City of Yreka et al v. Salazar et al
Filing
26
MEMORANDUM AND ORDER signed by Judge William B. Shubb on 6/13/11 GRANTING 15 Motion for Summary Judgment; and DENYING 16 Motion for Summary Judgment. CASE CLOSED. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CITY OF YREKA, CITY COUNCIL OF
THE CITY OF YREKA,
NO. CIV. 2:10-1734 WBS EFB
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Plaintiffs,
MEMORANDUM AND ORDER RE:
MOTIONS FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
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v.
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16
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KEN SALAZAR in his official
capacity as Secretary of the
Interior; LARRY ECHOHAWK in
his official capacity as
Assistant Secretary for Indian
Affairs of the United States
Department of Interior and
BUREAU OF INDIAN AFFAIRS; DALE
MORRIS in his official
capacity as Pacific Regional
Director, Bureau of Indian
Affairs; MICHAEL MALLORY in
his official capacity as
Siskiyou County AssessorRecorder; Does 1 through 100,
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Defendants.
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/
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----oo0oo---26
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Plaintiffs City of Yreka (“City”) and City Council of
28
the City of Yreka (“City Council”) brought this action pursuant
1
1
to the Administrative Procedures Act (“APA”), 5 U.S.C. §§
2
701-706, against defendants Ken Salazar, in his official capacity
3
as Secretary of the United States Department of the Interior
4
(“Secretary”); Larry Echohawk, in his official capacity as
5
Assistant Secretary for Indian Affairs of the Department of the
6
Interior; the Bureau of Indian Affairs (“BIA”); Dale Morris, in
7
his official capacity as the Pacific Regional Director (“regional
8
director”) of the BIA; and Michael Mallory, in his official
9
capacity as Siskiyou County Assessor-Recorder, arising from the
10
Secretary’s decision to acquire approximately 0.90 acres of land
11
to be held in trust by the United States for the Karuk Tribe of
12
California (“Karuk,” “tribe,” or “KTOC”).
13
to acquire the land pursuant to the Indian Reorganization Act
14
(“IRA”), 25 U.S.C. §§ 461-79, and its implementing regulations.
15
Plaintiffs have filed a motion for summary judgment or, in the
16
alternative, summary adjudication, and defendants have filed a
17
motion for summary judgment.1
18
I.
The Secretary decided
Factual and Procedural Background
19
On April 8, 2003, pursuant to Tribal Resolution No. 03-
20
R-06, approved on March 31, 2003, the Karuk Tribe of California
21
submitted a fee-to-trust application to the regional director of
22
the BIA.
23
acres of land (“the land”) in the City of Yreka and County of
The tribe requested that the United States hold 0.90
24
25
26
27
28
1
Defendant Michael Mallory is no longer a party to this
action. (See Docket No. 11 (stipulated consent decree and
order).)
2
1
Siskiyou2 in trust for the tribe.
(See AR000001-AR000080.3)
2
tribe’s application stated that it had purchased the land in 1999
3
and had operated a health and dental clinic (commonly referred to
4
as “Yreka Clinic,” “Yreka Medical Clinic,” or “Foster/Yreka
5
Clinic”) on the land for longer than a decade.
6
remodeled a building on the land in three phases, with the final
7
phase to be completed in June of 2003.
8
tribe indicated that it had originally intended to build a new
9
building on land already held in trust by the United States, but
The
The tribe had
In its application, the
10
had purchased additional land and remodeled rather than
11
constructed a new building because of a cease and desist order on
12
new construction in the City of Yreka due to the inadequacy of
13
the sanitary sewer system.4
14
15
2
The regional director of the BIA described the land as
follows:
16
18
Parcel 3-A-1, as shown on Boundary Line Adjustment &
Parcel Map Survey Recorded July 14, 1979 in Book 7, Page
3 of Parcel Map in the office of the County Recorder of
Siskiyou County.
19
Assessor’s Parcel No.: 061-341-070, 0.90 acres[.]
17
20
(AR000183.)
21
3
22
23
24
25
26
27
28
Defendants lodged the administrative record. (See
Docket No. 13.) Plaintiffs did not move to augment the
administrative record, as they were permitted to do so on or
before January 10, 2011. (See Status (Pretrial Scheduling) Order
at 2:23-24 (Docket No. 14).) Defendants’ version of the
administrative record consists of documents Bates-numbered
AR000001-AR000257.
4
In opposition to defendants’ motion, plaintiffs request
that the court judicially notice Order No. R1-2003-0048 by the
California Regional Water Quality Control Board, North Coast
Region. (See Pls.’ Req. for Judicial Notice Ex. A (Docket No.
