Preservation of Los Olivos v. Dept. of Interior, Case No. CV 06-1502 AHM (CTx).
| Citation | 635 F.Supp.2d 1076 |
| Decision Date | 08 July 2008 |
| Docket Number | Case No. CV 06-1502 AHM (CTx). |
| Court | U.S. District Court — Central District of California |
| Parties | PRESERVATION OF LOS OLIVOS, et al., Plaintiff, v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Defendants. |
John M. Rochefort, Lisa Gilford, Alston and Bird LLP, Los Angeles, CA, for Plaintiff.
Judith Rabinowitz, U.S. Department of Justice, Roger J. Marzulla, Marzulla Law, Washington, DC, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Plaintiffs Preservation of Los Olivos ("POLO") and Preservation of Santa Ynez ("POSY") are two citizen groups from the Santa Ynez Valley region of California. They filed this action seeking review of two orders of defendant Department of the Interior, Interior Board of Indian Appeals (IBIA): one dated February 3, 2006 and one dated June 29, 2007 (collectively, "the IBIA Order"). In those orders the IBIA held that Plaintiffs lack standing to challenge the decision of the Bureau of Indian Affairs ("BIA") to approve the application of the Santa Ynez Band of Chumash Mission Indians ("Tribe") to have 6.9 acres of land taken into federal trust. Plaintiffs seek a declaratory judgment that the IBIA erred in dismissing their administrative appeal. They also seek injunctive relief precluding defendants from enforcing a BIA Order dated January 14, 2005, which approved the application, until the IBIA has reviewed the merits of that appeal.
Plaintiffs have filed a motion for summary judgment on their First Amended Complaint. Their motion requests the Court to reverse and vacate the IBIA Order and to direct the IBIA to issue an order granting them standing to pursue their administrative appeal.
For the reasons stated below, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiffs' motion for summary judgment. The Court VACATES the IBIA Order and REMANDS this case to the IBIA for consideration of Plaintiffs' standing under the principles set forth in this ruling. Specifically, the IBIA must articulate its reasons (functional, statutory, or otherwise) for its determination of standing, taking into account the distinction between administrative and judicial standing and the regulations governing administrative appeals.
The Tribe is the only federally recognized Chumash Tribe in the United States. Today, it occupies the Santa Ynez Indian Reservation, located in Santa Barbara County. Of the 139 acres of the Reservation, about 100 acres are developed, containing residential housing, the tribal center, a health center, and a casino, while the remaining acreage is unsuitable for development. Santa Ynez Valley Concerned Citizens v. Pac. Reg'l Dir., BIA, 42 BIA 189, 190 (Feb. 3, 2006) ("Santa Ynez I").
On November 8, 2000, the Tribe submitted an application to the BIA asking it to take into trust 6.9 acres of land contiguous to the Reservation. Trust status for the land would make Indian property on the land immune to taxation by state or local governments unless expressly authorized by Congress. See Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 128, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993) ().
The regulation that implements the Indian Reorganization Act's ("IRA") provisions concerning trust acquisitions, 25 C.F.R. Part 151, provides that the Secretary of the Interior may take land into trust for a tribe "(1) when the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or (2) when the tribe already owns an interest in the land; or (3) when the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing." 25 C.F.R. § 151.3.
In its initial application, the Tribe proposed to develop the 6.9 acres as a tribal administration and community center. After the remains of a Chumash burial site and intact Chumash village were discovered on the property, the Tribe revised its trust application. Its revised application proposed (1) a cultural center and museum, (2) a 3.5 acre commemorative park that would focus on the history of the Chumash people and act as a preservation buffer for the archeological site, and (3) a 27,600-square foot, two-story commercial retail building that would help generate revenues for the upkeep of the cultural center, museum and park. Santa Ynez I at 190-91, 200. The BIA issued a public notice of the trust application and solicited comments from various local and state government offices. Certified Administrative Record ("AR") 4134.
