D.C. Circuit – Page 18

Some very striking comments from the judges on the ability of outsiders to challenge the viability of gaming compacts between tribes and states, especially the import of the Patchak case. Worth a read.

Here is our post on the opinion in Amador County.

D.C. Circuit Affirms Convictions of David Safavian (Abramoff Associate)

May 14, 2011May 13, 2011Matthew L.M. Fletcher

Here is the opinion.

D.C. Circuit Reverses Dismissal of Amador County Challenge to Gaming Compact Approval re: Buena Vista Me-Wuk

May 6, 2011Matthew L.M. Fletcher1 Comment

Here is today’s opinion in Amador County v. Salazar. Briefs are here. Lower court materials are here.

An excerpt:

Pursuant to the Indian Gaming Regulatory Act, the Buena Vista Rancheria of Me-Wuk Indians entered into a compact with the state of California to engage in gaming on its tribal land and then petitioned the Secretary of the Interior for approval of that compact. Under the Act, “[i]f the Secretary does not approve or disapprove a compact . . . [within] 45 days . . . the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of” the Act. 25 U.S.C. § 2710(d)(8)(C). In this case, the Secretary took no action within forty-five days, thus allowing the compact to become effective. Amador County, in which the Buena Vista Tribe’s land is located, challenged the Secretary’s “no-action” approval, claiming that the land fails to qualify as “Indian Land”—a statutory requirement for gaming. Although the district court rejected the Secretary’s argument that Amador County lacked standing, it dismissed the suit, finding the Secretary’s inaction unreviewable under several provisions of the Administrative Procedure Act. Amador County now appeals. We agree with the district court that the County has standing, but because we conclude that the Secretary’s inaction is in fact reviewable, we reverse and remand for the district court to consider the merits in the first instance.

D.C Circuit Reverses Dismissal of Seneca Indian’s Challenge to PACT Act

February 19, 2011Matthew L.M. Fletcher

Here is the opinion in Gordon v. Holder.

An excerpt:

Plaintiff-Appellant Robert Gordon is a Seneca Indian and a delivery seller of tobacco products. As a delivery seller, Gordon distributes his products by mail, rather than through abrick-and-mortar retail store. See 15 U.S.C. § 375(5)–(6). Prior to the PACT Act, ninety-five percent of Gordon’s business came from the sale of tobacco by internet and phone. But since the Act’s passage, Gordon claims he has lost almost all of his business due to the remedial measures Congress enacted.

Patricia Millett Commentary on D.C. Circuit’s Patchak Decision

January 31, 2011February 1, 2011Matthew L.M. Fletcher4 Comments

Commentary on Patchak v. Salazar et al., No. 09-5324.

On January 21, 2011, the United States Court of Appeals for the District of Columbia Circuit disagreed with three other federal circuits and held that sovereign immunity is waived for a challenge to a Department of the Interior decision to take land into trust for an Indian tribe, so long as the plaintiff itself is not claiming title to the land. The decision is Patchak v. Salazar et al., No. 09-5324. Because Interior can usually be sued in the District of Columbia, Patchak not only creates a circuit split but also opens a ready forum for future challenges to trust acquisitions. This opening of the courthouse doors for suits against the United States makes a petition for rehearing en banc and, if unsuccessful, a petition for certiorari by the Solicitor General highly likely.

Patchak, an individual plaintiff, filed suit claiming that Interior’s decision to take land into trust for the Match-e-be-nash-she-wish Band of Pottawatomie (Gun Lake Tribe) in Michigan was ultra vires and contrary to statute. After Patchak unsuccessfully sought to enjoin the acquisition pending resolution of his complaint, Interior took the land into trust, and the district court dismissed the suit for lack of standing. On appeal, the D.C. Circuit reversed on the standing issue and addressed the United States’ claim of sovereign immunity under the Quiet Title Act. Until now, all three circuits that have addressed the issue (the Ninth, Tenth, and Eleventh) have held that the Quiet Title Act, 28 U.S.C. § 2409a, bars suits like Patchak’s. See Fla. Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248, 1253-55 (11th Cir. 1985); Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-63 (10th Cir. 2004); Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 143-44 (9th Cir. 1987). The Quiet Title Act allows suits “under this section to adjudicate a disputed title to real property in which the United States claims an interest,” and specifically excludes “trust or restricted Indian lands.” Courts have read this language as barring all after-the-fact challenges to the United States’ trust acquisitions for Indian tribes—notwithstanding the general waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, for actions seeking non-monetary relief against official agency action.

