United States District Court, District of Columbia
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Harsh P. Parikh, Sean M. Sherlock, Snell & Wilmer, Costa Mesa, CA, Heidi McNeil Staudenmaier, Snell & Wilmer, LLP, Phoenix, AZ, Benjamin S. Sharp, Perkins Coie, LLP, Washington, DC, for Plaintiffs.
Gina L. Allery, Joseph N. Watson, Peter Kryn Dykema, U.S. Department of Justice, Washington, DC, for Defendants.
Christopher E. Babbitt, Edward C. Dumont, Seth P. Waxman, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, for Intervenor-Defendant.
BERYL A. HOWELL, District Judge.
The plaintiffs bring this consolidated action, under the Indian Reorganization Act, 25 U.S.C. §§ 461, et seq., the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq., the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701, et seq., and the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., to challenge the decision of the Secretary of the United States Department of the Interior to acquire a 305-acre parcel of land in Madera County, California in trust on behalf of the intervenor-defendant North Fork Rancheria of Mono Indians and the Secretary's decision to allow gaming on the land in question. Pending before the Court are the government defendants' Motion to Transfer Venue, ECF No. 20, and the Stand Up plaintiffs' Motion for Preliminary Injunction, ECF No. 26.
This case challenges two separate but related decisions of the Secretary of the United States Department of the Interior (" the Secretary" ) regarding a 305.49-acre parcel of land located in Madera County, California (" the Madera Site" ). See Compl. ¶¶ 1, 31, ECF No. 1. In particular, the Madera Site is located adjacent to Route 99 in an unincorporated portion of Madera County, just outside the northwest border of the City of Madera. See Intervenor's Opp'n to Pls.' Mot. for Prelim. Inj. (" Intervenor's Opp'n" ) at 5, ECF No. 34; see also Pls.' App. of Evidence (" Pls.' App." ) Ex. 13, at 212, ECF No. 27-15.  The first decision, made in September 2011 pursuant to the Indian Gaming Regulatory Act (" IGRA" ), 25 U.S.C. § 2719(b)(1)(A), determined that the North Fork Rancheria of Mono Indians (" the North Fork Tribe" ) would be permitted to conduct gaming on the Madera Site because " a gaming establishment would 1) be in the best interest of the [North Fork] Tribe and its members; and 2) ... it would not be detrimental to the surrounding community." Pls.' App. Ex. 19 (" IGRA ROD" ) at 281, ECF No. 27-24. This decision under the IGRA also determined that the proposed " Alternative A," — a " gaming-resort complex" on the Madera Site that would include a 247,180 square-foot gaming and entertainment facility, a 200-room hotel, and a 4,500-space parking facility— would " best meet the purpose and need for the Proposed Action."  Id. at 281, 286,
295-97. The second decision, made over one year later, in November 2012, pursuant to the Indian Reorganization Act (" IRA" ), 25 U.S.C. § 465, approved a fee-to-trust application submitted by the North Fork Tribe, whereby the United States would acquire the Madera Site to hold it in trust for the benefit of the North Fork Tribe. See Pls.' App. Ex. 20 (" IRA ROD" ) at 378, ECF No. 27-27.
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.  See Compl. ¶¶ 5-10 (No. 12-2039). The other group, the Picayune Rancheria of the Chukchansi Indians (" 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. See Compl. ¶ 5 (No. 12-2071). Although all plaintiffs challenge both of the Secretary's decisions described above on a variety of grounds, only the Stand Up plaintiffs have moved for a preliminary injunction. See Mot. for Prelim. Inj. at 1, ECF No. 26. Summarized briefly below is the regulatory, factual, and procedural background relevant to the two motions presently pending before the Court.
A. Regulatory Framework
The regulatory framework that pertains to the plaintiffs' claims is set forth in three statutes: fee-to-trust determinations are authorized under the IRA, gaming eligibility determinations are guided by the IGRA, and the development of environmental impact statements are mandated under the National Environmental Policy Act
(" NEPA" ).
