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

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RECORD ——-

AND 5 es

BRIEFS fee

Nos. 11-246 & 11-247 “iis:

IN THE

Supreme Court of the United States

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

INDIANS, PETTTIONER

Vv.

DAVID PATCHAK, ET AL.

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

PETITIONERS

Vv.

DAVID PATCHAK, ET AL.

On Writ Of Certiorari

To The United States Court Of Appeals

For The District of Columbia Circuit

BRIEF FOR RESPONDENT DAVID PATCHAK

BRIAN J. MURRAY DANIEL P. ETTINGER

JONES Day Counsel of Record

77 West Wacker MATTHEW T. NELSON

Chicago, Iinois 60601-1692 s,aron D. LINDSTROM

NICOLE L. MAZzocco

_~ —< dais WARNER Norcross & JubDn LLP

ONES DAY >

11i Lyon Street N.W.

222 East 41st Street "

New York, New York 10017- 900 Fifth Third Center

6702 - Grand Rapids, MI 49503

(616) 752-2000

dettinger@wnj.com

Counsel for Respondent David Patchak

Library of Congr.

Lew Litrery

QUESTIONS PRESENTED

1. The Administrative Procedure Act waives st-

ereign immunity to allow citizens to challenge

agency actions that violate federal law. Plaintiff

David Patchak alleges that the Department of the

Interior’s (DOI) decision to take land into trust for

the Gun Lake Band violates §465 of the Indian Reor-

ganization Act (IRA) because the Band was not un-

der federal jurisdiction in 1934, as required by this

Court in Carcrert v. Salazar, 129 S. Ct. 1058 (2009).

The Band therefore is not eligible to have land taken

into trust under the IRA.

Although the Quiet Title Act (QTA) provides sov-

ereign immunity for quiet-title actions concerning

Indian lands, Patchak is not bringing a quiet-title

action, as he asserts no ownership interest in the

land at issue.

The question presented is whether the APA's

sovereign-immunity waiver applies, or whether the

QTA’s sovereign-immunity provisions impliedly bar

Patchak’s claim even though his claim is outside the

scope of the QTA.

2. Section 465 of the IRA and its implementing

regulations limit the DOI’s discretion in deciding

whether to take land into trust. Petitioners do not

contest Patchak’s constitutional standing, but claim

he is not within the IRA’s zone of interests and

therefore cannot challenge the DOI’s land-in-trust

decision.

The question presented is whether a plaintiff liv-

ing in a community that will be negatively affected

by the DOI’s land-in-trust decision has prudential

standing to enforce the IRA’s limitations on land-in-

trust decisions.

Statutes and regulations involved.............................. ]

ara dciceenesecescsbhsadsescosenesscceesecees 1

a scpubidadsvenineonncnscsonses 9

ea nlipsesanasecenserescoccccese 12

1. The Quiet Title Act’s sovereign-

immunity provisions do not apply to

oo os snccccnccnsenasesesesnnasees 12

A. Patchak’s challenge to unlawful

agency action falls squarely within

the APA’s waiver of federal

sovereign immunity ................:cc.:seeeeeee es 12

B. Patchak’s claim cannot be brought

under the Quiet Title Act................... 14

C. The Quiet Title Act does not

preclude Patchak’s APA claim........... 18

D. The Quiet Title Act’s sovereign-

immunity provisions do not apply

to Patchak’s APA claim....................... 22

E. Petitioners’ application of the

Quiet Title Act allows judicial

review of land-in-trust decisions

only at the pleasure of the DOT............. 35

Il. Patchak’s substantial interest in this

case satisfies prudential standing............ 36

A. Patchak falls within the zone of

interests of the Indian

Reorganization Act.............................. 39

B. Patchak’s concerns are within the

zone of interests of the Indian

Reorganization Act when

considering the integrally related

Indian Gaming Regulatory Act .......... 48

TABLE OF CONTENTS

TABLE OF CONTENTS—Continued

CI 25. ccacsknsesdccesiesenmmesssnasccatmamsratsianteieel 54

Appendix

Statutory Provisions Involved

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25 U.S.C. $2719......... Jeie absuesoas sniiniandepieliebinin sec asaaaea 3a

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Regulations Involved

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Se es SINE ssesttiagesecscectesnsuscaternesnensioninnees 12a

TABLE OF AUTHORITIES

Federal Cases

Abbott Laboratories vy. Gardner,

OR Dt ne us

Arr Courter Conference of America Vv.

American Postal Workers L’nion,

ge eee

Alleman v. United States.

372 F. Supp. 2d 1212 (D. Or. 2005).......

Arnold Tours, Inc. v. Camp,

SD UE BE A iserscdictecncesesncsccenesesness

Association of Data Processing Service

Organizations, ine. v. Camp,

Be es Re A TIED eiiicentedsencecccnczeseseessens

B & B Trucking, Inc. vy. U.S. Postal

Service,

406 F.3d 766 (6th Cir. 2005)..................

Begnerv. United States,

428 F.3d 998 (11th Cir. 2005)................

Bennett vy. Spear,

ee Pais BOP IT Pcitcncsninnsionninnnneinnnndiiwes

Block v. Community Nutrition Institute,

Re Bee ee iiiistcinttnanncntsniecisiidecees

Block v. North Dakota,

OF. ere OR ives sectcnctcssccnsenssarenses

Bowen vy. Michigan Academy of Family

Physicians,

So Ge Ee CR isssctncininceivcsnnienienininn

Page(s)

42, Bi, 23

aid iivecnesa

Ree ar 29

TABLE OF AUTHORITIES—Continued

Page(s)

Branch v. Smith,

IF Oh oe 49

Brown v. General Services

Admunistration,

425 U.S. 820 (1976)...... So NN oct SELIM TE AE SR Pe Fe 20

Califano v. Sanders,

Ee Ors IE IE O Pvcoccdocncnscecnccaeedecvosancs ae See IE 12

California v. Arizona,

I a a 16

California v. United States,

I ai eee

Carcieri v. Salazar,

ee es ee IIE ceicteciisnamniteritnnsamcetunsunios passim

Chevron, U_S.A., Inc. v. Natural Resource

Defense Council,

og ES | ene 10, 43, 44

Clarke v. Securities Industry Association,

oS _=g ae eee passim

Department of Interior v. South Dakota,

ee ee a onabiacinaonsdekiuissmmiein 35

Dolanvy. U.S. Postal Service,

ns Nn 45

Evers v. Astrue,

536 F.3d G51 (7th Cir. DOOB)..............ccccccccceccscces. 29

Federal Election Commission v. Akins,

ee Be 45

TABLE OF AUTHORITIES—Continued

Page(s)

First National Bank tn St. Loursy.

Afissouryi.

ee cee aientanensuuuiiunintin 48

Florida Department of Business

Regulation v. Department of Intertor.

768 F.2d 1248 111th Cir. 1985).................... eneniaee

Friends of Panamint Valley v.

Kempthorne,

499 F. Supp. 2d 1165 (E.D. Cal. 2007)................ 17

Grupo Datatflux vy. Atlas Global Group.

LP.

EE, EA Se CD clitvnnececiispstinnenencntesomionsseuméaness 24

Hinck v. United States.

ee ee cupenipnicwecsumminssncesen 20

Holly wood Mobile Estates Ltd. v.

Seminole Tribe of Florida,

oR + Bl Teyl Po me |) ) fer 43

Investment Company Institute v. Camp,

A Ee Ee CUE Rerevinteinicacgnncinnestinionaiesensesi 46, 47

Japan Whaling Association y. American

Cetacean Society,

ee Se ia iiotdsiinicessatncnemnensonnemenenenen 36, 52

Ainscherfiy. United States,

CD ae BD 6 RE Ce. BTID onc cccnceccecccceceeccsvcsssss 17

Lac Courte Oretlles Band of Lake

Superior Chippewa Indians of

Wisonsin v. United States,

ee ae Ce Oe a, Bi vocccececesccccconnsietecsescnts a0

TABLE OF AUTHORITIES—Continued

Page(s)

Lujan v. National Wildlife Federation,

nt suauateunmaiiee 45

Megapulse, Inc. v. Lewis,

Gia Fe Wee taeG). Cie. BOGBBD).........cccccccc00s00.5: 28, 29

Metropolitan Water District of Southern

California v. United States,

SSO F.BS LSD (Gta Cir. 1BB7)......0.ccevccccccccccecccecssece

Michigan Gambling Opposition v.

Kempthorne,

ee Bg Cas CIs ED herccensvenseevcinosevipinwenns 43

Michigan v. U.S. Army Corps of

Engineers,

667 F.3d 765 (7th Cir. 2011)....................25, 31, 32

Morton v. Mancart,

I sda geumanroueieel 51

National Credit Union Administration v.

First National Bank & Trust Co.,

OS Ey Lk | eee 37, 38, 46, 47

Nebraska Public Power District v. United

States,

GO F.2e 1SST (Hee. Cie. BORON ........ccccccccccccccccscsss 29

Neighbors for Rational Development v.

Norton,

379 F.3d 956 (10th Cir. 2004)..........................2.2- 32

Normandy Apartments, Ltd. v. U_S.

Department of Housing and L’rban

Development,

554 F.3d 1290 (10th Cir. 2009)........................000 29

Vill

TABLE OF AUTHORITIES—Continued

Page(s)

Samantarv. Yousef

Us a ec anemeneeione 45

Sharp v. Weinberger,

a eseiuecebens 28, 29

Thompson v. North American Stainless,

LP,

I i I leat 37, 45

TOMAC vy. Norton,

193 F. Supp. 2d 1982 (D.D.C. 1982)..........0......... 52

Tucson Airport Authority v. General

Dynamics Corp.,

136 F.3e G41 (Otis Cir. 1GBB)......ccccccccccceccccscccessesss 29

Tudorv. Members of Arkansas State

Parks, Recreation & Travel

Commussion,

$f 8: BF) fie | ), | eeneennnee 17

United States v. Freeman,

8 How. 566, 11 L.Ed. 724 (1846).......................... 49

United States v. J & E Salvage Co.,

55 F.3d 965 (4th Cir. 1006).................................. 29

United States vy. Morton,

RE OD ee ae a eS PTR 45

L’'nited States v. Mottaz,

a dl ce mialialae passim

United States v. Nourse,

RR Se ey Ee a Ry ee 13

United States v. Olson,

I 32

TABLE OF AUTHORITIES—Continued

Page(s)

lp State Federal Credit Union v. Walker.

Be Fe SE Ce CA. BOD cnncvicovcesccccseseccocccssecsees 29

Vertzon Marviand, Inc. v. Public Service

Commussion,

Se eG SI iheccaitdicsas ciccivciakacenesasidbnaaiaccias 19

Warth v. Seldin,

I EN I sd iiiriiiticdsustiss sated raadbcnekeie 47

Federal Statutes

BPs IE ciiets Neieibhaminiiitiiptsinlidantenste lilies. passim

Te ES HIE celiacinkAtheninwinerdgstieskidecbaimen ice Cone eer 4

Ue Rs MII a Aisiciliceharindiniidepiedamte ae occa er 48, 49

Be ipa: TUE Lasher sisters secainivsaduasunusinslbnipesionaaenaccatas ead 48, 49

ee ie CIEE eaicd cei initccsntioncencedcanisiguiineanonanuieianiueaiediaimal 46

EP SITE be dns iciniidchaicesnotteseppneiaanossrdas uideanekeueden 1, 44

Be Ns IID trict vines nacicewsecscestosineprisniiesmessncccaimia passim

BD a I iikicnexnenancnndticunsossienniliotadinrsutnciontteae 3, 4,51

SS A ia cndscanccainosisntcndaneiennagisasiin<anied 1, 11, 50, 53

Se ae Ee esiticneaicaiditpenntieicientniseniadiipesinsiphats 1, 15, 16

Sa I eh csteicsitan sdesasiedicdeceaanianehasesdststbinalbentadesnte 1,16

ES ey Oe EL passim

ea IE ini ssicsrivienlincestapnubinhadeiadetbaciucsensbsacidslelanbbodce? 33

a. TE aiiineensttiadandtlenittcidesahictacotiaasdtansiada 45

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Rules

EE ee a Cee eT NRE ME eer 2

GGA TERIIE RES od SA VEO Ronen AA, We Bee TEED 2

I I cn a a aa 1

Be a aes TM cinsiiciccdsanacnilitcnnistiticicdccntendctanepuicavien passim

I Tee MAINE ies i cia ee ek 4,6, 42

Other Authorities

121 Cong. Rec. S16576 (daily ed. Sept. 24,

STITT c dancecacans dcdaneabbapestidenedcudmdsqdescdrmnnnnededindédiiaenian 26

45 Fed. Reg. 62,036 (Sept. 1, 1980) ...............000000000.. 42

62 Fed. Reg. 38.113 (June 23, 1997)...................00..6... 1

63 Fed. Reg. 56,936 (Oct. 14, 1998) ..........ccccccccceseeeeee. 2

70 Fed. Reg. 25,596 (May 13, 2005)...................... 4,42

BLE. Rep. No. 94-1666 (1076)............0ccccccoscoosccsccccsace 12

S. Rep. No. 94-996 (1976) ......ccccccccceeceeeeesseseeeseeee 23, 26

BRIEF FOR RESPONDENT DAVID PATCHAK

STATUTES AND REGULATIONS INVOLVED

Relevant portions of the statutes and regulations

involved in this case—including 5 U.S.C. §702: 28

USC §$§1346, 1402, and 2409a; 25 U.S.C. §$$463, 468.

and 2719; and 25 C.F.R. Part 151—are reproduced in

the appendix to this brief.

STATEMENT

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

Pottawatomi Indians, commonly known as the Gun

Lake Band, was not federally recognized when Con-

gress enacted the Indian Reorganization Act (IRA) in

1934. 62 Fed. Reg. 38,113, 38,113 (June 23, 1997).

