Opposition Brief — Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

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BRic=5 Nos. 11-246 & 11-247

IN THE

Supreme Court of the United States

MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI

INDIANS, PETITIONER

Ve

DAVID PATCHAK, ET AL.

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL..

PETITIONERS

Ve

DAVID PATCHAK, ET AL.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District of Columbia Circuit

BRIEF FOR RESPONDENT DAVID PATCHAK

IN OPPOSITION

DANIEL P. ETTINGER

Counsel of Record

MATTHEW T. NELSON

AARON D. LINDSTROM

NICOLE L. MAZZOccOo

WARNER NORCROSS & JUDD LLP

111 Lvon Street N.W.

900 Fifth Third Center

Grand Rapids. MI 49503

(616) 752-2000

dettinger@wnj.com

Counsel for Respondent David Patchak

U*h--- “aes

i

QUESTIONS PRESENTED

1. A plaintiff may bring suit under the Quiet Ti-

tle Act (“QTA”) “to adjudicate a disputed title to real

property in which the United States claims an inter-

est” if the plaintiff asserts a claim to a “right, title, or

interest . . . in the real property.” 28 U.S.C.

§ 2409a(d). Does the QTA’s reservation of federal

sovereign immunity for suits concerning “trust or re-

stricted Indian lands” impliedly bar suits challenging

agency action under the APA that could not be

brought under the QTA because the plaintiff is not

seeking to quiet title to the land in question?

2. Section 465 of the Indian Reorganization Act

and its implementing regulations limit the Secretary

of the Interior’s discretion in deciding whether to

take land into trust for an Indian tribe. Does a

plaintiff living in a community affected by the Secre-

tary’s land-in-trust decision fall within the zone of

interests protected by that provision and thus have

prudential standing to enforce that limitation?

OPINIONS BELOW

JURISDICTION

STATEMENT

I.

Il.

ll

TABLE OF CONTENTS

The Court should decline to address

this interlocutory appeal

A. Because federal sovereign

immunity is not a right to avoid

trial, it can be vindicated after

a caastebeiionsienniineds

The existence of a second,

independent sovereign-immunity

issue means that a reversal would

not resolve sovereign immunity in

SDSS SERS BN Se

The D.C. Circuit correctly held that

the Quiet Title Act’s sovereign-

immunity bar did not apply because

Patchak did not bring a quiet-title

claim

A.

The decision below is consistent

with both the Quiet Title Act and

this Court’s decisions .......................-.-

The conflict is new and should be

given more time to develop now

that a court of appeals has, for the

first time, focused on the Quiet

, | tI ARSE A oyna eae

The prudential-standing decision does

not conflict with this Court’s decisions,

implicate a circuit split, or warrant

this Court’s review

CONCLUSION

td Ee ee ee ee ee tel

SRR RRR EERE REE EEE EEO THe

TOP Pee eC ee Cee eee ee eee

SOE EEE THRE REET EEE HERE

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Am. Fed'n of Gov't Employees v. Cohen,

vee se Foy, Le Ae! | nena 30

Bank of Hemet vy. United States,

643 F’.24 661 (9th Cir. 1961).......................... 16, 17

Barlow v. Collins,

a TI i cocks becdloiapedbtplaalial 23, 24

Beers v. State,

ee LER TTT Ie 18

Block y. North Dakota,

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California v. United States,

4 | EES pe neeare pene eer ar 25

Carcieri v. Salazar,

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City of Sault Ste. Marie v. Andrus,

458 F. Supp. 465 (D.D.C. 1978)........................... 27

Clarke v. Sec. Indus. Ass'n,

gg ft 8, Sones 7, 8, 28, 29

Courtney v. Smith,

297 F.3d 455 (6th Cir. 2002)................................ 30

Delano Farms Co. v. Cal. Table Grape

Comm n,

655 F.3d 1337 (Fed. Cir. 2011)............................ 26

Delta Sav. & Loan Ass'n, Inc. v. IRS,

BOT FB BOG (BGR CA. BD nccccccccccccccccccccccoccccsece 16

iV

TABLE OF AUTHORITIES—Continued

Page(s)

Dept of Interiorv. South Dakota,

ER SIT SR Se ee re 17,19

Florida Dep't of Bus. Regulation v. Dep't

of Intertor,

1 PA Bi Leet: Yo Ae) | ees 25

Goldstein v. Cox,

I ssn 10

Hamilton-Brown Shoe Co. v. Wolf Bros.,

I, i a A endiismnaaianils 10

Houston Cmty. Hosp. v. Blue Cross &

Blue Shield of Texas, Inc.,

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In re Sealed Case No. 99-3091,

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In re World Trade Ctr. Disaster Site

Litg.,

se x Bo Ly Le | eee 14

lowa Tribe of Kansas & Nebraska v.

Salazar,

607 F.3d 1225 (10th Cir. 2010)................ ictiiade 18

Jonida Trucking, Inc. v. Hunt,

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Kontrick v. Ryan,

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Lane v. Pena,

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Maysonet-Robles v. Cabrero,

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v

TABLE OF AUTHORITIES—Continued

Page(s)

Metro. Water Dist. of S. Cal. y. United

States,

— f & Bs fo Te Re; 5 Ren leanne 25

Nati] Credit Union Admin. v. First Nat7

Bank & Trust Co.,

EA aT NR sc 28

Neighbors for Rational Dev. v. Norton,

STO F.3e BEG (1Gt Civ. BOOE)....nccccccccccccccccsee 25, 26

Pullman Const. Indus., Inc. v. United

States,

23 F.3d 1166 (7th Cir. 1004)...............0..0. 3. 2. i

Rosebud Sioux Tribe v. McDivitt,

, pe 8 Ff Teo — | esses 30

State of Alaska v. United States,

G6 Fe 1SGS (Otis Cir. 1GBB)....cccccccccccccccccessce 13, 14

United States v. Mottaz,

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United States v. Virginia,

ETERS AIS AR Sores Mane eae Ma 11

Van Cauwenberghe v. Biard,

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Virginia Military Inst. v. United States,

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Federal Statutes

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TABLE OF AUTHORITIES—Continued

Page(s)

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Federal Rules

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Final Determination to Acknowledge the

Gun Lake Band, 63 Fed. Reg. 56,936,

ls, Big SIE setlist cntcnsendiininesrcnsnsnensensesseene 3

Land Acquisitions, 61 Fed. Reg. 18,082

CRG, Fic Ce eter ennictsnasistiiinntadsqsneinnioscsaveoieenes 18, 29

Notice of Final Agency Determination, 70

Fed. Reg. 25,596 (May 13, 2005) ..........00......... 4,19

Proposed Finding for Federal

Acknowledgement of the Gun Lake

Band, 62 Fed. Reg. 38,113, 38,113

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TABLE OF AUTHORITIES—Continued

Page(s)

Other Authorities

16 JAMES WM. MOORE ET AL., MOORE’S

FEDERAL PRACTICE 105.21[4]............00.0..000.0.. 18, 20

S. Rep. 996, 94th Cong., 2d Sess. 4 (1976)

FER ARS aS reo 12, 15, 18, 24

BRIEF IN OPPOSITION

OPINIONS BELOW

The court of appeals’ opinion is reported at 632

F.3d 702. DOI Pet. App. la. The opinion of the

United States District Court for the District of Co-

lumbia is reported at 646 F. Supp. 2d 72. Jd. at 27a.

