D.C. District Court

Kialegee Tribal Town Sues DOI Over Jurisdiction After Muscogee (Creek) Nation Raid

Sarah M Donnelly

Links: Tulsa World coverage

Download(PDF) complaint in the matter of Kialegee Tribal Town v. Zinke et al, 17-cv-01670 (D.C. Circuit August 17, 2017): Doc. 1 – Complaint for Declaratory and Injunctive Relief

Kialegee Tribal Town is arguing the precedence of last week’s Murphy v. Royal like Cherokee Nation is in McKesson v. Hembree.

Bismarck Tribune Article on Lack of Written Easement From Corps for Dakota Access Pipeline

Kate Fort1 Comment

Here.

While hundreds are settling in for the long haul at an encampment to protest the Dakota Access Pipeline, the U.S. Army Corps of Engineers confirmed Thursday that the pipeline developer, Energy Transfer Partners, does not yet have a written easement to build the pipeline on corps property.

Corps spokesman Larry Janis said the easement is still under review, though the agency did issue Section 408 permission in late July that allows the easement to be written.

“They can’t build the project by accessing corps property from west to east across Lake Oahe,” Janis said of any current construction.

***

The realization that the company still does not have an actual easement surfaced Wednesday in a federal district court in Washington, D.C., where the Sioux tribe’s request for an injunction to stop the pipeline pending its suit against the corps was heard. The court judge said he wants more time to study whether the corps failed to follow the National Historic Preservation Act and other federal laws in its environmental review of the project. The judge said he will rule on the injunction Sept. 9.

Documents in the hearing discussed in the article are here.

 

Federal Court Rejects Mackinac Tribe’s Bid for Federal Recognition

Matthew L.M. Fletcher3 Comments

Here is the order in Mackinac Tribe v. Jewell (D. D.C.):

19 DCT Order

Briefs are here.

NIGC Prevails in Dispute with City of Duluth over the Fond du Luth Casino

Matthew L.M. Fletcher

The D.C. District Court granted the NIGC’s motion for summary judgment and dismissed the City’s APA challenge to the Fond-du-Luth NOV. Here is the order in City of Duluth v. National Indian Gaming Commission (D. D.C.):

APA case — District Court Op. (March 31 2015)

An excerpt:

Plaintiff City of Duluth, Minnesota, brings this action challenging a Notice of Violation (“NOV”) that the National Indian Gaming Commission (the “Commission”) issued to the Fond du Lac Band of Lake Superior Chippewa (the “Band”) with respect to Band’s gaming establishment in the City of Duluth. This action is the latest step in a long saga pertaining to the relationship of the Band and the City of Duluth with respect to gaming, including proceedings in federal court in Minnesota, before the National Indian Gaming Commission, and, now, before this Court as well. In a nutshell, in the NOV, issued July 12, 2011, the National Indian Gaming Commission informed the Band that the 1994 Agreement between the Band and the City of Duluth violated the requirement that the Band have the “sole proprietary interest” in the gaming activity pursuant to the Indian Gaming Regulatory Act of 1988. The City of Duluth filed this action pursuant to the Administrative Procedure Act, claiming that the NOV, first, was arbitrary, capricious or otherwise not in accordance with law, and, second, exceeded Defendants’ authority under the Indian Gaming Regulatory Act. The City of Duluth requests that the NOV be set aside and requests related declaratory and injunctive relief. The Federal Defendants—the Commission and Jonodev Chaudhuri, in his official capacity as Acting Chairman of the National Indian Gaming Commission—argue that the NOV neither was arbitrary or capricious nor exceeded the scope of the Commission’s authority. Before the Court are Plaintiff’s [24] Motion for Summary Judgment and the Federal Defendants’ [26] Cross-Motion for Summary Judgment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff’s [24] Motion for Summary Judgment and GRANTS the Federal Defendants’ [26] Cross-Motion for Summary Judgment. The Court concludes that the NOV was not arbitrary or capricious; that it did not exceed the scope of the Commission’s authority; and that none of the other legal infirmities that Plaintiff identifies are grounds for setting aside the NOV. Accordingly, this case is dismissed in its entirety.

