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Stand Up for California v. U.S. Department of Interior

United States District Court, District of Columbia

October 7, 2019

STAND UP FOR CALIFORNIA! et al., Plaintiffs,
v.
U.S. DEPARTMENT OF INTERIOR et al., Defendants, and WILTON RANCHERIA, CALIFORNIA Intervenor-Defendant.

          MEMORANDUM OPINION

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

         The U.S. Department of the Interior and its Bureau of Indian Affairs (collectively, “Federal Defendants” or the “Department”) agreed to acquire land in trust for the Wilton Rancheria Tribe of California (“Wilton”) to build a casino in Elk Grove, California. Several Elk Grove residents and an advocacy organization, Stand Up for California! (collectively, “Stand Up”), challenge that acquisition.

         In a previous ruling, the Court granted summary judgment to the Department and Intervenor-Defendant Wilton Rancheria (collectively, the “Defendants”) on Counts I and II, which challenged the authority of interim decision-makers to act on Wilton Rancheria's trust application. See Stand Up for Cal! v. U.S. Dep't of Interior, 298 F.Supp.3d 136 (D.D.C. 2018) (“Stand Up I”). Pending here are Stand Up's motion for summary judgment and cross-motions for summary judgment from the Department and Wilton on the remaining counts. Finding that the Department complied with the relevant statutes when it acquired the Elk Grove site, the Court will grant summary judgment for the Department and Wilton and deny it for the Plaintiffs.

         I. BACKGROUND

         In 2013, Wilton asked 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. AR13431; Mem. in Opp. to Pls.' Mot. for Summ. J. and in Supp. of Wilton Rancheria, Cal.'s Cross-Mot. for Summ. J. (“Wilton's Cross-Mot. for Summ. J.”) 18, ECF No. 96; see Am. Compl. ¶ 31, ECF No. 26.[1] The BIA examined the Galt site for three years, along with six alternatives. AR16281; Mem. in Opp. to Pls.' Mot. for Summ. J. and in Supp. of Fed. Defs.' Cross-Mot. for Summ. J. (“Fed. Defs.' Cross-Mot. for Summ. J.”) 12, ECF No. 98-1. The BIA published a notice of the Final Environmental Impact Statement (“Final EIS”) shortly after the November 2016 presidential election, not for the Galt site (Alternative A), but for a different, 36-acre parcel of land in nearby Elk Grove (Alternative F). AR10259; see also FEIS and a Revised Draft Conformity Determination for the Proposed Wilton Rancheria Fee-to-Trust and Casino Project, Sacramento County, Cal., 81 Fed. Reg. 90379 (Dec 14, 2016).

         Stand Up had expected during the years-long process that the Department would acquire land in Galt, not Elk Grove, so they immediately sought to delay the acquisition of title to the Elk Grove land by making several requests to the Secretary of the Interior (the “Secretary”). Am. Compl. ¶¶ 38, 40. When the Department denied Stand Up's requests, they sued 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 in this District denied the motions, after which Stand Up 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. The Environmental Protection Agency (“EPA”) filed a Federal Register notice of the Final EIS, which created a 30-day waiting period that expired January 17, 2019. Environmental Impact Statements; Notice of Availability, 81 Fed. Reg. 91169 (Dec. 16, 2016); Fed. Defs.' Cross-Mot. for Summ. J. 13. Two days after the waiting period expired the Department issued a Record of Decision (“ROD”) approving Wilton's application and authorizing acquisition of the Elk Grove land in trust. AR24430; Fed. Defs.' Cross-Mot. for Summ. J. 13. This was the final day of the Obama Administration.