For nearly 100 years before the IRA’s enactment, the

Band affirmatively avoided the United States’ juris-

diction. This history is significant because in Carci-

eri v. Salazar, 129 S. Ct. 1058 (2009), this Court held

that the IRA allows the Department of the Interior

(DOI) to take land into trust only for “those tribes

that were under the federal jurisdiction of the United

States when the IRA was enacted in 1934.” /d. at

1068.

In 1839, the Band placed itself under the protec-

tion of an Episcopalian mission to avoid the federal

government’s plan to move Indians west. and occu-

pied lands in Allegan County, Michigan. J.A. 47-80.

In 1855, the Pottawatomi signed the Treaty of De-

troit, which required Band members to reside in

Oceana County, Michigan, and most of the Band

moved there. /d. at 48-49. But in 1870, the Band

violated the treaty by returning to Allegan County.

thereby breaking off the Band's relationship with the

federal government. Exhibit A to Patchak’s COA

Appeliant’s Br. As the DOI has previously deter-

mined, “[slince 1870, the Federal government has

dealt with band members as individual Indians enti-

tled to attendance at BIA schools, etc., but Aas not

dealt with the band as an entity.” Id. ‘emphasis

added).

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

eral recognition under 25 C.F.R. §353.7, which applies

only to tribes that are not acknowledged or recog-

nized by the federal government at the time of appli-

cation, 25 C.F.R. $83.3\a). The Band therefore ac-

knowledged that it lacked federal recognition before

1993. See COA J.A. 94 (stating “the federal govern-

ment withheld formal acknowledgement beginning

in 1870” and “|tlhus, for well over a century, the

Tribe was denied both federal recognition and reser-

vation lands ....”). Before this Court’s decision in

Carcieri, the federal government also acknowledged

the Band’s lack of federal recognition. /d. at 167.

Thus, the Band was not under federal jurisdiction

from 1870 to 1993.

When the Band applied for federal recognition, it

internally agreed “there would never be casinos in

our Tribe” and represented in its proposed constitu-

tion (submitted to the DOI) that it had “decided not

to sacrifice the future of its membership to gaming

interests and the changes to traditions in the com-

munity that gaming could bring.” /d. at 925 (empha-

sis omitted). The Band received federal recognition

in 1998. See 63 Fed. Reg. 56,936, 56,936 (Oct. 14,

1998).

3. Shortly after its recognition, the Band ac-

quired a 165-acre site in rural Wayland Township

(the Bradley Tract) in Allegan County on which it

wished to construct and operate a casino complex.

J.A. 41; COA J.A. 47-48. In 2001, the Band applied

to have the land taken into trust. In its application.

the Band specifically stated that it “intend[ed} to of-

fer (lass II and/or Class Ul gaming (as defined by

the IGRA, 25 U.S.C. §2701 et seg.) to the public at

the facility.” J.A. 61. The Band could not use its

land for a casino complex, or any other use inconsis-

tent with state or local laws, absent the federal gov-

ernment taking the Band’s land into trust.

To comply with the National Environmental Pol-

icy Act (NEPA), the DOI conducted an environ-

mental assessment to evaluate the land-in-trust de-

cision’s potential effects. COA J.A. 520. Because the

proposed use for the land—here, casino gambling—is

inextricably intertwined with the fee-to-trust deci-

sion, the DOI analyzed the effects of a gambling

complex of nearly 200,000 square feet, including al-

most 99,000 square feet of gambling space, two sit-

down restaurants, a café, two fast-food outlets, four

retail shops, a sports bar, an entertainment lounge,

office space, and parking for more than 3,330 vehi-

cles. COA J.A. 535, 729. This casino complex, which

would be open 24 hours a day, 365 days a year, is ex-

pected to draw 3.1 million visitors annually—to a

farming community of 3,000 residents. Jd. at 754,

577. Indeed, the casino would have more parking

spaces—3,330—than Patchak’s community has resi-

dents. See id. at 535, 729.

The casino was expected to attract 1,420 new

residents and induce construction of more than 500

new homes in the area. /d. at 734. Although such

substantial growth might be good news to some, this

urbanization will destroy the rural character of Way-

land Township and harm those residents, like

Patchak, who value a community free from the sig-

nificant noise, traffic. and general disruption that

accompany a sizeable casino complex.

4. Despite receiving numerous comments ex-

pressing concern about the effect of the thousands of

gambling visitors on the community, sd. at 779, 788,

the DOI made a final agency determination on April

18, 2005, that it would acquire the Bradley Tract in

trust for the Band. 70 Fed. Reg. 25,596, 25,596 (May

13, 2005). The notice of determination stated that, in

accordance with IRA regulation 25 C.F.R. §151.12(b),

DOI was giving notice to the public “at least 30 days

prior to the signatory acceptance of the land into

trust.” Jd.

5. Michigan Gambling Opposition (MichGO), a

nonprofit organization of concerned citizens, filed

suit and challenged the DOT right to take the Brad-

ley Tract into trust on a number of grounds, includ-

ing failure to comply with the NEPA, the Indian

Gaming Regulatory Act (IGRA), 25 U.S.C. §2701 er

seq., and the IRA. MichGO’s IRA claim alleged a vio-

lation of the non-delegation doctrine. The MichGO

litigation resulted in a stay that prevented the DOI

from taking the land into trust. Following this

Court’s grant of certiorari in Carcieri, the courts in

the MichGO litigation refused to consider whether

the DOI was barred from taking the Bradley Tract

into trust because the Band was not under federal

jurisdiction in 1934.

6. Before the DOI took the land into trust, David

Patchak filed this suit against the DOI. Patchak

sought review of the DOI’s final agency decision un-

der the Administrative Procedure Act (APA),

5 U.S.C. $§702, 706. He argued that the DOI lacked

the authority under the IRA to take the land into

trust because the Gun Lake Band was not under fed-

eral jurisdiction in 1934.

Patchak, who lives near the Bradley Tract.

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

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

land Township.” J.A. 30-31. He anticipated that a

casino would irreversibly change the area’s rural

character, depriving him of the enjoyment of the ag-

ricultural land and weakening the community’s fam-

ily atmosphere. J.A. 31. He recognized that a casino

would increase traffic, crime, and pollution. J.A. 31.

These adverse effects in turn would divert police,

fire, and emergency medical services and cause both

decreased property values and increased property

taxes. Jd. The presence of a casino would also likely

divert community resources because of an increased

need to treat gambling addiction and would lead to

other problems that would detrimentally affect his

community’s rural character. Jd. None of these ef-

fects could occur absent the government taking the

Bradley Tract into trust.

7. The stay in the MichGO litigation expired

when the Court denied MichGO’s petition for a writ

of certiorari. Accordingly, Patchak moved for a stay

to prevent the DOI from taking the land into trust.

The district court denied Patchak’s motion. Two

months after the argument in Carcieri and five

weeks before this Court’s decision, the DOI took the

land into trust. The government then asserted that

because it had taken the land into trust, sovereign

immunity under the Quiet Title Act (QTA) cut off ju-

dicial review of Patchak’s pending APA claim.

8. The district court dismissed Patchak’s com-

plaint on the theory that Patchak lacked prudential

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

interests. DOI Pet. App. 37a. The district court con-

cluded Patchak fell outside that zone because he was

“not an Indian” and did not “seek to protect or vindi-

cate the interests of any Indians or Indian tribes.”

Id. at 35a. The district court stated that “because

the Court finds that plaintiff lacks prudential stand-

ing, the Court need not, and does not, reach {the

Quiet Title Act] issue in this opinion.” /d. at 37a

n.12.

9. The D.C. Circuit reversed. /d. at 22a. As an

initial matter, the D.C. Circuit noted that “[tJhere is

no doubt that Patchak satisfied the standing re-

quirements derived from Article III of the Constitu-

tion” and that “[nJeither the Secretary nor the Band

argues otherwise.” Jd. at 4a. Emphasizing this

Court’s guidance concerning the APA’s “generous re-

view provisions,” zd. at 5a, the court of appeals rec-

ognized that Patchak falls within the IRA’s zone of

interests. “The !¥A provisions interpreted in [ Carci-

er7| limit the Secretary’s trust authority.” Jd. at 7a.

“When that limitation blocks Indian gaming, as

Patchak claims it should have in this case, the inter-

ests of those in the surrounding community—or at

least those who would suffer from living near a gam-

bling operation—are arguably protected.” /d. The

court noted that “[t]he Interior Department itself

recognizes the interests of individuals like Patchak

who live close to proposed Indian gaming establish-

ments”: DOI regulations allow “affected members of

the public’ thirty days to seek judicial review before

the Secretary takes land into trust for an Indian

tribe,” and “[o]ther regulations require the Secretary

to consider the purpose for which the land will be

used and whether taking a tribe’s land into trust

would give rise to ‘potential conflicts of land use.”

Id. at 8a-9a (citing 25 C.F.R. §§151.12(b) &

151.10/c), (f)). The D.C. Circuit also observed that

“Itlhe zone-of-interests test weeds out litigants who

lack a sufficient interest in the controversy, litigants

whose ‘interests are so marginally related to or in-

consistent with the purposes implicit in the statute

that it cannot reasonably be assumed that Congress

intended to permit the suit.” Jd. at 10a ‘quoting

Clarke v. Secs. Indus. Assn, 479 U.S. 388, 399

(1987)). Unlike that type of marginal litigant,

Patchak’s “stake in opposing the Band’s casino is in-

tense and obvious,” and it would be “very strange to

deny Patchak standing in this case.” Jd.

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

assertion that Patchak’s APA claim was barred by

the Indian-lands exception to the Quiet Title Act’s

sovereign-immunity waiver. /d. at 2la. The court of

appeals noted that the “common feature of quiet title

actions is missing from this case”: Patchak is not

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

mounts no claim of ownership of the Bradley Tract.”

Id. at 14a. The court observed that “the language of

§$2409a firmly indicates that Congress intended to

enact legislation building upon the traditional con-

cept of an action to quiet title.” Jd. at 14a—15a. Sec-

tion 2409a of the QTA requires the plaintiff to “set

forth with particularity the nature of the right, title.

or interest which the plaintiff claims in the real

property.” Id. at 15a ‘emphasis added) (quoting 28

U.S.C. §2409a(d)). Further, §2409a(b) allows the

government the option of retaining possession of the

land if it loses the quiet title action, “so long as the

government pays just compensation to the person en-

titled to the property.”. /d at 16a. This just-

compensation provision “is senseless unless there is

someone else—the plaintiff—claiming ownership.”

Id. Accordingly, the D.C. Circuit declined to follow

other courts that have “extended the reach of the

Quiet Title Act beyond its text,” instead holding that

“the terms of the Quiet Title Act do not cover

Patchak’s suit” and that “({h}jis action therefore falls

within the general waiver of sovereign immunity set

forth in §702 of the APA.” /d. at 21a.

Because the court of appeals determined that the

QTA did not apply, it chose not to address Patchak’s

argument that because he filed suit before the Brad-

ley Tract was taken into trust, even if the QTA ap-

plied, sovereign immunity did not bar his claim. /d.

at 2lan.10.

10. Soon after the court of appeals issued its de-

cision permitting Patchak’s APA challenge to pro-

ceed, the Band opened its sprawling casino complex.

As Patchak predicted, the casino has severely dis-

rupted his community's rural character. Media re-

ports indicated that after opening, the parking lots at

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

US 131 [that police] closed the northbound and

southbound exits” to the highway. Appellant’s COA

Resp. to Band’s Mot. to Stay the Mandate, Ex. A.

Police calls in the area have, as expected, “sky-

rocketed,” doubling from historical levels in the first

month of operations and tripling in the second

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

available at http://www.milive.com/news/grandrap-

ids/index.ssf/2011/04/why_township_officials_arent_c

-html. One local sheriff described the casino’s open-

ing as “like dropping a small city into the middle of

that area.” /d.

In short, the casino complex has already dis-

rupted the rural lifestyle of Wayland Township.

SUMMARY OF ARGUMENT

1. Patchak’s claim is a paradigmatic APA claim:

he challenges a final decision by a federal agency, the

DOI, because that decision violates federal law. the

IRA. Congress waived sovereign immunity in the

APA for situations precisely like this one, to allow

citizens to hold federal officials and agencies ac-

countable for violating the law.

The DOI attempts to shield its action from judi-

cial review by relying on the Quiet Title Act’s sover-

eign-immunity provisions. But Patchak is not bring-

ing a QTA claim. As the government recognizes, he

could not bring one because he is not asserting that

he has any right, title, or interest in the property.

Moreover, the QTA does not preclude Patchak

from bringing his claim under the APA. The QTA’s

preclusive scope extends only to claims that the QTA

recognizes in the first place. There is nothing in the

QTA’s text to indicate that it precludes claims

brought under other statutes by parties that are not

alleging an interest in the subject property. Indeed,

if the QTA precluded claims like Patchak’s, then

such claims of unlawful agency action would receive

no meaningful judicial review, contrary to the strong

presumption established by this Court and the Con-

gress.

Because Patchak is not bringing a quiet-title ac-

tion and because the QTA does not preclude his

bringing an APA claim, the QTA’s sovereign-

immunity provisions do not apply, any more than

sovereign-immunity provisions found in some other

federal statute (such as the Tucker Act) would apply.

And because the QTA’s sovereign-immunity provi-

sions do not apply to a claim based on a completely

different theory (i.e., an APA claim), it makes no

sense to think the QTA implicitly forbids a particular

type of relief on that claim. Moreover, the relief

Patchak seeks differs fundamentally from quiet-title

relief: Patchak seeks reversal of the DOIs unautho-

rized action, not a declaration of who has title to the

Bradley Tract.

