Cal. v. Hogen
| Citation | 613 F.3d 190 |
| Decision Date | 13 July 2010 |
| Docket Number | No. 09-5179.,09-5179. |
| Parties | BUTTE COUNTY, CALIFORNIA, Appellant v. Philip N. HOGEN, Chairman, National Indian Gaming Commission, et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia, (No. 1:08-cv-00519).
Dennis J. Whittlesey argued the cause and filed the briefs for appellant. Bruce S. Alpert entered an appearance.
Robert P. Stockman, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were John C. Cruden, Acting Assistant Attorney General, and Aaron P. Avila, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Nicholas C. Yost argued the cause for appellee Mechoopda Indian Tribe of Chico Rancheria, California. With him on the brief were Michael J. Anderson and Matthew J. Kelly.
Before: ROGERS and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge RANDOLPH.
The issue in this appeal from the judgment of the district court arises from efforts of the Mechoopda Indian Tribe of Chico Rancheria in Butte County, California, to obtain federal approval to conduct gaming operations. The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, permits federally-recognized Indian tribes to conduct gaming on “Indian lands.” The Act defines “Indian lands” to mean all lands within any Indian reservation and “any lands title to which is ... held in trust by the United States for the benefit of any Indian tribe....” Id. § 2703(4). Indian gaming is not permitted on “newly acquired lands”-that is, lands the Secretary of the Interior took into trust for a tribe after October 17, 1988, when the Act went into effect. An exception to this bar allows Indian gaming on lands the Secretary takes into trust after the 1988 date “as part of ... the restoration of lands for an Indian tribe that is restored to Federal recognition.” Id. § 2719(b)(1)(B)(iii).
The Mechoopda Tribe has been restored to federal recognition. The issue at the administrative level was whether land the Tribe purchased and offered to the Department of the Interior to take into trust for its benefit qualified as restored lands. The Act does not define “restoration of lands.” The Interior Department and the agency largely responsible for regulating Indian gaming-the National Indian Gaming Commission-believed that any lands “located within the areas historically occupied by the tribes are properly considered to be lands taken into trust as part of the restoration of lands.” Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney for W. Dist. of Mich., 46 F.Supp.2d 689, 701 (W.D.Mich.1999). Shortly after final agency action in this case, the Interior Department codified its view in regulations requiring, among other things, that a tribe “demonstrate a significant historical connection to the land.” 25 C.F.R. § 292.12(b). 1
The Mechoopda Tribe had approximately 400 enrolled members when this case began. Most lived in or near what is now Chico, California, the largest city in Butte County in the north-central portion of the state. The Tribe traces its history to a “rancheria” in Chico. In 1849, John Bidwell, a wealthy California businessman and politician, purchased a 22,000-acre ranch and hired Indians to live and work there. When Bidwell died, he left the ranch to his wife. Between 1909 and 1918 Mrs. Bidwell conveyed 26 acres of the ranch where the Indians were living-the “rancheria”-to a private board in trust for the Indians. The United States took over as trustee of the rancheria in 1939. Acting pursuant to the California Rancheria Act, Pub.L. No. 85-671 (1958), the government terminated the Mechoopda Tribe's recognition in 1967 and ended the trust status of the land. See Notice of Termination, 32 Fed.Reg. 7981 (June 2, 1967).
The Tribe brought a lawsuit contesting its termination. The suit ended when the government and the Tribe entered into a settlement agreement. As the settlement agreement provided, the government restored the Tribe to federal recognition in 1992. See Notice of Reinstatement, 57 Fed.Reg. 19,133 (May 4, 1992). The settlement agreement also forbade the Tribe from reestablishing the boundaries of the rancheria.
In 2001, the Tribe purchased a 645-acre parcel of land in Butte County. The Tribe's plan was to have the government take the land in trust so that the Tribe could develop and operate a casino there. The parcel is located approximately 10 miles from the area of the former rancheria, which is in the center of the city of Chico. In addition to requesting the Secretary to take the parcel into trust for the Tribe's benefit, the Tribe submitted applications to the Gaming Commission for review of a gaming management contract and for approval of a gaming ordinance.
The matter was initially referred to the Office of the General Counsel for the Gaming Commission to prepare an advisory legal opinion on whether gaming on the land would be permissible-that is, whether the land, if taken into trust, would qualify under the restored lands exception. Relying on material the Tribe provided, Acting Deputy Counsel Coleman concluded that the Tribe had a “historical and cultural nexus” to the proposed gaming site that was “sufficient to show that the parcel was not merely an acquisition but a restoration of previously used lands.” Her conclusion rested, in part, on the fact that the proposed gaming site was within the boundaries of the Mechoopda villages before the Mechoopda relocated to the Bidwell ranch. Her memorandum also indicated that the proposed site was within land that was promised the Mechoopda by an unratified treaty of 1851. There was other evidence showing the historical and cultural significance of the land to the Mechoopda. The memorandum stated that the Interior Department's Office of the Solicitor concurred in her conclusion.