20).) That order, issued the month following the tribe’s
application, rescinded the cease and desist order, thus
permitting new construction. Defendants have not objected to the
3
1
The application first addressed the policy on land
2
acquisition found at 25 C.F.R. § 151.3(a).
The application
3
indicated that the land “is located approximately 1.4 miles from
4
Tribal Trust land within the ancestral territory.”
5
see also id. (“The [] clinic is the Yreka Clinic, which is
6
located approximately 1.4 miles from the Tribal housing, within
7
walking distance of Karuk trust land.”).
8
trust status because “it is a goal of the Tribe, as a Self
9
Governance Tribe, to operate all tribal programs and facilities
(AR000006;
The tribe requested
(Id.; see also AR000007 (“The Karuk Tribe is
10
on Tribal Land.”
11
one of the largest California Self-Governance Tribes currently in
12
negotiation compact agreements within the Departments of the
13
Interior [sic].
14
sovereign jurisdiction of our ancestral territory and the Tribal
15
and Federal trust responsibilities therin.”).)
16
Since 1996, our tribe has continued to assume
The tribe stated that its health program provides care
17
to the majority of the “tribal and community members.”
18
(AR000006.)
19
aboriginal territory,” with only one of them located on trust
20
land.
21
on trust land.
22
At the time, the tribe had “three clinics in the
(Id.)
The Yreka Clinic would be the second clinic located
The application then addressed seven factors that the
23
24
25
26
27
28
request for judicial notice, but argue that the rescission order
is not relevant. (See Defs.’ Reply at 4:6-5:28 (Docket No. 23).)
Notably, plaintiffs have not argued that the rescission
order should have been part of the administrative record.
Further, even if the court treated it as part of the
administrative record, the court’s analysis would not be affected
because, as discussed later, the regional director implicitly
considered and rejected the argument that a new clinic could be
built on existing trust land.
4
1
Secretary is required to consider pursuant to 25 C.F.R. §§ 151.10
2
and 151.11 for off-reservation land acquisitions.
3
as to the tribe’s need for the additional land, the tribe
4
reiterated that it “has continued to assume sovereign
5
jurisdiction of [its] ancestral territory and the Tribal and
6
Federal trust responsibilities therein.”
7
explained that “[a]s the tribal capacity to protect and preserve
8
[its] cultural and tribal trust resources continues to grow, the
9
tribe has the trust responsibility to acquire culturally
For example,
(AR000007.)
The tribe
10
significant sites to ensure culturally sensitive management of
11
these sites is upheld.”
12
“[t]he clinic operates on minimal budget[,] therefore the
13
acquisition of this parcel is crucial for the Tribe to freely
14
exercise and preserve cultural management over quality health
15
care and self-determination.”
16
(Id.)
The tribe also explained that
(Id.)
As to the proposed land use, the tribe stated that it
17
had operated a health and dental clinic on the land for longer
18
than a decade and that it was in the process of remodeling the
19
building, “which will enhance upon the tribes [sic] ability of
20
self sufficiency and provide quality medical, dental and
21
behavioral health services.”
22
impact of the acquisition on political subdivisions, the tribe
23
stated that it had paid $5,610.00 in property taxes the previous
24
year.
25
reduction in reliance on County-sponsored welfare because the
26
Yreka Clinic provides medical and dental care not only to
27
members, but to non-members for a fee.
28
the Yreka Clinic is “one of the few Medi-cal excepting [sic]
(AR000008.)
Regarding the tax
The tribe implied that any tax impact would be offset by a
5
According to the tribe,
1
2
clinics in Yreka.”
(AR000008.)
Pursuant to § 151.11(d), on June 18, 2004, the BIA
3
issued a “Notice of Off Reservation Land Acquisition Application
4
(Non-Gaming).”
5
comments, (see AR000110-AR000112), to which the tribe responded.
6
(See AR000137-AR000139.)
7
“very little benefit appears to flow to the KTOC in the transfer
8
of this property in fee ownership to trust ownership.”
9
(AR000110.)
(See AR000090-AR000100.)
The City filed
In its comments, the City claimed that
The City claimed that the land is approximately 100
10
miles from the tribe’s “traditional tribal lands.”
11
the land is “approximately one mile to the Native American
12
Housing project,” the land is located in “the heart of the City
13
of Yreka, and is surrounded by developments controlled by the
14
City of Yreka Zoning Ordinance, which properties will be directly
15
affected by the use of the subject parcel.”
