NCIP v. Jewell - MSJ Opp 2-5 CA 021715.pdf

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Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 1 of24

KENNETH R. WILLIAMS, State Bar No. 73170Attorney at Law980 9th Street, 16th FloorSacramento, CA 95814Telephone: (916)543-2918

Attorneyfor PlaintiffsNo Casino in Plymouth andCitizens EqualRights Alliance

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NO CASINO IN PLYMOUTH and CITIZENSEQUAL RIGHTS ALLIANCE,

Plaintiffs,

v.

SALLY JEWELL, in her official capacity asSecretary of the U.S. Department of theInterior, et al.

Defendants.

Case No. 2:12-cv-01748-TLN-CMK

PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO DEFENDANTS'MOTIONS FOR SUMMARYJUDGMENT ON PLAINTIFFS'SECOND, THIRD, FOURTH AND FIFTHCLAIMS FOR RELIEF

Date: March 26,2015Time: 2:00 p.m.Place: Courtroom No. 2

Judge: HonorableTroy L. Nunley

INTRODUCTION

Plaintiffs respectfully submit this opposition memorandum in response to Defendants'

motions for summary judgment on the Plaintiffs' second, third, fourth and fifth claims for relief.

Defendants' motionswere filed outside the sequence of the motions allowed by the Court with

respect to Plaintiffs' motion, and potential cross-motions, on the Plaintiffs' first claim for relief.

The Defendants' motions are intended to confuse the issues and to deflect the Court from

considering Plaintiffs' motion for summary judgment first - as scheduled by thePlaintiffs.1

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

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7 need for theCourt to decide the remaining claims. Specifically, if theCourt grants Plaintiffs'

8 motion and finds that the lone Band was nota"recognized Indian tribe under federal jurisdiction"

9 in 1934, then the Parcel could not be taken into trust for the lone Band and the remaining claims

would be moot. This s scheduling sequence was established and consistently urged by Plaintiff

for judicial economy and efficiency reasons.12

The Court gave the Defendants an opportunity to file an opposition and cross-motion on

.. the first claim - which they did1. But they went beyond the Court's Order and filed new motions

15 on the remaining claims. Defendantmotions, designed to distract, confirm the legal axiom that:

16 If you're weak on the facts and strong on the law, pound the law. If you're weak on thelaw and strong on the facts, pound the facts. If you're weak on both, pound the table.

,R This advocacy "maxim" isoften attributed toOliver Wendell Holmes. But former Vice President

19 Al Gore, almost one hundred years later, provided a "modernized" version:

20 "When you have the facts on your side, argue the facts. When you have the law on yourside, argue the law. When you have neither, holler!"

22 The undisputed facts provided in Plaintiffs' MSJ demonstrate that the Federal Defendants

23 lacked the authority to take land into trust for the lone Band because it was not a "recognized

24 Indian tribe under federal jurisdiction" in 1934. Carcieri v. Salazar, 555 U.S. 379 (2009).

251In an obvious attempt to further conflate the issues, Defendants filed their opposition to

26 Plaintiffs motion on the first claim and their motions on the second, third fourth and fifth claimsinacombined brief. Plaintiffs are responding to Defendants arguments on the first claim for relief

27 in areply filed separately and request that Plaintiffs' motion bedecided first. If the Court grantsPlaintiffs' motion there will be no need to proceed with Defendants motion.

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As instructed, when the Court denied Plaintiffs motion for judgment onthe pleadings,

(Electronic Court File (ECF) No. 71), Plaintiffs filed amotion for summary judgment on their

first claim for relief. (ECF Nos. 60& 61.) Contrary to the contention of the Defendants, Plaintiffs

did not abandon their other four claims in its complaint. Instead, Plaintiffs noted that their first

claim for relief was a "keystone" claimwhich, if decided in Plaintiffs' favor, would eliminate the

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TODEFENDANTS' MOTIONS FORSUMMARYJUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 3 of 24

Instead, the AR confirmsthat the lone Indians were a"non-tribal" group of"non-ward" homeless

California Indians living near lone in 1934. The facts and law are strong, and should compel

summary judgment, in Plaintiffs' favor on the first claim for relief.

In contrast, the facts and law are not on the Defendants' side on the first claim for relief.

The historic facts were concisely summarized in a 1933 letter from the Superintendent of the

j Sacramento Indian Agencywhich describes the homeless California Indian at lone as follows:

8 The situation of this group of [homeless lone] Indians is similar to that ofmany others inthis Central Valley area. They areclassified as non-wards ... because they are not

9 members of any tribe having treaty relations with the Government, they do not live on anIndian reservation or rancheria and none of them have allotments in their own right held intrust by the Government. (Emphasis added; Undisputed Fact (UF) 23.)10

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. the fact that, instead of relying on the majority opinion in Carcieri, they rely on a dissent

15 Thus, to divert theCourt's attention from theweakness of their factual and legal positions

16 on the first claim, Defendants decided to file an out-of-sequence motion on all the other claims

17 This was the equivalent of Defendants' "pounding the table" and "hollering" to try to deflect a

judgment being issued in Plaintiffs' favor on the first claimwhich would moot the remaining

claims and end this case. This tactic should be rejected by the Court. Instead, Plaintiffs request

that the Court decide Plaintiffs motion first and reschedule Defendants' motion if necessary.

