Shivwits Band of Paiute Indians v. Utah, 03-4274.

Citation428 F.3d 966
Decision Date09 November 2005
Docket NumberNo. 03-4274.,03-4274.
PartiesSHIVWITS BAND OF PAIUTE INDIANS and Kunz & Company, d/b/a Kunz Outdoor Advertising, Plaintiffs-Counterclaim, Defendants-Appellees, v. State of UTAH; Utah State Department of Transportation; St. George City, a Utah Municipal corporation, Defendants-Counterclaim, Plaintiffs-Appellants, Gayle Norton, in her capacity as Secretary of the United States Department of the Interior; Neal A. McCaleb, in his capacity as Assistant Secretary of the Interior Indian Affairs; Wayne Nordwall, in his capacity as Area Director of the Bureau of Indian Affairs; and the Bureau of Indian Affairs, Third-Party, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Brian L. Farr, Assistant Attorney General (Philip C. Pugsley, Assistant Attorney General and Mark L. Shurtleff, Attorney General, with him on the briefs), Utah Attorney General's Office, Salt Lake City, UT, for Defendants-Counterclaim Plaintiffs-Appellants.

John Fredericks III, Fredericks, Pelcyger & Hester, LLC, Louisville, CO, for Plaintiff-Counterclaim-Defendant-Appellee Shivwits Band of Paiute Indians.

D. Williams Ronnow, Jones, Waldo, Holbrook & McDonough, St. George, UT, for Plaintiff-Counterclaim-Defendant-Appellee Kunz & Company, d/b/a Kunz Outdoor Advertising America.

Ellen J. Durkee, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC (Todd S. Aagaard, Attorney, United States Department of Justice, Washington, DC, Thomas L. Sansonetti, Assistant Attorney General, Washington, DC, Paul M. Warner, United States Attorney, Salt Lake City, UT, John K. Mangum, Assistant United States Attorney, Salt Lake City, UT, Thomas A. Blaser, of counsel, Office of the Solicitor, United States Department of the Interior, Washington, DC, and William R. McConkie, Office of the Regional Solicitor, United States Department of the Interior, Salt Lake City, UT with her on the briefs), for the Federal Appellees.

Before BRISCOE, KELLY, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

The State of Utah, the Utah State Department of Transportation, and the City of St. George, Utah (collectively the defendants), appeal from the district court's grant of summary judgment in favor of plaintiffs Kunz and Company and the Shivwits Band of Paiute Indians holding that defendants lacked authority to regulate billboard advertising displays erected by Kunz on land held in trust by the federal government for the Band. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Factual background

In July 1993, Kunz and Company, d/b/a Kunz Outdoor Advertising (Kunz), a California corporation, approached the Shivwits Band of Paiute Indians (the Band) and proposed that the Band purchase, with money provided by Kunz, land south of St. George, Utah (the City) along the Interstate 15 corridor, transfer that land to the federal government to be held in trust for the Band, and lease the land to Kunz on a long-term basis so that Kunz could erect and maintain advertising billboards thereon. The Band, eager to pursue economic development opportunities that would increase its meager revenue stream, accepted Kunz's proposal in October 1993. In November 1993, Kunz and the Band identified two parcels of land adjacent to Interstate Highway 15 in an undeveloped area within the City limits.1 After several months of negotiations, the private owners of the parcels agreed in May 1994 to sell them to the Band.

The Bureau of Indian Affairs (BIA), aware of the relationship between Kunz and the Band, contacted the City's manager on July 7, 1994, orally advised him that the Band intended to purchase the two parcels of land, and asked if the City "would provide a letter of support for this endeavor" to the Band.App. at 128A. The City's manager allegedly refused to provide such a letter because the City was "afraid the land would be used for the purpose of erecting outdoor advertising signs and the City was opposed to [such] signs." Id. On August 1, 1994, the BIA sent a letter to the City again stating that the Band was "in the process of purchasing two small parcels of land located in an undeveloped area of" the City. Fed. Aplee. Supp.App., at 1. The letter proceeded to identify the two parcels in detail by location and tax identification numbers. The letter concluded by again asking the City to support the Band's endeavor. According to the record, the City did not respond to the BIA's letter.2 App. at 131.

On August 9, 1994, the Band purchased the parcels from the private owners. One day later, on August 10, 1994, the Band tendered a special warranty deed to the BIA that purported to transfer the parcels into trust. Because an off-reservation trust acquisition must be formally approved by the BIA, the Band also submitted an application and supporting documents to the BIA requesting such approval. Id. at 36, 128A, 131.

In reviewing the Band's application, the BIA concluded, consistent with its then-existing policies, that no environmental assessment (EA) was required for the act of taking the parcels into trust. App. at 36, 131. More specifically, the BIA classified as "categorically excluded" (i.e., not requiring an EA) any proposed trust acquisition in which there would be "no immediate change in the use of the land." Id. at 131. The BIA did, however, require an EA to be prepared regarding the proposed leasing of the parcels to Kunz and the related use of the land for outdoor advertising displays. That EA was completed on July 6, 1995. A "Finding of No Significant Impact" (FONSI) was subsequently issued by the BIA on August 31, 1995.