16
acknowledged that the current use is consistent with zoning, but
17
raised concerns that future uses would be inconsistent or that
18
encroachments on setback limitations would occur.
(Id.)
(Id.)
While
The City
19
The City informed the regional director that it could
20
sustain the loss of tax revenue and still provide services such
21
as police, fire, and utilities, but the City argued that “this
22
situation would not be fair or appropriate on a different scale.”
23
(AR000111.)
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the Secretary impose two conditions to the approval of the
25
application: (1) an in-lieu yearly contribution equivalent to the
26
lost property tax revenue received for services provided and (2)
27
that the current use of the land remain unchanged.
28
In concluding its comments, the City requested that
On June 9, 2007, the BIA requested more information
6
1
from the tribe, including whether the proposed use was non-
2
gaming, gaming, or gaming-related.
3
responded with a new tribal resolution clarifying that the land
4
be taken into trust for non-gaming purposes.
5
AR000164.)
6
(See AR000155.)
The tribe
(See AR000158-
On May 14, 2008, the regional director issued the
7
Notice of Decision (“NOD” or “decision”), in which he stated that
8
it is the BIA’s intention to accept the land into trust for the
9
Karuk Tribe of California.
(See AR000183-AR000202.)
In the
10
decision, the regional director addressed the land acquisition
11
policy under § 151.3(a) and the factors the Secretary is required
12
to consider under §§ 151.10 and 151.11 for off-reservation land
13
acquisitions.
14
City’s concerns raised in its comments.
15
The regional director’s decision addressed the
The City and City Council, plaintiffs in this action,
16
filed an appeal of the regional director’s decision to the
17
Interior Board of Indian Appeals (“IBIA”).
18
On appeal, they argued that (1) there is no statutory authority
19
for the acquisition because the land is not within or adjacent to
20
the exterior boundaries of the tribe’s reservation or within a
21
tribal consolidation area and the tribe does not have a
22
sufficient interest in the land to support the acquisition, (2)
23
the regional director’s discussion of the proposed land use was
24
based on erroneous facts, and (3) the land would possibly be put
25
to uses that do not conform to the City’s zoning and general
26
plan, such as gaming uses, and would possibly increase conflicts
27
between the tribe and City and City Council.
28
requested that approval of the land acquisition be limited to
7
(AR000230-AR000231.)
Plaintiffs
1
non-gaming uses.
2
On June 7, 2010, the IBIA issued its decision,
3
responding to plaintiffs’ arguments and affirming the regional
4
director’s decision.
5
the City of Yreka, Cal. v. Pac. Reg’l Dir., Bureau of Indian
6
Affairs, 51 IBIA 287 (2010).
7
director’s decision, the IBIA concluded that “Appellants have not
8
shown that the Regional Director’s Decision was erroneous, was
9
based on material factual inaccuracies, or reflected an improper
See City of Yreka, Cal., & City Council of
In affirming the regional
10
exercise of his discretion, and that the administrative record
11
demonstrates that he considered each of the criteria in 25 C.F.R.
12
§§ 151.10 and 151.11 and reasonably exercised his discretion.”
13
Id. at 297.
14
II.
15
Discussion
A.
Summary Judgment Standard
Summary judgment is proper “if the movant shows that
16
17
there is no genuine dispute as to any material fact and the
18
movant is entitled to judgment as a matter of law.”
19
P. 56(a).
20
of the suit, and a genuine issue is one that could permit a
21
reasonable trier of fact to enter a verdict in the non-moving
22
party’s favor.
23
248 (1986).
24
initial burden of establishing the absence of a genuine issue of
25
material fact and can satisfy this burden by presenting evidence
26
that negates an essential element of the non-moving party’s case.
27
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
28
Alternatively, the moving party can demonstrate that the
Fed. R. Civ.
A material fact is one that could affect the outcome
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The party moving for summary judgment bears the
8
1
non-moving party cannot produce evidence to support an essential
2
element upon which it will bear the burden of proof at trial.
3
Id.
4
Once the moving party meets its initial burden, the
5
burden shifts to the non-moving party to “designate ‘specific
6
facts showing that there is a genuine issue for trial.’”
7
324 (quoting then-Fed. R. Civ. P. 56(e)).
8
judgment motion, the court must view the evidence in the light
9
most favorable to the non-moving party and draw all justifiable
Id. at
In deciding a summary
10
inferences in its favor.
11
parties submit cross-motions for summary judgment, the court must
12
consider each motion separately to determine whether either party
13
has met its burden, “giving the nonmoving party in each instance
14
the benefit of all reasonable inferences.”
15
of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
16
B.
