Sault Ste. Marie Tribe of Chippewa Indians v. U.S.

• Decision Date: 03 May 2002
• Docket Number: No. 99-2444.,99-2444.
• Citation: 288 F.3d 910
• Parties: SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, Little Traverse Bay Bands of Odawa Indians, Intervenor Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

288 F.3d 910

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee Little Traverse Bay Bands of Odawa Indians, Intervenor Defendant-Appellee.

No. 99-2444.

United States Court of Appeals, Sixth Circuit.

Argued April 26, 2001.

Decided and Filed May 3, 2002.

Kevin J. Moody (argued and briefed), Louis B. Reinwasser (briefed), Miller, Canfield Paddock & Stone, Lansing, MI, for Plaintiff-Appellant.

Charles R. Gross (argued and briefed), Office of U.S. Attorney, Grand Rapids, MI, George Forman (briefed), Forman & Prochaska, San Rafael, CA, James A. Bransky (argued and briefed), Traverse City, MI, for Defendants-Appellees.

Before: NELSON and BATCHELDER, Circuit Judges; FEIKENS, District Judge.^*

OPINION

DAVID A. NELSON, Circuit Judge.

This is an Indian Gaming Regulatory Act case in which the plaintiff tribe, invoking the Administrative Procedure Act as a jurisdictional predicate for its suit, seeks judicial review of Interior Department determinations that allowed the intervenor Indian bands to operate a gambling casino in Northern Michigan. There is a threshold question as to whether the plaintiff has standing to sue.

In summary judgment proceedings that straddled a remand from this court, the district court determined (a) that the defendants were entitled to summary judgment on the merits of the case and (b) that the plaintiff was entitled to prevail on the issue of standing. Upon review, we conclude that judgment ought to have been rendered against the plaintiff on the latter issue. We shall therefore vacate the judgment entered by the district court and remand the case with instructions to dismiss for want of jurisdiction.

I

The plaintiff, Sault Ste. Marie Tribe of Chippewa Indians, is a federally recognized Indian tribe that operates casinos on Indian lands¹ in Michigan. One of the Sault Tribe's casinos is located in St. Ignace, Michigan, on the northern verge of the Straits of Mackinac.

The intervenor defendant, Little Traverse Bay Bands of Odawa Indians, is a consortium of Indian bands that apparently has been restored to federal recognition.² The State of Michigan has entered into a compact with the Little Traverse Bands to permit Little Traverse to own and operate a casino on eligible Indian lands in Emmet or Charlevoix Counties, Michigan.

In June of 1999 Little Traverse acquired five acres of land in or near Petoskey, Emmet County, Michigan, with a view to establishing a casino there. Petoskey, a Rand McNally highway map discloses, is located about 40 miles southwest of St. Ignace and about 19 miles west of the closest interchange on Interstate Highway 75. I-75 is the major north-south highway connecting the Straits of Mackinac with large population centers in the southern part of Michigan.

In July of 1999, after asking the United States Department of the Interior to approve gaming at Petoskey and requesting that the site be taken into trust by the United States for the benefit of the Little Traverse Bay Bands, Little Traverse began using the site for class III gaming operations.³ These gaming operations continued for about six weeks, at which point they were temporarily halted by a federal court injunction.

The Interior Department subsequently granted Little Traverse's requests, determining both that the Petoskey site would be taken into trust and that Little Traverse could conduct gaming operations there. The casino was reopened in January of 2000 and has been operating ever since, as we understand it.

Meanwhile, the Sault Tribe commenced the present action in the United States District Court for the District of Columbia. The case was transferred in October of 1999 to the United States District Court for the Western District of Michigan. There the Sault Tribe moved for summary judgment on the ground, among others, that the Interior Department had neglected to follow its own regulations before making a final decision to take the Petoskey site into trust. Little Traverse was allowed to intervene as a party defendant, whereupon it filed a pleading styled "Motion to Dismiss or for Summary Judgment in Favor of Defendants."

