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Confederated Tribes of Grand Ronde Community of Oregon v. Jewell

United States District Court, D. Columbia.

December 12, 2014

SALLY JEWELL, et al., Defendants

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For CLARK COUNTY, WASHINGTON, In case no.: 13-cv-850, Plaintiff: Donald Christian Baur, LEAD ATTORNEY, PERKINS COIE LLP, Washington, DC; Lawrence Charles Watters, LEAD ATTORNEY, PRO HAC VICE, CLARK COUNTY PROSECUTOR'S OFFICE Civil Division, Vancouver, WA.


For CITIZENS AGAINST RESERVATION SHOPPING (CARS), In case no.: 13-cv-850, AL ALEXANDERSON, In case no.: 13-cv-850, GREG GILBERT, In case no.: 13-cv-850, SUSAN GILBERT, In case no.: 13-cv-850, DRAGONSLAYER, INC., In case no.: 13-cv-850, MICHELS DEVELOPMENT, LLC, In case no.: 13-cv-850, Plaintiffs: Benjamin S. Sharp, Jennifer A. MacLean, LEAD ATTORNEYS, PERKINS COIE LLP, Washington, DC; Donald Christian Baur, LEAD ATTORNEY, PERKINS COIE LLP, Washington, DC; Eric D. Miller, PRO HAC VICE, PERKINS COIE, LLP, Seattle, WA.

For SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior, KEVIN K. WASHBURN, in his official capacity as Assistant Secretary - Indian Affairs of the United States Department of the Interior, STANLEY M. SPEAKS, in his official capacity as Regional Director, Northwest Region, of the Bureau of Indian Affairs, UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, In case no.: 13-cv-850, NATIONAL INDIAN GAMING COMMISSION, In case no.: 13-cv-850, TRACIE STEVENS, In case no.: 13-cv-850, Defendants: Gina L. Allery, Kristofor R. Swanson, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Environmental and Natural Resources Division, Washington, DC.

For COWLITZ INDIAN TRIBE, a federally recognized Indian Tribe, Intervenor Defendant: Edward D. Gehres, LEAD ATTORNEY, PATTON BOGGS LLP, Washington, DC; Suzanne R. Schaeffer, V. Heather Sibbison, DENTONS U.S. LLP, Washington, DC.

For CHINOOK NATION, Amicus: Jonathan G. Axelrod, LEAD ATTORNEY, BEINS, AXELROD, P.C., Washington, DC; Randal Brown, PRO HAC VICE, RANDAL BROWN LAW OFFICES, Covington, WA.



For SAMISH INDIAN NATION, Amicus: Craig J. Dorsay, PRO HAC VICE, DORSAY & EASTON LLP, Portland, OR; Susan Mary Mathiascheck, CROWELL & MORING LLP, Washington, DC.


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This consolidated action[1] arises under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq., the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Plaintiffs challenge the Secretary of the Department of Interior's decision to acquire and hold in trust approximately 152 acres in Clark County, Washington for the Cowlitz Indian Tribe, the Intervenor-Defendant. Plaintiffs further challenge the Secretary's decision to allow gaming on that land, and dispute whether the Secretary has complied with NEPA's requirements. Before the Court are the parties' cross-motions for summary judgment. Having considered the record herein together with the parties' briefs the Court denies the Plaintiffs' motions for summary judgment and grants the Defendants' motions for summary judgment. The Court's reasoning follows:


A. Legal Framework

The Secretary's decision was arrived upon consideration of a complex combination of statutes, procedures, and regulations, a brief description of which follows:

1. Indian Reorganization Act of 1934

" The IRA was designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes' acquisition of additional acreage and repurchase of former tribal domains. Native people were encouraged to organize or reorganize with tribal structures similar to modern business corporations." 1-1 Cohen's Handbook of Federal Indian Law § 1.05. " The overriding purpose of [the IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically." Morton v. Mancari, 417 U.S. 535, 542, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).

