BERYL A. HOWELL, Chief Judge.
Table of Contents
I. BACKGROUND ... 228
A. HISTORY AND CURRENT STATUS OF THE NORTH FORK TRIBE ... 228
B. MADERA SITE ... 231
C. ACTIONS UNDERLYING ADMINISTRATIVE DECISIONS ... 231
D. COMMENCEMENT OF INSTANT LAWSUIT ... 234
F. SUPPLEMENTAL BRIEFING, CALIFORNIA LITIGATION AND RELATED FILINGS ... 238
G. CALIFORNIA STATE COURT LITIGATION ... 240
H. PARTIES' POSITIONS ON RECENT DEVELOPMENTS ... 242
II. LEGAL STANDARDS ... 243
A. MOTION FOR SUMMARY JUDGMENT... 243
B. ADMINISTRATIVE PROCEDURE ACT ... 244
III. DISCUSSION ... 246
A. STAND UP PLAINTIFFS' FIFTH AND SIXTH CLAIMS FOR RELIEF... 248
B. STAND UP PLAINTIFFS' CHALLENGES TO THE GOVERNOR'S CONCURRENCE... 248
C. IGRA RECORD OF DECISION... 257
D. IRA RECORD OF DECISION... 276
E. NEPA COMPLIANCE ... 302
F. CAA CONFORMITY DETERMINATION... 316
IV. CONCLUSION ... 323
The North Fork Rancheria of Mono Indians (the "North Fork Tribe"), a federally-recognized American Indian tribe, plans to construct a casino-resort complex with a gaming floor offering up to 2,500 gaming devices, six bars, three restaurants, a five-tenant food court, a 200-room hotel tower, and 4,500 parking spaces on a 305.49-acre parcel of land located in Madera County, California ("Madera Site"). The casino will undoubtedly have a significant impact on the people and the land in that county, with the hope that it will benefit economically the Indian tribe undertaking its development. The plaintiffs are residents of Madera County vehemently opposed to the casino's construction. To stop the casino from coming to fruition, they have initiated both state and federal litigation as well as statewide political efforts over the last seven-plus years, setting, in their own words, "high legal and political hurdles." This case is one of those efforts to halt the North Fork Tribe's casino development. While the plaintiffs' many concerns about the impending casino development are understandable, the law is not on their side.
Here, six plaintiffs, Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God — Madera, and Dennis Sylvester (collectively, "Stand Up"), and the plaintiff Picayune Rancheria of the Chukchansi Indians ("Picayune Tribe" or "Picayune"), bring this consolidated action against the defendants United States Department of the Interior ("DOI"), Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior ("Secretary"), Bureau of Indian Affairs ("BIA"), and Lawrence Roberts, in his official capacity as Assistant Secretary of Indian Affairs,
The first decision, made in September 2011, pursuant to the IGRA, 25 U.S.C. § 2719(b)(1)(A), determined that the North Fork Tribe would be permitted to conduct gaming on the Madera Site. See generally BUREAU OF INDIAN AFFAIRS, Record of Decision,
Pending before the Court are four cross-motions for summary judgment filed by all of the parties: (1) the Stand Up plaintiffs' motion for summary judgment ("Pls.' Mot."), ECF No. 106; (2) the plaintiff Picayune Tribe's motion for summary judgment,
The factual and procedural background in this case is laid out in considerable detail in this Court's previous Memorandum Opinions denying the Stand Up plaintiffs' request for a preliminary injunction, Stand Up I, 919 F.Supp.2d at 54-61, and granting in part and denying in part the Stand Up plaintiffs' motion to compel supplementation of the administrative record, Stand Up for California! v. U.S. Dep't of Interior (Stand Up II), 71 F.Supp.3d 109, 112-14 (D.D.C.2014). Since those rulings, however, several events have occurred with implications for the pending motions, including the filing of a third operative amended complaint, rejection of the Tribal-State Compact by California voters, court decisions in concurrent federal and state litigation, and the recent issuance of binding precedent by the D.C. Circuit. Thus, the Court now draws from its earlier Memorandum Opinions and provides an updated, comprehensive background for consideration of the parties' arguments.
A. HISTORY AND CURRENT STATUS OF THE NORTH FORK TRIBE
The North Fork Tribe is a federally-recognized American Indian tribe, see Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 81 Fed. Reg. 26,826, 26,829 (May 4, 2016) (listing "Northfork Rancheria of Mono Indians of California"), "consist[ing] of the modern descendants of Mono Indians using and occupying lands near and in the San Joaquin Valley," Letter from Larry Echo Hawk, Asst. Sec'y of Indian Affairs, to Jerry Brown, Governor of Cal. (Sept. 1, 2011) at 2, Jt. App. at 1391, 1392, ECF No. 128-7, as well as "the adjacent Sierra Nevada foothills," IGRA ROD at 56.
Many North Fork Tribe citizens trace their ancestry to an American settler named Joe Kinsman and his Mono Indian wife, "who settled along the Fresno River in 1849" at a time when "[a]ll of the settlements were in the foothills." IGRA ROD at 55-56 (quotations omitted). According to a contemporaneous Federal government observer, the Mono Indians generally inhabited "the higher mountains" during that time period and would "visit occasionally the plains and water-courses for the purposes of hunting and fishing." Id. at 56 (quotations omitted).
Accounts from ancestors of the North Fork Tribe describe the United States military's efforts in the 1850s to force them and other Indian groups out of their homes in the Sierra Nevada foothills, which were rich in resources and could be mined for gold. See GAYLEN D. LEE, WALKING WHERE WE LIVED: MEMOIRS OF A MONO INDIAN FAMILY 45-75 (Univ. of Okla. Press 1998) ("Lee Memoir"), Jt. App. at 75, 81-111, ECF No. 124-1. North Fork Indians, along with other Indian groups who lived in the mountains, scattered and hid as soldiers burned their settlements, id. at 57-62, until soldiers ultimately retreated to
In 1916, pursuant to appropriations acts authorizing the Secretary to purchase land in California for Indians, see Act of May 18, 1916, ch. 125, § 3, 39 Stat. 62, AR at NF_AR_0001034, 1042, the DOI purchased what became the North Fork Rancheria, comprised of 80 acres of land near the town of North Fork, for the use and benefit of approximately 200 landless Indians belonging to the North Fork band, Letter from John T. Terrell, Special Indian Agent, to Comm'r Indian Affairs (Apr. 4, 1916) ("Terrell Letter") at 1, AR at NF_AR_0001029; Lipps-Michaels Survey of Landless Nonreservation Indians of California 1919-1920 (July 15, 1920) ("Lipps-Michaels Survey") at 50, Jt. App. at 1607, ECF No. 128-9; see Stand Up I, 919 F.Supp.2d at 68. The land, which was "poorly located[,] ... absolutely worthless as a place to build homes on" and "lack[ed]... water for [both] domestic purposes and ... irrigation," was essentially uninhabitable. Lipps-Michaels Survey at 50. Nonetheless, as of June 1935, at least six adult Indians lived on the North Fork Rancheria and were eligible to participate in a federal, statutorily-required election held there by the Secretary, pursuant to Section 18 of the then-recently enacted IRA. IRA ROD at 55; Theodore H. Haas, Ten Years of Tribal Government Under I.R.A. (1947) ("Haas Report") at 15, Jt. App. at 2140, 2157, ECF No. 129-9. Four of the six Indians voted to reject the application of the IRA to the North Fork Rancheria in the election, the repercussions of which are discussed in detail, infra, in Part III.D.2, 3.a.
In 1958, Congress passed the California Rancheria Act ("CRA"), which, "in keeping with the then-popular policy of assimilating Native Americans into American society,... authorized the Secretary to terminate the federal trust relationship with several California tribes ... and to transfer tribal lands from federal trust ownership to individual fee ownership." Amador Cty. v. Salazar, 640 F.3d 373, 375 (D.C.Cir. 2011) (citing Act of Aug. 18, 1958, Pub. L. No. 85-671, 72 Stat. 619). On February 18, 1966, pursuant to the CRA, the Secretary issued a notice in the Federal Register providing that "[t]itle to the land on the North Fork ... Rancheria has passed from the U.S. Government under the distribution plan approved April 29, 1960...." to one individual Indian, "Mrs. Susan Johnson," who was, at the time, 92 years old (born on March 8, 1874). Notice of Termination of Federal Supervision Over Property and Individual Members, 31 Fed. Reg. 2,911 (Feb. 18, 1966) ("Fed. Reg. Termination Notice"), AR at NF_AR_0001061, 1062, available at Pls.' Mot., Ex. 2, ECF No. 106-3.
Approximately seventeen years later, in a stipulated judgment entered in a federal lawsuit, Hardwick v. United States, No.
A notice was subsequently published in the Federal Register memorializing the Hardwick judgment, Restoration of Federal Status to 17 California Rancherias, 49 Fed. Reg. 24,084 (June 11, 1984), and, in 1985, the DOI listed the "Northfork Rancheria of Mono Indians of California" as an "Indian Tribal Entit[y] Recognized and Eligible to Receive Services" from the BIA, Indian Tribal Entities Recognized and Eligible to Receive Services, 50 Fed. Reg. 6,055, 6,057 (Feb. 13, 1985), available at Pls.' Mot., Ex. 3, ECF No. 106-4. The "Northfork Rancheria of Mono Indians of California" — i.e., the North Fork Tribe in this case — has been listed as a recognized tribe in the Federal Register ever since.
The North Fork Tribe formally established a modern tribal government and adopted a tribal constitution in 1996 and, today, consists of over 1,750 citizens. IGRA ROD at 53; North Fork Rancheria of Mono Indians Proposed Gaming Project Status Update (May 29, 2007) at 1, Jt. App. at 149, ECF No. 124-1; TAC ¶ 25; North Fork's Answer TAC ¶ 25, ECF No. 104. According to the DOI's American Indian Population and Labor Force Report in 2010, "more than 16 percent of the Tribe's potential labor force is unemployed." IGRA ROD at 52. As "[t]he Tribe has no sustained revenue stream that could be used to fund programs and provide assistance to Tribal members," the Tribe's membership has a high poverty rate and is highly reliant on Federal and
The North Fork Rancheria, located "approximately three miles east of the community of North Fork," is now held in trust by the United States for the benefit of individual members of the North Fork Tribe. IGRA ROD at 9, 53-54. Due to its location "on environmentally sensitive lands within the Sierra National Forest,... near Yosemite National Park," with "difficult" accessibility by car, the North Fork Rancheria is "currently used [solely] for residential purposes." Id. at 61; see id. at 10 ("[M]ost of the Rancheria is undeveloped, with numerous and varied biological resources present throughout," except for "scattered ... rural residences."). While some land within the North Fork Rancheria is "technically eligible for gaming under the IGRA," much of it is not. Id. at 9.
The United States also holds in trust for the North Fork Tribe a 61.5-acre tract of land "located on a steep hillside ... in the small town of North Fork," California. Id. at 4, 54. This tract was placed in trust for the North Fork Tribe by the U.S. Department of Housing and Urban Development ("HUD") and the BIA, specifically for "low income Indian housing, an endangered species conservation reserve, and related uses." Id. at 4. The tract contains a community center, basic infrastructure (i.e., roads, water, sewer), pads for nine single-family homes, and the North Fork Tribe's "current government headquarters." Id. at 4-5, 54.
B. MADERA SITE
The Madera Site "is located in the eastern plains of the San Joaquin Valley within 2.5 miles of the Fresno River, ... near the Sierra Nevada foothills," on unincorporated land in southwest Madera County, California. IGRA ROD at 1, 55. Historically, the San Joaquin Valley "floor was an area of intertribal use and occupancy, where neighboring [aboriginal] bands hunted large game, fished in the waters of the San Joaquin River, and otherwise shared access to its resources during certain times of the year." Id. at 56. Today, the Madera Site is "immediately adjacent and west of State Route (SR) 99, which provides regional access to the area" and is largely "comprised of vacant agricultural lands which have never been developed" and "situated at a distance from residential and other sensitive areas between the only two cities in the County, Madera and Chowchilla," approximately 7.6 miles north of the City of Madera. IGRA ROD at 1, 9, 57, 63. The Site is approximately 36 miles away from the North Fork Tribe's HUD tract and government headquarters, and 38 miles away from the unincorporated community of North Fork and the North Fork Rancheria. IGRA ROD at 4-5, 54, 83-84. Although citizens of the North Fork Tribe live on the North Fork Rancheria or near the community of North Fork, "[s]eventy-three percent of the adult citizens of the Tribe are located closer to the [Madera] Site than to the [North Fork] Rancheria," "a majority (62 percent) of tribal citizens live within 50 miles of the Site, and a substantial number of tribal citizens live within 25 miles of the Site." IGRA ROD at 9-10, 52, 83-84.
C. ACTIONS UNDERLYING ADMINISTRATIVE DECISIONS
In order "to meet its need for economic development, self-sufficiency, and self-governance, and to provide its quickly growing Tribal citizen population with employment,
As part of this process, in March 2005, the North Fork Tribe submitted a fee-to-trust application to the BIA "request[ing] that the BIA issue a Secretarial Determination and transfer the [Madera Site] into Federal trust for the Tribe to conduct tribal government gaming," pursuant to the IRA and the IGRA. Id. at 2, 11. Over four months before this formal request was submitted, the BIA published a notice in the Federal Register announcing its intent to prepare an Environmental Impact Statement ("EIS") pursuant to the NEPA, 42 U.S.C. § 4332(2)(C), which requires the development of such statements as part of certain major Federal actions, for the North Fork Tribe's proposed trust acquisition of the Madera Site. See Notice of Intent to Prepare an Envtl. Impact Statement for the North Fork Rancheria's Proposed Trust Acquisition, 69 Fed. Reg. 62,721 (Oct. 27, 2004), AR at NF_AR_0001336. This notice provided the opportunity for one month, until November 26, 2004, for public comment "on the scope and implementation of this proposal." Id. The "scoping" comment period was later extended for an additional six months, until May 6, 2005. See Notice of Intent to Prepare an Envtl. Impact Study for North Fork's Project, 70 Fed. Reg. 17,461 (Apr. 6, 2005), AR at NF_AR_0001337.
In February 2008, the DOI distributed a Draft Environmental Impact Statement ("DEIS") regarding the proposed acquisition of the Madera Site "to Federal, tribal, state, and local agencies and other interested parties for a 45-day review and comment period." IGRA ROD at 3; see also Draft Envtl. Impact Statement for the North Fork Rancheria's Proposed 305 Acre Trust Acquisition, 73 Fed. Reg. 8,898, 8,899 (Feb. 15, 2008), NF_AR_0001338-39 (providing notice that "[w]ritten comments on the scope and implementation of this proposal must arrive by March 31, 2008"). During the public comment period, the BIA received a total of 331 comment letters, and conducted a public hearing on March 12, 2008, at which 101 individuals spoke. See IGRA ROD at 3-4; FEIS, apps. vol. IV, app. Y, Comments at 7-10, AR at NF_AR_0034984, 34990-93 (listing commenters at public hearing).
On September 1, 2011, after the FEIS had been published, then-Assistant Secretary of Indian Affairs, Larry Echo Hawk, issued a Record of Decision ("ROD") under the IGRA ("IGRA ROD"), making a "two-part determination" and concluding that "Alternative A," the North Fork Tribe's proposed gaming facility, which involved the development of "an approximately 247,182 square foot casino" and "a 200-room hotel" on the Madera Site, was the "Preferred Alternative." IGRA ROD at 1, 24-25, 89.
A year after the publication of the IGRA ROD, in August 2012, the North Fork Tribe and Governor of California Edmund "Jerry" Brown executed a Tribal-State Compact ("Compact"), witnessed by California's then-Secretary of State ("California Secretary"), Debra Bowen. Tribal-State Compact Between the State of California and the North Fork Rancheria of Mono Indians of California (Aug. 31, 2012) ("Tribal-State Compact") at 111, Jt. App. at 2224, 2343 ECF No. 130-4, -5. Governor Brown also concurred in the Secretary's determination to place the Madera Site in trust for the North Fork Tribe. See Letter from Jerry Brown to Kenneth Salazar, Sec'y, U.S. Dep't of the Interior (Aug. 30, 2012) ("Concurrence Letter") at 1-2, Jt. App. at 1601-02, ECF No. 128-9.
On November 26, 2012, then-Assistant Secretary for Indian Affairs, Kevin Washburn, issued a ROD under the IRA ("IRA ROD"), approving the North Fork Tribe's fee-to-trust application for the proposed casino, "Alternative A," on the Madera Site. See IRA ROD at 63.
Shortly after the issuance of the IRA ROD, the Secretary announced the decision to acquire the Madera Site by publishing a notice in the Federal Register on December 3, 2012. See Land Acquisitions; North Fork Rancheria of Mono Indians of California, 77 Fed. Reg. 71,611 (Dec. 3, 2012).
D. COMMENCEMENT OF INSTANT LAWSUIT
As discussed in Stand Up I, the plaintiffs in this consolidated action consist of two distinct groups. The first group, the Stand Up plaintiffs, consists of various individual citizens and community organizations located in and around Madera, California. TAC ¶¶ 5-10. The other group, the Picayune Tribe, is a federally-recognized Indian Tribe located in Madera County that operates a class III gaming facility called the Chukchansi Gold Resort and Casino on its reservation lands, which are located approximately 30 miles from the Madera Site. Picayune's Compl. ¶ 5.
E. PARTIAL REMAND AND SUBSEQUENT STATE AND AGENCY ACTIONS
After the denial of preliminary injunctive relief, the Stand Up plaintiffs amended their complaint, on June 27, 2013, inter alia, to add claims challenging the federal defendants' compliance with certain portions of the CAA when "approving and supporting" the North Fork Tribe's fee-to-trust application. See First Amended Compl. ("FAC") ¶¶ 80-95 (Fourth Claim for Relief), ECF No. 56; Partial Remand Order at 1; see also TAC ¶¶ 83-98 (Fourth Claim for Relief). The plaintiffs also added allegations that the Governor of California's August 2012 concurrence in the Secretary's two-part IGRA determination "is invalid." FAC ¶ 65; see id. ¶ 60 ("[I]n issuing his concurrence in the Secretary's two-part determination, the Governor of California engaged in policy-making decisions that bound the state, constituting a legislative act for which he lacked authority under California law, thereby rendering the Governor's concurrence and the Secretary's action null and void."); see also TAC ¶¶ 63, 68 (same). The plaintiffs made the same allegations in a state lawsuit against, inter alia, the State of California that is currently on appeal in California's Fifth District Court of Appeal, as discussed infra in Part I.G.
The same day that the plaintiffs amended their instant complaint, the California Legislature ratified the Tribal-State Compact in California Assembly Bill No. 377. See AB-277 Tribal gaming: compact ratification (2013-2014), Bill History, CAL. LEGIS. INFO., http://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201320140AB277 (last visited Mar. 13, 2016). The bill was subsequently approved by Governor Brown and filed with California Secretary Bowen on July 3, 2013. See Assemb. Bill No. 877, Ch. 51 (Cal. 2013) (codified at CAL. GOV'T CODE § 12012.25), Jt. App. at 2,222, ECF No. 130-4.
By letter dated July 16, 2013, California Secretary Bowen "forward[ed]" a copy of the Compact and the state legislation "ratifying" the Compact to Paula Hart, the Director of the Office of Indian Gaming at the DOI. Letter from Debra Bowen to Paula Hart (July 16, 2013) ("July 16, 2013 Transmittal Letter") at 1, Jt. App. at 2,199, ECF No. 130-1. The transmittal letter noted that the state legislation would not become "effective" until January 1, 2014, if at all, but that California Secretary Bowen was statutorily obligated, under California law, "to forward a copy of a compact upon receipt of the compact and the statute ratifying it." Id. at 1-2.
Id. at 2.
Under the IGRA, the type of gaming activities that the North Fork Tribe seeks to conduct, class III gaming activities, may not be conducted on Indian lands unless, inter alia, "conducted in conformance with a Tribal-State compact entered into by the Indian tribe ... that is in effect." 25 U.S.C. § 2710(d)(1)(C). A Tribal-State compact "take[s] effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register." Id. § 2710(d)(3)(B). When a Tribal-State compact is submitted to the Secretary for approval, the Secretary "has three choices[:]" (1) the Secretary "may approve the compact," id. § 2710(d)(8)(A); (2) the Secretary "may disapprove the compact, but only if it violates IGRA or other federal law or trust obligations, id. § 2710(d)(8)(B);" or (3) the Secretary "may choose to do nothing, in which case the compact is deemed approved after forty-five days `but only to the extent the compact is consistent with the provisions' of IGRA, id. § 2710(d)(8)(C)." Amador Cty., 640 F.3d at 377. Here, in response to California Secretary Bowen's "forwarding" of the Compact, the Secretary took no action.
Meanwhile, in light of the plaintiffs' added CAA claims, the federal defendants requested that the instant action be stayed and partially remanded for the limited purpose of allowing them to comply with certain CAA notice requirements. See Fed. Defs.' Mot. Stay Litig. & Partial Remand at 1-2, ECF No. 63; Partial Remand Order at 1, 3. On December 16, 2013, the Court granted the federal defendants' motion, remanding the case without vacatur of the administrative action taken to date, to allow the defendants to undertake the notice process required by CAA regulations. Partial Remand Order at 8. This case was stayed until May 5, 2014, see Minute Order (Mar. 18, 2014), on which date a supplemental
During consideration of the federal defendants' motion for partial remand and another then-pending motion by the plaintiffs, see Pls.' Mot. Compel Production Privilege Index & Suppl. AR, ECF No. 58 (denied without prejudice in light of the Court's Partial Remand Order, see Minute Order (Dec. 16, 2013)), in October 2013, the Tribal-State Compact was deemed approved by operation of law, under 25 U.S.C. § 2710(d)(8)(C), because the Secretary took no action. Notice of Tribal-State Class III Gaming Compact taking effect, 78 Fed. Reg. 62,649 (Oct. 22, 2013). The Secretary was then statutorily obligated to "publish in the Federal Register notice of any Tribal-State compact that is approved, or considered to have been approved." 25 U.S.C. § 2710(d)(8)(D). The Secretary published a notice in the Federal Register, upon which notice the Compact "took effect." See 78 Fed. Reg. at 62,649.
Shortly thereafter, the Stand Up plaintiffs again amended their complaint, adding a new claim challenging, as arbitrary and capricious, the federal defendants' third decision, in October 2013, to take no action to disapprove, within the statutorily-allowed period, the Tribal-State Compact between the North Fork Tribe and the State of California, thereby allowing the Compact to become effective upon the agency's publication of the Compact in the Federal Register. See Second Amended Compl. ¶¶ 98-104 (Fifth Claim for Relief), ECF No. 84. Specifically, the plaintiffs allege that "[t]he Secretary failed to disapprove a compact that has not been validly entered into by the State of California" and invalidly published notice of the approval in the Federal Register. Id. ¶ 102; see also TAC ¶¶ 99-105 (Fifth Claim for Relief). The Stand Up plaintiffs also moved to compel further supplementation of the AR, which motion the Court partially granted on October 15, 2014. See Stand Up II, 71 F.Supp.3d at 114, 124; Pls.' Mot. Compel Suppl. AR & Compel Production Privilege Index, ECF No. 85. Accordingly, on November 4 and 7, 2014, the federal defendants again, for the third and fourth times, supplemented the AR. See supra n.2; Corrected Notice Filing Suppl. AR, ECF No. 98; Certification Suppl. AR, ECF No. 100.
On November 4, 2014, California voters rejected the California Legislature's approval of the Tribal-State Compact. See Debra Bowen, Statement of Vote, Nov. 4, 2014, General Election, at 15, http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf (last visited Mar. 13, 2016); Official Voter Information Guide, Cal. General Election, Nov. 4, 2014, at 40-45, 74, http://vigarchive.sos.ca.gov/2014/general/en/pdf/ (last visited Mar. 13, 2016).
Approximately one month later, on December 3, 2014, the Stand Up plaintiffs filed their Third Amended Complaint, ECF No. 103, which is now the operative complaint for these plaintiffs, adding another claim for relief under the IRA, the IGRA and the APA based on the referendum, see id. ¶¶ 106-15 (Sixth Claim for Relief). Specifically, the plaintiffs allege that, due to the referendum, the State and the North Fork Tribe have not entered into a Tribal-State compact permitting class III gaming and, consequently, the basis for the Secretary's first two decisions in the IGRA ROD and the IRA ROD has been removed. Id. ¶¶ 106-15.