Briefs are here.

Forest County Potawatomi Complaint re: Denial of Class III Gaming Compact — And Commentary

Matthew L.M. Fletcher1 Comment

The Forest County Potawatomi Community has filed a complaint against the Department of the Interior over the disapproval of its gaming compact – the latest development in the Menominee Tribe’s efforts to develop a class III gaming facility in Kenosha, Wisconsin.

Here are some initial thoughts about the case:

  1. These are very difficult cases to win. Under the Administrative Procedure Act, federal agencies have broad discretion in making decisions and interpreting statutory law.  The Department’s decision to disapprove the Forest County Potawatomi gaming compact strikes me as consistent with its approach in recent years to limit the scope of these types of agreements.
  2.  The Complaint alleges that the Department’s rejection of the compact “departed from long-established and consistent policies reflected in previous [compact] decisions…” However, the Department of the Interior has always expressed concerns over revenue sharing in gaming compacts.  In the past 15 years, the Department has also warned tribes that gaming compacts are not an appropriate means to restrict the ability of other Indian tribes to engage in gaming under IGRA – including the Forest County Potawatomi Community.  Finally, the Department of the Interior under the Obama Administration has rejected a number of gaming compacts for similar reasons.
  3. The Complaint alleges that “Potawatomi has not received what it bargained for:…the 50-mile non-competition zone.” Later, it asserts that “[Potawatomi] has paid the State over $243 million” for that benefit.  This sounds like Potawatomi intends the new compact to remedy the old compact’s supposed flaws, which is a tough sell considering the fact that the Forest County Potawatomi Community has enjoyed the exclusive right to operate a gaming facility in Milwaukee for more than two decades.  
  4. The Department’s decision to disapprove the Forest County Potawatomi gaming compact was based on its determination that the compact included terms that went far beyond what IGRA allows. The Complaint alleges that determination was wrong, and states, “IGRA expressly provides that a compact may include provisions that take into account the adverse economic impacts on existing gaming activities” and then cites 25 U.S.C. §§ 2710(d)(7)(A)(iii)(I) and 2710 (d)(3)(C)(vii).  Nothing in either of those sections of IGRA “expressly” allows a compact to include terms that mitigate a tribal gaming facility for lost profits.  The Department is going to get a lot of deference on its interpretation of those sections.
  5. The Complaint alleges that the Department had “a ministerial duty to approve the [Potawatomi] Compact amendment” because it was the product of an earlier compact amendment that survived the Department’s review. This is, perhaps, the biggest stretch in the complaint.  A court could see that argument as an effort to allow tribes and states to collude to avoid DOI review of gaming compact amendments.

Gaming compacts have become increasingly more complex, and the Department of the Interior has become much more active in reviewing those agreements.  This will be a difficult case for Forest County Potawatomi to win, as I suspect the Court will defer to the Department’s expertise in this area. All in all, there are lot of interesting questions for the court to consider in this matter.

Here are related documents:

1-1 Exhibit A — Compact Amendment

1-2 Exhibit B — Disapproval Letter

Third Amended Complaint and Answer in Stand Up For California v. Dept. of Interior

Matthew L.M. Fletcher

Here:

103 Third Amended Complaint

105 Interior Answer

Prior posts here, here, here, and here.

Forest County Potawatomi FOIA Suit against Interior over Menominee Fee to Trust Materials

Matthew L.M. Fletcher

Here is the complaint in Forest County Potawatomi Community v. Jewell (D. D.C.):

1 Complaint

An excerpt:

For over two years, Plaintiff Forest County Potawatomi Community (the “Community”) has attempted to obtain records from Defendants, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §552 et seq., related to the Secretary of the Interior’s reconsideration of the Menominee Tribe of Wisconsin’s (“Menominee’s”) request to acquire land in Kenosha, Wisconsin, into trust for gaming purposes under Section 5 of the Indian Reorganization Act (“IRA”), 25 U.S.C. §465, and a request for a Secretarial Determination under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §2719(b)(1)(A) (the  “Kenosha Casino Application”). The Community sought the information as part of its effort to meaningfully consult with and provide comments to the Assistant Secretary – Indian Affairs (the “Assistant Secretary”) before he made critical decisions on the Kenosha Casino Application. Defendants have improperly withheld the requested records and have repeatedly violated their clear statutory obligations under FOIA. The Community seeks, inter alia, a declaratory judgment that Defendants are in violation of FOIA for improperly withholding records and engaging in a pattern and practice of violating FOIA, a finding that the Department of the Interior (“DOI”) personnel acted arbitrarily and capriciously and in violation of law in withholding records, and an order requiring Defendants to immediately and fully comply with the FOIA requests set forth herein.

D.C. District Court Overturns Decision to Remove Gray Wolf from Endangered Species List

Kate Fort2 Comments

Memorandum and Opinion (111 pages) and Order.

ORDERED that, because the rule Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes (the “Final Rule”), 76 Fed. Reg. 81,666 (Dec. 28, 2011), is arbitrary and capricious and violates the Endangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531
et seq., the Final Rule is VACATED and SET ASIDE; and it is further ORDERED that the rule in effect prior to the Final Rule vacated by this Order, namely, the rule regarding Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978),
is REINSTATED to govern management of gray wolves in the nine states affected by the vacated Final Rule, pursuant to the Endangered Species Act;

Freep coverage here.

Interior Prevails in Carcieri-Based Challenge to Cowlitz Trust Acquisition

Matthew L.M. Fletcher4 Comments

Here are the materials in Confederated Tribes of the Grand Ronde Community v. Jewell (D. D.C.):

23 Grand Ronde Motion

24 Clark County Motion

36 Interior Response

39-1 Samish Amicus Brief

44 Cowlitz Motion

54 Grand Ronde Response

59 Clark County Reply

65 Interior Reply

66 Cowlitz Reply

71 La Center Amicus Brief

72 Warm Springs Amicus

73 Samish Amicus Brief

74 Jamestown Sklallam Amicus Brief

76 Chinook Amicus Brief

85 Memorandum Opinion

Navajo Sues Interior over Failure to Approve 638 Compact re: Tribal Judiciary

Matthew L.M. Fletcher

Here is the complaint in Navajo Nation v. United States (D. D.C.):

1 Complaint

An excerpt:

This is an action for declaratory and injunctive relief and money damages brought against the Department and the Secretary for Defendants’ violations of the Indian  Self-Determination and Education Assistance Act, P.L. 93-638, as amended and codified at  25 U.S.C. § 450 et seq. (“ISDEAA”), and regulations promulgated thereunder, and for  Defendants’ breach of a contract made under the ISDEAA with the Navajo Nation (“Nation”). The Nation submitted its annual funding agreement (“AFA”) proposal for operations of the Navajo Nation Judicial Branch for the 2014 calendar year (“CY 2014”) to the Bureau of Indian Affairs (“BIA”), an agency of the United States Department of the Interior (“Department”), and the BIA failed to take the statutorily required action to approve or lawfully decline that proposal before the expiration of the 90-day period set forth in the ISDEAA and regulations promulgated thereunder. Therefore, as a matter of law, the CY 2014 AFA must be deemed approved as proposed by the Nation. Pursuant to the Contract Disputes Act, 41 U.S.C. § 7101 et seq. (“CDA”), and sections 110(a) and (d) of the ISDEAA, 25 U.S.C. § 450m-1(a) and (d), the Nation submitted to the BIA a claim seeking relief from the Defendants’ breaches of this deemed-approved contract (No. A12AV00698: the “Contract”) and CY 2014 AFA. The Contract and the CY 2014 AFA are collectively referred to herein as the “CY 2014 Agreement.” The BIA improperly disclaimed the authority to decide the Nation’s CDA claim and thereby denied it. The Nation brings this action seeking declaratory and injunctive relief for Defendants’ violations of the ISDEAA and $15,762,985 in damages for their breach of the CY 2014 Agreement, plus statutory interest from January 3, 2014.