On the same date the FONSI was issued, i.e., August 31, 1995, the BIA approved the Band's request for approval of the trust acquisition and formally accepted the properties into trust. Thereafter, Kunz and the Band finalized, and the BIA approved, five separate leases covering the two parcels and permitting Kunz to erect and maintain a total of five advertising billboards thereon.

On October 25, 1995, shortly after Kunz began construction of the billboards, the Utah Attorney General's office, on behalf of the Utah Department of Transportation, threatened criminal suit against Kunz if the construction did not immediately cease. Kunz ignored the warning and continued construction. On November 3, 1995, the City issued a stop work order, forbidding Kunz from further construction of the signs on the grounds that it violated state and local outdoor advertising regulations, and Kunz had no city or state sign permits.

Procedural background

On November 17, 1995, Kunz and the Band filed this action against defendants seeking a declaratory judgment and preliminary and permanent injunctive relief. More specifically, Kunz and the Band sought an order declaring that the property at issue was lawfully held by the Band, and injunctive relief restraining defendants from interfering with the construction and operation of the billboards. Defendants filed an answer and counterclaim against plaintiffs and a third-party claim against the United States. Id. The counterclaim and third-party claim alleged "that (1) the statute authorizing land acquisitions, 25 U.S.C. § 465 (and the accompanying regulation, 25 C.F.R. § 1.4)[wa]s unconstitutional; (2) the taking of the land in trust and the approval of the lease ... violated the National Environmental Policy Act ("NEPA") and ... [Department of the Interior (DOI)] ... regulations; and (3) the erection of billboards on the property violate[d] certain state and local regulations." App. at 38.

The parties subsequently filed their first round of summary judgment motions.3 On August 11, 2000, the district court issued an order ruling on those motions. In pertinent part, the district court concluded that: (1) 25 U.S.C. § 465 was not an unconstitutional delegation of legislative power; (2) the BIA acted arbitrarily and capriciously in determining that the acquisition of the land was subject to a categorical exclusion and that it was therefore unnecessary to conduct an EA prior to the acquisition; (3) the failure to comply with the procedural requirements of NEPA and conduct a pre-acquisition EA was "more than de minimus," App. at 15; and (4) "[t]he failure to prepare any NEPA review of the land acquisition was a procedural harm that frustrated NEPA's goals...." Id. at 52. Accordingly, the district court ordered "that the required NEPA process be undertaken." Id. at 53. The district court's order stated, however, that the order "did not affect the fact that the government held the land in trust by special warranty deed...." Id. at 60. Instead, it purported to "invalidate the agency's decision to take the land in trust until the BIA complied with the procedural requirements of NEPA." Id.

Defendants subsequently moved for summary judgment on the issue of whether they had authority to regulate the land at issue. In pertinent part, defendants argued that the two parcels of land were neither held in trust for the Band nor constituted "Indian Country." The district court denied defendants' motion on February 6, 2002. In doing so, the district court concluded that "the Indian Lands exemption in [the] Quiet Title Act, 28 U.S.C. § 2409a(a)..., applie[d]," and thus "the government [wa]s immune from questions to the title" to the land. Id. at 61. The district court further concluded that, because the BIA "ha[d] not completed the NEPA process as was mandated [in] the [court's] August 11, 2000 order," there was "no final agency decision which settle[d] the status of the land at issue." Id.

On March 17, 2003, the district court conducted a status conference, at which time the BIA indicated it had completed the court-ordered EA and "ha[d] approved a Finding of No Significant Impact (FONSI) for the Shivwits Band fee-to-trust land transfer and outdoor advertising leases...." Id. at 169. The BIA further indicated that it would not ...

To continue reading

Request your trial
15 cases
  • Macarthur v. San Juan County, Civ. 2:00-CV-584BSJ.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 15 December 2005
    ...107, also cited by plaintiffs. (See Pltfs' Mem. (850), at 7.) 34. Plaintiffs' supplemental citations to Shivwits Band of Paiute Indians v. State of Utah, 428 F.3d 966 (10th Cir.2005), and State v. Reber, 2005 UT App 485, ___ P.3d ___ (2005), add nothing pertinent to the analysis of the issu......
  • N. New Mexicans Protecting Land Water & Rights v. United States
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 January 2016
    ...v. Norton, 379 F.3d at 965.The Tenth Circuit arrived at the same conclusion in other cases. For example, in Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966 (10th Cir.2005), it held that the Quiet Title Act barred jurisdiction to hear the plaintiffs' arguments “to the extent [they] sou......
  • Direct Mktg. Ass'n v. Brohl, 12–1175.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 22 February 2016
    ...(quotations omitted). We also review challenges to the constitutionality of a statute de novo. Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 972 (10th Cir.2005).When, as here, the target of state regulation alleges discrimination and undue burden, the analysis proceeds as follows:W......
  • Dobbs v. Anthem Blue Cross and Blue Shield, 07-1398
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 31 March 2010
    ...some other means that Congress intended the law not to apply to Indians on their reservations. Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 984 (10th Cir.2005) (Lucero, J., concurring) (quoting Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1462-63 (10th Thus, to determine wheth......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT