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

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SLoreme Cour Us

S'LED

FEB? - 2012

= Nos. 11-246 and 11-247

- ee

In The

Supreme Court of the Anited States

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

Petitioner,

Vv.

DAVID PATCHAK, ET AL.,

Respondents.

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

Petitioners,

Vv.

DAVID PATCHAK, ET AL.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DiSTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER MATCH-E-BE-NASH-SHE-

WISH BAND OF POTTAWATOMI INDIANS

Conly J. Schulte Patricia A. Millett

Shilee T. Mullin Counsel of Record

FREDERICKS PEEBLES & James T. Meggesto

MORGAN LLP James E. Tysse

1900 Plaza Drive AKIN, GUMP, STRAUSS,

Louisville, CO 80302 HAUER & FELD LLP

— 1333 New Hampshire Ave., NW

Washington, DC 20036

AKIN, GUMP, STRAUSS,

LLP (202) 887-4000

Name S Pep millett@akingump.com

580 California Street, P P-

Suite 1500 Michael C. Small

San Francisco, CA 94104 AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

2029 Century Park East

Suite 2400

Los Angeles, CA 90067

TE —=E

Wrson-Eres Prinnine Co., inc. ~— (202) 789-0086 — WasHmarTon, D.C. 20002

- om ae

QUESTIONS PRESENTED

I. Whether the Quiet Title Act and _ its

reservation of the United States’ sovereign

immunity in suits involving “trust or restricted

Indian lands” apply to all suits concerning land in

which the United States “claims an interest,” 28

U.S.C. § 2409a(a), as the Seventh, Ninth, Tenth.

and Eleventh Circuits have held, or whether they

apply only when the plaintiff claims title to the

land, as the D.C. Circuit held.

II. Whether prudential standing to sue under

federal law can be based on either (i) the

plaintiffs ability to “police” an agency’s

compliance with the law, as held by the D.C.

Circuit but rejected by the Fifth, Sixth, Seventh,

and Eighth Circuits, or (ii) interests protected by

a different federal statute than the one on which

suit is based, as held by the D.C. Circuit but

rejected by the Federal Circuit.

(1)

TABLE OF CONTENTS

SOF PO F RMIN TIED veccccccscsccsavecissecsccuscsssccsensas i

IIE oon na ccnnnssnnstsmnuscecbadxnedtiiusdvemigamnusiiaes 1

IEE ditinntinteusadeseestnatiibubsindiisdabccsdadcuciasaaaniae 2

RELEVANT STATUTORY PROVISIONS ................. 2

STATEMEEINE OF TEE CABE ...0...cccccccccccscccsccccccccncess 2

Fi: Fe i icititainttensiecteinadocicisinimecininnts 2

ee IIIT co. ncreednemnpaccoadabenntaieonns 5

ie a incinrnsvascssuninnindreseciniuadsanenaas 8

SUMMARY OF ARGUMENT. ....................ccceeceeeee eens 11

I sivsnniativsnenitetiesalansnisikanmmucadanaiiisinenudaahiain 16

I. THE QUIET TITLE ACT RETAINS THE

UNITED STATES’ SOVEREIGN

IMMUNITY FROM ADMINISTRATIVE

PROCEDURE ACT SUITS SEEKING TO

FORCE THE UNITED STATES TO

RELINQUISH TITLE TO INDIAN TRUST

A. Congress’s Waiver Of Immunity From

Suits Seeking To Divest The United

States Of Title To Real ow * Must

Be Express And Unambiguous... OES

B. The Quiet Title Act Statutorily Codified

The United States’ Full Immunity

From Suits Challenging Title To Indian

ee nei nilcnnisinctsgnbtnniteladitiiibddgnimmncgecen 18

ill

1. The Retention of Full Immunity

for Indian Trust Lands is Explicit

in the Quiet Title Act’s Text........... 18

2. The Quiet Title Act’s Express

Retention of Immunity Applies

Regardless of Whether the

Plaintiff Asserts Title ..................... 21

3. The Administrative Procedure

Act’s General Provisions Do Not

Supplant the Quiet Title Act’s

Be WP FI eiicccsccccosvsnenndacesticcncs 30

Il. RESPONDENT LACKS PRUDENTIAL

STANDING TO POLICE THE FEDERAL

GOVERNMENT'S COMPLIANCE WITH

THE LAW BECAUSE HIS ALLEGED

INJURIES ARE DISCONNECTED FROM

THE STATUTE HE SEEKS TO ENFORCE... 38

A. Respondent Falls Outside The

Reorganization Act’s Zone Of Interests ... 40

1. Respondent’s Interests Are

Divorced from the Reorganization

Act’s Terms and Operation............. 41

2. The Reorganization Act Does Not

Address, Regulate, or Remediate

Respondent’s Claimed Injuries ...... 46

B. Respondent’s Interest In _ Policing

Compliance With Federal Law Does

Not Cure His Prudential Standing

COA IIT sustentisiairenttnindicoeeminnsnbatiniiis siecsecbsikesianaaiiin 59

ADDENDUM

a ii icsascetinhipstninencdierniensavas 2a

I sei eicitsasessinsiedniesntatinssnsoidestescocsone'deis 6a

RN I i coicieciccivavcsntccicensniensiplncdaipmipiontesessai 7a

TABLE OF AUTHORITIES

CASES:

Air Courier Conference of America v. American

Postal Workers Union,

Pg Et Se ee eran ee 15, 48, 49

American Fed'n of Gov't Employees v.

Rumsfeld,

EE Oe Bee I ,. CARR, BID esse csivsccscescesswiscesccess 58

Association of Data Processing Services, Inc. v.

Camp,

rE I els cen enseneidl 40, 45

Bennett v. Spear,

I Es, I COD csi ectisrasceseccssiscenscntaconmasses passim

Block v. Community Nutrition Inst.,

Ee Ges es Be CE eect cciscceecccccerssvensccsts 41

Block v. North Dakota ex rel. Bd. of Univ. and

Sch. Lands.

ee ee es ceessicbiameidees passim

Brown v. General Servs. Admin.,

> 83 Bo]... Reel 20, 23, 24, 33

CJA v. Sims,

ii eee see eetescue 26

Citizens Exposing Truth About Casinos v.

Kempthorne,

¢ ef FO flee Snr 47,48

Clarke v. Securities Indus. Ass'n,

I ar I I il cece cetrtnaciinuamecusaness passim

Connecticut Natl Bank v. Germain,

ee aie icacnscncenpinetareuianiaseherubesesen 25

Connecticut v. United States Dep’t of the

Interior,

Oe ae Se ne ED cocsenenassoncasiecscvececonineness 43

County of Yakima v. Confederated Tribes and

Bands of the Yakima Indian Nation,

Se ia sceitmniiitmesensionndas 42

Department of the Army v. Blue Fox, Inc.,

Sy SI I hair ad a ciialasicetiinaleieemndotenzannsaunel 25

Department of the Interior v. South Dakota.

I er et enn 5, 57

EC Term of Years Trust v. United Siates,

Fe = —

Ex parte Young,

FPC v. Tuscarora Indian Nation,

BO CN Te I iiss sciicertecmasseindneusiiieineiieimmuennadis 26

Gladstone, Reaitors v. Village of Bellwood,

ee a I itera inentncatecnmisnansoioninninaedannins 39

Gozlon-Peretz v. United States,

A re Sn a aie 36

Hercules Inc. v. United States,

ee A We ID senccnicsibisinciitindesseianssanicnauianuusiiicde 17

Hinck v. United States,

Gi i dca die netbarmnsnennillial 23, 36

Idaho v. Coeur d’Alene Tribe of Idaho,

fh tS fer: oe

Investment Company Institute v. Camp,

a TR ET cna Gn, encadiiederoadiciladbabonuntasudentaies 45

Lane v. Pena,

ee ey MID ris san idnavcacestiexceseennediinnessons 17, 18

Larson v. Domestic & Foreign Commerce Corp..,

Se ks HE ED eri icstnriannescncccdancccdbdabiesubinuieenon 23

Lujan v. Defenders of Wildlife.

ey ee SI as ec cndnlaildeniden passim

Lujan v. National Wildlife Fed'n,

8 F et. eee oe 40, 54, 58

Malone v. Bowdoin,

SI I, I oi ies oentediecaneenassiniel 23

Mescalero Apache Tribe v. Jones,

ee ee I iasidercidcecccdcinetiedcscnsutaomens 4,9, 42

Michigan Gambling Opposition v. Norton,

477 F. Supp. 2d 1 (D.D.C. 2007) ..........0.c.0000-- 5, 6, 7

Michigan Gambling Opposition v. Kempthorne,

BSS F.Ob SO GAL. Cie. BOD vvcececccesccecscessces: passim

ts i ne csp unenaidialanimennennenas 7

Minnesota v. United States,

aS a ne EE 26

Morton v. Mancari,

a a a countndunbaatan 41,42

National Credit Union Admin. v. First Nati

Bank & Trust Co.,

EE Ee: Ee ID wninneiaticocccccesscccdcceses 40, 41, 44, 45

Orff v. United States,

a a eieinadedeninanenas eel

Patchak v. Salazar,

646 F. Supp. 2d 72 (D.D.C. 2008) .................00..20000. 2

ee Se is I Oe oe occ uinhnsnndccvessncsonens ]

Samantar v. Yousuf,

ns as, SI ois ceeriniccchcsimeabdeenaneetebameaih 35

Simon v. Eastern Ky. Welfare Rights Org.,

NE I sarc indssdenciseminaniiaiansidnnecwonends 51, 52

South Dakota v. United States Dept of the

Interior,

69 F.3d 878 (8th Cir. 1995), cert. granted

and judgment vacated sub nom.

Department of the Interior v. South Dakota,

EF D8, ESE ERA eae ee ee D, 57

South Dakota v. United States Dep't of the

Interior,

No. 11-1745, 2012 WL 75292 (8th Cir. Jan.

By EE cil. Riidaectuntibacniinundnsiinbaidedamiasimnnéaibicniieinlen 43

Steel Co. v. Citizens For A Better Env,

a ae a nhaceindusnevauabbausias 52

Taxpayers of Mich. Against Casinos v. Norton,

433 F.3d 852 (D.C. Cir. 2006) .........ccces0cceceeceseee- 48

Thompson v. North American Stainless, LP,

TERRIA RAIS ol SoS ao 40

United States Dep't of Energy v. Ohio,

Un I a nt caieephbuneanile 25

United States v. Braverman,

nr 8 nucinusdcumuniaaeas 38

United States v. Mitchell,

ee co cieaiadsmmeudeaseaien 17

United States v. Mottaz,

I Se I i ccinsnbindensiocicemiphabacamiecsanns passim

United States v. Nordic Village, Inc.,

So nS a cgppnniaueamnsndank 35

United States v. Sherwood,

ee ee ino ceesuhsusieunmedins 17

United States v. Williams,

ee ee I ne auhadeunen 17,18

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc..,

a ee SE IED: cocccondcnannemseannen ainnuciebeisowssteies 55

Warth v. Seldin,

re I onic nor srocecncenbsntdsapsttscinecant 39, 55

Wisconsin Public Intervenor v. Mortier,

es En Or ee ee: 35

STATUTES AND TREATIES:

ME Oi roost 2

Administrative Procedure Act, 5 U.S.C.

I sa sciichginat tens dieisih aa otiielnelodedeicehseasmasanads 3, 4

iy Pe bidpaiacibis pidesiteis daaeinionshconasciecuaasendeeecesaeesesees passim

Federal Tort Claims Act,

28 U.S.C. §§ 1346, 2671-2680 ..o..ccccccccccccececeeeceeee 3

Greenville Treaty of August 3, 1795 (7 Stat.

Rie cia teadssiaaiekiabedadsusasckannies sadlehaneidlaaiadpbonsiaicenbaicaxenaass 19

Indian Gaming Regulatory Act, 25 U.S.C.

II sacra acess eects: shia dauusitoecnadat Catcgseaboniexcae aitacen 6

Sec iciusineshch nite bssmneceyninipnasteaduanddsdnmaabonsideaisinniadaeceenis 50

IN csi os acnsustosinactpnnkenansasdnrctacearseacss: 47

Indian Reorganization Act, 25 U.S.C.

BSR EE aera ks et CTO 4

Sai iveijuiclatbdensuisidsstpihas dncecsoidonkideaicbalemenautesuncsanete: passim

National Environmental Policy Act,

42 U.S.C. §§ 4321-4370h o.oo. oe ececccccecccceeseceee. 6, 57

Pub. L. No. 92-562

§ 3(a), 86 Stat. 1176 (Oct. 25, 1972) 200. 24

Quiet Title Act, 28 U.S.C.

