BERYL A. HOWELL, District Judge.
The plaintiffs bring this consolidated action, under the Indian Reorganization Act, 25 U.S.C. §§ 461, et seq., the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq., the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701, et seq., and the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., to challenge the decision of the Secretary of the United States Department of the Interior to acquire a 305-acre parcel of land in Madera County, California in trust on behalf of the intervenor-defendant North Fork Rancheria of Mono Indians and the Secretary's decision to allow gaming on the land in question. Pending before the Court are the government defendants' Motion to Transfer Venue, ECF No. 20, and the Stand Up plaintiffs' Motion for Preliminary Injunction, ECF No. 26.
This case challenges two separate but related decisions of the Secretary of the United States Department of the Interior ("the Secretary") regarding a 305.49-acre parcel of land located in Madera County, California ("the Madera Site"). See Compl. ¶¶ 1, 31, ECF No. 1. In particular, the Madera Site is located adjacent to Route 99 in an unincorporated portion of Madera County, just outside the northwest border of the City of Madera. See Intervenor's Opp'n to Pls.' Mot. for Prelim. Inj. ("Intervenor's Opp'n") at 5, ECF No. 34; see also Pls.' App. of Evidence ("Pls.' App.") Ex. 13, at 212, ECF No. 27-15.
The plaintiffs in this consolidated action consist of two distinct groups. The first group ("the Stand Up plaintiffs") consists of various individual citizens and community organizations located in and around Madera, California.
The regulatory framework that pertains to the plaintiffs' claims is set forth in three statutes: fee-to-trust determinations are authorized under the IRA, gaming eligibility determinations are guided by the IGRA, and the development of environmental impact statements are mandated under the National Environmental Policy Act
"The intent and purpose of the [IRA] was to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (internal quotation marks omitted). Pursuant to that purpose, the IRA provides that the Secretary "is authorized, in his discretion, to acquire ... any interest in lands, water rights, or surface rights to lands ... for the purpose of providing land for Indians." 25 U.S.C. § 465. The statute further specifies that "[t]itle to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired." Id. The IRA defines "Indian" to include, inter alia, "all persons of Indian descent who are members of any recognized Indian
The Department of the Interior's ("DOI's") regulations, promulgated pursuant to the IRA, state that "land may be acquired for a tribe in trust status" when, inter alia, "the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing." 25 C.F.R. § 151.3(a)(3). In considering an application for the acquisition of off-reservation trust land, the Secretary is required by DOI regulations to consider a number of factors, including "the existence of statutory authority for the acquisition and any limitations contained in such authority," the "need of the individual Indian or the tribe for additional land," the "purpose for which the land will be used," and "[t]he location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservations." Id. §§ 151.10-151.11.
Related to the purposes of the IRA, the IGRA was enacted "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). The IGRA provides that "gaming regulated by [the IGRA] shall not be conducted on lands acquired by the Secretary in trust for the benefit of any Indian tribe after October 17, 1988." Id. § 2719(a). This prohibition on conducting gaming on trust land acquired after 1988, however, does not apply when, inter alia,
Id. § 2719(b)(1)(A).
A third statutory framework relevant to the Secretary's determinations in this case is that of the NEPA. That statute requires all federal agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official" on a number of considerations. 42 U.S.C. § 4332(2)(C). These considerations include "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and "alternatives to the proposed action." Id. This "detailed statement" is commonly known as an Environmental Impact Statement ("EIS"). See, e.g., Found. on Econ. Trends v. Heckler,
The North Fork Tribe, which is an intervenor in this action,
In 1906, Congress passed the first in a series of laws that authorized the Secretary of the Interior to purchase land in California for the benefit of individual Indians. See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 333. In 1916, pursuant to these statutes, the DOI purchased what is now the North Fork Rancheria "for the use of the North Fork band of landless Indians." See Decl. of Judy Bethel-Fink ("Bethel-Fink Decl.") Ex. A at 1, ECF No. 33-1; Intervenor's Opp'n at 4. In 1934, the IRA was passed. See Indian Reorganization Act, Pub.L. No. 73-383, 48 Stat. 984 (1934) (codified at 25 U.S.C. §§ 461, et seq.). One of the provisions of the IRA required the Secretary to call and hold special elections among Indian tribes on whether the tribes wanted to ratify the IRA and adopt a tribal constitution and by-laws. See 25 U.S.C. § 476(c).
On March 1, 2005, the North Fork Tribe submitted a formal request to the Bureau of Indian Affairs ("BIA") to acquire the Madera Site in trust for "the development and operation of a gaming resort and hotel." See Intervenor's Opp'n Ex. ¶ at 1, ECF No. 34-4. Several months before this formal request was submitted, the BIA published a notice in the Federal Register announcing its intent to prepare
In February 2008, the DOI distributed a Draft Environmental Impact Statement ("DEIS") regarding the proposed acquisition of the Madera Site "to Federal, tribal, state, and local agencies and other interested parties for a 45-day review and comment period." IGRA ROD at 288; see also Draft Environmental Impact Statement for the North Fork Rancheria's Proposed 305 Acre Trust Acquisition, 73 Fed. Reg. 8898 (Feb. 15, 2008) (providing notice that "[w]ritten comments on the scope and implementation of this proposal must arrive by March 31, 2008"). During the public comment period, the BIA received a total of 331 comment letters, and the BIA also conducted a public hearing on March 12, 2008, at which 101 individuals spoke. See IGRA ROD at 288; Defs.' Ex. J at 7-10, ECF No. 30-10 (listing commenters at public hearing).
On September 1, 2011, after the FEIS had been published, the then Assistant Secretary of Indian Affairs, Larry Echo Hawk, issued a Record of Decision ("ROD") under the IGRA, which concluded that "Alternative A," which was the alternative that involved a large gaming/hotel complex on the Madera Site, was the "Preferred Alternative." IGRA ROD at 281. This alternative was chosen from among five alternatives because it "will best meet the purpose and need for the Proposed Action, in promoting the long-term economic self-sufficiency, self-determination and self-government of the [North Fork] Tribe." Id. In reaching this conclusion, the Secretary
On November 26, 2012, the current Assistant Secretary for Indian Affairs, Kevin Washburn, issued an ROD under the IRA, approving the North Fork Tribe's fee-to-trust application for "Alternative A" on the Madera Site. See IRA ROD at 377. This ROD announced that "the action to be implemented is [Alternative A], which includes acquisition in trust of the 305.49-acre Madera site and construction of a gaming-resort complex including a 247,180 square foot casino facility, 200-room hotel, surface and structured parking facilities, and corresponding mitigation measures." Id. Similarly to the decision made under the IGRA, the IRA ROD "determined that this Preferred Alternative will best meet the purpose and need for the Proposed Action by promoting the long-term economic self-sufficiency, self-determination and self-governance of the [North Fork] Tribe." Id. Likewise, this second ROD analyzed alternative actions; environmental impacts and public comments; and mitigation measures to be taken. See id. at 386-435. The ROD also summarized the Secretary's consideration of the factors outlined in 25 C.F.R. Part 151, including an analysis of the Secretary's authority for the acquisition under 25 U.S.C. § 465. See id. at 435-43.
