632 F.3d 702 (D.C. Cir. 2011), 09-5324, Patchak v. Salazar

Docket Nº:09-5324.
Citation:632 F.3d 702
Opinion Judge:RANDOLPH, Senior Circuit Judge:
Party Name:David PATCHAK, Appellant v. Kenneth Lee SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al., Appellees.
Attorney:John J. Bursch argued the cause for appellant. With him on the briefs was Daniel P. Ettinger. Aaron P. Avila, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief was Elizabeth Ann Peterson, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, enter...
Judge Panel:Before: HENDERSON and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Case Date:January 21, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 702

632 F.3d 702 (D.C. Cir. 2011)

David PATCHAK, Appellant


Kenneth Lee SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al., Appellees.

No. 09-5324.

United States Court of Appeals, District of Columbia Circuit.

January 21, 2011

Argued Sept. 14, 2010.

Page 703

Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-01331).

John J. Bursch argued the cause for appellant. With him on the briefs was Daniel P. Ettinger.

Aaron P. Avila, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief was Elizabeth Ann Peterson, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Edward C. DuMont argued the cause for appellee Match-E-Be-Nash-She-Wish band of Pottawatomi Indians. With him on the brief were Seth P. Waxman, Demian S. Ahn, Conly J. Schulte, and Shilee T. Mullin.

John H. Dossett and Riyaz A. Kanji were on the brief for amicus curiae National Congress of American Indians in support of appellees.

Before: HENDERSON and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.


RANDOLPH, Senior Circuit Judge:

The district court dismissed David Patchak's suit to prevent the Secretary of the Interior from holding land in trust for an Indian tribe in Michigan. Patchak's appeal presents two jurisdictional issues: whether, as the district court held, he lacks standing; and whether, if he has standing, sovereign immunity bars his suit.

The land consists of 147 acres in Wayland Township, Michigan, a rural, sparsely populated farming community. The Secretary published in the Federal Register his decision to take this property— the Bradley Tract— into trust for the Match-E-Be-Nash-She-Wish Band, also known as the Gun Lake Band. 70 Fed.Reg. 25,596 (May 13, 2005). The Band owned the land and wanted to construct and operate a gambling facility there. To do this, the Band had to convince the Interior Secretary to take title to the land into trust pursuant to the Indian Gaming Regulatory Act. See 25 U.S. C. §§ 2701-21; Butte Cnty., Cal. v. Hogen, 613 F.3d 190, 191-92 (D.C.Cir.2010).

The Secretary's notice in the Federal Register announced that he would wait at least thirty days before consummating the transaction. The purpose of the delay, which 25 C.F.R. § 151.12(b) required, was " to afford interested parties the opportunity to seek judicial review of the final administrative decisions to take land in trust for Indian tribes and individual Indians before transfer of title to the property occurs." 70 Fed.Reg. at 25,596.

During the thirty-day period, an anti-gambling organization— " MichGO" — brought an action claiming that the Secretary had violated the National Environmental Policy Act and the Indian Gaming Regulatory Act. The district court issued a stay of the Secretary's action. The court later dismissed the organization's suit, and this court affirmed. See Mich. Gambling Opposition (MichGO) v. Norton, 477 F.Supp.2d 1 (D.D.C.2007), aff'd sub nom. Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23 (D.C.Cir.2008).

In the meantime, Patchak filed his complaint. He alleged that he lived near the Bradley Tract; that the Tribe's gaming facility would attract 3.1 million visitors per year; that this would destroy the peace and quiet of the area; that there would be air, noise and water pollution; that there would be increased crime in the

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area and a diversion of police and medical resources; and that the Secretary's proposed action was ultra vires. Patchak invoked general federal question jurisdiction and the Administrative Procedure Act. He claimed that because the Gun Lake Band was not under federal jurisdiction in 1934, the Indian Reorganization Act of 1934, 25 U.S. C. §§ 461-79, did not authorize the Secretary to take the Band's land into trust. The Gun Lake Band intervened as a defendant.

After this court affirmed the dismissal of the MichGO action, the stay expired. The district court then denied Patchak's emergency motion for an order preventing the Secretary from proceeding with the land transaction. On January 30, 2009, the Secretary took the Bradley Tract into trust. Three weeks later, on February 24, the Supreme Court issued its opinion in Carcieri v. Salazar, 555 U.S. 379, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). The Court agreed with Patchak's argument that § 479 of the Indian Reorganization Act— the IRA— limited the Secretary's trust authority to Indian tribes under federal jurisdiction when the IRA became law in 1934.

