Gila River Indian Community v. United States of America et al, No. 2:2010cv01993 - Document 133 (D. Ariz. 2011)

Court Description: ORDER denying 84 Motion for Summary Judgment; denying 85 Motion for Summary Judgment; denying 86 Motion for Summary Judgment; denying 88 Motion for Summary Judgment; denying 94 Motion to Strike ; granting 95 Motion for Summary Judgment; granting 98 Motion for Summary Judgment. Signed by Judge David G Campbell on 3/3/2011.(NVO)

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Gila River Indian Community v. United States of America et al Doc. 133 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Gila River Indian Community, a federally recognized Indian tribe; Delvin John Terry, Celestino Rios, Brandon Rios, Damon Rios, and Cameron Rios, members of the Gila River Indian Community; the City of Glendale and Michael Socaciu and Gary Hirsch, residents of Glendale; Speaker of the House Kirk Adams, House Majority Leader John McComish, House Majority Whip Andy Tobin, and Senate Majority Leader Chuck Gray, in their official capacities as members of the Arizona Legislature; and the State of Arizona, 15 16 Nos. CV-10-1993-PHX-DGC CV-10-2017-PHX-DGC CV-10-2138-PHX-DGC ORDER Plaintiffs, vs. 17 18 19 20 21 22 United States of America; United States Department of the Interior; Kenneth L. Salazar, in his official capacity as Secretary of the Interior; Larry Echo Hawk, in his official capacity as Assistant Secretary for Indian Affairs; and Tohono O’odham Nation, a federally recognized Indian tribe, Defendants. 23 24 This case concerns a July 23, 2010 decision by the United States Department of 25 the Interior to accept in trust for the benefit of the Tohono O’odham Nation a 54-acre 26 parcel of unincorporated land surrounded by the City of Glendale, Arizona. The Nation 27 plans to build a Las Vegas style casino and resort on the property – plans that have 28 evoked vigorous opposition by Glendale, Arizona legislative and executive branch Dockets.Justia.com 1 leaders, and another Indian tribe. Plaintiffs ask the Court to set aside the Department’s 2 decision as invalid under statutes dealing with Indian lands and gaming, as well as the 3 United States Constitution. 4 At the outset, it is important for the Court to note what is not at issue in this case. 5 This case does not concern appropriate limits on Indian gaming. This case is not about 6 whether the federal government, as a matter of good governance, should show greater 7 deference to the wishes of state and local voters and leaders. This case is not about who 8 promised what to whom when gaming laws and compacts were adopted in the past. This 9 case is not even about whether a Las Vegas style casino in the middle of Glendale is a 10 good idea. Federal district courts are not commissioned to roam broadly through the 11 social landscape implementing their own views of good public policy. The questions this 12 Court must decide are narrow and legal: was the Department’s decision to take the land 13 into trust for the benefit of the Nation “arbitrary, capricious, an abuse of discretion, or 14 otherwise not in accordance with law” under the Administrative Procedure Act, 5 U.S.C. 15 § 706(2)(A), and did it violate the United States Constitution or the Indian Gaming 16 Regulatory Act? 17 The parties have filed motions for summary judgment. Docs. 84, 85, 86, 88, 95, 18 98. The Court heard extensive oral arguments on February 17, 2011. For reasons that 19 follow, the Court concludes that Plaintiffs have provided no legal basis to set aside the 20 Department of the Interior’s decision. 21 I. Factual Background. 22 The O’odham Indians (formerly the Papago) lived for centuries along the banks of 23 the Gila River in southwestern Arizona. In 1882, the federal government established for 24 the O’odham people a 22,000-acre reservation near Gila Bend, Arizona. The reservation 25 was reduced to roughly 10,000 acres in 1909. H.R. Rep. 99-851, at 4 (1986). 26 In 1960, the federal government completed construction of Painted Rock Dam ten 27 miles downstream from the Gila Bend reservation. The dam was built to provide flood 28 protection for the City of Yuma and others living south of the reservation. The O’odham 2 1 were told that flooding from the dam would occur so infrequently as not to impair their 2 ability to farm the reservation land, but flooding on the reservation between 1978 and 3 1984 far exceeded the projections made when the dam was built. Floodwaters destroyed 4 a large farm developed at tribal expense and effectively precluded all economic use of 5 reservation lands. Id. at 4-6. 6 Congress responded in 1986 by enacting the Gila Bend Indian Reservation Lands 7 Replacement Act (the “Gila Bend Act” or the “Act”), Pub. L. No. 99-503, 100 Stat. 1798 8 (Oct. 20, 1986). The purpose of the Act was to replace reservation land affected by the 9 Dam, and otherwise to “promote the economic self-sufficiency of the O’odham Indian 10 people.” Id. § 2(4). Under the Act, the Tohono O’odham Nation (the “Nation”) 11 transferred 9,880 acres within the Gila Bend reservation to the United States in return for 12 $30 million to purchase replacement land. Id. §§ 4(a), 6(c). Where certain requirements 13 were met, the Act required the Secretary of the Interior to take up to 9,880 acres of 14 purchased land into trust for the benefit of the Nation, a step that would effectively make 15 the purchased land part of the Nation’s reservation. Id. § 6(d). 16 In August 2003, the Nation purchased a 135-acre parcel of land near 91st and 17 Northern Avenues in Maricopa County. AR4435, 4908-19. The purchase was made 18 through a corporation wholly-owned by the Nation. 19 unincorporated county island surrounded by the City of Glendale. Id. The land is part of an 20 On January 28, 2009, the Nation announced plans to use the land for gaming 21 purposes and filed with the Department of the Interior (“DOI”) an application to have the 22 land taken into trust under the Gila Bend Act. AR4341-4907. The Nation claimed that 23 the land would be taken into trust as part of “a settlement of a land claim” for purposes of 24 the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(B)(i), and therefore 25 would be excepted from IGRA’s general prohibition against gaming on reservation lands 26 acquired after October 17, 1988. AR4360-61, 4373-80. Consistent with regulations 27 implementing IGRA, 25 C.F.R. §§ 292.3, 292.5, the Nation requested that DOI issue an 28 “Indians lands opinion” confirming that, once held in trust, the 135-acre parcel met the 3 1 requirements of IGRA’s “settlement of a land claim” exception for gaming purposes. 2 AR3589-90. 3 The Nation withdrew its request for an Indians lands opinion on July 17, 2009. 