17
Anderson, 477 U.S. at 255.
When the
ACLU of Nev. v. City
Exhaustion of Administrative Remedies
Plaintiffs bring suit pursuant to the APA.
See 5
18
U.S.C. § 702 (providing for right of judicial review); 25 C.F.R.
19
§ 151.12(b) (allowing for thirty days to seek judicial review of
20
Secretary’s decision to acquire land under IRA).
21
As a general rule, only final agency actions are
22
subject to judicial review and a plaintiff must exhaust his
23
administrative remedies.
5 U.S.C. § 704.5
Defendants represent
24
25
5
26
Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a
court are subject to judicial review. A preliminary,
procedural, or intermediate agency action or ruling not
directly reviewable is subject to review on the review of
27
28
Section 704 provides in full:
9
1
to the court, and plaintiffs do not dispute, that BIA’s regional
2
directors have authority to review and decide applications for
3
discretionary off-reservation trust acquisitions for non-gaming
4
purposes pursuant to internal delegations and procedures.
5
(Defs.’ Mot. at 5:24-27 (Docket No. 15-1).)
6
the Interior’s regulations provide that “[a]ny interested party
7
affected by a final administrative action or decision of an
8
official of the Bureau of Indian Affairs issued under regulations
9
in Title 25 of the Code of Federal Regulations may appeal to the
The Department of
10
Board of Indian Appeals.”6
11
§ 2.6(b) (“Decisions made by officials of the Bureau of Indian
12
Affairs shall be effective when the time for filing a notice of
13
appeal has expired and no notice of appeal has been filed.”).
14
The IBIA “decides finally for the Department appeals . . .
15
[concerning] [a]dministrative actions of officials of the Bureau
43 C.F.R. § 4.331; see also 25 C.F.R.
16
17
18
19
20
21
22
23
24
25
26
27
28
the final agency action. Except as otherwise expressly
required by statute, agency action otherwise final is
final for the purposes of this section whether or not
there has been presented or determined an application for
a declaratory order, for any form of reconsideration, or,
unless the agency otherwise requires by rule and provides
that the action meanwhile is inoperative, for an appeal
to superior agency authority.
5 U.S.C. § 704.
6
“No decision of . . . [a] BIA official that at the time
of its rendition is subject to appeal to the Board, will be
considered final so as to constitute agency action subject to
judicial review under 5 U.S.C. [§] 704, unless it has been made
effective pending a decision on appeal by order of the Board.”
43 C.F.R. § 4.314(a); see also 25 C.F.R. § 2.6(a) (“No decision,
which at the time of its rendition is subject to appeal to a
superior authority in the Department, shall be considered final
so as to constitute Departmental action subject to judicial
review under 5 U.S.C. [§] 704, unless when an appeal is filed,
the official to whom the appeal is made determines that public
safety, protection of trust resources, or other public exigency
requires that the decision be made effective immediately.”).
10
1
of Indian Affairs.”
2
43 C.F.R. § 4.1(b)(1)(i).
Here, plaintiffs appealed the regional director’s
3
decision to the IBIA.
4
the IBIA affirmed the regional director’s decision.7
5
Accordingly, plaintiffs have exhausted their administrative
6
remedies.
7
C.
Merits
Under the APA, an agency’s decision may be set aside by
8
9
Applying a deferential standard of review,
a court only if it is “arbitrary, capricious, an abuse of
10
discretion, or otherwise not in accordance with law.”
5 U.S.C. §
11
706(2)(A).
12
not substitute its judgment for the judgment of the agency.
13
Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir. 2010).
14
An agency’s decision may be reversed only “if the agency relied
15
on factors Congress did not intend it to consider, entirely
16
failed to consider an important aspect of the problem, or offered
17
an explanation that runs counter to the evidence before the
18
agency or is so implausible that it could not be ascribed to a
19
difference in view or the product of agency expertise.”
20
469 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.
21
2008) (en banc)) (internal quotation marks omitted).
22
action will not be reversed where the agency is able to
23
demonstrate a “rational connection between the facts found and
24
the conclusions made.”
25
Serv., 418 F.3d 953, 960 (9th Cir. 2005) (quoting Nat’l Wildlife
26
Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.
This standard of review is narrow, and the court may
Id. at
An agency
Native Ecosystems Council v. U.S. Forest
27
28
7
Plaintiffs have only challenged the regional director’s
decision, not the IBIA’s decision.
11
1
2004)) (internal quotation marks omitted).
2
The IRA authorizes the Secretary of the Interior, “in
3
his discretion,” to acquire land and hold it in trust “for the
4
purpose of providing land for Indians.”
