Here are some interesting ironies of the reasoning and outcome in Patchak.
First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:
Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.
But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:
To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”
Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):
Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.
So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.
Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).
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