United States District Court, District of Columbia
DICKINSON WRIGHT PLLC Attorneys for Plaintiff
COUNTY COUNSEL'S OFFICE Attorneys for Plaintiff
DEPARTMENT OF JUSTICE Environment and Natural Resources
Division Attorneys for Defendants .
ANDERSON INDIAN LAW Attorneys for Intervenor-Defendant
J. WHITTLESEY, ESQ.
S. ALPERT, ESQ.
L. MAUL, ESQ.
MICHAEL J. ANDERSON, ESQ.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, JR. SENIOR UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff Butte County's
("Plaintiff County") motion for summary judgment,
see Dkt. No. 115; Defendants' (collectively the
"United States" or the "Department")
cross-motion for summary judgment, see Dkt. No. 117;
and Intervenor Defendant's (the "Tribe")
cross-motion for summary judgment, see Dkt. No. 119.
Court heard oral argument in support of and in opposition to
these motions on May 10, 2016, and reserved decision at that
time. The following constitutes the Court's written
disposition of these motions.
1996, the Tribe acquired a parcel of land as a potential site
for a revenue-generating gaming operation. After the
Department advised the Tribe that the parcel was not eligible
for gaming under the Indian Gaming Regulatory Act
("IGRA"), the Tribe acquired a different parcel of
land (the "Chico Parcel") in 2001. The Chico
Parcel, approximately 625 acres, is located near the City of
Chico, in Butte County, California.
2002, the Tribe requested that the National Indian Gaming
Commission ("NIGC") provide an opinion regarding
whether the Chico Parcel was eligible for gaming. The NIGC
issued an opinion in 2003 that the Chico Parcel would
constitute "restored lands" under the IGRA, and the
Department concurred with the NIGC's opinion.
2004, the Tribe requested that the Department take the
approximately 625-acre Chico Parcel into trust for gaming
purposes. In 2006, Plaintiff County objected to the
Tribe's application and provided the Department with the
report of Dr. Stephen Dow Beckham ("2006 Beckham
Report"). The 2006 Beckham Report was included as part
of the Department's administrative record. In 2008, the
Secretary of the Department approved the Tribe's trust
application ("2008 Decision"). Plaintiff County
challenged the approval in this Court, and the Court
(Kennedy, J.) upheld the Secretary's decision. See
Butte Cnty. v. Hogen, 609 F.Supp.2d 20 (D.D.C. 2009).
Plaintiff County appealed.
13, 2010, the United States Court of Appeals for the District
of Columbia vacated the 2008 Decision and remanded the case
on the ground that "[t]here [was] no indication that the
Interior Department . . . actually considered the [2006
Beckham Report]." Butte Cnty. v. Hogen, 613
F.3d 190, 194 (D.C. Cir. 2010).
remand, the Court (Kennedy, J.) requested the parties'
positions regarding compliance with the Court of Appeals'
remand order. See Dkt. No. 70. After reviewing the
parties' submissions, the Court issued an Order on
December 22, 2010, in which the Court "remanded [this
matter] to the Secretary of the Interior to reconsider his
decision to acquire the Chico Parcel into trust for gaming
purposes. The Secretary shall include and consider the 
'Beckham Report' as part of the administrative record
on remand." See Dkt. No. 71.
remand, the Department concluded that, in light of the
passage of time and intervening developments in the law, the
existing administrative record would not serve as an adequate
basis for a new decision. See New Administrative
Record ("AR NEW") at 5386. In letters dated April
12, 2011, former Deputy Solicitor - Indian Affairs Patrice
Kunesh explained the specific procedural process that the
Department would use on remand. See Id. at 4044 (to
Plaintiff County); 4045-46 (to the Tribe) (collectively
"April 12 letter"). In the April 12 letter, Ms.
Kunesh explained that Plaintiff County would have thirty days
to submit any information it wished the Secretary to consider
during the remand, and the Tribe would then have thirty days
to respond to Plaintiff County's submissions. See
Id. The April 12 letter also requested both parties'
views on whether recently promulgated regulations should
apply to the remand. See Id. (referring the parties
to 25 C.F.R. Part 292).
Tribe objected to the proposed remand process. By letter
dated April 21, 2011, the Tribe's Chairman, Dennis
Ramirez, requested that the Department base its new decision
entirely on the existing administrative record. See
Id. at 4049-52. This request arose out of the
Tribe's concern with the efficiency of the process as
well as the fact that Plaintiff County would be afforded an
opportunity to file additional submissions with the