JURISDICTION

The district court had jurisdiction over respon-

dent’s claims pursuant to 28 U.S.C. § 1331. The

court of appeals had jurisdiction under 28 U.S.C.

§ 1291. The court of appeals entered judgment on

January 21, 2011, and on March 28, 2011, denied pe-

titions for rehearing en banc. The petitions were

timely filed by August 25, 2011, the deadline after

the Chief Justice granted extensions to the time in

which to file petitions for a writ of certiorari. This

Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

STATEMENT

1. The Match-E-Be-Nash-She-Wish Band of the

Pottawatomi Indians, commonly known as the Gun

Lake Band, was not federally recognized when Con-

gress enacted the Indian Reorganization Act (“IRA”)

in 1934. Proposed Finding for Federal Acknowl-

edgement of the Gun Lake Band, 62 Fed. Reg.

38,113, 38,113 (June 23, 1997). For nearly 100 years

before the IRA’s enactment, the Band affirmatively

avoided the jurisdiction of the United States. This

history is significant because in Carcieri v. Salazar,

129 S. Ct. 1058 (2009), this Court held that the IRA

allows the Department of the Interior (“DOI”) to take

land into trust only for “those tribes that were under

2

the federal jurisdiction of the United States when the

IRA was enacted in 1934.” /d. at 1068.

In 1839, the Band placed itself under the protec-

tion of an Episcopalian mission to avoid the federal

government's plan to move Indians west, and occu-

pied lands in Allegan County, Michigan. Fee-to-

Trust Appl., p. 4, COA JA 894. In 1855, the Episco-

palian bishop declared that he held lands in trust for

the Band. /d. at 895. Also in 1855, the Pottawatomi

signed the Treaty of Detroit, which required Band

members to reside in Oceana County, Michigan, and

a majority of the Band complied with the treaty by

moving to Oceana County. /d. But in 1870, the

Band violated the treaty by returning to Allegan

County, Michigan, thereby breaking off the Band’s

relationship with the federal government. Formal

DOI Technical Assistance Letter from Joann Sebas-

tian Moore, Director of Office of Tribal Services, to

D.K. Sprague, Gun Lake Band, p. 2 (May 5, 1995),

Exhibit A to Patchak’s COA Appellant’s Br. {herein-

after “DOI Technical Assistance Letter”]. As the

DOI has previously determined, “[s]ince 1870, the

Federal government has dealt with band members as

individual Indians entitled to attendance at BIA

schools, etc., but Aas not dea/t with the band as an

entity.” Id. (emphasis added).

2. In 1993, the Band filed an application for fed-

eral recognition under 25 C.F.R. § 83.7, a section that

applies only to tribes that are not acknowledged or

recognized by the federal government at the time of

application. The filing therefore acknowledged that

the Band lacked federal recognition before 1993. See

also Gun Lake Band COA Br., p. 3, COA JA 94

(“(T]he federal government withheld formal ac-

knowledgement beginning in 1870. .. . Thus, for well

ra)

2

over a century, the Tribe was denied both federal

recognition and reservation lands on which it could

pursue commercial self-determination and _ self-

sufficiency.”). Before this Court’s decision in Carci-

ert, the federal government also acknowledged the

Band’s lack of federal recognition. Decl. of George T.

Skibine, Acting Deputy Assistant Secretary, De-

partment of Interior, | 8, COA JA 166 (noting that

the Gun Lake Band’s recognition had been previ-

ously terminated).

At the time the Band applied for federal recogni-

tion, the Band internally agreed “there would never

be casinos in our Tribe,” and represented in its con-

stitution that it had “decided not to sacrifice the fu-

ture of its membership to gaming interests and the

changes to traditions in the community that gaming

could bring.” Fee-to-Trust Appl., p. 79, COA JA 925

(emphasis omitted). The Band received federal rec-

ognition in 1998. See Final Determination to Ac-

knowledge the Gun Lake Band, 63 Fed. Reg. 56,936,

56,936 (Oct. 14, 1998).

3. In 2001, the Band applied for land to use for a

casino complex. Its application requested that the

United States take into trust a 165-acre site in rural

Wayland Township (the “Bradley Tract”) in Allegan

County to enable the Band to construct and operate a

casino complex. Trust Appl., COA JA 890. This land

was owned by MPM Enterprises LLC, which was in

turn owned by Station Casinos and other investors.

Id., p. 4, COA JA 878; Station Casinos, Inc., Mar. 31,

2011 Form 10-K at 11-12. In its application, the

Band acknowledged that it “was ineligible to organ-

ize under the Indian Reorganization Act of 1934.”

Id., p. 5, COA JA 895. And Band members echoed

this concession during the application process: “For

4

approximately 150 years, my Tribe has suffered due

to the United States’ government’s failure to recog-

nize us as an Indian Tribe.” Final EA, Appendix Q,

p. 124, COA JA 855.

The environmental assessment conducted during

the application process proposed a gambling complex

of nearly 200,000 square feet, including almost

99,000 square feet of gaming space, two sit-down res-

taurants, a café, two fast-food outlets, four retail

shops, a sports bar, an entertainment lounge, office

space, and parking for more than 3,330 cars, buses,

and RVs. Final EA, pp. 2-1, 2-2, COA JA 535, 729.

This casino complex, which would be open 24 hours a

day, 365 days a year, is expected to draw 3.1 million

visitors annually—to a farming community of only

3,000 residents. /d., Appendix H, COA JA 754, 577.

4. Fearing the substantial effect that a ratio of a

thousand visitors to every resident would have on

their community, members of the local community

submitted numerous comments and urged DOI to re-

ject the application. /d, Appendix P, COA JA 779,

788. The final environmental assessment confirmed

these concerns, noting that traffic during peak hours

would be 1,110 cars per hour in this farming com-

munity. /d. p. 4-6, COA JA 623. But the DOI made

a final agency determination on April 18, 2005, that

it would acquire the Bradley Tract in trust for the

Band. Notice of Final Agency Determination, 70

Fed. Reg. 25,596, 25,596 (May 13, 2005). The notice

of determination stated that, in accordance with 25

C.F.R. Part 151.12(b), an IRA regulation, DOI was

giving notice to the public “at least 30 days prior to

the signatory acceptance of the land into trust.” Jd.

A nonprofit organization of concerned citizens,

called Michigan Gambling Opposition (“MichGO”),

3

filed a complaint within 30 days of the notice and

challenged the DOI’s right to take the Bradley Tract

into trust on a number of grounds, including failure

to comply with the National Environmental Policy

Act (“NEPA”), the Indian Gaming Regulatory Act

(“IGRA”), 25 U.S.C. §2701 et seqg., and the IRA.

