalle Bank did not file a

motion for leave to amend or otherwise join the motion of Hollywood.

The district court denied the motion of Hollywood for leave to amend the

complaint and dismissed the action with prejudice for failure to state a claim upon

which relief can be granted. The district court construed the complaint as a

petition for a writ of mandamus and determined that Hollywood had failed to

establish that the Secretary had a nondiscretionary duty to remove the Tribe from

the leased property. The court concluded that the proposed amendment to the

complaint was futile because it sought the same relief.

Hollywood moved for reconsideration on the ground that the district court

should have withheld its decision until the completion of the administrative appeal

filed by the Tribe. The district court denied that motion. Hollywood and LaSalle

Bank appealed the dismissal of the complaint, the denial of leave to amend, and the

denial of reconsideration, and we directed the parties to be prepared to discuss at

oral argument whether they had standing to sue the Secretary in the light of the

holdings of our sister circuits in Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031

(8th Cir. 2002), and San Xavier Development Authority v. Charles, 237 F.3d 1149

(9th Cir. 2001).

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II. STANDARD OF REVIEW

“We review issues of standing de novo.” Common Cause/Ga. v. Billups,

554 F.3d 1340, 1349 (11th Cir. 2009). “We review the denial of a motion to amend

a complaint for an abuse of discretion,” but “when the district court denies the

plaintiff leave to amend due to futility, we review the denial de novo because it is

concluding that as a matter of law an amended complaint would necessarily fail.”

Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1040

(11th Cir. 2006) (internal quotation marks omitted).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that Hollywood, in

its initial complaint, failed to allege constitutional standing to sue the Secretary.

Second, we explain that the district court did not err when it denied the motion of

Hollywood for leave to amend the complaint because the proposed amendment

was futile for lack of prudential standing.

A. Hollywood Failed to Allege Constitutional Standing to Sue the Secretary.

Article III of the United States Constitution limits the jurisdiction of federal

courts to “Cases” and “Controversies,” U.S. Const. Art. III, § 2, and “the core

component of standing is an essential and unchanging part of the case-orcontroversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S.

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555, 560, 112 S. Ct. 2130, 2136 (1992). Standing “determin[es] the power of the

court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197,

2205 (1975). “In the absence of standing, a court is not free to opine in an

advisory capacity about the merits of a plaintiff’s claims, and the court is powerless

to continue.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269

(11th Cir. 2006) (citations and internal quotation marks omitted). “We are

obligated to address jurisdictional questions sua sponte.” Frulla v. CRA Holdings,

Inc., 543 F.3d 1247, 1250 (11th Cir. 2008).

“Article III standing must be determined as of the time at which the

plaintiff’s complaint is filed,” Focus on the Family v. Pinellas Suncoast Transit

Auth., 344 F.3d 1263, 1275 (11th Cir. 2003), and “the standing inquiry requires

careful judicial examination of a complaint’s allegations to ascertain whether the

particular plaintiff is entitled to an adjudication of the particular claims asserted,”

Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 3325 (1984). “‘[W]e should

not speculate concerning the existence of standing’” because we “‘lack[] the power

to create jurisdiction by embellishing a deficient allegation of injury.’” DiMaio v.

Democratic Nat’l Comm., 520 F.3d 1299, 1301 (11th Cir. 2008) (quoting Elend v.

Basham, 471 F.3d 1199, 1206 (11th Cir. 2006)).

The Supreme Court has explained that the “irreducible constitutional

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minimum” of standing under Article III consists of three elements: an actual or

imminent injury, causation, and redressability. Lujan, 504 U.S. at 560–61, 112 S.

Ct. at 2136; see also Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir.

2010); Steele v. Nat’l Firearms Act Branch, 755 F.2d 1410, 1413–14 (11th Cir.

1985). “The party invoking federal jurisdiction bears the burden of proving

standing.” Bischoff v. Osceola Cnty., Fla., 222 F.3d 874, 878 (11th Cir. 2000). We

must examine the complaint filed by Hollywood to determine whether it pleaded

these three elements.

Hollywood alleged an imminent injury. The injury-in-fact element requires

“an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at

560, 112 S. Ct. at 2136 (footnote, citations, and internal quotation marks omitted).