Se BE nciniviitsvninebeguntindsidennierievrencsonceveeebdnqepecosenseiial 2,3

Be INE x scucnsiiicsunssisnesyeacsuscosamielbenniniokinesees passim

Ee IID sinsvicecnscisubnscetasdavanedccebasscneommaunnseesent passim

Oe Risin dciessnesis ienccnavonssessvaevessuvetonetonsouseessns passim

II csncnncbedchsleucsentessvubernsndnussuyetnasticeneniouien 22, 30

BE Ricisckevcctosoitessoneevsseninedsseaiassstnnorspearinned 22, 27

I ited cnncrsereceusesessnsecsubeineitniiivesnncendsastannkelias 22

BD eubisendichsusennsteventsabdane entusenmeorenersouene 22, 32

Treaty of Chicago of August 29, 1821 (7 Stat.

ca a aammeneeniensessionbsadentiancenmees 20

Treaty of Detroit of November 17, 1807 (7 Stat.

BID isos. nite sccind scaeremeennetenabasstandcebebiveneneasveinometberenntn 20

Treaty of Fort Industry of July 4, 1805 (7 Stat.

SEE sidisusipiadsasecanaecnecene sl a ceeccaea eemataete eee aeetiadaeaaieene 19, 20

Treaty of July 29, 1829 (Prairie Du Chien) (7

RSE ROR Nee med oer eS oem Te 20

Treaty of July 31, 1855 (11 Stat. 621) ...................... 20

Treaty of October 16, 1826 (7 Stat. 295)................... 20

Treaty of October 2, 1818 (7 Stat. 185)..................... 20

Treaty of October 20, 1832 (7 Stat. 378).................+ 20

Treaty of October 26, 1832 (7 Stat. 394)................... 20

Treaty of October 27, 1832 (7 Stat. 399)................... 20

Treaty of September 19, 1827 (7 Stat. 305).............. 20

Treaty of September 20, 1828 (7 Stat. 317).............. 20

Treaty of September 20, 1836 (7 Stat. 513).............. 20

Treaty of September 29, 1817 (7 Stat. 160).............. 20

Treaty of September 26, 1833 and Articles

supplementary of September 27, 1833 (7

I I I sens ccaeGune eecnebateaiancs 20

Tucker Act,

Se ie UP PIED ccc coreneceneptdnkvellentaiateccanmanieniiemernces 3

REGULATIONS:

25 C.F.R.

Ee IIIA ain thies Kiussiceedsig aca adimendiaincseadanenntpenameaadeeae 46, 57

TERE ear Aer sR ry ee en eee RPI Ie 57

i TIT ichicdinisalds clesemdiedaciabbebetacseaianadinnsambenagouialh passim

SEES, Se eat ae eee lao aera HUSTED See 57

a al on hla 57, 58

SCE RIE neers ae wee ee SDR ee 4, 44

aR URE SE RR ieee recente SRI AED 5, 44, 56

61 Fed. Reg. 18,082 (Apr. 24, 1996)................ 5, 56. 57

70 Fed. Reg. 25,596 (May 12, 2005)................ 6, 46, 57

74 Fed. Reg. 18,307 (Apr. 22, 2008) ..............0cc0.00000000. 7

OTHER AUTHORITIES:

Cohen, Felix S., Handbook of Federal Indian

I cae oa lentils 42

xill

H.R. Rep. No. 1559, 92d Cong.,

EN, CP ce siccestcsencnnddaseoes siesta 19, 26, 28, 29

H.R. Rep. No. 1656, 94th Cong.,

ESS A: Rs ee passim

Jones, Al, Gun Lake Casino CEO John

Shagonaby to offer insights Friday as

WMU’s Keystone Breakfast speaker,

KALAMAZOO GAZETTE, Jan. 23, 2012,

http://www.mlive.com/business/west-

michigan/index.ssf/2012/01/gun_lake_casin

I ee I isin cnteciiiinickasonsdeceisrscsseesnsess 7,8

Knape, Chris, Gun Lake Casino opens, brings

gambling on U.S. 131 between Kalamazoo,

Grand Rapids, THE GRAND RAPIDS PRESS,

Feb. 10, 2011,

http://www.mlive.com/business/west-

michigan/index.ssf/2011/02/gun_lake_casin

ies ciccsucenesecénsddsiionsoninans 7

Press Release, Gun Lake Tribe’s Second State

and Local Revenue Sharing Payments

Exceed $7.8 Million,

http://www.mbpi.org/PDF/News/Press%20R

eleases/PR_Revenue_Sharing_Announcmen

S. 800, 94th Cong., 2d Sess. (1976) ..................0scesee0. 34

5S. Rep. No. 575, 92d Cong.,

A a erase aaaduonenss 19, 26, 29

S. Rep. No. 996, 94th Cong.,

aE i giednacuans passim

X1V

Steadman, John Montague, “Forgive U.S. Its

Trespasses?”: Land Title Disputes With the

Sovereign—Present Remedies and

Prospective Reform, 1972 Duke L. J. 15

(RFD wcsccecscninesscasicncscceoessnnutinaésicennsniaaniiinnasaneannnn 29

Jn The

Supreme Court of the Gnited States

Nos. 11-246 and 11-247

MATCH-E-BE-NASH-SHE-WISH

BAND OF POTTAWATOMI INDIANS,

Petitioner,

Vv.

DAVID PATCHAK, E7'AL.,

Respondents.

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

Petitioners,

Vv.

DAVID PATCHAK, ET AL.,

Respondents.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER MATCH-E-BE-NASH-

SHE-WISH BAND OF POTTAWATOMI INDIANS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

24a) is reported at 632 F.3d 702. The decision of the

district court (Pet. App. 25a-37a) is reported at 646 F.

Supp. 2d 72.}

JURISDICTION

The court of appeals entered its judgment on

January 21, 2011. Pet. App. la. The court denied

petitions for rehearing and rehearing en banc from

both the Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians and the United States on March

28, 2011. Pet. App. 38a-4la. Timely petitions for

writs of certiorari were filed on August 25, 2011 by

both the Match-E-Be-Nash-She-Wish Band and the

United States, and both petitions were granted by

this Court on December 12, 2011. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

The relevant statutory provisions are reproduced

at No. 11-246, Pet. App. 43a-49a, and in an

addendum to this brief.

STATEMENT OF THE CASE

A. Legal Framework

1. Congress enacted the Quiet Title Act (“QTA”),

28 U.S.C. § 2409a, to provide “the exclusive means by

which adverse claimants could challenge the United

States’ title to real property” and to prescribe the

precise terms on which the United States’ sovereign

immunity from suits disputing title to real property

in which the United States holds an interest would be

waived. Block v. North Dakota ex rel. Bd. of Univ.

' Throughout this brief, “Pet. App.” refers to the petition

appendix filed in No. 11-246.

and Sch. Lands, 461 U.S. 273, 286 (1983). The QTA

provides generally that the “United States may 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). Congress, however,

expressly retained intact the United States’ sovereign

immunity with respect to “trust or restricted Indian

lands,” providing that “[t}his section does not apply to

[such] lands[.]” Jd.?

The QTA further provides that “[n]lo preliminary

injunction shall issue in any action brought under

this section” against the United States, 28 U.S.C.

§ 2409a(c), nor shall the United States “be disturbed

in possession or control of any real property involved

in any action under this section,” but instead the

government must be permitted to pay compensatory

damages in lieu of any permanent relief displacing its

control over real property, id. § 2409a(b).

2. The Administrative Procedure Act, 5 U.S.C.

§§ 551 et seq., was enacted four years after the QTA,

and it separately waives the United States’ sovereign

immunity from suit for actions “seeking relief other

than money damages and stating a claim that an

agency or an officer or employee thereof acted or

failed to act in an officia! capacity,” id. § 702. The

2 Congress further provided that Section 2409a does not

“apply to or affect actions which may be or could have been

brought” under a variety of other comprehensive statutory

schemes, such as the Federal Tort Claims Act, 28 U.S.C.

§§ 1346, 2671-2680, and the Tucker Act, id. § 1491. See id.

§ 2409a(a).

APA, however, does not “affect{] other limitations on

judicial review,” nor does it “confer[} authority to

grant relief if any other statute that grants consent to

suit expressly or impliedly forbids the relief which is

sought.” Jd.

3. Congress enacted the Indian Reorganization

Act, 25 U.S.C. §§ 461 et seg., to promote economic

development for Indians and tribal self-government.

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152

(1973). To further that objective, the Reorganization

Act authorizes the Secretary of the Interior, in his or

her discretion, “to acquire * * * any interest in lands,

water rights, or surface rights to lands, within or

without existing reservations, including trust or

otherwise restricted allotments, * * * for the purpose

of providing land for Indians.” 25 U.S.C. § 465.

Before deciding whether to place land in trust and

thus before the QTA’s protections attach, the _

Secretary provides direct notice of the trust

application to any affected state and _ loca!

governments and an opportunity for them to object or

to provide written comments regarding “the

acquisition’s potential impacts on _ regulatory

jurisdiction, real property taxes and _= special

assessments.” 25 C.F.R. § 151.10 (governing

acquisitions of land “within or contiguous to an

Indian reservation’); see id. § 151.11 (governing

acquisitions “outside of and noncontiguous to the

tribe’s reservation”). Once the Secretary completes

his or her review and makes a determination to place

land into trust, the Secretary issues a general public

notice that affords “interested parties” a 30-day

window to file suit challenging the trust decision

before the land is placed into trust and thus before

the QTA’s bar to review attaches. See 61 Fed. Reg.

18,082 (Apr. 24, 1996); 25 C.F.R. § 151.12(b).3

B. Factual Background

Petitioner, the Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians, commonly known as the Gun

Lake Tribe (“Gun Lake”), is a federally recognized

Indian tribe situated near Kalamazoo, Michigan. See

Michigan Gambling Opposition [“MichGO’] v.

Kempthorne, 525 F.3d 23, 26 (D.C. Cir. 2008) (per

curiam). In 2001, Gun Lake requested that the

Secretary place a 147-acre parcel close to its

ancestral homeland, known as the “Bradley Tract,”

into trust pursuant to the Reorganization Act. Pet.

App. 27a. The application indicated that Gun Lake

sought trust status for its land “to promote tribal

economic development, self-sufficiency and a strong

tribal government capable of providing its members

with sorely needed social and educational programs.”

J.A. 41. The application further identified Gun

Lake’s intention to construct and operate a gaming

facility on the Bradley Tract. Jd.; Pet. App. 2a. At

the time, the Bradley Tract consisted predominantly

of shuttered and unused factory and warehouse

buildings, situated between a highway and a railroad

line. Michigan Gambling Opposition v. Norton, 477

3 That process of postponing the trust acquisition pending

judicial review followed an Eighth Circuit decision holding that

the Reorganization Act would be unconstitutional] if it did not

afford a fair opportunity for judicial review. See South Dakota

v. United States Dep't of the Interior, 69 F.3d 878, 880 (8th Cir.

1995), cert. granted and judgment vacated sub nom.

Department of the Interior v. South Dakota, 519 U.S. 919 (1996).

F. Supp. 2d 1, 10 n.13 (D.D.C. 2007). The land is

zoned for hight industrial and commercial use. /d.

The Secretary provided specific notice of Gun

Lake’s trust application to the state and local

governments whose taxing and regulatory authority

over the Bradley Tract would be affected were the

federal government to place the land into trust. See

25 C.F.R. § 151.10. The Secretary then undertook a

lengthy administrative review of Gun _ Lake’s

application that included not only a determination of

the land’s eligibility for trust status under the

Reorganization Act, but also the conduct of a required

environmental assessment under the National

Environmental Policy Act, 42 U.S.C. §§ 4321-4370h,

and a gaming-eligibility determination under the

Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-—

2721 (“IGRA”). See MichGO, 525 F.3d at 27.

Following the completion of those reviews, the

Secretary announced her intention to place the

Bradley Tract into trust. Pet. App. 26a-27a.

Pursuant to applicable regulations, the Secretary

advised that her “acceptance of the land into trust”

would not occur for 30 days so that “interested

parties” could, during that time period, seek judicial

review and challenge the Secretary's action “before

transfer of title to the property occurs.” 70 Fed. Reg.

25.596 (May 12, 2005); Pet. App. 3a, 7a-8a.

Within that 30-day waiting’ period, = an

organization called Michigan Gambling Opposition

(“MichGO”) sued on the grounds that the trust

acquisition violated the National Environmental

Policy Act and IGRA, and that Section 5 of the

Reorganization Act is an unconstitutional delegation

of congressional power. See MichGO, 525 F.3d at 26.

The organization's claims were rejected on the merits

by both the district court and the court of appeals.

See id. at 28-33; Michigan Gambling Opposition, 477

F. Supp. 2d at 6-22. After this Court denied the

organization’s petition for a writ of certiorari, 129 S.

