Rosebud Sioux Tribe v. Gover, Civ. 99-3003.
| Decision Date | 03 February 2000 |
| Docket Number | Civ. 99-3003. |
| Parties | 2000 D.S.D. 12 ROSEBUD SIOUX TRIBE, a federally recognized Indian Tribe; and Sun Prairie, a Nebraska general partnership, Plaintiffs, v. Kevin GOVER, Assistant Secretary, Indian Affairs, U.S. Dept. of Interior; and Bruce Babbitt, Secretary of the U.S. Dept. of Interior, Defendants, Concerned Rosebud Area Citizens, South Dakota Peace and Justice Center, Prairie Hills Audubon Society, and Humane Farming Association, Intervenors. |
| Court | U.S. District Court — District of South Dakota |
Kenneth R. Dewell, Terry L. Pechota, Viken, Viken, Pechota, Leach & Dewell, Rapid City, SD, Charles M. Thompson, Brent A. Wilbur, Neil K. Fulton, May, Adam, Gerdes & Thompson, Pierre, SD, Vernle C. Durocher, Jr., Gregory A. Fontaine, Dorsey & Whitney, Minneapolis, MN, for plaintiffs.
Cheryl Schrempp Dupris, U.S. Attorney's Office, Pierre, SD, R. Anthony Rogers, U.S. Department of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, for defendants.
ORDER GRANTING PERMANENT INJUNCTIVE RELIEF
[¶ 1] On March 3, 1999, the Court entered an order granting a preliminary injunction in this matter, Doc. 53. The parties were permitted to file simultaneous supplemental briefs on issues related to permanent injunctive relief. On April 12, 1999, plaintiffs filed a supplemental brief, Doc. 65. Defendants and intervenors filed motions for summary judgment, Docs. 68 and 73, which the Court deemed to be procedurally improper and denied as moot, Doc. 109. The Court also denied defendants' and intervenors' requests to supplement the administrative record.1 On April 21, 1999, Defendants and intervenors filed supplemental briefs, Docs. 79 and 81. The findings of fact from the Court's order granting a preliminary injunction are restated below.
[¶ 2] In the spring of 1998, the Rosebud Sioux Tribe (the "Tribe") and Sun Prairie agreed to negotiate a land lease (the "lease") for the development of a multi-site hog production facility (the "project") on tribal trust land in Mellette County, South Dakota. A public informational meeting regarding the project was held in Norris, South Dakota, on June 15, 1998. The BIA office in South Dakota contracted with RESPEC of Rapid City, South Dakota, to prepare a draft Environmental Assessment ("EA") for the project which draft EA was released in late June of 1998. The comment period expired on July 29, 1998. Based on the final EA that was released on Friday, August 14, 1998, BIA Rosebud Agency Superintendent Larry Burr issued a Finding of No Significant Impact ("FONSI") that same day and notice of the FONSI was published in local newspapers of general circulation the following week.
[¶ 3] On August 19, 1998, the Rosebud Sioux Tribal Council adopted Tribal Resolution # 98-203 which authorized the execution of the lease for the project. The lease between the Tribe and Sun Prairie was executed on September 8, 1998. On September 16, 1998, Cora Jones, Aberdeen Area. Director for the BIA, approved the lease pursuant to 25 U.S.C. §§ 81 and 415 and 25 C.F.R. § 162.5 (1998). The lease was recorded with the BIA Aberdeen Area Land Title and Records Office on September 17, 1998. On or about September 21, 1998, the Tribe and Sun Prairie commenced construction on so-called site 1 of phase I of the project. The project consists of two phases. Phase I consists of three finishing sites to be used to fatten hogs for market. Phase II consists of five sow sites and five additional finishing sites. As of the date of the hearing on plaintiffs' application for a preliminary injunction, the Tribe, to some extent, and Sun Prairie to a great extent, had expended approximately $5,000,000 on construction for site 1, which was substantially complete.
[¶ 4] Letters from various parties concerned about the project were sent to Area Director Jones, Assistant Secretary Gover (the "Assistant Secretary"), and others during the month of September of 1998, but no administrative appeal of the lease approval was ever served or filed. No letter of protest even referred to the lease. Comments from the Environmental Protection Agency ("EPA") on the draft EA were not received until September 1, 1998, even though a copy of the draft EA was received by EPA during the first or second week of July. The EPA had an opportunity to timely respond but failed to do so. Additional EPA comments on the project were received on October 15, 1998, after the lease had already been approved. Local BIA officials met with EPA staff on at least four different occasions between September of 1998 and January of 1999 to address the concerns EPA had with the project.
