State of S.D. v. U.S. Dept. of Interior

• Decision Date: 07 November 1995
• Docket Number: No. 94-2344,94-2344
• Parties: STATE OF SOUTH DAKOTA; City of Oacoma, South Dakota, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF the INTERIOR; Eddie F. Brown, Assistant Secretary-Indian Affairs; Jerry Jaeger, Acting Area Director, Bureau of Indian Affairs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 878

69 F.3d 878

64 USLW 2316

STATE OF SOUTH DAKOTA; City of Oacoma, South Dakota, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF the INTERIOR; Eddie F. Brown,

Assistant Secretary-Indian Affairs; Jerry Jaeger,

Acting Area Director, Bureau of Indian

Affairs, Defendants-Appellees.

No. 94-2344.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 15, 1995.

Decided Nov. 7, 1995.

John P. Guhin, Assistant Attorney General, Pierre, South Dakota, argued (Steven R. Smith, on the brief), for appellant.

Lisa E. Jones, U.S. Department of Justice, Washington, D.C., argued (Mikal G. Hanson, Edward J. Shawaker and Andrea Nervi Ward, on the brief), for appellee.

Before MAGILL, LOKEN, and MURPHY, Circuit Judges.

LOKEN, Circuit Judge.

The State of South Dakota and the City of Oacoma, South Dakota, appeal the district court's dismissal of their challenge to the Secretary of the Interior's acquisition of commercial land in trust for the Lower Brule Tribe of Sioux Indians. Concluding that 25 U.S.C. Sec. 465, the statute authorizing acquisition of the land, is an unconstitutional delegation of legislative power, we reverse.

I.

In March 1990, the Tribe submitted an application under 25 U.S.C. Sec. 465, asking the Secretary to acquire ninety-one acres of land in trust for use by the Tribe. The land is located seven miles from the Tribe's reservation and is partially within the City of Oacoma. The Tribe stated that the land would be used to create an industrial park adjacent to an interstate highway, explaining that "[t]his site, Trust status for the land, and tax advantages are critically necessary for the development to occur."

The State of South Dakota and the City of Oacoma protested in writing to the Secretary's Bureau of Indian Affairs ("BIA"). When BIA's Area Director notified the State and the City in March 1991 that the Tribe's application would be approved, they appealed to the Interior Board of Indian Affairs. BIA then disclosed that the Assistant Secretary for Indian Affairs had approved the application in December 1990, without notifying the protestants. The Board dismissed the appeal because it has no jurisdiction to review decisions by the Assistant Secretary. State of South Dakota & Town of Oacoma v. Aberdeen Area Director, BIA, 22 I.B.I.A. 126 (1992).

In July 1992, the State and the City filed this action against the Department of the Interior and certain of its officials seeking judicial review under the Administrative Procedure Act, 5 U.S.C. Secs. 701-706. For convenience, we will refer to the defendants collectively as "the Secretary," because he is the Executive Branch official authorized to act under Sec. 465. We will refer to the State and the City collectively as "plaintiffs."

Plaintiffs allege that they are aggrieved by the Secretary's acquisition because it deprives them of tax revenues and may place the land beyond their regulatory powers. They contend that the acquisition is invalid because Sec. 465 is an unconstitutional delegation of legislative power. Alternatively, they contend (i) that the agency violated its internal rules of procedure and the Assistant Secretary acted beyond the scope of his delegated authority; (ii) that the approval was arbitrary and capricious and not in accordance with the agency's governing regulations, see 25 C.F.R. Secs. 151.1-.14; and (iii) that the Tribe plans to develop the land as a gaming casino and the Secretary was aware of the Tribe's true intentions but failed to comply with the approval procedures of the Indian Gaming Regulatory Act, 25 U.S.C. Secs. 2701-2721.