1. The Indian Reorganization Act
" The intent and purpose of the [IRA] was 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) (internal quotation marks omitted). Pursuant to that purpose, the IRA provides that the Secretary " is authorized, in his discretion, to acquire ... any interest in lands, water rights, or surface rights to lands ... for the purpose of providing land for Indians." 25 U.S.C. § 465. The statute further specifies 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." Id. The IRA defines " Indian" to include, inter alia, " all persons of Indian descent who are members of any recognized Indian
tribe now under Federal jurisdiction." Id. § 479.
The Department of the Interior's (" DOI's" ) regulations, promulgated pursuant to the IRA, state that " 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, the Secretary is required by DOI regulations 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 " purpose 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 reservations." Id. §§ 151.10-151.11.
2. Indian Gaming Regulatory Act
Related to the purposes of the IRA, 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). The IGRA provides that " gaming regulated by [the IGRA] shall not be conducted on lands acquired by the Secretary in trust for the benefit of any Indian tribe after October 17, 1988." Id. § 2719(a). This prohibition on conducting gaming on trust land acquired after 1988, however, does not apply when, inter alia,
the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination[.]
Id. § 2719(b)(1)(A). Relevant to this case, the DOI's regulations define " surrounding community" to mean " local governments and nearby Indian tribes located within a 25-mile radius of the site of the proposed gaming establishment." 25 C.F.R. § 292.2. This same definition further states that " [a] local government or 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." Id.
3. National Environmental Policy Act
A third statutory framework relevant to the Secretary's determinations in this case is that of the NEPA. That statute requires all federal agencies to " include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official" on a number of considerations. 42 U.S.C. § 4332(2)(C). These considerations include " 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." Id. This " detailed statement" is commonly known as an Environmental Impact Statement (" EIS" ). See, e.g.,
Found. on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C.Cir.1985). The parties appear to agree that the fee-to-trust acquisition at issue in this case qualifies as a " major Federal action" under the NEPA, and therefore the DOI was required to prepare an EIS regarding the environmental impacts of that acquisition. See Compl. ¶ 22; United States' Response to Pls.' Mot. for Prelim. Inj. (" Defs.' Opp'n" ) at 24-25, ECF No. 30.
B. The North Fork Tribe
The North Fork Tribe, which is an intervenor in this action, " consists of the modern descendants of Mono Indians using and occupying lands near and in the San Joaquin Valley for several centuries." Pls.' App. Ex. 23, at 467. The North Fork Tribe currently consists of approximately 1,900 citizens, many of whom live on or around an 80-acre parcel of land in Madera County (" the North Fork Rancheria" ), which is held in trust by the United States for the benefit of individual members of the North Fork Tribe. See Intervenor's Opp'n at 4; IGRA ROD at 294. The United States also holds a 61.5-acre tract of land (" the HUD tract" ) in North Fork, California in trust for the benefit of the North Fork Tribe itself, which contains a community center, basic infrastructure ( i.e., roads, water, sewer), and pads for nine single-family homes. See IGRA ROD at 289.
In 1906, Congress passed the first in a series of laws that authorized the Secretary of the Interior to purchase land in California for the benefit of individual Indians. See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 333. In 1916, pursuant to these statutes, the DOI purchased what is now the North Fork Rancheria " for the use of the North Fork band of landless Indians." See Decl. of Judy Bethel-Fink (" Bethel-Fink Decl." ) Ex. A at 1, ECF No. 33-1; Intervenor's Opp'n at 4. In 1934, the IRA was passed. See Indian Reorganization Act, Pub.L. No. 73-383, 48 Stat. 984 (1934) (codified at 25 U.S.C. §§ 461, et seq. ). One of the provisions of the IRA required the Secretary to call and hold special elections among Indian tribes on whether the tribes wanted to ratify the IRA and adopt a tribal constitution and by-laws. See 25 U.S.C. § 476(c). The IRA also contains an opt-out provision regarding these tribal elections, whereby the statute " 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." Id. § 478. One of these special elections was held on the North Fork Rancheria on June 20, 1935, and four of the six adult North Fork Indians voted against the application of the IRA. See Bethel-Fink Decl. Ex. B, at 2.
