Citizens Against Casino Gambling in Erie Cnty. v. Stevens

• Decision Date: 10 May 2013
• Docket Number: No. 09–CV–291S.,09–CV–291S.
• Parties: CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY (Joel Rose and Robert Heffern, as Co–Chairpersons), Rev. G. Stanford Bratton, D. Min., Network of Religious Communities, National Coalition Against Gambling Expansion, Preservation Coalition of Erie County, Inc., Coalition Against Gambling in New York—Action, Inc., the Campaign for Buffalo—History Architecture and Culture, Assemblyman Sam Hoyt, Maria Whyte, Erie County Legislator, John McKendry, Shelley McKendry, Dominic J. Carbone, Geoffrey D. Butler, Elizabeth F. Barrett, Julie Cleary, Erin C. Davison, Alice E. Patton, Maureen C. Schaeffer, Dora Richardson, and Josephine Rush, Plaintiffs, v. Tracie STEVENS, in her Official Capacity as Chairwoman of the National Indian Gaming Commission, the National Indian Gaming Commission, the United States Department of the Interior, Ken Salazar, in his Official Capacity as the Secretary of the Interior, and Barack Obama, in his Official Capacity as President of the United States, Defendants.
• Court: U.S. District Court — Western District of New York

945 F.Supp.2d 391

CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY (Joel Rose and Robert Heffern, as Co–Chairpersons), Rev. G. Stanford Bratton, D. Min., Network of Religious Communities, National Coalition Against Gambling Expansion, Preservation Coalition of Erie County, Inc., Coalition Against Gambling in New York—Action, Inc., the Campaign for Buffalo—History Architecture and Culture, Assemblyman Sam Hoyt, Maria Whyte, Erie County Legislator, John McKendry, Shelley McKendry, Dominic J. Carbone, Geoffrey D. Butler, Elizabeth F. Barrett, Julie Cleary, Erin C. Davison, Alice E. Patton, Maureen C. Schaeffer, Dora Richardson, and Josephine Rush, Plaintiffs,

v.Tracie STEVENS,¹ in her Official Capacity as Chairwoman of the National Indian Gaming Commission, the National Indian Gaming Commission, the United States Department of the Interior, Ken Salazar, in his Official Capacity as the Secretary of the Interior, and Barack Obama, in his Official Capacity as President of the United States, Defendants.

No. 09–CV–291S.

United States District Court, W.D. New York.

May 10, 2013.

Cornelius D. Murray, O'Connell & Aronowitz, P.C., Albany, Michael L. Jackson, Rachel E. Jackson, Jackson & Jackson, LLP, Richard G. Berger, Richard J. Lippes, Richard J. Lippes & Associates, Robert E. Knoer, The Knoer Group, PLLC, Buffalo, NY, for Plaintiffs.

Gina Louise Allery, U.S. Department of Justice, Washington, DC, Mary Pat Fleming, U.S. Attorney's Office, Buffalo, NY, for Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

On March 31, 2009, Plaintiffs commenced this action challenging the legality of a gambling casino operated by the Seneca Nation of Indians (“SNI”) in the city of Buffalo (the “Buffalo Parcel”). Their Motion for Summary Judgment, now before the Court, has been fully briefed by the parties and by amicus SNI.

This action is the third lawsuit commenced by largely the same plaintiffs, who have sought the same relief in their successive suits— i.e., a declaration that Indian gaming in Buffalo is unlawful. Each lawsuit alleges violations of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702 et seq., and in each, the plaintiffs have claimed that certain decisions and actions by the defendants were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.

To persons familiar with these serial actions, many of the facts and legal principles discussed below will have a familiar ring; they relate to disputes addressed in prior cases. To the extent new arguments and authority are presented in support of ongoing disputes, those matters are addressed herein. In addition, one new and critical dispute has surfaced regarding the National Indian Gaming Commission's (“NIGC”) approval of the SNI's new gaming ordinance. Whereas the parties had agreed in prior suits that the SNI's Buffalo Parcel is subject to an IGRA prohibition against gaming on land acquired after October 17, 1988, that is no longer the case. Defendants have revisited their interpretation of the statute, and now conclude that the IGRA prohibition does not apply to the Buffalo Parcel. Because the Court agrees that Defendants' revised interpretation comports with Congress's clear intent, Plaintiffs' motion is denied in its entirety, and this case is dismissed.

II. BACKGROUND

A. The Relevant Statutory Provisions

Two statutes have been central to plaintiffs' claims—the Indian Gaming RegulatoryAct (“IGRA”), under which gaming eligibility determinations are made, and the Seneca Nation Settlement Act of 1990 (“SNSA”), which permitted the SNI to acquire land to be held in restricted fee status. A discussion of the relevant provisions of each, in the context of the factual background of this case, is warranted.