[¶ 5] On November 23, 1998, intervenors in this present action sued the federal government in the United States District Court for the District of Columbia, seeking to suspend or enjoin the effectiveness of the BIA's approval of the lease and alleging violations of the National Environmental Protection Act ("NEPA") and the National Historic Preservation Act ("NHPA"). Concerned Rosebud Area Citizens v. Babbitt, 34 F.Supp.2d 775 (D.D.C. 1999) (hereinafter "D.C. litigation"). The government moved to transfer venue to the District of South Dakota, arguing that the Tribe and Sun Prairie were indispensable parties,2 and submitted affidavits of then Rosebud Sioux Tribal President Norman G. Wilson and Rich Bell, general partner of Sun Prairie, that set forth the interests of the Tribe and Sun Prairie in participating in the litigation. The court in the District of Columbia denied the government's motion to transfer. The administrative record related to the project EA and FONSI was received by the Department of Justice on January 25 and 26, 1999. On January 27, 1999 — one day after the government filed an answer (drafted by present counsel for defendants in this action in the District of South Dakota) in the D.C. litigation denying any violations of NEPA or NHPA in connection with the project — Assistant Secretary Gover sent a letter to the Tribe stating that the BIA's approval of the lease for the project was void for failing to fully comply with NEPA. The parties to the D.C. litigation then entered into a joint stipulation of dismissal on January 28, 1999, which cited the Assistant Secretary's letter voiding the lease approval, and the court dismissed that case without prejudice.
[¶ 6] The Tribe and Sun Prairie initiated the instant action, challenging the Assistant Secretary's authority and decision to void the lease and seeking a declaration that the EA prepared for the project complied with NEPA. A telephonic hearing on plaintiffs' motion for a temporary restraining order, Doc. 3, was held on February 9, 1999. The Court orally granted the motion during the telephonic hearing and issued a written temporary restraining order, Doc. 16, on February 11, 1999. The Court, pursuant to Fed.R.Civ.P. 65(a)(2), ordered the consolidation of the hearing on the application for a preliminary injunction with the trial on the merits.3 A hearing was held on February 17-18, 1999. Prior to the hearing, the Court granted a motion to intervene, Doc. 21. At the conclusion of the hearing, the Court orally extended the temporary restraining order for ten days, pursuant to Fed.R.Civ.P. 65(b). The Court also issued a second temporary restraining order, Doc. 47, on February 18, 1999, nunc pro tunc February 26, 1999, prior to granting the preliminary injunction on March 3, 1999.
[¶ 7] In an attempt to expediently and effectively address the initial matters posed by this litigation, the Court granted intervenors' motion to intervene, Doc. 21, to ensure that all parties with an interest in this matter were adequately represented. In deciding to allow intervention, the Court gave great weight to the fact that, in the D.C. litigation, intervenors were plaintiffs. The Court now will briefly analyze the question of intervenors' standing in this litigation even though the parties did not choose to address this issue and were not asked to address this issue in their simultaneous briefs.
[¶ 8] An association may sue on behalf of its members if it demonstrates that (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization's purpose, and (3) the claims asserted and relief requested do not require the participation of individual members in the lawsuit. See United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 1534, 134 L.Ed.2d 758 (1996). In this case, intervenors are citizens' groups who, as mentioned, were plaintiffs in a related lawsuit in the United States District Court for the District of Columbia.
[¶ 9] As to the first element, to meet Article III's "case or controversy" requirement, it is the burden of each intervenor to prove: (1) injury in fact, (2) causation, and (3) redressability. See, e.g., Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069, 1073 (8th Cir. 1999) citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 1016-17, 140 L.Ed.2d 210 (1998). Additionally, the Court must consider the prudential requirements for standing, including a requirement that intervenors' claims fall within the "zone of interests" protected by the relevant statutory or constitutional provision. See, e.g., Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1125 (8th Cir.1999). Intervenors allege that the "injury in fact" is the potential nullification of the order approving the joint stipulation for dismissal filed in the D.C. litigation . The stipulation was premised on the Assistant Secretary's letter purporting to void the lease between the Tribe and Sun Prairie and purporting to prevent further construction of the project...
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