Capay Valley Coalition v. Jewell, et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.September 7, 2016

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice JOANN KINTZ, Trial Attorney Indian Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044-7611 Telephone: (202) 305-0424 Facsimile: (202) 305-0275 Email: joann.kintz@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CAPAY VALLEY COALITION, Plaintiff v. SALLY JEWELL, et al., Defendant(s) and YOCHA DEHE WINTUN NATION, Defendant-Intervenor. CASE NO. 2:15-CV-02574-MCE-KJN FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DATE: December 15, 2016 TIME: 2:00 p.m. COURTROOM: 7 JUDGE: Hon. Morrison C. England, Jr. Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 260, Federal Defendants, Sally Jewell, Secretary of the Interior, Lawrence Roberts, Acting Assistant Secretary–Indian Affairs, Amy Dutschke, Pacific Regional Director of the Bureau of Indian Affairs, and the Bureau of Indian Affairs, by undersigned counsel, respectfully move the Court to enter summary judgment in favor of Federal Defendants, and deny Plaintiff’s motion for summary judgment. The grounds for this Motion are set forth in the accompanying Memorandum of Points and Authorities. Pursuant to the Court’s June 9, 2016 Order, ECF Doc. 16, the parties are not required to submit a Statement of Case 2:15-cv-02574-MCE-KJN Document 19 Filed 09/07/16 Page 1 of 3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Undisputed Facts under Local Rule 260(a). Instead, Federal Defendants have provided citations to the Administrative Record lodged with the Court and mailed to the parties on June 1, 2016. Dated: September 7, 2016 Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice _/s/ JoAnn Kintz, Esquire_____________ JOANN KINTZ (CO Bar No. 47870) Trial Attorney Indian Resources Section Environment & Natural Resources Division United States Department of Justice Attorneys for Federal Defendants OF COUNSEL: JENNIFER CHRISTOPHER, Attorney-Advisor United States Department of the Interior Office of the Solicitor Division of Indian Affairs 1849 C Street N.W. Washington, D.C. 20240 Case 2:15-cv-02574-MCE-KJN Document 19 Filed 09/07/16 Page 2 of 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE On September 7, 2016, this FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT was served on the following persons electronically via the ECF filing system: Donald B. Mooney 129 C Street, Suite 2 Davis, CA 95616 Telephone: (530) 758-2377 Facsimile: (530) 758-7169 Attorney for Plaintiff PAULA M. YOST MATTHEW G. ADAMS DENTONS US LLP 525 Market Street, 26th Floor San Francisco, California 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Defendant-Intervenor _/s/ JoAnn Kintz_________ JoAnn Kintz Case 2:15-cv-02574-MCE-KJN Document 19 Filed 09/07/16 Page 3 of 3 MPA IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice JOANN KINTZ, Trial Attorney Indian Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044-7611 Telephone: (202) 305-0424 Facsimile: (202) 305-0275 Email: joann.kintz@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CAPAY VALLEY COALITION, Plaintiff v. SALLY JEWELL, et al., Defendant(s) and YOCHA DEHE WINTUN NATION, Defendant-Intervenor. CASE NO. 2:15-CV-02574-MCE-KJN MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DATE: December 15, 2016 TIME: 2:00 p.m. COURTROOM: 7 JUDGE: Hon. Morrison C. England, Jr. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 1 of 28 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MPA IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. STATEMENT OF UNDISPUTED FACTS ........................................................................ 2 A. Trust Application ................................................................................................... 2 B. Complete Fee-to-Trust Application Notice and Comment Period ......................... 3 C. Pacific Regional Director’s Notice of Decision ...................................................... 4 D. Assistant Secretary–Indian Affairs’ Decision on Appeal ....................................... 5 III. BACKGROUND ............................................................................................................... 5 A. Indian Reorganization Act ..................................................................................... 5 B. Interior Regulations ............................................................................................... 6 IV. STANDARD OF REVIEW ................................................................................................ 7 A. Summary Judgment Standard .............................................................................. 7 B. Standard of Review Under the Administrative Procedure Act ............................... 8 V. ARGUMENT .................................................................................................................. 10 A. The Regional Director’s Decision to Approve the Nation’s Fee-to-Trust Application, as Affirmed by the AS-IA, is Reasonable, Supported by the Administrative Record and Entitled to Substantial Deference Under the APA..................................................................................................................... 10 1. The Regional Director Properly Considered the Required Criteria Under 25 C.F.R. § 151................................................................. 10 i. The Regional Director Properly Determined the Nation’s Application Satisfied the Land Acquisition Policy Under 25 C.F.R. § 151.3(a) ...................................................................... 11 ii. The Regional Director Properly Considered the Need for Additional Land Under 25 C.F.R. § 151.10(b) ............................... 13 iii. The Regional Director Properly Considered Jurisdictional Problems And Potential Land Use Conflicts Under 25 C.F.R. § 151.10(f) .......................................................................... 18 B. The AS-IA’s Affirmation of the Regional Director’s Decision is Entitled to Substantial Deference Under the APA ............................................................ 20 VI. CONCLUSION ............................................................................................................... 20 Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 2 of 28 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MPA IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ TABLE OF AUTHORITIES CASES Allen v. Wright, 468 U.S. 737 (1984) ..................................................................................................... 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................................................................... 7 Ariz. Cattle Growers Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010)....................................................................................... 8 Arizona v. Thomas, 824 F.2d 745 (9th Cir. 1987) ........................................................................................ 9 Auer v. Robbins, 519 U.S. 452 (1997) ..................................................................................................... 9 Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ........................................................................................ 14 Camp v. Pitts, 411 U.S. 138 (1973) ..................................................................................................... 9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..................................................................................................... 7 Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ..................................................................................................... 9 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .............................................................................................. 8, 9, 10 City of Lincoln City v. U.S. Dep’t of the Interior, 229 F. Supp. 2d 1109 (D. Or. 2002) .................................................................. 12, 18 19 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004)....................................................................................... 