Following these Records of Decision, defendant Assistant Secretary Washburn announced his decision to acquire the Madera Site by publishing a notice in the Federal Register on December 3, 2012. See Land Acquisitions; North Fork Rancheria of Mono Indians of California, 77 Fed. Reg. 71,611 (Dec. 3, 2012). The notice stated that it was being published, inter alia, "to comply with the requirements of 25 C.F.R. § 151.12(b) that notice be given of the Secretary's decision to acquire land in trust at least 30 days prior to signatory acceptance of the land into trust." Id. As stated in the BIA's Federal Register notice implementing 25 C.F.R. § 151.12(b), the 30-day waiting period "procedure permits judicial review before transfer of title to the United States" because "[t]he Quiet Title Act (QTA), 28 U.S.C. [§] 2409a, precludes judicial review after the United States acquires title." See Final Rule; Land Acquisitions, 61 Fed. Reg. 18,082 (Apr. 24, 1996) (to be codified at 25 C.F.R. pt. 151). In keeping with the reasoning and purpose underlying 25 C.F.R. § 151.12(b), the DOI has traditionally imposed a self-stay beyond the 30 days set forth in 25 C.F.R. § 151.12(b) for fee-to-trust transfers until any challenges have been resolved on the merits. See BUREAU OF INDIAN AFFAIRS, FEE-TO-TRUST HANDBOOK, VERSION II ("BIA HANDBOOK") at 15 (July 13, 2011), available at http://www.bia.gov/cs/groups/xraca/documents/text/idc-002543.pdf ("If an action is filed, take no further action [on the fee-to-trust transfer] until the judicial review process has been exhausted.").
On December 19, 2012, within the 30-day window, the Stand Up plaintiffs filed their Complaint in the instant action. See ECF No. 1. The day before the Complaint was filed, however, government counsel notified the plaintiffs' counsel that the BIA would no longer be following its self-stay procedure because a recent Supreme
"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is "an extraordinary and drastic remedy" and "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis and internal quotation mark omitted). Plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); accord Gordon v. Holder, 632 F.3d 722, 724 (D.C.Cir.2011).
Historically, these four factors have been evaluated on a "sliding scale" in this Circuit, such that "[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor." Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir. 2009). Recently, however, the continued viability of that approach has been called into some doubt, as the Supreme Court and the D.C. Circuit have strongly suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction. See Munaf v. Geren, 553 U.S. 674, 690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ("[A] party seeking a preliminary injunction must demonstrate, among other things, a likelihood of success on the merits." (internal quotation marks omitted)); Sherley v. Sebelius, 644 F.3d 388, 393 (D.C.Cir.2011) ("[W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, free-standing requirement for a preliminary injunction." (internal quotation marks omitted)); see also Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) ("Munaf made clear that a likelihood of success is an independent, free-standing requirement for a preliminary injunction."). The D.C. Circuit has
That being said, in meeting the requisite burden for injunctive relief, "[i]t is particularly important for the movant to demonstrate a likelihood of success on the merits." Konarski v. Donovan, 763 F.Supp.2d 128, 132 (D.D.C.2011); see also Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep't of Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C.Cir.2011) ("In ruling on a preliminary injunction a key issue — often the dispositive one — is whether the movant has shown a substantial likelihood of success on the merits."). Indeed, absent a "substantial indication of probable success, there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977) (quoting Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C.Cir. 1958)). Assessing the likelihood of success on the merits "does not involve a final determination of the merits, but rather the exercise of sound judicial discretion on the need for interim relief." Nat'l Org. for Women v. Soc. Sec. Admin., 736 F.2d 727, 733 (D.C.Cir.1984) (internal quotation marks omitted). "As an extraordinary remedy, courts should grant such relief sparingly." Konarski, 763 F.Supp.2d at 133 (citing Mazurek, 520 U.S. at 972, 117 S.Ct. 1865).
Under the Administrative Procedure Act ("APA"), a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "This is a `deferential standard' that `presumes the validity of agency action.'" WorldCom, Inc. v. FCC, 238 F.3d 449, 457 (D.C.Cir.2001) (quoting Sw. Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352 (D.C.Cir.1999)).
"Although the `scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency,'" the Court "must nonetheless be sure the [agency] has `examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Chamber of Commerce of U.S. v. SEC, 412 F.3d 133, 140 (D.C.Cir. 2005) (internal quotation marks omitted) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In determining whether the agency's action was arbitrary and capricious, the Court must determine whether the agency action was a "product of reasoned decisionmaking" or whether the agency "failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." State Farm, 463 U.S. at 43, 52, 103 S.Ct. 2856.
A case may be transferred to another venue "[f]or the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). "The decision whether or not to transfer the case to another judicial district pursuant to 28 U.S.C. § 1404(a) is discretionary." In re DRC, Inc., 358 Fed.Appx. 193, 194 (D.C.Cir.2009). "A transfer in derogation of proper venue in the District of Columbia must be justified by particular circumstances that render the forum inappropriate by reference to considerations specified in the statute." Id. In deciding a motion to transfer venue under § 1404(a), a court must first determine whether the transferee district is one where the action "might have been brought," see 28 U.S.C. § 1404(a); Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), and then the statute directs the court to evaluate "the convenience of parties and witnesses" and whether the transfer would be "in the interest of justice," 28 U.S.C. § 1404(a). The broad "interest of justice" language in § 1404(a) "is intended to place discretion in the district court to adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (quoting Van Dusen, 376 U.S. at 622, 84 S.Ct. 805). Therefore, the statute "calls on the district court to weigh in the balance a number of case-specific factors" in a manner that is "flexible and individualized." Id.
The Court will begin by discussing the government defendants' motion to transfer venue before proceeding to discuss whether the Stand Up plaintiff's have made a sufficient showing to warrant the grant of preliminary injunctive relief.
As discussed above, the first requirement for a transfer of venue is that the action "might have been brought" in the transferee venue. See 28 U.S.C. § 1404(a). For venue purposes, a civil action may be brought, inter alia, in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." 28 U.S.C. § 1391(b)(2). Neither the plaintiffs nor the intervenor-defendant North Fork Tribe, all of whom oppose the motion to transfer, contest that this case "might have been brought" in the Eastern District of California. This action "might have been brought" in the Eastern District of California both because the land
As to whether transfer would be "in the interest of justice," prior cases have traditionally established a list of private and public interests factors for courts to weigh. See, e.g., Foote v. Chu, 858 F.Supp.2d 116, 121-23 (D.D.C.2012). Not all of these factors are statutory, however; rather, they are intended to elucidate the concerns implied by the phrase "in the interest of justice." See Stewart Organization, 487 U.S. at 29, 108 S.Ct. 2239. In evaluating "the interest of justice," the Court is mindful of the Supreme Court's statement that analyses of venue transfer under § 1404(a) are to be done on an individualized, case-by-case basis. See id. With that flexible standard in mind, the Court notes that the instant case does involve a significant amount of local interest in the use of the Madera Site. Indeed, this local interest is what the government defendants rely heavily, if not exclusively, upon in advocating for a transfer of venue. See Fed. Defs.' Opposed Mot. to Transfer Venue & Mem. in Supp. ("Defs.' Transfer Mem.") at 8-12, ECF No. 20. In this regard, the Court is mindful of the oft-cited "local interest in having localized controversies decided at home." See, e.g., MBI Grp., Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568, 576 (D.C.Cir.2010) (internal quotation marks omitted). The instant case, however, is not a purely "localized controversy," and, more importantly, considerations of fairness embedded in the "interest of justice" compel the conclusion that this case must remain in this forum.