MichGO’s IRA claim alleged a violation of the non-

delegation doctrine. Because MichGO filed suit well

before the Court’s decision in Carcieri, MichGO did

not assert that the DOI could not take land into trust

because the Band was not federally recognized in

1934. And the courts refused to consider that issue

in the MichGO litigation.

5. The MichGO litigation resulted in a stay that

prevented the DOI from taking the land into trust.

On August 1, 2008, during the stay and before the

DOI took the land into trust, David Patchak filed

this suit against the DOI. Patchak sought review

under the Administrative Procedures Act (“APA”), 5

U.S.C. §§ 702, 706, of the DOI’s final agency decision.

Relying on Carcier7, he argued that the DOI lacked

the authority to take the land into trust because the

Gun Lake Band was not under federal jurisdiction in

1934.

Patchak, who lives near the Bradley Tract,

moved to the area “because of its unique rural set-

ting,” and he “values the quiet life he leads in Way-

land Township.” Compl. 49, COA JA 12. The

planned construction and operation of a casino com-

plex, which would bring 3.1 million visitors annually

to a community of 3,000 residents, would destroy

that quiet lifestyle. Jd.; see Final EA, ch. 3, p. 3-29,

COA JA 577, 754. He anticipates the following ad-

verse effects:

6

(a) an irreversible change in the rural charac-

ter of the area; (b) loss of enjoyment of the aes-

thetic and environmental qualities of the agri-

cultural land surrounding the casino site; (c)

increased traffic; (d) increased light, noise, air,

and storm water pollution; (e) increased crime;

if) diversion of police, fire, and emergency

medical services; (g) decreased property val-

ues; (h) increased property taxes; (i) diversion

of community resources to the treatment of

gambling addiction; (j) weakening of the fam-

ily atmosphere of the community; and (k)

other aesthetic, socioeconomic, and environ-

mental problems associated with a gambling

casino. |Compl. 4 9, COA JA 12.]

6. The stay in the MichGO litigation expired

when the Court denied MichGO’s petition for a writ

of certiorari. Accordingly, Patchak moved for a stay

to prevent the DOI from taking the land into trust.

The district court denied Patchak’s motion. The DOI

took the land into trust five months after Patchak

initiated this litigation. The government asserted

that by taking the land into trust while Patchak’s

suit was pending, sovereign immunity under the

Quiet Title Act sprang up. Thus, the DOI asserted

that the DOT's action deprived the court of jurisdic-

tion.

7. The district court dismissed Patchak’s com-

plaint on the theory that Patchak lacked prudential

standing because he was not within the IRA’s zone of

interests. DOI Pet. App. 37a. Although acknowledg-

ing that the zone-of-interests test is “not meant to be

especially demanding,” and that “it only excludes

plaintiffs whose interests are so marginally related

to or inconsistent with the purposes implicit in the

7

statute that it cannot be reasonably assumed that

Congress intended to permit the suit,” id. at 33a

(quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388,

399-400 (1987)), the trial court concluded Patchak

fell outside that zone because he was “not an Indian”

and did not “seek to protect or vindicate the interests

of any Indians or Indian tribes.” /d. at 35a. The dis-

trict court explicitly stated that “because the Court

finds that plaintiff lacks prudential standing, the

Court need not, and does not, reach [the Quiet Title

Act] issue in this opinion.” /d. at 37a n.12.

8. The D.C. Circuit reversed. DOI Pet. App. 22a.

Emphasizing this Court’s guidance concerning the

APA’s “generous review provisions,” the “drive for

enlarging the category of aggrieved persons,” and

that “the test is not especially demanding,” 7d. at 5a

(quotations and citations omitted), the court of ap-

peals recognized that Patchak falls within the zone

of interests protected by the IRA. “The IRA provi-

sions interpreted in [Carcieri limit the Secretary’s

trust authority.” /d. at 7a. “When that limitation

blocks Indian gaming, as Patchak claims it should

have in this case, the interests of those in the sur-

rounding community—or at least those who would

suffer from living near a gambling operation—are

arguably protected.” J/d. The court of appeals noted

that “[tJhe Interior Department itself recognizes the

interests of individuals like Patchak who live close to

proposed Indian gaming establishments,” as evi-

denced by the fact that DOI regulations allow “af-

fected members of the public’ thirty days to seek ju-

dicial review before the Secretary takes land into

trust for an Indian tribe,” and that “lo]ther regula-

tions require the Secretary to consider the purpose

for which the land will be used and whether taking a

tribe’s land into trust would give rise to ‘potential

8

conflicts of land use.” Jd. at 8a—Ya (citing 25 C.F.R.

§$§ 151.12(b) & 151.10(c) , (f) ). The D.C. Circuit also

observed that “[tihe zone-of-interests test weeds out

litigants who lack a sufficient interest in the contro-

versy, litigants whose ‘interests are so marginally

related to or inconsistent with the purposes implicit

in the statute that it cannot reasonably be assumed

that Congress intended to permit the suit.” Jd. at

10a ‘quoting Clarke, 479 U.S. at 399). Unlike that

type of marginal litigant, Patchak’s “stake in oppos-

ing the Band’s casino is intense and obvious,” and it

would be “very strange to deny Patchak standing in

this case.” Jd.

The D.C. Circuit also rejected the government’s

assertion that Patchak brought a Quiet Title Act

case and that because his APA claim related to land

taken in trust for Indians, his claim was barred by

sovereign immunity. /d. at 2la. The court of appeals

noted that the “common feature of quiet title actions

is missing from this case”: Patchak is not trying to

“establish a plaintiffs title to land,” as “he mounts

no claim of ownership of the Bradley Tract.” Jd. at

14a. Focusing on the statutory text, the court ob-

served that “the language of § 2409a firmly indicates

that Congress intended to enact legislation building

upon the traditional concept of an action to quiet ti-

tle.” /d. at 14a—1ia. Section 2409a of the Quiet Title

Act requires the plaintiff to “set forth with particu-

larity the nature of the right, title, or interest which

the plaintiff claims in the real property.” Id. at 15a

(quoting 28 U.S.C. §2409a(d)) (emphasis added).

Further, Section 2409a(b) allows the government the

option of retaining possession of the land if it loses

the quiet title action, “so long as the government

pays just compensation to the person entitled to the

property.” /d. at 16a. This just-compensation provi-

)

sion “is senseless unless there is someone else—the

plaintiff—claiming ownership.” /d. Accordingly, the

D.C. Circuit refused to follow other courts that have

“extended the reach of the Quiet Title Act beyond its

text” and held that “the terms of the Quiet Title Act

do not cover Patchak’s suit” and that “[hjis action

therefore falls within the general waiver of sovereign

immunity set forth in § 702 of the APA.” Jd. at 21a.

