Michigan Gambling Opposition (Michgo) v. Norton

• Decision Date: 23 February 2007
• Docket Number: Civil Action No. 05-01181 (JGP).
• Citation: 477 F.Supp.2d 1
• Parties: MICHIGAN GAMBLING OPPOSITION ("MichGO"), a Michigan non-profit corporation, Plaintiff, v. Gale NORTON, in her official Capacity as Secretary of the United States Department of the Interior, et. al., Defendants. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, a federally-recognized Indian Tribe, Intervenor.
• Court: U.S. District Court — District of Columbia

Page 1

477 F.Supp.2d 1

MICHIGAN GAMBLING OPPOSITION ("MichGO"), a Michigan non-profit corporation, Plaintiff, v. Gale NORTON, in her official Capacity as Secretary of the United States Department of the Interior, et. al., Defendants Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, a federally-recognized Indian Tribe, Intervenor.

Civil Action No. 05-01181 (JGP).

United States District Court, District of Columbia.

February 23, 2007.

COPYRIGHT MATERIAL OMITTED

Rebecca A. Womeldorf, Spriggs & Hollingsworth, Washington, DC, Daniel P. Ettinger, Joseph A. Kuiper, Robert J. Jonker, Warner, Norcross & Judd, LLP, Grand Rapids, MI, for Plaintiff.

Gina L. Allery, Patricia Miller, United States Department of Justice, Washington, DC, for Defendants.

Conly J. Schulte, Shilee Therkelsen Mullin, Monteau & Peebles, LLP, Omaha, NE, Demian Shipe Ahn, Edward C. Dumont, Wilmer Cutler Pickering Hale & DO/T, LLP, Washington, DC, Nicholas C. Yost, Sonnenschein, Nath & Rosenthal, LLP, San Francisco, CA, for Intervenor.

OPINION

PENN, District Judge.

This comes before the Court on the United States Motion to Dismiss or in the Alternative for Summary Judgment [# 331] ("Def.'s Mot."), and the Match-Be-Nash-She-Wish Band of Pottawatomi Indians' Motion for Judgment on the Pleadings or, in the Alternative for Summary Judgment [# 32] ("Intv.'s Mot.").¹

Defendants argue, among other things, that there are no genuine issues of material fact in dispute which merit this case proceeding to trial. Def.'s Memo, at 1. For nearly identical reasons, intervenor also argues for dismissal of the Complaint. Intv.'s Mot., at 2.

Plaintiff opposes the dispositive Motions on the following grounds:² "First," according to plaintiff, defendants' classification of the proposed casino site as an "initial reservation" is inconsistent with the requirements imposed by the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq. Pl.'s Opp., at 1. "Second," plaintiff argues that defendants have violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. by failing to issue an environmental impact statement ("EIS"), and instead issuing a finding of no significant impact ("FONSI"). Id. "Third," plaintiff argues that defendants cannot legally authorize Class III gaming because they have not yet secured a tribal-state gaming compact. Id. at 2. And fourth, plaintiff argues that "Defendants have no constitutionally valid authority on which to acquire land in trust for [intervenor]." Id.

Having considered the dispositive Motions, plaintiffs Opposition, the Replies thereto, and the entire record, the Court concludes that plaintiff has raised no genuine issues of material fact and defendants and intervenor are entitled to judgment as a matter of law. A full explanation of the Court's conclusions follows.

BACKGROUND

This dispute arises from defendants' decision to place two parcels of land ("Bradley Property")³ into trust for intervenor which intervenor contends is vital to its economic development, self determination and economic sufficiency. Motion to Intervene [# 7] ("Mot. to Intr."), at 2; Def.'s Memo, at 1. Intervenor expects that the Bradley Property, which is located "approximately 25 miles from Kalamazoo and approximately 30 miles from the City of Grand Rapids" in Wayland Township, Michigan, will bring a large number of jobs and income to its approximately 300 members if converted into a casino.⁴ Intv.'s Answer, at ¶ 69. Moreover, intervenor expects that the Bradley Property will "attract an average of approximately 8,500 visitors per day, and that approximately 1,800 people will be employed at the facility." Id. at ¶ 60.

On August 23, 1999, intervenor, descendants of an Indian tribe who lived in a village near the present-day City of Kalamazoo, Michigan in the late 1700's, gained official recognition from defendants, the U.S. government.⁵ 63 Fed.Reg. 56936 ("Final Determination to Acknowledge the Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan"). Intervenor submitted an application to defendants for a proposed casino on August 7, 2001, seeking to have defendants take into trust the 147acre Bradley Property. Complaint, at ¶ 6; Pl.'s Opp., at 2. Defendants prepared and issued a FONSI on February 27, 2004, based on an Environmental Assessment ("EA") that defendants published in December 2003. Intv.'s Answer, at ¶ 3, 52; Complaint, at ¶ 3. Publication of the EA was preceded by a seventy-five day public comment period. Intv.'s Memo, at 6. Defendants then issued a notice of their intent to take the Bradley Property into trust on May 13, 2005. Pl.'s Opp., at 4.

