United States District Court, District of Columbia
SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff,
DAVID BERNHARDT, in his official capacity as United States Secretary of the Interior et al., Defendants.
N. McFADDEN, U.S.D.J.
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.
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.
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. 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.
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.
Sault Tribe then filed this suit against the Department and
its Secretary (together, the
“Government”). 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
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.
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.
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.
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.
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).
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.
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.
“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).
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