State Dakota v. United States Dep't of The Interior

• Decision Date: 31 March 2011
• Docket Number: No. CIV 10–3006–RAL.,CIV 10–3006–RAL.
• Citation: 787 F.Supp.2d 981
• Parties: State of SOUTH DAKOTA, County of Charles Mix, and City of Wagner, Plaintiffs,v.UNITED STATES DEPARTMENT OF the INTERIOR, Larry Echo Hawk, in his official capacity as Assistant Secretary of Indian Affairs, Michael Black, in his official capacity as Regional Director, Great Plains Region, Ben Kitto, in his official capacity as Superintendent of the Yankton Agency, and Yankton Sioux Tribe, Defendants.
• Court: U.S. District Court — District of South Dakota

787 F.Supp.2d 981

State of SOUTH DAKOTA, County of Charles Mix, and City of Wagner, Plaintiffs,

v.UNITED STATES DEPARTMENT OF the INTERIOR, Larry Echo Hawk, in his official capacity as Assistant Secretary of Indian Affairs, Michael Black, in his official capacity as Regional Director, Great Plains Region, Ben Kitto, in his official capacity as Superintendent of the Yankton Agency, and Yankton Sioux Tribe, Defendants.

No. CIV 10–3006–RAL.

United States District Court, D. South Dakota, Central Division.

March 31, 2011.

Bobbi J. Rank, John P. Guhin, Attorney General of South Dakota, Pierre, SD, for Plaintiffs.Amy S. Tryon, U.S. Department of Justice, Washington, DC, Cheryl Schrempp Dupris, U.S. Attorney's Office Pierre Office, Pierre, SD, Charles Thomas Abourezk, Abourezk Law Firm, Rapid City, SD, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT MOTIONS AND REMANDING CASE

ROBERTO A. LANGE, District Judge.I. INTRODUCTION

Plaintiffs State of South Dakota, County of Charles Mix, and City of Wagner (collectively “Plaintiffs”) filed this action seeking declaratory and injunctive relief from the Department of the Interior's decision to take 39.9 acres of land into trust for the Yankton Sioux Tribe (“Tribe”). Defendants United States Department of the Interior; Larry Echo–Hawk, Assistant Secretary of Indian Affairs, United States Department of the Interior; Michael Black, Great Plains Regional Director, Bureau of Indian Affairs (“BIA”); Ben Kitto, Yankton Agency Superintendent; and the Yankton Sioux Tribe (collectively “Defendants”) moved to dismiss or, in the alternative, for summary judgment (Doc. 13). Plaintiffs then filed a cross-motion for summary judgment (Doc. 20).

II. FACTS

On March 1, 2004, the Business and Claims Committee (“Committee”) of the Tribe enacted a resolution requesting that the BIA accept a 39.9–acre parcel of land into trust for the Tribe. (Doc. 13–1, Doc. 23). The land is located in Charles Mix County, South Dakota, and is known as the “Wagner Heights Addition.” (Doc. 13–1, Doc. 23). In its resolution, the Committee stated that it was responsible for providing suitable housing for the Tribe and its members, that the Wagner Heights Addition currently contained 11 residential homes and a 20–unit elderly complex, and that the use of the property would remain the same should the BIA accept it into trust. (Doc. 13–1, Doc. 23).

On March 19, 2004, the Acting BIA Yankton Superintendent (“Superintendent”) sent a letter to Plaintiffs, Lawrence Township, and the Wagner Community School District explaining that the BIA had received the Tribe's trust application and was considering it. (Doc. 13–1, Doc. 23, A.R. 1596–1610). Plaintiffs filed a Freedom of Information Act (“FOIA”) request, seeking “the actual applications by which the Yankton Sioux Tribe requested the BIA to take these lands into trust, any further communications or other communications from the Yankton Sioux Tribe with regard to these proposed applications, and any other documentation in the file with regard to these proposed applications.” (Doc. 22, Doc. 27, A.R. 1832–33). On April 12, 2004, the BIA responded by supplying Plaintiffs with the Tribe's trust application and copies of abstracts of title for the land comprising the Wagner Heights Addition. (Doc. 22, Doc. 27, A.R. 1838–1844). The State, County, and City each provided comments to the Superintendent expressing their opposition to the trust acquisition. (Doc. 13–1, Doc. 23).

On August 25, 2004, the Superintendent issued a decision letter approving the acceptance of the Wagner Heights Addition into trust for the Tribe. (Doc. 13–1, Doc. 23). Plaintiffs filed a second FOIA request seeking any document of any kind added to the Tribe's trust acquisition file after the BIA's April 12, 2004 response to Plaintiffs' first FOIA request. (A.R. 1845). In response to Plaintiffs' second FOIA request, the BIA supplied Plaintiffs with a document from the Charles Mix County Abstract Company and with letters submitted by those who opposed the trust acquisition, but with no additional information from the Tribe. (Doc. 22, Doc. 27); South Dakota v. Cnty. of Charles Mix. & City of Wagner v. Acting Great Plains Reg'l Dir., 49 IBIA 84, 89 (2009).