4 AR2163-64. On March 12, 2010, due to an ongoing state-court lawsuit over whether the 5 City of Glendale previously had annexed a portion of the 135-acre parcel, the Nation 6 requested that DOI accept only “Parcel 2” of the 135-acre tract in trust and hold the 7 remainder of the application in abeyance pending resolution of the state-court case. 8 AR758-62. Parcel 2 consists of 54 acres on the westernmost part of the 135-acre tract. 9 DOI issued its decision on July 23, 2010, concluding that the legal requirements 10 under the Gila Bend Act for taking Parcel 2 into trust had been satisfied. AR3-10; see 75 11 Fed. Reg. 52550-01, 52550 (Aug. 26, 2010). The decision will be referred to in the 12 remainder of this order as “the Trust Decision.” Consistent with the Nation’s withdrawal 13 of its request for an Indian lands opinion, the Trust Decision did not determine the 14 Nation’s eligibility to game on Parcel 2 under IGRA. Id. 15 Suits challenging the Trust Decision have been brought by the City of Glendale, 16 the Gila River Indian Community (the “Community”), and individual members of the 17 Community (the “Terry and Rios Plaintiffs”). The State of Arizona and members of the 18 Arizona Legislature (the “Legislators”) have intervened as Plaintiffs, and the Nation has 19 intervened as a Defendant. All Plaintiffs seek declaratory and injunctive relief under the 20 Administrative Procedure Act, 5 U.S.C. §§ 701-706. Docs. 57, 58, 74, 89, 121. The 21 claims challenge DOI’s decision to take Parcel 2 into trust under Section 6 of the Gila 22 Bend Act, and its failure to determine the Nation’s eligibility to game on Parcel 2 under 23 IGRA. Id. Glendale and the State assert that the Gila Bend Act, as applied, violates the 24 Tenth Amendment and the Indian Commerce Clause of the United States Constitution. 25 Docs. 57, 121. The Legislators assert Tenth Amendment and IGRA claims. Doc. 84.1 26 27 28 1 Arizona Governor Janice K. Brewer has filed an amicus curiae brief concurring in the arguments made by the City of Glendale. Doc. 91. Defendants have filed responses to that brief. Docs. 100, 101. 4 1 II. Standing. 2 To sue in federal court, a plaintiff must have standing under Article III of the 3 United States Constitution, that is, the plaintiff “must have suffered, or be threatened 4 with, an actual injury traceable to the defendant and likely to be redressed by a favorable 5 judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). The 6 party invoking federal jurisdiction bears the burden of establishing the three elements of 7 constitutional standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 8 “The general rule applicable to federal court suits with multiple plaintiffs is that once the 9 court determines that one of the plaintiffs has standing, it need not decide the standing of 10 the others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993). 11 The United States argues in its summary judgment motion that only states have 12 standing to bring a Tenth Amendment claim. Doc. 95 at 21-37. The Court has granted 13 the State of Arizona’s motion to intervene in this case. Docs. 103, 120. The Court 14 therefore need not consider whether other plaintiffs have standing to assert a Tenth 15 Amendment claim. 16 Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009). Because the 17 State has joined the briefs filed by Glendale and the Community (Doc. 103 at 5), the 18 Court will consider the Tenth Amendment arguments made by those Plaintiffs as though 19 made directly by the State. See Nat’l Ass’n of Optometrists, 567 F.3d at 523 (referring to 20 the appellees collectively where one had standing). 21 22 See Leonard, 12 F.3d at 888; Nat’l Ass’n of Optometrists & The United States further argues that no Plaintiff has standing to bring a claim under IGRA. Doc. 95 at 20-21. The Court does not agree. 23 Plaintiffs have presented evidence that they will suffer genuine injury as a result of 24 gaming on Parcel 2. Glendale will incur millions of dollars to provide necessary services, 25 including fire and other public-safety services associated with a large casino operation, it 26 will lose tax revenue from surrounding businesses that lose customers to the proposed 27 casino, and its residents will suffer assorted quality-of-life injuries from gaming activities 28 that will occur in the midst of their neighborhoods. Docs. 110 at 9, 87 ¶¶ 62-69. The 5 1 Community will also suffer genuine injury because a major casino in Glendale will 2 reduce the Community’s revenue from its own casinos, particularly the Vee Quiva 3 Casino located less than 20 miles from Parcel 2. Docs. 111 at 16, 111-1. This, in turn, 4 will harm the Terry and Rios Plaintiffs by reducing their per capita payments as members 5 of the Community. Id.; Docs. 107 at 5, 107-1 at 3-17. Given the Nation’s stated plan to 6 move forward with its casino once Parcel 2 is held in trust, the threat of injury is real. 7 The injury requirement of standing is satisfied. 8 The causation requirement is not met, the United States argues, because the Trust 9 Decision expressly withheld an IGRA determination. Docs. 95 at 20, 117 at 5. In 10 support of this argument, the United States cites Stop the Casino 101 Coalition v. 11 Salazar, No. C 08-02846 SI, 2009 WL 1066299 (N.D. Cal. Apr. 21, 2009), aff’d 384 Fed. 12 Appx. 546 (9th Cir. June 3, 2010). The district court in that case found that the plaintiffs’ 13 injuries from potential future gaming on trust land were too speculative to create 14 standing. 2009 WL 1066299, at *3-4. But the plaintiffs in Stop the Casino 101, unlike 15 Plaintiffs in this case, did not assert that DOI’s decision to hold land in trust violated 16 IGRA. 2009 WL 1066299, at *4. 17 The United States conceded at the hearing that while an IGRA determination on 18 Parcel 2 may one day be made by the National Indian Gaming Commission (“NIGC”) – 19 in connection with its approval of a site-specific ordinance, licenses to operate the casino, 20 or potential management contracts – the Nation can start operating a casino on Parcel 2 21 without any IGRA determination having been made by DOI. Doc. 128 at 42-44. The 22 Nation likewise asserted that it can start gaming on Parcel 2 without any Indian lands 23 opinion under IGRA. Id. at 53. If the United States and the Nation are correct in their 24 assertion that gaming may begin merely upon Parcel 2 being taken into trust – without 25 any Indian lands opinion being rendered under IGRA – then DOI’s decision to take the 26 parcel into trust is a cause of the injuries Plaintiffs will suffer as a result of gaming at the 27 site. Stated differently, Defendants’ own position that nothing more than the Trust 28 Decision is needed for the Nation to start gaming on the site is sufficient to establish the 6 1 Trust Decision as a cause of the gaming that will injure Plaintiffs. In Stop the Casino 2 101, by contrast, additional steps were required before gaming could begin at the site, 3 making the plaintiffs’ alleged injuries speculative. 