In anyevent, Defendants' motions for summary judgment on Plaintiffs' remaining four

23 claims are without merit. First Mr. Laverdure was not appointed by the President orconfirmed

24 bythe Senate and lacked any authority to take any land out of State jurisdiction and put it in trust

25 for lone Indians. Thus the ROD is void. Also Defendants did not follow their own regulations

(25 CFR Part 151), IGRA or NEPA motions should be denied and judgment should be entered in27

Plaintiffs' favor on all the claims. Fed. R. Civ. Proc. 56(028

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Thus, the facts as summarized in 1933 confirmed that lone Indians were not a recognized tribe or

under federal jurisdiction in 1934. The weakness of Defendants' legal position is confirmed by

PLAINTIFFS' MEMORANDUMOF POINTS AND AUTHORITIES IN OPPOSITIONTODEFENDANTS' MOTIONS FORSUMMARYJUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

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1 STATEMENT OF THE CASE9

This lawsuit was filed onJune 29, 2012, thirty days afterthe ROD was published. (ECF

No. I). And Plaintiffs filed their First Amended Complaint forDeclaratory and Injunctive Relief

onOctober 1,2012 (ECF No. 10). Plaintiffs named several federal officials and employees with

the Department of Interior(DOI), the Bureau of Indian Affairs (BIA), the Officeof Indian

7 Gaming (OIG) and the National Indian Gaming Commission (NIGC) who were involved in

8 preparing or approving theROD. The action against the Federal Defendants was brought

9 pursuant to the Administrative Procedures Act (APA) and sought Declaratory and Injunctive

relief. The Federal Defendants filed theirAnswer on December 10, 2012. (ECFNo. 14.)11

The lone Band filed a motion to intervene as defendant on June 6, 2013 (ECFNo. 35.)12

And the Intervenor lone Band finally filed itsAnsweronNovember26, 2013. (ECFNo. 57.)

.. Thus the lone Bandwaived its sovereign immunity claimand becamea Defendant. Although the

15 APA does not apply to the lone Band, the Plaintiffs' Declaratory and Injunctive relief claims do

16 apply against the lone Band.

1' The Plaintiffs' Amended Complaint includes five causes ofaction:18

1. First Claim for Relief- The Federal Defendants lack the authority to take land into trust19

for the lone Band because it was not a "recognized tribe now under federal jurisdiction"20

in 1934 when the IRA was enacted. Carcieri v. Salazar, 555 U.S. 379 (2009).

29 2. Second Claim for Relief - The Federal Defendants failed tocomply with their own

23 regulations when they reviewed and approved the ROD and their approval of the ROD

24 wasarbitrary, capricious and an abuse of discretion. 25 C.F.R. 151.10 & 151.11.

3. Third Claim for Relief- The Federal Defendants don't have the authority take privately

owned lands into trust for the lone Band free of State and local regulation. To do so,

would violate the principles of federalism. See Hawaii v. OHA, 129 S.Ct 1436 (2009).



4. Fourth Claim for Relief - TheFederal Defendants incorrectly decided that, assuming the

lands are properly taken into trust, thesubject property would qualify as "restored land

for a restored tribe" under IGRA. 25 U.S.C. 2719.

5. Fifth Claim for Relief-The Federal Defendants failed to comply with NEPA when they

reviewed and approved the fee-to-trust transfer and the casino project. 42 U.S.C. 4321

7 et seq. seq.; 40 C.F.R. 1500 et seq. seq.

8 Plaintiffs have consistently notified the Defendants and the Court that they intended to

9 bring adispositive motion on the first claim for relief that could alleviate the need to adjudicate

the remaining claims (See ECF No. 58.) Plaintiffs' first attempt to resolve this case with a

dispositive motion on their first claim for relief was a motion for judgment on the pleadings filed12

on February 13, 2014. (ECF Nos. 60, 61 and 62.) Defendants filed oppositions challenging the13

.. procedure used by the Plaintiffs not the merits of the motion. (ECF Nos. 64 and 65.) On August

15 11, 2014 the Court denied Plaintiffs' motion for Judgment on the pleadings (ECFNo. 71)

16 The Court agreed with the Defendants' procedural contentions and directed the Plaintiffs

1 file amotion for summary judgment instead ofamotion for judgment on the pleadings on their18 first claim for relief. (ECFNo. 71.) Specifically, Plaintiffs weredirected to file their motion for19

summary judgmentwithin 60 daysof the issuance of theCourt's Order (filedOctober 14,2014)20

The Defendants had 60 days to file a "combined opposition and cross motion for summary

22 judgment" (filed December 15,2014). Plaintiffs then had 60 days to file their reply and

23 opposition to the cross motions (due February 17,20151. Defendants will have 30days to file

24 their replies (dueMarch 22, 2015). And the hearing is set forMarch 27. 2015.

25 This briefing schedule would have worked but-for the fact that in addition to filing an

opposition and cross-motion on the first claim for relief on December 15, 2015, Defendants filed27

new motions for summary judgment on the second, third, fourth and fifth claims on December 15,28

PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (CaseNo. 2:12-cv-01748 TLNCMK)


2014. The Defendants out-of- sequence motions for summary judgment on issues separate from

related to the first claim for relief, disrupted the entire briefingschedule. Plaintiffs do not have

sufficient time to file cross-motions on the second, third, fourth and fifth cross-motions for

summary and related replies before the March 27, 2015 hearing. So Plaintiffs can only oppose the

Defendants motion without filing cross-motions for summaryjudgment on the second, third,

7 fourth and fifth claims for relief. Plaintiffs reserve the right to do soat a later date.

8 Plaintiffs brought a motion for summary judgment on their first claim for relief, only,

9 because, if decided in plaintiffs' favor, it is would resolve the remainder of the case. Specifically,

if Plaintiffs' motion is successful, then the propertycannot be taken into trust and there should be11

no need for the parties to litigate, or for the Court to decide, the remaining four causes of action.12

Defendants, in hopes of derailing Plaintiffs' effort to have their first claim decided first,13

. . have filed a motion for summary judgment on the remaining four claims with its cross-motion on

15 the first claim. Thus, despite the litigation andjudicial inefficiency of Defendants' approach.