As required by the National Environmental Policy Act ("NEPA"), the BIA assessed the environmental impact of taking the land into trust. NEPA requires a federal agency to prepare a detailed Environmental Impact Statement (EIS) for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Federal regulations permit an agency that is planning a major federal action to conduct a less exhaustive Environmental Assessment (EA) beforehand, in order to determine whether the proposed action will "significantly affect" the environment so as to require an EIS in the first place. 40 C.F.R. §§ 1501.4(b), 1508.9. If the EA shows that the proposed action will have no significant impact, "the agency may issue a finding of no significant impact (`FONSI') and then execute the action." Sierra Club v. Babbitt, 65 F.3d 1502, 1505 (9th Cir.1995); see also 40 C.F.R. §§ 1508.9, 1508.13.
The BIA conducted a Phase I Contaminant Survey. Santa Ynez I, 42 IBIA at 191. The survey noted that the property is adjacent to a fuel service station that is a listed Leaking Underground Storage Take ("LUST") site. However, relying on a November 2001 report, the survey noted that soil and groundwater testing indicated that the contamination posed no immediate threat to the Property. Hence, the survey found no hazardous substances on the Property. The Tribe prepared an EA, which the BIA adopted and disseminated for public comment. Based on the EA, on September 22, 2004 the BIA issued a FONSI, finding that the decision to take the land into trust would have no significant impact on the environment and that the preparation of an EIS was unnecessary. Santa Ynez I, 42 IBIA at 191. The finding of no significant impact was also circulated for public review.
On January 14, 2005, the BIA approved the Tribe's trust application. In its Notice of Decision, the BIA Pacific Regional Office reviewed in summary fashion the comments it had received on the trust application. AR 4134-4235. Then the BIA decision reviewed the factors set forth in 25 C.F.R. § 151.10 for evaluating a trust application. AR 4135-4139. Specifically, the BIA considered (1) the need of the Tribe for additional land; (2) the purposes for which the land will be used; (3) the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; (4) jurisdictional problems and potential conflicts of land use which may arise; (5) whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of land in trust status; and (6) whether or not contaminants or hazardous substances may be present on the property. AR 4135.
The BIA also reviewed the steps it had taken to comply with NEPA, namely the preparation and circulation of the EA and the FONSI. AR 4139. Finally, in the conclusion section of the Notice, the BIA referred to an enclosed list of entities to which it was sending the notice. AR 4140. It stated: "Should any of the below listed known interested parties feel adversely affected by this decision, an appeal may be filed ... in accordance with the regulations in 43 CFR 4.310-4.340 (copy enclosed)." Id.
On February 22, 2005, Plaintiffs POLO and POSY, along with two other organizations that are not parties here1 filed a "Notice of Appeal" of the BIA's decision.
The appeal requested that the IBIA vacate the BIA decision to take the property into trust and remand the matter to the Pacific Regional Director. The appellants included a "Statement of Reasons" that set forth their grounds for appeal, namely: (1) the BIA's decision failed to comply with NEPA because its decision was based on an inadequate Environmental Assessment prepared by the Tribe, and a comprehensive environmental impact statement was required; (2) the BIA failed to consider all facts in its analysis of the factors for on-reservation acquisitions set forth in 25 C.F.R. § 151.10; (3) the BIA failed to address the potential gaming uses of the land and the applicability of 25 U.S.C. § 2719, which the Tribe initially cited as authority for this trust acquisition2; and (4) the BIA's failure to comply with 25 C.F.R. Part 151 was arbitrary and capricious. (First Am. Compl., Ex. E.)
The Regional Director and the Tribe moved to dismiss the appeal, arguing that the Appellants lacked standing. In opposition to that motion, Plaintiffs relied on the declarations of nine individuals who were members of POLO or POSY: Doug Herthel, Kathryn Cleary, S. Chris Rheinschild, Michelle Griffoul, Michael Byrne, Keith Saarloos, Zoe Carter, Ed Hamer, and Jon Bowen, as well as a supplemental declaration from Doug Herthel. Reply, Exs. 1, 2 (AR 2300-2301, 2597-2602, 2605-2607, 2609-2616).
Doug Herthel's supplemental declaration provided information about the declarants' membership in POLO and POSY. Herthel, the president of POLO, stated that Bowen,...
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