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Fort Sill Apache Tribe v. National Indian Gaming Commission

United States District Court, District of Columbia

May 25, 2018

FORT SILL APACHE TRIBE, Plaintiff,
v.
NATIONAL INDIAN GAMING COMMISSION, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER United States District Judge

         This is a case that has become unduly complicated. It began when the Fort Sill Apache Indian Tribe (the Tribe), a federally recognized Indian Tribe, sued the National Indian Gaming Commission (NIGC) and Jonodev Chaudhuri, in his official capacity as Acting Chairman of the NIGC, regarding the status of the Tribe's land in Akela Flats, New Mexico. The underlying issue is the Tribe's desire to operate a casino and the 2015 Decision and Order of NIGC that the Tribe is not eligible to do so.

         After some initial skirmishing, the parties asked to stay the case while they tried to reach a settlement. Months passed without apparent progress and the Court set a status conference to determine whether settlement was possible or if the litigation should proceed. At that status conference on August 15, 2016, the parties explained a structure upon which they had agreed, that might possibly, or possibly not, resolve the lands dispute. To that end, the parties proposed an order the Court might enter to ensure a more timely effectuation of the settlement structure. The parties before the Court agreed that the Department of Interior would submit a letter to NIGC outlining its opinion on the status of the lands at Akela Flats, and NIGC would subsequently decide to reconsider, or not, its decision that the Tribe was ineligible to conduct gaming in New Mexico. The outcome of that proposal and this Court's Order was a letter issued by NIGC in January 2017 (2017 Decision), signed by three Commissioners, in which NIGC stated it would not reconsider and affirmed its 2015 Decision and Order (2015 Decision).

         The parties returned to this litigation and the Tribe filed a Second Amended Complaint that complains of both the 2017 Decision and 2015 Decision, and added Defendants Department of the Interior (Interior) and other associated individuals (collectively, Defendants). Pending before the Court are Defendants' Motions for Reconsideration and Partial Dismissal of Plaintiff's Second Amended Complaint. Defendants insist that the 2017 Decision was not, and could not be considered, final agency action subject to challenge before a court.

         I. BACKGROUND

         The parties are well aware of the facts of the case; however, because the parties' motions concern legal issues not previously considered by the Court, it recites the facts in detail.

         The Fort Sill Apache Indian Tribe is a federally recognized Indian tribe. Second Am. Compl. (SAC) [Dkt. 80] ¶ 23. Originating in what is now New Mexico, the predecessors of the Fort Sill Apache were forcibly relocated in the 19th century to Florida, Alabama, and then Oklahoma by the United States Army following the conclusion of the war against the Apache leader Geronimo and his people. Id. ¶ 45 (“In 1886, after tribal leader Geronimo and his last warriors surrendered, the United States imprisoned the entire Chiricahua and Warm Springs Apache population (including women, children, and non-combatants) and forcibly expatriated them . . . . Conditions in the prison camps were brutal: four years after Geronimo's surrender, a quarter of the [Apache] were dead.”). After 27 years of incarceration at Fort Sill in Lawton, Oklahoma, the Apache prisoners of war were given the choice in the early 20th century to become members of the separate Mescalero Apache Tribe in New Mexico or to be released to live without tribal affiliation in Oklahoma. Id. ¶ 47. Those Apache who chose to remain in Oklahoma were resettled onto the existing Kiowa, Comanche and Apache Reservation (KCA Reservation). Id. These Oklahoma Apache and their descendants now comprise the Fort Sill Apache Indian Tribe. In the 1970s, the Fort Sill Apache Indian Tribe successfully undertook the then-existing Bureau of Indian Affairs (BIA) process to become federally recognized and eligible for BIA-administered programs. Id. ¶¶ 48-51.

         In the late 1990s, the Tribe sought to open a gaming facility on land within the boundaries of the KCA Reservation. Id. ¶¶ 57-58. The Comanche Nation, a separate tribal entity which also held lands on the KCA Reservation, opposed that plan and sued the United States to stop it. Id. ¶¶ 60-61; see Comanche Nation, Okla. v. United States (Comanche Nation), Case No. CIV-05-328-F (W.D. Ok. Mar. 9, 2007). The Fort Sill Apache Indian Tribe intervened in the lawsuit. SAC ¶ 61.

         The United States, the Comanche Nation, and the Fort Sill Apache Indian Tribe ultimately negotiated a three-way settlement agreement effective as of March 8, 2007 (Comanche Nation Settlement Agreement). Id. ¶¶ 62-63. Pursuant to the Comanche Nation Settlement Agreement, the Fort Sill Apache Indian Tribe agreed to relinquish its lands on the KCA Reservation and move to a thirty-acre location in Akela Flats, New Mexico, an area within the Tribe's ancestral homeland. Id. ¶ 63. For its part, the government agreed to “withdraw its March 29, 1996 memorandum opinion allowing the Tribe to acquire a land base on the former KCA Reservation in Oklahoma and to enter into certain agreements that would assist the Tribe in establishing equivalent rights in New Mexico.” Id. (emphasis added).

         In Section 7 of the Comanche Nation Settlement Agreement, the parties agreed to several statements, including that the Fort Sill Apache Indian Tribe is the successor-in-interest to the Chiricahua and Warm Springs Apache Tribes with aboriginal lands in Arizona and New Mexico; that the Tribe is a federally recognized Indian tribe; and that the government agreed to process timely an application for a reservation proclamation. Id. ¶¶ 65-70. Years later, on November 28, 2011, the United States issued that proclamation. Id. ¶ 71.