16 Plaintiffs file this opposition to the Defendants' motion on the remaining claims. But Plaintiffs

'' continue to request that Defendants' motion becontinued and these issues be decided if necessary18 after Plaintiffs motion on the first claim for relief (the Carcieri claim) is finally resolved.19

STATEMENT OF FACTS20

This casewas triggered by the Record of Decision (ROD) of the Bureau of Indian Affairs

22 (BIA) dated May 24, 2012 and published May 30, 2012 (77 Fed. Reg. 31871-31872, May 30,

23 2012; AR010049 et seq. seq.). The ROD purports to place 228.04 acres of privately owned land

24 into trust for the lone Band for gaming purposes. The land is located in the City of Plymouth,

AmadorCounty. The property is not, and neverwas, owned by the lone Band. Instead, it is

owned by private non-Indian investors who hope to reap theeconomic benefits of building and27

operating an Indian casino in conjunction with the lone Band as a front group28


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According to the ROD, the lone Band submitted its trust application to the BIA in

November 2005. The stated purpose of the proposed trust acquisition was to construct a 120,000

square foot casino, a 250 room hotel, a 30,000 square foot convention facility and related

structures in the middleof the small rural town of Plymouth in AmadorCounty. A major casino

would overwhelm the little town of Plymouth with traffic and create adverse environmental

7 impacts including irreversible impacts to the air and water quality in Plymouth. It would also

8 forever change to rural and quiet life-style of the community. Thus this lawsuit was initiated

9 The supposed undisputed facts that Defendants claim support their motions for summary

judgment are not referenced with the motions. Specifically, Defendants failed to comply with the11

summary judgment procedures and did not file a Statement ofUndisputed Facts (SUF) in support12

of their motions. (Fed. R. Civ. Proc. 56 and L.R. 260.) The Federal Defendants claim that it is13

. not usually necessary to file an SUF in an APA case. That could be true in some circumstances,

15 but they did not ask the Court for a waiver. Nor they ask the Plaintiffs for a stipulationwaiving

16 the requirement. The Intervenor-Defendant acknowledged that a SUF is usually required in non-

'' APAcases but reserved the right to do so latter. Local Rule 260 does not allow the SUF to be

filed at a later date. Their motion should be denied without prejudice to being refiled with a SUF,

The Defendants have failed to identify which documents in the AR support their motions

for summary judgment. Instead, they claim their motions are supported by the entire AR. But the

Plaintiffs and the Court should not be required to scour the 20,000 page AR to determine which

23 evidence contradicts phantom documents not referenced by the Defendants. Keenan v. Allan, 91

24 F.3d 1275,1279 (9th Cir. 1996). The Court is entitled to limit its review to the documents

25 submitted for the purposes ofsummary judgment and those parts ofthe record specifically96 identified in the motion for summary judgment. Carmen v. San Francisco Unified Sch. Dist., 23727

F.3d 1026, 1030 (9th Cir. 2001). Defendants; motion should be denied without prejudice because28

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they failed to submit a Statement of Undisputed Facts with their motion. And basedon the

documents referenced in their motions, summary judgment should begranted in Plaintiffs' favor.

Despite this deficiency inDefendants' motion, Plaintiffs are filing concurrent with this

opposition, a separate Statement of Undisputed Facts inopposition to Defendants' motion. All the

Undisputed Facts listed in the Plaintiffs Statement of Undisputed Facts are supported bytheAR.

7 And, notonly do the undisputed facts reveal that Defendants' motions should bedenied, they

8 demonstrate that judgment should be entered in Plaintiffs favor. Fed. R. Civ. Proc. 56(f).

ADMINISTRATIVE RECORD

The 2013 Administrative Record (AR) created and filed with the Court by the Federal

Defendants is a classic "post-hoc rationalization"and justification of a previous decision already

made by Mr. Laverdure. It was not in existence when Mr. Laverdure signed the ROD in May

2012. And there are no references to the "AR" by Mr. Laverdure in the ROD.

15 This is not to say that there was not a "record" at the time Mr. Laverdure made his

6 decision. The record at that time consisted of all the Department of Interior (DOI) files and

17 documents regarding the lone Indians. It at least included copies ofall the recently discovered18 DOI files and documents located in the UC Davis Special Collections Library. It also included19

the entire court file in the lone Band v. Burriscase. The DOI was the prevailing party in that case20

and it is referenced in the ROD. It is part of the administrative record in existence when the ROD21

ryr. was signed by Mr. Laverdure

23 The first part of the AR was prepared in 2013 about a year after Mr. Laverdure issued the

24 ROD and six month after he left the DOI.. It consists of over 20,000 pages of random

25 documents. Many ofthe documents are redacted or incomplete. Many ofthe documents are self-26 serving "drafts" orare irrelevant and should not be in the AR. The documents often reference

other documents which are not attached or included in the AR. Some of the documents are

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covered by a protective order in this case even though they were circulated toother third parties

prior to this case. And there are major gaps in the AR; for example, there are virtually no

documents in theAR from 1927 to 1972. This is especially odd given the critical decade of the

1930swhen the IRAwas enacted and implemented.

