Gila River Indian Cmty. v. U.S.

• Decision Date: 03 March 2011
• Docket Number: Nos. CV–10–1993–PHX–DGC,CV–10–2138–PHX–DGC.,CV–10–2017–PHX–DGC,s. CV–10–1993–PHX–DGC
• Citation: 776 F.Supp.2d 977
• Parties: GILA RIVER INDIAN COMMUNITY, a federally recognized Indian tribe; Delvin John Terry, Celestino Rios, Brandon Rios, Damon Rios, and Cameron Rios, members of the Gila River Indian Community; the City of Glendale and Michael Socaciu and Gary Hirsch, residents of Glendale; Speaker of the House Kirk Adams, House Majority Leader John McComish, House Majority Whip Andy Tobin, and Senate Majority Leader Chuck Gray, in their official capacities as members of the Arizona Legislature; and the State of Arizona, Plaintiffs,v.UNITED STATES of America; United States Department of the Interior; Kenneth L. Salazar, in his official capacity as Secretary of the Interior; Larry Echo Hawk, in his official capacity as Assistant Secretary for Indian Affairs; and Tohono O'odham Nation, a federally recognized Indian tribe, Defendants.
• Court: U.S. District Court — District of Arizona

776 F.Supp.2d 977

GILA RIVER INDIAN COMMUNITY, a federally recognized Indian tribe; Delvin John Terry, Celestino Rios, Brandon Rios, Damon Rios, and Cameron Rios, members of the Gila River Indian Community; the City of Glendale and Michael Socaciu and Gary Hirsch, residents of Glendale; Speaker of the House Kirk Adams, House Majority Leader John McComish, House Majority Whip Andy Tobin, and Senate Majority Leader Chuck Gray, in their official capacities as members of the Arizona Legislature; and the State of Arizona, Plaintiffs,

v.UNITED STATES of America; United States Department of the Interior; Kenneth L. Salazar, in his official capacity as Secretary of the Interior; Larry Echo Hawk, in his official capacity as Assistant Secretary for Indian Affairs; and Tohono O'odham Nation, a federally recognized Indian tribe, Defendants.

Nos. CV–10–1993–PHX–DGC

CV–10–2017–PHX–DGC

CV–10–2138–PHX–DGC.

United States District Court, D. Arizona.

March 3, 2011.

Elizabeth Ann Alongi, Douglas A. Jorden, Jorden Bischoff & Hiser PLC, Scottsdale, AZ, for Plaintiffs Branson Rios, Cameron Rios, Damon Rios, and Delvin John Terry.Linus Everling, Thomas L. Murphy, Gila River Indian Community, Pima-Maricopa Tribe Law Office, Sacaton, AZ, Merrill C. Godfrey, Jason Travis Hauter, James P. Tuite, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, Lawrence Jay Rosenfeld, Brian J. Schulman, Greenberg Traurig LLP, Phoenix, AZ, for Plaintiff Gila River Indian Community.Peter T. Limperis, Jose de Jesus Rivera, Haralson Miller Pitt Feldman & McAnally PLC, Phoenix, AZ, Audrey E. Moog, Dominic F. Perella, Hogan Lovells LLP, Washington, DC, Craig Douglas Tindall, Office of the City Attorney, Glendale, AZ, for Plaintiff City of Glendale.Brian McCormack Bergin, Rose Law Group, Scottsdale, AZ, for Russell Pearce.Samuel Franklin Daughety, Jonathan Landis Jantzen, Tohono O'odham Nation, Office of Attorney General, Sells, AZ, Brian H. Fletcher, Danielle Spinelli, Seth P. Waxman, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, for Tohono O'odham Nation.Joseph Andrew Kanefield, Office of Governor Janice K. Brewer, Phoenix, AZ, for Janice K. Brewer.Kristofor Swanson, U.S. Dept. of Justice, Washington, DC, Joseph Nathanael Watson, U.S. Dept. of Justice, Environmental & Natural Resources Division, Washington, DC, for United States Department of the Interior, U.S., Kenneth Lee Salazar, and Larry Echo Hawk.G. Michael Tryon, Office of the Attorney General, Civil Division, Phoenix, AZ, for State of Arizona.

ORDER

DAVID G. CAMPBELL, District Judge.

This case concerns a July 23, 2010 decision by the United States Department of the Interior to accept in trust for the benefit of the Tohono O'odham Nation a 54–acre parcel of unincorporated land surrounded by the City of Glendale, Arizona. The Nation plans to build a Las Vegas style casino and resort on the property—plans that have evoked vigorous opposition by Glendale, Arizona legislative and executive branch leaders, and another Indian tribe. Plaintiffs ask the Court to set aside the Department's decision as invalid under statutes dealing with Indian lands and gaming, as well as the United States Constitution.

At the outset, it is important for the Court to note what is not at issue in this case. This case does not concern appropriate limits on Indian gaming. This case is not about whether the federal government, as a matter of good governance, should show greater deference to the wishes of state and local voters and leaders. This case is not about who promised what to whom when gaming laws and compacts were adopted in the past. This case is not even about whether a Las Vegas style casino in the middle of Glendale is a good idea. Federal district courts are not commissioned to roam broadly through the social landscape implementing their own views of good public policy. The questions this Court must decide are narrow and legal: was the Department's decision to take the land into trust for the benefit of the Nation “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act, U.S.C. § 706(2)(A), and did it violate the United States Constitution or the Indian Gaming Regulatory Act?

