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TOMAC v. NORTON
March 29, 2002
GALE A. NORTON, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: James Robertson, United States District Judge.
In this suit, plaintiff Taxpayers of Michigan Against Casinos (TOMAC)
challenges a decision by the Bureau of Indian Affairs to take land into
trust so that the Pokagon Band of Potawatomi Indians can build a casino.
Several motions are pending. For the reasons set forth below, defendants'
motion to dismiss or in the alternative for summary judgment will be
granted in part and deferred in part. Plaintiff's motion for discovery
pursuant to Fed.R.Civ.P. 56(f) will be denied. Defendants' motion to move
the case to Michigan will be denied. The accompanying order sets a date
for further oral argument on the remaining claims in the case.
The casino site is located just off an interstate highway in a tourism
region. Local governments in the area expect to receive significant
revenues through cooperation agreements with the Pokagon. Some residents
oppose the casino, however, arguing that it will hurt the quality of life
in surrounding communities. They have filed this suit, acting through
TOMAC, and they have sued in a Michigan state court to challenge a gaming
compact between the State of Michigan and the Pokagon.
The Bureau of Indian Affairs decision to take the casino site in trust
for the Band appears to have been fast-tracked at the end of the Clinton
Administration, with the issuance of a final environmental assessment and
a "finding of no significant impact" (FONSI) under the National
Environmental Policy Act (NEPA) coming less than a month after the close
of comments on an initial draft environmental assessment. The parties
have stipulated, however, that final action taking the land in trust
would be stayed pending the outcome of this case.
Defendants moved to transfer the case to the Western District of
Michigan, and (before that motion was decided) moved to dismiss or in the
alternative for summary judgment. The State of Michigan and the Township
and City of New Buffalo filed amicus briefs in support of the dispositive
motion. Near the end of the briefing period, plaintiff moved for
discovery pursuant to Rule 56(f), asserting that defendants had failed to
provide a complete administrative record and had acted in bad faith.
I. Motion to Dismiss or in the Alternative for Summary Judgment
TOMAC brings four claims against the Department of Interior: (1) that
placing the land in trust violates the Administrative Procedure Act (APA)
because the Department lacks jurisdiction to place land in trust for an
illegal activity (gambling without a valid compact), is acting
arbitrarily and capriciously, and is failing to follow its own
regulations; (2) that the environmental assessments, FONSI, and failure
to complete a full environmental impact statement violated NEPA,
Department regulations, and the APA; (3) that the Pokagon restoration
act, 25 U.S.C. § 1300j-5, violates the nondelegation doctrine by
failing to establish meaningful standards for taking land in trust; and
(4) that placing the land in trust violates the APA because the
defendants have failed to comply with procedures required by the Indian
Gaming Regulatory Act.
Defendants' motion to dismiss argues that TOMAC lacks constitutional
and prudential standing and makes individual arguments regarding each
cause of action. I conclude that TOMAC does have standing, but that the
claims asserting violations of the nondelegation doctrine and of the
Indian Gaming Regulatory Act (Counts Three and Four above, and part of
Count One) fail to state a claim upon which relief can be granted and
must be dismissed.
1. Would individual TOMAC members have standing in their own right?
An individual has constitutional standing if (1) she has suffered the
invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent; (2) her injury is "fairly
traceable" to the challenged action of the defendant and not the result
of independent action by a third party not before the court; and (3) a
favorable decision would "likely" redress the injury. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations
omitted). Prudential standing is established by showing that the interest
the plaintiff seeks to protect arguably falls within the zone of
interests to be protected or regulated by the statute at issue.
Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
a. Constitutional standing
In a case like this one alleging procedural violations, the requisite
showing of injury requires a demonstration that the challenged act
performed with improper procedures will cause a distinct risk to
plaintiff's particularized interests. Florida Audubon Soc. v. Bentsen,
94 F.3d 658, 664 (D.C. Cir. 1996) (en banc). However, the normal
standards for redressability and immediacy are relaxed, so that, for
instance, "one living adjacent to the site for proposed construction of a
federally licensed dam has standing to challenge the licensing agency's
failure to prepare an environmental impact statement, even though he
cannot establish with any certainty that the statement will cause the
license to be withheld or altered, and even though the dam will not be
completed for many years." Lujan, 504 U.S. at 572 n. 7.
Here, several TOMAC members who live within a few blocks of the casino
site assert interests in viewing local wildlife, walking in their
neighborhood, and enjoying their own properties that are at risk of
injury from a 24-hour-a-day casino attracting 4.5 million customers per
year.*fn1 Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426,
432-33 (D.C. Cir. 1998) (en banc) (personal, individual injury to
aesthetic and recreational interests satisfies standing requirements);
Moreau v. Federal Energy Regulatory Comm'n, 982 F.2d 556, 565-66 (D.C.
Cir. 1993) (adjacent property owners' assertions of aesthetic injury and
safety hazards satisfies standing requirements). The fact that other
TOMAC members assert economic injury from the competition ...