City of Duluth v. Jewell

• Decision Date: 29 September 2013
• Docket Number: Civil Action No. 12–1116 (CKK)
• Citation: 968 F.Supp.2d 281
• Parties: City of Duluth, Plaintiff, v. Sally Jewell, Secretary of the Interior, in her official capacity, Defendant.
• Court: U.S. District Court — District of Columbia

968 F.Supp.2d 281

City of Duluth, Plaintiff,

v.Sally Jewell, Secretary of the Interior, in her official capacity, Defendant.

Civil Action No. 12–1116 (CKK)

United States District Court, District of Columbia.

September 29, 2013

M. Alison Lutterman, Duluth, MN, Frederick D. Cooke, Jr., Rubin, Winston, Diercks, Harris & Cooke, LLP, Washington, DC, for Plaintiff.

Amy S. Tryon, Laura Louise Maul, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff, the City of Duluth, has brought suit against Defendant Sally Jewell, in her official capacity as Secretary of the Interior, challenging the Department of the Interior's May 10, 2012 decision to cancel the business lease between the Fond du lac Band of Lake Superior Chippewa and the Duluth–Fond du Lac Economic Development Commission.¹ Presently before the Court is Plaintiff's [14] Motion to Supplement the Administrative Record. Upon a searching review of the parties' submissions,² the applicable authorities, and the record as a whole, the Court shall DENY Plaintiff's [14] Motion to Supplement the Administrative Record.

I. BACKGROUND

Although the merits of Plaintiff's challenge to the Department's actions are not currently before the Court, a discussion of the relevant background underlying Plaintiff's claims in this case will help to place the parties' arguments with respect to the pending motion to supplement the administrative record in the proper context.

A. Factual Background

In 1984, the Fond du Lac Band of Lake Superior Chippewa Indians (“Band”) began negotiations with Plaintiff the City of Duluth (“City” or “Plaintiff”) for the creation of a casino in Duluth, Minnesota. Pl.'s Mem. at 4. In May 1985, as part of these negotiations, the Band petitioned the Secretary of the Interior (“Secretary” or “Defendant”) to approve a set of agreements between the City and the Band and to accept the land proposed for the Casino's location into trust for the Band in accordance with 25 U.S.C. §§ 465, 467. AR1066–67. The following month, the Deputy Assistant Secretary for Indian Affairs approved the agreements and notified the Bureau of Indian Affairs that the Casino Property could be accepted into trust on behalf of the Band. AR57. The negotiationsbetween the City and the Band also resulted in a lease agreement, which was approved by the Department of Interior (“Department” or “DOI”) on April 10, 1986. AR41. Since 1986, the Band has operated the Fond du Luth Casino (“Casino”) in downtown Duluth. Pl.'s Mem. at 4.

In 1988, Congress enacted the Indian Gaming Regulatory Act (“IGRA”), codified as amended at 25 U.S.C. §§ 2701–2721, which brought into question the legality of the 1986 agreements between the Band and the City. Pl.'s Mem. at 5. In September 1993, the National Indian Gaming Commission (“NIGC”)—an independent regulatory agency within DOI established pursuant to IGRA—advised the Band and the City that the operation of the Casino under the 1986 agreements violated IGRA. AR1204–05. Accordingly, on June 20, 1994, the Band and the City executed new agreements which were approved by the Secretary and the NIGC. AR1038–63; AR1177–1203. This 1994 agreements provided for a sublease, under which the Duluth–Fond du Lac Economic Development Commission (“Commission”), which held a lease from the Band for the casino property pursuant to the 1986 agreements, agreed to sublease this leasehold interest in the casino property back to the Band. AR1038–63. The Commission also assigned its rights to the rent from the lease to the City. Id. Under the 1994 agreements, the parties agreed to meet by January 1, 2010, to negotiate regarding the percentage of revenue owed to the City for the 25–year term beginning on April 1, 2011. Id.

On August 6, 2009, the Band announced that it was ceasing all payments to the City under the 1994 agreements, pursuant to its belief that it was overpaying rent under the terms of the sublease. SeeCity of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 708 F.Supp.2d 890, 895 (D.Minn.2010). In response, the City commenced litigation against the Band in the United States District Court for the District of Minnesota. See generallyid. After that court ruled on April 21, 2010 that the 1994 agreements were valid and enforceable, seeid. the Band requested formal review of the agreement from the NIGC. Pl.'s Mem. at 6–7. On October 20, 2010, the chair of the NIGC advised the City and the Band that it would review the agreements. AR698. On July 12, 2011, the NIGC issued a Notice of Violation (“NOV”) concluding that the agreements “grant the City of Duluth, Minnesota ... an unlawful proprietary interest in the Band's gaming activity and prevent the Band from possessing the sole responsibility for the gaming activity.” AR000061. Accordingly, NIGC determined that “the agreements as written, and as the parties operated under them, violate the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2710(b)(2)(A); NIGC regulations, 25 C.F.R. §§ 522.4(b)(1) and 522.6(c); and the Band's gaming ordinance....” Id.

