Bd. of Comm'rs of Cherokee Cnty. v. Jewel

• Decision Date: 25 July 2013
• Docket Number: Civil Action 08–317(RC).
• Citation: 956 F.Supp.2d 116
• Parties: BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, KANSAS, Plaintiff, v. Sally JEWEL, in her official capacity as Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

956 F.Supp.2d 116

BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, KANSAS, Plaintiff,

v.Sally JEWEL, in her official capacity as Secretary of the Interior, et al., Defendants.

Civil Action 08–317(RC).

United States District Court, District of Columbia.

July 25, 2013.

James Philip Nordstrom, Teresa L. Watson, David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, KS, for Plaintiff.

Gina L. Allery, U.S. Department of Justice, Environmental and Natural Resources Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, District Judge.

In 2008, the Quapaw Tribe of Oklahoma (“the tribe”) opened the Downstream Casino Resort, a large complex that straddles the borders of Kansas, Missouri, and Oklahoma. The actual casino is situated on a plot of land acquired by the Secretary of the Interior and the tribe by means of the Indian Land Consolidation Act. The Board of Commissioners of Cherokee County, Kansas, where another portion of the casino complex is located, brought this suit to invalidate the Secretary's land acquisition and to force the National Indian Gaming Commission to determine whether the Indian Gaming Regulatory Act permits the Quapaw to operate a casino on the land in question. The Secretary and the Gaming Commission have moved to dismiss the complaint or, in the alternative, for summary judgment; the Board of Commissioners has filed a cross-motion for partial summary judgment.

I. BACKGROUND

In 1895, a Quapaw woman named Meh–No–Bah was allotted forty acres of land in what is now the northeastern corner of Oklahoma. AR 45. The Quapaw Allotment Act provided that such allotments would “be inalienable for a period of twenty-five years” from the date on which a patent was issued to the allottee. 28 Stat. 907; see also Quapaw Tribe of Oklahoma v. Blue Tee Corp., 653 F.Supp.2d 1166, 1170–71 (N.D.Okla.2009) (discussing history of the Quapaw allotments). In 1905, Meh–No–Bah died intestate with two heirs—Alexander Beaver (also known as Alexander Lewis, Alexander Lewis Beaver, and Ah–Sah–Ta) and Newakis Hampton (also known as Ta–Meh Quapaw and Temeh Quapaw)—each of whom received an undivided half-interest in the allotment. AR 192–93. In 1921, Congress amended the Quapaw Allotment Act so that “the restrictions which now exist against the alienation of the lands allotted to and allotted lands inherited by the Quapaw Indians” specifically named in the amendment were “extended for the further and additional period of twenty-five years from the date of this Act.” 41 Stat. 1248–49. Neither Meh–No–Bah nor her heirs were named.

Alexander Beaver died in the spring of 1956, passing his undivided half-interest to his widow, Matilda Stand Beaver. AR 193. She passed her undivided half-interest to three heirs. Id.¹ Newakis Beaver died in 1957, passing her undivided half-interest to a single heir, who in turn passed that interest to two heirs. By 2004, four people and one estate held undivided interests in the original Meh–No–Bah allotment; two of these were one-quarter interests, while the other three were one-sixth interests. Id.

The creation of undivided but ever-smaller fractional interests in allotted land was one of many troubling features of the allotment policy. See Babbitt v. Youpee, 519 U.S. 234, 237, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997) (“The allotment policy ‘quickly proved disastrous for the Indians.’ ” (quoting Hodel v. Irving, 481 U.S. 704, 707, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987))). “The fractionation problem proliferated with each succeeding generation as multiple heirs took undivided interests in allotments.... As most owners had more than one heir, interests in lands already allotted continued to splinter with each generation.” Id. at 238, 117 S.Ct. 727. In 1983, Congress passed the Indian Land Consolidation Act, Pub.L. No. 97–459, tit. II, 96 Stat. 2517 (codified as amended at 25 U.S.C. § 2201 et seq.), “in part to reduce fractionated ownership of allotted lands,” Babbitt, 519 U.S. at 238, 117 S.Ct. 727. The Act allowed an Indian tribe that owned at least half of the undivided interest in a tract of land subject to that tribe's jurisdiction to purchase the remaining interests in the tract for their fair market value. 25 U.S.C. § 2204(a). In 2000, Congress gave the Secretary discretionary authority to acquire “any fractional interests in trust or restricted lands,” at fair market value and with the consent of the owner, and to hold those interests in trust for the relevant tribe. Indian Land Consolidation Act Amendments of 2000, Pub.L. No. 106–462, tit. I, § 103, 114 Stat.1999 (codified as amended at 25 U.S.C. § 2212(a)). In doing so, the Secretary was instructed to “promote the policies provided for in section 102 of the Indian Land Consolidation Act Amendments of 2000,” 25 U.S.C. § 2212(b)(1), which include “promot[ing] tribal self-sufficiency and self-determination,” Pub.L. No. 106–462, tit. I, § 102(4), 114 Stat.1992.