2. Patchak also satisfies the zone-of-interests

test for prudential standing. This test, which this

Court has said is “not meant to be especially de-

manding,” is satisfied because the interests Patchak

seeks to protect are “arguably within the zone of in-

terests to be protected or regulated” by §465 of the

IRA. This Court has recognized that a statute's zone

of interests includes those parties that Congress

could have relied upon to challenge agency disregard

of the law. Patchak is doing exactly that by enforc-

ing the limitation of §465 that this Court recognized

in Carcierr. that the DOI can take land into trust

only for those who qualify as an Indian tribe under

the IRA. Further, §465 directly implicates land-use

concerns because its purpose of providing land to In-

dians is to promote economic self-sufficiency through

use of trust land.

The DOIPs own regulations adopted under §465

demonstrate the DOIs acknowledgment that land

use is a concern within the IRA’s zone of interests.

Those regulations expressly require the DOI to con-

sider proposed land uses when making land-in-trust

decisions—specifically, to consider both “[tJhe pur-

poses for which the land will be used” and “potential

conflicts of land use which may arise.” 25 C.F.R.

§151.10\c) & (ff. In fact, these regulations are con-

trolling under Chevron because they fill a gap Con-

gress left in the IRA when Congress did not identify

what considerations should govern the DOITs discre-

tion to take land into trust. If courts are required to

give the regulations controlling weight regarding the

statute’s meaning, then logically those regulations

provide guidance about the statute’s zone of inter-

ests—particularly where, as here, the statutory text

provides so little guidance. In short, like the state

and local governments that even petitioners concede

have prudential standing, Patchak falls within

$465’s zone of interests because he seeks to enforce

the limit §465 imposes on whether land can be taken

into trust.

Patchak’s concerns also fall within the IRA’s

zone of interests upon proper consideration of the in-

tegrally related IGRA. Clarke, 479 U.S. at 396, 399.

In Clarke, this Court looked to provisions enacted in

two separate statutes when applying the zone-of-

interests test because one statute was a specific limi-

tation on the other. Here, the IGRA, in 25 U.S.C.

$2719, specifically limits the DOIs authority to take

land into trust for an Indian tribe under §465 when

the land will be used for gaming. Because this Court

considers integrally related statutes when determin-

ing the arguable zone of interests and because the

petitioners agree that Patchak’s interests fall with

the IGRA’s zone of interests, Patchak’s asserted in-

terests also fall within the IRA’s zone of interests.

ARGUMENT

I. The Quiet Title Act’s sovereign-immunity

provisions do not apply to Patchak’s APA suit

A. Patchak’s challenge to unlawful agency

action falls squarely within the APA’s

waiver of federal sovereign immunity

As this Court has long recognized, the Adminis-

trative Procedure Act “embodies the basic presump-

tion of judicial review to one ‘suffering legal wrong

because of agency action, or adversely affected or ag-

grieved by agency action within the meaning of a

relevant statute.” Abbott Labs. vy. Gardner, 387 U.S.

136, 140 (1967) (quoting 5 U.S.C. §702), abrogated on

other grounds by Califano v. Sanders, 430 U.S. 99,

(1977). Congress made this presumption of judicial

review even clearer in 1976 when it amended §702 to

expressly waive sovereign immunity. The amend-

ment provided that a suit under §702 “shall not be

dismissed nor relief therein be denied on the ground

that it is against the United States” and allowed “a

judgment or decree may be entered against the

United States.” 5 U.S.C. §702. Thus, “[wle begin

with the strong presumption that Congress intends

judicial review of administrative action.” Bowen v.

Mich. Acad. of Family Physicians, 476 U.S. 667, 670

(1986).

By waiving sovereign immunity to allow chal-

lenges to unlawful agency actions, Congress recog-

nized a central maxim of American government: no

one, not even the government, is above the law. See

H.R. Rep. No. 94-1656, at 10 (1976) (“Only if citizens

are provided with access to judicial remedies against

Government officials and agencies will we realize a

government truly under law.”); id. at 7 (“the funda-

mental concept of the APA [is] that a person ad-

versely affected by administrative action is presump-

tively entitled to judicial review of its correctness”).

This Court has long recognized this principle:

It would excite some surprise if, in a government

of laws and of principle, furnished with a de-

partment whose appropriate duty it is to decide

questions of right ... between the government

and individuals; a ministerial officer might, at

his discretion, issue this powerful process ...

leaving to the debtor no remedy, no appeal to the

laws of his country, if he should believe the claim

to be unjust. But this anomaly does not exist;

this imputation cannot be cast on the legislature

of the United States. [Bowen, 476 U.S. at 670

(quoting United States v. Nourse, 34 U.S. 8, 28—

29 (1835)).]

“Both Houses of Congress have endorsed this view”

in their comments during the APA’s passage. See sd.

a.’ 71.

Patchak’s claim falls squarely within §702’s

scope. His complaint focuses on illegal agency ac-

tion, alleging that the DOI “unlawfully approved

placing into trust approximately 146 acres of land,”

that agencies “have no authority to place the Prop-

erty into trust for the Gun Lake Band because the

[LRA] only permits land to be taken into trust for In-

dian tribes that were federally recognized as of June

1934,” and that the agency decision was therefore

“unlawful and u/tra vires.” J.A. 30, 31-32: see also

J.A. 37 (“Defendants’ approval of the trust acquisi-

tion violates §§5 and 19 of the [IRA] ... and is uw/tra

vires.”).

The relief Patchak seeks under the APA also

properly focuses on reversing the unauthorized

agency decision. His complaint asks the court to

“find the action of Defendants unlawful and [to] re-

verse the decision to take the Property in trust for

the Gun Lake Band,” to “issue a declaratory judg-

ment declaring that Defendants’ decision to take the

Property into trust violates” the IRA. and to enjoin

transferring the jand into trust for the Band. J.A.

39. In short, Patchak is asserting an APA claim di-

rected at reversing unlawful agency action.

Petitioners do not deny that Patchak is challeng-

ing am agency action as unlawful. Instead, they con-

tend that the APA’s sovereign-immunity waiver does

not apply here because §702 states that “|njothing

herein ... confers authority to grant relief if any

other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.” 5

U.S.C. $702. But the QTA does not grant consent to

suit to individuals situated like Patchak, nor does it

expressly or impliedly forbid the relief he seeks.

B. Patchak’s claim cannot be brought under

the Quiet Title Act

The QTA’s plain language demonstrates that

Patchak is not bringing a quiet-title action because

he is not asserting anv right, title, or interest in the

land. As the court of appeals recognized, because

Patchak’s claim does not fall within the QTA’s scope,

the Act. including its sovereign-immunity provisions,

does not apply to his suit. DOJ Pet. App. 19a. Sim-

ply put, the QTA does not provide “consent to suit,” 5

U.S.C. §702, to people bringing a claim like

Patchak’s, and thus the APA sovereign-immunity

waiver governs his claim.

The QTA’s text shows that the Act governs only

traditional quiet-title actions, i.e., actions where the

plaintiff claims some interest in the property at is-

sue. Section 2409a(di requires the complaint to “set

forth with particularity the nature of the right. ttle.

or interest which the plaintiff claims in the real prop-

erty.” 28 U.S.C. §2409a\d) (emphasis added). This

language expressly limits the QTA’s scope to quiet-

title actions. The government correctly recognizes

this. DOI Br. 16-17 (“(T]he QTA permits challenges

to the United States’ claim of title to real property to

be brought on/y by parties who themselves claim an

interest in the same property.” (emphasis added)).

The Band, in contrast, states that it is “unclear”

whether “the QTA authorizes suit only by plaintiffs

asserting their own title to property.” Band Br. 13.

The Band, relying on the phrase “to adjudicate a

disputed title” in §2409a(a), theorizes that the plain-

tiff does not have to claim title in himself. Band Br.

28; see also id. at 30 n.10 (suggesting that the QTA

“would presumably encompass situations where the

plaintiff asserts legal injury arising from the fact

that title should be quieted in a third party’ (empha-

sis added)). But the Band’s theory conflicts with

§2409a(d)’s requirement that the complaint identify

“with particularity the nature of the right, title. or

interest which the plaintiff claims in the real prop-

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

The QTA’s jurisdictional and venue provisions

reinforce that limitation. The QTA confers jurisdic-

tion on the federal courts solely for quiet-title ac-

tions: “(tjhe district courts shall have exclusive

original jurisdiction of crvi/ actions under section

2409a to quiet title to an estate or interest in real

property in which an interest is claimed by the

United States.” 28 U.S.C. §1346(f) (emphasis added).

The QTA’s venue provision uses the same language:

“Any civil action under section 2409a to quiet title to

an estate or interest in real property in which an in-

terest is claimed by the United States shail be

brought in the district court ....” 28 U.S.C. §1402(d)

(emphasis added). Congress adopted these provi-

sions contemporaneously with §2409a, demonstrat-

ing that the scope of §2409a covers only quiet-title

actions; in other words, Congress intended the

phrase “a civil action under this section to adjudicate

a disputed title to real property,” 28 U.S.C.

§2409a(a), to mean the same thing as a “civil action

under 2409a to quiet title to an estate or interest in

real property,” 28 U.S.C. §1346(f). See also DOI Br.

21 (citing legislative history showing that there is no

substantive difference between the phrase “suits to

adjudicate disputed titles to land” and the phrase

“suits to adjudicate certain real property quiet title

actions”). Accordingly, this Court recognized, shortly

after the QTA was enacted, that $2409a applies to

suits “to quiet title to land.” Cadfornia v. Arizona,

440 U.S. 59, 65 (1979).

Further, $2409a(b) provides that if an action un-

der this section results in a determination adverse to

the United States, it may elect to “retain [its] posses-

sion or control of the real property” if it makes “pay-

ment to the person determined to be entitled” to the

land and pays that person “just compensation for

such possession or control.” As the D.C. Circuit

pointed out, this “provision is senseless unless there

is someone else—the plaintiff—claiming ownership.”

DOI Pet. App. 16a.

Ever since the QTA’s enactment, the government

has taken these provisions at face value and agreed

that the QTA does not apply to suits where the plain-

tiff does not assert a claim to the title of the land in

question. For example, in Tudor v. Members of Ar-

kansas State Parks, Recreation & Travel Commus-

sion, 83 F.R.D. 165 (E.D. Ark. 1979), the government

“forcefully argued that the jurisdictional basis of

these lawsuits, 28 U.S.C.A. §2409a, was never in-

tended to provide a federal forum to plaintiffs who

have no title, color of title or possessory interest in

land in which the United States claims an interest.”

Id. at 168 (footnote omitted). The district court

agreed and accordingly dismissed the case for a lack

of standing. /d at 173. The government has for dec-

ades successfully asserted a lack of jurisdiction or

failure to state a claim to deflect QTA claims where

the plaintiff does not assert title in herself.! See,

e.g., Ainscherff v. United States, 586 F.2d 159, 161

(10th Cir. 1978); Alleman v. United States, 372 F.

Supp. 2d 1212, 1222 (D. Or. 2005); Friends of

Panamint Valley v. Kempthorne, 499 F. Supp. 2d

1165, 1175, 1177 (E.D. Cal. 2007).

Consistent with the statutory text and the gov-

ernment’s position, this Court has applied the QTA

only to plaintiffs seeking title in themselves. In

Block v. North Dakota, 461 U.S. 273 (1983), “the

United States and North Dakota assert[ed] compet-

ing claims to title to certain portions of the bed of the

Little Missouri River within North Dakota.” Jd. at

277. Because North Dakota brought a suit asserting

that it had title to the land and that the United

States did not—a traditional quiet-title suit—this

Court refused to allow North Dakota to use “artful

1 The Band also argues that, by 1972, some states had ex-

panded quiet-title actions to allow those not in possession to

sue, Band Br. 29, but regardless of whether state quiet-title ac-

tions required the plaintiff to have possession, state laws \and

the QTA) require an interest in the subject property.

pleading” to avoid the Act’s limitations. Jd. at 254.

Consistent with this context, the Court’s holding in

Block is specifically limited to plaintiffs asserting ti-

tle to the land in dispute: “We hold that Congress

intended the QTA to provide the exclusive means by

which adverse clarmants could challenge the United

States’ title to real property.” Jd. at 286 (emphasis

added).

Similarly, United States v. Mottaz, 476 U.S. 834

(1986), also involved a traditional quiet-title action

by an adverse claimant seeking title to the land, zd.

at 841, 846, 849, and thus involved a claim that fell

within the QTA’s scope. While the Band asserts that

“(t]he nature of the plaintiffs interest ... played no

part in this Court’s analysis” in Mottaz, Band Br. 27,

the Court emphasized the nature of the plaintiff's in-

terest, highlighting that the plaintiff asserted title to

the lands in dispute: “What respondent seeks is a

declaration that she alone possesses valid title to her

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

asserted by the United States is defective.” Jd. at

842; see also id. at 841, 846, 849 (repeatedly refer-

ring to “adverse claimants”).

C. The Quiet Title Act does not preclude

Patchak’s APA claim

Notwithstanding that Patchak did not (and could

not) bring a QTA claim, the government seems to ar-

gue that his claim must be brought as a QTA claim.

In other words, the government contends that the

QTA precludes the field to such an extent that it for-

bids relief even to those who have no QTA claim in

the first place. This approach is untenable for sev-

eral reasons.

First, nothing in the QTA’s text suggests that the

QTA precludes the claims of parties that are not al-

leging an interest in the subject property. As this

Court has frequently recognized, “[tJhe mere fact

that some acts are made reviewable should not suf-

fice to support an implication of exclusion as to oth-

ers.” Veritzon Md.. Inc. v. Pub. Serv. Comm n, 535

U.S. 635, 643 (2002) (quoting Abbott Labs., 387 U.S.

at 141). Simply put, the reviewability of quiet-title

claims under the QTA does not create a presumption

that the QTA precludes claims involving federal

lands for which the plaintiff is not seeking to quiet

title.