First, although this case does implicate the use of land in the localized area of Madera County, there should be no mistake
Of overarching importance in this particular case, however, is the unfairness that would inure to the plaintiffs if this case were transferred. This case is distinguishable from the mine run of cases because the government defendants in this case have made clear that they will transfer the Madera Site into trust on February 1, 2013 regardless of whether any court has yet made a ruling on whether the plaintiffs are entitled to preliminary injunctive relief. See, e.g., Joint Status Report at 3. As a result of the government defendants' position, and due to the congested docket in the Eastern District of California,
Having decided that this case will remain in this forum, the Court will now analyze the parties' arguments for and against the preliminary injunctive relief sought by the Stand Up plaintiffs. One of the most essential considerations for purposes of preliminary injunctive relief is whether the Stand Up plaintiffs are likely to succeed on the merits of their claims. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (acknowledging "the well-established principle that the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits").
The first and most formidable claim raised by the Stand Up plaintiffs in support of preliminary injunctive relief is that "the Secretary failed to assemble, develop, or consider a full record in making [his] finding that the Tribe was recognized and under federal jurisdiction in 1934." Mem. of P. & A. in Supp. of Mot. for Prelim. Inj. ("Pls.' Mem.") at 17, ECF Nos. 26-1 through 26-3. This argument goes to the question of whether the Secretary properly considered his statutory authority to acquire the Madera Site under the IRA. The plaintiffs argue both that the North Fork people do not qualify as "Indians" under the IRA and also that, even if the North Fork Tribe does qualify under the IRA, the Secretary's conclusion in this regard was not supported by the record and, thus, was arbitrary and capricious. See id. at 17-21.
As discussed above, the regulations promulgated by the DOI pursuant to the IRA require that, in considering requests for the acquisition of land into trust status, the Secretary must consider "[t]he existence of statutory authority for the acquisition and any limitations contained in such authority." 25 C.F.R. § 151.10(a); see also id. § 151.11(a) (requiring same consideration for off-reservation acquisitions). That authority, for purposes of the instant action, is located at 25 U.S.C. § 465, which states that "[t]he Secretary of the Interior is authorized, in his discretion, to acquire ... any interest in lands ... for the purpose of providing land for Indians." The plain text of the statute limits the Secretary to acquiring land only "for Indians," and the IRA defines "Indian" as, inter alia, "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." Id. § 479. This same definition further states that "[t]he term `tribe' wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation." Id.
Although the Supreme Court's Carcieri decision clarified the temporal requirement that the Secretary may only acquire lands into trust for the benefit of Indians who are members of tribes that were "under Federal jurisdiction" in 1934, Carcieri also left several relevant questions unanswered. The first and most pressing question left open by Carcieri is what it means to have been "under Federal jurisdiction" in 1934. Justice Breyer's concurring opinion in Carcieri stated that "under Federal jurisdiction" implied a certain government-to-government relationship with a tribe that could be evidenced by "a treaty with the United States (in effect in 1934), a (pre-1934) congressional appropriation, or enrollment
COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 3.02 (2012). In concluding that he had authority to acquire the Madera Site in trust for the North Fork Tribe, the Secretary relied primarily on the fact that "a majority of the adult Indians residing at the [North Fork] Tribe's Reservation voted to reject the IRA at a special election duly held by the Secretary on June 10, 1935." IRA ROD at 437. From this, the Secretary reasoned that "[t]he calling of a Section 18 election at the [North Fork] Tribe's Reservation conclusively establishes that the Tribe was under Federal jurisdiction for Carcieri purposes." Id.
The plaintiffs contend that the Secretary's analysis of his statutory authority was "[c]onclusory" and his "reliance on this sole factor was improper, given the BIA's prior recognition of the complexity of this determination, and given the Secretary's failure to consider and address the countervailing evidence before him." Pls.' Mem. at 17. In support of this contention, the plaintiffs cite to a 2011 document submitted by the BIA in response to questions from a congressional committee regarding which federally recognized tribes were under federal jurisdiction in 1934. See id. at 18. In that response, the BIA stated that "[w]hether a tribe was under federal jurisdiction [in 1934] requires a fact-intensive analysis of the history of interactions between that tribe and the United States." Pls.' App. Ex. 24, at 520, ECF No. 27-33. The plaintiffs' argument is unlikely to succeed on the merits, however, because it was rational for the Secretary to conclude that the North Fork Tribe was "under Federal jurisdiction" based solely on the 1935 IRA election and also because other evidence considered by the Secretary conclusively establishes that the North Fork Tribe was "under Federal jurisdiction" in 1934.
First, the Secretary's conclusion that he had the authority to acquire land for the North Fork Tribe, based solely on the IRA election, was rational because the text of the IRA establishes that the only people eligible to vote in such elections were "adult Indians." See 25 U.S.C. § 478 ("This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application."); see also id. § 476 (requiring Secretary to call "a special election" at which "adult members" of "[a]ny Indian tribe" were to vote regarding "the right to organize for [the tribe's] common welfare"). As discussed previously, the word "Indian" is a term of art in the IRA,
Even more persuasive, however, is another fact that the Secretary considered in his IRA ROD, which is that "[t]he North Fork Rancheria was originally established by purchase under the authority of the Interior's Appropriations Act of June 30, 1913." IRA ROD at 437. As discussed previously, that purchase took place in 1916 — well before the IRA was passed. See supra Part I.B (discussing history of North Fork Tribe). This purchase of land is important, and likely dispositive in its own right, regarding whether the North Fork Tribe was "under Federal jurisdiction" in 1934. Historical DOI documents submitted in this case show that the 1916 purchase was made "for the use of the North Fork band of landless Indians." See Bethel-Fink Decl. Ex. A at 1. This document demonstrates two things. First, it demonstrates a clear jurisdictional relationship between the North Fork Tribe and the federal government prior to 1934. See, e.g., Carcieri, 555 U.S. at 399, 129 S.Ct. 1058 (Breyer, J., concurring) (stating that "a (pre-1934) congressional appropriation" would likely establish federal jurisdiction); COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 3.02 (concluding that, inter alia, "provision of federal benefits" would establish federal jurisdiction within the meaning of the IRA). Second, this document establishes that the 1916 acquisition was for members of the North Fork Tribe because the acquisition was for "landless Indians" of "the North Fork band," which clearly falls within the IRA's expansive definition of "tribe." See 25 U.S.C. § 479 (defining "tribe" as "any Indian tribe, organized band, pueblo, or the Indians residing on one reservation").