In 2007, using that mechanism, the Secretary purchased four of the five undivided interests in the Meh–No–Bah allotment. AR 19, 63, 111, 132. She did not perform any environmental review of the acquisition. The tribe purchased the remaining one-sixth interest using the mechanism set out in 25 U.S.C. § 2204. AR 140. In 2008, the Downstream Casino Resort opened on the forty-acre plot allotted to Meh–No–Bah more than a hundred years before. It has been in continuous operation ever since.

The Board of Commissioners of Cherokee County, Kansas, filed suit several months before the casino opened. The Board of Commissioners alleges, first, that the Secretary violated the Indian Gaming Regulatory Act by failing to determine whether the Meh–No–Bah allotment was eligible for gaming before acquiring it, and that the National Indian Gaming Commission was obligated to make that determination before allowing the casino to open. The Board also alleges that the Secretary failed to comply with the National Environmental Policy Act, the land-into-trust regulations and her own internal policies when she acquired the fractional interests in the Meh–No–Bah allotment. The Secretary has moved to dismiss the complaint or, in the alternative, for summary judgment; the Board has filed a cross-motion for partial summary judgment.

II. LEGAL STANDARD

A. Standing

A petitioner seeking judicial review of agency action “must either identify in th[e] record evidence sufficient to support its standing to seek review or, if there is none ... submit additional evidence.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C.Cir.2002) (citing Amfac Resorts, L.L.C. v. Dep't of Interior, 282 F.3d 818, 830 (D.C.Cir.2002)); see also id. at 900 (“When the petitioner's standing is not self-evident, ... the petitioner must supplement the record to the extent necessary to explain and substantiate its entitlement to judicial review.”). To meet its burden of production, the petitioner “must support each element of its claim to standing ‘by affidavit or other evidence,’ ” id. at 899 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), “and must thereby ‘show a “substantial probability” that it has been injured, that the defendant caused its injury, and that the court could redress that injury,’ ” Int'l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134 (D.C.Cir.2005) (quoting Sierra Club, 292 F.3d at 899 (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000))).²

B. Merits

“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law,” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001), and the “complaint, properly read ... presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action,” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993); accord Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C.Cir.2009); Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C.Cir.1999); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C.Cir.1996). The district court's review “is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously,” Rempfer, 583 F.3d at 865, or in violation of another standard set out in 5 U.S.C. § 706(2).

When a plaintiff seeks to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), the “claim ... can proceed only where [the] plaintiff asserts that an agency failed to take a discrete agency action that it is required to take,” Kaufman v. Mukasey, 524 F.3d 1334, 1338 (D.C.Cir.2008) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004)) (emphases in Norton ). “[W]hen an agency is compelled by law to act, but the manner of its action is left to the agency's discretion, the ‘court can compel the agency to act, [although it] has no power to specify what th[at] action must be.’ ” Id. (quoting Norton, 542 U.S. at 65, 124 S.Ct. 2373) (last two alterations in original); accord Enterprise Nat'l Bank v. Vilsack, 568 F.3d 229, 234 (D.C.Cir.2009).

The defendants have moved to dismiss or, in the alternative, for summary judgment. Although, in the context of challenges to agency action, “there is no real distinction ... between the question presented on a 12(b)(6) motion and a motion for summary judgment,” Marshall Cnty. Health Care Auth., 988 F.2d at 1226, the D.C. Circuit has suggested that “[i]t is probably the better practice for a district court always to convert to summary judgment” in such cases. Id. at 1226 n. 5. This court therefore treats the defendants' motion as one brought for summary judgment, and evaluates both it and the plaintiff's cross-motion for partial summary judgment under the standards discussed above.

III. ANALYSIS

A. Indian Gaming and Indian Lands

Under the Indian Gaming...