Sokaogon Chippewa Community v. Babbitt, 95-C-659-C.

• Citation: 961 F.Supp. 1276
• Decision Date: 19 March 1997
• Docket Number: No. 95-C-659-C.,95-C-659-C.
• Parties: SOKAOGON CHIPPEWA COMMUNITY (MOLE LAKE BAND OF LAKE SUPERIOR CHIPPEWA); Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; and Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin, Plaintiffs, v. Bruce C. BABBITT, Secretary, United States Department of the Interior; Michael J. Anderson, Deputy Assistant Secretary, United States Department of the Interior; John J. Duffy, Counselor to the Secretary, United States Department of the Interior; and George Skibine, Director, Indian Gaming Management Staff, United States Department of the Interior, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

961 F.Supp. 1276

SOKAOGON CHIPPEWA COMMUNITY (MOLE LAKE BAND OF LAKE SUPERIOR CHIPPEWA); Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; and Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin, Plaintiffs, v. Bruce C. BABBITT, Secretary, United States Department of the Interior; Michael J. Anderson, Deputy Assistant Secretary, United States Department of the Interior; John J. Duffy, Counselor to the Secretary, United States Department of the Interior; and George Skibine, Director, Indian Gaming Management Staff, United States Department of the Interior, Defendants.

No. 95-C-659-C.

United States District Court, W.D. Wisconsin.

March 19, 1997.

COPYRIGHT MATERIAL OMITTED

Kevin C. Potter, Brennan, Steil, Basting & MacDougall. S.C., Madison, WI, for Sokaogon Chippewa Community, Mole Lake Band of Lake Superior, Lac Courte Oreilles Band of Lake.

Robert H. Friebert, Friebert Finerty & St. John, S.C., Milwaukee, WI, for Red Cliff Band of Lake Superior.

Mark A. Cameli, Asst. U.S. Atty., Madison, WI, for Bruce C. Babbitt, U.S. Dept of Interior, Michael J. Anderson, John J. Duffy and George Skibine.

OPINION AND ORDER

CRABB, District Judge.

Plaintiffs are three Chippewa Indian tribes that submitted applications to the United States Department of the Interior in October 1993 pursuant to 25 U.S.C. § 2719 (the Indian Gaming Regulatory Act), requesting that the United States acquire in trust a greyhound racing facility in Hudson, Wisconsin for conversion into an off-reservation casino. After two years of deliberations at the local and national levels, Michael J. Anderson, Deputy Assistant Secretary — Indian Affairs for the Department of the Interior, denied plaintiffs' application in a letter dated July 14, 1995, citing the strong opposition of surrounding communities, elected state officials and neighboring tribes, the detrimental impact of the proposed casino on the profitability of the casino run by the St. Croix Tribe of Wisconsin in Turtle Lake, Wisconsin and the potentially harmful impact of the proposed casino on the nearby St. Croix National Scenic Riverway. Plaintiffs responded by filing this civil action, alleging that improper political pressure from high-level congressional and executive branch officials tainted the decisionmaking process and led to the rejection of their application.

Plaintiffs raise nine claims in their complaint, alleging that defendants violated 25 U.S.C. § 2719 and 25 U.S.C. § 465 (the Indian Reorganization Act of 1934) in a number of ways. In an order entered June 11, 1996, I granted defendants' motion for partial summary judgment on plaintiffs' third and seventh claims and held that judicial review of defendants' decision would be limited to the administrative record. Sokaogon Chippewa Community v. Babbitt, 929 F.Supp. 1165 (W.D.Wis.1996). After that order was entered, the parties agreed that the remaining issues in the case could be decided as an appeal from an administrative record on written briefs and supplemental proposed findings of fact. See Order of June 17, 1996 (Dkt.# 61).

The case is now before the court on that appeal. In addition, plaintiffs have moved for reconsideration and vacation of the June 11 order and have asked that the court consider evidence extrinsic to the administrative record and take judicial notice of several public documents. Upon reexamination of the June 11 order, I am persuaded that I erred in ruling that judicial review should be limited to the administrative record and that defendants were entitled to a protective order shielding them from extra-record discovery. At the time, it seemed that plaintiffs had not brought forward enough evidence of potential improper political influence on Deputy Assistant Secretary Anderson's decision to warrant extra-record inquiry. After reconsideration, I recognize that it is necessary to accord greater weight to the inferences that can be drawn from the evidence plaintiffs did present. Accordingly, I will grant plaintiffs' motion for reconsideration of the June 11 order with respect to that portion of the order limiting judicial review to the administrative record and granting defendants a protective order. Plaintiffs will be permitted to conduct limited discovery of agency decisionmakers before this court rules on their remaining claims.

