D.C. District Court – Page 15

Seneca Nation Wins Large Contract Dispute With DHS On Summary Judgment

May 30, 2013May 29, 2013Kate Fort

Opinion here.

The Seneca Nation of Indians administers its own healthcare system through a self-determination contract with the Indian Health Service under the Indian Self-Determination and Education Assistance Act. The Nation submitted a contract amendment to the Indian Health Service to adjust the number of persons to be serviced under the contract and, as a result, to increase the funding provided to the Nation for fiscal years 2010 and 2011. IHS did not respond to the proposal within the 90 days as required by statute, and the Nation contends that its proposed amendment automatically became part of its contract with IHS upon the lack of a timely response. The Secretary of the Department of Health and Human Services, of which IHS is a constituent part, disagrees. The parties have briefed cross-motions for summary judgment, and the matter is ripe for decision. For the reasons set forth below, the Nation’s motion for summary judgment will be granted.

***

The Nation’s argument is forceful in its simplicity, in its support in the undisputed evidence, and in its grounding in the unambiguous terms of the Contract, the statute, and the regulations. “In the April 29 Proposal Letter, the Nation proposed in plain terms to amend the Nation’s FY 2010 Agreement to increase funding by $3,774,392, plus interest . . . [and i]n the same letter, the Nation . . . proposed an identical amendment to the Nation’s FY 2011 Agreement.” Pl. MSJ 9–10. “The IHS Nashville Office received the April 29 Proposal Letter . . . on May 2, 2011 . . . [but t]he ninety (90) day period expired before August 3, 2011, without any response during that time by the Secretary or any other officer of the Department to the Nation’s proposed amendments other than a May 4, 2011 e-mail acknowledging that ‘[w]e are in receipt of your [April 29 Proposal Letter] and have made assignments to provide you with a response as soon as possible.’” Id. at 10 (quoting E-mail Chain at 6). According to the Nation, its proposals thus automatically became part of the Contract under 25 U.S.C. § 450f(a)(2) and 25 C.F.R. § 900.18

D.C. Circuit Decides “Old Section 81” Case

April 30, 2013Matthew L.M. Fletcher2 Comments

Here is the opinion in Quantum Entertainment Limited v. Department of the Interior:

Quantum Entertainment v Dept of Interior

Briefs are here.

Lower court materials are here.

More Contract Support Costs Suits against Indian Health Service

April 19, 2013Matthew L.M. Fletcher

Here:

Seminole Complaint

St. Croix Complaint

Menominee Sues IHS over Contract Support Costs

April 15, 2013April 12, 2013Matthew L.M. Fletcher

Here is the complaint in Menominee Indian Tribe v. United States (D. D.C.):

Complaint

Federal Court Rejects Challenge to Interior’s Denial of Historic Eastern Pequots Federal Recognition Petition

April 2, 2013Matthew L.M. Fletcher

Here are the materials in Historic Eastern Pequots v. Salazar (D. D.C.):

DCT Order Dismissing Complaint

Historic Eastern Pequot Complaint

Interior Motion to Dismiss

Connecticut Amicus Brief

Plaintiffs’ Opposition

Interior Reply

Chukchansi v. NIGC Complaint

April 1, 2013Matthew L.M. Fletcher2 Comments

Here is the complaint in Picayune Rancheria of Chukchansi Indians v. Stevens (D. D.C.):

Chukchansi Complaint

An excerpt:

This is a civil action against the United States National Indian Gaming Commission and its officials (collectively, the “Chairwoman,” the “Commission,” the “NIGC,” or “Defendants”) under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq. and 701, et seq., seeking mandamus and related relief compelling the Commission to comply with its statutory duty to approve and publish gaming ordinance amendments submitted by the Picayune Rancheria of the Chukchansi Indians (“Tribe”).