Block is not to the contrary. The DOI relies on

Block for the proposition that a plaintiff cannot cir-

cumvent the QTA’s detailed remedial scheme by art-

ful pleading. DOI Br. 15. But the plaintiff in Block

was seeking to enforce an adverse claim to property.

a quintessential quiet-title claim. In contrast,

Patchak is not using artful pleading to characterize

an adverse claim to the Bradley Tract as something

else because he has no such claim. Rather, he is

bringing a different type of claim entirely ‘an APA

claim) based on a completely different legal theory

(that the agency violated the IRA when it took the

land into trust). Although the Band contends that

Block shows that whether the QTA’s provisions ap-

ply does “not depend on the nature of the plaintiffs

cause of action,” Band Br. 28, Block teaches the op-

posite: the QTA applied to North Dakota’s claim be-

cause it was a quiet-title claim. 461 U.S. at 284. The

Court concluded that the QTA impliedly forbade re-

lief under §702 because North Dakota brought the

particular type of claim that the QTA addresses. /d.

at 236 n.22.

As petitioners correctly identify. the QTA is a

precisely drawn statute with specific limitations.

DOI Br. 13; Band Br. 23. This observation doves not

help them. To the contrary, it further demonstrates

that the QTA does not apply to an APA claim. A pre-

cisely drawn statute governs over more general

remedies only when the claim asserted is the sort of

claim that falls within the scope of that precisely

drawn statute. Because Patchak’s claim is an APA

claim, not a QTA claim, the APA is the relevant pre-

cisely drawn statute governing his claim.

The cases petitioners rely on illustrate this point.

DOI Br. 13-14; Band Br. 23-24. In Brown vy. GSA,

425 U.S. 820 (1976), for example, this Court ad-

dressed “whether §717 of the Civil Rights Act of 1964

provides the exclusive judicial remedy for claims of

discrimination in federal employment.” Td. at 821.

This Court explained that Congress created a par-

ticular scheme to address a specific type of claim:

“congressional intent . .. was to [create] an exclusive,

pre-emptive administrative and judicial scheme for

the redre.s of federal employment discrimination.”

Id. at 829. But nothing in Brown indicates that a

precise scheme governing discrimination claims

would limit claims unrelated to discrimination.

Similarly, in Ainck v. United States, 550 U.S. 501

(2007), this Court recognized that a tax statute spe-

cifically authorized suits to abate taxes and that the

statute therefore provided the exclusive avenue for

suits within the tax statute's scope. /d. at 506-07.

Here, Patchak is not bringing a suit within the

QTA's scope, which means the QTA is not, as the

Band would have it, the “better fitted statute.”

Band Br. 33. Although “Congress intended 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 (‘emphasis

added). there is nothing to indicate that Congress in-

tended the QTA to be the exclusive avenue by which

aggrieved persons could challenge unlawful agency

actions involving federal lands. Instead, Congress

passed a separate statute, the APA, that governs

such claims. The Quiet Title Act rs precisely drawn.

but the consequence of that precision is that the

aptly named Quiet Title Act applies only to quiet-

title actions, not to APA claims.

Second, if the Court were to adopt the approach

urged by the government, then there would be no ju-

dicial review for many types of claims challenging

agency action. Specifically, because the QTA re-

quires the plaintiff to have an interest in the prop-

erty at issue, and the government believes that any

claim affecting the government’s title to property

must be brought as a QTA claim, parties without an

interest in the property could never bring any claim

that affects the government's title to property. The

government presents no justification for this extreme

result. Indeed, it runs contrary to the well-

established principle that “judicial review of a final

agency action by an aggrieved person will not be cut

off unless there is persuasive reason to believe that

such was the purpose of Congress.” Bowen, 476 U.S.

at 670 (quotation omitted). Accordingly, “only upon a

showing of ‘clear and convincing evidence’ of a con-

trary legislative intent should the courts restrict ac-

cess to judicial review.” /d. at 672 (quoting Abbott

Labs., 387 U.S. at 141); see also id. (noting the

“heavy burden of overcoming the strong presumption

that Congress did not mean to prohibit all judicial

review of [an agency's] decision” (internal quotation

marks omitted)). There is no indication, let alone

“clear and convincing evidence,” in the QTA that

Congress intended to preclude such a large group of

claims from any judicial review.

D. The Quiet Title Act’s sovereign-immunity

provisions do not apply to Patchak’s APA

claim

Because Patchak can and did bring his claim as

an APA claim and not a QTA claim, the QTA’s sover-

eign-immunity provisions simply do not apply to his

APA claim. As the APA states, the only sovereign-

immunity provision that matters is one in a statute

that grants “consent to suit.”. The QTA does not

grant consent to individuals like Patchak who are

not bringing quiet-title claims.

Indeed, it is illogical to suggest that the QTA’s

sovereign-immunity provisions apply to a non-QTA

claim. If Patchak’s claim does not fit within the

QTA's scope, then it does not fall within the co-

extensive scope of the QTA’s waiver, and therefore it

cannot fall within the scope of the exception to that

waiver (because an exception to a waiver cannot ex-

ceed the scope of the waiver itself). Put another way,

the QTA waives the United States’ sovereign immu-

nity only for suits brought by adverse claimants as-

serting title to federal lands, and the Indian-lands

exception merely provides sovereign immunity from

quiet-title actions related to that subset of federal

lands.

1. The petitioners contend that because the QTA

was adopted against a background that assumed the

existence of sovereign immunity, the Indian-lands

exception must apply to all suits involving Indian

lands, regardless of whether the suits fit within the

QTA’s scope. DOI Br. 17, 21-22; Band Br. 24—25.

But the Indian-lands exception is not a free-standing

assertion of sovereign immunity; it is part of the

QTA and must be read in that context.

The QTA’s sovereign-immunity provision ex-

pressly states that “/t/Ais section does not apply to

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

§2409a(a) (emphasis added). Thus, the Indian-lands

exception applies only to the section governing QTA

claims, not to all claims affecting Indian lands.

Moreover, relying on a background rule makes sense

for those statutes that do not address sovereign im-

munity, but the QTA does address sovereign immu-

nity and therefore supplants that background rule.

As then-Assistant Attorney General Scalia explained

in his letter concerning the 1976 amendment to §702,

“[blecause existing statutes have been enacted

against the backdrop of sovereign immunity, this will

probably mean that in most if not all cases where

statutory remedies already exist, these remedies will

be exclusive.” S. Rep. No. 94-996, at 27. In other

words, if a statute enacted before 1976 authorized

certain remedies against the government but not

other remedies, then it makes sense to assume that

the statute waived sovereign immunity only for the

enumerated remedies. But Congress specifically ad-

dressed sovereign immunity in the QTA, waiving

sovereign immunity for all quiet-title claims concern-

ing federal land except for the subset of federal lands

held in trust for Indians. The QTA’s provisions (in-

cluding its sovereign-immunity provisions) are spe-

cifically tailored to quiet-title actions and cannot ex-

tend beyond the Act’s scope.

Petitioners argue that the purpose of the Indian-

lands exception will be thwarted if suits such as

Patchak’s are allowed to proceed. They stress the

need for stability for Indian trust lands. But they

ignore a key fact in this case: Patchak brought his

APA suit defore the government took the land into

trust.2. Rather than allowing Patchak’s suit to re-

solve whether the DOI could lawfully take the land

into trust based on the then-pending decision in Car-

cieri, the DOI took the land into trust (and the Band

began developing the casino complex) with the goal

of avoiding judicial review. Any instability and un-

certainty regarding the Band’s investments in the

land are of the DOI’s own making, resulting from its

decision to forge ahead with its unlawful decision.

2. Even though Patchak’s claim does not fall

within the QTA’s scope, the petitioners argue that

his claim is “impliedly” prohibited by the QTA and

therefore precluded by the last clause of §702—

“Nothing herein ... confers authority to grant relief

if any other statute that grants consent to suit ex-

pressly or impliedly forbids the relief which is

sought.” 5 U.S.C. §702. But the relief Patchak

seeks—a reversal of the DOI’s land-in-trust decision,

a declaratory judgment that the agency decision vio-

lated the IRA, and an injunction preventing the gov-

ernment from violating that statute by taking the

2 When Patchak filed his complaint, the land had not been

taken into trust and therefore the QTA’s sovereign-immunity

provisions could not have applied. Patchak Opp'n 20. Because

“lilt has long been the case that ‘the jurisdiction of the court

depends upon the state of things at the time the action was

brought,” Grupo Dataflux v. Atias Global Group, L.P., 541 U.S.

567, 570 (2004), the existence of a waiver of sovereign immunity

when the complaint was filed should prevent the executive

brancn from manipulating jurisdiction by asserting sovereign

immunity after the complaint’s filing.

land into trust—is not impliedly forbidden by the

QTA.

Petitioners argue nonetheless that the relief

Patchak seeks is forbidden because it would divest

the government of title. DOI Br. 9, 11, 19—20; Band

Br. 12. But even assuming that the relief sought

could be separated from the cause of action authoriz-

ing it (it cannot), the fact that a declaration stating

that the DOI acted without authority would end the

land's trust status does not mean the declaration

would be quiet-title relief. If Patchak prevails, he

will obtain a ruling that the DOI exceeded its author-

ity by taking land into trust for the Band because the

Band was not under federal jurisdiction in 1934. In

contrast, a plaintiff successfully asserting an adverse

ownership interest under the QTA will obtain a dec-

laration of title that the plaintiff has an interest in

the property and will receive either possession of the

property or payment for that interest.

Furthermore, as discussed above, the QTA pro-

vides no “consent to suit” for Patchak’s claim. As the

Seventh Circuit recently explained, if a given statute

“could never apply to the type of claim advanced,

then there is no reason to think that it implicitly for-

bids a particular type of relief for a claim outside its

scope.” Michigan vy. U.S. Army Corps of Engrs. 667

F.3d 765, 776 (7th Cir. 2011), cert. denied, 2012 WL

603147 (2012). Here, the QTA focuses solely on

quiet-title actions and says nothing to forbid implic-

itly APA claims directed at unlawful agency action.

Block recognized that §702 implicitly bars a

claim “when Congress has dealt in particularity with

a claim and [has] intended a specified remedy to be

the exclusive remedy” for that type of claim. 461

U.S. at 286 n.22. In other words, when interpreting

§$702’s phrase “expressly or impliedly bars relief,”

this Court understood that determining whether a

statute impliedly bars relief necessarily requires con-

sidering whether the statute addresses the particu-

lar type of claim being brought. Because North Da-

kota was bringing a quiet-title claim, the QTA did

deal in particularity with the type of claim at issue

and therefore §702 implicitly barred other relief.

The legislative history confirms that the limita-

tions on specific relief were tied to statutes address-

ing specific type of claims. For example, the Tucker

Act “created a damage remedy for contract claims”

against the government, and by authorizing a dam-

age remedy for contract claims Congress “intended to

foreclose specific performance of government con-

tracts.” S. Rep. No. 94-996, at 12 (1976); 121 Cong.

Rec. S16576 (daily ed. Sept. 24, 1975). Given that

the Tucker Act impliedly forbids specific performance

of a government contract, the “impliedly forbids”

clause meant that someone could not bring a contract

claim under the APA to seek specific performance.

The legislative history emphasized that the limi-

tations on specific relief were tied to statutes ad-

dressing specific types of claims. Then-Assistant At-

torney General Scalia’s letter reinforces the point:

“(WIhen [Congress's] action is not addressed to the

type of grievance which the plaintiff seeks to assert,

suit would be allowed.” /d. at 27 (emphasis added).

And so does language from the legislative history

quoted by the Band: the last clause in §702 applies

when “Congress has consented to suit and the rem-

edy provided is intended to be the exclusive remedy

. with respect to a particular subject matter.” Id.

at 11—12 (emphasis added); see also Band Br. 35. In

short, courts are to examine the other statute to de-

termine whether it expressly or impliedly forbids a

particular type of relief, and in doing so, the courts

must take into account the type of claim the statute

addresses. Because the QTA is not addressed to

grievances based on unauthorized agency action,

Patchak’s suit should be allowed.

3. In applying §702’s last clause, this Court and

the federal circuit courts have consistently recog-

nized that both the source of the right and the type of

relief sought must be considered when determining

whether the “other statute” implicitly forbids the re-

lief sought. Specifically, in Mottaz, the Court focused

on the essence of the plaintiffs case, not just the re-

lief sought, when considering whether the plaintiffs

claim fell under the Tucker Act or the QTA. 476 U.S.

at 848. The Court noted that “the case she made,

and the relief she seeks, do not fit within the scope of

the Tucker Act.” /d. Even though she sought money

damages (which the Tucker Act does authorize), the

relief she sought was not Tucker Act relief: “A

Tucker Act-based lands suit would seek damages

equal to just compensation for an already completed

taking of the claimant’s land,” which amounted to

“whatever compensation she was allegedly denied in

1954,” id. at 850—51, but she instead sought damages

“equal to the current fair market value” of the land

in 1986, 7d. at 839 (emphasis added). In other words,

even though the relief she sought bore some similari-

ties to relief available under the Tucker Act, this

Court recognized that it was not Tucker Act relief

because Tucker Act relief focuses on “damages for

the Government’s past acts,” whereas QTA relief fo-

cused on just compensation at the time the adverse

claimant is held to have superior title and to “be en-

titled” to ownership of the land. 28 U.S.C. §2409a\(b).

Unlike the plaintiff in Mottaz, the “essence and

bottom line of [Patchak’s] case” is not a claim for ti-

tle. 476 U.S. at 842. Quite the opposite—the essence

of Patchak’s claim is that the DOI violated the IRA

and that its decision should be declared unlawful and

reversed. Just as this Court explained that mone-

tary relief is not Tucker Act relief when it is not cal-

culated under the theory of a Tucker Act claim, so

too declaratory relief under the APA is not QTA re-

lief because it rests on a completely different theory:

that the agency violated federal law by taking the

land into trust, not that Patchak is entitled to title to

the land.

