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Stand Up for California v. United States Department of Interior

United States District Court, District of Columbia

February 28, 2018

STAND UP FOR CALIFORNIA!, PATTY JOHNSON, JOE TEIXEIRA, and LYNN WHEAT, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; and JOHN TAHSUDA III, in his official capacity as Acting Assistant Secretary-Indian Affairs, Defendants, and WILTON RANCHERIA, CALIFORNIA Intervenor-Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, UNITED STATES DISTRICT JUDGE

         This case involves a uniquely Washingtonian question: when can a federal employee act in the place of an absent agency or unit head? This issue becomes acute during presidential transitions, when thousands of senior political appointees exit the government, often leaving their positions vacant for months or even years. Congress addressed this question through the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., and federal agencies have also developed complicated succession and delegation regulations. As a result, it turns out that, in practice, there are very few duties that cannot be delegated to an “acting” officeholder, the second-in-command (the “first assistant” to use the FVRA's term), or even another official who acts in the place of the principal pursuant to agency regulations or orders.

         Here, Stand Up for California!, Patty Johnson, Joe Teixeira, and Lynn Wheat (collectively, “Plaintiffs”) challenge the decision of the United States Department of the Interior, its Secretary of the Interior and Acting Assistant Secretary-Indian Affairs in their official capacities, and the Bureau of Indian Affairs (collectively, “Federal Defendants” or the “Department”) to acquire land in trust for the Wilton Rancheria Tribe of California (“Wilton Rancheria” or the “Tribe”). The Plaintiffs allege that in delegating to the Principal Deputy Assistant Secretary-Indian Affairs and the Special Assistant to the Director of the BIA the authority to act in the place of the Assistant Secretary-Indian Affairs, the Department violated its own regulations and the FVRA. This Court granted the Wilton Rancheria's motion to intervene. Minute Order, Feb. 24, 2017. Now pending before the Court are the Plaintiffs' motion for summary judgment and the Department's and Wilton Rancheria's (collectively, the “Defendants”) cross-motions for summary judgment. As jurisdiction and venue is proper in this Court, [1] and upon consideration of the pleadings, relevant law, related legal memoranda in opposition and in support, the parties' representations at oral argument, and the entire record, I find that no genuine issue of material fact exists and that the actions taken by Department employees in lieu of the Assistant Secretary-Indian Affairs (a vacant office at the time) were not in violation of departmental regulations or the FVRA. Accordingly, the Plaintiffs' motion for summary judgment will be denied, and the Defendants' cross-motions for summary judgment will be granted.

         I. BACKGROUND

         The Wilton Rancheria has been landless for nearly 60 years. Mem. of P. & A. in Opp. to Pls.' Mot. for Summary J. and in Supp. of Wilton Rancheria, California's Cross-Mot. for Summary J. (“Tribe's Cross-Mot. for Summary J.”) 5, ECF No. 41. In 2013, the Tribe applied for the Bureau of Indian Affairs (“BIA”) to acquire land in trust on its behalf, identifying a 282-acre parcel near Galt, California as the proposed site. See Am. Compl. ¶ 31. After three years of examination of the Galt site, the BIA published a notice of the final environmental impact statement shortly after the November 2016 presidential election, but for a different, 36-acre parcel of land in Elk Grove, California. See Id. ¶ 38. As the Plaintiffs understood for the significant majority of the years-long process that the land to be acquired was in Galt, not Elk Grove, the Plaintiffs immediately sought to delay the acquisition of title to the Elk Grove land by making several requests to the Secretary of the Interior (“Secretary”). Id. ¶¶ 38, 40. When the Plaintiffs' requests were refused, they filed suit in this District, seeking a temporary restraining order and preliminary injunction against the Department to prevent acquisition of title to the land. Id. ¶ 41. Another judge of this District denied the motions, after which the Plaintiffs formally applied to the Department for a stay under 5 U.S.C. § 705. Minute Order, Jan. 13, 2017; Minute Order, Jan. 17, 2017; Am. Compl. ¶ 43.

         Rather than halting the process, the Department shifted into warp speed-for a federal bureaucracy-to approve the application for the Elk Grove site. On January 19, 2017, in the waning hours of the Obama Administration, Lawrence Roberts, the Principal Deputy Assistant Secretary-Indian Affairs, issued a Record of Decision approving the Wilton Rancheria's application and authorizing acquisition of the Elk Grove land in trust for the Tribe. See Mot. to Intervene Ex. A at 2-3. On February 10, 2017, Michael Black, signing as the Acting Assistant Secretary-Indian Affairs, denied the Plaintiffs' stay request, and the Plaintiffs filed an internal administrative notice of appeal. Am. Compl. ¶¶ 55, 57. The Plaintiffs argued that the Department violated its own regulations and the FVRA in deciding to acquire land in trust for the Tribe. See Mem. of P. & A. in Supp. of Pls.' Mot. for Summary J. (“Pls.' Mem. for Summary J.”) Ex. E, ECF No. 33-1. In particular, the Plaintiffs construe the relevant regulation for trust land acquisitions, 25 C.F.R. § 151.12(c), as reserving the decision-making authority for final trust decisions exclusively to the Secretary or the Assistant Secretary-Indian Affairs (the “ASIA, ” in Department lingo). See id.