Hollywood satisfied this requirement when it sought “a temporary restraining order

or a preliminary injunction to restrain and enjoin any reentry and/or retaking of the

leased premises” because Hollywood was “threatened with irreparable injury if the

Tribe resort[ed] to self-help and reenter[ed] . . . the property.” Hollywood alleged

that the Tribe had previously resorted to self-help to repossess other property

Hollywood had leased. The Tribe later carried out its threat by forcibly evicting

Hollywood from the leased property, despite Keel’s determination that Hollywood

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had not breached the lease, and by collecting rent that otherwise would have been

paid to Hollywood.

Although Hollywood alleged an imminent injury, Hollywood failed to allege

that its injury was fairly traceable to the Secretary. The causation element of

Article III standing requires “a causal connection between the injury and the

conduct complained of—the injury has to be fairly traceable to the challenged

action of the defendant, and not the result of the independent action of some third

party not before the court.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136 (alterations

and internal quotation marks omitted). Hollywood named the Secretary as a

defendant and described some responsibilities of his office, but failed to allege an

action of the Secretary that had caused Hollywood any injury. Hollywood instead

sought to enjoin the Tribe from repossessing the leased property because the Tribe

had threatened to do so.

Our decision in Doe v. Pryor, where we held that a plaintiff’s injuries were

not fairly traceable to a public official because the plaintiff had failed to allege how

that official had caused those injuries, 344 F.3d 1282, 1285 (11th Cir. 2003), is

instructive. In Doe, several plaintiffs filed suit against the Attorney General of

Alabama to enjoin enforcement of a statute that made “deviate sexual intercourse”

a criminal offense, Ala. Code § 13A-6-65(a)(3). Doe, 344 F.3d at 1283–84. One

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of the plaintiffs alleged that she had lost a custody dispute in a state court, which

had cited the challenged statute in its decision. See Ex parte J.M.F., 730 So. 2d

1190, 1196 n.5 (Ala. 1998). After the Supreme Court decided Lawrence v. Texas,

539 U.S. 558, 123 S. Ct. 2472 (2003), the Attorney General of Alabama conceded

that the challenged statute was no longer enforceable, Doe, 344 F.3d at 1283. We

held that the plaintiff who had lost the custody dispute lacked standing because her

injuries were not fairly traceable to any alleged act of the Attorney General: “The

only defendant in this case is the Alabama Attorney General, and the only injuries

[the plaintiff] has alleged stem from a state court custody proceeding in which the

Attorney General played no role. The Attorney General has taken no . . .

‘challenged action.’” Id. at 1285. See also S. Pac. Transp. Co. v. Brown, 651 F.2d

613, 614–15 (9th Cir. 1980).

The same is true here. Hollywood alleged an imminent injury related to the

leased property: that is, a forcible eviction. But the Secretary played no role in that

action. The Tribe acted unilaterally against Hollywood.

“It is the plaintiff’s burden to plead and prove . . . causation . . . .” Steele,

755 F.2d at 1414. Hollywood failed to satisfy this burden because it did not allege

that the Secretary had caused Hollywood any injury. For that reason, the district

court should have dismissed the complaint of Hollywood for lack of subject matter

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jurisdiction.

Even apart from its failure to allege causation, Hollywood also failed to

allege that its injury was redressable by the district court. The element of

redressability requires that “it must be likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561, 112

S. Ct. at 2136 (internal quotation marks omitted). “Redressability is established

when a favorable decision would amount to a significant increase in the likelihood

that the plaintiff would obtain relief that directly redresses the injury suffered.”

Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th Cir. 2010)

(alteration and internal quotation marks omitted). We must be able “to ascertain

from the record whether the relief requested is likely to redress the alleged injury,”

Steele, 755 F.2d at 1415, and if we cannot, then we do not have jurisdiction to

entertain the appeal. See DiMaio, 520 F.3d at 1303 (dismissing complaint for lack

of standing because it did not “suggest in any way how [the] ‘injury’ could be

redressed by a favorable judgment”). Hollywood failed to allege what the Secretary

could have done to prevent the Tribe from repossessing the leased property or cite

any authority that empowered the Secretary to act for the benefit of Hollywood. “It

is the plaintiff’s burden to plead and prove . . . redressability,” Steele, 755 F.2d at

1414, and Hollywood failed to satisfy this burden. For this additional reason, the

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district court should have dismissed the complaint of Hollywood for lack of subject

matter jurisdiction.

Although the district court later allowed LaSalle Bank to intervene, LaSalle

Bank added no new allegation of injury fairly traceable to the Secretary or

redressable by the district court. In fact, LaSalle Bank failed to attach a copy of its

pleading in intervention to its motion as required by Federal Rule of Civil

Procedure 24(c). That failure means that LaSalle Bank also did not establish

constitutional standing to sue the Secretary.