         After the Court's decision in Stand Up I, Counts III-V remain. See 298 F.Supp.3d at 138. Count III challenges Wilton Rancheria's status as a “recognized Indian tribe now under Federal jurisdiction.” Am. Compl. ¶ 87; 25 U.S.C. § 5129. Count IV alleges that the Elk Grove Site cannot be used for gaming because it does not qualify as “Indian lands.” Am. Compl. ¶¶ 94, 96, 101; 25 U.S.C. § 2703(d). Count V challenges the Department's compliance with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), (D). Am. Compl. ¶¶ 103-104. The parties' cross-motions for summary judgment are now ripe. Pls.' Mot. for Summ. J., ECF No. 91; Wilton's Cross-Mot. for Summ. J., ECF No. 96; Fed. Defs.' Cross-Mot. for Summ. J., ECF No. 98-1.[2]

         II. LEGAL STANDARD

         Summary judgment is usually only appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56. But when a court is reviewing an administrative agency's decision, the standard set out in Federal Civil Procedure Rule 56 does not apply. See Richards v. I.N.S., 554 F.2d 1173, 1177 (D.C. Cir. 1977). Instead, as the parties acknowledge, courts review an agency's decision under the APA. See Ramaprakash v. Fed. Aviation Admin., 346 F.3d 1121, 1124 (D.C. Cir. 2003).

         When a party challenges agency action under the APA, “the district judge sits as an appellate tribunal” and the “entire case on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) (cleaned up). A court must “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 705; Mayo v. Reynolds, 875 F.3d 11, 19 (D.C. Cir. 2017). “Agency action is arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency.'” Mayo, 875 F.3d at 19 (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). A court “must not substitute its own judgment for that of the agency.” Id. at 19-20 (cleaned up).

         III. ANALYSIS

         A. The Plaintiffs Have Standing to Sue

         The Court begins by considering Article III standing. At least one plaintiff “must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be redressed by a favorable ruling.” Dep't of Commerce v. New York, 139 S.Ct. 2551, 2565 (2019) (internal quotations omitted). Stand Up has standing “if one of its members has standing.” Safari Club Int'l v. Jewell, 842 F.3d 1280, 1285 (D.C. Cir. 2016).

         Plaintiffs Joe Teixeira, Patty Johnson, and Lynn Wheat are all residents of Elk Grove, who claim harm “by the decision to acquire land in trust and the environmental impacts of the proposed action.” Am. Compl. ¶ 8. Stand Up for California! itself, meanwhile, includes Elk Grove residents who “will be affected by the environmental and economic impacts of the Rancheria's proposed trust acquisition and tribal casino.” Id. ¶ 9. They seek declaratory and injunctive relief in the form of a court order “directing Defendants to invalidate the [Record of Decision] and record a rescission of the February 10, 2017 acceptance of the grant deed, in order to remove the Elk Grove Site from trust.” Id. ¶¶ 1, 7. Thus, they meet all three standing requirements. The Defendants do not argue otherwise.[3]

         B. Count III: Wilton is a Federally Recognized Tribe

         After granting summary judgment to the Defendants on Counts I and II in Stand Up I, 298 F.Supp.3d at 138, the Court now addresses Count III, which challenges Wilton Rancheria's legal status as a federally recognized Indian tribe. Am. Compl. ¶ 87. To analyze this claim, one must retrace Wilton's history.

         The historic Wilton Rancheria was in Sacramento County, on land acquired for it by the federal government. Am. Compl. ¶ 26. Then, in 1958, roughly 30 years after the government acquired the Rancheria, Congress enacted the California Rancheria Act (“CRA”), which authorized the termination of Wilton Rancheria and 40 other California tribes. Pub. L. No. 85-671, 72 Stat. 619 (amended 1964). The CRA stated that, “After the assets of a rancheria or reservation have been distributed pursuant to this Act, the Indians who receive any part of such assets, and the dependent members of their immediate families shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians.” CRA § 10(b), 72 Stat. at 621.