         On March 7, 2017, citing administrative appeals regulations, Mr. Black exercised jurisdiction over the appeal as the Acting AS-IA. Pls.' Mem. for Summary J. Ex. A, ECF No. 33-1. On July 13, 2017, Mr. Black, signing as the Acting AS-IA, dismissed the appeal, determining that the January 19, 2017 Record of Decision was a proper and final agency action. See Id. Ex. F, ECF No. 33-1. Mr. Black reasoned that the FVRA permitted the delegation of the non-exclusive functions and duties of the AS-IA; and that Mr. Roberts, as the Principal Deputy Assistant Secretary, was duly delegated at the time, under the Department Manual, the nonexclusive functions and duties of the AS-IA, including approving the Tribe's application. See id.

         The parties then returned to this Court and the Plaintiffs filed an amended complaint. Count One challenges Mr. Roberts' January 19, 2017 Record of Decision approving the Tribe's application as an ultra vires action in violation of agency regulations and the FVRA. Am. Compl. ¶ 70. Count Two challenges Mr. Black's decisions to acquire title in trust for the Tribe (February 10, 2017), assume jurisdiction over the Plaintiffs' appeal (March 7, 2017), and issue an order dismissing the appeal (July 13, 2017) as violations of agency regulations and the FVRA. Id. ¶ 82. The parties' cross-motions for summary judgment, including one by the Tribe as an intervenor-defendant, are now ripe. Pls.' Mot. for Summary J., ECF No. 33; Mem. of P. & A. in Opp. to Pls.' Mot. for Summary J. and in Supp. of Fed. Defs.' Cross-Mot. for Summary J. (“Fed. Defs.' Cross-Mot. for Summary J.”), ECF No. 40; Tribe's Cross-Mot. for Summary J., ECF No. 41.[2]

         II. LEGAL STANDARD

         To prevail on summary judgment, the movant must show an absence of a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court views the evidence in the light most favorable to the non-moving party. Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

         III. ANALYSIS

         A. Statutory and Regulatory Scheme

         As this matter involves the interplay between Congress' statutory scheme setting forth who is authorized to act for the United States under what circumstances and the Department's regulatory scheme implementing Congress' directives, I begin my analysis with an overview of the applicable statutes and regulations.

         In the Indian Reorganization Act of 1934, Congress delegated to the Department of the Interior authorization to acquire land in trust for Indians tribes. 25 U.S.C. § 5108. The Secretary has created procedures for these “fee-to-trust” actions in the Code of Federal Regulations. See 25 C.F.R. § 151.1 et seq. In particular, Section 151.12 requires the Secretary to review and approve or deny each request for land acquisition. 25 C.F.R. § 151.12(a)-(b). The Secretary may delegate this authority to the AS-IA or to an official in the BIA, which is a bureau under the purview of the AS-IA. 78 Fed. Reg. 67, 928, 67, 929 (Dep't of the Interior Nov. 13, 2013); Department Manual 105 DM 2 Organizational Chart.[3]

         In 2013, Section 151.12 was revised to, among other things:

Provide clarification and transparency to the process for issuing decisions by the Department, whether the decision is made by the Secretary, Assistant Secretary-Indian Affairs (AS-IA), or a Bureau of Indian Affairs (BIA) official; Ensure notice of a BIA official decision to acquire land into trust, and the right, if any, to file an administrative appeal of such decision by requiring written notice to all interested parties who have made themselves known in writing to the BIA official . . . .

78 Fed. Reg. at 67, 929. The revised rule added new subsections (c) and (d), which were summarily described as housing certain requirements moved from subsections (a) and (b), such as prompt notification, notification of appeal rights, title examination, exhaustion of administrative remedies, and publication in the Federal Register. Id. at 67, 930-67, 931. The revisions also clarified the “different means and timelines for challenging decisions depending on whether the decision is issued by the AS-IA or a BIA official.” Id. at 67, 929. Accordingly, Section 151.12(c)-which is at the crux of the current dispute-provides the applicable procedures when the AS-IA issues a decision, whereas Section 151.12(d) provides the applicable procedures when a BIA official issues a decision. Under Section 151.12(c):

A decision made by the Secretary, or the Assistant Secretary-Indian Affairs pursuant to delegated authority, is a final agency action under 5 U.S.C. 704 upon issuance.
(1) If the Secretary or Assistant Secretary denies the request, the Assistant Secretary shall promptly provide the applicant with the decision.
(2) If the Secretary or Assistant Secretary approves the request, the Assistant Secretary shall:
(i) Promptly provide the applicant with the decision;
(ii) Promptly publish in the Federal Register a notice of the decision to acquire land in trust under this part; and
(iii) Immediately acquire the land in trust under § 151.14 on or after the date such decision is issued and upon fulfillment of the requirements of § 151.13 and any other Departmental requirements.

         Therefore, a decision properly made under Section 151.12(c) is a final agency action and the ASIA may acquire the land in trust. Under Section 151.12(d):

A decision made by a Bureau of Indian Affairs official pursuant to delegated authority is not a final agency action of the Department under 5 U.S.C. 704 until administrative remedies are exhausted under part 2 of this chapter or until the time for filing a notice of appeal has expired and no administrative appeal has been filed.

(emphases added). The addition of subsections (c) and (d) thus “makes explicit the requirement that prior to seeking judicial review of a BIA official's decision, a party must first exhaust the administrative remedies available ...


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