Capay Valley Coalition v. Jewell, et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.July 22, 2016

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 LAW OFFICE OF DONALD B. MOONEY DONALD B. MOONEY (SBN 153721) 129 C Street, Suite 2 Davis, California 95616 Telephone: (530) 758-2377 Facsimile: (530) 758-7169 Attorney for Plaintiff Capay Valley Coalition UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CAPAY VALLEY COALITION, an ) unincorporated association; ) CASE NO. 2:15-cv-02574-MCE-KJN ) Plaintiff, ) PLAINTIFF’S MOTION FOR ) SUMMARY JUDGMENT v. ) ) SALLY JEWELL, in her official capacity ) as Secretary of the Interior; KEVIN K. ) WASHBURN, in his official capacity as ) the Assistant Secretary of Indian Affairs ) of the United States Department of ) Interior; AMY DEUTSCHKE, in her ) official capacity as Pacific Regional ) Director, Bureau of Indian Affairs; ) BUREAU OF INDIAN AFFAIRS; and ) DOES 1 through 100, inclusive. ) ) Defendants ) Pursuant to Rule 56 of the Federal Rules Civil Procedure and Local Rule 56 Plaintiff Capay Valley Coalition (CVC) hereby moves for summary judgment on all causes of action. In support of this motion, CVC submits the accompanying memorandum of points and authorities. Pursuant to the Court’s June 9, 2016, Order, the parties need not submit a Statement of Undisputed Facts under Local Rule 206(a). In substitute of the Statement of Undisputed Facts, Plaintiff’s Memorandum provides citations to the Administrative Record that Defendants Case 2:15-cv-02574-MCE-KJN Document 17 Filed 07/22/16 Page 1 of 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 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 2 certified and lodged with this Court. Plaintiff’s argument relies upon the administrative record on file with the Court. Dated: July 22, 2016 Respectfully submitted, LAW OFFICES OF DONALD B. MOONEY By /s/ Donald B. Mooney Donald B. Mooney Attorneys for Plaintiff Capay Valley Coalition Case 2:15-cv-02574-MCE-KJN Document 17 Filed 07/22/16 Page 2 of 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 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 3 CERTIFICATE OF SERVICE On July 22, 2016, Plaintiff Capay Valley Coalition’s Motion for Summary Judgment was served on the following persons electronically via the ECF filing system. Joann Klintz, Trial Attorney Indian Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington DC 20044 Telephone 202.305.0424 Facsimile 202.305.0275 Attorney for Defendants Matthew G. Adams Dentons US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415.882.5000 Facsimile: 415.882.0300 Attorney for Intervenor-Defendant /s/ Donald B. Mooney Donald B. Mooney Case 2:15-cv-02574-MCE-KJN Document 17 Filed 07/22/16 Page 3 of 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 LAW OFFICE OF DONALD B. MOONEY DONALD B. MOONEY (SBN 153721) 129 C Street, Suite 2 Davis, California 95616 Telephone: (530) 758-2377 Facsimile: (530) 758-7169 Attorney for Plaintiff Capay Valley Coalition UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CAPAY VALLEY COALITION, an ) unincorporated association; ) CASE NO. 2:15-cv-02574-MCE-KJN ) Plaintiff, ) PLAINTIFF’S MEMORANDUM ) OF POINTS AND AUTHORITIES IN v. ) SUPPORT OF MOTION FOR ) SUMMARY JUDGMENT SALLY JEWELL, in her official capacity ) as Secretary of the Interior; KEVIN K. ) WASHBURN, in his official capacity as ) the Assistant Secretary of Indian Affairs ) of the United States Department of ) Interior; AMY DEUTSCHKE, in her ) official capacity as Pacific Regional ) Director, Bureau of Indian Affairs; ) BUREAU OF INDIAN AFFAIRS; and ) DOES 1 through 100, inclusive. ) ) Defendants ) Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 1 of 29 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 TABLE OF CONTENTS INTRODUCTION ............................................................................................... 1 STATEMENT OF FACTS .................................................................................. 3 A. Trust Application ............................................................................ 3 B. Pacific Regional Director’s Notice of Decision.............................. 4 C. Assistant Secretary of Indian Affairs’ Decision ............................. 5 STATUTORY BACKGROUND ........................................................................ 5 A. The Indian Reorganization Act....................................................... 5 STANDARD OF REVIEW ................................................................................. 7 A. Summary Judgment Standard ......................................................... 7 B. Administrative Review Standard .................................................... 7 ARGUMENT....................................................................................................... 9 A. The Regional Director Abused Her Discretion in Granting the Application to Transfer 853 Acres of Lands from Fee to Trust ..... 9 1. The BIA Failed to Properly Consider all Criteria Required Under 25 C.F.R. § 151.10 ...................................... 9 a. The BIA Failed to Demonstrate the Existence of Tribal “Need” for the Land to be Placed in Trust ............ 9 b. The BIA Failed to Sufficiently Consider Potential Jurisdictional Problems Associated with the Transfer of Land into Trust ............................................................ 14 c. The Regional Director Failed to Sufficiently Consider Potential Land Use Conflicts Created by the Transfer ... 16 d. The Tribe Failed to Provide the BIA Information Needed to Fully Evaluate the Application ....................... 18 2. The Regional Director’s Failed to Provide an Independent Analysis in Approving the Application ................................. 20 CONCLUSION .......................................................................................... 21 Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 2 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ii TABLE OF AUTHORITIES Cases Page(s) Anderson v. Liberty Lobby 477 U.S. 242 (1986)..................................................................... 7 Baltimore Gas & Elec. Co. v. Natural Resources Defense Council 462 U.S. 87 (1983)...................................................................... 8 Califano v. Sanders 430 U.S. 99 (1977)....................................................................... 8 Celotex Corp. v. Catrett 477 U.S. 317 ................................................................................ 7 Chase v. McCasters 573 F.2d 1011 (8th Cir.1978) ....................................................... 6 Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971)..................................................................... 8 City of Lincoln City v. U.S. Department of Interior 229 F.Supp.2d 1109 (D.Or.2002) ................................................ 9, 16 Conn. Ex rel. Blumenthal v. U.S. Dep’t of Interior 228 F.3d 82 (2d Cir.2000)............................................................ 6, 15 County of Charles Mix v. U.S. Dept. of Interior 799 F.Supp.2d 1027 (D.S.D 2011) ............................................. 10 Environmental Defense Center v. Babbitt 73 F.3d 867 (9th Cir. 1995) ......................................................... 9 Florida Power & Light Co. v. Lorion 470 U.S. 729 (1985)..................................................................... 8 Forest Guardians v. Babbitt 174 F.3d 1178 (10th Cir. 1999) ................................................... 9 Havasupai Tribe v. Robertson 943 F.2d 32, 34 (9th Cir. 1991) ................................................... 8 Marsh v. Oregon Natural Resources Council 490 U.S. 360 (1989)..................................................................... 8 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. 475 U.S. 574 (1986)..................................................................... 7 Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 3 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT iii Motor Vehicle Manufacturers Association v. State Farm Mutual Auto. Ins. Co. 463 U.S. 29 (1983)....................................................................... 