Although the IRA ROD states that "none of the lands within the exterior boundaries of the North Fork Rancheria are owned by, or held in trust for, the Tribe," IRA ROD at 391-92, this fact is largely irrelevant in determining whether the North Fork people are "Indians" within the meaning of § 479.
Two other interrelated questions left unanswered from Carcieri, which are relevant to the soundness of the Secretary's decision in this case, are (1) what the meaning of "recognized Indian tribe" is; and (2) whether a tribe must have been "recognized" in 1934 to be eligible for trust land. As to the first question, the Secretary has already formally discussed the interpretation of the term "recognized Indian tribe" in a previous fee-to-trust decision that was cited by the North Fork Tribe in the instant case. See Intervenor's Opp'n at 9 nn. 4-5. In that ROD, which was issued in December 2010 with respect to a trust acquisition for the Cowlitz Indian Tribe, the Secretary noted two possible meanings of the word "recognized." See BIA, Record of Decision, Trust Acquisition of, and Reservation Proclamation for the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe ("Cowlitz ROD") at 87, available at http://www.bia.gov/cs/groups/mywcsp/documents/text/idc012719.pdf (Dec. 17, 2010). The word "recognized" could be used in the "`cognitive' or quasi-anthropological sense," which means that "`federal officials simply knew or realized that an Indian tribe existed." See id. (internal quotation marks omitted) (quoting William W. Quinn, Federal Acknowledgement of American Indian Tribes: The Historical Development of a Legal Concept, 34 AM. J. LEGAL HIST. 331, 333 (1990)). It could also be used "in a more formal or `jurisdictional' sense to connote that a tribe is a governmental entity comprised of Indians and that the entity has a unique relationship with the United States." Id. In evaluating the legislative history of the IRA, the Secretary observed that "[t]he members of the Senate Committee on Indian Affairs debating the IRA appeared to use the term `recognized Indian tribe' in the cognitive or quasi-anthropological sense." Id. at 88.
In the Cowlitz ROD, the Secretary ultimately determined that he "need not reach the question of the precise meaning of `recognized Indian tribe' as used in the IRA" because the Cowlitz Tribe was "recognized" in both the cognitive and jurisdictional senses of the word. See id. 88-89. Nevertheless, this discussion is instructive to the Court in interpreting the phrase "recognized Indian tribe." The Court agrees with the Secretary's interpretation of the legislative history of the IRA, and the Court also observes that using the phrase "recognized Indian tribe" in a jurisdictional sense would be redundant because the statute further modifies "recognized Indian tribe" by the phrase "now under Federal jurisdiction." See 25 U.S.C. § 479. It is true that the federal government established rigorous, formal criteria for being a federally recognized Indian tribe in the 1970s, see 25 C.F.R. § 83.7, but as the Secretary noted in the Cowlitz ROD: "There would have been little need to insert an undefined and ambiguous
In so concluding, the Court need not decide in this particular case the second question left open by Carcieri: whether an Indian tribe is required to have been "recognized" prior to 1934 in order to be eligible to receive trust land under the IRA. This is because the North Fork Tribe was clearly "recognized" in the cognitive sense of the word both before and after 1934, as evidenced by the 1916 trust acquisition of the North Fork Rancheria and the IRA election previously discussed. In sum, then, the Secretary's conclusion that he is "authorized to acquire land in trust for the [North Fork] Tribe under Section 5 of the IRA," IRA ROD at 437, was supported by substantial evidence, which the Secretary considered during his decision-making process. Therefore, the plaintiffs are unlikely to succeed on the merits of their claim that the Secretary's decision in this regard was either unsupported or arbitrary and capricious.
The Court now turns to the plaintiffs' procedural claim under the APA. The plaintiffs argue that "[t]he Secretary did not follow his own procedures (mandated by his own regulations) in failing to send the California Governor a copy of the entire record when requesting the Governor's concurrence in the Secretary's two-part decision." Pls.' Mem. at 21. Under the regulations promulgated by DOI pursuant to the IGRA, "[i]f the Secretary makes a favorable Secretarial Determination," the Secretary must send to the governor of the state where the gaming will occur, inter alia, "[a] copy of the entire application record." 25 C.F.R. § 292.22. Based on this language, the plaintiffs complain that the Secretary sent the Governor Concurrence Request "almost a year before the Fee-to-Trust ROD was issued," and thus the concurrence request did not include the Secretary's conclusions regarding acquisition of the Madera Site. See Pls.' Mem. at 22. In support of their contention that "entire application record" includes the Secretary's IRA decision, the plaintiffs point to a statement made by the DOI when it promulgated the current IGRA regulations in 2008. See Pls.' Reply in Supp. of Mot. for Prelim. Inj. ("Pls.' Reply") at 12, ECF No. 36. As the agency's Federal Register notice stated, during the notice-and-comment period "[o]ne comment observed that, throughout the regulations, `application' is used to refer both to the tribe's initial written request and to the subsequent application package developed by the BIA Regional Office for submission to the Secretary, creating confusion." Gaming on Trust Lands Acquired After Oct. 17, 1988, 73 Fed. Reg. 29,354, 29,368 (May 20, 2008). The agency responded that "[i]n consideration of the comment, changes were made throughout the regulations accordingly." Id.
The plaintiffs' argument on this point falls short for two reasons. First, the
More fundamentally, the plaintiffs' argument misunderstands the simple fact that, in a case like this one, the Secretary's decision under the IGRA must logically be finalized before the Secretary's decision under the IRA can be made. Permitting gaming on trust land would be essential to the Secretary's conclusion under the IRA that the acquisition meets the criteria listed in 25 C.F.R. Part 151, such as "[t]he need of the individual Indian or the tribe for additional land," and "[t]he purposes for which the land will be used." See 25 C.F.R. § 151.10. Similarly, the governor's concurrence is plainly required before gaming on trust land can be permitted. See 25 U.S.C. § 2719(b)(1)(A). Therefore, in this case, approving a trust acquisition under the IRA prior to the governor's concurrence would have been putting the proverbial cart before the horse: The Secretary would not yet have known whether gaming would be permitted and thus would have had no basis to ascertain whether the basic criteria for approving a trust acquisition had been met. See Intervenor's Opp'n at 14-15 & n. 18 (explaining why Secretary must "seek the Governor's concurrence" and "only then ... make the final determination to take the land into trust"); see also Sokaogon Chippewa Comm'y (Mole Lake Band of Lake Superior Chippewa) v. Babbitt, 929 F.Supp. 1165, 1170 (W.D.Wis.1996) ("Even if the secretary finds that the proposed off-reservation gaming establishment [meets the requirements of the two-part determination] and the governor concurs in that determination, the secretary must decide whether to exercise his discretion to acquire the land in trust...."). Hence, the plaintiffs are unlikely to succeed on the merits of their argument regarding the Secretary's purported procedural error regarding the "entire application record."