Plaintiffs' motion to reconsider the decision in the June 11 order to grant defendants summary judgment on plaintiffs' third and seventh claims will be denied because I find no error in those assessments. Plaintiffs' initial motion to consider evidence extrinsic to the administrative record and to take judicial notice of several documents outside the administrative record will be granted.¹ Plaintiffs' three supplementary motions to consider evidence extrinsic to the record will be denied. I will stay a decision on plaintiffs' administrative appeal until plaintiffs have had an adequate opportunity to complete discovery and depose the relevant individuals.

For the purpose of deciding plaintiffs' motion for reconsideration, I rely on the undisputed facts as recorded in the June 11 order. See Sokaogon Chippewa Community, 929 F.Supp. at 1169-1172. To the extent I have considered evidence outside of those facts in evaluating plaintiffs' motion, the additional evidence will be highlighted in the opinion below.

OPINION

A. Motion to Reconsider Decision to Limit Judicial Review to the Administrative Record.

1. Discussion of political pressure in June 11, 1996 order

A brief review of the June 11 order, Sokaogon Chippewa Community, 929 F.Supp. 1165, is necessary to set the stage for a discussion of plaintiffs' motion to reconsider the decision to limit judicial review to the administrative record. In analyzing plaintiffs' allegations of political impropriety, I began with the presumption that congressional and presidential oversight of agency decisionmaking is beneficial to democracy because it creates a certain level of accountability for non-elected agency officials. Id. at 1173. At the same time, however, overzealous involvement by congressional or presidential staff jeopardizes the independence of agency decisionmakers. If these decisionmakers are beholden to specific political interests, democracy suffers to the extent that agency decisions are based on purely political factors rather than on those factors set out by Congress in statutes such as 25 U.S.C. §§ 465 and 2719. Because distinctions between permissible oversight and impermissible political pressure can be difficult to draw, courts rely on the type of agency proceeding to set ground rules for permissible contact. Id. at 1174. In quasi-adjudicative proceedings, even an appearance of bias is considered damaging to the integrity of the adjudicative process and contacts between agency decisionmakers and congressional or presidential officials are strictly taboo. In quasi-legislative proceedings, the standard is less stringent because some contact is necessary to allow the agency to gather the factual information necessary to make a fully informed decision.

The Department of the Interior's decisionmaking authority under §§ 465 and 2719 does not fit neatly into either the quasi-adjudicative or quasi-legislative categories. Sokaogon Chippewa Community, 929 F.Supp. at 1175. Nonetheless, a strict "appearance of bias" standard does not seem applicable to § 2719 decisions, which require the Department of the Interior to consider a wide range of information. Thus, interaction between the department and congressional and presidential officials concerning an application such as plaintiffs' is not improper per se. But that does not mean that it is permissible for White House staff to dictate the outcome of a decision that is delegated by Congress to the Department of the Interior. Courts must inquire whether improper legislative or executive contacts have tainted agency decisions impermissibly.

Generally, courts limit their reviews of agency decisions to the administrative record. However, where a party can make a "strong showing of bad faith or improper behavior," it may be entitled to extra-record discovery and examination of agency personnel. Sokaogon Chippewa Community, 929 F.Supp. at 1177 (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825-26, 28 L.Ed.2d 136 (1971)). The case law applying the Overton Park "strong showing" standard does not make dear exactly what evidence suffices to constitute a "strong showing." All that can be divined from the cases interpreting Overton Park is the principle that a court must scrutinize each matter carefully and individually while holding plaintiff to a significant evidentiary burden. Id. at 1178. Analyzing this case in such fashion, I concluded that plaintiffs had not met their evidentiary burden and granted defendants' motion for a protective order and to limit judicial review of Deputy Assistant Secretary Anderson's decision to the administrative record.

2. Analysis of "strong showing" requirement as articulated in June 11, 1996 order

The court's discussion of the permissible bounds of congressional and presidential involvement in agency decisionmaking in the June 11 order was sound, Sokaogon Chippewa Community, 929 F.Supp. at 1172-1178, but did not give full consideration to the inferences to be drawn from the evidence presented by plaintiffs. The factual inferences that were drawn in defendants' favor can be drawn in plaintiffs' favor also. When that is done, there is sufficient reason to suspect that improper political influence affected plaintiffs' application so as to allow plaintiffs an opportunity to further uncover evidence of that influence. Courts should weigh the limited means plaintiffs have at this stage of the proceedings to uncover political impropriety in determining whether they have made a "strong showing" of improper influence.

Courts grant agency decisionmakers substantial deference both on...