Kalispel Tribe of Indians v. U.S. Department of the Interior, No. 19-35808 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's judgment in favor of the DOI, the Bureau of Indian Affairs, federal officials, and the Spokane Tribe of Indians, in an action brought by the Kalispel Tribe of Indians, challenging the Secretary of DOI's decision determining that the Spokane Tribe of Indians' proposed gaming establishment on newly acquired off-reservation land would not be detrimental to the surrounding community. Kalispel raised challenges pursuant to the the Administrative Procedure Act, the National Environmental Policy Act, and the Indian Gaming Regulatory Act.
The panel held that IGRA requires the Secretary to weigh and consider the various interests of those within the surrounding community when deciding whether additional off-reservation gaming would be detrimental to the surrounding community. A showing that additional gaming may be detrimental to some members of the surrounding community, including an Indian tribe, does not dictate the outcome of the Secretary's two-step determination. The panel agreed with the DC Circuit and rejected Kalispel's argument that any detriment to Kalispel precluded the Secretary from issuing a favorable two-part determination. Rather, the panel concluded that the Secretary had the authority to issue a two-step determination, and the Secretary's decision to issue a favorable decision here was neither arbitrary nor capricious. The panel declined to reach the merits of Kalispel's contention, which was not advanced in the district court, that the Secretary previously announced a policy that additional off-reservation gaming would not be approved if a nearby Indian tribe could show that additional gaming would be detrimental to it. Finally, the panel concluded that Kalispel has not shown that the Secretary failed to consider its claimed harms or to comply with the relevant statutes and regulations, and thus it has not shown that the Secretary violated the federal government's trust duty owed to Kalispel.
Court Description: Tribal Gaming. The panel affirmed the district court’s summary judgment in favor of the U.S. Department of the Interior (“DOI”), the Bureau of Indian Affairs, federal officials, and the Spokane Tribe of Indians, in an action brought by the Kalispel Tribe of Indians, challenging the Secretary of DOI’s decision that the Spokane Tribe of Indians’ proposed gaming establishment on newly acquired off-reservation land would not be detrimental to the surrounding community. Kalispel has owned and operated the Northern Quest Resort and Casino in Airway Heights, Washington since KALISPEL TRIBE OF INDIANS V. USDOI 3 2000. The land on which the casino sits is located within the Spokane Tribe’s historic territory. The panel rejected Kalispel’s primary argument that the Indian Gaming Regulatory Act (“IGRA”) precluded the Secretary of DOI from authorizing a new off-reservation gaming operation where additional gaming would cause any detriment to a nearby Indian tribe, regardless of the net impact to the surrounding community. The panel held that IGRA required the Secretary to weigh and consider the various interests of those within the surrounding community when deciding whether additional off-reservation gaming would be detrimental to the surrounding community. A showing that additional gaming may be detrimental to some members of the surrounding community, including an Indian tribe, does not dictate the outcome of the Secretary’s two-step determination under IGRA for authorizing off-reservation gaming. The panel also rejected Kalispel’s argument that the Secretary’s two-step determination was both ultra vires and arbitrary and capricious because the Secretary did not properly evaluate the detriment Kalispel would suffer if the Spokane Tribe was allowed to move forward with its competing casino. The panel agreed with Kalispel that lost gaming revenue, discontinued or diminished per capita expense payments (PCEPs) to its members, and a smaller tribal governmental budget were real and cognizable detriments, but the administrative record did not support Kalispel’s contention that the Secretary failed to consider these negative impacts to Kalispel in making the two-step determination. The panel concluded that the Secretary had the authority to issue a two-step determination under IGRA, and the Secretary’s decision to issue a favorable decision here 4 KALISPEL TRIBE OF INDIANS V. USDOI was neither arbitrary nor capricious under the Administrative Procedure Act. Kalispel contended that the Secretary previously announced a policy that additional off-reservation gaming would not be approved if a nearby Indian tribe could show that additional gaming would be detrimental to it. The panel held that Kalispel raised the issue for the first time on appeal, and the panel would not reach the merits of the argument because Kalispel did not preserve it. The panel held that because Kalispel had not shown that the Secretary failed to consider the claimed harms of the project or to comply with the relevant statutes and regulations, it had not shown that the Secretary violated the federal government’s trust duty owed to Kalispel.
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