Ct. 1002 (2009), the Secretary placed the Bradley

Tract into trust for Gun Lake and_ thereby

transferred title to the property to the United States.

Pet. App. 3la n.10. In April 2009, the Secretary

approved, by operation of law, a gaming compact

negotiated by the State of Michigan and Gun Lake.

74 Fed. Reg. 18,397, 18,397-18,398 (Apr. 22, 2009).

On February 10, 2011, Gun Lake opened a gaming

facility on a portion of the trust land that borders

U.S. Highway 131.4. Other portions of the trust land

are used for tribal governmental offices, water

treatment facilities, a waste water plant, and a public

safety office. See C.A. App. 535-544. The business

has since created more than 900 jobs and generated

more than $10.3 million in revenue-sharing funds for

local schools and State and local governments.®

' See Chris Knape, Gun Lake Casino opens, brings

gambling on U.S. 131 between Kalamazoo, Grand Rupids, THE

GRAND RAPIDS PRESS, Feb. 10, 2011,

http://www.mlive.com/business/west-michigan/index.ssf/201 1/02/

gun_ lake casino_opens_brings_g.html.

5 See Press Release, Gun Lake Tribe’s Second State and

Local Revenue Sharing Payments Exceed $7.8 Million,

http://www.mbpi.org/PDF/News/Press*o20Releases/PR Revenue

_Sharing_ Announcment.pdf; Al Jones, Gun Lake Casino CEO

John Shagonaby to offer insights Friday as WMU’s Keystone

Breakfast speaker, KALAMAZOO GAZETTE, Jan. 23, O12.

http://www.mlive.com/business/west-

C. Procedural History

1. After the 30-day period for challenging the

trust decision had passed and after the court of

appeals had rejected MichGO's challenges,

respondent David Patchak. who “is either a member

of MichGO or closely affiliated with MichGO.” filed

his own suit under the APA alleging that the

Secretary lacked the legal authority under the

Reorganization Act to place the land into trust."

Respondent asserted standing on the ground that “he

will be exposed to and injured by the negative effects

of building and operating” @ gaming facility,

including changes in the alleged “rural character’ of

the area, “loss of aesthetic and environmental

qualities.” “increased property taxes.” “weakening of

the family atmosphere of the community,” and “other

aesthetic, socioeconomic, and environmental!

problems.” J.A. 30. Respondent sought, inter alia, a

declaration that the Secretary's decision to take title

to the land in trust Was “unlawful[|" and an

injunction “revers|[ing] the decision to take the

Property into trust,” which would require the United

States to relinquish tithe. Jd. at 38-39; see 25 U.S.C.

§ 465 (“Title to any lands or rights acquired pursuant

to this Act * * * shall be taken in the name of the

United States in trust[.]”); U.S. C.A. Br. 41 (“To

obtain any meaningful relief in this case, Patchak

———— SS

michigan/index sst/2012/01l/gun_lake_casino ceo_john_shago.ht

* Declaration of David K. Sprague in Support of Intervenor:

Detendants Opp. to Pitt. Mot. to Stav, No. O8ev1331. at 5

(D.D.C. Oct. 27, 2008) (Dkt. 31)

needs the courts to set aside Interior's land-into-trust

decision, thus requiring the United States to

relinquish its title to the Bradley property.”); Resp.

C.A. Br. 26 (asking court “to order the Bradley Tract

taken out of trust”).

Gun Lake intervened as a defendant in district

court. Pet. App. 4a. Gun Lake and the Secretary

moved to dismiss respondent's suit as barred by the

QTA's express retention of sovereign immunity from

suits challenging the United States’ title to “trust or

restricted Indian lands,” 28 U.S.C. § 2409a(a). See

J.A. 3. Gun Lake and the Secretary also moved to

dismiss for lack of prudential standing on the ground

that the interests that respondent asserted were not

within the zone of interests protected by the only

statute under which he sued, the Reorganization Act.

Pet. App. at 30a.

2. The district court dismissed respondent's

complaint on prudential standing grounds. Pet. App.

25a-36a. “Plaintiff. without a doubt,” the court

explained, “is not an intended beneficiary of the IRA.”

which Congress enacted “to enable tmbal self-

determination, self-government, and self-sufficiency

in the aftermath of ‘a century of oppression and

paternalism.” Jd. at 33a (quoting Mescalero Apache

Tribe, 411 U.S. at 152). “Rather, plaintiff seeks to

vindicate only his own environmental and private

economic interests,” which “could not be further

divorced” from the Reorganization Act's purposes.

Pet. App. 33a-34a.

With respect to respondent's professed “interest in

ensuring that only qualified tribes receive benefits

under the IRA,” the court explained that “such an

interest, if true, is indistinguishable from the general

interest every citizen or taxpayer has in _ the

government complying with the law.” Pet. App. 34a.

“To find that plaintiff has prudential standing on this

basis alone.” the court concluded, “would make a

mockery of the prudential standing doctrine

altogether.” /d.

The court further held that respondent's

allegations of injuries arising from gaming or alleged

environmental and aesthetic harms “cannot save

plaintiffs case” because there is “no evidence

indicat{ing}] that the [Reorganization Act] focuses on

or otherwise seeks to protect the interests of the

surrounding community or the environment.” Pet.

App. at 35a n.11. Those interests, the court

explained, might be addressed by the National

Environmental Policy Act or IGRA, but respondent

sought no relief under those statutes as such claims

had already been rejected in the MichGO litigation.

Id.

Finally, the distmet court noted that its

“continuing subject matter jurisdiction * * * [was]

also seriously in doubt” under the QTA’s express

retention of sovereign immunity for suits challenging

the United States title to “trust or restricted Indian

lands,” 28 U.S.C. § 2409a(a). Pet. App. 36a n.12.

3. The court of appeals reversed. Pet. App. la-

24a. The court first held that respondent had

prudential standing. The court acknowledged that

respondent was not an intended beneficiary of the

Reorganization Act, id. at 10a-lla, but held that

prudential standing devolves “not on those who

Congress intended to benefit, but on those who in

practice can be expected to police the interests that

the statute protects,” id. at 6a. Although

respondents suit challenged only the Secretary's

trust decision under the Reorganization Act, the

court of appeals ruled that the prudential! standing

inquiry “must be evaluated in light of the intended

use of the property,” and because Gun Lake

referenced IGRA in its fee-to-trust application,

“Itlaken together,” that Act and the Reorganization

Act “arguably protected {respondent]” from his

asserted environmental and aesthetic injuries. /d. at

9a. The court then ruled that, because respondent s

injuries are “cognizable” and allegedly protected by

IGRA, he had prudential standing to sue under the

Reorganization Act. /d. at 11a.

With respect to the QTA, the court of appeals held

that the “trust or restricted Indian lands” provision of

the statute does not bar respondent's suit because, 1n

the court’s view, that provision’s retention of the

United States’ sovereign immunity applies only when

“the plaintiff is claiming an interest in real property

contrary to the government's claim of interest.” Pet.

App. 18a.

SUMMARY OF ARGUMENT

As a matter of both sovereign immunity and

prudential standing principles, respondent's suit 1s

barred at the threshold because he invokes the wrong

statute to relitigate already rejected claims in an

effort to obtain remedies that Congress has expressly

proscribed and that the statute he invokes could not

effectively provide in any event.

1. Absent an express and unequivocal waiver of

sovereign immunity, the United States cannot be

sued. There is no such waiver of immunity for

lawsuits challenging the United States’ title to or

legal interest in lands held in trust for Indian tribes

or individuals. Quite the opposite, the text of the

Quiet Title Act explicitly and unconditionally retains

the United States’ full sovereign immunity from suits

involving “trust or restricted Indian lands.” 28

U.S.C. § 2409a(a). Congress was also unequivocal

that, to the extent that the United States can be sued

over “a disputed title to real property in which the

United States claims an interest,” id., no preliminary

or permanent injunctive relief can issue that would

supplant the United States’ “possession or control of

any real property,” id. § 2409a(b) & (c).

The court of appeals nevertheless held that

respondent can obtain the very type of relief that is

statutorily forbidden against the very type of

property for which sovereign immunity was

statutorily preserved in full. That was wrong.

First, there is no explicit and unambiguous way

to get to that outcome in the statutory text. Congress

did not carve trust lands out of its waiver as a mere

condition on lawsuits claiming title to those same

lands. By its plain text, the trust lands provision is

an express and unqualified retention of full sovereign

immunity over such lands. And it reflects a conscious

congressional judgment that the countervailing cost

to important national interests that such htigation

would inflict makes a waiver of immunity

unwarranted. Whether the plaintiff claims title

himself or simply objects to the United States’ title,

the legal effect is the same, because title will

inevitably be quieted in someone else, and the harm

to national interests is the same.

Second, the court of appeals reasoned that the

QTA authorizes suit only by plaintiffs asserting their

own title to property. Even assuming that narrow

reading were correct (which is unclear), the court of

appeals drew exactly the wrong conclusion. This

Court has recognized on repeated occasions that the

QTA is the type of precisely drawn, detailed statute

that preempts resort to general remedial schemes

and makes the QTA the “exclusive means by which

adverse claimants could challenge the United States’

title to real property.” Block v. North Dakota ex rel.

Board of University and School Lands, 461 U.S. 273,

285-286 (1983). When Congress carves certain

claims and remedial mechanisms out of such detailed

statutory schemes, the proper meaning of that

exclusion is that those suits are barred. It is not that

those plaintiffs asserting claims and _ seeking

remedies that Congress expressly proscribed can go

invoke generalized remedial schemes like the

Administrative Procedure Act to end-run Congress's

judgment.

Third, there is no sound reason why Congress

would have wanted to afford plaintiffs with the most

remote injuries and indirect interests in the land

greater remedies and far less restricted procedural

options than those who assert their own title to the

land and thus who are the most directly injured by

the federal government's infringing interest in the

land.

Finally, the APA’s general waiver of immunity

does not help respondent. Congress expressly

provided that the APA's waiver does not extend to

claims for which another statute “expressly or

impliedly forbids the relief which is sought” or

imposes “limitations on judicial review.” 5 U.S.C.

§ 702. This Court has already held in Block that the

QTA is exactly one of those other statutes to which

Section 702 refers and thus the APA cannot be read

in a way by which “the Indian lands exception to the

QTA would be rendered nugatory.” 461 U.S. at 285.

Il. Respondent's complaint stumbles at the

starting gate for yet another reason: he lacks

prudential standing. A foundational requirement of

prudential standing is a showing that the plaintiff

falls within the zone of interests of the Statutory

provision under which he has filed suit, which in this

case is the Indian Reorganization Act. Respondent's

asserted anti-gaming, aesthetic, and environmental

mmuries, however, lack any anchor inthe

Reorganization Act's text, provisions, or recognized

purposes. He neither is an Indian or tribal

beneficiary of the Act. nor is he positioned similarly

to the states and local governments on whose

regulatory jurisdiction the Secretary's trust decisions

directly operate.

Indeed, respondent does not really claim any

injury arising from the trust decision at al). Only a

small portion of the entire trust land is used for

gaming purposes, and respondent asserts no legal

injury from or objection to how roughly 75% of the

trust land is used. He instead objects to how Gun

Lake, not a federal agency, is using a single portion of

the lands now that they are in trust. Those

objections to the gaming use and alleged

environmental effects. however, are addressed by

other statutes (i.e, the Indian Gaming Regulatory

Act and the National Environmental Policy Act)

under which respondent chose not to sue, presumably

because the court of appeals had already rejected

such claims in earlier litigation. Those claimed

injunes from one use of the land do not arise from the

Secretary's decision to place the land into trust in the

first place.

The court of appeals reasoned that IGRA and the

Reorganization Act were sufficiently linked to permit

piggybacking the former statute's zone of interests on

top of the Reorganization Act. That is not how

prudential standing works.

First, this Court has repeatedly held thar

prudential standing must be grounded in the precise

statutory provision that the plaintiff invokes. While

on rare occasion the Court has found two provisions

within the same statute to be integrally related, the

Court has never allowed a plaintiff to appropriate

interests protected by one statute to sue under

another. In fact, in Air Courter Conference of

America v. American Postal Workers Union, 498 U.S.

517 (1991), this Court forbade the exact same

lend/lease approach to prudential standing that the

court of appeals approved here.

The same must be true here where the

Reorganization Act’s terms, content, purposes, and

even helming agencies differ materially from IGRA.

Moreover, the Reorganization Act lacks any

discernible statutory standards that could _ be

employed to evaluate or adjudicate respondent's

claims. The Secretary’s trust decision under the

Reorganization Act simply does not turn upon the

gaming or non-gaming uses of trust land. Nor would

stripping the United States of trust title itself do

anything to remediate respondent's asserted injuries;

it would simply transfer regulatory authority over

the land’s use from the federal to the state

government.

