Tomac, Tax. of Mich. against Casinos v. Norton

• Decision Date: 06 January 2006
• Docket Number: No. 05-5206.,05-5206.
• Citation: 433 F.3d 852
• Parties: TOMAC, TAXPAYERS OF MICHIGAN AGAINST CASINOS, a Michigan non-profit corporation, Appellant v. Gale A. NORTON, in her official capacity as Secretary of the United States Department of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

433 F.3d 852

TOMAC, TAXPAYERS OF MICHIGAN AGAINST CASINOS, a Michigan non-profit corporation, Appellant v. Gale A. NORTON, in her official capacity as Secretary of the United States Department of the Interior, et al., Appellees.

No. 05-5206.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2005.

Decided January 6, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 01cv00398).

Robert J. Jonker argued the cause for appellant. With him on the brief were Daniel P. Ettinger, Joseph A. Kuiper, and Rebecca A. Womeldorf.

Lisa E. Jones, Attorney, U.S. Department of Justice, argued the cause for Federal Appellees. With her on the brief was Elizabeth A. Peterson, Attorney.

Kaighn Smith, Jr. argued the cause for Non-Federal Appellees. With him on the brief were Matthew T. McGrath and Cortney O. Morgan.

Before: GINSBURG, Chief Judge, RANDOLPH, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

HARRY T. EDWARDS, Senior Circuit Judge.

The Pokagon Band of Potawatomi Indians ("Pokagon Band" or "Tribe") consists of approximately 2,700 members. The Tribe has resided primarily in its ancestral homeland in the St. Joseph River Valley in southwestern Michigan and northern Indiana since at least 1634. See 25 U.S.C. § 1300j (2000); S. REP. NO. 103-266, at 1 (1994). After years of dealing with the United States in government-to-government relations, the Tribe was administratively terminated in 1935, when its application for recognition was denied under the Indian Reorganization Act of 1934 ("IRA"), 48 Stat. 984 (codified as amended at 25 U.S.C. § 461 et seq. (2000)). Thereafter, the Tribe made numerous attempts to reclaim its recognition, and finally achieved that goal in 1994, with the enactment of the Pokagon Restoration Act ("Restoration Act" or "Act"), 25 U.S.C. § 1300j et seq. The Act restored federal services to the Pokagon Band, but it provided no funding, so the Tribe has been forced to seek ways to achieve economic self-sufficiency.

The Tribe has determined that the most effective way to generate revenue is to build and operate a gaming resort. To that end, the Tribe signed a gaming compact with the State of Michigan in 1997 and then purchased rights to the land necessary for the project. Upon application to the Department of Interior's Bureau of Indian Affairs ("BIA" or "Bureau"), the Secretary of the Interior ("Secretary") agreed to take those lands into trust under 25 U.S.C. § 1300j-5, which permits the Secretary to take land into trust for the purpose of becoming part of the Tribe's reservation.

The Bureau's decision to take this land into trust is now challenged by the Taxpayers of Michigan Against Casinos ("TOMAC"), a group that includes residents who live adjacent to the proposed casino site. In three decisions, the District Court issued judgments for the Department of the Interior ("Interior") on each of TOMAC's claims. The District Court held, inter alia, that: (1) BIA reasonably concluded that it only had to prepare an environmental assessment ("EA") and not an environmental impact statement ("EIS") under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347, TOMAC v. Norton, No. Civ.A.01-0398, 2005 WL 2375171, at *6 (D.D.C. Mar.24, 2005) ("TOMAC III"); (2) the Pokagon Band fell within the "restored lands exception" of the Indian Gaming Regulatory Act ("IGRA"), because it was "restored" to federal recognition under the Restoration Act, TOMAC v. Norton, 193 F.Supp.2d 182, 192-94 (D.D.C.2002) ("TOMAC I"); and (3) Congress's delegation to the Secretary to "acquire real property .... in trust for the benefit of the Band" under the Restoration Act, 25 U.S.C. § 1300j-5, was not an unlawful delegation of legislative power, TOMAC I, 193 F.Supp.2d at 191-92.

TOMAC now appeals from the District Court's successive grants of summary judgment to Interior, challenging each of the aforementioned findings. We conclude that TOMAC's claims have no merit and affirm the District Court's grants of summary judgment.

I. BACKGROUND

A. The Pokagon Band of Potawatomi Indians

The Pokagon Band has a long history of dealings with the United States government, including involvement in 11 treaties with the federal government from 1795-1833. See 25 U.S.C. § 1300j. One such treaty, the Treaty of Chicago, 7 Stat. 431 (1833), involved the ceding of 5,000,000 acres by several tribes to the federal government in 1833 in exchange for a series of payments and a tract of equal size west of the Mississippi River. Hannahville Indian Cmty. v. United States, 4 Cl.Ct. 445, 447 (1983). While this agreement pushed many of the Potawatomi bands west, the Pokagon Band held steadfast and negotiated a supplement to the treaty, which gave them the right to remain in their Michigan homeland. See id. at 447-48; S. REP. NO. 103-266, at 2; H.R. REP. NO. 103-620, at 2 (1994).