Plaintiffs then appealed the Superintendent's determination to the Regional Director (“RD”). (Doc. 13–1, Doc. 23). Before rendering a decision, the RD sought and obtained additional information and documents concerning the Wagner Heights Addition from both Plaintiffs and the Superintendent. Acting Great Plains Ree'l Dir., 49 IBIA at 90–91. The RD based her decision on a number of these new documents, Id. at 99–101, but she never supplied the following 23 documents to Plaintiffs:

1. A November 21, 2006 letter from the Superintendent responding to the Great Plains Regional Realty Office's request for further information on the Wagner Heights trust acquisition. The letter contains a list of the documents the Superintendent is sending to the Realty Office, as well as some brief comments by the Superintendent concerning the Committee's authority to request that land be placed in trust and the continued payment of certain fees. (A.R. 1393).

2. An October 10, 2006 restrictive covenant acknowledgment, stating that the Committee is aware that certain restrictive covenants may encumber the Tribe's right to use and develop the property, and that the Committee “agree[s] to be bound by those restrictions and limitations so long as they remain effective.” (A.R. 1444).

3. A certified enrollment census stating that 9,649 members were enrolled in the Tribe as of December 31, 1996. The document is signed by the Enrollment Officer of the Tribe and is dated November 17, 2006. (A.R. 1395).

4. A certified enrollment census stating that 11,363 members were enrolled in the Tribe as of November 16, 2006. The document is signed by the Enrollment Officer of the Tribe and is dated November 17, 2006. (A.R. 1396).

5. An “agreement” between Francis Doom and the Wagner Development Corporation. The “agreement” is dated July 13, 1972 and contains a restrictive covenant. (A.R. 1397–98).

6. A November 9, 2006 letter from the Yankton Sioux Housing Authority explaining that it pays a monthly water bill payment of $3,301.88 for certain “elderly complexes” and that the “13 residential units that are identified as the Wagner Heights Additions are responsible for their own water and sewer bills.” (A.R. 1399).

7. A June 13, 2005 memorandum from a BIA Regional Environmental Scientist containing his recommendations. (A.R. 1401–1405).

8. A Phase I Environmental Site Assessment of the Wagner Heights Addition. (A.R. 1406–1439).

9. A May 10, 2006 letter from the Chief Executive Office of the Public Health Service, Wagner Health Center in Wagner, South Dakota, discussing payments that the Indian Health Service (“IHS”) makes to the Wagner/Lake Andes Ambulance Program for ambulance services. (A.R. 1440).

10. A June 14, 2006 letter from the Special Agent in Charge, BIA Law Enforcement Services, stating that if the Wagner Heights Addition is placed in trust, the BIA Office of Law Enforcement Services would have criminal jurisdiction and patrol responsibility over the land. (A.R. 1441).

11. An October 20, 2006 letter from the Yankton Sioux Housing Authority stating that the Wagner Heights Addition contains “13 residential units and an elderly complex containing 20 individual apartments with assisted living quarters,” and that approximately 33 school-aged children reside on the property and attend the Wagner Community School District. (A.R. 1442).

12. An October 10, 2006 Committee resolution stating that the “Yankton Sioux Tribe's Business and Claims Committee, by this resolution agrees formally to be bound by the restrictive covenant on the Wagner Heights Addition property ...” (A.R. 1445).

13. An August 31, 2006 email from the Great Plains Office Deputy Realty Officer, discussing the desire of the Tribe and IHS to build houses for IHS employees on the Wagner Heights Addition after the BIA brings the land into trust. (A.R. 1449).

14. A February 8, 2006 Committee Resolution that explained that IHS was formally requesting to obtain land from the Tribe to build staff quarters for the Wagner health care facility. The resolution identified a portion of the Wagner Heights Addition as one of two possible sites for the staff quarters, and authorized IHS to conduct an “archaeological and legal survey to determine which site is feasible.” (A.R. 1451).

15. A July 28, 2005 memorandum from the Superintendent of the Yankton Agency to Jim Geffre, Realty Officer Great Plains Regional Office. In the Memorandum, the Superintendent briefly discusses what will occur in regard to ambulance services, housing policies and procedures, and the fielding of 911 calls should the BIA place the Wagner Heights Addition in trust. (A.R. 1486–87).

16. An April 21, 2005 memorandum from the Great Plains Region Realty Officer to the ESCR Manager of the Great Plains Region. In the memorandum, the Realty Officer asks the ESCR Manager to review the Level I Contaminant Surveys for the Wagner Heights Addition and the Yankton Sioux Travel Plaza. (A.R. 1507).

17. A December 9, 2006 email from the Great Plains Office Deputy Realty Officer asking for information and documentation relating to the Wagner Heights fee to trust process. (A.R. 1152–53).

18. A December 11, 2006 email from Deda Orozco of the Aberdeen BIA to the Deputy Realty Officer. The email was in response to the Deputy Realty Officer's questions about the Wagner Heights Addition (A.R. 1152–53), and provided information about the cost of 911 calls, the distance between the IHS hospital and the Wagner Heights Addition, the tribal housing authority's payment for water and sewage. The increase in tribal membership, the housing authority's provision of housing units to Native American Veterans, whether tribal members can lease or buy homes on...