Second, while respondent might have been able

to ground prudential standing for his claimed injuries

in IGRA. the injuries he asserts had already been

pressed and rejected in the earlier MichGO litigation.

The proper conclusion to draw from that statutory

reality is that, if the on-point federal statutes

preclude relef, prudential standing principles do not

permit a plaintiff to import those same interests into

a different statutory scheme just to litigate them all

over again.

Finally, respondent's “intense and _ obviou.”

interest in “policling]” agency compliance with the

law (Pet. App. 6a, lla) does not establish prudential

standing. This Court has held time and again that

Article III standing turns on possession of the

requisite legal interest, not motivation. To hold that

prudential standing requires nothing more than a

cognizable injury and a desire to superintend agency

action, as the court of appeals did here, would simply

collapse the prudential and Article III standing

inquiries.

ARGUMENT

Respondent's complaint should have been

dismissed for lack of jurisdiction because he is using

the wrong statutory remedial scheme to enforce the

wrong statute, all in an effort to wrongfully obtain

relief that Congress expressly has forbidden in both

the QTA and the APA.

I. THE QUIET TITLE ACT RETAINS THE

UNITED STATES’ SOVEREIGN IMMUNITY

FROM ADMINISTRATIVE PROCEDURE

ACT SUITS SEEKING TO FORCE THE

UNITED STATES TO RELINQUISH TITLE

TO INDIAN TRUST LANDS

Respondent’s suit seeking to strip the United

States of the trust title it holds to the Bradley Tract

is barred because Congress expressly preserved the

United States’ sovereign immunity from such suits in

both the QTA and the APA.

A. Congress’s Waiver Of Immunity From

Suits Seeking To Divest The United

States Of Title To Real Property Must Be

Express And Unambiguous

The starting point in determining whether

respondent may challenge the United States’ title to

trust land is the foundational principle that, as a

sovereign, the United States “is immune from suit

save as it consents to be sued.” Hercules Inc. v.

United States, 516 U.S. 417, 422 (1996) (quoting

United States v. Sherwood, 312 U.S. 584, 586 (1941)).

As a matter of separation of powers, only Congress

can waive the United States’ sovereign immunity.

See Block, 461 U.S. at 287 (applying QTA).

Accordingly, to ensure that a waiver occurs only upon

congressional direction and not judicial inference,

this Court requires that any waiver of sovereign

immunity “must be unequivocally expressed”; it

“cannot be implied.” United States v. Mitchell, 445

U.S. 535, 538 (1980) (citation omitted). And any

ambiguities or doubts must be “constru[ed] * * * in

favor of immunity.” Lane v. Pena, 518 U.S. 187, 192

(1996) (quoting United States v. Williams, 514 U.S.

527, 531 (1995)).

A “necessary corollary” of that rule “is that when

Congress attaches conditions to legislation waiving

the sovereign immunity of the United States, those

conditions must be strictly observed, and exceptions

thereto are not to be lightly implied.” Block, 461 U.S.

at 287.

B. The Quiet Title Act Statutorily Codified

The United States’ Full Immunity From

Suits Challenging Title To Indian Trust

Lands

There is no express statutory waiver of immunity

for suits challenging the United States’ title to Indian

trust’ lands. Quite the opposite, Congress

reconfirmed and expressly retained intact in the text

of the QTA the United States’ full immunity from

suits seeking to challenge its title to or impair its

legal interest in Indian trust lands.

1. The Retention of Full Immunity for Indian

Trust Lands is Explicit in the Quiet Title

Act’s Text

The QTA is a “precisely drawn, detailed statute”

with “carefully-crafted provisions” designed for the

“protection of national public interests” embodied in

the federal government’s ownership, _ control,

possession, and use of real property. Block, 461 U.S.

at 284-285, 290. Chief among those “national public

interests” (id. at 290) were ensuring the stability and

reliability of the United States’ title to land and

avoiding “seriously disrupt[ing] ongoing federal

programs” and obligations with respect to land in the

government’s control or possession, United States v.

Mottaz, 476 U.S. 834, 847 (1986). To protect against

such harms, Congress expressly conditioned its

waiver of immunity for title disputes to real property

in which the United States has an interest on a

prohibition of preliminary injunctive relief against

the government, 28 U.S.C. § 2409a(c), and any other

permanent injunctive or equitable remedies that

would “disturb{] [the United States] in possession or

control of any real property involved in any action

under this section,” id. § 2409a(b).

Upon those remedial terms and conditions (among

others), Congress generally waived the United States’

sovereign immunity from suits “to adjudicate a

disputed title to real property in which the United

States claims an interest, other than a_ security

interest or water rights.” 28 U.S.C. § 2409a(a).

At the same time, Congress specifically stated

that its waiver of immunity in “section [2409a] does

not apply to trust or restricted Indian lands” at all,

28 U.S.C. § 2409a(a). That was necessary “to prevent

abridgment of ‘solemn obligations’ and ‘specific

commitments’ that the Federal Government had

made” in treaties, formal agreements, and elsewhere.

Mottaz, 476 U.S. at 843 n.6; see H.R. Rep. No. 1559,

92d Cong., 2d Sess. 13 (1972) (“President Nixon has

pledged his administration against abridging the

historic relationship between the Federal

Government and the Indians without the consent of

the Indians.”); S. Rep. No. 575, 92d Cong., 2d Sess. 4

(1971) (same).? Because of those distinct third-party

7 Gun Lake is a party to the following treaties: The

Greenville Treaty of August 3, 1795 (7 Stat. 49); Treaty of Fort

interests and _ treaty-based concerns. Congress

statutorily enshrined in the QTA its full immunity

from suits challenging the United States’ title to

Indian trust lands. Mottaz, 476 U.S. at 843.

Accordingly, “when the United States claims an

interest in real property based on that property's

status as trust or restricted Indian lands, the Quiet

Tithe Act does not waive the Government's

immunity.” Jd.

Taken together, the “balance, completeness, and

structural integrity” of the QTA’s provisions create

the type of “precisely drawn, detailed statute” that

“preempts more general remedies” in litigation

challenging the United States’ title to or legal

interest in real property. Block, 461 U.S. at 285

(quoting Brown v. General Servs. Admin., 425 U.S.

820, 832 (1976)). “Congress intended the QTA,” and

only the QTA, “to provide the exclusive means by

which adverse claimants could challenge the United

States’ title to real property,” Block, 461 U.S. at 286.

and as part of that determination, specifically walled

Industry of July 4, 1805 (7 Stat. 87): Treaty of Detroit of

November 17, 1807 (7 Stat. 105); Treaty of Chicago of August

29. 1821 (7 Stat. 288): Treaty of July 29, 1829 (Prairie Du

Chien) (7 Stat. 320); Treaty of September 29, 13817 (7 Stat. 160):

Treaty of October 2. 1818 (7 Stat. 185); Treaty of October 16,

1826 (7 Stat. 295); Treaty of September 19, 1827 (7 Stat. 305):

Treaty of September 20. 1828 (7 Stat. 317); Treaty of October

20, 1832 (7 Stat. 378); Treaty of October 26, 1832 (7 Stat. 394):

Treaty of October 27, 1832 (7 Stat. 399); Treaty of September

26, 1833 and Articles supplementary of September 27, 1833 (7

Stat. 431, 442); Treaty of September 20, 1836 (7 Stat. 513):

Treaty of July 31, 1855 (11 Stat. 621).

off Indian trust lands from title-challenging

litigation.

2. The Quiet Title Act’s Express Retention of

Immunity Applies Regardless of Whether

the Plaintiff Asserts Title

Notwithstanding this Court’s direction in Block

and Mottaz confirming the preemptive exclusivity of

the QTA and its trust lands bar to suit, the court of

appeals held that the QTA’s retention of immunity

applies only when plaintiffs assert their own title to

land. Pet. App. 23a-24a. When the plaintiff lacks

any legal claim of his own to the land at issue, the

court reasoned, the QTA and its protections for

“national public interest[s}]” (Block, 461 U.S. at 284-

285) fall away, and the United States’ own title to

real property is subject to adjudication under any

general remedial scheme a plaintiff can find. Pet.

App. 23a-24a.

To be clear, the court of appeals’ view means that

respondent's lack of any actual, direct legal interest

in the land at issue empowers him to seek the very

type of displacing injunctive relief against the United

States expressly withheld by the QTA and to enforce

the very dispossession of title and supervisory control

forbidden by the QTA against the very Indian trust

lands that Congress statutorily cloaked with full

sovereign immunity in the QTA. That conclusion

would stand the text and purpose of the QTA, as well

as basic principles of interpreting and enforcing

waivers of sovereign immunity, on their heads.

First, if the premise that the QTA applies only to

plaintiffs asserting their own claim to title is correct.

then the only proper conclusion to draw is the

opposite of that reached by the court of appeals: the

QTA must comprehensively prohibit all other suits

challenging the United States’ utle by those, like

respondent, who lack their own property interest in

the land. Dictating the forum and terms on which

the United States’ title to real property is determined,

and thereby ensuring that the litigation proceeds on

terms compatible with the national interest and the

government's operational needs, is the whole point of

the QTA. The Act thus prescribes precisely the

terms—such as the statute of limitations, remedial!

constraints, pleading requirements, and jury trial

bar, 28 U.S.C. § 2409a(b)-(g)——on which the United

States can be haled into court to defend its legal!

interest in real property. 28 U.S.C. § 2409a(a) (QTA

governs when “{t/he United States may be named as

a party defendant in a civil action” disputing its legal

interest in land).

Those terms. and no others, are the grounds on

which Congress was willing to subject the United

States’ legal interests in real property to suit. [t thus

is implausible that Congress would have intended for

the remoteness of the plaintiff's legal interest, rather

than the presence of the United States as a defendant

protecting its title, to dictate the remedial scheme

and terms on which litigation can proceed.

The court of appeals, however, did just that. It

turned a perceived limitation on which plaintiffs

Congress allowed to sue under the QTA into a license

for those debarred plaintiffs to go obtain under any

general remedial scheme-—or perhaps even under the

immunity-evading procedural concoctions of the pre-

QTA era, see Block, 461 U.S. at 281—the very

remedies forbidden by the QTA. And they get to sue

the United States freed from all of the htigation

constraints imposed by the QTA on real property

suits against the federal government. That makes no

sense at all.*

Instead, if the court of appeals were correct that

the QTA applies only to plaintiffs who themselves

assert title, then settled precedent of this Court

demanded that the court preclude circumvention of

that deliberate congressional judgment through

resort to a generalized remedial scheme like the APA.

When Congress enacts 4a specific and carefully

tailored remedial scheme— particularly one creating

a remedy against the United States that did not

previously exist—that scheme, with all of its

limitations, “is generally regarded as exclusive.”

Hinck v. United States, 550 U.S. 501, 506 (2007)

(citing Block, 461 U.S. at 285). In other words, the

QTA, as a “precisely drawn, detailed statute,”

“preempts” respondent's “more general remedies.”

* Prior to the QTA, “[ejnterprising claimants” had

attempted to skirt the sovereign immunity barrier to suit by

“pressiing} the so-called ‘officer's suit™ against individual

federal officers under state tort law. Block. 461 U.S. at 251

(discussing Malone v. Bowdoin, 369 U.S. 643 (1962), and Larsen

» Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)).

Rut as “a device for circumventing federal sovereign immunity

in land title disputes, the officer's suit ultimately did not prove

to be successful.” Jd. There is no sound basis for concluding

that Congress intended to revive for those plaintiffs least

directly affected by the government's interest in real property

the very patchwork of generalized procedural challenges

displaced by the QTA. Cf. Idaho v. Coeur d'Alene Tribe of Idaho.

521 US. 261, 287 (1997) (refusing to extend Ex parte Young, 209

U.S. 123 (1908), to suits challenging a sovereign government s

title to land).

Block, 461 U.S. at 285 (cating Brown, 425 U.S. at

834). It certainly does not point him to them, as the

court of appeals held.

Second, and in any event, the court of appeals’

holding overlooks that, as part of its immunity-

waiving bargain in the QTA, Congress was explicit

that the United States’ full immunity with respect to

trust lands must be preserved intact. Instead, the

court's holding assumed (Pet. App. 14a-23a) that any

limitations on the scope of those actions that might

fall within the QTA’s waiver of immunity—such as

restricting actions to plaintiffs asserting their own

title—-would also qualify Congress’s retention of

immunity for Indian trust lands.