The parties have filed motions for summary judgment. Docs. 84, 85, 86, 88, 95, 98. The Court heard extensive oral arguments on February 17, 2011. For reasons that follow, the Court concludes that Plaintiffs have provided no legal basis to set aside the Department of the Interior's decision.

I. Factual Background.

The O'odham Indians (formerly the Papago) lived for centuries along the banks of the Gila River in southwestern Arizona. In 1882, the federal government established for the O'odham people a 22,000–acre reservation near Gila Bend, Arizona. The reservation was reduced to roughly 10,000 acres in 1909. H.R. Rep. 99–851, at 4 (1986).

In 1960, the federal government completed construction of Painted Rock Dam ten miles downstream from the Gila Bend reservation. The dam was built to provide flood protection for the City of Yuma and others living south of the reservation. The O'odham were told that flooding from the dam would occur so infrequently as not to impair their ability to farm the reservation land, but flooding on the reservation between 1978 and 1984 far exceeded the projections made when the dam was built. Floodwaters destroyed a large farm developed at tribal expense and effectively precluded all economic use of reservation lands. Id. at 4–6.

Congress responded in 1986 by enacting the Gila Bend Indian Reservation Lands Replacement Act (the “Gila Bend Act” or the “Act”), Pub.L. No. 99–503, 100 Stat. 1798 (Oct. 20, 1986). The purpose of the Act was to replace reservation land affected by the Dam, and otherwise to “promote the economic self-sufficiency of the O'odham Indian people.” Id. § 2(4). Under the Act, the Tohono O'odham Nation (the “Nation”) transferred 9,880 acres within the Gila Bend reservation to the United States in return for $30 million to purchase replacement land. Id. §§ 4(a), 6(c). Where certain requirements were met, the Act required the Secretary of the Interior to take up to 9,880 acres of purchased land into trust for the benefit of the Nation, a step that would effectively make the purchased land part of the Nation's reservation. Id. § 6(d).

In August 2003, the Nation purchased a 135–acre parcel of land near 91st and Northern Avenues in Maricopa County. AR4435, 4908–19. The purchase was made through a corporation wholly-owned by the Nation. Id. The land is part of an unincorporated county island surrounded by the City of Glendale.

On January 28, 2009, the Nation announced plans to use the land for gaming purposes and filed with the Department of the Interior (“DOI”) an application to have the land taken into trust under the Gila Bend Act. AR4341–4907. The Nation claimed that the land would be taken into trust as part of “a settlement of a land claim” for purposes of the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(B)(i), and therefore would be excepted from IGRA's general prohibition against gaming on reservation lands acquired after October 17, 1988. AR4360–61, 4373–80. Consistent with regulations implementing IGRA, 25 C.F.R. §§ 292.3, 292.5, the Nation requested that DOI issue an “Indians lands opinion” confirming that, once held in trust, the 135–acre parcel met the requirements of IGRA's “settlement of a land claim” exception for gaming purposes. AR3589–90.

The Nation withdrew its request for an Indians lands opinion on July 17, 2009. AR2163–64. On March 12, 2010, due to an ongoing state-court lawsuit over whether the City of Glendale previously had annexed a portion of the 135–acre parcel, the Nation requested that DOI accept only “Parcel 2” of the 135–acre tract in trust and hold the remainder of the application in abeyance pending resolution of the state-court case. AR758–62. Parcel 2 consists of 54 acres on the westernmost part of the 135–acre tract.

DOI issued its decision on July 23, 2010, concluding that the legal requirements under the Gila Bend Act for taking Parcel 2 into trust had been satisfied. AR3–10; see 75 Fed.Reg. 52550–01, 52550 (Aug. 26, 2010). The decision will be referred to in the remainder of this order as “the Trust Decision.” Consistent with the Nation's withdrawal of its request for an Indian lands opinion, the Trust Decision did not determine the Nation's eligibility to game on Parcel 2 under IGRA. Id.

Suits challenging the Trust Decision have been brought by the City of Glendale, the Gila River Indian Community (the “Community”), and individual members of the Community (the “Terry and Rios Plaintiffs”). The State of Arizona and members of the Arizona Legislature (the “Legislators”) have intervened as Plaintiffs, and the Nation has intervened as a Defendant. All Plaintiffs seek declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. §§ 701–706. Docs. 57, 58, 74, 89, 121. The claims challenge DOI's decision to take Parcel 2 into trust under Section 6 of the Gila Bend Act, and its failure to determine the Nation's eligibility to game on Parcel 2 under IGRA. Id. Glendale and the State assert that the Gila Bend Act, as applied, violates the Tenth Amendment and the Indian Commerce Clause of the United States Constitution. Docs. 57, 121. The Legislators assert Tenth Amendment and IGRA claims. Doc. 84.¹

II. Standing.

To sue in federal court, a plaintiff must have standing under Article III of the United States Constitution, that is, the plaintiff “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). The party invoking federal jurisdiction bears the burden of establishing the three elements of constitutional standing. See Lujan v. Defenders of Wildlife, 504...