         Following the Comanche Nation Settlement Agreement and its relocation to New Mexico, the Tribe sought to open a gaming location on its Akela Flats territory; in late 2007, the Tribe received a Tribal Gaming Commission license for a Class II gaming facility. Id. ¶¶ 73-74. However, in February 2008, NIGC issued a “Warning Notice” that the Akela Flats casino might be operating in violation of the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (IGRA). Id. ¶ 75.

         The Warning Notice was followed in May 2008 by a written opinion (the 2008 Opinion) by NIGC's general counsel. Id. ¶ 76. The 2008 Opinion concluded that the Akela Flats facility could not meet the requirements of IGRA because “the Tribe has failed to demonstrate . . . that the Tribe was acknowledged through the Federal acknowledgment process.” Id. ¶ 78. The 2008 Opinion further stated that the Tribe had an inadequate presence in New Mexico to qualify for an exception.[1] The Tribe challenged the 2008 Opinion before the Oklahoma district court presiding over the Comanche Nation Settlement Agreement, and, ultimately, NIGC withdrew the 2008 Opinion. Id. ¶ 80.

         Following the withdrawal of the 2008 Opinion, the Tribe resumed plans to operate a gaming facility and opened a casino on April 9, 2009. Id. ¶ 81. A few weeks later, on April 30, 2009, NIGC's General Counsel “supplemented” the withdrawn 2008 Opinion with additional information. Id. ¶ 82. On July 21, 2009, NIGC issued Notice of Violation 09-35 (NOV 09-35) that ordered the Tribe to cease gaming activities. Id. ¶ 83. NOV 09-35 explicitly incorporated the reasoning of the (supposedly withdrawn) 2008 Opinion and its April 30, 2009 supplement. Id. ¶ 83.

         NOV 09-35 stated that there was “no way for the Tribe to cure the alleged violation” and ordered the Tribe to cease gaming activities immediately or face civil fines of up to $25, 000 per day. Id. ¶ 86. On September 11, 2009, NIGC informed the Tribe that it would stay imposition of civil fines if the Tribe agreed to cease gaming operations at Akela Flats during the pendency of the Tribe's appeal of NOV 09-35. Id. ¶ 87. Soon after, the Tribe closed the Akela Flats facility. Id. ¶ 88.

         The Tribe timely appealed NOV 09-35 to the full NIGC. Id. ¶ 91. Following a period of several years without receiving any ruling on that appeal, the Tribe filed its original Complaint in this matter on June 14, 2014. Id. ¶ 98; see Compl. [Dkt. 1].

         On May 5, 2015, NIGC issued its 2015 Decision on the Tribe's administrative appeal of NOV 09-35. SAC ¶ 103. The 2015 Decision upheld NOV 09-35 and adopted much of the reasoning of the 2008 Opinion. Id. ¶ 105. Without notice of the 2015 Decision, this Court issued a Memorandum Opinion dated May 15, 2015, which held that the Court had jurisdiction to compel unreasonably-delayed agency action, and that the Tribe could proceed on that Count. See 5/12/2015 Mem. Op. [Dkt. 19] at 9. The Court held, however, that it did not have jurisdiction to hear the Tribe's claim that NOV 09-35 violated the Administrative Procedure Act, 5 U.S.C. § 500 et seq., because NOV 09-35 did not constitute final agency action. Id. at 10.

         In light of the issuance of NIGC's 2015 Decision and the Court's May 2015 Memorandum Opinion, the Tribe filed a motion to amend its original Complaint, which the Court granted by Minute Order on July 20, 2015. The First Amended Complaint, inter alia, dropped the claim of unreasonable agency delay and reasserted the claim that NIGC had acted arbitrarily and capriciously. First Am. Compl. (FAC) [Dkt. 30] ¶¶ 1, 15-18. The Tribe also added a separate legal claim that the United States had breached the Comanche Nation Settlement Agreement. Id. ¶¶ 8-14.

         Soon after the Tribe amended its Complaint, the parties entered into an extended period of settlement discussions, which lasted well over a year. The Tribe alleges that the Defendants proposed the following arrangement during settlement talks: (1) the Department of Interior would issue a letter providing its formal position regarding the Akela Flats' eligibility for gaming, which was indicated to be positive; (2) with that letter, NIGC would formally reconsider its 2015 Decision; and (3) pending completion of this process, the Tribe would agree to a stay of the litigation in this Court. SAC. ¶ 13. On October 14, 2015, the Court entered a minute order granting the parties' joint motion to stay litigation.

         The stay was extended several times at the request of the parties. The Court held a status conference ten months later, on August 15, 2016, to obtain an explanation. At that conference, the parties proposed that the Court enter an Order to memorialize the agreement described above, with language supplied by the parties.[2] The next day, the parties submitted a Joint Proposed Order which read in material part:

[T]he Department of the Interior (“Interior”) shall issue a letter providing Interior's position regarding the Fort Sill Apache Tribe's gaming eligibility under the Indian Gaming Regulatory Act and certain other matters addressed in the National Indian Gaming Commission's (“NIGC”) Decision and Order dated May 5, 2015, and . . . the NIGC shall reconsider its Decision and Order dated May 5, 2015, in consideration of ...

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