2009 WL 1066299, at *3-4 (noting 4 that the Tribe still had to negotiate a gaming compact with California). Defendants in 5 this case take the position that no additional steps will be required before gaming can 6 begin. 7 The United States argues that the redressability requirement of standing is not met. 8 But if the Court rules in favor of Plaintiffs on the merits of their IGRA claim, that is, that 9 DOI should have made an IGRA determination as part of the Trust Decision, and if on 10 remand DOI addresses the issue and concludes that Parcel 2 does not qualify for gaming 11 under IGRA, then the Court’s ruling would prevent the casino from being built and 12 thereby redress Plaintiffs’ injuries. 13 The Court finds that Plaintiffs have standing to bring their IGRA claim and the 14 State has standing to bring a Tenth Amendment claim. Defendants do not assert a lack of 15 standing with respect to the Gila Bend Act claims. 16 III. Standard and Scope of Review Under the APA. 17 The Administrative Procedure Act (“APA”) does not allow a court to overturn an 18 agency decision simply because the court disagrees with the decision. River Runners for 19 Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). A court may set aside the 20 agency decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise 21 not in accordance with law.” 5 U.S.C. § 706(2)(A). “This standard of review is highly 22 deferential, presuming the agency action to be valid and affirming the agency action if a 23 reasonable basis exists for its decision.” Nw. Ecosystem Alliance v. U.S. Fish & Wildlife 24 Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (internal quotes and citation omitted). 25 In addition to these substantive limitations, review under the APA generally is 26 restricted to the administrative record. See 5 U.S.C. 706(2); Ariz. Cattle Growers’ Ass’n 27 v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001). The Court must 28 consider only those materials that were presented to the agency before it made the 7 1 challenged decision. Id. The Court may consider materials outside of the administrative 2 record only in limited circumstances, none of which exists in this case. See Ctr. for 3 Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006). 4 The Court’s decision therefore is limited to the administrative record supplied by the 5 parties. See Docs. 42, 70.2 6 IV. The Gila Bend Act. 7 The Trust Decision violates the APA, Plaintiffs argue, because (1) DOI failed to 8 determine whether the 9,880-acre acquisition limitation found in § 6(c) of the Act already 9 had been exceeded when the Nation acquired Parcel 2 in August of 2003, (2) Parcel 2 lies 10 “within the corporate limits” of Glendale in violation of § 6(d), and (3) DOI failed to 11 determine whether a water management plan can be developed for Parcel 2 in violation of 12 § 6(e). The Court will address each of these arguments in turn. 13 A. Waiver of the Section 6(c) Argument. 14 Section 6(c) of the Gila Bend Act authorizes the Nation “to acquire by purchase 15 private lands in an amount not to exceed, in the aggregate, [9,880] acres.” Pub. L. 99- 16 503, 100 Stat. 1798. Under § 6(d) of the Act, DOI is required, where certain conditions 17 are met, to hold in trust land which the Nation acquires pursuant to § 6(c). Id. The Trust 18 Decision concludes that “the legal requirements under the Gila Bend Act for acquiring 19 Parcel 2 in trust have been satisfied” (AR10), but does not explicitly address § 6(c). 20 Relying on evidence outside the administrative record (see Doc. 87 ¶ 3), the 21 Community argues that the Nation had exceeded the 9,880-acre limit in § 6(c) before 22 purchasing Parcel 2, and a remand is therefore required to allow DOI to consider this 23 extraneous evidence and make a § 6(c) determination (Doc. 88 at 12). The § 6(c) 24 argument has been waived, the Nation contends, because no party raised it during the 25 administrative process. Doc. 98 at 21. The Nation is correct. 26 27 28 2 Citations to the administrative record will be to the “AR” number at the bottom right corner of each page. Citations to pages in the parties’ briefs and other filings in the Court’s electronic docket will be to page numbers applied to the top of each page by the electronic docket system, not to page numbers at the bottom of each page. 8 1 “A reviewing court usurps the agency’s function when it sets aside the 2 administrative determination upon a ground not theretofore presented and deprives the 3 [agency] of an opportunity to consider the matter, make its ruling, and state the reasons 4 for its action.” Unemployment Compensation Comm’n of Territory of Alaska v. Aragon, 5 329 U.S. 143, 155 (1946). As the Supreme Court has recognized in more than a few 6 decisions, “orderly procedure and good administration require that objections to the 7 proceedings of an administrative agency be made while it has opportunity for correction 8 in order to raise issues reviewable by the courts.” United States v. L.A. Truck Lines, Inc., 9 344 U.S. 33, 36-37 (1952) (citations omitted); see also Portland Gen. Elec. Co. v. 10 Bonneville Power Admin., 501 F.3d 1009, 1023 (9th Cir. 2007) (citing cases). Indeed, 11 “[s]imple fairness to those who are engaged in the tasks of administration, and to 12 litigants, requires as a general rule that courts should not topple over administrative 13 decisions unless the administration not only has erred but has erred over objection[.]” 14 L.A. Truck Lines, 344 U.S. at 37. 15 The Community concedes that it never argued during the administrative process 16 that DOI was obligated to make a § 6(c) determination before taking Parcel 2 in trust. 17 Doc. 128 at 14. That argument could not have been raised, the Community asserts, until 18 it discovered documents purportedly showing that the Nation had exceeded the 9,880- 19 acre cap prior to its purchase of Parcel 2. Docs. 111 at 9, 128 at 14. But, as the Nation 20 and the United States correctly note (Docs. 94 at 4, 118 at 11), those documents are not 21 relevant to the legal question of whether § 6(c) limits the total amount of land that may be 22 purchased under the Act, or whether it limits only the total amount of land that may be 23 taken into trust under the Act. 24 The Nation took the latter position before the agency, counting only trust land 25 against the 9,880-acre cap. AR4367. The Community did not challenge this reading of 26 § 6(c), nor did it object to the similar conclusion reached by DOI. AR4307-08, 4317. 