Federal Court Holds Interior Secretary Retains Authority to Make Trust Land Acquisitions for Alaska Natives

April 1, 2013Matthew L.M. Fletcher4 Comments

Here are the materials in Akiachak Native Community v. Salazar (D. D.C.):

DCT Order Granting Summary J to Plaintiffs

Akiachak et al Motion for Summary J

DOI Motion for Summary J

DOI Supplemental Brief

Akiachak Supplemental Reply Brief

An excerpt:

Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior’s decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5of the Indian Reorganization Act, 25 U.S.C. § 465; it provides that, with one exception, the regulatory procedures “do not cover the acquisition of land in trust status in the State of Alaska.” 25 C.F.R. § 151.1. The plaintiffs argue that this exclusion of Alaska Natives-and only Alaska Natives-from the land-into-trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian tribes. The State of Alaska has intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act (“ANCSA” or the “Claims Settlement Act”), which (on the State’s account) deprived the Secretary of the statutory authority to take most Alaska land into trust.

The Secretary disagrees, but nonetheless seeks to justify the regulation by reference to ANCSA. For the reasons explained below, the court concludes [2] that the Secretary retains his statutory authority to take land into trust on behalf of all Alaska Natives, and that his decision to maintain the exclusion of most Natives from the land-into-trust regulation violates 25 U.S.C. § 476(g), which provides that contrary regulations “shall have no force or effect.” The court therefore grants summary judgment to the plaintiffs, and orders additional briefing on the question of the proper remedy.

Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit

March 14, 2013Matthew L.M. Fletcher2 Comments

Here is the order and related materials in Confederated Tribes of the Grand Ronde Community of Oregon v. Salazar (D. D.C.):

DCT Order

Clark County et al Motion for Summary J

Interior Opposition to Summary J Motion

USET Amicus

City of La Center Amicus

Interior Revised Cowlitz Initial Reservation Opinion

Interior Motion to Remand

Clark County et al Opposition to Remand Motion

Clark County et al Motion to Strike

Interior Opposition to Motion to Strike

Clark County et al Reply in Support of Motion to Strike

Excerpt from Judge Rothstein’s opinion:

Nor can the Federal Defendants supplement the administrative record with the 2012 Revised Initial Reservation Decision. It is black letter law that the record to be considered by this Court “consists of the administrative record compiled by the agency in advance of litigation, not any record thereafter constructed in the reviewing court.” AT&T Info. Sys. Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (emphasis added) (rejecting agency’s attempt to submit a litigation affidavit as a post hoc rationalization of the agency’s action); see also, Center for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992) (rejecting agency’s rationale as post hoc rationalization not included in administrative record); Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539-40 (1981) (“[P]ost hoc rationalization of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action”). Accordingly, the Federal Defendants cannot “incorporate” a 2012 explanation into a 2010 ROD by characterizing it as a “Supplemental Record of Decision.”

However, the Court is now in a conundrum. The Court notes that Plaintiffs opposed the Federal Defendants’ motion to remand, yet remand is the relief that they sought on the initial reservation determination because the agency had failed to provide a “reasoned explanation for his decision.” The Secretary has now provided such a reasoned explanation. Plaintiffs again oppose remand and ask the Court to strike the Supplemental ROD. If the Court were to grant Plaintiffs’ request, the parties would be litigating the 2010 Initial Reservation Determination, a determination that has been withdrawn and superceded. The Court will not waste its or the parties’ resources on such a fruitless endeavor. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (“[Federal courts] are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong”). The Court is also cognizant of the fact that the parties have been locked in this battle for nearly eleven years. (TR at 13.). However, the APA requires that the Federal Defendants conform to its dictates, disallowing amendments to a final decision once a case has been filed in district court. Accordingly, the Court will remand this action to the agency with instructions to rescind the 2010 ROD. Since this is a case where the agency has already reconsidered and revised its final decision and since the parties represent to the Court that the agency is not required to provide public notice under IGRA (which is the only portion of the 2010 ROD being supplemented), the Court will require the agency to issue a new decision of record within sixty (60) days of the date of this order, unless good cause is shown why it cannot do so. See Fulton v. FPC, 512 F.2d 947, 955 (D.C. Cir. 1975).

News coverage here.