1. The IGRA

Congress enacted IGRA in 1988 to establish a comprehensive statutory scheme governing gambling on Indian lands. 25 U.S.C. §§ 2701–2721.² IGRA “seeks to balance the competing sovereign interests of the federal government, state governments and Indian tribes, by giving each a role in the regulatory scheme.” Artichoke Joe's v. Norton, 216 F.Supp.2d 1084, 1092 (E.D.Cal.2002), aff'd,353 F.3d 712 (9th Cir.2003), cert. denied,543 U.S. 815, 125 S.Ct. 51, 160 L.Ed.2d 20 (2004).

The statute provides for three classes of gaming on Indian land, each of which is subject to a different level of regulation. § 2710. The SNI has repeatedly sought to conduct class III gaming on the Buffalo Parcel. This is the “most heavily regulated and most controversial form of gambling” under IGRA, Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir.2003), and includes, inter alia, slot machines, games such as baccarat, blackjack, roulette, and craps, and sport betting, parimutuel wagering and lotteries, § 2703(8) and (7)(B); 25 C.F.R. § 502.4. For class III gaming to be lawful: (1) the governing body of the tribe having jurisdiction over the “Indian land” on which it wishes to conduct its gambling operation must authorize class III gaming by adopting an “ordinance” or resolution; (2) the Chairman of the National Indian Gaming Commission (“NIGC” or “Commission”) must approve the ordinance; (3) the state in which the “Indian land” is located must permit such gaming; and (4) the gaming must be conducted in conformance with a “tribal-state compact” that regulates such gaming. § 2710(d)(1).

In this case, as in the preceding cases, Plaintiffs maintain that the SNI does not have jurisdiction over the Buffalo Parcel; even if it does, the Parcel is subject to a statutory prohibition against gaming; and the Parcel does not fall within any exception to that prohibition. Two IGRA provisions are at the core of this dispute. First is the statute's definition of Indian lands as:

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.

§ 2703(4) (emphasis supplied). Next is section 20 of IGRA,³ which provides, in pertinent part:

Gaming on lands acquired after October 17, 1988.

(a) Prohibition on lands acquired in trust by Secretary. Except as provided in subsection (b), gaming regulated by this Act shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after the date of enactment of this Act [enacted Oct. 17, 1988] unless—...

(b) Exceptions.

(1) Subsection (a) will not apply when—

(A) the Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination; or

(B) lands are taken into trust as part of—

(i) a settlement of a land claim,

(ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or

(iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.

In its suits, the plaintiffs have challenged the applicability of these provisions to the Buffalo Parcel, which the SNI purchased in 2005 with funds it received through the Seneca Nation Settlement Act of 1990.

2. The SNSA

For more than a century prior to SNSA's enactment, the SNI had leased land on its Allegany Reservation ⁴ to non-Indians. § 1774(a)(2)(A) and (B). The leases were primarily concentrated near railroad lines in the city of Salamanca and nearby villages. §§ 1774(a)(1) and 1774a(10). Prior to the SNSA's passage, the bulk of these land leases were for a term of ninety-nine years and were set to expire on February 19, 1991. §§ 1774(a)(2)(C) and (4).

In 1969, the New York State legislature created the Salamanca Indian Lease Authority (“SILA”) as a public benefit corporation authorized to negotiate and enter into a new lease with the SNI for all leased reservation lands underlying the city. N.Y. Pub. Auth. Law §§ 1790–99. Approximately twenty years of lease negotiations ensued, and finally concluded in May 1990. Fluent v. Salamanca Indian Lease Authority, 847 F.Supp. 1046, 1049–50 (W.D.N.Y.1994). A condition of the lease renewal agreement was that the federal and state governments agree to pay to the SNI a total of $60 million, an amount believed to approximate the difference between the rents the SNI had actually received over the previous 99 years and the fair market rental value of the leased land over that same time period. The federal government was asked to pay $35 million, and the state government $25 million. Id. at 1050;see also,S. Rep. No. 101–511, at 23 (1990). Both governments agreed to do so, and Congress passed “An Act to provide for the renegotiation of certain leases of the Seneca Nation, and for other purposes,” 104 Stat. 1292 (1990), to which it assigned the short title “Seneca Nation Settlement Act of 1990.”

The SNSA requires that the SNI use five million dollars of the United States' payment for economic and community development. Id. § 1774d(b)(2). The bulk of the payment—$30,000,000—was to be “managed, invested, and used ... as determined by the Nation in accordance with [its] Constitution and laws....” Id. § 1774d(b)(1). The SNSA permits the SNI to acquire with SNSA funds land that is “within its aboriginal area in the State [of New York] or situated within or near proximity to former reservation land.” Id. § 1774f(c) (alteration added).

State and local governments shall have a period of 30 days after notification by the Secretary or the Seneca Nation of acquisition of, or intent to acquire such lands to...