F. SUPPLEMENTAL BRIEFING, CALIFORNIA LITIGATION AND RELATED FILINGS
Notwithstanding the parties' arguments in ample briefing regarding the validity of the Tribal-State Compact, no party raised or addressed the issue of whether the State of California is a party required to be joined under Federal Rule of Civil Procedure 19 and, if so, the effect of California's absence on the plaintiffs' claims and the parties' positions. See Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1495 (D.C.Cir. 1995) (holding that, where the validity of a tribal-state compact is at issue, the State is an indispensable party to the suit, reasoning that "the State ... has an interest in the validity of a compact to which it is a party, and this interest would be directly affected by the relief" sought). In light of binding precedent in this Circuit, see id. at 1495 n. 3 (making clear that, given its import, the Court has a duty to raise the issue sua sponte), the Court subsequently ordered supplemental briefing to address this issue, Mem. & Order (Sept. 30, 2015), ECF No. 135, which briefing took an additional two months, from October to December 2015, to complete, see Pls.' Suppl. Br. Whether Cal. Must Joined Under Fed. R. Civ. P. 19 ("Pls.' Suppl. Brief"), ECF No. 139 (filed Nov. 4, 2015); Picayune's Resp. Court's Order Regarding Joinder Cal. ("Picayune's Suppl. Br."), ECF No. 140; North Fork's Opening Suppl. Br. Rule 19 ("North Fork's Suppl. Br."), ECF No. 137; United States' Suppl. Br. Regarding Order Sept. 30, 2015 ("Defs.' Suppl. Br."), ECF No. 138; Pls.' Reply Supp. Suppl. Br. ("Pls.' Suppl. Reply"), ECF No. 143; Picayune's Resp. Br. Regarding Joinder Cal. ("Picayune's Suppl. Reply"), ECF No. 144; North Fork's Reply Br. Supp. Suppl. Br. Rule 19 ("North Fork's Suppl. Reply"), ECF No. 141; United States' Reply Suppl. Brs. Regarding Order Sept. 30, 2015 ("Defs.' Suppl. Reply"), ECF No. 142 (filed Dec. 2, 2015).
Meanwhile, and relatedly, the North Fork Tribe initiated a federal lawsuit in the Eastern District of California against the State of California challenging the State's position, "[f]ollowing the referendum,... that the compact ha[d] not been ratified in accordance with California law and that the State therefore ha[d] not entered into a compact with the Tribe." North Fork Rancheria v. State of California, No. 15-cv-419-AWI-SAB ("E.D. Cal. Case"), Compl. ("E.D. Cal. Compl.") ¶ 6, ECF No. 1, available at Pls.' Suppl. Br., Ex. 1, ECF No. 139-1; see E.D. Cal. Case, Answer ¶ 6, ECF No. 9 ("aver[ing] that it has been, and is, the State's position that that [sic] as a result of the statewide referendum..., the statute ratifying the North Fork Compact never took effect"); Pls.' Notice Related Cases, ECF No. 118. The IGRA "imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact,
Over the course of the supplemental briefing in the instant case, the Eastern District of California court ruled in favor of the North Fork Tribe and, deciding only the second issue, held "that the State failed to enter into negotiations with North Fork for the purpose of entering into a Tribal-State compact within the meaning of § 2710," id. at 9, 23, by "flatly refus[ing] to negotiate with the tribe regarding the Madera parcel" after the referendum, id. at 19. Consequently, the court ordered the parties "to conclude a compact within 60 days ... [,]" id. at 23, pursuant to an IGRA provision requiring a court to "order the State and the Indian Tribe to conclude... a compact within a 60-day period," when "the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude [such] a ... compact," 25 U.S.C. § 2710(d)(7)(B)(iii). The State of California did not appeal the court's decision and, thus, it is final. See North Fork's Notice Devs. Arising From Related Case ("North Fork's Notice") ¶ 7, ECF No. 154; Defs.' Notice Proposed Compact Submission ("Defs.' Notice") at 1 n.1, ECF No. 155; Defs.' Notice Related Devs. ("Defs.' Second Notice") at 1, ECF No. 163.
When the parties failed to conclude a compact within the prescribed time, see E.D. Cal. Case, Jt. Resp. Order Show Cause Why Court Should Not Order Parties Mediation Pursuant 25 U.S.C. § 2710(d)(7)(B)(iv) (Jan. 13, 2016), ECF No. 26, the court continued down the path of the IGRA's "elaborate remedial scheme designed to ensure the formation of a Tribal-State contract," Seminole Tribe, 517 U.S. at 50, 116 S.Ct. 1114, and appointed a
The IGRA then required "the Secretary [to] prescribe, in consultation with the Indian Tribe, procedures [(1)] which are consistent with the proposed compact selected by the mediator ..., the provisions of [the IGRA], and the relevant provisions of the laws of the State, and [(2)] under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." 25 U.S.C. § 2710(d)(7)(B)(vii). On July 29, 2016, Lawrence S. Roberts, Acting Assistant Secretary of Indian Affairs, notified the North Fork Tribe and the State of California that, after reviewing the mediator's compact submission, "procedures under which the [North Fork Tribe] may conduct Class III gaming consistent with IGRA" had been issued and, thus, "Secretarial Procedures for the conduct of Class III gaming on the Tribe's Indian lands are prescribed and in effect." Defs.' Second Notice, Ex. A, Letter from Lawrence S. Roberts to Maryann McGovran, Chairwoman, North Fork Rancheria of Mono Indians (July 29, 2016) at 1, 3, ECF No. 163-1; see also id. Secretarial Procedures for the North Fork Rancheria of Mono Indians (Draft, May 13, 2016) ("Secretarial Procedures"), ECF No. 163-1. The Secretarial Procedures provide that they constitute "the full and complete authorization by the Secretary of the Interior for the Tribe to conduct class III gaming in its Indian lands pursuant to IGRA," and "supersede any prior agreements or understandings with respect to the subject matter hereof." Secretarial Procedures at 92, 99 (§§ 14.1, 18.2). The Procedures further provide that, upon their effective date, "any and all prior tribal-state Class III gaming compacts entered into between the Tribe and the State shall be null and void and of no further force and effect." Id. at 99 (§ 18.2).
Approximately one month before the Secretarial Procedures were issued, the Picayune Tribe filed, on July 1, 2016, another federal lawsuit in the Eastern District of California, against the same federal defendants in this case, asserting seven claims for relief. See Defs.' Second Notice at 2; Picayune Rancheria v. U.S. Dep't of the Interior, No. 16-cv-950-AWI-EPG (E.D.Cal. July 1, 2016), Compl. ¶¶ 49-94, ECF No. 1. In that case, the Picayune Tribe challenges, inter alia, the effectiveness of the Governor's concurrence in the August 31, 2012 IGRA ROD on three separate grounds, see id. at ¶¶ 53, 64, 69, the continuing validity and effect of the IGRA ROD, see id. ¶¶ 74, 81, and the Secretary's ability, in light of the referendum vote, to "prescribe any procedures under which class III gaming can occur on the Madera [Site]," id. at ¶ 86.
G. CALIFORNIA STATE COURT LITIGATION
In addition to the instant lawsuit and federal lawsuits in the Eastern District of California, the plaintiff Stand Up for California! brought a lawsuit in California Superior
The lower California court found against both the plaintiff Stand Up for California! and the defendant-intervenor North Fork Tribe, in favor of the State of California. With respect to Stand Up for California!'s complaint, the court held "that the Governor was authorized to concur [in the two-part IGRA determination] under the California Constitution .... because issuing the concurrence was necessary for him to negotiate and conclude a compact with the Tribe." Pls.' Mem. at 28 n.23.
Both Stand Up for California! and the North Fork Tribe appealed the lower court's rulings. Pls.' Mem. at 28 n.23; Stand Up for California v. California, Case No. MCV062850 (Cal.Super.Ct. Madera Cty. Mar. 3, 2014), appeal filed, Case No. F069302 (Cal. 5th Dist.Ct.App. Apr. 11, 2014) ("Pls.' State Case"); Stand Up for California v. California, Case No. MCV062850 (Cal.Super.Ct. Madera Cty. June 26, 2014), appeal filed, Case No. F070327 (Cal. 5th Dist.Ct.App. Oct. 27, 2014). The North Fork Tribe dismissed its appeal on June 2, 2016. North Fork Rancheria v. California, 2016 WL 3519245, at *4. Stand Up for California!'s appeal, however, is still currently pending before California's Fifth District Court of
H. PARTIES' POSITIONS ON RECENT DEVELOPMENTS
Before the issuance of the Secretarial Procedures, the parties disputed the effect of the related litigation and corresponding events on the instant suit. While the North Fork Tribe predicted that the recent developments "may affect the resolution of Stand Up's fifth and sixth claims for relief, as both claims assume that North Fork is seeking to game on the basis of the 2012 Compact, and neither contemplates the possibility of Secretarial procedures," North Fork's Notice ¶ 13, the federal defendants bluntly posited that "Stand up's Fifth and Sixth claims for relief, which concern the deemed approved compact,... will be mooted when the Secretary issues procedures that supplant the deemed approved compact," Defs.' Notice at 2.
The Stand Up plaintiffs disagreed. According to them, their "Fifth Claim ... is not moot until the compact terminates under its own terms or the federal defendants affirmatively terminate the compact in some lawful manner," and their Sixth Claim would not be moot because it "does not challenge the validity of the compact, but rather the validity of the trust acquisition and two-part determination." Pls.' Objs. Notice Devs. Arising From Related Case & Notice Proposed Compact Submission at 2-3, ECF No. 156. Yet, the Stand Up plaintiffs nonetheless suggested that "[t]he Court [could not] resolve plaintiffs' Sixth Cause of Action until such time as the Secretary prescribes procedures and the parties have the opportunity to brief the effect of those procedures on the challenged trust decision." Id. at 3. Accordingly, the Stand Up plaintiffs asked the Court to "disregard" recent events, "adjudicate plaintiffs' claims on the administrative record[,]" and "[i]n the event the Secretary prescribes procedures, the Court should order further supplemental briefing on the effect of such procedures." Id. at 4.
Seeking yet another reason for additional supplemental briefing in this long-standing litigation, the Picayune Tribe, joined by the Stand Up plaintiffs, requested a "briefing schedule to address the recent developments[,] .... the parallel litigation[,]... [and] the legal consequences here." Picayune's Mot. Suppl. Briefing at 1, ECF No. 158; Pls.' Joinder Picayune's Mot. Suppl. Briefing at 1, ECF No. 161. The Picayune Tribe also suggested the need for another "remand to the agency," especially because the newly established compact "has fundamental and voluminous changes from the prior compact, including the elimination of all mitigation to other tribes affected by the compact." Picayune's Mot. Suppl. Briefing at 1, 3-4.
On August 16, 2016, upon consideration of the recent developments and "to avoid additional delay in resolution of the pending motions," the Court denied the Picayune Tribe's motion for supplemental briefing, but directed the parties to submit a "brief summary ... of their position on the effect, if any, on the claims pending in this case of the related developments." Minute Order (Aug. 16, 2016). The parties' positions are substantially the same. See generally Pls.' Summ. Positions Pending Cls. ("Pls.' Summ."), ECF No. 164; Pl. Picayune's Resp. Ct.'s Aug. 16, 2016 Order ("Picayune's Summ."), ECF No. 165; Defs.' Notice Regarding Order Aug. 16, 2016
The federal defendants assert that the Stand Up plaintiffs' Fifth and Sixth Claims for Relief "and their associated issues are now moot" due to "the issuance of Secretarial Procedures which rendered the prior Compact challenged by Stand Up `null and void.'" Defs.' Summ. at 1, 4. The North Fork Tribe agrees with the federal defendants that the Stand Up plaintiffs' Fifth Claim for Relief is moot and, similarly, argues that "[t]he issuance of Secretarial procedures ... provides an additional reason to reject Stand Up's sixth claim for relief." North Fork's Summ. at 1.
By contrast, the Stand Up plaintiffs maintain that "the related developments... have no effect on any claims pending in this case, except to the extent that they demonstrate Plaintiffs' entitlement to summary judgment on their challenges to the trust acquisition and the authorization of gaming at the Madera Site." Pls.' Summ. at 1. They continue to argue that "the Secretarial Procedures do not moot or otherwise invalidate" their Fifth and Sixth Claims for Relief because "the Fifth Claim is not moot unless the federal defendants concede that in publishing approval of the Compact in the Federal Register the Secretary violated the APA" and the "Sixth Claim challenges the Secretary's 2011 and 2012 records of decision to acquire the Madera [S]ite into trust for gaming, not the validity of the Compact," largely reiterating the allegations in their Third Amended Complaint and corresponding arguments already made in prior briefing. Id. at 2-3; see generally id. at 3-10. The Picayune Tribe, piggybacking on the Stand Up plaintiffs' Sixth Claim for Relief, likewise argues that "the issuance of Secretarial Procedures shows that the IRA and IGRA decisions must be vacated" because "the decisions relied on a compact that never took effect." Picayune's Summ. at 1, 4-5. The parties' arguments are addressed in more detail infra in Part III.A and B.
* * *
The pending motions for summary judgment are ripe for review.
II. LEGAL STANDARDS
A. MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the court finds, based upon the pleadings, depositions, and affidavits and other factual materials in the record, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a), (c); see Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505,
In APA cases such as this one, involving cross-motions for summary judgment, "the district judge sits as an appellate tribunal. The `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir. 2001) (collecting cases). Accordingly, this Court need not and ought not engage in lengthy fact finding, since "[g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions." James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C.Cir.1996); see also Lacson v. U.S. Dep't of Homeland Sec., 726 F.3d 170, 171 (D.C.Cir.2013) (noting, in APA case, that "determining the facts is generally the agency's responsibility, not ours"); Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006) ("Under the APA ... the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." (quotations and citation omitted)). Judicial review is limited to the administrative record, since "[i]t is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision." CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C.Cir. 2014) (quotations and citations omitted; alteration in original); see 5 U.S.C. § 706 ("[T]he Court shall review the whole record or those parts of it cited by a party...."); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting, when applying arbitrary and capricious standard under the APA, "`[t]he focal point for judicial review should be the administrative record already in existence....'" (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973))).
B. ADMINISTRATIVE PROCEDURE ACT
Under the APA, a reviewing court must set aside a challenged agency action that is found to be, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A); "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C); or "without observance of procedure required by law," id. § 706(2)(D); Otis Elevator Co. v. Sec'y of Labor, 762 F.3d 116, 120-21 (D.C.Cir.2014) (citing Fabi Constr. Co. v. Sec'y of Labor, 370 F.3d 29, 33 (D.C.Cir. 2004)). The arbitrary or capricious provision, under subsection 706(2)(A), "is a catchall, picking up administrative misconduct not covered by the other more specific paragraphs" of the APA. Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. (ADPSO), 745 F.2d 677, 683 (D.C.Cir.1984) (Scalia, J.).
The scope of review under the "arbitrary and capricious standard is `highly deferential,'" Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C.Cir.2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C.Cir.2008)), and "narrow," such that "a court is not to substitute its judgment for that of the agency," Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011) (quotations omitted); Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C.Cir.2016); Fogo De Chao (Holdings)
In evaluating agency actions under the "arbitrary and capricious" standard, courts "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Ore. Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quotations omitted) (citing Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)); Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 716 F.3d 183, 195 (D.C.Cir.2013). "An agency acts arbitrarily or capriciously if it has relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation either contrary to the evidence before the agency or so implausible as to not reflect either a difference in view or agency expertise." Defs. of Wildlife v. Jewell, 815 F.3d at 9. When an agency "`fail[s] to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action.'" Cty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C.Cir.1999) (quoting BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C.Cir.1999)); see Select Specialty Hosp.-Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C.Cir.2014) (noting that when "`an agency's failure to state its reasoning or to adopt an intelligible decisional standard is ... glaring ... we can declare with confidence that the agency action was arbitrary and capricious'" (quoting Checkosky v. SEC, 23 F.3d 452, 463 (D.C.Cir.1994))). At the very least, the agency must have reviewed relevant data and articulated a satisfactory explanation establishing a "`rational connection between the facts found and the choice made.'" Ark Initiative, 816 F.3d at 127 (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)); Am. Trucking Ass'ns, Inc., 724 F.3d at 249 (same); see also EPA v. EME Homer City Generation, L.P., ___ U.S. ___, 134 S.Ct. 1584, 1602, 188 L.Ed.2d 775 (2014) (holding that agency "retained discretion to alter its course [under a regulation] provided it gave a reasonable explanation for doing so"); Amerijet Int'l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C.Cir.2014) ("[A] fundamental requirement of administrative law is that an agency set forth its reasons for decision; an agency's failure to do so constitutes arbitrary and capricious agency action." (quotations and citation omitted)). "[C]onclusory statements will not do; an agency's
Moreover, when review of an agency's action is "bound up with a record-based factual conclusion," the reviewing court must determine whether that conclusion "is supported by substantial evidence." Dickinson v. Zurko, 527 U.S. 150, 164, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quotations omitted); see also Kappos v. Hyatt, ___ U.S. ___, 132 S.Ct. 1690, 1695, 182 L.Ed.2d 704 (2012) (affirming review of "factual findings under the APA's deferential `substantial evidence' standard"). "Substantial evidence" is "enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury." Defs. of Wildlife v. Jewell, 815 F.3d at 9 (quotations and citation omitted). "An agency's factual findings must be upheld when supported by substantial evidence in the record considered as a whole." Id.; see also Kaufman v. Perez, 745 F.3d 521, 527 (D.C.Cir.2014) (noting that agency factual findings may be "set aside ... `only if unsupported by substantial evidence on the record as a whole.'" (quoting Chippewa Dialysis Servs. v. Leavitt, 511 F.3d 172, 176 (D.C.Cir.2007))); Dillmon v. Nat'l Transp. Safety Bd., 588 F.3d 1085, 1089 (D.C.Cir.2009) (noting that agency's factual findings may be adopted "as conclusive if supported by substantial evidence ... even though a plausible alternative interpretation of the evidence would support a contrary view" (quotations omitted)).
In their Third Amended Complaint, the Stand Up plaintiffs challenge the three administrative decisions at issue in this case on eight grounds divided into six separate claims. See generally TAC. Specifically, the Stand Up plaintiffs challenge: (1) the federal "[d]efendants' determination that the Secretary is authorized to acquire land in trust for the [North Fork] Tribe under [the IRA,] 25 U.S.C. § 465[,]" in violation of the IRA and the APA, TAC ¶ 60; see id. ¶¶ 56-60 (First Claim for Relief); (2) the federal defendants' determinations, under the IGRA, 25 U.S.C. § 2719(b)(1)(A), "that the casino's detrimental impacts will be mitigated" and "that the proposed project will not be detrimental to the surrounding community," in violation of the IGRA and the APA, TAC ¶ 68; see id. ¶¶ 61-68 (Second Claim for Relief); (3) "the Secretary's decision to take the [Madera Site] into trust for the purpose of conducting class III gaming based on the [Governor of California's] invalid concurrence," in violation of the IGRA and the APA, id. ¶¶ 63, 68 (part of Second Claim for Relief); (4) the DOI's issuance of the IGRA ROD, IRA ROD and FEIS allegedly "without obtaining, considering and evaluating sufficient data" and in spite of "serious procedural defects during the review process," in violation of the NEPA and the APA, id. ¶ 70; see id. ¶¶ 69-82 (Third Claim for Relief); (5) the federal defendants' conformity determination, under the CAA, allegedly "utiliz[ing]... emissions estimates that were based upon manipulated and unsupported assumptions" and "fail[ing] to identify, describe, and adopt a process for implementation and enforcement of ... mitigation measures," in violation of the CAA and the APA, id. ¶¶ 93-95; see id. ¶¶ 83-98 (Fourth Claim for Relief); (6) the Secretary's "fail[ure] to disapprove a [tribal-state] compact that has not been validly entered into by the State of California" and subsequent publication of notice of the approval of the compact in the Federal Register, in violation of the IGRA and the APA, id. ¶¶ 103-05; see id. ¶¶ 99-105 (Fifth Claim for Relief); (7) the federal defendants' "decision to keep the [Madera Site] in trust,"
The Picayune Tribe asserts two causes of action, challenging (1) the federal defendants' alleged "fail[ure] to properly consider detrimental impacts on the Picayune Tribe" and "the North Fork Tribe's lack of historical connection to the Madera Site," in violation of the IGRA and the APA, Picayune's Compl. ¶¶ 50-51, see id. ¶¶ 49-53 (First Cause of Action); and (2) the federal defendants' decision to acquire land under the IRA on behalf of the North Fork Tribe based on the allegedly "invalid IGRA Decision," in violation of the IRA and the APA, id. ¶ 56; see id. ¶¶ 54-59 (Second Cause of Action).
In light of the Secretarial Procedures prescribed by the Secretary under which the North Fork Tribe may conduct class III gaming on the Madera Site, the Stand Up plaintiffs' sixth and seventh challenges, as enumerated above, are effectively moot. The Stand Up plaintiffs' third and eighth challenges implicate state action under state law, and thus, raise the issue of whether the State of California is required, yet unable, to be joined as a party in this suit, pursuant to Rule 19 of the Federal
A. STAND UP PLAINTIFFS' FIFTH AND SIXTH CLAIMS FOR RELIEF
The Stand Up plaintiffs challenge the Secretary's actions with respect the 2012 Tribal-State Compact, executed by the North Fork Tribe and Governor Brown, see supra Part I.C, based on the Compact's alleged invalidity. Specifically, in their Fifth Claim for Relief, the plaintiffs claim that the Secretary violated the APA and the IGRA by "fail[ing] to disapprove" the Compact upon receiving it from California Secretary Bowen, and thereafter publishing notice of approval in the Federal Register, TAC ¶¶ 103-05, because "[t]he compact between the North Fork Tribe and the State of California ha[d] not been validly entered into and [was] not binding on the State of California" pending the referendum vote in the November 2014 general election, id. ¶ 102. Similarly, in their Sixth Claim for Relief, the plaintiffs claim that the Secretary violated the APA, the IGRA, and the IRA by deciding to keep the Madera Site in trust for the North Fork Tribe, id. ¶ 115, even though the "California voters, pursuant to their right of referendum, rejected the compact," in the November 2014 general election, and, consequently, "the State has not entered into a compact with the North Fork Tribe and the Tribe has no compact under which it can develop its proposed class III gaming facility for which the [Madera Site] was taken into trust," id. ¶ 107.
All parties agree that the 2012 Tribal-State Compact is not in effect and will not govern the North Fork Tribe's gaming operations at the Madera Site. See Pls.' Summ. at 4 ("[The] Compact ... was never legally effective."); Picayune's Summ. at 4 ("[A] compact ... was never in effect."); Defs.' Summ. at 5 ("The challenged Compact is now `null and void'...."); North Fork's Summ. at 6 ("Now that Secretarial procedures have been issues, ... the 2012 Compact has been superseded...."). As a result, the validity of the Compact is simply no longer at issue, and the plaintiffs' claims that are premised upon the Compact's alleged invalidity fail to provide a basis upon which relief can be granted. See Boose v. District of Columbia, 786 F.3d 1054, 1058 (D.C.Cir.2015) (explaining "the relationship between mootness and the merits").
B. STAND UP PLAINTIFFS' CHALLENGES TO THE GOVERNOR'S CONCURRENCE
As part of their Second Claim for Relief, for violations of the IGRA and the APA, the Stand Up plaintiffs allege that Governor Brown's concurrence in the IGRA ROD "is invalid" because it was a "policy-making decision that bound the state, constituting a legislative act for which he lacked authority under California law." TAC ¶¶ 63, 68; see also Pls.' Mem. at 29 ("California law nowhere expressly authorizes the Governor to issue concurrences."). Similarly, as part of their Sixth Claim for Relief, for violations of the IRA, the IGRA, and the APA, the Stand Up plaintiffs allege that "a crucial ground" for the Governor's "concurrence no longer exists[,]" since the concurrence "was based on the development of a class III gaming facility at the [Madera Site] pursuant to a compact between the State and the Tribe." TAC ¶ 111. As a result, the plaintiffs allege that "the Secretary's decision to take the [Madera Site] into trust for the purpose of conducting class III gaming," id. ¶ 68, and "the decision to keep the [Madera Site] in trust," are "arbitrary, capricious, an abuse
The plaintiffs conflate and, in effect, challenge, three separate actions: (1) the Secretary's two-part determination approving off-reservation gaming at the Madera Site, i.e., the IGRA ROD; (2) the Governor's concurrence in the IGRA ROD; and (3) the Secretary's decision to acquire the Madera Site in trust on behalf of the North Fork Tribe, i.e., the IRA ROD. The Court first addresses the plaintiffs' challenge to the Secretary's two-part determination, before addressing the plaintiffs' challenges to the Governor's concurrence and the Secretary's land acquisition decision.