5
Congress’s purpose in enacting the IRA was “to rehabilitate the
6
Indian’s economic life and to give him a chance to develop the
7
initiative destroyed by a century of oppression and paternalism.”
8
South Dakota v. U.S. Dep’t of Interior, 487 F.3d 548, 552 (8th
9
Cir. 2007) [“South Dakota II”] (quoting South Dakota v. U.S.
10
Dep’t of Interior, 423 F.3d 790, 798 (8th Cir. 2005) [“South
11
Dakota I”]) (internal quotation marks omitted).
12
25 U.S.C. § 465.
The broad goal was “to conserve and develop Indian
13
lands and resources,” and “Congress believed that additional land
14
was essential for the economic advancement and self-support of
15
the Indian communities.”
16
(quoting South Dakota I, 423 F.3d at 798) (internal quotation
17
marks omitted).
18
a tribe.
19
1978) (“The Secretary may purchase land for an individual Indian
20
and hold title to it in trust for him.
21
against accomplishing the same result indirectly by conveyance of
22
land already owned by an Indian to the United States in trust.”).
South Dakota II, 487 F.3d at 552
The Secretary may acquire land already owned by
See Chase v. McMasters, 573 F.2d 1011, 1016 (8th Cir.
There is no prohibition
“When the Secretary takes land into trust on behalf of
23
24
a tribe pursuant to the IRA, several important consequences
25
follow.”
26
F.3d 82, 85 (2d Cir. 2000).
27
subject to (1) state or local taxation; (2) local zoning and
28
regulatory requirements; or, (3) state criminal and civil
Conn. ex rel. Blumenthal v. U.S. Dep’t of Interior, 228
“Land held in trust is generally not
12
1
jurisdiction, unless the tribe consents to such jurisdiction.”
2
Id. at 85-86 (citing 25 U.S.C. § 465; 25 C.F.R. § 1.4(a); 25
3
U.S.C. §§ 1321(a), 1322(a)) (citations omitted).
4
Here, plaintiffs claim that the regional director
5
misapplied the land acquisition policy set forth at § 151.3(a)
6
and failed to sufficiently consider the factors listed in §§
7
151.10 and 151.11 for off-reservation land acquisitions.
8
1.
Section 151.3(a)
9
The land acquisition policy provides that land may be
10
acquired for a tribe in trust status when any of the following
11
conditions exist: (1) “the property is located within the
12
exterior boundaries of the tribe’s reservation or adjacent
13
thereto, or within a tribal consolidation area”; (2) “the tribe
14
already owns an interest in the land”; or (3) “the Secretary
15
determines that the acquisition of the land is necessary to
16
facilitate tribal self-determination, economic development, or
17
Indian housing.”
18
25 C.F.R. § 151.3(a)(1)-(3).
Here, the regional director explained that the
19
“acquisition falls within the land acquisition policy as set
20
forth by the Secretary of the Interior.”
21
argue that the regional director acted arbitrarily or
22
capriciously because he did not expressly specify the subsection
23
of § 151.3(a) on which he relied.
24
No. 16-1).)
25
relied on the tribe already owning an interest in the land under
26
§ 151.3(a)(2) and his determination that acquisition of the land
27
is necessary to facilitate tribal self-determination and economic
28
development under § 151.3(a)(3).
(AR000184.)
Plaintiffs
(Pls.’ Mot. at 5:9-22 (Docket
However, it is clear from the decision that he
13
1
a.
2
Tribal ownership of an interest in the land
Plaintiffs correctly point out that the mere fact that
3
a tribe owns an interest in the land is insufficient to support a
4
land acquisition under § 151.3(a)(2).
5
land, a plaintiff can still challenge a proposed acquisition as
6
inconsistent with 25 U.S.C. § 465, which authorizes discretionary
7
acquisitions “for the purpose of providing land for Indians.”
8
The courts have interpreted § 465 as being limited by the
9
requirement that the acquisition fosters self-support and
Even if a tribe owns the
10
ameliorates prior allotment policies.
11
II, 487 F.3d at 552 (“The State and the County argue that the
12
Secretary lacked statutory authority to acquire the land at
13
issue.
14
the Secretary’s discretion to acquire trust land ‘for the purpose
15
of providing land for Indians’ is limited by the requirement that
16
the land be acquired for self-support and to ameliorate the
17
damage of prior allotment policies.”); South Dakota v. U.S. Dep’t
18
of Interior, --- F. Supp. 2d ----, ----, 2011 WL 382744, at *13
19
(D.S.D. Feb. 3, 2011) (plaintiff challenged the proposed
20
acquisition as inconsistent with the statutory aims of 25 U.S.C.
