D.C. Circuit Briefs in Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (Cowlitz Tribe)


Grand Ronde Opening Brief

Clark County Opening Brief

Federal Answer Brief

Samish Amicus Brief

Cowlitz Brief

USET Amicus Brief

Clark County Reply

Grand Ronde Reply

Lower court materials here.

Interior Prevails in Carcieri-Based Challenge to Cowlitz Trust Acquisition

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

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

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.

Certiorari Granted in Carcieri v. Kempthorne

Here’s the order. The Court will address two questions:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

The Court declined to hear the third proposed question presented:

3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.

Carcieri v. Kempthorne a “Petition to Watch”

SCOTUSBlog lists Carcieri v. Kempthorne as a petition to watch for the Feb. 22 conference.

There are some warning signs, notably the amicus brief filed by numerous states in support of Rhode Island’s petition. See Gregory A. Caldiera & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 American Political Science Review 1109, 1122 (1988 ) (“[A]micus curiae briefs filed in support of the petition for certiorari increase the estimated probability that the Supreme Court will grant by a magnitude of .5 or .6, depending upon the characteristics of a particular case.”).

As I argued earlier, however, (1) there is no circuit split; and (2) the issue may turn on the particular import of the Rhode Island Indian Claims Settlement Act, meaning that the outcome could have little or no import nationally. Moreover, the United States is in opposition, so these factors may be sufficient to persuade the Court to let this one percolate.

Continue reading

United States Cert Opposition in Carcieri v. Kempthorne

Just filed Friday: United States Cert Opposition

Here are the earlier materials at the NARF website:

Cert Petition

State Amicus Brief Supporting Cert Petition

Carcieri v. Kempthorne Update

Alabama, Alaska, Arkansas, Connecticut, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Utah have just filed an amicus brief supporting the State of Rhode Island’s petition for cert in Carcieri v. Kempthorne.

The brief is here:  State Amicus Brief Supporting Cert Petition

St. Regis Mohawk Suit re: Delay in Fee to Trust Decision

In a case where the Department of Interior issued a FONSI in 2006 and the Governor of New York concurred in the trust acquisition (for gaming purposes) shortly thereafter, Secretary Kempthorne still has not taken action. So, the St. Regis Mohawk tribe sued, alleging that the only reason for the delay is Secretary Kempthorne’s “personal views opposing off-reservation gaming.

This will be an interesting case to watch.