Dept. of the Interior v. South Dakota

• Decision Date: 15 October 1996
• Docket Number: 951956
• Parties: DEPARTMENT OF THE INTERIOR, et al., petitioners, v. SOUTH DAKOTA, et al
• Court: U.S. Supreme Court

117 S.Ct. 286

DEPARTMENT OF THE INTERIOR, et al., petitioners,

v SOUTH DAKOTA, et al.

No. 95-1956.

Supreme Court of the United States

Oct. 15, 1996.

On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit with instructions to vacate the judgment of the United States District Court for the District of South Dakota and remand the matter to the Secretary of the Interior for reconsideration of his administrative decision.

Justice SCALIA, with whom Justice O'CONNOR and Justice THOMAS join, dissenting.

This case arises from the 1990 action of the Department of the Interior acquiring 91 acres in trust for the Lower Brule Tribe of the Sioux Indians, pursuant to § 5 of the 1934 Indian Reorganizations Act (IRA), 48 Stat. 985, as amended, 25 U.S.C. § 465. Respondents challenged this action in Federal District Court, contending both that the Department's particular action violated the Administrative Procedure Act (APA), 5 U.S.C. § 706, and that the Secretary's statutory authority to acquire lands under the IRA is unconstitutional as a delegation of legislative power.

Throughout this litigation, until now, it has been the Department's position that IRA land acquisitions are unreviewable under the APA because they fall within the exception for matters ''committed to agency discretion by law.'' § 701(a)(2). The District Court agreed that APA review was unavailable, although on different grounds, holding that since the United States had acquired title, the Quiet Title Act (QTA), 28 U.S.C. § 2409a, provided the sole statutory means of challenging the action, and that the QTA explicitly prohibits actions challenging title to Indian lands. The District Court also upheld the Secretary's constitutional authority to acqu ire land on behalf of the United States under the IRA. The Court of Appeals for the Eighth Circuit, however, reversed on the ground that § 5 of the IRA constitutes a delegation of legislative power to the Secretary of the Interior and is hence unconstitutional. 69 F.3d 878 (1995).

Following the Eighth Circuit's sweeping decision, the Department of the Interior did an about-face with regard to the availability of judicial review under the APA. It promulgated a new regulation providing that ''the Secretary shall publish in the Federal Register, or in a newspaper of general circulation serving the affected area a notice of his/her [sic] decision to take land into trust,'' and that ''the Secretary shall acquire title in the name of the United States no sooner than 30 days after the notice is published.'' Department of the Interior, Land Acquisitions (Nongaming), 61 Fed.Reg. 18082 (1996) (to be codified at 25 C.F.R. § 151.12). The preamble to that regulation recites that it is being adopted ''[i]n response to a recent court decision, State of South Dakota v. U.S. Department of the Interior, 69 F.3d 878 (8th Cir.1995),'' and asserts that the procedure it sets forth ''permits judicial review before transfer of title to the United States.'' The Solicitor General now represents to us that it is the position of the Department of the Interior, as well as that of the Department of Justice, that judicial review of an IRA land trust acquisition may be obtained by filing suit within the 30-day waiting period, although action will continue to be barred by the QTA after the United States formally acquires title.

The decision today-to grant, vacate, and remand in light of the Government's changed position-is both unprecedented and inexplicable. This Court has in recent years occasionally entered a ''GVR'' in light of a position newly taken by the Solicitor General where the United States was the prevailing party below. See, e.g., Stutson v. United States, 516 U.S. ----, 116 S.Ct. 611, --- L.Ed.2d ---- (1996); Schmidt v. Espy, 513 U.S. ----, 115 S.Ct. 43, 130 L.Ed.2d 5 (1994); Wells v. United States, --- U.S. ----, 114 S.Ct. 1609, 128 L.Ed.2d 337 (1994); Reed v. United States, 510 U.S. 1188, 114 S.Ct. 1289, 127 L.Ed.2d 644 (1994); Chappell v. United States, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Even that extension of our earlier practice is in my view unsound. See Stutson, 516 U.S., at ---- - ----, 116 S.Ct., at ---- - ---- (SCALIA, J., dissenting). But we have never before GVR'd simply because the Government, having lost below, wishes to try out a new legal position. The unfairness of such a practice to the litigant who prevailed in the Court of Appeals is obvious. (''Heads I win big,'' says the Government; ''tails we come back down and litigate again on the basis of a more moderate Government theory.'') Today's decision encourages the Government to do what it did here: to ''go for broke'' in the Courts of Appeals, rather than get the law right the first time.

What makes today's action inexplicable as well as unprecedented is the fact that the Government's change...