South Dakota v. U.S. Dept. of Interior

• Citation: 423 F.3d 790
• Decision Date: 06 September 2005
• Docket Number: No. 04-2309.,04-2309.
• Parties: State of SOUTH DAKOTA; City of Oacoma, South Dakota; Lyman County, South Dakota, Plaintiffs/Appellants, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Aurene Martin, Acting Assistant Secretary, Indian Affairs; Bill Benjamin, Acting Regional Director, Great Plains Regional Office, BIA; Cleve Her Many Horses, Superintendent, Lower Brule Agency, BIA; James McDivitt, Deputy Assistant Secretary, Indian Affairs, Defendants/Appellees, Lower Brule Sioux Tribe, Interested Party.
• Court: U.S. Court of Appeals — Eighth Circuit

423 F.3d 790 State of SOUTH DAKOTA; City of Oacoma, South Dakota; Lyman County, South Dakota, Plaintiffs/Appellants,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; Aurene Martin, Acting Assistant Secretary, Indian Affairs; Bill Benjamin, Acting Regional Director, Great Plains Regional Office, BIA; Cleve Her Many Horses, Superintendent, Lower Brule Agency, BIA; James McDivitt, Deputy Assistant Secretary, Indian Affairs, Defendants/Appellees,
Lower Brule Sioux Tribe, Interested Party. No. 04-2309. United States Court of Appeals, Eighth Circuit. Submitted: March 14, 2005. Filed: September 6, 2005.

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John P. Guhin, argued, Assistant Attorney General, Pierre, SD, for appellant.

Thomas L. Sansonetti, argued, Assistant Attorney General, U.S. Department Of Justice, Washington, DC (Judith Rabinowitz, Ellen Durkee and Lisa E. Jones, U.S. Department of Justice on the brief), for appellee.

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.

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WOLLMAN, Circuit Judge.

The State of South Dakota, City of Oacoma, and Lyman County (collectively referred to as the State) appeal from the district court's¹ grant of summary judgment in favor of the Department of the Interior (the Department), upholding the Secretary of the Interior's² decision to use his authority based on section 5 of the Indian Reorganization Act (IRA), 25 U.S.C. § 465, to take certain land into trust for the Lower Brule Sioux Tribe. We affirm.

I.

In 1990, the Lower Brule Sioux Tribe sought to have 91 acres of off-reservation land that it had purchased taken into trust. The land is located within the municipal limits of the city of Oacoma, some seven or eight miles south of the Tribe's reservation and adjacent to Interstate 90 near exit 260. The Department approved its request, and the Interior Board of Indian Appeals dismissed the resulting appeal. The State filed a claim in the district court, seeking review of the Secretary's action and contending that 25 U.S.C. § 465 was an unconstitutional delegation of legislative power. The district court concluded that the statute was constitutional, but held that it was without jurisdiction to review the remaining claims and dismissed the case. This court reversed, finding that § 465 constituted an unconstitutional delegation of legislative power. We concluded that the Department had interpreted its own power too broadly and was exercising that power in an unchecked manner because it had also interpreted the statute as delegating unreviewable discretionary authority to the Secretary. South Dakota v. United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir.1995) (South Dakota I). The Department promulgated a new regulation that provided for judicial review, 25 C.F.R. § 151.12(b), and then petitioned for writ of certiorari, asking that the United States Supreme Court vacate our decision and remand the case to the Department. The Supreme Court granted the writ and vacated the judgment, directing that the matter be remanded "to the Secretary of the Interior for reconsideration of his administrative decision," Dep't of the Interior v. South Dakota, 519 U.S. 919, 919-20, 117 S.Ct. 286, 136 L.Ed.2d 205 (1996) (South Dakota II), in light of the new regulation allowing for judicial review. Some seven months later, the Department removed the land from trust status.