Wenowknow, from the UC Davis Special Collections Files, that there was a great deal of

7 correspondence in the 1930's and later in the DOI's files that reveal that federal government

8 decided that it could not buy land or provide any federal assistance to the lone Indians because

9 they were "non-ward" and "non-tribal" homeless California Indians that were not under federal

jurisdiction in 1934. (See Kallenbach DeclarationECFNo. ) It is now apparent that pertinent

federal documents from the 1930sdiscussing the non-applicabilityof the IRA to the lone Indians

were deleted form the record and/or AR before it was filed with the Court.

Courts consistently reject attempts by agencies to limit judicial review to only that portion

15 of the record submitted bythe agency, to theexclusion of otherdocuments thatwere clearly

16 considered. An agency is not allowed to withhold from the administrative record documents or

' 7 "evidence unfavorable to its case." Walter O. Boswell Mem 7Hosp. v. Heckler 749 F.2d 788, 792

(D.C. Cir. 1984). The whole administrative record"is not necessarily those documents that the

agency has compiled and submitted as 'the' administrative record." Thompson v. US Dept. Of

Labor, 885 F.2d 551, 555-556 (9th Cir. 1989). All documents considered by anagency, either

directly or indirectly, are part of the record available for the Court's review and regardless of

23 whether they are designated in 'the administrative record' proffered by the agency. Id.

24 ARGUMENT

25 1. The Record ofDecision signed by Mr. Laverdure is void and should be vacated; Mr.26 Laverdure was not appointed by the President or confirmed by the Senate and,

therefore, hewas not authorized to take land into trust for the lone Indians.

The Appointments Clause ofArticle II ofthe United States Constitution reads as follows:9

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"[The President] shall nominate, and by andwith the Advice andConsentof the Senate,shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supremeCourt, and all other Officers of the United States, whoseAppointmentsare not hereinotherwise provided for, and which shall beestablished by Law: buttheCongress may byLawvest the Appointment of such inferior Officers, as they think proper, in the Presidentalone, in the Courts of Law, or in the Heads of Departments."

U. S. Const., Art. II, 2, cl. 2.

"The Constitution, for purposes ofappointment... divides all its officers into two

classes." United States v. Germaine, 99U. S. 508, 509(1879). As stated by the Supreme Court in:

"Principal officers are selected by the President with the advice and consent of the Senate.

Inferior officers Congress may allow to be appointed by the President alone, by the heads of

departments, or by the Judiciary." Buckleyv. Vallejo, 424 U.S. 1, 132 (1972). Principal Officers

is an appointee who exercises "significant authority pursuant to the laws of the United States" or

"perform[s] a significant governmental duty exercised pursuant to a public law."

The Secretary of Interiorand the Assistant Secretary of Interior for Indian Affairs are

"principal officers" of the United States which require a Presidential appointment and a Senatorial

confirmation. When decidingwhetheror not to take land into trust, andout of Statejurisdiction,

they are obviously exercising "significant authority pursuant to the laws of the United States"

including the Indian Reorganization Act of 1934 and the Indian Gaming Regulatory Act" of 1989.

In fact, in ourFederal system, it hard to imagine amore important authority or power granted to

the Secretary of Interior and Assistant Secretary of Interior for Indian Affairs. ChiefJustice

Roberts during the Supreme Court hearing in Carcieri emphasized the magnitude of this

important obligation

"[W]e are talking about an extraordinary assertion of power. The Secretary gets to takeland and give itwhole different jurisdictional status apart from State law and all - -wouldn't you normally regard these types ofdefinitions in restrictive way to limit thatpower instead ofsaying whenever he wants to recognize it, then he gets the authority tosay this is no longer under Rhode Island jurisdiction; it is now under my jurisdiction?"(SC Tr. at 36.)

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DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

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This "extraordinary assertion of power" can onlybeexercised by the Secretary of Interior

or the Assistant Secretary of Interior for Indian Affairsorotherprimary officer appointed by the

President and confirmed by the Senate. Interim acting Assistant Secretary Laverdure was not

appointed by the President and was not confirmed by the Senate. Therefore he lacked the

authority to transfer the Parcels into trust, and remove them from State and local jurisdiction, for

the benefit of lone Indians. Furthermore, it did not take long for Mr. Laverdure to abuse the

authority he thought he was given. Mr. Laverdure's attempt to take the Parcels into trust for the

lone Indians reverse and was directly contraryto the position of the last appointed and confirmed

Assistant Secretary of Interior for Indian Affairs.

While Larry Echohawk was Assistant Secretary of Interior for Indian Affairs, the BIA and

DOI had declined to take the subject lands into trust because the Solicitor's Office determined

that the lone Band was not a federally recognized or restored tribe entitled to trust land under the

IRA or a casino under IGRA. (See AR007112). But that position suddenly changed shortly after

Assistant Secretary Echohawk resigned in April 2012 and appointed Defendant Donald E.

Laverdure as interim acting Assistant Secretary for Indian Affairs. One month later Defendant

Laverdure, reversed the opinion by the Solicitor Bernhardt and the position of by Assistant

Secretary Echohawkand issued the ROD purporting to take the parcels into trust.

It should be noted that, beforebeing"appointed" as interim acting Assistant Secretary,

Mr. Laverdure worked on and promoted the lone Indian application within the Department. (See

AR 8575, 8771, 8805, 8813, 8816, 9745-9759, 9890, 9907 and 10040.) Despite Mr. Laverdure's

best efforts, he could notconvince Assistant Secretary Larry Echohawk to change hisdecision,

supported by Solicitor Bernhardt's opinion, not to take the land in trust for the lone Indians. But

it took less than amonth after being appointed as interim acting Assistant Secretary, for Mr.

Laverdure to reverse Assistant Secretary Echohawk's position and Solicitor Bernhardt's opinion

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and sign the ROD taking the land into trust for the lone Indians.