         But that was not the end of the rancheria saga. Congress later “expressly repudiated the policy of terminating recognized Indian tribes” by enacting the Federally Recognized Indian Tribe List Act of 1994 (“List Act”), Pub. L. No. 103-454, § 103, 108 Stat. 4791. The List Act expressed Congressional intent “to restore recognition to tribes that previously have been terminated.” Id. It directed the Secretary of the Interior to keep “a list of all federally recognized tribes” in the United States. Id. And along with other authorizing laws, Congress delegated to the Secretary the authority to decide “whether groups have been federally recognized in the past or whether other circumstances support current recognition.” Mackinac Tribe v. Jewell, 829 F.3d 754, 757 (D.C. Cir. 2016) (citing 25 U.S.C. § 2). The List Act also said that an Indian tribe may be recognized “by a decision of a United States court, ” which “may not be terminated except by an Act of Congress.” List Act § 103, 108 Stat. at 4791.

         Under that authority, ten years ago, the Department and the Wilton Rancheria entered into a stipulated judgment in the Northern District of California restoring Wilton Rancheria as a federally recognized tribe. See AR596-621; Stipulation and Order for Entry of Judgment, Wilton Miwok Rancheria v. Salazar, No. 5:07-cv-02681-JF (N.D. Cal. June 8, 2009), ECF No. 61. The Department issued a Federal Register notice relieving Wilton Rancheria from “the application of section 10(b) of the [CRA]” and entitling the tribe to “the same status as it possessed prior to distribution of the assets of the Rancheria.” Restoration of Wilton Rancheria, 74 Fed. Reg. 33468-02 (July 13, 2009). The federal government's list of recognized tribes now includes Wilton. See Indian Entities Recognized by and Eligible to Receive Services From the U.S. Bureau of Indian Affairs, 84 Fed. Reg. 1200-01, 1204 (Feb. 1, 2019).

         In the Indian Reorganization Act (“IRA”) of 1934, Congress delegated to the Department authorization to acquire land in trust “for the purpose of providing land for Indians.” 25 U.S.C. § 5108. The term “Indian” under the IRA includes “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” Id. § 5129. 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.

         Stand Up makes, in its words, a “straightforward” argument that the CRA precludes the Federal Defendants' trust acquisition. Pls.' Reply Mem. 9, ECF No. 100. In its final form, that argument goes like this: The CRA says that “all statutes of the United States which affect Indians because of their status as Indians” do not apply to Indians who received “the assets of a rancheria or reservation” under the Act. Id.; see CRA § 10(b), 72 Stat. at 621. Indians in Wilton received rancheria assets under the CRA. Pls.' Reply Mem. 9. The Department thus violated the CRA when it acquired land in trust for the Wilton Rancheria under Section 5 of the IRA. Id. at 9-10; see 25 U.S.C. § 5108. The stark language of the CRA buttresses Stand Up's argument.

         But the Department and Wilton challenge Stand Up's second premise and argue that the stipulated judgment between the Department and Wilton restored the tribe to the same status it held before the rancheria assets were distributed under the CRA. Fed. Defs.' Reply Mem. 6, ECF No. 104; Wilton's Reply Mem. 8-9, ECF No. 103. Wilton notes that the CRA “only applies to a rancheria once its assets ‘have been distributed pursuant to this Act.'” Wilton's Reply Mem. 8-9 (quoting CRA § 10(b)). And the judgment said expressly that Wilton “was not lawfully terminated, and the Rancheria's assets were not distributed, in accordance with the provisions of the [CRA].” AR602. The judgment even addressed trust land, stipulating that “The Department of the Interior will process . . . any applications for land into trust for any parcels of land acquired by the Tribe.” AR605. The Defendants have the better argument here. Under the plain terms of the stipulated judgment, the CRA does not apply to Wilton.