The plaintiffs also contend that the Secretary's determination under the IGRA, that permitting gaming on the Madera Site would not be detrimental to the surrounding community, was arbitrary and capricious because it failed to consider comments regarding a number of detrimental impacts, including: (1) "the destructive and ruinous impacts on families, employers, and community social services caused by gambling," (2) "increases in prostitution and other crimes," (3) "environmental and economic impacts on Fresno, Mariposa, Merced and Madera Counties," (4) "impacts on water supply and
At the outset, it is important to recall that the DOI has interpreted the term "surrounding community" in the IGRA only to include "local governments and nearby Indian tribes located within a 25-mile radius of the site of the proposed gaming establishment." 25 C.F.R. § 292.2. The plaintiffs in the instant action do not directly challenge the DOI's interpretation of this term, but they do complain that the Secretary failed to consider or "simply ignored" comments from the plaintiffs and other "members of the community" about the potential harms listed above. Pls.' Mem. at 23. Although the Secretary can, and likely should, consider comments from local citizens in making decisions under the IGRA, the statute and its implementing regulations only require that the Secretary consider "detriment[]" on "local governments and nearby Indian tribes located within a 25-mile radius of the site of the proposed gaming establishment." 25 C.F.R. §§ 292.2, 292.21(a).
First, as to "the destructive and ruinous impacts on families, employers, and community social services caused by gambling," Pls.' Mem. at 23, the IGRA ROD addressed the potential effects on the surrounding community stemming from what the parties have called "problem gambling." See Intervenor's Opp'n at 17. The Secretary observed that "[w]hile operation of a gaming facility could increase the percentage of problem gamblers in the surrounding community, problem gambling may be attenuated, or possibly reduced, through the expansion of problem gambling services offered by the Resort." IGRA ROD at 347. In this regard, the Secretary also noted several ways in which the North Fork Tribe had agreed to help mitigate the potential detrimental effects of "problem gambling." The Tribe agreed to do so by, inter alia, paying $50,000 to the Madera County Department of Behavioral Health Services "to supplement its budget for alcohol education and the treatment and prevention of problem gambling and gambling disorders," id. at 355, and implementing a number of training and precautionary measures to "recogniz[e] and address[]" problem gambling on the premises, id. at 324-25. The FEIS concluded that these mitigation measures "would mitigate [the] effect [of problem gambling] to a less than significant level." FEIS at 4.7-9 (Feb. 2009), available at http://northforkeis.com/documents/final_eis/report.htm. The Secretary clearly considered this aspect of the problem in concluding that permitting gaming on the Madera Site would not be detrimental to the surrounding community.
As to the "increases in prostitution and other crimes," the plaintiffs argue that the
First, the plaintiffs' argument that it is "irrational" to focus on regional crime rates is peculiar because the Court finds such a focus perfectly rational when considering potential detriment to a surrounding community. Second, the plaintiffs' more generic concerns about gaming and crime appear to be divorced from the facts considered by the Secretary, and based instead on a speculative and biased assumption about the "types" of people and behavior that a gaming establishment attracts. The FEIS surveyed five other California communities "that have had Indian casinos within close proximity or in their jurisdiction for at least the past two years." FEIS at 4.7-6. Based on this survey and a review of literature regarding the link between casinos and crime, the FEIS concluded that there was "no definitive link between casinos and regional crime rates," and therefore "Alternative A's impact to crime would be less than significant." Id. at 4.7-8. The Secretary relied upon and discussed the FEIS's findings in this regard when discussing crime in his IGRA ROD. See IGRA ROD at 347. That the plaintiffs speculate regarding what gaming may bring to their community cannot undercut the Secretary's reasonable reliance on empirical socioeconomic data, as well as the tangible mitigation efforts proposed by the North Fork Tribe, in concluding that a casino development would not be detrimental to the surrounding community.
Furthermore, the Court observes that the plaintiffs' argument appears to misconstrue the standard by which the Secretary must judge the potential negative effects of a gaming establishment under the IGRA. The plaintiffs construct a straw man by arguing that "[t]he Secretary seems to conclude that there is no detrimental impact on the surrounding community simply because the Tribe may take some steps to lessen the damaging effects of the $200 million casino." Pls.' Mem. at 25. Contrary to the plaintiffs' apparent premise, the IGRA does not require that a new gaming development be completely devoid of any negative impacts. Rather, the IGRA requires the Secretary, in consultation with state, local, and tribal governments,
Moving to the plaintiffs' third concern, the Secretary clearly considered the "environmental and economic impacts on Fresno, Mariposa, Merced and Madera Counties." Pls.' Mem. at 23. Although the plaintiffs do not elaborate in their briefing what particular environmental or economic impacts were ignored, the Secretary's IGRA ROD considered both the potential economic impacts on surrounding local governments as well as potential environmental effects of the gaming establishment. As with the potential negative impacts already discussed, the Secretary considered the possibility that a major commercial development would put a financial strain on local governments and concluded that any potential impact would be mitigated by the North Fork Tribe's agreement to offset the impacts. See IGRA ROD at 369-70. Once again, the Secretary relied upon the thorough analysis of these costs provided in the FEIS, which analyzed the development's potential effects on everything from provision of water services to law enforcement to telecommunications to schools. See, e.g., id. at 370; FEIS at 4.9-1 to 4.9-32 (analyzing impacts on public services from each alternative). After considering all of this evidence, the Secretary concluded that, based on the millions of dollars that would inure to local governments through increased tax revenue and offset payments from the North Fork Tribe, "the trust acquisition of the [Madera] Site, and the operation of class III gaming there, would not result in a significant cost increase for either Madera County or the adjacent local units of government" and also "would not result in a detrimental impact to the environment in the area." IGRA ROD at 369-70. Without more elaboration regarding what was missing from this analysis, the plaintiffs have done nothing to undercut the rationality of the Secretary's decision with
The plaintiffs' argument that the Secretary failed to consider "infringement upon the tribal sovereignty of other indigenous people, including the North Valley Yokuts and the Picayune Rancheria" is likewise vague and unelaborated. See Pls.' Mem. at 23. The plaintiff Picayune Tribe, however, has submitted a separate brief that "address[es] certain issues raised" by the Stand Up plaintiffs' motion. See Pl. Picayune Rancheria's Mem. Addressing Issues Raised by Pls.' Mot. for Prelim. Inj. ("Picayune Mem.") at 1, ECF No. 28. The Court will consider the Picayune Tribe's brief in elaborating upon the Stand Up plaintiffs' argument regarding "infringement upon ... tribal sovereignty." See Pls.' Mem. at 23. In its brief, the Picayune Tribe argues first that the Secretary "arbitrarily accorded a `diminished weight' standard in considering" potential economic harms to the Picayune Tribe. See Picayune Mem. at 5. The Picayune Tribe also contends that the Secretary "discounted entirely the devastating loss of revenue that Picayune would suffer from the proposed casino," id., and that "[t]he competitive harms [were] not taken into account" in the Secretary's ROD, see Tr. of Oral Argument at 35 (Jan. 25, 2013) (unofficial transcript). Neither of these arguments, however, is likely to succeed on the merits.