Furthermore, Mr. Laverdure ignored the final judgment and judge Karlton's decision in

lone Band v.Burris. Nor did he follow the Supreme Court's directive in Carcieri. Instead, he did

just the opposite in apparent open defiance of the Supreme Court's test. Contrary to Carcieri, Mr.

Laverdure claimed that the IRA phrase "recognized tribe now under federal jurisdiction" was

ambiguous and therefore "the Secretary must interpret that phrase in order to continue to exercise

authority delegated to him under section 5 of the IRA." This conclusion is directly contrary to the

Supreme Court's Carcieri decision which held that the phrase"recognized tribe now under

federal jurisdiction" was not ambiguous and the Secretary's interpretation was not needed or

entitled to deference.

Mr. Laverdure was certainly aware of the Carcieri decision and important limit on the

Secretary of Interior's power to take land into trust. Forexample, on July 12, 2011, just nine

months before his "appointment," Mr. Laverdure testified before Congress in support several

Bills to "restore" the Secretary of Interior authority to take land into trust for Indian tribe. The

collected of proposed Bills supported by Mr. Larverdure were known as the "Congressional

Carcieri fix." Although Congress did not pass theCarcieri fix, when he got the opportunity, Mr.

Laverdure immediately tried to put the "fix" in the ROD for the Indians near lone.

Defendant Laverdure's tenure as interim acting Assistant Secretary lasted five months,

from April 2012 until September 2012, when current Assistant Secretary of interior for Indian

Affairs, Kevin Washburn was appointed by President Obama and confirmed by the Senate. Mr.

Laverdure left the DOIand returned to his tribe, the CrowTribe ofMontana (Ties the Bundle

Clan), shortly after Secretary Washburn was confirmed bythe Senate. Unfortunately, he left the

illicit ROD and this litigation as his legacy. Mr. Laverdure did not have the authority to take land

into trust for the lone Indians. The RODthat he issued is void and should be vacated.

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DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:l2-cv-01748 TLN CMK)

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2. The ROD is not in compliance with the federal fee-to-trust regulations. (2 CFR Part151.) It should be vacated and set-aside unless until brought into compliance.

In his rush to put the Parcels in trust for the lone Indians, Mr. Laverdure failed to fully

comply with 25CFR Part 151 when hereviewed and approved the ROD. Forexample, the notice

of the ROD waspublished in the Federal Register onMay 30, 2012just six daysafter it was

signed by theSecretary. (77Fed.Reg. 31871-31872.). The ROD and the notice of publication are

incomplete and premature because they failed to include the required Title Examination for public

review and comment. (25 C.F.R. 150.11,151.12(b), 151.13 and 151.15.) The ROD should be

vacated unless and until full notice, including the title document, is provided for public review

and scrutiny, and Title Examination is evaluated by the Secretary of Interior.

Defendants acknowledge that, to acquire land in trust for a tribe, the DOI and Secretary

must first comply with the regulations in 25 C.F.R. Part 151 in addition to the mandates of the

IRA. (ROD at 3.) But despite this fact, as revealed in the ROD and AR, the DOI and Mr.

Laverdure failed to comply with the applicable regulations, including (UF 52-62):

Section 151.10(a) requires theSecretary to consider if there is anystatutory authority for

the proposed acquisition and, ifso, any limitations contained in such authority. There is

no statutory authority for the Secretary to take lands intotrust on behalfof the lone

Indians, which was not a federally recognized tribe in 1934.

Section 151.10(b) requires the Secretary to consider if there isa need for the acquisition

of additional lands. The ROD states that the lone Indians currently have no reservation or

trust lands. (ROD at 59.) But the ROD does not address the fact that the lone Indians

have occupied, and currently own several properties in Amador County near lone which

has been sufficient to support their "needs."

Section 151.10(c) requires the Secretary to consider the purpose for which the land will be

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used. The description in the ROD is incomplete because, although it outlines the casino

project, if fails to reveal or study that the project also includes the construction of 162

private residences on the Parcels. (See RODat 59-60.)

Section 151.10(e) requires the Secretary and DOI to consider the impact on State and local

government if the land is acquired in "unrestricted fee status" and is removed purpose

from the tax rolls. There is no evidence offered in the ROD that the Parcels will be

acquired in "unrestricted fee status" and therefore eligible to be exempt from State and

local tax. If not acquired in "unrestricted fee status", the Parcels remain subject to tax.

The ROD's reliance on a "voided" Municipal Services Agreement (ROD at 60) to support

the contention that the tribe is obligated to reimburse the County of Amador is

inappropriate and disingenuous. There is no current requirement for the lone Indians to

reimburse State and local government for lost tax revenue if the FTT transfer is approved.

Also, even if taxes were reimbursed, the ROD does do not discuss the additional costs that

will be incurred by government to providegovernmental services to the project.

Section 151.10(f) requires the Secretary to consider jurisdictional problems and possible

conflicts of land use. The use of the Parcels for a casino and related projects is

inconsistentwith local land use and zoning rules. This issue is not discussed in the ROD.

And the "voided" Municipal Services Agreementmentioned in the RODdoes not exempt

the Parcels from State and local land use and zoning rules.

Section 151.10(g) requires the Secretary to consider whether, if the land is taken in trust,

the BIA is equipped to discharge theadditional responsibilities resulting from the

acquisition of the land in trust status. The ROD does not address this issue.

Section 151.10(h) requires the Secretary toconsider whether atribe has provided

sufficient, specific information to insure that the potential environmental impacts of the14

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project are considered before the land is taken into trust. The ROD does not address this

issue and it notclear if the lone Band provided the required information.

