City of Roseville v. Norton

• Decision Date: 14 November 2003
• Docket Number: No. 02-5277.,02-5277.
• Citation: 348 F.3d 1020
• Parties: CITY OF ROSEVILLE, et al., Appellants, v. Gale A. NORTON, in her official capacity as United States Secretary of Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

348 F.3d 1020

CITY OF ROSEVILLE, et al., Appellants, v. Gale A. NORTON, in her official capacity as United States Secretary of Interior, et al., Appellees.

No. 02-5277.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 2003.

Decided November 14, 2003.

Appeal from the United States District Court for the District of Columbia (No. 02cv00628).

William P. Horn argued the cause and filed the briefs for appellants. Barbara A. Miller and Harvey A. Levin entered appearances.

Stephen P. Collette was on the brief for amicus curiae National Coalition Against Gambling Expansion in support of appellant.

Seth P. Waxman argued the cause for appellee The United Auburn Indian Community. With him on the brief were Edward C. DuMont, Luke A. Sobota, and Howard Dickstein. Kirk R. Ruthenberg and Nicholas C. Yost entered appearances.

Elizabeth Ann Peterson, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief was William B. Lazarus, Attorney.

Before: ROGERS and ROBERTS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

This appeal involves the intersection of two statutes concerning Indian tribes. The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (2003) ("IGRA"), prescribes the conditions under which Indian tribes may engage in commercial gaming on their reservations. The Auburn Indian Restoration Act, 25 U.S.C. §§ 1300l-1300l-7 (2003) ("AIRA"), restored the Auburn Indian Band located near Sacramento, California to federal recognition as an Indian Tribe and authorized the creation of a new reservation on its behalf. See id. §§ 1300l, 1300l-2. The cities of Roseville and Rocklin, both located near land approved by the Secretary of the Interior as part of the Tribe's new reservation, and Citizens for Safer Communities, a local nonprofit organization (hereafter "the Cities"), challenge the district court's interpretation of section 20 of IGRA. They contend that the plain language of IGRA required the Secretary, prior to deciding the land was eligible to be used for gaming, to find that gaming "would not be detrimental to the surrounding community" and to secure the consent of the Governor. See 25 U.S.C. § 2719(b)(1)(A). We hold, in light of IGRA's language, structure, and purpose, that the Auburn Tribe's land qualifies as the "restoration of lands" under IGRA § 20(b)(1)(B)(iii) even though the land is not located on the Tribe's former reservation as of the time the Auburn Tribe lost federal recognition and is being put to a different use than the lands on the former reservation, the Rancheria. Hence, the Secretary was not required to proceed under § 20(b)(1)(A) as the Cities contend. Accordingly, we affirm the dismissal of the Cities' IGRA cause of action and, as this is the only issue raised on appeal, we affirm the judgment of the district court.

I.

The Auburn Indian Band is a small tribe, numbering somewhere around 247 members, most of whom live near the village of Auburn in central California, not far from Sacramento. The Auburn Band currently has no reservation; in fact, the Auburn Tribe had no federally recognized existence between 1967 and 1994. The Band appears to have been formed when several surviving families of the Maidu and Meiwok Tribes, both devastated by the settlement policies of the nineteenth century, grouped into a small community that survived much of the depredation that came with the settlement of California. In 1917, the federal government provided the Auburn Tribe with a small 20-acre reservation, which was expanded to 40 acres in 1953, known as the Auburn "Rancheria." As part of then-prevailing policies on Indian assimilation, however, Congress withdrew the Auburn Tribe's recognition and terminated its reservation in 1967, distributing most of the Rancheria land in fee to individual holders, pursuant to the terms of the Rancheria Act, Pub. L. No. 85-671 (1958). The policy of attempting to assimilate Indians by terminating federal trust responsibilities has since been repudiated by the President and Congress, and many tribes terminated as part of those policies have now been restored to federal recognition.

Congress restored the Auburn Band's rights as a federally recognized tribe in 1994 and authorized the Secretary of the Interior to take land into trust to serve as the Auburn Tribe's reservation. See AIRA, Pub. L. No. 103-434 tit. II (1994), 25 U.S.C. §§ 1300l-1300l-7 (2003). AIRA directs the Secretary to accept lands located on the Tribe's former reservation into trust, id. § 1300l-2(b), but also authorizes the Secretary to accept other unencumbered lands located elsewhere in Placer County, id. § 1300l-2(a). AIRA also references the Secretary's authority, pursuant to the Indian Reorganization Act, 25 U.S.C. § 461 et seq., to take additional land into trust within the tribe's "service area," which includes several neighboring counties, id. § 1300l-2(a). Under AIRA, all land taken into trust pursuant to its terms "shall be part of the Tribe's reservation." Id. § 1300l-2(c).

