City of Council Bluffs v. U.S. Dep't of the Interior
| Decision Date | 26 March 2019 |
| Docket Number | Case No. 1:17-CV-00033-SMR-CFB |
| Citation | 368 F.Supp.3d 1276 |
| Parties | CITY OF COUNCIL BLUFFS, IOWA, Plaintiff, State of Nebraska; State of Iowa, Intervenor-Plaintiffs, v. UNITED STATES DEPARTMENT OF the INTERIOR; Ryan K. Zinke, in his official capacity as Secretary of the United States Department of the Interior; National Indian Gaming Commission; Jonodev Osceola Chaudhuri, in his official capacity as Chairman of the National Indian Gaming Commission; and Kathryn Isom-Clause, in her official capacity as Vice Chair of the National Indian Gaming Commission, Defendants. |
| Court | U.S. District Court — Southern District of Iowa |
Richard B. Wade, Council Bluffs City Attorneys Office, Council Bluffs, IA, for Plaintiff.
David Andrew Lopez, Ryan Stanley Post, pro hac vice, Nebraska Attorney General's Office, Lincoln, NE, for Intervenor-Plaintiffs.
JoAnn Lynn Kintz, U.S. Dept. of Justice Environment & Natural Resources, Washington, DC, for Defendants.
This lawsuit represents the latest chapter in a long-running dispute over whether the Ponca Tribe of Nebraska (the "Tribe") may conduct Class II gaming on a 4.8-acre tract of land in Carter Lake, Iowa (the "Carter Lake Parcel"). Plaintiffs—the City of Council Bluffs, Iowa, joined by Intervenor-Plaintiffs the State of Nebraska and the State of Iowa—challenge a November 13, 2017 decision by the National Indian Gaming Commission ("NIGC" or the "Commission") to approve the Tribe's site-specific gaming ordinance involving that land. Plaintiffs assert claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , against Defendants the United States Department of the Interior ("DOI") and the NIGC, along with three federal employees in their official capacities—Ryan K. Zinke as Secretary of the DOI (the "Secretary"), Jonodev Osceola Chaudhuri, as Chairman of the NIGC, and Kathryn Isom-Clause as Vice Chair of the NIGC. Before the Court are the parties' cross-motions for summary judgment. [ECF Nos. 22; 35]. Neither party requested oral argument, and the Court finds the issues can be resolved without it. See LR 7(c). This matter is fully submitted and ready for decision. For the reasons stated below, Plaintiffs' motion is GRANTED in part and DENIED in part; Defendants' motion is DENIED.
In 1988, Congress enacted the Indian Gaming Regulation Act ("IGRA") to "provide clear standards or regulations for the conduct of gaming on Indian lands," 25 U.S.C. § 2701(3), and to ensure such gaming remained "a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." Id. § 2702(1). The IGRA applies only to federally recognized tribes, which may conduct gaming only on "Indian lands" within their jurisdiction. Id. §§ 2703(5), 2710(b)(1), 2710(d)(3)(A). The term "Indian lands" includes land which the United States holds in trust for the benefit of any Native American tribe and over which a Native American tribe exercises governmental authority. Id. § 2703(4). The IGRA divides gaming on "Indian lands" into three classes. The Tribe seeks to conduct Class II gaming, which includes bingo and "non-banking" card games2 permitted by state law. Id. § 2703(7). To conduct Class II gaming on "Indian lands," a tribe must, among other requirements, enact a tribal gaming ordinance and obtain approval from the NIGC. Id. § 2710; 25 C.F.R. § 522.
The IGRA generally prohibits gaming activities on land acquired into trust by the United States on behalf of a tribe after October 17, 1988. 25 U.S.C. § 2719(a). There are several exceptions to this general prohibition, two of which are relevant here. One exception permits gaming under a two-part determination whereby "the Secretary ... 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" and "the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination." Id. § 2719(b)(1) A). The second relevant exception permits gaming activity on land that is acquired in trust as part of "the restoration of lands for an Indian tribe that is restored to Federal recognition." Id. § 2719(b)(1)(B)(iii) (the "Restored Lands Exception").
The United States terminated its government-to-government relationship3 with the Tribe on September 5, 1962.4 See Pub. L. No. 87-629, 76 Stat. 429; 25 U.S.C. §§ 971 – 980. In 1990, Congress restored its relationship with the Tribe through the Ponca Restoration Act, Pub. L. No. 101-484, 104 Stat 1167 () ("PRA" or the "Act").