First, the Picayune Tribe's criticism, that the Secretary "accorded a `diminished weight' standard" to the Picayune Tribe's concerns, is unavailing. Picayune Mem. at 5. Once again, it is helpful to consult the IGRA and its implementing regulations to clarify the scope of the Secretary's inquiry. The IGRA's implementing regulations define "nearby Indian tribe" as any tribe within a 25-mile radius of the proposed development, see 25 C.F.R. § 292.2, but the Picayune Tribe indisputably falls outside that radius because its lands are located "approximately 39 miles from the [Madera] Site," IGRA ROD at 370. Therefore, the Secretary was not required to consider the Picayune Tribe's concerns at all, though the Secretary observed that "the relative proximity of Picayune's lands, headquarters, and existing class III gaming facility to the Site has led me to consider their comments in making my determination." Id. Although the Secretary concluded that the aforementioned considerations "compel[led][him] to accord some weight to Picayune's concerns," the Secretary also concluded that "[t]hose comments must be accorded less weight than comments submitted by communities and tribes that fall within the definition of `surrounding community.'" Id. The weight accorded to the Picayune Tribe's comments was based on the logical premise that "[t]he weight accorded to the comments of tribes and local governments outside the definition of `surrounding community' will naturally diminish as the distance between their jurisdictions and the proposed off-reservation gaming site increases." Id. at 371.
Thus, the Picayune Tribe's contention that "[i]t was improper for the Assistant Secretary to accord anything other than full weight to" the Tribe's comments, see Picayune Mem. at 5, is erroneous because, as the DOI noted when it adopted its final IGRA regulations, it is rational and in keeping with congressional intent to accord weight to an entity's concerns in proportion to the entity's physical proximity to the development in question. See 73 Fed. Reg. at 29,356-57. Although the Picayune Tribe is correct that the Secretary concluded that the Tribe had rebutted the 25-mile radius presumption contained in the IGRA regulations, see 25 C.F.R. § 292.2, that conclusion only meant that
As to the Secretary's consideration of the financial impact that development of the Madera Site would have on the Picayune Tribe, the Secretary's conclusion that "competition from the [North Fork] Tribe's proposed gaming facility in an overlapping gaming market is not sufficient, in and of itself, to conclude that it would result in a detrimental impact to Picayune" was supported by the evidence in the record. IGRA ROD at 371. In particular, the FEIS cited a "gravity model impact analysis," performed by a gaming and entertainment consulting firm called the Innovation Group, which evaluated the gaming market in and around Madera County. See FEIS at 4.7-61. That analysis concluded that Alternative A on the Madera Site would result in "a market share decline of approximately 19 percent at [the Picayune Tribe's casino]." Id. The analysis also predicted that the development of Alternative A would increase "total gaming expenditures at venues in the immediate market area by over $90 million." Id. Most importantly, the analysis observed that "[a] 19% revenue decline is ... commonplace for incumbents in expanding gaming markets," and "even in the worst case, should market share at competing facilities decline by the above percentages, all of the facilities are expected to remain open and to continue to generate sustainable profits for their tribal owners." Id. at 4.7-61 to 62.
In sum, the Innovation Group's analysis concluded that permitting a class III gaming establishment on the Madera Site would result in the Picayune Tribe having a smaller slice of a larger gaming pie, and that the net economic effect of the North Fork Tribe's entry into the market would be that "the impact on the viability of operations" from the Picayune Tribe's resulting market-share decline "is not one that jeopardizes the casino's ability to remain open." Id. at 4.7-61. From this economic analysis, the Secretary was likely rational in concluding that such competition would not be significantly detrimental to the Picayune Tribe. Furthermore, the gaming compact between the North Fork Tribe and the State of California requires the North Fork Tribe to pay the Picayune Tribe what will likely amount to millions of dollars each year until 2020 "[t]o mitigate the potential economic impact of the Tribe's proposed Gaming Facility." See Tribal-State Compact Between the State of California and the North Fork Rancheria of Mono Indians of California ("North Fork Compact") at 15-16 (Aug. 30, 2012), available at http://gov.ca.gov/docs/Final_Compact_--_North_Fork.pdf.
Finally, the Court will discuss the plaintiffs' arguments that the Secretary's determinations ran afoul of the requirements contained in the NEPA.
The plaintiffs' most forceful objection under the NEPA is that the Secretary failed to give adequate consideration to a reasonable range of alternative sites for the proposed gaming establishment, as required by the NEPA. See Pls.' Mem. at 25-29; see also 42 U.S.C. § 4332(2)(C)(iii) (requiring agencies to consider "alternatives to the proposed action"). The NEPA's implementing regulations provide that, in considering alternatives, an agency must, inter alia "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which are eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a). For those alternatives not eliminated from detailed study, the agency must "[d]evote substantial treatment to each alternative ... so that reviewers may evaluate their comparative merits." Id. § 1502.14(b). "An alternative is `reasonable' if it is objectively feasible as well as `reasonable in light of the [the agency's] objectives.'" Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C.Cir.2011) (quoting City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C.Cir.1999)); see also 43 C.F.R. § 46.420(b) (defining "reasonable alternatives" as "alternatives that are technically and economically practical or feasible and meet the purpose and need of the proposed action").
In this regard, the Secretary considered five alternatives in detail: (1) Alternative A was the full development of the Madera Site, as discussed above; (2) Alternative B was "a smaller-scale version of Alternative A, but without hotel or pool components," FEIS at 2-37; (3) Alternative C was "a mixed-use retail development" on the Madera Site that "would include several larger retail outlet stores and smaller storefronts, including food and beverage establishments," but would not include any gaming, id. at 2-45; (4) Alternative D would be located on the North Fork Rancheria and would "consist of a smaller-scale version of Alternative A, without retail, high-limit gaming, entertainment, hotel, or pool components," id. at 2-54; and (5) Alternative E would have been the status quo, or the "no-action alternative" required to be considered under NEPA regulations, under which "neither site would be developed," see id. at 2-67; 40 C.F.R. § 1502.14(d) (requiring
The plaintiffs have two primary claims regarding the Secretary's consideration of alternative sites. First, they argue that the Secretary failed to consider certain sites in detail that the plaintiffs say were reasonable and viable alternatives. See Pls.' Mem. at 26-29. In particular, the plaintiffs focus on a 135-acre tract of land, known as the "Old Mill site," which "housed a working lumber mill between 1941 and 1994." IGRA ROD at 291. The plaintiffs argue that the Old Mill site "is viable as a site for a casino," and the Secretary arbitrarily and capriciously erred to eliminate it from further consideration as a reasonable alternative to the Madera Site. See Pls.' Mem. at 26. The plaintiffs observe that although "the Secretary focused on environmental problems with the site and the purported claim that the site's owner would not sell the property for the purposes of developing a casino," the plaintiffs nevertheless contend that "[n]one of these reasons ... was a proper basis for eliminating this alternative from consideration." Id. at 27.