B. The District Court Did Not Err When It Denied Hollywood

Leave to Amend the Complaint.

Hollywood contends that the district court erred when it denied, as futile, the

motion of Hollywood for leave to file an amended complaint, but Hollywood lacked

prudential standing to maintain that complaint. The interests of Hollywood are not

arguably within the zone of interests protected by the Indian Long-Term Leasing

Act, 25 U.S.C. § 415, and its accompanying regulations, which govern the lease

between Hollywood and the Tribe. The district court reached the correct result,

even if for the wrong reason.

Our discussion of the denial of the motion for leave to file an amended

complaint is divided in two parts. First, we explain that the amended complaint

proposed by Hollywood should be construed as a request for a mandatory

15
injunction against the Secretary under the Administrative Procedure Act, 5 U.S.C. §

551 et seq. Second, we explain that the proposed amendment of the complaint was

futile because Hollywood lacked prudential standing; the interests of Hollywood are

not arguably within the zone of interests protected by the Indian Long-Term

Leasing Act, 25 U.S.C. § 415, and its accompanying regulations, which govern the

lease between Hollywood and the Tribe.

1. The Amended Complaint Should Be Construed as a Request for a Mandatory

Injunction under the Administrative Procedure Act.

We must determine the nature of the relief requested by Hollywood in the

amended complaint before we address its futility. Hollywood cited both the

Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the Mandamus and

Venue Act, 28 U.S.C. § 1361, as authorities for granting relief in the amended

complaint. In a related motion, Hollywood explained that it sought “an injunction

to compel the Secretary to enforce the lease by placing Hollywood . . . back into

possession of the leasehold premises.” Hollywood now argues that the amended

complaint sought a mandatory injunction against the Secretary, not a writ of

mandamus. The Secretary contends that a writ of mandamus is the only possible

remedy.

The Administrative Procedure Act waives the sovereign immunity of the

United States to the extent that it permits “[a] person suffering legal wrong because

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of agency action” to “seek[] relief other than money damages” in federal court. 5

U.S.C. § 702. “Agency action” includes “failure to act.” Id. § 551(13). The Act

provides that “[t]he form of proceeding for judicial review” may “includ[e] . . . [a]

mandatory injunction . . . in a court of competent jurisdiction.” Id. § 703. The Act

also provides that “the reviewing court shall . . . compel agency action unlawfully

withheld or unreasonably delayed.” Id. § 706. “[A] claim under § 706(1) can

proceed only where a plaintiff asserts that an agency failed to take a discrete agency

action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S.

55, 64, 124 S. Ct. 2373, 2379 (2004) (alteration in original).

The Mandamus and Venue Act provides, “The district courts shall have

original jurisdiction of any action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361. A district court may grant a petition for a writ of

mandamus if the defendant owes the plaintiff a “clear nondiscretionary duty” and

the plaintiff has “exhausted all other avenues of relief.” Heckler v. Ringer, 466

U.S. 602, 616, 104 S. Ct. 2013, 2022 (1984); Lifestar Ambulance Serv., Inc. v.

United States, 365 F.3d 1293, 1295 (11th Cir. 2004). A writ of mandamus will not

be granted if alternative remedies are available. Heckler, 466 U.S. at 616, 104 S.

Ct. at 2022; Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003).

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The Supreme Court has construed a request for a writ of mandamus against

the Secretary of Commerce as a complaint under section 706 of the Administrative

Procedure Act, Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230

n.4, 106 S. Ct. 2860, 2866 n.4 (1986), and its decision is instructive. Based on that

decision, the Ninth Circuit construed a complaint that requested relief under both

the Mandamus and Venue Act and the Administrative Procedure Act as a complaint

under the Administrative Procedure Act because “the relief sought [was] essentially

the same” under either approach. Independence Mining Co. v. Babbitt, 105 F.3d

502, 507 (9th Cir. 1997). The Ninth Circuit also “question[ed] the [availability] of

the traditional mandamus remedy . . . where there [was] an adequate remedy under

the [Administrative Procedure Act].” Id. at 507 n.6. The Third Circuit similarly

concluded that the availability of injunctive relief under the Administrative

Procedure Act means that the “grant of a writ of mandamus would be improper.”

Stehney v. Perry, 101 F.3d 925, 934 (3d Cir. 1996).