Similarly, in A/Jegapulse, Inc. v. Lewis, 672 F.2d

959 (D.C. Cir. 1982), the D.C. Circuit examined

whether the Tucker Act’s sovereign-immunity waiver

applied to a Trade Secrets Act claim relating to vari-

ous contracts. Jd. at 964. If the Tucker Act had ap-

plied, then sovereign immunity would be waived only

for suits brought in the Court of Claims and the dis-

trict court would have lacked jurisdiction. Jd. at 963.

The D.C. Circuit explained that “(t]he classification

of a particular action as one which is or is not ‘at its

essence’ a contract action depends both on the source

of the rights upon which the plaintiff bases its

claims, and upon the type of relief sought (or appro-

priate).” Jd. at 965. The court concluded that the

plaintiffs claims were “not ‘disguised’ contract

claims” because the plaintiff “[did] not claim a breach

of contract,” focused on relief appropriate for protect-

ing its trade secrets, and sought “no monetary dam-

ages.” Jd. at 969. Accord Sharp v. Weinberger, 798

F.2d 1521, 1522-25 (1986) (when determining

whether “the Tucker Act and the Little Tucker Act

impliedly forbid rehef” for the particular claims, the

court divided the claims based on the source of the

rights and the relief sought).

Other circuit courts have also recognized that the

source of the right and the type of claim being

brought matter to whether the other statute impli-

edly forbids the relief sought. See, e.g., Up State

Fed. Credit Union v. Walker, 198 F.3d 372, 375 (2d

Cir. 1999) (adopting the Megapulse framework);

United States v. J & E Salvage Co., 55 F.3d 985,

988-89 (4th Cir. 1995); B & B Trucking, Inc. vy. U.S.

Postal Serv., 406 F.3d 766, 768 (6th Cir. 2005) ‘en

banc) (quoting Megapulse); Evers v. Astrue, 536 F.3d

651, 657 (7th Cir. 2008) (following Megapulse); Tuc-

son Airport Auth. v. Gen. Dynamics Corp., 136 F.3d

641, 646 (9th Cir. 1998); Normandy Apts., Ltd. v.

U.S. Dept of Hous. & Urban Dev., 554 F.3d 1290,

1300 (10th Cir. 2009) (citing Megapulse and Sharp

and considering whether the claim was “at its es-

sence’ a contract claim”); Begner v. United States,

428 F.3d 998, 1002 (11th Cir. 2005) (adopting

Megapulse); Nebraska Pub. Power Dist. v. United

States, 590 F.3d 1357 (Fed. Cir. 2010) (citing Sharp

with approval).

The Seventh Circuit recently applied the same

reasoning in the context of the Federal Tort Claims

Act, explaining that there is no reason to apply a

Statute’s sovereign-immunity provisions outside the

Statute’s scope. In Michigan, several Great Lakes

States sought an injunction against the Army Corps

of Engineers on the theory that allowing an invasive

fish species to enter Lake Michigan would violate the

federal common law of public nuisance and advanced

a related claim against the Corps under §702. 667

F.3d at 768. In response, the Corps argued that it

was entitled to sovereign immunity under the FTCA,

because the FTCA does not waive sovereign immu-

nity for suits “that seek declaratory and injunctive

relief based on a federal common-law tort.” Jd. at

774. The Corps. relying on the phrase “expressly or

impliedly forbids relief” in $702, made the same type

of argument that the DOI makes here. Jd. at 775

(“[WJhen Congress enacted the FTCA in 1946, it did

so against a backdrop of no tort liability for the

United States; the FTCA waives the government’s

sovereign immunity in suits for money damages to

the extent that a private person would be held liable

under applicable state tort law; but while the FTCA

authorizes actions for damages, it says nothing at all

about injunctive relief; thus, the FTCA implicitly

prohibits injunctive relief in tort suits against the

United States; and because of §702(2), the Corps’s

argument concludes, the plaimtiffs cannot use the

APA’s waiver of immunity to assert a common-law

tort claim against the United States.” (citations omit-

ted)).

The Seventh Circuit rejected this argument, rec-

ognizing that it “reads too much into congressional

silence.” Jd. First, “{t]here is nothing in the statute

suggesting that Congress meant to forbid all actions

that were not expressly authorized.” Jd. “To the con-

trary, section 702(2) requires evidence, in the form of

either express language or fair implication, that

Congress meant to forbid the relief that is sought.”

Id. “The Corps’s effort,” the Seventh Circuit contin-

ued, “to transform silence into implicit prohibition

would seriously undermine Congress’s effort in the

APA to authorize specific relief against the United

States.” Jd. Second, the Seventh Circuit noted that

“state tort law—not federal law—is the source of

substantive liability under the FTCA,” which meant

that the States’ tort claim based solely on federal

common law “would not be cognizable under the

FTCA in the first place.” /d. at 776. The Seventh

Circuit reasoned that “if the FTCA could never apply

to the type of claim advanced, then there is no reason

to think that it implicitly forbids a particular type of

relief for a claim outside its scope.” /d. The same is

true here.

The reasoning of these cases including Block and

Mottaz is directly on point here. The essence of

Patchak’s claim is a challenge to unauthorized

agency action; it is not a quiet-title action. This is

evident from the source of law which he relies ithe

APA, not the QTA), from the relief he seeks (a decla-

ration that the DOI violated federal law), and from

the relief he does not seek (any declaration that he

holds title to the property). He is not bringing a dis-

guised quiet-title claim; if he were, it would be singu-

larly ineffectual, as he never asks for title to the

land. And because his claim could never be brought

under the QTA, there is no reason to think the QTA

implicitly forbids relief for his claim. Consequently,

the D.C. Circuit did not err by focusing on the relief

Patchak did not seek. Contra DOI Br. 19.

In contrast, the three decisions by the courts of

appeals that have held that the QTA’s sovereign-

immunity provisions do bar APA suits ignored both

the type of claim the plaintiff was bringing and the

QTA’s plain language. In Florida Department of

Business Regulation v. Department of Interior, 768

F.2d 1248 (11th Cir. 1985), the Eleventh Circuit

never addressed §2409a(d)’s requirement that the

plaintiff claim “right, title, or interest ... in the real

property,” and even admitted that “technically the

suit in the instant case [was] not one to quiet title.”

Id. at 1254. The Ninth Circuit’s decision in Metro-

politan Water District of Southern California v.

United States, 830 F.2d 139 (9th Cir. 1987), aff'd by

an equally divided Court sub. nom. Ca/ifornia v.

United States, 490 U.S. 920 (1989), also ignored

§2409aid)s statutory requirement that the plaintiff

be an adverse claimant. And although the Tenth

Circuit at least mentioned the pleading requirements

of $2409a(d) in Neighbors for Rational Development

v. Norton, 379 F.3d 956, 962 (10th Cir. 2004), it men-

tioned them only to say that “plaintiffs cannot cir-

cumvent the intent of the Quiet Title Act’s limita-

tions with artful pleading.” Jd. at 965. But ignoring

the QTA’s requirement that the plaintiff assert an

interest in the property to state a quiet-title claim, as

the Tenth Circuit did, is not the way to effectuate the

QTA’s limitations.

4. The rights-and-remedies approach, demon-

strated in Mottaz. in circuit-court cases addressing

the Tucker Act, and in Michigan, makes sense. If

courts are not required to factor in the type of claim

the plaintiff is bringing, then the government could

turn to any statute that includes both a waiver of

sovereign immunity and an exception to the waiver

and rely on that exception, regardless of the fact that

the statute has nothing to do with the type of claim

the plaintiff is bringing.

For example, the Federal Tort Claims Act has

nothing to do with Patchak’s claim, yet under the

government’s approach, the FTCA’s discretionary-

function exception would apply to this case. The

FTCA waives sovereign immunity to allow tort

claims against the United States. United States v.

Olson, 546 U.S. 43, 44 (2005). The FTCA includes an

exception to the waiver for “[aJny claim ... based

upon the exercise ... [of] a discretionary function or

duty on the part of a federal agency or an employee

of the Government, whether or not the discretion be

abused.” 28 U.S.C. §2680(a). The natural reading of

this exception would limit it to tort claims. But un-

der the government’s approach, which untethers sov-

ereign-immunity provisions in statutes from the

types of claims the statutes cover, this exception

could also bar Patchak’s claim, because Patchak

challenges the DOTI’s discretionary decision to take

land into trust. See 25 U.S.C. §465 (“The [Secretary |

is authorized, in Ars discretion, to acquire . .. any in-

terest in lands ... for the purpose of providing land

for Indians.” (emphasis added)). Indeed, the gov-

ernment’s argument suggests that it would be

anomalous to allow persons like Patchak, who could

not bring a valid tort claim against the government,

to challenge such a discretionary decision when even

a person with a valid tort claim could not challenge

the decision. The fact that the government’s theory

could be applied with such little regard for the scope

of the “other statute” demonstrates how flawed that

theory is.

As just noted, petitioners argue that it would be

anomalous to allow persons who could not bring a

valid quiet-title claim against the government to

challenge a land-in-trust decision when even a per-

son with an interest in the property could not. E-.g.,

DOI Br. 9; Band Br. 13. They essentially argue that

adverse claimants have a greater interest than

Patchak because adverse claimants have an interest

in the land, and so it would be perverse to allow him,

with his lesser interest (i.e., no interest in the land),

to sue. E.g., Band Br. 29. This argument misses the

point. Patchak’s interest in suing an agency for a

violation of federal law that injured him is not a

lesser interest, it is a different interest. True,

Patchak has no interest in the land, but that merely

confirms that the QTA does not apply in the first

place. Yet he has a strong interest in holding a fed-

eral agency accountable for taking unlawful action

that injured him, and, contrary to the Band’s charac-

terization of this as a “second-hand interest,” Band

Br. 37, it is precisely the sort of interest Congress

enacted the APA to protect. Simply put, an interest

in preventing the increased noise, traffic, and crime

that the casino complex would bring (and has al-

ready brought) is not a “lesser” interest than an in-

terest in the land itself

5. Petitioners and amici postulate that, notwith-

standing the QTA’s and the APA’s text, policy con-

siderations require ignoring that text and providing

the DOI with “full immunity” from suits regarding

Indian trust lands. Specifically, they argue that the

limited QTA Indian-lands exception must be consid-

ered in the context of the role trust lands play in

promoting tribal economic development and of the

uncertainty that allowing APA claims like Patchak’s

will create. E.g., Band Br. 26. But the statutes’

plain language, as discussed above, does not allow

for such considerations. Carcier7, 129 S. Ct. at 1066—

67 (“We need not consider these competing policy

views, because .. . ‘courts must presume that a legis-

lature says in a statute what it means and means in

a statute what it says’.”). Further, petitioners and

the amici exaggerate the supposed effects of affirm-

ing the QTA ruling. The APA's six-year statute of

limitations, 28 U.S.C. §2401(a), which runs from the

land-in-trust decision, still applies. And the APA al-

lows the DOI to raise a fully array of defenses—such

as laches and standing—that will protect against un-

certainty. 5 U.S.C. $702 (courts retatn the authority

to dismiss any action “on any other appropriate legal

or equitable ground”); COA J.A. 41-42 ‘answer as-

serting defenses).) Further, uncertainty will arise

only if there is good reason to think the agency’s

land-in-trust decision was unlawful, and in that

event a plaintiff with standing should be allowed to

advance an APA claim, just like any other APA

plaintiff. Finally, even if the land-in-trust decision is

held to be unlawful, the land will revert to the own-

ership of the affected tribe to use as any other land-

owner could.

E. Petitioners’ application of the Quiet Title

Act allows judicial review of land-in-trust

decisions only at the pleasure of the DOI

The practical effect of petitioners’ application of

the QTA’s sovereign-immunity provisions is that the

DOI gets to unilaterally decide whether its land-in-

trust decisions are subject to judicial review. The

DOI’s regulations currently provide a 30-day window

between the final agency determination and the tak-

ing of the land into trust. Nothing prevents the DOI

from taking the land into trust at any time following

the 30-day window or from violating its own regula-

tion and taking the land into trust during the 30

days. Under petitioners’ theory, as soon as the DOI

takes the land into trust, sovereign immunity ap-

plies. Consequently, judicial review is only available

at the whim of the DOI. See Dept of Interior v.

South Dakota, 519 U.S. 919, 921 (1996) (Scalia, J.,

dissenting from decision to grant, vacate, and re-

mand) (describing the DOI’s view as “reviewability-

at-the-pleasure-of-the-Secretary”). The DOI’s posi-

tion, in short, allows it, like Lucy holding a football

for Charlie Brown, to pull away the opportunity for

review once a lawsuit commences (or at such time as

the DOI perceives legal vulnerability). This is not

consistent with the rule of law.

It. Patchak’s substantial interest in this case

satisfies prudential standing

Patchak has a clear interest in not having a ca-

sino as his neighbor. Petitioners have not argued

that this interest is insufficient to satisfy Article III

standing. Instead, they contend that the interest

fails to establish prudential! standing, but—as the

D.C. Circuit correctly held—Patchak satisfies the

zone-of-interests test.

The zone-of-interests test for prudential standing

“is not meant to be especially demanding.” Clarke v.

Secs. Indus. Assn, 479 U.S. 388, 399 (1987). All that

it requires is that “the interest sought to be pro-

tected by the complainant [be] arguab/y within the

zone of interests to be protected or regulated by the

statute or constitutional guarantee in question.” Jd.

at 396 (emphasis added) (quoting Assn of Data Proc-

essing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153

(1970)).