Rather than apply to the Secretary to re-establish their reservation on the Rancheria, most of which land was unavailable because held in fee by individual Indians or non-Indians, the Auburn Tribe applied for three separate parcels of land: one for residential and community use, one for commercial use as a gaming casino, and a third, containing a church within the boundaries of the old reservation, for community use. The Tribe submitted a revised application in 2000, however, to request only the gaming site, reserving the other two sites for later applications. The gaming site consists of 49.21 acres located in an unincorporated portion of Placer County, California, and photographs of the area indicate that the land is flat, barren, and virtually uninhabited. The parties disagree over how far the land is from the Auburn Tribe's Rancheria, but viewing the record most favorably to the Cities, see Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002), it is at least clear that the land is neither on nor close to the Tribe's former reservation, and is possibly as far as 40 miles away. What is clear, however, is that the land is close to the Cities.

In response to the Bureau of Indian Affairs' notice and request for comments, see 25 C.F.R. § 151.11 (2003), the Cities opposed the Auburn Tribe's application, arguing that the casino would increase crime in their communities and interfere with planned residential developments nearby, as well as with the family-oriented nature of the area. Moreover, they argued that because the proposed gaming was to take place on land acquired after the IGRA's effective date of October 17, 1988, the Secretary was not authorized to permit gaming on the land unless she made a threshold determination under IGRA § 20(b)(1)(A), 25 U.S.C. § 2719(b)(1)(A), that the proposed gaming activity "would not be detrimental to the surrounding communities" and obtained the concurrence of the Governor. The Bureau, relying on opinions of two Associate Solicitors of the Interior Department, took the position that the land was exempt from the threshold no-community-detriment finding normally applicable under IGRA § 20(b)(1)(A) to Indian lands acquired after 1988 because AIRA brought the Auburn Tribe's land within IGRA's exception for a "restoration of lands" to a restored tribe under § 20(b)(1)(B)(iii). The Cities' objections based on local community detriment were therefore not legally relevant, as IGRA does not require a no-community-detriment finding on lands that are part of a "restoration of lands" before the Secretary can authorize gaming. The Cities' objections were not entirely irrelevant, however, because the Bureau considered the Tribe's land a "discretionary" acquisition, and Interior Department regulations, see 25 C.F.R. pt. 151, require the Secretary to consider potential land use conflicts and jurisdictional problems. Id. §§ 151.10(f), 151.11(a). Additionally, the Secretary must balance the need of a tribe for additional land, the use to which the land will be put, and the distance of the land from the tribe's reservation, before exercising discretion to take new land into trust for Indians. Id. §§ 151.10(b), (c); id. §§ 151.11(a), (b). The Bureau found that the balance of these factors favored the Auburn Tribe's planned use of the land for gaming. Ultimately, the Secretary, through her designees, agreed with the legal and factual determinations and approved the Tribe's application. Notice was published in the Federal Register of the Secretary's intent to take the land into trust.

The Cities filed suit against the Secretary, other Interior Department officials, and the United States under a variety of legal theories, seeking declaratory and injunctive relief, as well as a decision on the merits of their IGRA cause of action to prevent the Secretary from permitting gaming on the 49 acres to be taken into trust for the Auburn Tribe. As relevant here, the Cities alleged that the Secretary had failed to comply with the requirements of IGRA § 20(b)(1)(A). The Tribe intervened, and the Secretary moved to dismiss the IGRA cause of action based on her interpretation of the "restoration of lands" exception in IGRA § 20(b)(1)(B)(iii). Following the Secretary's agreement to delay taking the land into trust, the district court ruled that "the only reasonable interpretation" of IGRA's "restoration of lands" exception under § 20(b)(1)(B)(iii) applied to the land that the Secretary had agreed to take into trust for the Tribe. City of Roseville v. Norton, 219 F.Supp.2d 130, 157 (D.D.C.2002). The court dismissed the Cities' IGRA cause of action for failure to state a claim upon which relief can be granted, and also dismissed or entered summary judgment against the Cities on their remaining causes of action.

II.

The IGRA was enacted in 1987 to regulate...