         And that is not all. Congress authorized restoration for “tribes that previously have been terminated.” List Act § 103, 108 Stat. at 4791. More, the List Act specifically prescribed “a decision of a United States court” as one of the methods for tribal recognition. Id. So even if the CRA did strip Wilton of its tribal status, the List Act and the stipulated judgment relieved Wilton from “the application of section 10(b) of the [CRA]” and entitled the tribe to “the same status as it possessed prior to distribution of the assets of the Rancheria.” 74 Fed. Reg. 33468-02. To the extent that there is a conflict between the 1958 CRA and 1994 List Act, of course the more recent statute prevails. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000).

         In earlier filings, Stand Up appeared to challenge the 2009 settlement itself, arguing that the Department “cannot violate a federal statute because it agreed to the action by stipulation, ” and characterizing the settlement agreement as a violation of federal law. Pls.' Mot. for Summ. J. 20 & n.4. But their Reply Brief clarifies that they do not challenge the settlement itself, and they now assert that the settlement cannot restore rights that the CRA revoked. See Pls.' Reply Mem. 12 (“[T]he Plaintiffs did not challenge-and did not need to challenge-Wilton's status as a federally recognized tribe to assert that BIA lacks authority to acquire the Elk Grove Site in trust.”). By going all in on the CRA argument, Stand Up has abandoned its attack on the settlement agreement.[4]

         This is a difficult line for Stand Up to walk, however. After all, Congress specifically authorized the restoration of terminated tribes to their pre-CRA status. See List Act § 103, 108 Stat. at 4791. And the court judgment reset the CRA's effects, stipulating that Wilton “was not lawfully terminated, and the Rancheria's assets were not distributed, in accordance with the provisions of the [CRA].” AR602. If one accepts the stipulated judgment, one must also accept that it carried out Congressional intent to undo the purported termination of Wilton's status under the CRA. After conceding the settlement's legitimacy, Stand Up reveals its own argumentative flaw: even if the syllogism is valid, Stand Up's conclusion does not follow.

         Stand Up is no new fish to the casino litigation scene. They recently brought a challenge to a similar stipulated judgment involving the North Fork Tribe. See Stand Up for California! v. Dep't of Interior (“North Fork”), 204 F.Supp.3d 212 (D.D.C. 2016), aff'd, 879 F.3d 1177 (D.C. Cir. 2018). In dismissing Stand Up's challenge, Chief Judge Howell noted that North Fork's stipulated judgment reflected the coordinated judgment of all three branches of the federal government. Id. at 300-301. The executive and judiciary “validated the existence of the North Fork Tribe and found the Tribe to qualify appropriately as a recognized Indian tribe, ” id. at 300, and Congress sanctioned that judgment through the List Act. See Id. at 300-301; List Act § 103(3). The result in North Fork was that the tribe “as a federally recognized Indian tribe, has the benefit of land acquisition under § 465 of the IRA, like any other federally recognized tribe.” 204 F.Supp.3d at 301. So too here. There is no basis to invalidate the Department's land acquisition for Wilton; it rests on the tripartite authority of the entire federal government. The Court will grant summary judgment to the Defendants as to Count III.

         C. Count IV: The Department May Acquire Gaming Land for Wilton

         1. Stand Up Lacks Standing to Assert its Encumbrances Claim

         Count IV challenges the Department's authority to acquire land for Wilton under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701, et seq. The IGRA “provide[s] a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” Id. § 2702(1).

         Stand Up argues that encumbrances on the Elk Grove site prevent it from qualifying as “Indian lands” under the IGRA, defined as “any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.” 25 U.S.C. § 2703(4); see Pls.' Mot. for Summ. J. 45. Stand Up claims that the Department violated the APA by failing to resolve the encumbrances. Pls.' Mot. for Summ. J. 45. But Stand Up lacks Article III standing to assert this because they do not have an interest in the Department's title examination process. See AR14062-63; New York, 139 S.Ct. at 2565.