Section 151.11 (c) requires the tribeto provide a plan to Secretary which specifies the

anticipated economic benefits associated with the proposed use. This issue is not

addressed in the ROD and it notclear if the lone Indians provided the required plan.

Section 151.13 requires the tribe to furnish title evidence meeting theStandards Forthe

Preparation ofTitle Evidence inLandAcquisitions by the UnitedStates issued by the

United States Department of Justice. The title evidence should list all liens, encumbrances

and title infirmities on the land to be acquired. And those encumbrances, liens and

infirmities must be removed prior to acquisition if they make title to the land

unmarketable. This issue is not addressed in the ROD and it not clear if the information

was provided or if the Parcels were cleared of liens, encumbrances or infirmities.

The Federal Defendants' failure to comply with their own regulations when processing the

ROD is arbitrary, capricious and contrary to law. The RODdoes not satisfy the requirements of

25 CFR Part 151. It is at best incomplete and should be vacated.

3. Neither Mr. Laverdure, not the Department of Interior, had the authority to takeprivately owned land into trust for the lone Indian free from State and localregulatory jurisdiction. To do so violates the principles of Federalism.

The State of California entered the Union on September9, 1850,on an equal footing with

all other States. And, as is the casewith all States, public domain lands in Californiawere to be

transferred to eitherthe State or into private ownership subject to Statejurisdiction and

regulation. (UF 12 & 13.) In fact, California's Act ofAdmission mandated that California shall

never interfere with the primary disposal of public domain lands bytheUnited States. (9 Stats.

452.) In addition, in 1864, Congress limited the number of Indian Reservations that could be

created in California from public domain lands to four reservations. (UF 14) The remainder ofthe15

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public domain land was to be transferred to the State orsold into private ownership, subject to

State and local regulation, for settlement and development.

The undisputed facts in this case are that the Parcels are privately owned by third parties

who hope to partner with the lone Indians and benefit financially from the construction and

management of a mega-casino in the town of Plymouth. The DOI's and Mr. Laverdures's

decision to take the privately owned Parcels into trust in favor of the lone Band, free from State

and local regulation, as though it is public domain land, is an unconstitutional infringementon

State and local police power to regulate its citizenry for the benefit of all. It is also a violation of

the equal footing doctrine and the principlesof federalism outlined by the Supreme Court in

Hawaii v. Office ofHawaiian Affairs, and embodied in the Constitution. The ROD is an

overreach of the limited authority Congress gave to the Secretary under the IRA to restore allotted

reservation land or to create reservation from public domain land. The DOI and Mr. Laverdure

acted outside the scope of the Secretary's authority and beyond the Secretary's discretion that

they had the authority to take private fee lands in trust for the lone Indians.

Defendants have no authorityto create new federal public domain land or federal Indian

reservation land in the State ofCalifornia. California, like all other states, retains its regulatory

jurisdiction over all lands not specifically retained or reserved as public domain land of the

United States within its exterior boundaries including the right to regulate and tax lands that have

been conveyed into private ownership. Defendants attempt to create a reservation for the lone

Indians in the State ofCalifornia on privately held lands, currently regulated by the State and

local governments, byaccepting any privately owned lands into federal trust status pursuant to 25

U.S.C. 465 for the lone Indians is unconstitutional and is contrary to the principles of

federalism summarized in the Supreme Court's decision in Hawaii v. Office ofHawaiian Affairs,

129 S Ct. 1436 (2009). Furthermore atribe does not have the authority to unilaterally create a

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reservation from fee owned lands. City ofSherrill v. Oneida Indian Nation, 544 U. S. 197 (2005).

See alsoSumma Corporation v. California exrel. State Lands Commission 467 U.S. 1231 (1984)

The creation of a reservation in favor of the lone Indians is also contrary to the 1864 Act

of Congress which specifically stated that no more than four reservations could be established

within the State ofCalifornia (13 Stat. 39). And it is contrary to the Treaty ofGuadalupe Hidalgo

and the Act of 1851 - which confirmed private titles, separate from public domain lands, of lands

previously conveyed into private ownership by Spain or Mexico.

After California became a sovereign State of the United States in 1850, on an equal

footing with all other States, it received regulatory and police power jurisdiction over all property

within the State - including federally owned public domain. But, until public domain land is

conveyed to the State or into private ownership, the United States retains authority over public

domain lands. Kleppe v. New Mexico429 U.S. 873 (1976). Thus the United States has the

authority, in some circumstances, to create an Indian reservation from retained public domain

lands. By definition, an Indian reservation is created by the Secretaryor an authorized federal

land officer executing an order withdrawing specific parcels from public domain land and

reserving it for the specific purpose of the withdrawal order. See US. v. Midwest Oil Co. 236

U.S. 459 (1915).

After public domain property isconveyed to the State or into private ownership, the

United States no longer has authority to create an Indian reservation over non-public domain

lands. In the case ofHawaii v. Office ofHawaiian Affairs, 129 S Ct. 1436 (2009), a unanimous

Supreme Court held that after federal public domain lands pass out of federal ownership toa

State, they cannot be restored to federal jurisdiction by a federal act that purports to change the

nature of the original grant to the State. As aconsequence, once public domain land is conveyed

by the United States to aState, or into private ownership subject to the police and taxing power of17

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the State, itcannot be returned to public domain status as part of a FTT transfer under the IRA.

The Supreme Court concluded that "itwould raise grave constitutional concerns" ifCongress

sought to "cloud Hawaii's title to itssovereign lands" after it had joined theUnion. "Wehave

emphasized thatCongress cannot, afterstatehood, reserve or convey...lands that have already

been bestowed upon a state..."Hawaii v. Office ofHawaiian Affairs, supra.