C. The Trust Application and Decisionmaking Process
On March 1, 2005, the North Fork Tribe submitted a formal request to the Bureau of Indian Affairs (" BIA" ) to acquire the Madera Site in trust for " the development and operation of a gaming resort and hotel." See Intervenor's Opp'n Ex. H at 1, ECF No. 34-4. Several months before this formal request was submitted, the BIA published a notice in the Federal Register announcing its intent to prepare
an EIS for the North Fork Tribe's proposed trust acquisition of the Madera Site. See Notice of Intent to Prepare an Environmental Impact Statement for the North Fork Rancheria's Proposed Trust Acquisition, 69 Fed. Reg. 62,721 (Oct. 27, 2004). This notice provided the opportunity for public comment " on the scope and implementation of this proposal" until November 26, 2004. See id. This " scoping" comment period was later extended until May 6, 2005. See 70 Fed. Reg. 17,461 (Apr. 6, 2005).
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 288; see also Draft Environmental Impact Statement for the North Fork Rancheria's Proposed 305 Acre Trust Acquisition, 73 Fed. Reg. 8898 (Feb. 15, 2008) (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 the BIA also conducted a public hearing on March 12, 2008, at which 101 individuals spoke. See IGRA ROD at 288; Defs.' Ex. J at 7-10, ECF No. 30-10 (listing commenters at public hearing). Following the public comment period on the DEIS, on August 6, 2010, the BIA published a notice in the Federal Register announcing its intent to submit a Final Environmental Impact Statement (" FEIS" ) to the Environmental Protection Agency (" EPA" ). See Final Environmental Impact Statement for the North Fork Rancheria's Proposed 305-Acre Trust Acquisition, 75 Fed. Reg. 47,621 (Aug. 6, 2010). This notice also provided 30 days within which to comment on the FEIS and stated that the FEIS was publicly available in a number of locations, including online. See id. at 47,621-22.
On September 1, 2011, after the FEIS had been published, the then Assistant Secretary of Indian Affairs, Larry Echo Hawk, issued a Record of Decision (" ROD" ) under the IGRA, which concluded that " Alternative A," which was the alternative that involved a large gaming/hotel complex on the Madera Site, was the " Preferred Alternative." IGRA ROD at 281. This alternative was chosen from among five alternatives because it " will best meet the purpose and need for the Proposed Action, in promoting the long-term economic self-sufficiency, self-determination and self-government of the [North Fork] Tribe." Id. In reaching this conclusion, the Secretary  also concluded that, under 25 C.F.R. Part 292, Alternative A was " in the best interest of the [North Fork] Tribe and its citizens," and " would not result in detrimental impact on the surrounding community." Id. at 368-70. The Secretary's conclusions in the ROD were supported by an analysis of the alternative actions; consideration of the factors laid out in 25 C.F.R. Part 292, which the Secretary is required to consider ( e.g., economic impacts of development, impacts on the surrounding community, historical connection
to the land); and the mitigation measures that would be taken to lessen any potential negative impacts on the surrounding community and others outside that community. See id. at 289-372. Generally, the ROD also stated that the Secretary's decision was based on, inter alia, " thorough review and consideration of the [North Fork] Tribe's fee-to-trust application and material submitted pursuant to the IGRA ... the DEIS; the FEIS; the administrative record; and comments received from the public, Federal, state, and local governmental agencies; and potentially affected Indian tribes." Id. at 282.
On November 26, 2012, the current Assistant Secretary for Indian Affairs, Kevin Washburn, issued an ROD under the IRA, approving the North Fork Tribe's fee-to-trust application for " Alternative A" on the Madera Site. See IRA ROD at 377. This ROD announced that " the action to be implemented is [Alternative A], which includes acquisition in trust of the 305.49-acre Madera site and construction of a gaming-resort complex including a 247,180 square foot casino facility, 200-room hotel, surface and structured parking facilities, and corresponding mitigation measures." Id. Similarly to the decision made under the IGRA, the IRA ROD " determined that this Preferred Alternative will best meet the purpose and need for the Proposed Action by promoting the long-term economic self-sufficiency, self-determination and self-governance of the [North Fork] Tribe." Id. Likewise, this second ROD analyzed alternative actions; environmental impacts and public comments; and mitigation measures to be taken. See id. at 386-435. The ROD also summarized the Secretary's consideration of the factors outlined in 25 C.F.R. Part 151, including an analysis of the Secretary's authority for the acquisition under 25 U.S.C. § 465. See id. at 435-43.
