Confederated Tribes of Siletz Indians v. US

• Decision Date: 21 January 1994
• Docket Number: Civ. No. 92-1621-BU.
• Citation: 841 F. Supp. 1479
• Parties: The CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON, Plaintiff, v. UNITED STATES of America; United States Department of the Interior; Manuel Lujan, Jr., Secretary of the Department of the Interior; Dr. Eddie Brown, Assistant Secretary of the Department of the Interior for Indian Affairs; and Tom Sansonetti, Solicitor for the Department of the Interior, Defendants, and The State of Oregon and Governor Barbara Roberts, Defendants-Intervenors.
• Court: U.S. District Court — District of Oregon

841 F. Supp. 1479

The CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON, Plaintiff, v. UNITED STATES of America; United States Department of the Interior; Manuel Lujan, Jr., Secretary of the Department of the Interior; Dr. Eddie Brown, Assistant Secretary of the Department of the Interior for Indian Affairs; and Tom Sansonetti, Solicitor for the Department of the Interior, Defendants, and The State of Oregon and Governor Barbara Roberts, Defendants-Intervenors.

Civ. No. 92-1621-BU.

United States District Court, D. Oregon.

January 21, 1994.

COPYRIGHT MATERIAL OMITTED

Craig J. Dorsay, Meyer & Wyse, Portland, OR, for plaintiff.

Myles E. Flint, Deputy Asst. Atty. Gen., Jack C. Wong, U.S. Atty., Edward J. Passarelli, General Litigation Section, Environmental and Natural Resources Div., Dept. of Justice, Washington, DC, for defendants.

Theodore R. Kulongoski, Atty. Gen. of Oregon, Virginia L. Linder, Sol. Gen., Michael D. Reynolds, Asst. Atty. Gen., Salem, OR, for defendants-intervenors.

AMENDED OPINION AND ORDER

JAMES M. BURNS, Senior District Judge.

INTRODUCTION

This case calls upon me to become a gaming master¹ and, as part of that task, to distinguish why gambling can be a godsend for the Grand Ronde, an economic boon for the Cow Creek and Coquille, but seriously detrimental, if not fatal, for the Siletz Tribes.²

For a score of years, I have been importuned to be a forest master, see Oregon Natural Resources Council, Inc. v. United States Forest Service, 659 F.Supp. 1441 (D.Or.1987); a herbicide master, see Northwest Coalition for Alternatives to Pesticides v. Lyng, 673 F.Supp. 1019 (D.Or.1987); a range master, see Natural Resources Defense Council, Inc. v. Hodel, 624 F.Supp. 1045 (D.Nev.1985); a prison master, see Capps v. Atiyeh, 559 F.Supp. 894 (D.Or. 1983); a freeway master, see Southeast Legal Defense Group v. Adams, 436 F.Supp. 891 (D.Or.1977); a dog master, see Bowlin v. Deschutes County, 712 F.Supp. 803 (D.Or. 1988); and so on and so on. I find, however, I am able to refuse the offer to assume this latest grandiose role.

PROCEDURAL HISTORY

The Confederated Tribes of Siletz Indians of Oregon (Siletz Tribes) filed two motions for summary judgment (# 7, # 42) in which they seek reversal of the decision made by the Department of Interior (DOI) denying the Siletz Tribes' request to have land placed in trust for the purpose of establishing a gaming operation pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. (1988). The State of Oregon and Governor Barbara Roberts³, who were permitted to intervene as defendants on January 22, 1993, filed a Cross Motion for Summary Judgment (# 26) in which they seek this court's declaration that 25 U.S.C. § 2719(b)(1)(A) is constitutional or, in the alternative, that § 2719(b)(1)(A) must be severed in its entirety from IGRA.

Although the Siletz Tribes and the State agree no triable issues of fact exist and thus frame their respective requests for relief as motions for summary judgment, they actually seek declaratory relief. See Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. (1988). Declaratory relief is appropriate when "a judgment will clarify and settle the legal relations at issue and ... will afford relief from the ... controversy giving rise to the proceedings." Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 966 F.2d 1292, 1299 (9th Cir.1992) (citing McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 342 (9th Cir.), cert. denied, 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966)). Declaratory relief rests within this court's discretion and may be exercised in the public interest. Dexter v. Kirschner, 984 F.2d 979, 982 (9th Cir.1992). "A request for declaratory relief in a challenge to an agency action is ripe for review if the action at issue is final and the questions involved are legal ones." Natural Resources Defense Council, Inc., 966 F.2d at 1299. In the matter before me, the DOI's action is final and the issues are legal; therefore, I find the requests for declaratory relief made by the Siletz Tribes and the State are appropriate.