Based on the approach of the Supreme Court in Japan Whaling, the amended

complaint proposed by Hollywood is best construed as a request for a mandatory

injunction against the Secretary under the Administrative Procedure Act. The

proposed complaint cites the Administrative Procedure Act and seeks to “[c]ompel

[the Secretary and Keel] to enforce the [l]ease and the applicable federal law by

restoring [Hollywood] to full possession of the leasehold premises.” The

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availability of relief under the Administrative Procedure Act also forecloses a grant

of a writ of mandamus.

2. The Proposed Amendment of the Complaint of Hollywood Was Futile Because

Hollywood Lacks Prudential Standing.

When construed as a complaint under the Administrative Procedure Act, the

amended complaint is futile because Hollywood lacks prudential standing. The

interests of Hollywood are not arguably within the zone of interests protected by the

Indian Long-Term Leasing Act and its accompanying regulations. The district

court did not err when it denied the motion of Hollywood for leave to amend the

complaint.

“In addition to the immutable requirements of Article III, the federal

judiciary has also adhered to a set of prudential principles that bear on the question

of standing,” Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161 (1997)

(internal quotation marks omitted), and when a party requests relief under the

Administrative Procedure Act, we ask, as part of our review of prudential standing,

“whether the interest sought to be protected by the complainant is arguably within

the zone of interests to be protected or regulated by the statute . . . in question,”

Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153–54, 90 S. Ct.

827, 830 (1970). The Supreme Court has explained that our inquiry is not so

demanding as to deny potential relief to a person whose interests are, at least,

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arguably protected by the relevant statute:

[I]n applying the “zone of interests” test, we do not ask whether, in

enacting the statutory provision at issue, Congress specifically

intended to benefit the plaintiff. Instead, we first discern the interests

“arguably . . . to be protected” by the statutory provision at issue; we

then inquire whether the plaintiff’s interests affected by the agency

action in question are among them.

Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 492, 118

S. Ct. 927, 935 (1998). Under this test, we must examine the Indian Long-Term

Leasing Act and its accompanying regulations to determine the interests they

arguably protect and then determine whether the interests of Hollywood are among

those arguably protected interests.

The interests of Hollywood are not arguably within the zone of interests

protected by the Indian Long-Term Leasing Act, which allows “[a]ny restricted

Indian lands, whether tribally, or individually owned, [to] be leased by the Indian

owners, with the approval of the Secretary of the Interior, for public, religious,

educational, recreational, residential, or business purposes.” 25 U.S.C. § 415(a).

The Secretary’s approval of leases of Indian land “is consistent with the longstanding relationship between Indians and the government in which the government

acts as a fiduciary with respect to Indian property.” Saguaro Chevrolet, Inc. v.

United States, 77 Fed. Cl. 572, 577–78 (2007). That fiduciary relationship requires

the federal government to act for the benefit of Indian landowners because

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Congress intended section 415 “to protect Indian tribes and their members.” San

Xavier Dev. Auth., 237 F.3d at 1153; see also Utah v. U.S. Dep’t of Interior, 45 F.

Supp. 2d 1279, 1283–84 (D. Utah 1999).

The same is true of the corresponding regulations, which charge the Bureau

of Indian Affairs with regulating leases under section 415. See generally 25 C.F.R.

pt. 162. Subpart A, id. §§ 162.100–162.113, and subpart F, id. §§

162.600–162.623, regulate non-agricultural leases. The Bureau promulgated these

regulations for several purposes: to assist Indian landowners, id. §§ 162.107(a),

162.108(a); to protect the interests of Indian landowners, id. §§ 162.102(c),

162.105(a), 162.107(a), 162.108(b), 162.604(b)(3) and (d), 162.617(a), 162.620(b);

to enable the Bureau to take action to recover possession on behalf of the Indian

landowners, id. §§ 162.106(a), 162.108(b), 162.623; and to preserve the value of

Indian lands, id. §§ 162.102(c), 162.107(a), 162.108(b). The regulation that

addresses the “responsibilities” of the Bureau “in administering and enforcing

leases” provides that the Bureau acts to protect the interests of Indian tribes:

(a) We will ensure that tenants meet their payment obligations to

Indian landowners, through the collection of rent on behalf of the

landowners and the prompt initiation of appropriate collection and

enforcement actions. We will also assist landowners in the

enforcement of payment obligations that run directly to them, and in

the exercise of any negotiated remedies that apply in addition to

specific remedies made available to us under these or other

regulations.

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(b) We will ensure that tenants comply with the operating

requirements in their leases, through appropriate inspections and

enforcement actions as needed to protect the interests of the Indian

landowners and respond to concerns expressed by them. We will take

immediate action to recover possession from trespassers operating

without a lease, and take other emergency action as needed to

preserve the value of the land.