Secretary's Two-Part Determination (IGRA ROD)
As an initial matter, the North Fork Tribe appropriately points out that, with respect to the IGRA ROD, the plaintiffs' "argument makes no sense" because "the Secretary's [two-part] determination is not dependent on the Governor's concurrence, and necessarily comes before the Governor even has a chance to concur." North Fork's Mem. at 59-60 (emphasis in original); see 25 U.S.C. § 2719(b)(1)(A) (permitting gaming on lands acquired in trust by the Secretary if the Secretary makes a two-part determination and the Governor concurs in that determination); 25 C.F.R. § 292.13(c)-(d) (same); id. § 292.22 (providing that "[i]f the Secretary makes a favorable Secretarial Determination, the Secretary will send to the Governor of the State," inter alia, [a] request for the Governor's concurrence in the Secretarial Determination"). As such, the IGRA ROD in this case was issued in September 2011, and the Governor did not concur in that decision until almost a year later, in August 2012. See Concurrence Letter at 1-2.
The plaintiffs respond that "even though the Secretary makes the two-part determination prior to requesting the concurrence, the Secretary has no authority to issue a final decision or give legal effect to the two-part determination unless and until the governor concurs." Pls.' Reply at 39; see also id. at 38-39 (arguing that the "IGRA requires that the state approvals be in place before the Secretary can take any action under federal law" because "Congress conditioned ... the [Secretary's] two-part determination on state approval"); id. at 39 ("Contrary to the [North Fork] Tribe's assertion, the two-part determination is totally dependent upon the concurrence."); Pls.' Summ. at 7 (maintaining that "the Secretary has no authority to issue a two-part determination" without the Governor's concurrence). The plaintiffs' reading of the law is incorrect.
The Secretary's two-part determination is not contingent upon the Governor's concurrence, but gaming on land acquired in trust by the Secretary after October 17,
Thus, to the extent that the "[p]laintiffs argue that the Secretary's two-part determination is invalid because the [Governor's] concurrence was void ab initio," and challenge the Secretary's approval of off-reservation gaming at the Madera Site, i.e., the IGRA ROD, on those grounds, the defendants are entitled to summary judgment on the plaintiffs' claim. Pls.' Reply at 37. The validity of a Governor's concurrence simply does not affect the validity of a Secretarial two-part determination: each is a separate requirement for gaming to take place on newly-acquired, non-reservation lands.
California Governor's Concurrence
With respect to their challenge to the validity of the Governor's concurrence in the IGRA ROD, the Stand Up plaintiffs acknowledge that (1) "the Governor's authority to concur is an issue of California state law," Pls.' Mem. at 28 n.24; Pls.' Reply at 38; (2) "[t]he issue of whether the Governor's concurrence was authorized under California law is currently before two different California courts of appeal," Pls.' Mem. at 28 n.23 (citing Pls.' State Case, and United Auburn Indian Cmty., supra, n.13); see supra Part I.G, and (3) "the California Court of Appeal is the proper court to address plaintiffs' challenge to the validity of the concurrence under state law," Pls.' Reply at 37-38. The plaintiffs also concede that in both cases pending in the California state court system, "the lower courts found that the Governor was authorized to concur[,] under the California Constitution," with the Secretary's two-part determination under the IGRA. Pls.' Mem. at 28 n.23.
Set against these concessions, the plaintiffs nonetheless contend that "this [C]ourt's resolution of this state law issue is necessary for the relief plaintiffs seek under the APA," Pls.' Mem. at 28 n.24, and that "this [C]ourt may address issues of state law necessary" for the plaintiffs' "claim for relief under federal law," Pls.'
For their part, the federal defendants contend that "[t]he Governor of California's concurrence with the Secretary's two-part determination is valid as a matter of federal law" and that there is no need to "delve into state law" because California permits class II and III gaming. Defs.' Mem. at 24.
Contrary to the federal defendants' position, the Court agrees with the plaintiffs that a Governor's authority to concur in an IGRA two-part determination is an issue of state law, but disagrees with the plaintiffs that this Court may address the validity of the California Governor's concurrence under California law. As another court explained,
Confederated Tribes of Siletz Indians, 110 F.3d at 697-98. Thus, the plaintiffs are correct that, "if the Governor lacks authority under state law to concur, the concurrence is invalid." Pls.' Reply at 40. Still, the federal defendants aptly point out that "[t]o the extent that Stand Up seeks to have this Court declare the Governor's concurrence invalid, they have neglected to join the party that is purported to have acted unlawfully — the Governor of California." Defs.' Mem. at 26. Moreover, the State of California is missing from this lawsuit, and any challenge to the validity of the Governor's concurrence may not proceed in the State's absence.
Federal Rule of Civil Procedure 19 prescribes a three-part test for determining whether litigation may proceed in the absence of a particular party "who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction." FED. R. CIV. P. (a)(1); see Kickapoo Tribe, 43 F.3d at 1494. First, the Court must determine if the absent party is required (or, necessary) for a just adjudication, pursuant to Rule 19(a)(1), which "states the principles that determine when persons or entities must be joined in a suit," Republic of the Philippines v. Pimentel, 553 U.S. 851, 862, 128 S.Ct. 2180, 171 L.Ed.2d 131 (2008), including whether "in that person's absence, the court cannot accord complete relief among existing parties," or whether proceeding would either (i) impair the absent person's ability to protect an interest relating to the subject of the litigation, or (ii) leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations because of the absent person's interest in the action, FED. R. CIV. P. 19(a)(1). Second, the Court must determine whether the person's joinder is feasible. FED. R. CIV. P. 19(b); Kickapoo Tribe, 43 F.3d at 1494. Finally, if the absent person required as a party cannot be joined, "the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed." FED. R. CIV. P. 19(b); see Pimentel, 553 U.S. at 862, 128 S.Ct. 2180.
In sum, "whether a party is indispensable for a just adjudication requires a determination regarding whether the absent party is necessary to the litigation; if so, whether the absent party can be joined in the litigation; and if joinder is infeasible, whether the lawsuit can nevertheless proceed `in equity and good conscience.'" Kickapoo Tribe, 43 F.3d at 1494 (quoting FED. R. CIV. P. 19(b)). The rule is "based on equitable considerations" and "the determination whether to proceed will turn upon factors that are case specific,.... consistent with the fact that the determination of who may, or must, be parties to a suit has consequences for the persons and entities affected by the judgment; for the judicial system and its interest in the integrity of its processes and the respect accorded to its decrees; and for society and its concern for the fair and prompt resolution of disputes." Pimentel, 553 U.S. at 863, 128 S.Ct. 2180. Actions may "proceed even when some persons who otherwise should be parties to the action cannot be joined," but "the decision whether to proceed without a required person .... `must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests.'" Id. (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)). Indeed, "review otherwise available under the Administrative Procedure Act may be unavailable due to the impossibility of joining an indispensable party," particularly where a party enjoys sovereign immunity. Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 777, 778 n. 14 (D.C.Cir.1986).
"[T]he issue of joinder can be complex[,]" Pimentel, 553 U.S. at 863, 128 S.Ct. 2180, and though no party in the instant case raised the issue of whether the State of California is an indispensable party under Rule 19, courts have an "independent duty to raise a Rule 19(a) issue sua sponte," Cook v. FDA, 733 F.3d 1, 6, 11 (D.C.Cir.2013) (quotations and citation omitted); Kickapoo Tribe, 43 F.3d at 1495 n. 3; see Pimentel, 553 U.S. at 861, 128 S.Ct. 2180 ("A court with proper jurisdiction may ... consider sua sponte the absence of a required person and dismiss for failure to join."); see also FED. R. CIV. P. 19(a)(2) ("If a person has not been joined as required, the court must order that the person be made a party.").
Second, California cannot be joined in the lawsuit. As a state sovereign, it is immune from suit under the Eleventh Amendment of the U.S. Constitution, absent consent or waiver, see Seminole Tribe, 517 U.S. at 54-55, 116 S.Ct. 1114; Kickapoo Tribe, 43 F.3d at 1495-96; Pls.' Suppl. Br. at 16 (conceding that "joinder is likely infeasible because of the State's sovereign immunity"), and "California has not waived its sovereign immunity with respect to the present litigation," North Fork's Suppl. Br. at 8.
Lastly, the plaintiffs' claims challenging the Governor's concurrence cannot "in equity and good conscience" proceed. Pimentel, 553 U.S. at 862, 128 S.Ct. 2180. Indeed, immunity is such a compelling interest that the Rule 19 inquiry is "more circumscribed" with respect to assessing whether a lawsuit can proceed in the absence of a necessary party that is also immune from suit, such that, where the party would be unavoidably prejudiced by a judgment rendered in its absence, grounds exist to dismiss the case "without consideration of any additional factors." Kickapoo Tribe, 43 F.3d at 1496-98; see id. at 1497 n. 9 ("The inquiry as to prejudice under Rule 19(b) is the same as the inquiry under Rule 19(a)(2)(i) regarding whether continuing the action will impair the absent party's ability to protect its interest."). Such are the circumstances here. Since California would be unavoidably prejudiced by a judgment rendered in its absence relating to the Governor's concurrence, these claims are appropriately
Despite the allegations in their Third Amended Complaint, inter alia, that "the Governor of California engaged in policy-making decisions that bound the state, constituting a legislative act for which he lacked authority under California law," TAC ¶ 63, the plaintiffs deny that they are "directly challeng[ing] the Governor's action as unlawful." Pls.' Reply at 38 n.27. Thus, in their view, "[t]here is no cognizable reason why plaintiffs were required to join the Governor under Rule 19." Id. As support, they reason that the Governor "has no legal interest in the challenge to the Secretary's approval of the compact," id. (citing Pyramid Lake Paiute Tribe v. Burwell, 70 F.Supp.3d 534 (D.D.C.2014)), and "even if he did have such an interest, he is not necessary and indispensable because the Secretary can adequately represent that interest here," id. (citing Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1351 (D.C.Cir.1996)). This reasoning defies logic.
As explained supra, the Governor and the State of California have an immutable interest in the plaintiffs' challenges regarding the Governor's authority and action in this case and, contrary to the plaintiffs' assertion otherwise, the Secretary absolutely cannot represent the interests of the California or its Governor, as "the Secretary [is] not in a position to champion the State's position in view of his [or her] trust obligations to the Tribe." Kickapoo Tribe, 43 F.3d at 1499.
The cases cited by the plaintiffs are inapposite. In both cases, the courts found that the Secretary could adequately represent any interests of the nonparty Indian tribes. In Ramah Navajo School Board, no conflict existed between the United States' interest and the nonparty tribes' interests in the case. 87 F.3d at 1351; see id. (finding "no concern that the Tribes' interests might conflict with one another and keep the Secretary from adequately representing them all"). Similarly, in Pyramid Lake, the Secretary's interest "align[ed]" with the interests of the absent tribes. 70 F.Supp.3d at 541. Here, the Secretary cannot represent California's legal and financial interests in the outcome of the plaintiffs' claims because the Secretary does not share these interests and, as explained above, has a conflicting trust obligation to the North Fork Tribe. Cf. Amador Cty. v. U.S. Dep't of the Interior, 772 F.3d 901, 193, 196 (majority op.) & 197 (Randolph, J., concurring) (D.C.Cir.2014) (suggesting, without deciding, that the Secretary could adequately represent an Indian tribe's interest in defending the Secretary's no-action approval of its Tribal-State gaming compact against the County because of the Secretary's trust obligations to the Indian tribe).
Accordingly, the plaintiffs' claims in any way involving the Governor's concurrence must be dismissed due to the absence of an indispensable party.
Secretary's Land Acquisition Decision (IRA ROD)
For the reasons discussed, supra, Part III.B.2, to the extent that the plaintiffs predicate their challenge to the Secretary's decision to acquire the Madera Site in trust for the North Fork Tribe, i.e., the IRA ROD, on the basis of an invalid or no-longer-viable gubernatorial concurrence, this challenge triggers an assessment of the legality of the Governor's concurrence under California law and, again, Rule 19 poses "an insurmountable obstacle to [the plaintiffs'] claim." Detroit Int'l Bridge Co. v. Gov't of Canada, 192 F.Supp.3d 54, 68, No. 10-cv-476 (RMC), 2016 WL 3460307,
The plaintiffs seek to avoid this result by acknowledging that "the Secretary is not required to investigate the vagaries of California State law," and has the "authority to consider the concurrence valid in order to give it effect under federal law," regardless of "the validity or invalidity of action under state law." Pls.' Reply at 23, 39. Indeed, neither the IGRA nor the IRA require the Secretary to determine the validity of the Governor's concurrence under California law. Thus, in light of Governor Brown's August 2012 letter explicitly concurring in the Secretary's two-part determination, see Concurrence Letter, the Secretary's November 2012 land acquisition decision was reasonable, see Detroit Int'l Bridge Co., 192 F.Supp.3d at 76-81, 2016 WL 3460307, at *15-19.
At the same time, the plaintiffs strenuously argue that "if the concurrence upon which the Secretary relied is determined to have been invalid, the [IRA] determination" must be, at least, reconsidered and, possibly, "rescinded," Pls.' Reply at 41, or "remanded," id. at 2, 26; see 5 U.S.C. § 706(2)(C) (requiring courts to "hold unlawful and set aside agency action, findings, and conclusions found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right"); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1557 (10th Cir.1997) (explaining, in the similar Tribal-State compact context, "that Congress did not intend to force the Secretary to make extensive inquiry into state law to determine whether the person or entity signing the compact for the state in fact had the authority to do so," but "that does not mean that consequences should not flow, such as a determination that the compact is invalid, if it turns out that the state has not validly bound itself to the compact"). As the plaintiffs point out, "[t]he core circumstances of the two-part determination have changed," Pls.' Reply at 26, since the Governor granted his concurrence to the North Fork Tribe's proposed off-reservation gaming establishment in exchange for "broad statewide benefits," which the State may not now receive, and the State may not have "intend[ed] to authorize ... gaming ... from which the [S]tate would receive no benefit," id. at 27-31.
Even assuming that the plaintiffs are correct, however, now is not the appropriate time, nor is this the appropriate lawsuit for resolution of that issue. The issue regarding the legality of the gubernatorial concurrence in the Secretary's two-part determination has not been finally resolved by the California state court system, the administrative record in this case provides no basis for this Court to evaluate any federal action in response to recent events, including the 2014 referendum vote and the issuance of the Secretarial Procedures and, most significantly, the State is not a party to this lawsuit to clarify its intent in the past or its position now, or to protect its significant interests at stake. Thus, any determination of the impact on the IRA ROD of a possible finding that the Governor's concurrence was invalid or has been rendered inapplicable is premature and inappropriate for this suit.
* * *
For the foregoing reasons, the Stand Up plaintiffs' Fifth and Sixth Claims for Relief, TAC ¶¶ 99-115, are dismissed as moot, and their claims regarding the Governor of California's concurrence in the Secretary's two-part IGRA determination, see TAC ¶¶ 63, 68, 111 (part of Second and Sixth Claims for Relief), are dismissed due to the absence of an indispensable party.
On a final note, both groups of plaintiffs attempt to inject yet another claim into this already long-lived lawsuit by contending
In any event, neither ROD was based upon any particular Tribal-State Compact. See North Fork's Summ. at 7-8 (noting that the RODs "were premised on projections and estimates from [a] 2008 Compact, and were made before the California Legislature ratified the 2012 Compact"). Both decisions mention Tribal-State compact requirements generally, to note that gaming on the Madera Site will be conducted in compliance with applicable federal and state law. See IRA ROD at 2, 21-22; IGRA ROD at 2, 21, 64. The IGRA ROD additionally mentions "Tribal-State Gaming Compact Revenue" and, in assessing governmental costs and revenues, provides that "[b]ecause the Tribe intends to conduct class III gaming at the Resort, it must execute a tribal-state gaming compact with the State of California prior to commencing gaming operations, and the Department must approve that agreement." IGRA ROD at 74, 76. This statement does not bind the North Fork Tribe to conduct gaming pursuant only to a Tribal-State compact, however, even though such a compact would have allowed the State to share in gaming revenues. Rather, the North Fork Tribe is now permitted to conduct gaming pursuant to prescribed Secretarial Procedures.
Moreover, both RODs specifically identify and adopt all mitigation measures mentioned in the FEIS and, pursuant to the RODs, gaming on the Madera Site is "subject to implementation of the mitigation measures." IGRA ROD at 51, 87; IRA ROD at 52-53, 61; see also North Fork's Summ. at 9-10 (describing how "[t]he mitigation provisions in the Secretarial procedures are substantial and consistent in all meaningful respects with the provisions in the 2012 Compact"). Thus, the lack of any Tribal-State compact does not affect the IGRA and IRA RODs. Since "the purpose for which the land was acquired into trust," TAC ¶ 115, and the grounds on which the decisions were made, i.e., for the North Fork Tribe "to conduct tribal government
To the extent that the plaintiffs invite this Court to examine substantively the Secretarial Procedures, such a review would be, as discussed supra, Part III.B. premature for a variety of reasons. In any event, the statutory imprimatur of legitimacy given to the Secretarial procedures, which the IGRA requires the Secretary to promulgate, consistent with the mediator's selected compact, after the Secretary receives notice that a state has not consented to that compact, see 25 U.S.C. § 2710(d)(7)(B)(iv), sets a high bar to attack these procedures in the guise of a challenge to the RODs for the Madera Site. Lastly, both the Secretarial Procedures and the Compact authorized class III gaming on the Madera Site, with significant related development in terms of hotel, restaurant and transportation space. Thus, in context, the differences cited between the two documents appear relatively insignificant.
C. IGRA RECORD OF DECISION
The IGRA was enacted "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). Though the IGRA contains a general prohibition on "gaming ... conducted on lands acquired by the Secretary in trust for the benefit of any Indian tribe after October 17, 1988," id. § 2719(a), an exception applies when, inter alia, "the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes," makes a two-part determination (1) "that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and" (2) that it "would not be detrimental to the surrounding community," id. § 2719(b)(1)(A). The DOI regulations implementing, inter alia, this two-part determination exception, the most current of which regulations became effective on June 19, 2008, contain the agency procedures used to make the determination. Gaming on Trust Lands Acquired After October 17, 1988, 73 Fed. Reg. 29,354, 29,354 (May 20, 2008); see 25 C.F.R. §§ 292.1-292.26.
A two-part determination was made in this case, in the September 2011 IGRA ROD, to enable the North Fork Tribe to conduct gaming on the Madera Site, once acquired, despite the IGRA's general prohibition on conducting gaming on newly-acquired land. Based on "thorough review and consideration of the [North Fork] Tribe's fee-to-trust application and materials submitted there within; ... the FEIS; the administrative record; and comments received from the public, Federal, state and local governmental agencies; and potentially affected Indian tribes," IGRA ROD at 1, the Secretary concluded that North Fork's proposed casino at the Madera Site "is in the best interest of the [North Fork] Tribe and its members" and "would not be detrimental to the surrounding community, or the Picayune Rancheria," id. at 83-84.
Both groups of plaintiffs challenge the second part of the Secretary's determination, arguing that the analysis of the proposed casino's anticipated impacts on the surrounding community and corresponding conclusion that the proposed casino "would not be detrimental to the surrounding community," was arbitrary and capricious. In particular, the Stand Up plaintiffs challenge the Secretary's consideration of (1) benefits expected to inure to the surrounding
The Picayune Tribe's challenge to the Secretary's "historical connection" analysis is addressed first, followed by the plaintiffs' respective challenges regarding the proposed casino's anticipated impact on the surrounding community.
Historical Connection To The Madera Site
The Picayune Tribe takes issue with the Secretary's finding that the North Fork Tribe had a "significant historical connection" to the Madera Site, arguing that this finding is unsupported and contradicted by the record. Picayune's Mem. at 10-13. Notably, unlike other exceptions to the IGRA's general gaming prohibition on lands acquired after October 17, 1988, such as the initial reservation exception, 25 U.S.C. § 2719(b)(1)(B)(ii), and the restored lands exception, id. § 2719(b)(1)(B)(iii), which require "[t]he tribe [to] demonstrate a significant historical connection to the land," 25 C.F.R. §§ 292.6, 292.12(b), the tribe need not have any historical connection to the land to develop a gaming establishment on newly acquired lands pursuant to the Secretarial two-part determination. Instead, "in evaluating whether the proposed gaming establishment is in the best interest of the tribe and its members and whether it would or would not be detrimental to the surrounding community," id. § 292.21(a), IGRA regulations simply require the Secretary to consider, among numerous other factors and information, "[e]vidence of [the tribe's] significant historical connections, if any, to the land," id. § 292.17(i); see id. § 292.21(a) (requiring the Secretary to "consider all the information submitted under §§ 292.16-292.19"). A significant historical connection exists where either (1) "the land is located within the boundaries of the tribe's last reservation under a ratified or unratified treaty, or [(2)] a tribe can demonstrate by historical documentation the existence of the tribe's villages, burial grounds, occupancy or subsistence use in the vicinity of the land." Id. § 292.2.
While not required as part of the two-part determination, the Secretary nevertheless found both definitions for a "significant historical connection" met in the instant case. Specifically, the IGRA ROD "conclude[d] that the Tribe has a significant historical connection to the [Madera] Site" because (1) "[t]he Site is located within the [never-established] reservations contemplated by the [unratified] San Joaquin Valley treaties for the Tribe's predecessors," including a "1851 Treaty signed at Camp Barbour on the San Joaquin River," and (2) "historical documentation ... demonstrates that [the North Fork Tribe] established a continuous presence in the vicinity of the Site, through occupancy and subsistence activities, over a period of time." IGRA ROD at 60-61. As discussed below, the Picayune Tribe's objections to both the Secretary's treaty finding and continuous presence finding are not persuasive.
a. Camp Barbour Treaty Of 1851
The Picayune Tribe argues that the Secretary misread the relevant treaties, asserting that "[t]he North Fork Rancheria have [sic] never been connected to" the 1851 Camp Barbour Treaty and that the Secretary, without any evidentiary support, "conflate[d] the current Mono Indians with the persons referred to as `mona' in [the Treaty]." Picayune's Mem. at 10-11; see also Picayune's Reply at 18 (arguing the IGRA ROD "erroneously equated the current Mono Indians with persons referred to ambiguously as `mona' ... in the Camp Barbour Treaty, without offering any evidence whatsoever for the linkage").
The 1851 Camp Barbour Treaty, which was never ratified, purported to establish an Indian reservation in the San Joaquin Valley for a number of named tribes. Thus, the Madera Site, in the San Joaquin Valley, appears to be located squarely in the exact vicinity contemplated for a reservation. Moreover, the issue of whether the North Fork Tribe was among the tribes designated to live on the reservation in the San Joaquin Valley is supported by the text of the Camp Barbour Treaty, which provides:
Camp Barbour Treaty, Art. 4.
A scholarly report in the administrative record and relied upon by the Picayune Tribe explains that "[t]he Northfork Monos were and are part of a larger group of Indians referred to as the Western Mono or Monachi .... [who] spoke a Shoshonean language," and "an impartial judge would most likely conclude that the Shoshonean Monos were included in the treaty even if they were misidentified as portions of the [other] tribes." Robert F. Manlove, Report Concerning Lands Historically Associated with the Northfork Mono Indians at 2, 5, Jt. App. at 1, 2, 5, ECF No. 124-1 (emphasis in original). Further, according to the report, the reservation proposed by the Camp Barbour Treaty "would include the area of the proposed casino." Id. at 4 (emphasis added).
Accordingly, the Secretary's conclusion that the Madera Site is located within the boundaries of a reservation proposed for the North Fork Tribe under an unratified treaty has support in the record and was properly considered as evidence of the North Fork Tribe's "significant historical connections, if any, to the land." 25 C.F.R. § 292.17(i).
Occupancy Or Subsistence Use In The Vicinity
The Picayune Tribe also argues that the IGRA ROD's description of the nature of the North Fork Tribe's contacts with Madera, including as "temporary" and "seasonal," reflect "sporadic," "ephemeral and transactional contacts with the City of Madera" that are insufficient to constitute the "occupancy or subsistence use" required to show significant historical connection. Picayune's Mem. at 12; Picayune's Reply at 18-19. The Court disagrees.