BACKGROUND

In March 1992, the Siletz Tribes approached the Siletz Agency, Bureau of Indian Affairs (BIA),⁴ with a proposition to take into trust (i.e., to convert off-reservation land in fee to land in trust to be held by the United States for the benefit of the Siletz Tribes) a 16-acre tract in Salem, Oregon, located 50 miles from the reservation for the purpose of establishing and operating a $7 million casino pursuant to the provisions of 25 U.S.C. § 2719(b)(1)(A). The Siletz Agency requested comments on the proposal from Marion County and the City of Salem. On April 20, 1992, Governor Roberts submitted a Consultation Report to Manuel Lujan, Secretary of DOI (for convenience, "the Secretary" and "the DOI" will be used interchangeably), in which she stated she opposed the Siletz Tribes' proposition because it would not be in the interests of the City of Salem, the County of Marion, or the State of Oregon.

In June 1992, the Siletz Tribes submitted a formal application to the Siletz Agency. In July 1992, the Siletz Agency recommended approval of the Siletz Tribes' application and forwarded the proposal to the Portland Area Office. The Portland Area Office recommended approval and forwarded the proposal to the Central Office. In September 1992, the Central Office returned the application to the Portland Area Office for supplantation. Pursuant to the requirements of § 2719(b)(1)(A), the Siletz Agency Superintendent then requested Marion County, the City of Salem, the Governor, and local tribes to comment further as to whether the proposed off-reservation gaming operation would be in the best interests of the Siletz Tribes and whether such an operation would be detrimental to the surrounding community. In October 1992, the Governor responded directly to Dr. Eddie Brown, Assistant Secretary, BIA, and stated the proposed gaming operation would be detrimental to the surrounding community. In spite of the Governor's comments, the Portland Area Office again recommended approval and forwarded the application to the Central Office.

On November 6, 1992, the Secretary issued findings concluding the proposal was in the best interests of the Siletz Tribes and would not be detrimental to the community. The Secretary also addressed the comments and objections of the City of Salem, the County of Marion, the Governor on behalf of the State, and neighboring tribes. The Secretary then asked the Governor to concur with the DOI's determination in favor of granting the Siletz Tribes' application; the Governor refused. In December 1992, the DOI denied the Siletz Tribes' application because, in its opinion, an exception to § 2719(a) could not be granted without the Governor's concurrence.

ISSUES

1. Whether 25 U.S.C. § 2719(b)(1)(A) requires the DOI to obtain the Governor's concurrence before it can convert off-reservation land fee-to-trust for the purpose of establishing a gaming operation for the benefit of an Indian tribe.

2. If § 2719(b)(1)(A) requires the DOI to obtain the Governor's concurrence, whether that requirement is constitutional under the Appointments Clause (Article II, Section 8, Clause 17 of the United States Constitution), general separation-of-powers principles, the Fifth Amendment, and the Tenth Amendment.

3. If § 2719(b)(1)(A) unconstitutionally requires the Governor's concurrence, whether the provision requiring same is severable from § 2719(b)(1)(A).

DISCUSSION

The Siletz Tribes contend the DOI's denial of their application for an exception to § 2719(a) should be reversed and remanded for reconsideration because the decision was based on the DOI's erroneous conclusion that the Governor's concurrence is mandatory under § 2719(b)(1)(A). The Siletz Tribes assert the Governor's role is merely advisory. If this court determines that § 2719(b)(1)(A) dictates the DOI's decision is subject to the Governor's concurrence, the Siletz Tribes contend the offending portion of the statute violates the Appointments Clause, general separation-of-powers principles, the Fifth Amendment, and the Tenth Amendment and, therefore, must be excised.

Defendants ask this court to find the provision requiring the Governor's concurrence constitutional; if I find otherwise, however, the State asserts § 2719(b)(1)(A) must be severed in its entirety from IGRA.

At the heart of this action lie the following statutes:

25 U.S.C. § 2719(a) prohibits the establishment of gaming operations on off-reservation lands acquired in trust by the DOI for the benefit of an Indian tribe after October 17, 1988, except under certain conditions that are irrelevant to the particular issues brought to this court by the Siletz Tribes. 25 U.S.C § 2719(b)(1)(A) provides the following exception to the prohibition of § 2719(a):

(1) Subsection (a) of this section will not apply when

(A) the Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby Indian tribes, 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, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination....

STATUTORY CONSTRUCTION

a. DOI's conduct.

The Siletz Tribes contend the DOI's conduct up to the time of its final decision indicates the DOI viewed the Governor's concurrence or nonconcurrence as merely advisory. The Siletz Tribes point out their application received favorable findings at every administrative level: (1) after the Governor's initial rejection of the proposal, the Secretary issued findings concluding the proposal was in the best interests of the Siletz Tribes and not detrimental to the surrounding community; (2) high-level...