Among other things, the IRA provides the Secretary with the authority " to acquire . . . any interest in lands . . . for the purpose of providing land for Indians." 25 U.S.C. § 465. " Title to any lands . . . acquired pursuant to [the IRA] . . . 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, and such lands . . . shall be exempt from State and local taxation." Id. Lands taken in trust by the United States can be designated as part of an Indian Tribe's reservation. Id. § 467.

Section 19 of 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. While the IRA does not elaborate on what it means to be a " recognized Indian tribe now under Federal jurisdiction," the Supreme Court recently interpreted the phrase " now under Federal jurisdiction." In doing so it reasoned that when Congress refers to a tribe that was " now under federal jurisdiction," it used the word " now" to mean the date that the IRA was enacted, which was 1934. Carcieri v. Salazar, 555 U.S. 379, 382, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009).

2. Federal Acknowledgment Process

In 1978, the Department of Interior established a " departmental procedure and policy for acknowledging that certain

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American Indian groups exist as tribes." 25 C.F.R. § 83.2. This process was " intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present." Id. § 83.3. Such acknowledgment was necessary to receive " the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes," as well as " the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States." Id. § 83.2. An Indian tribe acknowledged under this procedure would " subject the Indian tribe to the same authority of Congress and the United States to which other federally acknowledged tribes are subjected." Id.

The Regulations specified the criteria that a tribe must demonstrate to achieve Federal acknowledgment. Id. § 83.7-83.8. Among other requirements, the tribe must have been " identified as an American Indian entity on a substantially continuous basis since 1900," and a " predominant portion" of the tribe must " comprise[] a distinct community" and must have " existed as a community from historical times until the present." Id. § 83.7(a)-(b).

3. Indian Gaming Regulatory Act of 1988

Like the IRA, the IGRA was enacted in large part to promote " tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). To this end, the IGRA provided " a statutory basis for the operation of gaming by Indian tribes." 25 U.S.C. § 2702(1); see also Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 462, 377 U.S.App.D.C. 161 (D.C. Cir. 2007). The IGRA generally prohibits Indian gaming on lands acquired after October 17, 1988. 25 U.S.C. § 2719. However, there are exceptions.

Of particular relevance here, the IGRA allows gaming if " lands are taken into trust as part of . . . (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition." Id. § 2719(b)(1)(B). For brevity, these exceptions are referred to herein as the " initial reservation" exception and the " restored lands" exception, respectively.

4. National Environmental Policy Act

NEPA requires federal agencies to issue an Environmental Impact Statement (EIS) for any " major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS must discuss in detail, inter alia, " (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,[and] (iii) alternatives to the proposed action." Id.

Because the NEPA process " involves an almost endless series of judgment calls . . . [t]he line-drawing decisions . . . are vested in the agencies, not the courts." Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66, 263 U.S.App.D.C. 426 (D.C. Cir. 1987). Therefore, the " role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." City of Olmsted Falls, Ohio v. Fed. Aviation Admin., 292 F.3d 261, 269, 352 U.S.App.D.C. 30 (D.C. Cir. 2002) (citing Baltimore Gas & Elec. v. Natural Res. Def. Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)).

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B. Factual & Procedural Background

The Cowlitz Indian Tribe (hereinafter, Cowlitz or Tribe) is the successor in interest of the Lower Cowlitz and the Upper Cowlitz Bands of Southwestern Washington. The Tribe has been without land since President Lincoln signed a proclamation in 1863 that opened the Cowlitz lands in southwest Washington to non-Indian settlement. A.R. 8200; A.R. 14048762; Fed.Reg. 8,983-01 (Feb. 27, 1997).

In 2002,[2] the Department of Interior federally acknowledged the Cowlitz after finding that the Tribe had existed as an Indian entity on a substantially continuous basis since at least 1878-80 and that it had satisfied the criteria set forth in 25 C.F.R. part 83. 67 Fed.Reg. 607 (Jan. 4, 2002); 65 Fed.Reg. 8,436 (Feb. 18, 2000). Immediately upon receiving federal acknowledgment, the Cowlitz submitted an application requesting that the Secretary take into trust 151.87 acres of land in Clark County, Washington (hereinafter, " the Parcel" ) and declare it the Tribe's " initial reservation" under the IRA. A.R. 140382. The Tribe claimed its purpose was to " create a federally-protected land base on which the Cowlitz Indian Tribe can establish and operate a tribal government headquarters to provide housing, health care, education and other governmental services to its members, and conduct the economic development necessary to fund these tribal government programs, provide employment opportunities for its members, and allow the Tribe to become economically self-sufficient." A.R. 140383. To further that goal, the Cowlitz Tribe, currently landless, intends to develop the Parcel to establish 20,000 square feet of tribal government offices, sixteen elder housing units, a 12,000 square foot tribal cultural center and a casino-resort complex consisting of 134,150 square feet of game floor; 355,225 square feet of restaurant and retail facilities and public space; 147,500 square feet of convention and multi-purpose space; and an eight story 250-room hotel. BIA ROD at 2, 115.

A tribe must seek approval for casino-style gambling from the National Indian Gaming Commission (NIGC), an independent federal regulatory agency within the Department of Interior. 25 U.S.C. § 2706. In August 2005, the Cowlitz submitted its proposed tribal gaming ordinance for review, which the NIGC eventually approved. A.R. 8193.

As part of the tribal gaming ordinance review process, the NIGC issued an opinion in November 2005 which found that the Parcel qualified for IGRA's 'restored lands' exception to the general prohibition on gaming. Id. More specifically, NIGC concluded that " the Cowlitz Tribe is a restored tribe and that if the United States Department of Interior accepts the [Parcel] into trust for the Tribe, such trust acquisition will qualify as the " restoration of lands" within the meaning of the [IGRA]." A.R. 008195. For the Cowlitz to be considered an " Indian Tribe that is restored to Federal recognition," as that term is used in IGRA, the Cowlitz had to demonstrate " a history of 1) government recognition; 2) a period of non-recognition; and 3) reinstatement of recognition." A.R. 008198. The NIGC concluded that the Federal government had recognized the Cowlitz during the latter half of the 1800s and then " did not recognize the Cowlitz Tribe as a governmental entity from at least the early 1900s until 2002," at which point the Tribe received formal Federal acknowledgment under 25 C.F.R. part 83. A.R. 008199.

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The NIGC explicitly noted in its November 2005 opinion that if the Secretary accepted the Parcel into her trust, the Department of Interior could proclaim the Parcel to be the Tribe's initial reservation. According to the NIGC, " [a]n 'initial reservation proclamation would provide a second basis by which the [P]arcel would qualify as Indian lands on which the Tribe could conduct gaming." [3] A.R. 8195.

The Tribe's application to take the Parcel into federal trust prompted the NEPA process. The Bureau of Indian Affairs issued a draft Environmental Impact Statement (EIS) concerning the proposed actions surrounding the Parcel. After a period of public comment, the final EIS was issued on May 30, 2008. AR140377; 75768-76440.

In April 2013,[4] the Secretary of the Department of the Interior (hereinafter, Secretary) through her designee, the Assistant Secretary of Indian Affairs issued a Record of Decision (" ROD" or " the decision" ) accepting the Parcel into trust and declaring that gaming would be allowed on the land. Specifically, the Secretary determined that the Parcel qualified for gaming under IGRA's " initial reservation" exception to the general ban on gaming. A.R.140494-518. The ROD did not discuss whether the Parcel would qualify under IGRA's " restored lands" exception.

Plaintiffs are entities and individuals who, for varying reasons, oppose the construction of the Cowlitz casino-resort complex. The first action was brought by Plaintiff Confederated Tribes of the Grand Ronde Community of Oregon (" Grand Ronde" ) which owns and operates a casino that would compete with any future casino built on the Parcel. The second action was brought by Clark County, Washington, the City of Vancouver, homeowners and community members in the area surrounding the Parcel, and specific businesses (clubs and card rooms) that would also be forced to compete with the future casino (collectively, Clark County Plaintiffs).

Plaintiffs argue that the Secretary violated the APA and NEPA. Specifically, Plaintiffs challenge: (1) the decision to accept into federal trust the Parcel pursuant to Section 5 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § 461 et seq.; (2) the decision to allow the Cowlitz to conduct gaming activities on the Parcel once the Secretary has accepted the land into trust; and (3) the Secretary's compliance with the NEPA.


The APA instructs the reviewing court to " hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The standard of review is narrow, and " [t]he court is not empowered to substitute its judgment for that of the agency."

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Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 104, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

When reviewing the substance of an agency's interpretation of a law it administers, the court must apply the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, the first step begins with the statute. The court must examine the statute to determine whether Congress has spoken directly to the precise question at issue. Natural Res. Def. Council v. EPA, 643 F.3d 311, 322, 395 U.S.App.D.C. 397 (D.C. Cir. 2011). Such an examination requires the court to use " the traditional tools of statutory interpretation--text, structure, purpose, and legislative history." Consumer Elecs. Ass'n v. FCC, 347 F.3d 291, 297, 358 U.S.App.D.C. 180 (D.C. Cir. 2003) (quoting Pharm. Research & Mfs. of Am. v. Thompson, 251 F.3d 219, 224, 346 U.S.App.D.C. 158 (D.C. Cir. 2001)). If the court determines that Congress has directly spoken to the precise issue, that is the end of the analysis, " for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43.

If the statute is " silent or ambiguous with respect to the specific issue," then the court proceeds to the second step of Chevron. Chevron, 467 U.S. at 843. The court must determine whether the agency's response to the question at issue is reasonable and based on a permissible construction of the statute. Id. If the agency provides a reasonable interpretation of the statute, the court must defer to the agency's interpretation. Am. Library Ass'n v. FCC, 406 F.3d 689, 699, 365 U.S.App.D.C. 353 (D.C. Cir. 2005). The agency's interpretation need not be " the only possible interpretation, nor even the interpretation deemed most reasonable by the courts." Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (emphasis in original). Moreover, " a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, 467 U.S. at 844. The court is " principally concerned with ensuring that [the Agency] has 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made,' that the Agency's 'decision was based on a consideration of the relevant factors,' and that the Agency has made no 'clear error of judgment.'" Bluewater Network v. EPA, 370 F.3d 1, 11, 361 U.S.App.D.C. 370 (D.C. Cir. 2004) (quoting Motor Vehicle Mfrs. Ass'n of 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)).

Finally, when interpreting an ambiguous statutory provision involving Indian affairs, " the governing canon of construction requires that statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1266 n.7, 380 U.S.App.D.C. 39 (D.C. Cir. 2008). However, the Indian canon of construction does not apply for the benefit of one tribe if its application would adversely affect the interests of another tribe. Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir. 1996).


A. The Secretary Did Not Violate the APA in Concluding that the IRA Authorizes Her to Acquire the Parcel in Trust for the Cowlitz

Plaintiffs argue that the Secretary lacks the authority to acquire land in trust for

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the Cowlitz because the tribe is neither " recognized" nor " under Federal jurisdiction," as required by Section 19 of the IRA. Clark Cty Mot. at 9; Grand Ronde Mot. at 8. Furthermore, Clark County Plaintiffs maintain that the Tribe's membership expansion since its Federal acknowledgment violated federal regulations, and, therefore, the Secretary's decision to acquire the land in trust is void. Clark Cty Mot. at 9. In this section, the Court analyzes the parties' positions regarding: (1) whether the Cowlitz are a " recognized" Indian Tribe; (2) whether the Cowlitz are an Indian Tribe " now under Federal jurisdiction; " and, lastly, (3) whether the Secretary violated the pertinent regulations by not reviewing Cowlitz's membership numbers.

