Tomac v. Norton

• Decision Date: 29 March 2002
• Docket Number: No. Civ.A. 01-0398(JR).,Civ.A. 01-0398(JR).
• Parties: TOMAC, Plaintiff, v. Gale A. NORTON, Secretary, U.S. Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

193 F.Supp.2d 182

TOMAC, Plaintiff, v. Gale A. NORTON, Secretary, U.S. Department of the Interior, et al., Defendants.

No. Civ.A. 01-0398(JR).

United States District Court, District of Columbia.

March 29, 2002.

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Rebecca A. Womdeldorf, Joe G. Hollingsworth, Stephen A. Klein, Spriggs & Hollingsworth, Washington, DC, William C. Fulkerson, Daniel K. DeWitt, Robert J. Jonker, Daniel P. Ettinger, Warner Norcross & Judd, LLP, Grand Rapids, MI, for plaintiff.

Frances M. Zizila, Indian Resources Section/ENRD, U.S. Department of Justice, Washington, DC, for defendants.

Reid Peyton Chambers, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC, David Michael Peterson, Butzbaugh & Dewane, P.L.C., St. Joseph, MI, Harold George Schuitmaker, Schuitmaker, Cooper & Schuitmaker, Paw Paw, MI, for Amici Curiae New Buffalo Township, Michigan and City of New Buffalo, Michigan.

MEMORANDUM

ROBERTSON, District Judge.

In this suit, plaintiff Taxpayers of Michigan Against Casinos (TOMAC) challenges a decision by the Bureau of Indian Affairs to take land into trust so that the Pokagon Band of Potawatomi Indians can build a casino. Several motions are pending. For the reasons set forth below, defendants' motion to dismiss or in the alternative for summary judgment will be granted in part and deferred in part. Plaintiff's motion for discovery pursuant to Fed.R.Civ.P. 56(f) will be denied. Defendants' motion to move the case to Michigan will be denied. The accompanying order sets a date for further oral argument on the remaining claims in the case.

Background

The federal government recognized the Pokagon Band of Potawatomi Indians until the 1930s, when the Department of the Interior administratively stopped recognizing tribes on Michigan's lower peninsula and ceased providing services and benefits to them. In 1994, Congress reaffirmed the Pokagon's status and services, and it authorized the taking of land in trust for the Band but allocated no funds for that purpose. 25 U.S.C. §§ 1300j et seq. As an economic development project to fund further land purchases and tribal services, the Band now plans to build a 400,000 square foot complex that will include a 24-hour-a-day casino, a large hotel, a child care facility, and several restaurants and shops. The Pokagon expect to offer Class II and III gaming under the Indian Gaming Regulatory Act (IGRA) and to attract 4.5 million customers per year. The project is sited on the 675 acre tract in New Buffalo Township, Michigan, that the Bureau of Indian Affairs intends to take into trust.

The casino site is located just off an interstate highway in a tourism region. Local governments in the area expect to receive significant revenues through cooperation agreements with the Pokagon. Some residents oppose the casino, however, arguing that it will hurt the quality of life in surrounding communities. They have filed this suit, acting through TOMAC, and they have sued in a Michigan state court to challenge a gaming compact between the State of Michigan and the Pokagon.

The Bureau of Indian Affairs decision to take the casino site in trust for the Band appears to have been fast-tracked at the end of the Clinton Administration, with the issuance of a final environmental assessment and a "finding of no significant impact" (FONSI) under the National Environmental Policy Act (NEPA) coming less than a month after the close of comments on an initial draft environmental assessment. The parties have stipulated, however, that final action taking the land in trust would be stayed pending the outcome of this case.

Defendants moved to transfer the case to the Western District of Michigan, and (before that motion was decided) moved to dismiss or in the alternative for summary judgment. The State of Michigan and the Township and City of New Buffalo filed amicus briefs in support of the dispositive motion. Near the end of the briefing period, plaintiff moved for discovery pursuant to Rule 56(f), asserting that defendants had failed to provide a complete administrative record and had acted in bad faith.