Likewise here, the Statehas had regulatory authority over the Parcels since 1850. The

DOI and Mr. Laverdure do not have the authority to create a reservation or Indian trust land free

from State regulation that has been imposed on the Parcels from Statehood. It would raise"grave

constitutional concerns" if DOI is allowed "to cloud" California's sovereign right to regulate and

exercise jurisdiction over land within its boundariesafter joining the Union. The DOI "cannot,

after statehood, reserve or convey...lands that have already been bestowed upon a state

4. The lone Indians are not a "restored tribe" and the Parcels are not "restored lands'as these terms are used in the Indian Gaming Regulatory Act; the lone Indians andParcels are not eligible for gaming under IGRA.

The trust acquisition proposed by the Secretary in the ROD is intended to facilitate the

construction of a major gambling casino, hotel and related facilities on the Parcels. But the

Parcels are not eligible for Indian gaming. The Indian Gaming Regulatory Act (IGRA) prohibits

Indian gaming on land acquired after 1988 unless oneof the statute's narrow exceptions applies.

(29U.S.C. 2701-2721). Since, under the ROD, the Parcels will be acquired in trust for the

lone Indians after 1988, gaming is prohibited on the Parcel, unless oneof the IGRA exceptions

applies. The IGRA exceptions do not apply.

TheDOI"s determination in the ROD that the Parcel qualified as Indian lands eligible for

gaming under the IGRA "restored lands for a restored tribe" exception lacks substantial

justification and is inconsistent with the facts and prior positions ofthe DOI. The lone Indians

are not a "restored tribe"and the Parcels are not"restored lands' as these terms are used in the

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IGRA. It is also beyond the authority of the Secretary tomake this determination. IGRA requires

theNational Indian Gaming Commission (NIGC), not the Secretary, to make these

determinations. The DOI's determination in the ROD that the lone Indians are a "restored tribe"

and the Parcel is "restored lands" under IGRA was an abuse of discretion and is arbitrary,

capricious and contraryto the law. It should be vacated by this Court.

The DOI's determination in the ROD, and the 2006 Artman opinion it revived, that the

Parcels are restored Indian Lands for gaming purposes is contrary to the facts and IGRA and it is

contraryto previous DOI opinions and previousDOI representations made in other court cases.

See MuwekmaOhlone Tribe v. Salazar (USDC D.C. No. 03-1231 (RBW).

The lone Indians are not a "restored" tribe for the purpose of IGRA. They were never

federally recognized nor terminated. Therefore they cannot be restored to federal recognition. .

Nor are the Parcels restored lands. The lone Indians are not landless. They have a potential

ownership interest: (1) in 40 acres near lone; (2) property in the City of lone, (3) commercial

property in the City of Plymouth, and (4) five parcels totaling47 acres adjacent to Plymouth.

Based on this unlawful determination the Secretary approved the FTT transfer of the

Parcels under the IRA. And the NIGC and its officials, apparently, pursuant to the MOA with the

DOI, improperly accepted the FTT transfer asa"restored lands" determination for IGRA

purposes. As aresult of this unlawful determination, if the Secretary's approval is not vacated,

and the NIGC accepts it as a restored lands determination for IGRA purposes, the lone Indians

may beable to build aClass III casino on the Parcels which will cause major environmental

impacts in and around the City of Plymouth and Amador County and harm to the citizens of the

City of Plymouth and Amador County.

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5. The Defendants failed to complywith NEPAbeforeapproving the fee-to transfer inthe ROD and approving the construction of a major casino on the Parcels.

The Secretary, DOI, BIA and NIGC failed to consider and/or take a "hard look" at the

environmental and socio-economic impacts of his proposed action as required by theNational

Environmental Policy Act. (NEPA; 42 U.S.C. 4321 et seq.) "Hard look"means that such

actions should not cause undue damage to the human and natural environment of the designated

and surroundingareas. The proposed action in the ROD is contrary to law because its

implementation would cause permanent and irreparable harm to the environment, including the

human environment as defined inNEPA; it would intrude upon the will of the people of the

County ofAmador who voted 84.6% against permitting another casino in the county and

community. It would create permanent and perpetual regulatory, jurisdictional and tax revenue

problems for the State and local governments, and would contribute to the ongoing economic

detriment of the State and local economies.

The Secretary, DOI and BIAcompletelyfailed to consider or adequately consider manyof

these impacts. The Secretary, DOI, and BIA also failed to applya fair and unbiased analysis of

the jurisdictional and human impacts caused by the RODas required byNEPA. The Final

Environmental Impact Statement (FEIS) wrongfully assumed that non-Indian interests did not

require equal consideration against the interests of the lone Indians when considering the

environmental impacts. The Secretary, DOI and BIA ignored or failed to fully consider or

adequately address the traffic, water quality, airquality and other negative impacts of the

proposed casino and related facilities in the FEIS. The NIGC completely failed to study or

consider the environmental impacts of the proposal in anEnvironmental Assessment and EIS as

required by NEPA with respect to its restored tribe and restored lands determinations for the lone

Indians. The approval ofthe EIS for the FTT by the DOI, BIA and Secretary should be vacated

and the EIS should be updated and recirculated for comment and resubmitted for approval. And20

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the NIGC should be required to comply with NEPA prior to considering and making the restored

tribe and restored lands determinations.

The Secretary's and DOI's actions inapproving the FTT transfer and certifying the EIS,

and the NIGC's failure to prepare an EIS for its "restored tribe" and "restored lands"

determinations, were in violation of the National Environmental Policy Act (NEPA) 42 U.S.C.