Coleman's memorandum was dated March 14, 2003. The Secretary did not make a final decision to take the land into trust until May 8, 2008. In the interim, on June 16, 2006, the attorney for Butte County wrote to the Secretary to dispute Coleman's opinion. The County objected to Coleman's conclusion that the Tribe had a historic connection to the gaming site. As the County saw it, the tribe that worked and lived on the Bidwell Ranch, and from whom the modern Tribe is descended, was not the same tribe as the historic tribe that had allegedly occupied the gaming site. Rather, the people residing at the ranch were a disparate group of Indians from many tribes. The County urged that the only land to which the tribal members could show a common connection was on the site of the former the Bidwell Ranch.
To support its assertions, the County attached a report prepared by its consultant, Dr. Stephen Dow Beckham, a professor of history at Lewis & Clark College. The report provided a history of the Bidwell Ranch and those who worked and resided there. Beckham cited the findings of a Bureau of Indian Affairs employee who visited the ranch in 1914. The BIA employee concluded that the Indians did not “belong to any particular band, but are remnants of various small bands, originally living in Butte and nearby counties.” Beckham's report also included a detailed account of the families who resided at the ranch between 1928 and 1933. A significant number of these individuals belonged to a tribe interchangeably referred to as Michopda, Mishopda, or Mi-Cho-Da. While this is the historic tribe discussed in Coleman's analysis, Beckham found that many of the ranch Indians were from other tribes-his report lists members of the Wailaki, Concow, Winton, Yuki, Pit River, and Sioux tribes. Why the Indians of the Bidwell Ranch ultimately assumed the name “Mechoopda”-presumably a variant of the “Michopda” tribe from which some of them were descended-is unclear.
The Acting Deputy Assistant Secretary for Policy and Economic Development responded to the County in a short rejection letter. The letter, dated August 28, 2006, stated: There is no indication that the Interior Department ever revisited this determination and actually considered the County's evidence.
On February 8, 2007, the Gaming Commission approved the Tribe's gaming ordinance, indicating that the approval was “only for gaming on Indian Lands.” On May 8, 2008, the Secretary published in the Federal Register his final decision to take the Tribe's land into trust. 2 The County filed an action claiming that both agency actions were arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706. The district court granted summary judgment in favor of the agencies, ruling that the agencies had considered “the necessary factors,” and the County appealed.
The case boils down to several straightforward propositions of administrative law. We have what is known as informal agency adjudication. Governing procedural rules, derived mainly from § 555 of the APA, 5 U.S.C. § 555, and the Due Process Clause, are few. Even so, agency decisions in informal adjudication are subject to judicial review under § 706 of the APA. See, e.g., Reliance Elec. Co. v. Consumer Prod. Safety Comm'n, 924 F.2d 274, 277 (D.C.Cir.1991). If the agency decision is arbitrary, capricious or an abuse of discretion it must be set aside.
Two legal propositions are important to the disposition of this case.
First, under § 555(e), the...
To continue reading
Request your trial
-
Am. Hosp. Ass'n v. Azar
...Nor did the agency "ignore[ ] the evidence bearing on the [question] of compliance costs." Pls.’ Mot. at 27 (citing Butte County v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010) ). CMS recognized hospitals’ concerns about the "thousands of lines of data consumers would have to sift through" an......
-
Stringfellow Mem'l Hosp. v. Azar
...Judulang , 565 U.S. at 53, 132 S.Ct. 476. Simply put, "the agency must explain why it decided to act as it did." Butte Cty. v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010). The D.C. Circuit has summarized the circumstances under which an agency action would normally be "arbitrary and capricio......
-
Norton v. Beasley
...must be one of reasoning. " Amerijet Int'l, Inc. v. Pistole , 753 F.3d 1343, 1350 (D.C. Cir. 2014) (quoting Butte Cnty., Cal. v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010) ) (internal quotation marks omitted). Additionally, the agency must respond meaningfully to objections raised by a part......
-
Ramirez v. U.S. Immigration & Customs Enforcement, Civil Action No.: 18-508 (RC)
...consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of § 706." Butte Cnty. v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010) (citing State Farm, 463 U.S. at 43, 103 S.Ct. 2856 ; Comcast Corp. v. FCC , 579 F.3d 1, 8 (D.C. Cir. 2009) ).46 As the......