"[S]ignificant historical connection" is "not limited to the tribe's exclusive use and occupancy area," though it "require[s] something more than evidence that a tribe merely passed through a particular area" or "something more than `any' connection." Gaming on Trust Lands, 73 Fed. Reg. at 29,366. Here, in determining that the North Fork Tribe has a significant historical connection to the Madera Site, the Secretary relied on evidence that, inter alia, in the 1850s, ancestors of the Tribe settled along the Fresno River, would "visit occasionally the plains and water-courses for the purposes of hunting and fishing" and to assist other tribes in the plains "in times of war," and "live[d] on, visit[ed], and recognize[d]" the Fresno River Farm, a reservation located near the banks of the Fresno River "near or within the boundaries of the modern day City of Madera," "as their home and headquarters." IGRA ROD at 56-58. The Secretary additionally relied on primary documents and personal recollections of "[m]any of the Tribe's oldest citizens" evidencing that, in the late nineteenth and early twentieth centuries, ancestors of the Tribe "travel[ed] from the Valley floor — often passing through Madera to the foothills and back again — as they herded sheep for local ranchers," would patronize a store located within 600 yards of the border of Madera, and "worked picking grapes at ... vineyards" approximately five miles north of Madera, "in very close proximity to the Site." Id. at 59 (emphasis added). Evidence also indicated that "likely a majority" of the members of the North Fork Tribe, in or around 1916, would "temporarily leave their mountain habitations and go to the rich San Joaquin Valley in proper seasons to secure work on the farms, hay meadows, vineyards and orchards, as well as sheep-shearing in its season." Id. at 60 (alteration omitted).
This evidence of the North Fork Tribe's longtime, consistent use of land and resources
Impacts On The Surrounding Community
Both groups of plaintiffs challenge the Secretary's analysis and corresponding conclusion for the second part of the IGRA "two-part determination" that the proposed casino "would not be detrimental to the surrounding community." The Stand Up plaintiffs argue that the Secretary failed to apply the requisite "heavy scrutiny" in considering the impact of the proposed casino on the surrounding community. Pls.' Mem. at 24-26. In particular, the plaintiffs criticize the Secretary's evaluation of: (1) the community benefits expected to be derived from the proposed casino; (2) the mitigation measures; and (3) three identified community harms expected to result from the proposed casino — problem gambling, traffic, and displacement of the Swainson's Hawk. The Picayune Tribe similarly challenges the Secretary's analysis of community harms, with a primary focus on the Secretary's evaluation of the financial impact the proposed casino is expected to have on the Picayune Tribe. See generally Picayune's Mem. at 20-27.
Before turning to the plaintiffs' specific contentions, the Court first addresses the plaintiffs' threshold legal arguments that the IGRA ROD reflects an erroneous application of the statute and therefore conflicts with congressional intent.
Both groups of plaintiffs claim that the IGRA ROD conflicts with the legislative purposes of the IGRA: the Stand Up plaintiffs challenge the decision with respect to Section 2719(b)(1)(A)'s requirement that "a gaming establishment on newly acquired lands ... not be detrimental to the surrounding community," see Pls.' Mem. at 22-24, and the Picayune Tribe challenges the decision with respect to Section 2719(a)'s "preference for on-reservation gaming," Picayune's Mem. at 14-15. The Court addresses each argument in turn.
(i) Section 2719(b)(1)(A)'s "Not Detrimental To The Surrounding Community" Requirement
The Stand Up plaintiffs reiterate their contention made in support of preliminary injunctive relief that the Secretary's finding regarding the proposed casino not being "detrimental to the surrounding community," IGRA ROD at 84, "is contrary to Congress' clear intent" because "[t]he Secretary arrived at this conclusion by weighing the benefits of the casino to the surrounding community against significant detrimental impacts that were found." Pls.' Mem. at 22. In other words, the plaintiffs read § 2719(b)(1)(A) to require that a gaming establishment result in "no detriment to the surrounding community" whatsoever, arguing that Congress did not intend for this particular provision of the IGRA to "serve IGRA's purpose of promoting economic development, self-sufficiency, and strong tribal governments," but, instead, intended it to "limit a tribe's ability to improve its economic condition through casino gambling." Id. at 22-23. Thus, the plaintiffs urge that § 2719(b)(1)(A) "be construed narrowly" because construing this provision "broadly — based on IGRA's purpose to promote economic development, self-sufficiency, and strong tribal governments — would ignore the limits Congress set on gaming ...." Id. at 23.
Nothing presented in the plaintiffs' briefing on the current pending motions warrants disturbing the Court's prior reasoning. Indeed, the plaintiffs' desired statutory interpretation is contrary to settled law in this Circuit. See Citizens Exposing Truth, 492 F.3d at 469 ("IGRA was designed primarily to establish a legal basis for Indian gaming as part of fostering tribal economic self-sufficiency, not to respond to community concerns about casinos."); id. at 465, 468 (finding plaintiff non-profit anti-casino group "overemphasized" the "community protection provision of IGRA, 25 U.S.C. § 2719(b)(1)(A)," "in the overall structure of IGRA" in arguing that "IGRA was designed to help minimize the `ill-effects of gambling,' protect surrounding communities from gaming on Indian lands, and prohibit gaming on after-acquired lands unless the Secretary and the State governor determine gaming will not have a detrimental effect on the surrounding host community"); accord City of Roseville v. Norton, 348 F.3d 1020, 1032 (D.C.Cir.2003) (rejecting plaintiff's characterization of the provisions of § 2719(a) as "laws disfavoring Indians" in finding that the plaintiff's "continue to overlook the role that IGRA's exceptions in § [2719(b)] play in the statutory scheme").
(ii) Section 2719(a)'s Preference For On-Reservation Gaming
Similar to the Stand Up plaintiffs, the Picayune Tribe asserts that the Secretary violated "a fundamental tenet" of the IGRA, namely: "the promotion of on-reservation gaming instead of off-reservation gaming." Picayune's Mem. at 14. As support for this assertion, the Picayune Tribe points to what the Tribe characterizes as the IGRA's "broad prohibition against gaming on newly acquired land." Id.
Contrary to the Picayune Tribe's characterization, however, the IGRA's prohibition is not so broad. While the IGRA does, indeed, provide a general prohibition that "gaming ... shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988," 25 U.S.C. § 2719(a), other parts of the same section provide multiple exceptions, see id. ("Except as provided in subsection (b) of this section, gaming ... shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988, unless — ...." (emphasis added)); see also Citizens Exposing Truth, 492 F.3d at 468 ("Congress's primary purpose in enacting IGRA is evident as well from the inclusion of several exceptions to the gaming prohibition on after-acquired lands in order to allow newly acknowledged or restored tribes to engage in gaming on par with other tribes."). While the Secretary has acknowledged that "the regulatory scheme established by IGRA favors on-reservation gaming to off-reservation gaming," and that Congress "favors tribal gaming on existing and former reservations, and on lands acquired in trust prior to October 17, 1988," IGRA ROD at 82, such Congressional intent does not undermine Congress' other clear intent to provide for off-reservation gaming on newly acquired lands pursuant to a Secretarial two-part determination, which it expressly incorporated into the IGRA. See 25 U.S.C. § 2719(b)(1)(A). Consequently, the Picayune Tribe's blinkered view that the Secretary violated Congressional intent and the IGRA's preference for on-reservation gaming in making a two-part determination in this case ignores other parts of the same statutory provision and is, therefore, not persuasive.
Predicated on their faulty premise that § 2719(b)(1)(A) requires that the gaming establishment result in zero negative impact to the surrounding community, see supra subpart a(i), the Stand Up plaintiffs criticize the Secretary's "balancing test, concluding that the benefits outweigh any
At the outset, determining whether "a gaming establishment on newly acquired lands ... would not be detrimental to the surrounding community," 25 U.S.C. § 2719(b)(1)(A), necessarily requires a holistic evaluation of the impact of the proposed development, and properly encompasses consideration of both the anticipated benefits the gaming establishment would bring to the surrounding community and its potential adverse consequences. A focus solely on the detriments or the benefits would distort the overall goals of the statute.
In this regard, the plaintiffs mischaracterize the Secretary's conclusion. Contrary to the plaintiffs' assertion, the Secretary did not "conclud[e] that the benefits outweigh any detriments," Pls.' Mem. at 25, or "suggest that the benefits to the surrounding community will compensate the community for any detriments," id. at 25 n. 22. Rather, the Secretary acknowledged the negative impacts that the proposed casino would have on the surrounding community and determined that these negative impacts would not be, overall, "detrimental to the surrounding community" within the meaning of the IGRA. See IGRA ROD at 85 ("The weight of the evidence in the record strongly indicates that the Tribe's proposed gaming facility in Madera County would not result in detrimental impact on the surrounding community.").
The Stand Up plaintiffs further criticize "[t]he Secretary's finding of no detrimental impact to the surrounding community" for failing to examine fully the mitigation measures outlined in the IGRA ROD, which adopted the analysis of these measures set out in the FEIS to address any adverse environmental impacts from the casino development. See Pls.' Mem. at 26-27 (criticizing the lack of "discussion of the effectiveness of the mitigation measures, where, how, and when the measures will be used, or a discussion of the relationship between reduction and a finding of no detriment"); Pls.' Reply at 35-36 (arguing that the Secretary lacked regulatory authority to "merely adopt.... the findings of the FEIS .... without discussion or analysis").
To the extent that the plaintiffs dispute the sufficiency of various mitigation measures referenced in the FEIS to support the Secretary's two-part determination under IGRA, their argument is not persuasive. Specifically, the plaintiffs complain that "the FEIS merely lists the mitigation measures" without providing any "discussion of how effective the measures will be," Pls.' Mem. at 27; see also Pls.' Reply at 36 (arguing that the FEIS "fails to discuss how the significant impacts will be mitigated by the measures proposed" and "merely assumes that unexamined mitigation measures will suffice" to rebut the "detriment to the surrounding community"). Yet, this complaint blatantly ignores the FEIS' references to studies supporting the effectiveness of mitigation measures, see, e.g., FEIS at 4.7-9, Jt. App. at 720, ECF No. 126-10 (citing an "Office of Problem Gambling study" finding that "problem gambling may be attenuated, or possibly reversed, through the expansion of problem gambling services"), and fails to account for the thousands of pages of quantitative and qualitative analyses, attached as appendices to the FEIS that provide the bases for other various mitigation measures listed and adopted in the IGRA ROD, see, e.g., FEIS, apps. vol. I, app. M (Updated Traffic Impact Study, TPG Consulting (Oct. 2008)), AR at NF_AR_0031337-31800 (consisting of 424 pages of analysis, including hundreds of diagrams of projected traffic scenarios and data-based projections for "mitigated scenarios"); id., apps. vol. II, app. N (Updated Traffic Impact Study Attachments, TPG Consulting), AR at NF_AR_0031804-33606 (consisting of 1,803 pages of, inter alia, "information on the traffic data collection, study methodology and assumptions" underlying proposed
The plaintiffs' specific contentions regarding the adequacy of mitigation measures adopted for problem gambling, traffic and transportation, and the Swainson's hawk are addressed below in subpart d(ii).
Both groups of plaintiffs argue that the Secretary's determination that the proposed casino "would not be detrimental to the surrounding community," IGRA ROD at 84, is arbitrary and capricious based on the Secretary's alleged failure, in the IGRA ROD, to evaluate properly and adequately expected harms to the community. The Picayune Tribe challenges the Secretary's analysis of the evidence of economic harm facing that Tribe as a result of the competition to its own casino, Chukchansi Gold. See generally Picayune's Mem. at 20-27. The Stand Up plaintiffs summarily claim that the Secretary failed to "analyze the acknowledged detrimental effects" of the proposed casino, and make only a passing, albeit specific, reference to the Secretary's analysis with respect to the creation of "approximately 531 new problem gamblers," the "significant traffic and transportation impacts," and the "loss of habitat for the Swainson's hawk." Pls.' Mem. at 25-26. These complaints about the Secretary's consideration of the potential harms from the casino development are addressed seriatim below.
(i) Economic Impact On The Picayune Tribe
The Picayune Tribe argues that the Secretary (1) was "required ... to determine whether [the proposed casino] would be detrimental to the Picayune" because the Picayune Tribe is "part of the surrounding community according to the applicable regulations," and (2) "improperly ignored [allegedly uncontroverted] evidence of [substantial] detrimental financial impact to the Picayune," rendering the IGRA ROD "arbitrary and capricious as a matter of law." Picayune's Mem. 20-21; see also id. at 16 (arguing that the Secretary "employed a pattern of conflicting and arbitrary reasoning ... to minimize or ignore the impacts to the Picayune"). The Court previously rejected these arguments in Stand Up I, 919 F.Supp.2d at 75-76, and, after thorough review of the full, extensive administrative record, rejects them again now.
First, as the Court previously explained, "the Secretary was not required to consider the Picayune Tribe's concerns at all," id. at 75, because, contrary to the Picayune
The Picayune Tribe contends that it, nevertheless, should have been "considered part of the `surrounding community' for purposes of the detrimental impact determination," because it submitted, on March 3, 2009, "a petition to the BIA ... as provided for in 25 C.F.R. § 292.2." Picayune's Mem. at 21. The referenced regulation provides that a "nearby Indian tribe located beyond the 25-mile radius may petition for consultation if it can establish that its governmental functions, infrastructure or services, will be directly, immediately and significantly impacted by the proposed gaming establishment." 25 C.F.R. § 292.2 (emphasis added); see also Gaming on Trust Lands, 73 Fed. Reg. at 29,357 (explaining that the BIA "included a rebuttable presumption to the 25-mile radius" in IGRA's implementing regulations through the referenced regulation). Noting that "[t]he record does not appear to contain any direct response" from the BIA to its petition, the Picayune Tribe contends that the Secretary ignored its petition as well as the parties' "course of dealing [throughout the review process] indicating that the Picayune would be afforded the protections provided to the surrounding community," and, thereby, accuses the Secretary of "ignor[ing] the regulatory definition" of "nearby Indian tribe." Picayune's Mem. at 22.
As the Court previously explained, the conclusion that the Picayune Tribe rebutted the 25-mile radius presumption contained in IGRA regulations for the purposes of consultation, see 25 C.F.R. § 292.2, "only meant that the Secretary was required to consider the Picayune Tribe's comments at all, not that the Secretary was compelled to afford those comments a weight that was equal to all other comments," Stand Up I, 919 F.Supp.2d at 75-76 (emphasis in original); see also North Fork's Mem. at 24-25 ("The regulations do not convert a tribe beyond the 25-mile radius into a `nearby' tribe or member of the `surrounding community' merely because the Secretary exercises her discretion to consult with the tribe and consider its concerns[,] [and] Picayune points to nothing in the text of the IGRA regulations or agency guidance that would support [a] contrary interpretation."). "The Secretary, in accord with [her] regulations, `considers detrimental impacts on a case-by-case basis,' 73 Fed. Reg. at 29,356, and... need not accord equal weight to all comments regardless of the commenter's proximity to the proposed gaming establishment." Stand Up I, 919 F.Supp.2d at 76.
Since the Secretary was not required to consider the Picayune Tribe to be part of the surrounding community under the applicable regulations, the Secretary was not required to determine whether the proposed casino would be detrimental to the Picayune Tribe. In any event, as the North Fork Tribe points out, the "IGRA requires the Secretary to make only a single determination" regarding whether the proposed facility would be detrimental to the surrounding community "as a whole." North Fork's Mem. at 26 (citing 25 C.F.R. § 292.21); see 25 C.F.R. § 292.21(a) ("The Secretary will consider all the information submitted under §§ 292.16-292.19 in evaluating whether the proposed gaming establishment is in the best interest of the tribe and its members and whether it would or would not be detrimental to the surrounding community."); see also North Fork's Reply at 14 ("The relevant question is whether the project would be `detrimental to the surrounding community' as a whole, not whether the project would be detrimental to any particular member of the community[,] .... [which] makes good sense, since otherwise any potential adverse effect on a particular member of the community might block a project that could be highly beneficial to the community as a whole."). Thus, the Secretary was not necessarily required to make any specific finding regarding the proposed casino's "detrimental impact" on any single entity.
Nonetheless, contrary to the Picayune Tribe's assertion, the Secretary did make a specific finding regarding the Picayune Tribe: the Secretary expressly concluded that the North Fork Tribe's "proposed gaming facility," which would exist "in an overlapping [highly competitive] gaming market," where the Picayune Tribe's casino had already "proven to be a successful operation," would not result in a detrimental impact to the Picayune Tribe. IGRA ROD at 86.
In sum, the BIA considered the Picayune Tribe's comments and reasonably afforded
Nevertheless, the Picayune Tribe continues to press its argument that "[t]he geographic penalty applied to the Picayune is arbitrary and capricious, given that the North Fork Rancheria is even further from the Madera Site," asserting that the North Fork Rancheria is "at a straight-line distance from the Madera Site of 38.21 miles, roughly 12 miles farther than the Picayune reservation." Picayune's Mem. at 18 (emphasis omitted). The Picayune Tribe is particularly critical of "the Secretary's enthusiasm for the perceived .... benefit of the fact that `62 percent of [the North Fork Tribe's] tribal citizens live within 50 miles of the [Madera] Site,'" which "ignores the fact that 38 percent of the North Fork citizens must therefore live more than 50 miles away from the Madera Site," as well as the Secretary's reference to the 38-mile distance as "`relatively short.'" Id. at 18-19 (emphasis in original) (citing IGRA ROD at 52, 83).
These assertions conflate the two parts of the "two-part determination" that the Secretary was required to make. As the North Fork Tribe notes, "[t]he Secretary considered distances as part of two distinct inquiries[:] [s]he considered the ... distance between the Madera Site and the [North Fork] Tribe's headquarters in analyzing whether the facility would benefit the Tribe through employment, job training and career development, ... and was in the best interest of the Tribe and its members" and, "[b]y contrast, ... considered the distance between the Madera Site and Picayune's casino in analyzing whether Picayune was [part of] the `surrounding community,'" under applicable regulations. North Fork's Mem. at 32 (citing 25 C.F.R. §§ 292.17(b), 292.21(a); IGRA ROD at 52, 77, 81, 83-86).
Turning to the Secretary's consideration of what the Picayune Tribe claims is the "substantial negative impact" that the North Fork Tribe's proposed casino will have on the Picayune Tribe and its casino, Chukchansi Gold, Picayune's Mem. at 25, the Court previously approved "the Secretary's conclusion that `competition from the [North Fork] Tribe's proposed gaming facility in an overlapping gaming market is not sufficient, in and of itself, to conclude that it would result in a detrimental impact to Picayune,'" finding the Secretary's conclusion "was supported by the evidence in the record," Stand Up I, 919 F.Supp.2d at 76 (alteration in original) (quoting IGRA ROD at 86). The Court discussed in detail the "`gravity model impact analysis,' performed by a gaming and entertainment consulting firm called Innovation Group," on which analysis the Secretary relied, and found that "the Secretary was likely rational in concluding that [the] competition [to Chukchansi Gold] would not be significantly detrimental to the Picayune Tribe." Id. The Court noted that the Picayune Tribe had "offer[ed] no concrete alternative analysis of Alternative A's economic impacts that would suggest that a gaming complex on the Madera Site would impair the Picayune Tribe's ability to remain profitable and self-sufficient," concluding that "absent any evidence supporting the prediction that development of the Madera Site would have a destructive competitive impact upon the Picayune Tribe, the plaintiffs are unlikely to succeed in arguing that the Secretary's analysis of the economic effects on the Picayune Tribe was improper." Id. at 77.
Instead, the Picayune Tribe cites an economic analysis performed by Klas Robinson QED ("Klas Robinson"), another consulting organization, which "concluded that the Madera Site casino would reduce revenues at Chukchansi Gold at least 22.2%, with losses as high as 32.4%, depending on the scope of gaming activity at the Madera Site." Picayune's Mem. at 26 (citing Letter from Klas Robinson QED to Morris Reid (Mar. 13, 2008) ("Klas Robinson Letter") at 5, Suppl. Jt. App. at 6, 10, ECF No. 134-1). The Picayune Tribe provided this alternative analysis to the BIA with its comments on the North Fork Tribe's IGRA application, see Picayune's Comment Letter at 10-13, and the Secretary considered the analysis, see IGRA ROD at 86 (citing Picayune's Comment Letter and its projected loss of revenue). Notably, Klas Robinson's analysis does not "debat[e] the accuracy," Klas Robinson Letter at 6, of the BIA's conclusion that the competitive impact of the North Fork Tribe's proposed casino would not "jeopardize the [Chukchansi Gold Resort]'s ability to remain open," FEIS at 4.7-61, Jt. App. at 772, ECF No. 127-1.
A court "may not `supplant the agency's findings merely by identifying alternative findings that could be supported by substantial evidence.'" Koch v. SEC, 793 F.3d 147, 156 (D.C.Cir.2015) (quoting Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)). As the D.C. Circuit has repeatedly recognized, "an agency's conclusion `may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.'" Id. (quoting Robinson v. NTSB, 28 F.3d 210, 215 (D.C.Cir.1994)). Furthermore, the D.C. Circuit recently emphasized the well-settled legal principle that "[a]n agency does not engage in arbitrary or capricious decision-making by making `predictive judgement[s]' or even by relying on `[i]ncomplete data.'" New York v. NRC, 824 F.3d 1012, 1022 (D.C.Cir.2016) (alterations in original) (quoting New York v. EPA, 413 F.3d 3, 31 (D.C.Cir.2005)). Rather, "such judgments are `entitled to deference,'" id. (quoting New York v. EPA, 413 F.3d at 31), "and a challenge to the agency's assumptions must be more than `an effort by [a petitioner] to substitute its own analysis' for the agency's," id. (alteration in original) (quoting Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 737 (D.C.Cir.2000)); see also Earthlink, Inc. v. FCC, 462 F.3d 1, 12 (D.C.Cir.2006) ("`An agency's predictive judgments about areas that are within the agency's field of discretion and expertise are entitled to particularly deferential review, as long as they are reasonable.'" (emphasis in original) (quoting In re Core Commc'ns, Inc., 455 F.3d 267, 282 (D.C.Cir.2006))); Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1133 (D.C.Cir.2001) ("[W]e must give appropriate deference to predictive judgments that necessarily involve the expertise and experience of the agency.").
Indeed, "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v.
The Picayune Tribe's remaining arguments — regarding alleged internal inconsistencies in the Secretary's reasoning with respect to her consideration of (1) gaming revenue, employment, and tribal funding and (2) gaming competition — do not warrant any alteration in the Court's finding. It was not unreasonable or inconsistent for the Secretary to find that the proposed casino's "anticipated revenues, employment, and funding for Tribal programming" supported a conclusion that the proposed casino would be in the North Fork Tribe's best interest and also to find that the Picayune Tribe's expected loss in revenues, employment, and funding for tribal programing did not, by itself, support a conclusion that the proposed casino would have a detrimental impact on the surrounding community. Picayune's Mem. at 19-20.
Still, the Picayune Tribe insists that the "two distinct inquiries" in this case of whether the proposed casino would be (1) in the North Fork Tribe's best interest and (2) detrimental to the surrounding community, see 25 U.S.C. § 2719(b)(1)(A), "hinge on the same issue: the ability of each tribe's casino to provide for the tribe." Picayune's Reply at 16-17 (quotations and citation omitted). Accepting arguendo the validity of that assertion, substantial evidence in the record supports the Secretary's determination "that development on the Madera Site would allow North Fork to use gaming revenue to provide for its people, without impeding Picayune's ability to do the same," as the North Fork Tribe points out. North Fork's Reply at 17-18. For example, evidence in the record indicates that the proposed casino "would expand the local market, increasing total gaming expenditures at venues in the immediate market area by over $90 million," FEIS at 4.7-61, and that, since "the current ... gaming market is not over-saturated[,] ... multiple operators can successfully co-exist in the long run," id. at 4.7-62. Evidence also indicates that the Picayune Tribe's casino "reaches capacity constraints during the summer tourism season," id., apps. vol. III, app. R, North Fork Rancheria Competitive Impact Technical Mem. (Innovation Group, June 2008) at 7, Jt. App. at 1219, 1227, ECF No. 128-6, and that its market share may actually decline less than 19%, "depending on a number of factors, including [its] ability... to add features and effectively market [its] facilities," FEIS at 4.7-61.
The Picayune Tribe's argument that the Secretary arbitrarily and inconsistently evaluated the effects of gaming competition, by selectively considering such competitive effects only "when they support the selection and approval of the Madera Site" — an argument echoed by the Stand Up plaintiffs — is also unavailing. Picayune's Mem. 17; see also id. at 16-17 (arguing that "competition from other tribal casinos played a major role" in the Secretary's elimination of proposed alternative sites and choice "among the alternatives that remained"); Picayune's Reply at 16 ("[T]he Secretary ... treated competition inconsistently depending on whether competitive
Specifically, the Secretary ruled out the HUD tract as a viable alternative site because of (1) the nearly $2.5 million of HUD funding that had already been expended to develop it for "tribal housing and related uses," (2) the difficulty of developing the tract for commercial purposes "due to the steep and varied topography and sensitive biological features," (3) the limited access and rural location which "would necessitate the development of a very small facility" creating "[f]ew jobs," and (4) "the proximity of three existing tribal gaming facilities located within 20 miles" of the tract, including the Picayune Tribe's gaming facility. Id. (emphasis added). The Secretary likewise ruled out the Avenue 7 and Avenue 9 Properties because (1) "[a]ccess to the properties was constrained by ... train tracks," (2) the benefit of "development near Fresno would inure primarily to the residents of Fresno and not Madera County," in which county the North Fork Tribe's governmental headquarters and other land interests are located, (3) the development of a gaming facility at those sites "would be inconsistent with existing land uses, as most of the surrounding area was used for agriculture," and (4) gaming operations of two neighboring tribes, including the Picayune Tribe, would be impacted. Id. at 5.