The Court of Appeals noted that Patchak had ar-

gued that because he filed suit before the Bradley

Tract was taken into trust, even if the Quiet Title

Act applied, sovereign immunity did not bar his

claim. The Court of Appeals chose not to address the

issue in light of its determination that the Quiet Ti-

tle Act did not apply to Patchak’s claim in the first

instance. Jd. at 2lan.10.

9. After the Court of Appeals issued its decision

permitting Patchak’s challenge to the legality of the

DOI’ land-in-trust decision to proceed, the Band

opened a sprawling casino complex on the Bradley

Tract. As Patchak predicted, the casino has severely

disrupted the rural character of the area. Media re-

ports indicated that after opening, the parking lots at

the casino were “so full and traffic is so heavy along

US 131 [that police] closed the northbound and

southbound exits” to the highway. Appellant’s Resp.

to Band’s Mot. to Stay the Mandate, Exs. A, B. And

police calls in the area have, as expected, “skyrock-

eted,” doubling from historical levels in the first

month of operations and tripling in the second

month. Grand Rapids Press article, Apr. 9, 2011,

available at http://www.mlive.com/news/grand-

rapids/index.ssf/2011/04/why_township_ officials_

arent_c.html (“It’s been like dropping a small city

into the middle of that area.”). The casino complex

10

has thus already disrupted the rural lifestyle of Way-

land Township; the inevitable result of bringing mil-

lions of annual visitors into a farming community of

only 3,000 residents.

. ARGUMENT

The petitioners contend that the APA’s waiver of

sovereign immunity is barred by the Quiet Title Act,

even though Patchak is not bringing and cannot

bring a quiet-title action. They also contend that

Patchak does not fall within the zone of interests

protected by § 465 of the IRA, even though he is

seeking to enforce the limitation § 465 imposes under

Carciert, and even though the DOI itself considers

interests like his when deciding whether to take land

into trust under § 465. The court of appeals correctly

rejected both contentions. No further review is war-

ranted, especially given the interlocutory nature of

the sovereign-immunity decision and the lack of any

split among the circuits on the prudential-standing

issue.

I. The Court should decline to address this

interlocutory appeal

The D.C. Circuit’s decision concluding that sov-

ereign immunity did not bar Patchak’s suit is inter-

locutory. This Court generally declines to exercise

its certiorari jurisdiction to review interlocutory de-

cisions. See Hamiulton-Brown Shoe Co. v. Wolf Bros.,

240 U.S. 251, 258 (1916); see also Goldstein v. Cox,

396 U.S. 471, 478 (1970) (“this Court above all other

must limit its review of interlocutory orders”); com-

pare Virginia Military Inst. v. United States, 508

U.S. 946 (1993) (opinion of Scalia, J., on denial of

certiorari, noting the interlocutory posture of the

ll

litigation), with United States v. Virginia, 518 U.S.

515 (1996) (review granted after final judgment).

The Court should decline review here for two

reasons. First, although state sovereign immunity is

a right not to be sued, and so a right that may in

some circumstances warrant protection even at the

interlocutory stage, most of the federal circuits that

have addressed the issue have recognized that /ed-

eral sovereign immunity is merely a nght not to pay

damages—that is, a right that can be fully vindicated

after judgment.

Second, a decision by this Court reversing the

D.C. Circuit would not finally resolve the sovereign-

immunity issue in this case. There is a second, inde-

pendent reason that sovereign immunity does not

apply that would need to be addressed on remand:

Patchak sued before the government took the land

into trust, and the APA waiver of sovereign immu-

nity existing when he filed his complaint controls.

Because reversing the Court of Appeals’ decision on

sovereign immunity likely would not change the out-

come in this case, this case is an inadequate vehicle

for this Court’s review.

A. Because federal sovereign immunity

is not a right to avoid trial, it can be

vindicated after final judgment

As several federal courts of appeals have recog-

nized, “it is difficult to speak of federal sovereign

immunity as a ‘right not to be sued.” Pullman

Const. Indus., Inc. v. United States, 23 F.3d 1166,

1168 (7th Cir. 1994) (Easterbrook, J.). “(I]t is quite

unlike the eleventh amendment, which provides that

‘(t]he judicial power of the United States shall not be

construed to extend’ to suits against states, and the

12

Foreign Sovereign Immunity Act (FSIA), which gives

foreign governments immunity from the jurisdiction’

of our courts.” /d (citation omitted). For example,

“injo one could argue with a straight face that the

United States has, or ever had, a general ‘right not to

be sued’ concerning taxes.” /d at 1169. Indeed, “the

United States is no stranger to litigation in its own

courts,” given that “the United States Code is riddled

with statutes authorizing relief against the United

States and its agencies,” including the fact that

“Congress has consented to litigation in federal

courts seeking equitable relief against the United

States.” Jd at 1168 (citing, for the last point, 5

U.S.C. § 702); see also S. Rep. 996, 94th Cong., 2c

Sess. 4 (1976) (Senate Report) (legislative history to

§ 702 of the APA stating that “flor years almost

every regulatory Statute enacted by Congress has

contained provisions authorizing Federal courts to

review the legality of administrative action that has

adversely affected private citizens”). Instead,

“iflederal sovereign immunity today is nothing but a

condensed way to refer to the fact that monetary re-

lief is permissible only to the extent Congress has

authorized it.”' Pullman, 23 F.3d at 1168.

! The Seventh Circuit noted that this Court had previously de-

scribed federal sovereign immunity in dicta as a mght not two be

sued. Pullman, 23 F.3d at 1168. But those statements were

dicta because, “in the entire existence of the United States, the

federal government has never before taken an interlocutory ap-

peal to assert sovereign immunity.” /¢@ So although this Court

may have made such statements in passing, it has not resolved

the issue, and in fact has held that the collateral-order doctrine

does not apply to all claims of “immunity.” /¢@ at 1169 (citing

lan Cauwenberghe v. Biard, 486 US. 517 (1988)), cf. Kentrnck

v. Ryan, 540 U.S. 443, 454 (2004) (Courts, including this Court,

| Footnote continued on next page|

13

Other courts of appeals that have considered the

issue in the civil context have reached the same con-

clusion, including the Ninth Circuit in a case brought

under the Quiet Title Act. State of Alaska v. United

States, 64 F.3d 1352, 1355 (9th Cir. 1995) (“We hold

that, despite the label ‘immunity,’ federal sovereign

immunity is not best characterized as a ‘right not to

stand trial altegether.’ . . . Like immunity from ser-

vice of process (leading to lack of personal jurisdic-

tion), federal sovereign immunity is better viewed as

a right not to be subject to a binding judgment. Such

a right may be vindicated effectively after trial.”).

Houston Cmty. Hosp. v. Blue Cross & Blue Shield of

Texas, Inc., 481 F.3d 265, 280 (5th Cir. 2007) (“|The

only portion of the United States’ original immunity

from suit that Congress continues to assert is a mght

not to pay damages.” (quoting Pu//man)). Although

the D.C. Circuit disagreed with these other circuits

on the scope of federal sovereign immunity, it did so

outside the civil context, observing that it was “far

from clear that Congress has waived federal sover-

eign immunity in the context of criminal contempt.”

