Rosebud Sioux Tribe v. McDivitt

• Decision Date: 05 April 2002
• Docket Number: No. 00-2468.,No. 00-2471.,00-2468.,00-2471.
• Citation: 286 F.3d 1031
• Parties: ROSEBUD SIOUX TRIBE, a federally recognized Indian Tribe, Plaintiff-Appellant, Sun Prairie, a Nebraska general partnership, Plaintiff-Appellee, v. James H. McDIVITT, Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior<SMALL><SUP>1</SUP></SMALL>; Gail A. Norton, Secretary of the Interior, U.S. Department of the Interior<SMALL><SUP>2</SUP></SMALL>, Defendants, Concerned Rosebud Area Citizens, a South Dakota non-profit corporation; South Dakota Peace and Justice Center, an unincorporated association; Prairie Hills Audubon Society, a South Dakota non-profit corporation; Humane Farming Association, a California non-profit association, Intervenors-Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

286 F.3d 1031

ROSEBUD SIOUX TRIBE, a federally recognized Indian Tribe, Plaintiff-Appellant, Sun Prairie, a Nebraska general partnership, Plaintiff-Appellee, v. James H. McDIVITT, Acting Assistant Secretary for Indian Affairs, U.S. Department of the Interior¹; Gail A. Norton, Secretary of the Interior, U.S. Department of the Interior², Defendants, Concerned Rosebud Area Citizens, a South Dakota non-profit corporation; South Dakota Peace and Justice Center, an unincorporated association; Prairie Hills Audubon Society, a South Dakota non-profit corporation; Humane Farming Association, a California non-profit association, Intervenors-Defendants-Appellants.

No. 00-2468.

No. 00-2471.

United States Court of Appeals, Eighth Circuit.

Submitted: February 26, 2001.

Filed: April 5, 2002.

COPYRIGHT MATERIAL OMITTED

Terry L. Pechota, argued, Rapid City, SD (Eric Antoine, on the brief), for appellant Rosebud Sioux Tribe.

James B. Dougherty, argued, Washington, DC, for appellants-intervenors.

Todd S. Kimm, argued, Washington, DC (James F. Simon, R. Anthony Rogers, E. Ann Peterson, Stephen Simpson, and Maria Wiseman, on the brief), for Federal appellants.

Gregory A. Fontaine, argued, Minneapolis, MN (Vernie C. Durocher, Jr., Charles M. Thompson, and Brent A. Wilbur, on the brief), for appellee.

Before WOLLMAN,³ Chief Judge, HANSEN⁴ and BYE, Circuit Judges.

BYE, Circuit Judge.

This case arises from the Rosebud Sioux Tribe's lease of land to Sun Prairie for construction of a pork production facility. Because the lease covers land included within the Rosebud Indian Reservation, the Bureau of Indian Affairs (BIA) had to review and approve the lease. Prior to approval, and because such constitutes federal action, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d, mandated preparation of an environmental impact statement (EIS) if the project would result in any significant environmental impact. Accordingly, BIA engaged a contractor to prepare an Environmental Assessment (EA), to predict the likely environmental impact. Based on the EA, BIA determined the project would cause no significant impact which would require the preparation of an EIS. Thereafter, BIA issued a Finding of No Significant Impact (FONSI) and approved the lease, which the Tribe and Sun Prairie executed.

Almost five months later, the former Assistant Secretary for Indian Affairs at the Department of Interior, Kevin Gover (Assistant Secretary), voided the lease saying the FONSI was issued in violation of NEPA. Sun Prairie and the Tribe filed suit against Gover and requested a preliminary and permanent injunction. Several environmental and public interest groups (collectively, the Intervenors) intervened as defendants. The district court granted a preliminary injunction and, after a hearing, a permanent injunction. Rosebud Sioux Tribe v. Gover, 104 F.Supp.2d 1194 (D.S.D. 2000). The defendants and the Tribe now appeal. Because we find Sun Prairie lacks standing to pursue its claims, we vacate the district court's order granting a permanent injunction, and remand with instructions to dismiss the complaint for lack of jurisdiction.

I. BACKGROUND

In the spring of 1998, the Tribe and Sun Prairie agreed to negotiate a land lease for the development of a multi-site hog production facility on tribal trust land. The BIA office in South Dakota arranged for the preparation of a project EA which was finalized in August, 1998. Based upon the EA, the BIA Superintendent issued a FONSI and authorized the Tribe to sign the lease. The lease between the Tribe and Sun Prairie was executed on September 8, 1998, and approved by the Aberdeen Area Director for the BIA on September 16, 1998. Construction on the project began on or about September 21, 1998.