None of the plaintiffs' objections, however, are likely to succeed on the merits. First, the Secretary observed a number of potential environmental problems with developing the project on the Old Mill site, namely, that the soil on the site had been contaminated with various potentially harmful compounds such as petroleum hydrocarbons, asbestos, lead-based paint, and diesel fuels. See IGRA ROD at 292. Although the plaintiffs note that the Secretary concluded that this contamination could be remedied through various clean-up efforts, see Pls.' Mem. at 27, the Secretary also observed that "the potential for the presence of unknown contamination related to past uses on the site remains," IGRA ROD at 292. More importantly, the Secretary observed that the owners of the Old Mill site "sent two letters to the BIA stating that the site would not be sold for the development of a casino project." Id. The plaintiffs' argument that the owner's refusal to sell the site for gaming purposes "is insufficient to reject the site," Pls.' Mem. at 27, makes little sense. Although gaming was not the express purpose of the proposed action, it was a central focus of the proposed action because it was the use of the land that was most likely to provide the revenue needed to meet the purpose and need of the project, see IGRA ROD at 287 (listing purpose and need), and therefore it was likely rational, for all of the reasons stated in the IGRA ROD, for the Secretary to reject the Old Mill site as a reasonable alternative.
The plaintiffs also complain that the Secretary improperly rejected the North Fork Rancheria and other sites closer to the North Fork Tribe's historic area. They contend that the reason for this "was ultimately about windfall profits" to the North Fork Tribe. See Pls.' Mem. at 28-29. They also argue that the Secretary's analysis on economic impacts was inconsistent because, on the one hand, sites near the North Fork Rancheria were rejected because of the potential economic impact on neighboring tribal gaming operations, while on the other hand the Picayune Tribe's economic concerns regarding development on the Madera Site were found to be insufficient. See id. The plaintiffs' arguments in this regard are unlikely to lead to success on the merits because they fail to appreciate that the purpose and need of a proposed action is a cornerstone of whether an alternative is reasonable under the NEPA.
The plaintiffs also contend that the Secretary "failed to take a `hard look' at the impacts of the proposed action," as required by the NEPA. Pls.' Mem. at 30. In this regard, the plaintiffs either rehash the same arguments they made regarding the Secretary's consideration of detriment to the surrounding community (e.g., crime, problem gambling, impacts on local governments, environmental impacts), see supra Part III.B.3, or they offer conclusory statements about the Secretary "stack[ing] the deck in favor of the [Madera Site]" and "minimiz[ing] how the proposed mega-casino development will negatively impact water resources, protected species and associated critical habitat and air quality and land resources," Pls.' Mem. at 31. This sort of cursory, undeveloped argument does not state a colorable claim that an agency violated the NEPA, particularly in this case where the Secretary's two RODs discussed at some length the exact issues the plaintiffs say were minimized. See IGRA ROD at 300-09 (discussing environmental impacts); IRA ROD at 397-406 (same).
The plaintiffs also argue briefly that "the BIA failed to allow adequate participation by the general public" throughout the North Fork Tribe's application process. Pls.' Mem. at 30. They argue that the "public hearing facility" was "too small," that seating and speaking preference was given to the North Fork Tribe and other proponents of the casino development, and that the BIA has "attempted to evade public scrutiny for its unlawful decision by making it difficult for interested parties to review the Secretary's decision." Id. None of these arguments has any likely merit. The public comment period in this case was robust, allowing for hundreds of written comments as well as 101 spoken comments at the public hearing. See Defs.' Ex J (listing all public comments). Written comments came from a variety of sources, including 62 comments from government agencies, 21 comments from businesses and non-governmental agencies, 109 comments from individuals, and even 39 comments that were accepted after the close of the comment period. See id. Most notably, although the plaintiffs claim that the public hearing was biased, the record demonstrates
Finally, the plaintiffs argue that the Secretary violated the NEPA by having the FEIS "prepared in violation of the conflict of interest provisions of 40 C.F.R. § 1506.5." Pls.' Mem. at 30. The cited provision provides that "any [EIS] prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency," and "[i]t is the intent of these regulations that the contractor be chosen solely by the lead agency ... to avoid any conflict of interest." 40 C.F.R. § 1506.5(c). The regulation goes on to require that "[c]ontractors shall execute a disclosure statement prepared by the lead agency ... specifying that they have no financial or other interest in the outcome of the project." Id. The plaintiffs' objection stems from the fact that the contractor that prepared the FEIS in this case — a firm called Analytical Environmental Services ("AES") — was retained by the North Fork Tribe to conduct an environmental assessment prior to the EIS process, implying that AES may have had a conflict of interest and a plain motive or incentive to please its tribal client.
The Court is satisfied, however, that the plaintiffs are unlikely to succeed on the merits of their conflict-of-interest argument regarding AES's involvement in the preparation of the EIS for the Madera Site. First, the North Fork Tribe, AES, and the BIA all signed a disclosure agreement prior to the development of the EIS, which stated, in compliance with 40 C.F.R. § 1506.5(c), that "AES has no financial interest in the results of the environmental analysis or the BIA's decision regarding the approvals for the project" and that "North Fork Rancheria will be solely responsible for payment of all AES fees." Defs.' Ex. L, at 1, ECF No. 30-12. Second, the D.C. Circuit has held that "there is no cause to invalidate [an] EIS" unless "any error in the selection of the contractor... compromise[d] the objectivity and integrity of the NEPA process," which requires demonstrating "substantive flaws in the EIS itself." Cmts. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 686-87 (D.C.Cir.2004) (internal quotation marks omitted). As discussed above, the Court has concluded that none of the purported substantive flaws identified by the plaintiffs are likely to succeed on the merits, and therefore, the plaintiffs have failed to demonstrate any likely prejudice that could have resulted from an error in the selection of AES as the contractor in this case. Thus, the Court need not determine whether the DOI erred in selecting AES in the first place. See id. at 686 (concluding that, without any showing of "substantive
As the foregoing discussion establishes, the Court concludes that the plaintiffs have not established a likelihood of success on the merits of any of their claims against the defendants. Nevertheless, in keeping with the traditional "sliding scale" consideration of the preliminary injunction factors, the Court will proceed to analyze the likelihood of irreparable harm, the balance of harms, and the public interest in determining whether to grant the plaintiffs' request for preliminary injunctive relief.
Although the plaintiffs' failure to establish a likelihood of success on the merits weighs heavily in the preliminary injunction calculus, "[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." 11A CHARLES ALAN WRIGHT, et al., FEDERAL PRACTICE & PROCEDURE § 29481.1 (3d ed. 2012). The D.C. Circuit "has set a high standard for irreparable injury." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006). "The moving party must show `the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.'" Id. (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). Additionally, as the term "irreparable injury" implies, "the injury must be beyond remediation." Id.
In this case, the plaintiffs contend that they are likely to suffer irreparable harm if the fee-to-trust transfer is not enjoined because "[i]t is unclear whether a transfer into trust can be reversed," thereby rendering inevitable the irreparable harm associated with the construction and operation of the casino complex (e.g., environmental and aesthetic changes to the land and surrounding community). See Pls.' Mem. at 35-38. Additionally, the plaintiff raise the concern that the Court may lack jurisdiction to enjoin construction or gaming activities on the Madera Site once the land is transferred into trust because the North Fork Tribe will then be able to "claim that any suit to enjoin the development on the [Madera Site] or to reverse the trust acquisition is barred by tribal sovereign immunity." Id. at 39; see also Tr. of Oral Argument at 22 (unofficial transcript) (counsel for Stand Up plaintiffs stating that "we believe most of the harms are to the plaintiffs' ability to fully adjudicate this case"). Thus, there are two potential irreparable injuries that could, according to the plaintiffs, occur if the Court does not enjoin the transfer before it is consummated on February 1, 2013: (1) the loss of any available remedy to prevent the physical alteration of the Madera Site post-transfer; and (2) actual physical alteration of the Madera Site.