8 City of Yreka v. Salazar, No. 2:10-cv-1734, 2011 WL 2433660 (E.D. Cal. June 14, 2011) ........................... 15, 19 Cronin v. U.S. Dep’t of Agric., 919 F.2d 439 (7th Cir. 1990) ........................................................................................ 9 Cty. of Charles Mix v. U.S. Dep’t of the Interior, 799 F. Supp. 2d 1027 (D.S.D. 2011) ............................................................................ 15 Cty. of Charles Mix v. U.S. Dep’t of the Interior, 674 F.3d 898 (8th Cir. 2012) ........................................................................................ 15 Cty. of Yakima v. Confed. Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992) .................................................................................................. 6, 17 Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 3 of 28 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MPA IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Davis v. EPA, 348 F.3d 772 (9th Cir. 2003) ........................................................................................ 9 Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ..................................................................................................... 9 Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) ........................................................................................ 8 Harrod v. Glickman, 206 F.3d 783 (8th Cir. 2000) ........................................................................................ 11 Indep. Acceptance Co. v. California, 204 F.3d 1247 (9th Cir. 2000)....................................................................................... 8 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012)....................................................................................... 7 Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006)....................................................................................... 14 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ........................................................................................ 14 Lyng v. Payne, 476 U.S. 926 (1986) .................................................................................................. 9, 16 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ..................................................................................................... 9 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) ................................................................................................. 6 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) .................................................................................................. 6, 17 Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008) ........................................................................................ 17 Morton v. Mancari, 417 U.S. 535 (1974) ..................................................................................................... 6 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) ....................................................................................................... 14 Native Ecosystems Council of U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) ........................................................................................ 21 Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003) ........................................................................................ 9 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008)....................................................................................... 20 Nw Motorcyle Ass’n v. U.S. Dep’t of Agric., Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 4 of 28 iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MPA IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ 18 F.3d 1468 (9th Cir. 1994) ........................................................................................ 7 Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120 (9th Cir. 2007)....................................................................................... 21 Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108 (9th Cir. 2007)....................................................................................... 8 South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790 (8th Cir. 2005) ...................................................................... 10, 11, 15, 17 South Dakota v. U.S. Dep’t of the Interior, 314 F. Supp. 2d 935 (D.S.D. 2004) .............................................................................. 17 INTERIOR BOARD OF INDIAN APPEALS CASES Cass Cty v. Midwest Reg’l Dir., 42 IBIA 243 (2006) ....................................................................................................... 15 City of Lincoln City v. Portland Area Dir., 33 IBIA 102 (1999) ....................................................................................................... 19 Cty. of Sauk, Wis. v. Midwest Reg’l Dir., 45 IBIA 201 (2007) ....................................................................................................... 16 Pres. of Los Olivos & Pres. of Santa Ynez v. Pac. Reg’l Dir., 58 IBIA 278 (2014) ....................................................................................................... 15 Shawano Cty., Wis. v. Acting Midwest Reg’l Dir., 53 IBIA 62 (2011) ................................................................................................... 15, 16 STATUTES 18 U.S.C. § 1162 ..................................................................................................................... 18 25 U.S.C. § 331 ....................................................................................................................... 6 25 U.S.C. § 465 ................................................................................................................ 1, 6, 19 25 U.S.C. §§ 461-79................................................................................................................ 6 28 U.S.C. § 1360 ..................................................................................................................... 18 5 U.S.C. § 704 ......................................................................................................................... 5 5 U.S.C. § 706 .............................................................................................................. 1, 8, 9, 13 REGULATIONS 25 C.F.R. § 151.9 .................................................................................................................... 7 25 C.F.R. § 151.10 ........................................................................................................... passim 25 C.F.R. § 151.12 .................................................................................................................. 7 Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 5 of 28 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MPA IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ 25 C.F.R. § 2.20 ................................................................................................................... 5, 8 25 C.F.R. § 2.4(c) .................................................................................................................... 5 25 C.F.R. § 151.3(a)................................................................................................. 6, 10, 11, 12 43 C.F.R. § 4.332 .................................................................................................................... 