In re Sealed Case No. 99-3091, 192 F.3d 995, 999

(D.C. Cir. 1999) (emphasis added); see also Houston

Cmty. Hosp., 481 F.3d at 279 (noting that the D.C.

Circuit reached its conclusion “under circumstances

too distinguishable to create a circuit split”); compare

In re World Trade Ctr. Disaster Site Litig., 521 F.3d

{Footnote continued from previous page|

it is true, have been less than meticulous im this regard: they

describe emphatic time prescriptions im rules of court. Juris-

diction,’ the Court has aptly observed, ‘is a word of many. too

many, meanings.™).

i4

169, 192 (2d Cir. 2008) ‘distinguishing Pul/man

based on specific statutory language addressing dis-

creuonary-function immunity).

In short, federal sovereign immunity, unlike

Eleventh Amendment immunity, is not a right to

avoid suit. It is a defense that can be vindicated ef-

fectively after trial. See State of Alaska, 64 F 3d at

1357 (“The denial of federal sovereign immunity, we

conclude, imposes no hardship on the United States

that is qualitatively different from, or weightier

than, the hardship imposed by the denial of such de-

fenses as the statute of limitations or res judicata,

both of which have been held to be effectively re-

viewable following trial.”).

This Court should also decline to grant review to

decide the sovereign-immunity question presented

because even if this Court were to reverse on that

question, the Court's decision would not finally re-

solve the issue of sovereign immunity in this case.

There is a second sovereign-immunity issue—the

“time-of-filing issue”—-that the court of appeals did

not reach: “we do not address whether sovereign im-

munity should be determined as of the date his com-

plaint was filed [on August 1, 2008] rather than after

the Secretary took the land into trust jon January

30, 2009].” DOI Pet. App. 21a n.10. In other words,

if this Court reverses and concludes that the Quiet

Title Act applies, the United States will still have to

address the separate argument that the Quiet Title

Act's assertion of sovereign immunity does not apply

15

to suits filed before the land is taken into trust by

the government. Therefore, this case is interlocutory

with respect to the sovereign-immunity issue itself,

In the APA, Congress decided to waive sovereign

immunity over suits challenging final agency actions.

5 U.S.C. § 702 (“A person suffering legal wrong be-

cause of agency action, or adversely affected or ag-

grieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.

An action in a court of the United States seeking re-

lief other than money damages . . . shall not be dis-

missed nor relief therein be denied on the ground

that it is against the United States... .”). Relying

on that waiver, Patchak filed his complaint after the

final agency determination and before the govern-

ment took the land into trust under the [RA—in

other words, in the window the government specifi-

cally created for judicial review.2 Having waived its

sovereign immunity for suits brought within that

window, the government cannot at a later date reas-

sert a right that it previously waived. Indeed, the

finality of waiver—that it “eliminatejes!” the right—

has led this Court to find a “waiver of the Federal

Government's sovereign immunity” only if it is “un-

equivocally expressed in the statutory text.” Lane v.

Pena, 518 U.S. 187, 192 (1996) (describing waiver as

“elimination of sovereign immunity™); see also Sen-

ate Report 2, 5, 24, 25 (explaining that the statute

will “eliminatele]” sovereign immunity).

2 The DOI regulation’s notice requirement imposes a floor, not

a ceiling. It requires that the notice state that the DOI wil! ac-

quire title “no sooner than 30 days after the notice is pub-

lished.” 25 C_F_R. § 151.12i(b).

16

The Ninth Circuit considered a similar issue in

Bank of Hemet v. United States, 643 F.2d 661 (9th

Cir. 1981), and held that the United States could not

retraci—or un-waive—a waiver of sovereign immu-

nity. In Hemet, the bank filed its complaint contain-

ing a quiet-title claim on January 4, 1978. At the

tume the bank filed its complaint, the government

claimed title to the disputed property, and so the

Quiet Title Act’s waiver provision, 28 U.S.C. § 2409a,

applied.* Jd at 665. Despite this waiver, the gov-

ernment sold the property several weeks later (on

January 30, 1978), before service of the complaint

was effected, and thereafter argued that the waiver

did not apply because the government had divested

itself of its interest in the property. Jd at 664. The

Ninth Circuit, noting that the government had notice

of the complaint before selling the property, rejected

the government's attempt to divest the court of juris-

diction: “We hold that under the circumstances of

this case the presence of a waiver of sovereign im-

munity should be determined as of the date the com-

plaint was filed.” Jd at 665. A contrary holding, the

court of appeals recognized, would allow “the gov-

ernment to manipulate its position subsequent to the

filing of the complaint so as to present a situation

that falls between the cracks of applicable waiver

statutes.” Jd; see also Delta Sav. & Loan Assn, Inc.

v. IRS, 847 F.2d 248, 249 n.1 (5th Cir. 1988) (follow-

ing Bank of Hemet).

3 The exception in the Quiet Title Act for “trust or restricted

Indian lands” at issue im Patchak's case was not implicated in

Hemet

17

Below, the government contended that it was not

manipulating jurisdiction by its position, even

though its time-of-filing theory would allow it to

evade Congress's waiver of sovereign immunity in

the APA for almost every instance where the gov-

ernment took land into trust for an Indian tribe.

Under the government's theory, a plaintiff seeking to

quiet title who filed suit under the APA before the

government took the land into trust and after the

agency's final determination would initially be al-

lowed to bring his suit because Congress waived sov-

ereign immunity via the APA. But once the act he

was seeking to prevent occurred—that is, once the

government took land into trust—the Quiet Title Act

would automatically bar his suit from continuing

(assuming the government is right that it can waive

sovereign immunity and then later rescind its

waiver). See Dept of Interior vy. South Dakota, 519

US. 919, 921 (1996) (Scalia, J., dissenting from deci-

sion to grant, vacate, and remand) (“The Solicitor

General now represents to us that it is the position of

the Department of the Interior, as well as that of the

Department of Justice, that judicial review of an IRA

land trust acquisition may be obtained by filing suit

within the 30-day waiting period, although action

will continue to be barred by the QTA after the

United States formally acquires title.”), The gov-

ernment’s approach, in other words, holds out to citi-

zens the opportunity to bring a suit to challenge the

DOTrs decision to take land into trust but then, like

Lucy holding a football for Charlie Brown, pulls

away the opportunity once the suit commences.

Other circuits have disagreed with the Ninth

Circuit's decision in Hemet and have held (in the

context of Eleventh Amendment immunity) that “a

State may alter the conditions of waiver and apply

18

those changes to torpedo even pending litigation.”

Maysonet-Robles vy. Cabrero, 323 F.3d 43, 52 (1st Cir.

2003); see also Jowa Tribe of Kansas & Nebraska v.

Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010); but

see 16 JAMES WM. MOORE ET AL., MOORE'S FEDERAL

PRACTICE 105.21[4] (“The Ninth Circuit has the far

better of the argument.”). These circuits relied on

Beers v. State, 61 U.S. 527 (1857), where this Court,

in the context of state sovereign immunity, said that

a sovereign “may withdraw its consent whenever it

may suppose that justice to the public requires it.”

/d. at 529. But the government cannot contend that

“justice to the public” requires withdrawing its

waiver under these circumstances.

First, Congress has indicated, through the APA's

waiver, that justice requires that parties aggrieved

by an agency action should be allowed judicial re-

view. That is why Congress waived sovereign im-

munity under the APA in the first place. 5 U.S.C.

§ 702 (“A person suffering legal wrong because of

agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant stat-

ute, is entitled to judicial review thereof.”); see also

Senate Report 3, 7 (‘explaining that Congress waived

sovereign immunity in the APA to foster “the princi-

ples of accountability and responsive Government”

and to avoid “the unnecessary injustice cause by

sovereign immunity™).

Second, DOI has specifically recognized the need

to protect the interests of the public by allowing for

judicial review of its decisions to take land into trust

for Indian tribes. Land Acquisitions, 61 Fed. Reg.

18,082, 18,082 (Apr. 24, 1996) (codified at 25 C_F_R.

$151.12) (establishing “a procedure to ensure the

seoattuatiy tut tediatah tovlow af sduintennatins dee

19

cisions to acquire land in trust for Indian tribes

..”). Before adopting 25 C.F.R. § 151.12, the DOI

could purportedly avoid judicial review of its land-in-

trust decisions by reaching a final determination and

immediately taking the land in trust. See Dept of

Interior, 519 U.S. at 920 (Scalia, J., dissenting from

decision to grant, vacate, and remand). That is why

DOI created a window between the final agency de-

termination and the actual taking of the land into

trust during which an APA challenge could be

brought (as Patchak did here). 25 C.F.R. § 151.12(b);

see also Notice of Determination, 70 Fed. Reg. at

25,596 (“The purpose of the 30-day waiting period in

25 CFR 151.12(b) is to afford interested parties the

opportunity to seek judicial review of the final ad-

ministrative decisions to take land in trust for Indian

tribes ... before the transfer of title to the property

occurs.”).

The possibility of judicial review—described by

members of this Court as ‘reviewability-at-the-

pleasure-of-the-Secretary,” Dep't of Interior, 519 U.S.

at 920 (Scalia, J., dissenting from decision to grant,

vacate, and remand)—is largely illusory if the gov-

ernment can override the APA waiver simply by tak-

ing the land into trust. The only way it is not illu-

sory is if the plaintiff files early enough in the 30-day

window to have time to persuade a court to issue a

stay before the government can take the land into

trust. But the possibility that the judiciary may in-

tervene in time to stay the executive’s hand does not

diminish the unfairness of the government’s ap-

proach. As one commentator has put it, “The gov-

ernment has the right not to be sued; it does not

have the right to induce plaintiffs to invest time,

money, and effort in a litigation, only to find that

well along in the process, the government has

20

changed its mind.” 16 MOORE'S FEDERAL PRACTICE

§ 105.21([4].

In any event, the “time of filing” sovereign-

immunity issue has not been resolved by the D.C.

Circuit or the district court. Thus, unless this Court

addresses this so-far unreviewed issue, a decision re-

versing the court of appeals’ decision would not fi-

nally resolve the sovereign-immunity issue in this

case. This Court should therefore wait for a case

that presents the question on which the petitioners

seek review without the complication of a second

ground to oppose sovereign immunity that could ren-

der this Court’s decision without effect as to the par-

ties before it.

Il. The D.C. Circuit correctly held that the

Quiet Title Act’s sovereign-immunity bar

did not apply because Patchak did not

bring a quiet-title claim

As noted above, the APA broadly waives sover-

eign immunity for challenges to administrative deci-

sions, like the DOI’s decision to take land into trust.

The APA then limits this waiver, stating that it does

not “confer{] authority to grant relief if any other

statute that grants consent to suit expressly or im-

pliedly forbids the relief which is sought.” 5 U.S.C.

§ 702. Petitioners contend that the Quiet Title Act

applies to this action and forbids the relief sought.

The Quiet Title Act contains a broad waiver of sover-

eign immunity for quiet-title actions, but carves out

land-in-trust decisions for Indian tribes from the

general waiver. Although petitioners contend the

Quiet Title Act applies to Patchak’s claims, the plain

language of the Act shows that Patchak has not as-

serted an action to quiet title. Thus, petitioners are

left to argue that the Quiet Title Act impliedly bars

21

Patchak’s suit. But petitioners’ argument is illogical.

It requires the Quiet Title Act’s carve-out preserving

sovereign immunity for land taken into trust for In-

dian tribes to be broader than the Quiet Title Act’s

waiver of sovereign tmmunity. The D.C. Circuit cor-

rectly reasoned, consistent with this Court’s opin-

ions, that “the terms of the Quiet Title Act do not

cover Patchak’s suit,” and “[hl]is action therefore falls

within the general waiver of sovereign immunity set

forth in § 702 of the APA.” DOI Pet. App. 21a.

A. The decision below is consistent with

both the Quiet Title Act and this

Court’s decisions

The Quiet Title Act, as its name suggests, allows

plaintiffs to bring quiet-title actions against the gov-

ernment. The D.C. Circuit correctly analyzed the

statutory text and concluded its sovereign-immunity

rules apply only to suits that could be brought under

the Act.

First, the Quiet Title Act waives sovereign im-

munity by allowing the United States to be named as

a party defendant “in a civil action under this section

to adjudicate a disputed title to real property in

which the United States claims an interest.” 28

U.S.C. § 2409a(a) (emphasis added). The exception

to waiver that the government contends applies here

is also specifically limited to claims brought under

§ 2409a: “This section does not apply to trust or re-

stricted Indian lands.” Jd.

Second, the Quiet Title Act’s pleading require-

ment spells out what civil actions can be brought un-

der it: “The complaint shall set forth with particu-

larity the nature of the right, title, or interest which

the plaintiff claims in the real property, [and] the

22

circumstance under which it was acquired.” 28

U.S.C. § 2409a(d) (emphasis added). In other words,

civil actions brought under the Act are specifically

limited to actions by plaintiffs who—unlike

Patchak—are seeking to quiet title in themselves.

See DOI Pet. App. 14a—-1da.

Third, the text of § 2409a(b) provides that the

United States may retain possession of the disputed

property even if it loses a quiet-title action so long as

it makes “payment to the person determined to be

entitled thereto of an amount” that the district court

determines “to be just compensation” for possession

or control of the property. This provision further

highlights that actions under this section involve

claims of ownership; otherwise there would be no

need for “just compensation” or a person “entitled

thereto.” See DOI Pet. App. 16a.

Nothing in this Court’s decisions in Block v.