4321 et. seq. And it's implementing regulations, 40 C.F.R. 1500 ET. seq.

The NEPA requires that "all agencies of the Federal Government shall... include in every

recommendation or report on...major Federal actions significantly affecting the quality of the

human environment, a detailed statement by the responsible official." 42 U.S.C. 4332(2) (c).

The proposed casino project approved as partof the ROD has many inherent well

documented negative impacts that threaten this small community with among other things:

increase in traffic congestion and safety concerns on rural roads in the area, increase in air

pollution, increase in water pollution, overuse of limited water resources used by all residents in

the area fordrinking waterand irrigation and potential increases in crime. Some of these impacts

were identified in the EIS; none were adequately considered, mitigated or resolved.

The DOI, the BIA and the Secretary were required to take a "hard look" at the

environmental consequences of the proposed action in the ROD. This required the Secretary to:

(1) make a good faith effort to take environmental values into account; (2) to provide an

environmental full disclosure to the members of the public and (3) protect the integrity of the

decision making process by insuring that problems are not ignored.

In this case it was not possible for the BIA to take a"hard" and fair look at the

environmental impacts because the BIA only represents the interests of the Indian tribe as those

interests are defined bythe Tribe submitting the fee to trust application. Furthermore, the

inability for the BIA to be impartial, when evaluating the impacts of the FTT transfer and a21

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related casino project, is compounded by the MOU between the BIA and the tribes to facilitate

FTT transfers. Despite these facts, under the Departmental Manual of the BIA for the application

ofNEPA in the FTT process, theDOI allows the BIA, which processes, administers, and

approves the tribes FTT application to actas"lead agency" for the completion ofNEPA

documentation . This presents an inherent conflict of interest in terms of producing a fair and

unbiased report which takes into consideration the needsof the surrounding communities.

The regulatory and cumulative jurisdictional impacts of removing hundreds ofacres from

the sovereign control of state and local governments have not been adequately addressed in the

FEIS. The FEIS also fails to provide support for the ROD's conclusion that 228.04 acres in trust

is necessary to satisfy the tribe's goal of self-determination and other similar needs of the tribe.

And the FEIS fails to adequatelyassess the impact this determination has on the local

communities which is required by 25 C.F.R. 151.10 (e) and the NEPA analysis.

The FEIS fails to adequately address the concerns of the local communities. The ROD

does not adequately address the lone Band's application in terms of the factors deemed partof the

"justifiable expectations" of the local non-Indian residents or state and local governments

identified in the Sherrill decision as disruptive.

The failure of the DOI and the Secretary to take a "hard" look at, and adequately address,

the adverse environmental and socio-economic impacts ofall the anticipated impact of the project

approved in the ROD isarbitrary, capricious, an abuse of discretion, and otherwise not in

accordance with law. Furthermore, the Secretary's decision to change his position by approving

an EIS, a restored lands opinion and project that he previously rejected in 2009 is arbitrary,

capricious, an abuse of discretion, and otherwise not in accordance with law. 5U.S.C. 706.

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6. Plaintiffs have standing to bring this lawsuit to protect their community from theadverse impacts of the fee-to-trust transfer and the construction of a casino.Plaintiffs have standing to protect the principle of federalism.

The Supreme Court has held that individual or citizen groups may challenge a law or a

governmental actions on that basis that it contravenes the principals of federalism, Bond v,

United States,\3\ S.Ct. 2355 (2011). Plaintiffs have standing to challenge the Secretary's

attempt to remove land from State and local jurisdiction and give it to the lone Indians on the

basis that it violates equal protection and the principles of federalism.

Furthermore the Federal Defendants' contention that the Plaintiffs lack standing in this

case is completely without merit in light of the 2012 Supreme Court decision inMatch-Be-Nash-

She-Wish Band ofPottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) ("Patchak"). In that

case, David Patchak brought an action under the APA alleging that the Department of Interior

lacked the authority to acquire property in trust for an Indian tribe, known as the Match-Be-Nash-

She-Wish Band of Pottawatomi Indians, because the tribe was not a federally recognized tribe in

1934 when the IRA was enacted. Carcieri v. Salazar, 555 U.S. 379 (2009). The tribe was

formally recognized in 1999. In 2005, in response to a fee-to-trust application by the tribe to

acquire land for gaming purposes, the DOI announced that it would take land into trust for the

tribe to constructa casino. Mr. Patchak initiated litigation under the APA alleging that taking

land into trust for Indian gaming"will cause him economic, environmental, and aesthetic harm"

as a property ownernear a casino. Patchak, supra. 132 S.Ct. at 2203 & 2210.

Plaintiffs' interest in the environmental and economic well-being of Plymouth, Amador

County and the State ofCalifornia are identical toMr. Patchak and among the interests tobe

considered under 25C.F.R. 151.10(0, 151.10 (h) before land is placed into trust. See also

Preservation ofLos Olivos v. Department ofInterior, 635 F.Supp.2d 1070 (CD Cal. 20080

Community group had standing to challenge a fee-to-trust.

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CONCLUSION

For the forgoing reasons, and based on thePlaintiffs' Statement ofUndisputed Facts

submitted with this opposition, Plaintiffs request that the Defendants' motions for summary

judgment on Plaintiffs' second, third, fourth and fifth claims for relief be denied and that, instead,

summary judgment on those claims be entered in Plaintiffs' favor. Fed. R. Civ. Proc. 56(0-

Dated: February 17,2016

Respectfully Submitted,

/s/Kenneth R. WilliamsKENNETH R. WILLIAMSAttorney for PlaintiffsNo Casino in Plymouth andCitizensEqual RightsAlliance

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