Similarly, the Secretary ruled out the development of a gaming facility on the North Fork Rancheria because, in part, "a market potential and facility sizing analysis for a development on the North Fork site" concluded that, though a facility with "marginal potential for profitability" could possibly be constructed on the North Fork Rancheria, the site's steep topography and remote location "would make it difficult to successfully finance any casino on the site." Id. at 8. The analysis reasonably considered "the level of competition in the market" to determine what size facility, if any, would enable North Fork to receive returns on an investment. Id. The North Fork Rancheria was further eliminated because (1) the North Fork Tribe "would not be able to conduct gaming on the North Fork Rancheria lands unless it was able to obtain beneficial title to or a leasehold interest in those lands," which "are held in trust for individual Indians," and (2) a facility on the North Fork Rancheria "would generate considerable political" and local opposition "while doing little to advance the needs of many of its tribal citizens or of the community." Id. at 9-10.
In light of the Secretary's reasoning, described above, the Court remains convinced that the Secretary's evaluation of the Picayune Tribe's concerns of gaming competition and economic harm was entirely reasonable.
(ii) Problem Gamblers, Traffic And The Swainson's Hawk
The Stand Up plaintiffs contend that the Secretary improperly concluded, "with no discussion or analysis," that three negative impacts of the proposed casino — specifically, the creation of "531 new problem gamblers," "significant traffic and transportation impacts," and "loss of habitat for the Swainson's hawk," — "will be mitigated."
The Secretary's consideration of "the potential detrimental impact" of problem gambling was expressly limited, during final rulemaking, to "any anticipated costs of treatment programs." Gaming on Trust Lands, 73 Fed. Reg. at 29,373. This approach is authorized under applicable regulations, which do not require the Secretary to consider the "social costs attributable to compulsive gamblers enrolled and not enrolled in treatment programs." Id.; see also 25 C.F.R. §§ 292.18(e), 292.21(a) (requiring the Secretary to consider only the "[a]nticipated cost, if any, to the surrounding community of treatment programs for compulsive gambling attributable to the proposed gaming establishment"). As discussed infra in Part III.E.3, the FEIS adequately addressed the mitigation of any significant impact of the costs of problem gambling, and "[t]he Secretary clearly considered this aspect of the problem in concluding that permitting gaming on the Madera. Site would not be detrimental to the surrounding community," Stand Up I, 919 F.Supp.2d at 72.
Similarly, contrary to the plaintiffs' assertion, the Secretary discussed and analyzed the negative impacts of the proposed casino on traffic and transportation, wildlife and habitats, and migratory birds in detail in the FEIS, see FEIS at 4.4-1 to-14, Jt. App. at 670-83, ECF Nos. 126-9, -10 (discussing effects on air quality, including traffic and transportation); FEIS at 4.5-1 to -4, Jt. App. at 696-99, ECF No. 126-10 (discussing effects on biological resources, including the Swainson's hawk, migratory birds, and other bird species), and reasonably relied on the FEIS' analysis in the IGRA ROD. The IGRA ROD details specific mitigation measures that the North Fork Tribe will take to mitigate any negative impacts, see IGRA ROD at 26-51, which mitigation measures are derived from the FEIS and supported by the FEIS' comprehensive underlying documentation and appendices, see id. at 16 ("The evaluation of ... project-related impacts included consultations with entities that have jurisdiction or special expertise to ensure that the impact assessments for the FEIS were accomplished using accepted industry standard practice, procedures, and the most currently available data and models for each of the issues evaluated in the FEIS at the time of preparation.").
For traffic and transportation impacts, such mitigation measures include directives to the North Fork Tribe, inter alia, to provide a minimum of "six shuttles daily to major transit stations and multi-modal centers" and "transit amenities such as bus turnouts; shelter benches; street lighting, route signs, and displays in an around the transit shelter benches to encourage public use of the transit service;" "contribute to the dedication of land for off-site bicycle trails linking the project to designated bicycle commuting routes;" "provide amenities such as personal lockers and showers, bicycle lockers and racks, bus pack subsidies and flexible schedules for employees who walk, bike, or utilize public transit to work;" "provide electric vehicle charging facilities;" and to "pay for a proportionate share of costs" to restripe, widen, and add traffic signals to numerous roads. IGRA ROD at 33, 40-45. With respect to the Swainson's hawk, the IGRA ROD provides that, inter alia, the U.S. Fish and Wildlife Service will be consulted about active nests found and that "[i]mpacts within 10 miles of a Swainson's hawk nest site shall be mitigated by protecting or creating equally suitable foraging habitat elsewhere within the territory's 10-mile
Accordingly, the Secretary's conclusion that "[a]ll identified impacts can be adequately mitigated," IGRA ROD at 24, is reasonable based upon the evidence and analysis reflected in the record.
* * *
For the foregoing reasons, the defendants are entitled to summary judgment on the Picayune Tribe's IGRA claim, see Picayune's Compl. ¶¶ 49-53 (First Cause of Action), and on the Stand Up plaintiffs' IGRA claim, see TAC ¶¶ 61-68 (Second Claim for Relief).
D. IRA RECORD OF DECISION
While the IGRA authorizes and regulates gaming activities on certain land acquired in trust for Indians, the Secretary's authority to acquire land for Indians derives, instead, from the IRA, enacted, in 1934, "to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (quotations and citation omitted); see also Confederated Tribes of the Grand Ronde Cmty. v. Jewell (Confederated Tribes), No. 14-5326, 830 F.3d 552, 556, 2016 WL 4056092, at *1 (D.C.Cir. July 29, 2016) ("The 1934 IRA was meant `to promote economic development among American Indians, with a special emphasis on preventing and recouping losses of land caused by previous federal policies.'" (quoting Mich. Gambling Opp'n v. Kempthorne, 525 F.3d 23, 31 (D.C.Cir. 2008))); id. ("Whereas a prior policy of allotment sought to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large, ... Congress enacted the IRA, among other things, to conserve and develop Indian lands and resources." (quotations and citations omitted)).
Pursuant to that purpose, Section 5 of the IRA authorizes the Secretary, "in his discretion, to acquire ... any interest in lands, water rights, or surface rights to lands ... for the purpose of providing land for Indians," specifying that "[t]itle to any lands or rights acquired pursuant to this Act ... 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." 25 U.S.C. § 465. Under DOI regulations, promulgated pursuant to the IRA, "land may be acquired for a tribe in trust status" when, inter alia, "the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing." 25 C.F.R. § 151.3(a)(3). In considering an application for the acquisition of off-reservation trust land, regulations require the Secretary to consider a number of factors, including "the existence of statutory authority for the acquisition and any limitations contained in such authority," the "need of the individual Indian or the tribe for additional land," the "purposes for which the land will be used," and "[t]he location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservation." Id. §§ 151.10-11.
The November 2012 IRA ROD recorded the federal defendants' decision, upon consideration of the various factors, to acquire the Madera Site in trust for the North Fork Tribe, pursuant to Section 5 of the IRA, 25 U.S.C. § 465. IRA ROD at 3. Both groups of plaintiffs challenge this decision.
By contrast, the Stand Up plaintiffs contend that the IRA ROD failed to explain sufficiently the Secretary's statutory authority to acquire the Madera Site in trust for the North Fork Tribe because, according to the plaintiffs, members of the North Fork Tribe do not meet the requisite statutory definition of "Indian." The Court discusses the applicable statutory framework, the Secretary's determination, and the plaintiffs' arguments seriatim below.
Applicable Legal Framework
The IRA limits the Secretary to acquiring land, pursuant to 25 U.S.C. § 465, only "for Indians," and defines "Indian," in 25 U.S.C. § 479, to "include [(1)] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, ... [(2)] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and ... [(3)] all other persons of one-half or more Indian blood." Id. § 479. "[T]ribe," in turn, is defined broadly "to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation." Id.
In Carcieri v. Salazar, 555 U.S. 379, 391, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009), the Supreme Court, discussing the first of the three definitions of "Indian," held that "the word `now' in § 479 limits the definition of `Indian,' and therefore limits the exercise of the Secretary's trust authority," id., "to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934," id. at 382, 129 S.Ct. 1058; see id. at 397, 129 S.Ct. 1058 (Breyer, J., concurring) ("Congress expected ... that the Secretary could employ § 465's power to take land into trust in favor only of those tribes in respect to which the Federal Government already had the kinds of obligations that the words `under Federal jurisdiction' imply."). In other words, Carcieri held that the Secretary does not have the authority to take land into trust for any Indian tribe that "was not under federal jurisdiction when the IRA was enacted." Id. at 382-83, 129 S.Ct. 1058; see Confederated Tribes, 830 F.3d at 556, 2016 WL 4056092, at *2 ("In Carcieri v. Salazar, the Supreme Court held that the word, `now,' unambiguously limits the first definition to members of those tribes that were under federal jurisdiction in the year 1934.").
Carcieri's "holding reaches only the temporal limits" of the term "under Federal jurisdiction." Confederated Tribes, 830 F.3d at 559, 2016 WL 4056092, at *4. It left unanswered the meaning of that term, as well as meaning of the term, "recognized." Id. at 556, 2016 WL 4056092 at *2 ("[The Supreme Court] did not pass on the exact meaning of `recognized' or `under Federal jurisdiction.'"); Mackinac Tribe v. Jewell, No. 15-5118, 829 F.3d 754, 756, 2016 WL 3902667, at *2 (D.C.Cir. July 19, 2016) ("The Court has not analyzed the meaning of the word `recognized' nor has it determined whether recognition must have existed in 1934.").
The Confederated Tribes Court likewise concluded that the phrase "recognized" was "ambiguous and susceptible to either" (1) an interpretation requiring a finding that a tribe was "recognized" in the year 1934, or (2) an interpretation requiring a tribe "only [to] be `recognized' as of the time the Department acquires the land into trust" for the tribe. Id. at 560-61, 2016 WL 4056092 at *5-6. Noting the "historical baggage" associated with the term "recognized," the Court explained that "[t]he concept of `recognition' has been used at once in the cognitive or quasi-anthropological sense, in terms of knowing or realizing that a tribe exists, and alternatively in a political sense, to refer to a formalized, unique relationship between a tribe and the United States." Id. at 559, 2016 WL 4056092 at *4. Finding legislative history also unclear "on when recognition must occur or what it entails," id. at 561, 2016 WL 4056092 at *6, the Court deferred to the Secretary's interpretation "that `the IRA imposes no time limit upon recognition,'... and `the tribe need only be "recognized" as of the time the Department acquires the land into trust,'" id. at 559, 561-63, 2016 WL 4056092 at *4, *6-7 (citations omitted).
The agency interpretations upheld by the D.C. Circuit in Confederated Tribes are consistent with Justice Breyer's concurring opinion in Carcieri, which noted that "[t]he statute ... imposes no time limit upon recognition" and suggests that "a tribe may have been `under Federal jurisdiction' in 1934 even though the Federal Government did not believe so at the time," as reflected by instances of the DOI's "later recognition [of] earlier `Federal jurisdiction.'" 555 U.S. at 397-99, 129 S.Ct. 1058 (Breyer, J., concurring). Indeed, Justice Breyer's concurrence indicates that an Indian tribe "under Federal jurisdiction" may include a tribe that is "recognized" post-1934 on the basis of a certain 1934-or-earlier government-to-government relationship, as may be evidenced by "a treaty with the United States (in effect in 1934), a (pre-1934) congressional appropriation, or enrollment (as of 1934) with the [BIA]." Id. at 399, 129 S.Ct. 1058 (Breyer, J., concurring). Justices Souter and Ginsburg agreed that "the statute imposes no
The timely guidance of this binding authority is next applied to the instant challenge to the Secretary's action in the IRA ROD at issue here.
Secretary's Explanation Of Statutory Authority
In discussing "[t]he existence of statutory authority for the acquisition and any limitations contained in such authority" in the IRA ROD, as required by 25 C.F.R. § 151.10(a), the Secretary "evaluated the applicability of Carcieri to the [North Fork] Tribe's application and ... determined that the Secretary [was] authorized to acquire land in trust for the [North Fork] Tribe under 25 U.S.C. § 465." IRA ROD at 54-55. Notably, the Secretary did not engage in any analysis regarding the concept of "recognition," but, rather, addressed only whether the North Fork Tribe was "under Federal jurisdiction" in 1934. See id. The Secretary explained that "a majority of the adult Indians residing at the [North Fork] Tribe's Reservation voted to reject the IRA at a special election duly held by the Secretary on June 10, 1935," as documented in a report by Theodore H. Haas, the United States Indian Service Chief Counsel, in 1947 ("Haas Report"). Id. (citing Haas Report at 15).
This Court, in Stand Up I, found the Secretary's conclusion to be "rational," 919
The IRA ROD does not expressly refer to the concept of "recognition," but nevertheless the Secretary highlighted the United States' history of recognizing and acquiring land for the North Fork Tribe in the section of the IRA ROD discussing "[t]he need of the ... Tribe for additional land," as required by 25 C.F.R. § 151.10(b). IRA ROD at 55-56. The Secretary discussed the purchase of the North Fork Rancheria with 1913 congressional appropriations, the "termination of Federal trusteeship of the North Fork Rancheria" in 1958, and, significantly, the 1983 judgment in the Hardwick litigation, "wherein the Tribe's status was restored and confirmed." Id. at 55. The Secretary also discussed the purchase, with HUD funds "for tribal housing," of the North Fork Tribe's HUD tract, which was "placed in trust by the United States of America in 2002." Id. at 56. Consequently, the IRA ROD evidences the Secretary's reliance on the longstanding federal acknowledgment and history of land acquisition for a now federally-recognized Indian tribe and provides a sufficient explanation of the Secretary's reasonable conclusion that land may be acquired for the North Fork Tribe under Section 5 of the IRA.
Stand Up Plaintiffs' Arguments
The Stand Up plaintiffs argue that the Secretary's conclusion that the North Fork Tribe was under federal jurisdiction in June 1934 is arbitrary and capricious since it "goes against the clear intent of Congress and is inconsistent with other DOI determinations." Pls.' Mem. at 6, 9. Specifically, the Stand Up plaintiffs assert that a Section 18 election "cannot, on its own, be conclusive evidence that a tribe was under federal jurisdiction," Pls.' Reply
As an initial matter, the plaintiffs' assertion is misplaced. The Court need not opine on whether the calling of a Section 18 election can, by itself, as a matter of law, conclusively establish the existence of an Indian tribe under federal jurisdiction within the meaning of the IRA, or whether it was rational for the Secretary to conclude so in this case, because the Secretary did not rely exclusively on the calling of a Section 18 election in considering the statutory authority to acquire land for the North Fork Tribe. Rather, the Secretary relied on "the calling of a Section 18 election at the Tribe's Reservation," expressly considering both the Section 18 election and the North Fork Tribe's possessive connection to its own "Reservation" at the North Fork Rancheria. IRA ROD at 55 (emphasis added).
These criticisms, which relate to the North Fork Tribe's tribal identity and existence, seek to cast doubt on the federal government's recognition of the North Fork Tribe. Mackinac Tribe, 829 F.3d at 755, 2016 WL 3902667, at *1 (defining "federal recognition" as "a `formal political act confirming the tribe's existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government'" (quoting Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C.Cir.2008))); see Confederated Tribes,
In any event, the plaintiffs do not merely challenge the IRA ROD as "arbitrary and capricious," but also claim that the decision was "not in accordance with law." TAC ¶ 60. To the extent that the plaintiffs allege that the Secretary lacked statutory authority to acquire land for the North Fork Tribe, see, e.g., Pls.' Mem. at 6; Pls.' Reply at 2, no agency reasoning is needed for the Court's review, Amador Cty., 640 F.3d at 382. Either the Secretary has the authority, "in which case [the court] must reject the challenge," or the Secretary does not have the authority, "in which case [the court] must direct the Secretary" to remove the Madera Site from trust. Id.; see Catholic Health Initiatives v. Sebelius, 617 F.3d 490, 4497 (D.C.Cir.2010) ("It is a cardinal principle of administrative law that an agency may act only pursuant to authority delegated to it by Congress.... When an agency has acted beyond its delegated authority, a reviewing court will hold such action ultra vires ... or a violation of the [APA]...." (citations omitted)); Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 621 (D.C.Cir.1992) ("Agency actions beyond delegated authority are `ultra vires,' and courts must invalidate them.").
Thus, the Court addresses the plaintiffs' myriad arguments about the Section 18 election and the North Fork Tribe's continuing tribal existence seriatim below. For the reasons explained, the plaintiffs' criticisms are unavailing.
IRA Section 18 Election
Contrary to the plaintiffs' assertion, the calling of a Section 18 election can, by itself, conclusively establish the existence of a tribe under federal jurisdiction within the meaning of the IRA for several reasons: first, under the first definitional prong of "Indian" under § 479, "Indians residing on one reservation" constitute a "tribe"; second, the other two definitional prongs of "Indian" under § 479 need not be considered in this case; and, finally, the IRA does not require "unified" tribal affiliation. Moreover, the purchase of the North Fork Rancheria is significant in confirming the Secretary's authority to acquire land on behalf of the North Fork Tribe.
(i) "Indians Residing On One Reservation" Constitute A Tribe
The plaintiffs employ a convoluted line of reasoning by contrasting the text of Sections 16 and 18 of the IRA, codified at 25 U.S.C. §§ 476 and 478, respectively. As noted supra, Part III.D.2, Section 18 is an "opt-out provision" and provides, inter alia, that the IRA "shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary ..., shall vote against its application." 25 U.S.C. § 478. Section 16, by contrast, grants "[a]ny Indian tribe ... the right to organize for its common welfare," and provides that any such tribe "may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effective when," inter alia, "ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary under such rules and regulations as the Secretary may prescribe." Id. § 476(a)(1). The plaintiffs believe that the only type of IRA election that may, as a matter of law, conclusively establish the existence of a tribe under federal jurisdiction, within the meaning of the IRA, is a Section 16 election specifically resulting in an affirmative vote to organize. In their view, neither a Section 16 election resulting in a disapproving vote nor any Section 18 election fit the bill. See Pls.' Mem. at 7-9, 11 n.9. Thus, according to the plaintiffs, the election held at the North Fork Rancheria in 1935 is meaningless.
The plaintiffs repeatedly underscore the fact that Section 16, as opposed to Section 18, contains the term "tribe." Pls.' Mem. at 7-8. Compare 25 U.S.C. § 476(a)(1) (providing "[a]ny Indian tribe" with the "right to organize" and adopt a constitution, bylaws, and amendments upon a "majority vote of the adult members of the tribe or tribes" (emphasis added)), with id. § 478 ("This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." (emphasis added)). Based on this distinction, and the fact that "Section 18 elections were for Indians at reservations, not tribes," Pls.' Reply at 11 n.7, the plaintiffs contend that "[w]hile `adult Indians' could vote under Section 16 to organize as a `tribe' under the IRA, a vote of `adult Indians' under Section 18 does not change their status to a tribe," Pls.' Mem. at 7. In other words, the plaintiffs insist that the Secretary's holding of "a Section 18 vote does not establish that the Indians living on the reservation were a tribe[,] .... but rather only the existence of a reservation with Indians living on it." Id. at 8; see also id. at 10 ("Under Section 18, the only conclusion that can be drawn solely from the vote is that Indians voted."); Pls.' Reply at 10 ("Section 18 elections were held without regard to tribal status. The Act required the Secretary to hold Section 18 elections on every reservation. It was not an election for tribes."). The plaintiffs accuse the Secretary of wrongfully "creat[ing] [the North Fork Tribe] through the operation of Section 18." Id.; see also id. at 6 ("[Section 18] elections did not create tribes by operation of law, where none had existed prior thereto or where two or more distinct tribes resided on a single reservation.").
The plaintiffs fail to acknowledge the plain text of § 479, which defines "tribe" to include "any Indian tribe, organized band, pueblo, or the Indians residing on one reservation." 25 U.S.C. § 479 (emphasis added). This text unambiguously indicates that Congress considered, regardless of individual Indians' previous tribal affiliations, "the Indians residing on one reservation" at the time of the IRA's enactment to be a "tribe." Id.; cf. 1-3 COHEN'S HANDBOOK
It reasonably and logically follows that, by virtue of the fact that the Secretary called a Section 18 election at the North Fork Rancheria, pursuant to § 478 of the IRA, the Indians who voted at the North Fork Rancheria were "members of a recognized Indian tribe" that was "under Federal jurisdiction" on June 18, 1934. 25 U.S.C. § 479; see Defs.' Mem. at 12 ("Simply put, if the North Fork Rancheria was not composed of `Indians,' `now under Federal
Similarly, the October 12, 1934 memorandum to the Secretary from the Solicitor of the DOI ("Solicitor") to the Secretary, cited by the plaintiffs, Pls.' Reply at 7, reflects that Section 18 was intended to respect tribal sovereignty and protect tribes, as opposed to merely Indian lands (reservations) or individual Indians. The memorandum notes that the IRA "differs widely from past policies," opines that "it must have been the feeling of Congress that the new policy should not be imposed upon any Indian tribe against its will," and explains that "[t]he declared purpose of this [Section 18] referendum provision was to protect and safeguard every tribe of Indians against the possibility that the act might in some way deprive them of their existing rights ...." Solicitor Ops. at 443-44 (Papago — Wheeler-Howard Act (Oct. 12, 1934)) (emphasis added). Accordingly, the memorandum refers to Section 18 as a "tribal referendum." Id. at 444 (emphasis added). Notably, the memorandum also refers to the following "statement made on the floor of the House by Congressman Howard" regarding Section 18:
Id. (emphasis added) (quoting 78 Cong. Rec. 11,732 (June 15, 1934)). Thus, the October 12, 1934 memorandum, on which the plaintiffs rely, undermines rather than helps the plaintiffs' statutory interpretation.
In sum, the fact that Section 18 does not contain the word "tribe" and does contain the word "reservation" does not undercut the plain text of § 479, defining "tribe" to include "the Indians residing on one reservation," or the purpose of Section 18, to respect and protect Indian tribes, namely, the Indian tribes that were federally-acknowledged to exist at that time. Accordingly, contrary to the plaintiffs' assertion,
(ii) Alternative Definitions Of "Indian" In § 479 Need Not Be Considered
The plaintiffs maintain "that those voting under Section 18 may have qualified as Indians" under one of the other two definitions of Indian in § 479, but those definitions "do not require any tribal affiliation," Pls.' Reply at 10, and therefore are not dispositive of "whether those Indians were a single, unified tribe," id. at 8; see also Pls.' Mem. at 9 (emphasizing that "[t]he term `Indian'" in § 479 has "two other definitions unconnected to the term `tribe'" and asserting that, as a result, a Section 18 election could have included people who were not members of any recognized Indian tribe under federal jurisdiction in 1934). Contrary to the federal defendants' position that "whether North Fork's members constituted a tribe is irrelevant so long as North Fork's members were `Indians' within the terms of the IRA," Defs.' Mem. at 14, the plaintiffs argue that the Carcieri standard, requiring the Secretary specifically to "determine that the applicant North Fork Tribe was a `recognized Indian tribe ... under federal jurisdiction' in 1934," must be met here because "the Secretary expressly purports in the ROD to have met the Carcieri standard," Pls.' Reply at 8-9.