8 Musick v. Burke 913 F.2d 1390 (9th Cir. 1990)....................................................... 7 Natural Resources Defense Council v. Department of the Interior 113 F.3d 1121 (9th Cir. 1997) ..................................................... 8 Northern Spotted Owl v. Hodel 716 F. Supp. 479 (W.D. Wash. 1988) ......................................... 8 O'Keefe's v. Consumer Prod. Safety Comm'n 92 F.3d 940 (9th Cir. 1996) ......................................................... 8 Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy 898 F.2d 1410 (9th Cir. 1990) ..................................................... 7 Resources Ltd. Inc. v. Robertson 35 F.3d 1300 (9th Cir. 1994) ....................................................... 8 South Dakota v. U.S. Department of the Interior 487 F.3d 548 (8th Cir.2007) ......................................................... 5, 6 South Dakota v. U.S. Department of the Interior 423 F.3d 798 (8th Cir.2005) ........................................................ 6 South Dakota v. U.S. Department of the Interior 314 F.Supp.2d 935 (D.S.D. 2004) .............................................. 10 T. W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n 809 F.2d 626 (9th Cir. 1987) ....................................................... 7 Thornhill Publishing Co., Inc. v. GTE Corp. 594 F.2d 730 (9th Cir. 1979) ....................................................... 7 United States v. 29 Acres of Land 809 F.2d 544 (8th Cir. 1987)......................................................... 9 Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 4 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT iv IBIA Cases Page(s) City of Eagle Butte, South Dakota v. Great Plains Regional Director 38 IBIA 139 (2002)...................................................................... 19 City of Lincoln City, Oregon v. Portland Area Director 33 IBIA 102, 107 (1999).............................................................. 18 Cecelia Plain Feather v. Acting Billings Area Director 18 IBIA 26 (1989)........................................................................ 19 Day County, South Dakota v. Aberdeen Area Director 17 IBIA 204 (1989)...................................................................... 19 Joseph Franklin Colby v. Acting Eastern Oklahoma Regional Director 35 IBIA 139 (2000)...................................................................... 19 State of Kansas v. Acting Southern Plains Regional Director, Bureau of Indian Affairs 26 IBIA 152, 155 (2001).............................................................. 9 Village of Ruidoso v. Albuquerque Area Director 32 IBIA 130, 139 (1998).............................................................. 18 Ziebach County, South Dakota v. Great Plains Regional Director 36 IBIA 201 (2001)...................................................................... 19 Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 5 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT v Codes and Statutes United States Code 5 U.S.C. § 701 et seq.......................................................................... 7 5 U.S.C. § 706(1) ............................................................................... 9 5 U.S.C. § 706(A) .............................................................................. 8 5 U.S.C. § 706(2)(A).......................................................................... 7 5 U.S.C. § 706(2)(E) .......................................................................... 8 25 U.S.C. § 465.................................................................................. 5, 6, 15 25 U.S.C. § 1321(a) ........................................................................... 6, 15 25 U.S.C. § 1322(a) ........................................................................... 6, 15 42 U.S.C. § 4321................................................................................ 4 California Government Code § 51200 et seq. ................................................................................... 3, 11 § 51240 et seq. ................................................................................... 11 25 Code of Federal Regulations § 1.4(a) ............................................................................................... 6, 15 § 151.9................................................................................................ 6 § 151.10.............................................................................................. 1, 4, 5 § 151.10(a)(3) .................................................................................... 9 § 151.10(b)......................................................................................... 6 § 151.10(c) ......................................................................................... 6 § 151.10(e) ......................................................................................... 6 § 151.10(f).......................................................................................... 6, 14 § 151.11.............................................................................................. 1 § 151.12(b)......................................................................................... 7 § 151.3(a)(3) ...................................................................................... 5 Federal Rules of Civil Procedure Rule 56 ............................................................................................... 7 Rule 56(b) .......................................................................................... 1 Rule 56(c)........................................................................................... 7 Rule 56(e)........................................................................................... 7 Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 6 of 29 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 Pursuant to Federal Rules Civil Procedure, Rule 56(b), Plaintiff Capay Valley Coalition (CVC) respectfully submit this Memorandum in Support of its Motion for Summary Judgment as there are no genuine issues of material fact and Plaintiff is entitled to judgment as a matter of law. Pursuant to the Court’s June 9, 2016, Order, the parties need not submit a Statement of Undisputed Facts under Local Rule 206(a). In substitute of the Statement of Undisputed Facts, Plaintiff’s Memorandum provides citations to the Administrative Record that Defendants certified and lodged with this Court. INTRODUCTION Plaintiff challenges the Pacific Regional Director’s April 28, 2014 Notice of Decision (“NOD”) to acquire the 853± acres of land into trust for the Yocha Dehe Wintun Nation (“Tribe”) and remand it to the Regional Director for consideration of additional information and a reasonable determination based upon the administrative record. The Tribe’s Application seeks far more land than is needed for the stated purpose in the Application. Neither the Tribe nor the Regional Director’s NOD provide a demonstrated reason, purpose or need to transfer over 750 acres of agricultural land from fee to trust, especially when the Tribe claims that it intends to keep the land in agricultural production. As the land is located in a protected agricultural valley, there is no need to transfer the land to trust if the Tribe does in fact intend to maintain and protect the agricultural character of the land. If on the other hand the Tribe has additional plans for the agricultural land and does not want to be burden with the jurisdictional oversight of the County of Yolo regarding such development, then the Tribe would want to convert the otherwise protected agricultural land to trust in order to remove any obstacles to its development. The Tribe seeks far more land in Trust than it has expressed any need for and will then have complete sovereignty over all land use decision regardless on the impact to the Capay Valley. The administrative record simply does not support the decision to convey over 750 acres of agricultural land to trust. The agency has articulated no defensible rationale for taking the subject project into trust land and has misapplied the factors contained in 25 Code of Federal Regulations section 151.10 and 151.11 for off-reservation acquisitions and have misstated facts and/or failed to respond to arguments raised. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 7 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2 CVC and its members have reason to be concerned with the amount of acreage that the Regional Director approved to be held in trust for the Tribe. The Tribe’s intensive commercial development in the Capay Valley has resulted in the conversion of agricultural lands and increased traffic to the valley. Moreover, the Tribe continues to put forward plans about further expansion of its intensive commercial development and activities in the Capay Valley. Of the previous land converted to trust, the Tribe has not preserved that land in agricultural production. The Tribe developed all of that land into housing, administrative offices, a large casino and hotel, a golf course, parking lot, gas station, and fire station. Capay Valley residents and members of CVC have expressed an ongoing concern regarding the lack of legal accountability granted to the Tribe by the trust process. Administrative Record (“AR”) Document (“Doc”) 138 at 4530, 4532. The Tribe’s lack of legal accountability with regards to land use impacts the rights of not just the adjacent property owners, but also other property owners in the Capay Valley. In the administrative appeal of this matter before the Assistant Secretary, the Tribe attacked the character of members of CVC. AR Doc 154 at 4495. The Tribe asserted that Pamela Welch and Tom Frederick offered to sell their property adjacent to the Tribe’s casino and that if the Tribe refused the offer they would challenge the fee to trust application. Id. The Tribe basis this assertion and attack on hearsay contained in a letter written by the Tribe itself. See AR Doc 118 at 4243-4245. The Tribe misstates and misrepresents the position stated by Ms. Welch and Mr. Frederick. In two separate letters dated July 8, 2012 and July 10, 2012 from Ms. Welch and Mr. Frederick to the Tribal Council, they clearly state that they opposed the trust application and that they viewed the matter as land use issue. AR Doc138 at 4530, 4532. The letters clearly state that the Tribe’s trust lands heavily impact land use in the Capay Valley and that based upon previous history land taken into trust for housing was later converted to casino and in another instance to a golf course. Id. The Tribe’s personal attacks demonstrates a disrespect for the process as well as those in the Capay Valley that seek to preserve the valley’s agricultural heritage and resources. Plaintiff is concerned that granting the Tribe’s application to convert such a significant amount of land from fee to trust will further impact the Capay Valley’s cultural and agricultural Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 8 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3 resources. The Administrative Record demonstrates that the Tribe can achieve its goals and purposes with a reduced acreage – 99 acres. As such, Plaintiff respectfully requests that the Court grant Plaintiff’s Motion for Summary Judgment and remand the matter to the Bureau of Indian Affairs with directions to vacate and set aside the Decision granting the Tribe’s Fee to Trust Application. STATEMENT OF FACTS A. Trust Application On June 20, 2011, the Tribe applied with the Bureau of Indian Affairs (“BIA”) to have transferred from fee simple into trust 15 parcels of land totaling 853± acres owned by the Tribe in Yolo County. AR Doc 75 at 3003-3428. The property subject to the application is located in the Capay Valley and surrounded by undeveloped, open space and agricultural lands. AR Doc 126 at 4354. The property is contiguous to 20 small parcels, owned by 9 different owners with at least five homes. Cache Creek runs along a portion of the eastern boundary of the property, State Route 16 traverses the property in a north/south direction. Id. at 4354-4355. Tribal member housing and the Tribe’s community center and recreation area are located adjacent to the property on the Tribe’s trust lands. Id. at 4355. Most of the property is currently in agricultural production and 13 of the 15 parcels are subject to the California Land Conservation Act of 1965 (Williamson Act), California Government Code, section 51200 et seq. Id. Notices of non-renewal of the Williamson Act contract have been filed for each of the 13 parcels. Id. The property contains 5 single family homes owned by the Tribe. Id. Four of the homes are unoccupied and the fifth houses the Tribe’s Cultural Department. Id. The Tribe has stated its intention to develop portions of 6 parcels for agricultural purposes, which would constitute 753.90 acres of the 852.9 acres (88 percent of the property). Id., AR Doc. 75 at 3018-3019. The Tribe states that it has no current plans to change the agricultural use of these 753.90 acres. AR Doc. 75 at 3018. The Tribe, however, conditions this plan by stating that: The parcels will continue to be used consistent with the Williamson Act’s requirements, for at least as long as the remaining term of any Williamson Act contract that presently exists with respect to any particular parcel, and such would Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 9 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 4 be consistent with permitted and conditionally permitted uses identified in Yolo County’s Agricultural Preserve zoning. Id. The Tribe states that it intends to use the remaining 99 acres to develop 25 residential housing units, a Tribal school, cultural and educational facilities, and a wastewater treatment system. AR, Doc. 126 at 4355; AR Doc 75 at 3018-3019. B. Pacific Regional Director’s Notice of Decision After reviewing the Tribe’s application and preparing an Environmental Assessment (EA), required under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, the Pacific Regional Director of the BIA issued a Finding of No Significant Impact (FONSI) in October of 2012. AR Doc 73 at 2064-2249; AR Doc 32 at 532-659. On July 29, 2013, the BIA issued a notice to State and local governments seeking comments on the Tribe’s feet to trust application. AR Doc 105 at 4052-4078. The Notice requested information regarding potential impacts on property taxes, special assessments, governmental services, and whether the intended use is consistent with the current zoning. Id. After a request from the County of Yolo, the BIA extended the comment deadline to October 2, 2103. AR Doc 108 at 4086; AR Doc 109 at 4091-4092. CVC and Yolo County submitted comments regarding the Tribe’s application. AR Doc 112 at 4097-4105; AR Doc 115 at 4115-4119. The County’s comments opposed the acquisition on the grounds that the application sought more land than needed for the proposed development. AR Doc 112 at 4097-4105. While the County supported the acquisition of 100 acres as that was the amount needed for the proposed development, the County opposed the remainder of the proposed acquisition. Id. CVC also submitted comments opposing the acquisition under 25 C.F.R. § 151.10(b). AR Doc 115 at 4115-4119. CVC also incorporated by reference the comments submitted by Yolo County. Id. Pursuant to 25 C.F.R. § 151.10, on December 13, 2013, the Tribe submitted responses to the comments. AR Doc 118 at 4168-4297. On April 28, 2014, the Pacific Regional Director issued the NOD and approved the Tribe’s application. AR Doc. 126 at 4380. CVC timely filed a Notice of Appeal of the NOD, arguing that the Regional Director’s approval was in error, was arbitrary and capricious, represented an Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 10 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 5 abuse of discretion, or was otherwise rendered not in accordance with the law, as it: (1) failed