Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         The Sault Ste. Marie Tribe of Chippewa Indians (the “Sault Tribe”) seeks to compel the U.S. Department of the Interior to take certain parcels of land into trust for it. Before the Court are motions to intervene from the Saginaw Chippewa Indian Tribe of Michigan (the “Saginaw Tribe”) and the Nottawaseppi Huron Band of the Potawatomi (“NHBP” and, with the Saginaw Tribe, the “Intervenor Tribes”). MGM Grand Detroit, L.L.C., Detroit Entertainment, L.L.C., and Greektown Casino, L.L.C. (collectively, the “Casinos”) also seek to intervene. Because the Intervenor Tribes and the Casinos have shown that they have standing to intervene, and because they meet the intervention requirements of Federal Rule of Civil Procedure 24, the Court will grant their motions.

         I.

         The Michigan Indian Land Claims Settlement Act (“MILCSA”) governs the division, use, and distribution of money judgments awarded by the Indian Claims Commission to tribes in Michigan. See MILCSA, Pub. L. No. 105-143, 111 Stat. 2652 (1997). Section 108 of MILCSA established a trust fund for the Sault Tribe comprised in part of these money judgments. 111 Stat. at 2660. Interest and other investment income from this fund can be used “for consolidation or enhancement of tribal lands.” Id. at 2661. MILCSA also provides that “[a]ny lands acquired using amounts from interest or other income of the [trust fund] shall be held in trust by the Secretary [of the Interior] for the benefit of the tribe.” Id. at 2662.

         Relying on these provisions, the Sault Tribe submitted two requests to the U.S. Department of the Interior (the “Department”) to take parcels of land into trust. Compl. 12, ECF No. 1.^[1] Though the tribe's land and members are located mainly in Michigan's Upper Peninsula, the parcels it asked the Department to take into trust are in the Lower Peninsula. Id. at 10-11. The tribe intends to open casinos on this land. Id. at 11.

         The Department denied the Sault Tribe's requests. Id. at 18. It found that the tribe failed to establish that “acquisition of the Parcels would effect the consolidation or enhancement of tribal lands.” Compl. Ex. VI at 2, ECF No. 1-6. The Department explained that the parcels of land are roughly 300 miles away from the tribe's headquarters and that the tribe had not shown how the parcels would enhance the value of its existing landholdings. Id. at 3-4. The Department added that “parcels must be contiguous to effect a ‘consolidation,' and consolidation of the Tribe's position is not the same as a ‘consolidation . . . of tribal lands' as required by MILCSA.” Id. at 2 n.9.

         The Sault Tribe then filed this suit against the Department and its Secretary (together, the “Government”).^[2] It alleges that the Department lacks the authority to determine whether a land purchase is a “consolidation or enhancement of tribal lands.” Compl. 23-24. It also argues that the “Department's geographic-proximity requirement” is “unreasonable, inconsistent with any sensible construction of Section 108 of MILCSA, and arbitrary and capricious” in violation of the Administrative Procedure Act (the “APA”). Id. at 24. Based on these and other arguments, the Sault Tribe asks the Court to vacate the Department's denial and order it to take the parcels of land into trust. See id. at 25-30.

         The Intervenor Tribes and the Casinos seek to join the case as defendants. The Casinos, operating in Detroit, argue that the proposed casinos would be close enough to their own facilities to “divert a substantial portion of [their] customers and the associated revenues.” Mot. for Leave to Intervene at 5, ECF No. 18-1 (“Casinos' Mot.”). They contend that they have a legally protectable interest in being free from this increased competition and that their economic interests would be impaired if the Court grants the tribe the relief it seeks. Id. And the Casinos suggest that the Department will not adequately represent their private commercial interests given its role as an advocate for the public and for its own governmental interests. Id.

         Like the Casinos, the Intervenor Tribes assert a need to intervene to protect their economic interests. See Mot. to Intervene at 8-9, ECF No. 16-1 (“Saginaw Tribe's Mot.”); Mot. to Intervene as a Def. at 8, 10, ECF No. 20 (“NHBP's Mot.”). The Intervenor Tribes also argue that they have an interest in ensuring that the MILCSA and state agreements through which Indian tribes in Michigan operate casinos are interpreted correctly. See Saginaw Tribe's Mot. at 14-15; NHBP's Mot. at 11-12.

         The Sault Tribe opposes the motions to intervene. It argues that the proposed casino will not be a direct and immediate result of any decision taken by this Court, and that “a general interest in blocking potential future gaming does not satisfy” the intervention requirements set forth in Federal Rule 24. Pl.'s Opp. to Proposed Intervenors' Mots. to Intervene at 24, ECF No. 28 (“Pl.'s Opp.”) (emphasis in original). The tribe also suggests that state agreements about gaming are “irrelevant, ” as they have “no bearing on the proper application of MILCSA.” Id. at 25.

         The Government opposes only the Casinos' motion. See Fed. Defs.' Opp. to the Detroit Casinos' Mot. to Intervene, ECF No. 29 (“Defs.' Opp.”). It contends that an economic injury “which results from lawful competition cannot, in and of itself, ” confer standing on the Casinos to intervene. Id. at 7. Like the Sault Tribe, the Government argues that a potential order in favor of the tribe would constitute “at most, the first step in the direction of future competition.” Id. at 8. And the Government believes that it will adequately represent the interests of the Casinos, as they “share the same ultimate objective: to uphold Interior's decision.” Id. at 9.

         II.

         Federal Rule of Civil Procedure 24 establishes two paths to intervention. A party has the right to intervene when it “claims an interest relating to the property or transaction that is the subject of the action” and “disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2).

         To intervene as a matter of right, the moving party must meet four requirements. First, “the application to intervene must be timely.” SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998). Second, the movant “must demonstrate a legally protected interest in the action.” Id. Third, “the action must threaten to impair that interest.” Id. And fourth, the movant must show that no existing party to the action “can be an adequate representative of the [movant's] interests.” Id.

         Rule 24 also provides the Court discretion to permit a party to intervene if the it “has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). Permissive intervention “is an inherently discretionary enterprise” that affords the Court “wide latitude.” EEOC v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998). Like intervention as a matter of right, permissive intervention requires a timely motion. Id. It also requires an independent ground for subject matter jurisdiction. Id.

         Because “a Rule 24 intervenor seeks to participate on an equal footing with the original parties to the suit, [it] must satisfy the standing requirements imposed on those parties.” City of Cleveland v. Nuclear Regulatory Comm'n, 17 F.3d 1515, 1517 (D.C. Cir. 1994). Thus, the intervenor must, to establish Article III standing, allege an injury in fact that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013). A potential intervenor's Article III standing “presents a question going to this [C]ourt's jurisdiction” and is thus addressed first. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732 (D.C. Cir. 2003).

         III.

         The Intervenor Tribes and the Casinos have established standing to intervene. Consider first the Intervenor Tribes. NHBP alleges that if the Sault Tribe “puts casinos in [the planned locations], NHBP would lose approximately 30 percent of the market for its FireKeepers casino in Battle Creek-nearly $100 million annually in gross revenue-and would have to lay off nearly 500 employees.” NHBP's Mot. at 8. It contends that, should the Court order the Department to ...