Sokaogon Chippewa Community v. Babbitt

• Decision Date: 11 June 1996
• Docket Number: No. 95-C-659-C.,95-C-659-C.
• Citation: 929 F. Supp. 1165
• Parties: SOKAOGON CHIPPEWA COMMUNITY (MOLE LAKE BAND OF LAKE SUPERIOR CHIPPEWA); Lac Courte Oreille 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

929 F. Supp. 1165

SOKAOGON CHIPPEWA COMMUNITY (MOLE LAKE BAND OF LAKE SUPERIOR CHIPPEWA); Lac Courte Oreille 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.

June 11, 1996.

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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 Superior.

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

Mark A. Cameli, Assistant U.S. Attorney, 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 applied to the Department of the Interior in October 1993, asking the United States to acquire in trust a greyhound racing facility in Hudson, Wisconsin for conversion into an off-reservation casino. The department denied plaintiffs' application after nearly two years of deliberations at the local and national levels. Plaintiffs responded by filing this civil action challenging the department's decision, 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 contend that by denying their application for improper political purposes, defendants violated duties imposed on them to acquire property for Indian gaming under 25 U.S.C. § 465 (the Indian Reorganization Act of 1934), and 25 U.S.C. § 2719 (the Indian Gaming Regulatory Act). Because plaintiffs' suit challenges agency action, it is premised on the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

The case is before the court on defendants' motions 1) for a protective order; 2) to limit judicial review to the administrative record; and 3) to strike a portion of the administrative record. The motions for a protective order and to limit judicial review are intended to stave off plaintiffs' assertions that the court should not follow the usual rule of relying solely on the administrative record when reviewing an agency decision under the APA. Plaintiffs argue that the strong likelihood of improper political influence on the Department of the Interior makes the rule inapplicable in this case. They seek to conduct discovery to determine the extent of any inappropriate use of political leverage.

Also before the court are plaintiffs' motions for partial summary judgment on their third and seventh claims and defendants' cross motion for summary judgment on those same claims. (Plaintiffs' third claim rests on allegations that John Duffy, Counselor to the Secretary of the Interior, acted improperly in reopening the statutory consultation process under 25 U.S.C. § 2719 in connection with their application. In their seventh claim, plaintiffs assert that Michael Anderson, the Department of the Interior Deputy Assistant Secretary who denied their application, lacked the authority to do so.)

Finally, plaintiffs have asked the court to take judicial notice of certain State of Wisconsin Elections Board records and to strike a declaration and several affidavits filed by defendants.

I conclude that plaintiffs have not made a showing sufficient to justify further inquiry beyond the administrative record. Although plaintiffs have shown that congressional and presidential contacts were made with the Department of the Interior, they have not shown that the contacts could be deemed improper. Defendants' motion for partial summary judgment will be granted on plaintiffs' third and seventh claims. John Duffy had the authority to entertain further comments from Indian tribes opposed to plaintiffs' application and did not violate the Indian Gaming Regulatory Act in doing so. Michael Anderson had the authority under Department of the Interior policies to make a decision on plaintiffs' application. Plaintiffs' motion to strike a declaration and several affidavits filed by defendants will be denied because defendants need those documents to respond to allegations that could not have been anticipated when the administrative record was compiled. Plaintiffs' request for judicial notice will be granted because defendants have not opposed the motion and the information is public knowledge. Defendants' motion to strike a portion of the administrative record will be granted because the pertinent document was not before the Department of the Interior at the time the department was considering plaintiffs' application.

On June 5, 1996, plaintiffs submitted a motion to take judicial notice of a May 22, 1996 memorandum and decision of the United States Department of the Interior and Assistant Secretary-Indian Affairs Ada Deer that pertains to the department's consideration of a request by the Mashantucket Pequot Indian Tribe of Connecticut to take certain land into trust pursuant to 25 U.S.C. § 465. This decision has no effect on the resolution of this case. The decision does not support plaintiffs' contention that the views of local elected officials are unimportant. Even if that were the case under 25 U.S.C. § 465, the case in front of this court involves both 25 U.S.C. §§ 465 and 2719. Section 2719 mentions specifically that the department should consult with appropriate state and local officials. Even if the May 22 decision shows that it is the practice of Assistant Secretary Deer to adopt the findings and recommendations of her professional staff regarding trust acquisitions, it does not follow that she must accept those recommendations in all instances as plaintiffs argue. She retains decisional authority and can deviate from the decisions of her subordinates when she believes it necessary.

For the purpose of deciding the pending motions, I find from the parties' proposed findings of fact that the following facts are undisputed.

UNDISPUTED FACTS

Plaintiffs Sokaogon Chippewa Community, Lac Courte Oreilles Band of Lake Superior Chippewa and Red Cliff Band of Lake Superior Chippewa are Indian tribes acknowledged by the United States, with reservations in Forest County, Sawyer County and Bayfield County, Wisconsin, respectively. Defendant Bruce C. Babbitt is Secretary of the United States Department of the Interior; defendant Michael J. Anderson is Deputy Assistant Secretary-Indian Affairs; defendant John J. Duffy is Counselor to the Secretary; and defendant George Skibine is Director, Indian Gaming Management Staff, of the Department of the Interior.

On October 12, 1993, plaintiffs submitted an application to the Minnesota Area Office of the Bureau of Indian Affairs of the Department of the Interior for approval of an off-reservation casino to be located in Hudson, Wisconsin at a site that is presently the St. Croix Meadows greyhound racing facility. A request to establish an off-reservation gaming facility must be approved by the Secretary of the Interior in accordance with the Indian Gaming Regulatory Act, which provides at 25 U.S.C. § 2719(b)(1)(A) that off-reservation gaming is permitted only if:

The secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State where such gaming activity is to be conducted concurs in the secretary's determination;....

Even if the secretary finds that the proposed off-reservation gaming establishment is in the best interest of the applicant tribes and would not be detrimental to the surrounding community and the governor concurs in that determination, the secretary must decide whether to exercise his discretion to acquire the land in trust pursuant to the Indian Reorganization Act, 25 U.S.C. § 465.

The Secretary of the Interior has delegated decisional authority to the Assistant Secretary-Indian Affairs for applications concerning off-reservation gaming. In turn, the Assistant Secretary-Indian Affairs has delegated responsibility for initiating the consultations required by § 2719(b)(1)(A) and for receiving, analyzing and making recommendations on gaming applications, while retaining final decisional authority.

In a March 24, 1994, reply to a letter dated January 10, 1994 from Myron Ellis of the Minnesota Indian Gaming Association, expressing his organization's opposition to plaintiffs' application, Assistant Secretary-Indian Affairs Ada Deer stated that the Minnesota Area Office had "initiated the Section 20 consultation required" by § 2719, advised Ellis that the Minnesota Area Office was reviewing plaintiffs' application and explained that the area office proceedings were "the only opportunity for the tribes to express their views and objections to the proposed trust acquisition." Pursuant to § 2719, the Minnesota Area Director of the Bureau of Indian Affairs of the Department of the Interior attempted to gauge the impact of plaintiffs' proposed casino on the surrounding community by sending out consultation letters soliciting comments on plaintiffs' proposed application. The Minnesota Indian Gaming Commission and all the Minnesota Indian tribes submitting comments expressed strong opposition to plaintiffs' plan. Most of the Wisconsin...