State of Kansas v. Acting Southern Plains Regional Director, Bureau of Indian Affairs, 53 IBIA 32 (2011)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS State of Kansas v. Acting Southern Plains Regional Director, Bureau of Indian Affairs 53 IBIA 32 (02/11/2011)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

STATE OF KANSAS, Appellant,

v. ) ) ACTING SOUTHERN PLAINS ) REGIONAL DIRECTOR, BUREAU ) OF INDIAN AFFAIRS, ) Appellee. )

Order Affirming Decision

Docket No. IBIA 09-040-A

February 11, 2011

The State of Kansas (State) appeals to the Board of Indian Appeals (Board) from a December 15, 2008, decision (Decision) of the Acting Southern Plains Regional Director (Regional Director), Bureau of Indian Affairs (BIA), in which he affirms the April 17, 2001, decision of the Superintendent of BIA’s Horton Agency (Agency) to accept a tract of land — known as the Buck (PT-56) property located in Jackson County, Kansas — into trust for the Prairie Band Potawatomi Nation (Nation). Jackson County, Kansas (County), joins in the State’s brief in this matter.1 Because the State does not show error in the Regional Director’s decision, we affirm the Regional Director’s decision.1

We reject the State’s arguments. First, as the Regional Director points out, the regulations do not require that BIA conduct a “cumulative impacts” analysis. Subsection 151.10(e) directs BIA to consider the impact of the removal of “the land” from the tax rolls and is silent concerning consideration of any cumulative impacts that may result from other possible trust acquisitions, each of which must also be evaluated under Section 151. Therefore, the Board consistently has rejected arguments that BIA must undertake a separate “cumulative impacts” analysis. See, e.g., Roberts County, South Dakota v. Acting Great Plains Regional Director, 51 IBIA 35, 51 (2009), jud. rev. pend’g sub nom. State of South Dakota v. U.S. Dep’t. of the Interior, CIV No. 10-3007 (D.S.D.); City of Eagle Butte, South Dakota v. Acting Great Plains Regional Director, 49 IBIA 75, 81-82 (2009). On the other hand, in response to a similar argument raised in another case, the Board has noted that prior trust acquisitions necessarily will be reflected in the baseline condition, e.g., the County’s tax base against which the effects of the trust acquisition must be compared by BIA. See State of South Dakota v. Acting Great Plains Regional Director, 39 IBIA at 294 n.8. And we have not ruled out the possibility that BIA’s proper exercise of discretion may, under certain circumstances, require consideration of the collective impact of multiple simultaneous fee-to-trust applications. See Roberts County, 51 IBIA at 51 n.13. But in the present case, the State makes only a general allegation that BIA should have considered this acquisition in relation to “a much larger ongoing land acquisition program” by the Nation, Opening Brief at 2, but provides no details whatsoever. We therefore find no basis to conclude that BIA’s exercise of discretion in considering § 151.10(e) was defective. Moreover, contrary to the State’s assertions, the State (and County) had two opportunities to bring any cumulative impacts to BIA’s attention through the comment period preceding the Superintendent’s decision and, failing that, through an appeal to the Regional Director.5 The record shows that both the State and the County were sent letters in 1999 informing them of the fee-to-trust application for the Buck (PT-56) property and requesting information and comments within 30 days. Although both the State and the County responded, no information concerning any cumulative financial (or other) impact was provided. The parties merely informed BIA that current taxes on the parcel were then $240.44 and commented that “[t]he impact and the tax burden [resulting from the land passing into trust status] . . . will no doubt have a deteriorating effect upon the County’s tax base and the services offered to all it[]s citizens.” See, e.g., letter from County to Agency, June 21, 1999, at 2-3 (AR, Tab 6). The State (and County) had a further opportunity to comment in its appeal to the Regional Director but again failed to provide any information beyond conclusory statements and current tax information for the parcel.5

evidence. Therefore, we reject the State’s argument that the Regional Director’s decision is somehow defective simply due to the passage of time.9 Conclusion For the reasons set forth above, we conclude that the State of Kansas has not met its burden of showing error in the Regional Director’s decision to accept the Buck (PT-56) property into trust. Therefore, pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the Board affirms the Regional Director’s December 15, 2008, decision to take the Buck (PT-56) property into trust for the Prairie Band Potawatomie Nation. I concur:

// original signed Debora G. Luther Administrative Judge

// original signed Steven K. Linscheid Chief Administrative Judge

If anything, the State and County have benefitted from the delay because taxes presumably have continued to accrue and be paid on the property. 53 IBIA 41

[1]. The County intended separately to appeal the Regional Director’s decision to the Board, as the administrative record received by the Board from BIA for this appeal contains a signed original of the County’s appeal. No other original or copy of the County’s appeal was received by the Board, and the administrative record was received by the Board after the 30-day deadline for filing appeals had expired. See 43 C.F.R. § 4.332(a) (notices of appeal to the Board are required to be filed with the Board within 30 days of receipt of decision); Siemion v. Rocky Mountain Regional Director, 48 IBIA 249, 257 (2009). The County has not made any argument to the Board that its appeal should be considered despite being advised by the Board (in response to the County’s inquiry) that the Board had not received an appeal from the County within the 30-day appeal period. Therefore, we treat the County as an interested party in this appeal and not as an appellant. 53 IBIA 32

Factual and Procedural Background The Nation acquired the Buck (PT-56) property in August 1998. It consists of 96 acres of unimproved grasslands located outside and noncontiguous to the exterior boundaries of the Nation’s reservation and approximately one mile east of the Nation’s original reservation boundaries. See 25 C.F.R. § 151.2(f) (definition of “Indian reservation”).2 A few months after purchasing the property, the Nation applied to BIA to have the parcel taken into trust. According to the Nation’s resolution, PBP 99-06, the land will be used for cattle ranching and farming, which will provide increased employment opportunities for tribal members. The Nation deemed trust status to be advantageous for the land because it would assist the Nation in restoring its original tribal land base, permit the Nation to avail itself of BIA’s conservation and agricultural advisory services for the land, and protect and preserve the land in perpetuity for the Nation. The Agency provided notice of the trust acquisition request to the State and the County, and BIA received information and objections to the proposed acquisition from both governments. The Agency performed an environmental review and concluded that the proposed acquisition was “categorically excluded” from further consideration under the National Environmental Protection Act (NEPA), 42 U.S.C. §§ 4321 et seq. An environmental site assessment was performed, and no evidence of contaminants was found. Following his review of the proposed acquisition, comments, and objections, the Superintendent issued his decision to accept the Buck (PT-56) property into trust on April 17, 2001. The Superintendent analyzed the proposed acquisition as an off-reservation fee-to-trust acquisition pursuant to 25 C.F.R. § 151.11. The State and the County both appealed the decision to the Regional Director, raising numerous objections. Over 7 years later, on December 15, 2008, the Regional Director affirmed the Superintendent’s decision. As relevant to the present appeal, the Regional Director found that the Buck (PT-56) parcel met “a specific need of the [Nation] to expand its Tribal Land Management Program” for agricultural purposes. Decision at 2;

2

The property is described as the West 96 acres of the Northeast Fractional quarter of Section 27, Township 8 South, Range 15...