Nation v. Salazar

• Decision Date: 10 April 2013
• Docket Number: Case No. 11–2656–JAR–DJW.
• Citation: 939 F.Supp.2d 1137
• Parties: WYANDOTTE NATION, Plaintiff, v. Kenneth L. SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, Defendant, and State of Kansas, ex rel. Derek Schmidt, Attorney General, Intervening Defendant.
• Court: U.S. District Court — District of Kansas

939 F.Supp.2d 1137

WYANDOTTE NATION, Plaintiff,

v. Kenneth L. SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, Defendant,andState of Kansas, ex rel. Derek Schmidt, Attorney General, Intervening Defendant.

Case No. 11–2656–JAR–DJW.

United States District Court, D. Kansas.

April 10, 2013.

William W. Hutton, Kansas City, KS, Benjamin J. Lambiotte, Garvey Schubert Barer, Washington, DC, David McCullough, Doerner, Saunders, Daniel & Anderson, LLP, Norman, OK, for Plaintiff.

Kristofor R. Swanson, U.S. Department of Justice, Washington, DC, for Defendant.

Christopher J. Sherman, Mark S. Gunnison, Payne & Jones, Chtd., Overland Park, KS, Jeffrey A. Chanay, Stephen O. Phillips, Office of Attorney General, Topeka, KS, for Intervening Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the Secretary”), seeking an order from this Court compelling the Secretary to accept title to certain land and hold it in trust for the Nation's benefit, as specifically required by Public Law 98–602, 98 Stat. 3149 (1984) (“P.L. 98–602”), under both the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(a) and the Mandamus Act, 28 U.S.C. § 1361. The State of Kansas (“the State”) was permitted to intervene as of right under Fed.R.Civ.P. 24(a).¹ This matter is before the Court on the Nation's Motion for Summary Judgment (Doc. 60) and the Secretary and State's cross-motions for summary judgment (Docs. 66, 69). The Court heard oral arguments on March 14, 2013, at which time the Secretary was directed to supplement the Administrative Record and the matter was taken under advisement. For the reasons explained in detail below, the Court denies the Nation's motion and grants in part and denies in part the Secretary and the State's cross-motions, retaining jurisdiction over the case until the agency issues a final decision on the Nation's pending land-into-trust application.

I. Statutory and Regulatory BackgroundA. Land–Into–Trust Statutes Generally

If authorized by an act of Congress, the Secretary of the Interior may hold title to land in trust for the benefit of an Indian tribe.² Generally, such trust acquisition statutes fall into one of two categories. “Discretionary” acquisitions are those for which Congress has delegated to the Secretary the determination of whether the acquisition is appropriate under the circumstances.³ The most common discretionary acquisition statute is the Indian Reorganization Act of 1934.⁴ Department of the Interior regulations set forth factors the Secretary is to consider in exercising his discretionary authority to acquire land in trust.⁵ In contrast, “mandatory acquisitions” are those for which Congress has directed the acquisition of land into trust, often identifying a specific parcel or certain eligibility requirements for the land.⁶

When the acquisition statute is “mandatory,” most of the regulatory factors applicable to discretionary acquisitions do not apply.⁷ For example, the notice and comment provisions requiring that the Department notify state and local governments of the fee-to-trust application are not applicable, ⁸ and compliance with the National Environmental Policy Act ⁹ is not required. Although not required to consider the factors listed in Department regulations, the Secretary still interprets the regulations as requiring public notice of a decision to acquire land in trust,¹⁰ and internal Department guidelines require the Secretary to conduct a contaminant survey on the lands. While the Department of Interior's Assistant Secretary for Indian Affairs has generally delegated decision-making authority for fee-to-trust applications to the Department's regional offices, the Assistant Secretary has not delegated that authority with respect to applications that seek to have the United States accept land in trust for gaming purposes. ¹¹

B. Public Law 98–602

Congress passed Public Law 98–602 in 1984.¹² The acquisition statute is mandatory, and

provid[ed] for the appropriation and distribution of money in satisfaction of judgments awarded to the Wyandottes by the Indian Claims Commission and the Court of Claims. The judgments were compensation for lands in Ohio that the Wyandottes had ceded to the United States in the 1800s. Under the 1984 law, Congress directed that 20% of the allocated funds be used and distributed in accordance with a series of directives. Key among those directives ... was one providing that a sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe.¹³