Despite the unexplained, yet undisputed, premise in Carcieri "that the Secretary's authority to take the parcel in question into trust [for the Narragansett Tribe] depends on whether the Narragansetts are members of a `recognized Indian Tribe now under Federal jurisdiction,'" 555 U.S. at 388, 129 S.Ct. 1058,
(iii) "Unified" Tribal Affiliation Is Not Necessary
Pointing out that "Section 18 does not limit the `adult Indians' [who] voted at a reservation to those [who] were members of the same tribe," Pls.' Reply at 7, that "varied groups of Indians ... resided on reservations when the IRA was enacted," and that "[i]ndividual Indians may have lived on a reservation without regard to tribal affiliation," id. at 2-3, the plaintiffs speculate that the North Fork Rancheria Indians who voted in the Section 18 election were not necessarily part of "a single, unified tribe," id. at 4. To bolster their point, the plaintiffs cite to the Sioux Indians, the Fort Belknap Reservation, and the Quinault Reservation as examples that (1) the DOI did not, in 1936, consider either the Indians of the Lower Sioux Indian Community or those of the Prairie Island Indian Community to constitute a
The plaintiffs' use of the foregoing historical examples reveals the plaintiffs' conflation of the two related, but nonetheless distinct, requirements — federal jurisdiction and federal recognition. As discussed supra, the concept of federal jurisdiction implicates the federal government's "federal power and responsibility toward the tribe," COHEN'S HANDBOOK § 3.02(6)(d), and "generally reflect[s] federal obligations, duties, responsibility for or authority over the tribe by the Federal Government," Confederated Tribes, 830 F.3d at 564, 2016 WL 4056092, at *8 (quotations and citation omitted), whereas federal recognition "is a `formal political act confirming the tribe's existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government,'" Mackinac Tribe, 829 F.3d at 755, 2016 WL 3902667, at *1 (quoting Cal. Valley Miwok Tribe, 515 F.3d at 1263); see H.R. Rep. No. 103-781 (Oct. 3, 1994) ("`Recognized' is more than a simple adjective; it is a legal term of art. It means that the government acknowledges as a matter of law that a particular Native American group is a tribe by conferring a specific legal status on that group, thus bringing it within Congress' legislative powers.").
Though federal jurisdiction and federal recognition often go hand-in-hand, the Supreme Court and the D.C. Circuit have explained that a tribe may be federally recognized, yet not have been under federal jurisdiction in 1934, or vice-versa. For example, in Carcieri, the Supreme Court noted that the Narragansett Tribe had gained "formal" recognition in 1983, upon the BIA's determination that it "ha[d] existed autonomously since first contact, despite undergoing many modifications." 555 U.S. at 384, 129 S.Ct. 1058 (quotations and citation omitted). "[B]oth the State and Federal Government considered the Narragansett Tribe as under state, ... not under federal, jurisdiction in 1934," however. Id. at 399, 129 S.Ct. 1058 (Breyer, J., concurring) (emphasis in original). By contrast, the Stillaguamish Tribe was federally recognized in 1976 based, in part, on "the fact that the Tribe had maintained treaty rights against the United States since 1855," and, thereby, was determined
Carcieri and Confederated Tribes indicate that the Secretary's calling of Section 18 elections, in and around 1934, was certainly an acknowledgment of federal power and responsibility (i.e., federal jurisdiction) toward any Indians associated with the reservations on which the elections were called, including those Indians in the plaintiffs' historical examples, regardless of whether the government then formally recognized, as distinct political groups, the tribes to which those Indians belonged. Since the government's acknowledgment of "federal responsibilities toward a tribe through a special, political relationship is a different question from whether those responsibilities in fact existed," id. at 565, 2016 WL 4056092 at *9, to the extent that the plaintiffs challenge the federal recognition of the Indians residing at the North Fork Rancheria in 1934 who voted in the Section 18 election, that is a separate issue, addressed, infra, in Part III.D.3.b.
In any event, despite the plaintiffs' efforts to show otherwise, nothing in the text of § 479 requires a tribe to be "single," "unified," or comprised of members of the same historically cohesive or ethnographically homogenous tribe. See 25 U.S.C. § 479 (defining tribe to include "the Indians residing on one reservation"); Stand Up I, 919 F.Supp.2d at 68 ("[T]he broad definition of `tribe' in § 479 indicates that a formal tribal government is not necessary to be considered a `tribe' for purposes of the IRA."). Notably, the leading treatise of Indian law explains:
COHEN'S HANDBOOK § 3.02(2). The treatise additionally notes that "considerations prompting [federal] recognition do not always reflect tribal understandings." Id. Thus, the fact that "[n]o conclusion regarding the specific ... cultural make-up of the Indians at a listed reservation can be drawn from Table A [of the Haas Report] alone" is immaterial. Pls.' Reply at 4.
(iv) North Fork Rancheria's Purchase Is Significant
In any event, substantial evidence in the record shows that the North Fork Tribe "existed as a tribe independent of the IRA's enactment," Pls.' Reply at 14, including the purchase of the North Fork Rancheria, in 1916, for "the North Fork band of landless Indians," Stand Up I, 919 F.Supp.2d at 68 (quotations and citation omitted). As discussed in Stand Up I, the Secretary's authority to acquire land for the North Fork Tribe is particularly clear in light of the fact that "[t]he North Fork
In light of the Secretary's consideration of the North Fork Tribe's possessory connection to the Rancheria, see IRA ROD at 55 (referring to "[t]he calling of a Section 18 election at the Tribe's Reservation" (emphasis added)), the historical administrative documents cited by the plaintiffs to show the DOI's "[c]ontemporaneous practice," Pls.' Reply at 4, lend further support for the Secretary's decision. For example, the plaintiffs cite a November 7, 1934 Solicitor memorandum as comporting with their view that "[a] group of Indians residing on a single reservation" is not necessarily a "tribe," but may become a "tribe" by choosing to organize under Section 16. Pls.' Reply at 3 (emphasis omitted); see Solicitors Ops. at 478-80 (Tribal Organization and Jurisdiction — Definition of Tribe as Political Entity (Nov. 7, 1934)). The memorandum actually has little, if anything, to do with the plaintiffs' proposition and, instead, involves the question of whether, under an entirely unrelated provision of the IRA (i.e., Section 4), "restricted Indian lands" may be devised only "to the Indians of the same reservation without regard to original tribal blood or affiliation." Solicitor Ops. at 478. In answering this question "in the negative," the Solicitor explained that "prior to tribal organization under Section 16[,] .... the question of what tribal organization has any jurisdiction over restricted allotted lands of individual Indians is a matter of some uncertainty," but that "the most significant criterion of jurisdiction, where no constitution has been adopted, is the historical test to what band, tribe, or group of tribes did the land in question belong at the time when it was allotted[.]" Id. at 479-80 (emphasis added).
This memorandum makes clear the DOI's contemporaneous view that "[a] tribe that did not vote to organize under the IRA was still a tribe," i.e., a "tribal organization," and, thereby, directly refutes the plaintiffs' suggestion that the
The plaintiffs' contention, based on a July 24, 1934 letter from the DOI Office of Indian Affairs field office in Sacramento, California, to the Commissioner of Indian Affairs in Washington, D.C. ("Sacramento Indian Agency Letter), which document is not part of the record, that the rancherias in California were not considered to be Indian reservations, is meritless. Pls.' Reply at 4; see Sacramento Indian Agency Letter at 1. Courts, including the D.C. Circuit, have widely recognized California rancherias as Indian reservations. See, e.g., City of Roseville, 348 F.3d at 1022, 1025, 1027, 1032 (referring to the Auburn Rancheria as the Auburn Tribe's "former reservation"); id. at 1022 ("In 1917, the federal government provided the Auburn Tribe with a small 20-acre reservation, ... known as the Auburn `Rancheria.'"). Additionally, the DOI treated rancherias as reservations in conducting Section 18 elections under the IRA shortly after its enactment. See Haas Report at 15 (listing "Northfork" and other rancherias under the "reservation" table heading). Moreover, notably, DOI regulations consider "rancheria" to fall under the definition of "tribe," see 25 C.F.R. § 151.2(b) ("Tribe means any [inter alia] ... rancheria ..., which is recognized by the Secretary as eligible for the special programs and services from the [BIA]."); Land Acquisitions, 45 Fed. Reg. 62,034, 62,036 (Sept. 18, 1980) (same, referring to earlier regulations in 25 C.F.R. § 120a.2).
The plaintiffs' reliance on the Sacramento Indian Agency Letter for the proposition that, in 1934, only "from four to twenty families," with "no tribal or business organization of any sort," lived on the "small Government owned Indian rancherias," is similarly unavailing. Sacramento Indian Agency Letter at 1; Pls.' Reply at 4. A rancheria's lack of official "tribal or business organization" makes no difference in light of the IRA's definition of "tribe" as "the Indians residing on one reservation," which definition does not require any such organization, 25 U.S.C. § 479, and, in any event, as the North Fork Tribe notes, the letter is silent as to whether the resident families were nonetheless members of Indian tribes, North Fork's Reply at 3 n.2. Moreover, given the poor condition of the land set aside for rancherias, the small number of resident families carries no weight. See infra subpart b(ii).
North Fork Tribe's Continuing Tribal Existence
The plaintiffs challenge "the continuity of [the North Fork Tribe's] tribal
(i) North Fork Rancheria Was Purchased For The North Fork Tribe
Arguing that "the North Fork Rancheria was not purchased for a tribe of Indians," Pls.' Notice Suppl. Auth. at 3 (citing Pls.' Mem. at 12-13; Pls.' Reply at 15-16), the plaintiffs assert that "`a tribe is not a geographical but a political entity,'" and claim that "documents in the administrative record ... speak only of a group of Indians in geographical terms." Pls.' Reply at 15 n.12 (quoting Solicitor Ops. at 478); see also Pls.' Mem. at 13.
Despite the plaintiffs' contention that "merely deeming a group of Indians in a region a `band' does not confer tribal status on that group," Pls.' Reply at 15 n.12, substantial evidence clearly demonstrates that the North Fork Rancheria was purchased for an "organized band" of Indians, 25 U.S.C. § 479. Most significantly, the record contains a letter, dated April 4, 1916, from John Terrell, a Special Indian Agent stationed in San Francisco, to the
Record evidence confirms that the larger of the "two propositions" of land was indeed purchased "to provide homes for" those "200 Indians," and that land became the North Fork Rancheria. Lipps-Michaels Survey at 50 ("North Fork is credited with the largest Indian population [in Madera County] and here 80 acres of land was bought to provide homes for 200 Indians."); see Terrell Letter at 1 ("80 acres" including "40 acres, the S.W.¼ of the N.W.¼ Section 21, Tp.8, R.23 E., M.D.M." and "the adjoining 40 acres to the east, viz: the S.E.¼ of the N.E.¼ Section 20, same township and range"); Hardwick Stip. J., Ex. A at 3, Jt. App. at 62, 64, ECF No. 124-1 ("The North Fork Rancheria, 80 acres, is located about two miles from the town of North Fork, Madera Country California. SE1/4NE1/4 Section 20, and SW1/4NW1/4 Section 21, T. 8 S., R. 23 E., Mount Diablo Meridian."); see also BIA Decision Package (Jan. 2011), ch. 3, Decision to Acquire Trust Title at 3, Jt. App. at 25, 30, ECF No. 124-1.
Notwithstanding the substantial evidence that the North Fork Rancheria was purchased for the North Fork Tribe, the plaintiffs "argue that California Rancherias were purchased for the Indians of California generally rather than for particular tribes," Pls.' Notice Suppl. Auth. at 2 (citing Pls.' Mem. at 13 and Pls.' Reply at 3-4, 16), and that, even when "some of these Rancherias were purchased for named groups, the federal government did not consider these groups to be tribes," Pls.' Reply at 4. The plaintiffs reason that "no tribal restrictions applied to a Rancheria's use, and any individual California Indian could occupy any Rancheria parcel." Id.; see also id. at 15-16 ("[E]ven where a Rancheria was purchased for a specific group of Indians residing in a particular area, the deed was not restricted to use by those Indians; any California Indian could use Rancheria land."); Pls.' Mem. at 13 ("Even if the purchase had been for a particular tribe, there were no restrictions on Rancheria deeds limiting use to the group for which it was purchased; any homeless Indian could take up residence on a Rancheria."). The plaintiffs rely on (1)
First, the August 1, 1960 Solicitor memorandum addressed the CRA, which "in keeping with the then-popular policy of assimilating Native Americans into American society," authorized the Secretary "to terminate the federal trust relationship with several California tribes ... and to transfer tribal lands from federal trust ownership to individual fee ownership." Amador Cty., 640 F.3d at 375 (citing CRA). Both Congress and the executive branch have, since then, expressly repudiated federal legislation and policies aimed at terminating the federal government's trust relationship with Indian tribes. See COHEN'S HANDBOOK § 3.02(8)(a); see also Federally Recognized Indian Tribe List Act of 1994 ("List Act"), Pub. L. 103-454, § 103(5), 108 Stat. 4791 (Nov. 2, 1994) ("Congress has expressly repudiated the policy of terminating recognized Indian tribes, and has actively sought to restore recognition to tribes that previously have been terminated."). Consequently, the Solicitor memorandum's power to persuade is limited, particularly in light of the fact that the memorandum purports to justify and sanction Congress' disposition of rancheria properties at that time. See Solicitor Ops. at 1885-86. In any event, the memorandum lends little, if any, support to the plaintiffs' argument.
It is true that the legislation appropriating federal funds for the purchase of the California rancherias referred to "Indians in California," generally. See, e.g., Act of June 21, 1906, Pub. L. No. 59-258, 34 Stat. 325, 333 (appropriating "one hundred thousand dollars to purchase for the use of the Indians in California now residing on reservations which do not contain land suitable for cultivation, and for Indians who are not now upon reservations in said State, suitable tracts or parcels of land"); Act of June 30, 1913, 38 Stat. 77, 86 (appropriating funds "[f]or support and civilization of Indians in California ... and for the purchase of small tracts of land ... for the use and occupancy of Indians in California"). Thus, in the August 1, 1960 memorandum relied on by the plaintiffs, the Solicitor explained to the Commissioner of Indian Affairs that rancherias "were for the most part acquired or set aside by the United States for the Indians in California, generally, rather than for a specific group," and "could be used for any landless California Indians, and not merely for the specific band for whom purchased," reasoning that "neither the deed conveying the property to the United States nor the act appropriating the purchase money contained any limitation or provision as to what Indians should be settled thereon." Solicitor Ops. at 1884 (quotations and citations omitted).
The Solicitor also acknowledged, however, that, in executing the appropriated funds, "the Secretary generally ordered the purchase of a particular California tract" for a specific band's use, using "[a]
The plaintiffs' reliance on Mishewal Wappo is similarly unavailing. There, the court held that the plaintiff Mishewal Wappo Tribe's claims challenging its federally unrecognized tribal status were barred by the applicable statute of limitations because each claim "rel[ied] on one common alleged injury — termination of the Rancheria," under the CRA of 1958. Mishewal Wappo, 84 F.Supp.3d at 932, 936-37. In rejecting the plaintiff Tribe's argument "against application of the statute of limitations based on its theory that the Government continues to owe it a fiduciary duty," the court reasoned that the "termination of the Alexander Valley Rancheria did not equate to the termination of Plaintiff's status as a federally-recognized tribe." Id. at 939-40. In a subsequent footnote, the court noted the importance of the fact that "the various California rancherias were not created for the use of particular Indian tribes," opining that "their establishment was not tethered to the federal recognition of any tribe." Id. at 940 n. 12. Additionally, based on observations that issues "relat[ing] to Indian lands" and "relat[ing] to collective Indian status" are "distinct" and "do not always overlap," id. at 939-40 (third emphasis added), the Mishewal Wappo court reasoned that "while the IRA permitted the Indians of the Alexander Valley Rancheria to organize themselves into a tribe in 1935 due to a common interest in the previously-established rancheria, this fact did not then render the existence of the tribe dependent on that of the Rancheria," id. at 940 n. 12.
There, however, unlike in the instant case, "`[t]he Alexander Valley Rancheria... was purchased for landless California Indians,'" generally, and not for any particular tribe. Id. (quoting the administrative record); see also id. at 932 ("These parcels ... were designated under the Indian Appropriations Act for the benefit of California Indians who wished to live there and eventually became known as the Alexander Valley Rancheria."). By contrast, as discussed supra, "[t]he North Fork Rancheria was purchased for the Indians of the North Fork Band." Defs.' Resp. Notice Suppl. Authority at 1, ECF No. 131. As the North Fork Tribe notes, "nothing in the Mishewal opinion purports to address the evidence that the North Fork Rancheria was purchased for the Indians of the North Fork band.... [or] to determine that the 45 recognized California Rancheria tribes were not actually tribes for the purposes of the IRA." North Fork's Reply at 7 n.5. Additionally, while the Mishewal Wappo court found that particular Indian tribe's existence to be independent from the existence of the Alexander Valley Rancheria, the court acknowledged that issues relating to Indian lands may overlap with issues relating to Indian status. 84 F.Supp.3d at 939-40. Here, as discussed in more detail, infra, in subpart b(iii), since the North Fork Tribe has a demonstrated connection to the North Fork Rancheria, as well as a federally-recognized tribal existence, Mishewal Wappo is simply inapplicable.
(ii) Speculation That IRA Voters Were Not North Fork Tribe Members Is Unfounded
The plaintiffs argue that "there is no evidence in the record of any connection between" the six Indians who voted in the 1935 IRA election at the North Fork Rancheria "and the 200 [Indians] for which the Rancheria was purchased," accusing the defendants in this case of "ignor[ing] DOI's understanding of the relationship between the purchase and use of Rancherias." Pls.' Reply at 16-17. The plaintiffs rely again, on the August 1, 1960 Solicitor memorandum, which states, with respect to California rancherias generally, that "[i]n actual practice, Indians occasionally moved onto the [rancheria] propert[ies] without any assignment, occupying a parcel abandoned or never assigned," and were "not disturbed since these occupants were also `Indians of California' for whose use the land was acquired." Solicitor Ops. at 1883; see Pls.' Mem. at 13; Pls.' Reply at 16. To the extent that the plaintiffs rely on this statement to suggest that the Indians who voted in the 1935 election at the North Fork Rancheria may have been random, homeless Indians, unconnected to the North Fork Tribe, their speculation is unfounded.
In the same August 1, 1960 memorandum, the Solicitor acknowledged that the Secretary continuously controlled the use of the rancherias, noting that "the Secretary... permitted Indians living nearby, generally in groups, to occupy such tracts," and that "the consistent practice ha[d] been to select by administrative action the individual Indians who may use the land." Id. at 1882, 1884 (quotations and citation omitted). Moreover, the Secretary was responsible for calling and holding IRA elections under Section 18 and, according to a December 13, 1934 memorandum cited by the plaintiffs, around the time the elections were called, the Solicitor construed Section 18, "in order to carry out the intent of Congress," to allow for the voting participation of "those [Indians] who in some sense `belong' on the reservation, i.e., those who have some rights in the property or tribal affairs of the reservation" and "reside on the reservation." Solicitor Ops. at 486 (Wheeler-Howard Act — Interpretation (Dec. 13, 1934)). Thus, the historical documents cited by the plaintiffs present no reason to doubt that the Indians who voted in the 1935 election at the North Fork Rancheria were, in fact, members of the "Northfork band" of Indians for whom the Rancheria was purchased, i.e., the North Fork Tribe.
To the extent that the plaintiffs emphasize the lack of documented residents at the North Fork Rancheria as compared to the 200 Indians for whose use it was purchased, the lack of documented residents is hardly surprising. See generally Pls.' Mem. at 2, 13. A DOI survey conducted in 1920 noted that the North Fork Rancheria "tract is unoccupied," even though "North Fork is credited with the largest Indian population [in Madera County]" and "80 acres of land was bought to provide homes for 200 Indians." Lipps-Michaels Survey at 50. The survey explained,
Id.; see also id. at 3, AR at NF_AR_0041046 (referring to rancheria land as "unsuitable" and explaining that "most of the California Indians for whom lands have been purchased by the Government
(iii) North Fork Tribe Is A Federally-Recognized Indian Tribe
The plaintiffs argue that "nothing in the administrative record supports" the North Fork Tribe's "claim to be the successors of th[e] unidentified `band'" of Indians for whom the North Fork Rancheria was purchased, "nor did the Secretary make such findings in the record of decision." Pls.' Mem. at 2. Contrary to the plaintiffs' assertion, the Secretary was not required to analyze the North Fork Tribe's continuing tribal existence when assessing her authority to acquire land on the Tribe's behalf because the Tribe's continuing tribal existence is encompassed firmly within its legal status as a federally-recognized Indian tribe, and "[i]t is a `bedrock principle of federal Indian law that every tribe is "capable of managing its own affairs and governing itself."'" Timbisha Shoshone Tribe v. Salazar, 678 F.3d 935, 938 (D.C.Cir.2012) (quoting Cal. Valley Miwok Tribe, 515 F.3d at 1263).
As discussed, supra, federal recognition is a legal status, "a `formal political act confirming the tribe's existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government.'" Mackinac Tribe, 829 F.3d at 755, 2016 WL 3902667, at *1 (quoting Cal. Valley Miwok Tribe, 515 F.3d at 1263). Notably, however, "[t]he definition of `recognition' has evolved over time." Id. at 755-56, 2016 WL 3902667 at *1-2. "[H]istorically[,] the United States recognized tribes through treaties, executive orders, and acts of Congress," and, "even after the passage of the IRA," in 1934, "[r]ecognition by the federal government proceeded in an ad hoc manner, ... with the [BIA] reviewing petitions for federal recognition on a case-by-case basis." Id. (citing Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 211 (D.C.Cir.2013)). No official federal process to recognize tribes was developed until 1978, when the DOI "promulgated Part 83 of its regulations under the IRA (also known as the Federal Acknowledgment Process), which set out uniform procedures through which Indian groups could seek formal recognition." Id. Pursuant to those procedures, groups that "successfully petition" are "added to the list of federally recognized Indian tribes published by [the DOI]." Id.; see also Mackinac Tribe v. Jewell, 87 F.Supp.3d 127, 131 (D.D.C.2015) (explaining that "tribal recognition law developed through centuries of disjointed theories, conflicting policies, and shifting attitudes of various branches of the United States government towards tribes" until "[f]ortunately, `Congress, the administration, the national Indian
DOI regulations initially provided for the publication of the list of federally recognized tribes in the Federal Register at least once every three years. In 1994, Congress passed the List Act, requiring the Secretary annually to "publish in the Federal Register a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians." § 4(a), codified at 25 U.S.C. § 479a-1.
While the plaintiffs cannot dispute that the North Fork Tribe is a federally-recognized Indian tribe, included on the annually-published list of recognized Indian tribes, they take issue with how the North Fork Tribe's federally-recognized legal status came about. In a stipulated judgment entered in a federal lawsuit, Hardwick v. United States, No. C-79-1710-SW (N.D.Cal. Aug. 3, 1983), the United States agreed, inter alia, to "recognize the Indian Tribes, Bands, Communities or groups of... seventeen rancherias," including "North Fork," "as Indian entities" and to include these entities "on the Bureau of Indian Affairs' Federal Register list of recognized tribal entities pursuant to 25 CFR, Section 83.6(b)." Hardwick Stip. J. ¶¶ 1, 4. The United States further agreed that, within two years, the recognized Indian "entit[y]" of the North Fork Rancheria could "arrange to convey to the United States [certain] community-owned lands... to be held in trust by the United States for the benefit of [the] Tribe, Band, Communit[y] or group [of the North Fork Rancheria] ..., authority for the acceptance of said conveyances being vested in the Secretary of the Interior under section 5 of the Act of June 18, 1934, `The Indian Reorganization Act,' 48 Stat. 985, 25 U.S.C. § 465 as amended by section 203 of the [ILCA] ... and/or the equitable powers of this court." Id. ¶ 7. The North Fork Rancheria is described with particularity as "80 acres ... located about two miles from the town of North Fork, Madera County, California. SE1/4NE1/4 Section 20, and SW1/4NW1/4 Section 21, T. 8 S., R. 23 E., Mount Diablo Meridian," id., Ex. A at 3, matching the description of the land purchased in 1916 for the Indians belonging to the North Fork band, see Terrell Letter at 1 ("80 acres" including "40 acres, the S.W.¼ of the N.W.¼ Section 21, Tp.8, R.23 E., M.D.M." and "the adjoining 40 acres to the east, viz: the S.E.¼ of the N.E.¼ Section 20, same township and range"); see also IRA ROD at 55-56 (discussing Hardwick judgment "wherein the [North Fork] Tribe's status was restored and confirmed"). The Hardwick judgment is a formal and binding acknowledgment by the United States that the "North Fork band of landless Indians," for whom the North Fork Rancheria was purchased in 1916, is an Indian tribe, within the meaning of the IRA, that has continuously existed since that time. It is also a federal court order legally binding the United States to that acknowledgment.