In 1997, the Tribe submitted an amended application to the Secretary, requesting that the United States take the land into trust on the Tribe's behalf. The Tribe submitted a business plan describing its intent to use the land for a cultural center and tourist attraction that would draw tourists to further explore the South Dakota Native American Scenic Byway.³ State's App. (App.) 82A-82C. The Bureau of Indian Affairs (BIA) gave notice to state, county, and city officials, requesting information and comments. The State responded by raising the following objections: the statute unconstitutionally delegated legislative authority; the Tribe had not shown its need for the land to be taken

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into trust; a significant loss in state revenue and numerous jurisdictional problems would result if the land were taken into trust; the distance between the land and the reservation counseled against the acquisition; and the land would likely be used for gaming purposes. The city and county separately objected by alleging that the taking of the land into trust could stifle the growth of the community and affect its income.

In its May 20, 1998, response to the objections, the Tribe asserted that it would benefit from having the land held in trust because of the resulting significant federal protections that would facilitate the growth of tribal industry and would assure the Tribe's future generations the continued use of the land. The Tribe also asserted that because the Tribe's planned use of the land would result in increased tourism, the local governments would suffer no significant revenue loss. The response confirmed that the Tribe's business plan detailed its specific intentions for the land and stated that the Tribe would not use the land for gaming.

The Secretary evaluated the application in accordance with the Department's regulations, basing his conclusion on the information provided by the parties involved and on internal recommendations from various levels within the Department. The Secretary concluded that it would be appropriate to take the land into trust and published notice in the Federal Register.

The State again filed suit in federal court to challenge the agency action.⁴ The suit was delayed for the completion of an environmental assessment in accordance with the National Environmental Policy Act, after which the Secretary ratified his decision, finding that taking the land into trust would have no significant impact on the quality of the human environment. The State amended its complaint and filed a motion to supplement the administrative record to provide support for its claim that the Tribe in fact intended to use the land for gaming purposes. The district court denied the motion to supplement the record, finding that the record adequately reflected the facts and concluding that the plaintiffs had not shown bad faith or improper behavior sufficient to justify supplementation. The parties filed cross-motions for summary judgment. The district court granted the Department's motion, once again finding 25 U.S.C. § 465 to be constitutional and holding that the decision to grant trust status was not arbitrary or capricious. South Dakota v. United States Dep't of the Interior, 314 F.Supp.2d 935 (D.S.D.2004) (South Dakota III). It concluded that the "Secretary's decision satisfactorily addressed all relevant criteria" in its regulations. Id. at 948.

II.

We review de novo the district court's grant or denial of a motion for summary judgment. Children's Healthcare Is a Legal Duty, Inc. v. De Parle, 212 F.3d 1084, 1090 (8th Cir.2000). Viewing the record in the light most favorable to the nonmoving party, we ask whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Id. We also review de novo questions of constitutional law. Coalition for Fair & Equitable Regulation of Docks v. Fed. Energy Regulatory Comm'n, 297 F.3d 771, 778 (8th Cir.2002).

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A.

The State first claims that because 25 U.S.C. § 465 does not delineate any boundaries governing the executive's decision to acquire land in trust for Indians, it constitutes an unlawful delegation of legislative power in violation of Article 1, Section 1, of the Constitution ("All legislative Powers herein granted shall be vested in a Congress of the United States."). Congress may delegate its legislative power if it "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928). The Supreme Court has given Congress wide latitude in meeting the intelligible principle requirement, recognizing that "Congress simply cannot do its job absent an ability to delegate power under broad general directives." Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

The Supreme Court has struck down statutes on delegation grounds on only two occasions. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). The statutes at issue in those cases were promulgated in a unique political climate and delegated to the President exceptionally broad control over the national economy. Section 9(c) of the National Industrial Recovery Act, invalidated in Panama Refining, gave the President blanket authority to prohibit transportation of petroleum; neither its language nor its context provided any criteria to guide the President or required any specific findings before he acted. 293 U.S. at 415-16, 55 S.Ct. 241. Section 3 of the National Industrial Recovery Act, struck down in Schechter Poultry, authorized the President to prescribe and approve mandatory "codes of fair competition" for various industries without additional congressional approval. 295 U.S. at 521-23, 55 S.Ct. 837. The Court warned that "Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry." Id. at 537-38, 55 S.Ct. 837.

Since 1935, however, the Court has given "narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional." Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. 647. The Court has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or...