Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell

Decision Date12 December 2014
Docket NumberCivil Action No. 13–849 BJR
Citation75 F.Supp.3d 387
CourtU.S. District Court — District of Columbia
PartiesThe Confederated Tribes of the Grand Ronde Community of Oregon, et al., Plaintiffs, v. Sally Jewell, et al., Defendants.

John J. Michels, Jr., Lewis Brisbois Bisgaard & Smith, LLP, Chicago, IL, Sarah R. Prins, Daniel Lerman, Lawrence Saul Robbins, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Shannon K. O'Loughlin, Lewis Brisbois Bisgaard & Smith, LLP, Donald Christian Baur, Benjamin S. Sharp, Donald Christian Baur, Jennifer A. MacLean, Perkins Coie LLP, Washington, DC, Lawrence Charles Watters, Brent D. Boger, Vancouver City Attorney's Office, Vancouver, WA, Eric D. Miller, Perkins Coie, LLP, Seattle, WA, for Plaintiffs.

Gina L. Allery, Kristofor R. Swanson, U.S. Department of Justice, Washington, DC, for Defendants.

Robert Luskin, Edward D. Gehres, Patton Boggs LLP, Washington, DC, Suzanne R. Schaeffer, V. Heather Sibbison, Dentons US LLP, Washington, DC, for Cowlitz Indian Tribe.





This consolidated action1 arises under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq ., the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq. , the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Plaintiffs challenge the Secretary of the Department of Interior's decision to acquire and hold in trust approximately 152 acres in Clark County, Washington for the Cowlitz Indian Tribe, the IntervenorDefendant. Plaintiffs further challenge the Secretary's decision to allow gaming on that land, and dispute whether the Secretary has complied with NEPA's requirements. Before the Court are the parties' cross-motions for summary judgment. Having considered the record herein together with the parties' briefs the Court denies the Plaintiffs' motions for summary judgment and grants the Defendants' motions for summary judgment. The Court's reasoning follows:


A. Legal Framework

The Secretary's decision was arrived upon consideration of a complex combination of statutes, procedures, and regulations, a brief description of which follows:

1. Indian Reorganization Act of 1934

“The IRA was designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes' acquisition of additional acreage and repurchase of former tribal domains. Native people were encouraged to organize or reorganize with tribal structures similar to modern business corporations.” 1–1 Cohen's Handbook of Federal Indian Law § 1.05. “The overriding purpose of [the IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.” Morton v. Mancari, 417 U.S. 535, 542, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).

Among other things, the IRA provides the Secretary with the authority “to acquire ... any interest in lands ... for the purpose of providing land for Indians.” 25 U.S.C. § 465. “Title to any lands ... acquired pursuant to [the IRA] ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands ... shall be exempt from State and local taxation.” Id. Lands taken in trust by the United States can be designated as part of an Indian Tribe's reservation.Id. § 467.

Section 19 of the IRA defines “Indian” to include, inter alia, “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” Id. § 479. While the IRA does not elaborate on what it means to be a “recognized Indian tribe now under Federal jurisdiction,” the Supreme Court recently interpreted the phrase “now under Federal jurisdiction.” In doing so it reasoned that when Congress refers to a tribe that was “now under federal jurisdiction,” it used the word “now” to mean the date that the IRA was enacted, which was 1934. Carcieri v. Salazar, 555 U.S. 379, 382, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009).

2. Federal Acknowledgment Process

In 1978, the Department of Interior established a “departmental procedure and policy for acknowledging that certain American Indian groups exist as tribes.” 25 C.F.R. § 83.2. This process was “intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present.” Id. § 83.3. Such acknowledgment was necessary to receive “the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes,” as well as “the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States.” Id. § 83.2. An Indian tribe acknowledged under this procedure would “subject the Indian tribe to the same authority of Congress and the United States to which other federally acknowledged tribes are subjected.” Id.

The Regulations specified the criteria that a tribe must demonstrate to achieve Federal acknowledgment. Id. § 83.7–83.8. Among other requirements, the tribe must have been “identified as an American Indian entity on a substantially continuous basis since 1900,” and a “predominant portion” of the tribe must “comprise[ ] a distinct community” and must have “existed as a community from historical times until the present.” Id. § 83.7(a)(b).

3. Indian Gaming Regulatory Act of 1988

Like the IRA, the IGRA was enacted in large part to promote “tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1). To this end, the IGRA provided “a statutory basis for the operation of gaming by Indian tribes.” 25 U.S.C. § 2702(1) ; see also Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 462 (D.C.Cir.2007). The IGRA generally prohibits Indian gaming on lands acquired after October 17, 1988. 25 U.S.C. § 2719. However, there are exceptions.

Of particular relevance here, the IGRA allows gaming if “lands are taken into trust as part of ... (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.” Id. § 2719(b)(1)(B). For brevity, these exceptions are referred to herein as the “initial reservation” exception and the “restored lands” exception, respectively.

4. National Environmental Policy Act

NEPA requires federal agencies to issue an Environmental Impact Statement (EIS) for any “major Federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The EIS must discuss in detail, inter alia, (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] (iii) alternatives to the proposed action.”Id.

Because the NEPA process “involves an almost endless series of judgment calls ... [t]he line-drawing decisions ... are vested in the agencies, not the courts.” Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C.Cir.1987). Therefore, the “role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” City of Olmsted Falls, Ohio v. Fed. Aviation Admin., 292 F.3d 261, 269 (D.C.Cir.2002) (citing Baltimore Gas & Elec. v. Natural Res. Def. Council, 462 U.S. 87, 97–98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) ).

B. Factual & Procedural Background

The Cowlitz Indian Tribe (hereinafter, Cowlitz or Tribe) is the successor in interest of the Lower Cowlitz and the Upper Cowlitz Bands of Southwestern Washington. The Tribe has been without land since President Lincoln signed a proclamation in 1863 that opened the Cowlitz lands in southwest Washington to non-Indian settlement. A.R. 8200; A.R. 14048762; Fed.Reg. 8,983–01 (Feb. 27, 1997).

In 2002,2 the Department of Interior federally acknowledged the Cowlitz after finding that the Tribe had existed as an Indian entity on a substantially continuous basis since at least 1878–80 and that it had satisfied the criteria set forth in 25 C.F.R. part 83. 67 Fed.Reg. 607 (Jan. 4, 2002) ; 65 Fed.Reg. 8,436 (Feb. 18, 2000). Immediately upon receiving federal acknowledgment, the Cowlitz submitted an application requesting that the Secretary take into trust 151.87 acres of land in Clark County, Washington (hereinafter, “the Parcel”) and declare it the Tribe's “initial reservation” under the IRA. A.R. 140382. The Tribe claimed its purpose was to “create a federally-protected land base on which the Cowlitz Indian Tribe can establish and operate a tribal government headquarters to provide housing, health care, education and other governmental services to its members, and conduct the economic development necessary to fund these tribal government programs, provide employment opportunities for its members, and allow the Tribe to become economically self-sufficient.” A.R. 140383. To further that goal, the Cowlitz Tribe, currently landless, intends to develop the Parcel to establish 20,000 square feet of tribal government offices, sixteen elder housing units, a 12,000 square foot tribal cultural center and a casino-resort complex consisting of 134,150 square feet of game floor; 355,225 square feet of restaurant and retail facilities and public space; 147,500 square feet of convention and multipurpose space; and an eight story 250–room hotel. BIA ROD at 2, 115.

A tribe must seek approval for casino-style gambling from the National Indian Gaming Commission (NIGC), an independent federal regulatory agency within the Department...

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