But that is not what the QTA says at all. Because

the QTA was enacted as a single statutory section,

see Pub. L. No. 92-562, § 3(a), 86 Stat. 1176 (Oct. 25,

1972), Congress's direction that “[t]his section” does

not apply to Indian trust lands carved such lands

categorically out of the QTA's terms and expressly

asserted and reconfirmed statutorily the United

States’ full sovereign immunity “from suit by third

parties challenging the United States’ title to land

held in trust for Indians.” Mottaz, 476 U.S. at 842,

843. The provision contains no qualifications or

limitations on the retention of immunity, either

based on the nature of the plaintiffs claim or

otherwise.

Thus, nothing in the text of the QTA supports

limiting that expressly retained immunity to a subset

of challenges to trust title, or qualifying its operation

based on how diluted the plaintiff's connection to the

land is. That is because the retention of immunity is

all about protecting the United States’ legal interest

> F—

in trust lands, which does not vary based on the

remoteness of the plaintiff's legal interest. And the

QTA must “be strictly construed, in terms of its

scope, in favor of thlat] sovereign” interest's

protection. Department of the Army v. Blue Fox, Inc.,

525 U.S. 255, 261 (1999).

Furthermore, because waivers of sovereign

immunity are constitutionally committed to the

Legislative Branch, the judicial presumption that

Congress said what it meant and meant what it said

in its unqualified retention of immunity should apply

with constitutionally redoubled force here. See

Connecticut Natl Bank v. Germain, 503 U.S. 249,

253-254 (1992) (“We have stated time and again that

courts must presume that a legislature says in a

statute what it means and means 1n a statute what it

says there.”); United States Dep't of Energy v. Ohio,

503 U.S. 607, 615 (1992) (waiver of immunity may

not be “enlarge[d] * * * beyond what the language

requires”) (internal quotations and citations omitted).

Third, there is no logical reason that Congress

would have wanted to turn its comprehensive

sovereign-immunity protection for trust lands on and

off based on how remote the individual plaintiffs

connection to the land is. Respondent has never

identified any reason why Congress would have

chosen to permit suits by plaintiffs with no legal

claim to or interest in the trust lands to go forward

and to obtain the drastic injunctive relief of forcing

the United States to surrender its legal title to and

superintending control over the land, while those

asserting actual title to the lands would be flatly

debarred from suing at all.

Congress, after all, adopted the Indian trust lands

exception to protect against any “abridg|[ment] [of]

the historic relationship between the Federal

Government and the Indians without the consent of

the Indians” and to prevent the violation of “written

treaties” and “informal and formal agreements.”

H.R. Rep. No. 1559, supra, at 13 (quoting Sept. 29,

1971 letter of M. Melich, Solicitor, Department of the

Interior); see S. Rep. No. 575, supra, at 4 (same). In

Congress's judgment, “[g]reat nations, lke great

[people], should keep their word.” CIA v. Sims, 471

U.S. 159, 175 n.20 (1985) (quoting FPC v. Tuscarora

Indian Nation, 362 U.S. 99, 142 (1960) (Black, J.,

dissenting)).

That purpose has everything to do _ with

preserving the stability and certainty of the United

States’ trust title, and nothing at all to do with why

the plaintiff seeks to strip the United States of title,

whether to enforce its own title claim or just to

“police” alleged governmental wrongdoing (Pet. App.

6a). Either way, litigation aimed at forcing the

United States to relinquish title or issuing an

injunction that interferes with the United States’

title to or superintending control of land “pose|s}

precisely the threat to ongoing federal” or federally

protected “activities on the property that the Quiet

Title Act was intended to avoid.” Mottaz, 476 U.S. at

847; cf. Minnesota v. United States, 305 U.S. 382,

386-389 & n.1 (1939) (discussing the significance of

the United States’ legal interest in lands held in

trust).’

Fourth, this Court has never given Congress's

express retention of immunity for Indian trust lands

in the QTA the cramped reading adopted by the court

of appeals. In Mottaz, supra, individuals claiming

title to Indian allotments sold by the Secretary to the

United States Forest Service filed suit seeking to void

the sale, 476 U.S. at 836-838. The nature of the

plaintiffs’ interest, however, played no part in this

Court’s analysis. What was critical was that the

United States’ title to the lands was being challenged.

This Court was explicit and unequivocal that the

trust lands provision “retain[s] the United States’

immunity from suit by third parties challenging the

United States’ title to land held in trust for Indians,”

and that “when the United States claims an interest

in real property based on that property's status as

trust or restricted Indian lands, the Quiet Title Act

does not waive the Government's immunity.” /d. at

842-843 (emphases added).

Fifth, even outside the trust lands context, this

Court has emphasized that the QTA focuses on

ensuring the stability of the United States’ title to

and legal interest in lands, not on the nature of the

plaintiffs legal interest. In Block, North Dakota

* Further evidence that the QTA’s operation is keyed to the

United States’ interest, rather than the plaintiff's interest. is

found in 28 U.S.C. § 2409a(e), which provides that jurisdiction

under the QTA “cease(s]” if “the United States disclaims al)

interest in the real property or interest therein adverse to the

plaintiff,” and that disclaimer is confirmed by court order.

sought to quiet title to a riverbed on federal land over

which the United States claimed ownership. 461

U.S. at 277-278. North Dakota sought to avoid the

QTA’s statute of limitations by bringing an “officer's

suit” against “the federal officials charged with

supervision of the disputed area,” rather than a

traditional quiet title action. Jd. at 281. This Court

held, however, that the QTA’s provisions did not

depend on the nature of the plaintiff's cause of action

because “Congress intended the QTA to provide the

exclusive means by which adverse claimants could

challenge the United States’ title to real property.”

/d. at 236 (emphasis added).

Presumably that is why Congress wrote Section

2409a(a) to cover all claims seeking “to adjudicate a

disputed title to real property in which the United

States claims an interest,” without reference to

whether the claim to title rests in the plaintiff, the

United States, or both. 28 U.S.C. § 2409a(a)

(emphasis added). And that makes sense because

any challenges to title held by the United States,

including claims like respondent's, necessarily seek

to quiet title in someone other than the United

States. The challenge to and quieting of title held by

the United States is what triggers the QTA's

sovereign-immunity protections.

The court of appeals’ assumption, moreover, that

Congress mapped onto the QTA some _ rigid

conception of quiet-title plaintiffs overlooks “the wide

differences in State statutory and decisional law” on

quiet title actions at the time of enactment, which

renders the court of appeals’ dispositive reliance on

common-law quiet-title actions “impractical.” H.R.

Rep. No. 1559, supra, at 9-10 (Oct. 6, 1971 letter of

Attorney General); see S. Rep. No. 575, supra, at 6

(same). For example, as even the court of appeals

acknowledged, although the traditional common-law

quiet title action could only be brought by “the holder

of legal or equitable title to land,” Pet. App. 15a, some

(but not all) States had, by 1972, expanded the

actions to allow those not in possession to sue, id.

See John Montague Steadman, “Forgive U.S. Its

Trespasses?”: Land Title Disputes With the

Sovereign—Present Remedies and _ Prospective

Reform, 1972 Duke L. J. 15, 48-49 & n.152 (1972)

(noting “(t]he sharp variety in requirements from

state to state” for bringing a quiet title action).

The QTA, “properly understood and properly

applied by the courts,” thus was designed to “produce

a more stable and predictable system of immunity

from suit than the [prior] doctrine of sovereign

immunity [could] ever attain—because it will be a

system directly and honestly based upon relevant

governmental factors rather than upon a medieval

concept whose real vitality is long since gone.” H.R.

Rep. No. 1656, 94th Cong., 2d Sess. 26 (1976) (May

10, 1976 letter of Assistant Attorney Gen. A. Scalia)

(emphasis added); see S. Rep. No. 996, 94th Cong., 2d

Sess. 25 (1976) (same). Here, barring suits by some

plaintiffs who threaten to disrupt United States title

to Indian lands but not barring the exact same suits

when brought by less-interested plaintiffs, would fail

to provide the required consistent treatment to the

“relevant governmental factor” (id.) underlying

Indian lands immunity.

In holding that the QTA only applies to cases

where the plaintiff seeks to quiet its own title, the

court of appeals stressed (Pet. App. 18a) that

subsection (b) of the QTA prohibits courts from

ordering any relief that would “disturb[]” the United

States’ “possession or control of any real property,”

and instead requires that the government be

permitted the option of making “payment to the

person determined to be entitled thereto.” 28 U.S.C.

§ 2409a(b). But that hurts rather than helps

respondent because there is no reason why Congress

would have wanted the existence of that important

protection of the United States’ legal interests to

disappear simply because the plaintiff has no direct

interest in the real property at issue. What should be

dispositive is the challenge to United States’ title.'”

3. The Administrative Procedure _ Act’s

General Provisions Do Not Supplant the

Quiet Title Act’s Barrier to Relief

Having (wrongly) concluded that the QTA’s

express statutory retention of sovereign immunity for

Indian trust lands was confined to lawsuits asserting

the plaintiffs own title to those lands, the court of

appeals grounded authority for respondent’s action in

the APA’s general waiver of the United States’

sovereign immunity. See Pet. App. 20a-24a. Section

702 of the APA provides that “[t]he United States

‘© Subsection (d) of the QTA requires plaintiffs to identify

the “nature of the right. title, or interest which the plaintiff

claims in the real property.” 28 U.S.C. § 2409a(d). That,

however, plainly presupposes that “rights” and “interests”

asserted by plaintiffs other than title fall within the scope of the

QTA. More importantly, that requirement simply to identify

the claimed legal interest would presumably encompass

situations where the plaintiff asserts legal injury arising from

the fact that title should be quieted in a third party.

may be named as a defendant” in a suit for

declaratory or injunctive relief arising from the

action of a federal government agency. 5 U.S.C.

§ 702.

The court’s discernment of a waiver of immunity

in the APA for suits challenging the United States’

trust title to real property was mistaken in three

respects.

First, by its terms, Section 702 does not “affect{[]

other limitations on judicial review” and, in

particular, it 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. This Court, moreover, has

already specifically held that “{t]he QTA is such an

‘other statute,” within the meaning of Section 702.

Block, 461 U.S. at 286 n.22. In Block, the plaintiff

specifically argued that the APA’s waiver of

immunity in Section 702 overrode the QTA’s barrier

to a non-quiet-title suit for relief. Jd. This Court

“rejecte[d] [that] claim” because, “if a suit is untimely

under the QTA, the QTA expressly ‘forbids the relief

which would be sought under § 702.” Id.

Likewise here, the QTA’s express reservation of

immunity for Indian trust lands, as well as its flat

prohibitions on preliminary injunctive relief and

permanent injunctive remedial orders depriving the

United States of “possession or control of’ real

property, 28 U.S.C. § 2409a(a), (b) & (c), expressly

forbid the very same title-stripping injunctive and

declaratory relief that respondent is attempting to

obtain under the APA. See Block, 461 U.S. at 278

(noting State’s claim for both injunctive and

declaratory relief). Opening up the United States’

trust title to equitable APA actions, mureover, would

also end-run the QTA’s limitations period since

injunctive relief aimed at an ongoing (and thus

continually accruing) harm might be brought outside

the 12-year period set by Congress for affording

repose to federally held lands, see 28 U.S.C.

§ 2409a(g). Cf. Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261, 282 (1997) (noting special sovereignty

concerns caused by directing injunctive relief at

government officials in cases concerning government

lands, because such relief would “bar the State’s

principal officers from exercising their governmental

powers and authority over the disputed lands”).

Indeed, in Block, this Court was explicit that it

would not “allow claimants to try the Federal

Government's title to land” outside the QTA

framework in part because, if it did, “the Indian

lands exception to the QTA would be rendered

nugatory.” 461 U.S. at 285. Thus, both the plain text

of Section 702 and Block proscribe respondent’s effort

to obtain under the APA precisely what Congress

forbade all plaintiffs under the QTA.

Second, the court of appeals’ assumption that

confining the QTA waiver of immunity to plaintiffs

asserting their own title somehow narrows the

express statutory retention of immunity for Indian

trust lands and takes it outside of the APA’s

“expressly or impliedly” proviso is wrong. The court’s

holding seems to assume that, for plaintiffs who are

excluded from seeking relhef under the QTA because

they do not claim title or a sufficient legal interest,

there existed nothing but the backdrop of silently

implied immunity that the APA supplanted. Not so.

Congress was anything but silent with respect to

preserving the United States’ immunity from suits

challenging title to Indian trust lands. Congress was

quite explicit in the QTA that the United States

cannot be made a party defendant to dispute its title

to trust or restricted Indian lands. 28 U.S.C.

§ 2409a(a). The QTA thus is a _ full-throated,

statutory codification of unqualified sovereign

immunity from suits challenging the United States’

title to or legal interest in such land, and a redoubled

prohibition on obtaining injunctive relief or remedial

orders aimed at dispossessing the United States of

trust title. The APA does not upend all of that.