In November 1992, the Secretary took title to the lands in trust for the Tribe. In January 1994, the Secretary moved to dismiss on the ground that a Sec. 465 acquisition is action "committed to agency discretion by law" and therefore not subject to judicial review. See 5 U.S.C. Sec. 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 828-30, 105 S.Ct. 1649, 1654-55, 84 L.Ed.2d 714 (1985). The district court granted the motion to dismiss, concluding that Sec. 465 is not an unconstitutional delegation of legislative power because the statute identifies the agency to which power is delegated and "clearly delineates the general policy to be applied and the bounds of that delegated authority." Without reaching the "committed to agency discretion" issue, the court also held, sua sponte, that it had no jurisdiction to review plaintiffs' other claims because the Quiet Title Act, 28 U.S.C. Sec. 2409a, which permits the United States to be sued to resolve real property disputes, "does not apply to trust or restricted Indian lands." ¹

II.

On appeal, plaintiffs argue that Sec. 465 provides no legislative standards or boundaries governing the Secretary's acquisitions. The Secretary responds that the statutory purpose of "providing land for Indians" sufficiently defines the general policy and boundaries of the delegated power. The Secretary notes that the Supreme Court has not invalidated a federal statute on delegation grounds since A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542, 55 S.Ct. 837, 848, 79 L.Ed. 1570 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). Interestingly, the same Congress enacted both the Indian Reorganization Act, of which Sec. 465 was a part, and the statutes invalidated in Schechter Poultry and Panama Refining. It is appropriate to consider whether Sec. 465 satisfies the nondelegation doctrine as it has evolved since 1935, particularly because no other appellate court has done so. ²

The nondelegation doctrine is easy to state: "Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 1755, 114 L.Ed.2d 219 (1991) (citation omitted). It is difficult to apply. A court must inquire whether Congress "has itself established the standards of legal obligation, thus performing its essential legislative function." Schechter Poultry, 295 U.S. at 530, 55 S.Ct. at 843. But the court must be mindful that the doctrine does not prevent Congress from obtaining the assistance of its coordinate Branches. Therefore, so long as Congress "lay[s] down by legislative act an intelligible principle" governing the exercise of delegated power, it has not unlawfully delegated its legislative power. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928), quoted in Touby, 500 U.S. at 165, 111 S.Ct. at 1755, and Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 655, 102 L.Ed.2d 714 (1989). A delegation is overbroad "[o]nly if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed." Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944).

The Supreme Court has recognized that judicial review is a relevant safeguard in considering delegation issues:

It is "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are protected by access to the courts to test the application of the policy in the light of these legislative declarations."

Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 219, 109 S.Ct. 1726, 1731, 104 L.Ed.2d 250 (1989), quoting American Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). Justice Marshall eloquently stated this principle in his concurring opinion in Touby: "judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds." 500 U.S. at 170, 111 S.Ct. at 1758. Thus, when the Secretary argued to the district court that his actions under Sec. 465 may not be judicially reviewed because the statute commits them entirely to agency discretion, he implicitly acknowledged that this delegation issue requires a particularly close look. See United States v. Garfinkel, 29 F.3d 451, 459 (8th Cir.1994) ("[J]udicial review is a factor weighing in favor of upholding a statute against a nondelegation challenge") (citation omitted).

We begin by examining the very broad language of Sec. 465:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire ... any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians.

* * * * * *

Title to any lands or rights acquired ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.

By its literal terms, the statute permits the Secretary to purchase a factory, an office building, a residential subdivision, or a golf course in trust for an Indian tribe, thereby removing these properties from state and local tax rolls. Indeed, it would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present. There are no perceptible "boundaries," no "intelligible principles," within the four corners of the statutory language that constrain this delegated authority--except that the acquisition must be "for Indians." It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians.

The Secretary's power to purchase land under Sec. 465 triggers the complementary power to acquire land by condemnation under 40 U.S.C. Sec. 257. See United States v. 29 Acres of Land, 809 F.2d 544, 545 (8th Cir.1987). It is therefore appropriate to consider the delegation question in the context of the federal government's extensive condemnation powers.

The power to acquire land by condemnation for a public purpose is an...