to properly consider all of the required elements under 25 CFR § 151.10; and (2) failed to comply with NEPA. AR Doc 127 at 4425-4428.1 C. Assistant Secretary of Indian Affairs’ Decision On June 19, 2014, the Board of Indian Appeals transferred the appeal to the Assistant Secretary for Indian Affairs. AR Doc 129 at 4430; AR Doc 130 at 4436. On August 14, 2015, Assistant Secretary of Indian Affairs, Kevin K. Washburn, issued a Decision affirming the Regional Director’s April 28, 2014 decision to acquire approximately 853 acres in trust for the Tribe. AR Doc 141 at 4609-4624. The Assistant Secretary held that it was immaterial whether the acquisition is necessary to facilitate tribal self-determination or economic development under 25 C.F.R. 151.3(a)(3). The Assistant Secretary held that the requirements of section 151.3(a) were met by virtue of the location of the Tribe’s property and the Tribe’s interest in the property. AR Doc 141 at 4615- 4616. The Decision also held that in acquiring land in trust, the Tribe can acquire land to expand its land base without being required to develop the land or a need for the land. Id. at 4616-4617. The Decision also determined that the Regional Director considered and analyzed the jurisdictional impacts from taking the property out of feet and placing it in trust. Id. at 4619- 4620. The Decision also rejected CVC’s arguments regarding compliance with the NEPA. Id. at 4620-4623. STATUTORY BACKGROUND A. THE INDIAN REORGANIZATION ACT The Indian Reorganization Act (“IRA”), enacted in 1935, authorizes the Secretary of the Interior, in her discretion, to acquire land and hold it in trust “for the purpose of providing land for Indians.” 25 U.S.C. § 465. In approving the IRA, Congress sought “to conserve and develop Indian lands and resources,” and “Congress believed that additional land was essential for the economic advancement and self-support of the Indian communities.” South Dakota v. U.S. 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. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 11 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 6 Department of Interior, 487 F.3d 548, 552 (8th Cir.2007) (quoting South Dakota v. U.S. Department of Interior, 423 F.3d 798, 798 (8th Cir.2005) (internal quotation marks omitted). The Secretary may acquire land already owned by a tribe. See Chase v. McCasters, 573 F.2d 1011, 1016 (8th Cir.1978). “When the Secretary takes land into trust on behalf of a tribe pursuant to the IRA, several important consequences follow.” Conn. Ex rel. Blumenthal v. U.S. Dep’t of Interior, 228 F.3d 82, 85 (2d Cir.2000). “Land held in trust is generally not subject to (1) state or local taxation; (2) local zoning and regulatory requirements; or, (3) state criminal and civil jurisdiction, unless the tribe consents to such jurisdiction.” Id. at 85-86 (citing 25 U.S.C. § 465; 25 C.F.R. § 1.4(a); 25 U.S.C. §§ 1321(a), 1322(a) (citations omitted). Title 25, Code Federal Regulations, section 151.10 sets forth the criteria the Secretary shall consider in evaluating requests for the acquisition of land in trust status when the land is located within or contiguous to an Indian reservation, and the acquisition is not mandated. Those criteria that are applicable to the Tribe’s application consist of the following: the tribe’s need for additional land; the purposes for which the land will be used; the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; jurisdictional problems and potential conflicts of land use which may arise; and if the land to be acquired is in fee status, whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status. 25 CFR § 151.10(b), (c), (e), & (f). When a tribe seeks to have land taken into trust by the United States, it must file a written request with the Secretary. Id. § 151.9. The Secretary must then notify the state and local governments having regulatory jurisdiction over the land proposed for trust acquisition in order that written comments on the potential impacts to jurisdiction, taxes, and assessments may be provided. Id. BIA Regional Directors have the authority to review and decide upon trust applications. If the Secretary accepts a tribal fee-to-trust application, the agency must publish a notice in the Federal Register or in a newspaper of general circulation serving the affected area. The notice must state the intent of the Secretary to acquire title in the name of the United States Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 12 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 7 within thirty days after the notice is published. The notice requirement provides the opportunity for legal challenge under the APA. Id., § 151.12(b). STANDARD OF REVIEW A. SUMMARY JUDGMENT STANDARD A motion for summary judgment must be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986); Musick v. Burke, 913 F.2d 1390 (9th Cir. 1990). In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." See T. W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non- moving party. See T. W. Electric, supra, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)). The evidence presented by the parties must be admissible. See Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publishing Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). B. ADMINISTRATIVE REVIEW STANDARD Courts review an agency's actions required by the IRA and implementing regulations under the APA standards of review. 5 U.S.C. § 701 et seq.; see Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy, 898 F.2d 1410, 1413 (9th Cir. 1990) (judicial review of final agency actions is governed by the APA). The court "shall" set aside any agency decision that the Court finds is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In an action brought under the APA, the Court determines Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 13 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 8 whether the agency decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). Unlike traditional summary judgment motions, the question is not whether there is a genuine issue of material fact, but instead whether the agency action was "arbitrary, capricious [or] an abuse of discretion." 5 U.S.C. § 706(A); Resources Ltd. Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1994). Applying this standard, a court must determine whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 105 (1983); O'Keefe's v. Consumer Prod. Safety Comm'n, 92 F.3d 940, 942 (9th Cir. 1996). Courts review whether the agency: has relied on factors which Congress has not intended it to consider, entirely 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 be the product of agency expertise. Motor Vehicle Manufacturers Association v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983); Natural Resources Defense Council v. Department of the Interior, 113 F.3d 1121, 1124 (9th Cir. 1997). The APA precludes the trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991). Although the arbitrary and capricious standard "is narrow and presumes the agency action is valid, . . . it does not shield agency action from a thorough, probing, in-depth review.'" Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 481-82 (W.D. Wash. 1988) (citations omitted). The Court cannot, however, substitute its judgment for that of the agency or merely determine that it would have decided an issue differently. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989). When the agency has not complied with a mandatory procedure or duty, the APA requires Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 14 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 9 that "the reviewing court shall . . . compel agency action unlawfully withheld." 