Furthermore, although tribal sovereign immunity might in some circumstances prevent a court from enjoining tribal activities on lands held in trust for an Indian tribe, the North Fork Tribe has provided an explicit waiver of its sovereign immunity as it relates to the claims in the instant action. According to the North Fork Tribe, it "understands that the limited waiver of sovereign immunity effected by its intervention would make it subject to any permanent injunctive relief that might be entered by the Court ... including relief that would prevent or limit activities on the property or require the United States to transfer the land out of trust." Intervenor's Opp'n at 39; see also Tr. of Oral Argument at 16 (unofficial transcript) (government counsel stating that North Fork Tribe "are going into this with their eyes wide open"). The plaintiffs are perhaps justified in their concerns, on a general level, because "[a]ny waiver of a tribe's sovereign immunity, whether by Congress or by the tribe itself, `cannot be implied but must be unequivocally expressed.'" Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1498 (D.C.Cir. 1997). Even so, the North Fork Tribe's waiver of immunity in this case, although somewhat limited, has been unequivocally expressed and would, by its terms, extend to any future order of this Court that the Tribe cease construction or gaming activities on the land. See Intervenor's Opp'n at 39 (waiving sovereign immunity as to "any permanent injunctive relief that might be entered by the Court ... including relief that would prevent or limit activities
Similarly, the plaintiffs have also not demonstrated a likelihood that any tangible alteration to the Madera Site will take place if no preliminary injunctive relief is granted. The plaintiffs focus heavily upon what the North Fork Tribe will have the ability to do once the land is transferred. See, e.g., Pls.' Mem. at 38 ("If the Secretary is allowed to take the land into trust, the Tribe may immediately begin offering gambling or begin construction." (emphasis added)); id. at 40 ("Here, the Tribe has full authority and power to commence development and construction of the casino immediately after the fee-to-trust transfer occurs...." (emphasis added)); Pls.' Reply at 20 ("Once the [Madera Site] goes into trust, the Tribe will have sovereign authority to alter the land...." (emphasis added)). Yet, the Supreme Court has clearly held that "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22, 129 S.Ct. 365. The North Fork Tribe has also represented numerous times that, once the transfer is completed, a number of steps will need to be taken before any actual construction or gaming activities can feasibly begin. See, e.g., Intervenor's Opp'n at 37 ("Under the most optimistic assumptions, the Tribe could not begin actual operation of a casino for many months."); id. at 38, 129 S.Ct. 365 ("[T]here are many steps to be taken after the land is taken into trust but before construction could begin."). The plaintiffs have offered nothing more than speculation and mere possibility to rebut the Tribe's representations in this regard.
As a result, the Court concludes that the plaintiffs have failed to demonstrate a likelihood of irreparable harm that would occur absent preliminary injunctive relief. Despite the plaintiffs' insufficient showing of irreparable harm, the Court is mindful that, once the transfer occurs, the likelihood of irreparable harm will increase as this litigation continues. Therefore, the Court will require, during the pendency of this case, that the North Fork Tribe provide notice to the parties and the Court at least 120 days prior to any physical alteration of the land at the Madera Site. To be clear, "physical alteration" includes anything that could reasonably be considered construction activities, the breaking of any ground at the site, or the destruction of
Having concluded that the plaintiffs have demonstrated neither a likelihood of success on the merits of their claims nor a likelihood of irreparable harm absent injunctive relief, the Court is persuaded that the grant of preliminary injunctive relief would be unwarranted. See Davis, 571 F.3d at 1295 ("Because the [plaintiffs] have failed to demonstrate either a substantial likelihood of success on the merits or irreparable harm, we affirm the district court's denial of a preliminary injunction."). Nevertheless, the Court will also consider the other two preliminary injunction factors — the balance of harms and the public interest — lest the Court run afoul of the D.C. Circuit's admonition that district courts "consider meaningfully [all of] the preliminary injunction factors." See Gordon, 632 F.3d at 725; see also Winter, 555 U.S. at 26, 129 S.Ct. 365 ("Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion.").
As already discussed above, little if any harm would inure to the plaintiffs if no preliminary injunctive relief were granted. This conclusion is buttressed by the Court's directive that the North Fork Tribe provide 120 days' notice before any physical alteration of the Madera Site. Absent a preliminary injunction, the transfer of the trust lands will occur on February 1, 2013, and the North Fork Tribe will continue on its odyssey to make its long-awaited gaming complex a reality. Yet, none of the tangible harms identified by the plaintiffs (e.g., traffic congestion, increased crime, problem gambling, environmental effects) would be remotely likely to occur for some time. Indeed, the plaintiffs would have four months' notice before any such harms ever commenced, which would provide ample opportunity for them to renew their request for preliminary injunctive relief if this case is still pending.
On the other side of the scale, the intervenor-defendant North Fork Tribe will be at least incrementally harmed by the grant of preliminary injunctive relief. As recited in the Tribe's briefing, the North Fork people are in "dire economic straits" with higher than a 16% unemployment rate, and any preliminary injunctive relief would bring to a screeching halt the process of the Tribe obtaining the economic benefits contemplated by the IGRA. See Intervenor's Opp'n at 42-43. Comparing the relative tangible harm that would be imposed upon the North Fork Tribe if a preliminary injunction were granted with the purely symbolic injury suffered by the plaintiffs if a preliminary injunction were not granted, the Court concludes that the balance of equities tips in favor of not granting a preliminary injunction.
Finally, the Court must also consider whether the granting of an injunction would be in the public interest. First, in evaluating the public interest, it is important to observe that the government defendants have compelled the Court to consider the merits of the Secretary's "extraordinary assertion of power,"
Nevertheless, absent a demonstrated likelihood that the Secretary has acted improperly in transferring the Madera Site into trust for the purpose of developing a gaming establishment, enjoining that agency action would not be in the public interest. Since the agency's actions were ostensibly in furtherance of Congress' judgment that Indian tribes must, in appropriate circumstances, be given the opportunity to pursue economic self-sufficiency and strong tribal government through gaming, the Court would be remiss to stand in the way absent a showing that the agency has acted in likely contravention of its statutory responsibilities. Therefore, the Court concludes that, on balance, the public interest would not be served by a grant of preliminary injunctive relief.
As the foregoing discussion makes plain, all four of the preliminary injunction factors weigh against the granting of a preliminary injunction in this case. Therefore, the Court will deny the plaintiffs' motion for preliminary injunction. Additionally, for the reasons discussed above, the Court will deny the government defendants' motion to transfer venue.
An appropriate Order accompanies this Memorandum Opinion.
