The opinion of the court was delivered by: Joyce Heins Green, United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians
("Confederated Tribes") is an Indian tribe headquartered in Coos Bay,
Oregon. with a governing body duly recognized by the Secretary of the
Interior. The plaintiff asserts that the Secretary of the Interior
improperly denied its request for certification of a particular parcel of
land, known as the Hatch Tract, for casino gaming. The plaintiff asserts
several claims against the defendants, the Secretary, United States
Department of the Interior, and the Assistant Secretary for Indian
Affairs, United States Department of the Interior, for violating the
Administrative Procedure Act, 5 U.S.C. § 500-706 and seeking
declaratory relief, 28 U.S.C. § 2201, and an injunction,
28 U.S.C. § 2202. Both parties have filed motions for summary
judgment.*fn1 The Court finds that the defendants applied an unduly
narrow interpretation in refusing to certify the Hatch Tract for gaming.
This case will be remanded to the defendants for further consideration in
light of this opinion. Accordingly, the plaintiff's motion for summary
judgment is moot, and the defendants' motion for summary judgment is
Prior to March 2, 1998, the Confederated Tribes acquired title to
certain land in Lane County, Oregon, which is commonly known as the
"Hatch Tract."*fn2 Prior to March 2, 1998, the Confederated Tribes
formally requested the United States Department of the Interior to take
the Hatch Tract into trust. By letter dated March 2, 1998, the Department
of the Interior formally advised the Confederated Tribes that the Hatch
Tract had officially been taken into trust. (A.R. 00001.)
Prior to October 14, 1998, the Confederated Tribes acquired title to
certain land in Lane County, Oregon, which is commonly known as the
"Peterman Tract."*fn3 By the Technical Corrections Act of October 14,
1998, Congress amended the Restoration Act to make the Peterman Tract
part of the Confederated Tribes' reservation. 25 U.S.C. § 714e (b)
(1998). The Hatch Tract and the Peterman Tract are contiguous parcels of
land. (A.R. 00003.)
This dispute began when the Confederated Tribes requested the
Department of the Interior ("DOI") to qualify the Hatch Tract as exempt
from the general prohibition against gaming on land acquired into trust
after October 17, 1988, under section 2719 of the Indian Gaming
Regulatory Act. 25 U.S.C. § 2719 (1998).
The Indian Gaming Regulatory Act ("IGRA") established a comprehensive
scheme for the regulation of gaming activities on Indian land. Among
other things, section 2719 of the IGRA prohibits gaming "conducted on
lands acquired by the Secretary in trust for the benefit of an Indian
tribe after October 17, 1988. . . ." Id. § 2719(a). The general
prohibition of gaming on lands acquired post-October 17, 1988 is subject
to several exceptions. Two of these exceptions are at the core of this
Under section 2719(a)(1), Indian lands are exempt from the general
prohibition of gaming if "such lands are within or contiguous to the
boundaries of the reservation of the Indian tribe on October 17,
1988. . . ." 25 U.S.C. § 2719(a)(1) (1998).
Under section 2719(b)(1)(B)(iii), Indian lands are exempt from the
general prohibition if such "lands are taken into trust as part of . . .
the restoration of lands for an Indian tribe that is restored to Federal
recognition." 25 U.S.C. § 2719(b)(1)(B)(iii) (1998).
The Confederated Tribes argued to the DOI that the Hatch Tract was not
subject to the prohibition on gaming because the land was taken into
trust as part of the restoration of lands for an Indian tribe that is
restored to Federal recognition, see id. § 2719(b)(1)(B)(iii), or,
alternatively, was contiguous to the boundaries of the reservation on
October 17, 1988, see id. § 2719(a)(1).
By letter dated October 21, 1999, the Assistant Secretary of Indian
Affairs, defendant Kevin Gover, advised The Honorable Dick Clarkson,
Tribal Council Chairman, Confederated Tribes of Coos, Lower Umpqua &
Siuslaw Indians that the Hatch Tract did not qualify for an exemption
under Section 20 of the IGRA prohibiting
gaming on lands acquired into trust after October 17, 1988. (A.R. 00001.)