21
§ 465).
22
See, e.g., South Dakota
Relying on our holding in South Dakota, they note that
To the extent plaintiffs argue that the proposed
23
acquisition is inconsistent with § 465, this argument fails
24
because, as discussed in more detail below, the regional director
25
expressly found that the acquisition will foster self-
26
determination.
27
///
28
///
14
1
b.
Necessary to facilitate tribal
2
self-determination, economic development, or
3
Indian housing
4
Regardless of whether the requirements of § 151.3(a)(2)
5
were satisfied, the acquisition was supported under § 151.3(a)(3)
6
by the regional director’s finding that it was necessary to
7
facilitate tribal self-determination and economic development.
8
The term “necessary,” within the meaning of § 151.3(a)(3), is not
9
defined by the regulations, as in the context of other
See, e.g., 42 C.F.R. § 413.9(b)(2) (Medicare
10
regulations.
11
regulations defining “Necessary and proper costs” as “costs that
12
are appropriate and helpful in developing and maintaining the
13
operation of patient care facilities and activities”).
14
At one extreme, a necessary condition can mean an
15
essential condition or a sine qua non.
See, e.g., In re
16
Microsoft Corp. Antitrust Litig., 355 F.3d 322, 325 (4th Cir.
17
2004) (in offensive collateral estoppel context, defining
18
necessary as critical or essential, as opposed to “supportive
19
of”); Dictionary.com,
20
http://dictionary.reference.com/browse/necessary (last visited
21
May 24, 2011) (defining necessary as essential, indispensable, or
22
requisite).
23
a helpful or appropriate condition.
24
Maryland, 17 U.S. 316, 421 (1819) (interpreting Necessary and
25
Proper Clause of the Constitution and holding, “[l]et the end be
26
legitimate, let it be within the scope of the constitution, and
27
all means which are appropriate, which are plainly adapted to
28
that end, which are not prohibited, but consist with the letter
At the other extreme, a necessary condition can mean
15
See, e.g., M’Culloch v.
1
and spirit of the constitution, are constitutional”); 42 C.F.R. §
2
413.9(b)(2).
3
This court has found only one case that has addressed
4
the definition of “necessary” in § 151.3(a)(3).
5
Lincoln City v. U.S. Department of Interior, 229 F. Supp. 2d
6
1109, 1124 (D. Or. 2002), the court assumed, arguendo, that
7
necessary requires less than essential, but held that the
8
difference is not significant under an arbitrary or capricious
9
standard of review.
Id.
In City of
Thus, the Secretary’s finding that the
10
acquisition was necessary was sufficient even if the Secretary
11
was required to find that the acquisition was essential.
12
Id.
Considering that the broad goal behind the IRA was “to
13
conserve and develop Indian lands and resources,” and “Congress
14
believed that additional land was essential for the economic
15
advancement and self-support of the Indian communities,”
16
Dakota II, 487 F.3d at 552 (quoting South Dakota I, 423 F.3d at
17
798) (internal quotation marks omitted), this court is persuaded
18
that the acquisition need not be essential or a sine qua non to
19
self-determination or economic advancement, but the Secretary
20
must conclude that the acquisition is more than merely helpful or
21
appropriate.
South
22
Here, in analyzing the tribe’s need for the additional
23
land, which the Secretary must consider pursuant to § 151.10(b),
24
the regional director explained that, while the tribe once had
25
over one million acres of aboriginal homeland along the Klamath
26
River, the tribe has been able to acquire only 620 acres, which
27
are “scattered” throughout Orleans in Humboldt County and Yreka
28
in Siskiyou County, and has put them in trust status.
16
1
2
3
4
5
6
7
8
9
(AR000185.)
The regional director further explained:
The Karuk Tribe has a large membership in and around the
Yreka area. They currently run the clinic on the subject
parcel in order to provide health and dental services for
members and non-members alike.
Of the current trust
parcels, none achieve the same objective. The tribe has
indicated that the clinic operates on a limited budget,
and acceptance of the land into trust is critical to the
tribe’s continued operation of the clinic for residents
of the Yreka area.
(Id. (emphasis added).)
The regional director recognized that the tribe’s goal
is to have a sufficient land base in order to meet their goals of
10
“cultural and social preservation, self determination, self-
11
sufficiency and economic growth.”
12
regional director, the “proposed acquisition will allow the Tribe
13
to consolidate its land holdings and exercise tribal sovereign
14
powers over the subject property.”