5 U.S.C. § 706(1). Forest Guardians v. Babbitt, 174 F.3d 1178, 1187-89 (10th Cir. 1999), citing Environmental Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995). ARGUMENT A. THE REGIONAL DIRECTOR ABUSED HER DISCRETION IN GRANTING THE APPLICATION TO TRANSFER 853 ACRES OF LANDS FROM FEE TO TRUST 1. THE BIA FAILED TO PROPERLY CONSIDER ALL CRITERIA REQUIRED UNDER 25 CFR § 151.10 The Regional Director failed to properly consider the criteria required under section 151.10. Moreover, as discussed below, the administrative record does not support the Regional Director’s decision regarding the applicable criteria. The Regional Director failed to demonstrate the existence of Tribal need for the land to be placed in trust. 25 C.F.R. § 151.10(b). The Regional Director failed to sufficiently consider potential jurisdictional problems associated with the transfer. Id., § 151.10(f). The Regional Director failed to sufficiently consider potential land use conflicts that may arise due to the transfer. Id. a. THE BIA FAILED TO DEMONSTRATE THE EXISTENCE OF TRIBAL "NEED" FOR THE LAND TO BE PLACED IN TRUST The Regional Director failed to demonstrate the Tribe’s need for 853± acres to be placed in trust. One of the criteria to be considered by the Regional Director is the Tribe’s need for the additional land. 25 C.F.R. § 151.10(c). Plaintiff acknowledges that the Tribe need not be landless to meet this criteria. See State of Kansas v. Acting Southern Plains Regional Director, Bureau of Indian Affairs, 26 IBIA 152, 155 (2001); United States v. 29 Acres of Land, 809 F.2d 544, 545 (8th Cir. 1987). The Tribe, however, must establish a need for the amount of land sought to be transferred from fee to trust. 25 C.F.R. § 151.10(a)(3). Under 25 C.F.R. § 151.10(a)(3) the BIA must determine that the land to be acquired is “necessary” to facilitate tribal self-determination, economic development, or Indian housing. See City of Lincoln City v. U.S. Department of Interior, 229 F.Supp.2d 1109, 1124 (D.Or.2002). Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 15 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 10 The Tribe relies upon County of Charles Mix v. U.S. Dept. of Interior, 799 F.Supp.2d 1027, 1045 (D.S.D 2011) to assert that section 151.10(b) does not require the BIA to consider why the Tribe needs the land held in trust. AR Doc 154 at 4499. Section 151.10(b), however, does require that the Regional Director explain why the Tribe needs the additional land.” See South Dakota v. U.S. Department of the Interior, 314 F.Supp.2d 935, 949-51 (D.S.D. 2004). While the Regional Director need not discuss the history and purpose of the IRA for every decision, the Regional Director must provide a rational basis that is supported by the administrative record. Id. In this case, the Regional Director did not, especially given the fact that the NOD essentially repeats the Tribe’s application. The administrative record demonstrates that the project proposed by the Tribe for development on the 853± acres approved for transfer into trust status only requires approximately 99 acres. AR Doc. 75 at 3018. Transferring 99 acres into trust would support precisely the same goals as transferring 853± acres. The Tribe owns more than 11,000 acres in fee simple, nearly all of which are used for agricultural operations under full Tribal governance. AR Doc 112 at 4099 (Marshall McKay, Chairman, Yocha DeHe Wintun Nation, Statement Before the U.S. International Trade Commission Hearing, Washington, D.C., December 5, 2012; http://www.usitc.gov/press_room/documents/testimony/332_537_011.pdf (“McKay Statement”). With a transfer of 99 acres into trust, the Tribe can achieve its development goal on these acres of trust land and achieve its goal of maintaining agricultural operations under full Tribal governance on the remaining 11,000 acres of agricultural land the Tribe holds in fee simple. There are options for the Tribe to meet its current and future expansion and development needs on trust lands other than the 853± acres the BIA has approved for transfer. The Tribe could pursue some additional development on trust lands under its control prior to the BIA’s approval of the transfer to trust of these additional 853± acres, including the trust lands on which sit the Tribal casino, resort and golf course. In the recent past, the Tribe considered doing just that. AR Doc 78 at 3431-3432. The Tribe could pursue additional development on new trust land acreage far less expansive than the 853± acres the Regional Director approved for transfer, such as on parcels adding up to 99 acres transferred to trust which, according to the Tribe’s Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 16 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 11 Application, is the actual amount of land the Tribe needs to meet its development goals. AR Doc 75 at 3018. Nowhere in the record does the BIA explore the Tribe’s recent plans, now deferred, for extensive additional development on existing trust acres. The BIA should have transparently evaluated the entirety of existing trust acreage and evaluated alternatives that considered the transfer of 99 acres to trust or some other number less than 853 acres to meet the Tribe’s proposed development. The failure to do so underlies the Regional Director’s failure to adequately demonstrate the Tribe’s need for the transfer of 853± acres. The Tribe asserts that its needs the additional acreage to grow and strengthen its agricultural operation. AR Doc 118 at 4171. The Tribe argues that it cannot assert full governance over the agricultural lands that it seeks to protect, unless they are converted to trust. AR Doc 154 at 4502. Neither the Tribe nor the NOD, however, state how the Tribe is hindered from expanding its agricultural operations with the agricultural lands remaining in fee. Moreover, nothing in the administrative record indicates how the Tribe is hindered by the property remaining in fee. The lands are currently zoned for such activity and most of the parcels were in contract under the Williamson Act. California Government Code, §§ 51200 et seq, 51240 et seq. The County, however, clearly articulated that the Tribe can achieve the protection of the agricultural land while maintaining the fee status of the lands. The land is currently zoned agricultural. The County has previously noted that prior agreements have protected land owned by the Tribe. Indeed, the Tribe currently operates over 10,000 acres of agricultural land in Yolo County and none of it in trust. The Tribe has protected land in the past with a perpetual agricultural conservation easement. The Tribe’s stated desire to protect agricultural land under its ownership is no way threatened by the County; the use of other available mechanisms, for instance permanent agricultural easements, would ensure that existing fee lands would stay in the Tribe’s control in perpetuity. Tribal housing likewise, is consistent with the County’s clustered agricultural housing ordinance which allows a density of housing on agriculturally zoned property. AR Doc 112 at 4099. The zoning and other legal mechanisms provide the Tribe the authority and ability to achieve its purported goal of protecting agricultural lands within the Capay Valley. Thus, the Tribe cannot demonstrate the necessity for transferring the property from fee to trust. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 17 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 12 The Tribe also asserts that it needs the additional acreage to exercise its sovereign jurisdiction over the land. See AR Doc 75 at 3016; AR, Doc 118 at 4171. The Tribe argues that it needs the additional lands for cultural traditions and values, and customs that that cannot be exercised on fee lands if they happen to conflict with state regulations, such as hunting. Id. The lands being converted, however, are agricultural lands and residential areas and the Tribe does not indicate how these lands would be utilized for hunting. The Tribe argues that the administrative record supports the Regional Director’s findings with regard to need for the property. AR Doc 154 at 4500. The Regional Director concluded that trust status was “essential” for the Tribe to exercise its sovereign jurisdiction and to restore the ancestral land base. AR Doc 126 at 4365-4366. The NOD, however, fails to state why it is essential or necessary. It only states that it is necessary. Moreover, the NOD fails to provide a rational basis for the decision. AR Doc 126 at 4365. Thus, the record does not support this determination. To the extent the NOD discussed the need for the trust land to create a buffer zone, the administrative record does not support that finding. Id. The Tribe also states that “[p]lacing the requested acreage in trust will also help create a buffer zone that gives the new residential community greater personal security and privacy.” AR Doc 154 at 4497. This statement is from NOD and the Tribe’s Application. See AR Doc 126 at 4365 at p. 18; AR Doc 75 at 3016. This statement, however, is inconsistent with evidence contained in the record. The Tribe’s application for trust land proposes developing the outer edges of the property adjacent to land owned by others. See AR Doc 75 at 3017-3019. The proposed development of the trust land does not provide the Tribe the buffer that it claims. Moreover, the proposed additional cultural resource center and cultural activity center are on the highway and both on edge of property adjacent to farming activity by adjacent landowner Gordon. See AR Doc 73 at 2087. Additionally, the Tribes’ septic pond is adjacent to land not owned by the Tribe. Id. Finally, many of the proposed new houses are close to others’ property lines. Id. Thus, the NOD and the Tribe claim that the land is necessary to create a buffer zone, when in fact there will be no buffer zone from much of the proposed development. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 18 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 13 The Tribe argues that it provided sufficient information regarding the existing land use and cites to its application to support its statement. See AR Doc 154 at 4500; AR, Doc 75 at 3016- 3017. The application, however, implies that all the facilities are all located on the same 63-acre parcel of land, when they are not. Id. The NOD simply restates this and rubber-stamps the statements in the Tribe’s application. See AR, Doc 126 at 4365. Again, the Regional Director failed to conduct any independent analysis or review of the application, but simply adopted the Tribe’s submission. The Tribe asserts that CVC lacks appreciation of the Tribe’s need for housing. AR Doc 154 at 4502. To this end, the Tribe asserts that it is inappropriate for tribal members to live in HUD home on a bingo hall parking lot. Id. CVC made it abundantly clear that the primary issue with the Regional Director’s NOD is that it granted the trust application for the 754 acres of agricultural land and the threat that poses to the Capay Valley. AR Doc 136. Not the 99-acres that the Tribe claims it needs for housing and other tribal facilities. The Tribe misrepresents CVC’s statements and arguments in this matter and does so in a tone of disrespect to those who oppose the Tribe’s trust application. The Tribe states that CVC insinuates that the Tribe cannot be trusted to preserve and protect the rural character of it’s own homeland.” AR Doc 154 at 4502. The Tribe’s history in the Capay Valley with respect to the development of its trust lands speaks for itself. Previous lands acquired in trust for the Tribe have been developed into casinos, parking lots, a large hotel, a golf course, tribal housing and tribal offices. See AR Doc 75 at 4361. Nothing in the administrative record demonstrates that the Tribe has sought to preserve the agricultural resources it has previously acquired in trust. Id. Thus, based upon the Tribe’s history of large scale commercial development in the Capay Valley– casino, hotel, golf course, etc. - it stands to reason that the Tribe will continue on its path of commercial development on trust land especially when the Tribe has no outside legal accountability with respect to developing the trust lands. Not only does the history of previous development support this position, but the Tribe’s own intention for expansion of its facilities clearly indicates that the Tribe intends to continue its commercial development in the Capay Valley. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 19 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 14 Finally, the Regional Director’s decision regarding the Tribe’s need for the additional land simply quotes directly from the Tribe’s June 2011 Application to conclude there is a need for additional land. AR Doc 126 at 4365 (“This trust application is necessary in order for the Tribe to exercise its sovereign jurisdiction over the land at its fullest.”); compare with AR Doc. 75 at 3016 (“This trust application is necessary in order for the Tribe to exercise its sovereign jurisdiction over the land at its fullest.”) This amounts to a bare assertion without any evidentiary support in the administrative record. The Tribe fails to demonstrate why it needs to exercise full governance over agricultural lands that it seeks to “protect” when they are already protected in their fee status. Id. As the County stated, the Tribe can achieve the protection of the agricultural land while maintaining the fee status of the lands. AR Doc 112 at 4099. The Regional Director’s decision failed to demonstrate the necessity for 853± acres to be transferred into trust to achieve the Tribe’s goals. As such the decision should be rescinded and the matter remanded to the Regional Director. b. THE BIA FAILED TO SUFFICIENTLY CONSIDER POTENTIAL JURISDICTIONAL PROBLEMS ASSOCIATED WITH THE TRANSFER OF LAND INTO TRUST Section 151.10(f) requires the Secretary to “consider” “[j]urisdictional problems and potential conflicts of land use which may arise” in “evaluating requests for the acquisition of land in trust status when the land is located within or contiguous to an Indian reservation.” The NOD simply restates that the Tribe’s assertions that the Tribe does not anticipate any jurisdictional conflicts as a result of the transfer of property into trust. AR Doc 126 at 4368- 4639. Simply because the Tribe does not anticipate jurisdictional conflicts does not mean that there is no potential for jurisdictional conflicts. Moreover, the record indicates otherwise. The transfer of 853± acres into trust creates the possibility that the Tribe will extensively develop what are currently undeveloped and almost entirely agricultural lands. Were the Tribe to pursue such development, numerous problems would arise relating to land use and transportation impacts within the Capay Valley and regionally along with environmental impacts on water resources, habitat, and special status species. Local and state government would face challenges Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 20 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 15 dealing with the immediate and spillover effects of these impacts on non-trust lands but would have no recourse to stop the Tribal development causing these impacts. The NOD, however, ignores the County’s concerns regarding jurisdictional conflicts. See AR Doc 112 at 4099; AR Doc 126 at 4368. The County raised concerns that if a deed restriction is not put into place, the County could be faced with an intense commercial use of this property in an otherwise protected agricultural valley. AR Doc 112 at 4099. The NOD ignored the County’s public interest concerns to limit or restrict intense commercial development in an otherwise protected agricultural valley. Intensive development of the 853± acres approved for transfer would lead to significant impacts to land uses and transportation as well as to water and other environmental resources in what is now an almost entirely agricultural valley and would run directly counter to the goals and policies set forth in the relevant portions of Yolo County’s General Plan, Zoning Ordinance, and the Capay Valley Area Plan. See Yolo County General Plan, Goals LU 2, 3, 5 and 6; Yolo County Zoning Ordinance, 2009b; Agriculture Goals 1 – 3, Land Use Goal 1, Capay Valley Area Plan, Yolo County, Oct. 2010.2 Yet Yolo County would have no jurisdictional authority to do anything to address these impacts. Conn. Ex rel. Blumenthal v. U.S. Dep’t of Interior, supra, 228 F.3d at 85; 25 U.S.C. § 465; 25 C.F.R. § 1.4(a); 25 U.S.C. §§ 1321(a), 1322(a). Instead of addressing the jurisdictional conflicts raised by the County, the NOD discusses the money the Tribe provides to the County and the services that the Tribe provides within the Capay Valley. AR Doc 126 at 4368-4369. These services and funds do not alleviate the jurisdictional conflicts when and if the Tribe develops these lands that otherwise would have been protected by the County. The NOD failed to sufficiently consider these potential serious jurisdictional problems associated with the transfer of the land to trust status. As such, the NOD should be vacated and the matter remanded to the agency. The Tribe asserts that the Regional Director sufficiently considered the jurisdictional 2 See http://www.yolocounty.org/home/showdocument?id=14468 for the Yolo County General Plan, Land Use element; see http://www.yolocounty.org/home/showdocument?id=14465 for the Yolo County General Plan, Agricultural element; and http://www.yolocounty.org/home/showdocument?id=14254 for the Capay Valley Area Plan. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 21 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 16 problems and potential conflicts of land use that may arise from the acquisition. AR Doc 154 at 4503; citing 25 C.F.R. § 151.10(f); City of Lincoln, supra, 299 F.Supp.2d at 1124. “The regulations only require that the BIA undertake an evaluation of potential problems.” Id. Moreover, the Tribe takes issue with CVC’s assertion that the NOD simply restates that the Tribe’s assertions that the Tribe does not anticipate any jurisdictional conflicts as a result of the transfer of property into trust. See AR Doc 126 at 4369-4370; compare with AR Doc 75 at 3016. A comparison of the two, however, clearly indicates that the Regional Director adopted the Tribe’s assertions and simply ignored the information provided by the County of Yolo. Thus, the record indicates that the Regional Director ignored the County’s concerns regarding jurisdictional conflicts. See AR, Doc 112 at 4099. The County raised concerns that if a deed restriction is not put into place, the County could be faced with an intense commercial use of this property in an otherwise protected agricultural valley. Id. The NOD and the Tribe ignore the County’s public interest concerns to limit or restrict intense commercial development in otherwise protected agricultural valley. AR Doc 154 at 4503-4504. c. THE REGIONAL DIRECTOR FAILED TO SUFFICIENTLY CONSIDER POTENTIAL LAND USE CONFLICTS CREATED BY THE TRANSFER The NOD failed to sufficiently consider potential jurisdictional conflicts relates directly to land use conflicts that would arise should the Tribe pursue more intensive development on trust lands. The Regional Director’s analysis fails to consider the potential for the Tribe to pursue more intensive development on trust lands. See AR Doc 112 at 4099. The Tribe’s recently considered development plans for existing trust lands should be viewed as reasonably foreseeable projects, regardless of whether they were included by the Tribe in the immediate fee-to-trust application. AR Doc 78 at 3431-3432. Were the Tribe to pursue developments anything like their recently considered project for a greatly expanded casino and resort, there would be significant land use conflicts between Tribal trust land development and the surrounding agricultural and undeveloped land uses. The NOD failed to consider these potential conflicts. AR Doc 126 at 4368-4369. The County, through its comment letter, articulated this concern. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 22 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 17 Although the Tribe has stated in the Fee-to-Trust application there will be no change in land use, there is enough information in the attached exhibits and prior experience which indicate there is a strong possibility of a future change of use to some degree of commercial activity. The rural western Yolo County portion of State Highway 16 presents an ideal corridor of land worthy of permanent protection from development. The County is concerned that once the parcels are in trust pursuant to this application, the Tribe may proceed with any development they desire, including an intense commercial use. AR Doc 112 at 4099. Among the land use conflicts likely to arise are problems with cumulative impacts and problems with growth-inducing impacts. Not only did the NOD fail to address these land use conflicts, so did the EA. Section 4.4 of the EA, which discusses and dismisses any significant problems related to cumulative impacts, the EA states: “Since no planned projects and no reasonably foreseeable projects are anticipated to occur in the vicinity of the project site on non- Tribal trust lands, implementation of the Proposed Project … would not lead to cumulatively considerable impacts to land use management in the region.” AR Doc 64 at AR 1291. In dismissing the potential for growth-inducing impacts, section 4.5 states: “Growth-inducing impacts would be less than significant for all of the proposed alternatives.” AR Doc 64 at 1293. If the Tribe pursues more intensive development on its trust lands than entertained in its Application, then the growth-inducing impacts would be significant. An expanded casino or other intensive commercial operations would significantly increase traffic on the two-lane State Route 16. The additional traffic could require road-widening on State Route 16. Expanded roadway capacity could then facilitate even more growth-inducement by allowing for more intensive development of trust lands. The Regional Director’s analysis and decision should have considered this cycle of growth-inducing impacts by looking beyond the Tribe’s proposed development project to reasonably foreseeable developments based on a thorough evaluation of what the Tribe has considered for development in the recent past. See AR Doc 112 at 4099. The Tribe asserts that in approving the Trust application, the Regional Director could not consider land use conflicts if the Tribe developed the property beyond what is discussed in the application. To this end, the Tribe asserts that the Regional Director need only consider facts Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 23 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 18 that are or should be within the Regional Director’s knowledge and relevant to the purposes for which the potential trust land will be used. AR Doc 154 at 4505; citing Village of Ruidoso v. Albuquerque Area Director, 32 IBIA 130, 139 (1998). In Village of Ruidoso, the Interior Board of Indian Appeals held that BIA failed to include in its decision a discussion of the facts which are or should be within the BIA’s knowledge and which have some bearing on the present or future use of the property. As the Area Director had failed to consider all of the relevant facts the IBIA vacated the Area Director’s decision. Id. The IBIA directed the Area Director to consider the Tribe’s economic development plan or other relevant documents that shows its planned future uses of the property. Id. That was not done here. The Tribe asserts that future development is not reasonably foreseeable. AR Doc 154 at 4506. The Tribe, however, fails to discuss the fact that the Tribe is the most active developer in the Capay Valley and has brought enormous commercial activity, including traffic into the Valley. Additionally, the Regional Director ignored the County’s comments and concerns. See AR Doc 126 at 4368-4369. As the Regional Director had knowledge of the Tribe’s history of intensive commercial development and plans for future development the Regional Director should have addressed that in the NOD. All of this information was within the Regional Director’s knowledge at the time of the NOD and should have been considered and evaluated prior to the approving the trust application. The NOD failed to sufficiently consider these potential land use conflicts associated with the transfer of the land