27 If the Community (or any other Plaintiff) believed, contrary to the positions taken 28 by the Nation and DOI, that all lands purchased by the Nation count against the 9,880 9 1 acre limit in § 6(c), it should have said so during the administrative proceedings. It did 2 not. Instead, it read § 6(c) the same way it was interpreted by the Nation and DOI, 3 stating in its submissions to DOI that “Section 6(c) limits the number of acres that may be 4 placed in trust to no more than 9,880 acres.” AR849 (emphasis added); see AR865-66. 5 The Community now argues that even if it has waived the § 6(c) argument, that 6 argument may be raised in this Court by the other Plaintiffs who did not participate in the 7 administrative process. Docs. 111 at 8-9, 128 at 11. But a party that did not participate 8 in the administrative process may challenge the agency’s decision in court only on the 9 basis of “issues that were submitted by others during the administrative process.” Choate 10 v. U.S. Army Corps of Eng’rs, No. 4:07-CV-01170-WRW, 2008 WL 4833113, at *5 11 (E.D. Ark. Nov. 5, 2008). Stated differently, the waiver rule does not limit who may seek 12 judicial review of an agency’s decision, but it does limit what can be raised in judicial 13 review. Choate, 2008 WL 4833113, at *5; see Portland Gen. Elec. Co. v. Bonneville 14 Power Admin., 501 F.3d 1009, 1024 (9th Cir. 2007) (issues not waived where other 15 parties repeatedly raised those arguments during the administrative process and the 16 agency defended the legality of its position); see also Natural Res. Def. Council v. EPA, 17 824 F.2d 1146, 1151 (D.C. Cir. 1987) (issue exhausted where it was explicitly raised by 18 other parties during the administrative process and the agency had considered and 19 resolved the issue); S. Pac. Transp. Co. v. I.C.C., 69 F.3d 583, 588 (D.C. Cir. 1995 (“we 20 permit a party that is aggrieved to raise arguments it did not present to the agency but 21 were presented by other parties”); Maine v. Shalala, 81 F. Supp. 2d 91, 101 (D. Me. 22 1999) (“The fact that another entity had raised the issue below, and created an 23 administrative record[,] vitiates the concerns reflected in the . . . policies that underlie the 24 doctrine of procedural default.”). 25 The Community concedes that no party raised § 6(c) during the administrative 26 process and that the administrative record as a whole includes no analysis of § 6(c). 27 Docs. 88 at 11-12, 102 at 4. The argument has therefore been waived. While there are 28 certain “exceptional circumstances under which a court might dispense with the raise-or 10 1 waive rule in the administrative law context,” Commonwealth of Mass., Dep’t of Pub. 2 Welfare v. Sec’y of Agric., 984 F.2d 514, 524 (1st Cir. 1993), none is applicable in this 3 case. The § 6(c) argument therefore may not be considered by the Court. See Dep’t of 4 Transp. v. Public Citizen, 541 U.S. 752, 764-65 (2004) (failure to raise an objection at the 5 administrative level forfeits that objection for purposes of later litigation); see also 6 Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1298 (D.C. Cir. 2004) (“‘respect for 7 agencies’ proper role in the Chevron framework requires that the court be particularly 8 careful to ensure that challenges to an agency’s interpretation of its governing statute are 9 first raised in the administrative forum’”) (citation omitted). 10 The Community’s reliance on Sims v. Apfel, 530 U.S. 103 (2000), is misplaced. 11 Doc. 111 at 10. Sims is a social security case, and “[t]he difference between courts and 12 agencies are nowhere more pronounced that in Social Security proceedings.” 530 U.S. at 13 110. The Commissioner of Social Security has no representative before the ALJ to 14 oppose the claim for benefits, and the ALJ therefore bears an independent duty to 15 investigate the facts and develop the arguments both for and against granting benefits. Id. 16 at 110-11. 17 adversarial. Id. Because the administrative proceedings before DOI in this case involved 18 the adversarial development of issues by the parties, Sims does not save the waived § 6(c) 19 argument. See Woodford v. Ngo, 548 U.S. 81, 91 n.2 (2006) (distinguishing Sims as 20 recognizing only a narrow exception to issue exhaustion where the administrative 21 proceeding was inquisitorial and non-adversarial); see also II Richard J. Pierce, Jr., 22 Administrative Law Treatise 1284-85 (Wolters Kluwer, 5th ed. 2010) (discussing the 23 limited import of Sims).3 Social Security proceedings, therefore, are inquisitorial rather than 24 B. 25 Parcel 2 is part of a “county island,” that is, unincorporated land surrounded by the 26 27 28 Section 6(d) of the Act. 3 The Community’s citation of Jicarilla Apache Nation v. U.S. Dept. of Interior, 613 F.3d 1112 (D.C. Cir. 2010), is also unpersuasive. DOI forfeited its waiver argument in that case by failing to raise it in the district court, and the party alleged to have waived its argument before DOI was not permitted to participate directly in the DOI proceedings. Id. at 1117-18. 11 1 municipality of Glendale. See Town of Gilbert v. Maricopa County, 141 P.3d 416, 418 2 n.1 (Ariz. Ct. App. 2006) (describing a county island). Land may be taken into trust 3 under § 6(d) of the Gila Bend Act only if it is not “within the corporate limits of any city 4 or town[.]” Pub. L. 99-503, 100 Stat. 1798. The Act nowhere defines this language. The 5 legislative history provides little help, stating only that land may be taken into trust where 6 it is “outside the corporate limits of any city or town.” H.R. 99-851, at 11. 7 In the Trust Decision, DOI found the phrase “corporate limits” to have a plain 8 meaning: “The use of ‘corporate limits’ shows a clear intent to make a given piece of 9 property eligible under the Act if it is on the unincorporated side of the city’s boundary 10 line.” Doc. 1-1 at 7; AR3-10. Glendale disagrees, asserting that the Act uses “corporate 11 limits” to mean the outer boundary of a city. Doc. 86 at 13-14. Thus, according to 12 Glendale, Parcel 2 is within the corporate limits of Glendale because it is entirely within 13 the exterior boundary of the City. Id. at 16. 14 “In examining statutory terms, ‘[courts] should usually give words their plain, 15 natural, ordinary and commonly understood meanings.’” United States v. Gallenardo, 16 579 F.3d at 1085-86 (9th Cir. 2009) (citation omitted). 17 construction, the Court finds the meaning of “within the corporate limits” to be 18 ambiguous. It seems clear that “corporate limits” means incorporated land. See Black’s 19 Law Dictionary 947, 364, 947 (8th ed. 2004) (“corporate” means “[o]f or relating to a 20 corporation” and “limit” is a “restriction or restraint,” a “boundary or defining line,” and 21 the “extent of power, right, or authority”); see also Transwestern Pipeline Co. v. 17.19 22 Acres of Prop. Located in Maricopa County, 627 F.3d 1268, 1270 (9th Cir. 2010) (courts 23 should consult dictionary definitions when determining the meaning of statutory 24 language). 