North Dakota, 461 U.S. 273 (1983), or United States

v. Mottaz, 476 U.S. 834 (1986), requires a different

outcome. Those cases both involved traditional

quiet-title actions—actions by plaintiffs who claimed

an ownership interest in property adverse to the

United States’ claim of title to the property. In

Block, “the United States and North Dakota as-

sert(ed] competing claims to title to certain portions

of the bed of the Little Missouri River within North

Dakota.” 461 U.S. at 277. North Dakota asserted a

traditional quiet-title claim. This is borne out by the

holding in Block. “We hold that Congress intended

the QTA to provide the exclusive means by which

adverse claimants could challenge the United States’

title to real property.” Jd. at 286 (emphasis added).

In Mottaz, the plaintiff had inherited interests in

several parcels on a reservation, and asserted title to

23

the lands in dispute: “What respondent seeks is a

declaration that she alone possesses valid title to her

interests in the [parcels of land] and that the title

asserted by the United States is defective.” 476 U.S.

at 842 (holding that the Quiet Title Act’s 12-year

statute of limitations barred her claim). Thus, both

of these cases addressed traditional quiet-title ac-

tions. See DOI Pet. App. 18a.

The petitioners nevertheless contend that the

Quiet Title Act applies and overrides the APA’s

waiver of sovereign immunity because § 702 does not

“confer{] authority to grant relief if any other statute

that grants consent to suit expressly or impliedly

forbids the relief which is sought.” 5 U.S.C. § 702.

But such a prohibition is “not lightly to be inferred.”

Barlow v. Collins, 397 U.S. 159, 166 (1970). “Judicial

review of administrative action is the rule, and non-

reviewability an exception . . . [which must be shown

by] ‘clear and convincing evidence of a contrary legis-

lative intent.” J/d. at 166-67 (citation omitted).

The government argues that the legislative his-

tory of the APA—particularly a letter written by

then-Assistant Attorney General Scalia concerning

the phrase “expressly or impliedly forbids the relief

which is sought”—confirms that the Quiet Title Act

impliedly bars suits like Patchak’s. DOI Pet. 10—11.

But as explained above, Patchak is not bringing suit

under the Quiet Title Act. For the carve out preserv-

ing sovereign immunity for Indian tribe land-in-trust

decisions to impliedly bar Patchak’s suit, the carve

out must be interpreted to be broader than the Quiet

Title Act’s waiver of sovereign immunity. Nothing in

the statutory text requires this illogical result.

Likewise, the legislative history of the APA un-

dermines the government’s argument. The word

24

“impliedly” was reportedly added to § 702 because

the existence of a general sovereign immunity before

1976 meant that pre-1976 statutes (such as the 1972

Quiet Title Act) had no reason to expressly forbid re-

lief against the United States. This in turn meant

that “in most if not all cases where statutory reme-

dies already exist, these remedies will be exclusive.”

Id. (citation omitted). The fact that statutory reme-

dies are exclusive reinforces the point that the statu-

tory text governs and that Patchak’s suit, which

could not be brought under the Quiet Title Act, is not

impliedly covered by the Quiet Title Act’s immunity

provisions. As explained in the legislative history,

when the statute Congress has passed “is not ad-

dressed to the type of grievance which the plaintiff

seeks to assert”—here, Patchak’s suit that does not

assert a quiet-title claim—"suit would be allowed.”

Senate Report 27. Put another way, this legislative

history for § 702 of the APA does not show, as the

government would have it, that the Quiet Title Act

impliedly bars actions that do not qualify as quiet-

title actions. Consequently, the D.C. Circuit cor-

rectly concluded that the Quiet Title Action does not

apply, and that Patchak’s action falls within the

APA’s genera! waiver.

B. The conflict is new and should be

given more time to develop now that

9 court of appeals has, for the first

ame, focused on the Quiet Title Act’s

text

Although other circuits have concluded that the

Quiet Title Act impliedly forbids parties from bring-

ing APA suits to challenge the DOI’s decision to take

land into trust, those decisions are not consistent

with the text of the Quiet Title Act. See DOI Pet.

25

App. 2la (“The courts of appeals mentioned above

have extended the reach of the Quiet Title Act be-

yond its text.”).

In Florida Department of Business Regulation v.

Department of Interior, 768 F.2d 1248 (11th Cir.

1985), the Eleventh Circuit—the first circuit to rule

on this issue—never addressed § 2409a(d)’s require-

ment that the plaintiff claim “right, title, or interest

. in the real property,” and even admitted that

“technically the suit in the instant case [was] not one

to quiet title.” Jd. at 1254. Instead, the Eleventh

Circuit based its conclusion on the policies it found

underlying the Quiet Title Act, not on the language

of the Act. The court of appeals also relied on its be-

lief that under the IRA the DOI had such unlimited

discretion to take land into trust for a tribe that any

decision would be essentially unreviewable, id at

1256—57, failing to note the temporal limit that Car-

cierl recognizes as limiting the DOI’s discretion—

that only tribes under federal jurisdiction in 1934 are

eligible to have land taken into trust for them. The

Ninth Circuit’s decision in Metropolitan Water Dis-

trict of Southern California v. United States, 830

F.2d 139 (9th Cir. 1987), aff'd by an equally divided

Court sub. nom. California v. United States, 490 U.S.

920 (1989), also never addressed § 2409a(d)’s statu-

tory requirement that the plaintiff be an adverse

claimant and instead focused simply on a policy ar-

gument, citing Florida Department of Business De-

velopment. Id. at 143-44. The Tenth Circuit also

tracked the Eleventh Circuit’s policy-based analysis.

Neighbors for Rational Dev. v. Norton, 379 F.3d 956,

962 (10th Cir. 2004) (discussing Florida Department

of Business Development). And although the Tenth

Circuit at least mentioned the pleading requirements

of § 2409a(d), it mentioned them only to say that

26

“plaintiffs cannot circumvent the intent of the Quiet

Title Act's limitations with artful pleading.” /¢@ ai

965. But ignoring the Act's express pleading limita-

tions, as the Tenth Circuit did, is not the way to ef-

fectuate those limitations.

This circuit split is new, created by the D.C. Cir-

cuit’s decision. Now that a circuit has reached a de-

cision based on the text of the Quiet Title Act and not

allow more time for other circuits to address the is-

sue and weigh the competing arguments. Further-

more, to the extent that national uniformity is im-

portant, petitioners themselves admit that uniform-

ity can be achieved by the fact that APA suits can be

brought in the D.C. Cireuit. DOI Pet. 16. In short,

because the D.C. Circuit is correct and can provide

uniformity on this issue, there is no need for this

Court's review.

Beyond that, the government’s arguments about

the adverse consequences of this decision are over-

D.C. Cireuit’s decision, all land-in-trust decisions are

forever subject to attack. First of all, Patchak sued

raise the specter of post Aoc attacks initiated years

after the land was taken into trust. Second, actions

challenging taking land into trust are subject to tra-

ditional defenses including the APA's own statute of

limitations. See 28 U.S.C. § 240l\(a); cf. Delano

Farms Co. v. Cal. Table Grape Comm'n, 655 F 3d

1337, 1350 (Fed. Cir. 2011).

