United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
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.
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
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. 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).
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.
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.
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.
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).
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).
The Plaintiffs Have Standing to Sue
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.
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.
Count III: Wilton is a Federally Recognized Tribe
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.
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.
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.
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,
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.
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
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
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).
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
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.
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 IV: The Department May Acquire Gaming Land for
Stand Up Lacks Standing to Assert its Encumbrances
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).
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.
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.
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
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.
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.
“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
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, ” ...