Section three of the Act restores federal recognition and provides that "[a]ll Federal laws of general application to Indians and Indian tribes (including the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. § 461 et seq. ), popularly known as the Indian Reorganization Act ["IRA"] ) shall apply with respect to the Tribe and to the members." 25 U.S.C. § 983a. Subsection 4(a) of the Act restores all the Tribe's rights and privileges which were abrogated or diminished by the Tribe's termination. Id. § 983b(a). Subsection 4(c) provides that the Secretary "shall accept not more than 1,500 acres of any real property located in Knox or Boyd Counties, Nebraska, that is transferred to the Secretary for the benefit of the Tribe." Id. § 983b(c). The Secretary shall accept such property "in the name of the United States in trust for the benefit of the Tribe." Id. The Act allows the Secretary to "accept any additional acreage in Knox or Boyd Counties pursuant to his authority" under the IRA. Id.
Although the PRA allows the Secretary to acquire land in trust for the Tribe, subsection 4(e) provides that "[r]eservation status shall not be granted any land acquired by or for the Tribe." Id. § 983b(e). Because the PRA prohibits reservation status, the Act, as amended, designates a service area for the Tribe and its members, which includes "members of the Tribe residing in Sarpy, Burt, Platte, Stanton, Holt, Hall, Wayne, Knox, Boyd, Madison, Douglas, or Lancaster Counties of Nebraska, Woodbury or Pottawattomie [sic] Counties of Iowa, or Charles Mix County of South Dakota." Id. § 983c. The Carter Lake Parcel is located in Pottawattamie County, Iowa, within the designated service area.
On September 24, 1999, the Tribe purchased the Carter Lake Parcel. [ECF No. 19-2 at 264]. On January 10, 2000, the Tribe passed a resolution requesting that the Bureau of Indian Affairs ("BIA") place the land into trust to allow the Tribe "to provide services to [its] members, primarily health services." [ECF No. 19-3 at 420]. The BIA considered the request under the DOI's discretionary authority to acquire land in trust for tribes under the IRA and its implementing regulations. Id. at 389, 392, 394, 415. On September 15, 2000, the Regional Director of the BIA granted the Tribe's request. Id. at 226–30. The State of Iowa and Pottawattamie County, Iowa, timely appealed the Regional Director's decision to the Interior Board of Indian Appeals ("IBIA"). Id. at 190, 222. On August 7, 2002, the IBIA affirmed the Regional Director's decision (the "IBIA Trust Decision"). See Iowa & Bd. of Supervisors of Pottawattamie Cty. v. Great Plains Reg'l Dir., BIA , 38 IBIA 42, 55 (Aug. 7, 2002).
At that point, the State of Iowa could have sought judicial review of the IBIA Trust Decision. Although the relevant statute of limitations was six years, see 28 U.S.C. § 2401(a), it was the Government's position at the time that the Quiet Title Act precluded judicial review of a decision to take Native American lands into trust once the United States acquired title. See Land Acquisitions, 61 Fed. Reg. 18082-01, at 18082 (Apr. 24, 1996). To ensure that interested parties had an opportunity to appeal such decisions, DOI regulations required the DOI to announce any final administrative determination to take land into trust, and wait thirty days from the date of the announcement before acquiring title to the land. See id. The Government's interpretation of the Quiet Title Act was ultimately incorrect, as the Supreme Court of the United States ruled in 2012 that the Quiet Title Act did not bar judicial review under the APA of the Secretary's decision to take land into trust for a Native American tribe. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 228, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012).
In any event, to avoid further litigation, the State of Iowa purportedly reached a verbal agreement with the Tribe that the Carter Lake Parcel could only be used for gaming if the Tribe obtained the "two-part determination" under 25 U.S.C. § 2719(b)(1)(A) (the "2002 Agreement"). [ECF No. 18-3 at 4]. The State of Iowa negotiated the agreement with the Tribe's attorney, Michael Mason. See [ECF No. 18-5 at 47–48]. According to Plaintiffs, Mason represented that he had "the authority to bind the Tribe to the terms of the proposed settlement." Id. at 49. However, the parties dispute whether he in fact had that authority.
On November 26, 2002, Mason sent an email to the BIA requesting that it include the following language in its published notice of intent to take the Carter Lake Parcel into trust:
The trust acquisition of the Carter Lake lands has been made for non-gaming related purposes, as requested by the Ponca Tribe and discussed in the September 15, 2000 decision under the Regional Director's analysis of 25 C.F.R. 151.10(c). As an acquisition occurring after October 17, 1988, any gaming or gaming-related activities on the Carter Lake lands are subject to the Two-Part Determination under 25 U.S.C. Sec. 2719. In making its request to have the Carter Lake lands taken into trust, the Ponca Tribe has...
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