1. Recognition

a. The Secretary's Decision

As described earlier, the IRA authorizes the Secretary to acquire land in trust for " Indians," a term which is defined in Section 19 of the IRA to include, inter alia, " members of any recognized Indian tribe now under Federal jurisdiction." 25 U.S.C. § 479. The Secretary's decision determined that the Cowlitz was " recognized" under the IRA. ROD 87-89. The Secretary reasoned that the term " recognized" had historically been used in two distinct senses: (1) the " cognitive" or " quasi-anthropological" sense, under which an official " simply knew or realized that an Indian tribe existed," and (2) " the more formal or 'jurisdictional' sense to connote that a tribe is a governmental entity comprised of Indians and that the entity has a unique relationship with the United States." ROD at 87 (A.R. 140468). The formal or jurisdictional sense of recognition, the Secretary explained, evolved into the modern notion of " federal recognition" or " federal acknowledgment" in the 1970s, and eventually regulations established procedures pursuant to which an entity could demonstrate its status as an Indian tribe. Id.

Ultimately, however, the Secretary did not " reach the question of the precise meaning of 'recognized Indian tribe.'" Id. at 89. The Secretary reasoned that " whatever the precise meaning of the term 'recognized tribe,' the date of federal recognition does not affect the Secretary's authority under the IRA" because " 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. The Secretary concluded that the Cowlitz tribe had been " recognized" since at least 2002, when it received federal acknowledgment, and therefore it satisfied the recognition requirement. Id.

b. Parties' arguments

Plaintiffs argue that the phrase " now under Federal jurisdiction," (which under Carcieri strictly refers to tribes under jurisdiction in 1934) modifies the phrase " recognized Indian tribe," and both phrases should be temporally limited to 1934. In other words, Plaintiffs contend that a tribe must have been not only " under federal jurisdiction" in 1934 but also " recognized" in 1934 to qualify as an " Indian Tribe" under Section 19. Clark Cty Mot. at 10; Grand Ronde Mot. at 9. Plaintiffs point to the plain text as well as legislative history to support that the term " recognized" refers only to tribes " enrolled" in 1934. Grand Ronde Mot. at 10; Clark Cty Mot. at 12-13. Lastly, Plaintiff Grand Ronde argues that reading the phrase " recognized Indian tribe" in the context of the IRA as a whole supports that Congress intended the term " recognized" to mean tribes recognized in 1934. Grand Ronde Mot. at 10.

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Defendants, unsurprisingly, maintain that the Secretary reasonably construed an ambiguous statutory term when she decided that there is no temporal limitation on recognition, and, therefore, the Court should defer to her interpretation. Gov't Mot. at 27; Cowlitz Mot. at 30. c.

Carcieri v. Salazar

The Supreme Court explained in Carcieri v. Salazar, 555 U.S. 379, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009), that the phrase " now under Federal jurisdiction" meant that a tribe had to be under federal jurisdiction in 1934, the year the IRA was passed, in order to qualify under Section 19's definition of " Indian." Less clear was whether an Indian Tribe also had to be " recognized" in 1934 to qualify as " Indian" under Section 19. The Carcieri majority makes no attempt to interpret what the word " recognized" means, and instead concerns itself solely with the interpretation of the phrase " now under Federal jurisdiction." See id. at 382 (holding that " § 479 limits the Secretary's authority 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" ). Had the Carcieri majority believed that an Indian tribe needed to be recognized as of 1934, it could have easily said so and made that part of its holding. However, the majority chose not to follow that course, and instead held only that the phrase " now under federal jurisdiction" means tribes that were under federal jurisdiction in 1934. By ignoring the concept of recognition altogether, the Carcieri opinion in no way supports Plaintiffs' position that the term recognized should be read in conjunction with the phrase " now under federal jurisdiction."

Indeed, the only discussion of the term " recognized" in Carcieri directly contradicts Plaintiffs' arguments. In his concurrence, Justice Breyer explains that recognition and jurisdiction may be treated as two separate concepts and notes that Section 19 " imposes no time limit upon recognition." Id. at 399. Additionally, Justices Souter and Ginsburg agreed with Justice Breyer that " [n]othing in the majority opinion forecloses the possibility that the two concepts, recognition and jurisdiction, may be given separate content" and that " the [IRA] imposes no time limit upon recognition." Id. at 400 (Souter, dissenting). Accordingly, the Carcieri majority opinion does not support that the term " recognized" in Section 19 unambiguously refers only to tribes recognized as of 1934. Moreover, the views expressed by Justices Breyer, Souter and Ginsburg support that, ...

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