(Id.)
According to the
(Id.)
15
In finding that the acquisition is “critical” to the
16
continued operation of the Yreka Clinic, the regional director
17
applied a definition of necessary that is actually closer to
18
essential than appropriate or helpful.
19
capricious standard of review, which requires deferring to an
20
agency’s reasonable interpretation of its own regulations,
21
Simpson v. Hegstrom, 873 F.2d 1294, 1297 (9th Cir. 1989), the
22
court cannot find that the regional director unreasonably
23
interpreted the term “necessary.”
Under an arbitrary or
24
Plaintiffs first argue that the regional director’s
25
decision “fails to articulate the factual and legal basis” on
26
which he found that the land is “critical” to the tribe’s
27
continued operation of the Yreka Clinic.
28
(internal quotation marks omitted in second quotation).)
17
(Pls.’ Mot. at 6:8-10
1
Plaintiffs argue that “the Tribe’s operating costs would be
2
higher if the medical clinic were operated on the Property
3
instead of on existing trust lands because the existing trust
4
lands are closer to tribal housing.”
5
(Id. at 6:10-12.)
The regional director did not expressly address the
6
argument that a new clinic could be built on existing trust land,
7
despite the tribe having purchased the land to be acquired in
8
1999, operated a clinic on the land for longer than a decade, and
9
remodeled the building.8
However, the regional director
10
implicitly considered and rejected the argument for building a
11
new clinic on existing trust land in addressing the tribe’s need
12
for the land: “They currently run the clinic on the subject
13
parcel in order to provide health care and dental services for
14
members and non-members alike.
15
none achieve the same objective.
16
the clinic operates on a limited budget . . . .”
17
Of the current trust parcels,
The tribe has indicated that
(AR000185.)
Second, plaintiffs argue that the regional director’s
18
decision does not “explain why, or even how, the act of taking
19
0.9 acres into trust--for use by Tribal and non-Tribal members–-
20
will assist the Karuk Tribe in cultural and social preservation
21
or self-determination/self-sufficiency.”
(Pls.’ Mot. at 6:17-
22
23
24
25
26
27
28
8
Plaintiffs did not raise this argument until they
appealed the regional director’s decision. The IBIA persuasively
responded: “[T]he record establishes that the Tribe originally
intended to build a new clinic on its existing tribal trust land
and decided to buy the Yreka Clinic only after its original plan
was thwarted by the 1998 cease and desist order prohibiting any
new construction in the City. Given the extensive renovations to
the clinic costing over $1.2 million, relocating the clinic to
existing trust land at this point would be neither economical nor
practical.” City of Yreka, Cal., & City Council of the City of
Yreka, Cal. v. Pac. Reg'l Dir., Bureau of Indian Affairs, 51 IBIA
287, 296 (2010).
18
1
19.)
The court is satisfied that the regional director did not
2
act arbitrarily or capriciously when he accepted the tribe’s
3
representation that the land, on which the tribe intends to
4
continue to operate a health and dental clinic, will assist the
5
tribe in meeting its goal of “cultural and social preservation,
6
self determination, self-sufficiency and economic growth.”
7
(AR000185.)
8
Third, plaintiffs argue that § 151.3(a)(3) is not met
9
because the “NOD contains factually incorrect information while
10
other relevant information was disregarded.
11
operated by the Tribe is just one of many service providers in
12
the City accepting Medicare and MediCal patients.”
13
at 6:20-22.)
14
the regional director’s decision to the IBIA, at which point the
15
tribe acknowledged that following the regional director’s
16
decision another clinic, not operated by the tribe, began
17
accepting new Medicare and MediCal patients.
18
IBIA at 296.
19
regional director made his decision were relevant, plaintiffs
20
have not demonstrated to this court that another clinic accepting
21
new patients, not operated by the tribe, undermines the regional
22
director’s decision.
23
The clinic presently
(Pls.’ Mot.
Plaintiffs raised this same argument in appealing
City of Yreka, 51
However, even if a fact that did not exist when the
Fourth, plaintiffs argue that, because the tribe
24
already owns the land in fee, the tribe does not need the land to
25
be taken into trust to continue to deliver culturally appropriate
26
medical services to tribal members.
27
The Eighth Circuit rejected this same argument in the context of
28
§ 151.10(b).
(See Pls.’ Opp’n at 4:8-17.)
The Eighth Circuit explained that “most of the land
19
1
currently taken into trust has been previously purchased by a
2
tribe” and concluded that “it would be an unreasonable
3
interpretation of 25 C.F.R. § 151.10(b) to require the Secretary
4
to detail specifically why trust status is more beneficial than
5
fee status in the particular circumstance.”