8 Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 6 of 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Pursuant to Fed. R. Civ. P. 56(b), Sally Jewell, Secretary of the Interior (“Secretary”), Lawrence Roberts, Acting Assistant Secretary–Indian Affairs (“AS-IA”), Amy Dutschke, Pacific Regional Director of the Bureau of Indian Affairs (“Regional Director”), and the Bureau of Indian Affairs (“BIA”) (collectively, “Federal Defendants”), respectfully submit this Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and in Support of Federal Defendants’ Motion for Summary Judgment. There are no genuine issues of material fact and Federal Defendants are entitled to judgment as a matter of law. I. INTRODUCTION In this action, Capay Valley Coalition (“Plaintiff”), a non-profit organization, challenges the Regional Director’s April 28, 2014 Notice of Decision (“NOD”) to acquire in trust for the Yocha Dehe Wintun Nation (“Nation”)—a federally-recognized tribe—approximately 853 acres of fee land (the “Property”) located within the Nation’s ancestral home lands and within what is now the unincorporated area of Yolo County, California. Acting pursuant to Section 5 of the Indian Reorganization Act (“IRA”), 25 U.S.C. § 465,1 and the Department of the Interior’s (“Interior’s”) implementing regulations, 25 C.F.R. Part 151 (“Part 151”), the Regional Director determined that acquiring the land in trust for the Nation satisfies the necessary criteria, including that the acquisition is essential to the Nation’s efforts to restore its ancestral home lands and fosters the Nation’s self-determination by permitting the Nation to exercise the full scope of its sovereign authority over the lands. In making this determination, the Regional Director adhered to all statutory and regulatory requirements and considered all relevant criteria. Plaintiff asserts that the Regional Director “articulated no defensible rationale” for acquiring the land in trust and misapplied the factors contained in Part 151, and thus argues that the decision should be overturned under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 et seq. and remanded to the agency for further review. Plaintiff seeks this relief, 1 Title 25 of the United States Code has recently been re-numerated such that 25 U.S.C. § 465 is now 25 U.S.C. § 5108. Because the Regional Director and the AS-IA decisions utilized the former numerical cite, in place at the times of the decisions, for ease, this filing does the same. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 7 of 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ however, only as to part of the challenged decision, insofar as it relates to those portions of the lands designated for agricultural purposes. And even then, Plaintiff only challenges the Regional Director’s application of two of the seven factors she was required to consider under 25 C.F.R. § 151.10—the Nation’s need for the lands and jurisdictional problems and potential land use conflicts associated with the trust acquisition. It is Plaintiff, not the Regional Director, who misapplies these two factors. And, despite the Nation’s continual representations to the Regional Director that it has no intention of developing any of the agricultural lands included in the trust acquisition, Plaintiff’s challenge appears to be bred out of an unfounded concern that the Nation will at some point develop those lands. The speculation finds no support in the Administrative Record, and despite Plaintiff’s efforts to suggest otherwise, the law imposes no requirement on the Regional Director to presume, contrary to existing evidence, that the Nation intends to develop the land. As the agency tasked with administering Section 5 of the IRA, both the Regional Director’s decision to acquire the land in trust for the Nation, and the Assistant Secretary– Indian Affairs’ decision upholding the Regional Director’s decision on appeal, are entitled to substantial deference. Plaintiff cannot meet the heavy burden of demonstrating that the Regional Director’s decision was arbitrary, capricious, or contrary to law under the APA. As a result, Federal Defendants respectfully request that this Court grant their Motion for Summary Judgment. II. STATEMENT OF UNDISPUTED FACTS A. Trust Application On June 20, 2011, the Nation submitted an application to the Regional Director requesting the BIA acquire the Property in trust for the benefit of the Nation. AR003003. The Property consists of fifteen parcels located in the Capay Valley, a part of the Nation’s ancestral homeland. AR003016. The Property is within an unincorporated area of Yolo County, California and is contiguous to the northern, western and southern boundaries of the Nation’s existing trust land. AR003005, AR003014. The Property is “surrounded by undeveloped, open space and agricultural land” and is adjacent to trust lands held by the Nation upon which Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 8 of 28 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ tribal member housing, the Nation’s community center, and a tribal recreation area are located. AR003014-15. Land north of the Property is owned in fee by the Nation. AR003022. Nearly all of the Property is in agricultural production. AR003015. There are five single family homes, owned by the Nation, on the Property. Id. Four of the five homes are unoccupied and the fifth houses the Nation’s Cultural Department. Id. The Nation’s trust application addressed the Part 151 governing regulatory criteria. AR003003-31. The application stated the Nation’s needs for the Property include: to restore its ancestral land base; to ensure that the Nation remains the beneficial owner of the land in perpetuity; to exercise jurisdiction to the fullest extent (which includes maintenance of the rural character of the Nation and the surrounding lands); to ensure the land is eligible for certain federal grant programs; and to have space for expansion and growth to allow for provision of services and housing for tribal members. AR003016-17. The application also specified that the Property would allow for replacement of the Nation’s existing septic system and for “recycled water to be used for agricultural purposes.” AR003017. The Nation’s application stated its intention to continue agricultural use on the entirety of 9 of the 15 parcels as well as a portion of the other 6 parcels, totaling 753.90 acres. AR003017-18. The Nation’s proposed use for the remaining 99 acres of the Property was for development of tribal housing, educational facilities and a waste water treatment facility. AR003018. B. Complete Fee-to-Trust Application Notice and Comment Period On July 29, 2013, the BIA provided notice of the Nation’s fee-to-trust application and invited comments, specifically requesting comments on the impact of the removal of the Property from the tax rolls, special assessments made against the Property, governmental services provided to the Property, and whether the intended use is consistent with current zoning. AR004052. The County of Yolo requested and was granted a 30-day extension to the public comment period. AR004087, AR004091. In its comment letter, the County of Yolo opposed the transfer of all but 100 acres of the Property. AR004097. The County expressed concern about the Nation having the ability to Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 9 of 28 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ develop the land once it is in trust and also requested deed restrictions to prevent commercial development on the part of the Property to be used for agricultural purposes. AR004099. Plaintiff submitted comments after the comment period had closed, adopting and incorporating by reference the County’s timely comments, and argued that the Nation had failed to demonstrate a need for the Property as required in 25 C.F.R. § 151.10(b). AR004116. Pursuant to 25 C.F.R. § 151.10, on December 13, 2013, the Nation responded to all comments received regarding the Nation’s fee-to-trust application, including the County’s and Plaintiff’s. AR004168-4297. C. Pacific Regional Director’s Notice of Decision On April 28, 2014, the Regional Director issued a Notice of Decision (“NOD”) to accept the Property in trust for the Nation. The NOD includes both the comments from Plaintiff and the County and the Nation’s responses to their comments. AR004356-65. The Regional Director also addressed each of the relevant factors required under 25 C.F.R. § 151.10, including Section 151.10(b), the need for additional land, and Section 151.10(f), jurisdictional problems and potential conflicts of land use which may arise. AR004365-66, AR004368-69. In considering each of the factors under 25 C.F.R. § 151.10, the Regional Director determined that they supported acceptance of the Property in trust. AR004365-70. The Regional Director also found compliance with the National Environmental Policy Act (“NEPA”) due to the preparation of an Environmental Assessment, a notice and comment period, and a Finding of No Significant Impact. AR004370. Thus, the Regional Director concluded that preparation of an Environmental Impact Statement was not required. Id. The NOD also notified interested parties of their right to appeal within 30 days of receipt of the NOD. AR004370. Plaintiff was the only party to file an appeal of the NOD to the Interior Board of Indian Appeals (“IBIA”). AR004381. Plaintiff argued in its notice of appeal that the Environmental Assessment was inadequate; the BIA failed to comply with NEPA, failed to consider all of the factors under 25 C.F.R. § 151.10; the NOD is not supported by the record; and that the NOD was arbitrary and capricious, an abuse of discretion or otherwise not in accordance with the law. AR004383-84. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 10 of 28 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ D. Assistant Secretary–Indian Affairs’ Decision on Appeal On June 17, 2014, pursuant to 25 C.F.R. § 2.4(c), the AS-IA assumed jurisdiction over the timely appeal of the Regional Director’s NOD.2 AR 004430. The IBIA transferred jurisdiction over the appeal to the AS-IA on June 19, 2014. AR004436-38. On August 14, 2015, the AS-IA concluded the Regional Director gave sufficient consideration to the 25 C.F.R. § 151.10 factors, that the NOD was supported by the record, and that the BIA conducted the appropriate level of review under NEPA. The AS-IA affirmed the Regional Director’s NOD. AR004609-24. The AS-IA concluded that the Plaintiff failed to meet its burden of proof to show that the Regional Director “failed to properly exercise her discretion, that she committed error, or that the Decision lacks substantial evidence.” AR004615. He found that the Regional Director reasonably concluded that the Nation’s need for the land and jurisdictional impacts had been considered and analyzed. AR004618-20. A decision made by the AS-IA is final agency action under 5 U.S.C. § 704 upon issuance. See 25 C.F.R. § 151.12(c). On December 11, 2015, Plaintiff brought this lawsuit challenging the Regional Director’s decision to acquire the Property in trust, and the AS-IA’s decision upholding that decision. Complaint, ECF Doc. 1. In bringing this lawsuit, Plaintiff only seeks review of the agency’s application of the 25 C.F.R. § 151.10 factors, and does not challenge the decision under NEPA. Id; see also Pl. Memo. In Support of Summ. Judgmt., ECF Doc 17-1 at 5, n.1 (“Although Plaintiff’s Administrative Appeal challenged the Notice of Decision on grounds of failure to comply with NEPA, Plaintiff did not carry forward the NEPA challenge in this matter.”). III. BACKGROUND A. Indian Reorganization Act The IRA, 25 U.S.C. §§ 461-79, was enacted in 1934 as part of the federal government’s 2 The Department’s administrative appeal regulations authorize the AS-IA to assume jurisdiction over such appeals pending with the IBIA by notifying the IBIA within 15 days of receipt of a notice of appeal. 25 C.F.R. § 2.20. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 11 of 28 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ determination to support “principles of tribal self-determination and self-governance[.]” Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992). The “overriding purpose” of the IRA was to “establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.” Morton v. Mancari, 417 U.S. 535, 542 (1974); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151 (1973). The prior federal policy, including allotment under the General Allotment Act of 1887, 25 U.S.C. § 331 et seq., resulted in enormous losses of tribally owned land, diminishing Indian land holdings from 138 million acres in 1887 to 48 million acres in 1934. See Cty. of Yakima, 502 U.S. at 276 (Blackmun, J., concurring in part and dissenting in part). Thus, the IRA is “sweeping” legislation, Mancari, 417 U.S. at 542, upon which modern Federal Indian law is premised, and is meant to manifest a sharp change in federal policy that replaced, and was further meant to reverse, the disastrous assimilationist policy of the Nineteenth Century. Cty. of Yakima, 502 U.S. at 255. To that end, the “capstone” of the IRA’s land provisions is 25 U.S.C. § 465 (“Section 5”) of the IRA,3 which authorizes the Secretary to acquire land in trust “for the purpose of providing land for Indians.” By authorizing new trust acquisitions, Section 5 allows the Secretary to both establish and restore tribal land bases and to facilitate economic opportunities that were lost or placed out of reach through prior federal policies. See Mescalero Apache Tribe, 411 U.S. at 151-52. B. Interior Regulations Interior’s regulations implementing Section 5, codified at 25 C.F.R. Part 151, set forth the procedures and substantive criteria governing the Secretary’s decision-making on a tribe’s request to have land acquired in trust. These regulations provide that the Secretary, in her discretion, may acquire land in trust when she determines that such an acquisition is authorized by an act of Congress and would satisfy the land acquisition policy, as provided in 25 C.F.R. § 151.3(a). The regulations also require that the Secretary consider several factors, including the need for the land, the purpose for which it will be used, the impact on state and 3Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2211 (2012). Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 12 of 28 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ local governments of removal of land from the tax rolls, potential jurisdictional problems and conflicts over land use, the BIA’s ability to discharge additional responsibilities attendant to Indian trust land, and compliance with the NEPA. Id. §§ 151.10(a)-(c), (e)-(h). A tribe seeking to have land acquired in trust must submit a written request to the Secretary. Id. § 151.9. Once such a request is received, the Secretary must notify state and local governments of the request for a trust acquisition and give 30 days for those governments to provide written comments on potential jurisdictional, tax and special assessment impacts. Id. § 151.10. Pursuant to internal delegations and procedures, BIA Regional Directors have authority to review and make determinations on discretionary trust acquisitions for non-gaming purposes. If a final decision to approve the fee-to-trust application is issued and certain Departmental requirements are met, BIA is required to formally accept title to the subject property. Id. § 151.12(c)(2)(iii). IV. STANDARD OF REVIEW A. Summary Judgment Standard Summary judgment is appropriate where “there is no genuine issue as to any material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.”). It is not necessary that there be no facts in dispute before summary judgment is to be entered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). Summary judgment is appropriate in cases, such as this one, involving judicial review of agency decision-making based upon an administrative record. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012); see also Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994) (“This case involves review of a final agency Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 13 of 28 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ action determination under the Administrative Procedure Act, 5 U.S.C. § 706; therefore resolution of this matter does not require fact finding on behalf of this court.”). B. Standard of Review Under the Administrative Procedure Act Plaintiff seeks judicial review under the APA of the Regional Director’s decision to acquire the Property in trust for the Nation, a decision made final after the AS-IA issued his opinion affirming the decision. Pursuant to his authority under 43 C.F.R. § 4.332 and 25 C.F.R. § 2.20, the AS-IA assumed jurisdiction over the appeal of the Regional Director’s decision. Once the AS-IA issued his opinion affirming the decision, that determination became Interior’s final agency action. As such, this challenge is governed by the APA and its accompanying standard of review. Under the APA, the reviewing court may only set aside an agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007) (quoting Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). An agency decision is arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 962 (9th Cir. 2006) (internal quotation marks, brackets, and citations omitted). In keeping with this standard, “[w]here a court reviews an agency action involv[ing] primarily issues of fact, and where analysis of the relevant documents requires a high level of technical expertise, [it] must defer to the informed discretion of the responsible federal agencies.” City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004) (quotation and citation omitted); Arizona Cattle Growers Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010). Thus, “[t]he ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Pres. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 14 of 28 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); see also Davis v. EPA, 348 F.3d 772, 781 (9th Cir. 2003) (citing Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir. 1987)). Agency interpretations of its own implementing regulations are typically accorded heightened deference and are controlling unless clearly erroneous or inconsistent with relevant regulations. Auer v. Robbins, 519 U.S. 452, 461 (1997); Lyng v. Payne, 476 U.S. 926, 939 (1986) (agency’s construction of its own regulation is entitled to substantial deference). These limitations on judicial review of agency decision-making are grounded in the separation of powers doctrine and the recognition that Congress has conferred certain discretionary decision-making powers to federal agencies equipped with special expertise. Cronin v. U.S. Dep’t of Agric., 919 F.2d 439, 444 (7th Cir. 1990). For the same reasons, a reviewing court should accord deference to agency interpretation and implementation of statutes the agency is charged with administering. Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Ultimately, the reviewing court’s task is simply to determine “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989); Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). Because Interior administers Section 5 of the IRA, and the AS-IA possesses final decision-making authority concerning challenges to actions by BIA officials, both the Regional Director’s decision to approve the Nation’s trust application, and the AS-IA opinion upholding that decision, are entitled to substantial deference. See Chevron, 467 U.S. at 844. Finally, judicial review of agency decision-making is limited to review of the administrative record. “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706; see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)) (“[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”). Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 15 of 28 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ V. ARGUMENT A. The Regional Director’s Decision to Approve the Nation’s Fee-to-Trust Application, as Affirmed by the AS-IA, is Reasonable, Supported by the Administrative Record and Entitled to Substantial Deference Under the APA In reviewing Interior’s decision to acquire the Property in trust for the benefit of the Nation, this Court is tasked with three inquiries: (1) whether the Secretary acted within the scope of her authority under the IRA and BIA’s implementing regulations 25 C.F.R. Part 151; (2) whether the decision was based on consideration of relevant factors; and (3) whether the Secretary followed the necessary procedural requirements. South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 799 (8th Cir. 2005) (citing Overton Park, 401 U.S. at 415-17). Here, Plaintiff does not dispute that the Secretary possesses the authority to acquire land in trust for tribes, nor does Plaintiff allege any procedural faults in the decision to acquire the Property in trust for the Nation. Instead, Plaintiff’s sole contention is that the Regional Director did not properly consider the criteria in Part 151. This contention, however, finds no support in the NOD, the AS-IA opinion affirming that decision, or the Administrative Record underpinning it. AR004348-80. Having properly exercised her discretionary authority, the Secretary’s decision to acquire the land in trust is reasonable and entitled to substantial deference. 1. The Regional Director Properly Considered the Required Criteria Under 25 C.F.R. § 151 In reviewing a tribe’s fee-to-trust application, Part 151 regulations require that the BIA assess whether a proposed acquisition comports with the agency’s stated land acquisition policy under 25 C.F.R. § 151.3(a). If the BIA is satisfied a proposed acquisition meets the policy, and the lands are located either within the boundaries of or contiguous to an Indian reservation or consolidation area, as is the case here, then the BIA is tasked with considering the following criteria under Part 151.10: (a) whether there is sufficient statutory authority for the acquisition; (b) the need for the land; (c) the purpose for the land; (e) potential tax impacts to state and local governments; (f) jurisdictional problems or conflicts of land use; (g) whether BIA is able to discharge additional responsibilities that would result from the acquisition; and (h) Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 16 of 28 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ environmental requirements.4 25 C.F.R. §§ 151.10(a)-(c), (e)-(h). In assessing these factors, the BIA “need not exhaustively analyze every factor, but must base its determination ‘upon factors listed in the appropriate regulations’ and must use a ‘reasonable interpretation of the regulation and the statute’ in reaching its conclusion.” South Dakota, 423 F.3d at 800 (quoting Harrod v. Glickman, 206 F.3d 783, 788 (8th Cir. 2000)). Plaintiff does not challenge the Regional Director’s decision as to the majority of these factors, and instead targets three particular determinations made by the Regional Director: that the proposed acquisition complied with the agency’s land acquisition policy under Part 151.3(a); that the Nation demonstrated a need for the Property under 151.10(b); and that the proposed acquisition would not result in significant jurisdictional problems or land use conflicts under Part 151.10(f). ECF Doc. 17-1 at 15. As set forth in detail below, BIA’s decision to acquire the land in trust, the AS-IA’s affirmation of decision on appeal, and the Administrative Record amply demonstrate that these regulatory requirements were adequately considered. i. The Regional Director Properly Determined the Nation’s Application Satisfied the Land Acquisition Policy Under 25 C.F.R. § 151.3(a) The Regional Director found the proposed acquisition to be squarely within the BIA’s general land acquisition policy, as provided at Section 151.3(a). This policy states that the Secretary may acquire land in trust for a tribe under any one of the following three requirements: 1) When the property is located within the exterior boundaries of the tribe’s reservation or adjacent thereto, or within a tribal consolidation area; or 2) When the tribe already owns an interest in the land; or 3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing. Id. (emphasis added). Although the regulation is clear that a positive finding under any one of the three requirements results in compliance with the land acquisition policy, the BIA went a step further and made a determination that the Nation’s fee-to-trust application met all three. 4 25 C.F.R. § 151.10(d) is not applicable here, as it only applies to acquisitions for individual Indians. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 17 of 28 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Because the subject land is contiguous to the northern, western, and southern boundaries of the Nation, the acquisition satisfies the first requirement. AR004354. In addition, the Nation owns the lands in fee simple, constituting an ownership interest, thus meeting the second alternative requirement. AR003003. Plaintiff does not dispute these factual findings, and because only one of the requirements must exist, it cannot accurately state that the Regional Director’s determination failed to satisfy Part 151.3(a). Even so, the Regional Director further determined that the acquisition fosters tribal self-determination and provides land needed for the Nation to build Indian housing. AR004365-66. Plaintiff relies on City of Lincoln City v. U.S. Dep’t of the Interior, 229 F. Supp. 2d 1109, 1124 (D. Or. 2002), to argue that under Part 151.3(a)(3), the BIA must for every discretionary application make a specific determination that the land is “necessary” to facilitate tribal self- determination, economic development, or Indian housing. That is only accurate, however, if BIA is relying on that particular requirement of Part 151.3(a) to satisfy the land acquisition policy. Plaintiff disregards the clear language of the regulation in contending that it requires such a determination in every BIA decision approving a tribe’s fee-to-trust request. This is simply not true, as Part 151.3(a) is equally satisfied by application of Part 151.3(a)(1) or Part 151.3(a)(2), both of which are met here. Nothing in City of Lincoln City counsels otherwise. There, the court was tasked with determining whether Part 151.3(a)(3) required a finding that the land be “essential,” as plaintiff in that case argued, or “necessary,” as the regulation states, to facilitate tribal self-determination, economic development, or Indian housing. Id. The court failed to see a meaningful distinction between the two but ultimately determined that under the current regulations, “the BIA is only required to determine that the land to be acquired is ‘necessary’ to facilitate tribal self-determination, economic development, or Indian housing.” Id. City of Lincoln City did not, however, address whether the BIA is always required to make such a determination in order to approve a trust application, and Plaintiff points to no other authority that suggests otherwise. On appeal, the AS-IA agreed that Part 151.3(a) was satisfied, finding “Since the Property is (1) adjacent to the Nation’s existing trust land, and (2) owned by the Nation, either of these basis alone is adequate…Regardless, the Regional Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 18 of 28 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Director also found the land was needed to protect the environment, preserve the Nation’s land, and to facilitate tribal self-determination.” AR004616. Because the Regional Director’s determinations met, indeed exceeded, the foundational requirement of Section 151.3(a), Plaintiff’s assertions to the contrary must be rejected. ii. The Regional Director Properly Considered the Need for Additional Land Under 25 C.F.R. § 151.10(b) Under Part 151, BIA is required to consider the tribal applicant’s “need for additional land.” 25 C.F.R. § 151.10(b). Plaintiff’s challenge to the Regional Director’s finding of need misconstrues both this Court’s limited role in reviewing that decision under the APA and the Regional Director’s task in assessing the Nation’s need under this factor. Plaintiff has provided no basis for this Court to conclude the Regional Director acted in an arbitrary or capricious manner in rendering her decision. Plaintiff seeks to cast doubt on the decision by characterizing as conclusory the Regional Director’s determination that the acquisition is “essential” to the Nation’s exercise of jurisdiction. ECF Doc. 17-1 at 18. Additionally, Plaintiff argues the Regional Director failed to conduct an independent analysis or review of the application. Id. In both cases, Plaintiff’s conclusions are unsupported.5 Plaintiff would have this Court believe that the Administrative Record contains mere boilerplate language and nothing more. Even a cursory review of the Administrative Record reveals that assertion is incorrect. See AR004365. Beyond that mischaracterization, to the extent the Plaintiff’s assertions are themselves intended to be more than conclusory, they reveal a fundamental misunderstanding of this Court’s task under the APA. An agency’s decision must be upheld under the 5 U.S.C. § 706(2)(A) “arbitrary and capricious” standard “if the agency’s path may reasonably be discerned,” while “consider[ing] whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” 5 To the extent that Plaintiff finds fault with the Regional Director’s use of information and language contained in the Nation’s fee-to-trust application, nothing in Part 151 precludes the Regional Director from using language supplied by the Nation in its application. As AS-IA noted in affirming the Regional Director’s decision, the Regional Director may use language from the Nation’s application or any other source in the administrative record within her decision. AR004620. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 19 of 28 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted); see also Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010); Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). Even if the NOD could be fairly characterized as “a decision of less than ideal clarity,” State Farm, 463 U.S. at 43, the decision to acquire the land must be upheld because it reasonably reflects the “agency’s path” in considering and resolving the most relevant issue: whether land should be acquired pursuant to criteria meant to advance the IRA policy of protecting and restoring tribal homelands and promoting tribal self-determination. Unlike the agency in State Farm which provided “no reasons at all,” id. at 50, the explanations contained in the NOD and the Administrative Record are sufficient and, at the very least, do not constitute “a clear error of judgment,” id. at 43. This Court may reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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. Butte Envt’l. Council, 620 F.3d at 945 (quotations and citation omitted). And review under this standard is “highly deferential,” with a presumption in favor of finding the agency action valid. McNair, 537 F.3d at 993; Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006). Any contention that the Regional Director’s determination is arbitrary and capricious simply because it is not sufficiently detailed is both belied by the Administrative Record and contrary to fundamental principles of administrative law. Under the APA, an agency need only “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (quotations omitted). Here, the Regional Director reached a reasonable conclusion, on the basis of review of relevant information, and that is all that is required. The AS-IA agreed, and after addressing Plaintiff’s similar arguments on appeal, AS-IA determined “that the Regional Director reasonably concluded that the Nation had demonstrated its need for the land.” AR004617-18. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 20 of 28 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ The Regional Director properly confirmed the Nation’s need for the land. Plaintiff’s only specific allegation pertaining to Section 151.10(b) is its contention that the Nation can achieve its goal of maintaining the agricultural lands without disrupting the fee simple status of the land, and that the Nation and the Regional Director failed to indicate how the Nation is “hindered” by the agricultural lands remaining in fee status. ECF Doc. 17-1 at 16-17. Courts, to the contrary, have consistently held that Section 151.10(b) “does not require the BIA to consider why the Tribe needs the land held in trust.” Cty. of Charles Mix v. U.S. Dep’t of Interior, 799 F. Supp. 2d 1027, 1045 (D.S.D. 2011), aff’d, 674 F.3d 898 (8th Cir. 2012); South Dakota, 423 F.3d at 801 (“[I]t would be an unreasonable interpretation of 25 C.F.R. § 151.10(b) to require the Secretary to detail specifically why trust status is more beneficial than fee status in the particular circumstance.”); City of Yreka v. Salazar, No. 2:10-cv-1734, 2011 WL 2433660, at *9 (E.D. Cal. June 14, 2011); see also Cass Cty. v. Midwest Reg’l Dir., 42 IBIA 243, 247-48 (2006). Thus, the Regional