# Respondents Brief — Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0740%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2012 - **Citation:** 566 U.S. 919 ## Text 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 _~ — 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 l 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 11 TABLE OF CONTENTS il TABLE OF CONTENTS—Continued CI 25. ccacsknsesdccesiesenmmesssnasccatmamsratsianteieel 54 Appendix Statutory Provisions Involved ies Se icscta cencoscusccevesddhnetcicatieaswamncagenasinntial la ey inca nktdcsamisccnstueccssspecdntcmaceesninenivnteds 2a OO is Cs ind con censccts-ceccessnnezascseduciinbeaphndanctudion 2a 25 U.S.C. $2719......... Jeie absuesoas sniiniandepieliebinin sec asaaaea 3a re a cantcccectipcessecndcundansstiantsinancedesumiouse Sa aes, nen ce sesencvcctdcccentssnascccunnibsbcennchcutnerih da is GN derec ciccusiaconasuuiictiscreiminsmewksnccacinauasiol da Regulations Involved y poe f Ho) 5 eee solvepeinentn-Adeteiendisidanipislehasale 10a Be er is I ect rccrtrcreeisnaccdctaernnsentcsentsiuces lla Se es SINE ssesttiagesecscectesnsuscaternesnensioninnees 12a iV 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 VY 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 v1 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 v1 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 ix 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 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 3a 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 4a (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 va (iil) the restoration of lands for an Indian tribe that is restored to Federal recognition. Ss ss & = a 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. Se 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 6a 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. (c) No preliminary injunction shall issue in any 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 4a 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, Sa 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- Ja 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; (c) The purposes for which the land will be used; (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. (c) Where land is being acquired for business 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0740%3A11. Public record. Not legal advice.