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 Sun Prairie's 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.

On November 23, 1998, the intervenors in this action sued the federal government in the United States District Court for the District of Columbia, seeking to suspend or enjoin BIA's approval of the lease. Concerned Rosebud Area Citizens v. Babbitt, 34 F.Supp.2d 775 (D.D.C.1999). On January 27, 1999, Assistant Secretary Gover sent a letter to the Tribe voiding the lease because the FONSI did not fully comply with NEPA. The parties to the D.C. litigation then entered into a joint stipulation of dismissal and the case was dismissed without prejudice.

The Tribe and Sun Prairie initiated the present action challenging the Assistant Secretary's authority and decision to void the lease. The district court issued a temporary restraining order on February 11, 1999, which was later extended. Eventually, the district court granted a permanent injunction restraining defendants from "taking any actions, other than seeking relief by appeal or other appropriate judicial relief, which actions would have the purpose or consequence of interfering or attempting to interfere with the construction or operation of the project that is the subject of this action." Rosebud Sioux Tribe, 104 F.Supp.2d at 1213-14. The Government and Intervenors have appealed from the permanent injunction.

Subsequent to entry of the permanent injunction, the Tribe held general tribal elections and the composition of the tribal council changed. The reconstituted tribal council no longer favored the hog production project, and determined the Assistant Secretary's decision to void the lease should be upheld. The Tribe requested, and we granted, permission to realign itself as an appellant.

II. DISCUSSION

Sun Prairie claims the Assistant Secretary's decision to void the lease was taken in violation of (1) 25 U.S.C. §§ 1a, 81 & 415; (2) NEPA, and its enabling regulations, 40 C.F.R. §§ 1500-1508; and (3) the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470-470x-6. The Intervenors contend Sun Prairie lacks standing to assert these claims. Specifically, the Intervenors argue the interests which Sun Prairie seeks to protect do not fall within the zone of interests intended to be protected or regulated by the statutes in question. The Intervenors characterize Sun Prairie's interests as solely economic, while Sun Prairie characterizes its interests as economic and procedural.

"The question of standing `involves... constitutional limitations on federal-court jurisdiction.'" Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). "To satisfy the case or controversy requirement of Article III, which is the irreducible constitutional minimum of standing, a plaintiff must, generally speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Id. (internal quotations omitted). The Intervenors concede Sun Prairie has satisfied the constitutionally-mandated elements of standing.

In addition to constitutional requirements, standing also involves prudential limits on the exercise of federal jurisdiction. Bennett, 520 U.S. at 162, 117 S.Ct. 1154. Prudential limits require a plaintiff to show the grievance arguably falls within the zone of interests protected or regulated by the statutory provision invoked in the suit. Id.

Sun Prairie brought its suit under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, which provides for judicial review of federal agency action. Cent. S.D. Coop. Grazing Dist. v. Sec'y of the U.S. Dep't of Agric., 266 F.3d 889, 894 (8th Cir.2001) (hereafter Grazing). The APA is a procedural statute and provides only the "framework for judicial review of agency action." Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir.1996) (citing Defenders of Wildlife v. Adm'r, EPA, 882 F.2d 1294, 1303 (8th Cir.1989)). A suit brought under the APA must be based upon the violation of a separate statute whose violation forms the basis for the complaint. Preferred Risk Mut. Ins. Co., 86 F.3d at 792. Thus, in order to establish standing, a plaintiff seeking judicial review must also show the injury complained of falls within the zone of interests sought to be protected by the statutory provision. Bennett, 520 U.S. at 162-63, 117 S.Ct. 1154.

In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.

Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987).

"Whether a plaintiff's interest is arguably... protected ... by the statute within the meaning of the zone-of-interests test is to be determined not by reference to the overall purpose of the Act in question ... but by reference to the particular provision of law upon which the plaintiff relies." Bennett, 520 U.S. at 175-76, 117 S.Ct. 1154 (internal quotations omitted). We therefore analyze, in turn, each of the statutory provisions upon which Sun Prairie relies.

A. 25 U.S.C. §§ 1a, 81 & 415.

Sun Prairie first asserts standing under three statutes involving the relationship between Indian tribes and the federal government. 25 U.S.C. §§ 1a, 81 & 415. Although Sun Prairie has interests which are threatened by the Assistant Secretary's actions, none fall within the zone of interests sought to be protected by §§ 1a, 81 and 415. Section 1a merely allows the Secretary of the Interior to delegate certain powers and duties to the Commissioner of Indian...