Scotts Valley Band of Pomo Indians v. United States Dep't of Interior
| Decision Date | 30 September 2022 |
| Docket Number | Civil Action 19-1544 (ABJ) |
| Parties | SCOTTS VALLEY BAND OF POMO INDIANS, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
On May 24, 2019, plaintiff, the Scotts Valley Band of Pomo Indians (“Scotts Valley”), brought this action under the Administrative Procedure Act (“APA”), 5 U.S.C §§ 701-06, against the United States Department of the Interior (“Interior”); David L. Bernhardt, in his official capacity as Secretary of the Interior; Tara Sweeney, in her official capacity as Assistant Secretary for Indian Affairs; and John Tahsuda, in his official capacity as Principal Deputy to the Assistant for Indian Affairs.[1] Compl. [Dkt. # 1]. Plaintiff challenged a February 7, 2019 Indian Lands Opinion (“ILO” or “Tahsuda letter”) issued on behalf of the agency by the then-Principal Deputy to the Assistant Secretary, John Tahsuda, which found that a parcel of land in the City of Vallejo, California, would not qualify for gaming under what is known as the “restored lands” exception in the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C § 2701 et seq. This decision rendered the land ineligible for gaming purposes under the IGRA and brought an end to Scotts Valley's efforts to acquire the land to establish a casino.
The parties have each filed a motion for summary judgment. Plaintiff argues that the agency's decision was arbitrary, capricious, and otherwise not in accordance with law in contravention of the APA, and it requests that the Court remand the ILO to the agency for reconsideration. Pl.'s Mot. for Summ. J. [Dkt. # 48], Mem. of P. & A in Supp. of Pl.'s Mot. for Summ. J. [Dkt. # 48-1] (“Pl.'s Mot.”). Defendants move for judgment in their favor on the grounds that the ILO is procedurally sound, the agency followed its implementing regulations in rendering the decision, and the regulations are based on permissible interpretations of the underlying statutes. Fed. Defs.' Cross-Mot. for Summ. J. [Dkt. # 54], Mem. in Supp. of Fed. Defs.' Cross-Mot. for Summ. J. and in Opp. to Pl.'s Mot. ( ).
For the reasons set forth below, the motions will each be granted in part and denied in part. The Court will enter judgment in favor of defendants on the issues of whether the then-Principal Deputy had the authority to issue the February 7, 2019 Indian Lands Opinion; whether the agency exceeded its authority under the IGRA when it promulgated Part 292, 25 C.F.R. § 292, interpreting the restored lands exception in the statute; and whether, for purposes of the APA, the agency examined the relevant data and set forth a reasoned basis for its decision in the ILO. However, even if one grants the agency's analysis due deference, the application of the well-settled Indian canon of statutory construction that the Court is also required to consider leads to the conclusion that the ILO cannot be sustained. The decision involves the application of an ambiguous term in a regulation promulgated to implement an ambiguous provision in a statute passed for the benefit of Native Americans. Resolving all inferences and doubts in favor of the Band, then, the Court finds that the ILO is arbitrary and capricious, does not give fair consideration to the historical circumstances that severed the Band's connection to its land in the first place, and left the Band in a disadvantageous position compared to other tribes. Therefore, the Court will enter judgment in favor of plaintiff on that issue and remand the ILO to the agency.
Plaintiff argues, among other things, that the agency violated the APA because it exceeded its statutory authority under the Indian Gaming Regulatory Act and the Indian Reorganization Act (“IRA”), 25 U.S.C. § 5101 et seq., when it implemented a regulation to administer the IGRA known as Part 292.