The plain terms of the QTA thus fall squarely

within Section 702’s limitation on the APA waiver of

immunity because, in the course of granting consent

to suit, the QTA expressly and (certainly) impliedly

forbade court review and injunctive relief stripping

the United States of trust title to and superintending

control over Indian lands.

And even if the QTA omits plaintiffs who lack a

legal claim to the real property at issue, that would

mean the opposite of what the court of appeals

concluded. Under Brown and Hinck, it means that

claims like respondent’s remain foreclosed because

the QTA, as the narrower, “better fitted statute,”

““pre-empts more general remedies.” EC Term of

Years Trust v. United States, 550 U.S. 429, 433, 434

(2007) (quoting Brown, 425 U.S. at 834). There

certainly is no sound basis for concluding that those

to whom Congress has denied relief altogether under

the QTA can turn around and obtain an even broader

remedy—one that is expressly foreclosed by the

context-specific QTA statute—by invoking a general

remedial scheme like the APA. “[{R]esort to a genera]

remedy” to obtain the very relief expressly foreclosed

in the narrower, specific remedial statute is

forbidden. /d. at 434.

Third, Congress meant its “expressly or

impliedly” limitation on the APA waiver of immunity

to cover situations precisely like this. When choosing

between two competing drafts of Section 702,

Congress opted for the far broader “expressly or

imphedly forbids the relief’ language over an

alternative that would have preserved immunity only

when “any other statute * * * grant[ing] consent to

suit [for money damages] forbids the relief which is

sought,” S. 800, 94th Cong., 2d Sess. 2 (1976) (as

reported by S. Comm. on the Judiciary, Feb. 21,

1975).

That alternative ran the risk of unduly limiting

the APA’s retention of immunity “in such a fashion as

to raise serious questions concerning the scope of the

new reviewability which would be created.” H.R.

Rep. No. 1656, supra, at 27 (May 10, 1976 letter of

Assistant Attorney Gen. A. Scalia); see S. Rep. No.

996, supra, at 26 (same). Specifically, because

statutes predating the APA’s immunity waiver “ha[d]

been enacted against the backdrop of sovereign

immunity,” it “would [have been] extremely rare” for

those statutes to have expressly barred relief on

immunity grounds. H.R. Rep. No. 1656, supra, at 27-

28; see S. Rep. No. 996, supra, at 26-27 (same).

Preserving immunity when the rehef sought was

“impliedly” forbidden by another statute thus

ensured that, “where statutory remedies already

exist[ed], these remedies will be exclusive.” H.R.

Rep. No. 1656, supra, at 27-28; see S. Rep. No. 996,

supra, at 27 (same). !!

As this Court recognized in Block, 461 U.S. at 286

n.22, the QTA is the archetypal statute falling within

Section 702’s “expressly or impliedly” bar to review.

The QTA is a statute by which “Congress has

consented to suit and the remedy provided is

intended to be the exclusive remedy * * * with respect

to a particular subject matter.” H.R. Rep. No. 1656,

supra, at 12-13 (emphasis added); see S. Rep. No. 996,

supra, at 11-12 (same). Indeed, this Court has long

acknowledged that “Congress intended the QTA to

provide the exclusive means by which adverse

claimants could challenge” the United States’ trust

title to Indian lands. Block, 461 U.S. at 286; accord

Mottaz, 476 U.S. at 841, 843 (applying trust lands

exception).

The court of appeals’ cramped reading of the trust

lands provision (Pet. App. 23a-24a) reads “impliedly”

right out of Section 702 and ignores that, under

Brown, Hinck, and EC Term of Years, any specific

1) Because the text of Section 2409a(a) establishes the

government’s immunity from suit in this case, it is not “strictly

necessary to confirm [this] reading of the statutory text by

consulting the legislative history.” Samantar v. Yousuf, 130 S.

Ct. 2278, 2287 n.9 (2010). Nevertheless, even in the sovereign

immunity context, statutory construction preserving immunity

can sometimes be reinforced by and “benefit[] from [the]

additional information” provided by legislative history “rather

than ignoring it,” id. (quoting Wisconsin Public Intervenor v.

Mortier, 501 U.S. 597, 614-612 (1991)), even though legislative

history alone would never support a waiver of immunity

ungrounded in clear and explicit statutory text, see United

States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992).

limitations on actions under the QTA (such as

requiring plaintiffs to assert their own title to the

land) must be understood as implied prohibitions on

relief for those excluded claimants, not licenses for

them to obtain elsewhere what the “specific remedy”

expressly proscribes. Hinck, 550 U.S. at 506. Cf.

Gozlon-Peretz v. United States, 498 U.S. 395, 407

(1991) (A specific provision controls over one of more

general application.”).

Fourth, there is no sound reason to conclude

that, when Congress amended the APA to provide for

a general waiver of the United States’ immunity in

suits challenging agency action, it meant to

anomalously unravel the QTA'’s comprehensive

prohibition on challenges to the United States’ trust

title solely for plaintiffs lacking any legal interests in

those lands, while continuing to debar rehef for those

with the most direct claims and injuries. Whatever

the individual plaintiffs impetus for bringing suit,

the title-stripping relief sought would “pose precisely

the threat to ongoing federal” or federally protected

“activities on the property that the Quiet Title Act

was intended to avoid.” Mottaz, 476 U.S. at 847.

Beyond that, the limitation of QTA actions to

plaintiffs seeking to quiet title would presumably

reflect a congressional recognition that those

plaintiffs as a class are most directly injured by the

federal government's competing claim and suffer the

greatest hardship if sovereign immunity bars their

suits. See H.R. Rep. No. 1656, supra, at 8; S. Rep.

No. 996, supra, at 7-8. Opening the United States up

to suit by every third party who might wish to

challenge the United States’ legal interest even

though lacking a competing interest in the property

of its own, by contrast, would subject the United

States’ title to a broad swath of litigation and

perpetual instability. It is unlikely that Congress

considered such second-hand interests to present

sufficient hardship to warrant the countervailing

burden litigation would impose on the stability and

certainty of United States title, as well as on third

parties who do have legal interests in the land (like

Gun Lake) and who do not object to the Unned

States’ interest or title.

The court of appeals cast those anomalies and

considerations aside, reasoning that the Congress

that enacted the QTA in 1972 “did not have to

concern itself’ with suits by plaintiffs lacking title

because, prior to the APA, “there was no general

waiver of the government's sovereign immunity for

non-monetary actions.” Pet. App. 2la. But that

rationale is precisely why Congress built the

“expressly or impliedly” limitation into the APA: to

ensure that the APA’s general waiver did not unravel

reservations of immunity that were “enacted against

the backdrop of sovereign immunity.” H.R. Rep. No.

1656, supra, at 27; see S. Rep. No. 996, supra, at 27-

28 (same). Congress did everything it logically could

have been expected to do in 1972 to ensure the

wholesale preservation of sovereign immunity over

title to trust lands and to wall the United States’ title

in such real property off from the rest of the QTA

waiver. Thus, whether or not it would have been

“far-fetched to attribute an intention to the 1972

Congress” to have addressed injunctive actions like

respondent's, Pet. App. 2la (emphasis added), it was

the precise and conscious aim of the 1976 Congress

that enacted the “expressly or impliedly” proviso in

the APA to look back and preserve intact such

comprehensive reservations of immunity as the

QTA’s trust lands provision.

Finally, this Court should not interpret the QTA

“so narrowly as to defeat its obvious intent,” United

States v. Braverman, 373 U.S. 405, 408 (1963), of

preventing disruption and _ uncertainty from

pervading the trust status of Indian lands.

Permitting suit here would defeat the very economic-

development and community-building goals of the

trust process.

At worst, whether Congress intended to allow

less-interested plaintiffs to obtain under the APA

what aggrieved title holders are flatly barred from

obtaining under the QTA is a textually ambiguous

question, and the court’s authorization of respondent

to obtain the very relief that the QTA textually

prohibits “founders on the principle that a waiver of

sovereign immunity must be strictly construed in

favor of the sovereign.” Orff v. United States, 545

U.S. 596, 601-602 (2005).

Il. RESPONDENT LACKS PRUDENTIAL

STANDING TO POLICE THE FEDERAL

GOVERNMENT'S COMPLIANCE WITH THE

LAW BECAUSE HIS ALLEGED INJURIES

ARE DISCONNECTED FROM THE

STATUTE HE SEEKS TO ENFORCE

The requirement that a plaintiff have standing to

sue in federal court encompasses both constitutional

and prudential limitations on the exercise of federal

jurisdiction. The constitutional limitations flow from

Article III's restriction of federal jurisdiction to actual

“case[s]’ or ‘controvers[ies].” Bennett v. Spear, 520

U.S. 154, 162 (1997) (citation omitted). The

prudential limitations reflect “judicially _ self-

imposed™ restrictions that counsel against the

exercise of federa] jurisdiction, even if Article III

standing requirements are _ satisfied. Id; see

Gladstone, Realtors v. Village of Bellwood, 441 U.S.

91, 99-100 (1979) (a plaintiff that has Article III

standing “may still lack standing under the

prudential principles by which” federal courts decline

to exercise jurisdiction).

“Like their constitutional] counterparts,”

prudential limitations on standing are rooted in

concerns about the role of courts and respect for the

separation of powers between and among the

branches of the national government. Bennett, 520

U.S. at 162. Prudential standing doctrine enforces,

as a “matter{] of judicial self-governance,” the

principle that federal courts should refrain from

deciding questions that “other governmental

institutions may be more competent to address.”

Warth v. Seldin, 422 U.S. 490, 500 (1975). Strict

enforcement of prudential standing requirements

thus respects the legislature’s statutory boundaries

by ensuring that the “statutory provision on which

the claim rests properly can be understood as

granting persons in the plaintiffs position a mght to

judicial relief.” Id.

The court of appeals here cast aside the

prudential standing doctrine’s protective and limiting

functions, holding that respondent can use the

Reorganization Act to advance interests that are

protected not by that Act, but by different statutes

respondent did not sue under, just because the court

deemed him an appropriate plaintiff to “police” the

government's compliance with law. That was error.

\. Respondent Falls Outside The

Reorganization Act’s Zone Of Interests

Since this Court's decision in Association of Data

Processing Services, Inc. v. Camp, 397 U.S. 150

(1970), one core requirement of prudential standing

has stood fast: the injury that the plaintiff seeks to

remediate “must arguably fall within the zone of

interests protected or regulated by the statutory

provision invoked in the suit.” Bennett, 520 U.S. at

162; see National Credit Union Admin. v. First Nati

Bank & Trust Co., 522 U.S. 479, 492 (1998) (“NCUA”)

("[T|he plaintiffs interests” must be “among” the

“interests ‘arguably * * * to be protected’ by the

statutory provision at issue.”); Lujan v. National

Wildlife Fed’n, 497 U.S. 871, 886 (1990) (“[T]he

relevant statute” for zone-of-interests purposes “is

the statute whose violation is the gravamen of the

complaint|[.}”). By the same token, prudential

standing does not exist where the plaintiffs asserted

interests are “inconsistent with the purposes implicit

in the statute.” Thompson v. North American

Stainless, LP, 131 S. Ct. 863, 870 (2011).

That requirement of concrete linkage between the

plaintiffs interests and the statute’s aims is

indispensable to ensure that the broad cause of action

licensed by the APA does not devolve into a general

grant of citizen standing to enforce governmental

compliance with the law for anyone with an Article

Ill injury. Prudential] standing’s zone-of-interests

test, in other words, prevents the “disruption” of daily

operations of the federal government that could

result if “every party adversely affected by agency

action [was allowed] to seek judicial review” on the

ground that it exceeded the agency's authority.

Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 397

(1987).

“The essential inquiry” under the prudential

standing doctrine thus “is whether Congress

‘intended for a particular class of plaintiffs to be

relied upon to challenge agency disregard of the law.”

Clarke, 479 U.S. at 399 (quoting Block v. Community

Nutrition Inst., 467 U.S. 340, 347 (1984)) (internal

formatting omitted). In granting respondent

prudential standing, however, the court of appeals

erased that elemental component.

1. Respondent’s Interests Are Divorced from

the Reorganization Act’s Terms and

Operation

In determining whether a plaintiff is “arguably

within the zone of interests protected by a statute,”

this Court “first discern{s]” the statute’s interests and

then “inquire[s] whether the plaintiffs interests

affected by the agency action in question are among

them.” NCUA, 522 U.S. at 492 (internal citations

omitted). Respondent fails that test. His purported

interest in the aesthetic impact of gaming in an

abandoned industrial area bordering a highway and

already zoned for light industrial usage has no

anchor in the Reorganization Act at all, let alone in

the land-into-trust “statutory provision at issuef{.]”

Id.