On January 19, 2012, DOI officials met with the Band's legal representatives, AR 264–265, and on February 17, 2012, the Band made a formal request to DOI to cancel the lease agreement contained in the 1986 agreement, as modified by the 1994 agreement. AR410–431. On March 26, 2012, the Assistant Secretary for Indian Affairs (“ASIA”) advised the City via letter that the Commission was in violation of the lease between the Commission and the Band. AR917–18. The City responded to the DOI's notice on April 11, 2012, noting that the lease had previously been approved by both DOI and NIGC. AR1404–17. The City also argued that ongoing litigation between the City and the Band on the validity of the 1994 agreements compelled DOI to take no action. Id. However, on May 10, 2012, the DOI issued a final determination cancelling the business lease dated April 1, 1986, between the Band and the Commission. AR1451–53. In this final determination, the DOI cited to the NIGC's NOV as its primary reason for cancelling the lease. Id.

B. Procedural Background

On July 6, 2012, the City filed suit in this Court, alleging that the Department's May 10, 2012 final determination to cancel the lease was arbitrary, capricious, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See Compl., ECF No. [1]. On November 1, 2012, Defendant filed the administrative record concerning the May 10, 2012 final determination decision. See Notice of Filing of Admin. Record, ECF No. [7]. On December 6, 2012, Defendant filed the Certification of Administrative Record (“Certification”), ECF No. [12–1]. This Certification includes a declaration by Solicitor's Office attorney Jennifer Turner that “to the best of [her] knowledge, the documents filed with the Court and served on counsel of record constitute a true, correct, and complete copy of the administrative record of the decision to cancel the Business Lease. The administrative record does not contain documents protected in their entirety by privileges, such as attorney-client, attorney work product, and deliberative process.” Id.

In December 2012, the City sent an informal request to the Secretary for supplementation of the administrative record. Def.'s Opp'n at 2. The Secretary did not agree to supplement the record with any specific documents. Id. Subsequently, the City filed its instant [14] Motion to Supplement the Administrative Record. In this motion, Plaintiff requests that the Court order Defendant to supplement the administrative record by providing the following information:

a. The entire administrative record of the National Indian Gaming Commission (“NIGC”) for its Notice of Violation 11–02 (“NOV'). See, Docket Entry No. 7 (AR919–937). This includes all documents and information communicated by the Fond du Lac Band of Lake Superior Chippewa (“Band”) and/or its legal counsel to the NIGC, and all notes, e-mails or documents summarizing or describing such information.

b. All documents and records of communications between the DOI, BIA or the NIGC related to the NOV whether created before or after the NOV was issued. This includes all notes, e-mails or documents summarizing or describing conversations occurring between these entities.

c. With reference to the Administrative Record (“AR”) filed as Docket Entry No. 7 the following:

i. AR 262: all information exchanged and notes taken or documents exchanged before, during, or after the meeting between federal employees and the attorneys for the Band referenced.

ii. AR 849: all briefing materials provided in response to Newland's e-mail to Roberts and Stevens, and all notes made during the briefing meeting that occurred.

iii. AR 993: produce all information, documents or notes describing or summarizing the information exchanged with Patty Olby or Diane Rosen during the referenced April 13th conference call.

iv. AR 1428: produce all information, documents or notes describing or summarizing the information exchanged with John Hay during the referenced April 13th conference call. v. AR 1447: the “latest information” referenced in the May 2, 2012 e-mail.

d. All documents or other information provided by the Fond du lac Band and/or its legal representatives to the DOI, BIA or NIGC related to the relationship between the City and the Band. This includes any notes documenting or summarizing the information provided during conversations.

e. All documents or other information contained in the administrative record of the DOI or BIA related to the Business Lease dated April 1, 1986.

f. All documents or other information contained in the administrative record of the DOI or NIGC related to the 1994 agreements between the Band, the Commission and the City.

g. All internal memoranda providing direction or standards related to lease termination decisions.

h. All internal...