Thus, contrary to the plaintiffs' assertion, the Hardwick litigation conclusively establishes "that the applicant Tribe is the same tribe as any tribe purportedly under jurisdiction in 1934," Pls.' Reply at 17. As the federal defendants correctly explain, "[t]he determination that [the] North Fork [Tribe] was a recognized Indian tribe with a government-to-government relationship with the United States was established then [in the Hardwick litigation] and cannot be challenged by Plaintiffs now." Defs.' Reply at 12; see also id. ("That membership
The plaintiffs argue that the Hardwick litigation does "not demonstrate that the applicant Tribe is the same as any tribe purportedly under federal jurisdiction in 1934." Pls.' Reply at 17; see also id. at 18 (accusing the Secretary of "engaging in speculation by assuming — without any support or analysis in the administrative record or the California Rancheria Act — that the applicant Tribe is necessarily the same as a `tribe' purportedly under jurisdiction in 1934"); Pls.' Mem. at 18 ("Hardwick can in no way serve as evidence on its own that the North Fork Tribe, as it exists now, has any relation whatsoever to the North Fork band of landless Indians ...." (emphasis omitted)). Instead, the plaintiffs assert that "[t]he [CRA] and Tillie Hardwick litigation demonstrate that the applicant Tribe did not exist prior to the [CRA]." Pls.' Reply at 17. The plaintiffs point to the 1966 "Federal Register notice terminating the North Fork Rancheria and the named individuals listed," pursuant to the CRA, and argue that it "is unequivocal evidence that the federal government understood that no tribe existed at the North Fork Rancheria at its termination." Id. at 18-19 (citing Fed. Reg. Termination Notice); see also id. at 21 (arguing that the fact that the CRA "terminated the Rancheria's status as Indian land and Susan Johnson's status as an Indian .... demonstrate[s] that there is no connection between the applicant North Fork Tribe and any tribe purportedly under jurisdiction in 1934"). According to the plaintiffs, Hardwick served only to "restore ... the Indian status of the [North Fork Rancheria's] sole distributee, Susan Johnson, and the Rancheria land itself." Pls.' Mem. at 16. Aside from that, the plaintiffs claim, the Hardwick stipulation wrongfully "provided for tribal creation" of an Indian entity (the present-day North Fork Tribe) that "was not based on any connection between the Indians for whom the land was purchased or who voted in the 1935 election." Id. at 16-17; see also id. at 3 ("Despite there being no recognized tribal entity at the Rancheria prior to the Rancheria Act and the Rancheria property's being held in trust for individual Indians rather than a tribal entity, the North Fork Rancheria of Mono Indians was, in fact, added to the list [of federally-recognized Indian tribes]."); Pls.' Reply at 18-21.
The Court disagrees. In the Hardwick judgment, the United States formally and legally recognized the Indian "Band ... of" the North Fork Rancheria as a "tribal entit[y]," inherently acknowledging the connection between the "North Fork band of landless Indians" for whom the North Fork Rancheria was purchased in 1916, the Indians who voted in the Section 18 election in 1935, and the descendants of those same Indians at the time of the judgment in 1983. Hardwick Stip. J. ¶ 4
"Congress delegated to the Secretary the regulation of Indian relations and affairs ... including authority to decide in the first instance whether groups have been federally recognized in the past or whether other circumstances support current recognition." Mackinac Tribe, 829 F.3d at 757, 2016 WL 3902667, at *3 (citations omitted). In entering the stipulated judgment in Hardwick, the executive branch of the United States determined that circumstances supported the official federal recognition of the North Fork Tribe, and the District Court Judge, in ordering the judgment, concurred. See United States v. Chem. Found., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 S.Ct. 131 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."); see also U.S. Dep't of State v. Ray, 502 U.S. 164, 179, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ("We generally accord Government records and official conduct a presumption of legitimacy."). As a result of the Hardwick litigation, two branches of government validated the existence of the North Fork Tribe and found the Tribe to qualify appropriately as a recognized Indian tribe. Cf. Mackinac Tribe, 829 F.3d at 757, 2016 WL 3902667, at *3 (requiring the administrative exhaustion of the recognition process where "no branch of government has determined whether the plaintiff Mackinac Tribe currently qualifies as a recognized tribe or as the tribe that was recognized in 1855").
A notice was subsequently published in the Federal Register memorializing the Hardwick judgment. Restoration of Federal Status to 17 California Rancherias, 49 Fed. Reg. 24,084 (June 11, 1984) ("The Indian tribes, bands, communities or groups of the seventeen Rancherias named above are Indian entities with the same status as they possessed prior to distribution of the assets of these Rancherias... and shall be deemed entitled to any of the benefits or services provided or performed by the United States for Indian tribes, bands, communities or groups because of their status as Indian tribes, bands, communities or groups."). In 1985, the DOI listed the "Northfork Rancheria of Mono Indians of California" as an "Indian Tribal Entit[y] Recognized and Eligible to Receive Services" from the BIA. Indian Tribal Entities Recognized and Eligible to Receive Services, 50 Fed. Reg. at 6,057; see Final Rule, 43 Fed. Reg. 39,361, 39,362-63 (Aug. 24, 1978) (DOI regulations requiring the Secretary to update and "publish in the Federal Register ... a list of all Indian tribes which are recognized and receiving services from the [BIA]"). The "Northfork Rancheria of Mono Indians of California" — i.e., the North Fork Tribe in this case, has been listed as a recognized tribe in the Federal Register ever since. Nork Fork's Mem. at 16.
Then, in 1994, Congress weighed in, implicitly sanctioning the North Fork Tribe's
Legislative history reflects Congress' concern about the DOI's "growing and disturbing trend" to "derecognize" tribes, without the authority to do so. H. Rep. No. 103-781 (Oct. 3, 1994). The House Committee on Natural Resources expressed particular concern about the BIA's "indicat[ion] that it intended to differentiate between federally recognized tribes as being `created' or `historic'" and its "position that `created' tribes do not possess all the powers of a sovereign tribal government." Id. Accordingly, "[t]he Committee [on Natural Resources] cannot stress enough its conclusion that the [DOI] may not terminate the federally-recognized status of an Indian tribe absent an Act of Congress. Congress has never delegated that authority to the Department, or acquiesced in such a termination." Id. The Congressional Record additionally reflects the understanding that,
140 Cong. Rec. 11,376, 11,377 (May 23, 1994) (statement of Rep. Richardson).
The above Congressional action took place long after the Hardwick litigation, when the North Fork Tribe had been included on the list of federally-recognized tribes for approximately ten years, and Congress' express findings indicate clearly its expectation that no tribe on the list be terminated or treated any differently than any other tribe. As a result, the Secretary's authority to acquire land in trust for the North Fork Tribe, like any other federally recognized tribe that was under federal jurisdiction in 1934, was prescribed by the Executive's agreement and stipulation and the Judiciary's order in Hardwick, and then confirmed through Congress' enactment of the List Act. As the defendants note, "if Plaintiffs wanted to challenge the Tillie Hardwick stipulation, North Fork's restoration, or the Secretary's decision to place North Fork on the Federal Register list of federally recognized tribes in 1985 and thereafter, the time for doing so has long since passed." Def.'s Reply at 13. The North Fork Tribe, as a federally recognized Indian tribe, has the benefit of land acquisition under § 465 of the IRA, like any other federally recognized tribe that
Accordingly, the Secretary was not required to make factual findings regarding the North Fork Tribe's continuous existence from the purchase of the North Fork Rancheria in 1916 through the issuance of the IRA ROD in 2012, or to engage in the lengthy analysis regarding the North Fork Tribe's continuous existence that the plaintiffs' confusing arguments, see generally Pls.' Mem. at 11-18; Pls.' Reply at 13-21, have demanded of this Court, in order to conclude that the North Fork Tribe was under federal jurisdiction in 1934. Indeed, it was nothing short of rational for the Secretary to decline to do so. See Timbisha Shoshone Tribe, 678 F.3d at 938 ("`In reference to [matters of tribal recognition], it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs.'" (alteration in original) (quoting United States v. Holliday, 70 U.S. (3 Wall.) 407, 419, 18 S.Ct. 182 (1866))); COHEN'S HANDBOOK § 3.02(4) ("[C]lear indications from the political branches demonstrating federal recognition warrant judicial deference...."); see also 5 U.S.C. § 706 ("[D]ue account shall be taken of the rule of prejudicial error.").
* * *
For the foregoing reasons, the defendants are entitled to summary judgment on the Picayune Tribe's IRA claim, see Picayune's Compl. ¶¶ 54-59 (Second Cause of Action), and on the Stand Up plaintiffs' IRA claim, see TAC ¶¶ 56-60 (First Claim for Relief).
E. NEPA COMPLIANCE
The NEPA represents "a broad national commitment to protecting and promoting environmental quality," Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citing 42 U.S.C. § 4331), and was created, in part, for the purpose of "establish[ing] a set of `action forcing' procedures requiring an environmental impact statement on any proposed major Federal action which could significantly affect the quality of the environment." S. Rep. No. 94-152, at 3 (1975). Accordingly, the NEPA requires federal agencies "to the fullest extent possible" to prepare an EIS in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 15-16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and consider a number of factors, including "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and "alternatives to the proposed action," 42 U.S.C. § 4332(2)(C)(i)-(iii). "The statutory requirement that a federal agency contemplating a major action prepare such an [EIS] serves NEPA's `action-forcing' purpose in two important respects," Robertson, 490 U.S. at 349, 109 S.Ct. 1835, by (1) "ensur[ing] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning
The NEPA is "`essentially procedural,'" intended "to ensure `fully informed and well-considered decisions' by federal agencies." Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1309-10 (D.C.Cir.2014) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). Consequently, this law "requir[es] federal agencies to take a `hard look' at their proposed actions' environmental consequences in advance of deciding whether and how to proceed." Sierra Club, 803 F.3d at 37. The NEPA "does not[, however,] mandate particular results in order to accomplish its ends," Del. Riverkeeper Network, 753 F.3d at 1310 (internal quotation marks omitted), "require agencies to elevate environmental concerns over other appropriate considerations," WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C.Cir.2013) (quoting Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)), or necessarily require "the best decision," id. (quoting New York v. NRC, 681 F.3d 471, 476 (D.C.Cir.2012)); see also Sierra Club v. FERC, No. 14-1249, 2016 WL 3525562, at *5 (D.C.Cir. June 28, 2016) ("As a procedural statute, NEPA does not mandate any particular outcome."). As the D.C. Circuit recently reiterated, "NEPA is `not a suitable vehicle' for airing grievances about the substantive policies adopted by an agency, as `NEPA was not intended to resolve fundamental policy disputes.'" Grunewald v. Jarvis, 776 F.3d 893, 903 (D.C.Cir.2015) (quoting Found. on Econ. Trends v. Lyng, 817 F.2d 882, 886 (D.C.Cir.1987)).
The Stand Up plaintiffs frame both procedural and substantive challenges under the NEPA by asserting, first, that the EIS in this case was prepared in order to justify the already-made decision to build a casino at the Madera Site, in violation of NEPA's implementing regulation at 40 C.F.R. § 1502.2(g), which provides that EISs "shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made." See Pls.' Mem. at 37-38. The standard for proving predetermination is high. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 714 (10th Cir.2010); see also Am. Wild Horse Pres. Campaign v. Vilsack, 133 F.Supp.3d 200, 222 (D.D.C.2015) (citing Air Transp. Ass'n of Am., Inc. v. Nat'l Mediation Bd., 663 F.3d 476, 488 (D.C.Cir.2011)). Indeed, "NEPA does not require agency officials to be `subjectively impartial,'" Forest Guardians, 611 F.3d at 712 (quoting Envtl. Def. Fund, Inc. v. Corps of Eng'rs of the U.S. Army, 470 F.2d 289, 295 (8th Cir.1972)), and "[a]n agency can have a preferred alternative in mind when it conducts a NEPA analysis," id. (citing 40 C.F.R. § 1502.14(e)). Thus, generally, courts have not found predetermination except in cases where an agency has committed itself — for example, by contract — to an outcome. Id. at 713 ("[I]f an agency predetermines the NEPA analysis by committing
Though the D.C. Circuit has not opined on the standard for finding agency predetermination, the Tenth Circuit has explained:
Forest Guardians, 611 F.3d at 714-15 (emphasis in original); accord Metcalf v. Daley, 214 F.3d 1135, 1145 (9th Cir.2000) (holding defendants violated the NEPA because they "already had made an `irreversible and irretrievable commitment of resources'... before they considered [the project's] environmental consequences"). The Tenth Circuit reasoned that "predetermination is different in kind from mere `subjective impartiality,' ... which does not undermine an agency's ability to engage in the requisite hard look at environmental consequences...." Forest Guardians, 611 F.3d at 714 (citations omitted); see also Nat'l Audubon Soc'y, 422 F.3d at 199 ("Where an agency has merely engaged in post hoc rationalization, there will be evidence of this in its failure to comprehensively investigate the environmental impact of its actions and acknowledge their consequences."). The plaintiffs have pointed to no evidence in the record, and the Court can find none, indicating that the federal defendants were in any way committed, contractually or otherwise, to authorize gaming on the Madera Site or approve North Fork's fee-to-trust application before analyzing the environmental impact of these proposed actions.
To bolster their claim of predetermination, however, the plaintiffs emphasize that "[n]o evaluation of the FEIS should proceed without acknowledgement of one incontrovertible fact: Station Casinos, a development corporation, purchased the Madera site for the sole purpose of building and managing a casino, an activity it wishes to engage in purely for profit, irrespective of the Tribe's need for economic development and self-sufficiency...." Pls.' Mem. at 38. This fact, even if "incontrovertible," is unavailing for several reasons. First, as the North Fork Tribe points out, see North Fork's Mem. at 4 n.1, IGRA expressly contemplates that tribes will enter into management contracts for the operation of gaming facilities, see 25 U.S.C. § 2710(d)(9) ("An Indian tribe may enter into a management contract for the operation of a class III gaming activity if such contract has been submitted to, and approved by, the Chairman.").
Second, the plaintiffs present no reason why the identity of the owner of the Madera Site should have any bearing on the
In addition to the procedural challenge under the NEPA, the plaintiffs contend that the agency's environmental analysis was substantively flawed. Specifically, the plaintiffs argue that the Secretary "failed to take a hard look at the environmental consequences of the proposed action," Pls.' Mem. at 38, because the Secretary (1) "eliminated alternatives from consideration based upon flawed findings" regarding, mainly, economic competition and political and community opposition, Pls.' Mem. at 38-42; (2) concluded arbitrarily and capriciously "the casino's impact on crime would be less than significant," id. at 42-43, and (3) erred in the analysis of the mitigation measures for problem gamblers, id. at 43-45. None of these arguments is persuasive.
The plaintiffs' "most forceful objection under the NEPA," with respect to their preliminary injunction motion, was "that the Secretary failed to give adequate consideration to a reasonable range of alternative sites for the proposed gaming establishment, as required by the NEPA." Stand Up I, 919 F.Supp.2d at 77 (citing 42 U.S.C. § 4332(2)(C)(iii) (requiring agencies to consider `alternatives to the proposed action')). They reiterate the same objection for similar reasons now on summary judgment. Notwithstanding the more extensive record before the Court now, the plaintiffs' objection again falls short of establishing a NEPA violation on this basis.
Applicable Legal Principles
An EIS must "inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment," 40 C.F.R. § 1502.1, including all "technically and economically practical or feasible" alternatives which "meet the purpose and need of the proposed action," 43 C.F.R. § 46.420(b); see 40 C.F.R. § 1502.14; Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 69, 72 (D.C.Cir.2011). As explained in Stand Up I, the NEPA's implementing regulations provide that, in considering alternatives, an agency must, inter alia "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which are eliminated from detailed study, briefly discuss the reasons for their having been eliminated," 919 F.Supp.2d at 77 (quoting 40 C.F.R. § 1502.14(a)). For those alternatives not eliminated from detailed study, the agency must "[d]evote substantial treatment to each alternative ... so that reviewers may evaluate their comparative merits." 40 C.F.R. § 1502.14(b).
Second, courts consider "whether a particular alternative is reasonable in light of these objectives," Slater, 198 F.3d at 867. "An alternative is `reasonable' if it is objectively feasible as well as `reasonable in light of the [the agency's] objectives.'" Theodore Roosevelt Conservation P'ship, 661 F.3d at 72 (alteration in original) (quoting Slater, 198 F.3d at 867). Thus, the agency's "purpose and need for action ... will determine the range of alternatives and provide a basis for the selection of an alternative in a decision." Id. at 72-73; see also Citizens Against Burlington, 938 F.2d at 195 ("The goals of an action delimit the universe of the action's reasonable alternatives."). An agency's choice of and among alternatives does not take place in a vacuum but in the context of authorizing statutes, which reflect legislative purposes and intent regarding agency action. Thus, as the D.C. Circuit has explained, "[t]he agency should also `always consider the views of Congress' to the extent they are discernible from the agency's statutory authorization and other directives." Theodore Roosevelt Conservation P'ship, 661 F.3d at 73 (quoting Citizens Against Burlington, 938 F.2d at 196). "[A]n alternative is properly excluded from consideration" in the EIS "if it would be reasonable for the agency to conclude that the [particular] alternative does not bring about the ends of the federal action." Slater, 198 F.3d at 867 (quotations and citation omitted); see also 43 C.F.R. § 46.420(b) (defining "reasonable alternatives" as "alternatives that are technically and economically practical or feasible and meet the purpose and need of the proposed action").
"Importantly, [courts] review both an agency's definition of its objectives and its selection of alternatives under a rule of reason," such that courts "generally defer to the agency's reasonable definition of objectives" "as long as the agency looks hard at the factors relevant to the definition of purpose." Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d at 73 (quotations and citations omitted). "If the agency's objectives are reasonable, [courts] will uphold the agency's selection of alternatives that are reasonable in light of those objectives." Grunewald, 776 F.3d at 904 (quoting Theodore Roosevelt Conservation P'ship, 661 F.3d at 73)); see also id. at 903-04 ("In reviewing an agency's selection of alternatives, we owe `considerable deference to the agency's expertise and policy-making role.'" (quoting Slater, 198 F.3d at 867)).
Discussion Of Alternatives In The FEIS
Here, as the plaintiffs recognize, the FEIS, which was prepared by the BIA, "is governed by the statement of `purpose and need' ... which relies on IGRA's purpose of promoting `tribal economic development, tribal self-sufficiency, and strong tribal government.'" Pls.' Mem. at 26 (citing FEIS at 1-10). Indeed, the FEIS identified that "[t]he proposed action would allow the
FEIS at 1-9 to -10, Jt. App. at 344-45, ECF No. 124-6. Lastly, the FEIS identified that the North Fork Tribe's "purpose for requesting the approval of the proposed management contract is to team with SC Madera Management LLC to develop and manage a casino and hotel resort," FEIS at 1-11, Jt. App. at 346, ECF No. 124-6, which "would assist the Tribe in obtaining funding for the development of the proposed casino and hotel resort," id. at 2-5.
In line with these purposes, the FEIS was "prepared to analyze and document the environmental consequences associated with the approval of the fee-to-trust acquisition and resulting development of a casino and hotel resort." Id. at 1-11. In articulating objectives, the FEIS did not presuppose approval of the proposed fee-to-trust acquisition, but rather, in accordance with NEPA, "consider[ed] the views of Congress," and took "into account the needs and goals of the parties involved." Theodore Roosevelt Conservation P'ship, 661 F.3d at 72-73 (quotations and citations omitted). The FEIS also considered the public interest, noting that the proposed action would lessen the North Fork Tribe's "high reliance upon the Federal and State governments for social services," "provide employment opportunities for Tribal members as well as local non-Tribal residents," "increase[e] opportunities for local businesses and stimulat[e] the local economy." FEIS at 1-10 to -11.
In light of these objectives, the FEIS considered five alternatives in detail: (1) Alternative A was the full development of the Madera Site, as discussed, supra, in Part I.C; (2) Alternative B was "a smaller-scale version of Alternative A, but without hotel or pool components," FEIS at 2-37, Jt. App. at 387, ECF No. 124-10; (3) Alternative C was "a mixed-use retail development" on the Madera Site that "would include several larger retail outlet stores and smaller storefronts, including food and beverage establishments," but would not include any gaming, id. at 2-45, Jt. App. at 395, ECF No. 125-1; (4) Alternative D would be located on the North Fork Rancheria and would "consist of a smaller-scale version of Alternative A, without retail, high-limit gaming, entertainment, hotel, or pool components," id. at 2-54, Jt.
Stand Up Plaintiffs' Arguments
In the plaintiffs' view, the federal defendants' consideration of properties "along the SR-41 corridor" and "Avenue 7," the North Fork Rancheria, and the Old Mill Site was insufficient. Specifically, the plaintiffs argue that it was irrational (1) to eliminate from further consideration sites located "along the SR-41 corridor" or "Avenue 7" based on the North Fork's "concern for the potentially unfair competitive impact" on neighboring tribes, Pls.' Mem. at 38-39; (2) to reject as the preferred alternative the North Fork Rancheria, considered in detail as Alternative D, based on political and community opposition, id. at 40; and (3) to eliminate from further consideration the Old Mill Site, based on political and community opposition, undiscovered contamination, and the inability to acquire the land, id. at 40-41.
(i) Properties "Along The SR-41 Corridor" And "Avenue 7"
The plaintiffs criticize the FEIS for "mak[ing] much of the Tribe's purported concern that development along the SR-41 corridor as well as alternative sites, such as Avenue 7, along the SR-99 corridor would potentially have a very detrimental competitive effect on the gaming operations of the neighboring Tribes," particularly on the Picayune Tribe, whose gaming "facility is located along SR-41 near Coarsegold," when the Madera Site "unquestionably would have at the least an identical competitive impact," and the NEPA does not "expressly provide nearby tribes with protections from detrimental impacts." Pls.' Mem. at 38-39 (quotations and citation omitted).
With respect to Avenue 7 properties, the FEIS acknowledged that "[t]hese properties were readily accessible from the large Fresno market, raised few environmental concerns, and there was little concern about the commercial development of the sites." Id. The FEIS then explained, however, that "[a]ccess to the properties was constrained by the train tracks that run just east and parallel to SR-99." Id. at 2-75. The FEIS also noted "that a development near Fresno would inure primarily to the residents of Fresno and not Madera County." Id. Lastly, the FEIS explained "that development of a facility along the southern stretch of SR-99 in Madera County would be inconsistent with existing land uses" because "[m]ost of the surrounding area was used for agriculture, including orchards, a horse ranch, vineyards, and various crops." Id.
In light of the above-stated reasons, the BIA acted reasonably in declining to consider in detail alternative sites along the SR-41 corridor and Avenue 7. The BIA properly considered the North Fork
(ii) North Fork Rancheria
The plaintiffs criticize the FEIS for rejecting the North Fork Rancheria because of political and community opposition, without mentioning any such opposition with respect to the Madera Site "in the FEIS' decision to adopt Alternative A." Pls.' Mem. at 40; see also Pls.' Reply at 48-49. According to the plaintiffs, "[t]he FEIS treats the community opposition issue exactly backwards," asserting that "[c]ommunity opposition should weigh heavily in the analysis of off-reservation sites far from the Rancheria and should not weigh at all or weigh significantly less in the analysis of sites already under the Tribe's control or closer to such lands." Pls.' Mem. at 40 n.29.
First and foremost, development of a casino on the North Fork Rancheria was fully analyzed as Alternative D in the FEIS. See FEIS at 2-54 to -67, Jt. App. at 404-17, ECF No. 125-1 to -3. Thus, to the extent that the plaintiffs challenge, under NEPA, the rejection, after full consideration, of the North Fork Rancheria as the preferred location for a gaming facility for the North Fork Tribe, this claim must fail because "NEPA ... does not mandate particular results." Robertson, 490 U.S. at 350, 109 S.Ct. 1835; see also Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (per curiam) ("[O]nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken." (quotations and citation omitted)). Accordingly, the "weight" that the FEIS afforded to community and political opposition in discussing the preferred alternative is immaterial to the determination of whether the BIA complied with the NEPA. See Robertson, 490 U.S. at 350, 109 S.Ct. 1835 ("If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.").
(iii) Old Mill Site
The plaintiffs criticize the FEIS for failing to consider the Old Mill Site as a viable alternative for the proposed action. As explained in the FEIS, the Old Mill Site, "is a 135-acre site that housed a working lumber mill between 1941 and 1994[,].... currently owned by the North Fork Community Development Council (CDC), a charitable nonprofit California corporation." FEIS at 2-80. The Court previously addressed the plaintiffs' argument that "the Secretary arbitrarily and capriciously erred to eliminate [the Old Mill Site] from further consideration as a reasonable alternative to the Madera Site" in ruling on their preliminary injunction motion. Stand Up I, 919 F.Supp.2d at 78. With respect to that motion, the plaintiffs argued that neither the Secretary's "focus on environmental problems with the site" nor "the purported claim that the site's owner would not sell the property for the purposes of developing a casino ... was a proper basis for eliminating [the Old Mill Site] alternative from consideration." Id. (quotations and citation omitted). This Court found that the plaintiffs' objections were unlikely to succeed on the merits, explaining:
Id. (citations omitted). Now on summary judgment, the plaintiffs make essentially
In addition to criticizing the FEIS' reliance on political and community opposition in considering the Old Mill Site, Pls.' Mem. at 40, 42, the plaintiffs argue that the "Secretary offered no basis for th[e] speculative assertion" that "there is still a potential for liability based on undiscovered contamination," id. at 40, and that the Secretary unreasonably determined that the North Fork Tribe could not acquire the property, id. at 41. These arguments are meritless.