25 interpretation is that “within” means surrounded by, but not part of, incorporated land. 26 See Merriam-Webster, http://www.merriam-webster.com/dictionary/within (last visited 27 Feb. 28, 2001) (“within” indicates “enclosure or containment”). 28 Kingdom of Lesotho is entirely “within” the Republic of South Africa, and yet not part of Applying this canon of The key question, then, is the meaning of “within.” 12 One reasonable For example, the 1 South Africa. Similarly, it reasonably can be said that Parcel 2 is “within” the corporate 2 limits of Glendale even though Parcel 2 is not part of Glendale. 3 While not controlling, this interpretation is supported by the Arizona Supreme 4 Court’s decision in Flagstaff Vending Co. v. City of Flagstaff, 578 P.2d 985 (Ariz. 1978). 5 The majority in that case squarely held that because the City of Flagstaff surrounds 6 Northern Arizona University, the school is “within” the corporate limits of the City. 578 7 P.2d at 987. DOI and the Nation distinguish Flagstaff Vending on the ground that 8 Northern Arizona University previously had been annexed by the City of Flagstaff, but 9 the case says nothing about that fact, and the concurring opinion suggests that it was not 10 known to the court. 578 P.2d at 561-62 (Cameron, CJ., concurring). 11 Nor is Flagstaff Vending limited by the holdings in Speros v. Yu, 83 P.3d 1094, 12 (Ariz. Ct. App. 2004), and Sanderson Lincoln Mercury, Inc. v. Ford Motor Co., 68 P.3d 13 428 (Ariz. Ct. App. 2003). See AR8 n.3. Those cases stand only for the proposition that 14 it is possible for property, like Parcel 2, to be “within the exterior boundary of a city and 15 yet not be part of the city.” Speros, 83 P.3d at 1100; see Sanderson, 68 P.3d at 432 (“an 16 area excluded from the defined area of incorporation is not part of the ‘city,’ as is true of 17 a county island”). The question under § 6(d) is not whether Parcel 2 is part of the 18 incorporated land of Glendale – everyone agrees it is not – but whether Parcel 2 is 19 “within the corporate limits” of Glendale. Speros and Sanderson shed no light on that 20 issue. 21 A second reasonable interpretation of § 6(d) is the one adopted by DOI – that 22 “within corporate limits” means within incorporated land. See Merriam-Webster, 23 http://www.merriam-webster.com/dictionary/within (last visited Feb. 28, 2001) (“within” 24 can mean “an inner place or area”). This interpretation, like the one pressed by Glendale, 25 also is supported by Arizona law. See A.R.S. § 9-461.11 (describing the extraterritorial 26 jurisdiction of a municipality over unincorporated territory which is “beyond the 27 corporate limits of the municipality”). 28 Glendale’s own conduct. The procedures required to extend and increase the “corporate The interpretation also is consistent with 13 1 limits” of a city or town by annexation are set forth in A.R.S. § 9-471. Pursuant to that 2 statute, Glendale adopted an ordinance in 1977 annexing a strip of land surrounding 3 Parcel 2 and other unincorporated territory. That ordinance makes clear that Glendale 4 was extending and increasing its “corporate limits” only with respect to the strip of land 5 that was actually annexed. 6 AR1198-99, 1208-09, 1218-19 (2002 Ordinances). Thus, consistent with Arizona law, 7 Glendale’s own conduct shows that a city’s corporate limits are extended through 8 annexation, and adjacent unincorporated county islands remain outside the city’s 9 corporate limits. See City of Safford v. Town of Thatcher, 495 P.2d 150, 153 (Ariz. Ct. 10 App. 1972) (noting that the legislative purpose of annexation is to extend a municipality’s 11 “corporate limits”). AR1532-39; see also AR1186-87 (2001 Ordinance); 12 Glendale asserts that Congress enacted the Gila Bend Act with the intent that the 13 Nation replace its previous 9,880 acres of rural reservation land with a similar cohesive 14 reservation, and that the “within the corporate limits” language was designed to forbid the 15 “geographically disparate, partially urban reservation the Secretary has now approved.” 16 Doc. 86 at 17-18. The Nation notes, on the other hand, that the Act was intended to 17 facilitate replacement of reservation lands with lands suitable for “sustained economic 18 use which is not principally farming and do not require Federal outlays for 19 construction[.]” Pub. L. No. 99-503, § 2(4). Congress made clear that the O’odham 20 people were in need of a land base that can provide them “realistic and reasonable 21 opportunities for economic and social development,” and that “[s]ignificant opportunities 22 for employment or economic development in the town of Gila Bend . . . simply do not 23 exist.” H.R. 99-851, at 7. Congress specifically intended that the Nation “have great 24 flexibility in determining the use of funds provided under [the] Act.” Id. at 10. The 25 Nation’s purchase of economically desirable land near urban areas is not inconsistent 26 with the Act’s purposes. 27 In addition to citing Arizona law and the legislative history of § 6(d), both sides 28 cite statutes and court cases from outside Arizona to support their reading of “within 14 1 corporate limits.” See Doc. 98 at 16-18; Doc. 110 at 19-20. The Court finds Defendants’ 2 citations more compelling, but acknowledges that cases have accepted Plaintiffs’ reading 3 as well. Id. 4 So what must the Court do when both sides advocate reasonable interpretations of 5 § 6(d), only one of which was adopted by DOI? The Court must defer to the agency’s 6 interpretation of the statute. 7 interpretation is correct, but whether it is “based on a permissible construction of the 8 statute.” Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843 9 (1984). “The court need not conclude that the agency construction was the only one it 10 permissibly could have adopted to uphold the construction, or even the reading the court 11 would have reached if the question initially had arisen in a judicial proceeding.” Id. at 12 843 n. 2. Indeed, “a court may not substitute its own construction of a statutory provision 13 for a reasonable interpretation made by the administrator of an agency.” Id. at 844. The question before the Court is not whether DOI’s 14 This rule of deference – typically referred to as “Chevron deference” – is well 15 established. Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1191 (9th 16 Cir. 2000). The Ninth Circuit recently stated that such deference applies “‘when it 17 appears that Congress delegated authority to the agency generally to make [decisions] 18 carrying the force of law, and that the agency interpretation claiming deference was 19 promulgated in the exercise of that authority.’” Wilderness Watch, Inc. v. U.S. Fish & 20 Wildlife Service, 629 F.3d 1024, 1034 (9th Cir. 2010) (quoting United States v. Mead 21 Corp., 533 U.S. 218, 229-30 (2001)). 22 DOI administers the Gila Bend Act. The Act explicitly provides that the Secretary 23 of the Interior, see Pub. L. 99-503, § 3(3), “shall be required to carry out the obligations 24 of [the] Act,” id. § 9(a). This includes holding land in trust where certain requirements 25 are met. Id. § 6(d). The Secretary’s determination regarding the meaning of “within 26 corporate limits” was “intended to have the force of law, as it formed the basis for the 27 Secretary’s decision under the [Act] to acquire property in trust for the [Nation.]” 28 Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 466-67 (D.C. Cir. 15 1 2007). The Secretary published notice of the Trust Decision in the Federal Register. 75 2 Fed. Reg. 52550-01, 52550 (Aug. 26, 2010). 3 deliberative agency’s self-binding choice,” it is “further evidence of a Chevron-worthy 4 interpretation.” 5 interpretation of § 6(d) is entitled to Chevron deference. See Ninilchik, 227 F.3d at 1191 6 (citing cases granting Chevron deference to the Secretary’s interpretation of statutes 7 administered by DOI); Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004, 1012 (9th 8 Cir. 2002) (Chevron deference due even though agency statements are not the result of 9 formal rulemaking or adjudication); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1293 10 (D.C. Cir. 2000) (applying Chevron deference to the Secretary’s statutory interpretation 11 where the Secretary was authorized by statute to acquire land in trust for a tribe).4 Because that publication “reflects a Citizens Exposing Truth, 492 F.3d at 467. As a result, DOI’s 12 Deference to DOI’s interpretation of § 6(d) is also compelled by the well-settled 13 canon of construction that “statutes are to be construed liberally in favor of the Indians, 14 with ambiguous provisions interpreted to their benefit[.]” Montana v. Blackfeet Tribe of 15 Indians, 471 U.S. 759, 766 (1985) (citations omitted). Glendale asserts that this canon 16 does not apply where Indian tribes are on both sides of the dispute, but the Gila Bend Act 17 was enacted for the benefit of the Nation, not the Community or any other tribe. The Act 18 therefore should be construed liberally in favor of the Nation. See EEOC v. Karuk Tribe 19 Hous. Auth., 260 F.3d 1071, 1081-82 (9th Cir. 2001) (applying the canon to adopt an 20 interpretation generally favoring Indian interests even though Indians were on both sides 21 of the case); Doe v. Mann, 415 F.3d 1038, 1047 (9th Cir. 2005) (same). 22 The City, citing Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety 23 Admin., 471 F.3d 1350 (D.C. Cir. 2006), argued at the hearing that if the Court finds the 24 language of § 6(d) to be ambiguous, then DOI’s decision finding the meaning of § 6(d) to 25 be plain constitutes error under the APA. Doc. 128 at 21-22. This is the law, according 26 27 28 4 Even if DOI’s issuance of the Trust Decision could not be viewed as a sufficient exercise of delegated authority to warrant Chevron deference, it would be entitled to Skidmore deference as the informed judgment of the agency tasked with administering the Gila Bend Act. See Wilderness Watch, 629 F.3d at 1034-35. 16 1 to the City, because an agency’s finding that a statute is plain shows that the agency did 2 not engage in the “reasoned grappling” necessary to interpret an ambiguous statute. Id. at 3 23. But in an opinion dated April 3, 2009, the Phoenix Field Solicitor explicitly found 4 the “within corporate limits” language to be ambiguous, concluding after extensive 5 analysis of Arizona law and the purpose of the Gila Bend Act that the language should be 6 construed to mean that Parcel 2 does not fall within the corporate limits of Glendale. 7 AR4311-17. DOI’s final decision explicitly acknowledged the Field Solicitor’s opinion. 8 AR7-8. While DOI ultimately found the meaning of § 6(d) to be plain, the efforts of the 9 Field Solicitor show that the agency did not fail to grapple with the meaning of the 10 provision, nor to provide a reasoned explanation for its decision. 11 In summary, the Court concludes that DOI’s decision to acquire Parcel 2 in trust 12 under § 6(d) of the Gila Bend Act was based on a permissible construction of the statute. 13 The Court must defer to that construction. 14 C. Section 6(e) of the Act. 15 The Community notes that § 6(e) of the Gila Bend Act requires the Secretary “to 16 establish a water management plan for any land which is held in trust[.]” Pub. L. No. 99- 17 503, § 6(e) (emphasis added). But the Community is wrong in asserting that this must be 18 done before Parcel 2 can be taken into trust. Doc. 88 at 13. The Community cites no 19 legal authority establishing such a requirement, and the Court agrees with Defendants 20 that the plain language of § 6(e) does not require the Secretary to establish a water 21 management plan before taking land in trust. 22 D. Gila Bend Act Summary. 23 The argument that DOI erred by failing to conduct an accounting under § 6(c) of 24 the Act has been waived and may not be considered by the Court. The “within corporate 25 limits” language of § 6(d) is ambiguous, but DOI’s interpretation of that language is 26 reasonable and therefore must be upheld. Finally, DOI had no obligation under § 6(e) to 27 establish a water management plan before deciding to hold Parcel 2 in trust. Because the 28 Court cannot conclude that the Trust Decision was “arbitrary, capricious, an abuse of 17 1 discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), summary 2 judgment must be granted in favor of Defendants on the Gila Bend Act claims. 3 V. IGRA. 4 The Trust Decision “does not address or determine the Nation’s eligibility to game 5 on Parcel 2 under IGRA.” Doc. 1-1 at 9; AR10. The Community contends that DOI’s 6 decision to accept Parcel 2 in trust is arbitrary and capricious, and therefore in violation 7 of the APA, because a gaming decision under IGRA must be made before land is taken 8 into trust. Doc. 88 at 14. The Court does not agree. 9 The Trust Decision takes Parcel 2 into trust under the Gila Bend Act. IGRA 10 expressly states it does not “affect or diminish the authority and responsibility of the 11 Secretary to take land into trust.” 25 U.S.C. § 2719(c). Thus, IGRA clearly does not 12 limit DOI’s authority to take Parcel 2 into trust under the Act. The Community does not 13 argue otherwise. 