When applying the test in the context of the

APA, this Court has emphasized that “the APA’s

‘generous review provisions ... should be construed

‘not grudgingly but as serving a broadly remedial

purpose.” Jd. (quoting Data Processing, 397 U.S. at

156 (some quotations omitted)). This “liberal read-

ing” promotes the rule that an APA claim “is avail-

able absent some clear and convincing evidence of

legislative intent to preclude review.” Jd. at 396 n.9

(quoting Japan Whaling Assn v. Am. Cetacean Soc’y,

478 U.S. 221, 230 n.4 (1986)); see also id. at 397.

Given the broad remedial purpose of allowing citi-

zens to challenge illegal agency actions, the zone-of-

interests test denies a right of review only “if 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.” J/d.; see also Thompson

v. N. Am. Stainless, LP, 131 S. Ct. 863, 870 12011).

The Band attempts to modify this test by arguing

that Patchak cannot be within the zone of interests

of the [IRA—which the Band acknowledges largely

“lacks any discernible statutory standards,” Band Br.

15—because he is neither “an Indian or a tribal bene-

ficiary of the Act” and because his interests do not

“advancie| tribal development or self-governance.”

Band Br. 14, 42; see also 7d. (arguing that Patchak is

“not a statutory beneficiary of the trust process”).

The DOI similarly contends that §465’s limitation as

recognized in Carcier7 is not “designed to benefit sur-

rounding communities or individual non-Indians.”

DOI Br. 31. But the test is not whether a plaintiff is

a statutory beneficiary. To the contrary, this Court

has “consistently held that for a plaintiffs interests

to be arguably within the ‘zone of interests’ to be pro-

tected by a statute, there does not have to be an ‘in-

dication of congressional purpose to benefit the

would-be plaintiff.” Nat? Credit Union Admin. v.

First Nat? Bank & Trust Co., 522 U.S. 479, 492

(1998) (quoting Clarke, 479 U.S. at 399-400); :d.

(“[Ijn applying the ‘zone of interests’ test. we do not

ask whether, in enacting the statutory provision at

issue, Congress specifically intended to benefit the

plaintiff.”); see also Arnold Tours, Inc. v. Camp, 400

U.S. 45, 46 (1970) (citing Data Processing). And the

plaintiffs interest certainly need not conform to

whatever public-minded purpose underlies the stat-

ute. See Nat7 Credit Union, 522 U.S. at 499 & n.8

(“Although it is clear that respondents’ objectives in

this action are not eleemosynary in nature, under

our prior cases that. too, is beside the point”).

Indeed, if petitioners were correct that only in-

tended beneficiaries of $465 ‘i.e., Indian tribes that

gain land in trust) fall within its zone of interests,

then even states and local governments do not have

standing to enforce §465, and this Court’s decision in

CarcierT is a dead letter, because there is no one with

an interest to enforce it. Notwithstanding Petition-

ers’ protests to the contrary, §465 does not allow land

to be taken into trust to benefit states, local govern-

ments, or members of the surrounding community.

Rather, state and local governments “stand to lose

taxing authority and some regulatory authority as a

result of the Secretary’s trust acquisition.” DOI Br.

32; see also Band Br. 43—44 (noting that state and

local governments’ “regulatory authority over the

trust lands is cut off or circumscribed by the Secre-

tary’s trust decision”). States and local governments

have prudential standing for the same reason that

Patchak does—to enforce the IRA’s limitations.

The correct test, as recognized by this Court is

that a plaintiff falls within a statute's zone of inter-

ests when “|t}here is sound reason to infer that Con-

gress ‘intended |petitioner’s) class [of plaintiffs] to be

relied upon to challenge agency disregard of the

law.” Clarke, 479 U.S. at 403 ‘quoting Block v.

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

considering whether “the interest sought to be pro-

tected by the complainant [is] arguably within the

zone of interests to be ... regulated by the statute,”

id. at 396 (emphasis added), the foundational state-

ment of the zone-of-interests test proves this point.

Patchak satisfies the test for just that reason: he is

within the class of persons Congress could reasona-

bly have expected to enforce $465 and its limitations

as articulated in Carciert.

A. Patchak falls within the zone of interesis

of the Indian Reorganization Act

Patchak’s claim falls within the IRA’s zone of in-

terests for two reasons. First, §465 includes a limita-

tion on the DOI’s authority to take land into trust for

Indians, and Patchak is arguably within the class of

persons that Congress intended to enforce that limi-

tation. Second, land-use concerns such as Patchak’s

are relevant because a decision to take land into

trust cannot be separated from the use to which that

land may be put.

1. Patchak brought this suit to challenge an

unlawful agency action—the DOI taking land into

trust for a group that does not qualify as an Indian

tribe under the IRA. As this Court recently recog-

nized in Carciert, §465 limits those who qualify as

Indian tribes to “those tribes that were under the

federal jurisdiction of the United States when the

IRA was enacted in 1934.” 129 S. Ct. at 1068. The

class of persons who could be expected to enforce this

limitation at least arguably includes members of the

nearby community whose daily lives will be affected

if the land were taken into trust. See Clarke, 179

U.S. at 403. Indeed, far from asserting interests “in-

consistent with the purposes implicit in the statute.”

as petitioners would have it, Band Br. 40, Patchak’s

desire as a member of the surrounding community to

enforce a limitation specifically written into the text

of the statute, Carcieri, 129 S. Ct. at 1065, effectu-

ates Congress’s express statutory intent. In short,

because Congress arguably expected community

members like Patchak to enforce the statute, he falls

within the [IRA’s zone of interests.

Petitioners concede that state and local govern-

ments are within the IRA’s zone of interests but

claim that affected members of the community like

Patchak are not. DOI Br. 32; see also Band Br. 44.

This distinction is unprincipled. Petitioners contend

that states and local governments have prudential

standing to assert the limitations of §465 because

“they stand to lose taxing authority and some regula-

tory authority as a result of the Secretary’s trust ac-

quisition.” /d. Yet this taxing and regulatory inter-

est fails the petitioners’ own proposed “beneficiaries

only” prudential-standing test because it is not “an

interest in advancing tribal development or self-

governance.” Band Br. 42; see also DOI Br. 33-34.

The true reason the governments have standing is

because they are enforcing a limitation of the stat-

ute—just as Patchak is.

Moreover, the fact that Congress imposed a limi-

tation on the DOI’s authority to take land into trust

only for certain Indian tribes implies that Congress

intended someone to be able to enforce that limita-

tion. State and local governments cannot necessarily

be relied upon to enforce $465’s limitation, for those

government entities might decide that they would

rather enter into a gaming compact to benefit from

an unlawful land-in-trust decision than challenge the

unlawful agency action. See DOI Br. 32 (“[T]he State

of Michigan has not sued to oppose the trust acquisi-

tion here. To the contrary, it has entered into a gam-

ing compact with the Band. Similarly, Allegan

County and Wayland Township (where the property

is located) have actively supported the trust acquisi-

tion and the Band’s economic-development efforts.”

(citations omitted }).

Consider, for example, a hypothetical situation

where a group that has no Indian ancestry ‘(perhaps

a group of Nevada businesspeople) seeks recognition

as an Indian tribe under the IRA so that it can open

a casino in Michigan. If the DOI were to decide to

take land into trust for the non-Indian group, that

action would violate §465’s limitation that the Indian

tribe must have been “under the federal jurisdiction

of the United States when the IRA was enacted in

1934.” Carcieri, 129 S. Ct. at 1068. Yet because this

agency action would (in petitioners’ view) have noth-

ing to do with land use, even a neighbor living adja-

cent to the land would not be able to challenge the

ultra vires action. And the individual citizen might

not be able to rely on the state or local government to

sue, because those entities might prefer to enter into

a gaming compact with the group and to share the

profits from the casino. Given these considerations,

it is at least arguable that Congress intended indi-

vidual members of the community, and not just gov-

ernmental entities, to be able to enforce §465's limi-

tation. See Data Processing, 397 U.S. at 153 (exam-

ining “whether the interest sought to be protected by

the complainant is arguab/v within the zone of inter-

ests to be protected or regu/ated by the statute” (em-

phasis added)).

2. The land-in-trust decision cannot be sepa-

rated from the use to which the land will be put, be-

cause simply taking the land into trust for an Indian

tribe does not produce the desired economic benefit;

an economic benefit arises only when that land is

used. And §465 promotes economic development

through use of the land, not through its acguisition;

after all, the tribe applying to have the land held in

trust must hold the land in fee in the first place in

order to have the government take it into trust. See

BIA Fee-to-Trust Handbook, Version I at 8 (requir-

ing fee-to-trust applications to include “[a] legal in-

strument” “to verify applicant ownership”).

Despite the DOI's current litigation position, it

has long acknowledged that decisions to take land

into trust for an Indian tribe necessarily implicate

land-use concerns. In 1980, the DOI promuigated

regulations under the IRA that require the DOI to

consider both “|t]he purposes for which the land will

be used” and “potential conflicts of land use which

may arise” before taking land into trust. 45 Fed.

Reg. 62,036 (Sept. 1, 1980) (codified at 25 C.F.R.

§151.10(c) & (f)). Those regulations also require the

DOI to give notice to the public before taking the

land into trust, 25 C.F.R. §151.12(b), so that affected

members of the public may challenge the decision.

The notice announcing the DOT's decision to take the

relevant land into trust for the Gun Lake Band met

this requirement by notifying the community that

the land would “be used for the purpose of construc-

tion and operation of a gaming facility.” 70 Fed. Reg.

25.596 (May 13, 2005). In light of this history, the

Band’s attempt to cast the land-in-trust decision as

“independent” from land-use considerations, Band

Br. 46, is inconsistent with the DOI’s longstanding

view of §465, not to mention the Band’s concession

that “[t]he purposes for which the land will be used

bear obvious relevance’ to whether land-in-trust de-

cisions further the IRA’s interests. J/d. at 57 n.14

(emphasis added).

In sum, the fact that DOI regulations adopted

under $465 expressly require the DOI to consider the

proposed land use demonstrates that the DOI long

ago conceded that land uses and the conflicts they

may cause are within §465's zone of interests.

The DOI attempts to distance itself from its own

regulations by arguing that they represent only the

views of the Secretary, not the views of Congress.

DOI Br. 37. These regulations, however, fill a gap

left by Congress, and therefore represent an agency

interpretation of the gap that is entitled to control-

ling deference under Chevron, L_S_A., Inc. v. Natural

Resource Defense Council, 467 U.S. 837 (1984). As

the Band concedes, §465 “lacks any discernible statu-

tory standards” governing the DOI’s discretion to

take land into trust. Band Br. 15; see also AZichGO

v. Kempthorne, 525 F.3d 23, 35 (D.C. Cir. 2008)

(Brown, J., dissenting) (arguing that §465 is “a stan-

dardless delegation, allowing the Secretary of the In-

terior to take land in trust for whichever Indians he

chooses, for whatever reasons,” and therefore vio-

lates the non-delegation doctrine).

When Congress “has explicitly left a gap for the

agency to fill, there is an express delegation of au-

thority to elucidate a specific provision of the statute

by regulation,” and “[sJuch legislative regulations are

given controlling weight unless they are arbitrary,

capricious, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 844. Given that the regulations

themselves determine, in part, §465’s meaning, their

guidance that land-use concerns are relevant under

$465 cannot be so easily pushed aside. E.g., Hol/y-

wood Mobile Estates Ltd. v. Seminole Tribe of Fia.,

641 F.3d 1259, 1269-70 (11th Cir. 2011) (explaining

that “[u]nder (the zone-of-interests] test, we must

examine the Indian Long-Term Leasing Act and its

accompanying regulations to determine the interests

they arguably protect”). Put simply, it does not mat-

ter for the zone-of-interests test whether Congress

enumerates the interests or gives authority for an

agency to do so. And if a regulation is sufficiently

authoritative to determine the very meaning of the

statute, surely it is authoritative enough to illumi-

nate a Statute’s zone of interests.

Cheiron highlights another problem with the

DOI’s argument that the regulations do not matter.

The DOI contends that §465 “has nothing to do with

the interests asserted in Patchak’s suit, which in-

volve the effect of gaming . .. on nearby landowners.”

DOI Br. 10. But the DOI’s regulations effectuating

$465 expressly consider “[t]he purposes for which the

land will be used” and “potential conflicts of land use

which may arise.” 25 C.F.R. $151.10ic) & if). If it

were true that the interests the regulations address

have nothing to do with §405, then the regulations

would be invalid.

3. Looking to other IRA provisions confirms that

Congress did not intend to exclude community mem-

bers from enforcing the IRA’s limitations on land de-

cisions. Section 463 directs the Secretary to consider

“the public interest” when deciding whether to re-

store surplus lands to Indian tribes. 25 U.S.C. §463.

Given that in both the restored-lands and the land-

in-trust contexts the primary effect on the public in-

terest arises from the use of the land, it is at least

arguable that Congress was also concerned about

how the use of lands held in trust would affect the

surrounding community.

Petitioners assert that “the zone-of-interests

analysis is limited to the particular ‘statutory provi-

sion whose violation forms the legal basis for [the}

complaint,” which means that “it would have been

inappropriate for the court to consider the interests

protected even by other provisions of the IRA itself.”

DOI Br. 32-33 (quoting Lujan v. Nat? Wildlife Fed n,

497 US. 871, 883 (1990)):; see also sd. at 10 (“the court

of appeals erred by failing to limit its zone-of-

interests analysis ‘to the particular provision of law

upon which the plaintiff relies” (quoting Bennett v.

Spear, 520 U.S. 154, 175-76 (1997))); Band Br. 15.

Despite the Court's statements in National Wild-

life Federation and Bennett, this Court has not sug-

gested that other provisions are irrelevant to the

zone of interests—an approach that would defy this

Court’s usual method of statutory interpretation.