The opinion of the Office of the Solicitor, United States Department of
the Interior, which was attached to and referenced in the Assistant
Secretary's letter, determined that the Hatch Tract did not qualify for
the section 2719(b)(1)(B)(iii) exception because the exception covered
"only those lands that are available to a restored tribe as part of its
restoration to federal recognition. The statute that restores the Tribe's
Federal recognition status must also provide for the restoration of land,
and the particular parcel in question must fall within the terms of the
land restoration provision." (A.R. 00004.) The Solicitor further found,
and the Confederated Tribes do not dispute, that the Confederated Tribes
were restored to federal recognition through the Restoration Act, see
Pub. L. No. 98-481, 98 Stat. 2250, codified at 25 U.S.C. § 714 et
seq (1998). (A.R. 00002.) The Solicitor's opinion noted that section 7 of
the Restoration Act states "the Secretary shall accept the following
lands in trust for the tribe as a reservation" and lists two parcels of
land in Coos County, Oregon, and one parcel in Curry County, Oregon. 98
Stat. at 2253, 25 U.S.C. § 714a-714e (1998). It is undisputed that
the Hatch Tract is not one of the listed parcels.
The Assistant Secretary also determined that the Hatch Tract did not
qualify for the exception contained in section 2719(a)(1). (A.R. 00001.)
The Solicitor's opinion stated that the 1998 legislation, Pub. L. No.
105-256, that amended the Restoration Act to add the Peterman Tract to
the tribes' reservation did not retroactively create a reservation on
October 17, 1984 — the date of the initial restoration. See id.
§ 5. (A.R. 00003.) Consequently, the Hatch Tract was not contiguous
to the tribes' reservation on October 17, 1988 — the cut-off date.
Under the Administrative Procedure Act, courts must set aside agency
action found to be "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A)
(1998). Under this standard, a court's review of a challenged agency
decision "is to be based on the full administrative record that was
before the [agency] at the time [it] made its decision." Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).
In all its actions, an agency is constrained by the statutory authority
given by Congress. The appropriate framework for analysis in this case is
Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under
Chevron, "judicial review of an agency's interpretation of a statute
under its administration is limited to a two-step inquiry." Nuclear Info.
Resource Serv. v. NRC, 969 F.2d 1169, 1173 (D.C. Cir. 1992)(en banc). "In
the first step, the court analyzes whether it may, `employing traditional
tools of statutory construction,' clearly ascertain how Congress intended
the statute to apply to the facts before the tribunal." Massachusetts v.
U.S. Dept. of Transportation, 93 F.3d 890, 893 (D.C. Cir. 1996) (quoting
Chevron, 467 U.S. at 843 n. 9). If the court can ascertain a clear intent,
it should reject contrary agency interpretations. See Chevron, 467 U.S.
at 843 n. 9. However, if the intent of Congress is ambiguous, courts do
not impose their own construction of the statute, "but instead examine
only whether `the agency's answer is based on a permissible construction
of the statute.'" North Broward Hospital District v. Shalala, 172 F.3d 90,
93 (D.C. Cir 1999) (quoting Chevron, 467 U.S. at 843).
Complicating the matter is a traditional presumption applicable in
Native American law — that "statutes are to be construed liberally
in favor of the Indians, with ambiguous provisions interpreted to their
benefit." Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444-45 (D.C.
Cir. 1988) (quoting Montana v. Blackfeet Tribe,
471 U.S. 759, 766
(1985)). As a result of this presumption, the D.C. Circuit has previously
rejected agency interpretations because the interpretation did not favor
the Indians. Id., 851 F.2d at 1445-46; Massachusetts, 93 F.3d at 230 ("Of
course, what may be thought ambiguous in the first step of Chevron (and
thus what may define a reasonable interpretation in step two) depends on
the issue in question . . . [T]raditional presumptions about the parties
or the topic in dispute may limit the breadth of ambiguity and thus
affect both the first and second steps of Chevron" (citations omitted));
Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C. Cir. 1991); Vargas
v. INS, 938 F.2d 358, 363 (2d. Cir. 1991) (Chevron must yield to
principle of lenity in construing deportation statute); Mojica v. Reno,
970 F. Supp. 130 (E.D.N.Y. 1997) ("[W]hen an agency's interpretation
conflicts with an established rule of statutory construction with
substantive overtones, courts have given precedence to the rule of
statutory construction"). of course, as is also the case when applying
the first step of Chevron, the ambiguity must be bona fide in order for
the presumption to apply.
In identifying ambiguity, the Court must look at the whole statutory
scheme, not merely the particular provision at issue. See FDA v. Brown &
Williamson, 120 S.Ct. 1291, 2000 WL 289576, *7 ("In determining whether
Congress has specifically addressed the question at issue, a reviewing
court should not confine itself to examining a particular statutory
provision in isolation. The meaning — or ambiguity — of
certain words or phrases may only become evident when placed in
context."); Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)
(stating that it is a "fundamental canon of statutory construction that
the words of the statutue must be read in their context and with a view
to their place in the ...