14 proceedings that “the gaming eligibility determination [under IGRA] cannot be a basis 15 for denying a Gila Bend Act trust application[.]” AR110 (emphasis added); see also 16 AR75 (same). Indeed, the Community itself admitted during the administrative 17 The Community now contends that DOI’s regulations and policies require that a 18 gaming decision be made before land is taken into trust under the Gila Bend Act. In 19 support, the Community cites 25 C.F.R. § 292.3, a June 18, 2010 memorandum from the 20 Secretary to the Assistant Secretary for Indian Affairs addressing decisions on Indian 21 gaming applications (Doc. 87-7 at 15-17), a September 2007 gaming acquisition checklist 22 issued by the Assistant Secretary for Indian Affairs to regional directors (Doc. 87-8), and 23 a memorandum of agreement (“MOA”) between DOI and the NIGC (Docs. 87-7 at 2-5, 24 7-9, 11-13). 25 The regulation, 25 C.F.R. § 292.3, explains how a tribe may seek an Indian lands 26 opinion. Subsection (b) provides that “[i]f the tribe seeks to game on newly acquired 27 lands that require a land-into-trust application or the request concerns whether a specific 28 area of land is a ‘reservation,’ the tribe must submit a request for an opinion to the Office 18 1 of Indian Gaming.” While the regulation could be read as requiring that a tribe request 2 an opinion whenever land is to be taken into trust for purposes of gaming, DOI does not 3 interpret it that way. DOI reads the word “must” in § 292.3(b) as requiring that the tribe 4 request the opinion from DOI’s Office of Indian Gaming, rather than from NIGC. In 5 other words, the regulation specifies from whom an opinion must be sought, not when it 6 must be sought. The Court finds this interpretation plausible. 7 When two plausible interpretations of an agency regulation exist, a court must 8 accept the agency’s preferred interpretation. As the Supreme Court has explained, an 9 agency’s interpretation of its own regulation is controlling unless plainly erroneous or 10 inconsistent with the regulation. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 11 171 (2007); Auer v. Robbins, 519 U.S. 452, 462 (1997). The Court cannot conclude that 12 DOI’s interpretation of § 292.3(b) is either plainly erroneous or internally inconsistent, 13 and must therefore defer to DOI. This is true even when, as here, the interpretation is 14 provided for the first time in litigation. See Cement Kiln Recycling Coalition v. EPA, 493 15 F.3d 207, 220 n.7 (D.C. Cir. 2007) (citing Long Island, 551 U.S. at 171). 16 The June 18 memorandum provides, in relevant part, that “[u]nder IGRA’s 17 implementing regulations, [DOI] has the responsibility to determine whether gaming can 18 occur on lands acquired after IGRA’s enactment in 1988.” Id. at 15. But contrary to the 19 Community’s assertion (Doc. 88 at 15), nothing in the June 18 memorandum, as a matter 20 of department policy or otherwise, requires DOI to make a gaming decision under IGRA 21 before taking land into trust. 22 The September 2007 checklist provides that “[a]ll applications for the trust 23 acquisition of land intended for gaming must be processed with [IGRA] considerations in 24 mind” (id. at 10), and where the application indicates that the proposed acquisition falls 25 within one of the exceptions for land acquired after 1988, “[a] legal opinion from the 26 Office of the Solicitor concluding that the proposed acquisition comes within one of 27 [those] exceptions must be included” (id. at 11). The MOA provides that whether a tribe 28 meets one of the IGRA exceptions “is a decision made by the Secretary when he or she 19 1 decides to take land into trust for gaming.” Doc. 87-7 at 2. 2 The checklist and MOA, according to the Community, reflect DOI policy in favor 3 of determining whether a proposed acquisition falls within one of IGRA’s exceptions 4 before land is held in trust. But even if this is true, the checklist and MOA are internal 5 agency documents that give no rights to Plaintiffs. Those documents do not prescribe 6 substantive rules. At most, they constitute “‘interpretive rules, general statements of 7 policy or rules of agency organization, procedure or practice[.]’” United States v. Fifty- 8 Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (1982) (citation omitted). Nor were 9 they promulgated in conformance with the procedures of the APA, or published in the 10 Code of Federal Regulations. See id. As a result, these documents lack the force of law 11 and cannot be relied on by Plaintiffs in this action. See River Runners, 593 F.3d at 1071- 12 73. 13 Moreover, DOI found the Parcel 2 trust acquisition to be “mandatory” because the 14 Gila Bend Act states that the Secretary “shall” hold land in trust, not “may” hold land in 15 trust, when certain requirements are met. Doc. 1-1 at 5; AR6; Pub. L. 99-503, § 6(d). A 16 gaming determination under IGRA is not one of the specified requirements in the Act. 17 Id. Thus, the Act mandated that DOI take the land into trust regardless of whether a 18 gaming determination had been made. IGRA is not to the contrary. Indeed, IGRA 19 specifically states that nothing in its provisions “shall affect or diminish the authority and 20 responsibility of the Secretary to take land into trust.” 25 U.S.C. § 2719(c). 21 The result is that DOI, under the specific command of Congress in the Gila Bend 22 Act, was required to take Parcel 2 into trust when the requirements of the Act were met. 23 The Community does not challenge, under the APA or otherwise, DOI’s conclusion that 24 the Parcel 2 trust acquisition is mandatory. See Sault Ste. Marie Tribe of Lake Superior 25 Chippewa Indians v. United States, 78 F. Supp. 2d 699, 702-05 (W.D. Mich. 1999) 26 (upholding Secretary’s determination that trust acquisition was mandatory as “eminently 27 reasonable” and “not arbitrary or capricious”); see also Wyandotte Nation v. NIGC, 437 28 F. Supp. 2d 1193, 1211 (D. Kan. 2006) (same). Thus, DOI’s failure to make an Indian 20 1 gaming determination provides no basis for setting aside the Trust Decision. 2 The Arizona Legislators assert that the Nation’s compact with Arizona, A.R.S. 3 § 5-601.02, expressly incorporates provisions of IGRA (Doc. 84 at 13), and that because 4 DOI has violated IGRA by accepting Parcel 2 into trust without issuing an Indian lands 5 opinion (id. at 13-17), DOI simultaneously violated the compact between the State and 6 the Nation (id. at 17). As explained more fully above, however, DOI has not violated 7 IGRA. Moreover, DOI is not a party to the compact between the State and the Nation. 8 Doc. 95 at 21 n.6; see A.R.S. § 5-601.02. The Legislators do not explain how the 9 compact can require DOI – a nonparty to the compact – to issue an Indian lands opinion. 