On June 13, 2005, plaintiff, a Michigan non-profit corporation that opposes the proliferation of gambling venues, filed the Complaint alleging that defendants have violated IGRA, NEPA and the Constitution's non-delegation doctrine. Complaint, at ¶¶ 1, 4, 12. The Court heard oral argument on the dispositive Motions on November 29, 2006.

STANDARD OF REVIEW

I. Motion to Dismiss

Dismissal is appropriate when considering a motion to dismiss only when the moving party has established that the nonmoving party can prove no facts in support of its claims which entitles it to relief. Bell v. Exec. Comm. of the United Food & Commer. Workers Pension Plan for Emples., 191 F.Supp.2d 10, 15 (D.D.C.2002) (citing In re Swine Flu Immunization Products Liability Litigation, 279 U.S.App. D.C. 366, 880 F.2d 1439, 1442 (D.C.Cir.1989)) (in turn citing Fed.R.Civ.P. 12(b)(6)). Generally, a complaint need only contain "a short and plain statement that [provides] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (citation omitted). "[T]he allegations of the complaint should be construed favorably to the pleader." Aerovias de Mex., S.A. de CV. v. Nat'l Mediation Bd., 211 F.Supp.2d 1 (D.D.C.2002). That is, a plaintiffs allegations of fact must be accepted by the Court as true and all reasonable inferences should be construed in the plaintiffs favor. Marshall County Health Care Auth. v. Shalala, 300 U.S.App. D.C. 263, 988 F.2d 1221, 1225 (D.C.Cir.1993). "If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure." Mortensen v. First Federal Say. & Loan Asso., 549 F.2d 884, 891 (3d Cir.1977) (citing 5 C. Wright and A. Miller, Federal Practice and Procedure § 1350 (1969)). A court "will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation" when addressing a motion to dismiss for failure to state a claim. Kelley v. Edison Twp., 2006 WL 1084217, **4-5, 2006 U.S. Dist. LEIS 23510, at *15 (D.N.J. April 25, 2006) (citation omitted).

II. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings is virtually identical to a motion to dismiss for failure to state a claim. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006) (citation omitted). Under this legal standard as well, "the court must accept as true the complaint's factual allegations and draw all inferences in the plaintiffs favor." Id. (quoting Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir.2005) (other citations and internal quotation marks omitted)). "A complaint should not be dismissed on the pleadings unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citations omitted).

III. Motion for Summary Judgment

A court should grant a motion for summary judgment only when it determines that "reasonable jurors could [not] find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]" Griffin v. Acacia Life Ins. Co., 151 F.Supp.2d 78, 79-80 (D.D.C.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court should dismiss the case under this standard "when evidence on file shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citations and internal quotation marks omitted).

[A] genuine dispute about material facts exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

While a nonmovant is not required to produce evidence in a form that would be admissible at trial, the evidence still must be capable of being converted into admissible evidence. Otherwise, the objective of summary judgment-to prevent unnecessary trials-would be undermined.

Id. at 80 (internal citations, alterations and quotation marks omitted) (emphasis added). As with the preceding motions, "[w]hen ruling on a motion for summary judgment, [ ] Court[s] must view the evidence in the light most favorable to the non-moving party." Worth v. Jackson, 377 F.Supp.2d 177, 180-81 (D.D.C.2005) (citing Bayer v. United States Dep't of Treasury, 294 U.S.App. D.C. 44, 956 F.2d 330, 333 (D.C.Cir.1992)). Notwithstanding, "the non-moving party cannot rely on mere allegations or denials ..., but ... must set forth specific facts showing that there [are] genuine issues for trial." Id. (citation and internal quotation marks omitted) (alterations in original).

ANALYSIS

I. Classification of the Bradley Property as "Initial Reservation"

The Court first addresses plaintiff's claim that defendants' classification of the Bradley Property as an "initial reservation" violates the statutory limitations imposed by IGRA on Indian tribes engaged in gaming activities. Complaint, at ¶ 6. Defendants and intervenor argue that plaintiff has misread IGRA. Intv.'s Memo, at 45; Def.'s Memo, at 40.

"Congress' central purpose in enacting IGRA...