See, e.g., Samantar v. Yousef, 130 S. Ct. 2278, 2289

(2010) (“[w]Je do not ... construe statutory phrases in

isolation; we read statutes as a whole” (quoting

United States v. Morton, 467 U.S. 822, 828 (1984))-;

Dolan v. U.S. Postal Service, 546 U.S. 481, 486

(2006) (“Interpretation of a word or phrase depends

upon reading the whole statutory text, considering

the purpose and context of the statute ....”). For

example, last year in Thompson, the Court con-

clude[dj that the plaintiff fell “within the zone of in-

terests protected by Title VII.” /d 131 S. Ct. at 870.

Although the plaintiff sued under the specific anti-

retaliation provision of Title VII, 42 U.S.C. §2000e-

3(a), this Court did not limit its analysis to that pro-

vision, but instead referred to “the zone of interests

protected by Title VII” as a whole. 131 S. Ct. at 870.

Accord FEC v. Akins, 524 U.S. 11, 20 (1998) \examin-

ing the Federal Election Campaign Act of 1971 as a

whole, and finding “nothing in the Act that suggests

Congress intended to exclude voters from the bene-

fits of [its] provisions, or otherwise to restrict stand-

ing, say, to political parties, candidates, or their

committees” ).

4. Further, this Court’s cases recognizing that

competitors fall within the zone of interests of vari-

ous statutes illustrate that plaintiffs who police a

statute’s limitations fall within that statute’s zone of

interests. In Data Processing, the case that intro-

duced the zone-of-interests test, this Court addressed

whether a data-processing company had prudential

standing to challenge an agency ruling that national

banks would be allowed to provide data-processing

services, when a statute provided that “[njo bank

service corporation may engage in any activity other

than the performance of bank services for banks.”

397 U.S. at 155 (quoting 12 U.S.C. $1864). The

Court held that the competitors had standing to en-

force the statutory limitation. J/d. at 156. See also

Investment Co. Inst. v. Camp, 401 U.S. 617, 619-21

(1971) (rejecting the argument that investment com-

panies lacked standing to enforce a statutory provi-

sion that prohibited banks from underwriting or is-

suing securities).

The Band attempts to distinguish the competi-

tor-standing cases by saying that in those cases,

“Congress intended the relevant statutes to legislate

against the very competition that plaintiffs sought to

rein in.” Band Br. 45 n.13. But this Court has ex-

pressly disclaimed such a limited interpretation of

those cases. In Nationa/ Credit Union, the defen-

dants made the same argument: “Petitioners at-

tempt to distinguish this action [from the competitor-

standing cases] principally on the ground that there

is no evidence that Congress, when it enacted the

FCUA, was at all concerned with the competitive in-

terests of commercial banks, or indeed at all con-

cerned with competition.” 522 U.S. at 495-96. This

Court held that “(t]he difficulty with this argument

is that similar arguments were made unsuccessfully

in each of Data Processing, Arnold Tours, ICT, and

Clarke.” Id. at 496; see also id. at 498 (“The provi-

sions at issue ... could be said merely to be safety-

and-soundness provisions, enacted ... without a con-

cern for competitive effects. We nonetheless did not

hesitate to find standing. We therefore cannot ac-

cept petitioners’ argument that respondents do not

have standing because there is no evidence that the

Congress that enacted §109 was concerned with the

competitive interests of commercial banks.”).

The Band also argues that the prudential-

standing doctrine reflects the principle that “federal

courts should refrain from deciding questions that

‘other governmental institutions may be more com-

petent to address.” Band Br. 39 (quoting Warth v.

Seldin, 422 U.S. 490, 500 (1975)). To be sure, that

principle does explain the prudential-standing limi-

tations that Warth actually discussed—namely, that

a plaintiff may not assert “generalized grievances’

shared in substantially equal measure by all or a

large group of citizens” and may not “rest his claim

to relief on the legal rights or interests of third par-

ties,” Warth, 422 U.S. at 499. But Warth does not

address the zone-of-interests test. Moreover, the

principle of institutional competence is furthered, not

harmed, by judicial review under §702, which is why

Congress permitted the courts to review whether

federal agencies are violating federal law. Deciding

cases brought by plaintiffs with Article III] standing

about alleged violations of federal law falls squarely

within the core competency of courts and offends no

separation-of-powers principles. In any event, there

is no plausible argument that Patchak’s interest in

not having the DOI illegally take land into trust so

the Band can operate a casino in his neighborhood is

a “generalized grievance.”

B. Patchak’s concerns are within the zone of

interests of the Indian Reorganization

Act when considering the integrally

related Indian Gaming Regulatory Act

In its decision below, the D.C. Circuit considered

the interests of both the IRA and the IGRA when ap-

plying the zone-of-interests test. DOI Pet. App. 8a.

This approach is consistent with the decisions of this

Court, especially Clarke, which determined the zone-

of-interests by considering not only to the statutory

provision that served as the basis for the plaintiffs

claim, but also an integrally related statutory provi-

sion, even though the two provisions were adopted

more than 60 years apart.

1. Clarke involved provisions from both the Na-

tional Banking Act of 1864 and the McFadden Act of

1927. 479 U.S. at 401-02. The first provision, 12

U.S.C. $81, was originally enacted in 1864 and lim-

ited the general business of a national bank to its

headquarters. 479 U.S. at 391; see First Nat? Bank

in St. Louis v. Missouri, 263 U.S. 640, 657 (1924)

(quoting §81’s original language). The second provi-

sion, 12 U.S.C. §36, adopted in 1927, allowed na-

tional banks to operate branches, but only wrthin

their home state, and amended §81 to cross-reference

the new limitation imposed by §36. The dispute in

Clarke arose when the Comptroller of Currency

granted a national bank’s application to offer dis-

count brokerage services at locations outside its

home state. When the plaintiff, a trade association

representing securities brokers and investment

bankers, challenged that agency decision as violating

§36, the Comptroller responded that the plaintiff was

“not within the zone of interests protected by the

McFadden Act.” /d. at 393.

The Court rejected the Comptroller’s argument

because it “focuse[d] too narrowly on 12 U.S.C. $36,

and [did] not adequately place §36 in the overall con-

text of the National Bank Act.” Jd. at 401. “Section

36,” the Court explained, “is a limited exception to

the otherwise applicable requirement of $81,” /d., and

“the interest respondent asserts has a plausible rela-

tionship to the policies underlying §§36 and 81 of the

National Bank Act,” 7d. at 403. Because the Court

saw no indication of “a congressional intent to pre-

clude review,” the Court held that the plaintiff satis-

fied the zone-of-interests test. Jd see also Arr Cou-

rier Conference of Am. v. Am. Postal Workers Union,

498 U.S. 517, 529 (1991) (recognizing that Clarke

applies to instances where the provisions of one stat-

ute have an “integral relationship” with the provi-

sions of another statute).

This approach makes sense because prudential

standing is a matter of inferring congressional in-

tent, and this Court routinely looks to related stat-

utes when interpreting a particular statute. See,

e.g., Branch v. Smith, 538 U.S. 254, 281 (2003) tplu-

rality opinion) (“And it is, of course, the most rudi-

mentary rule of statutory construction . . . that courts

do not interpret statutes in isolation, but in the con-

text of the corpus juris of which they are a part, in-

cluding later-enacted statutes: “The correct rule of

interpretation is, that if divers statutes relate to the

same thing, they ought all to be taken into consid-

eration in construing any one of them.” (quoting

United States v. Freeman, 3 How. 556, 564—65, 11

L.Ed. 724 (1845)). Regardless of when a particular

statutory provision was enacted or whether it was

codified in the same section as another provision,

congressional intent must be analyzed by looking at

related statutory schemes. This is particularly true

in the context of prudential standing, where the

courts—not Congress—are creating the restriction on

who can enforce the statute. Given that the courts

are inferring the restriction in the first place, any in-

dication that Congress sought to allow the suit

should be respected.

Like the statutes in Clarke, the IRA and the

IGRA are integrally related. This close relationship

can be seen from their interrelated text and from the

DOI’s own approach to land-in-trust decisions. Con-

sequently, Congress's intent regarding enforcement

of the IRA must be analyzed by looking at the related

provisions of the IGRA.

As to the statutory text, just as one of the stat-

utes in Clarke limited the other. so too the IGRA lim-

its the IRA. Section 465 of the IRA authorizes the

DOI “to acquire ... any interest in lands ... for the

purpose of providing lands for Indians,” and provides

that such title or mghts in the lands “shall be taken

in the name of the United States in trust for the In-

dian tribe.” 25 U.S.C. $465. The IGRA limits this

authority by prohibiting gaming “on lands acquired

by the Secretary in trust for the benefit of an Indian

tribe”"—e.g., land acquired under §465—unless cer-

tain conditions are met. 25 U.S.C. §271%a); see also

25 U.S.C. §27191bx 1A) (expressly considering “the

surrounding community”). In other words, the IGRA

specifically limits the use of Indian trust lands for

gaming. Lac Courte Oreilles Band v. United States,

367 F.3d 650, 653 (7th Cir. 2004) (the DOI’s author-

ity to take land into trust “is limited by IGRA”). This

is the same type of integral relationship present in

Clarke, where one provision is a limitation on the

other one.

In practice, the IRA and the IGRA operate in

tandem because unless land is taken into trust, such

land ordinarily cannot be used for Class II] gaming.

The Band’s land-in-trust application—which ad-

dresses requirements imposed by the DOI—

highlights this integral relationship by repeatedly

addressing the proposed land use of gaming and the

requirements of the IGRA. The application's intro-

duction explains how using the land for gaming will

“promote tribal economic development” and “self-

sufficiency.” J.A. 41. These are the goals underlying

the IRA: “[t]he overriding purpose of [the Indian Re-

organization Act] was to establish machinery

whereby Indian tribes would be able to assume a

greater degree of self-government, both politically

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

542 (1974). When addressing “the purposes for

which the land will be used,” 25 C.F.R. §151.10(c),

the Band specifically referenced gaming and the

IGRA, explaining that it “intend|[ed] to offer Class II

and/or Class III gaming (as defined by the IGRA, 25

U.S.C. §2701 et seg.).”. J.A. 61. When addressing

“potential conflicts of land use which may arise,” 25

C.F.R. §151.10 Uf), the Band again addressed gaming

by detailing the measures that would be taken to at-

tempt “to mitigate any impact on the surrounding

community” that might arise from the gaming facil-

ity. J.A. 62-65. The Band’s application also specifi-

cally addressed IGRA requirements, quoting §2719's

limitations on gaming on land held in trust and ad-

dressing in detail why the Band believed it allowed

the DOI to authorize gaming on this land. J.A. 67—

74.

Thus, Patchak’s interests fall within the IRA's

zone of interests when considered in the context of

the integrally related land-use provisions of IGRA.

See TOMAC vy. Norton, 193 F. Supp. 2d 1982, 190

(D.D.C. 1982) (IGRA considers “effects on surround-

ing communities” and community members “are pre-

cisely the type of plaintiffs who could be expected to

police these interests”).

Both petitioners admit that Patchak’s interests

would fall within the zone of interests of the IGRA.

The Band concedes that IGRA addresses “precisely

the concerns that [Patchak] raises.” Band Br. 47.

And the DOI also admits as much, conceding that

MichGO, which asserted interests similar to those

asserted by Patchak, had prudential standing under

the IGRA. DOI Br. 35. Compare Compl. 4/4 13-14,

MichGO vy. Norton, No. 1:05-cev-01181-JGP (D.D.C.

June 13, 2005), ECF No. 1 (alleging that the casino

“would detract from the quiet, family atmosphere of

the surrounding rural areas” and asserting the spe-

cific adverse effects), with J.A. 31 (asserting similar

adverse effects).

2. Despite the integral relationship between the

IRA and the IGRA, the DOI contends that the D.C.

Circuit erred by considering the IGRA because that

statute was enacted “some 54 years after the IRA”

and because Congress could not “even have imag-

ined” that a land-in-trust decision could affect the

interests of those living near the land. DOI Br. 34,

35. But in Clarke, the limitation imposed in §36 of

the McFadden Act was enacted some 63 years after

Congress enacted the National Bank Act and the

original version of $81. 479 U.S. at 401, 403; see also

Japan Whaling, 478 U.S. at 230 n.4 (examining the

zone of interests in two statutes enacted 13 years

apart). And Congress expressly linked IRA §465 to

the IGRA, by including language in IGRA regarding

“lands acquired by the Secretary in trust for the

benefit of an Indian tribe.” 25 U.S.C. §2719. In sum,

it does not take much imagination to see that a

change in land use to allow otherwise illegal gam-

bling activity will affect the surrounding community.

This case is very different from Air Courter, 498

U.S. at 530, where, as petitioners correctly point out,

the only relationship between the two statutes at is-

sue there was that they were both included in the

general codification of the postal statutes. DOI Br.

36; Band Br. 49. Here, §2719 is a specific limitation

on the DOI’s authority to take land into trust under

$465.

The Band also argues that Arr Courter demon-

strates that two statutory provisions can be inte-

grally related only “when the two statutory provi-

sions are within the same statute.” Band Br. 48—49.

But Ar Courier does not stand for that proposition,

Clarke refutes it, and it would be absurd given that

Congress frequently enacts related provisions in dif-

ferent statutes, which must then be interpreted to-

gether.

* A tk

In the end, Patchak is not the sort of marginally

related plaintiff that Congress would not have in-

tended to bring an APA suit. To the contrary, he has

a concrete, obvious interest in whether a casino com-

plex will be built on trust land in close proximity to

where he lives, and he is precisely the sort of plain-

tiff Congress would want to enforce the IRA’s statu-

tory limitations. As the D.C. Circuit recognized, it

would be “very strange to deny Patchak standing in

this case.” DOI Pet. App. 10a.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

BRIAN J. MURRAY DANIEL P. ETTINGER

JONES Day Counsel of Record

77 West Wacker MATTHEW T. NELSON

Chicago, Illinois 60601- Axapon D. LINDSTROM

1692 NICOLE L. MAZZOCCO

: 5 WARNER NORCROSS & JUDD LLP

— wy VOTER 111 Lyon Street N.W.