To begin with, the “overriding purpose” of the

Reorganization Act is to “establish machinery

whereby Indian tribes would be able to assume a

greater degree of self-government, both politically

and economically,” Morton v. Mancari, 417 U.S. 535,

542 (1974), and to encourage tribes to “revitalize

their self-government” and take control of their

“business and economic affairs,” Mescalero, 411 U.S.

at 151. Those Reorganization Act goals “reflected a

new policy of the Federal Government and aimed to

put a halt to the loss of tribal lands through

allotment,” which had been the prevailing federal

policy for over a century. Id.; see County of Yakima v.

Confederated Tribes and Bands of the Yakima Indian

Nation, 502 U.S. 251, 255 (1992) (“The policy of

allotment came to an abrupt end in 1934 with

passage of the Indian Reorganization Act,” which

“{rleturn[ed| to the principles of tribal self-

determination and self-governance.”).

Moreover, the announced purpose of _ the

particular provision under which respondent has

sued—the land-into-trust provision—is to

“authorize[]” the Secretary of the Interior “to acquire”

land and hold it in trust “for the purpose of providing

land for Indians.” 25 U.S.C. § 465. That trust

authority “promotes the policy of protecting and

increasing” Indian lands and “is the capstone” of the

land-related provisions of the [Reorganization Act].”

Felix S. Cohen, Handbook of Federal Indian Law

§ 15.07[1}[a], at 1009-1010 (2005 ed.).

Respondent’s interests have nothing to do with

Section 465’s purposes or the zone of interests it

superintends. He is not an Indian or tribal official

seeking land, and he does not even colorably claim an

interest in advancing tribal development or self-

governance. To the contrary, his avowed aim of

taking land out of the very trust status that Congress

deemed critical to promoting tribal economic

development and_ self-governance demonstrates

adversity to, not consistency between, his interests

and those served by Section 465. Interests that are

“inconsistent” with statutory purposes and “are more

likely to frustrate than to further’ statutory

objectives” do not support prudential standing.

Clarke, 479 U.S. at 397 n.12, 399.

Nor can respondent claim prudential standing on

the ground that the trust decision has a regulatory

impact on him. The Secretary's trust decision does

not regulate him or the use of his own land, neither

does the trust decision displace any preexisting

authority he might have had over his own land or

rights he enjoyed.

Respondent, after all, is not a state or local

government whose own regulatory authority over the

trust lands is cut off or circumscribed by the

Secretary's trust decision. Such governmental

entities are vested with prudential standing to

challenge trust determinations. See Connecticut uv.

United States Dep't of the Interior, 228 F.3d 82, 85-86

(2d Cir. 2000) (“When the Secretary takes land into

trust on behalf of a tribe pursuant to the IRA, several

important consequences [for state and _ local

governments] follow. Land held in trust is generally

not subject to (1) state or local taxation; (2) local

zoning and regulatory requirements; or (3) state

criminal and civil jurisdiction[.]”) (internal citations

omitted); South Dakota v. United States Dep't of the

Interior, No. 11-1745, 2012 WL 75292, at *3 (8th Cir.

Jan. 11, 2012) (Because the trust decision will cause

the County to “lose [amounts] in annual property

taxes,” and deprive] [it] of additional tax revenues,”

“the State has a direct and tangible economic interest

in the agency's decision.”).!*

As entities directly regulated or restricted by

Section 465’s land-into-trust decisions, affected state

and local governments have prudential standing

because their interest in ensuring that the agency

does not entrench upon their preexisting regulatory

authority over lands within their jurisdiction

coincides with and is reflected in the statutory

provisions confining the agency to the regulatory

limits charted by Congress. There thus is the

“unmistakable link” between the state and local

governments’ interests and the objectives of the

statute sued under that prudential standing requires.

NCUA, 522 U.S. at 493 n.6.

By contrast, no consequences at all befall

respondent as a result of the Secretary’s trust

‘2 The regulations implementing Section 465 underscore the

linkage between trust decisions and the interests of affected

state and local governments. The regulations require the

Secretary to afford only affected state and local governments

early notice of a request from a tribe to place land into trust and

to provide them an opportunity to comment on the request even

before the Secretary makes the decision whether to place the

land into trust. See 25 C.F.R. § 151.10 (“Upon receipt of a

written request to have lands taken in trust, the Secretary will

notify the state and local governments having regulatory

jurisdiction over the land to be acquired. * * * The notice will

inform the state or local government that each will be given 30

days in which to provide written comments as to the

acquisition’s potential impact on regulatory jurisdiction, real

property taxes and special assessments.”); see also id. § 151.11.

In addition, affected state and local governments can seek

judicial review of a final agency decision to place land into trust

under 25 C.F.R. § 151.12(b).

determination itself. He is not a_ statutory

beneficiary of the trust process, nor do his property or

personal interests fall within the regulatory span of

the trust decision. The prudential standing doctrine

“denies a right of review” when, as here, the

plaintiffs 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.” Clarke, 479 U.S. at

399.38

1% Much different are cases in which this Court has held

that competitors of entities regulated by statutes had prudential

standing to challenge agency action authorizing the entities to

pursue activities alleged to be in excess of what the statute

allowed. See Data Processing, 397 U.S. at 155 (association of

data processing businesses had prudential standing to challenge

agency action authorizing national banks to engage in

competing data processing activities); /Jnvestment Company

Institute v. Camp, 401 U.S. 617 (1971) (association of

investment companies had prudential standing wo challenge

agency action authorizing national banks to operate competing

investment funds); Clarke, 479 U.S. at 403 (association of

securities brokerage firms had prudential standing to challenge

agency action authorizing national banks to provide competing

brokerage services); NCUA, 522 U.S. at 493 (banks had

prudential standing to challenge agency action allowing

formation of credit unions that competed with banks for

depositors). In each of those cases. Congress intended the

relevant statutes to legislate against the very competition that

plaintiffs sought to reign in; thus, the plaintiffs’ competition-

limiting interests coincided with the statutory objectives. By

contrast, there is no indication that Congress intended for the

Reorganization Act’s land-into-trust provision to remediate

private individuals’ aesthetic objections to gaming.

2. The Reorganization Act Does Not Address,

Regulate, or Remediate Respondent’s

Claimed Injuries

Respondent’s goal of combating gaming is

completely ungrounded in the Secretary's trust

decision under Section 465 of the Reorganization Act.

The Secretary’s decision to put land into trust does

not turn on any particular use of the land, gaming or

otherwise. See 25 C.F.R. § 151.3. Instead, the trust

decision turns on the Secretary’s determination that

the trust placement wiil promote the Reorganization

Act's aims of “facilitat[ing] tribal self-determination,

economic development, or Indian housing.” Jd.

While the Secretary noted in this case that the

land would be eligible for gaming, 70 Fed. Reg.

25,596 (May 12, 2005), that was simply to kill two

birds with one stone by making the separate IGRA

gaming determination also sought by Gun Lake at

the same time as the trust decision. See Admin. Rec.

0001514-0001518 (indicating that Secretary’s

decision to place land into trust is separate from

determination that land is elgible for gaming). The

Secretary's independent trust decision did not turn

on that consideration, however, nor was it

conditioned in any way on Gun Lake’s subsequent

use or non-use of the land for gaming. Indeed, only

approximately 25% of the land placed into trust is

used for the gaming facility, C.A. App. 540, and

respondent asserts no legal injury or objection to how

the balance of the land held in trust is being used.

The Secretary's decision to place the land in trust

itself thus has no impact on respondent or his

asserted interests. The fact that title to the land was

conveyed to the United States, and that the United

States has superintendence over the land, does not

constrain his use of his own property, impede the

exercise of any of his personal mghts, or occasion the

aesthetic injuries of which he complains. Nor has he

articulated any injury associated with 75% of the

land held in trust or the other governmental,

cultural, and economic uses of the trust land.

Rather, respondent’s gaming and_ aesthetic

objections are not to the Secretary’s trust decision

itself, but rather to one particular usage of a small

portion of the land by Gun Lake after the land was

placed into trust. But scouring the Reorganization

Act, let alone Section 465, from top to bottom would

uncover nothing that polices how land is used once

placed into trust. The Reorganization Act provides

absolutely no mandate to assess or standards for

evaluating the propriety of gaming, gaming impacts,

or the environmental concerns that respondent

raises. If the prudential standing doctrine’s zone-of-

interests requirement means anything, it means that

a plaintiff cannot use a statute to try and remediate

asserted interests that the statute itself does not

even mention, let alone establish relevant criteria for

their protection or enforcement.

Instead, Congress has tasked different statutes,

like IGRA and the National Environmental Policy

Act, with addressing precisely the concerns that

respondent raises. See 25 U.S.C. § 2719(b)(1)(A)

(IGRA requires the Secretary, when considering

whether to approve a tribal gaming operation, to take

into account the effects of the proposed operation on

the “surrounding community”); Citizens Exposing

Truth About Casinos v. Kempthorne, 492 F.3d 460,

464-465 (D.C. Cir. 2007) (community group had

prudential standing to sue under IGRA provision

requiring Secretary of Interior to consider whether

operation of a casino on land placed into trust would

“not be detrimental to the surrounding community”)

(citation omitted); Taxpayers of Mich. Against

Casinos v. Norton, 433 F.3d 852, 855, 860 (D.C. Cir.

2006) (taxpayer group, including persons living

adjacent to a proposed Indian gaming site, had

prudential standing to sue under National

Environmental Policy Act provision § requiring

Secretary of Interior to consider environmental

impact of decision to place land into trust for tribe).

But respondent chose not to sue under those

statutes. And for good reason. The community group

that respondent supported in the MichGO litigation

already had brought National Environmental Policy

Act and IGRA challenges to the Secretary’s decision

to place the Bradley Tract into trust, and those

claims were rejected by both the district court and

the court of appeals. MichGO, 525 F.3d at 28-33.

Neither the APA nor prudential standing principles

permits plaintiffs to treat the Reorganization Act like

an open vessel into which any and all citizen

objections under any laws can be poured and

litigated—or, actually, relitigated a second time.

The court of appeals deemed the Reorganization

Act and IGRA to be sufficiently “linked” (Pet. App.

8a) to bypass the settled prudential standing rule

that the plaintiffs interests must coincide with “the

statutory provision * * * invoked in the suit,” Bennett,

520 U.S. at 162. See Pet. App. 8a. That was wrong.

First, the Court has only employed an “integral

relationship” bridge to support prudential standing

when the two statutory provisions are within the

same statute. Air Courter Conference, 498 U.S. at

529-530.

Indeed, the court of appeals’ invocation of Air

Courier Conference (Pet. App. 9a) to support its

prudential-standing merger of [GRA with the

Reorganization Act is hard to understand because

that case expressly precludes the very sort of

statutory “leapfrog[ging]” that occurred here—that is,

importing interests under one statute to support

prudential standing under another. 498 U.S. at 530.

Much like respondent, the plaintiffs in Air Courier

Conference argued that they had prudential standing

to sue under the Postal Express Statutes because

those laws were reenacted as part of another law, the

Postal Reorganization Act, the zone of interests of

which the plaintiffs fell within. Jd. at 528-529.

This Court flatly rejected that argument, warning

that “[t]o adopt” the plaintiffs’ argument would make

the Postal Reorganization Act the “relevant statute”

for purposes of the zone-of-interests inquiry, even

though the plaintiffs did not sue under that law and

even though it was “united” with the Postal Express

Statutes “only by the fact that [both laws] deal with

the Posta] Service.” Air Courier Conference, 498 U.S.

at 529-530. “It would be a substantial extension” of

prudential standing law, the Court explained, to

“defin[e] the ‘relevant statute” through reference to

an entirely different statute from the statute on

which a plaintiff sues. Jd. at 530. To do so “could

deprive the zone-of-interests test of virtually all

meaning.” Id.

So too here. “[T]he fact that [the Reorganization

Act and IGRA both] deal with” Indians and their

land, Air Courier Conference, 498 U.S. at 529-530,

cannot make up for the substantia! gap between the

injuries respondent alleges and the terms, purposes,

and remedial reach of the Reorganization Act. Cf.

Bennett, 520 U.S. at 175-176 (plaintiff cannot rely on

“overall purpose” of a law to establish prudential]

standing; focus is on the “particular provision of law

upon which the plaintiff relies”). Particularly here,

where the leapfrogging follows a failed challenge

under the statutes that do address respondent’s

concerns, it would turn the zone-of-interests test

inside out if it were used to make one statute a

proper vehicle for refighting already-rejected claims

governed by an entirely different statutory scheme.

That would transform prudential standing from a

rule designed to respect congressional lmitations

into a mechanism for hybridizing laws that Congress

chose to enact as distinct statutory schemes.