Despite Carcieri, the Secretary urged the district court to dismiss Patchak's suit. He argued that the Quiet Title Act, 28 U.S. C. § 2409a, precluded any person from seeking to divest the United States of title to Indian trust lands. In other words, by taking the Bradley Tract into trust for the Gun Lake Band while Patchak's suit was pending, the Secretary deprived the court of jurisdiction.

In August 2009, the district court dismissed the suit on a different ground— namely, that Patchak, " at a minimum, lacks prudential standing to challenge Interior's authority pursuant to section 5 of the IRA." Patchak v. Salazar, 646 F.Supp.2d 72, 76 (D.D.C.2009). The court reasoned that Patchak's " interests do not only not fall within the IRA's zone-of-interests, but actively run contrary to it." Id. at 78. The court also expressed doubt about its subject matter jurisdiction in light of the Quiet Title Act. Id. at 78 n. 12.


There is no doubt that Patchak satisfied the standing requirements derived from Article III of the Constitution. Neither the Secretary nor the Band argues otherwise. In terms of Article III standing, the impact of the Band's facility on Patchak's way of life constituted an injury-in-fact fairly traceable to the Secretary's fee-to-trust decision, an injury the court could redress with an injunction that would in effect prevent the Band from conducting gaming on the property. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

We believe, contrary to the district court, that Patchak also fulfilled the judicially created zone-of-interests test for standing. The test began as a " gloss" on § 702 of the Administrative Procedure Act, 5 U.S. C. § 702. Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 395-96, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). Section 702 allows judicial review of agency action by a " person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." As the Supreme Court formulated the test in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the " adversely affected or aggrieved" plaintiff must be trying to protect an interest of his that is " arguably within the zone of interests to be protected" by the " relevant" statutory provisions. See

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Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 492, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998).

The Supreme Court introduced the zone-of-interests test in recognition of the " trend ... toward enlargement of the class of people who may protest administrative action." Data Processing, 397 U.S. at 154, 90 S.Ct. 827. The APA had " pared back traditional prudential limitations." FAIC Sec., Inc. v. United States, 768 F.2d 352, 357 (D.C.Cir.1985). Given the APA's " generous review provisions," Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation marks omitted), and the " drive for enlarging the category of aggrieved ‘ persons,’ " Data Processing, 397 U.S. at 154, 90 S.Ct. 827, the test is not " especially demanding," Clarke, 479 U.S. at 399-400, 107 S.Ct. 750.

The Secretary tells us that the Indian Reorganization Act is " not concerned with the interests that Patchak asserts in this litigation." DOI Br. 31. The Band adds that the function of the IRA is to " give the Indians the control of their own affairs and of their own property." See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (quoting 78 Cong. Rec. 11125 (1934)). But application of the zone-of-interests test does not turn on such generalities. See Nat'l Credit Union Admin., 522 U.S. at 492-93, 118 S.Ct. 927. Patchak did not have to show that the Indian Reorganization Act was meant to benefit those in his situation. See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C.Cir.1998); Am. Chiropractic Ass'n v. Leavitt, 431 F.3d 812, 815 (D.C.Cir.2005). The " analysis focuses, not on those who Congress intended to benefit, but on those who in practice can be expected to police the interests that the statute protects." Mova, 140 F.3d at 1075.

As the Secretary's announcement in the Federal Register stated, IRA § 465 (and the definition of Indians in § 479) 1 served as the predicate for the government's taking the Gun Lake Band's property into trust for the purpose of gaming under § 2719(b)(1)(B)(ii) of the Gaming Act.2

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The IRA provisions interpreted in Carcieri v. Salazar, 129 S.Ct. at 1066, limit the Secretary's trust authority. He may act only on behalf of tribes that were under federal jurisdiction at the time of the IRA's enactment in 1934. When that limitation blocks Indian gaming, as Patchak claims it should have in this case, the interests of those in the surrounding community— or at least those who would suffer from living near a gambling operation— are arguably protected. And because of their interests, they are proper parties to enforce the IRA's restrictions.

In reaching this conclusion, we have not— as the Secretary would have it— viewed the IRA provisions in isolation. Patchak's asserted injuries are the " negative effects of building and operating a casino" in his community. The Secretary claims that these " vague...

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