Rejecting this analysis, the D.C. Circuit examined the language and history of the Quiet Title Act and held that Patchak’s claim challenging the legality of the trust acquisition was not a “quiet title” action at all, because Patchak did not claim title to the lands at issue. Therefore, the Court reasoned, his suit was not covered by the Quiet Title Act or its “Indian lands” exception. In so holding, the D.C. Circuit identified and disagreed with two rationales relied on by other circuits. One is that the legislative history of the Indian lands exception to the Quiet Title Act cites the federal government’s obligations to Indian tribes. The D.C. Circuit reasoned that this spoke only to the need to exclude certain quiet title actions from the Act—not to whether a particular suit is a quiet title action. The other rationale is that Congress would have had no reason to allow suits by persons not claiming a title interest if it barred suits by those who do. The D.C. Circuit held that because the APA waiver in § 702 was enacted (in 1976) after the Quiet Title Act (in 1972), suits by persons not claiming title would not have been contemplated at all when the Quiet Title Act was passed. Thus, it reasoned, the Quiet Title Act does not speak to this distinction, and § 702 controls.

The breach in precedent protecting its immunity that Patchak opened will likely be of acute concern to the Justice Department. That, combined with the clear conflict in the circuits, is likely to prompt the Solicitor General to seek rehearing en banc in the D.C. Circuit (which is rarely granted) and, if that does not succeed, to take its case to the Supreme Court. The fact that the case is interlocutory is unlikely to pose a barrier. The Supreme Court generally allows interlocutory review of sovereign immunity claims, Puerto Rico Aqueduct & Sewer Auth., v. Metcalfe & Eddy, Inc., 506 U.S. 139 (1993), and it has granted certiorari to review interlocutory Quiet Title Act claims in the past, see United States v. Mottaz, 476 U.S. 834 (1986).

* * *

Continue reading →

D.C. Circuit Refuses to Allow Judicial Review of Government Decision Not to Remediate Uranium Contamination

January 28, 2011Matthew L.M. Fletcher1 Comment

Here is the opinion in El Paso Natural Gas Co. v. United States.

Excerpts:

This case concerns two sites on Navajo tribal lands that the Navajo Nation alleges were contaminated by World War II and Cold War era uranium mining. Pursuant to the Uranium Mill Tailings Remediation and Control Act (UMTRCA), which created a mechanism to cleanup after such activities, the Navajo Nation asked the Department of Energy to remediate both sites. The department refused, and the district court declined to review that decision, relying on a provision of UMTRCA stating that “designations made, and priorities established, by the Secretary under this section shall be final and not subject to judicial review.” For the reasons set forth in this opinion, we affirm.

And:

Finally, we address two concerns raised at oral argument by counsel for the Navajo Nation. First, he urged us to employ the canon of statutory interpretation directing courts to liberally construe statutes in favor of Native Americans.Recording of Oral Arg. at 15:48–16:10; Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). This canon, however, has force only where a statute is ambiguous, id.;Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444–45(D.C. Cir. 1988), and as we have explained, section 7912(d), read in light of UMTRCA’s other provisions, is unambiguous.In addition, even were section 7912(d) ambiguous, the presumption applies only to statutes “passed for the benefit of dependent Indian tribes.” Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78, 89 (1918) (interpreting the scope of land included in a reservation created by congressional act); see also San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306, 1312 (D.C. Cir. 2007) (noting that “[w]e have found no case in which the Supreme Court applied this principle of pro-Indian construction when resolving the ambiguity in a statute of general application.”). Here, UMTRCA’s statement of purpose reveals that Congress passed the statute to protect public health in general rather than tribal health in particular.See § 7901(b) (“The purposes of this chapter are to . . . minimize or eliminate radiation health hazards to the public[.]”).