10 It may well be preferable as a matter of public policy to have gaming decisions 11 under IGRA made when land is taken into trust. But the question before the Court is not 12 good policy, and not even whether IGRA is “ideally suited to resolving, in a timely 13 fashion, the Indian lands status for proposed tribal casinos.” N. County Cmty. Alliance, 14 Inc. v. Salazar, 573 F.3d 738, 748 (9th Cir. 2009). The question, rather, is whether IGRA 15 and its implementing regulations required DOI to make an Indians land determination 16 when it chose to take Parcel 2 into trust. For the reasons stated above, IGRA imposed no 17 such obligation. 18 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and 19 will grant summary judgment in Defendants’ favor on the IGRA claims and the 20 Legislators’ related claim under the state-tribal compact. 21 VI. The Court accordingly concludes that the Trust Decision was not The Tenth Amendment and the Indian Commerce Clause. 22 Glendale contends that the Trust Decision encroaches on state sovereignty in 23 violation of the Tenth Amendment and exceeds Congress’s power under the Indian 24 Commerce Clause. Doc. 86 at 24-31. As counsel for Glendale agreed during oral 25 argument, Plaintiffs ask the Court to break new ground on this issue – to depart from 26 every court decision that has previously addressed it. The Court declines the invitation. 27 The Tenth Amendment provides that the “powers not delegated to the United 28 States by the Constitution . . . are reserved to the States[.]” U.S. Const. amend. X. Of 21 1 particular relevancy in this case is the fact that the Constitution does delegate broad 2 power to the United States to regulate Indian affairs. Article I empowers Congress “[t]o 3 regulate Commerce . . . with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. “It is well- 4 settled that this power affords plenary legislative authority in Indian affairs.” Cent. N.Y. 5 Fair Bus. Ass’n v. Salazar, No. 608-CV-600, 2010 WL 786526, at *4 (N.D.N.Y. Mar. 1, 6 2010) (citing cases). In passing the Gila Bend Act, Congress expressly stated that it was 7 fulfilling “its responsibility to exercise plenary power over Indian affairs to find 8 alternative land for the O’odham people.” H.R. Rep. 99-851, at 7 (1986). 9 Glendale argues that a court may not ignore the Tenth Amendment and look only 10 to Article I to decide if congressional action is authorized. Doc. 86 at 28. But where 11 “a power is delegated to Congress in the Constitution, the Tenth Amendment expressly 12 disclaims any reservation of that power to the States[.]” New York v. United States, 505 13 U.S. 144, 156 (1992). The Indian Commerce Clause delegates power to Congress, and 14 this Clause “has received an expansive interpretation by the Supreme Court.” Cent. N.Y. 15 Fair Bus. Ass’n, 2010 WL 786526, at *4; see Morton v. Mancari, 417 U.S. 535, 551 16 (1974) (noting the “plenary power of Congress to deal with the special problems of 17 Indians”); Cotton v. Petro. Corp., 490 U.S. 163, 192 (1989) (“the central function of the 18 Indian Commerce Clause is to provide Congress with plenary power to legislate in the 19 field of Indian affairs”); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) 20 (“Congress possesses plenary power over Indian affairs, including the power to modify or 21 eliminate tribal rights”); United States v. Lara, 541 U.S. 193, 200 (2004) (“the 22 Constitution grants Congress broad powers to legislate in respect to Indian tribes, powers 23 that we have consistently described as ‘plenary and exclusive’”). Indeed, “[w]ith the 24 adoption of the Constitution, Indian relations became the exclusive province of federal 25 law.” County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234 (1985). 26 As other courts have recognized, DOI’s decision to take land into trust for the 27 benefit of Indian tribes “must be read as a valid exercise of the power delegated to 28 Congress by the Constitution.” New York v. Salazar, No. 6:08-CV-644 (LEK/GJD), 22 1 2009 WL 3165591, at *6 (N.D.N.Y. Sept. 29, 2009). And because DOI’s “authority to 2 take land into trust for Indians springs from powers delegated to Congress in Article I, 3 [the Gila Bend Act] as applied herein does not implicate the Tenth Amendment.” Id.; see 4 Cent. N.Y. Fair Bus. Ass’n, 2010 WL 786526, at *3-4; City of Roseville v. Norton, 219 F. 5 Supp. 2d 130, 153-54 (D.D.C. 2002); Carcieri v. Kempthorne, 497 F.3d 15, 20, 39-40 6 (1st Cir. 2007) (the Secretary may take land into trust “without consent of the State” and 7 without offending the Tenth Amendment because “Congress has plenary authority to 8 regulate Indian affairs”), rev’d on other grounds by Carcieri v. Salazar, 129 S. Ct. 1058 9 (2009). 10 Glendale contends that Carcieri and like cases err in ignoring the state sovereignty 11 inquiry altogether. Doc. 86 at 28-29. But the Tenth Amendment provides courts “no 12 license to employee freestanding conceptions of state sovereignty when measuring 13 congressional authority” expressly granted under the Indian Commerce Clause. Garcia 14 v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985). 15 Glendale further contends that the Indian Commerce Clause does not authorize the 16 acquisition of Parcel 2 in trust under the Gila Bend Act because the proposed acquisition 17 does not “regulate commerce” with Indian tribes. Doc. 86 at 30. But Congress enacted 18 the Gila Bend Act to provide the Nation replacement lands “suitable for sustained 19 economic use” and to “promote the economic self-sufficiency of the O’odham Indian 20 people.” Pub. L. 99-503, § 2(4). Consistent with those stated goals, the Nation intends to 21 conduct commercial activities on Parcel 2. The Court cannot conclude that the Gila Bend 22 Act, as applied in this case, lies outside the scope of the Indian Commerce Clause. 23 Because Plaintiffs have failed to show that the Trust Decision exceeds the power 24 granted Congress under the Indian Commerce Clause or otherwise violates the Tenth 25 Amendment, the Court will enter summary judgment in favor of Defendants on these 26 claims. 27 VII. 28 Conclusion. Applying the deference required under the APA and other well established 23 1 principles of law, the Court concludes that the Trust Decision does not violate the APA or 2 run afoul of the Tenth Amendment, the Indian Commerce Clause, or IGRA. The Court 3 therefore has no legal basis for setting aside the Trust Decision. 4 IT IS ORDERED: 5 1. denied. 6 7 2. 10 11 Defendants’ cross-motions for summary judgment (Docs. 95, 98) are granted. 8 9 Plaintiffs’ motions for summary judgment (Docs. 84, 85, 86, 88) are 3. The United States’ motion to strike exhibit 3(a) to Plaintiffs’ unified statement of facts (Doc. 94) is denied as moot. Dated this 3rd day of March, 2011. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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