In 1935, the Pokagon Band petitioned for reorganization under the newly minted IRA, which terminated the federal government's allotment policy and restored to Indians the management of their assets. While tribal governments located in Michigan's upper peninsula were granted federal services under the IRA, those in its lower peninsula, such as the Pokagon Band, were denied services and benefits due to an administrative decision predicated on the "misguided assumption that residence on trust lands held in common for the Band was required for reorganization and the fact that appropriations to purchase such lands had run out." H.R. REP. NO. 103-620, at 5; see also S. REP. NO. 103-266, at 3-4. According to the Senate committee report leading to the passage of the Restoration Act authored nearly 60 years later, the Pokagon Band "was unfairly terminated as a result of both faulty and inconsistent administrative decisions contrary to the intent of the Congress, federal Indian law and the trust responsibility of the United States." S. REP. NO. 103-266, at 6.

To remedy this injustice, Congress enacted the Restoration Act in 1994. The Act's specific purpose is to "reaffirm and clarify the federal relationship of the Pokagon Band of Potawatomi Indians of Michigan as a distinct federally recognized Indian tribe, to reaffirm the jurisdiction and other rights of the tribe, provide for the establishment of a trust land base for the tribe," and "authorize the organization of the tribe and for other purposes." Id. at 1. The Tribe's status as a federally recognized tribe was reestablished, 25 U.S.C. § 1300j-1, thus bringing the Tribe within the umbrella of federal services and benefits extended to other federally recognized tribes, 25 U.S.C. § 1300j-2. In recognition of its ancestral homelands and the need for the Tribe to establish a reservation land base, Congress directed the Secretary to acquire real property for the Tribe, by taking land in trust to become part of its reservation. 25 U.S.C. § 1300j-5. Congress also delineated a 10-county area — encompassing the Tribe's current and ancestral homeland — where it is eligible to receive the federal services that accompany recognition. See 25 U.S.C. § 1300j-6.

The Restoration Act, however, did not provide any funding, so the Tribe had to consider economic development projects that would enable it both to restore its land base and to fund tribal governmental activities and services. The Tribe concluded that the only economic development that would attract sufficient capital would be a gaming and recreational facility. Consequently, in 1997 the Tribe entered into a compact with the State of Michigan in accordance with 25 U.S.C. § 2710(d) (2000) to permit the Tribe to conduct Class III (casino-style) gaming on "eligible Indian lands." See Compact Between the Pokagon Band of Potawatomi Indians and the State of Michigan Providing for the Conduct of Tribal Class III Gaming by the Pokagon Band of Potawatomi Indians at 2-3 (Jan. 29, 1997), reprinted in Pokagon Band of Potawatomi Indians Township of New Buffalo Trust Consolidation Site Trust Application (Mar.2000), app. 3 ("Trust App."), Joint Appendix ("J.A.") 1324. Interior approved this agreement on February 18, 1999. Indian Gaming, 64 Fed.Reg. 8,111 (Feb. 18, 1999).

The Tribe also entered into a "Memorandum of Understanding" ("Memorandum") with the Secretary, which spelled out the amount of land to be taken into trust under the Restoration Act, the area in which that land was to be located, and the preference that, whenever possible, the land acquired would be contiguous. Memorandum of Understanding (Jan. 11, 1999), reprinted in Trust App., supra, tab 2, J.A. 1321. In addition, the Secretary confirmed that the Pokagon Band is a "restored" tribe within the meaning of § 2719(b)(1)(B) of IGRA, making it eligible for Class III gaming without having to undertake the more burdensome route to approval under § 2719(b)(1)(A). See 25 U.S.C. § 2719(b)(1)(A), (B).

The Tribe subsequently purchased in fee 26 separate and contiguous parcels of land across 675 acres within New Buffalo Township in Berrien County, Michigan, and then submitted an application to BIA requesting that the United States take the land into trust for the Tribe. A portion of that land would house the 110,000 square-foot gaming facility, five or six restaurants, a variety of gift shops, a child care facility, a 200-room first class hotel, and a surface parking lot and parking garage.

Before proceeding with the project, the Bureau was required under NEPA to assess the potential environmental impacts of the gaming resort. NEPA obligates an agency to prepare a detailed, comprehensive EIS if its proposal constitutes a "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (2000). To determine what actions meet the § 4332(2)(C) threshold, the Bureau has adopted as advisory guidelines the regulations of the Council of...