6
F.3d at 798, 801; see id. at 801 (“It was sufficient for the
7
Department’s analysis to express the Tribe’s needs and conclude
8
generally that IRA purposes were served.
9
Tribe needed the land to be taken into trust was therefore
10
South Dakota I, 423
Its conclusion that the
reasonable.”).
11
2.
Section 151.10(c)
12
The purpose for which the land will be used must be
13
considered by the Secretary.
14
I, 423 F.3d at 801 (“It was reasonable for the Secretary to
15
accept the Tribe’s representations in his analysis of 25 C.F.R. §
16
151.10(c).”).
17
18
19
20
21
22
23
24
25
25 C.F.R. § 151.10(c); South Dakota
Here, the regional director explained the tribe’s
purpose as follows:
Since acquiring the property in 1997, the Karuk Tribe has
completely remodeled the Health/Dental clinic. The tribe
plans to continue using the property for purposes of a
Health/Dental clinic, which it has already been doing for
the past nine years.
The tribe’s sizable member
population in that area, approximately 350 members, uses
the clinic regularly. Additionally, the tribe accepts
non-member patients, and is the only clinic within a 100
mile radius accepting new Medicare and MediCal patients.
(AR000185.)
Plaintiffs argue that the regional director failed to
26
consider the impact of gaming uses.
(Pls.’ Mot. at 6:26-7:28;
27
Pls.’ Opp’n at 4:22-28.)
28
consider “speculati[ve]” future uses of the land.
However, the Secretary need not
20
See City of
1
Lincoln City, 229 F. Supp. 2d at 1124; see e.g., South Dakota I,
2
423 F.3d at 801, 801 n.9 (holding that “the Secretary was not
3
required to seek out further evidence of possible gaming purposes
4
in light of the Tribe’s repeated assurances that it did not
5
intend to use the land for gaming,” a letter from the then-state
6
governor stating that he had been assured that the tribe would
7
not conduct gaming on the land, and the tribe’s acknowledgment
8
that “if it were later to seek to allow gaming on the land, it
9
would fully comply with the additional application and approval
10
requirements in the Indian Gaming Regulatory Act (IGRA), 25
11
U.S.C. §§ 2701-2721”).
12
issue:
13
14
15
16
17
18
As the IBIA’s decision explained the
This fear . . . is entirely speculative. Nothing in the
record suggests that the Tribe contemplates the use of
the parcel for gaming. To the contrary, not only does
the Tribe admit that the land does not qualify for gaming
use under the Indian Gaming Regulatory Act, 25 U.S.C. §
2719(a), but the Tribe contends that the renovated site
is completely developed and could not feasibly or
fiscally-responsibly be used for gaming even if the Tribe
wanted it to be so used. Additionally Tribal Resolution
No. 07-R-160, approved on December 19, 2007, explicitly
eschewed the use of the parcel for gaming.
19
City of Yreka, 51 IBIA at 296-97.
20
director adequately considered the tribe’s purpose for the land.9
Accordingly, the regional
21
22
23
24
25
26
27
28
9
With respect to the other factors that the Secretary is
required to consider pursuant to 25 C.F.R. §§ 151.10 and 151.10,
plaintiffs only make passing arguments that the Secretary did not
reasonably consider them. The administrative record reveals that
the regional director reasonably considered the other factors.
(See AR000184-AR000187 (considering existence of statutory
authority for the acquisition, tax impacts, jurisdictional
problems and potential conflicts, ability of BIA to handle
additional trust responsibilities, compliance with environmental
regulations, anticipated economic benefits, and distance between
land to be acquired and tribe’s reservation in light of the
City’s comments about economic benefits to tribe, zoning
ordinances, and lost tax revenue).)
21
1
In sum, the administrative record reveals that the
2
regional director reasonably applied the policy on land
3
acquisition and considered the relevant factors for off-
4
reservation land acquisitions.
5
also responded to each of the City’s concerns raised in its
6
comments.
7
capricious, an abuse of discretion, or otherwise not in
8
accordance with law.
9
10
The regional director’s decision
The Secretary’s decision was not arbitrary,
IT IS THEREFORE ORDERED that defendants’ motion for
summary judgment be, and the same hereby is, GRANTED.
11
IT IS FURTHER ORDERED that plaintiffs’ motion for
12
summary judgment or, in the alternative, summary adjudication be,
13
and the same hereby is, DENIED.
14
DATED:
June 13, 2011
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22
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