In the summary judgment branch of its motion, Little Traverse maintained, among other things, that "Plaintiff lacks standing to challenge the Department of the Interior's alleged failure to comply with the notice and comment requirements of 25 C.F.R. § 151.10 before accepting the site of the [Petoskey] Casino into trust for [Little Traverse] because Plaintiff has no right under that regulation to receive notice or submit comments...." The thrust of Little Traverse's argument was that the Sault Tribe had not suffered an invasion of a legally protected interest and had no interest that came within the zone of interests sought to be protected by the statute and regulations. The United States likewise moved for summary judgment and challenged the Sault Tribe's standing with respect to the Interior Department's decision to take the Petoskey site into trust.

In December of 1999 the district court entered an opinion and order (a) pretermitting the issue of standing, (b) denying the Sault Tribe's summary judgment motion, (c) granting summary judgment to the United States and Little Traverse on the merits of the dispute, and (d) dismissing the action. See Sault Ste. Marie Tribe of Chippewa Indians v. United States, 78 F.Supp.2d 699 (W.D.Mich.1999).

A timely appeal to our court followed. In its appellate brief and at oral argument, Little Traverse contended — as it had not below — that the Sault Tribe lacked standing to sue because the operation of a casino at Petoskey would cause no "injury in fact."⁴ Concluding that the Supreme Court's opinion in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), left us no alternative, we remanded the case to the district court for resolution of the question whether the Sault Tribe has standing to bring this suit. See Sault Ste. Marie Tribe of Chippewa Indians v. United States, 9 Fed. Appx. 457, 2001 WL 549409 (6th Cir.2001) (unpublished).

On remand, the district court entered an opinion and order resolving the issue of standing in favor of the plaintiff tribe. The order did not alter the summary judgment previously entered on the merits of the case, and the appeal of that judgment is still pending before us.

II

The "standing-to-sue" requirement has two facets that are relevant here. Under one facet a party which, like the Sault Tribe, seeks to obtain judicial review of agency action pursuant to § 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702, must be able to demonstrate what the Supreme Court calls "prudential standing." This means that the interest sought to be protected must "arguably" be within the "zone of interests" protected or regulated by the statute in question. Under the other facet of the requirement, there must be "Article III standing" — which means that there must be one of the "Cases" or "Controversies" spoken of in Article III, Section 2 of the Constitution. It is axiomatic that there cannot be a case or controversy, in the constitutional sense, without an "injury in fact." See generally National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479, 488-95, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998).

In the matter before us now the Sault Tribe asserts that it will be adversely affected by competition from a casino located 40 miles away from the St. Ignace casino. The district court held that the commercial interests of potentially competing tribes were "arguably within the zone of interests" protected by the Indian Gaming Regulatory Act, and the court thus concluded that the Sault Tribe met the criteria for prudential standing.

Supreme Court caselaw provides considerable support for the conclusion that the "zone of interests" concept is sufficiently broad to embrace the interests of an actual or potential competitor. See National Credit Union, 522 U.S. at 488-92, 118 S.Ct. 927 (discussing cases). In Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 947 (7th Cir.2000), on the other hand, the Seventh Circuit observed that "it is hard to find anything in [the Indian Gaming Regulatory Act] that suggests an affirmative right for nearby tribes to be free from economic competition." Be that as it may, we shall assume, for purposes of analysis, that the Sault Tribe meets the "zone of interests" requirement.

As to Article III standing, Supreme Court caselaw has established three elements as "the irreducible constitutional minimum of standing...." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The elements are these:

"First, the plaintiff must have suffered an `injury in fact' — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) `actual or immanent, not "conjectural" or "hypothetical."' Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be `fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.' Third, it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Id. at 560-61, 112 S.Ct. 2130 (citations omitted).

The Supreme Court reaffirmed this formulation in the recent case of Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

The elements of Article III standing are not simply pleading requirements. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.; see 13A Charles Alan Wright, Arthur R....