25 C.F.R. § 162.108. The Eighth Circuit has held that a nontribal lessee of Indian

land lacked standing to sue the Secretary of the Interior under section 415 because

Congress intended section 415 “to protect only Native American interests,”

Rosebud Sioux Tribe, 286 F.3d at 1036–37, and we agree. See also San Xavier

Dev. Auth., 237 F.3d at 1153 (lessee of Indian land lacked prudential standing to

sue under 25 U.S.C. § 416, a related statute that governs leases of land located

within the San Xavier Indian Reservation, because the statute and accompanying

regulations did not provide a remedy for the lessee). Section 415 and its

accompanying regulations protect Indian landowners, not nontribal lessees.

Hollywood argues that section 415 and its accompanying regulations

empower the Secretary to enforce a lease of Indian land for the mutual benefit of

both parties to the lease, but the texts of those laws say otherwise. The regulation

that addresses the Secretary’s enforcement authority, for example, provides, “We

will ensure that tenants comply with the operating requirements in their leases,

through appropriate inspections and enforcement actions as needed to protect the

interests of the Indian landowners.” 25 C.F.R. § 162.108(b). This authority to

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enforce leases is not for the mutual benefit of both parties; the regulation empowers

the Secretary to enforce leases only for the benefit of Indian landowners. Because

Hollywood is not an Indian landowner, its interests as a nontribal lessee of Indian

land do not arguably fall within the zone of interests protected by section 415 and

its accompanying regulations.

Hollywood also argues that the Secretary’s authority to enforce leases

includes the authority to eject a trespassing tribe, but the plain language of the

regulations again fails to support this argument. The regulations define “[t]respass”

as “an unauthorized possession, occupancy, or use of Indian land.” Id. § 162.101.

The regulations that address the Secretary’s enforcement authority over trespassers

empower him to “take action to recover possession on behalf of the Indian

landowners.” Id. §§ 162.106(a), 162.623. Even if we were to describe the Tribe as

a trespasser on tribal land, Hollywood would still not fall within the zone of

protected interests because the regulations empower the Secretary to eject

trespassers for the benefit of only Indian landowners.

Hollywood relies on Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072

(9th Cir. 1983), but that decision lends no support to its argument. In YavapaiPrescott, an Indian tribe sought relief in a district court after the Interior Board of

Indian Appeals had reinstated a lease that the tribe had unilaterally terminated. The

Ninth Circuit held that section 415 and its accompanying regulations require the

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involvement of the Secretary in lease cancellations, id. at 1075–76, but that grant of

authority is not in dispute here. It is undisputed that an appointee of the Secretary

has already determined that Hollywood did not breach the lease. Whether the

Interior Board of Indian Appeals will affirm that determination is uncertain, as the

administrative appeal filed by the Tribe remains pending, but the outcome of that

administrative appeal does not affect our analysis.

Hollywood argues that it must be able to seek relief against the Secretary, lest

there be no remedy for a wrongful eviction by the Tribe, but this argument fails for

two reasons. First, a judicial remedy is often unavailable for contractors who have

disputes with Indian tribes because of tribal sovereign immunity. See, e.g., Kiowa

Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 118 S. Ct. 1700 (1998). Second,

our conclusion that Hollywood lacks prudential standing does not mean that lessees

of tribal lands have no remedy whatsoever. Lessees may potentially obtain

contractual waivers of sovereign immunity or seek relief in tribal courts or

administrative processes. Whether Hollywood can now pursue these alternative

forms of relief is irrelevant to our holding that Hollywood lacks prudential standing

to seek relief against the Secretary under section 415 and its accompanying

regulations.

Hollywood finally contends that the Secretary has the authority to enforce the

lease in its favor because the Secretary represented to the district court that, if an

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investigation revealed that Hollywood had not breached the lease, “the Bureau

would be prepared to use its authority to return the parties to the status quo ante,”

but the Secretary’s bare statement to the district court proves nothing. The

Secretary offered no explanation of this supposed authority to enforce the lease in

favor of Hollywood. Before this Court, the Secretary instead contends, and we

agree, that the interests of Hollywood do not fall within the zone of interests

protected by section 415 and its accompanying regulations.

IV. CONCLUSION

We VACATE IN PART the judgment of the district court and REMAND

with instructions to DISMISS for lack of subject matter jurisdiction, and we

AFFIRM the denial of the motion for leave to amend the complaint as futile.

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