MEMORANDUM OPINION
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
This
opinion will bore all but the litigating parties because it
must recall so much of the procedural history of the case. In
sum, the present question is whether the December 9, 2016
letter from the Solicitor of the Department of the Interior
to the General Counsel of the National Indian Gaming
Commission remains privileged and confidential, which bars
the Fort Sill Apache Tribe, whose lands are the subject
matter of the letter, from reviewing or appreciably
contesting it.
The
government asserts that the December 9, 2016 letter
(Solicitor's Letter) is a predecisional and deliberative
document, but its very terms-provided ex parte to
the Court- demonstrate that it was a final and considered
direction to the National Indian Gaming Commission (NIGC)
from the top legal officer at the Department of the Interior
(Interior or DOI). The government further argues that the
Solicitor's Letter is protected by the attorney work
product doctrine, the attorney-client privilege, and is a
confidential settlement communication. Only the
attorney-client privilege warrants discussion.
As
detailed below, the Solicitor's Letter was the outcome of
an extensive negotiation process among the Chairman of NIGC;
the United States of America; DOI; Secretary S.M. Jewell, now
Secretary Ryan Zinke, of DOI; the DOI Assistant
Secretary-Indian Affairs; the DOI Solicitor; the Department
of Justice (DOJ); and the Fort Sill Apache Tribe (the Tribe).
It is now more than four years since the Tribe first
sued to obtain government action after years of delay. To
have DOJ and DOI choose to assert the attorney-client
privilege for the Solicitor's Letter, even though they
usually waive that privilege for Indian lands opinions, is
extraordinarily frustrating for the Tribe.
Nonetheless,
the government is entitled to assert the privilege. Having
done so here, its privilege protects the Solicitor's
Letter from publication. Other than the Solicitor's
Letter, however, the Court will grant the Tribe's request
to complete the record with materials indirectly considered
by NIGC.
I.
FACTS
The
Fort Still Apache Tribe in New Mexico are descendants of the
Apache led by the American Indian warrior Geronimo. It has a
storied history that should shame the United States: once
defeated, the Tribe was forced from its aboriginal lands in
New Mexico to imprisonment in Florida under horrible
conditions, then to imprisonment in Alabama under horrible
conditions, and then to imprisonment in Fort Sill, Oklahoma.
These and other details may be critical to a final decision
in this matter. For now, it is sufficient to note that the
Fort Sill Apache Tribe was listed in 1979 on the first
published list of tribes officially recognized by the United
States Government.
The
Fort Sill Apache have long desired to operate a casino at
Akela Flats, New Mexico, which is part of its proclaimed
reservation in that State. When it opened a gaming facility
at Akela Flats in April 2009, the Chairman of NIGC issued a
Notice of Violation (NOV) asserting that the Tribe had
violated the Indian Gaming Regulatory Act (IGRA), 25 U.S.C.
§§ 2701, 2719, because the lands were ineligible
for gaming. Pending an expedited appeal to the full
Commission, the Tribe shuttered the casino. When, after five
years the Commission had not yet issued any decision, the
Tribe sued in 2014 for unreasonable delay in violation of the
Administrative Procedure Act (APA), 5 U.S.C. § 551
et seq. By opinion issued on May 12, 2015, this
Court refused to dismiss the lawsuit, see Fort Sill
Apache Tribe v. NIGC, 103 F.Supp.3d 113 (D.D.C. 2015)
(Ft. Sill I), and three days later the Commission
finally decided that the lands at Akela Flats were ineligible
for gaming. Ex. 1, First Am. Compl., Decision and Order (2015
Decision) [Dkt. 30-1]. The Tribe amended its Complaint to
allege that the NIGC 2015 Decision was arbitrary and
capricious and in violation of law. See First Am.
Compl. [Dkt. 30]; see also Second Am. Compl. [Dkt.
80].
The
parties then turned their attention to settlement efforts.
The Court belabors this history because it illustrates the
constant delays:
• 10/13/15 Joint Motion to Stay (30 days) for settlement
discussions among the Chair, NIGC; United States; Department
of Interior (DOI); S.M. Jewell, Secretary, DOI; Kevin
Washburn, DOI Assistant Secretary, Indian Affairs; Board of
Indian Affairs; DOI Solicitor's Office; Department of
Justice (DOJ) and the Tribe [Dkt. 42];
• 11/16/14 Jt. Motion to Continue Stay (30 days) [Dkt.
43];
• 12/16/15 Jt. Motion to Continue Stay (90 days) [Dkt.
44];
• 2/01/16 Jt. Status Report and Motion to Continue Stay
(47 days) [Dkt. 45];
• 3/17/16 Jt. Motion Nunc Pro Tunc to Continue
Stay (91 days) [Dkt. 46];
• 6/1/16 Jt. Motion to Continue Stay (76 days) [Dkt.
47];
• 7/6/16 Jt. Motion to Stay (35 days) [Dkt. 48];
• 8/15/16 Court-ordered Status Conference;
• 9/16/16 Telephone conference ...