Director was not required to analyze whether the Nation’s needs were met by the Property remaining in fee status or otherwise make a determination that the Nation’s need is contingent on the trust status of the land. All that is required of the BIA in considering this factor is “to express the Tribe’s needs and conclude generally that IRA purposes were served.” Id. While Plaintiff takes no issue with the trust acquisition of the 99 acres the Nation intends to develop, ECF Doc. 17-1 at 15, it disputes the Regional Director’s finding of need as to the remaining acreage that the Nation intends to use for agricultural purposes. As such, Plaintiff asserts that the Administrative Record only supports BIA’s finding of need as it pertains to the 99 acres. Id. at 16, 19. However, first and foremost, it is not for Plaintiff “to define the Tribe’s need, or lack thereof . . . As long as the Regional Director gave consideration to the need articulated by the Tribe in making her decision, she has fulfilled her obligations under § 151.10(b).” Pres. of Los Olivos & Pres. of Santa Ynez v. Pac. Reg’l Dir., 58 IBIA 278, 314 (2014). Additionally, the Nation need not provide an “acre-by-acre” justification of the need for trust land—“[t]here simply is no requirement in the IRA or in the regulations that requires the Tribe to make this showing or for BIA to opine on it.” Shawano Cty., Wis. v. Acting Midwest Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 21 of 28 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ Reg’l Dir., 53 IBIA 62, 78 (2011) (rejecting an appellant’s assertion that that tribe may only require 25% of the 404 acres for the need it asserts). In considering need, the “BIA has broad leeway in its interpretation or construction of tribal ‘need’ for the land” and because of varying “need from one tribe to another . . . flexibility in evaluating ‘need’ is an inevitable and necessary aspect of BIA’s discretion.” Cty. of Sauk, Wis. v. Midwest Reg’l Dir., 45 IBIA 201, 209 (2007).6 Here, BIA’s consideration of the Nation’s need for the land is amply supported by the Administrative Record and comports with the broad purposes of the IRA. The Regional Director determined that the Property is “essential to the Tribe’s on-going efforts to restore their ancestral land base” and “is necessary to exercise its sovereign jurisdiction over the land at its fullest extent.” AR004365. The BIA also determined that the Nation’s current trust land base is largely developed, and the additional land is needed for expansion and growth of the Nation, including for much needed housing for tribal members and a waste water treatment plant.7 Id. As for the lands that will remain in agricultural use, the Regional Director noted that the Nation has an interest in “[m]aintaining the rural character of the Nation and surrounding lands.” Id. By attempting to draw a distinction between lands slated for development and lands remaining in agricultural operations, Plaintiff seeks to have the Court construe Part 151.10(b) to mean that a tribe can only demonstrate its need for additional land if it intends to develop the land. Such a construction of Part 151.10(b) is at odds with the BIA’s interpretation of its own regulation, which is entitled to substantial deference. Lyng, 476 U.S. at 939 (agency’s construction of its own regulation is entitled to substantial deference). Plaintiff’s construction 6 Contrary to Plaintiff’s suggestions, Section 151.10(b) does not require the Regional Director to exhaustively assess the Nation’s existing trust acreage. Neither does it require the Regional Director to evaluate alternatives to the Nation’s request in the trust application, nor does the factor require the Nation to provide extensive detail on how it intends to exercise sovereignty and cultural traditions on the lands. See Shawano Cty., 53 IBIA at 78 (“Nothing in the IRA or the regulations requires either the Tribe to provide a specific level of detail or for BIA to demand it”). 7 This finding alone refutes Plaintiff’s unsupported assertion that the BIA failed to explore the Nation’s development on existing trust lands. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 22 of 28 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ further evinces a misunderstanding as to the broad purposes of the IRA. The IRA marked a “return[] to principles of tribal self-determination and self-governance,” Cty. of Yakima, 502 U.S. at 255, and in furtherance of this policy, Section 5 allows the Secretary to both establish and restore tribal land bases and to facilitate economic opportunities, see Mescalero Apache Tribe, 411 U.S. at 151-52; Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 31 (D.C. Cir. 2008) (recognizing Section 5 as “part of a broad effort to promote economic development among American Indians”). Because of the IRA’s parallel goals of promoting self-governance and economic development, it is perfectly reasonable for the Regional Director to determine the Nation’s need for land could include both lands that the Nation intends to build on and lands it intends to preserve and protect through exercise of its self-governance.8 Further, Plaintiff’s position that the Nation, as a sovereign entity, can achieve its goal of protecting these agricultural lands through subjecting itself to zoning and other state and local restrictions is not correct, because as the AS-IA aptly recognized in the administrative appeal, “the Nation cannot fully exercise tribal self-governance over the agricultural land unless and until it is in trust for the Nation.” AR004618. As stated above, all that is required with regard to § 151.10(b) is for “the Department’s analysis to express the Tribe’s needs and conclude generally that IRA purposes were served.” South Dakota, 423 F.3d at 801; see also South Dakota v. U.S. Dep’t of the Interior, 314 F. Supp. 2d 935, 943 (D.S.D. 2004) (“Regulation § 151.10(b) requires that the Secretary must merely explain why the Tribe needs the additional land.”). The Regional Director properly considered the Tribe’s need for land and concluded that the Property would meet that need. That decision as upheld by the AS-IA was consistent with the IRA’s purpose of “providing lands sufficient to enable Indians to achieve self-support,” South Dakota, 423 F.3d at 799, and should be affirmed by this Court. Thus, Plaintiffs cannot prevail on their claim that the Secretary violated the APA in considering the Nation’s need for the land. 8 The Administrative Record also reflects that the Nation intends to use the agricultural lands for economic development through growing and strengthening its agricultural operations on the lands. AR004178. Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 23 of 28 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ iii. The Regional Director Properly Considered Jurisdictional Problems and Potential Land Use Conflicts Under 25 C.F.R. § 151.10(f) Part 151.10(f) requires that the Regional Director consider “jurisdictional problems and potential conflicts of land use which may arise” as a result of a trust acquisition. “The regulations only require that the BIA undertake an evaluation of potential problems.” City of Lincoln City, 229 F. Supp. 2d at 1124. The Administrative Record indicates that the Regional Director evaluated potential jurisdictional problems associated with placing the Property in trust and ultimately agreed with the Nation’s position that no significant jurisdictional conflicts or land use conflicts were likely to occur. AR004368. The Regional Director noted that since the State of California possesses criminal/prohibitory jurisdiction over Indian lands pursuant to 18 U.S.C. § 1162 and 28 U.S.C. § 1360 (Pub. L. No. 83-280), the State’s jurisdiction would remain unchanged by the acceptance of the land in trust. Id. While the Regional Director recognized that Yolo County would no longer retain regulatory jurisdiction over the lands, she determined that this change in jurisdiction would pose no substantial concern because the Nation intends to use the agricultural land consistent with “permitted and conditionally permitted uses identified in Yolo County’s Agricultural Preserve