222 Fast 41st Street 900 Fifth Third Center

New York. New York Grand Rapids, MI 49503

10017-6702

Counsel for Respondent David Patchak

March 20, 2012

APPENDIX!

STATUTORY PROVISIONS INVOLVED

1. 5 U.S.C. §702 provides:

Right of Review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

acuion within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a

court of the United States 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 official capacity or under color of legal author-

ity shall not be dismissed nor relief therein be denied

on the ground that it is against the United States or

that the United States is an indispensable party. The

United States may be named as a defendant in any

such action, and a judgment or decree may be en-

tered against the United States: Provided, That any

mandatory or injunctive decree shall specify the Fed-

eral officer or officers (by name or by title), and their

successors in office, personally responsible for com-

pliance. Nothing herein (1) affects other limitations

on judicial review or the power or duty of the court to

dismiss any action or deny relief on any other appro-

priate legal or equitable ground; or (2) confers au-

thority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the re-

lief which is sought.

1 The text is from the 2010 edition of the United States Cude.

2. 25 U.S.C. §463 provides in pertinent part:

Restoration of lands to tribal ownership

(a) Protection of existing rights

The Secretary of the Interior, if he shall find it to

be in the public interest, is authorized to restore to

tribal ownership the remaining surplus lands of any

Indian reservation heretofore opened, or authorized

to be opened, to sale, or any other form of disposal by

Presidential proclamation, or by any of the public-

land laws of the United States: Provided, however,

That valid rights or claims of any persons to any

lands so withdrawn existing on the date of the with-

drawal shall not be affected by this Act: Provided

further, That this section shall not apply to lands

within any reclamation project heretofore authorized

in any Indian reservation.

a a ae.

a> 4 FF FS FE

3. 25 U.S.C. §465 provides:

Acquisition of lands, water rights or surface rights;

appropriation; title to lands; tax exemption

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relinquish-

ment, gift. exchange. or assignment, any interest in

lands, water rights, or surface rights to lands, within

or without existing reservations, including trust or

otherwise restricted allotments, whether the allottee

be living or deceased, for the purpose of providing

land for Indians.

For the acquisition of such lands, interests in

lands, water rights, and surface rights, and for ex-

penses incident to such acquisition, there is author-

ized to be appropriated, out of any funds in the

Treasury not otherwise appropriated, a sum not to

exceed $2.000,000 in any one fiscal year: Provided.

That no part of such funds shall be used to acquire

additional land outside of the exterior boundaries of

Navajo Indian Reservation for the Navajo Indians in

Arizona, nor in New Mexico, in the event that legis-

lation to define the exterior boundaries of the Navajo

Indian Reservation in New Mexico, and for other

purposes, or similar legislation, becomes law.

The unexpended balances of any appropriations

made pursuant to this section shall remain available

until expended.

Title to any lands or nights acquired pursuant to

this Act or the Act of July 28, 1955 (69 Stat. 392), as

amended (25 U.S.C. 608 et seq.) shall be taken in the

name of the United States in trust for the Indian

tribe or individual Indian for which the land is ac-

quired, and such lands or rights shall be exempt

from State and local taxation.

4. 25 U.S.C. §2719 provides:

Gaming on lands acquired after October 17, 1988

(a) Prohibition on lands acquired in trust by Sec-

retary

Except as provided in subsection (b) of this sec-

tion, gaming regulated by this chapter shal! not be

conducted on lands acquired by the Secretary in

trust for the benefit of an Indian tribe after October

17, 1988, unless—

(1) such lands are located within or contiguous to

the boundaries of the reservation of the Indian tribe

on October 17, 1988; or

(2+ the Indian tribe has no reservation on Octo-

ber 17, 1988, and—

(A) such lands are located in Oklahoma and—

(1) are within the boundaries of the Indian tribe's

former reservation, as defined by the Secretary, or

(il) are contiguous to other land held in trust or

restricted status by the United States for the Indian

tribe in Oklahoma; or

(B) such lands are located in a State other than

Oklahoma and are within the Indian tribe’s last rec-

ognized reservation within the State or States within

which such Indian tribe is presently located.

(b) Exceptions

(1) Subsection (a) of this section will not apply

when-—

(A) the Secretary, after consultation with the In-

dian tribe and appropriate State and local officials,

including officials of other nearby Indian tribes, de-

termines that a gaming establishment on newly ac-

quired lands would be in the best interest of the In-

dian tribe and its members, and would not be detri-

mental to the surrounding community, but only if

the Governor of the State in which the gaming activ-

ity is to be conducted concurs in the Secretary’s de-

termination; or

(\B> lands are taken into trust as part of—

(i) a settlement of a land claim,

(11) the initial reservation of an Indian tribe ac-

knowledged by the Secretary under the Federal ac-

knowledgment process, or

(iil) the restoration of lands for an Indian tribe

that is restored to Federal recognition.

Ss ss & =

5. 28 U.S.C. §1346 provides in pertinent part:

United States as Defendan

az & Ee He a

(f) The district courts shall have exclusive origi-

nal jurisdiction of civil actions under section 2409a to

quiet title to an estate or interest in real property in

which an interest is claimed by the United States.

= KE HR SE

6. 28 U.S.C. §1402 provides in pertinent part:

United States as Defendant

* EK HE

(d) Any civil action under section 2409a to quiet

title to an estate or interest in real property in which

an interest is claimed by the United States shall be

brought in the district court of the district where the

property is located or, if located in different districts,

in any of such districts.

7. 28 U.S.C. §$2409a provides:

Real property quiet title actions

(a) The United States may be named as a party

defendant in a civil action under this section to adju-

dicate a disputed title to real property in which the

United States claims an interest, other than a secu-

rity interest or water rights. This section does not

apply to trust or restricted Indian lands, nor does it

apply to or affect actions which may be or could have

been brought under sections 1346, 1347, 1491, or

2410 of this title, sections 7424, 7425, or 7426 of the

Internal Revenue Code of 1986, as amended (26

U.S.C. 7424, 7425, and 7426), or section 208 of the

Act of July 10, 1952 (43 U.S.C. 666).

(b) The United States shall not be disturbed in

possession or control of any real property involved in

any action under this section pending a final judg-

ment or decree, the conclusion of any appeal there-

from, and sixty days; and if the final determination

shall be adverse to the United States, the United

States nevertheless may retain such possession or

control of the real property or of any part thereof as

it may elect, upon payment to the person determined

to be entitled thereto of an amount which upon such

election the district court in the same action shall de-

termine to be just compensation for such possession

or control.

action brought under this section.

(id) The complaint shall! set forth with particular-

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

plaintiff claims in the real property, the circum-

stances under which it was acquired, and the right,

title, or interest claimed by the United States.

(e) If the United States disclaims all interest in

the real property or interest therein adverse to the

plaintiff at any time prior to the actual commence-

ment of the trial, which disclaimer is confirmed by

order of the court, the jurisdiction of the district

court shall cease unless it has jurisdiction of the civil

action or suit on ground other than and independent

of the authority conferred by section 1346(f) of this

title.

(f) A civil action against the United States under

this section shall be tried by the court without a jury.

(g) Anv civil action under this section, except for

an action brought by a State, shall be barred unless

it is commenced within twelve years of the date upon

which it accrued. Such action shall be deemed to

have accrued on the date the plaintiff or his prede-

cessor in interest knew or should have known of the

claim of the United States.

(th) No civil action may be maintained under this

section by a State with respect to defense facilities

(including land) of the United States so long as the

lands at issue are being used or required by the

United States for national defense purposes as de-

termined by the head of the Federal agency with ju-

risdiction over the lands involved, if it is determined

that the State action was brought more than twelve

years after the State knew or should have known of

the claims of the United States. Upon cessation of

such use or requirement, the State may dispute title

to such lands pursuant to the provisions of this sec-

tion. The decision of the head of the Federal agency

is not subject to judicial review.

(i) Any civil action brought by a State under this

section with respect to lands, other than tide or sub-

merged lands, on which the United States or its les-

see or right-of-way or easement grantee has made

substantial improvements or substantial invest-

ments or on which the United States has conducted

substantial activities pursuant to a management

plan such as range improvement, timber harvest.

tree planting, mineral activities, farming, wildlife

habitat improvement, or other similar activities,

shall be barred unless the action is commenced

within twelve years after the date the State received

notice of the Federal claims to the lands.

(j) If a final determination in an action brought

by a State under this section involving submerged or

tide lands on which the United States or its lessee or

right-of-way or easement grantee has made substan-

tual improvements or substantial investments is ad-

verse to the United States and it is determined that

the State’s action was brought more than twelve

years after the State received notice of the Federal

claim to the lands, the State shall take title to the

lands subject to any existing lease, easement, or

right-of-way. Any compensation due with respect to

such lease, easement, or right-of-way shall be deter-

mined under existing law.

(k) Notice for the purposes of the accrual of an

action brought by a State under this section shall

be—

(1) by public communications with respect to the

claimed lands which are sufficiently specific as to be

reasonably calculated to put the claimant on notice of

the Federal claim to the lands, or

(2) by the use, occupancy, or improvement of the

claimed lands which, in the circumstances, is open

and notorious.

(1) For purposes of this section, the term “tide or

submerged lands” means “lands beneath navigable

waters” as defined in section 2 of the Submerged

Lands Act (43 U.S.C. 1301).

(m) Not less than one hundred and eighty days

before bringing any action under this section, a State

shall notify the head of the Federal agency with ju-

risdiction over the lands in question of the State’s in-

tention to file suit, the basis therefor, and a descrip-

tion of the lands included in the suit.

(n) Nothing in this section shall be construed to

permit suits against the United States based upon

adverse possession.

10a

REGULATIONS INVOLVED?

25 C.F.R. Part 151 provides in pertinent part:

§151.10 On-reservation acquisitions.

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, unless the acquisition is

mandated by legislation. 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 impacts on regulatory jurisdic-

tion, real property taxes and special assessments. If

the state or local government responds within a 30-

day period, a copy of the comments will be provided

to the applicant, who will be given a reasonable time

in which to reply and/or request that the Secretary

issue a decision. The Secretary will consider the fol-

lowing criteria in evaluating requests for the acquisi-

tion of land in trust status when the land is located

within or contiguous to an Indian reservation, and

the acquisition is not mandated:

(a) The existence of statutory authority for the

acquisition and any limitations contained in such au-

thority;

(b) The need of the individual Indian or the tribe

for additional land;

(d) If the land is to be acquired for an individual

Indian, the amount of trust or restricted land already

2 The text is from the 2011 edition of the Code of Federal Regu-

lations.

lla

owned by or for that individual and the degree to

which he needs assistance in handling his affairs;

(e) If the land to be acquired is in unrestricted fee

status, the impact on the State and its political sub-

divisions resulting from the removal of the land from

the tax rolls;

(f) Jurisdictional problems and potential conflicts

of land use which may arise; and

(g) If the land to be acquired is in fee status,

whether the Bureau of Indian Affairs is equipped to

discharge the additional responsibilities resulting

from the acquisition of the land in trust status.

(h) The extent to which the applicant has pro-

vided information that allows the Secretary to com-

ply with 516 DM 6, appendix 4, National Environ-

mental Policy Act Revised Implementing Procedures,

and 602 DM 2, Land Acquisitions: Hazardous Sub-

stances Determinations. (For copies, write to the De-

partment of the Interior, Bureau of Indian Affairs,

Branch of Environmental Services, 1849 C Street

NW., Room 4525 MIB, Washington, DC 20240.)

§151.11 Off-reservation acquisitions.

The Secretary shall consider the following re-

quirements in evaluating tribal requests for the ac-

quisition of lands in trust status, when the land is

located outside of and noncontiguous to the tribe’s

reservation, and the acquisition is not mandated:

(a) The criteria listed in §151.10 (a) through (c)

and (e) through th);

(b) The location of the land relative to state

boundaries, and its distance from the boundaries of

the tribe’s reservation, shall be considered as follows:

as the distance between the tribe’s reservation and

12a

the land to be acquired increases, the Secretary shall

give greater scrutiny to the tribe’s justification of an-

ticipated benefits from the acquisition. The Secretary

shall give greater weight to the concerns raised pur-

suant to paragraph (d) of this section.

purposes, the tribe shall provide a plan which speci-

fies the anticipated economic benefits associated

with the proposed use.

(d) Contact with state and local governments

pursuant to §151.10 (e) and (f) shall be completed as

follows: Upon receipt of a tribe’s written request to

have lands taken in trust, the Secretary shall notify

the state and local governments having regulatory

jurisdiction over the land to be acquired. The notice

shall inform the state and local government that

each will be given 30 days in which to provide writ-

ten comment as to the acquisition’s potential impacts

on regulatory jurisdiction, real property taxes and

special assessments.

§151.12 Action on requests.

(a) The Secretary shall review all requests and

shall promptly notify the applicant in writing of his

decision. The Secretary may request any additional

information or justification he considers necessary to

enable him to reach a decision. If the Secretary de-

termines that the request should be denied, he shall

advise the applicant of that fact and the reasons

therefor in writing and notify him of the right to ap-

peal pursuant to part 2 of this title.

(b) Following completion of the Title Examina-

tion provided in §151.13 of this part and the exhaus-

tion of any administrative remedies, the Secretary

shall publish in the Federal Register, or in a news-

l3a

paper of general] circulation serving the affected area

a notice of his/her decision to take land into trust

under this part. The notice will state that a final

agency determination to take land in trust has been

made and that the Secretary shall acquire title in the

name of the United States no sooner than 30 days

after the notice is published.

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.