First, as this Court recognized in Stand Up I, the BIA eliminated the Old Mill Site from consideration as an alternative for a variety of reasons, not solely because of political and community opposition. In addition to the reasons recognized in Stand Up I — namely, the significant contamination problems and the inability to acquire the site for the development of a casino — the FEIS explained that the site's "relatively remote location near the Rancheria and HUD sites" would detract customers, "reducing the potential for job development and the ability of the project to create a revenue stream sufficient to fund Tribal programs." FEIS at 2-81. Moreover, it was not unreasonable for the BIA to rely on representations from the CDC Board of Directors, which "represents a cross-section of the North Fork community" and "is comprised of representatives from eight separate community organizations," Letter from Steve Christianson, CDC Pres., to BIA Asst. Sec'y (May 20, 2008) at 1, Jt. App. at 160, ECF No. 124-1, that the concept of developing a casino on the Old Mill Site "received widespread community disapproval," FEIS at 2-82; see also Letter from Steve Christianson to Dale Morris, BIA Regional Dir. (June 8, 2008) at 1, Jt. App. at 172, ECF No. 124-2, and was, therefore, the basis for CDC's unwillingness to sell the site, see Defs.' Mem. at 53 ("The owner of the Old Mill Site cited community opposition as a reason not to sell the land; the Secretary relied on far more than that to reject the Old Mill Site."). In other words, while community or political opposition to the development of a casino essentially made the Old Mill Site unavailable as an alternative, such opposition was simply not an issue for acquisition of the Madera Site, where the owners desired to develop a casino. See North Fork Rancheria Land Acquisition Application (Mar. 1, 2005) at 6, Jt. App. at 1324, ECF No. 128-7. Not surprisingly, therefore, the FEIS did not mention such opposition as a factor in consideration of alternative developments the Madera Site.
The plaintiffs' insistence that the BIA should have considered the Old Mill Site as a reasonable alternative despite receiving two letters from CDC "stating that the site would not be sold for the development of a casino project," FEIS at 2-81, now on a full administrative record, still makes little sense. The plaintiffs' suggestion that somehow the fact that the North Fork Tribe is represented on the CDC, which is comprised of a cross-section of the community, including eight distinct community groups,
Lastly, given the site's past use as a "long standing mill operation," the FEIS recognized that "the potential for unanticipated discoveries of contamination remains elevated and therefore potential liability remains for future remediation should such contamination be uncovered." FEIS at 2-80 to -81. The BIA reasonably relied on the significant amount of discovered contamination and considerable clean-up efforts that would be required to prepare the site for development in declining to consider the site as a viable alternative. See id. at 2-81 (explaining various contamination problems). As the federal defendants aptly explain, "[t]he Secretary reasonably determined that the Old Mill Site was not feasible or reasonable because it would have required substantial decontamination efforts to remove a laundry list of contaminants...." Defs.' Mem. at 52.
Accordingly, the Court finds that the Old Mill Site was properly excluded from consideration as an alternative.
Impact on Crime
The plaintiffs accuse the BIA of "engag[ing] in blatant deception" in the FEIS "in an effort to dismiss the indisputable impact that a casino will have on crime." Pls.' Mem. at 42. Specifically, the plaintiffs argue that (1) "the FEIS advances a skewed analysis of crime statistics in other counties" by "conflating the crime rate in the entire unincorporated area of a county with that generated by a single facility within the county," Pls.' Mem. at 41-42; see also Pls.' Reply at 50 (arguing that "comparisons of crime at other tribal casinos with crime throughout the entirety of their host counties.... are meaningless given the size of the counties" and that "evaluating [crime] on a county-wide basis obscures the casino's impact on crime in the locality of the casino"); and (2) wrongly "equate[s] casinos with any other type of tourist attraction," "such as Lego Land or a museum of natural history," even though a "casino will generate more crime," including "driving under the influence, personal robbery, credit card fraud, auto thefts, disorderly conduct, and assault," Pls.' Mem. at 42-43 (quotations omitted). In so arguing, the plaintiffs attempt to circumvent the Court's previous finding in relation to their challenge to the IGRA ROD in Stand Up I that the Secretary reasonably "relied upon and discussed the FEIS's findings [pertaining to crime] when discussing crime in his IGRA ROD." 919 F.Supp.2d at 73.
In Stand Up I, "the plaintiffs' argument that it is `irrational' to focus on regional crime rates," was rejected "because the
Stand Up I, 919 F.Supp.2d at 73. Now, at the summary judgment stage, the Court continues to find the BIA's reliance on county crime statistics perfectly rational and, further, finds that the BIA fully complied with the NEPA by taking a hard look at the potential social effect of crime from the proposed action and rationally concluding that it "would be less than significant." FEIS at 4.7-8, Jt. App. at 719, ECF No. 126-10.
In addition to conducting the five California community surveys, the BIA contacted local law enforcement offices "to inquire about the impacts of the casinos and whether the facilities induced a higher incidence of crime," reviewed historical crime statistics "for a correlation between the presence of casinos and higher than average crime rates," contacted local social service agencies "to document any increase in social service demand since the opening of the casinos" and reviewed literature "on the topic of social impacts of casino gambling." Id. at 4.7-7, Jt. App. at 718, ECF No. 126-10. This thorough inquiry into the potential impact of crime revealed "an increase in law enforcement service demand as a direct result of the opening of a casino within [a] jurisdiction," including increases in calls for service related to drunk driving, personal robbery, credit card fraud, auto thefts, disorderly conduct, and assault — which the FEIS discloses. Id. at 4.7-7. Additionally, as the North Fork Tribe notes, the FEIS acknowledged that the proposed action's impact on local law enforcement services would be significant if not mitigated. North Fork's Reply at 32; see FEIS at lvii-lviii, Jt. App. at 278-79, ECF No. 124-3. The BIA's inquiry also revealed, however, that "no [local law enforcement] department could implicate the casino as the direct cause of the increase in crime. Rather, each department expressed that the increased concentration of people within the local area led to the increase on crime." FEIS at 4.7-7. Indeed, several studies reviewed by the BIA found that the increase in crime within an area after the opening of a new casino "was not much different than from the opening of any other type of tourist attraction." Id. at 4.7-8. A comprehensive study "on the link between casinos and crime" conducted by the National Opinion Research Center "found that insufficient data exists to quantify or determine the relationship between casino gambling within a community and crime rates." Id.
Accordingly, the Court has no doubt that the BIA considered the proposed action's potential impact on crime, and "NEPA requires no more." Strycker's Bay Neighborhood Council, 444 U.S. at 228, 100 S.Ct. 497.
Mitigation Measures For Problem Gambling
In Stand Up I, the plaintiffs' challenge to the IGRA ROD on grounds that the Secretary failed to consider the impact of problem gambling on the surrounding community was rejected, in part, due to the mitigation measures planned. See 919 F.Supp.2d at 72. Now, the plaintiffs challenge the adequacy of those mitigation measures under the NEPA, arguing "[t]he FEIS' analysis of mitigation measures for [problem gambling] is fatally flawed." Pls.' Mem. at 44. "To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences." Robertson, 490 U.S. at 351, 109 S.Ct. 1835; see 40 C.F.R. §§ 1502.14(f), 1502.16(h), 1508.25(b)(3) (regulations requiring discussion of mitigation measures). Mitigation measures must "be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated." Robertson, 490 U.S. at 352, 109 S.Ct. 1835; see also Citizens Against Burlington v. Busey, 938 F.2d at 206 ("[R]egulations and NEPA ... compel only `a reasonably complete discussion of possible mitigation measures.'" (quoting Robertson, 490 U.S. at 352, 109 S.Ct. 1835)). The NEPA does not contain, however, "a substantive requirement that a complete mitigation plan be actually formulated and adopted...." Robertson, 490 U.S. at 352, 109 S.Ct. 1835; see also New York v. NRC, 824 F.3d at 1017 ("`NEPA does not require agencies to discuss any particular mitigation plans that they might put in place, nor does it require agencies — or third parties — to effect any.'" (quoting Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 503 (D.C.Cir.2010)).
The FEIS assumed, based on "a study of problem gambling in California, which was conducted by the State Office of Problem Gambling," that the proposed casino "would increase the percentage of problem gamblers in the community by 0.5%," thereby increasing the number of adult problem gamblers in Madera County from 1,063 to 1,594, which would add 531 problem-gamblers to the existing adult population. FEIS at 4.7-8 to -9. Based on information from the Assistant Director of Madera County Behavioral Health Services ("MCBHS"), the FEIS assumed that 20 percent, or 106, of the new problem gamblers would seek professional treatment, 85 of whom would seek treatment with MCBHS and the rest of whom would seek treatment from private practitioners. Id. at 4.7-9. The increase in problem gambling treatment at MCBHS was estimated to cost approximately $63,606, and the North Fork Tribe agreed to contribute $50,000 per year to Madera County to supplement the budget for the treatment. Id. The FEIS acknowledged that the annual $50,000 contribution would result in "$13,606 less than the amount needed to fund the ... treatment programs and would result in a potentially significant impact." Id. Nevertheless, the FEIS concluded that additional mitigation measures "would mitigate this effect to a less than significant level." Id.
The plaintiffs argue that the FEIS "significantly underestimate[s]" the potential impact of problem gamblers by discussing only "the impact associated with the $13,606 shortfall in funding" and the approximately 100 problem gamblers who "will seek treatment from an underfunded MCBHS." Pls.' Mem. at 44-45. Thus, the plaintiffs argue that the FEIS fails to address the approximately 400 new problem gamblers who will not seek treatment. Id. at 45. In addition, the plaintiffs argue that "[t]he FEIS fails to discuss or present any data or evidence regarding whether [the recommended mitigation measures] have proven effective, and if so, to what degree, when employed in other Indian casinos." Id. As the North Fork Tribe notes in response, however, the NEPA "does not require proof that the impacts on problem gamblers will be fully mitigated," North Fork's Reply at 33, but, rather, only "a reasonably complete discussion of possible mitigation measures" for an adverse effect, Robertson, 490 U.S. at 352, 109 S.Ct. 1835. An agency need not have "a fully developed plan that will mitigate environmental harm before an agency can act," because the "NEPA merely prohibits uninformed — rather than unwise — agency action." Id. at 352-53, 109 S.Ct. 1835. Accordingly, the Court finds that the BIA met its obligations under the NEPA regarding the proposed action's possible impact on problem gambling in the community.
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For the foregoing reasons, the defendants are entitled to summary judgment on the Stand Up plaintiffs' NEPA claim. See TAC ¶¶ 69-82 (Third Claim for Relief).
F. CAA CONFORMITY DETERMINATION
The Stand Up plaintiffs raise three challenges to the federal defendants' decision that the proposed casino development satisfies the requirements of the CAA, two of which challenges were previously rejected during consideration of the federal defendants' motion for partial remand. As discussed, supra, in Part I.E, the Court
Following a brief review of the statutory and regulatory framework, the Court readdresses the plaintiffs' prior objections and then discusses the plaintiffs' new challenge to emissions estimates and mitigation measures.
The CAA requires each state to adopt and submit to the Environmental Protection Agency ("EPA") for approval an implementation plan that provides for the implementation, maintenance, and enforcement of national ambient air quality standards ("NAAQS") in a designated air quality region. See 42 U.S.C. § 7410(a)(1). "NAAQS are standards that say the air can safely contain only so much of a particular pollutant." Sierra Club de Puerto Rico v. EPA, 815 F.3d 22, 23 (D.C.Cir. 2016). After a state implementation plan ("SIP") is approved and promulgated, the CAA provides that, "[n]o department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan...." 42 U.S.C. § 7506(c)(1). Thus, federal agency action must "conform" to a SIP, which generally means that the anticipated emissions from a proposed activity will not frustrate the SIP's purpose of attaining and maintaining NAAQS by, for example, "caus[ing] or contribut[ing] to any new violation of any standard in any area;" "increase[ing] the frequency or severity of any existing violation of any standard in any area;" or "delay[ing] timely attainment of any standard or any required interim emission reductions or other milestones in any area." Id.
Previously-Rejected Procedural Challenge
The plaintiffs argue that by issuing the § 93.155 notices "nearly three years after they published the notices under 40 C.F.R. § 93.156 and adopted the Final Conformity Determination, defendants failed to comply with the letter and spirit of the Clean Air Act regulations." Pls.' Mem. at 47. Generally, the plaintiffs discount any activity that occurred on partial remand by complaining that the defendants' failure to comply with § 93.155 notice requirements before issuing the IRA ROD and acquiring the Madera Site into trust, and without rescinding the original final conformity determination, continues to taint the CAA conformity determination. Pls.' Mem. at 47; Pls.' Reply at 53-54 & n.39.
The Court again rejects the plaintiffs' arguments. First, the defendants were not required "to perform the entire Clean Air Act conformity determination again — from start to finish," because the Court specifically "ORDERED that the conformity determination at issue in this matter is REMANDED to the defendants WITHOUT VACATUR to allow the defendants to undertake the notice process required by 40 C.F.R. § 93.155." Partial Remand Order at 7-8. Second, as the Court previously explained, the plaintiffs' requested remedy — vacatur of the entire trust determination, of which the conformity determination is only a small piece — "is simply not [required by] the law." Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C.Cir.2002); see Partial Remand Order at 6. "[P]ublic notice and comment is not an issue" here. Partial Remand Order at 5. Section 93.155 simply provides for notice; it does not provide for comment, so the § 93.155 notice defect did not affect public participation. Id. Instead, "[t]he procedural defect, if [any] at all, only pertains to a small number of government entities, not including those most likely to have substantive comments, namely, the local air quality district and the regional EPA office, which [timely] received notice." Id.
Additionally, on remand, the federal defendants cured any notice deficiency by notifying the required government entities, see Notice of Availability, Draft Conformity Determination (Jan. 23, 2014), Jt. App. at 1705-49, ECF Nos. 129-1 to -2, reviewing and responding to comments submitted
Previously-Rejected Challenge To Emissions Model Used
The plaintiffs again argue, as they did in opposition to the defendants' motion for partial remand, that "[t]he conformity determination is not based upon the latest emission methods," in violation of 40 C.F.R. § 93.159(b). Pls.' Mem. at 47-48; see Partial Remand Order at 7-8. The plaintiffs "rely ... on the new model for motor vehicle emissions set forth in 78 Federal Register 14533 (March 6, 2013), which requires the use of a new model for determining the effects of emissions," Partial Remand Order at 7; see Pls.' Mem. at 47-48, and argue that the defendants were required to use the latest model to estimate emissions when re-approving the final conformity determination in 2014, Pls.' Mem. at 48. The Court already rejected this argument and rejects it again for the same reason: "As the federal defendants correctly point out, these regulations apply only to the `new ... regional emissions analyses' begun after September 6, 2013, meaning the new models are not required for the already instituted conformity determination at issue here." Partial Remand Order at 7-8 (ellipsis in original) (citing 78
Challenge To Emissions Estimates And Mitigation Measures
Pursuant to CAA regulations, before making a conformity determination, an agency must conduct what is called an "applicability analysis" to determine whether the total emissions caused by the "proposed action would equal or exceed specified emissions levels or would otherwise been deemed regionally significant." Cty. of Del., Pa. v. Dep't of Transp., 554 F.3d 143, 145 (D.C.Cir.2009); see 40 C.F.R. § 93.153(b)-(c), (i). If the applicability analysis reveals that the emissions levels caused by the proposed action would be at or below de minimis levels, then the agency is exempt from making the conformity determination altogether. Cty. of Del., Pa., 554 F.3d at 145; see 40 C.F.R. § 93.153(c)(1)-(2).
The FEIS, published in February 2009, explained that "Madera County has been designated a `serious' nonattainment area for ozone" and that, consequently, the proposed action would result in de minimis emission levels when, in relevant part, reactive organic gas ("ROG") and nitrogen oxide ("NOx") emissions are each less than 50 tons per year. FEIS at 3.4-18, 4.4-14, Jt. App. at 487, 683, ECF Nos. 125-9, 126-10. The FEIS then represented that the proposed action, which is estimated to result in 22.99 tons per year of ROG and 46.64 tons per year of NOx, would produce emissions under the de minimis thresholds and concluded that "a conformity determination is not required." Id. at 4.4-14. A conformity determination later became necessary, however, when the San Joaquin Valley was reclassified as an "extreme nonattainment area" in June 2010 and the emissions thresholds for ROG and NOx were lowered to 10 tons per year. BUREAU OF INDIAN AFFAIRS, Final Conformity Determination for the North Fork Rancheria Casino/Hotel Resort Project ("FCD") at 1, 5, Jt. App. at 1347, 1349, 1353, ECF No. 128-7.
A draft conformity determination was published on May 6, 2011, and a final conformity determination was published on June 18, 2011. See Proof of Publication, Draft Conformity Determination Re: North Fork Rancheria Notice of Availability (May 6, 2011), Jt. App. at 1697, ECF No. 129-1; Proof of Publication, Final Conformity Determination Re: Trust Acquisition North Forth Rancheria (June 18, 2011), Jt. App. at 1700, ECF No. 129-1. The final conformity determination explained that, as mitigation measures, the North Fork Tribe will need "to purchase Emissions Reduction Credits (ERC) in the amount of 42 tons of NOx and 21 tons of ROG," "enter into a Voluntary Emissions Reduction Agreement (VERA) with the [San Joaquin Valley Air Pollution Control District]" to "provide funds ... to be used... to fund emission reduction projects," or do a combination of both, prior to the operation of the casino to demonstrate conformity. FCD at 6, Jt. App. at 1354. Consistent with these mitigation measures, on June 17, 2011, the North Fork Tribe adopted a Resolution in which it "agrees to implement the Emissions Reduction Mitigation Measures in the Final General Conformity Determination prior to the operation of the project" and resolves to "provide the USEPA and other agencies with documentation necessary to support the emissions reductions through offset purchase prior to the project operation." Resolution 11-26 at 2-3, Jt. App. at 2047-49 ECF No. 129-1.
The plaintiffs argue that the final conformity determination fails to comply with CAA regulations in four ways, and only fully explain one. First, the plaintiffs argue that the defendants improperly assumed, when calculating the project's estimated air pollutant emissions, "that the
Contrary to the plaintiffs' assertion, and as explained in the federal defendants' responses to comments submitted during the partial remand, the 12.6-mile trip length assumption "was based on project specific traffic data developed through the use of Fresno County Council of Governments (FCCOG) and Madera County Transportation Commission (MCTC) model data." Mem. to BIA from David Sawyer, North Fork Rancheria — Responses to the January 2014 Reissued Draft General Conformity Determination Comment Letters (Mar. 27, 2014) ("DCD Comment Resp. Mem.") at 5, Jt. App. at 2091, 2095, ECF No. 129-9; see also FEIS at 4.4-1 ("The average trip length was estimated using data from the Madera County Transportation Commission (MCTC) traffic model.").
The defendants explain that the distances between the Madera Site and surrounding population centers range from 4.1 to 32.7 miles; that the North Fork Tribe has agreed to employ a large number of Madera County residents, "with a goal that 50% of new hires be residents of Madera County," DCD Comment Resp. Mem. at 6; and, that while the "trip length analysis ... anticipates hundreds of daily trips from locations outside Madera and Fresno Counties" due to the casino's description as a "destination resort," "the greater number of shorter trips from within those counties" for employees and "other local residents who would use the resort to dine or shop" "pulls down the average length to 12.6 miles," North Fork's Mem. at 78; see DCD Comment Resp. Mem. at 5 (Table 1); id. at 6 (explaining that the consideration of employee trips would shorten the average trip length); id. at 4 (explaining that out-of-town patrons "will tend to visit both the casino and hotel in a single trip," a phenomenon known as "internal capture").
The plaintiffs make their second, third, and fourth arguments in one sentence each, without explanation, and assert no reply to the defendants' opposition with respect to these arguments. See Pls.' Mem. at 50-51; Pls.' Reply. Arguments briefed in such a cursory fashion are generally deemed waived. See supra n.16 (citing cases). They are nonetheless meritless, as discussed briefly below.
The plaintiffs' second argument is that "the Tribe's resolution fails to identify precisely what the Tribe will be doing, and when, to ensure the conformity requirements are met," Pls.' Mem. at 50, in violation of 40 C.F.R. § 93.160(a), which requires that "[a]ny measures ... intended to mitigate air quality impacts must be identified and the process for implementation and enforcement of such measures must be described, including an implementation schedule containing explicit timelines for implementation." This argument is unavailing. The Resolution contains verbatim the mitigation measures specified in the final conformity determination and the Tribe's agreement to implement those measures, and provide the documentation necessary to support such implementation "prior to the operation of the project." Resolution 11-26 at 2.
Third, the plaintiffs argue that "the record contains no evidence that the approval of the fee-to-trust transfer was conditioned upon the Tribe meeting the mitigation measures," Pls.' Mem. at 50, in violation of 40 C.F.R. § 93.160(d), which requires that a "Federal agency ... approving the action of another governmental or private entity" must condition such approval "on the other entity meeting the mitigation measures set forth in the conformity determination." This requirement was met here. The Secretary's approval of the fee-to-trust transfer was, indeed, conditioned upon the North Fork Tribe meeting the mitigation measures, which were "adopted as a part" of the IRA ROD and set forth in that decision. See IRA ROD at 26, 34-35. Additionally, the IRA ROD provides that, "[w]here applicable, mitigation measures will be monitored and enforced pursuant to Federal law, tribal ordinances, and agreements between the Tribe and appropriate governmental authorities, as well as this decision." Id. at 26.
Lastly, the plaintiffs argue that "the conformity determination fails to require the Tribe to offset emissions either in the same calendar year, or by a factor of 1.5:1, as required in Extreme nonattainment areas," in violation of 40 C.F.R. § 93.163(a), (b)(1)(i). Pls.' Mem. at 50-51. Section 93.163(a) provides that, "[t]he emissions reductions from an offset or mitigation measure used to demonstrate conformity must occur during the same calendar year as the emission increases from the action," except the reductions may occur in other years pursuant to certain conditions set forth in subsection (b). 40 C.F.R. § 93.163(a). Here, contrary to the plaintiffs' assertion, the conformity determination requires the North Fork Tribe to demonstrate conformity in the same calendar year as the emissions increases because it requires the Tribe to "provide the USEPA and other agencies with documentation
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The Stand Up plaintiffs' scorched earth effort to undermine the legitimacy of the IRA ROD by raising challenges to the defendants' CAA conformity determination are unavailing. Accordingly, the defendants are entitled to summary judgment on the Stand Up plaintiffs' CAA claim. See TAC ¶¶ 83-98 (Fourth Claim for Relief).
For the foregoing reasons, the Stand Up plaintiffs' motion for summary judgment and the Picayune Tribe's motion for summary judgment are denied. The federal defendants' cross-motion for summary judgment and the North Fork Tribe's cross-motion for summary judgment are granted in part and denied in part. The defendants' cross-motions are granted as to all of the Picayune Tribe's claims and as to all of the Stand Up plaintiffs' claims, except for the Stand Up plaintiffs' Fifth and Sixth Claims for Relief, which are dismissed as moot. Any part of the Stand Up plaintiffs' claims predicated on challenges to the Governor of California's concurrence are dismissed for failure to join an indispensable party.
An appropriate Order accompanies this Memorandum Opinion.
25 U.S.C. § 478.
The plaintiffs additionally accuse the Secretary of rewriting the ROD in the Cowlitz case in such a way that "was absolutely irrelevant to the Cowlitz [Tribe]" in order "to justify the Secretary's determination here" regarding the significance of the Section 18 election held at the North Fork Rancheria. Pls.' Reply at 12-13. Whatever the merits of this accusation, it is wholly irrelevant here, since the Secretary did not rely on the 2010 Cowlitz ROD in the IRA ROD in this case and the Cowlitz case plays no role in this Court's analysis regarding Section 18 of the IRA. Cf. Stand Up I, 919 F.Supp.2d at 69-70 (considering the "Secretary's interpretive discussion," in the 2010 Cowlitz ROD, "of the term `recognized Indian tribe'").
40 C.F.R. § 93.155(a).