zoning.” Id. The Regional Director also found the Nation and Yolo County’s positive working relationship and the financial assistance provided by the Nation for law enforcement, fire protection and emergency services throughout the County further supported this conclusion. AR004368-69. Plaintiff seeks to call into question the Regional Director’s Section 151.10(f) analysis by arguing that the Regional Director failed to consider “the potential for the Tribe to pursue more intensive development on the trust lands.” ECF Doc. 17-1 at 20. Plaintiff does not explain, however, what evidentiary basis the Regional Director could have used for considering these potential uses, other than the one provided in the Nation’s application. An analysis of the Administrative Record offers no indication, other than speculation, that the Nation intends to use the 754 acres in dispute for anything other than agricultural purposes. See AR004367; AR003019. Yolo County’s comment is the only place in the Administrative Record Plaintiff points in support of its concern that the Nation may at some unknown point in the future seek Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 24 of 28 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ to develop the land. But even the County recognized that the Nation’s application states there will be no change in the land use. AR004099. In any event, in conducting a Part 151 analysis, the Regional Director is not required to speculate on or presume that the Nation will use the land for anything other than what it says it will. City of Yreka, 2011 WL 2433660, at *9 (“[T]he Secretary need not consider ‘speculati[ve]’ future uses of the land.”); City of Lincoln City, 229 F. Supp. 2d at 1124. Plaintiff also argues that the Regional Director failed to address concerns raised in Yolo County’s September 24, 2013 comment on the Nation’s fee-to-trust application regarding public interest and jurisdictional conflicts. ECF Doc. 17-1 at 21. As an initial matter, Yolo County declined to participate in the administrative appeal of the NOD and is not a party to this litigation. Further, Plaintiff arguably lacks standing to put forth arguments as to the adequacy of the Regional Director’s consideration of issues raised in comments by Yolo County, a third party. See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984) (prudential barriers to standing include “the general prohibition on a litigant’s raising another person’s legal rights”). But even assuming Plaintiff has standing to raise such arguments, the Administrative Record reflects due consideration of the County’s comments. Plaintiff’s contention that the NOD ignores the County’s request that BIA limit or restrict commercial development on the land is directly refuted by the NOD itself. The Tribe amply responded to this concern of the County’s, as reflected in the NOD, stating that the BIA lacks authority to impose a restriction on future use of the land once it is acquired in trust. AR004362 (citing City of Lincoln City v. Portland Area Dir., 33 IBIA 102, 107 (1999) (“Nothing in . . . 25 U.S.C. § 465, or 25 C.F.R. Part 151 authorizes the Department to impose restrictions on the Tribe’s future use of land which is taken into trust.”)). To the extent Plaintiff may appropriately now raise the County’s concerns about the possibility of subsequent development on the agricultural lands, these concerns, like Plaintiff’s, are merely speculative, and thus the Regional Director was not required to base her consideration of jurisdictional problems or conflicts of land use on these assertions.9 9 In an effort to manufacture a land use conflict, Plaintiff argues that that Environmental Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 25 of 28 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ In upholding the Regional Director’s decision, the AS-IA properly viewed Plaintiff’s arguments as to the possible future development of the land as “mere speculation” and rejected Plaintiff’s disagreement with the Regional Director’s consideration of Section 151.10(f) as “insufficient to demonstrate the Regional Director abused her discretion.” AR004619. B. The AS-IA’s Affirmation of the Regional Director’s Decision is Entitled to Substantial Deference Under the APA On appeal, the AS-IA reviewed the Regional Director’s statutory authority to acquire land in trust for the Nation, as well as the Part 151 criteria Plaintiff challenged on appeal. The opinion examined the applicable statutory and regulatory authorities and relevant facts. AR004609-13. The AS-IA determined the proper standard for reviewing the BIA’s decision to acquire the Property in trust for the Nation required that the Appellant (here, Plaintiff) “bears the burden of proving the BIA’s decision was in error or not supported by substantial evidence.” AR004615. Thereafter, the AS-IA conducted a review of the following factors: Section 151.3(a) (Indian land policy); Section 151.10(c) (the Nations need for additional land); and Section 151.10(f) (jurisdictional problems and potential land use conflicts). He concluded that the Regional Director’s determinations were “reasonable and supported by the record.” AR004615-20, AR004609. For the reasons set forth above and thoroughly provided in the AS- IA’s opinion, both the Regional Director and the AS-IA adequately considered the Part 151 factors, and Plaintiff has failed to carry its burden of demonstrating Interior erred in making its decision. VI. CONCLUSION Plaintiff’s objections boil down to a disagreement with the conclusions reached by the Regional Director and the AS-IA. The Administrative Record of the challenged decision reveals that the Regional Director reasonably considered the relevant criteria under 25 C.F.R. Assessment did not address potential impacts in the event the Nation decided to develop the agricultural lands. ECF Doc. 17-1 at 23. The speculative nature of the argument aside, Plaintiff appears to be reviving a NEPA claim it explicitly declined to litigate in this action. Id. at 5 n.1. Because Plaintiff failed to make the necessary allegations in its complaint, Plaintiff is precluded from raising arguments pertaining to NEPA at the summary judgment stage. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008). Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 26 of 28 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ § 151.10 and that there is a “rational connection between the facts found and the conclusions made.” Oregon Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007) (quoting Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005)). Accordingly, the Regional Director’s decision to approve the Nation’s application for the 853 acres, and the AS-IA’s affirmation of that decision, are entitled to substantial deference and should be upheld by this Court. For the foregoing reasons, Federal Defendants respectfully request that this Court grant their Motion for Summary Judgment. Dated: September 7, 2016 Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice _/s/ JoAnn Kintz, Esquire_____________ JOANN KINTZ (CO Bar No. 47870) Trial Attorney Indian Resources Section Environment & Natural Resources Division United States Department of Justice Attorneys for Federal Defendants OF COUNSEL: JENNIFER CHRISTOPHER, Attorney-Advisor United States Department of the Interior Office of the Solicitor Division of Indian Affairs 1849 C Street N.W. Washington, D.C. 20240 Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 27 of 28 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MSJ AND IN SUPPORT OF FEDERAL DEFENDANTS’ MSJ CERTIFICATE OF SERVICE On September 7, 2016, this MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT was served on the following persons electronically via the ECF filing system: Donald B. Mooney 129 C Street, Suite 2 Davis, CA 95616 Telephone: (530) 758-2377 Facsimile: (530) 758-7169 Attorney for Plaintiff PAULA M. YOST MATTHEW G. ADAMS DENTONS US LLP 525 Market Street, 26th Floor San Francisco, California 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Defendant-Intervenor _/s/ JoAnn Kintz_________ JoAnn Kintz Case 2:15-cv-02574-MCE-KJN Document 19-1 Filed 09/07/16 Page 28 of 28