Following these Records of Decision, defendant Assistant Secretary Washburn announced his 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). The notice stated that it was being published, inter alia, " to comply with the requirements of 25 C.F.R. § 151.12(b) that notice be given of the Secretary's decision to acquire land in trust at least 30 days prior to signatory acceptance of the land into trust." Id. As stated in the BIA's Federal Register notice implementing 25 C.F.R. § 151.12(b), the 30-day waiting period " procedure permits judicial review before transfer of title to the United States" because " [t]he Quiet Title Act (QTA), 28 U.S.C. [§ ] 2409a, precludes judicial review after the United States acquires title." See Final Rule; Land Acquisitions, 61 Fed. Reg. 18,082 (Apr. 24, 1996) (to be codified at 25 C.F.R. pt. 151). In keeping with the reasoning and purpose underlying 25 C.F.R. § 151.12(b), the DOI has traditionally imposed a self-stay beyond the 30 days set forth in 25 C.F.R. § 151.12(b) for fee-to-trust transfers until any challenges have been resolved on the merits. See BUREAU OF INDIAN AFFAIRS, FEE-TO-TRUST HANDBOOK, VERSION II (" BIA HANDBOOK" ) at 15 (July 13, 2011), available at http:// www. bia. gov/ cs/ groups/ xraca/ documents/ text/ idc- 002543. pdf (" If an action is filed, take no further action [on the fee-to-trust transfer] until the judicial review process has been exhausted." ).
On December 19, 2012, within the 30-day window, the Stand Up plaintiffs filed their Complaint in the instant action. See ECF No. 1. The day before the Complaint was filed, however, government counsel notified the plaintiffs' counsel that the BIA would no longer be following its self-stay procedure because a recent Supreme
Court case, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
__ U.S. __, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012), held that the Quiet Title Act (" QTA" ) no longer bars challenges to fee-to-trust acquisitions after transfer of title has already taken place. See Mot. for Expedited Status Conference (" Pls.' Emergency Mot." ) Ex. 1, ECF No. 11-1. The government agreed to stay the transfer of the Madera Site until February 1, 2013, and also agreed to a briefing schedule for a motion for preliminary injunction to give the plaintiffs an opportunity to seek relief from the transfer before it takes place. See Joint Status Report at 3, 8-9, ECF No. 14. Pursuant to the jointly agreed upon briefing schedule, the government defendants  filed a motion to transfer venue on January 4, 2013, see ECF No. 20, and the Stand Up plaintiffs filed a motion for preliminary injunction on January 11, 2013, see ECF No. 26. The Court heard oral argument on these motions at a hearing on January 25, 2013.
II. LEGAL STANDARDS
A. Preliminary Injunction
" The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is " an extraordinary and drastic remedy" and " should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis and internal quotation mark omitted). Plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); accord Gordon v. Holder, 632 F.3d 722, 724 (D.C.Cir.2011).
Historically, these four factors have been evaluated on a " sliding scale" in this Circuit, such that " [i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor." Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir.2009). Recently, however, the continued viability of that approach has been called into some doubt, as the Supreme Court and the D.C. Circuit have strongly suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction. See Munaf v. Geren, 553 U.S. 674, 690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (" [A] party seeking a preliminary injunction must demonstrate, among other things, a likelihood of success on the merits." (internal quotation marks omitted)); Sherley v. Sebelius, 644 F.3d 388, 393 (D.C.Cir.2011) (" [W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, free-standing requirement for a preliminary injunction." (internal quotation marks omitted)); see also Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) (" Munaf made clear that a likelihood of success is an independent, free-standing requirement for a preliminary injunction." ). The D.C. Circuit has
nevertheless, despite its strongly suggestive dicta, explicitly abstained from deciding this question. See Sherley, 644 F.3d at 393 (observing that " [w]e need not wade into this circuit split today" ). Thus, absent binding authority or clear guidance, the Court finds that the most prudent course is to bypass this unresolved issue and proceed to explain why a preliminary injunction is not appropriate under the " sliding scale" framework. If the plaintiffs cannot meet the less demanding " sliding scale" ...