The statute states, in relevant part,

(b) Twenty percent of the funds allocated to the Wyandotte Tribe of Oklahoma pursuant to section 103(b) shall be used and distributed in accordance with the following general plan:

(1) A sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe.... ¹⁴

II. Undisputed Material Facts

Because the Nation's suit involves claims under the APA, “[t]he task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” ¹⁵ “As all material facts are within the administrative record, no material issues of fact are in dispute.” ¹⁶ The record review principle applies with equal force to claims of undue delay brought under 5 U.S.C. § 706(1), as in this case.¹⁷ Because the Secretary has yet to make a final decision on the Nation's application, the parties have filed motions for summary judgment to address the merits. Judicial review of the Nation's Complaint, however, is still limited to the agency record lodged by the Secretary.¹⁸ Accordingly, the Court does not consider the two extra-record affidavits attached to the Nation's motion for summary judgment, as they are not included in the Administrative Record lodged by the Secretary.¹⁹

In November 1992, the Nation purchased approximately 10.5 acres of land near Park City, Kansas (“Park City Land”) with $25,000 withdrawn from its main investment account.²⁰ Park City is located north of Wichita along U.S. Interstate Highway 135.²¹

On January 21, 1993, the Nation submitted an application requesting the Department of the Interior (the “Department”) take the Park City Land into trust for the nation pursuant to Public Law 98–602.²² On February 19, 1993, the Tulsa Field Solicitor's office sent a memorandum to the Director of the Muskogee Area Office stating that Public Law 98–602 did not impose a mandatory duty on the Secretary to take the Park City Land into trust and that the monies awarded to the Nation under Public Law 98–602 were not in settlement of a land claim.²³ The memorandum notes that, at the time, the Nation had agreed to pursue the application under the Secretary's discretionary authority, making the question relating to Public Law 98–602 “moot.” ²⁴

In December 1995, due to the Solicitor's opinion, the Nation withdrew its request to have the Park City Land taken into trust, electing instead to have property in Kansas City, Kansas (the “Shriner Tract”) taken into trust under the mandatory provisions of Public Law 98–602.²⁵ As discussed further below, the Department ultimately accepted in trust for the Nation the Shriner Tract.²⁶ That decision and the Nation's planned use for the land were subject to more than a decade of litigation in this Court and in the United States Court of Appeals for the Tenth Circuit.²⁷

On April 13, 2006, the Nation filed an application with the Bureau of Indian Affairs Eastern Oklahoma Region to accept the Park City Land in trust for the benefit of the Wyandotte Nation.²⁸ The Nation intends to use the Park City Land to operate a casino.²⁹ In its 2006 application, the Nation requested that the Park City Land be accepted in trust under discretionary authority granted to the Secretary of the Interior by the Indian Reorganization Act., 25 U.S.C. § 465.³⁰

In May 2008, the Nation wrote the Department's Regional Director and took the position that the Park City Land was purchased with Public Law 98–602 funds, and argued that the Department could accept the Park City Land in trust under the authority of Public Law 98–602.³¹ The Nation explained that, while it did not agree with the 1993 Solicitor's opinion, it “determined that its best legal course to take in vindicating its rights granted under Pub. L. 98–602 would be available on land in Kansas City, Kansas.” ³² The Nation explained that because it prevailed on legal disputes involving the Shriner Tract that indirectly resolved the Park City Land purchase, it determined it was appropriate to re-apply for the placement of the land into trust under Public Law 98–602.³³ The Nation followed the May 2, 2008 letter with a “Supplement to Application for the Secretary of the Interior/BIA Muskogee Region to take Land Located in Park City, Kansas In Trust for the Wyandotte Nation and to Determine Such Trust Lands May Be Used for Gaming Purposes.” ³⁴

On January 30, 2009, after completing its initial review of the Nation's Park City Land application, the Eastern Oklahoma Region forwarded the application and a regional recommendation to the Department of the Interior's Central Office in Washington, D.C.³⁵ Specifically, the Muskogee Area Office transmitted the trust application to the Department with a cover letter stating, “[t]he Region's evaluation of the request and supporting documents reveals that P.L. 98–602 authorizes the mandatory acquisition of the purported property for the Nation. Based upon the above findings, the Region has determined that the acquisition should be approved as a mandatory acquisition pursuant to P.L. 98–602...