to trust status. As such, the NOD should be vacated. d. THE TRIBE FAILED TO PROVIDE THE BIA INFORMATION NEEDED TO FULLY EVALUATE THE APPLICATION The Regional Director must base her decision on information provided by the Tribe on its proposed use of the land and also on any other information that the BIA may know or should know about which could impact future land uses on the acres considered for transfer to trust. City of Lincoln City, Oregon v. Portland Area Director, 33 IBIA 102, 107 (1999); Village of Ruidoso, New Mexico v. Albuquerque Area Director, 32 IBIA 130 (1998). The fact that the Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 24 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 19 Tribe recently considered and then deferred extensive development expansion on its existing trust acres is information that the BIA may have known or at least should have known that could impact future land uses on the acres considered for transfer to trust status. As the Regional Director failed to consider this information in the NOD, the NOD should be vacated and the matter remanded to the Regional Director. The Regional Director based her decision on information provided by the Tribe that was insufficient for informed decisionmaking. When the administrative record in an appeal from a BIA decision is inadequate to support the BIA’s decision, the decision should be vacated by the IBIA and the case remanded to the BIA for development of an adequate record and issuance of a new decision. See City of Eagle Butte, South Dakota v. Great Plains Regional Director, 38 IBIA 139 (2002); Joseph Franklin Colby v. Acting Eastern Oklahoma Regional Director, 35 IBIA 139 (2000); Cecelia Plain Feather v. Acting Billings Area Director, 18 IBIA 26 (1989); Day County, South Dakota v. Aberdeen Area Director, 17 IBIA 204 (1989); Ziebach County, South Dakota v. Great Plains Regional Director, 36 IBIA 201 (2001). The Tribe’s Application failed to provide a full and complete accounting of total existing Tribal trust acres. AR Doc 75 at 3003. The Tribe failed to provide detailed information regarding existing land uses on existing trust acres and the percentage of existing trust acres that have been developed compared to existing trust acreage still available for development. The Tribe also failed to provide any information regarding its recently considered development expansion plans on existing trust lands. Neither the Tribe’s Application nor any other document in the administrative record provide a full and complete accounting of total existing Tribal trust acres. Thus, it is unclear precisely how many acres are held in trust for the Tribe prior to the BIA’s approval of the addition of 853± acres. The Tribe’s failure to provide this information to the Regional Director’s impacts the ability to do a thorough analysis of the need for additional trust acres and makes it appear that the only way for the Tribe to meet its stated goals is with the transfer to trust of the full 853± acres. The Tribe’s failure to provide detailed information regarding existing land uses on existing trust acres and the percentage of existing trust acres that are Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 25 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 20 developed hinders the Regional Director’s ability to thoroughly evaluate the need for additional acres to be transferred to trust. Finally, the Tribe failed to provide any information regarding its recently considered development expansion plans on existing trust lands. The Tribe has had plans for extensive expansion of its casino and resort operations, amounting to an approximate tripling of the Tribe’s development on its existing trust lands. AR Doc 78 at 3431-3432; AR Doc 112. The only place in the administrative record any detailed information about this appears is in a comment letter submitted by Lisa Leonard on August 24, 2011 in response to the Draft EA. AR Doc 78 at 3431-3432. The Tribe’s expansion plans included 467 hotel rooms representing an increase of 392,250 square feet, 27 new Casitas totaling 40,500 square feet, an event and conference center totaling 62,480 square feet, gaming, dining, retail, operational, and public space representing 308,017 square feet, and water development and wastewater treatment increases to support the expanded development which in total would be nearly three times the current casino operations. AR Doc 4. The Tribe should have revealed and discussed its proposed expansion plans for the existing trust land and Regional Director should have taken that into consideration in evaluating the Tribe’s Application. The fact that the Tribe decided not to currently pursue these development expansion plans on existing trust lands and has instead pursued the present fee-to-trust application raises the issue of whether the Tribe seeks to defer its development plans until such time as it controls more land in trust and can then pursue even more intensive development than was considered for existing trust acres. 2. THE REGIONAL DIRECTOR’S FAILED TO PROVIDE AN INDEPENDENT ANALYSIS IN APPROVING THE APPLICATION The Tribe argues that the Regional Director issued a well-reasoned decision in granting the application. AR Doc 154 at 4497. The NOD, however, essentially recites the Tribe’s application. Compare AR, Doc 126 at 4365 with AR Doc 75 at 3016. A comparison of the NOD and the application indicate that the Regional Directors. Naturally the Tribe believes the NOD is a well-reasoned decision as the NOD substantially mirrors the Tribe’s application. Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 26 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 21 Contrary, to the Tribe’s assertion, the NOD regarding the Tribe’s need for the additional land simply quotes directly from the Tribe’s June 2011 Application to conclude there is a need for additional land. AR Doc. 126 at 4365 (“This trust application is necessary in order for the Tribe to exercise its sovereign jurisdiction over the land at its fullest.”); compare with AR Doc. 75 at 3016 (“This trust application is necessary in order for the Tribe to exercise its sovereign jurisdiction over the land at its fullest.”) The whole conclusion in the NOD was essentially lifted from the Tribe’s application. Compare AR 126 at 4365 with AR Doc 75 at 3016. Thus, it appears from the record that the Regional Director did not review the material and give proper consideration to the issue, but instead adopted the Tribe’s bare assertions without any evidentiary support in the administrative record. CONCLUSION Based upon the foregoing, Plaintiff Capay Valley Coalition respectfully requests that this Court grant judgment declaring that Defendants, in issuing the NOD violated the APA by acting arbitrarily and capriciously, in an abuse of discretion and not in accordance with the law; and for a judgment declaring and ordering Defendants to set aside the NOD for taking Property into trust. Dated: July 22, 2016 Respectfully submitted, LAW OFFICES OF DONALD B. MOONEY By /s/ Donald B. Mooney Donald B. Mooney Attorneys for Plaintiff Capay Valley Coalition Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 27 of 29 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 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 22 CERTIFICATE OF SERVICE On July 22, 2016, Plaintiff Capay Valley Coalitions’ Memorandum of Points and Authorities in Support of Motion for Summary Judgment was served on the following persons electronically via the ECF filing system. Joann Klintz, Trial Attorney Indian Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington DC 20044 Telephone 202.305.0424 Facsimile 202.305.0275 Attorney for Defendants Matthew G. Adams Dentons US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415.882.5000 Facsimile: 415.882.0300 Attorney for Intervenor-Defendant /s/ Donald B. Mooney Donald B. Mooney Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 28 of 29 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 Case 2:15-cv-02574-MCE-KJN Document 17-1 Filed 07/22/16 Page 29 of 29