Analysis

I. Motion to Dismiss or in the Alternative for Summary Judgment

TOMAC brings four claims against the Department of Interior: (1) that placing the land in trust violates the Administrative Procedure Act (APA) because the Department lacks jurisdiction to place land in trust for an illegal activity (gambling without a valid compact), is acting arbitrarily and capriciously, and is failing to follow its own regulations; (2) that the environmental assessments, FONSI, and failure to complete a full environmental impact statement violated NEPA, Department regulations, and the APA; (3) that the Pokagon restoration act, 25 U.S.C. § 1300j-5, violates the nondelegation doctrine by failing to establish meaningful standards for taking land in trust; and (4) that placing the land in trust violates the APA because the defendants have failed to comply with procedures required by the Indian Gaming Regulatory Act.

Defendants' motion to dismiss argues that TOMAC lacks constitutional and prudential standing and makes individual arguments regarding each cause of action. I conclude that TOMAC does have standing, but that the claims asserting violations of the nondelegation doctrine and of the Indian Gaming Regulatory Act (Counts Three and Four above, and part of Count One) fail to state a claim upon which relief can be granted and must be dismissed.

A. Standing

An organization has standing to sue on behalf of its members if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Defendants challenge TOMAC's standing on the first two elements.

1. Would individual TOMAC members have standing in their own right?

An individual has constitutional standing if (1) she has suffered the invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) her injury is "fairly traceable" to the challenged action of the defendant and not the result of independent action by a third party not before the court; and (3) a favorable decision would "likely" redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). Prudential standing is established by showing that the interest the plaintiff seeks to protect arguably falls within the zone of interests to be protected or regulated by the statute at issue. Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

a. Constitutional standing

In a case like this one alleging procedural violations, the requisite showing of injury requires a demonstration that the challenged act performed with improper procedures will cause a distinct risk to plaintiffs particularized interests. Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996) (en banc). However, the normal standards for redressability and immediacy are relaxed, so that, for instance, "one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years." Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130.

Here, several TOMAC members who live within a few blocks of the casino site assert interests in viewing local wildlife, walking in their neighborhood, and enjoying their own properties that are at risk of injury from a 24-hour-a-day casino attracting 4.5 million customers per year.¹ Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 432-33 (D.C.Cir.1998) (en banc) (personal, individual injury to aesthetic and recreational interests satisfies standing requirements); Moreau v. Federal Energy Regulatory Comm'n, 982 F.2d 556, 565-66 (D.C.Cir.1993) (adjacent property owners' assertions of aesthetic injury and safety hazards satisfies standing requirements). The fact that other TOMAC members assert economic injury from the competition they expect from casino restaurants and related businesses does not negate their standing to sue under NEPA. Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1235-36 (D.C.Cir.1996).

The issue of traceability is more complicated because the injuries asserted by TOMAC members arise, not directly from the challenged act of placing the land in trust, but rather from the intended use of the land by the Pokagon, who are not before the court. Florida Audubon Soc., 94 F.3d at 668-70 (in NEPA violation cases, plaintiffs must demonstrate a causal link between the improper environmental assessment and a substantive decision that may have been wrongly decided as well as a link between the substantive decision and the plaintiffs' injuries). The necessary linkage is easy to identify, however. TOMAC members' injuries due to operation of the casino are traceable to the Bureau's actions, because the taking of the site in trust is a necessary prerequisite to both Class II and III gaming, 25 U.S.C. § 2710(b)(1), (d)(1), see Animal Legal Defense Fund, 154 F.3d at 440 (causation element satisfied where agency action authorizes conduct that would be illegal otherwise), and because taking the land into trust would give the Pokagon authority to compel the State of Michigan to negotiate over Class III gaming, Kansas v. United States, 249 F.3d 1213, 1223-24 (10th Cir. 2001); Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v....