Second, the court of appeals’ newly minted, inter-

statute “linkage” test for prudential standing is

standardless and inadministrable. It offers no

workable rule for determining when statutory lines

should or should not be judicially blurred for

prudential standing purposes. Nor could it. Here,

the relevant congressional judgment is the legislative

determination to house the rules for gaming in a

different statute with different rules and different

procedures helmed in part by a different agency (the

National Indian Gaming Commission). 25 U.SC.

§ 2702. At bottom, the court of appeals erred by

attempting to make the same that which Congress

had made different.

Third, yet another problem with trying to

conglomerate statutes to establish prudential

standing is that it creates a gap between the injuries

alleged and the ability of judicial enforcement to

redress those injuries. The requirement that

plaintiffs demonstrate that judicial relief will redress

the injuries asserted is a core requirement of Article

Ill standing. See, e.g., Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 41-42 (1976). Prudential

standing requirements must reinforce that judicial

redressability requirement, just as they closely

enforce Article III's injury requirement.

When the plaintiffs injury and the interests

served by the statute sued under coincide, the

remedial sufficiency of the law tends to follow from

the statute’s zone of interests. The two go hand in

hand. For example, a plaintiff would have prudential

standing to bring an APA challenge for alleged

violations of IGRA in connection with agency

approval of a gaming license because, if successful,

the plaintiffs claim would redress injuries from

gaming by preventing or halting the gaming

operation.

Not so when plaintiffs are permitted to hopscotch

across different statutes to establish prudential

standing. The decision to place land into trust under

the Reorganization Act does not license (or prohibit)

gaming. Gun Lake’s authority to conduct gaming

arose from separate decisions by the federal

government, including the National Indian Gaming

Commission under IGRA, and the state government

through its adoption of a gaming compact with Gun

Lake. Respondent challenges neither of those

decisions.

Furthermore, stripping the United States of its

trust title by taking the land out of trust is a

blunderbuss response to gaming and _ aesthetic

injuries that Congress never intended or designed the

Reorganization Act to redress. To begin with, taking

the land out of trust would not independently

determine whether gaming could go forward. It

would say nothing about whether a private, non-

tribal company could continue to operate this

profitable casino that is providing critically needed

economic rejuvenation in Michigan. That, as well as

the ability of Gun Lake to obtain state authorization

to game off of trust lands, would be dictated entirely

by state law, not the Reorganization Act or any

federal law.

This Court has long held, however, that standing

cannot be established when relief depends critically

on the actions of third parties. See Steel Co. v.

Citizens For A Better Env't, 523 U.S. 83, 106 n.7

(1998): Simon, 426 U.S. at 41-42. Prudential

standing to enforce a federal law, likewise, should

exist only when the remedy is provided directly by

the statute being invoked. That is because, as a

federal law, redressability should exist uniformly

across the Nation rather than turn on and off based

on the vagaries of state law.

Fourth, de-trusting the land and surrendering

the United States’ title far overshoots any alleged

environmental or gaming injuries, especially given

that nearly three-quarters of the land at issue is not

used for the casino. Tellingly, the National

Environmental Policy Act allows tribes and the

government to address that statute’s environmental

concerns through more targeted and_ tailored

adjustments 1n casino operations. It is not the all-or-

nothing decision that using the Reorganization Act’s

trust authority would inflexibly impose.

The overreaching and heavy-handed effects of

taking land out of trust, its repercussions for the

many unchallenged tribal development and

governmental operations on the majority of the trust

land, its wooden inflexibility in _ resolving

environmental objections, and the harm it would

inflict on surrounding communities that depend on

the stability of the United States’ title for their own

governmental and business planning, all underscore

that Congress never intended the Reorganization Act

to redress interests like respondent’s that are so

disconnected from the Act’s text, operative provisions,

and purposes.

In short, just as respondent has attempted to use

the APA to obtain relief that Congress expressly

forbade in the QTA, so here is respondent attempting

to wring out of the Reorganization Act a far more

suffocating and ill-fitted remedy than Congress

intended under the on-point statutes, IGRA and the

National Environmental Policy Act, that actually do

address the injuries respondent alleges. Given that,

it cannot “reasonably be assumed that Congress

intended to permit” respondent to sue for an

oversized remedy to address injuries foreign to the

terms and purposes of the Reorganization Act’s land-

into-trust provision. Clarke, 479 U.S. at 399.

Prudential standing principles have never permitted

piggybacking statutory schemes as a means of

alchemizing legally foreclosed claims under one

statute into a viable APA claim under another

statute that—unsurprisingly—is_ ill-adapted to

redress harms that the law does not address.

B. Respondent’s Interest In Policing

Compliance With Federal Law Does Not

Cure His Prudential Standing Problem

The court of appeals held that, regardless of

whether the Reorganization Act was “intended to

benefit” respondent, prudential standing properly

devolved on him because his interests’ are

“cognizable,” Pet. App. lla, and he “can be expected

to police the interests that the statute protects, ” id.

at 6a. The court reasoned that respondent “can be

expected to police” the Secretary's decision to place

lands in trust because “his stake in opposing [Gun

Lake’s] casino is intense and obvious.” /d. at lla.

Rather than cure respondent’s prudential standing

problem, that makes it worse by effectively collapsing

prudential and Article III standing. If all prudential

standing requires is a cognizable Article III injury

and a law-enforcing motivation, then prudential

standing will be reduced to a jurisdictional Maginot

line.

The requirement that respondent's injuries be

“cognizable” (Pet. App. lla) is no protection. Article

III already requires that. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 562-563 (1992). The whole

point of prudential standing is that it requires more.

See. e.g., National Wildlife Fed’n, 497 U.S. at 883

([T]he failure of an agency to comply with a

statutory provision requiring ‘on the record’ hearings

would assuredly have an adverse effect upon the

company that has the contract to record and

transcribe the agency’s proceedings; but since the

provision was obviously enacted to protect the

interests of the parties to the proceedings and not

those of the reporters, that company would [not have

prudential standing under the statute].”).

Nor is there any administrable substance to the

court of appeals’ supposition that it’ can

independently discern whom Congress expected to

“police” agency compliance with the law and whom it

did not. The whole reason that prudential standing

doctrine has long insisted on alignment between the

plaintiffs asserted interests and the statute’s textual

zone of interests and remedial reach is because that

is the best evidence of whom Congress wanted to

enforce its laws and, more specifically, whether

Congress intended to “grant[{] persons in the

plaintiff's position a right to judicial relief.” Warth,

422 U.S. at 500. Having unplugged its prudential

standing analysis from that traditional inquiry,

however, the court of appeals offered no explanation

of how courts are supposed to independently

determine which plaintiffs with arguable Article II]

injuries have—and which do not have—a sufficiently

“intense and obvious” interest (Pet. App. 11a) in the

law to pass that court’s prudential standing

threshold.

In addition, the court’s emphasis on respondent’s

“intense” desire to “police” agency compliance with

the law cannot be reconciled with the ample Article

Ill precedent holding that “the essence of standing ‘is

not a question of motivation but of possession of the

requisite * * * interest.” Valley Forge Christian

College v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464, 486 n.21 (1982). See

also Defenders of Wildlife, 504 U.S. at 576 (Article III

standing cannot be predicated on a plaintiffs interest

in ensuring “executive officers’ compliance with the

law’). Nowhere does the court explain why a factor

considered irrelevant to the Article HI] standing

question could play such a central role in establishing

prudential standing.

Finally, the court of appeals’ reliance (Pet. App.

J7a-8a) on the Interior Department notice regulation

implementing Section 465 was misplaced. See 25

C.F.R. § 151.12(b). The court reasoned that, because

the regulation affords “affected members of the

public” an opportunity to seek judicia) review before

the Secretary places land into trust, the regulation

signifies that “individuals like [respondent] who live

close to proposed gaming establishments” fall within

the Reorganization Act’s zone of interests. Pet. App.

Sa-Ya.

That far overreads the regulation. It simply

allows APA challenges to be brought under any

properly invoked statute, not necessarily the

Reorganization Act, before the QTA cuts off

jurisdiction. 61 Fed. Reg. 18,082 (April, 24, 1996)

(notice requirement “allows interested parties to seek

judicial or other review under the Administrative

Procedure Act”). Thus, had respondent complied

with the regulation’s 30-day window, the regulation

would have allowed him to file an APA challenge

under IGRA before title to the Bradley Tract

transferred to the United States and the QTA

attached, because his alleged injuries appear to fall

within IGRA’s zone of interests.

The regulation thus does nothing more than leave

the window to judicial review open for those who

otherwise have standing to bring suits. It certainly

was never meant to transmogrify all legal objections

to a trust decision under other statutes into viable

and remediabie claims under the Reorganization Act.

Indeed, in its Federal Register notice promulgating

the regulation, the Interior Department did not even

refer to judicial review under Section 465. The only

basis for judicial review referenced in the notice was

a possible constitutional challenge under the “non-

delegation” doctrine. See 61 Fed. Keg. 18,082 (April

24, 1996) (citing South Dakota v. United States Dep't

of the Interior, 69 F.3d 878 (8th Cir. 1995), cert.

granted and judgment vacated sub nom. Department

of the Interior v. South Dakota, 519 U.S. 919 (1996)).

Likewise, the Secretary's announcement of her

decision to place the Bradley Tract into trust under

Section 465 did not refer to a possible Section 465

challenge or in any way regulatorily expand the

Reorganization Act’s zone of interests. Rather, the

announcement focused on the proposed use of the

land for a gaming operation and concluded that such

a use of the land complied with IGRA and the

National! Environmental Policy Act. 70 Fed. Reg. 25,

596 (May 12, 2005). Thus, if anything, the

announcement invited challenges under those two

statutes, which is how the plaintiff in MichGO

proceeded. 525 F.3d at 26.'4

14 The court of appeals also cited to 25 C.F_R. § 151.10(c) &

(f). Pet. App. 10a. But the considerations listed in Section

151.10 simply flesh out the factors the Secretary will weigh in

bis or her discretion in determining whether the trust

acquisition would fulfill the statutory purposes outlined in 25

C.F.R. § 151.3. “The purposes for which the land will be used.”

25 C.F.R. § 151.10(c), bear obvious relevance to determining

whether the trust acquisition actually will “facilitate tribal self-

determination, economic development, or Indian housing,” 25

C.F.R. § 151.3(a)(3). Likewise, the consideration of

Beyor.d that, the prudential standing doctrine

requires a plaintiff challenging agency action under a

statute to fall within the zone of interests of the

“relevant statute.” National Wildlife Fed’n, 497 U.S.

at 883. A plaintiff cannot establish prudential

standing by dint of a regulation because the zone-of-

interests requirement enforces and_ respects

Congress’s legislative judgments, not Executive

Branch policies. If Congress did not intend to include

a plaintiff within the zone of interests of a statute, an

administrative agency cannot amend the statute’s

reach via regulation. See American Fed’n of Gov't

Employees v. Rumsfeld, 321 F.3d 139, 145 (D.C. Cir.

2003) (“[R]egulations * * * are not statutes, and thus

cannot confer [prudential] standing[.}”).!°

“jurisdictional problems and potential conflicts of land use,” 25

C_F_R. § 151.10(f), equally informs the tribal development goals

and a balanced assessment of the acquisition’s impact on the

“state and local governments having regulatory jurisdiction over

the land to be acquired,” 25 C.F.R. § 151.10. which is a central

function of that regulation. Because private individuals, unlike

state and local governments, are not given advance notice of

tribal applications for trust acquisitions, this regulation does

not create a mandate for objections like respondent's to dictate

the Secretary's initial trust decision. Even less so could it

control the only relevant question here, which is whether the

Reorganization Act's statutory provisions and purposes coincide

with respondent’s private gambling and aesthetic interests.

‘+ While Gun Lake did not dispute respondent's Article IIT

standing at the pleading stage. Gun Lake intends to do so

should this case proceed any further procedurally. See

Defenders of Wildlife. 504 U.S. at 561 (“At the pleading stage,

general factual allegations of {Article III] injury resulting from

the defendant's conduct may suffice, for on a motion to dismiss

we presumle] that general allegations embrace those specific

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Conly J. Schulte

Shilee T. Mullin

FREDERICKS PEEBLES &

MORGAN LLP

1900 Plaza Drive

Louisville, CO 80302

(303) 673-9600

Amit Kurlekar

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

580 California Street,

Suite 1500

San Francisco, CA 94104

February 7, 2012

Respectfully submitted.

Patricia A. Millett

Counsel of Record

James Meggesto

James E. Tysse

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

1333 New Hampshire

Ave., NW

Washington, DC 20036

(202) 887-4000

pmillett@akingump.com

Michael C. Small

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

2029 Century Park East,

Suite 2400

Los Angeles, CA 90067

facts that are necessary to support the claim. In response to a

summary judgment motion, however, the plaintiff can no longer

rest on such mere allegations, but must set forth by affidavit or

other evidence specific facts{.]") (internal citations omitted).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.