The Ninth Circuit Court of Appeals upheld the Bureau of Indian Affairs’ (BIA) decision to take a parcel of land into trust for a tribe seeking to build a casino and hotel complex. The court held that the BIA had authority to take the parcel into trust under the Indian Reorganization Act (IRA) and fulfilled its consultation obligations under the Indian Gaming Regulatory Act (IGRA). The court also determined the BIA fulfilled the requirements of the National Environmental Policy Act (NEPA). [Cachil Dehe Band of Wintun Indians of Colusa Indian Community v. Zinke, ___F.3d___, Case No. 17-15245 (9th Cir. May 2, 2018).]
Factual and Procedural Background
In 2002, the Estom Yumeka Maidu Tribe (Tribe) of the Enterprise Rancheria (Enterprise) submitted a “fee-to-trust” application asking the Secretary of the Interior to accept into trust forty acres of land in Yuba County so Enterprise could develop an off-reservation casino and hotel.
Having elected to prepare an Environmental Impact Statement (EIS) the proposed fee-to-trust acquisition, the BIA released a draft EIS in 2008 and a final EIS in 2010.
While taking steps required by NEPA, Enterprise and the BIA also took steps required under the IGRA to allow the Secretary of the Interior to make the determinations required under the statute. Notably, as part of its review, the Secretary must determine whether:
- . . .a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.
In making his determination, the Secretary is required to seek the consultation of state and local officials, including officials of nearby Indian Tribes. The BIA commenced this consultation in January 2009.
In September 2011, after the consultation process was complete, the BIA published its Record of Decision (ROD) under the IGRA finding that the trust acquisition would be in the best interest of the Tribe and its members and would not be detrimental to the surrounding community.
In November 2012, the BIA issued a ROD under the IRA making the findings required under that statute. Immediately after the BIA’s approval, several entities including a nearby Indian tribe with a casino of its own, sued to enjoin the trust acquisition. Plaintiffs alleged that the BIA violated NEPA, the IGRA, and the IRA. The U.S. District Court granted summary judgment in favor of Enterprise. Plaintiffs appealed.
The Ninth Circuit’s Decision
Challenges Based on the Indian Reorganization Act
Plaintiffs first alleged that the Department of the Interior did not have authority under the IRA to take land into trust for Enterprise because Enterprise was not an Indian Tribe under federal jurisdiction in 1934, the year the IRA was passed. Rejecting this argument, the court explained that because of the IRA’s expansive definition of “tribe” evidence demonstrating that a group of Indians was residing on one reservation in 1934 was sufficient to demonstrate that those Indians were in a “tribe” pursuant to the IRA. The Ninth Circuit also pointed to evidence that Enterprise had voted to opt out of the IRA in 1935, which proved that the Tribe existed when the RIA was enacted. Accordingly, the court determined that the Interior had authority to take land into trust for Enterprise’s benefit.
Plaintiffs also challenged the Interior’s finding that the land acquisition was “necessary to facilitate tribal self-determination, economic development, or Indian housing,” which is a required finding under the IRA’s implementing regulations. The court disagreed, holding that there was ample evidence to support the finding, including the fact that Enterprise had limited land holdings, none of which were usable for economic development.
Challenges Based on the Indian Gaming Regulatory Act
Plaintiffs next alleged that the BIA failed to fulfill the requirements of the IGRA. The IGRA generally prohibits gaming on lands which the government has taken into trust for an Indian tribe after 1988, unless the Secretary of the Interior, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.
Plaintiffs’ main contention was that the BIA violated the IGRA’s consultation requirement because it failed to consult with another Tribe that also operated a casino in the area. As explained by the court, however, the aggrieved Tribe did not fit within the statutory definition of “nearby” which includes only those tribes located within a 25-mile radius. Moreover, the BIA sent a letter to the Tribe allowing it to petition for consultation, but the Tribe failed to take advantage of that opportunity.
Plaintiffs also argued that the determination that there would be no detrimental harm to the surrounding community was arbitrary and capricious because mitigation measures imposed by the BIA to protect the community from harm were “illusory” and not enforceable. The court disagreed finding that it is within the expertise of the agency to determine the likelihood required mitigation measures will be followed, and the BIA’s determination that Enterprise would fulfill its required mitigation measures was not arbitrary or capricious.
Challenges based on the NEPA
Challenging the land acquisition under NEPA, plaintiffs first alleged that the EIS’s “purpose and need” statement was artificially limited. The court disagreed, finding that the purpose and need statement, part of which was to provide Enterprise with a vehicle for substantial economic development, and the various benefits that may accrue from economic self-sufficiency, was actually quite broad. The court also found that the purpose and need statement did not lead to a deficient analysis of possible alternatives.
Plaintiffs also argued that the EIS failed to adequately analyze the project’s effect on the environment because some of the data on which the EIS relied was inadequate. Specifically, plaintiffs argued that the data relied on for the biological analysis was “stale” and that the EIS should have used different data in its analysis of socio-economic effects. But, other than pointing out that it was several years old, plaintiffs failed to establish that the biological data was unreliable. Regarding the economic data, plaintiffs’ preference for different data did not establish that the data relied on in the EIS was inadequate. Moreover, finding that the plaintiffs’ argument regarding the economic data was connected only to their claim that another Tribe with a competing casino would experience economic harm, the court reiterated that purely economic interests do not fall within NEPA’s zone of interests.
Finally, the court rejected plaintiffs’ argument that the BIA failed to exercise sufficient independent oversight over the environmental review process. Plaintiffs argued that Enterprise, and not the BIA, selected the environmental consultants that prepared the EIR and that the consultants had an impermissible conflict of interest since it was contracted to assist Enterprise in obtaining necessary permit approvals. The court disagreed, finding there was no evidence that the BIA did not make an independent choice to contract with the consultant and the any financial stake the consultant might have had in aiding with permit approvals was not significant.
Conclusion and Implications
As demonstrated by the opinion, there is an elaborate regulatory scheme that must be navigated before land can be taken into trust for Tribal development. At the same time, however, the law provides discretion to the Secretary of the Interior and courts will give deference to the agency’s determinations if they are adequately supported. Notably, in what it deemed “a matter of first impression,” the court held that it is within the expertise of the agency to determine the likelihood that mitigation measures imposed through a ROD will be followed. The decision also reaffirms important NEPA principles regarding the purpose and need statement as it relates to the analysis of alternatives in an EIS, and an agency’s obligation to exercise independent oversight over the preparation of an EIS.
The opinion is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/02/17-15245.pdf
(Chris Stiles)