The government further argues that the decision

will “severely disrupt the Secretary's acquisition of

trust lands for Indians” because “[ajny plaintiff seek-

ing to sue the Secretary can obtain venue in the

27

United States District Court for the District of Co-

lumbia, 28 U.S.C. 1391(e), and in light of the decision

below, there is little reason for a plaintiff to bring a

case anywhere else.” DOI Pet. 16. Ten months have

passed since the D.C. Circuit issued its opinion, but

no new cases have been filed against the Secretary of

the Interior relating to lands already held in trust for

Indian tribes. Moreover, the very incentive the gov-

ernment claims was created by the D.C. Circuit's de-

cision has existed for 35 years without the disruption

the government fears.

In 1978, the District Court for the District of Co-

lumbia addressed the situation where, as here, a

plaintiff brought suit under § 702 of the APA w chal-

lenge the DOT's decision to take land into trust for an

Indian tribe, arguing that the Sault Ste. Marie tribe

was not a tribe within the meaning of the Quiet Title

Act. City of Sault Ste. Marie v. Andrus, 458 F. Supp.

465, 467 (D.D.C. 1978). The district court, noting

that § 2409a of the Quiet Title Act requires a plain-

tiff “to state with particularity the nature of the

right, claim, or interest plaintiff possesses in the

property at issue,” rejected the government's claim

that the Quiet Title Act's sovereign-immunity provi-

sion barred the suit. /d at 471. As the court ex-

plained, because “plaintiffs do not possess the type of

property right which would be necessary for the

maintenance of a quiet title action, it is clear that 28

U.S.C. [§] 2409a is inapplicable to this suit, and may

not, therefore, force dismissal of this suit due to the

doctrine of sovereign immunity.” /d@ at 472. In other

exact incentive that the government claims now

causes a significant adverse consequence. Plaintiffs

have continued to bring suits elsewhere, as evi-

denced by the decisions cited as creating a circuit

28

split—a 1985 decision by the Eleventh Circuit, a

1987 decision by the Ninth Circuit, and a 2004 deci-

sion by the Tenth Circuit.

This issue does not warrant the Court's review at

this time.

not conflict with this Court's decisions,

implicate a circuit split, or warrant this

Court’s review

The petitioners contend that Patchak falls out-

side the zone of interests arguably protected by § 465

of the IRA, the provision on which Patchak based his

suit, because Patchak’s asserted injuries focus on the

use the land will be put to, rather than some other

harm from the DOTs decision to take land into trust.

But as the D.C. Circuit explained, § 465 covers inter-

ests like Patchak’s.

For one, Patchak did not need to show that § 465

of the IRA was meant to benefit those in his situa-

tion. In National Credit Union Administration v.

First National Bank & Trust Co.. 522 US. 479

(1998), the Court explained that it does “not ask

whether, in enacting the statutory provision at issue,

Congress specifically intended to benefit the plain-

tiff.” Jd at 492. Instead the Court “first discern/s)

the interests ‘arguably to be protected’ by the statu-

tory provision at issue,” and “then inquire|s] whether

the plaintiff's interests affected by the agency action

in question are among them.” /d For another, the

zone-of-interests test also includes within its scope

those who can be expected to challenge a provision.

Clarke, 479 US. at 398 (“The essential inquiry is

whether Congress ‘intended for [a particular) class

29

(of plaintiffs} to be relied upon to challenge agency

disregard of the law.™)

In Carcieri, the Court interpreted § 465 and

$ 467 to limit the DOT s discretion to take land into

trust for Indians. 129 S. Ct. at 1064-66. The fact

that the statute limits the DOT's discretion demon-

strates that § 465 at least arguably exists to protect

the interests of the community that would be af-

fected if the land were taken into trust, for members

of the community make up part of the class that can

be relied upon to challenge land-in-trust decisions.

This interpretation is supported by the DOI's

own regulations under § 465 of the IRA, which spe-

cifically require the Secretary to consider both “|tjhe

purposes for which the land will be used” and “poten-

tial conflicts of land use” when deciding whether to

take land into trust. 25 C.F.R. § 151.10(c), (f). And

the DOI farther recognizes that its decision to take

the land into trust affects the surrounding commu-

nity—i.e., people like Patchak—by providing “af-

fected members of the public” with notice before the

land is taken into trust so that they can seek judicial

review under the APA. Land Acquisitions, 61 Fed.

Reg. 18,082; 25 C.F.R. § 151.12(b). The government

says nothing in its petition to explain why the DOI

thinks land use is directly relevant under these regu-

lations promulgated under § 465 yet not an interest

even “arguably within the zone of interests to be pro-

tected” by the APA’s “generous review provisions.”

Clarke, 479 U.S. at 395-96.

Not only is the decision below consistent with

this Court’s decisions, it does not conflict with the

decisions of other circuits. The first evidence of this

is that the government does not allege a circuit split

on the prudential-standing issue. DOI Pet. at 18—23.

30

And all of the cases the Band cites are distinguish-

able. For example. the Eighth Circuit in Rosebud

Sioux Tribe v. McDivitt, 286 F.3d 1031 ‘8th Cir.

2002), releed on statutes that the court of appeals

thought were “intended to protect only Native

American interests.” Jd at 1036-37. Here, however,

this Court has recognized that § 465 of the IRA is in-

tended to be a limitation on the government's ability

to take land inte trust for Indians. Carcieri, 129 S.

Ct. at 1067 n.7 (“1 Wle conclude that the language of

$465 unambiguously precludes the Secretary’s ac-

tion with respect to the parcel of land at issue in this

case.”). The Sixth and Seventh Circuit decisions the

Band relies on addressed situations where the inter-

est asserted was “at odds with the concerns of the

provision in issue,” Jonida Trucking, Inc. v. Hunt,

124 F.3d 739, 742 (6th Cir. 1997), or “inconsistent”

with the relevant provisions, Courtney v. Smith, 297

F 3d 455, 464, 466 (6th Cir. 2002); Am. Fedn of Govt

Employees v. Cohen, 171 F.3d 460, 471 (7th Cir.

1999). But again, § 465 imposes a limitation on the

Secretary, and Patchak’s suit seeking to enforce that

limitation is consistent with the purposes of the

Statute.

In short, the Secretary's own procedures for tak-

ing land into trust under § 465 acknowledge that

placing the land in trust affects the interests of the

surrounding community. The D.C. Circuit's recogni-

tion that Patchak is arguably within that zone of in-

terests was correct, consistent with the decisions of

this Court, and consistent with the decisions of its

sister circuits. The prudential-standing issue also

does not warrant this Court's review.

31

For these reasons, the petitions for a writ of cer-

Respectfully submitted.

DANIEL P. ETTINGER

Counsel of Record

MATTHEW T. NELSON

AARON D. LINDSTROM

NICOLE L. MAzzocco

WARNER Norcross & Jupp LLP

Counsel for Respondent David Patchak

November 9, 2011