In 1988, Congress enacted the IGRA “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702. Under the IGRA, a tribe may conduct gaming activities only on eligible “Indian lands,” id. § 2710(b)(1), (d)(1), defined to include “all lands within the limits of any Indian reservation” and “any lands title to which is . . . held in trust by the United States for the benefit of any Indian tribe.” Id. § 2703(4)(A-B). However, the IGRA prohibits gaming “on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988,” unless the land falls into one of several enumerated exceptions. Id. § 2719(a). The statutory exception at issue in this case is referred to as the “restored lands” exception; it permits gaming on “lands . . . taken into trust as part of . . . the restoration of lands for an Indian tribe that is restored to Federal recognition.” Id. § 2719(b)(1)(B)(iii); see City of Roseville v. Norton, 348 F.3d 1020, 1024 (D.C. Cir. 2003) (describing IGRA exceptions); 25 C.F.R. § 292.7 (). This exception “helps ensure ‘that tribes lacking reservations when [the IGRA] was enacted are not disadvantaged relative to more established ones.'” Butte County v. Chaudhuri, 887 F.3d 501, 503 (D.C. Cir. 2018), quoting City of Roseville, 348 F.3d at 1030. While the IGRA predicates an important exception to the prohibition on gaming on “the restoration of lands,” it does not go on to define the term. See City of Roseville, 348 F.3d at 1024.
In 2008, the Department of Interior, which administers the IGRA through the Bureau of Indian Affairs (“BIA”), promulgated a set of regulations, found at 25 C.F.R. § 292 (“Part 292”), to “implement section 2719 of IGRA by articulating standards that the Department will follow in interpreting the various exceptions to the gaming prohibition on after-acquired trust lands contained in section 2719 of IGRA.” Final Rule, Gaming on Trust Lands Acquired After October 17, 1988, 73 Fed.Reg. 29354 (May 20, 2008) (“Final Rule”).
Part 292 sets out four criteria that must be satisfied to invoke the restored lands exception. First, the tribe must have once been federally recognized. 25 C.F.R. § 292.7(a). Second, the tribe must have later “lost its government-to-government relationship,” which can be shown by pointing to “[l]egislative termination,” “[c]onsistent historical written documentation from the Federal Government effectively stating it no longer recognized a government-to-government relationship with the tribe,” or “[c]ongressional restoration legislation that recognize[d] the existence of the previous government-to-government relationship.” Id. §§ 292.7(b), 292.9. Third, the tribe must have been “restored to Federal recognition.” Id. § 292.7(c). Fourth, and at issue here, “[t]he newly acquired lands [must] meet the criteria of ‘restored lands' in § 292.11.” Id. § 292.7(d). This requirement concerns the tribe's relationship to the land itself.
If a tribe has been restored pursuant to an act of Congress that also specifies the land that will accompany the restoration, that land automatically qualifies as “restored lands.” Id. § 292.11(a)(1). However, if no land is set aside by legislation or if the tribe is restored other than through an act of Congress, additional requirements must be met for the land to qualify as “restored lands.” See id. § 292.11(a)(2). First, the tribe must demonstrate that the land is “located within the State . . . where the tribe is now located” and that it has a “modern connection[]” to the land. Id. § 292.12(a).[2] Second, the “tribe must demonstrate a significant historical connection to the land.” Id. § 292.12(b). This is defined in the regulation to mean that “the land is located within the boundaries of the tribe's last reservation under a ratified or unratified treaty, or a tribe can demonstrate by historical documentation the existence of the tribe's villages, burial grounds, occupancy or subsistence use in the vicinity of the land.” 25 C.F.R. § 292.2. And finally, the “tribe must demonstrate a temporal connection between the date of the acquisition of the land” and the date when the tribe was federally restored. Id. § 292.12(c).
In 1934, Congress enacted the IRA with the “overriding purpose . . . to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.” Morton v. Mancari, 417 U.S. 535, 542 (1974). Section 5 of the IRA authorizes the Secretary of the Interior to “acquire . . . any interest in lands . . . including trust or otherwise restricted allotments . . . for the purpose of providing land for Indians.” 25 U.S.C. § 5108. Lands taken into trust for an Indian tribe under that provision may be designated as part of the tribe's reservation. Id. § 5110.
In addition to authorizing the Secretary to acquire lands in trust, the IRA granted federally recognized tribes certain privileges and immunities. Of note here, it prohibits the federal government from “promulgat[ing] any regulation or mak[ing] any decision or determination . . . with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.” Id. § 5123(g).
As the lengthy administrative record in this case reflects, the documented history of the Scotts Valley Band of Pomo Indians stretches back to at least the 1800s. Scotts Valley is...
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