         The Department's regulations do not require that all encumbrances be eliminated before acquiring land. The key question is whether the Secretary “determines that the liens, encumbrances or infirmities make title to the land unmarketable.” 25 C.F.R. § 151.13(b). If title will be unmarketable, the Secretary “shall require elimination” of the encumbrances before “taking final action on the acquisition.” Id. (emphasis added). But if the Secretary concludes title will remain marketable despite the liens, encumbrances, or infirmities, elimination is discretionary. Id.

         The Department noted in its ROD that the purpose of title evidence “is to ensure that the Tribe has marketable title to convey to the United States, thereby protecting the United States.” AR14064 n.198; see also Title Evidence for Trust Land Acquisitions, 81 Fed. Reg. 30173-02, 30174 (May 16, 2016). The Department also found that title examination “is separate from the process of deciding whether to accept land in trust in the first place, ” and that “only the United States has an interest in ensuring its own compliance with the title examination process.” AR14063-64.

         Stand Up rests their challenge on the vindication of private property rights. Pls.' Mot. for Summ. J. 45 (“To the extent that proposed trust land might include private rights (e.g., easements, right-of-way, etc.), it is critical that those property rights be protected.”). But not their own. See Fed. Defs.' Cross-Mot. for Summ. J. 43. Recall that standing requires “an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be redressed by a favorable ruling.” New York, 139 S.Ct. at 2565.

         Stand Up lacks standing because they have not suffered an “injury in fact.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As the Department correctly argues, “a plaintiffs' injury in trust challenges typically derives from the decision to accept land in trust, not from the title examination that precedes the formal conveyance of title.” Fed. Defs.' Cross-Mot. for Summ. J. 43-44. Accord Upstate Citizens for Equal., Inc. v. Jewell, No. 5:08- CV-0633 LEK, 2015 WL 1399366, at *12 (N.D.N.Y. Mar. 26, 2015) (“Plaintiffs' alleged injuries are caused by the decision to acquire the land into trust, and not by the title examination procedures.”), aff'd sub nom., Upstate Citizens for Equal., Inc. v. United States, 841 F.3d 556 (2d Cir. 2016). Stand Up does not have an interest in either the land acquisition or the title examination process, instead challenging the Department's review based on evidence that Wilton and the Department recognized encumbrances as obstacles to clean title. See Id. at 45-46; AR213-15, AR1206, AR3386-87, AR3752. This is not a concrete and particularized injury. See New York, 139 S.Ct. at 2565.

         The APA “grants standing to a person ‘aggrieved by agency action within the meaning of a relevant statute.'” Assoc. of Data Proc. Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970) (quoting 5 U.S.C. § 702). And it is well settled that plaintiffs like Stand Up can challenge land-into-trust acquisitions under the IGRA and the Department's regulations when they have an interest in the land. See, e.g., Amador County, Cal. v. Salazar, 640 F.3d 373, 379 (D.C. Cir. 2011). But the Department's title examination is different because unlike a land acquisition, clean title affects only the United States, not the “surrounding community.” See Id. Under the Department's regulations, the Secretary must obtain title evidence, but retains discretion to resolve liens, encumbrances, or infirmities. 25 C.F.R. § 151.13. So while the Department's land acquisition itself might encroach on property rights or the public's land use, infirm title affects only the United States. Title Evidence for Trust Land Acquisitions, 81 Fed. Reg. at 30174. Recognizing this, the ROD rejected public participation precisely because title review ensures that “the title actually taken does not expose the United States to liability.” AR14064.

         Stand Up's claims against the Department's title review exceed the limits of the standing doctrine. “NEPA, of course, is a statute aimed at the protection of the environment.” ANR Pipeline Co. v. FERC, 205 F.3d 403, 408 (D.C. Cir. 2000). And the APA confers a right of judicial review for those wronged by agency action, including those in violation of NEPA. See 5 U.S.C. § 702. But parties cannot challenge an agency's internal processes when they are of no direct consequence to the challenger. To extend standing as far would be hardly different than conferring standing on the rejected basis of “informational injury, ” ...


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